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413 U.S. 601
93 S.Ct. 2908
37 L.Ed.2d 830
William M. BROADRICK et al., Appellants,v.State of OKLAHOMA et al.
No. 71—1639.
Argued March 26, 1973.
Decided June 25, 1973.
Syllabus
Appellants, state employees charged by the Oklahoma State Personnel Board with actively engaging in partisan political activities (including the solicitation of money) among their coworkers for the benefit of their superior, in alleged violation of § 818 of the state merit system Act, brought this suit challenging the Act's validity on the grounds that two of its paragraphs are invalid because of overbreadth and vagueness. One paragraph provides that no classified service employee 'shall directly or indirectly, solicit, receive, or in any manner be concerned in soliciting or receiving any assessment . . . or contribution for any political organization, candidacy or other political purpose.' The other provides that no such employee shall belong to 'any national, state or local committee of a political party' or be an officer or member of a committee or a partisan political club, or a candidate for any paid public office, or take part in the management or affairs of any political party or campaign 'except to exercise his right as a citizen privately to express his opinion and . . . vote.' The District Court upheld the provisions. Held: Section 818 of the Oklahoma statute is not unconstitutional on its face. CSC v. Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796. Pp. 607—618.
(a) The statute, which gives adquate warning of what activities it proscribes and sets forth explicit standards for those who must apply it, is not impermissibly vague. Pp. 607—608.
(b) Although appellants contend that the statute reaches activities that are constitutionally protected as well as those that are not, it is clearly constitutional as applied to the conduct with which they are charged and because it is not substantially overbroad they cannot challenge the statute on the ground that it might be applied unconstitutionally to others, in situations not before the Court. Appellants' conduct falls squarely within the proscriptions of § 818, which deals with activities that the State has ample power to regulate, United Public Workers of America v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754; CSC v. Letter Carriers, supra, and the operation of the statute has been administratively confined to clearly partisan political activity. Pp. 608—618.
338 F.Supp. 711, affirmed.
John C. Buckingham, Oklahoma City, Okl., for appellants.
Michael Dennis Martin, Oklahoma City, Okl., for appellees.
Mr. Justice WHITE delivered the opinion of the Court.
1
Section 818 of Oklahoma's Merit System of Personnel Administration Act, Okla.Stat.Ann., Tit. 74, § 801 et seq., restricts the political activities of the State's classified civil servants in much the same manner that the Hatch Act proscribes partisan political activities of federal employees. Three employees of the Oklahoma Corporation Commission who are subject to the proscriptions of § 818 seek to have two of its paragraphs declared unconstitutional on their face and enjoined because of asserted vagueness and overbreadth. After a hearing, the District Court upheld the provisions and denied relief. 338 F.Supp. 711. We noted probable jurisdiction of the appeal, 409 U.S. 1058, 93 S.Ct. 550, 34 L.Ed.2d 510, so that appellants' claims could be considered together with those of their federal counterparts in United States Civil Service Commission v. National Association of Letter Carriers, AFL—CIO, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796. We affirm the judgment of the District Court.
2
Section 818 was enacted in 1959 when the State first established its Merit System of Personnel Administration.1 The section serves roughly the same function as the analogous provisions of the other 49 States,2 and is patterned on § 9(a) of the Hatch Act.3 Without question, a broad range of political activities and conduct is proscribed by the section. Paragraph six, one of the contested portions, provides that '(n)o employee in the classified service . . . shall, directly or indirectly, solicit, receive, or in any manner be concerned in soliciting or receiving any assessment . . . or contribution for any political organization, candidacy or other political purpose.' Paragraph seven, the other challenged paragraph, provides that no such employee 'shall be a member of any national, state or local committee of a political party, or an officer or member of a committee of a partisan political club, or a candidate for nomination or election to any paid public office.' That paragraph further prohibits such employees from 'tak(ing) part in the management or affairs of any political party or in any political campaign, except to exercise his right as a citizen privately to express his opinion and to cast his vote.' As a complementary proscription (not challenged in this lawsuit) the first paragraph prohibits any person from 'in any way' being 'favored or discriminated against with respect to employment in the classified service because of his political . . . opinions or affiliations.' Responsibility for maintaining and enforcing § 818's proscriptions is vested in the State Personnel Board and the State Personnel Director, who is appointed by the Board. Violation of § 818 results in dismissal from employment and possible criminal sanctions and limited state employment ineligibility. Okla.Stat.Ann., Tit. 74, §§ 818 and 819.
3
Appellants do not question Oklahoma's right to place even-handed restrictions on the partisan political conduct of state employees. Appellants freely concede that such restrictions serve valid and important state interests, particularly with respect to attracting greater numbers of qualified people by insuring their job security, free from the vicissitudes of the elective process, and by protecting them from 'political extortion.'4 See United Public Workers of America v. Mitchell, 330 U.S. 75, 99—103, 67 S.Ct. 556, 569—571, 91 L.Ed. 754 (1947). Rather, appellants maintain that however permissible, even commendable, the goals of § 818 may be, its language is unconstitutionally vague and its prohibitions too broad in their sweep, failing to distinguish between conduct that may be proscribed and conduct that must be permitted. For these and other reasons,5 appellants assert that the sixth and seventh paragraphs of § 818 are void in toto and cannot be enforced against them or anyone else.6
4
We have held today that the Hatch Act is not impermissibly vague. United States Civil Service Commission v. National Association of Letter Carriers, AFL—CIO, supra, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796. We have little doubt that § 818 is similarly not so vague that 'men of common intelligence must necessarily guess at its meaning.' Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). See Grayned v. City of Rockford, 408 U.S. 104, 108 114, 92 S.Ct. 2294, 2298—2302, 33 L.Ed.2d 222 (1972); Colten v. Kentucky, 407 U.S. 104, 110—111, 92 S.Ct. 1953, 1957—1958, 32 L.Ed.2d 584 (1972); Cameron v. Johnson, 390 U.S. 611, 616, 88 S.Ct. 1335, 1338, 20 L.Ed.2d 182 (1968). Whatever other problems there are with § 818, it is all but frivolous to suggest that the section fails to give adequate warning of what activities it proscribes or fails to set out 'explicit standards' for those who must apply it. Grayned v. City of Rockford, supra, 408 U.S., at 108, 92 S.Ct., at 2298. In the plainest language, it prohibits any state classified employee from being 'an officer or member' of a 'partisan political club' or a candidate for 'any paid public office.' It forbids solicitation of contributions 'for any political organization, candidacy or other political purpose' and taking part 'in the management or affairs of any political party or in any political campaign.' Words inevitably contain germs of uncertainty and, as with the Hatch Act, there may be disputes over the meaning of such terms in § 818 as 'partisan,' or 'take part in,' or 'affairs of' political parties. But what was said in Letter Carriers, supra, 413 U.S., at 578—579, 93 S.Ct., at 2897, is applicable here: 'there are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest.'7 Moreover, even if the outermost boundaries of § 818 may be imprecise, any such uncertainty has little relevance here, where appellants' conduct falls squarely within the 'hard core' of the statute's proscriptions and appellants concede as much.8 See Dombrowski v. Pfister, 380 U.S. 479, 491 492, 85 S.Ct. 1116, 1123—1124, 14 L.Ed.2d 22 (1965); United States v. National Dairy Products Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963); Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774 (1951); Robinson v. United States, 324 U.S. 282, 286, 65 S.Ct. 666, 668, 89 L.Ed. 944 (1945); United States v. Wurzbach, 280 U.S. 396, 50 S.Ct. 167, 74 L.Ed. 508 (1930).
5
Shortly before appellants commenced their action in the District Court, they were charged by the State Personnel Board with patent violations of § 818.9 According to the Board's charges, appellants actively participated in the 1970 re-election campaign of a Corporation Commissioner, appellants' superior. All three allegedly asked other Corporation Commission employees (individually and in groups) to do campaign work or to give referrals to persons who might help in the campaign. Most of these requests were made at district offices of the Commission's Oil and Gas Conservation Division. Two of the appellants were charged with soliciting money for the campaign from Commision employees and one was also charged with receiving and distributing campaign posters in bulk. In the context of this type of obviously covered conduct, the statement of Mr. Justice Holmes is particularly appropriate: 'if there is any difficulty . . . it will be time enough to consider it when raised by someone whom it concerns.' United States v. Wurzbach, supra, at 399, 50 S.Ct., at 169.
6
Appellants assert that § 818 has been construed as applying to such allegedly protected political expression as the wearing of political buttons or the displaying of bumper stickers.10 But appellants did not engage in any such activity. They are charged with actively engaging in partisan political activities—including the solicitation of money—among their coworkers for the benefit of their superior. Appellants concede—and correctly so, see Letter Carriers, supra—that § 818 would be constitutional as applied to this type of conduct.11 They nevertheless maintain that the statute is overbroad and purports to reach protected, as well as unprotected conduct, and must therefore be struck down on its face and held to be incapable of any constitutional application. We do not believe that the overbreadth doctrine may appropriately be invoked in this manner here.
7
Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court. See, e.g., Austin v. Aldermen, 7 Wall. 694, 698—699, 19 L.Ed. 224 (1869); Supervisors v. Stanley, 105 U.S. 305, 311—315, 26 L.Ed. 1044 (1882); Hatch v. Reardon, 204 U.S. 152, 160—161, 27 S.Ct. 188, 190—191, 51 L.Ed. 415 (1907); Yazoo & M.V.R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 219—220, 33 S.Ct. 40, 41, 57 L.Ed. 193 (1912); United States v. Wurbach, supra, 280 U.S., at 399, 50 S.Ct., at 169; Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 513, 57 S.Ct. 868, 874, 81 L.Ed. 1245 (1937); United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960). A closely related principle is that constitutional rights are personal and may not be asserted vicariously. See McGowan v. Maryland, 366 U.S. 420, 429—430, 81 S.Ct. 1101, 1106—1107, 6 L.Ed.2d 393 (1961). These principles rest on more than the fussiness of judges. They reflect the conviction that under our constitutional system courts are not roving commissions assigned to pass judgment on the validity of the Nation's laws. See Younger v. Harris, 401 U.S. 37, 52, 91 S.Ct. 746, 754, 27 L.Ed.2d 669 (1971). Constitutional judgments, as Mr. Chief Justice Marshall recognized, are justified only out of the necessity of adjudicating rights in particular cases between the litigants brought before the Court:
8
'So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.' Marbury v. Madison, 1 Cranch 137, 178, 2 L.Ed. 60 (1803).
9
In the past, the Court has recognized some limited exceptions to these principles, but only because of the most 'weighty countervailing policies.' United States v. Raines, 362 U.S., at 22 23, 80 S.Ct., at 523—524.12 One such exception is where individuals not parties to a particular suit stand to lose by its outcome and yet have no effective avenue of preserving their rights themselves. See Eisenstadt v. Baird, 405 U.S. 438, 444—446, 92 S.Ct. 1029, 1033—1035, 31 L.Ed.2d 349 (1972); NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). Another exception have been carved out in the area of the First Amendment.
10
It has long been recognized that the First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society. Herndon v. Lowry, 301 U.S. 242, 258, 57 S.Ct. 732, 739, 81 L.Ed. 1066 (1937); Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960); Grayned v. City of Rockford, 408 U.S., at 116—117, 92 S.Ct., at 2303—2304. As a corollary, the Court has altered its traditional rules of standing to permit—in the First Amendment area—'attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.' Dombrowski v. Pfister, 380 U.S., at 486, 85 S.Ct., at 1121. Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.
11
Such claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate 'only spoken words.' Gooding v. Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972). See Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969); Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969); Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). In such cases, it has been the judgment of this Court that the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted and perceived grievances left to fester because of the possible inhibitory effects of overly broad statutes. Overbreadth attacks have also been allowed where the Court thought rights of association were ensnared in statutes which, by their broad sweep, might result in burdening innocent associations. See Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964); Shelton v. Tucker, supra. Facial overbreadth claims have also been entertained where statutes, by their terms, purport to regulate the time, place, and manner of expressive or communicative conduct, see Grayned v. City of Rockford, supra, 408 U.S., at 114—121, 92 S.Ct., at 2302—2306; Cameron v. Johnson, 390 U.S., at 617—619, 88 S.Ct., at 1338—1339; Zwickler v. Koota, 389 U.S. 241, 249—250, 88 S.Ct. 391, 396—397, 19 L.Ed.2d 444 (1967); Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940), and where such conduct has required official approval under laws that delegated standardless discretionary power to local functionaries, resulting in virtually unreviewable prior restraints on First Amendment rights. See Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969); Cox v. Louisiana, 379 U.S. 536, 553—558, 85 S.Ct. 453, 463—466, 13 L.Ed.2d 471 (1965); Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951); Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938).
12
The consequence of our departure from traditional rules of standing in the First Amendment area is that any enforcement of a statute thus placed at issue is totally forbidden until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression. Application of the overbreadth doctrine in this manner is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort. Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute. See Dombrowski v. Pfister, 380 U.S., at 491, 85 S.Ct., at 1123; Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941); United States v. Thirty-Seven Photographis, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971); cf. Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951). Equally important, overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct. In Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed.1213 (1940), Jesse Cantwell, a Jehovah's Witness, was convicted of common-law breach of the peace for playing a phonograph record attacking the Catholic Church before two Catholic men on a new Haven street. The Court reversed the judgment affirming Cantwell's conviction, but only on the ground that his conduct, 'considered in the light of the constitutional guarantees,' could not be punished under 'the common law offense in question.' Id., at 311, 60 S.Ct., at 906 (footnote omitted). The Court did not hold that the offense 'known as breach of the peace' must fall in toto because it was capable of some unconstitutional applications, and, in fact, the Court seemingly envisioned its continued use against 'a great variety of conduct destroying or menacing public order and tranquility.' Id., at 308, 60 S.Ct., at 905. See Garner v. Louisiana, 368 U.S. 157, 202—203, 205, 82 S.Ct. 248, 271—272, 273, 7 L.Ed.2d 207 (1961) (Harlan, J., concurring in judgment). Similarly, in reviewing the statutory breach-of-the-peace convictions involved in Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963), and Cox v. Louisiana, supra, 379 U.S., at 544-552, 85 S.Ct., at 458—463, the Court considered in detail the State's evidence and in each case concluded that the conduct at issue could not itself be punished under a breach-of-the-peace statute. On that basis, the judgments affirming the convictions were reversed.13 See also International Brotherhood of Teamsters, Local 695 v. Vogt, Inc., 354 U.S. 284, 77 S.Ct. 1166, 1 L.Ed.2d 1347 (1957). Additionally, overbreadth scrutiny has generally been somewhat less rigid in the context of statutes regulating conduct in the shadow of the First Amendment, but doing so in a neutral, noncensorial manner. See United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954); United States v CIO, 335 U.S. 106, 68 S.Ct. 1349, 92 L.Ed. 1849 (1948); cf. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969); Pickering v. Board of Education, 391 U.S. 563, 565 n. 1, 88 S.Ct. 1731, 1733, 20 L.Ed.2d 811 (1968); Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961).
13
It remains a 'matter of no little difficulty' to determine when a law may properly be held void on its face and when 'such summary action' is inappropriate. Coates v. City of Cincinnati, 402 U.S. 611, 617, 91 S.Ct. 1686, 1689, 29 L.Ed.2d 214 (1971) (opinion of Black, J.). But the plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from 'pure speech' toward conduct and that conduct—even if expressive—falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect—at best a prediction—cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. Cf. Alderman v. United States, 394 U.S. 165, 174—175, 89 S.Ct. 961, 966—967, 22 L.Ed.2d 176 (1969). To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. It is our view that § 818 is not substantially overbroad and that whatever overbreadth may exist should be cured through case-bycase analysis of the fact situations to which its sanctions, assertedly, may not be applied.14
14
Unlike ordinary breach-of-the peace statutes or other broad regulatory acts, § 818 is directed, by its terms, at political expression which if engaged in by private persons would plainly be protected by the First and Fourteenth Amendments. But at the same time, § 818 is not a censorial statute, directed at particular groups or viewpoints. Cf. Keyishian v. Board of Regents, supra. The statute, rather, seeks to regulate political activity in an even-handed and neutral manner. As indicted, such statutes have in the past been subject to a less exacting overbreadth scrutiny. Moreover, the fact remains that § 818 regulates a substantial spectrum of conduct that is as manifestly subject to state regulation as the public peace or criminal trespass. This much was established in United Public Workers v. Mitchell, and has been unhesitatingly reaffirmed today in Letter Carriers, supra. Under the decision in Letter Carriers, there is no question that § 818 is valid at least insofar as it forbids classified employees from: soliciting contributions for partisan candidates, political parties, or other partisan political purposes; becoming members of national, state, or local committees of political parties, or officers or committee members in partisan political clubs, or candidates for any paid public office; taking part in the management or affairs of any political party's partisan political campaign; serving as delegates or alternates to caucauses or conventions of political parties; addressing or taking an active part in partisan political rallies or meetings; soliciting votes or assisting voters at the polls or helping in a partisan effort to get voters to the polls; participating in the distribution of partisan campaign literature; initiating or circulating partisan nominating petitions; or riding in caravans for any political party or partisan political candidate.
15
These proscriptions are taken directly from the contested paragraphs of § 818, the Rules of the State Personnel Board and its interpretive circular, and the authoritative opinions of the State Attorney General. Without question, the conduct appellants have been charged with falls squarely within these proscriptions.
16
Appellants assert that § 818 goes much farther than these prohibitions. According to appellants, the statute's prohibitions are not tied tightly enough to partisan political conduct and impermissibly relegate employees to expressing their political views 'privately.' The State Personnel Board, however, has construed § 818's explicit approval of 'private' political expression to include include virtually any expression not within the context of active partisan political campaigning,15 and the State's Attorney General, in plain terms, has interpreted § 818 as prohibiting 'clearly partisan political activity' only.16 Surely a court cannot be expected to ignore these authoritative pronouncements in determining the breadth of a statute. Law Students Research Council v. Wadmond, 401 U.S. 154, 162—163, 91 S.Ct. 720, 726—727, 27 L.Ed.2d 749 (1971). Appellants further point to the Board's interpretive rules purporting to restrict such allegedly protected activities as the wearing of political buttons or the use of bumper stickers. It may be that such restrictions are impermissible and that § 818 may be susceptible of some other improper applications. But, as presently construed, we do not believe that § 818 must be discarded in toto because some persons' arguably protected conduct may or may not be caught or chilled by the statute. Section 818 is not substantially overbroad and it not, therefore, unconstitutional on its face.
17
The judgment of the District Court is affirmed.
18
It is so ordered.
19
Affirmed.
20
Mr. Justice DOUGLAS, dissenting.
21
This case in my view should be governed by some of the considerations I set forth in my dissent in the Letter Carriers case, 413 U.S. 548, p. 595, 93 S.Ct. 2880, p. 2905, 37 L.Ed.2d 796.
22
Section 818, par. 7, of the Oklahoma Act states:
23
'No employee in the classified service shall be a member of any national, state or local committee of a political party, or an officer or member of a committee of a partisan political club, or a candidate for nomination or election to any paid public office, or shall take part in the management or affairs of any political party or in any political campaign, except to exercise his right as a citizen privately to express his opinion and to cast his vote.' (Emphasis supplied.)
24
If this were a regulation of business or commercial matters the Court's citation of Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, would be apt. Connally was a case involving a state law making it a crime for contractors with the State to pay their workmen less than the 'current rate of per diem wages in the locality where the work is performed.' The Court held the Act too vague to pass muster as a penal measure. I would concede that by the Connally test § 818, par. 7, would not fall. For the provision in question bars an employee from taking 'part in the management or affairs of any political party or in any political campaign, except to exercise his right as a citizen privately to express his opinion and to cast his vote.'
25
But the problem here concerns not commerce but the First Amendment. The First Amendment goes further than protecting a person for 'privately' expressing his opinion. Public as well as private discourse is included; and the emphasis in § 818, par. 7, that private expression of views is tolerated emphasizes that public expression is not tolerated.
26
I do not see how government can deprive its employees of the right to speak, write, assemble, or petition once the office is closed and the employee is home on his own. Public discussion of local, state, national, and international affairs is grist for the First Amendment mill. Our decisions emphasize that free debate, uninhibited discussion, robust and wide-open controversy, a multitude of tongues, the pressure of ideas clear across the spectrum set the pattern of First Amendment freedoms. We emphasized in New York Times Co. v. Sullivan, 376 U.S. 254, 272, 84 S.Ct. 710, 722, 11 L.Ed.2d 686, that neither injury 'to official reputation' nor 'factual error' justified repression of speech, that the demands of free speech lowered the barriers to libel actions for charges of official misconduct or improprieties.
27
First Amendment rights are indeed fundamental, for 'we the people' are the sovereigns, not those who sit in the seats of the mighty. It is the voice of the people who ultimately have the say; once we fence off a group, and bar them from public dialogue, the public interest is the loser. Those who are tied into the federal regime either by direct employment or by state projects federally financed now amount to about five and a half million. The number included, if all state employees are added, is estimated* at over 13 million.
28
These people are scrubwomen, janitors, typists, file clerks, chauffeurs, messengers, nurses, orderlies, policemen and policewomen, night watchmen, telephone and elevator operators, as well as those doing some kind of administrative, executive, or judicial work. There are activities that do not touch on First Amendment rights which can be banned. There are illegal election procedures such as wiretapping, burglary, and mailing politically salacious letters that are beyond the pale. The First Amendment, however, concerns a variety of activities that are deep in our tradition: forming ad hoc committees to lobby measures through a council or other legislative body; organizing protective associations to protect takes, rivers, islands of wilderness, or a neighborhood; preparing and circulating petitions for signatures in support of legislative reforms; making protest marches or picketing the statehouse for a public cause—these as well as debate, passing out campaign literature, watching at the polls, making radio and TV appearances, addressing rallies in parks or auditoriums, are all part of the intense process of mobilizing 'we the people' for or against specific measures, shaping public opinion, getting X rather than Y elected, and so on.
29
A bureaucracy that is alert, vigilant, and alive is more efficient than one that is quiet and submissive. It is the First Amendment that makes it alert, vigilant, and alive. It is suppression of First Amendment rights that creates faceless, nameless bureaucrats who are inert in their localities and submissive to some master's voice. High values ride on today's decision in this case and in Letter Carriers. I would not allow the bureaucracy in the State or Federal government to be deprived of First Amendment rights. Their exercise certainly is as important in the public sector as it is in the private sector. Those who work for Government have no watered-down constitutional rights. So far as the First Amendment goes, I would keep them on the same plane as all other people.
30
I would reverse the judgment below.
31
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join, dissenting.
32
Whatever one's view of the desirability or constitutionality of legislative efforts to restrict the political activities of government employees, one must regard today's decision upholding § 818 of the Oklahoma Merit System of Personnel Administration Act1 as a wholly unjus tified retreat from fundamental and previously well-established First and Fourteenth Amendment principles. For the purposes of this decision, the Court assumes—perhaps even concedes—that the statute at issue here sweeps too broadly, barring speech and conduct that are constitutionally protected even under the standards announced in United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947), and reiterated today in United States Civil Service Commission v. National Association of Letter Carriers, AFL—CIO, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796. Nevertheless, the Court rejects appellants' contention that the statute is unconstitutional on its face, reasoning that 'where conduct and not merely speech is involved, . . . the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. It is our view that § 818 is not substantially overbroad and that whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.' Ante, at 615—616. That conclusion finds no support in previous decisions of this Court, and it effectively overrules our decision just two Terms ago in Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). I remain convinced that Coates was correctly decided, and I must therefore respectfully dissent.
33
As employees of the Corporation Commission of the State of Oklahoma, a state agency, appellants are subject to the provisions of the State's Merit Act. That Act designates certain state agencies, including the Corporation Commission, which are barred from dismissing or suspending classified employees for political reasons. At the same time, the Act authorizes the State Personnel Board to dismiss or suspend any classified employee who engages in certain prohibited political activity. Although specifically protecting an employee's right 'as a citizen privately to express his opinion and to cast his vote,' the Act bars (1) fund raising for any political purpose; (2) membership in any national, state, or local committee of a political party or a political club; (3) candidacy for any public office; and (4) participation 'in the management or affairs of any political party or in any political campaign.'
34
As a result of appellants' alleged participation in the 1970 re-election campaign of Corporation Commissioner Ray C. Jones, the State Personnel Board formally charged appellants with violations of the Act. Appellants then brought this action under 42 U.S.C. § 1983 before a three-judge Federal District Court in the Western District of Oklahoma, seeking an injunction against enforcement of the Act. The District Court rejected appellants' contentions that the Act is unconstitutionally vague and overbroad, and the Court today affirms that determination.
35
Appellants' claims are, of course, similar to the vagueness and overbreadth contentions rejected by the Court today in upholding § 9(a) of the Hatch Act, 5 U.S.C. § 7324(a)(2). See Letter Carriers, supra. But that decision, whether or not correct, is by no means controlling on the questions now before us. Certain fundamental differences between the Hatch Act and the Oklahoma Merit Act should, at the outset, be made clear.
36
Section 9(a) of the Hatch Act provides that a Federal Government employee may not '(1) use his official authority or influence for the purpose of interfering with or affecting the result of an election; or (2) take an active part in political management or in political campaigns.' Although recognizing that the meaning of the Act's critical phrase, 'an active part in political management or in political campaigns,' is hardly free from ambiguity, the Court concluded that the terms could be defined by reference to a complex network of Civil Service Commission regulations developed over many years and comprehensively restated in 1970. See 5 CFR § 733. Those regulations make clear that among the rights retained by a federal employee, notwithstanding the arguably contrary language of the statute, are the rights to '(e)xpress his opinion as an individual privately and publicly on political subjects and candidates'; to '(d)isplay a political picture, sticker, badge, or button'; to '(b)e a member of a political party or other political organization . . .'; and to '(m)ake a financial contribution to a political party or organization.' 5 CFR § 733.111.
37
By contrast, the critical phrase of the Oklahoma Act—no employee shall 'take part in the management or affairs of any political party or in any political campaign'—is left almost wholly undefined. While the Act does specifically declare that employees have the right to express their views 'privately,' it nowhere defines the terms 'take part' or 'management' or 'affairs.' The reservation of the right to express one's views in private could, moreover, be thought to mean that any public expression of views is forbidden. Of course, the Oklahoma Act can, like its federal counterpart, be viewed in conjunction with the applicable administrative regulations. But in marked contrast with the elaborate set of regulations purporting to define the prohibitions of the Hatch Act, the pertinent regulations of the State Personnel Board are a scant five rules that shed no light at all on the intended reach of the statute. Two of those rules merely recite the language of the Act.2 A third offers no more specific guidance than the general exhortation that a classified employee shall 'pursue the common good, and, not only be impartial, but so act as neither to endanger his impartiality nor to give occasion for distruct of his impartiality.'3 A fourth provides that a classified employee must resign his position 'prior to filing as a candidate for public office, seeking or accepting nomination for election or appointment as an official of a political party'—again, merely tracking the language of the Act.4 The fifth, Rule 1641, far from clarifying or limiting the scope of the Act, provides the major thrust to appellants' overbreadth contention. The rule declares that '(a)n employee in the classified service may not wear a political badge, button, or similar partisan emblem, nor may such employee display a partisan political sticker or sign on an automobile operated by him or under his control.'5 Even the Court concedes that a ban on the wearing of buttons or the display of bumper stickers may be 'impermissible.' Ante, at 618.
38
It is possible, of course, that the inherent ambiguity of the Oklahoma statute might be cured by judicial construction of its terms. But the Oklahoma Supreme Court has never attempted to construe the Act or narrow its apparent reach. Plainly, this Court cannot undertake that task. Gooding v. Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); United States v. Thirty-Seven Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 1404, 28 L.Ed.2d 822 (1971).6 I must assume, therefore, that the Act, subject to whatever gloss is provided by the administrative regulations,7 is capable of applications that would prohibit speech and conduct clearly protected by the First Amendment. Even on the assumption that the statute's regulatory aim is permissible, the manner in which state power is exercised is one that unduly infringes protected freedoms. Shelton v. Tucker, 364 U.S. 479, 489, 81 S.Ct. 247, 250, 5 L.Ed.2d 231 (1960); Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). The State has failed, in other words, to provide the necessary 'sensitive tools' to carry out the 'separation of legitimate from illegitimate speech.' Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958). See NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963).
39
Although the Court does not expressly hold that the statute is vague and overbroad, it does assume not only that the ban on the wearing of badges and buttons may be 'impermissible,' but also that the Act 'may be susceptible of some other improper applications.' Ante, at 618. Under principles that I had thought were established beyond dispute, that assumption requires a finding that the statute is unconstitutional on its face. Ordinarily, 'one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.' United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960).8 And appellants apparently concede that the State could prohibit the conduct with which they were charged without infringing the guarantees of the First Amendment. Nevertheless, we have repeatedly recognized that 'the transcendent value to all society of constitutionally protected expression is deemed to justify allowing 'attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity." Gooding v. Wilson, supra, 405 U.S. at 521, 92 S.Ct., at 1005, quoting from Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22 (1965).9 We have adhered to that view because the guarantees of the First Amendment are 'delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions. Cf. Smith v. California, (361 U.S. 147, 151—154, 80 S.Ct. 215, 217—219, 4 L.Ed.2d 205 (1959)).' NAACP v. Button, supra, 371 U.S., at 433, 83 S.Ct., at 338. The mere existence of a statute that sweeps too broadly in areas protected by the First Amendment 'results in a continuous and pervasive restraint on all freedom of discussion that might reasonably be regarded as within its purview. . . . Where regulations of the liberty of free discussion are concerned, there are special reasons for observing the rule that it is the statute, and not the accusation or the evidence under it, which prescribes the limits of permissible conduct and warns against transgression.' Thornhill v. Alabama, 310 U.S. 88, 98, 60 S.Ct. 736, 742, 84 L.Ed. 1093 (1940). See Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 853—854 (1970).
40
Although the Court declines to hold the Oklahoma Act unconstitutional on its face, it does expressly recognize that overbreadth review is a necessary means of preventing a 'chilling effect' on protected expression. Nevertheless, the Court reasons that the function of the doctrine 'attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from 'pure speech' toward conduct and that conduct—even if expressive—falls within the scope of otherwise valid criminal laws the reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct.' Ante, at 615. Where conduct is involved, a statute's overbreadth must henceforth be 'substantial' before the statute can properly be found invalid on its face.
41
I cannot accept the validity of that analysis. In the first place, the Court makes no effort to define what it means by 'substantial overbreadth.' We have never held that a statute should be held invalid on its face merely because it is possible to conceive of a single impermissible application, and in that sense a requirement of substantial overbreadth is already implicit in the doctrine. Cf. Note, The First Amendment Overbreadth Doctrine, supra, at 858—860, 918. Whether the Court means to require some different or greater showing of substantiality is left obscure by today's opinion, in large part because the Court makes no effort to explain why the overbreadth of the Oklahoma Act, White real, is somehow not quite substantial. No more guidance is provided than the Court's conclusory assertion that appellants' showing here falls below the line.
42
More fundamentally, the Court offers no rationale to explain its conclusion that, for purposes of overbreadth analysis, deterrence of conduct should be viewed differently from deterrence of speech, even where both are equally protected by the First Amendment. Indeed, in the case before us it is hard to know whether the protected activity falling within the Act should be considered speech or conduct. In any case, the conclusion that a distinction should be drawn was the premise of Mr. Justice White's dissenting opinion in Coates v. City of Cincinnati, 402 U.S. 611, 620—621, 91 S.Ct. 1686, 1691, 29 L.Ed.2d 214 (1971), and that conclusion—although squarely rejected in Coates—has now been adopted by the Court.
43
At issue in Coates was a city ordinance making it an offense for 'three or more persons to assemble . . . on any of the sidewalks . . . and there conduct themselves in a manner annoying to persons passing by . . ..' Id., at 611, 91 S.Ct., at 1687. There can be no doubt that the ordinance was held unconstitutional on its face, and not merely unconstitutional as applied to particular, protected conduct. For the Court expressly noted that the ordinance was 'aimed directly at activity protected by the Constitution. We need not lament that we do not have before us the details of the conduct found to be annoying. It is the ordinance on its face that sets the standard of conduct and warns against transgression. The details of the offense could no more serve to validate this ordinance than could the details of an offense charged under an ordinance suspending unconditionally the right of assembly and free speech.' Id., at 616, 91 S.Ct., at 1689. In dissent, Mr. Justice White maintained that since the ordinance prohibited persons from 'assembling and 'conduct(ing)' themselves in a manner annoying to other persons,' he would 'deal with the Cincinnati ordinance as we would with the ordinary criminal statute. The ordinance clearly reaches certain conduct but may be illegally vague with respect to other conduct. The statute is not infirm on its face and since we have no information from this record as to what conduct was charged against these defendants, we are in no position to judge the statute as applied. That the ordinance may confer wide discretion in a wide range of circumstances is irrelevant when we may be dealing with conduct at its core.' Id., at 620—621, 91 S.Ct., at 1691. Thus, Coates stood, until today, for the proposition that where a statute is 'unconstitutionally broad because it authorizes the punishment of constitutionally protected conduct,' Id., at 614, 91 S.Ct., at 1688, it must be held invalid on its face whether or not the person raising the challenge could have been prosecuted under a properly narrowed statute.10 The Court makes no attempt to distinguish Coates, implicitly conceding that the decision has been overruled.
44
At this stage, it is obviously difficult to estimate the probable impact of today's decision. If the requirement of 'substantial' overbreadth is construed to mean only that facial review is inappropriate where the likelihood of an impermissible application of the statute is too small to generate a 'chilling effect' on protected speech or conduct, then the impact is likely to be small. On the other hand, if today's decision necessitates the drawing of artificial distinctions between protected speech and protected conduct, and if the 'chill' on protected conduct is rarely, if ever, found sufficient to require the facial invalidation of an overbroad statute, then the effect could be very grave indeed. In my view, the principles set forth in Coates v. City of Cincinnati, are essential to the preservation and enforcement of the First Amendment guarantees. Since no subsequent development has persuaded me that the principles are ill-founded or that Coates was incorrectly decided, I would reverse the judgment of the District Court on the strength of that decision and hold § 818 the Oklahoma Merit Act unconstitutional in its face.
1
The section reads as follows:
'(1) No person in the classified service shall be appointed to, or demoted or dismissed from any position in the classified service, or in any way favored or discriminated against with respect to employment in the classified service because of his political or religious opinions or affiliations, or because of race, creed, color or national origin or by reason of any physical handicap so long as the physical handicap does not prevent or render the employee less able to do the work for which he is employed.
'(2) No person shall use or promise to use, directly or indirectly, any official authority or influence, whether possessed or anticipated, to secure or attempt to secure for any person an appointment or advantage in appointment to a position in the classified service, or an increase in pay or other advantage in employment in any such position, for the purpose of influencing the vote or political action of any person, or for consideration; provided, however, that letters of inquiry, recommendation and reference by public employees of public officials shall not be considered official authority or influence unless such letter contains a threat, intimidation, irrelevant, derogatory or false information.
'(3) No person shall make any false statement, certificate, mark, rating, or report with regard to any test, certification or appointment made under any provision of this Act or in any manner commit any fraud preventing the impartial execution of this Act and rules made hereunder.
'(4) No employee of the department, examiner, or other person shall defeat, deceive, or obstruct any person in his or her right to examination, eligibility, certification, or appointment under this law, or furnish to any person any special or secret information for the purpose of effecting (sic) the rights or prospects of any person with respect to employment in the classified service.
'(5) No person shall, directly or indirectly, give, render, pay, offer, solicit, or accept any money, service, or other valuable consideration for or on account of any appointment, proposed appointment, promotion, or proposed promotion to, or any advantage in, a position in the classified service.
'(6) No employee in the classified service, and no member of the Personnel Board shall, directly or indirectly, solicit, receive, or in
any manner be concerned in soliciting or receiving any assessment, subscription or contribution for any political organization, candidacy or other political purpose; and no state officer or state employee in the unclassified service shall solicit or receive any such assessment, subscription or contribution from an employee in the classified service.
'(7) No employee in the classified service shall be a member of any national, state or local committee of a political party, or an officer or member of a committee of a partisan political club, or a candidate for nomination or election to any paid public office, or shall take part in the management or affairs of any political party or in any political campaign, except to exercise his right as a citizen privately to express his opinion and to cast his vote.
'(8) Upon a showing of substantial evidence by the Personnel Director that any officer or employee in the state classified service, has knowingly violate any of the provisions of this Section, the State Personnel Board shall notify the officer or employee so charged and the appointing authority under whose jurisdiction the officer or employee serves. If the officer or employee so desires, the State Personnel Board shall hold a public hearing, or shall authorize the Personnel Director to hold a public hearing, and submit a transcript thereof, together with a recommendation, to the State Personnel Board. Relevant witnesses shall be allowed to be present and testify at such hearings. If the officer or employee shall be found guilty by the State Personnel Board of the violation of any provision of this Section, the Board shall direct the appointing authority to dismiss such officer or employee; and the appointing authority so directed shall comply.' Okla.Stat.Ann., Tit. 74, § 818 (1965) (paragraph enumeration added).
2
See Ala.Code, Tit. 55, § 317 (1958); Alaska Stat. § 39.25.160 (1962); Ariz. Rev.Stat.Ann. § 16—1301 (1956), Merit System Regulations and Merit System Board Procedures § 1511 (1966); Ark.Stat.Ann. § 83—119 (1947); Cal.Govt.Code §§ 19730 19735 (1963 and Supp.1973), Colo.Rev.Stat.Ann. § 26—5—31 (1963), Civil Service Comm'n Rules and Regulations, Art. XIV, § 1; Conn.Gen.Stat.Rev. § 5—266 (Supp.1969), Regulations of the Civil Service Comm'n Concerning Employees in the State Classified Service § 14—13; Del.
Code Ann., Tit. 31, § 110 (1953); Fla.Stat.Ann. § 110.092 (1973); Ga. Merit System of Personnel Administration, Rules and Regulations, Rule 3, 3.101—3.106; Hawaii Rev.Stat. §§ 76—1, 76—91 (1968); Idaho Code § 67—5311 (1973); Ill.Rev.Stat., c. 24 1/2, § 38t (1971); Ind.Ann.Stat. § 60—1341 (1962), I.C.1971, 4—15—2—40; Iowa Code Ann. § 19A.18 (Supp.1973); Kan.Stat.Ann. § 75—2953 (1969); Ky.Rev.Stat.Ann. § 18.310 (1971); La.Const.Art. 14, § 15(N) (1955); Me.Rev.Stat.Ann., Tit. 5, § 679 (1964); Md. Merit System Rules for Grant-in-Aid Agencies § 602.2; Mass.Gen.Laws Ann., c. 55 §§ 1—15, c. 56 §§ 35—36 (1958 and Supp.1973); Mich.Rules of Civil Service Comm'n § 7 (1965); Minn.Stat.Ann. § 43.28 (1970); Miss. Merit System Rules, Dept. of Public Welfare, Art. XVI (1965); Mo.Ann.Stat. § 36.150 (1969); Mont.Rev.Codes Ann. §§ 94—1439, 94—1440, 94—1447, 94—1476 (1947); Neb.Rev.Stat. § 81 1315 (1971), Neb. Joint Merit System Regulations for a Merit System, Art. XVI (1963); Nev.Rules for State Personnel Administration, Rules XVI, XIII (1963); N.H.Rev.Stat.Ann. §§ 98:18, 98:19 (1964); N.J.Stat.Ann. § 11:17—2 (1960); N.M.Stat.Ann. § 5—4—42 (1953 and Supp.1971); N.Y.Civ.Serv.Law, McKinney's Consol.Laws, c. 7, § 107 (1973); N.C.Gen.Stat. §§ 126—13 to 126—15 (Supp.1971); Rules and Regulations of N.D. Merit Systems, Art. XVI; Ohio Rev.Code Ann. §§ 143.41, 143.44, 143.45, 143.46 (1969); Ore.Rev.Stat. § 260.432 (1971); Pa.Stat.Ann., Tit. 71, § 741.904 (Supp.1973—1974); R.I.Gen.Laws Ann. §§ 36—4—51 to 36—4—53 (1969); S.C. Merit System Rules and Regulations, Civil Defense Council, Art. XIV, § 1; S.D. Merit System Regulations, Art. XVI, § 1 (1963); Tenn.Code Ann. § 8-3121 (Supp.1971), Tenn.Rules and Regulations for Administering the Civil Service Act § 2.3 (1963); Tex.Penal Code, Arts. 195—197 (1952); Utah Code Ann. § 67—13—13 (1968); Vt.Rules and Regulations for Personnel Administration § 3.02; Va.Supp. to Rules for the Administration of the Va.Personnel Act, Rule 15.14(A); Wash.Rev.Code Ann. § 41—06—250 (1969); W.Va.Code Ann. § 29—6—19 (1971); Wis.Stat.Ann. § 16.30 (1972); Wyo.Rev.Rules and Regulations, Rule XIII (1960). (For compilation of state rules and regulations, see 2 Commission on Political Activity of Government Personnel, Research 122 et seq. (1967).)
3
5 U.S.C. § 7324(a). See generally United States Civil Service Commission v. National Association of Letter Carriers, AFL CIO, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796.
4
Brief for Appellants 22.
5
Appellants also claim that § 818 violates the Equal Protection Clause of the Fourteenth Amendment by singling out classified service employees for restrictions on partisan political expression while leaving unclassified personnel free from such restrictions. The contention is somewhat odd in the context of appellants' principal claim, which is that § 818 reaches too far rather than not far enough. In any event, the legislature must have some leeway in determining which of its employment positions require restrictions on partisan political activities and which may be left unregulated. See McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). And a State can hardly be faulted for attempting to limit the positions upon which such restrictions are placed.
6
Only the sixth and seventh paragraphs of § 818 are at issue in this lawsuit. Hereinafter, references to § 818 should be understood to be limited to those paragraphs, unless we indicate to the contrary.
7
It is significant in this respect to note that § 818 does not create a 'regulatory maze' where those uncertain may become hopelessly lost. See Keyishian v. Board of Regents, 385 U.S. 589, 604, 87 S.Ct. 675, 684, 17 L.Ed.2d 629 (1967). Rather, the State Personnel Board is available to rule in advance on the permissibility of particular conduct under the explicit standards set out in and under § 818. See Tr. of Rec. 237. See United States Civil Service Commission v. National Association of Letter Carriers, AFL—CIO, ante, 413 U.S., at 580, 93 S.Ct., at 2897—2898.
8
Tr. of Oral Arg. 48—49.
9
The District Court initially requested the parties to brief the question whether appellants were required to complete the Board's proceedings prior to bringing their action under 42 U.S.C. § 1983. The Board, however, on appellants' application, ordered its proceedings stayed pending adjudication of the federal constitutional questions in the District Court. When advised of the Board's decision, and in the absence of any objections from appellees, the District Court proceeded. On this record, we need not consider whether appellants would have been required to proceed to hearing before the Board prior to pursuing their § 1983 action. Cf. Gibson v. Berryhill, 411 U.S. 564, 574—575, 93 S.Ct. 1689, 1695, 36 L.Ed.2d 488 (1973); H. Hart and H. Wechsler, The Federal Courts and The Federal System, 983—985 (2d ed. 1973).
10
The State Personnel Board has so interpreted § 818. See Merit System of Personnel Administration Rules § 1641; the Board's official circular, Tr. of Rec. 237.
11
Tr. of Oral Arg. 48-49.
12
See generally Hart & Wechsler, supra, at 184—214; Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale L.J. 599 (1962); Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844 (1970).
13
In both Edwards and Cox, at the very end of the discussions, the Court also noted that the statutes would be facially unconstitutional for overbreadth. See 372 U.S. 229, 238, 83 S.Ct. 680, 685; 379 U.S. 536, 551—552, 85 S.Ct. 453, 462—463. In Cox, the Court termed this discussion an 'additional reason' for its reversal. 379 U.S., at 551, 85 S.Ct., at 463. These 'additional' holdings were unnecessary to the dispositions of the cases, so much so that only one Member of this Court relied on Cox's 'additional' holding in Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966), which involved convictions under the very same breach-of-the-peace statute. See id., at 143—150, 86 S.Ct., at 724—728 (Brennan, J., concurring in judgment).
14
My Brother BRENNAN asserts that in some sense a requirement of substantial overbreadth is already implicit in the doctrine. Post, at 630. This is a welcome observation. It perhaps reduces our differences to our differing views of whether the Oklahoma statute is substantially overbroad. The dissent also insists that Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971), must be taken as overruled. But we are unpersuaded that Coates stands as a barrier to a rule that would invalidate statutes for overbreadth only when the flaw is a substantial concern in the context of the statute as a whole. Our judgment is that the Oklahoma statute, when authoritative administrative constructions are accepted, is not invalid under such a rule.
15
The Board's interpretive circular states (Tr. of Rec. 237):
'The right to express political opinions is reserved to all such persons. Note: This reservation is subject to the prohibition that such persons may not take active part in political management or in political campaigns.'
16
Op.Atty.Gen.Okl., No. 68—356, p. 4 (1968). The District Court similarly interpreted § 818 as intending to permit public expressions of political opinion 'so long as the employee does not channel his activity towards party success.' 338 F.Supp. 711, 716. Although the Court's interpretation is obviously not binding on state authorities, see United States v. Thirty-Seven Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 1404, 28 L.Ed.2d 822 (1971), a federal court must determine what a state statute means before it can judge its facial constitutionality.
*
Statistical Abstract of the United States, 1972, pp. 403, 431.
1
Okla.Stat.Ann., Tit. 74, § 818, provides in pertinent part:
'No employee in the classified service, and no member of the Personnel Board shall, directly or indirectly, solicit, receive, or in any manner be concerned in soliciting or receiving any assessment, subscription or contribution for any political organization, candidacy or other political purpose; and no state officer or state employee in the unclassified service shall solicit or receive any such assessment, subscription or contribution from an employee in the classified service.
'No employee in the classified service shall be a member of any national, state or local committee of a political party, or an officer or member of a committee of a partisan political club, or a candidate for nomination or election to any paid public office, or shall take part in the management or affairs of any political party or in any political campaign, except to exercise his right as a citizen privately to express his opinion and to cast his vote.'
2
Oklahoma Merit System of Personnel Administration Rule 1630 (1971) provides:
'No employee in the classified service, and no member of the Personnel Board shall, directly or indirectly, solicit, receive, or in any manner be concerned in soliciting or receiving any assessment, subscription or contribution for any political organization, candidacy or other political purpose; and no state officer or state employee in the unclassified service shall solicit or receive any such assessment, subscription or contribution from an employee in the classified service.'
Rule 1640 provides:
'No employee in the classified service shall be a member of any national, state or local committee of a political party, or an officer or member of a committee of a partisan political club or a candidate for nomination or election to any paid public office, or shall take part in the management or affairs of any political party or in any political campaign, except to exercise his right as a citizen privately to express his opinion and to cast his vote.'
Compare n. 1, supra.
3
Rule 1625 provides:
'Every classified employee shall fulfill to the best of his ability the duties of the office of (sic) position conferred upon him and shall prove himself in his behavior, inside and outside, the worth of the esteem which his office or position requires. In his official activities the classified employee shall pursue the common good, and, not only be impartial, but so act as neither to endanger his impartiality nor to give occasion for distrust of his impartiality.
'A classified employee shall not engage in any employment, activity or enterprise which has been determined to be inconsistent, incompatible, or in conflict with his duties as a classified employee or with the duties, functions or responsibilities oof the Appointing Authority by which he is employed.
'Each Appointing Authority shall determine and prescribe those activities which, for employees under its jurisdiction, will be considered inconsistent, incompatible or in conflict with their duties as classified employees. In making this determination the Appointing Authority shall give consideration to employment, activity or enterprise which: (a) involves the use for private gain or advantage of state time, facilities, equipment and supplies; or, the badge, uniform, prestige or influence of one's state office of employment, or (b) involves receipt or acceptance by the classified employee of any money or other consideration from anyone, other than the State, for the performance of an act which the classified employee would be required or expected to render in the regular course or hours of his state employment or as a part of his duties as a state classified employee, or (c) involves the performance of an act in other than his capacity as a state classified employee which act may later be subject directly or indirectly to the control, inspection, review, audit or enforcement by such classified employee or the agency by which he is employed.
'Each classified employee shall during his hours of duty and subject to such other laws, rules and regulations as pertain thereto, devote his full time, attention and efforts to his office or employment.'
4
Rule 1209.2 provides:
'Any classified employee shall resign his position prior to filing as a candidate for public office, seeking or accepting nomination for election or appointment as an official of a political party, partisan political club or organization or serving as a member of a committee of any such group or organization.'
5
Rule 1641 also provides:
'Continued use or display of such political material shall be deemed willful intent to violate the provisions of 74 O.S.1961, § 818 relating to prohibited political activities of classified State employees and shall subject such employee to dismissal pursuant to said statute.'
6
See also Niemotko v. Maryland, 340 U.S. 268, 285, 71 S.Ct. 325, 334, 95 L.Ed. 267 (1951) (Frankfurter, J., concurring in the result in the related case of Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 334, 95 L.Ed. 280 (1951)): 'It is not for this Court to formulate with particularity the terms of a permit system which would satisfy the Fourteenth Amendment.'
7
In addition to the regulations promulgated by the State Personnel Board, the Court places some reliance on an interpretive circular issued by the Board and on certain opinions issued by the State Attorney General. Even assuming that these constructions should properly be considered in gauging the reach of the Act, they offer little real guidance to the meaning of the terms. The circular, for example, states that 'The right to express political opinions is reserved to all such persons. Note: This reservation is subject to the prohibition that such persons may not take active part in political management or in political campaigns.' See ante, at 617 n. 15. The second half of that statement merely restates the provision of the Act. The first half can hardly be said to convey any fixed meaning. In fact, given the statement in the Act that the right to make a private expression of political views is protected, an employee might reasonably interpret the circular to mean that 'The right to express political opinions is reserved to all such persons, provided that such expression is not made in public.' Similarly, the Court makes reference to an Opinion of the Attorney General holding, 'in plain terms,' ante, at 617, that the Act applies only to 'clearly partisan political activity.' I am at a loss to see how these statements offer any clarification of the provisions of the Act.
8
Raines concerned a prosecution under § 131 of the Civil Rights Act of 1957, charging that the defendants, in their capacity as state officials had, discriminated against blacks who desired to register to vote. The defendants' conduct plainly fell within the permissible reach of the statute. But more importantly, it was not even suggested that the statute might conceivably be used to punish the exercise of First Amendment rights. While stating the general rule that a defendant normally may not assert the constitutional rights of a person not a party, Raines did specifically recognize that the rule is suspended in cases where its application would 'itself have an inhibitory effect on freedom of speech.' 362 U.S. 17, 22, 80 S.Ct. 519, 523. Cf. United States v. National Dairy Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963); Yazoo & M.V.R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 33 S.Ct. 40, 57 L.Ed. 193 (1912).
9
See also Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951); Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964); Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949).
10
The Court has applied overbreadth review to many other statutes that assertedly had a 'chilling effect' on protected conduct, rather than on 'pure speech.' See, e.g., United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); Aptheker v. Secretary of State, supra; Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). In none of these cases, or others involving conduct rather than speech, did the Court suggest that a defendant would lack standing to raise the overbreadth claim if his conduct could be proscribed by a narrowly drawn statute.
| 23
|
413 U.S. 496
93 S.Ct. 2796
37 L.Ed.2d 757
Harry ROADEN, Petitioner,v.Commonwealth of KENTUCKY.
No. 71—1134.
Argued Nov. 14, 1972.
Decided June 25, 1973.
Syllabus
A county sheriff viewed a sexually explicit film at a local drive-in theater. At the conclusion of the showing, he arrested petitioner, the theater manager, for exhibiting an obscene film in violation of Kentucky law, and seized, without a warrant, one copy of the film for use as evidence. There was no prior judicial determination of obscenity. Petitioner's motion to suppress the film as evidence on the ground of illegal seizure was denied, and he was convicted. The Kentucky Court of Appeals affirmed, holding that the concededly obscene film was properly seized incident to a lawful arrest. Held: The seizure by the sheriff, without the authority of a constitutionally sufficient warrant, was unreasonable under Fourth and Fourteenth Amendment standards. The seizure is not unreasonable simply because it would have been easy to secure a warrant, but rather because prior restraint of the right of expression, whether by books or films, calls for a higher hurdle in the evaluation of reasonableness. Lee Art Theatre v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313; Marcus v. Search Warrants, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127. This case does not present an exigent circumstance in which police action must be 'now or never' to preserve the evidence of the crime, and where it may be reasonable to permit action without prior judicial approval. Pp. 501—506.
473 S.W.2d 814, reversed and remanded.
Phillip K. Wicker, Somerset, Ky., for petitioner.
Robert V. Bullock, Asst. Atty. Gen. of Ky., Frankfort, Ky., for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
The question presented in this case is whether the seizure of allegedly obscene material, contemporaneous with and as an incident to an arrest for the public exhibition of such material in a commercial theater, may be accomplished without a warrant.
2
On September 29, 1970, the sheriff of Pulaski County, Kentucky, accompanied by the district prosecutor, purchased tickets to a local drive-in theater. There the sheriff observed, in its entirety, a film called 'Cindy and Donna' and concluded that it was obscene and that its exhibition was in violation of a state statute. A substantial part of the film >>was also observed by a deputy sheriff from a vantage point on the road outside the theater. Since the petitioner conceded the obscenity of the film at trial, that issue is not before us for decision.1
3
The sheriff, at the conclusion of the film, proceeded to the projection booth, where he arrested petitioner, the manager of the theater, on the charge of exhibiting an obscene film to the public contrary to Ky.Rev.Stat. § 436.101 (1973).2 Concurrent with the arrest, the sheriff seized one copy of the film for use as evidence. It is uncontested: (a) that the sheriff had no warrant when he made the arrest and seizure, (b) that there had been no prior determination by a judicial officer on the question of obscenity, and (c) that the arrest was based solely on the sheriff's observing the exhibition of the film.
4
On September 30, 1970, the day following the arrest of petitioner and the seizure of the film, the Grand Jury of Pulaski County heard testimony concerning the scenes and content of the film and returned an indictment charging petitioner with exhibiting an obscene film in violation of Ky.Rev.Stat. § 436.101. On October 3, 1970, petitioner entered a plea of not guilty in the Pulaski Circuit Court, and the case was set for trial. On October 12, 1970, petitioner filed a motion to suppress the film as evidence and to dismiss the indictment. The motion was predicated upon the ground that the film was 'improperly, unlawfully and illegally seized, contrary to . . . the laws of the land.' Four days later, on October 16, 1970, the Pulaski Circuit Court heard argument at an adversary hearing on petitioner's motion. The motion was denied.
5
Petitioner's trial began on October 20, 1970. The arresting sheriff and one of his deputies were the only witnesses for the prosecution. The sheriff testified that the films displayed nudity and 'intimate love scenes.' The sheriff further testified that, upon viewing the film, he determined that it was obscene and that its exhibition violated state law. He therefore arrested petitioner. Together with the testimony of the sheriff, the film itself was introduced in evidence. Petitioner's motion to suppress the film was renewed, and again overruled. The sheriff's deputy took the stand and testified that he had viewed the final 30 minutes of the film from a vantage point on a public road outside the theater. Following this testimony, the jury was permitted to see the film.
6
Petitioner testified in his own behalf. He stated that, to his knowledge, no juveniles had been admitted to see the film, and that he had received no complaints about the film until it was seized by the sheriff. At the close of his testimony, the jury found petitioner guilty as charged. The jury rendered both a general verdict of guilty and a special verdict that the film was obscene, as provided by Ky.Rev.Stat. § 436.101(8).
7
On appeal, the Court of Appeals of Kentucky affirmed petitioner's conviction. The Court of Appeals first emphasized that '[i]t was conceded by [petitioner's] counsel in closing argument to the jury that the film is obscene. No issue is presented on appeal as to the obscenity of the material.' 473 S.W.2d 814, 815 (1971). The Court of Appeals then held that the film was properly seized incident to a lawful arrest, distinguishing the holdings of this Court in A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964), and Marcus v. Search Warrants, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961), on the ground that those decisions related to seizure of allegedly obscene materials 'for destruction or suppression, not to seizures incident to an arrest for possessing, selling, or exhibiting a specific item.' 473 S.W.2d, at 815. It also distinguished Lee Art Theatre v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968), on the grounds that film 'had been seized pursuant to a (defective) search warrant, not incident to an arrest.' 473 S.W.2d, at 816. The Court of Appeals relied on a decision of a federal three-judge court in Hosey v. City of Jackson, 309 F.Supp. 527 (Miss.1970), which concluded that:
8
'[S]eizure of an allegedly obscene film as an incident to lawful arrests for a crime committed in the presence of the arresting officers, i.e., the public showing of such film, does not exceed constitutional bounds in the absence of a prior judicial hearing on the question of its obscenity.' Id., at 533.
9
The Court of Appeals specifically declined to follow a decision by another federal three-judge court in Ledesma v. Perez, 304 F.Supp. 662 (La.1969), which held unconstitutional the seizure of allegedly obscene material incident to an arrest, but without a warrant or a prior adversary hearing.3
10
* The Fourth Amendment proscription against 'unreasonable . . . seizures,' applicable to the States through the Fourteenth Amendment, must not be read in a vacuum. A seizure reasonable as to one type of material in one setting may be unreasonable in a different setting or with respect to another kind of material. Cf. Coolidge v. New Hampshire, 403 U.S. 443, 471—472, 91 S.Ct. 2022, 2040—2041, 29 L.Ed.2d 564 (1971); id., at 509—510, 91 S.Ct., at 2059—2060 (Black, J., concurring and dissenting); Id., at 512—513, 91 S.Ct., at 2061 (White, J., concurring and dissenting). The question to be resolved is whether the seizure of the film without a warrant was unreasonable under Fourth Amendment standards and, if so, whether the film was therefore inadmissible at the trial. The seizure of instruments of a crime, such as a pistol or a knife, or 'contraband or stolen goods or objects dangerous in themselves,' id., at 472, 91 S.Ct., at 2041, are to be distinguished from quantities of books and movie films when a court appraises the reasonableness of the seizure under Fourth or Fourteenth Amendment standards.
11
Marcus v. Search Warrants, supra, held that a warrant for the seizure of allegedly obscene books could not be issued on the conclusory opinion of a police officer that the books sought to be seized were obscene. Such a warrant lacked the safeguards demanded 'to assure nonobscene material the constitutional protection to which it is entitled. . . . (T)he warrants issued on the strength of the conclusory assertions of a single police officer, without any scrutiny by the judge of any materials considered by the complainant to be obscene.' 367 U.S., at 731—732, 81 S.Ct., at 1716. There had been 'no step in the procedure before seizure designed to focus searchingly on the question of obscenity.' Id., at 732, 81 S.Ct., at 1716.
12
The sense of this holding was reaffirmed in A Quantity of Copies of Books v. Kansas, supra, where the Court found unconstitutional a 'massive seizure' of books from a commercial bookstore for the purpose of destroying the books as contraband. The result was premised on the lack of an adversary hearing prior to seizure, and the Court did not find it necessary to reach the claim that the seizure violated Fourth Amendment standards. 378 U.S., at 210 n. 2, 84 S.Ct., at 1725. However, the Court emphasized:
13
'It is no answer to say that obscene books are contraband, and that consequently the standards governing searches and seizures of allegedly obscene books should not differ from those applied with respect to narcotics, gambling paraphernalia and other contraband. We rejected that proposition in Marcus.' Id., at 211—212, 84 S.Ct., at 1726.
14
Lee Art Theatre v. Virginia, supra, was to the same effect with regard to seizure of a film from a commercial theater regularly open to the public. There a warrant for the seizure of the film was issued on the basis of a police officer's affidavit giving the titles of the film and asserting in conclusory fashion that he had personally viewed the films and considered them obscene. The films were seized pursuant to the warrant and introduced into evidence in a criminal case against the exhibitor. Conviction ensued. On review, the Court held that '(t)he admission of the films is evidence requires reversal of petitioner's conviction' because
15
'(t)he procedure under which the warrant issued solely upon the conclusory assertions of the police officer without any inquiry by the justice of the peace into the factual basis for the officer's conclusions was not a procedure 'designed to focus searchingly on the question of obscenity,' id., Marcus v. Search Warrants, supra, at 732, 81 S.Ct., at 1716, and therefore fell short of constitutional requirements demanding necessary sensitivity to freedom of expression.' 392 U.S., at 637, 88 S.Ct., at 2104.
16
No mention was made in the brief per curiam Lee Art Theatre opinion as to whether or not the seizure was incident to an arrest. The Court relied on Marcus and A Quantity of Books.
17
The common thread of Marcus, A Quantity of Books, and Lee Art Theatre is to be found in the nature of the materials seized and the setting in which they were taken. See Stanford v. Texas, 379 U.S. 476, 486, 85 S.Ct. 506, 512, 13 L.Ed.2d 431 (1965).4 In each case the material seized fell arguably within First Amendment protection, and the taking brought to an abrupt halt an orderly and presumptively legitimate distribution or exhibition. Seizing a film then being exhibited to the general public presents essentially the same restraint on expression as the seizure of all the books in a bookstore. Such precipitate action by a police officer, without the authority of a constitutionally sufficient warrant, is plainly a form of prior restraint and is, in those circumstances, unreasonable under Fourth Amendment standards. The seizure is unreasonable, not simply because it would have been easy to secure a warrant, but rather because prior restraint of the right of expression, whether by books or films, calls for a higher hurdle in the evaluation of reasonableness. The setting of the bookstore or the commercial theater, each presumptively under the protection of the First Amendment, invokes such Fourth Amendment warrant requirements because we examine what is 'unreasonable' in the light of the values of freedom of expression.5 As we stated in Stanford v. Texas, supra:
18
'In short, . . . the constitutional requirement that warrants must particularly describe the 'things to be seized' is to be accorded the most scrupulous exactitude when the 'things' are books, and the basis for their seizure is the ideas which they contain. See Marcus v. Search Warrants, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127; A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809. No less a standard could be faithful to First Amendment freedoms. The constitutional impossibility of leaving the protection of those freedoms to the whim of the officers charged with executing the warrant is dramatically underscored by what the officers saw fit to seize under the warrant in this case.' 379 U.S., at 485, 85 S.Ct., at 511 (footnotes omitted).
19
Moreover, ordinary human experience should teach that the seizure of a movie film from a commercial theater with regularly scheduled performances, where a film is being played and replayed to paid audiences, presents a very different situation from that in which contraband is changing hands or where a robbery or assault is being perpetrated. In the latter settings, the probable cause for an arrest might justify the seizure of weapons, or other evidence or instruments of crime, without a warrant. Cf. Chimel v. California, 395 U.S. 752, 764, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969); id., at 773—774, 89 S.Ct., at 2045—2046 (White, J., dissenting); Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964). Where there are exigent circumstances in which police action literally must be 'now or never' to preserve the evidence of the crime, it is reasonable to permit action withou prior judicial evaluation.6 See Chambers v. Maroney, 399 U.S. 42, 47—51, 90 S.Ct. 1975, 1979—1981, 26 L.Ed.2d 419 (1970). Cf. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The facts surrounding the 'massive seizures' of books in Marcus and A Quantity of Books, or the seizure of the film in Lee Art Theatre, presented no such 'now or never' circumstances.
II
20
The film seized in this case was being exhibited at a commercial theater showing regularly scheduled performances to the general public. The seizure proceeded solely on a police officer's conclusions that the film was obscene; there was no warrant. Nothing prior to seizure afforded a magistrate an opportunity to 'focus searchingly on the question of obscenity.' See Heller v. New York, supra, 413 U.S., at 488—489, 93 S.Ct., at 2792—2793; Marcus v. Search Warrants, 367 U.S., at 732, 81 S.Ct., at 1716.
21
If, as Marcus and Lee Art Theatre held, a warrant for seizing allegedly obscene material may not issue on the mere conclusory allegations of an officer, a fortiori, the officer may not make such a seizure with no warrant at all. 'The use by government of the power of search and seizure as an adjunct to a system for the suppression of objectionable publications is not new. . . . The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression.' Marcus v. Search Warrants, supra, 367 U.S., at 724, 729, 81 S.Ct., at 1712, 1715. In this case, as in Lee Art Theatre, the admission of the film in evidence requires reversal of petitioner's conviction. 392 U.S., at 637, 88 S.Ct., at 2104.
22
The judgment of the Court of Appeals of Kentucky is reversed and this case remanded for further proceedings not inconsistent with this opinion.
23
Reversed and remanded.
24
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join, concurring in the judgment.
25
We granted certiorari to consider the holding of the Court of Appeals of Kentucky that the Constitution does not require an adversary hearing on obscenity prior to the seizure of reels of film, where the seizure is incident to the arrest of the manager of a drive-in movie theater. 473 S.W.2d 814 (1971). The statute under which the prosecution was brought* is, in my view, unconstitutionally overbroad and therefore invalid on its face. See my dissent in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73, 93 S.Ct. 2628, 2642, 37 L.Ed.2d 446 (1973). I would therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings not inconsistent with my dissenting opinion in Slaton.
1
Petitioner's lawyer made the following statement to the trial jury during the closing arguments:
'I would be good enough to tell you at the outset that, in behfalf of Mr. Roaden, I am not going to get up here and defend the film observed yesterday nor the revolting scenes in it or try to argue or persuade you that those scene[s] were not obscene.' App. 37.
2
Kentucky Revised Statutes § 436.101 (1973) reads in relevant part as follows:
'Obscene matter, distribution, penalties, destruction.
'(1) As used in this section:
'(a) 'Distribute' means to transfer possession of, whether with or without consideration.
'(b) 'Matter' means any book, magazine, newspaper, or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation or any statue or
other figure, or any recording, transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines or materials.
'(c) 'Obscene' means that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters.
'(d) 'Person' means any individual, partnership, firm, association, corporation, or other legal entity.
'(2) Any person who, having knowledge of the obscenity thereof, sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is punishable by fine of not more than $1,000 plus five dollars ($5.00) for each additional unit of material coming within the provisions of this chapter, which is involved in the offense, not to exceed ten thousand dollars ($10,000), or by imprisonment in the county jail for not more than six (6) months plus one (1) day for each additional unit of material coming within the provisions of this chapter, and which is involved in the offense, such basic maximum and additional days not to exceed 360 days in the county jail, or by both such fine and imprisonment. If such person has previously been convicted of a violation of this subsection, he is punishable by fine of not more than $2,000 plus five dollars ($5.00) for each additional unit of material coming within the provisions of this chapter, which is involved in the offense, not to exceed $25,000, or by imprisonment in the county jail for not more than one (1) year, or by both such fine and such imprisonment. If a person has been twice convicted of a violation of this section, a violation of this subsection is punishable by imprisonment in the state penitentiary not exceeding five (5) years.
'(8) The jury, or the court, if a jury trial is waived, shall render a general verdict, and shall also render a special verdict as to whether the matter named in the charge is obscene.
The special verdict or findings on the issue of obscenity may be: 'We find the . . . (title or description of matter) to be obscene,' or, 'We find the . . . (title or description of matter) not to be obscene,' as they may find each item is or is not obscene.
'(9) Upon the conviction of the accused, the court may, when the conviction becomes final, order any matter or advertisement, in respect whereof the accused stands convicted, and which remains in the possession or under the control of the attorney general, commonwealth's attorney, county attorney, city attorney or their authorized assistants, or any law enforcement agency, to be destroyed, and the court may cause to be destroyed any such material in its possession or under its control.'
3
We vacated the judgment in Hosey v. City of Jackson, 309 F.Supp. 527 (SD Miss.1970), on the grounds of the Court's policy of noninterference in state prosecution; we did not reach the merits. Hosey v. City of Jackson, 401 U.S. 987, 91 S.Ct. 1221, 28 L.Ed.2d 525 (1971). We also vacated the judgment in Ledesma v. Perez, 304 F.Supp. 662 (ED La.1969), again on the grounds of noninterference with state criminal proceedings prior to adjudications by state courts. Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971).
4
In Stanford v. Texas, supra, we acknowledged the difference between books and weapons, narcotics, or cases of whiskey.
5
This does not mean an adversary proceeding is needed before seizure, since a warrant may be issued ex parte. Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745.
6
Counsel for Kentucky, together with counsel for New York in Heller v. New York, supra, 413 U.S., at 493, 93 S.Ct., at 2795, and counsel for California, as amicus curiae in Heller, have emphasized that allegedly obscene films are particularly difficult evidence to preserve unless kept in custody. We again take judicial notice that films may be compact, may be easy to destroy or to remove to another jurisdiction, and may be subject to pretrial alterations by cutting out secenes and resplicing reels. See ibid. But, as the Heller case demonstrates, where films are scheduled for exhibition in a commercial theater open to the public, procuring a warrant based on a prior judicial determination of probable cause of obscenity need not risk loss of the evidence.
*
Ky.Rev.Stat. § 436.101(2) provides in part that
'Any person who, having knowledge of the obscenity thereof, sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is punishable by fine of not more than $1,000 . . . or by imprisonment in the county jail for not more than six (6) months . . ..'
| 23
|
37 L.Ed.2d 910
93 S.Ct. 2851
413 U.S. 717
Application of Fre Le Poole GRIFFITHS for Admission to the Bar, Appellant.
No. 71—1336.
Argued Jan. 9, 1973.
Decided June 25, 1973.
Syllabus
Appellant, a resident alien, was denied permission to take the Connecticut bar examination solely because of a citizenship requirement imposed by a state court rule, which the state courts upheld against applicant's constitutional challenge. Held: Connecticut's exclusion of aliens from the practice of law violates the Equal Protection Clause of the Fourteenth Amendment. Classifications based on alienage, being inherently suspect, are subject to close judicial scrutiny, and here the State through appellee bar committee has not met its burden of showing the classification to have been necessary to vindicate the State's undoubted interest in maintaining high professional standards. Pp. 2855—2859.
162 Conn. 249, 294 A.2d 281, reversed and remanded.
R. David Broies, Fort Worth, Tex., for appellant.
George R. Tiernan, New Haven, Conn., for appellee.
Mr. Justice POWELL delivered the opinion of the Court.
1
This case presents a novel question as to the constraints imposed by the Equal Protection Clause of the Fourteenth Amendment on the qualifications which a State may require for admission to the bar. Appellant, Fre Le Poole Griffiths, is a citizen of the Netherlands who came to the United States in 1965, originally as a visitor. In 1967 she married a citizen of the United States and became a resident of Connecticut.1 After her graduation from law school, she applied in 1970 for permission to take the Connecticut bar examination. The County Bar Association found her qualified in all respects save that she was not a citizen of the United States as required by Rule 8(1) of the Connecticut Practice Book (1963)2 and on that account refused to allow her to take the examination. She then sought judicial relief, asserting that the regulation was unconstitutional but her claim was rejected, first by the Superior Court and ultimately by the Connecticut Supreme Court. 162 Conn. 249, 294 A.2d 281 (1972). We noted probable jurisdiction, 406 U.S. 966, 92 S.Ct. 2413, 32 L.Ed.2d 665 (1972), and now hold that the rule unconstitutionally discriminates against resident aliens.3
2
* We begin by sketching the background against which the State Bar Examining Committee attempts to justify the total exclusion of aliens from the practice of law. From its inception, our Nation welcomed and drew strength from the immigration of aliens. Their contributions to the social and economic life of the country were self-evident, especially during the periods when the demand for human resources greatly exceeded the native supply. This demand was by no means limited to the unskilled or the uneducated. In 1873, this Court noted that admission to the practice of law in the courts of a State
3
'in no sense depends on citizenship of the United States. It has not, as far as we know, ever been made in any State, or in any case, to depend on citizenship at all. Certainly many prominent and distinguished lawyers have been admitted to practice, both in the State and Federal courts, who were not citizens of the United States or of any State.' Bradwell v. State, 16 Wall. 130, 139, 21 L.Ed. 442.4
4
But shortly thereafter, in 1879, Connecticut established the predecessor to its present rule totally excluding aliens from the practice of law. 162 Conn., at 253, 294 A.2d, at 283. In subsequent decades, wide-ranging restrictions for the first time began to impair significantly the efforts of aliens to earn a livelihood in their chosen occupations.5
5
In the face of this trend, the Court nonetheless held in 1886 that a lawfully admitted resident alien is a 'person' within the meaning of the Fourteenth Amendment's directive that a State must not 'deny to any person within its jurisdiction the equal protection of the laws.' Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220. The decision in Yick Wo invalidated a municipal ordinance regulating the operation of laundries on the ground that the ordinance was discriminatorily enforced against Chinese operators. Some years later, the Court struck down an Arizona statute requiring employers of more than five persons to employ at least 80% 'qualified electors or native-born citizens of the United States or some subdivision thereof.' Truax v. Raich, 239 U.S. 33, 35, 36 S.Ct. 7, 8, 60 L.Ed. 131 (1915). As stated for the Court by Mr. Justice Hughes:
6
'It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the (Fourteenth) Amendment to secure. (Citations omitted.) If this could be refused solely upon the ground of race or nationality, the prohibition of the denial to any person of the equal protection of the laws would be a barren form of words.' Id., at 41, 36 S.Ct., at 10.
7
To be sure, the course of decisions protecting the employment rights of resident aliens has not been an unswerving one.6 In State of Ohio ex rel. Clarke v. Deckebach, 274 U.S. 392, 47 S.Ct. 630, 71 L.Ed. 1040 (1927), the Court was faced with a challenge to a city ordinance prohibiting the issuance to aliens of licenses to operate pool and billiard rooms. Characterizing the business as one having 'harmful and vicious tendencies,' the Court found no constitutional infirmity in the ordinance:
8
'It was competent for the city to make such a choice, not shown to be irrational, by excluding from the conduct of a dubious business an entire class rather than its objectionable members selected by more empirical methods.' Id., at 397, 47 S.Ct., at 632.
9
This easily expandable proposition supported discrimination against resident aliens in a wide range of occupations.7
10
But the doctrinal foundations of Clarke were undermined in Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948), where, in ruling unconstitutional a California statute barring issuance of fishing licenses to persons 'ineligible to citizenship,' the Court stated that 'the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits.' Id., at 420, 68 S.Ct., at 1143. Indeed, with the issue squarely before it in Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), the Court concluded:
11
'(C)lassifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny. Aliens as a class are a prime example of a 'discrete and insular' minority (see United States v. Carolene Products Co., 304 U.S. 144, 152—153, n. 4, 58 S.Ct. 778, 783—784, 82 L.Ed. 1234 (1938)) for whom such heightened judicial solicitude is appropriate.' Id., at 372, 91 S.Ct., at 1852. (Footnotes omitted.)
12
The Court has consistently emphasized that a State which adopts a suspect classification 'bears a heavy burden of justification,' McLaughlin v. Florida, 379 U.S. 184, 196, 85 S.Ct. 283, 290, 13 L.Ed.2d 222 (1964), a burden which, though variously formulated, requires the State to meet certain standards of proof. In order to justify the use of a suspect classification, a State must show that its purpose or interest is both constitutionally permissible8 and substantial,9 and that its use of the classification is 'necessary . . . to the accomplishment' of its purpose10 or the safeguarding of its interest.11
13
Resident aliens, like citizens, pay taxes, support the economy, serve in the Armed Forces, and contribute in myriad other ways to our society. It is appropriate that a State bear a heavy burden when it deprives them of employment opportunities.
II
14
We hold that the Committee, acting on behalf of the State, has not carried its burden. The State's ultimate interest here implicated is to assure the requisite qualifications of persons licensed to practice law.12 It is undisputed that a State has a constitutionally permissible and substantial interest in determining whether an applicant posesses "the character and general fitness requisite for an attorney and counselor-at-law." Law Students Research Council v. Wadmond, 401 U.S. 154, 159, 91 S.Ct. 720, 724, 27 L.Ed.2d 749 (1971). See also Konigsberg v. State Bar, 366 U.S. 36, 40—41, 81 S.Ct. 997, 1001, 6 L.Ed.2d 105 (1961); Schware v. Board of Bar Examiners, 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957).13 But no question is raised in this case as to appellant's character or general fitness. Rather, the sole basis for disqualification is her status as a resident alien.
15
The Committee defends Rule 8(1)'s requirement that applicants for admission to the bar be citizens of the United States on the ground that the special role of the lawyer justifies excluding aliens from the practice of law. In Connecticut, the Committee points out, the maxim that a lawyer is an 'officer of the court' is given concrete meaning by a statute which makes every lawyer a 'commissioner of the Superior Court.' As such, a lawyer has authority to 'sign writs and subpoenas, take recognizances, administer oaths and take depositions and acknowledgements of deeds.' Conn.Gen.Stat.Rev. § 51—85. In the exercise of this authority, a Connecticut lawyer may command the assistance of a county sheriff or a town constable. Conn.Gen.Stat.Rev. § 52—90. Because of these and other powers, the Connecticut Supreme Court commented that
16
'(t)he courts not only demand (lawyers') loyalty, confidence and respect but also require tham to function in a manner which will foster public confidence in the profession and, consequently, the judicial system.' 162 Conn., at 262—263, 194 A.2d, at 287.
17
In order to establish a link between citizenship and the powers and responsibilities of the lawyer in Connecticut, the Committee contrasts a citizen's undivided allegiance to this country with a resident alien's possible conflict of loyalties. From this, the Committee concludes that a resident alien lawyer might in the exercise of his functions ignore his responsibilities to the courts or even his clients in favor of the interest of a foreign power.
18
We find these arguments unconvincing. It is no way denigrates a lawyer's high responsibilities to observe that the powers 'to sign writs and subpoenas, take recognizances, (and) administer oaths' hardly involve matters of state policy or acts of such unique responsibility as to entrust them only to citizens. Nor do we think that the practice of law offers meaningful opportunities adversely to affect the interest of the United States. Certainly the Committee has failed to show the relevance of citizenship to any likelihood that a lawyer will fail to protect faithfully the interest of his clients.14
19
Nor would the possibility that some resident aliens are unsuited to the practice of law be a justification for a wholesale ban.
20
'Even in applying permissible standards, officers of a State cannot exclude an applicant when there is no basis for their finding that he fails to meet these standards, or when their action is invidiously discriminatory. Cf. Yick Wo v. Hopkins, 118 U.S. 356 (6 S.Ct. 1064, 30 L.Ed. 220).' Schware v. Board of Bar Examiners, 353 U.S., at 239, 77 S.Ct. at 756.
21
This constitutional warning is especially salient where, as here, a State's bar admission standards make explicit use of a suspect classification. Although, as we have acknowledged, a State does have a substantial interest in the qualifications of those admitted to the practice of law, the arguments advanced by the Committee fall short of showing that the classification established by Rule 8(1) of the Connecticut Practice Book (1963) is necessary to the promoting or safeguarding of this interest.
22
Connecticut has wide freedom to gauge on a case-by-case basis the fitness of an applicant to practice law. Connecticut can, and does, require appropriate training and familiarity with Connecticut law. Apart from such tests of competence, it requires a new lawyer to take both an 'attorney's oath' to perform his functions faithfully and honestly15 and a 'commissioner's oath' to 'support the constitution of the United States, and the constitution of the state of Connecticut.'16 Appellant has indicated her willingness and ability to subscribe to the substance of both oaths,17 and Connecticut may quite properly conduct a character investigation to insure in any given case 'that an applicant is not one who 'swears to an oath pro forma while declaring or manifesting his disagreement with or indifference to the oath.' Bond v. Floyd, 385 U.S. 116, 132 (87 S.Ct. 339, 347, 17 L.Ed.2d 235). Law Students Research Council v. Wadmond, 401 U.S., at 164, 91 S.Ct., at 727.18 Moreover, once admitted to the bar, lawyers are subject to continuing scrutiny by the organized bar and the courts. In addition to discipline for unprofessional conduct, the range of postadmission sanctions extends from judgments for contempt to criminal prosecutions and disbarment.19 In sum, the Committee simply has not established that it must exclude all aliens from the practice of law in order to vindicate its undoubted interest in high professional standards.20
III
23
In its brief, the Examining Committee makes another, somewhat different argument in support of Rule 8(1). Its thrust is not that resident aliens lack the attributes necessary to maintain high standards in the legal profession, but rather that lawyers must be citizens almost as a matter of definition. The implication of this analysis is that exclusion of aliens from the legal profession is not subject to any scrutiny under the Equal Protection Clause.
24
The argument builds upon the exclusion of aliens from the franchise in all 50 States and their disqualification under the Constitution from holding office as President, Art. 2, § 1, cl. 5, or as a member of the House of Representatives, Art. 1, § 2, cl. 2, or of the Senate, Art. 1, § 3, cl. 3. These and numerous other federal and statutory and constitutional provisions reflect, the Committee contends, a pervasive recognition that 'participation in the government structure as voters and office holders' is inescapably an aspect of citizenship. Brief for Appellee 11. Offered in support of the claim that the lawyer is an 'office holder' in this sense is an enhanced version of the proposition, discussed above, that he is an 'officer of the court.' Specifically, the Committee states that the lawyer 'is an officer of the Court who acts by and with the authority of the State' and is entrusted with the 'exercise of actual government power.' Id., at 5.
25
We note at the outset that this argument goes beyond the opinion of the Connecticut Supreme Court, which recognized that a lawyer is not an officer in the ordinary sense. 162 Conn., at 254, 294 A.2d, at 283. This comports with the view of the Court expressed by Mr. Justice Black in Cammer v. United States, 350 U.S. 399, 76 S.Ct. 456, 100 L.Ed. 474 (1956):
26
'It has been stated many times that lawyers are 'officers of the court.' One of the most frequently repeated statements to this effect appears in Ex parte Garland, 4 Wall. 333, 378 (18 L.Ed. 366). The Court pointed out there, however, that an attorney was not an 'officer' within the ordinary meaning of that term. Certainly nothing that was said in Ex parte Garland or in any other case decided by this Court places attorneys in the same category as marshals, bailiffs, court clerks or judges. Unlike these officials a lawyer is engaged in a private profession, important though it be to our system of justice. In general he makes his own decisions, follows his own best judgment, collects his own fees and runs his own business. The word 'officer' as it has always been applied to lawyers conveys quite a different meaning from the word 'officer' as applied to people serving as officers within the conventional meaning of that term.' Id., at 405, 76 S.Ct., at 459 (footnote omitted).
27
Lawyers do indeed occupy professional positions of responsibility and influence that impose on them duties correlative with their vital right of access to the courts. Moreover, by virtue of their professional aptitudes and natural interests, lawyers have been leaders in government throughout the history of our country. Yet, they are not officials of government by virtue of being lawyers. Nor does the status of holding a license to practice law place one so close to the core of the political process as to make him a formulator of government policy.21
28
We hold that § 8(1) violates the Equal Protection Clause.22 The judgment of the Connecticut Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
29
It is so ordered.
30
Reversed and remanded.
31
Mr. Chief Justice BURGER, with whon Mr. Justice REHNQUIST joins, dissenting.
32
I agree generally with Mr. Justice REHNQUIST's dissent and add a few observations.
33
In the rapidly shrinking 'one world' we live in there are numerous reasons why the States might appropriately consider relaxing some of the restraints on the practice of professions by aliens. The fundamental factor, however, is that the States reserved, among other powers, that of regulating the practice of professions within their own borders. If that concept has less validity now than in the 18th century when it was made part of the 'bargain' to create a federal union, it is nonetheless part of that compact.
34
A large number of Amerian nationals are admitted to the practice of law in more than a dozen countries; this will expand as world trade enlarges. But the question for the Court is not what is enlightened or sound policy but rather what the Constitution and its Amendments provide; I am unable to accord to the Fourteenth Amendment the expansive reading the Court gives it.
35
In recent years the Court, in a rather casual way, has articulated the code phrase 'suspect classification' as though it embraced a reasoned constitutional concept. Admittedly, it simplifies judicial work as do 'per se' rules, but it tends to stop analysis while appearing to suggest an analytical process.
36
Much as I agree with some aspects of the policy implicit in the Court's holding, I am bound—if I apply the Constitution as its words and intent speak to me—to reject the good policy the Court now adopts.
37
I am unwilling to accept what seems to me a denigration of the posture and role of a lawyer as an 'officer of the court.' It is that role that a State is entitled to rely on as a basis for excluding aliens from the practice of law. By virtue of his admission a lawyer is granted what can fairly be called a monopoly of sorts; he is granted a license to appear and try cases; he can cause witnesses to drop their private affairs and be called for depositions and other pretrial processes that, while subject to the ultimate control of the court, are conducted by lawyers outside court-rooms; the enormous power of cross-examination of witnesses is granted exclusively to lawyers. Inherent in these large powers is the ability to compel answers subject, of course, to such limiting restraints as the Fifth Amendment and rules of evidence. In most States a lawyer is authorized to issue subpoenas commanding the presence of persons and even the production of documents under certain circumstances. The broad monopoly granted to lawyers is the authority to practice a profession and by virtue of that to do things other citizens may not lawfully do. In the common-law tradition the lawyer becomes the attorney—the agent—for a client only by virtue of his having been first invested with power by the State, usually by a court. The lawyer's obligations as an officer of the court permit the court to call on the lawyer to perform duties which no court could order citizens generally to do, including the obligation to observe codes of ethical conduct not binding on the public generally.
38
The concept of a lawyer as an officer of the court and hence part of the official mechanism of justice in the sense of other court officers, including the judge, albeit with different duties, is not unique in our system but it is a significant feature of the lawyer's role in the common law. This concept has sustained some erosion over the years at the hands of cynics who view the lawyer much as the 'hired gun' of the Old West. In less flamboyant terms the lawyer in his relation to the client came to be called a 'mouthpiece' in the gangland parlance of the 1930's. Under this bleak view of the profession the lawyer, once engaged, does his client's bidding, lawful or not, ethical or not.
39
Whatever the erosion of the officer-of-the-court role, the overwhelming proportion of the legal profession rejects both the denigrated role of the advocate and counselor that renders him a lackey to the client and the alien idea that he is an agent of government. See American Bar Association Project on Standards for Criminal Justice, The Prosecution Function and the Defense Function § 1.1 (Approved Draft 1971).
40
The role of a lawyer as an officer of the court predates the Constitution; it was carried over from the English system and became firmly embedded in our tradition. It included the obligation of first duty to client. But that duty never was and is not today an absolute or unqualified duty. It is a first loyalty to serve the client's interest but always within—never outside—the law, thus placing a heavy personal and individual responsibility on the lawyer. That this is often unenforceable, that departures from it remain undetected, and that judges and bar associations have been singularly tolerant of misdeeds of their brethren, renders it no less important to a profession that is increasingly crucial to our way of life. The very independence of the lawyer from the government on the one hand and client on the other is what makes law a profession, something apart from trades and vocations in which obligations of duty and conscience play a lesser part. It is as crucial to our system of justice as the independence of judges themselves.
41
The history of the legal profession is filled with accounts of lawyers who risked careers by asserting their independent status in opposition to popular and governmental attitudes, as John Adams did in Boston to defend the soldiers accused in what we know in our folklore as the 'Boston Massacre.' To that could be added the lawyers who defended John Peter Zenger and down to lawyers in Modern times in cases such as Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The crucial factor in all these cases is that the advocates performed their dual role—officer of the court and advocate for a client—strictly within and never in derogation of high ethical standards. There is thus a reasonable, rational basis for a State to conclude that persons owing first loyalty to this country will grasp these traditions and apply our concepts more than those who seek the benefits of American citizenship while declining to accept the burdens of citizenship in this country.
42
In some countries the legal system is so structured that all lawyers are literally agents of government and as such bound to place the interests of government over those of the client. That concept is so alien to our system with an independent bar that I find it difficult to see how nationals of such a country, inculcated with those ideas and at the same time unwilling to accept American citizenship, could be properly integrated into our system. At the very least we ought not stretch the Fourteenth Amendment to force the States to accept any national of any country simply because of a recital of the required oath and passing of the bar examination.
43
Since the Court now strikes down a power of the States accepted as fundamental since 1787, even if States sometimes elected not to exercise it, cf. Bradwell v. State, 16 Wall. 130, 21 L.Ed. 442 (1873), the States may well move to adopt, by statute or rule of court, a reciprocal proviso, familiar in other contexts; under such a reciprocal treatment of applicants a State would admit to the practice of law the nationals of such other countries as admit American citizens to practice. I find nothing in the core holding of Zschernig v. Miller, 389 U.S. 429, 88 S.Ct. 664, 19 L.Ed.2d 683 (1968), to foreclose state adoption of such reciprocal provisions. See Clark v. Allen, 331 U.S. 503, 67 S.Ct. 1431, 91 L.Ed. 1633 (1947).
1
Appellant is eligible for naturalization by reason of her marriage to a citizen of the United States and residence in the United States for more than three years, 8 U.S.C. § 1430(a). She has not filed a declaration of intention to become a citizen of the United States, 8 U.S.C. § 1445(f), and has no present intention of doing so. Brief for Appellant 4. In order to become a citizen, appellant would be required to renounce her citizenship of the Netherlands. 8 U.S.C. § 1448(a).
2
The rules are promulgated by the judges of the Superior Court, Conn.Gen.Stat.Rev. § 51—80, and administered by the Connecticut Bar Examining Committee. The position of the State in this case is represented by that Committee.
3
Because we find that the rule denies equal protection, we do not reach appellant's other claims.
4
We do not, of course, rely on Bradwell to establish that admission to the bar may not be made to depend on citizenship. The holding of that case was simply that the right to practice law is not a 'privilege or immunity' within the meaning of the Fourteenth Amendment.
5
See J. Higham, Strangers in the Land 46, 161, 183 (1963). The full scale of restrictions imposed on the work opportunities of aliens in 1946 is shown by M. Konvitz, The Alien and the Asiatic in American Law 190—211 (1946).
6
See also People v. Crane, 214 N.Y. 154, 108 N.E. 427, aff'd sub nom. Crane v. New York, 239 U.S. 195, 36 S.Ct. 85, 60 L.Ed. 218 (1915); but see Graham v. Richardson, 403 U.S. 365, 374, 91 S.Ct. 1848, 1853, 29 L.Ed.2d 534 (1971).
7
See lower court cases collected at Note, Constitutionality of Restrictions on Aliens' Right to Work, 57 Col.L.Rev. 1012, 1021 1023 (1957) (restrictions ranging from the vending of soft drinks to the selling of lightning rods).
8
Discrimination or segregation for its own sake is not, of course, a constitutionally permissible purpose. E.g., Brown v. Board of Education, 347 U.S. 483, 495, 74 S.Ct. 686, 692, 98 L.Ed. 873 (1954); McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964).
9
The state interest required has been characterized as 'overriding,' id., at 196, 85 S.Ct. at 290; Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967); 'compelling,' Graham v. Richardson, supra, 403 U.S., at 375, 91 S.Ct., at 1853; 'important,' Dunn v. Blumstein, 405 U.S. 330, 343, 92 S.Ct. 995, 1003, 31 L.Ed.2d 274 (1972), or 'substantial,' ibid. We attribute no particular significance to these variations in diction.
10
McLaughlin v. Florida, supra, 379 U.S., at 196, 85 S.Ct., at 290; cf. Loving v. Virginia, supra, 388 U.S., at 11, 87 S.Ct., at 1823.
11
We did not decide in Graham nor do we decide here whether special circumstances, such as armed hostilities between the United States and the country of which an alien is a citizen, would justify the use of a classification based on alienage.
12
Appellant denies that this was indeed the State's purpose in requiring citizenship for the practice of law, noting that citizenship is also required of practitioners in other fields, including hairdressers and cosmeticians, Conn.Gen.Stat.Rev. § 20 250, architects, Conn.Gen.Stat.Rev. § 20—291, and sanitarians, Conn.Gen.Stat.Rev. § 20—361. Because we dispose of the case on other grounds, we do not reach this claim.
13
In this connection, Mr. Justice Frankfurther wrote:
'From a profession charged with such responsibilities there must be exacted those qualities of truth-speaking, of a high sense of honor, of granite discretion, of the strictest observance of fiduciary responsibility, that have, throughout the centuries, been compendiously described as 'moral character." Schware v. Board of Bar Examiners, 353 U.S. 232, 247, 77 S.Ct. 752, 761, 1 L.Ed.2d 796 (1957) (concurring opinion).
14
Lawyers frequently represent foreign countries and the nationals of such countries in litigation in the courts of the United States, as well as in other matters in this country. In such representation, the duty of the lawyer, subject to his role as an 'officer of the court,' is to further the interests of his clients by all lawful means, even when those interests are in conflict with the interests of the United States or of a State. But this representation involves no conflict of interest in the invidious sense. Rather, it casts the lawyer in his honored and traditional role as an authorized but independent agent acting to vindicate the legal rights of a client, whoever it may be. It is conceivable that an alien licensed to practice law in this country could find himself in a position in which he might be called upon to represent his country of citizenship against the United States in circumstances in which there may be a conflict between his obligations to the two countries. In such rare situations, an honorable person, whether an alien or not, would decline the representation.
15
The text of the attorney's oaths is as follows:
'You solemnly swear that you will do no falsehood, nor consent to any to be done in court, and, if you know of any to be done, you will give information thereof to the judges, or one of them, that it may be reformed; you will not wittingly, or willingly promote, sue or cause to be sued, any false or unlawful suit, or give aid, or consent, to the same; you will delay no man for lucre or malice; but will exercise the office of attorney, within the court wherein you may practice, according to the best of your learning and discretion, and with fidelity, as well to the court as to your client, so help you God.' Jurisdictional Statement 44.
16
There is no question as to the validity of requiring an applicant, as a precondition to admission to the bar, to take such an oath. Law Students Research Council v. Wadmond, 401 U.S. 154, 161—164, 91 S.Ct. 720, 725—727, 27 L.Ed.2d 749 (1970).
17
Because the commissioner's oath is an oath to 'support the constitution of the United States, and the constitution of the state of Connecticut, so long as you continue a citizen thereof' Conn.Gen.Stat.Rev. § 1—25 (emphasis added), appellant could not of course take the oath as prescribed. To the extent that the oath reiterates Rule 8(1)'s citizenship requirement, it shares the same constitutional defects when required of prospective members of the bar.
18
We find no merit in the contention that only citizens can in good conscience take an oath to support the Constitution. We note that all persons inducted into the Armed Services, including resident aliens, are required by 10 U.S.C. § 502 to take the following otah:
'I, _ _, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, accoridng to regulations and the Uniform Code of Military Justice. So help me God.'
If aliens can take this oath when the Nation is making use of their services in the national defense, resident alien applicants for admission to the bar surely cannot be precluded, as a class, from taking an oath to support the Constitution on the theory that they are unable to take the oath in good faith.
19
See, e.g., Doolittle v. Clark, 47 Conn. 316 (1879). Apart from the courts, the profession itself has long subjected its members to discipline under codes or canons of professional ethics. As early as 1908 the American Bar Association adopted 32 Canons of Professional Ethics. In 1970, following several years of study and reexamination, the House of Delegates of the American Bar Association approved a new Code of Professional Responsibility, which provides detailed ethical prescriptions as well as a comprehensive code of disciplinary rules. The ABA Code of Professional Responsibility has since been approved and adopted in the District of Columbia and in 46 States, including Connecticut.
20
Nothing in our rules prohibits from admission to practice in this Court resident aliens who have been admitted to practice 'for three years past in the highest court of a State, Territory, District, Commonwealth, or Possession' and whose 'private and professional characters shall appear to be good.' Rule 5, Rules of the Supreme Court.
21
Because the Committee has failed to establish that the lawyer is an 'office holder,' we need not and do not decide whether there is merit in the general argument and, if so, to what offices it would apply.
22
In a thoughtful opinion, the California Supreme Court unanimously declared unconstitutional a similar California rule. Raffaelli v. Committee of Bar Examiners, 7 Cal.3d 288, 101 Cal.Rptr. 896, 496 P.2d 1264 (1972). See also Application of Park, 484 P.2d 690 (Alaska 1971).
| 12
|
413 U.S. 483
93 S.Ct. 2789
37 L.Ed.2d 745
Saul HELLER, Petitioner,v.State of NEW YORK.
No. 71—1043.
Argued Nov. 14, 1972.
Decided June 25, 1973.
Syllabus
Petitioner was manager of a movie theater where a sexually explicit film was exhibited. After police officers saw part of the film, an assistant district attorney requested a New York Criminal Court judge to view it. Upon seeing the entire performance, the judge signed warrants for seizure of the film and for petitioner's arrest on the ground that the film was obscene. Exhibition of an obscene film violates New York Penal Law § 235.05. No pretrial motion was made for return of the single film copy seized or for its suppression as evidence. There was no showing below that the seizure prevented exhibition of the film by use of another copy, and the record does not indicate whether another copy was available. Petitioner's trial was held 47 days after his arrest and the film seizure, and he was convicted. He argued that seizure of the film without a prior adversary hearing violated the Fourteenth Amendment. He also challenged his conviction on substantive grounds, arguing that he was convicted under standards of obscenity both overbroad and unconstitutionally vague, and that films shown only to consenting adults in private are constitutionally protected. The New York Court of Appeals affirmed his conviction, holding that an adversary hearing prior to seizure of the film was not required and that an ex parte warrant, issued after a judicial determination of obscenity, was constitutionally sufficient. Held:
1. Where a film is seized for the bona fide purpose of preserving it as evidence in a criminal proceeding, and it is seized pursuant to a warrant issued after a determination of probable obscenity by a neutral magistrate, and following the seizure a prompt judicial determination of the obscenity issue in an adversary proceeding is available at the request of any interested party, the seizure is constitutionally permissible. On a showing to the trial court that other copies of the film are not available for exhibition, the court should permit the seized film to be copied so that exhibition can be continued pending judicial resolution of the obscenity issue in an adversary proceeding. Otherwise, the films must be returned. With such safeguards, a preseizure adversary hearing is not mandated by the First Amendment. Pp. 488—493.
2. The case is remanded to afford the state courts an opportunity to reconsider petitioner's substantive challenges in light of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, and Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446, which establish guidelines for the lawful state regulation of obscene material. Pp. 494.
29 N.Y.2d 319, 327 N.Y.S.2d 628, 277 N.E.2d 651, vacated and remanded.
Irving Anolik, New York City, for petitioner.
Lewis R. Friedman, New York City, for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari in this case to determine whether a judicial officer authorized to issue warrants, who has viewed a film and finds it to be obscene, can issue a constitutionally valid warrant for the film's seizure as evidence in a prosecution against the exhibitor, without first conducting an adversary hearing on the issue of probable obscenity.
2
Petitioner was manager of a commercial movie theater in the Greenwich Village area of New York City. On July 29, 1969, a film called 'Blue Movie' was exhibited there. The film depicts a nude couple engaged in ultimate sexual acts. Three police officers saw part of the film. Apparently on the basis of their observations, an assistant district attorney of New York County requested a judge of the New York Criminal Court to see a performance. On July 31, 1969, the judge, accompanied by a police inspector, purchased a ticket and saw the entire film. There were about 100 other persons in the audience. Neither the judge nor the police inspector recalled any signs restricting admission to adults.1
3
At the end of the film, the judge, without any discussions with the police inspector, signed a search warrant for the seizure of the film and three 'John Doe' warrants for the arrest of the theater manager, the projectionist, and the ticket taker, respectively. No one at the theater was notified or consulted prior to the issuance of the warrants. The judge signed the warrants because 'it was, and is my opinion that that film is obscene, and was obscene as I saw it then under the definition of obscene, that is (in) . . . section 235.00 of the Penal Law.' Exhibition of an obscene film violates New York Penal Law § 235.05.2
4
The warrants were immediately executed by police officers. Three reels, composing a single copy of the film, were seized. Petitioner, the theater manager, was arrested, as were the projectionist and the ticket taker.3 No pretrial motion was made for the return of the film or for its suppression as evidence. Nor did petitioner make a pretrial claim that seizure of the film prevented its exhibition by use of another copy, and the record does not conclusively indicate whether such a copy was available. On September 16, 1969, 47 days after his arrest and the seizure of the movie, petitioner came to trial, a jury having been waived, before three judges of the New York City Criminal Court.
5
At trial, the prosecution's case rested almost solely on testimony concerning the arrests and the seizure of the film, together with the introduction into evidence of the seized film itself. The film was exhibited to the trial judges. The defense offered three 'expert' witnesses: an author, a professor of sociology, and a newspaper writer. These witnesses testified that the film had social, literary, and artistic importance in illustrating 'a growing and important point of view about sexual behavior' as well as providing observations 'about the political and social situation in this country today. . . .' Petitioner testified that the theater's employees were instructed not to admit persons who appeared to be under 18 years of age, unless they 'had identification' that they were 18. Petitioner also testified that there was a sign at the box office stating that 'no one under 17 (would be) admitted.' Both at the end of the prosecution's case and his own case, petitioner moved to dismiss the indictment on the ground that the seizure of the film, without a prior adversary hearing, violated the Fourteenth Amendment.
6
At the close of trial on September 17, 1969, petitioner was found guilty by all three judges of violating New York Penal Law § 235.05. On appeal, both the Supreme Court of the State of New York, Appellate Term, and the Court of Appeals of the State of New York viewed the film and affirmed petitioner's conviction. The Court of Appeals, relying on this Court's opinion in Lee Art Theatre v. Virginia, 392 U.S. 636, 637, 88 S.Ct. 2103, 2104, 20 L.Ed.2d 1313 (1968), held that an adversary hearing was not required prior to seizure of the film, and that the judicial determination which occurred prior to seizure in this case was constitutionally sufficient. In so holding, the Court of Appeals explicitly disapproved, as going 'beyond any requirement imposed on State courts by the Supreme Court,' Astro Cinema Corp. v. Mackell, 422 F.2d 293 (CA2 1970), and Bethview Amusement Corp. v. Cahn, 416 F.2d 410 (CA2 1969), cert. denied, 397 U.S. 920, 90 S.Ct. 929, 25 L.Ed.2d 101 (1970), cases requiring an adversary hearing prior to any seizure of movie film. 29 N.Y.2d 319, 323, 327 N.Y.S.2d 628, 631, 277 N.E.2d 651, 653 (1971).
7
We affirm this holding of the Court of Appeals of the State of New York. This Court has never held, or even implied, that there is an absolute First or Fourteenth Amendment right to a prior adversary hearing applicable to all cases where allegedly obscene material is seized. See Times Film Corp. v. Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403 (1961); Kingsley Books, Inc. v. Brown, 354 U.S. 436, 440—442, 77 S.Ct. 1325, 1327—1328, 1 L.Ed.2d 1469 (1957). In particular, there is no such absolute right where allegedly obscene material is seized, pursuant to a warrant, to preserve the material as evidence in a criminal prosecution. In Lee Art Theatre v. Virginia, supra, the Court went so far as to suggest that it was an open question whether a judge need 'have viewed the motion picture before issuing the warrant.'4 Here the judge viewed the entire film and, indeed, witnessed the alleged criminal act. It is not contested that the judge was a 'neutral, detached magistrate,' that he had a full opportunity for independent judicial determination of probable cause prior to issuing the warrant, and that he was able to 'focus searchingly on the question of obscenity.' See Marcus v. Search Warrants of Property at 104 East 10th St., Kansas City, Mo., 367 U.S. 717, 731—733, 81 S.Ct. 1708, 1716, 6 L.Ed.2d 1127 (1961). Cf. Coolidge v. New Hampshire, 403 U.S. 443, 449—453, 91 S.Ct. 2022, 2029, 2031, 29 L.Ed.2d 564 (1971); Giordenello v. United States, 357 U.S. 480, 485—486, 78 S.Ct. 1245, 1249—1250, 2 L.Ed.2d 1503 (1958); Johnson v. United States, 333 U.S. 10, 14—15, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948).
8
In United States v. Thirty-Seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971), and Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), we held that "because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint." 402 U.S., at 367, 91 S.Ct., at 1403, quoting 380 U.S., at 58, 85 S.Ct., at 738 (emphasis added). Those cases involved, respectively, seizure of imported materials by federal customs agents and state administrative licensing of motion pictures, both civil procedures directed at absolute suppression of the materials themselves. Even in those cases, we did not require that the adversary proceeding must take place prior to initial seizure. Rather, it was held that a judicial determination must occur 'promptly so that administrative delay does not in itself become a form of censorship.'5 United States v. Thirty-Seven Photographs, supra, 402 U.S., at 367, 91 S.Ct., at 1404 (1971); Freedman v. Maryland, supra, 380 U.S., at 57—59, 85 S.Ct., at 738—739 (1965). See Blount v. Rizzi, 400 U.S. 410, 419—421, 91 S.Ct. 423, 429—430, 27 L.Ed.2d 498 (1971); Teitel Film Corp. v. Cusack, 390 U.S. 139, 141—142, 88 S.Ct. 754, 755—756, 19 L.Ed.2d 966 (1968); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70—71, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963).
9
In this case, of course, the film was not subjected to any form of 'final restraint,' in the sense of being enjoined from exhibition or threatened with destruction. A copy of the film was temporarily detained in order to preserve it as evidence. There has been no showing that the seizure of a copy of the film precluded its continued exhibition. Nor, in this case, did temporary restraint in itself 'become a form of censorship,' even making the doubtful assumption that no other copies of the film existed. Cf. United States v. Thirty-Seven Photographs, supra, 402 U.S., at 367, 91 S.Ct., at 1403; Freedman v. Maryland, supra, 380 U.S., at 57—59, 85 S.Ct., at 738—739. A judicial determination of obscenity, following a fully adversary trial, occurred within 48 days of the temporary seizure. Petitioner made no pretrial motions seeking return of the film or challenging its seizure, nor did he request expedited judicial consideration of the obscenity issue, so it is entirely possible that a prompt judicial determination of the obscenity issue in an adversary proceeding could have been obtained if petitioner had desired.6 Although we have refrained from establishing rigid, specific time deadlines in proceedings involving seizure of allegedly obscene material, we have definitely excluded from any consideration of 'promptness' those delays caused by the choice of the defendant. See United States v. Thirty-Seven Photographs, supra, 402 U.S., at 373—374, 91 S.Ct., at 1406—1407. In this case, the barrier to a prompt judicial determination of the obscenity issue in an adversary proceeding was not the State, but petitioner's decision to waive pretrial motions and reserve the obscenity issue for trial. Cf. Kingsley Books, Inc. v. Brown, 354 U.S., at 439, 77 S.Ct., at 1326.
10
Petitioner's reliance on the Court's decisions in Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964), and Marcus v. Search Warrants of Property at 104 East 10th St., Kansas City, Mo., 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961), is misplaced. Those cases concerned the seizure of large quantities of books for the sole purpose of their destruction,7 and this Court held that, in those circumstances, a prior judicial determination of obscenity in an adversary proceeding was required to avoid 'danger of abridgment of the right of the public in a free society to unobstructed circulation of nonobscene books.' Quantity of Copies of Books v. Kansas, supra, 378 U.S., at 213, 84 S.Ct., at 1727 (1964). We do not disturb this holding. Courts will scrutinize any large-scale seizure of books, films, or other materials presumptively protected under the First Amendment to be certain that the requirements of A Quantity of Books and Marcus are fully met. "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 2141, 29 L.Ed.2d 822 (1971), quoting Bantam Books, Inc. v. Sullivan, 372 U.S., at 70, 83 S.Ct., at 639; Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1 (1971); Carroll v. President and Comm'rs of Princess Anne, 393 U.S. 175, 181, 89 S.Ct. 347, 351, 21 L.Ed.2d 325 (1968). See Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931).
11
But seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding, particularly where, as here, there is no showing or pretrial claim that the seizure of the copy prevented continuing exhibition of the film.8 If such a seizure is pursuant to a warrant, issued after a determination of probable cause by a neutral magistrate, and, following the seizure, a prompt9 judicial determination of the obscenity issue in an adversary proceeding is available at the request of any interested party, the seizure is constitutionally permissible. In addition, on a showing to the trial court that other copies of the film are not available to the exhibitor, the court should permit the seized film to be copied so that showing can be continued pending a judicial determination of the obscenity issue in an adversary proceeding.10 Otherwise, the film must be returned.11
12
With such safeguards, we do not perceive that an adversary hearing prior to a seizure by lawful warrant would materially increase First Amendment protection. Cf. Carroll v. President and Comm'rs of Princess Anne, supra, 393 U.S., at 183—184, 89 S.Ct., at 352—353. The necessity for a prior judicial determination of probable cause will protect against gross abuses, while the availability of a prompt judicial determination in an adversary proceeding following the seizure assures that difficult marginal cases will be fully considered in light of First Amendment guarantees, with only a minimal interference with public circulation pending litigation. The procedure used by New York in this case provides such First Amendment safeguards, while also serving the public interests in full and fair prosecution for obscenity offenses. Counsel for New York has argued that movie films tend to 'disappear' if adversary hearings are afforded prior to seizure. We take judicial notice that such films may be compact, readily transported for exhibition in other jurisdictions, easily destructible, and particularly susceptible to alteration by cutting and splicing critical parts of film.
13
Petitioner also challenged his conviction on substantive, as opposed to procedural, ground arguing that he was convicted under standards of obscenity both overbroad and unconstitutionally vague. In addition, petitioner argues that films shown only to consenting adults in private have a particular claim to constitutional protection. In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, and Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446, decided June 21, 1973, we dealt with these substantive issues. A majority of this Court has now approved guidelines for the lawful state regulation of obscene material. The judgment of the Court of Appeals of the State of New York is therefore vacated and this case remanded for the sole purpose of affording the New York courts an opportunity to reconsider these substantive issues in light of Miller and Paris Adult Theatre I. See United States v. 12 200-Ft. Reels of Super 8mm. Film, 413 U.S., at 130 n. 7, 93 S.Ct., at 2670 n. 7.
14
Vacated and remanded.
15
Mr. Justice DOUGLAS, dissenting.
16
I would reverse in each of these cases as, in my view, the underlying obscenity statute violates the First Amendment for the reasons stated in my dissenting opinions in Miller v. California, 413 U.S. 15, 130, 93 S.Ct. 2607, 2622, 37 L.Ed.2d 419, and United States v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S. 123, 130, 93 S.Ct. 2665, 2670, 37 L.Ed.2d 500.
17
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join, dissenting.
18
We granted certiorari to consider the holding of the Court of Appeals of New York that the Constitution does not require an adversary hearing on obscenity prior to a judge's issuance of warrants for the seizure of a film and for the arrest of the film's exhibitor. 29 N.Y.2d 319, 327 N.Y.S.2d 628, 277 N.E.2d 651 (1971). The statute under which the prosecution was brought* is, in my view, unconstitutionally overbroad and therefore invalid on its face. See my dissent in Paris Adult Theatre I v. Slaton, 413 U.S. 49, at 73, 93 S.Ct. 2628, at 2642, 37 L.Ed.2d 446. I would therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings not inconsistent with my dissenting opinion in Slaton. In that circumstance, I have no occasion to consider whether, assuming that a prosecution could properly be brought, the seizure of the film at issue here was constitutional.
1
The prosecution presented no evidence that juveniles were actually present in the theater.
2
New York Penal Law § 235.05, McKinney's Consol.Laws, c. 40, reads in relevant part:
'A person is guilty of obscenity when, knowing its content and character, he:
'1. Promotes, or possesses with intent to promote, any obscene material; or
'2. Produces, presents or directs an obscene performance or participates in a portion thereof which is obscene or which contributes to its obscenity.
'Obscenity is a class A misdemeanor.'
The terms used in § 235.05 are defined by New York Penal Law § 235.00, which reads in relevant part:
'The following definitions are applicable to sections 235.05, 235.10 and 235.15:
'1. 'Obscene.' Any material or performance is 'obscene' if (a) considered as a whole, its predominant appeal is to prurient, shameful or morbid interest in nudity, sex, excretion, sadism or masochism, and (b) it goes substantially beyond customary limits of candor in describing or representing such matters, and (c) it is utterly without redeeming social value. Predominant appeal shall be judged with reference to ordinary adults unless it appears from the character of the material or the circumstances of its dissemination to be designed for children or other specially susceptible audience.
'2. 'Material' means anything tangible which is capable of being used or adapted to arouse interest, whether through the medium of reading, observation, sound or in any other manner.
'3. 'Performance' means any play, motion picture, dance or other exhibition performed before an audience.
'4. 'Promote' means to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit or advertise, or to offer or agree to do the same.'
3
The cases against the ticket taker and projectionist were dismissed on the motion of the prosecutor.
4
'It is true that a judge may read a copy of a book in courtroom or chambers but not as easily arrange to see a motion picture there. However, we need not decide in this case whether the justice of the peace should have viewed the motion picture before issuing the warrant. The procedure under which the warrant issued solely upon the conclusory assertions of the police officer without any inquiry by the justice of the peace into the factual basis for the officer's conclusions was not a procedure 'designed to focus searchingly on the question of obscenity,' (Marcus v. Search Warrants, 367 U.S. 717), at 732, 81 S.Ct. (1708), at 1716, and therefore fell short of constitutional requirements demanding necessary sensitivity to freedom of expression. See Freedman v. Maryland, 380 U.S. 51, 58—59, 85 S.Ct. 734, 738—739.' 392 U.S., at 637, 88 S.Ct., at 2104.
5
We further held '(1) there must be assurance, 'by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film'; (2) '(a)ny restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution'; and (3) 'the procedure must also assure a prompt final judicial decision' to minimize the impact of possibly erroneous administrative action. (Freedman v. Maryland, 380 U.S.), at 58—59, 85 S.Ct., at 739.' United States v. Thirty-Seven Photographs, 402 U.S., at 367, 91 S.Ct., at 1404.
6
The State of New York has represented that it stands ready to grant 'immediate' adversary hearings on pretrial motions challenging seizures of material arguably protected by the First Amendment. No such motion was made by petitioner.
7
In particular, Marcus involved seizure by police officers acting pursuant to a general warrant of 11,000 copies of 280 publications. 367 U.S., at 723, 81 S.Ct., at 1711. Unlike this case, there was no independent judicial determination of obscenity by a neutral, detached magistrate, nor were the seizures made to preserve evidence for a criminal prosecution. Id., at 732, 81 S.Ct. at 1716. The sole purpose was to seize the articles as contraband and to cause them 'to be publicly destroyed, by burning or otherwise.' Id., at 721 n. 6, 81 S.Ct., at 1710 n. 6. In Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964), 1,715 copies of 31 publications were seized by a county sheriff, also without any prior judicial determination of obscenity and, again, for the sole purpose of destroying the publications as contraband. Id., at 206—209, 84 S.Ct., at 1723—1725.
8
In Mishkin v. New York, 383 U.S 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966), this Court refused to review the legality of a seizure of books challenged under A Quantity of Books, supra, primarily because the record did not reveal the number of books seized as evidence under the warrant or 'whether the books seized . . . were on the threshold of dissemination.' Id., at 513, 86 S.Ct., at 966. If A Quantity of Books applied to all seizures of obscene material, there would have been no need for the Court to abstain from review in Mishkin, since the parties had conceded that there was no prior adversary hearing. This is not to say that multiple copies of a single film may be seized as purely cumulative evidence, or that a State may circumvent Marcus or A Quantity of Books by incorporating, as an element of a criminal offense, the number of copies of the obscene materials involved.
9
By 'prompt,' we mean the shortest period 'compatible with sound judicial resolution.' See United States v. Thirty-Seven Photographs, 402 U.S. 363, at 367, 91 S.Ct. 1400, at 1403, 28 L.Ed.2d 822 (1971); Blount v. Rizzi, 400 U.S. 410, 417, 91 S.Ct. 423, 428, 27 L.Ed.2d 498 (1971); Freedman v. Maryland, 380 U.S. 51, at 58—59, 85 S.Ct. 734, at 738—739, 13 L.Ed.2d 649 (1965).
10
At oral argument, counsel for petitioner agreed that a prompt opportunity to obtain a copy from the seized film at 'an independent lab under circumstances that would assure that there was no tampering with the film' with the original returned within '24 hours' would 'satisfy' his 'First Amendment position.' Tr. of Oral Arg. 28. Petitioner never requested such a copy below.
11
Failure to permit copying of seized material adversely affects First Amendment interests; prompt copying of seized material should be permitted. If copying is denied, return of the seized material should be required. On the other hand, violations of Fourth Amendment standards would require that the seized material be excluded from evidence. See Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757; Lee Art Theatre v. Virginia, 392 U.S., at 637, 88 S.Ct., at 2104. Cf. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
*
N.Y. Penal Law § 235.05:
'A person is guilty of obscenity when, knowing its content and character, he:
'1. Promotes, or possesses with intent to promote, any obscene material; or
'2. Produces, presents or directs an obscene performance or participates in a portion thereof which is obscene or which contributes to its obscenity.'
| 23
|
413 U.S. 528
93 S.Ct. 2821.
37 L.Ed.2d 782
UNITED STATES DEPARTMENT OF AGRICULTURE et al., Appellants,v.Jacinta MORENO et al.
No. 72—534.
Argued April 23, 1973.
Decided June 25, 1973.
Syllabus
Section 3(e) of the Food Stamp Act of 1964, as amended in 1971, generally excludes from participation in the food stamp program any household containing an individual who is unrelated to any other household member. The Secretary of Agriculture issued regulations thereunder rendering ineligible for participation in the program any 'household' whose members are not 'all related to each other.' Congress stated that the purposes of the Act were 'to safeguard the health and well-being of the Nation's population and raise levels of nutrition among low-income households . . . (and) that increased utilization of food in establishing and maintaining adequate national levels of nutrition will promote the distribution . . . of our agricultural abundance and will strengthen our agricultural economy . . ..' The District Court held that the 'unrelated person' provision of § 3(e) creates an irrational classification in violation of the equal protection component of the Due Process Clause of the Fifth Amendment. Held: The legislative classification here involved cannot be sustained, the classification being clearly irrelevant to the stated purposes of the Act and not rationally furthering any other legitimate governmental interest. In practical operation, the Act excludes, not those who are 'likely to abuse the program,' but, rather, only those who so desperately need aid that they cannot even afford to alter their living arrangements so as to retain their eligibility. Pp. 533—538.
345 F.Supp. 310, affirmed.
A. Raymond Randolph, Jr., Washington, D.C., for appellants.
Ronald F. Pollack, New York City, for appellees.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This case requires us to consider the constitutionality of § 3(e) of the Food Stamp Act of 1964, 7 U.S.C. § 2012(e), as amended in 1971, 84 Stat. 2048, which, with certain exceptions, excludes from participation in the food stamp program any household containing an individual who is unrelated to any other member of the household. In practical effect, § 3(e) creates two classes of persons for food stamp purposes: one class is composed of those individuals who live in households all of whose members are related to one another, and the other class consists of those individuals who live in households containing one or more members who are unrelated to the rest. The latter class of persons is denied federal food assistance. A three-judge District Court for the District of Columbia held this classification invalid as violative of the Due Process Clause of the Fifth Amendment. 345 F.Supp. 310 (1972). We noted probable jurisdiction. 409 U.S. 1036, 93 S.Ct. 526, 34 L.Ed.2d 485 (1972). We affirm.
2
* The federal food stamp program was established in 1964 in an effort to alleviate hunger and malnutrition among the more needy segments of our society. 7 U.S.C. § 2011. Eligibility for participation in the program is determined on a household rather than an individual basis. 7 CFR § 271.3(a). An eligible household purchases sufficient food stamps to provide that household with a nutritionally adequate diet. The household pays for the stamps at a reduced rate based upon its size and cumulative income. The food stamps are then used to purchase food at retail stores, and the Government redeems the stamps at face value, thereby paying the difference between the actual cost of the food and the amount paid by the household for the stamps. See 7 U.S.C. §§ 2013(a), 2016, 2025(a).
3
As initially enacted, § 3(e) defined a 'household' as 'a group of related or non-related individuals, who are not residents of an institution or boarding house, but are living as one economic unit sharing common cooking facilities and for whom food is customarily purchased in common.'1 In January 1971, however Congress redifined the term 'household' so as to include only groups of related individuals.2 Pursuant to this amendment, the Secretary of Agriculture promulgated regulations rendering ineligible for participation in the program any 'household' whose members are not 'all related to each other.'3
4
Appellees in this case consist of several groups of individuals who allege that, although they satisfy the income eligibility requirements for federal food assistance, they have nevertheless been excluded from the program solely because the persons in each group are not 'all related to each other.' Appellee Jacinta Moreno, for example is a 56-year-old diabetic who lives with Ermina Sanchez and the latter's three children. They share common living expenses, and Mrs. Sanchez helps to care for appellee. Appellee's monthly income, derived from public assistance, is $75; Mrs. Sanchez receives $133 per month from public assistance. The household pays $135 per month for rent, gas and electricity, of which appellee pays $50. Appellee spends $10 per month for transportation to a hospital for regular visits, and $5 per month for laundry. That leaves her $10 per month for food and other necessities. Despite her poverty, appellee has been denied federal food assistance solely because she is unrelated to the other members of her household. Moreover, although Mr. Sanchez and her three children were permitted to purchase $108 worth of food stamps per month for $18, their participation in the program will be terminated if appellee Moreno continues to live with them.
5
Appellee Sheilah Hejny is married and has three children. Although the Hejnys are indigent, they took a 20-year-old girl, who is unrelated to them because 'we felt she had emotional problems.' The Hejnys receive $144 worth of food stamps each month for $14. If they allow the 20-year-old girl to continue to live with them, they will be denied food stamps by reason of § 3(e).
6
Appellee Victoria Keppler has a daughter with an acute hearing deficiency. The daughter requires special instruction in a school for the deaf. The school is located in an area in which appellee could not ordinarily afford to live. Thus, in order to make the most of her limited resources, appellee agreed to share an apartment near the school with a woman who, like appellee, is on public assistance. Since appellee is not related to the woman, appellee's food stamps have been, and will continue to be, cut off if they continue to live together.
7
These and two other groups of appellees instituted a class action against the Department of Agriculture, its Secretary, and two other departmental officials, seeking declaratory and injunctive relief against the enforcement of the 1971 amendment of § 3(e) and its implementing regulations. In essence, appellees contend,4 and the District Court held, that the 'unrelated person' provision of § 3(e) creates an irrational classification in violation of the equal protection component of the Due Process Clause of the Fifth Amendment.5 We agree.
II
8
Under traditional equal protection analysis, a legislative classification must be sustained, if the classification itself is rationally related to a legitimate governmental interest. See Jefferson v. Hackney, 406 U.S. 535, 546, 92 S.Ct. 1724, 1731, 32 L.Ed.2d 285 (1972); Richardson v. Belcher, 404 U.S. 78, 81, 92 S.Ct. 254, 257, 30 L.Ed.2d 231 (1971); Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970); McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961). The purposes of the Food Stamp Act were expressly set forth in the congressional 'declaration of policy':
9
'It is hereby declared to be the policy of Congress . . . to safeguard the health and well-being of the Nation's population and raise levels of nutrition among low-income households. The Congress hereby finds that the limited food purchasing power of low-income hojseholds contributes to hunger and malnutrition among members of such households. The Congress further finds that increased utilization of food in establishing and maintaining adequate national levels of nutrition will promote the distribution in a beneficial manner of our agricultural abundances and will strengthen our agricultural economy, as well as result in more orderly marketing and distribution of food. To alleviate such hunger and malnutrition, a food stamp program is herein authorized which will permit low-in-come households to purchase a nutritionally adequate diet through normal channels of trade.' 7 U.S.C. § 2011.
10
The challenged statutory classification (households of related persons versus households containing one or more unrelated persons) is clearly irrelevant to the stated purposes of the Act. As the District Court recognized, '(t)he relationships among persons constituting one economic unit and sharing cooking facilities have nothing to do with their abilities to stimulate the agricultural economy by purchasing farm surpluses, or with their personal nutritional requirements.' 345 F.Supp., at 313.
11
Thus, if it is to be sustained, the challenged classification must rationally further some legitimate governmental interest other than those specifically stated in the congressional 'declaration of policy.' Regrettably, there is little legislative history to illuminate the purposes of the 1971 amendment of § 3(e).6 The legislative history that does exist, however, indicates that that amendment was intended to prevent socalled 'hippies' and 'hippie communes' from participating in the food stamp program. See H.R.Conf.Rep.No.91—1793, p. 8; 116 Cong.Rec. 44439 (1970) (Sen. Holland). The challenged classification clearly cannot be sustained by reference to this congressional purpose. For if the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. As a result, '(a) purpose to discriminate against hippies cannot, in and of itself and without reference to (some independent) considerations in the public interest, justify the 1971 amendment.' 345 F.Supp. at 314 n. 11.
12
Although apparently conceding this point, the Government maintains that the challenged classification should nevertheless be upheld as rationally related to the clearly legitimate governmental interest in minimizing fraud in the administration of the food stamp program.7 In essence, the Government contends that, in adopting the 1971 amendment, Congress might rationally have thought (1) that households with one or more unrelated members are more likely than 'fully related' households to contain individuals who abuse the program by fraudulently failing to report sources of income or by voluntarily remaining poor; and (2) that such households are 'relatively unstable,' thereby increasing the difficulty of detecting such abuses. But even if we were to accept as rational the Government's wholly unsubstantiated assumptions concerning the differences between 'related' and 'unrelated' households we still could not agree with the Government's conclusion that the denial of essential federal food assistance to all otherwise eligible households containing unrelated members constitutes a rational effort to deal with these concerns.
13
At the outset, it is important to note that the Food Stamp Act itself contains provisions, wholly independent of § 3(e), aimed specifically at the problems of fraud and of the voluntarily poor. For example, with certain exceptions, § 5(c) of the Act, 7 U.S.C. § 2014(c), renders ineligible for assistance any household containing 'an able-bodied adult person between the ages of eighteen and sixty-five' who fails to register for, and accept, offered employment. Similarly, § 14(b) and (c), 7 U.S.C. § 2023(b) and (c), specifically impose strict criminal penalties upon any individual who obtains or uses food stamps fraudulently.8 The existence of these provisions necessarily casts considerable doubt upon the proposition that the 1971 amendment could rationally have been intended to prevent those very same abuses. See Eisenstadt v. Baird, 405 U.S. 438, 452, 92 S.Ct. 1029, 1037, 31 L.Ed.2d 349 (1972); cf. Dunn v. Blumstein, 405 U.S. 330, 353—354, 92 S.Ct. 995, 1008, 31 L.Ed.2d 274 (1972).
14
Moreover, in practical effect, the challenged classification simply does not operate so as rationally to further the prevention of fraud. As previously noted, § 3(e) defines an eligible 'household' as 'a group of related individuals . . . (1) living as one economic unit (2) sharing common cooking facilities (and 3) for whom food is customarily purchased in common.' Thus, two unrelated persons living together and meeting all three of these conditions would constitute a single household ineligible for assistance. If financially feasible, however, these same two individuals can legally avoid the 'unrelated person' exclusion simply by altering their living arrangements so as to eliminate any one of the three conditions. By so doing, they effectively create two separate 'households' both of which are eligible for assistance. See Knowles v. Butz, 358 F.Supp. 228 (ND Cal.1973). Indeed, as the California Director of Social Welfare has explained:9
15
'The 'related household' limitations will eliminate many households from eligibility in the Food Stamp Program. It is my understanding that the Congressional intent of the new regulations are specifically aimed at the 'hippies' and 'hippie communes.' Most people in this category can and will alter their living arrangements in order to remain eligible for food stamps. However, the AFDC mothers who try to raise their standard of living by sharing housing will be affected. They will not be able to utilize the altered living patterns in order to continue to be eligible without giving up their advantage of shared housing costs.'
16
Thus, in practical operation, the 1971 amendment excludes from participation in the food stamp program, not those persons who are 'likely to abuse the program,' but, rather, only those persons who are so desperately in need of aid that they cannot even afford to alter their living arrangements so as to retain their eligibility. Traditional equal protection analysis does not require that every classification be drawn with precise "mathematical nicety." Dandridge v. Williams, 397 U.S., at 485, 90 S.Ct., at 1161. But the classification here in issue is not only 'imprecise', it is wholly without any rational basis. The judgment of the District Court holding the 'unrelated person' provision invalid under the Due Process Clause of the Fifth Amendment is therefore affirmed.
17
Affirmed.
18
Mr. Justice DOUGLAS, concurring.
19
Appellee Jacinta Moreno is a 56-year-old diabetic who lives with Ermina Sanchez and the latter's three children. The two share common living expenses, Mrs. Sanchez helping to care for this appellee. Appellee's monthly income is $75, derived from public assistance, and Mrs. Sanchez' is $133, also derived from public assistance. This household pays $95 a month for rent, of which appellee pays $40, and $40 a month for gas and electricity, of which appellee pays $10. Appellee spends $10 a month for transportation to a hospital for regular visits and $5 a month for laundry. That leaves her $10 a month for food and other necessities. Mrs. Sanchez and the three children received $108 worth of food stamps per month for $18. But under the 'unrelated' person provision of the Act,1 she will be cut off if appellee Moreno continues to live with her.
20
Appellee Sheilah Hejny is married and has three children, ages two to five. She and her husband took in a 20-year-old girl who is unrelated to them. She shares in the housekeeping. The Hejnys pay $14 a month and receive $144 worth of food stamps. The Hejnys comprise an indigent household. But if they allow the 20-year-old girl to live with them, they too will be cut off from food stamps by reason of the 'unrelated' person provision.
21
Appellee Keppler has a daughter with an acute hearing deficiency who requires instruction in a school for the deaf. The school is in an area where the mother cannot afford to live. So she and her two minor children moved into a nearby apartment with a woman who, like appellee Keppler, is on public assistance but who is not related to her. As a result appellee Keppler's food stamps have been cut off because of the 'unrelated' person provision.
22
These appellees instituted a class action to enjoin the enforcement of the 'unrelated' person provision of the Act.
23
The 'unrelated' person provision of the Act creates two classes of persons for food stamp purposes: one class is composed of people who are all related to each other and all in dire need; and the other class is composed of households that have one or more persons unrelated to the others but have the same degree of need as those in the first class. The first type of household qualifies for relief, the second cannot qualify, no matter the need. It is that application of the Act which is said to violate the conception of equal protection that is implicit in the Due Process Clause of the Fifth Amendment. Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884.
24
The test of equal protection is whether the legislative line that is drawn bears 'some rational relationship to a legitimate' governmental purpose.2 Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 172, 92 S.Ct. 1400, 1405, 31 L.Ed.2d 768. The requirement of equal protection denies government 'the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective' of the enactment. Reed v. Reed, 404 U.S. 71, 75—76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225.
25
This case involves desperately poor people with acute problems who, though unrelated, come together for mutual help and assistance. The choice of one's associates for social, political, race, or religious purposes is basic in our constitutional scheme. NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488; De Jonge v. Oregon, 299 U.S. 353, 363, 57 S.Ct. 255, 259, 81 L.Ed. 278; NAACP v. Button, 371 U.S. 415, 429—431, 83 S.Ct. 328, 9 L.Ed.2d 405; Gibson v. Florida Legislative Committee, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929, NAACP v. Alabama, 377 U.S. 288, 84 S.Ct. 1302, 12 L.Ed.2d 325. It extends to 'the associational rights of the members' of a trade union. Brotherhood of Railroad Trainmen v. Virginia Bar, 377 U.S. 1, 8, 84 S.Ct. 1113, 1117, 12 L.Ed.2d 89.
26
I suppose no one would doubt that an association of people working in the poverty field would be entitled to the same constitutional protection as those working in the racial, banking, or agricultural field. I suppose poor people holding a meeting or convention would be under the same constitutional umbrella as others. The dimensions of the 'unrelated' person problem under the Food Stamp Act are in that category. As the facts of this case show, the poor are congregating in households where they can better meet the adversities of poverty. This banding together is an expression of the right of freedom of association that is very deep in our traditions.
27
Other like rights have been recognized that are only peripheral First Amendment rights—the right to send one's child to a religious school, the right to study the German language in a private school, the protection of the entire spectrum of learning, teaching, and communicating ideas, the marital right of privacy. Griswold v. Connecticut, 381 U.S. 479, 482—483, 85 S.Ct. 1678, 1680, 14 L.Ed.2d 510.
28
As the examples indicate, these peripheral constitutional rights are exercised not necessarily in assemblies that congregate in halls or auditoriums but in discrete individual actions such as parents placing a child in the school of their choice. Taking a person into one's home because he is poor or needs help or brings happiness to the household is of the same dignity.
29
Congress might choose to deal only with members of a family of one or two or three generations, treating it all as a unit. Congress, however, has not done that here. Concededly an individual living alone is not disqualified from the receipt of food stamp aid, even though there are other members of the family with whom he might theoretically live. Nor are common-law couples disqualified: they, like individuals living alone, may qualify under the Act if they are poor—whether they have abandoned their wives and children and however antifamily their attitudes may be. In other words, the 'unrelated' person provision was not aimed at the maintenance of normal family ties. It penalizes persons or families who have brought under their roof an 'unrelated' needy person. It penalizes the poorest of the poor for doubling up against the adversities of poverty.
30
But for the constitutional aspects of the problem, the 'unrelated' person provision of the Act might well be sustained as a means to prevent fraud. Fraud is a concern of the Act. 7 U.S.C. § 2023(b) and (c). Able-bodied persons must register and accept work or lose their food stamp rights. 7 U.S.C. § 2014(c). I could not say that this 'unrelated' person provision has no 'rational' relation to control of fraud. We deal here, however, with the right of association, protected by the First Amendment. People who are desperately poor but unrelated come together and join hands with the aim better to combat the crises of poverty. The need of those living together better to meet those crises is denied, while the need of households made up of relatives that is no more acute is serviced. Problems of the fisc, as we stated in Shapiro v. Thompson, 394 U.S. 618, 633, 89 S.Ct. 1322, 1330, 22 L.Ed.2d 600, are legitimate concerns of government. But government 'may not accomplish such a purpose by invidious distinctions between classes of its citizens.' Ibid.
31
The legislative history of the Act indicates that the 'unrelated' person provision of the Act was to prevent 'essentially unrelated individuals who voluntarily chose to cohabit and live off food stamps'3—so-called 'hippies' or 'hippy communes'—from participating in the food stamp program. As stated in the Conference Report,4 the definition of household was 'designed to prohibit food stamp assistance to communal 'families' of unrelated individuals.'
32
The right of association, the right to invite the stranger into one's home is too basic in our constitutional regime to deal with roughshod. If there are abuses inherent in that pattern of living against which the food stamp program should be protected, the Act must be 'narrowly drawn,' Cantwell v. Connecticut, 310 U.S. 296, 307, 60 S.Ct. 900, 904, 84 L.Ed. 1213, to meet the precise end. The method adopted and applied to these cases makes § 3(e) of the Act unconstitutional by reason of the invidious discrimination between the two classes of needy persons.
33
Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491, is not opposed. It sustained a Maryland grant of welfare, against the claim of violation of equal protection, which placed an upper limit on the monthly amount any single family could receive. The claimants had large families so that their standard of need exceeded the actual grants. Their claim was that the grants of aid considered in light of the size of their families created an invidious discrimination against them and in favor of small needy families. The claim was rejected on the basis that state economic or social legislation had long been judged by a less strict standard than comes into play when constitutionally protected rights are involved. Id., at 484—485, 90 S.Ct., at 1161. Laws touching social and economic matters can pass muster under the Equal Protection Clause though they are imperfect, the test being whether the classification has some 'reasonable basis.' Ibid. Dandridge held that 'the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy.' Id., at 486, 90 S.Ct., at 1162. But for the First Amendment aspect of the case, Dandridge would control here.
34
Dandridge, however, did not reach classifications touching on associational rights that lie in the penumbra of the First Amendment. Since the 'unrelated' person provision is not directed to the maintenance of the family as a unit but treats impoverished households composed of relatives more favorably than impoverished households having a single unrelated person, it draws a line that can be sustained only on a showing of a 'compelling' governmental interest.
35
The 'unrelated' person provision of the present Act has an impact on the rights of people to associate for lawful purposes with whom they choose. When state action 'may have the effect of curtailing the freedom to associate' it 'is subject to the closest scrutiny.' NAACP v. Alabama, 357 U.S., at 460—461, 78 S.Ct., at 1171. The 'right of the people peaceably to assemble' guaranteed by the First Amendment covers a wide spectrum of human interests—including, as stated in id., at 460, 78 S.Ct., at 1171, 'political, economic, religious, or cultural matters.' Banding together to combat the common foe of hunger is in that category. The case therefore falls within the zone represented by Shapiro v. Thompson, supra, which held that a waiting period on welfare imposed by a State on the 'in-migration of indigents' penalizing the constitutional right to travel could not be sustained absent a 'compelling governmental interest.' Id., at 631, 634, 89 S.Ct., at 1329, 1331.
36
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE concurs, dissenting.
37
For much the same reasons as those stated in my dissenting opinion in United States Department of Agriculture v. Murry, 413 U.S. 508, 522, 93 S.Ct. 2832, 2840, 37 L.Ed.2d 767, I am unable to agree with the Court's disposition of this case. Here appellees challenged a provision in the Federal Food Stamp Act, 7 U.S.C. § 2011 et seq., which limited food stamps to related people living in one 'household.' The result of this provision is that unrelated persons who live under the same roof and pool their resources may not obtain food stamps even though otherwise eligible.
38
The Court's opinion would make a very persuasive congressional committee report arguing against the adoption of the limitation in question. Undoubtedly, Congress attacked the problem with a rather blunt instrument and, just as undoubtedly, persuasive arguments may be made that what we conceive to be its purpose will not be significantly advanced by the enactment of the limitation. But questions such as this are for Congress, rather than for this Court; our role is limited to the determination of whether there is any rational basis on which Congress could decide that public funds made available under the food stamp program should not go to a household containing an individual who is unrelated to any other member of the household.
39
I do not believe that asserted congressional concern with the fraudulent use of food stamps is, when interpreted in the light most favorable to sustaining the limitation, quite as irrational as the Court seems to believe. A basic unit which Congress has chosen for determination of availability for food stamps is the 'household,' a determination which is not criticized by the Court. By the limitation here challenged, it has singled out households which contain unrelated persons and made such households ineligible. I do not think it is unreasonable for Congress to conclude that the basic unit which it was willing to support with federal funding through food stamps is some variation on the family as we know it—a household consisting of related individuals. This unit provides a guarantee which is not provided by households containing unrelated individuals that the household exists for some purpose other than to collect federal food stamps.
40
Admittedly, as the Court points out, the limitation will make ineligible many households which have not been formed for the purpose of collecting federal food stamps, and will at the same time not wholly deny food stamps to those households which may have been formed in large part to take advantage of the program. But, as the Court concedes, '(t)raditional equal protection analysis does not require that every classification be drawn with precise 'mathematical nicety," ante, p. 538. And earlier this term, the constitutionality of a similarly 'imprecise' rule promulgated pursuant to the Truth in Lending Act was challenged on grounds such as those urged by appellees here. In Mourning v. Family Publications Service, Inc., 411 U.S. 356, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973), the imposition of the rule on all members of a defined class was sustained because it served to discourage evasion by a substantial portion of that class of disclosure mechanisms chosen by Congress for consumer protection.
41
The limitation which Congress enacted could, in the judgment of reasonable men, conceivably deny food stamps to members of households which have been formed solely for the purpose of taking advantage of the food stamp program. Since the food stamp program is not intended to be a subsidy for every individual who desires low-cost food, this was a permissible congressional decision quite consistent with the underlying policy of the Act. The fact that the limitation will have unfortunate and perhaps unintended consequences beyond this does not make it unconstitutional.
1
78 Stat. 703 (emphasis added). The act provided further that '(t)he term 'household' shall also mean a single individual living alone who has cooking facilities and who purchases and prepares food for home consumption.' Ibid.
2
84 Stat. 2048. The 1971 amendment did not affect certain groups of nonrelated individuals over 60 years of age. As amended, § 3(e) now provides:
'The term 'household' shall mean a group of related individuals (including legally adopted children and legally assigned foster children) or non-related individuals over age 60 who are not residents of an institution or boarding house, but are living as one economic unit sharing common cooking facilities and for whom food is customarily purchased in common. The term 'household' shall also mean (1) a single individual living alone who has cooking facilities and who purchases and prepares food for home consumption, or (2) an elderly person who meets the requirements of section 2019(h) of this title.' 7 U.S.C. § 2012(e).
3
Title 7 CFR § 270.2(jj) provides:
'(jj) 'Household' means a group of persons, excluding roomers, boarders, and unrelated live-in attendants necessary for medical, housekeeping, or child care reasons, who are not residents of an institution or boarding house, and who are living as one economic unit sharing common cooking facilities and for whom food is customarily purchased in common: Provided, That:
'(1) When all persons in the group are under 60 years of age, they are all related to each other; and
'(2) When more than one of the persons in the group is under 60 years of age, and one or more other persons in the group is 60 years of age or older, each of the persons under 60 years of age is related to each other or to at least one of the persons who is 60 years of age or older.
'It shall also mean (i) a single individual living alone who purchases and prepares food for home consumption, or (ii) an elderly person as defined in this section, and his spouse.'
4
Appellees also argued that the regulations themselves were invalid because beyond the scope of the authority conferred upon the Secretary by the statute. The District Court rejected that contention, and appellees have not pressed that argument on appeal. Moreover, appellees did not challenge the constitutionality of the statute's reliance on 'households' rather than 'individuals' as the basic unit of the food stamp program. We therefore intimate no view on that question.
5
'(W)hile the Fifth Amendment contains no equal protection clause, it does forbid discrimination and is 'so unjustifiable as to be violative of due process." Schneider v. Rusk, 377 U.S. 163, 168, 84 S.Ct. 1187, 1190, 12 L.Ed.2d 218 (1964); see Frontiero v. Richardson, 411 U.S. 677, 680 n. 5, 93 S.Ct. 1764, 1767 n. 5, 36 L.Ed.2d 583 (1973); Shapiro v. Thompson, 394 U.S. 618, 641—642, 89 S.Ct. 1322, 1335, 22 L.Ed.2d 600 (1969); Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954).
6
Indeed, the amendment first materialized, bare of committee consideration, during a conference committee's consideration of differing House and Senate bills.
7
The Government initially argued to the District Court that the challenged classification might be justified as a means to foster 'morality.' In rejecting that contention, the District Court noted that 'interpreting the amendment as an attempt to regulate morality would raise serious constitutional questions.' 345 F.Supp. 310, 314. Indeed, citing this Court's decisions in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), and Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), the District Court observed that it was doubtful at best, whether Congress, 'in the name of morality,' could 'infringe the rights to privacy and freedom of association in the home.' 345 F.Supp., at 314. (Emphasis in original.) Moreover, the court also pointed out that the classification established in § 3(e) was not rationally related 'to prevailing notions of morality, since it in terms disqualifies all households of unrelated individuals, without reference to whether a particular group contains both sexes.' Id., at 315 of 345 F.Supp. The Government itself has now abandoned the 'morality' argument. See Brief for Appellants 9.
8
Title 7 U.S.C. § 2023(b) and (c) provide:
'(b) Whoever knowingly uses, transfers, acquires, alters, or possesses coupons or authorization to purchase cards in any manner not authorized by this (Act) or the regulations issued pursuant to this (Act) shall, if such coupons or authorization to purchase cards are of the value of $100 or more, be guilty of a felony and shall, upon conviction thereof, be fined not more than $10,000 or imprisoned for not more than five years or both, or, if such coupons or authorization to purchase cards are of a value of less than $100, shall be guilty of a misdemeanor and shall, upon conviction thereof, be fined not more than $5,000 or imprisoned for not more than one year, or both.
'(c) Whoever presents, or causes to be presented, coupons for payment or redemption of the value of $100 or more, knowing the same to have been received, transferred, or used in any manner in violation of the provisions of this (Act) or the regulations issued pursuant to the (Act) shall be guilty of a felony and shall, upon conviction thereof, be fined not more than $10,000 or imprisoned for not more than five years, or both, or, if such coupons are of a value less than $100, shall be guilty of a misdemeanor and shall, upon conviction thereof, be fined not more than $5,000 or imprisoned for not more than one year, or both.'
9
App. 43.
1
Section 3(e) of the Food Stamp Act provides in relevant part:
'The term 'household' shall mean a group of related individuals (including legally adopted children and legally assigned foster children) or non-related individuals over age 60 who are not residents of an institution or boarding house, but are living as one economic unit sharing common cooking facilities and for whom food is customarily purchased in common.' 7 U.S.C. § 2012(e).
The Regulations provide: "Household' means a group of persons excluding roomers, boarders, and unrelated live-in attendants necessary for, medical housekeeping, or child care reasons, who are not residents of an institution or boarding house, and who are living as one economic unit sharing common cooking facilities and for whom food is customarily purchased in common: Provided, That:
'(1) When all persons in the group are under 60 years of age, they are all related to each other; and
'(2) When more than one of the persons in the group is under 60 years of age, and one or more other persons in the group is 60 years of age or older, each of the persons under 60 years of age is related to each other or to at least one of the persons who is 60 years of age or older.' 7 CFR § 270.2(jj).
'Eligibility for and participation in the program shall be on a household basis. All persons, excluding roomers, boarders, and unrelated live-in attendants necessary for medical, housekeeping, or child care reasons, residing in common living quarters shall be consolidated into a group prior to determining if such a group is a household as determined in § 270.2(jj) of this subchapter.' 7 CFR § 271.3(a).
2
The purpose of the present Act was stated by Congress:
'(T)o safeguard the health and well-being of the Nation's population and raise levels of nutrition among low-income households. The Congress hereby finds that the limited food purchasing power of low-income households contributes to hunger and malnutrition among members of such households. The Congress further finds that increased utilization of food in establishing and maintaining adequate national levels of nutrition will promote the distribution in a beneficial manner of our agricultural abundances and will strengthen our agricultural economy, as well as result in more orderly marketing and distribution of food. To alleviate such hunger and malnutrition, a food stamp program is herein authorized which will permit low-income households to purchase a nutritionally adequate diet through normal channels of trade.' 7 U.S.C. § 2011. (Italics added.)
3
See 116 Cong.Rec. 42003.
4
H.R.Conf.Rep.No.91—1793, p. 8.
| 12
|
37 L.Ed.2d 996
93 S.Ct. 2820
413 U.S. 838
Donald W. FAUSNER et ux.v.COMMISSIONER OF INTERNAL REVENUE.
No. 72—1396.
June 25, 1973.
Rehearing Denied Oct. 9, 1973.
See 414 U.S. 882, 94 S.Ct. 43.
PER CURIAM.
1
Petitioner Donald Fausner, a commercial airlines pilot, who regularly traveled by private automobile from his home to his place of employment and back again, a round trip of approximately 84 miles, sought to deduct the entire cost of commuting under § 162(a) of the Internal Revenue Code of 1954, on the theory that his automobile expenses were incurred to transport his flight bag and overnight bag and thus constituted ordinary and necessary business expenses. It is not disputed that petitioner would have commuted by private automobile regardless of whether he had to transport his two bags. The Tax Court disallowed the deduction in toto. On appeal, the Court of Appeals for the Fifth Circuit affirmed the decision of the Tax Court. 472 F.2d 561.
2
This issue has been addressed by two other circuits, Sullivan v Commissioner of Internal Revenue, 368 F.2d 1007 (CA2 1966), and Tyne v. Commissioner of Internal Revenue, 385 F.2d 40 (CA7 1967). Both of these circuits concluded that some allocable portion of the expenses incurred could be deducted as an ordinary and necessary business expense. The Court of Appeals for the Fifth Circuit refused to follow those cases on the ground that there was no rational basis for any allocation between the nondeductible commuting component and the deductible business component of the total expense.
3
As the Court of Appeals indicated, Congress has determined that all taxpayers shall bear the expense of commuting to and from work without receiving a deduction for that expense. We cannot read § 262 of the Internal Revenue Code1 as excluding such expense from 'personal' expenses because by happenstance the taxpayer must carry incidentals of his occupation with him. Additional expenses may at times be incurred for transporting job-required tools and material to and from work.2 Then an allocation of costs between 'personal' and 'business' expenses3 may be feasible. But no such allocation can be made here.
4
We grant the petition for certiorari and affirm the judgment below.
5
Judgment affirmed.
6
Mr. Justice BLACKMUN would grant the petition for a writ of certiorari and set the case for oral argument.
1
'Except as otherwise expressly provided in this chapter, no deduction shall be allowed for personal, living, or family expenses.' 26 U.S.C. § 262.
2
See Rev.Rul. 63—100, 1963—1 Cum.Bull. 34.
3
Sec. 162(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 162(a).
| 1112
|
413 U.S. 548
93 S.Ct. 2880.
37 L.Ed.2d 796
UNITED STATES CIVIL SERVICE COMMISSION et al., Appellants,v.NATIONAL ASSOCIATION OF LETTER CARRIERS AFL-CIO, et al.
No. 72—634.
Argued March 26, 1973.
Decided June 25, 1973.
Syllabus
Some individual federal employees, an employees' union, and certain local Democratic and Republican political committees filed this action challenging as unconstitutional on its face the prohibition in § 9(a) of the Hatch Act, 5 U.S.C. § 7324(a)(2), against federal employees' taking 'an active part in political management or in political campaigns.' The section defines the phrase as 'those acts of political management or political campaigning which were prohibited on the part of employees in the competitive service before July 19, 1940, by determinations of the Civil Service Commission under the rules prescribed by the President.' The three-judge District Court recognized the 'well-established governmental interest in restricting political activities by federal employees,' but held that the statutory definition of 'political activity,' the constitutionality of which was left open in United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754, was vague and overbroad, and thus unconstitutional. Held:
1. The holding of Mitchell, supra, that federal employees can be prevented from holding a party office, working at the polls, and acting as party paymaster for other party workers is reaffirmed. Congress can also constitutionally forbid federal employees from engaging in plainly identifiable acts of political management and political campaigning, such as organizing a political party or club; actively participating in fund-raising activities for a partisan candidate or political party; becoming a partisan candidate for, or campaigning for, an elective public office; actively managing the campaign of a partisan candidate for public office; initiating or circulating a partisan nominating petition or soliciting votes for a partisan candidate for public office; or serving as a delegate, alternate, or proxy to a political party convention. Pp. 554—567.
2. It is the Civil Service Commission's regulations regarding political activity, the legitimate descendants of the 1940 restatement adopted by the Congress, and, in most respects the reflection of longstanding interpretations of the statute by the agency charged with its interpretation and enforcement, and the statute itself, that are the bases for rejecting the claim that the Act is unconstitutionally vague and overbroad. Pp. 568—581.
(a) The regulations specifying the various activities deemed prohibited by § 7324(a)(2) are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and observe, without sacrifice to the public interest, and are not impermissibly vague. Pp. 575—580.
(b) There is nothing fatally overbroad about the statute considered in connection with the Civil Service Commission's construction of its terms represented by the current regulations. The restrictions on endorsements in advertisements, broadcasts, and literature, and on speaking at political party meetings in support of partisan candidates for public or party office, the major areas of difficulty, are clearly stated, are normally performed only in the context of partisan campaigns by one taking an active role in them, and are sustainable just as the other acts of political campaigning are constitutionally proscribable. They do not, therefore, render the rest of the statute vulnerable for overbreadth. P. 580.
(c) Even if the provisions forbidding partisan campaign endorsements and speechmaking were to be considered in some respects constitutionally overbroad, they would not invalidate the entire statute. Pp. 580—581.
346 F.Supp. 578, reversed.
Sol. Gen. Erwin N. Griswold for appellants.
Thomas C. Matthews, Jr., Washington, D.C., for appellees.
Mr. Justice WHITE delivered the opinion of the Court.
1
On December 11, 1972, we noted probable jurisdiction of this appeal, 409 U.S. 1058, 93 S.Ct. 560, 34 L.Ed.2d 510, based on a jurisdictional statement presenting the single question whether the prohibition in § 9(a) of the Hatch Act, now codified in 5 U.S.C. § 7324(a)(2), against federal employees taking 'an active part in political management or in political campaigns,' is unconstitutional on its face. Section 7324(a) provides:
2
'An employee in an Executive agency or an individual employed by the government of the District of Columbia may not—
3
'(1) use his official authority or influence for the purpose of interfering with or affecting the result of an election; or
4
'(2) take an active part in political management or in political campaigns. 'For the purpose of this subsection, the phrase 'an active part in political management or in political campaigns' means those acts of political management or political campaigning which were prohibited on the part of employees in the competitive service before July 19, 1940, by determinations of the Civil Service Commission under the rules prescribed by the President.'1
5
A divided three-judge court sitting in the District of Columbia had held the section unconstitutional. 346 F.Supp. 578 (1972). We reverse the judgment of the District Court.
6
* The case began when the National Association of Letter Carriers, six individual federal employees and certain local Democratic and Republican political committees filed a complaint, asserting on behalf of themselves and all federal employees that 5 U.S.C. § 7324(a)(2) was unconstitutional on its face and seeking an injunction against its enforcement.2
7
Each of the plaintiffs alleged that the Civil Service Commission was enforcing, or threatening to enforce, the Hatch Act's prohibition against active participation in political management or political campaigns with respect to certain defined activity in which that plaintiff desired to engage.3 The Union, for example, stated among other things that its members desired to campaign for candidates for public office. The Democratic and Republican Committees complained of not being able to get federal employees to run for state and local offices. Plaintiff Hummel stated that he was aware of the provision of the Hatch Act and that the activities he desired to engage in would violate that Act as, for example, his participating as a delegate in a party convention or holding office in a political club.
8
A three-judge court was convened, and the case was tried on both stipulated evidence and oral testimony. The District Court then ruled that § 7234(a)(2) was unconstitutional on its face and enjoined its enforcement. The court recognized the 'well-established governmental interest in restricting political activities by federal employees which (had been) asserted long before enactment of the Hatch Act,' 346 F.Supp., at 579, as well as the fact that the 'appropriateness of this governmental objective was recognized by the Supreme Court of the United States when it endorsed the objectives of the Hatch Act. United Public Workers v. Mitchell, 330 U.S. 75 (67 S.Ct. 556, 91 L.Ed. 754) . . . (1947) . . ..' Id., at 580. The District Court ruled, however, that United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947), left open the constitutionality of the statutory definition of 'political activity,' 346 F.Supp., at 580, and proceeded to hold that definition to be both vague and overbroad, and therefore unconstitutional and unenforceable against the plaintiffs in any respect. The District Court also added, id., at 585, that even if the Supreme Court in Mitchell could be said to have upheld the definitional section in its entirety, later decisions had so eroded the holding that it could no longer be considered binding on the District Court.
II
9
As the District Court recognized, the constitutionality of the Hatch Act's ban on taking an active part in political management or political campaigns has been here before. This very prohibition was attacked in the Mitchell case by a labor union and various federal employees as being violative of the First, Ninth, and Tenth Amendments and as contrary to the Fifth Amendment by being vague and indefinite, arbitrarily discriminatory, and a deprivation of liberty. The Court there first determined that with respect to all but one of the plaintiffs there was no case or controversy present within the meaning of Art. III because the Court could only speculate as to the type of political activity the appellants there desired to engage in or as to the contents of their proposed public statements or the circumstances of their publication. As to the plaintiff Poole, however, the Court noted that '(h)e was a ward executive committeeman of a political party and was politically active on election day as a worker at the polls and a paymaster for the services of other party workers.' 330 U.S., at 94, 67 S.Ct., at 566. Plainly, the Court thought, these activities fell within the prohibition of § 9(a) of the Hatch Act against taking an active part in political management or political campaigning; and '(t)hey (were) also covered by the prior determinations of the (Civil Service) Commission,' id., at 103, 67 S.Ct., at 571 (footnote omitted), as incorporated by § 15 of the Hatch Act,4 the Court relying on a Civil Service Commission publication, Political Activity and Political Assessments, Form 1236, Sept. 1939, for the latter conclusion. Id., at 103, n. 38, 67 S.Ct., at 571. Poole's complaint thus presented a case or controversy for decision, the question being solely whether the Hatch Act 'without violating the Constitution, (could make this conduct) the basis for disciplinary action.' Id., at 94, 67 S.Ct., at 567. The Court held that it could. '(T)he practice of excluding classified employees from party offices and personal political activity at the polls ha(d) been in effect for several decades,' id., at 96, 67 S.Ct., at 568, and the Court, over a single dissent, in Ex parte Curtis, 106 U.S. 371, 1 S.Ct. 381, 27 L.Ed. 232 (1882), had previously upheld the longstanding prohibition forbidding federal employees 'from giving or receiving money for political purposes from or to other employees of the government,' 330 U.S., at 967, 67 S.Ct., at 568. 'The conviction that an actively partisan governmental personnel threatens good administration has deepened since . . . Curtis,' id., at 97—98, 67 S.Ct., at 568—569, Congress having recognized the 'danger to the service in that political rather than official effort may earn advancement and to the public in that governmental favor may be channeled through political connections.' Id., at 98, 67 S.Ct., at 569 (footnote omitted).
10
The Government, the Court thought, was empowered to prevent federal employees from contributing energy as well as from collecting money for partisan political ends: 'Congress and the President are responsible for an efficient public service. If, in their judgment, efficiency may be best obtained by prohibiting active participation by classified employees in politics as party officers or workers, we see no constitutional objection.' Id., at 99, 67 S.Ct., at 569 (footnote omitted). Another Congress might determine otherwise, but '(t)he teaching of experience . . . evidently led Congress to enact the Hatch Act,' id., at 99, 67 S.Ct., at 569, which the Court refused to invalidate and which it viewed as leaving 'untouched full participation by employees in political decisions at the ballot box and forbids only the partisan activity of federal personnel deemed offensive to efficiency.' Ibid. The Act did not interfere with a 'wide range of public activities.' Id., at 100, 67 S.Ct., at 570. It was 'only partisan political activity that is interdicted. . . . (Only) active participation in political management and political campaigns (is proscribed). Expressions, public or private, on public affairs, personalities and matters of public interest, not an objective of party action, are unrestricted by law so long as the Government employee does not direct his activities toward party success.' Ibid. The Court concluded that what Mr. Poole had done was within the power of Congress and the Executive to prevent.
11
We unhesitatingly reaffirm the Mitchell holding that Congress had, and has, the power to prevent Mr. Poole and others like him from holding a party office, working at the polls, and acting as party paymaster for other party workers. An Act of Congress going no farther would in our view unquestionably be valid. So would it be if, in plain and understandable language, the statute forbade activities such as organizing a political party or club; actively participating in fund-raising activities for a partisan candidate or political party; becoming a partisan candidate for, or campaigning for, an elective public office; actively managing the campaign of a partisan candidate for public office; initiating or circulating a partisan nominating petition or soliciting votes for a partisan candidate for public office; or serving as a delegate, alternate or proxy to a political party convention. Our judgment is that neither the First Amendment nor any other provision of the Constitution invalidates a law barring this kind of partisan political conduct by federal employees.
12
* Such decision on our part would no more than confirm the judgment of history, a judgment made by this country over the last century that it is in the best interest of the country, indeed essential, that federal service should depend upon meritorious performance rather than political service, and that the political influence of federal employees on others and on the electoral process should be limited. That this judgment eventuated is indisputable, and the major steps in reaching it may be simply and briefly set down.
13
Early in our history, Thomas Jefferson was disturbed by the political activities of some of those in the Executive Branch of the Government. See 10 J. Richardson, Messages and Papers of the Presidents 98 (1899). The heads of the executive departments, in response to his directive, issued an order stating in part that '(t)he right of any officer to give his vote at elections as a qualified citizen is not meant to be restrained, nor, however given, shall it have any effect to his prejudice; but it is expected that he will not attempt to influence the votes of others nor take any part in the business of electioneering, that being deemed inconsistent with the spirit of the Constitution and his duties to it.' Id., at 98—99.5
14
There were other voices raised in the 19th century against the mixing of partisan politics and routine federal service. But until after the Civil War, the spoils system under which federal employees came and went, depending upon party service and changing administrations, rather than meritorious performance, was much the vogue and the prevalent basis for governmental employment and advancement. 1 Report of Commission on Political Activity of Government Personnel, Findings and Recommendations 7—8 (1968). That system did not survive. Congress authorized the President to prescribe regulations for the creation of a civil service of federal employees in 1871, 16 Stat. 514; but it was the Civil Service Act of 1883, c. 27, 22 Stat. 403, known as the Pendleton Act, H. Kaplan, The Law of Civil Service 9—10 (1958), that declared that 'no person in the public service is for that reason under any obligations to contribute to any political fund, or to render any political service' and that 'no person in said service has any right to use his official authority or influence to coerce the political action of any person or body.' 22 Stat. 404. That Act authorized the President to promulgate rules to carry the Act into effect and created the Civil Service Commission as the agency or administrator of the Act under the rules of the President.
15
The original Civil Service rules were promulgated on May 7, 1883, by President Arthur. Civil Service Rule I repeated the language of the Act that no one in the executive service should use his official authority or influence to coerce any other person or to interfere with an election, but went no further in restricting the political activities of federal employees. 8 J. Richardson, Messages and Papers of the Presidents 161 (1899). Problems with political activity continued to arise, Twenty-fourth Annual Report of the Civil Service Commission 7—9 (1908),6 and one form of remedial action was taken in 1907 when, in accordance with Executive Order 642 issued by President Theodore Roosevelt, 1 Report of Commission on Political Activity, supra, at 9, § 1 of Rule I was amended to read as follows:
16
'No person in the Executive civil service shall use his official authority or influence for the purpose of interfering with an election or affecting the result thereof. Persons who, by the provisions of these rules are in the competitive classified service, while retaining the right to vote as they please and to express privately their opinions on all political subjects, shall take no active part in political management or in political campaigns.' Twenty-fourth Annual Report of the Civil Service Commission, supra, at 104 (emphasis added).
17
It was under this rule that the Commission thereafter exercised the authority it had to investigate, adjudicate, and recommend sanctions for federal employees thought to have violated the rule. See Howard, Federal Restrictions on the Political Activity of Government Employees, 35 Am.Pol.Sci.Rev. 470, 475 (1941). In the course of these adjudications, the Commission identified and developed a body of law with respect to the conduct of federal employees that was forbidden by the prohibition against taking an active part in political management or political campaigning. Adjudications under Civil Service Rule I spelled out the scope and meaning of the rule in the mode of the common law, 86 Cong.Rec. 2341—2342; and the rules fashioned in this manner were from time to time stated and restated by the Commission for the guidance of the federal establishment. Civil Service Form 1236 of September 1939, for example, purported to publish and restate the law of 'Political Activity and Political Assessments' for federal officeholders and employees.
18
Civil Service Rule I covered only the classified service. The experience of the intervening years, particularly that of the 1936 and 1938 political campaigns, convinced a majority in Congress that the prohibition against taking an active part in political management and political campaigns should be extended to the entire federal service. 84 Cong.Rec. 4303, 9595, 9604, and 9610. A bill introduced for this purpose, S.1871, 'to prevent pernicious political activities,' easily passed the Senate, 84 Cong.Rec. 4191—4192; but both the constitutionality and the advisability of purporting to restrict the political activities of employees were heatedly debated in the House. Id., at 9594—9639. The bill was enacted, however. 53 Stat. 1147. This was the so-called Hatch Act, named after the Senator who was its chief proponent. In its initial provisions, §§ 1 and 2, it forbade anyone from coercing or interfering with the vote of another person and prohibited federal employees from using their official positions to influence or interfere with or affect the election or nomination of certain federal officials. Sections 3 and 4 of the Act prohibited the promise of, or threat of termination of, employment or compensation for the purpose of influencing or securing political activity, or support or opposition for any candidate.
19
Section 9(a), which provided the prohibition against political activity now found in 5 U.S.C. § 7324(a)(2), with which we are concerned in this case, essentially restated Civil Service Rule I, with an important exception. It made it
20
'unlawful for any person employed in the executive branch of the Federal Government, or any agency or department thereof, to use his official authority or influence for the purpose of interfering with an election or affecting the result thereof. No officer or employee in the executive branch of the Federal Government, or any agency or department thereof, shall take any active part in political management or in political campaigns. All such persons shall retain the right to vote as they may choose and to express their opinions on all political subjects.'
21
Excepted from the restriction were the President, Vice President, and specified officials in policy-making positions. Section 9(b) required immediate removal for violators and forbade the use of appropriated funds thereafter to pay compensation to such persons.
22
Section 9 differed from Civil Service Rule I in important respects. It applied to all persons employed by the Federal Government, with limited exceptions; it made dismissal from office mandatory upon an adjudication of a violation; and, whereas Civil Service Rule I had stated that persons retained the right to express their private opinions on all political subjects, the statute omitted the word 'private' and simply privileged all employees 'to express their opinions on all political subjects.'
23
On the day prior to signing the bill, President Franklin Roosevelt sent a message to Congress stating his conviction that the bill was constitutional and recommending that Congress at its next session consider extending the Act to state and local government employees. 84 Cong.Rec. 10745—10747 and 10875. This, Congress quickly proceeded to do. The Act of July 19, 1940, c. 640, 54 Stat. 767, extended the Hatch Act to officers and employees of state and local agencies 'whose principal employment is in connection with any activity which is financed in whole or in part by loans or grants made by the United States . . ..' The Civil Service Commission was empowered under § 12(b) to investigate and adjudicate violations of the Act by state and local employees. Also relevant for present purposes, § 9(a) of the Hatch Act was amended so that all persons covered by the Act were free to 'express their opinions on all political subjects and candidates.' (Emphasis added.) Moreover, § 15 defined § 9(a)'s prohibition against taking an active part in political management or in political campaigns as proscribing 'the same activities on the part of such persons as the United States Civil Service Commission has heretofore determined are at the time this section takes effect prohibited on the part of employees in the classified civil service of the United States by the provisions of the civil-service rules prohibiting such employees from taking any active part in political management or in political campaigns.' Under § 18 now 5 U.S.C. § 7326, the prohibition against political activity was not to be construed to prohibit political activity in non-partisan elections or in connection with questions not specifically identified with any national or state political party, such as 'questions relating to constitutional amendments, referendums, approval of municipal ordinances, and others of a similar character . . ..'7
24
In 1950, § 9(b), of the Act, requiring removal from office for violating the Act, was amended by providing that the Commission by unanimous vote could impose a lesser penalty, but in no case less than 90 days' suspension without pay. 64 Stat. 475. The minimum sanction was reduced to 30 days' suspension without pay in 1962. 76 Stat. 750.
25
In 1966, Congress determined to review the restrictions of the Hatch Act on the partisan political activities of public employees. For this purpose, the Commission on Political Activity of Government Personnel was created.
26
80 Stat. 868. The Commission reported in 1968, recommending some liberalization of the political-activity restrictions on federal employees, but not abandoning the fundamental decision that partisan political activities by government employees must be limited in major respects. 1 Report of Commission on Political Activity of Government Personnel, supra. Since that time, various bills have been introduced in Congress, some following the Commission's recommendations8 and some proposing much more substantial revisions of the Hatch Act.9 In 1972, hearings were held on some proposed legislation; but no new legislation has resulted.10
27
This account of the efforts by the Federal Government to limit partisan political activities by those covered by the Hatch Act should not obscure the equally relevant fact that all 50 States have restricted the political activities of their own employees.11
B
28
Until now, the judgment of Congress, the Executive, and the country appears to have been that partisan political activities by federal employees must be limited if the Government is to operate effectively and fairly, elections are to play their proper part in representative government, and employees themselves are to be sufficiently free from improper influences. E.g., 84 Cong.Rec. 9598, 9603; 86 Cong.Rec. 2360, 2621, 2864, 9376. The restrictions so far imposed on federal employees are not aimed at particular parties, groups, or points of view, but apply equally to all partisan activities of the type described. They discriminate against no racial, ethnic, or religious minorities. Nor do they seek to control political opinions or beliefs, or to interfere with or influence anyone's vote at the polls.
29
But, as the Court held in Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968), the government has an interest in regulating the conduct and 'the speech of its employees that differ(s) significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the (employee), as a citizen, in commenting upon matters of public concern and the interest of the (government), as an employer, in promoting the efficiency of the public services it performs through its employees.' Although Congress is free to strike a different balance than it has, if it so chooses, we think the balance it has so far struck is sustainable by the obviously important interests sought to be served by the limitations on partisan political activities now contained in the Hatch Act.
30
It seems fundamental in the first place that employees in the Executive Branch of the Government, or those working for any of its agencies, should administer the law in accordance with the will of Congress, rather than in accordance with their own or the will of a political party. They are expected to enforce the law and execute the programs of the Government without bias or favoritism for or against any political party or group or the members thereof. A major thesis of the Hatch Act is that to serve this great end of Government—the impartial execution of the laws—it is essential that federal employees, for example, not take formal positions in political parties, not undertake to play substantial roles in partisan political campaigns, and not run for office on partisan political tickets. Forbidding activities like these will reduce the hazards to fair and effective government. See 84 Cong.Rec. 9598; 86 Cong.Rec. 2433 2434, 2864; Hearings on S. 3374 and S. 3417 before the Senate Committee on Post Office and Civil Service, 92d Cong., 2d Sess., 171.
31
There is another consideration in this judgment: it is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent.
32
Another major concern of the restriction against partisan activities by federal employees was perhaps the immediate occasion for enactment of the Hatch Act in 1939. That was the conviction that the rapidly expanding Government work force should not be employed to build a powerful, invincible, and perhaps corrupt political machine. The experience of the 1936 and 1938 campaigns convinced Congress that these dangers were sufficiently real that substantial barriers should be raised against the party in power or the party out of power, for that matter-using the thousands or hundreds of thousands of federal employees, paid for at public expense, to man its political structure and political campaigns. E.g., 84 Cong.Rec. 9595, 9598, 9604, 9610.
33
A related concern, and this remains as important as any other, was to further serve the goal that employment and advancement in the Government service not depend on political performance, and at the same time to make sure that Government employees would be free from pressure and from express or tacit invitation to vote in a certain way or perform political chores in order to curry favor with their superiors rather than to act out their own beliefs. See, e.g., id., at 9598, 9603; 86 Cong.Rec. 2433—2434; Hearings on S. 3374 and S. 3417, supra, at 171. It may be urged that prohibitions against coercion are sufficient protection; but for many years the joint judgment of the Executive and Congress has been that to protect the rights of federal employees with respect to their jobs and their political acts and beliefs it is not enough merely to forbid one employee to attempt to influence or coerce another.12 For example, at the hearings in 1972 on proposed legislation for liberalizing the prohibition against political activity, the Chairman of the Civil Service Commission stated that 'the prohibitions against active participation in partisan political management and partisan political campaigns constitute the most significant safeguards against coercion . . ..' Hearings on S. 3374 and S. 3417, supra, at 52. Perhaps Congress at some time will come to a different view of the realities of political life and Government service; but that is its current view of the matter, and we are not now in any position to dispute it. Nor, in our view, does the Constitution forbid it.
34
Neither the right to associate nor the right to participate in political activities is absolute in any event. See, e.g., Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973); Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 999, 31 L.Ed.2d 274 (1972); Bullock v. Carter, 405 U.S. 134, 140—141, 92 S.Ct. 849, 854—855, 31 L.Ed.2d 92 (1972); Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971); Williams v. Rhodes, 393 U.S. 23, 30—31, 89 S.Ct. 5, 10—11, 21 L.Ed.2d 24 (1968). Nor are the management, financing, and conduct of political campaigns wholly free from governmental regulation.13 We agree with the basic holding of Mitchell that plainly identifiable acts of political management and political campaigning on the part of federal employees may constitutionally be prohibited. Until now this has been the judgment of the lower federal courts,14 and we do not understand the District Court in this case to have questioned the constitutionality of a law that was specifically limited to prohibiting the conduct in which Mr. Poole in the Mitchell case admittedly engaged.
III
35
But however constitutional the proscription of identifiable partisan conduct in understandable language may be, the District Court's judgment was that § 7324(a)(2) was both unconstitutionally vague and fatally overbroad. Appellees make the same contentions here, but we cannot agree that the section is unconstitutional on its face for either reason.
36
As an initial matter, we must have clearly in mind the statutory prohibitions that we are examining for impermissible vagueness and overbreadth.
37
Section 7324(a)(2) provides that an employee in an executive agency must not take 'an active part in political management or in political campaigns' and goes on to say that this prohibition refers to 'those acts of political management or political campaigning which were prohibited on the part of employees in the competitive service before July 19, 1940, by determinations of the Civil Service Commission under the rules prescribed by the President.' Section 7324(b) privileges an employee to vote as he chooses and to express his opinion on political subjects and candidates, and §§ 7324(c) and (d), as well as § 7326, also limit the applicability of § 7324(a)(2).15 The principal issue with respect to this statutory scheme is what Congress intended when it purported to define 'an active part in political management or in political campaigns,' as meaning the prior interpretations by the Civil Service Commission under Civil Service Rule I which contained the identical prohibition.
38
Earlier in this opinion it was noted that this definition was contained in § 15 of the 1940 Act. As recommended by the Senate Committee, S.Rep.No.1236, 76th Cong., 3d Sess., 2, 4, § 15 conferred broad rulemaking authority on the Civil Service Commission to spell out the meaning of 'an active part in political management or in political campaigns.'16 There were, in any event, strong objections to extending the Hatch Act to those state employees working in federally financed programs, see, e.g., 86 Cong.Rec. 2486, 2793—2794, 2801—2802, and to § 15, in particular, as being an unwise and invalid delegation of legislative power to the Commission. See, e.g., id., at 2352, 2426 2427, 2579, 2794, 2875. The matter was vigorously debated; and ultimately Senator Hatch, the principal proponent and manager of the bill, offered a substitute for § 15, id., at 2928 and 2937, limiting the reach of the prohibition to those same activities that the Commission 'has heretofore determined are at the time of the passage of this act prohibited on the part of employees' in the classified service by the similar provision in Civil Service Rule I.17 The matter was further debated, and the amendment carried. Id., at 2958—2959.
39
The District Court and appellees construe § 15, now part of § 7324(a)(2), as incorporating each of the several thousand adjudications of the Civil Service Commission under Civil Service Rule I, many of which are said to be undiscoverable, inconsistent, or incapable of yielding any meaningful rules to govern present or future conduct. In any event, the District Court held the prohibition against taking an active part in political management and political campaigns to be itself an insufficient guide to employee behavior and thought the definitional addendum of § 15 only compounded the confusion by referring the concerned employees to an impenetrable jungle of Commission proceedings, orders, and rulings. 346 F.Supp., at 582—583, 585.
40
We take quite a different view of the statute. As we see it, our task is not to destroy the Act if we can, but to construe it, if consistent with the will of Congress, so as to comport with constitutional limitations. With this in mind and having examined with some care the proceedings surrounding the passage of the 1940 Act and adoption of the substitute for § 15, we think it appears plainly enough that Congress intended to deprive the Civil Service Commission of rulemaking power in the sense of exercising a subordinate legislative role in fashioning a more expansive definition of the kind of conduct that would violate the prohibition against taking an active part in political management or political campaigns. But it is equally plain, we think, that Congress accepted the fact that the Commission had been performing its investigative and adjudicative role under Civil Service Rule I since 1907 and that the Commission had, on a case-by-case basis, fleshed out the meaning of Rule I and so developed a body of law with respect to what partisan conduct by federal employees was forbidden by the rule. 86 Cong.Rec. 2342, 2353. It is also apparent, in our view, that the rules that had evolved over the years from repeated adjudications were subject to sufficiently clear and summary statement for the guidance of the classified service. Many times during the debate on the floor of the Senate, Senator Hatch and others referred to a summary list of such prohibitions, see, e.g., id., at 2929, 2937 2938, 2942—2943, 2949, 2952—2953, the Senator's ultimate reference being to Civil Service Form No. 1236 of September 1939, the pertinent portion of which he placed in the Record, id., at 2938 2940,18 and which was the Commission's then-current effort to restate the prevailing prohibitions of Civil Service Rule I, as spelled out in its adjudications to that date. It was this administrative restatement of Civil Service Rule I law, modified to the extent necessary to reflect the provisions of the 1939 and 1940 Acts themselves, that, in our view, Congress intended to serve as its definition of the general proscription against partisan activities.19 It was within the limits of these rules that the Civil Service Commission was to proceed to perform its role under the statute.
41
Not only did Congress expect the Commission to continue its accustomed role with respect to federal employees, but also in § 12(b) of the 1940 Act Congress expressly assigned the Commission the enforcement task with respect to state employees now covered by the Act. The Commission was to issue notice, hold hearings, adjudicate, and enforce. This process, inevitably and predictably, would entail further development of the law within the bounds of, and necessarily no more severe than, the 1940 rules and would be productive of a more refined definition of what conduct would or would not violate the statutory prohibition of taking an active part in political management and political campaigns.
42
It is thus not surprising that there were later editions of Form 1236,20 or that in 1970 the Commission again purported to restate the law of forbidden political activity and, informed by years of intervening adjudications, again sought to define those acts which are forbidden and those which are permitted by the Hatch Act. These regulations, 5 CFR pt. 733, are wholly legitimate descendants of the 1940 restatement adopted by Congress and were arrived at by a process that Congress necessarily anticipated would occur down through the years. We accept them as the current and, in most respects, the longstanding interpretations of the statute by the agency charged with its interpretation and enforcement. It is to these regulations purporting to construe § 7324 as actually applied in practice, as well as to the statute itself, with its various exclusions, that we address ourselves in rejecting the claim that the Act is unconstitutionally vague and overbroad. Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154, 162—163, 91 S.Ct. 720, 726—727, 27 L.Ed.2d 749 (1971); cf. Gooding v. Wilson, 405 U.S. 518, 520—521, 92 S.Ct. 1103, 1105—1106, 31 L.Ed.2d 408 (1972).
43
Whatever might be the difficulty with a provision against taking 'active part in political management or in political campaigns,' the Act specifically provides that the employee retains the right to vote as he chooses and to express his opinion on political subjects and candidates. The Act exempts research and educational activities supported by the District of Columbia or by religious, philanthropic, or cultural organizations, 5 U.S.C. § 7324(c); and § 7326 exempts nonpartisan political activity: questions, that is, that are not identified with national or state political parties are not covered by the Act, including issues with respect to constitutional amendments, referendums, approval of municipal ordinances, and the like. Moreover, the plain import of the 1940 amendment to the Hatch Act is that the proscription against taking an active part in the proscribed activities is not open-ended but is limited to those rules and proscriptions that had been developed under Civil Service Rule I up to the date of the passage of the 1940 Act. Those rules, as refined by further adjudications within the outer limits of the 1940 rules, were restated by the Commission in 1970 in the form of regulations specifying the conduct that would be prohibited or permitted by § 7324 and its companion sections.
44
We have set out these regulations in the margin.21 We see nothing impermissibly vague in 5 CFR § 733.122, which specifies in separate paragraphs the various activities deemed to be prohibited by § 7324(a)(2). There might be quibbles about the meaning of taking an 'active part in managing' or about 'actively participating in . . . fund-raising' or about the meaning of becoming a 'partisan' candidate for office; but there are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest. '(T)he general class of offenses to which . . . (the provisions are) directed is plainly within (their) terms, . . . (and they) will not be struck down as vague, even though marginal cases could be put where doubts might arise.' United States v. Harriss, 347 U.S. 612, 618, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954). Surely, there seemed to be little question in the minds of the plaintiffs who brought this lawsuit as to the meaning of the law, or as to whether or not the conduct in which they desire to engage was or was not prohibited by the Act.
45
The Act permits the individual employee to 'express his opinion on political subjects and candidates,' 5 U.S.C. § 7324(b); and the corresponding regulation, 5 CFR § 733.111(a)(2), privileges the employee to '(e)xpress his opinion as an individual privately and publicly on political subjects and candidates.' The section of the regulations which purports to state the partisan acts that are proscribed, id., § 733.122, forbids in subparagraph (a)(10) the endorsement of 'a partisan candidate for public office or political party office in a political advertisement, a broadcast, campaign literature, or similar material,' and in subparagraph (a)(12), prohibits '(a)ddressing a convention, caucus, rally, or similar gathering of a political party in support of or in opposition to a partisan candidate for public office or political party office.' Arguably, there are problems in meshing § 733.111(a)(2) with §§ 733.122(a)(10) and (12), but we think the latter prohibitions sufficiently clearly carve out the prohibited political conduct from the expressive activity permitted by the prior section to survive any attack on the ground of vagueness or in the name of any of those policies that doctrine may be deemed to further.
46
It is also important in this respect that the Commission has established a procedure by which an employee in doubt about the validity of a proposed course of conduct may seek and obtain advice from the Commission and thereby remove any doubt there may be as to the meaning of the law, at least insofar as the Commission itself is concerned.22
47
Neither do we discern anything fatally overbroad about the statute when it is considered in connection with the Commission's construction of its terms represented by the 1970 regulations we now have before us. The major difficulties in this respect again relate to the prohibition in §§ 733.122(a) (10) and (12) on endorsements in advertisements, broadcasts, and literature and on speaking at political party meetings in support at partisan candidates for public or party office. But these restrictions are clearly stated, they are political acts normally performed only in the context of partisan campaigns by one taking an active role in them, and they are sustainable for the same reasons that the other acts of political campaigning are constitutionally proscribable. They do not, therefore, render the remainder of the statute vulnerable by reason of over-breadth.
48
Even if the provisions forbidding partisan campaign endorsements and speechmaking were to be considered in some respects unconstitutionally overbroad, we would not invalidate the entire statute as the District Court did. The remainder of the statute, as we have said, covers a whole range of easily identifiable and constitutionally proscribable partisan conduct on the part of federal employees, and the extent to which pure expression is impermissibly threatened, if at all, by §§ 733.122(a)(10) and (12), does not in our view make the statute substantially overbroad and so invalid on its face. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830.
49
For the foregoing reasons, the judgment of the District Court is reversed.
50
So ordered.
51
Judgment reversed.
APPENDIX TO OPINION OF THE COURT
52
That portion of the United States Civil Service Commission Form 1236, Political Activity and Assessments, September 1939, as inserted into the Congressional Record by Senator Hatch, 86 Cong.Rec. 2938—2940, provided:
53
III. PARTICULAR TYPES OF PROHIBITED ACTIVITIES
54
11. As has been pointed out, it is impossible to make a complete enumeration of all the particular types of political activities in which Government employees may not engage. The general scope of the political-activity rule has been defined in section 2 above. In the following sections some of the types of political activity which occur more frequently are discussed in detail.
55
12. Activity by indirection: Any political activity which is prohibited in the case of an employee acting independently is also prohibited in the case of an employee acting in open or secret cooperation with others. Whatever the employee may not do directly or personally, he may not do indirectly or through an agent, officer, or employee chosen by him or subject to his control. Employees are therefore accountable for political activity by persons other than themselves, including wives or husbands, if, in fact, the employees are thus accomplishing by collusion and indirection what they may not lawfully do directly and openly. Political activity in fact, regardless of the methods or means used by the employee, constitutes the violation.
56
This does not mean that an employee's husband or wife may not engage in politics independently, upon his or her own initiative, and in his or her own behalf. Cases have arisen, however, in which the facts showed that the real purpose of a wife's activity was to accomplish a political act prohibited to her husband, the attempt being made for her husband's benefit and at his instigation or even upon his coercion. This may be true of individuals or it may occur among groups of employees' wives, associated for the purpose of securing for their husbands what their husbands may not secure for themselves. In such situations it is obvious that the prohibitions against political activity are being indirectly violated. The collusion or coercion renders the wife's activity imputable to the husband, he being guilty of the same infraction as if he were openly a participant.
57
13. Conventions: Candidacy for or service as delegate, alternate, or proxy in any political convention or service as an officer or employee thereof is prohibited. Attendance merely as a spectator is permissible, but the employee so attending must not take any part in the convention or in the deliberations or proceedings of any of its committees, and must refrain from any public display of partisanship or obtrusive demonstration or interference. (See secs. 4 and 19.)
58
14. Primaries—caucuses: An employee may attend a primary meeting, mass convention, beat convention, caucus, and the like, and may cast his vote on any question presented, but he may not pass this point in participating in its deliberations. He may not act as an officer of the meeting, convention, or caucus, may not address it, make motions, prepare or assist in preparing resolutions, assume to represent others, or take any prominent part therein.
59
15. Committees: Service on or for any political committee or similar organization is prohibited. An employee may attend as a spectator any meeting of a political committee to which the general public is admitted, but must refrain from activity as indicated in the preceding paragraphs.
60
Whether a committee has an ultimate political purpose determines whether a classified employee may properly serve as a member. Assignment may be to duties which, if considered alone, would seem far removed from active politics, but which, when considered as a part of the whole purpose, assume an active political character. No attempt can be made to differentiate between workers on or under political committees with respect to the degree to which they are politically active.
61
16. Clubs and organizations: Employees may be members of political clubs, but it is improper for them to be active in organizing such a club, to be officers of the club, or members or officers of any of its committees or to act as such, or to address a political club. Service as a delegate from such a club to a league of political clubs is service as an officer or representative of a political club and is prohibited, as is service as a delegate or representative of such a club to or in any other organization. In other words, an employee may become a member of a political club, but may not take an active part in its management or affairs, and may not represent other members or attempt to influence them by his actions or utterances. (See secs. 4 and 19.)
62
Section 6 of the act of August 24, 1912 (37 Stat. 555), provides in part—
63
'That membership in any society, association, club, or other form of organization of postal employees not affiliated with any outside organization imposing an obligation or duty upon them to engage in any strike, or proposing to assist them in any strike, against the United States, having for its objects, among other things, improvements in the condition of labor of its members, including hours of labor and compensation therefor and leave of absence, by any person or groups of persons in said Postal Service, or the presenting by any such person or groups of persons of any grievance or grievances to the Congress or any Member thereof, shall not constitute or be cause for reduction in rank or compensation or removal of such person or groups of persons from said service.'
64
Section 9A of the act of August 2, 1939 (Public, No. 252, 76th Cong.), provides as follows:
65
'(1) It shall be unlawful for any person employed in any capacity by any agency of the Federal Government, whose compensation, or any part thereof, is paid from funds authorized or appropriated by any act of Congress, to have membership in any political party or organization which advocates the overthrow of our constitutional form of government in the United States.
66
'(2) Any person violating the provisions of this section shall be immediately removed from the position or office held by him, and thereafter no part of the funds appropriated by any act of Congress for such position or office shall be used to pay the compensation of such person.'
67
17. Contributions: An employee may make political contributions to any committee, organization, or person not employed by the United States, but may not solicit, collect, receive, or otherwise handle or disburse the contributions. (See provisions of the Criminal Code, discussed in secs. 36 to 50.)
68
18. Meeting: Service in preparing for, organizing, or conducting a political meeting or rally, addressing such a meeting, or taking any part therein, except as a spectator, is prohibited.
69
19. Expression of opinions: Although section 9(a) of the act of August 2, 1939 reserve to Federal officers and employees the right to express their opinions on all political subjects, officers and employees in the competitive classified service are subject also to section 1 of civil-service rule I, under which such employees must confine themselves to a private expression of opinion. Nonclassified and excepted employees may not indulge in such public expression of opinion as constitutes taking part in an organized political campaign. (See foregoing secs. 1 and 4.)
70
20. Activity at the polls and for candidates: An employee has the right to vote as he pleases, and to exercise this right free from interference, solicitation, or dictation by any fellow employee or superior officer or any other person. It is a violation of the Federal Corrupt Practices Act to pay or offer to pay any person for voting or refraining from voting, or for voting for or against any candidate for Senator or Representative in, or Delegate or Resident Commissioner to, Congress. It is also a violation of the law to solicit, receive, or accept payment for one's vote or for withholding one's vote. (See U.S.Code, title 2, sec. 250.)
71
Under the act of August 2, 1939, it is a criminal offense for any person to intimidate, threaten, or coerce any other person for the purpose of interfering with the right of such other person to vote as he may choose in any election of a national character. It is also a criminal offense to promise any employment, position, work, or compensation, or other benefit made possible by an act of Congress, as a consideration, favor, or reward for political activity or for the support of or opposition to any political candidate or party. (See secs. 48 and 50 herein.) It is the duty of an employee to avoid any offensive activity at primary and regular elections. He must refrain from soliciting votes, assisting voters to mark ballots, helping to get out the voters on registration and election days, acting as the accredited checker, watcher, or challenger of any party or faction, assisting in counting the vote, or engaging in any other activity at the polls except the marking and depositing of his own ballot. Rendering service, such as transporting voters to and from the polls and candidates on canvassing tours, whether for pay or gratuitously, is held to be within the scope of political activities prohibited by the rule, even if such service is performed without regard to political party.
72
21. Election officers: Service as judge of election, inspector, checker, teller, or as election officer of any kind is prohibited.
73
22. Newspapers—publication of letters or articles: A classified employee may not publish or be connected editorially or managerially with any political newspaper, and may not write for publication or publish any letter or article, signed or unsigned, in favor of or against any political party, candidate, faction, or measure. An employee who writes such a letter or article is responsible for any use that may be made of it whether or not he gives consent to such use. (See secs. 4 and 19.)
74
23. Liquor question; Activity in campaigns concerning the regulation or suppression of the liquor traffic is prohibited. An employee may be a member but not an officer of a club, league, or other organization which takes part in such a campaign. The dissemination of temperance propaganda is permissible, but any endeavor for or against the regulation, control, or suppression of the liquor traffic through political agencies is prohibited.
75
24. Betting or wagering on elections: Betting or wagering upon the results of primary and general elections is penalized by the laws of most States and is improper political activity.
76
25. Activity in civic organizations and citizens' associations: Activity in organizations having for their primary object the promotion of good government or the local civic welfare is not prohibited by the act of August 2, 1939, or civil-service rule I, provided such activities have no connection with the campaigns of particular candidates or parties.
77
26. Parades: An employee may not march in a political parade, organize, or be an officer or leader of such a parade.
78
A Government employee may not take part in the activities of a musical organization in any parade or other activity of a political party.
79
27. Signing petitions: The first amendment to the Constitution of the United States provides that 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.' Section 6 of the act of August 24, 1912 (37 Stat. 555), provides that 'the right of persons employed in the civil service of the United States, either individually or collectively, to petition Congress, or any Member thereof, or to furnish information to either House of Congress, or to any committee or Member thereof, shall not be denied or interfered with.'
80
The right guaranteed by the Constitution and the statute extends only to petitions addressed to the Government, or to Congress or Members thereof. It does not extend to petitions addressed to State, county, or municipal governments, or to other political units. A classified employee is permitted to sign petitions of the latter class as an individual, without reference to his connection with the Government, but he may not initiate them, circulate them, or canvass for the signatures of others.
81
28. Applying for Presidential positions not in the classified service:1 When a classified employee seeks promotion by appointment or transfer to a Presidential office not in the classified service there is no objection to his becoming a candidate for such an office, provided the consent of his department is obtained, and provided he does not violate section 1 of rule I, prohibiting the use of his official authority or influence in political matters, and provided further that he does not neglect his duty and avoids any action that would cause public scandal or semblance of coercion of his fellow employees or of those over whom he desires to be placed in the position he seeks.
82
A classified employee may circulate a petition or seek endorsements for his own appointment to a Presidential position, subject to the qualifications above stated, and he may, as an individual, sign a petition or recommend another person for such an appointment; but he may not circulate a petition or solicit endorsements, recommendations, or support for the appointment of another person to such a position, whether such other person is a fellow employee or one not at the time in the Government service.
83
When an unofficial primary or election is held for the purpose of determining the popular choice for the Presidential office, a classified employee may permit his name to appear upon the ticket, but he may not solicit votes in his behalf at such a primary or election, or in any manner violate section 1 of rule I. He may vote and express privately his opinions, but may not solicit votes or publicly advocate the candidacy or election of himself or any other person. Although it is permissible for a classified employee, as an individual, to sign a petition or recommend another person for appointment to a nonclassified position, he is not permitted to sign such a petition as a Government employee or in any other way to use his official authority or influence to advance the candidacy of any person for election or appointment to any office. Classified employees are permitted to exercise the right as individuals to sign a petition favoring a candidate for any office, but they may not do so as Government employees or as a group or association of Government employees.
84
29. Other forms of political activity: Among other forms of political activity which are prohibited are the distribution of campaign literature, badges, or buttons, and assuming general political leadership or becoming prominently identified with any political movement, party, or faction, or with the success or failure of any candidate for election to public office.
85
IV. CANDIDACY FOR OR HOLDING LOCAL OFFICE—CLASSIFIED AND NON-CLASSIFIED EMPLOYEES
86
30. Candidacy for local office: Candidacy for a nomination or for election to any National, State, county, or municipal office is not permissible. The prohibition against political activity extends not merely to formal announcement of candidacy but also to the preliminaries leading to such announcement and to canvassing or soliciting support or doing or permitting to be done any act in furtherance of candidacy. The fact that candidacy, is merely passive is immaterial; if an employee acquiesces in the efforts of friends in furtherance of such candidacy such acquiescence constitutes an infraction of the prohibitions against political activity.
87
31. Federal employees holding local office:2 Persons holding Federal civil office by appointment, whether in the competitive classified service or not, are prohibited from accepting or holding any office under a State, Territorial, or municipal government by an Executive order of January 17, 1873, which is as follows:
88
'Whereas it has been brought to the notice of the President of the United States that many persons holding civil office by appointment from him or otherwise under the Constitution and laws of the United States while holding such Federal positions accept offices under the authority of the States and Territories in which they reside, or of municipal corporations, under the charters and ordinances of such corporations, thereby assuming the duties of the State, Territorial, or municipal office at the same time that they are charged with the duties of the civil office held under Federal authority:
89
'And whereas it is believed that, with but few exceptions, the holding of two such offices by the same person is incompatible with a due and faithful discharge of the duties of either office; that it frequently gives rise to great inconvenience, and often results in detriment to the public service; and, moreover, is not in harmony with the genius of the Government:
90
'In view of the premises, therefore, the President has deemed it proper thus and hereby to give public notice that, from and after the 4th day of March A.D. 1873 (except as herein specified), persons holding any Federal civil office by appointment under the Constitution and laws of the United States will be expected, while holding such office, not to accept or hold any office under any State or Territorial government, or under the charter or ordinances of any municipal corporation; and, further, that the acceptance or continued holding of any such State, Territorial, or municipal office, whether elective or by appointment, by any person holding civil office as aforesaid under the Government of the United States, other than judicial offices under the Constitution of the United States, will be deemed a vacation of the Federal office held by such person, and will be taken to be and will be treated as a resignation by such Federal officer of his commission or appointment in the service of the United States.
91
'The offices of justices of the peace, of notaries public, and of commissioners to take the acknowledgment of deeds, of bail, or to administer oaths, shall not be deemed within the purview of this order and are excepted from its operation, and may be held by Federal officers.
92
'The appointment of deputy marshals of the United States may be conferred upon sheriffs or deputy sheriffs. Any deputy postmasters, the emoluments of whose office do not exceed $600 per annum, are also excepted from the operation of this order and may accept and hold appointments under State, Territorial, or municipal authority, provided the same be found not to interfere with the discharge of their duties as postmasters.3 Heads of departments and other officers of the Government who have the appointment of subordinate officers are required to take notice of this order, and to see to the enforcement of its provisions and terms within the sphere of their respective departments or offices and as relates to the several persons holding appointments under them, respectively.'4
93
32. Interpretation of the order of January 17, 1873: An Executive order of January 28, 1873, as amended by Executive order of August 27, 1933, is as follows:
94
'Inquiries having been made from various quarters as to the application of the Executive order issued on the 17th of January relating to the holding of State or municipal offices by persons holding civil offices under the Federal Government, the President directs the following reply to be made:
95
'It has been asked whether the order prohibits a Federal officer from holding also the office of an alderman or of a common councilman in a city, or of a town councilman of a town or village, or of appointments under city, town, or village governments. By some it has been suggested that there may be distinction made in case the office be with or without salary or compensation. The city or town offices of the description referred to, by whatever names they may be locally known, whether held by election or by appointment, and whether with or without salary or compensation, are of the class which the Executive order intends not to be held by persons holding Federal offices.
96
'It has been asked whether the order prohibits Federal officers from holding positions on boards of education, school committees, public libraries, religious or eleemosynary institutions incorporated or established or sustained by State or municipal authority. Positions and service on such boards and committees, and professorships in colleges5 are not regarded as 'offices' within the contemplation of the Executive order, but as employments or service in which all good citizens may be engaged without incompatibility and in many cases without necessary interference with any position which they may hold under the Federal Government. Officers of the Federal Government may therefore engage in such service, provided the attention required by such employment does not interfere with the regular and efficient discharge of the duties of their office under the Federal Government. The head of the department under whom the Federal office is held will in all cases be the sole judge whether or not the employment does thus interfere.
97
'The question has also been asked with regard to officers of the State militia. Congress having exercised the power conferred by the Constitution to provide for organizing the militia, which is liable to be called forth to be employed in the service of the United States, and is thus, in some sense, under the control of the General Government, and is, moreover, of the greatest value to the public, the Executive order of the 17th January is not considered as prohibiting Federal officers from being officers in the militia in the States and Territories.
98
'It has been asked whether the order prohibits persons holding office under the Federal Government being members of local or municipal fire departments, also whether it applies to mechanics employed by the day in the armories, arsenals, and navy yards, etc., of the United States. Unpaid service in local or municipal fire departments is not regarded as an office within the intent of the Executive order, and may be performed by Federal officers, provided it does not interfere with the regular and efficient discharge of the duties of the Federal office, of which the head of the department under which the office is held will in each case be the judge.
99
'Mechanics and laborers employed by the day in armories, arsenals, navy yards, etc., and master workmen and others who hold appointments from the Government or from any department, whether for an fixed time or at the pleasure of the appointing power, are embraced within the operation of the order.'
100
33. Eligibles holding local office: Eligibles who are holding a local office not excepted from the prohibitions of the order of January 17, 1873, on selection for and acceptance of any position in the competitive classified service or of unclassified laborer must immediately resign the local office. Such resignation must be effected whether the service in the local office is compensated or uncompensated or whether the employee is on active duty or leave without pay. The holding of a local office not excepted from the prohibitions of the order of January 17, 1873, is an absolute disqualification for appointment, and unless persons otherwise eligible for appointment are willing immediately to resign the local office in the event of selection for appointment, their appointments cannot be approved.
101
34. Minor local offices which may be held by Government officers and employees: Although the Executive orders of January 17 and January 28, 1873, prohibit generally any person holding Federal civil office by appointment, from accepting or holding an office under a State, Territorial, or municipal government, certain offices of a minor character are excepted from this general prohibition. Among these are positions of justice of the peace; notary public; commissioner to take acknowledgement of deeds, of bail, or to administer oaths; positions on boards of education, school committees, public libraries, and in religious or eleemosynary institutions. In addition, Federal employees are, under certain conditions, permitted to hold other local offices under authority of the Executive orders set forth in section 35. The permission to hold local offices granted by these Executive orders, however, is now subject to the general prohibition of section 9 of the act of August 2, 1939 (see sec. 1), against participation in political management and in political campaigns by Federal employees.
102
In view of the broad language of section 9 of the act of August 2, 1939, the incumbency by a Federal employee of any elective office whatever under a State, Territorial, or municipal government is prohibited, regardless of whether or not the office is of such character that its incumbency was permitted by Executive order prior to the enactment of the act. The incumbency by a Federal employee of an appointive office under a State, Territorial, or municipal government is permissible, provided such incumbency is specifically authorized by some statute or Executive order. In securing such offices, however, and in the discharge of the duties thereof, Federal employees must not engage in political management.
103
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL concur, dissenting.
104
The Hatch Act by § 9(a) prohibits federal employees from taking 'an active part in political management or in political campaigns.' Some of the employees, whose union is speaking for them, want
105
'to run in state and local elections for the school board, for city council, for mayor';
106
'to write letters on political subjects to newspaper';
107
'to be a delegate in a political convention';
108
'to run for an office and hold office in a political party or political club';
109
'to campaign for candidates for political office';
110
'to work at polling places in behalf of a political party.'
111
There is no definition of what 'an active part . . . in political campaigns' means. The Act incorporates over 3,000 rulings of the Civil Service Commission between 1886 and 1940 and many hundreds of rulings since 1940. But even with that gloss on the Act, the critical phrases lack precision. In 1971 the Commission published a three-volume work entitled Political Activities Reporter which contains over 800 of its decisions since the enactment of the Hatch Act. One can learn from studying those volumes that it is not 'political activity' to march in a band during a political parade or to wear political badges or to 'participate fully in public affairs, except as prohibited by law, in a manner which does not materially compromise his efficiency or integrity as an employee or the neutrality, efficiency, or integrity of his agency.' 5 CFR § 733.111(a) (13).
112
That is to say, some things, like marching in a band, are clear. Others are pregnant with ambiguity as 'participate fully in public affairs, except as prohibited by law, in a manner which does not materially compromise,' etc. Permission to '(t)ake an active part . . . in a nonpartisan election,' 5 CFR § 733.111(a)(10), also raises large questions of uncertainty because one may be partisan for a person, an issue, a candidate without feeling an identification with one political party or the other.
113
The District Court felt that the prohibitions in the Act are 'worded in generalities that lack precision,' 346 F.Supp., 578, 582, with the result that it is hazardous for an employee 'if he ventures to speak on a political matter since he will not know when his words or acts relating to political subjects will offend.' Id., at 582—583.
114
The chilling effect of these vague and generalized prohibitions is so obvious as not to need elaboration. That effect would not be material to the issue of constitutionality if only the normal contours of the police power were involved. On the run of social and economic matters the 'rational basis' standard which United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754, applied would suffice.1 But what may have been unclear to some in Mitchell should be now be abundantly clear to all. We deal here with a First Amendment right to speak, to propose, to publish, to petition Government, to assemble. Time and place are obvious limitations. Thus no one could object if employees were barred from using office time to engage in outside activities whether political or otherwise. But it is of no concern of Government what an employee does in his spare time, whether religion, recreation, social work, or politics is his hobby—unless what he does impairs efficiency or other facets of the merits of his job. Some things, some activities do affect or may be thought to affect the employee's job performance. But his political creed, like his religion, is irrelevant. In the areas of speech, like religion, it is of no concern what the employee says in private to his wife or to the public in Constitution Hall. If Government employment were only a 'privilege,' then all sorts of conditions might be attached. But it is now settled that Government employment may not be denied or penalized 'on a basis that infringes (the employee's) constitutionally protected interests—especially, his interest in freedom of speech.' See Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570. If Government, as the majority stated in Mitchell, may not condition public employment on the basis that the employee will not 'take any active part in missionary work,' 330 U.S., at 100, 67 S.Ct., at 570, it is difficult to see why it may condition employment on the basis that the employee not take 'an active part . . . in political campaigns.' For speech, assembly, and petition are as deeply embedded in the First Amendment as proselytizing a religious cause.
115
Free discussion of governmental affairs is basic in our constitutional system. Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203, 1211, 1 L.Ed.2d 1311; Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1436, 16 L.Ed.2d 484; Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 625, 28 L.Ed.2d 35. Laws that trench on that area must be narrowly and precisely drawn to deal with precise ends. Over-breadth in the area of the First Amendment has a peculiar evil, the evil of creating chilling effects which deter the exercise of those freedoms. Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1120, 14 L.Ed.2d 22. As we stated in NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405, in speaking of First Amendment freedoms and the unconstitutionality of overbroad statutes: 'These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions.'
116
Mitchell is of a different vintage from the present case. Since its date, a host of decisions have illustrated the need for narrowly drawn statutes that touch First Amendment rights. A teacher was held to be unconstitutionally discharged for sending a letter to a newspaper that criticized the school authorities. Pickering v. Board of Education, 391 U.S. 563, 573, 88 S.Ct., 1731, 1737, 20 L.Ed.2d 811. 'In these circumstances we conclude that the interest of the school administration in limiting teachers' opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.' We followed the same course in Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569, when we relieved a sheriff from a contempt conviction for making a public statement in connection with a current political controversy. As in the present case, the shefiff spoke as a private citizen and what he said did not interfere with his duties as sheriff. Id., at 393—394, 82 S.Ct., at 1374—1375.
117
The present Act cannot be appropriately narrowed to meet the need for narrowly drawn language not embracing First Amendment speech or writing without substantial revision. That rewriting cannot be done by the Commission because Congress refused to delegate to it authority to regulate First Amendment rights. The proposal to do so aroused a great debate in Congress2 and Senator Hatch finally submitted a substitute, saying '(i)t does away with the question of the delegation of power.'3
118
The Commission, on a case-by-case approach, has listed 13 categories of prohibited activities, 5 CFR § 733.122(b), starting with the catch-all 'include but are not limited to.' So the Commission ends up with open-end discretion to penalize X or not to penalize him. For example, a 'permissible' activity is the employee's right to '(e)xpress his opinion as an individual privately and publicly on political subjects and candidates.' 5 CFR § 733.111(a)(2). Yet 'soliciting votes' is prohibited. 5 CFR § 733.122(b)(7). Is an employee safe from punishment if he expresses his opinion that candidate X is the best and candidate Y the worst? Is that crossing the forbidden line of soliciting votes?
119
A nursing assistant at a veterans' hospital put an ad in a newspaper reading:
120
'To All My Many Friends of Poplar Bluff and Butler County I want to take this opportunity to ask your vote and support in the election, TUESDAY, AUGUST 7th. A very special person is seeking the Democratic nomination for Sheriff. I do not have to tell you of his qualifications, his past records stand.
121
'This person is my dad, Lester (Less) Massingham.
122
'THANK YOU
123
'WALLACE (WALLY) MASSINGHAM'
124
He was held to have violated the Act. Massingham, 1 Political Activity Reporter 792, 793 (1959).
125
Is a letter a permissible 'expression' of views or a prohibited 'solicitation?' The Solicitor General says it is a 'permissible' expression; but the Commission ruled otherwise. For an employee who does not have the Solicitor General as counsel great consequences flow from an innocent decision. He may lose his job. Therefore the most prudent thing is to do nothing. Thus is self-imposed censorship imposed on many nervous people who live on narrow economic margins.
126
I would strike this provision of the law down as unconstitutional so that a new start may be made on this old problem that confuses and restricts nearly five million federal, state, and local public employees today that live under the present Act.
1
The Hatch Act is found in Titles 5 and 18 of the United States Code, both of which have been enacted into positive law. 80 Stat. 378, 62 Stat. 683. Section 7324(a)(2) of Title 5 is derived from two sections in the Act, with the prohibition against certain political
activity being found in § 9(a), 53 Stat. 1148, while the portion defining the proscribed activity stems from § 15, 54 Stat. 771.
2
The complaint made the same allegations with respect to 5 U.S.C. § 1502(a) (3), the provision taken from § 12(a) of the Hatch Act, 54 Stat. 767, which imposes similar prohibitions on certain state employees working in programs that are federally financed. The District Court, however, while holding the class action was proper with respect to federal employees, held that none of the parties was properly representative of state employees covered by the Act. 346 F.Supp. 578, 579 n. 1. Hence only § 7324(a)(2) with respect to federal employees is before us in this case.
3
The Union alleged that its members were desirous of
'a. Running in local elections for such offices as school board member, city council member or mayor.
'b. Writing letters on political subjects to newspapers.
'c. Participating as a delegate in a political convention and running for office in a political party.
'd. Campaigning for candidates for political office.' App. 6 7.
The Democratic and Republican Committees complained that they had been deterred 'from seeking desirable candidates who are Fed-
eral or state employees covered by the Hatch Act to run on the Democratic or Republican ticket for state and local offices. In addition, numerous individuals who would otherwise desire and be available to become members of Plaintiff Committees have been and continue to be deterred from doing so by said provisions of the Hatch Act.' Id., at 7.
Plaintiff Hummel alleged that he desired to engage in a wide variety of political activities including '(1) participation as a delegate in conventions of a political party; (2) public endorsement of candidates of a political party for local, state and national office; (3) work at polling places on behalf of a political party during elections; (4) holding office in a political club. As a result of inquiries of the Civil Service Commission and his knowledge of the Hatch Act, Plaintiff Hummel is aware that such activities violate the Hatch Act.' Id., at 7—8.
Plaintiff Pinho alleged that she desired to become a precinct Democratic Committee Woman in the Arlington County Democratic Committee and to campaign for certain Democratic candidates for the United States House of Representatives and for the United States Senate. Id., at 8.
Plaintiff Mandicino alleged that as an active member and officer of plaintiff Union he 'was compelled to engage in political activities prohibited by . . . the Hatch Act in order to carry out the responsibilities of his offices,' and that he had engaged in those 'activities including house-to-house campaigning for candidates of political parties, participation as a delegate in conventions of a political party, active participation in the affairs of a political party, and fund raising on behalf of political parties and candidates.' Ibid.
Plaintiff Wylie alleged that he had resigned his position in the Department of Health, Education, and Welfare, a position in the competitive civil service, to run as a Republican candidate for the Maryland State Senate. During the campaign he was employed as a consultant by the Department on a part-time basis. After his defeat he sought re-employment on a permanent basis but because of the dispute over his political activities while acting as a consultant, his re-employment had been delayed for a period of time, all to his financial loss and mental anguish. Id., at 9.
Plaintiff Gee alleged that he desired to, but did not, file as a
candidate for the office of Borough Councilman in his local community for fear that his participation in a partisan election would endanger his job. Ibid.
Plaintiff Myers alleged that he desired to run as a Republican candidate in the 1971 partisan election for the mayor of West Lafayette, Indiana, and that he would do so except for fear of losing his job by reason of violation of the Hatch Act. Id., at 10.
4
Section 15 of the Hatch Act, now codified in 5 U.S.C. § 7324(a)(2), see n. 1, supra, defined the prohibition against taking 'an active part in political management or in political campaigns' as proscribing those activities that the Civil Service Commission had determined up to the time of the passage of the Hatch Act were prohibited for classified civil service employees. The role and scope of § 15 are discussed in the text, infra.
5
Senator Hatch quoted from this order in the debate on the 1940 amendments to the Hatch Act, 86 Cong.Rec. 2433—2434.
6
In 1886, for example, President Cleveland, through an Executive Order, warned federal employees 'against the use of their official positions in attempts to control political movements in their localities.' 8 J. Richardson, Messages and Papers of the Presidents 494 (1899).
7
The 1940 amendments to the Hatch Act, 54 Stat. 767—772, also provided, inter alia, for a limitation on certain campaign contributions, § 13; for federal employees in municipalities in the vicinity of the District of Columbia, with the approval of the Commission, to engage in political activity, § 16; and for a limitation on receipts and expenditures of political committees, § 20.
8
H.R. 2372, 91st Cong., 1st Sess., S. 2032, 92d Cong., 1st Sess.; S. 3417, 92d Cong., 2d Sess.; S. 235, 93d Cong., 1st Sess. For the legislation recommended by the Commission on Political Activity, see 1 Report of Commission on Political Activity of Government Personnel, Findings and Recommendations 44—60 (1968).
9
H.R. 19214, 91st Cong., 2d Sess.; H.R. 914, 92d Cong., 1st Sess.; S. 3374, 92d Cong., 2d Sess.; H.R. 668, S. 350, 93d Cong., 1st Sess.
10
Hearings on S. 3374, and S. 3417 before the Senate Committee on Post Office and Civil Service, 92d Cong., 2d Sess. Congress has extended the restrictions on political activity to persons not previously covered. The Economic Opportunity Act of 1964, § 603, 78 Stat. 530, as amended, 42 U.S.C. § 2943, extended the restrictions to certain employees of private corporations; the Postal Reorganization Act, 84 Stat. 719, 39 U.S.C. § 410, made the provisions applicable to the Postal Service; and the Emergency Employment Act of 1971, § 12(h), 85 Stat. 154, 42 U.S.C. § 4881(h) (1970 ed., Supp. I), extended the provisions to personnel employed in the administration of programs established under the Act.
11
See generally, Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830, and id., at 604, 93 S.Ct., at 2912, n. 2.
12
In the 1940 debate over amendments to the Hatch Act, it was frequently stated that the only objectionable provisions were those restrictions in § 9 and the proposed § 12 against voluntary political activity, see, e.g., 86 Cong.Rec. 2626, 2696, 2700, 2708, 2722. In response to the inquiry whether he was condemning those 'who, without any coercion, voluntarily desire to take a part in politics,' Senator Hatch replied that he 'would draw the line if it could be drawn; but I defy . . . (anyone) to draw that line.' Id., at 2626. During the 1967 hearings before the Commission on Political Activity the then Chairman of the Civil Service Commission noted that 'one man's coercion is another man's persuasion,' and that 'in an employer/employee relationship, the extent of voluntaryism tends to be rather substantially circumscribed.' 3 Report of Commission on Political Activity of Government Personnel, Hearings, 759 (1968).
13
See, e.g., 18 U.S.C. § 594 (intimidation of voters); § 597 (expenditures to influence voting); § 602 (solicitation of political contributions); and § 612 (publication or distribution of political statements).
14
See, e.g., Northern Virginia Regional Park Authority v. U.S. Civil Service Comm'n, 437 F.2d 1346 (CA4), cert. denied, 403 U.S. 936, 91 S.Ct. 2254, 29 L.Ed.2d 717 (1971); Fishkin v. U.S.Civil Civil Service Comm'n, 309 F.Supp. 40 (ND Cal.1969), appeal dismissed as untimely, 396 U.S. 278, 90 S.Ct. 557, 24 L.Ed.2d 463 (1970); Kearney v. Macy, 409 F.2d 847 (CA9 1969), cert. denied, 397 U.S. 943, 90 S.Ct. 958, 25 L.Ed.2d 124 (1970); Engelhardt v. U.S. Civil Service Comm'n, 197 F.Supp. 806 (MD Ala.1961), aff'd per curiam, 304 F.2d 882 (CA5 1962).
15
Title 5 U.S.C. § 7324 provides:
'(a) An employee in an Executive agency or an individual employed by the government of the District of Columbia may not—
'(1) use his official authority or influence for the purpose of interfering with or affecting the result of an election; or
'(2) take an active part in political management or in political campaigns.
'For the purpose of this subsection, the phrase 'an active part in political management or in political campaigns' means those acts of political management or political campaigning which were prohibited on the part of employees in the competitive service before July 19, 1940, by determinations of the Civil Service Commission under the rules prescribed by the President.
'(b) An employee or individual to whom subsection (a) of this section applies retains the right to vote as he chooses and to express his opinion on political subjects and candidates.
'(c) Subsection (a) of this section does not apply to an individual employed by an educational or research institution, establishment, agency, or system which is supported in whole or in part by the District of Columbia or by a recognized religious, philanthropic, or cultural organization.
'(d) Subsection (a)(2) of this section does not apply to—
'(1) an employee paid from the appropriation for the office of the President;
'(2) the head or the assistant head of an Executive department or military department;
'(3) an employee appointed by the President, by and with the advice and consent of the Senate, who determines policies to be pursued by the United States in its relations with foreign powers or in the nationwide administration of Federal laws;
'(4) the Commissioners of the District of Columbia; or
'(5) the Recorder of Deeds of the District of Columbia.'
Title 5 U.S.C. § 7326 states:
'Section 7324(a)(2) of this title does not prohibit political activity in connection with—
'(1) an election and the preceding campaign if none of the candidates is to be nominated or elected at that election as representing a party any of whose candidates for presidential elector received votes in the last preceding election at which presidental electors were selected; or
'(2) a question which is not specifically identified with a National or State political party or political party of a territory or possession of the United States.
'For the purpose of this section, questions relating to constitutional amendments, referendums, approval of municipal ordinances, and others of a similar character, are deemed not specifically identified with a National or State political party or political party of a territory or possession of the United States.'
16
Section 15, as reported out of the Senate Committee, provided:
'Sec. 15. The United States Civil Service Commission is hereby authorized and directed to promulgate, as soon as practicable, rules or regulations defining, for the purposes of this act, the term 'active part in political management or in political campaigns.' After the promulgation of such rules or regulations, the term 'active part in political management or in political campaigns,' as used in this act, shall have the meaning ascribed to it by such rules or regulations. The Commission is authorized to amend such rules or regulations from time to time as it deems necessary.' 86 Cong.Rec. 2352.
17
The substitute for the section recommended by the Committee provided:
'Sec. 15. The provisions of this act which prohibit persons to whom such provisions apply from taking any active part in political management or in political campaigns shall be deemed to prohibit the same activities on the part of such persons as the United States Civil Service Commission has heretofore determined are at the time of the passage of this act prohibited on the part of employees in the classified civil service of the United States by the provisions of the civil-service rules prohibiting such employees from taking any active part in political management or in political campaigns.' 86 Cong.Rec. 2937 (emphasis added).
After the substitute was introduced, id., at 2928, Senator Hatch made a 'slight modification,' id., at 2937, and added the phrase in italics above.
18
See Appendix to this opinion, infra, p. 581, 93 S.Ct., p. 2898. Senator Hatch did not have Form 1236 with him on the floor during debate on § 15 and provided the pertinent portion from the Form for insertion into the Congressional Record after debate had been completed on the section. 86 Cong.Rec. 2938—2940. However, the Senator had provided the Senate with a card listing 18 rules which were described as the Civil Service Commission's construction of Civil Service Rule I, id., at 2937—2938, 2943. The card, prepared by Senator Hatch with assistance from the Commission, was a summary of pertinent portions of Form 1236, id., at 2937—2938, and was inserted into the Congressional Record, id., at 2943. It provided:
'The pertinent language in section 9 is practically a duplication of the civil-service rule prohibiting political activity of employees under the classified civil service.
'The section provides in substance, among other things, that no
such officer or employee shall take any active part in political management or in political campaigns.
'The same language of the civil-service rule has been construed as follows:
'1. Rule prohibits participation not only in national politics but also in State, county, and municipal politics.
'2. Temporary employees, substitutes, and persons on furlough or leave of absence with or without pay are subject to the regulation.
'3. Whatever an official or employee may not do directly he may not do indirectly or through another.
'4. Candidacy for or service as delegate, alternate, or proxy in any political convention is prohibited.
'5. Service for or on any political committee is prohibited.
'6. Organizing or conducting political rallies or meetings or taking any part therein except as a spectator is prohibited.
'7. Employees may express their opinions on all subjects, but they may not make political speeches.
'8. Employees may vote as they please, but they must not solicit votes; mark ballots for others; help to get out votes; act as checkers, marker, or challenger for any party or engage in other activity at the poles (sic) except the casting of his own ballot.
'9. An employee may not serve as election official unless his failure or refusal so to do would be a violation of State laws.
'10. It is political activity for an employee to publish or be connected editorially, managerially, or financially with any political newspaper. An employee may not write for publication or publish any letter or article signed or unsigned in favor of or against any political party, candidate, or faction.
'11. Betting or wagering upon the results of a primary or general election is political activity.
'12. Organization or leadership of political parades is prohibited but marching in such parades is not prohibited.
'13. Among other forms of political activity which are prohibited are distribution of campaign literature, assuming political leadership, and becoming prominently identified with political move-
ments, parties, or factions or with the success or failure of supporting any candidate for public office.
'14. Candidacy for nomination or for the election to any National, State, county, or municipal office is within the prohibition.
'15. Attending conventions as spectators is permitted.
'16. An employee may attend a mass convention or caucus and cast his vote, but he may not pass this point.
'17. Membership in a political club is permitted, but employees may not be officers of the club nor act as such.
'18. Voluntary contributions to campaign committees and organizations are permitted. An employee may not solicit, collect, or receive contributions. Contributions by persons receiving remuneration from funds appropriated for relief purposes are not permitted.'
19
That § 15's incorporation of the Civil Service Commission restatement was intended to include only those Commission interpretations consistent with the Hatch Act is demonstrated by the following colloquy between Senators Hatch and Minton, 86 Cong.Rec. 2871:
'Mr. MINTON. The right to express political opinions has been defined by the Civil Service Commission to mean the private expression of such opinions.
'Mr. HATCH: Yes; the word 'privately' is in the rule of the Civil Service Commission. It is not in . . . (§ 9 of the Hatch Act).
'Mr. MINTON. The Civil Service Commission has defined the right to express political opinions as the right to do so privately.
'Mr. HATCH. Mr. President, that is because the word 'privately' is included in the rule of the Civil Service Commission. The word 'privately' is written into the rule. That is the word which I dropped out. I did it deliberately, intentionally, and I want it to remain out.'
20
1942, 1944, and 1966, the title being changed in the 1966 edition to Political Activity.
21
The pertinent regulations, appearing in 5 CFR pt. 733, provide:
'PERMISSIBLE ACTIVITIES
§ 733.111 Permissible activities.
'(a) All employees are free to engage in political activity to the widest extent consistent with the restrictions imposed by law and this subpart. Each employee retains the right to—
'(1) Register and vote in any election;
'(2) Express his opinion as an individual privately and publicly on political subjects and candidates;
'(3) Display a political picture, sticker, badge, or button;
'(4) Participate in the nonpartisan activities of a civic, community, social, labor, or professional organization, or of a similar organization;
'(5) Be a member of a political party or other political organiza-
tion and participate in its activities to the extent consistent with law;
'(6) Attend a political convention, rally, fund-raising function; or other political gathering;
'(7) Sign a political petition as an individual;
'(8) Make a financial contribution to a political party or organization;
'(9) Take an active part, as an independent candidate, or in support of an independent candidate, in a partisan election covered by § 733.124;
'(10) Take an active part, as a candidate or in support of a candidate, in a nonpartisan election;
'(11) Be politically active in connection with a question which is not specifically identified with a political party, such as a constitutional amendment, referendum, approval of a municipal ordinance or any other question or issue of a similar character;
'(12) Serve as an election judge or clerk, or in a similar position to perform nonpartisan duties as prescribed by State or local law; and
'(13) Otherwise participate fully in public affairs, except as prohibited by law, in a manner which does not materially compromise his efficiency or integrity as an employee or the neutrality, efficiency, or integrity of his agency.
'(b) Paragraph (a) of this section does not authorize an employee to engage in political activity in violation of law, while on duty, or while in a uniform that identifies him as an employee. The head of an agency may prohibit or limit the participation of an employee or class of employees of his agency in an activity permitted by paragraph (a) of this section, if participation in the activity would interfere with the efficient performance of official duties, or create a conflict or apparent conflict of interests.
'PROHIBITED ACTIVITIES
§ 733.121 Use of official authority; prohibition.
'An employee may not use his official authority or influence for the purpose of interfering with or affecting the result of an election.
§ 733.122 Political management and political campaigning; prohibitions
'(a) An employee may not take an active part in political man-
agement or in a political campaign, except as permitted by this subpart.
'(b) Activities prohibited by paragraph (a) of this section include but are not limited to—
'(1) Serving as an officer of a political party, a member of a National, State, or local committee of a political party, an officer or member of a committee of a partisan political club, or being a candidate for any of these positions;
'(2) Organizing or reorganizing a political party organization or political club;
'(3) Directly or indirectly soliciting, receiving, collecting, handling, disbursing, or accounting for assessments, contributions, or other funds for a partisan political purpose;
'(4) Organizing, selling tickets to, promoting, or actively participating in a fund-raising activity of a partisan candidate, political party, or political club;
'(5) Taking an active part in managing the political campaign of a partisan candidate for public office or political party office;
'(6) Becoming a partisan candidate for, or campaigning for, an elective public office;
'(7) Soliciting votes in support of or in opposition to a partisan candidate for public office or political party office;
'(8) Acting as recorder, watcher, challenger, or similar officer at the polls on behalf of a political party or partisan candidate;
'(9) Driving voters to the polls on behalf of a political party or partisan candidate;
'(10) Endorsing or opposing a partisan candidate for public office or political party office in a political advertisement, a broadcast, campaign literature, or similar material;
'(11) Serving as a delegate, alternate, or proxy to a political party convention;
'(12) Addressing a convention, caucus, rally, or similar gathering of a political party in support of or in opposition to a partisan candidate for public office or political party office; and
'(13) Initiating or circulating a partisan nominating petition.'
22
According to an affidavit filed in District Court by the General Counsel for the Civil Service Commission, App. 54:
'The Information Unit (in the Office of General Counsel) answers inquiries, from whatever source, concerning the application of the Hatch Act, Rule, and regulations.'
1
Appointment is made by the President by and with the advice and consent of the Senate to postmaster positions of the first, second and third classes, but these positions are in the competitive classified service under the act of June 25, 1938.
2
See sec. 35.
3
See sec. 8.
4
A Federal employee who resigns at the expiration of his accrued leave may accept a State or municipal position after his last day of active Federal service (16 Comp.Gen. 776, Feb. 19, 1937).
5
Includes assistant professorships in a State college, assistant lectureships in an evening school of a municipal university, instructorships in a State college, and similar positions in State and municipal colleges and universities. (Minutes of Commission, August 7, 1937.)
1
'For regulation of employees it is not necessary that the act regulated by anything more than an act reasonably deemed by Congress to interfere with the efficiency of the public service.' United Public Workers v. Mitchell, 330 U.S. 75, 101, 67 S.Ct. 556, 570.
2
S. 3046, as reported by the Senate Committee on Privileges and Elections, authorized 'the Civil Service Commission to define the term 'active part in political management or in political campaigns' as that term is used in the prohibitions applicable to Federal employees and in the prohibitions applicable to State and local officers and employees.' S.Rep.No.1236, 76th Cong., 3d Sess., 2. The Senate was reluctant to leave the task of defining these terms 'to some bureaucratic board which has absolutely no knowledge of political conditions and circumstances in any section of the country.' 86 Cong.Rec. 2427 (remarks of Sen. Lucas). The section also was challenged as an unconstitutional delegation of legislative authority. Id., at 2579 (remarks of Sen. Brown and Sen. McKellar). Others were concerned with problems of fairness. Id., at 2720 (Sen. Bankhead).
3
Id., at 2928.
| 23
|
413 U.S. 665
93 S.Ct. 2926
37 L.Ed.2d 873
James Roy GOSA, Petitioner,v.J. A. MAYDEN, Warden. John W. WARNER, Secretary of the Navy, Petitioner, v. John W. FLEMINGS.
Nos. 71—6314, 71—1398.
Argued Dec. 4, 1972.
Decided June 25, 1973.
Syllabus
In No. 71—6314, petitioner was tried by court-martial and convicted of rape. His conviction was affirmed by the Air Force Board of Review, and the Court of Military Appeals denied a petition for review. At no time during the trial and review proceedings did petitioner question the jurisdiction of the Military tribunal. Thereafter, following the decision in O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (holding that when a serviceman is charged with a crime that is not 'service connected' he is entitled to indictment by a grand jury and trial by jury in a civilian court), petitioner sought a writ of habeas corpus in Federal District Court which was denied, the court concluded that the standards promulgated in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 precluded retroactive application of O'Callahan. On appeal, in face of the Government's concession that the offense was not service connected, the Court of Appeals affirmed. In No. 71—1398, respondent, while absent without leave in 1944, was apprehended in Pennsylvania while in an automobile stolen in New Jersey. He was tried by court-martial in New York on charges of unauthorized absence from his duty station during wartime and theft of an automobile from a civilian. He pleaded guilty, and after serving two years' confinement was dishonorably discharged in 1946. He instituted suit in 1970, relying on O'Callahan, seeking to compel the Secretary of the Navy to overturn his court-martial conviction for auto theft and to correct his military records with respect to his dishonorable discharge. The District Court held that the car theft was not service connected in the O'Callahan sense and that O'Callahan was to be applied retroactively. The Court of Appeals affirmed. Held: The judgment in No. 71—6314 is affirmed, and the judgment in No. 71—1398 is reversed. Pp. 672—693.
No. 71—6314, 450 F.2d 753, affirmed; No. 71—1398, 458 F.2d 544, reversed.
Mr. Justice BLACKMUN, joined by THE CHIEF JUSTICE, Mr. Justice WHITE, and Mr. Justice POWELL, concluded that:
1
1. The question in O'Callahan was the appropriateness of the exercise of jurisdiction by a military forum, pursuant to an Act of Congress, over a nonservice-connected offense when balanced against the guarantees of the Fifth and Sixth Amendments. Pp. 672 678.
2
2. Application of the three-pronged test of Stovall v. Denno, supra, '(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards,' requires that O'Callahan be accorded prospective effect only. Pp. 678—685.
3
3. Respondent's claim in No. 71—1398 that he was deprived of the right to trial in the vicinage, as guaranteed by Art. III, § 2, cl. 3, not raised before the military court, lacks merit. General court-martial jurisdiction, derived from Art. I, is not restricted territorially to a particular State or district; the vicinage requirement has primary relevance to trial by jury; and respondent has not demonstrated prejudice. Pp. 685—686.
4
Mr. Justice DOUGLAS concluded, in No. 71—6314, that the case should be reargued on the question whether the 'jurisdiction' of the military tribunal, being not contested, had become res judicata; and in No. 71—1398, that respondent committed a 'service connected' crime. Pp. 686—691.
5
Mr. Justice REHNQUIST concluded, in No. 71—6314, that although the prior Court decisions do not support the holding that O'Callahan should not be applied retroactively, O'Callahan was wrongly decided and should be overruled; and, in No. 71—1398, that any crime committed by a serviceman during the time of declared war is 'service connected' and that he can be validly tried by court-martial for that offense. P. 692.
6
Mr. Justice STEWART concluded, in No. 71—1398, that respondent, a serviceman who deserted his post during a time of congressionally declared war and stole an automobile was guilty of a 'service connected' offense and was properly tried before a court-martial under O'Callahan. P. 693. John R. Saalfield, Jacksonville, Fla., for petitioner James Roy Gosa.
7
Solicitor Gen. Erwin N. Griswold for respondent J. A. Mayden and petitioner John W. Warner.
8
Michael Meltsner, New York City, for respondent John W. Flemings.
9
Mr. Justice BLACKMUN announced the judgments of the Court and an opinion in which THE CHIEF JUSTICE, Mr. Justice WHITE and Mr. Justice POWELL join.
10
In O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291, decided June 2, 1969, this Court, by a 5—3 vote, held that when a person in military service is charged with a crime that is not 'service connected,' id., at 272, 89 S.Ct., at 1690, the defendant is entitled, despite his military status, to the benefit of 'two important constitutional guarantees,' id., at 273, 89 S.Ct., at 1691, namely, indictment by a grand jury1 and trial by jury in a civilian court.
11
The Court noted that O'Callahan was 'properly absent from his military base when he committed the crimes with which he is charged,' ibid.; that there was no connection between his military duties and the crimes; that the offenses were committed off the military post or enclave; that the victim was not performing any duty relating to the military; that the situs of the crimes was not occupied territory or under military control; that they were peacetime offenses; that the civilian courts were open; and that the offenses involved no question of the flouting of military authority, post security, or the integrity of military property.
12
Later, in Relford v. Commandant, 397 U.S. 934, 90 S.Ct. 958, 25 L.Ed.2d 114 (1970), we granted certiorari 'limited to retroactivity and scope of O'Callahan v. Parker.' When Relford was decided, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971), we held that an offense committed on a military post by an individual in service, in violation of the security of another person or property on that post, was 'service connected,' within O'Callahan's language. Relford's offenses so qualified. His case, thus, went off on the scope of O'Callahan and did not reach the issue of retroactivity. We concluded that the latter issue, although having 'important dimensions, both direct and collateral,' was 'better resolved in other litigation where, perhaps, it would be solely dispositive of the case.' Id., at 370, 91 S.Ct., at 657. One of the cases, Gosa, now before us presents that issue solely. The other case, Flemings, presents the issue, but not solely.
13
* No. 71—6314. In December 1966 petitioner James Roy Gosa, an airman third class, stationed at Warren Air Force Base in Wyoming, was tried by a courtmartial and convicted of rape, in violation of Art. 120 of the Uniform Code of Military Justice, 10 U.S.C. § 920.
14
The offense took place the preceding August, in what the respondent has stated to be peacetime,2 when Gosa was in the city of Cheyenne. At the time, he was officially off duty and absent from the base on authorized leave. He was not in uniform. The victim was not connected with the military or related to military personnel. Shortly after the incident Gosa was arrested by civilian authorities. He was unable to make bond and was detained pending a preliminary hearing. The complaining witness did not appear at the hearing. Gosa, accordingly, was released. He was taken into military custody, however, and charged with the Art. 120 violation. A general court-martial was convened. Gosa was tried and convicted. He was sentenced to 10 years' imprisonment at hard labor, forfeiture of pay and allowances, reduction in rank to the lowest pay grade of airman basic, and a bad conduct discharge. As required by Art. 61 of the Code, 10 U.S.C. § 861, the convening authority then referred the case to his staff judge advocate for review. The staff judge advocate's recommendation that the findings and sentence of the general court-martial be approved were adopted by the convening authority. Pursuant to Art. 66 of the Code, 10 U.S.C. § 866, the case was referred to an Air Force Board of Review. That Board affirmed the conviction and sentence. On August 16, 1967, the United States Court of Military Appeals denied a petition for review. 17 U.S. C.M.A. 648. The case thereupon became final, Art. 76 of the Code, 10 U.S.C. § 876, subject, of course, to the habeas corpus exception recognized in United States v. Augenblick, 393 U.S. 348, 349—350, 89 S.Ct. 528, 530, 21 L.Ed.2d 537 (1969).
15
At no time throughout the trial and the review proceedings did Gosa raise any question as to the power of the military tribunal to try him.
16
Following the Court's decision in O'Callahan, Gosa filed an application for a writ of habeas corpus in the United States District Court for the Northern District of Florida seeking his release from the Federal Correctional Institution at Tallahassee where he was then confined.3 Subsequently, he filed with the United States Court of Military Appeals a motion to vacate his sentence and conviction; this was treated as a petition for reconsideration and was denied by a divided vote with accompanying opinions. 19 U.S.C.M.A. 327, 41 C.M.R. 327 (1970). The habeas application also was denied by the District Court upon its determination that the standards promulgated in Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967), and related cases, precluded retroactive application of O'Callahan. 305 F.Supp. 1186 (N.D.Fla.1969). On appeal, in the face of a Government concession that the alleged offense was not service connected, the Court of Appeals for the Fifth Circuit, one judge dissenting, affirmed. 450 F.2d 753 (1971).
17
No. 71—1398. In 1944, when the United States was formally at war, respondent James W. Flemings, then age 18 and a seaman second class, was stationed at the Naval Ammunition Depot in New Jersey. On August 7 of that year Flemings failed to return on time from an authorized three-day leave. He was apprehended by Pennsylvania police while he was in an automobile stolen two days earlier in Trenton, New Jersey. Flemings was turned over to military authorities. He was charged with unauthorized absence from his duty station during wartime and with theft of an automobile 'from the possession of . . . a civilian.'4
18
A court-martial was convened at the Brooklyn Navy Yard. Flemings, represented by a reserve lieutenant, pleaded guilty to the two charges. He was sentenced to three years' imprisonment, reduction in rank to apprentice seaman, and dishonorable discharge. After two years' confinement he was released and was dishonorably discharged in October 1946.
19
In 1970, Flemings instituted suit in the United States District Court for the Eastern District of New York, relying on O'Callahan and seeking to compel the Secretary of the Navy to overturn the 1944 court-martial conviction for auto theft and to correct his military records with respect to the dishonorable discharge. He did not challenge the validity of his conviction for being absent without leave.
20
The District Court held that the auto theft offense was not service connected in the O'Callahan sense and that O'Callahan was to be applied retroactively to invalidate the court-martial conviction on that charge. 330 F.Supp. 193 (EDNY 1971). The Court of Appeals for the Second Circuit affirmed. 458 F.2d 544 (1972).
21
We granted certiorari, in both cases to resolve the conflict. 407 U.S. 920 and 919, 92 S.Ct. 2467 and 2461, 32 L.Ed.2d 805 (1972).5
II
22
O'Callahan v. Parker, to use the words Mr. Justice Stewart employed in Desist v. United States, 394 U.S. 244, 248, 89 S.Ct. 1030, 1032, 22 L.Ed.2d 248 (1969), was 'a clear break with the past.' In O'Callahan the Court concluded that, in harmonizing the express guarantees of the Fifth and Sixth Amendments, with respect to grand jury indictment and trial by a civilian jury, with the power of Congress, under Art. I, § 8, cl. 14, of the Constitution, 'To make Rules for the Government and Regulation of the land and naval Forces,' a military tribunal ordinarily may not try a serviceman charged with a crime that has no service connection. Although the Court in O'Callahan did not expressly overrule any prior decision, it did announce a new constitutional principle, and it effected a decisional change in attitude that had prevailed for many decades. The Court long and consistently had recognized that military status in itself was sufficient for the exercise of court-martial jurisdiction. Kinsella v. Singleton, 361 U.S. 234, 240—241, 243, 80 S.Ct. 297, 300—301, 302, 4 L.Ed.2d 268 (1960); Reid v. Covert, 354 U.S. 1, 22—23, 77 S.Ct. 1222, 1233, 1 L.Ed.2d 1148 (1957); Grafton v. United States, 206 U.S. 333, 348, 27 S.Ct. 749, 752, 51 L.Ed. 1084 (1907); Johnson v. Sayre, 158 U.S. 109, 114, 15 S.Ct. 773, 775, 39 L.Ed. 914 (1895); Smith v. Whitney, 116 U.S. 167, 184—185, 6 S.Ct. 570, 579, 29 L.Ed. 601 (1886); Coleman v. Tennessee, 97 U.S. 509, 24 L.Ed. 1118 (1879); Ex parte Milligan, 4 Wall. 2, 123, 18 L.Ed. 281 (1866). Indeed, in Grafton, 206 U.S., at 348, 27 S.Ct., at 752, the Court observed, 'While . . . the jurisdiction of general courts-martial extends to all crimes, not capital, committed against public law by an officer or soldier of the Army within the limits of the territory in which he is serving, this jurisdiction is not exclusive, but only concurrent with that of the civil courts.'
23
The new approach announced in O'Callahan was cast, to be sure, in 'jurisdictional' terms, but this was 'lest 'cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger,' as used in the Fifth Amendment, be expanded to deprive every member of the armed services of the benefits of an indictment by a grand jury and a trial by a jury of his peers' (footnote omitted). 395 U.S., at 272 273, 89 S.Ct., at 1690—1691. The Court went on to emphasize that the 'power of Congress to make 'Rules for the Government and Regulation of the land and naval Forces,' Art. I, § 8, cl. 14, need not be sparingly read in order to preserve those two important constitutional guarantees. For it is assumed that an express grant of general power to Congress is to be exercised in harmony with express guarantees of the Bill of Rights.' Id., at 273, 89 S.Ct., at 1691. The basis for the 'jurisdictional' holding in O'Callahan obviously was the increasing awareness and recognition of the important constitutional values embodied in the Fifth and Sixth Amendments. Faced with the need to extend the protection of those Amendments as widely as possible, while at the same time respecting the power of Congress to make 'Rules for the Government and Regulation of the land and naval Forces,' the Court, id., at 265, 89 S.Ct., at 1686, heeded the necessity for restricting the exercise of jurisdiction by military tribunals to those crimes with a service connection as an appropriate and beneficial limitation 'to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service.' Toth v. Quarles, 350 U.S. 11, 22, 76 S.Ct. 1, 8, 100 L.Ed. 8 (1955).
24
That O'Callahan dealt with the appropriate exercise of jurisdiction by military tribunals is apparent from Kinsella v. Singleton, supra, where the Court ruled that the Necessary and Proper Clause, Art. I, § 8, cl. 18, does not enable Congress to broaden the term 'land and naval Forces' in Art. I, § 8, cl. 14, to include a civilian dependent accompanying a member of the Armed Forces overseas. In such a case, it was held, a civilian dependent is entitled to the safeguards of Art. III and of the Fifth and Sixth Amendments, and conviction by court-martial is not constitutionally permissible:
25
'But the power to 'make Rules for the Government and Regulation of the land and naval Forces' bears no limitation as to offenses. The power there granted includes not only the creation of offenses but the fixing of the punishment therefor. If civilian dependents are included in the term 'land and naval Forces' at all, they are subject to the full power granted the Congress therein to create capital as well as noncapital offenses. This Court cannot diminish and expand that power, either on a case-by-case basis or on a balancing of the power there granted Congress against the safeguards of Article III and the Fifth and Sixth Amendments. Due process cannot create or enlarge power. . . . It deals neither with power nor with jurisdiction, but with their exercise.' 361 U.S., at 246, 80 S.Ct., at 303.
26
Although the decision in O'Callahan emphasizes the difference in procedural protections respectively afforded by the military and the civilian tribunals, the Court certainly did not hold, or even intimate, that the prosecution in a military court of a member of the Armed Services for a nonservice-connected crime was so unfair as to be void ad initio. Rather, the prophylactic rule there formulated 'created a protective umbrella serving to enhance' a newly recognized constitutional principle. Michigan v. Payne, 412 U.S. 47, 54, 93 S.Ct. 1966, 1970, 36 L.Ed.2d 736 (1973). That recognition and effect are given to a theretofore unrecognized and uneffectuated constitutional principle does not, of course, automatically mandate retroactivity. In Williams v. United States, 401 U.S. 646, 651, 91 S.Ct. 1148, 1151, 28 L.Ed.2d 388 (1971), Mr. Justice White made it clear, citing Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), that the Court has 'firmly rejected the idea that all new interpretations of the Constitution must be considered always to have been the law and that prior constructions to the contrary must always be ignored.' See Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 374, 60 S.Ct. 317, 318, 84 L.Ed. 329 (1940). And in Johnson v. New Jersey, 384 U.S. 719, 728, 86 S.Ct. 1772, 1778, 16 L.Ed.2d 882 (1966), it was said that 'the choice between retroactivity and nonretroactivity in no way turns on the value of the constitutional guarantee involved.'
27
Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), and Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968), are illustrative of the context of the O'Callahan decision. In Duncan, the Court held that since 'trial by jury in criminal cases is fundamental to the American scheme of justice, . . . the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which—were they to be tried in a federal court—would come within the Sixth Amendment's guarantee' (footnote omitted). 391 U.S., at 149, 88 S.Ct., at 1447. In Bloom the Court held that serious criminal contempts may not be summarily punished and that they are subject to the Constitution's jury trial provision. 391 U.S., at 201—210, 88 S.Ct., at 1481 1486. In those two cases the Court ruled that a state court exercising jurisdiction over a defendant in a serious criminal or criminal contempt case, but failing to honor a request for a jury trial, in effect was without jurisdiction. Yet in DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968), the Court by a per curiam opinion, denied retroactive application to those new constitutional holdings. The Court thus concluded that it did not follow that every judgment rendered in a Duncan or in a Bloom situation, prior to the decisions in those cases, was so infected by unfairness as to be null and void.
28
The same analysis has pertinent application to these very similar cases, and it leads us to the conclusion that the validity of convictions by military tribunals, now said to have exercised jurisdiction inappropriately over nonservice-connected offenses is not sufficiently in doubt so as to require the reversal of all such convictions rendered since 1916 when Congress provided for military trials for civilian offenses committed by persons in the Armed Services. Act of Aug. 29, 1916, c. 418, 39 Stat. 652.
29
The clearly opposing and contrasting situation is provided by the argument made by respondent Flemings to the effect that the retroactivity of O'Callahan is to be determined and is controlled by United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971). In that case the Court held that its decisions in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), and Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968), precluding the criminal conviction of a gambler who properly asserted his Fifth Amendment privilege against self-incrimination as a reason for his failure to register and to pay the federal gambling tax, would be applied retroactively so as to invalidate forfeiture proceedings under 26 U.S.C. § 7302 ensuing upon the invalid conviction. To suggest that Coin & Currency is controlling is to ignore the important distinction between that case and these. There the Court determined that retrospective application of Marchetti and Grosso was required because they 'dealt with the kind of conduct that cannot constitutionally be punished in the first instance,' 401 U.S., at 723, 91 S.Ct., at 1046; it was conduct 'constitutionally immune from punishment' in any court. Id., at 724, 91 S.Ct.At 1046.
30
In O'Callahan, on the other hand, the offense was one for which the defendant was not so immune in any court. The question was not whether O'Callahan could have been prosecuted; it was, instead, one related to the forum, that is, whether, as we have said, the exercise of jurisdiction by a military tribunal, pursuant to an act of Congress, over his nonservice-connected offense was appropriate when balanced against the important guarantees of the Fifth and Sixth Amendments. The Court concluded that in the circumstances there presented the exercise of jurisdiction was not appropriate, and fashioned a rule limiting the exercise of court-martial jurisdiction in order to protect the rights to indictment and jury trial. The Court did not hold that a military tribunal was and always had been without authority to exercise jurisdiction over a nonservice-connected offense.
III
31
The foregoing conclusion, of course, does not end our inquiry as to whether O'Callahan should be accorded retroactive application.
32
In two cases decided earlier this Term, retrospectivity of a new constitutional decision was also an issue. Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973), concerned successive municipal and state prosecutions for alleged offenses arising from the same circumstances, and a claim of double jeopardy, based on this Court's intervening decisions in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), and Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970). We recognized that in Linkletter the Court was 'charting new ground' in the retrospectivity area, 409 U.S., at 507, 93 S.Ct., at 877, that 'Linkletter and succeeding cases,' ibid., obviously including Stovall v. Denno, 388 U.S., at 297, 87 S.Ct., at 1970, established standards for determining retroactivity; that Robinson, however, did not readily lend itself to the Linkletter analysis; that Linkletter and its related cases dealt with procedural rights and trial methods; and that guarantees not related to procedural rules 'cannot, for retroactivity purposes, be lumped conveniently together in terms of analysis.' Robinson v. Neil, 409 U.S., at 508, 93 S.Ct., at 878.
33
In Michigan v. Payne, 412 U.S. 47, 93 S.Ct. 1966, 36 L.Ed.2d 736 (1973), we were concerned with the retroactivity of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and the standards it promulgated with respect to an increased judge-imposed sentence on retrial after a successful appeal. We there employed the Stovall criteria and held that Pearce was not to be applied retroactively.
34
In the present cases we are not concerned, of course, with procedural rights or trial methods, as is exemplified by the decisions concerning the exclusionary rule (Linkletter), the right of confrontation (Stovall), adverse comment on a defendant's failure to take the stand (Tehan v. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966)), and a confession's admissibility (Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966)). But neither are we concerned, as we were in Robinson, with a constitutional right that operates to prevent another trial from taking place at all. Our concern, instead, is with the appropriateness of the exercise of jurisdiction by a military forum.
35
These cases, therefore, closely parallel DeStefano v. Woods, supra, where the Court denied retroactive application to Duncan v. Louisiana, supra, and Bloom v. Illinois, supra, in each of which a right to a jury trial had been enunciated. In denying retroactivity, the integrity of each of the earlier proceedings, without a jury, was recognized. The test applied in DeStefano was the Stovall test. 392 U.S., at 633—635, 88 S.Ct., at 2095—2096. Similarly here, then, the three-prong test of Stovall has pertinency, and we proceed to measure Gosa's and Flemings' claims by that test directed to '(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.' 388 U.S., at 297, 87 S.Ct., at 1970.
36
A. Purpose. 'Foremost among these factors is the purpose to be served by the new constitutional rule.' Desist v. United States, 394 U.S. 244, 249, 89 S.Ct. 1030, 1033, 22 L.Ed.2d 248 (1969). In his opinion for the plurality in Williams v. United States, 401 U.S., at 653, 91 S.Ct., at 1152, Mr. Justice White emphasized that where 'the major purpose of new constitutional doctrine is to overcome' a trial aspect 'that substantially impairs its truth-finding function,' the new rule is given complete retroactive effect, and '(n)either good-faith reliance' nor 'severe impact on the administration of justice' suffices to require prospectivity.
37
Our initial concern, therefore, is whether the major purpose of the holding in O'Callahan was to overcome an aspect of military trials which substantially impaired the truth-finding process and brought into question the accuracy of all the guilty verdicts rendered by military tribunals. At the same time, however, the fact that a new rule tends incidentally to improve or enhance reliability does not in itself mandate the rule's retroactive application. The Court in Johnson v. New Jersey, 384 U.S., at 728, 86 S.Ct., at 1778, repeated what had been suggested in Linkletter and Tehan, that 'we must determine retroactivity 'in each case' by looking to the peculiar traits of the specific 'rule in question" and
38
'(f)inally, we emphasize that the question whether a constitutional rule of criminal procedure does or does not enhance the reliability of the factfinding process at trial is necessarily a matter of degree. . . . We are thus concerned with a question of probabilities and must take account, among other factors, of the extent to which other safeguards are available to protect the integrity of the truth-determining process at trial.' 384 U.S., at 728—729, 86 S.Ct., at 1778—1779.
39
See Michigan v. Payne, 412 U.S., at 55, 96 S.Ct., at 1970 1971. Thus, retroactivity is not required by a determination that the old standard was not the most effective vehicle for ascertaining the truth, or that the truth-determining process has been aided somewhat by the new standard, or that one of several purposes in formulating the new standard was to prevent distortion in the process.
40
Although the opinion in O'Callahan was not uncritical of the military system of justice, and stressed possible command influence and the lack of certain procedural safeguards, 395 U.S., at 263—266, 89 S.Ct., at 1685—1687, the decision there, as has been pointed out above, certainly was not based on any conviction that the court-martial lacks fundamental integrity in its truth-determining process.6 Indeed, our subsequent ruling in Relford itself indicates our conclusion that military criminal proceedings are not basically unfair, for Relford clearly approves prosecution in a military court, of what is otherwise a civilian crime, when factors are present that establish the offense's 'service connection.' 401 U.S., at 364 365, 91 S.Ct., at 654—655. See Mr. Chief Justice Warren's paper, The Bill of Rights and the Military, 37 N.Y.U.L.Rev. 181, 188—189 (1962).
41
It, of course, would demean the constitutional rights to indictment and trial by a jury to assert that those guarantees do not play some role in assuring the integrity of the truth-determining process. '(T)he right to jury trial generally tends to prevent arbitrariness and repression.' DeStefano v. Woods, 392 U.S., at 633, 88 S.Ct., at 2095. The same mission is fulfilled by the indictment right. But a policy directed at the prevention of arbitrariness and repression is not confined to the truth-determining process. It is concerned, as well, with a larger range of possible evils: prosecution that is malicious, prosecutorial overzealousness, excessiveness of sentence and the like. These very ingredients were also present in the background in Duncan and Bloom. Yet, the Court did not find it necessary to hold retroactive the rights newly established by those cases.
42
Nothing said in O'Callahan indicates that the major purpose of that decision was to remedy a defect in the truth-determining process in the military trial. Rather, the broad guarantees of the Fifth Amendment right to grand jury indictment and the Sixth Amendment right to jury trial weighed heavily in the limitation of the exercise of court-martial jurisdiction to "the least possible power adequate to the end proposed," Toth v. Quarles, 350 U.S. 11, 23, 76 S.Ct. 1, 8, 100 L.Ed. 8 (1955), a phrase taken from Anderson v. Dunn, 6 Wheat. 204, 231, 5 L.Ed. 242 (1821).
43
The purpose behind the rule enunciated in O'Callahan thus does not mandate retroactivity.
44
B. Reliance. With respect to this factor, we repeat what has been emphasized above, namely, that, before O'Callahan, the law was settled that the exercise of military jurisdiction over an offense allegedly committed by a member of the Armed Forces was appropriately based on the military status of the defendant and was not dependent on the situs or nature of the offense. There was justifiable and extensive reliance by the military and by all others on the specific rulings of this Court. Military authorities were acting appropriately pursuant to provisions of the Uniform Code of Military Justice, Art. 2, 10 U.S.C. § 802, and its predecessors, and could not be said to be attempting to usurp civilian authority. The military is not to be faulted for its reliance on the law as it stood before O'Callahan and for not anticipating the 'clear break with the past' that O'Callahan entailed. The reliance factor, too, favors prospectivity.
45
C. Effect on the Administration of Justice. In DeStefano v. Woods, 392 U.S., at 634, 88 S.Ct., at 2095, the Court, in considering the retroactivity of Duncan and Bloom, attached special significance to the fact that 'the effect of a holding of general retroactivity on law enforcement and the administration of justice would be significant, because the denial of jury trial has occurred in a very great number of cases.' The very same factor is present with like significance here, for the military courts have been functioning in this area since 1916, appropriately assuming from this Court's successive holdings, that they were properly exercising jurisdiction in cases concerning nonservice-connected offenses allegedly committed by servicemen.
46
A mere glance at the reports of the United States Court of Military Appeals discloses the volume of prosecutions in military tribunals. Retrospective application of O'Callahan would not only affect the validity of many criminal convictions but would result in adjustments and controversy over back pay, veterans' benefits, retirement pay, pensions, and other matters. In addition, the task of establishing a service connection on the basis of a stale record or in a new trial would prove formidable if not impossible in many cases, since at the time the record was made the question whether there was a service connection was of no importance.
47
Gosa and Flemings press upon us a recent law review article. Blumenfeld, Retroactivity After O'Callahan: An Analytical and Statistical Approach, 60 Geo.L.J. 551 (1972). The author of that article concludes: (1) On the basis of a sampling of cases reviewed by the Court of Military Appeals and the Army Court of Military Review between June 2, 1969 (the date of O'Callahan), and December 31, 1970, only about 1% of the general court-martial cases were service connected. Id., at 580 n. 147. (2) '(V)ery few' servicemen have sought collateral review of their convictions since O'Callahan was decided. Id., at 578 n. 141. The author asserts, however: 'Even if the number of requests for relief sent to military departments should exceed expectations, the Defense Department, with an abundance of personnel and computers, could develop procedures to insure a quick review.' Id., at 572. (3) The military has necessary machinery to process claims and petitions for review. Id., at 571—575. (4) The financial impact of a ruling of retroactivity would not be great since most servicemen convicted of nonservice-connected crimes would not be entitled to retirement or pension pay and, in any event, the average return should not exceed $1,500. Id., at 574—575.
48
In Mercer v. Dillon, 19 U.S.C.M.A. 264, 41 C.M.R. 264 (1970), the United States Court of Military Appeals, a tribunal composed of civilian judges, 10 U.S.C. § 867, but uniquely familiar with the military system of justice, spoke in another vein.7 A pertinent factor, too, is that until Flemings' case emerged in the Second Circuit, the civilian and the military courts had ruled against applying O'Callahan retroactively; thus there was no decisional impetus to encourage litigation.
49
We must necessarily also consider the impact of a retroactivity holding on the interests of society when the new constitutional standard promulgated does not bring into question the accuracy of prior adjudications of guilt. Wholesale invalidation of convictions rendered years ago could well mean that convicted persons would be freed without retrial, for witnesses, particularly military ones, no longer may be readily available, memories may have faded, records may be incomplete or missing, and physical evidence may have disappeared. Society must not be made to tolerate a result of that kind when there is no significant question concerning the accuracy of the process by which judgment was rendered or, in other words, when essential justice is not involved.
50
We conclude that the purpose to be served by O'Callahan, the reliance on the law as it stood before that decision, and the effect of a holding of retroactivity, all require that O'Callahan be accorded prospective application only. We so hold.8
IV
51
Flemings also urges that, because his court-martial proceeding was convened in Brooklyn, whereas the auto theft took place in New Jersey and his arrest in Pennsylvania, he was deprived of the right to a trial in the vicinage, as guaranteed by Art. III, § 2, cl. 3, of the Constitution. This claim was not raised before the military court. Moreover, a military tribunal is an Article I legislative court with jurisdiction independent of the judicial power created and defined by Article III. Ex parte Quirin, 317 U.S. 1, 39, 63 S.Ct. 1, 16, 87 L.Ed. 3 (1942); Whelchel v. McDonald, 340 U.S. 122, 127, 71 S.Ct. 146, 149, 95 L.Ed. 141 (1950); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 165, 83 S.Ct. 554, 565, 9 L.Ed.2d 644 (1963). General court-martial jurisdiction is not restricted territorially to the limits of a particular State or district. 1 W. Winthrop, Military Law and Precedents 104—105 (2d ed. 1896). And the vicinage requirement has primary relevance to trial by jury. In any event, Flemings has demonstrated no prejudice.
52
The judgment in No. 71—6314 is affirmed; that in No. 71—1398 is reversed.
53
It is so ordered.
54
Judgment in No. 71—6314 affirmed; judgment in No. 71—1398 reversed.
55
Mr. Justice DOUGLAS, concurring in the result in part in No. 71—6314 and concurring in the result in No. 71—1398.
56
I agree with Mr. Justice STEWART that respondent Flemings committed a 'service connected' crime.1
57
As to the Gosa case I think the case should be put down for reargument on whether res judicata controls the disposition of the case. The argument that it does goes as follows:
58
Petitioner Gosa was tried for rape before a military tribunal and convicted. The case went through the hierarchy of review within the military establishment and after the conviction and sentence were affirmed, a petition for review was filed with the Court of Military Appeals (a civilian court created by Congress); but that court denied review.2 The events described took place in 1966 and 1967. On June 2, 1969, we decided O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291, invalidating the court-martial conviction for rape committed off the military base by a serviceman who was on leave.
59
O'Callahan in that respect is on all fours with the instant case, for here petitioner was officially off-duty, in civilian clothes, and was found to have raped a civilian in no way connected with the military, while he was in Cheyenne, Wyoming, near Warren Air Force Base but not on the base.
60
O'Callahan was decided in 1969 and in reliance on it petitioner Gosa started this habeas corpus action3 seeking release from his confinement under the military sentence.
61
The question whether one of our constitutional decisions should be retroactively applied has been before us on numerous occasions. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601; Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199; Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248; DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308.
62
But in all cases to date which involved retroactivity the question has been whether the court whose judgment is being reviewed should be required in the interests of substantial justice to retry the accused under the new constitutional rule announced by the Court after the first trial had been completed but before the new constitutional decision was announced. The measure applied as to whether the new rule should be prospective or retroactive4 was the three-pronged test stated in Stovall v. Denno, 388 U.S., supra, at 297, 87 S.Ct., 1970. 'The criteria guiding resolution of the question implicates (a) the purpose to be served by the new standards (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administrative of justice of a retroactive application of the new standards.'
63
Here the question is whether a civilian, rather than a military, tribunal should have tried him. Does the question whether the 'jurisdiction'5 of the military tribunal can be contested at this late date turn on whether res judicata bars that inquiry?
64
Petitioner Gosa in the review of his conviction by the military tribunal never raised the question raised in O'Callahan.6 If he was 'constitutionally immune from punishment' in any court, we would have the problem presented in United States v. U.S. Coin & Currency, 401 U.S. 715, 723—724, 91 S.Ct. 1041, 1045—1046, 28 L.Ed.2d 434. But petitioner was not tried by a kangaroo court or by eager vigilantes but by military authorities within the framework established by Congress in the Uniform Code of Military Justice.
65
The case is somewhat unlike McClaughry v. Deming, 186 U.S. 49, 22 S.Ct. 786, 46 L.Ed. 1049, where a court-martial was constituted of officers of the regular army who by an Act of Congress were not authorized to sit in judgment on volunteers. The court-martial was held incompetent to sit on the case because it acted in plain violation of an Act of Congress. There was therefore no tribunal authorized by law to render the challenged judgment. Consent to be so tried could not confer jurisdiction in face of the mandate of the statute. In the present cases Congress by express provisions of the Code had authorized the military tribunals to sit in these types of cases.
66
In Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329, municipal debts were readjusted by a federal district court under an Act of Congress which this Court later held to be unconstitutional. The later ruling was in Ashton v. Cameron County District, 298 U.S. 513, 56 S.Ct. 892, 80 L.Ed. 1309, where a closely divided Court held that an extension of the Bankruptcy Act to include a readjustment of the debts of municipalities and counties was unconstitutional. Petitioner had its debts readjusted under that Act, which permitted less than all of the outstanding bondholders to agree to a plan. That plan was consummated before the Ashton decision. Respondent was one of the nonconsenting bondholders. After the Ashton decision it brought suit on its bonds. The question before the Court in the Chicot County Drainage District case was the extent to which the Ashton case should be made retroactive. The Court, speaking through Mr. Chief Justice Hughes, said that the proceedings in the District Court 'were conducted in complete conformity to the statute' and that 'no question had been raised as to the regularity of the court's action.' 380 U.S., at 375, 60 S.Ct., at 319. Since the parties had an opportunity to raise the question of invalidity but did not do so, they 'were not the less bound by the decree because they failed to raise it.' Ibid. Mr. Chief Justice Hughes added, id., at 377, 60 S.Ct. at 320:
67
'Whatever the contention as to jurisdiction may be, whether it is that the boundaries of a valid statute have been transgressed, or that the statute itself is invalid, the question of jurisdiction is still one for judicial determination. If the contention is one as to validity, the question is to be considered in the light of the standing of the party who seeks to raise the question and of its particular application.'
68
He went on to say, id., at 378, 60 S.Ct. at 320:
69
'(R)es judicata may be pleaded as a bar, not only as respects matters actually presented to sustain or defeat the right asserted in the earlier proceeding, 'but also as respects any other available matter which might have been presented to that end'. Grubb v. Public Utilities Commission (281 U.S. 470, 479, 50 S.Ct. 374, 378, 74 L.Ed. 972).'
70
Petitioner claims, as did respondent in the Chicot County Drainage District case, that the tribunal that first adjudicated the cause acted unconstitutionally. At the time the military court acted, however, it was assumed to have 'jurisdiction' and its 'jurisdiction' was in no way challenged in the review proceedings available to petitioner. Did the issue of 'jurisdiction' for that case therefore become res judicata?
71
There are, in brief, the reasons why res judicata arguably should lead to an affirmance in the Gosa case. Contrary to intimations in the dissenting opinion I have reached no position on the merits and would reserve judgment until the issue was fully explored on reargument.
72
Mr. Justice REHNQUIST, concurring in the judgments.
73
I do not believe that decisions of this Court would support a holding that the rule announced in O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), should not be applied retroactively to court-martial convictions entered before the decision in that case. In O'Callahan, the Court clearly held that courts-martial did not have jurisdiction to try servicemen for 'non-service connected' crimes. For substantially the reasons stated by my Brother MARSHALL, I believe that Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973), and prior decisions mandate that O'Callahan be applied retroactively.
74
In No. 71—6314, since I believe that the O'Callahan rule could not in any event be given only prospective application, the question arises whether the analytical inquiry sanctioned by that decision should even be undertaken. O'Callahan, was, in my opinion, wrongly decided, and I would overrule it for the reasons set forth by Mr. Justice Harlan in his dissenting opinion. 395 U.S., at 274—284, 89 S.Ct., at 1691—1696.
75
In No. 71—1398, even if O'Callahan were followed, I agree with the views of my Brother STEWART. The offense was committed during a period of declared war and furthermore while respondent was absent without official leave from his military duties. For purposes of the 'service connected'—'nonservice connected' dichotomy announced by O'Callahan, I would hold that any crime committed by a member of the Armed Forces during time of war is 'service connected,' and that he can validly be tried by a court-martial for that offense. Cf. Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971).
76
I therefore concur in the judgments of the Court, and would affirm the judgment of the Court of Appeals in No. 71—6314 and reverse that in No. 71—1398.
77
Mr. Justice STEWART, dissenting in No. 71—6314, Gosa v. Mayden, and joined by Mr. Justice DOUGLAS, concurring in the result in No. 71—1398, Warner v. Flemings.
78
I dissented in O'Callahan v. Parker, 395 U.S. 258, 284, 89 S.Ct. 1683, 1692, 23 L.Ed.2d 291 (1969), and continue to believe that that case was wrongly decided. Until or unless O'Callahan is overruled, however, I think it must be given fully retroactive application for the reasons stated in my Brother MARSHALL's persuasive dissenting opinion, post, this page. Accordingly, I join his dissenting opinion as it applies to No. 71—6314, Gosa v. Mayden.
79
But that view, in my opinion, does not dispose of No. 71 1398, Warner v. Flemings. I think that a serviceman who deserts his post during a time of congressionally declared war and steals an automobile is guilty of a 'service connected' offense. Accordingly, I conclude that the respondent Flemings was properly tried before a court-martial under O'Callahan. Cf. Relford v. Commandant, 401 U.S. 355, 365, 91 S.Ct. 649, 655, 28 L.Ed.2d 102 (1971). For this reason I concur in the result reached by the Court in the Flemings case.
80
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN and Mr. Justice STEWART* join, dissenting.
81
* Mr. Justice BLACKMUN'S plurality opinion, by its efforts to establish that O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), was not a decision dealing with jurisdiction in its classic form, implicitly acknowledges that if O'Callahan were in fact concerned with the adjudicatory
82
power—that is, the jurisdictional competency1—of military tribunals, its holding would necessarily be fully retroactive in effect, cf. e.g., Linkletter v. Walker, 381 U.S. 618, 623, 85 S.Ct. 1731, 1734, 14 L.Ed.2d 601 (1965). The plurality now puts forth the view that O'Callahan was not concerned with the true jurisdictional competency of courts-martial but that the decision yielded merely a new constitutional rule. This characterization of O'Callahan permits the plurality to apply in this case the three-prong test employed to judge the retroactivity of new procedural rules under Linkletter and its progeny, see, e.g., Desist v. United States, 394 U.S. 244, 249, 89 S.Ct. 1030, 1033, 22 L.Ed.2d 248 (1969); Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967). And, not surprisingly, application of that test leads to the conclusion that O'Callahan should have only prospective effect. With all due respect, I must dissent.
83
I am unable to agree with the plurality's characterization of O'Callahan. In my view, it can only be understood as a decision dealing with the constitutional limits of the military's adjudicatory power over offenses committed by servicemen. No decision could more plainly involve the limits of a tribunal's power to exercise jurisdiction over particular offenses and thus more clearly demand retroactive application.
A.
84
In holding that O'Callahan is to be given only prospective effect, the plurality does not reject outright the view that the decision was jurisdictional in nature. Yet it clearly does reject the contention that O'Callahan dealt with a question of true jurisdictional competency, for we are told that the decision 'did announce a new constitutional principle,' ante, at 673, and that it really 'dealt with the appropriate exercise of jurisdiction by military tribunals,' ante at 674. The difference between a decision concerning a tribunal's jurisdictional competency—that is, the limits of its adjudicatory power—and 'the appropriate exercise of (its) jurisdiction' is less than clear to me, at least where, as here, the question of 'appropriateness' ultimately turns on the extent of Congress' constitutional authority under Art. I, § 8, cl. 14, to 'make Rules for the Government and Regulation of the land and naval Forces.' But whatever the nature of the distinction that the plurality now seeks to draw, it cannot, in my opinion, obscure the essential character of the decision in O'Callahan.
85
O'Callahan required this Court to define the class of offenses committed by servicemen that Congress, under Art. I, § 8, cl. 14, could constitutionally empower military tribunals to try. The nature of the ultimate inquiry there is plain from the question upon which the Court granted certiorari: "Does a court-martial, held under the Articles of War, Tit. 10, U.S.C. § 801 et seq., have jurisdiction to try a member of the Armed Forces who is charged with commission of a crime cognizable in a civilian court and having no military significance, alleged to have been committed off-post and while on leave, thus depriving him of his constitutional rights to indictment by grand jury and trial by a petit jury in a civilian court?" 395 U.S., at 261, 89 S.Ct., at 1685. The O'Callahan Court's discussion of this issue was consistently couched in terms of the jurisdiction of military tribunals;2 and, in dissent, Mr. Justice Harlan, too, framed the issue presented in the unmistakable terms of 'the appropriate subject-matter jurisdiction of courts-martial,' id., at 276, 89 S.Ct., at 1692. Even the Court of Appeals in No. 71—6314, while ultimately holding the O'Callahan decision to be prospective only, acknowledged that the decision turned upon a determination of 'lack of adjudicatory power'—that 'O'Callahan's foundation, framework and structure deny to the legislation which breathed the breath of judicial life into the forum that tried Sgt. O'Callahan, the necessary basis in constitutional power to reach his type of case.'3 450 F.2d 753, 757 (CA5 1971). See also United States ex rel. Flemings v. Chafee, 458 F.2d 544, 549—550 (CA2 1972).
86
Despite the evident jurisdictional nature of the ultimate issue presented in O'Callahan, the plurality attempts to analogize this case to DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968), where the Court held that the decisions in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), and Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968), were to have only prospective effect. Duncan held that the Sixth Amendment guarantee of trial by jury in criminal cases had been made applicable to the States by the Fourteenth Amendment. And Bloom established the right to jury trial in the context of serious criminal contempt proceedings. DeStefano—like the other offspring of Linkletter that have applied the three-prong test to determine retroactivity—involved constitutional rulings that established new procedures for the conduct of trial or for the use of evidence. But O'Callahan hardly was such a case.
87
The Court in O'Callahan was not setting forth procedures which the military was constitutionally required to adopt in its proceedings. Had the Court been doing so, this would certainly be a different case; the analogy to DeStefano then might well be appropriate. It is true, as the plurality now points out, that the O'Callahan Court placed considerable emphasis on the lack of jury trial in the court-martial system. But it did so only as a part of the general analytic process of determining the proper reconciliation of the competing jurisdictions of two essentially distinct4 judicial systems, namely, the civil and military systems of justice. The Court's basic concern in this process was the preservation—to the fullest extent possible consistent with the legitimate needs of the military—of the fundamental civil rights guaranteed by our Constitution and Bill of Rights. Those civil rights were, in the Court's words, the 'constitutional stakes in the . . . litigation.' O'Callahan v. Parker, supra, 395 U.S., at 262, 89 S.Ct., at 1685.
88
Thus, the Court pointed out that one tried before a military tribunal is without the benefit of not only trial by jury but also indictment by grand jury. Ibid. Nor are the same rules of evidence and procedure applicable in a military proceeding, a factor affecting, for example, the defense's access to compulsory process, id. at 264 n. 4, 89 S.Ct., at 1686. In addition, the Court was concerned with the fact that the presiding officers at courts-martial do not enjoy the independence that is thought to flow from life tenure and undiminishable salary To the contrary, the Court recognized that 'the possibility of influence on the actions of the court-martial by the officer who convenes it, selects its members and the counsel on both sides, and who usually has direct command authority over its members is a pervasive one in military law, despite strenuous efforts to eliminate the danger.' Id., at 264, 89 S.Ct., at 1686. In short, the Court concluded that '(a) court-martial is not yet an independent instrument of justice but remains to a significant degree a specialized part of the overall mechanism by which military discipline is preserved,' Id., at 265, 89 S.Ct., at 1686.
89
The Court's purpose in considering these factors was not to require changes in the military system of justice, but rather to illustrate its 'fundamental differences from . . . the civilian courts,' id., at 262, 89 S.Ct., at 1685, differences that compelled the Court "to restrict military tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service," id., at 265, 89 S.Ct., at 1687, quoting from Toth v. Quarles, 350 U.S. 11, 22, 76 S.Ct. 1, 8, 100 L.Ed. 8 (1955). As a result, the Court concluded that the 'crime to be under military jurisdiction must be service connected . . .,' 395 U.S., at 272, 89 S.Ct., at 1690, so that the power of Congress under Art. I, § 8, cl. 14, to 'make Rules for the Government and Regulation of the land and naval Forces,' and also the exemption from the grand jury requirement of the Fifth Amendment for 'cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger' are not expanded to deprive servicemen unjustifiably of their civil rights.5 The Court found that when an offense is not service connected, the needs of the military are not significantly implicated and thus that the limits of Congress' constitutional power over servicemen under Art. I, § 8, cl. 14, have been passed, at least in the context of 'peacetime offenses,' 395 U.S., at 273, 89 S.Ct., at 1691.
90
Certainly the jurisdictional nature of the O'Callahan decision is amply demonstrated by this Court's previous decision in McClaughry v. Deming, 186 U.S. 49, 22 S.Ct. 786, 46 L.Ed. 1049 (1902). There the Court was called upon to decide 'the power of an officer convening a court-martial for the trial of an officer of volunteers (reserve troops), to compose that court entirely of officers of the Regular Army.' Id., at 53, 22 S.Ct., at 788. The Court determined that Congress had directed by statute that volunteer officers of the Army be tried only by a court-martial composed of volunteer officers. In light of this determination the Court concluded:
91
'As to the officer to be tried there was no court, for it seems to us that it cannot be contended that men, not one of whom is authorized by law to sit, but, on the contrary, all of whom are forbidden to sit, can constitute a legal court-martial because detailed to act as such court by an officer who in making such detail acted contrary to and in complete violation of law. Where does such a court obtain jurisdiction to perform a single official function? How does it get jurisdiction over any subject-matter or over the person of any individual? The particular tribunal is a mere creature of the statute, as we have said, and must be created under its provisions.' Id., at 64, 22 S.Ct., at 792.
92
In the same vein, the Court elsewhere stated: 'A court-martial is the creature of statute, and, as a body or tribunal, it must be convened and constituted in entire conformity with the provisions of the statute, or else it is without jurisdiction.' Id. at 62, 22 S.Ct., at 791. Because of the flaw in the composition of the court-martial, a flaw which the Court considered determinative on the issue of the court-martial's jurisdiction, the Court affirmed a lower court's issuance of a writ of habeas corpus to secure the officer's release from military custody. Significantly, this writ was issued at a time when habeas corpus clearly lay only where the court-martial had 'no jurisdiction over the person of the defendant or the subject-matter of the charges against him.' Id., at 69, 22 S.Ct., at 794.6 In O'Callahan the Court was not concerned with the composition of a particular court-martial, but with the fundamental question of the extent of Congress' constitutional power to establish court-martial jurisdiction over offenses committed by our servicemen. If the former issue goes to the jurisdiction of military tribunals, certainly the latter does.
B
93
With this understanding of O'Callahan, I believe, contrary to the plurality's view, that the retroactive application of our holding there is required by our prior decisions in Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973), and United States v. U.S. Coin & Currency, 401 U.S. 715, 722—724, 91 S.Ct. 1041, 1045—1046, 28 L.Ed.2d 434 (1971). Robinson involved the retroactive application of the decision in Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), that the Fifth Amendment's guarantee, made applicable to the States through the Fourteenth Amendment, that no person should be put twice in jeopardy for the same offense barred an individual's prosecution for a single offense by both a State and a municipality of the State, that is, a legal subdivision of the State. U.S. Coin & Currency held retroactive the Court's prior determination that the Fifth Amendment privilege against compulsory self-incrimination barred the prosecution of gamblers for failure to register and to report illegal gambling proceeds for tax purposes, see Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968).
94
In deciding whether to give retroactive effect to Waller, Marchetti, and Grosso, the Court rejected contentions that it should apply the three-prong test employed in cases such as Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969); and De Stefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968). In U.S. Coin & Currency, Mr. Justice Harlan, speaking for the Court explained:
95
'Unlike some of our earlier retroactivity decisions, we are not here concerned with the implementation of a procedural rule which does not undermine the basic accuracy of the factfinding process at trial. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Tehan v. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Rather, Marchetti and Grosso dealt with the kind of conduct that cannot constitutionally be punished in the first instance.' 401 U.S., at 723, 91 S.Ct., at 1045.
96
The Robinson Court adopted essentially the same view of the Waller decision concerning the Double Jeopardy Clause and multiple prosecutions by different legal subdivisions of a single sovereign. See 409 U.S., at 508, 93 S.Ct., at 878. In this case, too, we are concerned, not with 'the implementation of a procedural rule,' but with an unavoidable constitutional impediment to the prosecution of particular conduct.
97
In O'Callahan, as has been seen, the ultimate issue was the extent of the constitutional power that underlies the jurisdiction of military tribunals. Where an offense lies outside the limits of that power, there exists just as much of a constitutional impediment to trial by court-martial as there existed to a civilian trial in Marchetti and Grosso due to the privilege against self-incrimination or in Waller due to the Double Jeopardy Clause. It cannot be forgotten that military tribunals are courts of limited jurisdiction. See McClaughry v. Deming, 186 U.S., at 63, 22 S.Ct., at 791; Ex parte Watkins, 3 Pet. 193, 209, 7 L.Ed. 650 (1830). They cannot exercise authority which Congress has not conferred upon them, much less authority which Congress is without constitutional power to confer.7 It is this fundamental principle that compels retroactive application of the decision in O'Callahan.
98
The plurality seeks to distinguish U.S. Coin & Currency and Robinson on the grounds that the former involved a right that prevented the offender from being tried at all the latter a right that prevented 'another trial from taking place at all,' ante, at 679, whereas the underlying issue in this case is merely which jurisdiction can try offenses committed by servicemen. But these are distinctions without meaning; they merely reflect the differences in the nature of the constitutional impediment to trial at issue in each case. The essential common thread tying these cases together is that each involved, at the least, a constitutional barrier to trial before the particular forum, regardless of the fairness of the procedures and the factfinding process of the relevant forum.
99
U.S. Coin & Currency swept broadly, to be sure, for it concerned a constitutional guarantee that effectively prevented any trial of the offender for the particular offense. But the nature of the Double Jeopardy Clause at issue in Robinson is such that the offender may be tried once for a particular offense by a court of a particular sovereign; it is the second prosecution for the same offense by another court of the same sovereign that that Clause clearly bars. Similarly here, a serviceman charged with a nonservice-connected offense is subject to trial for that offense by civil tribunals, but military tribunals lack the necessary constitutional power, at least in peacetime, to try such an offense. As was true in Robinson, this case involves a constitutional barrier to adjudication of a particular offense by a particular forum, yet in neither case does it follow that the offender is constitutionally entitled to go unpunished altogether. I fail to see, therefore, why different rules from those applied only recently in Robinson should be applied in this case.
100
There is, of course, the additional fact that the Robinson Court left open the question whether reasonable, official reliance upon a particular rule might properly be considered 'in determining retroactivity of a nonprocedural constitutional decision such as Waller.' 409 U.S., at 511, 93 S.Ct., at 879.8 And in this case the plurality, in attempting to establish that O'Callahan was a "clear break with the past," ante, at 672, citing Desist v. United States, 394 U.S., at 248, 89 S.Ct., at 1032, and should therefore be applied only prospectively, does make much of the argument that substantial, justifiable reliance was placed on pre-O'Callahan law concerning the exercise of court-martial jurisdiction over servicemen, see ante, at 672—673. But I seriously question the relevance of any inquiry into official reliance on prior law where, as here, the issue is jurisdictional competency. Even assuming for the moment that O'Callahan completely reinterpreted the limits of Congress' power to confer jurisdiction on courts martial, the decision involved the authoritative construction of a constitutional provision and no military tribunal could ever constitutionally have had more power than resided therein. But the real point is that O'Callahan did not mark a sharp, new departure from prior law.
101
The plurality acknowledges that O'Callahan did not involve the overruling of any prior precedent, ante, at 673. It is true, as the plurality indicates, that a number of prior decisions had suggested that 'military status in itself was sufficient for the exercise of court-martial jurisdiction,' ibid. Yet none of the cases upon which the plurality relies dealt in fact with a nonservice-connected offense committed by a serviceman in peacetime.9 It is fair to say, in short, that until O'Callahan the Court had not directly faced the issue of the service-connected nature of servicemen's offenses.
102
More importantly, perhaps, the O'Callahan Court's efforts to define the constitutional limits of the jurisdiction of courts-martial was hardly the beginning of such efforts by the Court. O'Callahan was but one of a series of steps taken by this Court since the conclusion of the Second World War to restrict military jurisdiction to its constitutionally appropriate limits. Thus, in Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955), the Court ruled that a discharged serviceman could not be tried by a court-martial for offenses committed while a member of the Armed Forces. Subsequently, it was established that courts-martial did not have jurisdiction to try offenses committed by civilian dependents accompanying military personnel serving overseas. Kinsella v. Singleton, 361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268 (1960); Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957). Finally, the Court held that civilians employed with the military overseas were not subject to court-martial jurisdiction. See Grisham v. Hagan, 361 U.S. 278, 80 S.Ct. 310, 4 L.Ed.2d 279 (1960); McElroy v. Guagliardo, 361 U.S. 281, 80 S.Ct. 305, 4 L.Ed.2d 282 (1960). This series of cases limited the reach of courts-martial to members of the Armed Forces; they did not require the Court to go on to define the breadth of offenses for which servicemen could be tried by courts-martial. Nonetheless, these cases and O'Callahan clearly were all pieces of the same cloth. Under these circumstances, I seriously doubt that retroactive application would do substantial violence to any legitimate, official reliance upon prior law10 even assuming that to be a valid consideration here.11
II
103
Mr. Justice DOUGLAS, in his concurring opinion, contends that petitioner Gosa's case merits reargument to consider whether he should be denied relief because he failed to raise his jurisdictional objection before the court-martial that tried him. Mr. Justice DOUGLAS intimates that since the jurisdiction of the military to try petitioner was not initially contested, 'res judicata (may now bar) inquiry' into the question of jurisdiction, ante, at 689. In my opinion, such an argument is clearly untenable, and hence reargument of petitioner Gosa's case is unnecessary.
A.
104
One of the most basic principles of our jurisprudence is that subject-matter jurisdiction cannot be conferred upon a court by consent of the parties. See, e.g., American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17—18, 71 S.Ct. 534, 541—542, 95 L.Ed. 902 (1951); Industrial Addition Ass'n v. Commissioner, 323 U.S. 310, 313, 65 S.Ct. 289, 292, 89 L.Ed. 260 (1945); People's Bank v. Calhoun, 102 U.S. 256, 260—261, 26 L.Ed. 101 (1880); Cutler v. Rae, 7 How. 729, 731, 12 L.Ed. 890 (1849).12 An objection to the adjudicatory power of a tribunal may generally be raised for the first time at any stage of the litigation.13 See, e.g., Flast v. Cohen, 392 U.S. 83, 88 n. 2, 88 S.Ct. 1942, 1946, 20 L.Ed.2d 947 (1968); United States v. Griffin, 303 U.S. 226, 229, 58 S.Ct. 601, 602, 82 L.Ed. 764 (1938); Fortier v. New Orleans National Bank, 112 U.S. 439, 444, 5 S.Ct. 234, 236, 28 L.Ed. 764 (1884). Those principles are applicable even in the context of collateral attacks upon court-martial proceedings, as is evident from this Court's decision in McClaughry v. Deming, 186 U.S. 49, 22 S.Ct. 786, 46 L.Ed. 1049 (1902).
105
McClaughry, as previously indicated, involved a collateral attack upon the court-martial conviction of a volunteer officer who claimed that the Regular Army court-martial which had tried him had been constituted in violation of the relevant law and therefore was without jurisdiction. The volunteer officer had failed to raise this jurisdictional objection before the court-martial, and the military contended before this Court that 'his consent waived the question of invalidity,' id., at 66, 22 S.Ct., at 793. The Court rejected his contention, saying:
106
'It was not a mere consent to waive some statutory provision in his favor which, if waived, permitted the court to proceed. His consent could no more give jurisdiction to the court, either over the subject-matter or over his person, than if it had been composed of a like number of civilians . . .. The fundamental difficulty lies in the fact that the court was constituted in direct violation of the statute, and no consent could confer jurisdiction over the person of the defendant or over the subject-matter of the accusation, because to take such jurisdiction would constitute a plain violation of law.' Ibid.
107
See also id., at 68, 22 S.Ct., at 763; Givens v. Zerbst, 255 U.S. 11, 20, 41 S.Ct. 227, 229, 65 L.Ed. 475 (1921); Ver Mehren v. Sirmyer, 36 F.2d 876, 879—880 (CA8 1929). Just as the silence of the accused in McClaughry could not confer jurisdiction on a court-martial of the Regular Army that was acting in excess of its statutory authority, so here the failure of Gosa to raise his jurisdictional objection before the court-martial could not have conferred upon that tribunal authority that constitutionally could not be conferred. Consequently, his failure to object to the jurisdiction of the court-martial that tried him cannot be deemed fatal in this Court.14
B
108
Moreover, even if O'Callahan were to be treated as merely a procedural rather than as a true jurisdictional decision, application of the doctrine of res judicata would nonetheless be entirely inappropriate in the context of petitioner Gosa's case since that action was brought by way of a petition for federal habeas corpus. Specifically, I must vigorously disagree with the suggestion, necessarily inherent in Mr. Justice DOUGLAS' opinion, that the doctrine of res judicata may have some place in the law of federal habeas corpus. In the past, this Court has indicated quite explicitly to the contrary:
109
'At common law the doctrine of res judicata did not extend to a decision on habeas corpus refusing to discharge the prisoner. The state courts generally have accepted that rule where not modified by statute . . .; and this Court has conformed to it and thereby sanctioned it . . . We regard the rule as well established in this jurisdiction.' Salinger v. Loisel, 265 U.S. 224, 230, 44 S.Ct. 519, 520, 68 L.Ed. 989 (1924).
110
See Fay v. Noia, 372 U.S. 391, 423, 83 S.Ct. 822, 840, 9 L.Ed.2d 837 (1963); Darr v. Burford, 339 U.S. 200, 214, 70 S.Ct. 587, 595, 94 L.Ed. 761 (1950). Indeed, the rule was still 'well established in this jurisdiction' just a few months ago.15
111
See Neil v. Biggers, 409 U.S. 188, 190—191, 93 S.Ct. 375, 377 378, 34 L.Ed.2d 401 (1972). The federal courts, to be sure, are not without means for dealing with repetitious applications for habeas corpus, see, e.g., Salinger v. Loisel, supra, 265 U.S. at 231—232, 44 S.Ct., at 521—522; 28 U.S.C. § 2244(a), (b), or with applications raising questions previously litigated in this Court, see 28 U.S.C. § 2244(c). But no such problems are presented here. Rather, a procedural problem arises in this case because petitioner Gosa failed to assert the 'jurisdictional' defect, which he now raises, in seeking leave for a direct appeal to the Court of Military Appeals. This reflects, in my view, a failure on the part of Gosa to satisfy the exhaustion requirement, which is applied in the context of collateral attack on federal habeas corpus, thereby raising a substantial question whether he has waived his right to challenge the 'jurisdiction' of the court-martial on habeas corpus.
112
The exhaustion doctrine evolved in the context of collateral attack on state criminal proceedings. See, e.g., Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572 (1944); Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886). It generally requires state petitioners to utilize available state court remedies before resorting to federal habeas corpus,16 and thus serves both to ensure the orderly functioning of state judicial processes, without disruptive federal court intervention, and to allow state courts to fulfill their roles as co-equal partners with the federal courts in the enforcement of federal law, thus often eliminating the need for federal court action, and avoiding unnecessary friction between state and federal courts. These same considerations inhere in the context of collateral attack in federal court upon the judgments of military tribunals, which constitute a judicial system—a system with its own peculiar purposes and legal traditions—distinct from the federal judicial system much like the independent state judicial systems. Accordingly, this Court normally has required that military petitioners exhaust all available remedies within the military justice system. See Noyd v. Bond, 395 U.S. 683, 693, 89 S.Ct. 1876, 1882, 23 L.Ed.2d 631 (1969); Gusik v. Schilder, 340 U.S. 128, 131—132, 71 S.Ct. 149, 151—152, 95 L.Ed. 146 (1950).17 At the time petitioner Gosa initiated this collateral attack he indeed had not exhausted a military remedy which was formerly available to him with respect to the claim he now asserts. But that certainly ought not to be the end of the inquiry.
113
In Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), the Court rejected the position that a state prisoner who had not pursued his state appellate remedies was barred from seeking federal habeas corpus because of his failure to exhaust, where the state appellate remedies were no longer available. The Court concluded, instead, that the exhaustion 'requirement refers only to a failure to exhaust state remedies still open to the applicant at the time he files his application for habeas corpus in the federal court.' Id., at 399, 83 S.Ct. at 827. The Court established that where there has been a failure to resort to a state court remedy and that remedy is no longer available, the availability of federal habeas corpus would turn on whether there was a deliberate bypass of the state process. Id., at 438, 83 S.Ct., at 848. In determining whether such a bypass has occurred, the Court said that '(t)he classic definition of waiver enunciated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461—'an intentional relinquishment or abandonment of a known right or privilege'—furnishes the controlling standard.' 372 U.S., at 439, 83 S.Ct., at 849.
114
This Court has never considered the applicability of the nondeliberate-bypass rule in the context of military petitioners. Fay does not speak specifically with respect to such petitioners. Nonetheless, the consideration which argue in favor of tempering the exhaustion requirement with a rule of nondeliberate bypass in the context of state petitioners are equally applicable in the context of military petitioners. Certainly, military petitioners should be encouraged to raise their constitutional claims before available military tribunals in order to ensure the orderly functioning of the system of military justice, to avoid needless federal court action, and to allow military tribunals an initial opportunity to correct their own errors. These interests are not subverted, however, by allowing a military petitioner to seek federal habeas corpus on the basis of a claim which he failed to raise before the military courts because he either was unaware of or did not otherwise willingly fail to raise that claim. As with state petitioners, the integrity of the exhaustion requirement is adequately protected by a rule prohibiting a deliberate bypass of an available military tribunal. A more stringent rule would serve only to bar presentation of valid federal claims without any countervailing justification for doing so.
115
On the facts of this case, I find it impossible to conclude that petitioner Gosa has waived his right to challenge the 'jurisdiction' of the court-martial which convicted him of rape on the ground that the offense was not service connected. A valid waiver requires the 'intentional relinquishment . . . of a known right.'18 At the time of petitioner's 1967 application for review by the Court of Military Appeals the substantial 'jurisdictional' issue that he now raises had yet to be addressed by this Court. While O'Callahan is, to be sure, properly viewed as one further step in the ongoing process of establishing the limits of court-martial jurisdiction, see supra, at 705—708, I do not think it follows that we should impose a rule of waiver so strict that it requires an individual petitioner to anticipate, at the time he appeals, a particular constitutional ruling of this Court that has yet to be rendered, especially not when the protection of a number of guarantees of the Bill of Rights is at stake. Moreover, where a new constitutional rule has been established following completion of regular proceedings in the military courts, the interests served by the exhaustion requirement can be fully satisfied by requiring that the subsequently identified claim first be presented to the military courts if a means, such as post-conviction relief,19 exists for doing so. Cf. Blair v. California, 340 F.2d 741 (C.A.9 1965); Pennsylvania ex rel. Raymond v. Rundle, 339 F.2d 598 (C.A.3 1964). Yet if it is clear that those courts would reject the claim, such post-conviction resort to the military courts would, of course, be futile and is therefore unnecessary, see Gusik v. Schilder, 340 U.S., at 132 133, 71 S.Ct., at 151—152. This is now the case here, for during the pendency of this action the Court of Military Appeals, in Mercer v. Dillon, 19 U.S.C.M.A. 264, 41 C.M.R. 264 (1970), held that the 'jurisdictional' principle announced in O'Callahan did not apply to cases decided before the date of the O'Callahan decision. It therefore became clear that it would be pointless to dismiss petitioner Gosa's application in order to allow him to present his claim to the military courts,20 and consequently, his challenge to the 'jurisdiction' of the court-martial that tried him is now properly before this Court.
116
Since I then cannot agree with the opinion of either the plurality or Mr. Justice DOUGLAS, I dissent.
1
The Court, of course, has not yet held the indictment requirement of the Fifth Amendment to be binding upon the States. Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884); Gaines v. Washington, 277 U.S. 81, 86, 48 S.Ct. 468, 470, 72 L.Ed. 793 (1928); Branzburg v. Hayes, 408 U.S. 665, 688, n. 25, 92 S.Ct. 2646, 2678, 33 L.Ed.2d 626 (1972).
2
Tr. of Oral Arg. 16.
3
Gosa has since been released. Inasmuch as the District Court possessed federal habeas jurisdiction when Gosa's application was filed, that jurisdiction was not defeated by his release prior to the completion of proceedings on the application. Carafas v. LaVallee, 391 U.S. 234, 238—240, 88 S.Ct. 1556, 1559 1560, 20 L.Ed.2d 554 (1968).
4
It appears that the automobile was owned by a member of the Signal Corps but that the car was being used by him on a purely personal errand when it was stolen. The owner was not compensated by the military for its use.
5
See also Schlomann v. Moseley, 457 F.2d 1223 (CA10 1972), cert. denied, 413 U.S. 919, 93 S.Ct. 3068, 37 L.Ed.2d 1041; Thompson v. Parker, 308 F.Supp. 904, 907—908 (MD Pa.), appeal dismissed (CA3, No. 18868, 1970); and
Mercer v. Dillon, 19 U.S.C.M.A. 264, 265, 41 C.M.R. 264, 265 (1970), where the Court of Military Appeals confined the application of O'Callahan to those convictions that were not final when O'Callahan was decided on June 2, 1969.
Scholarly comment on O'Callahan retrospectivity is divided. The following predict or favor nonretroactivity: Everett, O'Callahan v. Parker—Milestone or Millstone in Military Justice?, 1969 Duke L.J. 853, 886—889; Nelson & Westbrook, Court-Martial Jurisdiction Over Servicemen for 'Civilian' Offenses: An Analysis of O'Callahan v. Parker, 54 Minn.L.Rev. 1, 39—46 (1969); Note, Military Law—Constitutional Law—Court-Martial Jurisdiction Limited to 'Service-Connected' cases, 44 Tulane L.Rev. 417, 423—424 (1970); Note, Retroactivity—Military Jurisdiction—Military Convictions for Nonservice Connected Offences Should Be Vacated Retroactively, 50 Tex.L.Rev. 405 (1972); Note, Constitutional Law Retroactivity of O'Callahan v. Parker, 47 St. John's L.Rev. 235 (1972); Note, The Sword and Nice Subtleties of Constitutional Law: O'Callahan v. Parker, 3 Loyola U. (L.A.) L.Rev. 188, 198 n. 67 (1970); Comment, Courts Martial—Jurisdiction—Service-Connected Crime, 21 S.C.L.Rev. 781, 793—794 (1969). The following predict or favor retroactivity: Blumenfeld, Retroactivity After O'Callahan: An Analytical and Statistical Approach, 60 Geo.L.J. 551 (1972); Wilkinson, The Narrowing Scope of Court-Martial Jurisdiction: O'Callahan v. Parker, 9 Washburn L.J. 193, 197—201 (1970); Higley, O'Callahan Retroactivity: An Argument for the Proposition, 27 JAG J. 85, 96—97 (1972); Note, O'Callahan v. Parker, A Military Jurisdictional Dilemma, 22 Baylor L.Rev. 64, 75 (1970); Note, Denial of Military Jurisdiction over Servicemen's Crimes Having No Military Significance and Cognizable in Civilian Courts, 64 Nw.U.L.Rev. 930, 938 (1970). See Birmbaum & Fowler, O'Callahan v. Parker: The Relford Decision and Further Developments in Military Justice, 39 Ford L.Rev. 729, 739—742 (1971).
A compilation of general comments on O'Callahan appears in Relford v. Commandant, 401 U.S. 355, 356 n. 1 (1971).
6
There are some protections in the military system not afforded the accused in the civilian counterpart. For example, Art. 32 of the Code, 10 U.S.C. § 832, requires 'thorough and impartial investigation' prior to trial, and prescribes for the accused the rights to be advised of the charge, to have counsel present at the investigation, to cross-examine adverse witnesses there, and to present exonerating evidence. It is not difficult to imagine, also, the situation where a defendant, who is in service, may well receive a more objective hearing in a court-martial than from a local jury of a community that resents the military presence.
The Uniform Code of Military Justice was not in effect when Flemings was charged and pleaded guilty. But the fact that this proceeding took place under the present Code's predecessor is no inevitable indication of basic unfairness. See Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953).
7
'We recognize that not all the persons possibly entitled to review and relief would have the initiative or a sufficient financial interest to justify the time and expense of bringing suits or applications. A reliable estimate of the number of court-martial convictions that could be overturned by a retroactive application of O'Callahan is nearly impossible to secure. For the one fiscal year of 1968, the Army, the Navy, and the Air Force conducted approximately 74,000 special and general courts-martial. If only the smallest fraction of these courts-martial and those conducted in the other years since 1916 involved an O'Callahan issue, it is an understatement that thousands of courts-martial would still be subject to review. The range of relief could be extensive, involving such actions as determinations by the military departments of whether the character of discharges must be changed, and consideration of retroactive entitlement to pay, retired pay, pensions, compensation, and other veterans' benefits. Among the difficulties would be the necessity of reconstructing the pay grade that a member of the armed forces would have attained except for the sentence of the invalidated court-martial, a task complicated by the existence of a personnel system involving selection of only the best qualified eligibles and providing for the elimination of others after specified years of service.' 19 U.S.C.M.A., at 267 268, 41 C.M.R., at 267—268.
8
In Flemings' case, the Secretary argues, in the alternative, that O'Callahan does not require the invalidation of the auto theft conviction because the offense was committed while the respondent was absent without leave during wartime. For that reason, it is said, the offense was service connected under the rationale of Relford. In view of our holding on the issue of retroactivity, we do not reach, and need not resolve, this alternative argument.
1
In the Flemings case respondent in time of war went AWOL and stole a car from a civilian. The military charge against him was an unauthorized absence from his duty station during wartime and theft of a car from a civilian. He pleaded guilty; and the only action brought came years later when he sought correction of his military records.
2
The Uniform Code of Military Justice, after providing for investigation before a charges is referred to a general court-martial in Art. 32(a), goes on to state in Art. 32(b):
'The accused shall be advised of the charges against him and of his right to be represented at that investigation by counsel. Upon his own request he shall be represented by civilian counsel if provided by him, or military counsel of his own selection if such counsel is reasonably available, or by counsel detailed by the officer exercising general court-martial jurisdiction over the command. At that investigation full opportunity shall be given to the accused to cross-examine witnesses against him if they are available and to present anything he may desire in his own behalf, either in defense or mitigation, and the investigating officer shall examine available witnesses requested by the accused. If the charges are forwarded after the investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides and a copy thereof shall be given to the accused.' 10 U.S.C. § 832(b).
Petitioner had counsel before the Court of Military Appeals, one designated by the Army; and only ' the merits' of the conviction were raised, no question being raised relating to the 'jurisdiction' of the military.
3
Title 10 U.S.C. § 876 provides that military review of court-martial convictions shall be 'final and conclusive' and 'binding upon all . . . courts . . . of the United States.' As we noted in United States v. Augenblick, 393 U.S. 348, 349—350, 89 S.Ct. 528, 529—530, 21 L.Ed.2d 537, relief by way of habeas corpus is an exception to that finality clause.
It was suggested by the Solicitor General in his brief in opposition to a motion for leave to file a petition for writ of certiorari in Crawford v. United States, 380 U.S. 970, 85 S.Ct. 1349, 14 L.Ed.2d 281, that while the statutes made the judgment of the Court of Military Appeals 'final and conclusive,' habeas corpus would be available to a person confined and a writ of error coram nobis in the District Court if he is not confined; citing 25 U.S.C. § 1254(c) (probably intending 28 U.S.C. § 1254(1)); Hiatt v. Brown, 339 U.S. 103, 106 n. 1, 70 S.Ct. 495, 496, 94 L.Ed. 691. In that view one who was unsuccessful in obtaining relief by way of coram nobis in the district court, would be able to seek review in the court of appeals and ultimately by certiorari in this Court. That question was not resolved by this Court, since we denied certiorari in the Crawford case. In the Crawford case the question tendered on the merits was whether the restriction of court-martial membership to senior noncommissioned officers, excluding entire classes of statutorily eligible prospective court-martial members, deprived petitioner of due process and violated 10 U.S.C. § 825 so as to deprive the court-martial of jurisdiction. For the decision of the Court of Military Appeals see United States v. Crawford, 15 U.S.C.M.A. 31, 35 C.M.R. 3. And see Schiesser, Trial by Peers: Enlisted Members on Courts-Martial, 15 Cath.U.L.Rev. 171 (1966).
4
The Court of Military Appeals decided that O'Callahan v. Parker would be applied only to those convictions that were not final before the date of that decision. Mercer v. Dillon, 19 U.S.C.M.A. 264, 41 C.M.R. 264 (1970).
5
For purposes of habeas corpus, historically used to test the 'jurisdiction' of tribunals to try defendants, the concept has been broadened to include constitutional guarantees. Thus in Johnson v. Zerbst 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, compliance with the constitutional mandate that an accused is entitled to counsel was held to be 'an essential jurisdictional prerequisite to a federal court's authority to deprive an accused of his life or liberty.' Id., at 467, 58 S.Ct., at 1024. The rule announced used 'jurisdiction' in an innovative way with the purpose of giving counsel to defendants who up to the time of our decisions in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, and Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530, had no lawyers to represent them and thus were commonly deprived of their constitutional rights.
6
See n. 2, supra.
*
Mr. Justice STEWART joins this opinion only as it applies to No. 71—6314. See ante, this page.
1
See generally Restatement of Judgments § 7, comments at 41 46 (1942).
2
See 395 U.S., at 265, 267, 269, 272, 89 S.Ct., at 1686, 1687, 1689, 1690.
3
In Relford v. Commandant, 401 U.S. 355, 356, 91 S.Ct. 649, 651, 28 L.Ed.2d 102 (1971), Mr. Justice Blackmun, speaking for the Court, described the O'Callahan decision as follows:
'In O'Callahan . . ., by a five-to-three vote, the Court held that a court-martial may not try a member of our armed forces charged with attempted rape of a civilian, with housebreaking, and with assault with intent to rape, when the alleged offenses were committed off-post on American territory, when the soldier was on leave, and when the charges could have been prosecuted in a civilian court.'
4
A serviceman convicted by a court-martial does, of course, ultimately have access to the federal judicial system by way of a petition for federal habeas corpus. See, e.g., Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953); Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146 (1950).
5
Indeed, even if the military voluntarily elected to provide servicemen on trial before courts-martial with the full panoply of procedural rights constitutionally required in civil forums, that would not affect the decision in O'Callahan. Implicit in O'Callahan is the fact that the military system of justice has never been understood to be constitutionally compelled to provide many of the procedural rights afforded by the civilian courts, and thus it would always remain free to provide only that which is constitutionally necessary. It was with an understanding of what is constitutionally required, not of what the military might elect to provide, that the scope of Congress' power under Art. I, § 8, cl. 14, had to be, and was, defined in O'Callahan, see 395 U.S., at 261—262, 89 S.Ct., at 1684—1685. It is this fact that perhaps best demonstrates the true jurisdictional—as opposed to procedural nature of that decision.
6
See also Developments in the Law—Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1209 (1970). The Court moved beyond the jurisdictional limitation on collateral attacks upon court-martial convictions in Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953). See Developments in the Law—Federal Habeas Corpus, supra, at 1215—1216.
7
Cf. Restatement of Judgments § 7 comment b, pp. 42—43 (1942):
'There are many situations in which a court lacks competency to render a judgment. Thus, although a State has jurisdiction to grant a divorce of parties domiciled within the State, a decree of divorce rendered by a court which is not empowered to entertain suits for divorce is void. Similarly, a judgment rendered by a justice of the peace is void if under the law of the State such justices are not empowered to deal with the subject matter of the action; as, for example, where the action is one for tort and justices of the peace are given no power except in actions of contract. So also, where a court is given power to deal with actions involving no more than a designated amount, the statute limiting the amount is ordinarily construed not merely to make erroneous a judgment rendered by such a court in excess of its power, but to make such judgment void.'
8
In Robinson itself, the Court concluded that, in all events, there was no substantial element of reliance since 'Waller cannot be said to have marked a departure from past decisions of this Court.' 409 U.S., at 510, 93 S.Ct., at 879.
9
Kinsella v. Singleton, 361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268 (1960), Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957), and Ex parte Milligan, 4 Wall. 2, 18 L.Ed. 281 (1866), dealt with the exercise of military jurisdiction to try civilians, not servicemen. In each case, the court held that the military lacked jurisdiction to try the civilians.
In Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084 (1907), the Court held that a soldier who had been acquitted by a properly convened court-martial of a charge of homicide growing out of the shooting of a civilian while he was on guard duty in the Phillipine Islands could not thereafter be tried and convicted for the same offense by a civilian court of that Territory. Johnson v. Sayre, 158 U.S. 109, 15 S.Ct. 773, 39 L.Ed. 914 (1895), involved the court-martial conviction of a navy paymaster, whom the Court found to be in the naval service of the United States, for embezzling naval funds while serving on a receiving ship of the United States Navy. And in Smith v. Whitney, 116 U.S. 167, 6 S.Ct. 570, 29 L.Ed. 601 (1886), the Court was asked to order that a writ of prohibition be issued against a court-martial convened to try a naval pay inspector essentially for making various contracts not in the best interest of the Navy, for failing properly to enforce contractual agreements with the Navy, for compelling payment of illegal contractual claims against the Navy, and for failing to perform his duties and responsibilities. There can be little question that each of the offenses in Grafton, Johnson, and Smith, and 'service connected' within the meaning of O'Callahan. Contrast Relford v. Commandant, 401 U.S., at 365, 91 S.Ct., at 655.
Finally, Coleman v. Tennessee, 97 U.S. 509, 24 L.Ed. 1118 (1879), involved the court-martial conviction of a soldier for the murder of a civilian woman. The particular circumstances of the murder are not apparent from the Court's opinion, but it is clear that the crime occurred during the Civil War, that is, during wartime, rather than during peacetime, see id., at 516—517, 24 L.Ed. 1118. O'Callahan did not clearly speak with respect to constitutional limits of court-martial jurisdiction during wartime since the offense at issue there had occurred in peacetime, and the plurality does not reach the issue of wartime offenses today, although it arguably is presented in No. 71—1398, see ante, at 685 n. 8.
10
With regard to the question of official reliance, it has been pointed out that as long ago as 1955 the Departments of Justice and Defense reached an agreement that at least federal offenses committed by servicemen off-post would fall within the jurisdiction of the Justice Department while those committed on-post would be within the jurisdiction of the Defense Department:
'The Departments of Justice and Defense have found it desirable to establish ground rules for determining the forum for trying a serviceman charged with a civil offense in violation of both military and federal law. In general, these rules, which were established by agreement between the Departments in 1955, give to the military department concerned the responsibility of investigating and prosecuting offenses committed by persons subject to the Uniform Code of Military Justice and involving as victims only those persons or their civilian dependents residing on the military installation in question.' Duke & Vogel, The Constitution and the Standing Army: Another Problem of Court-Martial Jurisdiction, 13 Vand.L.Rev. 435, 455 (1960), citing Army Reg. 22—160, Oct. 7, 1955, implementing Memorandum of Understanding Between the Departments of Justice and Defense Relating to the Prosecution of Crimes Over Which the Two Departments have Concurrent Jurisdiction (July 19, 1955).
11
Since the plurality opinion does not find it necessary to reach the Secretary's additional argument in No. 71—1398 that the auto theft there at issue was service connected because the offense took place while respondent was absent without leave during wartime, I think it inappropriate for me to express any view on that additional argument at this time.
12
See also Restatement of Judgments § 7, comment d, p. 45 (1942).
13
Contrast n. 15, infra.
14
Mr. Justice DOUGLAS would seem inclined to limit unwaivable jurisdictional flaws to instances in which an accused is 'tried by a kangaroo court or by eager vigilantes . . ..' ante, at 689—690. But the presence or absence of adjudicatory power does not turn only on the fairness of the proceeding afforded by a particular forum; rather, as McClaughry adequately illustrates, jurisdictional competency in the context of courts of limited jurisdiction such as courts-martial necessarily involves the limits of the statutory and constitutional authority that provides the legal underpinnings for such tribunals. See also Hiatt v. Brown, 339 U.S. 103, 111, 70 S.Ct. 495, 498, 49 L.Ed. 691 (1950); and n. 7, supra.
15
For this reason, I believe that Mr. Justice DOUGLAS' reliance on Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940), is clearly misplaced insofar as petitioner Gosa's case is concerned. Chicot County involved a question concerning the extent of indebtedness on certain municipal bonds which had previously been the subject of a federal proceeding to readjust indebtedness under the bankruptcy laws. Following the readjustment proceeding, this Court declared unconstitutional the statute under which the proceeding had been brought, see Ashton v. Cameron County Water Improvement District, 298 U.S. 513, 56 S.Ct. 892, 80 L.Ed. 1309 (1936). In Chicot County, this Court then held that the original decree was not open to collateral attack as void by the nonconsenting bondholders who had had notice of the original readjustment proceeding but had there lodged no objection to the court's jurisdiction.
The decision can be seen as resting simply on the doctrine of res judicata to which the Court referred at points in its opinion, see Chicot County, supra, 308 U.S., at 374—375, 60 S.Ct., at 318 319. The plaintiffs in the second action had had a full and fair opportunity to litigate the issue of jurisdiction in the first proceeding but had failed to do so. At the same time, there had been substantial action taken in reliance on the readjustment plan approved in the first proceeding. New bonds had been sold to the Reconstruction Finance Corporation which had then purchased old bonds in exchange for them. Under these circumstances it was both fair and proper to bar litigation of the jurisdiction issue in the collateral proceeding. Cf. Restatement of Judgments § 10 and comment (1942).
But, as has been pointed out, the doctrine of res judicata has no place in federal habeas corpus; rigid rules restricting what questions are open to litigation on collateral attack are inappropriate in the context of judgments affecting personal liberty. There are, of course, legitimate concerns with finality in criminal proceedings—both civilian and military—and with the orderly functioning of independent judicial systems. But we have rules concerning exhaustion, waiver, and nonrepetitious application to protect those concerns in the context of federal habeas corpus.
More generally, Chicot County is probably most appropriately interpreted as an early decision concerning the nonretroactive application of a particular decision, namely, Ashton. Despite the Court's resort at places to the rubric of res judicata, the presence of substantial reliance on pre-existing law clearly was an important consideration in the Court's decision not to allow the intervening decision in Ashton to be used to collaterally attack the original plan of readjustment. Furthermore, Chicot County was heavily relied upon by this Court when it gave the principles governing the retroactivity of new procedural constitutional rules full expression in Linkletter v. Walker, 381 U.S. 618, 625—626, 85 S.Ct. 1731, 1735—1736, 14 L.Ed.2d 601 (1965); and the case has been cited as a retroactivity decision on a number of occasions since Linkletter, see Chevron Oil Co. v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971); United States v. U.S. Coin & Currency, 401 U.S. 715, 742—743, 91 S.Ct. 1041, 1055—1056, 28 L.Ed.2d 434 (1971) (White, J., dissenting); cf. United States v. Estate of Donnelly, 397 U.S. 286, 293—294, 90 S.Ct. 1033, 1037—1038, 25 L.Ed.2d 312 (1970); id., at 299—300, 90 S.Ct., at 1040—1041 (Douglas, J., dissenting). Viewed then as a precursor of the presentday retroactivity doctrine, Chicot County has no relevance for the threshold question whether Gosa is barred from raising his jurisdictional challenge on habeas corpus because he failed to present it in applying for leave to appeal to the Court of Military Appeals.
16
This rule does not, however, entitle the state courts to more than one opportunity to consider the same claim. Thus, in Brown v. Allen, 344 U.S. 443, 447, 73 S.Ct. 397, 402, 97 L.Ed. 469 (1953), where the petitioners had presented their federal claims to the state courts on direct review, the Court said, 'It is not necessary in such circumstances for the prisoner to ask the state for collateral relief, based on the same evidence and issues already decided by direct review . . ..' Indeed, if the exhaustion requirement were not restricted to providing all levels of the state courts with an opportunity to hear his federal claim, it would effectively bar state prisoners from ever reaching a federal forum in States in which an unlimited number of identical applications for state post-conviction relief are permitted. The exhaustion requirement does not demand such 'repetitious applications to state courts.' Id., at 448—449, n. 3, 73 S.Ct., at 402—403.
17
But see McElroy v. Guagliardo, 361 U.S. 281, 80 S.Ct. 305, 4 L.Ed.2d 282 (1960); Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957); Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955); Noyd v. Bond, 395 U.S. 683, 696 n. 8, 89 S.Ct. 1876, 1884, 23 L.Ed.2d 631 (1969).
18
Nothing in this Court's recent decisions in Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), and Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), suggests that a different standard should be applied in the context of this case. Tollett involved a collateral attack upon the validity of a guilty plea in light of racial discrimination in the composition of the state grand jury that had indicted Henderson, an objection that had not been raised at the time of the entrance of the plea. Because it was clear that neither Henderson nor his counsel were aware of the claim of discrimination at the time of the plea, the Court agreed that there had been no valid waiver of the claim in traditional terms, see 411 U.S., at 266, 93 S.Ct., at 1607, but the Court did not consider that determination dispositive in the peculiar context of a collateral attack upon a guilty plea. Rather, the Court ruled that '(t)he focus of federal habeas inquiry is the nature of the advice and the voluntariness of the plea, not the existence as such of an antecedent constitutional infirmity, id., at 266, 93 S.Ct., at 1608. We, of course, do not deal here with the special problem of a collateral attack upon a guilty plea.
In Davis, the Court held that, for purposes of collateral attack, a petitioner had waived his objection to the composition of the grand jury that tried him because he had failed to raise the objection before trial as Fed.Rule Crim.Proc. 12(b)(2) expressly requires. Rule 12(b)(2) specifies that '(d)efenses and objections based on defects in the institution of the prosecution or in the indictment . . . may be raised only by motion before trial' and that failure to do so 'constitutes a waiver thereof.' Confronted with a situation in which a specific rule provided 'for the waiver of a particular kind of constitutional claim if it be not timely asserted,' 411 U.S., at 239—240, 93 S.Ct., at 1581, the Court concluded that preservation of the integrity of the Rule demanded that its standard should govern in the context of a collateral attack upon an indictment. This case, however, involves no such 'express waiver provisions,' id., at 240, 93 S.Ct., at 1582, and consequently the general waiver principles established by this Court's previous decisions must control.
19
See Developments in the Law—Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1234 (1970); cf. Noyd v. Bond, 395 U.S., at 695 n. 7, 89 S.Ct., at 1883 n. 7.
20
In any case, while his application for habeas corpus was pending in the District Court, petitioner Gosa filed a motion to vacate his conviction and sentence, on the basis of O'Callahan, in the Court of Military Appeals. Subsequent to the denial of relief in the District Court, the Court of Military Appeals, treating petitioner's motion as a petition for reconsideration, also denied relief. It did so, not on the basis that Gosa had waived the 'jurisdictional' question by failing to present it on direct appeal, but on the basis of its previous decision in Mercer holding O'Callahan to be nonretroactive. 19 U.S.C.M.A. 327, 41 C.M.R. 327 (1970). Thus, in all events, it seems clear that Gosa has now adequately exhausted his military remedies and his previous bypass can no longer be deemed a waiver of the 'jurisdictional question, see Warden v. Hayden, 387 U.S. 294, 297 n. 3, 87 S.Ct. 1642, 1645, 18 L.Ed.2d 782 (1967).
| 01
|
413 U.S. 508
93 S.Ct. 2832.
37 L.Ed.2d 767
UNITED STATES DEPARTMENT OF AGRICULTURE et al., Appellants,v.Lula Mae MURRY et al.
No. 72—848.
Argued April 23, 1973.
Decided June 25, 1973.
Syllabus
Appellees challenge the constitutionality of § 5(b) of the Food Stamp Act of 1964, as amended in 1971, providing that '(a)ny household which includes a member who has reached his eighteenth birthday and who is claimed as a dependent child for Federal income tax purposes by a taxpayer who is not a member of an eligible household, shall be ineligible to participate in any food stamp program . . . during the tax period such dependency is claimed and for a period of one year after the expiration of such tax period.' This provision was generated by congressional concern over nonneedy households participating in the food stamp program, and abuses of the program by 'college students' and 'children of wealthy parents.' The District Court held the provision unconstitutional, finding that it went far beyond the congressional goal, and operated inflexibly to deny stamps to households, containing no college students, that had established clear eligibility for stamps and remained in dire need, only because a member of the household 18 years or older is claimed by someone as a tax dependent. Held: The tax deduction taken for the benefit of the parent in a prior year is not a rational measure of the need of a different household with which the child of the tax-deducting parent lives, and the administration of the Act allows no hearing to show that the tax deduction is irrelevant to the need of the household. Section 5(b) therefore violates due process. Pp. 511—514.
348 F.Supp. 242, affirmed.
Keith A. Jones for appellants.
Ronald F. Pollack, New York City for appellees.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
The Food Stamp Act of 1964, 7 U.S.C. § 2011 et seq., as amended in 1971, 84 Stat. 2048, has been applied to these appellees so as to lead the three-judge District Court to hold one provision of it unconstitutional. 348 F.Supp. 242. We noted probable jurisdiction. 410 U.S. 924, 93 S.Ct. 1366, 35 L.Ed.2d 590.
2
Appellee Murry has two sons and ten grandchildren in her household. Her monthly income is $57.50, which comes from her ex-husband as support for her sons. Her expenses far exceed her monthly income. By payment, however, of $11 she received $128 in food stamps. But she has now been denied food stamps because her ex-husband (who has remarried) had claimed her two sons and one grandchild as tax dependents in his 1971 income tax return. That claim, plus the fact that her eldest son is 19 years old, disqualified her household for food stamps under § 5(b) of the Act.1 Appellee Alderete is in comparable straits because her ex-husband claimed the five children, who live with their mother, as tax dependents, the oldest being 18 years old. Appellee Beavert's case is similar. Appellee Lee is the mother of five children, her entire income per month being $23 derived from public assistance. Her five children live with her. Her monthly bills are $249, of which $148 goes for food. Her husband is not a member of her household; he in fact deserted her and has supplied his family with no support. But he claimed the two oldest sons, ages 20 and 18, as tax dependents in his 1971 tax return, with the result that the wife's household was denied food stamps. Appellee Nevarez is in comparable straits.
3
Appellee Joe Valdez is 18 years old and married; and he and his wife have a child. He lives wholly on public assistance and applied for food stamps. His application was rejected because his father Ben claimed him as a tax dependent in his 1971 income tax return. Joe receives no support from Ben because Ben is in debt and unable to help support Joe.
4
Appellee Broderson is 18 and married to a 16-year-old wife and they have a small child. Their monthly income is $110 consisting of his wages at a service station. He cannot get food stamps because his father claimed him as a tax dependent. The father, however, gives him no support.
5
Appellee Schultz is 19 years old and she resides with a girl friend and the latter's two children. Appellee Schultz has no income of any kind but received food stamps for the household where she lived. Food stamps, however, were discontinued when her parents claimed her as a tax dependent but refused to give her any aid. She soon got married, but she and her husband were denied food stamps because her parents had claimed her for tax dependency.
6
These appellees brought a class action to enjoin the enforcement of the tax dependency provision of the Act; and, as noted, the three-judge court granted the relief.
7
Appellees are members of households that have been denied food stamp eligibility solely because the households contain persons 18 years or older who have been claimed as 'dependents' for federal income tax purposes by taxpayers who are themselves ineligible for food stamp relief. Section 5(b) makes the entire household of which a 'tax dependent' was a member ineligible for food stamps for two years: (1) during the tax year for which the dependency was claimed and (2) during the next 12 months. During these two periods of time § 5(b) creates a conclusive presumption that the 'tax dependent's' household is not needy and has access to nutritional adequacy.
8
The Acting Administrator of the Food and Nutrition Service of the Department of Agriculture admitted in this case that:
9
'(I)n the case of households which have initially been determined to be ineligible for participation in the program on the basis of tax dependency, there are no factual issues to be presented or challenged by the household at such a hearing, other than the issue of whether or not a member of the household has been claimed as a dependent child by a taxpayer who is not a member of a household eligible for food assistance (a fact the household, in most cases, already will have disclosed in its application). If a household states that it has such a tax dependent member, the household is, in conformity with the Food Stamp Act, the program regulations, and the instructions of FNS governing the program administration by State agencies, determined to be ineligible.' App. 83.
10
Thus, in the administration of the Act, a hearing is denied, and is not available as the dissent implies. As stated by the District Court the Act creates 'an irrebuttable presumption contrary to fact.' 348 F.Supp., at 243. Moreover, an income tax return is filed, say in April 1973, for the year 1972. When the dependency deduction is filed, the year for which the dependency claim was made has already passed. Therefore the disqualification for food stamps cannot apply to 1972 but only to 1973.
11
The tax dependency provision was generated by congressional concern about nonneedy households participating in the food stamp program.2 The legislative history reflects a concern about abuses of the program by 'college students, children of wealthy parents.'3 But, as the District Court said, the Act goes far beyond that goal and its operation is inflexible. 'Households containing no college student, that had established clear eligibility for Food Stamps and which still remain in dire need and otherwise eligible are now denied stamps if it appears that a household member 18 years or older is claimed by someone as a tax dependent.' 348 F.Supp., at 243.
12
Tax dependency in a prior year seems to have no relation to the 'need' of the dependent in the following year. It doubtless is much easier from the administrative point of view to have a simple tax 'dependency' test that will automatically—without hearing, without witnesses, without findings of fact—terminate a household's claim for eligibility for food stamps. Yet, as we recently stated in Stanley v. Illinois, 405 U.S. 645, 656, 92 S.Ct. 1208, 1215, 31 L.Ed.2d 551:
13
'(I)t may be argued that unmarried fathers are so seldom fit that Illinois need not undergo the administrative inconvenience of inquiry in any case, including Stanley's. The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile value of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones.'
14
We have difficulty in concluding that it is rational to assume that a child is not indigent this year because the parent declared the child as a dependent in his tax return for the prior year. But even on that assumption our problem is not at an end. Under the Act the issue is not the indigency of the child but the indigency of a different household with which the child happens to be living. Members of that different household are denied food stamps if one of its present members was used as a tax deduction in the past year by his parents even though the remaining members have no relation to the parent who used the tax deduction, even though they are completely destitute, and even though they are one, or 10 or 20 in number. We conclude that the deduction taken for the benefit of the parent in the prior year is not a rational measure of the need of a different household with which the child of the tax-deducting parent lives and rests on an irrebuttable presumption often contrary to fact. It therefore lacks critical ingredients of due process found wanting in Vlandis v. Kline, 412 U.S. 441, 452, 93 S.Ct. 2230, 37 L.Ed.2d 63; Stanley v. Illinois, supra; and Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90.
15
Affirmed.
16
Mr. Justice STEWART, concurring.
17
The food stamp program was established in 1964 for the twin purposes of promoting the agricultural economy and alleviating hunger and malnutrition among the needy members of 'the other America.' 7 U.S.C. § 2011. Under this program, currently needy households whose members comply with a work requirement, 7 U.S.C. § 2014(b), (c), are entitled to purchase enough food stamps to provide those households with nutritionally adequate diets. In 1971, Congress became concerned with the possibility that nonneedy households were receiving food stamps, and its response was the enactment of Pub.L. 91—671. While the curbing of abuses in the administration of a government program is assuredly a legitimate purpose, that statute has given rise to constitutional questions in the present case and its companion, United States Department of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782.
18
The challenged provision in the present case is § 5(b) of the Food Stamp Act, 7 U.S.C. § 2014(b), as amended, 84 Stat. 2049. That section renders ineligible for food stamps any household that includes a member over 18 years of age who has been claimed as a tax dependent by a taxpayer who is not himself eligible for the stamps. What little legislative history there is suggests that the sole reason for enactment of this section was to prevent the receipt of food stamps by the sons and daughters of more affluent families. 116 Cong.Rec. 41979, 41981, 41993, 42021; cf. Dandridge v. Williams, 397 U.S. 471, 483—484, 90 S.Ct. 1153, 1160, 25 L.Ed.2d 491.
19
Rather than requiring an individualized determination that a particular household linked to a relatively more affluent household by a claimed tax dependency was not in fact needy, Congress chose instead to utilize a conclusive presumption. The simple fact that a household member has been claimed as a tax dependent by a non-indigent taxpayer results in the complete termination of benefits for that entire household in the relevant tax period and in the subsequent 12 months as well. 7 U.S.C. § 2014(b). It matters not whether that dependency claim was fraudulent, what the amount of support from the non-indigent taxpayer actually was,1 whether that support was still available at the time the welfare officials learned of it, or even whether the claimed dependent was still living in the household.
20
This Court recently declared unconstitutional. under the Due Process Clause of the Fourteenth Amendment, a Connecticut statute establishing a permanent, conclusive presumption of nonresidency for purposes of qualifying for reduced tuition rates at a state university. Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63. As we said in that case:
21
'In sum, since Connecticut purports to be concerned with residency in allocating the rates for tuition and fees at its university system, it is forbidden by the Due Process Clause to deny an individual the resident rates on the basis of a permanent and irrebutable presumption of nonresidence, when that presumption is not necessarily or universally true in fact, and when the State has reasonable alternative means of making the crucial determination. Rather, standards of due process require that the State allow such an individual the opportunity to present evidence showing that he is a bona fide resident entitled to the in-state rates.' Id., at 452, 93 S.Ct. at 2236.
22
See also Morrissey v. Brewer, 408 U.S. 741, 92 S.Ct. 2593, 33 L.Ed.2d 484; Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551; Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90.
23
Similarly, I think, the conclusive presumption that led to the termination of the appellees' benefits without any opportunity for them to prove present need denied them due process of law.2 Accordingly, I concur in the opinion and judgment of the Court.
24
Mr. Justice MARSHALL, concurring.
25
I join the opinion of the Court. I wish to state briefly what I believe are the analytic underpinnings of that opinion. One aspect of fundamental fairness, guaranteed by the Due Process Clause of the Fifth Amendment, is that individuals similarly situated must receive the same treatment by the Government. As Mr. Justice Jackson put it, the Government 'must exercise (its) powers so as not to discriminate between (its) inhabitants except upon some reasonable differentiation fairly related to the object of the regulation.' Railway Express Agency v. New York, 336 U.S. 106, 112, 69 S.Ct. 463, 466, 93 L.Ed. 533 (1949) (concurring opinion). It is a corollary of this requirement that, in order to determine whether persons are indeed similarly situated, 'such procedural protections as the particular situation demands' must be provided. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). Specifically, we must decide whether, considering the private interest affected and the governmental interest sought to be advanced, a hearing must be provided to one who claims that the application of some general provision of the law aimed at certain abuses will not in fact lower the incidence of those abuses but will instead needlessly harm him. Cf. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973). In short, where the private interests affected are very important and the governmental interest can be promoted without much difficulty by a well-designed hearing procedure, the Due Process Clause requires the Government to act on an individualized basis, with general propositions serving only as rebuttable presumptions or other burden-shifting devices. That, I think, is the import of Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).
26
Is this, then, such a case? Appellants argue that Congress could rationally have thought that persons claimed as tax dependents by a taxpayer himself not a member of an eligible household in one year could, during that year and the succeeding one, probably receive sufficient funds from the taxpayer to offset their need for food stamps. If those persons received food stamps, they would be denying to the truly needy some of the limited benefits Congress has chosen to make available. The statute, on this view, is aimed at preventing abuse of the program by persons who do not need the benefits Congress has provided. Even if, as appellants urge, the statute is interpreted to make ineligible for food stamps only those persons validly claimed as tax dependents, see Reply Brief for Appellants 2—3. I do not think that Congress adopted a method for preventing abuse that is reasonably calculated to eliminate only those who abuse the program. In particular, it could not be fairly concluded that, because one member of the household had received half his support from a parent, the entire household's need for assistance in purchasing food could be offset by outside contributions.
27
It is, of course, quite simple for Congress to provide an administrative mechanism to guarantee that abusers of the program were eliminated from it. All that is needed is some way for a person whose household would otherwise be ineligible for food stamps because of this statute to show that the support presently available from the person claiming a member of the household as a tax dependent does not in fact offset the loss of benefits.* Reasonable rules stating what a claimant must show before receiving a hearing on the question could easily be devised. We deal here with a general rule that may seriously affect the ability of persons genuinely in need to provide an adequate diet for their households. In the face of readily available alternatives that might prevent abuse of the program, Congress did not choose a method of reducing abuses that was 'fairly related to the object of the regulation,' by enacting the statute challenged in this case.
28
This analysis, of course, combines elements traditionally invoked in what are usually treated as distinct classes of cases, involving due process and equal protection. But the elements of fairness should not be so rigidly cabined. Sometimes fairness will require a hearing to determine whether a statutory classification will advance the legislature's purposes in a particular case so that the classification can properly be used only as a burden-shifting device, while at other times the fact that a litigant falls within the classification will be enough to justify its application. There is no reason, I believe, to categorize inflexibly the rudiments of fairness. Instead, I believe that we must assess the public and private interests affected by a statutory classification and then decide in each instance whether individualized determination is required or categorical treatment is permitted by the Constitution.
29
Mr. Justice BLACKMUN, dissenting.
30
Section 5(b) of the Food Stamp Act, which the Court today holds unconstitutional, is not happily drafted and surely is not the kind of statute that attracts sympathetic review. Its purposes, however, are conceded to be laudatory. And, indeed, they are, for the statute seeks to prevent widespread abuse of the federal food stamp program by nonindigents and college students, with consequent denial of the full benefit of the program to those seriously in need of assistance.
31
The Court, however, invalidates § 5(b) for, apparently, two reasons. The first is that tax dependency in one calendar year is tied to the subject's lack of need in the following year, and this, it is said, has no rational connection. The second, although it may not be clearly articulated, is that all that is needed to disqualify a household is the presence in it of a person over 18 who is claimed as a dependent for federal income tax purposes by someone outside the household. That this is a reason is quite apparent from the Court's special emphasis on the claims of dependency said to have been asserted by the father or parents of appellees Valdez, Broderson, and Schultz, even though the parent or parents, according to affidavits, gave 'no support' or refused to give 'any aid,' to use the Court's words, ante, at 511.
32
For me, neither reason is persuasive. As I read § 5(b) of the Act, see ante, at 509 n. 1, the years of ineligibility for food stamps are 'the tax period such dependency is claimed' and the year that follows. They are not the latter year and the one subsequent thereto, as the Court seems to indicate. I confess that there must be some practical awkwardness in relating the food stamp year to the tax dependency year, for one often cannot know that he is being claimed as a tax dependent for a given year until the claimant files his income tax return for that year some time after its close. Despite this fact, the statute, for me, is clear and, at least, acceptable, and I would not rewrite it on a pragmatic basis, as, I think, the Court has done. Furthermore, the 'year after' provision is not without rational basis, for Congress, in allocating limited resources, has determined that by this means it recoups in the later year the loss sustained in the earlier year when food stamps were improperly claimed.
33
My second concern centers in the meaning of the words, 'who is claimed as a dependent child for Federal income tax purposes,' in § 5(b) of the Act. I cannot believe that the mere fact of claiming is sufficient or that that is what Congress intended. It seems obvious to me that 'claimed' in this context has only one meaning, that is, properly claimed for income tax purposes, and not the mere assertion of dependency in the return. This would be the sensible construction of the statute. It is obvious and clear, from the Court's description of the Valdez, Broderson, and Schultz situations, ante, at 510—511, that the parent or parents who claimed those appellees as income tax dependents were not at all entitled to make those claims. They clearly did not satisfy the requirements of § 151(e)(1) of the Internal Revenue Code of 1954, 26 U.S.C. § 151(e)(1). Valdez' problem is with his father, not with the food stamp program, if the facts the Court states are accurate. The same is true of Broderson. The same is true of Schultz.
34
Each of these aspects, which the Court chooses not to analyze and prefers, instead, to resolve by convenient nullification of the statute, could be handled by an appropriate hearing directed to the ascertainment of the actual facts. In that hearing it may be shown whether Joe Valdez, in fact, 'receives no support from Ben.' If this be true, Joe should not automatically be ineligible for the program, and Ben's improper claim of Joe as an income tax dependent should have no food stamp consequence whatsoever. So it would be with appellees Broderson and Schultz. The same may be true as to the remaining appellees with respect to whom claims of dependency status, on the affidavits filed, are at least questionable.
35
I, therefore, would vacate the judgment of the District Court and remand the case for a hearing directed to the development of the underlying facts in the light of § 5(b) of the Food Stamp Act and of § 151(e)(1) of the 1954 Internal Revenue Code, and for the entry of a new judgment in the light of those facts as so ascertained.
36
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE and Mr. Justice POWELL concur, dissenting.
37
Appellees challenge on constitutional grounds a section of the most recent congressional revision of the Food Stamp Act, 7 U.S.C. § 2011 et seq., whereby households containing persons 18 years or older who have been claimed as 'dependents' for income tax purposes are made ineligible to receive food stamps. The Court's opinion sustains this challenge. Referring to what it conceives to be the legislative aim in enacting such a limitation, 'a concern about abuses of the program by 'college students, children of wealthy parents," the opinion states that 'the Act goes far beyond that goal and its operation is inflexible' ante, at 513.
38
Notions that in dispensing public funds to the needy Congress may not impose limitations which 'go beyond the goal' of Congress, or may not be 'inflexible,' have not heretofore been thought to be embodied in the Constitution. In Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 914 (1970), the Court rejected this approach in an area of welfare legislation that is indistinguishable from the food stamp program here involved. There the District Court, in the words of this Court,
39
'while apparently recognizing the validity of at least some of these state concerns, nonetheless held that the regulation 'is invalid on its face for overreaching,' 297 F.Supp., at 468—that it violates the Equal Protection Clause '(b)ecause it cuts too broad a swath on an indiscriminate basis as applied to the entire group of AFDC eligibles to which it purports to apply . . .." Id., at 484, 90 S.Ct., at 1161.
40
Applying the Equal Protection Clause of the Fourteenth Amendment to state action, the Court reversed the District Court and held:
41
'(T)he concept of 'overreaching' has no place in this case. For here we deal with state regulation in the social and economic field, not affecting freedoms guaranteed by the Bill of Rights, and claimed to violate the Fourteenth Amendment only because the regulation results in some disparity in grants of welfare payments to the largest AFDC families. For this Court to approve the invalidation of state economic or social regulation as 'overreaching' would be far too reminiscent of an era when the Court thought the Fourteenth Amendment gave it power to strike down state laws 'because they may be unwise, improvident, or out of harmony with a particular school of thought' . . ..
42
'In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some 'reasonable basis,' it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because in practice it results in some inequality.' Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 (31 S.Ct. 337, 340) 55 L.Ed. 369.' Id., at 484—485, 90 S.Ct., at 1161.
43
In placing the limitations on the availability of food stamps which are involved in this case, Congress has not in any reasoned sense of that word employed a conclusive presumption as stated by the majority, ante, at 511, 512 and Mr. Justice STEWART in his concurring opinion, ante, at 516; it has simply made a legislative decision that certain abuses which it conceived to exist in the program as previously administered were of sufficient seriousness to warrant the substantive limitation which it enacted. There is a qualitative difference between, on the one hand, holding unconstitutional on procedural due process grounds presumptions which conclude factual inquiries without a hearing on such questions as fault, Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), the fitness of an unwed father to be a parent, Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), or accepting the majority's characterization in Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973), residency, and, on the other hand, holding unconstitutional a duly enacted prophylactic limitation on the dispensation of funds which is designed to cure systemic abuses. Cf. Mourning v. Family Publications Service, Inc., 411 U.S. 356, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973); Ginsberg v. New York, 390 U.S. 629, 643, 88 S.Ct. 1274, 1282, 20 L.Ed.2d 195 (1968).
44
Thus, we deal not with the law of evidence, but with the extent to which the Fifth Amendment permits this Court to invalidate such a determination by Congress. In Williamson v. Lee Optical Co., 348 U.S. 483, 487—488, 75 S.Ct. 461, 464, 99 L.Ed. 563 (1955), the Court said:
45
'But the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.' Accord, Dandridge v. Williams, supra; Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963); Flemming v. Nestor, 363 U.S. 603, 611—612, 80 S.Ct. 1367, 1372, 4 L.Ed.2d 1435 (1960).
46
The majority concludes that a 'deduction taken for the benefit of the parent in the prior year is not a rational measure of the need of a different household with which the child of the tax-deducting parent lives.' Ante, p. 514. But judged by the standards of the foregoing cases, the challenged provision of the Food Stamp Act has a legitimate purpose and cannot be said to lack any rational basis. Section 5(b) declares ineligible for food stamps '(a) ny household which includes a member who has reached his eighteenth birthday and who is claimed as a dependent child for Federal income tax purposes by a taxpayer who is not a member of an eligible household.' Thus, in order to disqualify a household for food stamps, the taxpayer claiming one of its members as a dependent must both provide over half of the dependent's support and must himself be a member of a household with an income large enough to disqualify that household for food stamps. These characteristics indicate that the taxpayer is both willing and able to provide his dependent with a significant amount of support. To be sure, there may be no perfect correlation between the fact that the taxpayer is part of a household which has income exceeding food stamp eligibility standards and his provision of enough support to raise his dependent's household above such standards. But there is some correlation, and the provision is, therefore, not irrational. Dandridge v. Williams, supra.* Nor is § 5(b) deprived of a rational basis because disqualification of the household extends one year beyond the year in which the dependency deduction is claimed. Since income tax returns are not filed until after the termination of the tax year, the carryover provision is the only practical means of enforcing the congressional purpose unless Congress were to establish an administrative adjudication procedure wholly independent of the existing tax collection structure. Such an alternative system would doubtless have its own delays, inefficiencies, and inequities. Under these circumstances we cannot say that Congress acted irrationally in judging a person's need in one year by whether he was claimed as a tax dependent in the previous year.
47
Finally, the fact that the statute as presently administered may operate to deny food stamps on the basis of fraudulent as well as lawful dependency deduction claims does not, as suggested by the three-judge District Court, 348 F.Supp. 242, 243 (DC 1972), render it unconstitutional. A false dependency claim subjects the taxpayer to both civil and criminal penalties, and Congress may reasonably proceed on the assumption that taxpayers will obey the law.
48
The prior holdings of the Court convince me that this limitation which Congress has placed on the availability of food stamps does not violate the Due Process Clause of the Fifth Amendment and I therefore dissent from the Court's affirmance of the judgment of the District Court.
1
Section 5(b) of the Act provides in part: 'Any household which includes a member who has reached his eighteenth birthday and who is claimed as a dependent child for Federal income tax purposes by a taxpayer who is not a member of an eligible household, shall be ineligible to participate in any food stamp program established pursuant to this chapter during the tax period such dependency is claimed and for a period of one year after expiration of such tax period. . . .' 7 U.S.C. § 2014(b). (Emphasis added.)
The Regulations provide: "Dependent' for the purpose of § 271.3(d) of this subchapter, means a person claimed as a dependent for Federal income tax purposes by a parent or guardian and living apart
from the household of such parent or guardian.' 7 CFR § 270.2(q).
'Any household which includes a member who has reached his 18th birthday and who is claimed as a dependent for Federal income tax purposes by a member of a household which is not certified as being eligible for food assistance shall be ineligible to participate in the program during the tax period such dependency is claimed and for a period of 1 year after expiration of such tax period.' 7 CFR § 271.3(d).
The relevant exemption provision in § 151(e)(1) of the Internal Revenue Code, as amended, 26 U.S.C. § 151(e)(1) (1970 ed. and Supp. I), reads:
'An exemption of $750 (shall be allowed) for each dependent (as defined in section 152)—
'(A) whose gross income for the calendar year in which the taxable year of the taxpayer begins is less than $750, or
'(B) who is a child of the taxpayer and who (i) has not affained the age of 19 at the close of the calendar year in which the taxable year of the taxpayer begins, or (ii) is a student . . ..'
And the term 'dependent' is defined as meaning 'any of the following individuals over half of whose support, for the calendar year in which the taxable year of the taxpayer begins, was received from the taxpayer . . .:
'(1) A son or daughter of the taxpayer . . ..' 26 U.S.C. § 152(a)(1).
2
Household participation is based on current circumstances, not past needs. Food stamp certifications for households on public assistance coincide with their welfare certification periods. 7 CFR §§ 271.4(a)(1) and 271.4(a)(4) (ii). For nonpublic assistance households, certification periods last normally only three months. 7 CFR § 271.4(a)(4)(iii). Longer certification periods are provided only 'if there is little likelihood of changes in household status.' 7 CFR § 271.4(a)(4)(iii), (b), (c), and (d).
3
116 Cong.Rec. 41979.
1
Even if the amount of support received from the taxpayer leaves the household with income below the income eligibility standards, the statute under consideration would terminate benefits. A 5-person household, for example, might receive $120 in public assistance each month, plus $121 from a divorced non-indigent spouse. If that household had within it a child who was age 18 or older, and if the spouse claimed that child as a dependent, the household would be ineligible for food stamps. Yet in this hypothetical situation, the household's monthly income would be $241, whereas under the Department of Agriculture's own income standards a household of five can earn up to $440 per month without being disqualified for food stamps. 37 Fed.Reg. 7724. The opinion of the Court points out how totally arbitrary the challenged statute is in operation.
2
The Congress has alternative means available to it by which its purpose can be achieved. The Food Stamp Act, as amended, already provides that households must demonstrate present neediness to qualify, 7 U.S.C. § 2014(b), and that its members must under certain circumstances accept available employment, id., § 2014(c). There is no reason that enforcement of these provisions cannot be strengthened if the Congress believes that fraud is taking place. There are already criminal penalties in effect for fraudulent acquisition, use, or transfer of food stamps. Id., § 2023(b), (c).
*
Such a mechanism must be made available, on the interpretation of the statute advanced by appellants, to persons who contend that they were not validly claimed as dependents.
*
The Court's opinion makes much of the facts that there may be no relationship between the tax dependent's parent and the remaining members of the household, that they may be completely destitute, and that they may be one or 10 or 20. Ante, at 2836. Section 3(e) of the Food Stamp Act, 7 U.S.C. § 2012(e), provides in relevant part:
'The term 'household' shall mean a group of . . . individuals . . . who . . . are living as one economic unit . . ..'
In its instructions to the state agencies administering the food stamp program, the Department of Agriculture's Food and Nutrition Service defines 'economic unit' as meaning that 'the common living expenses are shared from the income and resources of all members and that the basic needs of all members are provided for without regard to their ability or willingness to contribute.' (Reply brief for Appellants in No. 72—534, O.T.1972, 9 n. 19, U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782.)
The majority does not question that Congress could rationally so choose to dispense welfare benefits to 'economic units' rather than to individuals. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 914 (1970). Since the resources of the household member claimed as a tax dependent are by definition available to the entire household, it is rational to disqualify such units containing ineligible tax dependents.
| 12
|
413 U.S. 825
93 S.Ct. 2982
37 L.Ed.2d 939
Grace SLOAN, as State Treasurer of the Commonwealth of Pennsylvania, et al., Appellants,v.Alton J. LEMON et al. Henry E. CROUTER, Appellant, v. Alton J. LEMON et al.
Nos. 72—459, 72—620.
Argued April 16, 1973.
Decided June 25, 1973.
Syllabus
Subsequent to Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745, Pennsylvania enacted the 'Parent Reimbursement Act for Nonpublic Education,' providing funds to reimburse parents for a portion of tuition expenses incurred in sending their children to nonpublic schools. The three-judge District Court held that the law violated the Establishment Clause, granted plaintiffs' motion for summary judgment, and permanently enjoined disbursement of any funds under the Act. The Court also indicated that 'more than 90% of the children attending nonpublic schools in . . . Pennsylvania are enrolled in schools that are controlled by religious organizations or that have the purpose of propagating and promoting religious faith,' and ruled that the Act could not properly be viewed as containing a separable provision for aid to parents whose children attended nonsectarian, nonpublic schools. Held:
1. There is no constitutionally significant difference between Pennsylvania's tuition grant scheme, with its intended consequence of preserving and supporting religion-oriented institutions, and New York's tuition reimbursement program held violative of the Establishment Clause in Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948. Pp. 828—833.
2. The Act is not severable, but even if it were clearly severable, valid aid to nonpublic, nonsectarian schools can provide no basis for sustaining aid to sectarian schools. The Equal Protection Clause cannot be relied upon to sustain a program violative of the Establishment Clause. Pp. 833—835.
340 F.Supp. 1356, affirmed.
Israel Packel, Harrisburg, Pa., for appellant Grace Sloan, etc.
William B. Ball, Harrisburg, Pa., for appellants Jose Diaz and others.
Henry T. Reath, Philadelphia, Pa., for appellant Henry E. Crouter.
Theodore R. Mann, Philadelphia, Pa., for appellees.
Mr. Justice POWELL delivered the opinion of the Court.
1
On June 28, 1971, this Court handed down Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745, in which Pennsylvania's 'Nonpublic Elementary and Secondary Education Act' was held unconstitutional as violative of the Establishment Clause of the First Amendment. That law authorized the State to reimburse nonpublic, sectarian schools for their expenditures on teachers' salaries, textbooks, and instructional materials used in specified 'secular' courses. The Court's ruling was premised on its determination that the restrictions and state supervision required to guarantee that the specified aid would benefit only the nonreligious activities of the schools would foster 'excessive entanglement' between government and religion. Id., at 620—622, 91 S.Ct., at 2114—2116.
2
On August 27, 1971, the Pennsylvania General Assembly promulgated a new aid law, entitled the 'Parent Reimbursement Act for Nonpublic Education,' providing funds to reimburse parents for a portion of tuition expenses incurred in sending their children to nonpublic schools. Shortly thereafter, this suit, challenging the enactment and seeking declaratory and injunctive relief, was filed in the United States District Court for the Eastern District of Pennsylvania. The plaintiffs were Pennsylvania residents and taxpayers who had paid the state tax used to finance the aid program, and at least one plaintiff was also the parent of a child attending a public school within the State. The State Treasurer was named as the defendant and was sued in that capacity. Motions to intervene on the side of the State were granted to a number of parents whose children enrolled in nonpublic schools and who were therefore entitled to payments under the challenged law.
3
The defendant and intervenors filed a motion to dismiss the complaint for failure to state a claim upon which relief might be granted. The motion was considered by a properly constituted three-judge District Court. On April 6, 1972, the panel denied the motion in a full opinion explicating its views and holding that the law violated the Establishment Clause. 340 F.Supp. 1356. On the basis of that opinion, the District Court subsequently issued an order granting plaintiffs' motion for summary judgment and permanently enjoining the disbursement of any funds under the Act. Its order also ruled that the Act could not properly be viewed as containing a separable provision for aid to parents whose children attended nonsectarian, nonpublic schools.
4
Direct appeals were docketed in this Court by the State Treasurer and by the several intervenors.1 We noted probable jurisdiction, consolidated the appeals for oral argument, and scheduled the cases to be argued with the several appeals in a case from New York involving an issue in common with this case. 410 U.S. 907, 93 S.Ct. 958, 35 L.Ed.2d 268 (1973). We have today held in Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948, that New York's tuition reimbursement legislation has the impermissible effect of advancing religious institutions and is therefore unconstitutional under the Establishment Clause. Because we find no constitutionally significant difference between New York's and Pennsylvania's programs, that decision compels our affirmance of the District Court's decision here.
5
* Pennsylvania's 'Parent Reimbursement Act for Nonpublic Education'2 provides for reimbursement to parents who pay tuition for their children to attend the State's nonpublic elementary and secondary schools. Qualifying parents are entitled to receive $75 for each dependent enrolled in an elementary school, and $150 for each dependent in a secondary school, unless that amount exceeds the amount of tuition actually paid. The money to fund this program is to be derived from a portion of the revenues from the State's tax on cigarette sales, and is to be administered by a five-member committee appointed by the Governor, known as the 'Pennsylvania Parent Assistance Authority.' In an effort to avoid the 'entanglement' problem that flawed its prior aid statute, Lemon v. Kurtzman, supra, the new legislation specifically precludes the administering authority from having any 'direction, supervision or control over the policy determinations, personnel, curriculum, program of instruction or any other aspect of the administration or operation of any nonpublic school or schools.'3 Similarly, the statute imposes no restrictions or limitations on the uses to which the reimbursement allotments can be put by the qualifying parents.
6
Like the New York tuition program, the Pennsylvania law is prefaced by 'legislative findings,' which emphasize its underlying secular purposes: parents who send their children to nonpublic schools reduce the total cost of public education; 'inflation, plus sharply rising costs of education, now combine to place in jeopardy the ability of such parents fully to carry this burden'; if the State's 500,000 nonpublic school children were to transfer to the public schools, the annual operating costs to the State would be $400 million, and the added capital costs would exceed $1 billion; therefore, 'parents who maintain students in nonpublic schools provide a vital service' and deserve at least partial reimbursement for alleviating an otherwise 'intolerable public burden.'4 We certainly do not question now, any more than we did two Terms ago in Lemon v. Kurtzman,5 the reality and legitimacy of Pennsylvania's secular purposes. See Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S., at 773, 93 S.Ct., at 2965.
7
We turn, then, to consider the new law's effect. As the case was decided in the District Court initially on defendant's and intervenors' motions to dismiss, the court accepted as true plaintiffs' allegation with respect to the identifying characteristics of the schools qualifying under the Act. 340 F.Supp., at 1359. Those characteristics are largely the same as the ones used by the District Court to describe typical sectarian schools in New York. 413 U.S., at 767—768, 93 S.Ct., at 2962—2963. In its subsequent order granting summary judgment in plaintiffs' favor, the District Court indicated that 'more than 90% of the children attending nonpublic schools in the Commonwealth of Pennsylvania are enrolled in schools that are controlled by religious organizations or that have the purpose of propagating and promoting religious faith.' App. 87a. This finding is consistent with the evidence in Lemon v. Kurtzman, in which the Court noted that more than 96% of the children attending nonpublic schools in Pennsylvania in 1969 'attend(ed) church-related schools, and most of these schools are affiliated with the Roman Catholic church.' 403 U.S., at 610, 91 S.Ct., at 2110.
8
For purposes of determining whether the Pennsylvania tuition reimbursement program has the impermissible effect of advancing religion, we find no constitutionally significant distinctions between this law and the one declared invalid today in Nyquist. Each authorizes the States to use tax-raised funds for tuition reimbursements payable to parents who send their children to nonpublic schools. Neither tells parents how they must spend the amount received. While the Pennsylvania grants are more generous ($75 to $150 as opposed to $50 to $100), and while Pennsylvania imposes no ceiling on the number of children for whom parents may claim tuition reimbursement or on the percentage of the tuition bill for which parents may be reimbursed,6 these considerations are irrelevant to the First Amendment question.
9
Neither the State Treasurer nor appellant-intervenor in No. 72—620 has suggested any way in which the present law might be distinguished from the one in question in Nyquist. The intervenors in No. 72—459, have, however, proffered a distinction which deserves discussion because it serves to underline the basis for our ruling in these cases. Intervenors suggest that New York's law might be differentiated on the ground that because tuition grants there were available only to parents in an extremely low income bracket (less than $5,000 of taxable income), it would be reasonable to predict that the grant would, in fact, be used to pay tuition, rendering the parent a mere 'conduit' for public aid to religious schools. Since Pennsylvania authorizes grants to all parents of children in nonpublic schools—regardless of income level—it is argued that no such assumption can be made as to how individual parents will spend their reimbursed amounts.7
10
Our decision, however, is not dependent upon any such speculation. Instead we look to the substance of the program, and no matter how it is characterized its effect remains the same. The State has singled out a class of its citizens for a special economic benefit. Whether that benefit be viewed as a simple tuition subsidy, as an incentive to parents to send their children to sectarian schools, or as a reward for having done so, at bottom its intended consequences is to preserve and support religion-oriented institutions. We think it plain that this is quite unlike the sort of 'indirect' and 'incidental' benefits that flowed to sectarian schools from programs aiding all parents by supplying bus transportation and secular textbooks for their children. Such benefits were carefully restricted to the purely secular side of church-affiliated institutions and provided no special aid for those who had chosen to support religious schools. Yet such aid approached the 'verge' of the constitutionally impermissible. Everson v. Board of Education, 330 U.S. 1, 16, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947). In Lemon v. Kurtzman, we declined to allow Everson to be used as the 'platform for yet further steps' in granting assistance to 'institutions whose legitimate needs are growing and whose interests have substantial political support.' 403 U.S., at 624, 91 S.Ct., at 2117. Again today we decline to approach or overstep the 'precipice' against which the Establishment Clause protects. We hold that Pennsylvania's tuition grant scheme violates the constitutional mandate against the 'sponsorship' or 'financial support' of religion or religious institutions. Walz v. Tax Comm'n, 397 U.S. 664, 668, 90 S.Ct. 1409, 1411, 25 L.Ed.2d 697 (1970).8
II
11
Apart from the Establishment Clause issues central to this case, appellant-intervenors in No. 72—459 make an equal protection claim that was not directly ruled on by the District Court. These intervenors are 12 parents whose children attend nonpublic schools. Two parents, the Watsons, send their child to a nonsectarian school while the remainder send their children to sectarian schools. The District Court's final order enjoined the State Treasurer from disbursing funds to any parents, irrespective of whether their children attended sectarian or nonsectarian schools. The court considered and rejected the argument that the state law should be treated 'as containing a separable provision for aid to parents of children attending nonpublic schools that are not church related.'9 Although the Act contained a severability clause,10 the court reasoned that, in view of the fact that so substantial a majority of the law's designated beneficiaries were affiliated with religious organizations, it could not be assumed that the state legislature would have passed the law to aid only those attending the relatively few nonsectarian schools.11
12
Appellants ask this Court to declare the provisions severable and thereby to allow tuition reimbursement for parents of children attending schools that are not church related. If the parents of children who attend nonsectarian schools receive assistance, their argument continues, parents of children who attend sectarian schools are entitled to the same aid as a matter of equal protection. The argument is thoroughly spurious. In the first place, we have been shown no reason to upset the District Court's conclusion that aid to the nonsectarian school could not be severed from aid to the sectarian. The statute nowhere sets up this suggested dichotomy between sectarian and nonsectarian schools, and to approve such a distinction here would be to create a program quite different from the one the legislature actually adopted. See Champlin Refining Co. v. Corporation Commission of Oklahoma, 286 U.S. 210, 234, 52 S.Ct. 559, 564, 76 L.Ed. 1062 (1932); cf. Tilton v. Richardson, 403 U.S. 672, 683—684, 91 S.Ct. 2091, 2098—2099, 29 L.Ed.2d 790 (1971) (plurality opinion). Even if the Act were clearly severable, valid aid to nonpublic, nonsectarian schools would provide no lever for aid to their sectarian counterparts. The Equal Protection Clause has never been regarded as a bludgeon with which to compel a State to violate other provisions of the Constitution. Having held that tuition reimbursements for the benefit of sectarian schools violate the Establishment Clause, nothing in the Equal Protection Clause will suffice to revive that program. Cf. Brusca v. State Board of Education, 405 U.S. 1050, 92 S.Ct. 1493, 31 L.Ed.2d 786 (1972), aff'g 332 F.Supp. 275 (EDMo.1971).
III
13
In holding today that Pennsylvania's post-Lemon v. Kurtzman attempt to avoid the Establishment Clause's prohibition against government entanglements with religion has failed to satisfy the parallel bar against laws having a primary effect that advances religion, we are not unaware that appellants and those who have endeavored to formulate systems of state aid to nonpublic education may feel that the decisions of this Court have, indeed, presented them with the 'insoluble paradox' to which Mr. Justice White referred in his separate opinion in Lemon v. Kurtzman. 403 U.S., at 668, 91 S.Ct., at 2138.12 But if novel forms of aid have not readily been sustained by this Court, the 'fault' lies not with the doctrines which are said to create a paradox but rather with the Establishment Clause itself: 'Congress' and the States by virtue of the Fourteenth Amendment 'shall make no law respecting an establishment of religion.' With that judgment we are not free to tamper, and while there is 'room for play in the joints,' Walz v. Tax Comm'n, supra, 397 U.S., at 669, 90 S.Ct., at 1412, the Amendment's proscription clearly forecloses Pennsylvania's tuition reimbursement program.
14
Affirmed.
1
No. 72—459, Sloan v. Lemon, is an appeal filed by the State Treasurer and by 12 intervening parents, two of whom are the Watsons—the parents of a child registered in a nonreligious, private school. No. 72—620, Crouter v. Lemon, is a separately docketed appeal initiated by another one of the intervenors.
2
Pa.Laws 1971, Act 92, Pa.Stat.Ann., Tit. 24, §§ 5701—5709 (Supp.1973—1974) (the entire enactment is printed in an appendix to the District Court's opinion, 340 F.Supp. 1356, 1365—1368).
3
Act 92, supra, § 5704.
4
Id., § 5702.
5
These findings are similar to the ones which supported the Pennsylvania teacher-salary reimbursement law involved in Lemon. There the Court noted that the Act was passed 'in response to a crisis that the Pennsylvania Legislature found existed in the State's nonpublic schools due to rapidly rising costs.' 403 U.S., at 609, 91 S.Ct., at 2109. The Court held that the State's interest in enhancing 'the quality of the secular education in all schools covered by the compulsory attendance laws' was clearly legitimate and 'must be therefore accorded appropriate deference.' Id., at 613, 91 S.Ct., at 2111.
6
Since the grants in this case are not limited to reimbursing only a percentage of the tuition bill, the argument could not be made here that the law contains any 'statistical guarantee of neutrality,' Nyquist, 413 U.S., at 787, 93 S.Ct., at 2972.
7
Brief for Appellants Diaz et al. 23—24. It was also alleged, as a ground of distinction between the Pennsylvania and New York tuition reimbursement grants, that there was less likelihood of political divisiveness under the Pennsylvania scheme because it is financed out of a self-perpetuating fund derived from the state cigarette tax. Thus, it is contended that no annual appropriations are required and there will be less likelihood of divisive political pressure for increased grants and expanded aid. We addressed the problem of potential political divisiveness in Part III of our opinion in Nyquist, 413 U.S., at 794—798, 93 S.Ct., at 2976—2978. At most, the difference here is one in degree and one not likely to diminish perceptibly over the long term the inevitable demands for increased and expanded aid.
8
Appellants have also sought to distinguish Nyquist on the ground that Pennsylvania's legislation is more carefully drafted to avoid excessive administrative entanglements; the program is administered by an independent authority rather than by the Commissioner of Education, and its funds are not derived from the general revenues available for education but from a separate fund. Brief for Appellant Diaz et al. 24. Since Pennsylvania's law falls under the second aspect of our test because its effect, inevitably, is to advance religion we need not address this claimed distinction.
9
Order of District Court, dated June 20, 1972, scheduling oral arguments on plaintiffs' summary judgment motion and outlining the questions to be argued at that time, reprinted in App. 84a—85a.
10
'Section 10. Severability.—If a part of this act is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of this act is invalid, in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.' Pa.Laws 1971, Act 92. (Emphasis supplied.)
11
Final Order of District Court, dated July 21, 1972, permanently enjoining enforcement of the Act, reprinted in App. 87a.
12
See also Lemon v. Kurtzman, 403 U.S., at 640, 91 S.Ct., at 2124 (Douglas, J., concurring); Lemon v. Kurtzman, 411 U.S. 193, 203 n. 3, 93 S.Ct. 1463, 1470, 36 L.Ed.2d 151 (1973) (Lemon II).
| 23
|
414 U.S. 1
94 S.Ct. 209
38 L.Ed.2d 1
Robert SATIACUMv.State of WASHINGTON.
No. 72-552.
Supreme Court of the United States
October 15, 1973
On petition for writ of certiorari to the Supreme Court of Washington.
PER CURIAM.
1
It appearing that petitioner might have been fishing at a location outside the boundaries of what is, or was, the Puyallup Indian Reservation when the acts with which he is charged were committed, and, if this were so, that the Supreme Court of Washington then unnecessarily addressed, and determined, the federal question whether the Puyallup Reservation 'has ceased to exist,' the petition for a writ of certiorari is granted, the judgment of the Supreme Court of Washington is vacated, and the case is remanded to that court for resolution by the state courts of the factual issue whether the alleged offenses took place outside the boundaries of what is, or was, the Reservation.
| 89
|
414 U.S. 2
94 S.Ct. 17
38 L.Ed.2d 3
Harold R. PLUMMERv.CITY OF COLUMBUS, OHIO.
No. 72—6897.
Decided Oct. 15, 1973.
PER CURIAM.
1
The Court of Appeals of Franklin County, Ohio, in an unreported opinion, affirmed appellant's conviction of violating Columbus City Code § 2327.03, which provides: 'No person shall abuse another by using menacing, insulting, slanderous, or profane language.' The Ohio Supreme Court, in an unreported order, sua sponte dismissed appellant's appeal to that court 'for the reason that no substantial constitutional question exists herein.' We grant leave to proceed in forma pauperis and reverse.
2
On December 11, 1972, we held that Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408, required the reversal of a previous action of the Ohio Supreme Court that dismissed an appeal from a conviction under § 2327.03. Cason v. City of Columbus, 409 U.S. 1053, 93 S.Ct. 565, 34 L.Ed.2d 507 (1972). Section 2327.03 punishes only spoken words and, as construed by the Ohio courts, is facially unconstitutional because not limited in application 'to punish only unprotected speech' but is 'susceptible of application to protected expression.' Gooding v. Wilson, supra, 405 U.S., at 522, 92 S.Ct., at 1106. In that circumstance, the Ohio Supreme Court erred when it found no constitutional infirmity in the holding of the Court of Appeals of Franklin County that the ordinance might constitutionally reach appellant's conduct because 'the words as used by the (appellant) are in the nature of 'fighting words' and thereby fall within that limit of conduct proscribed by the ordinance . . ..' For "(a)lthough (the ordinance) may be neither vague, overbroad, nor otherwise invalid as applied to the conduct charged against a particular defendant, he is permitted to raise its vagueness or unconstitutional overbreadth as applied to others. And if the law is found deficient in one of these respects, it may not be applied to him either, until and unless a satisfactory limiting construction is placed on the (ordinance). The (ordinance), in effect, is stricken down on its face. . . ." Id., at 521, 92 S.Ct., at 1105.
3
Reversed.
4
THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN dissent for the reasons expressed in Mr. Justice BLACKMUN's dissenting opinion in Gooding v. Wilson, 405 U.S. 518, 534, 92 S.Ct. 1103, 1112, 31 L.Ed.2d 408 (1972), and in the dissenting statement in Cason v. City of Columbus, 409 U.S. 1053, 93 S.Ct. 565, 34 L.Ed.2d 507 (1972).
5
MR. JUSTICE POWELL, with whom MR. JUSTICE REHNQUIST concurs, dissenting.
6
Appellant is a Columbus cab driver. He had a female fare in his cab who had requested to be taken to a certain address. When he passed this address, the fare complained and—according to the statement of the trial court—the cab driver's response was 'a series of absolutely vulgar, suggestive and abhorrent, sexually-oriented statements.'
7
I would sustain appellant's conviction for the reasons stated in my dissenting opinion in Rosenfeld v. New Jersey, 408 U.S. 901, 906, 92 S.Ct. 2479, 2481, 33 L.Ed.2d 321 (1972). As stated therein:
8
'(A) verbal assault on an unwilling audience (or an individual) may be so grossly offensive and emotionally disturbing as to be the proper subject of criminal proscription, whether under a statute denominating it disorderly conduct, or, more accurately, a public nuisance.'
9
The Columbus City Code was certainly sufficiently explicit to inform appellant that his verbal assault on a female passenger in his cab was 'menacing and insulting.' As a wrong of this character does not fall within the protection of the First Amendment, the overbreadth doctrine is not applicable. See Model Penal Code, §§ 250.2(1)(a) and (b) (Proposed Official Draft 1962); see also Williams v. District of Columbia, 136 U.S.App.D.C. 56, 64, 419 F.2d 638, 646 (1969).
| 23
|
414 U.S. 5
94 S.Ct. 19
38 L.Ed.2d 7
UNITED STATES IMMIGRATION AND NATURALIZATION SERVICEv.Marciano Haw HIBI.
No. 72—1652.
Decided Oct. 23, 1973.
Rehearing Denied Dec. 10, 1973.
See 414 U.S. 1104, 94 S.Ct. 738.
PER CURIAM.
1
Respondent filed his petition for naturalization in the United States District Court for the Northern District of California on September 13, 1967. The District Court granted the petition, rejecting the negative recommendation of the naturalization examiner appointed by the Attorney General pursuant to § 335 of the Immigration and Nationality Act, 66 Stat. 255, 8 U.S.C. § 1446. The Court of Appeals affirmed. 475 F.2d 7 (CA9 1973), holding that even though the deadline fixed by Congress for the filing of applications such as respondent's had expired more than 20 years earlier, petitioner was 'estopped' from relying on this fact.
2
Respondent was born in Manila in 1917, and in February 1941 enlisted in the Philippine Scouts, a unit that was part of the United States Army. He was captured by the Japanese Armed Forces and released after six months' internment. In April 1945 after the liberation of the Philippines by Allied Forces, he rejoined the Scouts and served until his discharge in December 1945.
3
Sections 701 and 702 of the Nationality Act of 1940, as amended, provided for the naturalization of noncitizens who served honorably in the Armed Forces of the United States during World War II.* Section 701 exempted certain alien servicemen who served outside the continental limits of the United States from some of the usual requirements for naturalization, including those of a period of residence in the United States and literacy in English. An amendment to this section specified that all petitions filed under it had to be filed no later than December 31, 1946. Section 702 provided for the overseas naturalization of persons eligible for naturalization under § 701 who were not within the jurisdiction of any court authorized to naturalize aliens; naturalization under § 702 could take place only during active service in the Armed Forces. Section 705 authorized the Commissioner of Immigration and Naturalization, with the approval of the Attorney General, to make such rules and regulations as were necessary to carry into effect the provisions of the Act.
4
Respondent entered the United States for the first and only time on April 25, 1964, more than 17 years after the expiration of the time limit established by Congress for claiming naturalization under the 'exemptions of the Act.' He entered on a visitor-for-business visa, which expired on June 30, 1964. His subsequent petition for naturalization was based on the assertion that the Government was estopped from relying on the statutory time limit which Congress had attached to the provisions under which he claimed. The estoppel was said to arise from petitioner's failure to advise him, during the time he was eligible, of his right to apply for naturalization, and from petitioner's failure to provide a naturalization representative in the Philippines during all of the time respondent and those in his class were eligible for naturalization. The District Court adopted respondent's contention, and its conclusions were upheld by the Court of Appeals.
5
It is well settled that the Government is not in a position identical to that of a private litigant with respect to its enforcement of laws enacted by Congress.
6
'As a general rule laches or neglect of duty on the part of officers of the Government is no defense to a suit by it to enforce a public right or protect a public interest. . . . A suit by the United States to enforce and maintain its policy respecting lands which it holds in trust for all the people stands upon a different plane in this and some other respects from the ordinary private suit to regain the title to real property or to remove a cloud from it.' Utah Power & Light Co. v. United States, 243 U.S. 389, 409, 37 S.Ct. 387, 391, 61 L.Ed. 791 (1917).
7
Here the petitioner has been charged by Congress with administering an Act which both made available benefits of naturalization to persons in respondent's class and established a cutoff date for the claiming of such benefits. Petitioner, in enforcing the cutoff date established by Congress, as well as in recognizing claims for the benefits conferred by the Act, is enforcing the public policy established by Congress.
8
While the issue of whether 'affirmative misconduct' on the part of the Government might estop it from denying citizenship was left open in Montana v. Kennedy, 366 U.S. 308, 314, 315, 81 S.Ct. 1336, 6 L.Ed.2d 313 (1961), no conduct of the sort there adverted to was involved here. We do not think that the failure to fully publicize the rights which Congress accorded under the Act of 1940, or the failure to have stationed in the Philippine Islands during all of the time those rights were available an authorized naturalization representative, can give rise to an estoppel against the Government.
9
Respondent's effort to claim naturalization under a statute which by its terms had expired more than 20 years before he filed his lawsuit must therefore fail. The petition for certiorari is granted and the judgment of the Court of Appeals is reversed.
10
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL concur, dissenting.
11
The Court today summarily reverses the decision of the Court of Appeals, which found that the Government was estopped from denying citizenship to respondent under the Nationality Act of 1940.1 The Court reasons that estoppel is not even arguably applicable because there was no 'affirmative misconduct' on the part of the United States; it implies that there were merely failures to 'fully publicize' the rights given by the Act and 'to have stationed in the Philippine Islands during all of the time those rights were available an authorized naturalization representative.' Failures of this kind could, perhaps, be excused if caused by the exigencies of war as long as good-faith efforts to carry out the provisions of the Act had been made.
12
But the Court ignores the record and the decisions below when it speaks only of these failures. In 1942, Congress amended the Nationality Act of 1940 to extend the benefits of citizenship to individuals who had fought in the Armed Forces of the United States during World War II, authorizing the appointment of naturalization officers to confer these benefits on noncitizens outside the jurisdiction of a naturalization court.2 Between 1943 and 1946, these officers traveled from post to post, through England, Iceland, North Africa, and the islands of the Pacific, naturalizing thousands of foreign nationals pursuant to the mandate of Congress.
13
The story in the Philippines was different. After the Japanese occupation of the Philippines ended, an American vice-consul was authorized to commence naturalization proceedings in 1945. Almost immediately thereafter, the Philippine Government expressed its concern about Filipino men leaving the Territory after being granted American citizenship. In response to these concerns, the Commissioner of Immigration, on September 13, 1945, wrote a letter to the Attorney General recommending that the 'situation . . . be handled by revoking the authority previously granted (the vice-consul) and by omitting to designate any representative authorized to confer citizenship in the Philippine Islands. . . .' The Commissioner's recommendation was approved by the Attorney General on September 26, 1945, and the authority of the vice-consul to naturalize alien servicemen immediately revoked.
14
Because of this action, there was no authorized naturalization representative in the Philippines. The District Court found as a fact that respondent, had he known about his right to be naturalized while he was in the Armed Forces and had means been available, would have applied for naturalization. Instead, with no means available, respondent was discharged from the Armed Forces in December 1945, thereby losing his right to claim citizenship under § 702 of the 1940 Act.3
15
The Court's opinion ignores the deliberate—and successful effort on the part of agents of the Executive Branch to frustrate the congressional purpose and to deny substantive rights to Filipinos such as respondent by administrative fiat, indicating instead that there was no affirmative misconduct involved in this case.
16
The record does not support that conclusion. I would grant certiorari and put the case down for oral argument.
*
Sections 701, 702, and 705 of the Nationality Act of 1940, added by the Second War Powers Act, 1942, 56 Stat. 182, as amended, 8 U.S.C. §§ 1001, 1002, 1005 (1940 ed., Supp. V), provided in pertinent part:
Sec. 701. '(A)ny person not a citizen, regardless of age, who has served or hereafter serves honorably in the military or naval forces of the United States during the present war and (w)ho shall have been at the time of his enlistment or induction a resident thereof and who (a) was lawfully admitted into the United States, including its Territories and possessions, or (b) having entered the United States, including its Territories and possessions, prior to September 1, 1943, being unable to establish lawful admission into the United States serves honorably in such forces beyond the continental limits of the United States or has so served may be naturalized upon compliance with all the requirements of the naturalization laws except that (1) no declaration of intention, no certificate of arrival for those described in group (b) hereof, and no period of residence within the United States or any State shall be required; (2) the petition for naturalization may be filed in any court having naturalization jurisdiction regardless of the residence of the petitioner; (3) the petitioner shall not be required to speak the English language, sign his petition in his own handwriting, or meet any educational test; . . . Provided, however, That . . . (3) the petition shall be filed not later than December 31, 1946. . . .'
Sec. 702. 'During the present war, any person entitled to naturalization under section 701 of this Act, who while serving honorably in the military . . . forces of the United States is not within the jurisdiction of any court authorized to naturalize aliens, may be naturalized in accordance with all the applicable provisions of section 701 without appearing before a naturalization court. The petition for naturalization of any petitioner under this section shall be made and sworn to before, and filed with, a representative of the Immigration and Naturalization Service designated by the Commissioner or a Deputy Commissioner, which designated representative is hereby authorized to receive such petition in behalf of the Service, to conduct hearings thereon, to take testimony concerning any matter touching or in any way affecting the admissibility of any such petitioner for naturalization, to call witnesses, to administer oaths, including the oath of the petitioner and his witnesses to the petition for naturalization and the oath of renunciation and allegiance prescribed by section 335 of this Act, and to grant naturalization, and to issue certificates of citizenship . . .'
Sec. 705. 'The Commissioner, with the approval of the Attorney General, shall prescribe and furnish such forms, and shall make such rules and regulations, as may be necessary to carry into effect the provisions of this Act.'
1
C. 876, 54 Stat. 1137.
2
As amended, Act of Mar. 27, 1942, c. 199, § 1001, which added §§ 701—705 to the 1940 Act, 56 Stat. 182, the Nationality Act waived certain normal requirements for naturalization, such as residency in the United States and literacy in English for noncitizens who had served in the United States Armed Forces. Id., § 701. Section 702 of the amended Act provided that aliens could claim these benefits even when, like respondent, they were outside the jurisdiction of a naturalization court, but only so long as they were in active service in the Armed Forces; this section also explicitly authorized the designation of naturalization officers to effectuate its purposes:
'During the present war, any person entitled to naturalization under section 701 of this Act, who while serving honorably in the military or naval forces of the United States is not within the jurisdiction of any court authorized to naturalize aliens, may be naturalized in accordance with all the applicable provisions of section 701 without appearing before a naturalization court. The petition for naturalization of any petitioner under this section shall be made and sworn to before, and filed with, a representative of the Immigration and Naturalization Service designated by the Commissioner or a Deputy Commissioner, which designated representative is hereby authorized to receive such petition in behalf of the Service, to conduct hearings thereon, to take testimony concerning any matter touching or in any way affecting the admissibility of any such petitioner for naturalization, to call witnesses, to administer oaths, including the oath of the petitioner and his witnesses to the petition for naturalization and the oath of renunciation and allegiance prescribed by section 335 of this Act, and to grant naturalization, and to issue certificates of citizenship . . ..' Id., § 702.
3
See n. 2, supra. It was not until August 1946, eight months after respondent's discharge, that a naturalization agent was reappointed for the Philippines and a good-faith effort made to naturalize Filipinos under § 702 of the Act. In four months, 4,000 Filipinos took advantage of the opportunity.
| 12
|
414 U.S. 12
94 S.Ct. 18
38 L.Ed.2d 13
John Elwood DENNETTv.Marvin R. HOGAN, Warden.
No. 72—6449.
Oct. 23, 1973.
PER CURIAM.
1
The petitioner is a disbarred attorney convicted of security fraud. At his trial the court appointed advisory counsel for him, finding that he qualified as an indigent. He was convicted. He later filed with a judge of the Court of Appeals a pro se request for extension of time in which to submit his brief on appeal. This was granted. But an accompanying inquiry concerning appointment of counsel to handle the appeal was ignored. His right to have appointed counsel here is clear. 18 U.S.C. § 3006A(c);* cf. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). Subsequently the petitioner requested another extension of time and renewed his request for appointed counsel. The Government opposed both motions; they were denied and the appeal was dismissed. The petitioner, still acting pro se, then brought this application for habeas corpus to this Court.
2
In his response to the application the Solicitor General informed the Court that it appeared that the judge below was unaware of the petitioner's initial request for counsel, and mistakenly believed that the petitioner had never filed a financial affidavit with the trial court. The Solicitor General therefore suggested that this Court should treat the application as a petition for certiorari, and grant certiorari and remand the case to the Court of Appeals for determination of whether the petitioner's appeal had been improvidently dismissed.
3
On examination of the record, we follow the suggestion of the Solicitor General, grant certiorari, vacate the judgment of the Court of Appeals, and remand the case to that court.
4
So ordered.
5
Certiorari granted and case remanded.
6
Mr. Justice REHNQUIST dissents.
*
Section 3006A(c) reads in part as follows: 'A person for whom counsel is appointed shall be represented at every stage of the proceedings from his initial appearance before the United States magistrate or the court through appeal.'
| 12
|
414 U.S. 14
94 S.Ct. 187
38 L.Ed.2d 170
Edward NORWELLv.CITY OF CINCINNATI, OHIO.
No. 72—1366.
Nov. 5, 1973.
PER CURIAM.
1
Petitioner Edward Norwell, on a plea of not guilty, was convicted of a violation of Cincinnati's disorderly conduct ordinance. The charge was that petitioner 'did unlawfully and wilfully conduct himself in a disorderly manner, with intent to annoy some person.' The judgment of conviction was affirmed by the Ohio Court of Appeals. Further appeal to the Supreme Court of Ohio was dismissed by that court sua sponte 'for the reason that no substantial constitutional question exists herein.'
2
We are persuaded that the ordinance, as applied to this petitioner on the facts of his case, operated to punish his constitutionally protected speech. We therefore grant certiorari and reverse.
3
The ordinance, § 901—D4 of the city's Municipal Code, reads:
4
'No person shall wilfully conduct himself or herself in a noisy, boisterous, rude, insulting or other disorderly manner, with the intent to abuse or annoy any person . . ..'
5
Petitioner, 69 years of age and an immigrant 20 years ago, is employed by his son who manages and is part owner of a 'pony keg,' a small package liquor store. Petitioner works at the pony keg every evening and helps his son 'because it is very dangerous.' There have been break-ins at the store on several occasions and a former owner was killed there.
6
On Christmas night, 1971, the pony keg closed about 10:30. The son drove home, but petitioner 'wanted to take a walk and get home at 11:00 to hear the news.' Down the street he was approached by Officer Johnson, who had been notified that a 'suspicious man' was in the neighborhood of the pony keg. Officer Johnson testified that he approached petitioner and asked him if he lived in the area. Petitioner looked at him, 'and then he turned around and walked away.' The officer twice attempted to stop him, but each time petitioner threw off his arm and protested, 'I don't tell you people anything.' He did not run. Petitioner then was placed under arrest for disorderly conduct. Officer Johnson said he had to 'push the man approximately half a block to get him into the police car. He didn't understand why he was being arrested.'
7
Petitioner testified that he 'was far from the pony keg' when the officer drove up in his car and called out something which petitioner did not understand.
8
'He told me something, but I couldn't understand . . .. I said—I asked him, 'What do you want from me?' He said, 'Why are you on the street?' I said, 'I am walking on the street.' After then, he said, 'Where are you going?' I said, 'I go home.' After then, he didn't ask me anything. He was in a car. I continued to walk.'
9
The officer pursued petitioner and grabbed him. Petitioner testified, 'I didn't resist because I was concerned about my health and my life.' There is no indication in the record that it was the physical act of pushing off the officer's arm that precipitated the arrest or supported the conviction. Had this been so, one could argue, perhaps, that Mr. Norwell might have been properly charged for disorderly conduct or under a statute or ordinance that made it illegal to interfere with a police officer in the performance of his duty. That, however, is not this case. Officer Johnson testified that he 'didn't charge the man with resisting because I didn't think it was a warranted cause,' but that he arrested petitioner for 'being loud and boisterous,' and '(h)e was annoying me.' The municipal judge found that petitioner was 'hostile' to the officer. 'I'm sure (the officer) had no feeling against this man, but this man had a feeling against him, at this time, and was not at a liberty to say.' The court proceeded to find Mr. Norwell 'guilty of disorderly conduct with the intent to annoy' and fined him $10 and costs 'for being so noisy.'
10
Upon this record, we are convinced that petitioner was arrested and convicted merely because he verbally and negatively protested Officer Johnson's treatment of him. Surely, one is not to be punished for nonprovocatively voicing his objection to what he obviously felt was a highly questionable detention by a police officer. Regardless of what the motivation may have been behind the expression in this case, it is clear that there was no abusive language or fighting words. If there had been, we would have a different case. See Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).
11
The petition for certiorari is granted. The judgment is reversed.
| 23
|
414 U.S. 17
94 S.Ct. 194
38 L.Ed.2d 174
Richard J. TAYLOR, Jr.v.UNITED STATES.
No. 72—6915.
Nov. 5, 1973.
PER CURIAM.
1
On the first day of his trial on four counts of selling cocaine in violation of 26 U.S.C. § 4705(a) (1964 ed.), petitioner failed to return for the afternoon session. He had been present at the expiration of the morning session when the court announced that the lunch recess would last until 2 p.m., and he had been told by his attorney to return to the courtroom at that time. The judge recessed the trial until the following morning, but petitioner still did not appear. His wife testified that she had left the courtroom the previous day with petitioner after the morning session; that they had separated after sharing a taxicab to Roxbury; that he had not appeared ill; and, finally, that she had not heard from him since. The trial judge then denied a motion for mistrial by defense counsel, who asserted that the jurors' minds would be tainted by petitioner's absence and that continuation of the trial in his absence deprived him of his Sixth Amendment right to confront witnesses against him. Relying upon Fed.Rules Crim.Proc. 43,1 which expressly provides that a defendant's voluntary absence 'shall not prevent continuing the trial,' the court found that petitioner had absented himself voluntarily from the proceedings.
2
Throughout the remainder of the trial, the court admonished the jury that no inference of guilt could be drawn from petitioner's absence. Petitioner was found guilty on all four counts. Following his subsequent arrest, he was sentenced to the statutory five-year minimum. The Court of Appeals affirmed the conviction, 478 F.2d 689 (CA1 1973), and we now grant the motion for leave to proceed in forma pauperis and the petition for certiorari and affirmed the judgment of the Court of Appeals.
3
There is no challenge to the trial court's conclusion that petitioner's absence from the trial was voluntary,2 and no claim that the continuation of the trial was not authorized by Rule 43. Nor are we persuaded that Rule 43 is unconstitutional or that petitioner was deprived of any constitutional rights in the circumstances before us. Rule 43 has remained unchanged since the adoption of the Federal Rules of Criminal Procedure in 1945; and with respect to the consequences of the defendant's voluntary absence from trial, it reflects the longstanding rule recognized by this Court in Diaz v. United States, 223 U.S. 442, 455, 32 S.Ct. 250, 254, 56 L.Ed. 500 (1912):
4
'(W)here the offense is not capital and the accused is not in custody, the prevailing rule has been, that if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present and leaves the court free to proceed with the trial in like manner and with like effect as if he were present.' (Citations omitted.)
5
Under this rule, the District Court and the Court of Appeals correctly rejected petitioner's claims.
6
Petitioner, however, insists that his mere voluntary absence from his trial cannot be construed as an effective waiver, that is, 'an intentional relinquishment or abandonment of a known right or privilege,' Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), unless it is demonstrated that he knew or had been expressly warned by the trial court not only that he had a right to be present but also that the trial would continue in his absence and thereby effectively foreclose his right to testify and to confront personally the witnesses against him.3
7
Like the Court of Appeals, we cannot accept this position. Petitioner had no right to interrupt the trial by his voluntary absence, as he implicitly concedes by urging only that he should have been warned that no such right existed and that the trial would proceed in his absence. The right at issue is the right to be present, and the question becomes whether that right was effectively waived by his voluntary absence. Consistent with Rule 43 and Diaz, we conclude that it was.
8
It is wholly incredible to suggest that petitioner, who was at liberty on bail, had attended the opening session of his trial, and had a duty to be present at the trial, see Stack v. Boyle, 342 U.S. 1, 4—5, 72 S.Ct. 1, 3—4, 96 L.Ed. 3 (1951), entertained any doubts about his right to be present at every stage of his trial. It seems equally incredible to us, as it did to the Court of Appeals, 'that a defendant who flees from a courtroom in the midst of a trial—where judge, jury, witnesses and lawyers are present and ready to continue—would not know that as a consequence the trial could continue in his absence.' 478 F.2d, at 691. Here the Court of Appeals noted that when petitioner was questioned at sentencing regarding his flight, he never contended that he was unaware that a consequence of his flight would be a continuation of the trial without him. Moreover, no issue of the voluntariness of his disappearance was ever raised. As was recently noted, 'there can be no doubt whatever that the governmental prerogative to proceed with a trial may not be defeated by conduct of the accused that prevents the trial from going forward.' Illinois v. Allen, 397 U.S. 337, 349, 90 S.Ct. 1057, 1063, 25 L.Ed.2d 353 (1970) (Brennan, J., concurring). Under the circumstances present here, the Court of Appeals properly applied Rule 43 and affirmed the judgment of conviction.
9
Affirmed.
1
Rule 43 provides, in pertinent part:
'The defendant shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules. In prosecutions for offenses not punishable by death, the defendant's voluntary absence after the trial has been commenced in his presence shall not prevent continuing the trial to and including the return of the verdict.'
2
Following an independent review of the transcripts from the trial and sentencing hearing, the Court of Appeals also concluded that petitioner knew that he was entitled to be present in court during every stage of his trial and that his absence was a product of his voluntary choice. 478 F.2d 689, 691 n. 4 (1973).
3
This was substantially the holding of United States v. McPherson, 137 U.S.App.D.C. 192, 195, 421 F.2d 1127, 1130 (1969), on which petitioner relies. But the Court of Appeals in the case now before us disagreed with McPherson, and, in our view, rightly so. McPherson itself appears to have strayed from recent precedent in the District of Columbia Circuit, Cureton v. United States, 130 U.S.App.D.C. 22, 396 F.2d 671 (1968), as well as from older authority. See Falk v. United States, 15 App.D.C. 446, 454—461 (1899). In Cureton, supra, Judge Fahy stated the controlling rule:
'(I)f a defendant at liberty remains away during his trial the court may proceed provided it is clearly established that his absence is voluntary. He must be aware of the processes taking place, of his right and of his obligation to be present, and he must have no sound reason for remaining away.' 130 U.S.App.D.C., at 27, 396 F.2d, at 676 (citation omitted).
| 01
|
414 U.S. 29
94 S.Ct. 193.
38 L.Ed.2d 187
Richard BERRYv.CITY OF CINCINNATI, OHIO,
No. 73—5245.
Nov. 5, 1973.
PER CURIAM.
1
Petitioner, who was serving a sentence for a misdemeanor offense when Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), was decided, sought relief in the state courts claiming that because Argersinger should be accorded retroactive effect and because his trial and sentencing were uncounseled, his conviction should be invalidated. The Supreme Court of Ohio refused to apply Argersinger to convictions occurring prior to that decision. City of Cincinnati v. Berry, 34 Ohio St.2d 106, 296 N.E.2d 532 (1973). Petitioner was enlarged on bail pending action on his claim and faces reincarceration should the judgment of the Ohio courts remain undisturbed. The motion to proceed in forma pauperis and the petition for certiorari are granted, and the judgment of the Ohio Supreme Court is reversed. Those convicted prior to the decision in Argersinger are entitled to the constitutional rule enunciated in that case, Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971); Williams v. United States, 401 U.S. 646, 653 and n. 6, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388 (1971) (opinion of White, J.); Burgett v. Texas, 389 U.S. 109, 114, 88 S.Ct. 258, 261, 19 L.Ed.2d 319 (1967); cf. Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972), if they allege and prove a bona fide, existing case or controversy sufficient to invoke the jurisdiction of a federal court. Sibron v. New York, 392 U.S. 40, 50—58, 88 S.Ct. 1889, 1896—1900, 20 L.Ed.2d 917 (1968); Carafas v. LaVallee, 391 U.S. 234, 237—238, 88 S.Ct. 1556, 1559—1560, 20 L.Ed.2d 554 (1968); Ginsberg v. New York, 390 U.S. 629, 633—634, n. 2, 88 S.Ct. 1274, 1276—1277, 20 L.Ed.2d 195 (1968).
2
Reversed.
3
So ordered.
| 01
|
414 U.S. 25
94 S.Ct. 188
38 L.Ed.2d 183
Rockey MOOREv.State of ARIZONA.
No. 73—5002.
Nov. 5, 1973.
PER CURIAM.
1
Almost three years after he was charged and 28 months after he first demanded that Arizona either extradite him from California, where he was serving a prison term, or drop a detainer against him, petitioner was tried for murder in Arizona. Prior to trial, he filed a state habeas corpus application, alleging a deprivation of his Sixth and Fourteenth Amendment right to a speedy trial. In affirming the denial of the petition, the Arizona Supreme Court ruled that under this Court's decisions in Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970), and Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), a showing of prejudice to the defense at trial was essential to establish a federal speedy trial claim. The state court found no such prejudice here because petitioner was afforded a preliminary hearing and allowed to subpoena witnesses.1 109 Ariz. 111, 506 P.2d 242 (1973).
2
The state court was in fundamental error in its reading of Barker v. Wingo and in the standard applied in judging petitioner's speedy trial claim. Barker v. Wingo expressly rejected the notion that an affirmative demonstration of prejudice was necessary to prove a denial of the constitutional right to a speedy trial:
3
'We regard none of the four factors identified above (length of delay, reason for delay, defendant's assertion of his right, and prejudice to the defendant) as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused's interest in a speedy trial is specifically affirmed in the Constitution.' 407 U.S., at 533, 92 S.Ct., at 2193 (footnote omitted).
4
In addition to possible prejudice, any court must thus carefully weigh the reasons for the delay in bringing an incarcerated defendant to trial. In the face of petitioner's repeated demands, did the State discharge its 'constitutional duty to make a diligent, good-faith effort to bring him (to trial)'? Smith v. Hooey, 393 U.S. 374, 383, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969).
5
Moreover, prejudice to a defendant caused by delay in bringing him to trial is not confined to the possible prejudice to his defense in those proceedings.2 Inordinate delay,
6
'wholly aside from possible prejudice to a defense on the merits, may 'seriously interfere with the defendant's liberty, whether he is free on bail or not, and . . . may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.' United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). These factors are more serious for some than for others, but they are inevitably present in every case to some extent, for every defendant will either be incarcerated pending trial or on bail subject to substantial restrictions on his liberty.' Barker v. Wingo, supra, at 537, 92 S.Ct., at 2195 (White, J., concurring).
7
See also id., at 532—533, 92 S.Ct., at 2193 (majority opinion).
8
Some of these factors may carry quite different weight where a defendant is incarcerated after conviction in another State, but no court should overlook the possible impact pending charges might have on his prospects for parole and meaningful rehabilitation. Strunk v. United States, 412 U.S. 434, 439, 93 S.Ct. 2260, 2263, 37 L.Ed.2d 56 (1973).
9
The State of Arizona itself has conceded that this is a close case under Barker v. Wingo and that it is arguable whether the three-year delay was excusable. Because we agree and because 'the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment,' Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S.Ct. 988, 993, 18 L.Ed.2d 1 (1967), we grant the motion for leave to proceed in forma pauperis and the petition, vacate the judgment, and remand to the Arizona Supreme Court to reassess petitioner's case under the standards mandated by Smith, Barker, and Dickey.
10
So ordered.
11
Vacated and remanded.
1
The court did not mention the unavailability of one of the two key witnesses as the result of her deportation 18 months after the charge had been filed against petitioner.
2
The examples of possible trial prejudice recited in Barker bear directly on this case:
'If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.' Barker v. Wingo, 407 U.S. 514, at 532, 92 S.Ct. 2182, 2193, 33 L.Ed.2d 101 (1972).
| 01
|
414 U.S. 21
94 S.Ct. 190
38 L.Ed.2d 179
Louie L. WAINWRIGHT, Director, Division of Corrections, et al.v.Raymond R. STONE and Eugene F. Huffman.
No. 73—122.
Nov. 5, 1973.
PER CURIAM.
1
In separate trials, appellees were convicted of violating Fla.Stat. § 800.01 (1965), F.S.A., which proscribed 'the abominable and detestable crime against nature, either with mankind or with beast . . ..'1 Having exhausted state remedies,2 appellees sought federal habeas corpus, asserting, among other things, that the Florida statute was impermissibly vague. The writ was granted to both appellees. The Court of Appeals affirmed on the sole ground that § 800.01 was unconstitutionally vague and void on its face for failure to give appellees adequate notice that the conduct for which they were convicted was forbidden by law. 478 F.2d 390 (CA5 1973).
2
We reverse. We perceive no violation of the 'underlying principle . . . that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.' United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954). Stone was convicted for copulation per os and per anum, Huffman for copulation per anum. These very acts had long been held to constitute 'the abominable and detestable crime against nature' under § 800.01 and predecessor statutes. Delaney v. State, 190 So.2d 578 (Fla.Sup.Ct.1966), appeal dismissed, 387 U.S. 426, 87 S.Ct. 1710, 18 L.Ed.2d 866 (1967), declared as much; and this had been the case since 1921 under Ephraim v. State, 82 Fla. 93, 89 So. 344 (1921). Delaney also held that there could be no complaint of vagueness or lack of notice that the defendant's conduct was criminal where the acts committed were among those that prior cases had held covered by the statute.
3
Delaney and its supporting cases require reversal of the Court of Appeals. The judgment of federal courts as to the vagueness or not of a state statute must be made in the light of prior state constructions of the statute. For the purpose of determining whether a state statute is too vague and indefinite to constitute valid legislation 'we must take the statute as though it read precisely as the highest court of the State has interpreted it.' Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 507, 514, 68 S.Ct. 665, 669, 92 L.Ed. 744 (1940). When a state statute has been construed to forbid identifiable conduct so that 'interpretation by (the state court) puts these words in the statute as definitely as if it had been so amended by the legislature,' claims of impermissible vagueness must be judged in that light. Winters v. New York, 333 U.S. 507, 514, 68 S.Ct. 665, 669, 92 L.Ed. 840 (1948). This has been the normal view in this Court. Fox v. Washington, 236 U.S. 273, 277, 35 S.Ct. 383, 384, 59 L.Ed. 573 (1915); Beauharnais v. Illinois, 343 U.S. 250, 253, 72 S.Ct. 725, 728, 96 L.Ed. 919 (1952); Mishkin v. New York, 383 U.S. 502, 506, 86 S.Ct. 958, 962, 16 L.Ed.2d 56 (1966). The Court of Appeals, therefore, was not free to ignore Delaney and related cases; and as construed by those cases, § 800.01 afforded appellees ample notice that their conduct was forbidden by law.
4
Appellees rely on Franklin v. State, 257 So.2d 21 (Fla.Sup.Ct.1971), to avoid the efficacy of prior constructions of § 800.01. In that case, decided after appellees' convictions had become final, the Florida Supreme Court reconsidered Delaney and held that if § 800.01 was intended to reach oral and anal sexual activity, that intention should appear on the face of the statute; otherwise it was void for vagueness and uncertainty in its language. But this holding did not remove the fact that when appellees committed the acts with which they were changed, they were on clear notice that their conduct was criminal under the statute as then construed. Thus, the Florida Supreme Court expressly ruled in Franklin that 'this judgment holding the felony statute void is not retroactive, but prospective only,' id., 257 So.2d, at 24; and subsequently the Florida courts denied appellee Stone's request for relief based on the Franklin case. Stone v. State, supra, n. 2. The State Supreme Court did not overrule Delaney with respect to pre-Franklin convictions. Nor was it constitutionally compelled to do so or to make retroactive its new construction of the Florida statute: 'A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backword. It may say that decisions of its highest court, though later overruled, are law none the less for intermediate transactions.' Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364, 53 S.Ct. 145, 148, 77 L.Ed. 360 (1932). Contrary to the judgment of the Court of Appeals, § 800.01 was not void at the time appellees performed the acts for which they were convicted. The motion of appellees to proceed in forma pauperis is granted and the judgment of the Court of Appeals is reversed.
5
So ordered.
6
Judgment reversed.
1
Fla.Stat. § 800.01 (Supp.1973), F.S.A. presently provides: 'Whoever commits the abominable and detestable crime against nature, either with mankind or with beast, shall be guilty of a felony of the second degeee, punishable as provided in (other statutory sections).' At the time of appellees' convictions the maximum penalty was 20 years' imprisonment.
2
Appellee Stone's conviction was affirmed on direct appeal, Stone v. State, 245 So.2d 91 (Fla.Dist.Ct.App.1971), and his motion for post-conviction relief was denied. Stone v. State, 264 So.2d 81 (Fla.Dist.Ct.App.), cert. denied, 267 So.2d 329 (Fla.Sup.Ct.1972). It appears that appellee Huffman appealed from his conviction, but did not seek collateral relief. The District Court found exhaustion unnecessary since Huffman's claim had already been determined adversely by the ruling in Franklin v. State, 257 So.2d 21 (Fla.Sup.Ct.1971), discussed in text infra.
| 45
|
414 U.S. 31
94 S.Ct. 196
38 L.Ed.2d 190
Christopher Joseph MUSSERv.UNITED STATES. Robert Haines WALDRON v. UNITED STATES.
Nos. 72—1733, 72—6748.
Nov. 12, 1973.
Rehearing Denied Jan. 7 and Jan. 14, 1974.
See —- U.S. —-, 94 S.Ct. 884, 901.
PER CURIAM.
1
The petitioners in these cases were each convicted for refusing to submit to induction into the Armed Forces, 50 U.S.C. App. § 462(a), and each seeks review of the judgment affirming his conviction upon the sole ground that the order to report for induction was invalid for failure of the local board to reopen his classification pursuant to a request for a conscientious objector classification, see Mulloy v. United States, 398 U.S. 410, 418, 90 S.Ct. 1766, 1772, 26 L.Ed.2d 362 (1970).
2
In No. 72—1733, the petitioner Musser received an order to report for induction, issued by his local board on September 15, 1970. On September 21, 1970, he requested and received Selective Service System Form 150, a special form for those seeking conscientious objector classification. Musser filled out the form, indicating in response to the questions posed that he was conscientiously opposed to participation in war in any form by reason of his religious training and belief, and claiming exemption from combatant and noncombatant training and service pursuant to 50 U.S.C. App. § 456(j). On September 29, 1970, the local board reviewed Musser's application. The minutes of that meeting indicate that in the opinion of the members of the board, his claim 'lack(ed) sincerity' and that he '(had to) report for induction.' On the same day he was sent a form letter stating that his application had been received and reviewed, that he was 'hereby advised (that the board) did not specifically find there has been a change in status resulting from circumstances over which you had no control,' and that pursuant to Selective Service Regulation 1625.2, 32 CFR § 1625.2,1 his classification would therefore not be reopened.2 Musser was subsequently advised by the board of his continuing duty to report and was in fact ordered to report for induction on January 19, 1971. On that date he appeared at the induction center but refused to submit to induction. For this refusal he was convicted in a jurywaived trial and sentenced to two years' imprisonment. The Court of Appeals affirmed, 478 F.2d 1068 (CA9 1973).
3
In No. 72—6748, the petitioner Waldron was, on December 30, 1968, mailed an order to report for induction on February 5, 1969. Shortly thereafter, he requested, received, and completed an SSS Form 150, indicating his opposition to was in any form and requesting a conscientious objector classification. On January 24, 1969, the board notified him that it had reviewed his application but 'found no grounds for reopening your classification.' Subsequently, on January 28, 1969, the State Director of Selective Service reviewed Waldron's file and recommended to the local board that his induction be postponed pursuant to Regulation 1632.2, 32 CFR § 1632.2, and that he be given a 'courtesy interview' pursuant to then-current Local Board Memorandum 41. Waldron was thereupon sent a letter indicating that his induction was being postponed until February 19, 1969, and that he would be granted an interview on February 5, 1969. On Feburary 6, following the interview, he was notified that the board found 'no grounds for reopening your classification after you(r) being interviewed' and that he had to report for induction on February 19. He arranged further to postpone the date of his induction until March 27, 1969, in order to be able to report for induction in another city where he was then living, and on that date he refused to submit to induction. He was thereafter tried and convicted of refusing to submit to a valid order to report for induction, and the Court of Appeals affirmed, 474 F.2d 90 (CA7 1973).
4
In Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971), this Court reviewed a claim that a local Selective Service board, operating under laws and regulations substantially the same as those involved here, must reopen a registrant's classification following a claim for conscientious objector status made after issuance of an order to report for induction and based on an assertion that the registrant's conscientious objection to war in any form had 'crystallized' after the issuance of the order to report. The Court reasoned that '(a) regulation explicitly providing that no conscientious objector claim could be considered by a local board unless filed before the mailing of an induction notice would . . . be perfectly valid' as a reasonable timeliness rule to insure that all possible claims be presented to and reviewed by the local board prior to its determination that a given registrant is subject to induction. Id., at 101—102, 91 S.Ct., at 1321—1322. The Court also concluded, however, that 'those whose views are late in crystallizing' cannot 'be deprived of a full and fair opportunity to present the merits of their conscientious objector claims for consideration under the same substantive criteria' that govern claims based on views crystallizing prior to issuance of induction notices. Id., at 103, 91 S.Ct., at 1323. Such a full and fair opportunity, the Court found, existed in in-service Armed Services procedures for hearing and evaluating conscientious objector claims. Under such a system, the 'intolerable' situation of a 'no man's land' in which post-notice claims for CO classification were not heard by the local boards because of their timeliness rules, and were not heard by the Army after induction because of a finding that an inductee had waived his right to claim such classification, was avoided: claims crystallizing prior to issuance of an order to report must be directed to and are to be reviewed by local boards, while claims crystallizing thereafter are to be reviewed only by the Armed Forces after induction. Id., at 104 n. 7, 91 S.Ct., at 1323.
5
Selective Service regulations, however, did not unambiguously create such a system, but left open the possibility that a classification be reopened after issuance of a notice to report if the local board 'specifically finds there has been a change in the registrant's status resulting from circumstances over which the registrant had no control.' 32 CFR § 1625.2. Prior to Ehlert, the courts of appeals had divided on the question of whether late crystallization of conscientious objector views qualified as such a change. 402 U.S., at 101 n. 3, 91 S.Ct., at 1321. In Ehlert, we avoided the 'theological' argument of whether, as a matter of law, a claim of late-crystallizing conscientious objection was a change over which 'the registrant has no control.' Rather, we held that in view of consistent administrative interpretation by the Government that changes envisaged by Regulation 1625.2 were limited to 'objectively identifiable' and 'extraneous' circumstances,3 such an interpretation of the regulation would be adopted. Id., at 105, 91 S.Ct., at 1323.
6
Finally, we considered in Ehlert whether 'the conditions for the validity of such a rule . . . are met in practice.' After reviewing Army regulations, Department of Defense Directives, and a letter from the General Counsel of the Department of the Army, we determined that in inductee claiming late-crystallizing conscientious objector status would receive a full and fair opportunity to have his claim heard by Armed Forces personnel. Id., at 106—107, 91 S.Ct., at 1323—1324.
7
The petitioners in these cases make overlapping arguments in attempting to avoid the Ehlert precedent. First, relying on decisions and opinions of the First and Third Circuits,4 they contend that the refusals of the local boards to reopen their classifications could be read as a 'denial' of those claims and thus a bar to in-service review. In particular, they point to 3.b(2) of Army Regulation 635—20, not cited or discussed in the Ehlert opinion, which states that inservice claims for conscientious objector treatment will not be favorably considered when '(b)ased solely on conscientious objection claimed and denied by the Selective Service System prior to induction.' (Emphasis added.) In the language of the First Circuit, 'if the Army could have read the draft board's reasonless refusal to reopen as a 'denial' then (a registrant) might well have been placed in a mutual buck-passing situation where neither the draft board nor the Army would consider his claim on the merits.' United States v. Alioto, 469 F.2d 722, 727 (1972). Ehlert, the petitioners claim, did not deal with this problem because the board in that case had explicitly stated that it was not denying Ehlert's claim on the merits, but was refusing to reach those merits since no showing had been made of a "change in the registrant's status resulting from circumstances over which the registrant had no control." 402 U.S., at 100, 91 S.Ct. at 1321. Thus, they argue, the ambiguity of the board's refusal to reopen, taken together with current Army regulations, raises the specter of the kind of no man's land specifically found intolerable in Ehlert.
8
The petitioners misconstrue the reasoning and effect of our holding in Ehlert. In adopting the Government's interpretation of Regulation 1625.2 that a late crystallization was not a circumstance over which a registrant 'had no control,' the Court did not hold merely that a local board would be permitted to refuse reopening of a classification in such a situation,5 but that it was without power to reopen under such circumstances. The mandatory language of Regulation 1625.2, that classification 'shall not be reopened' unless the proviso is met, requires no less. If a local board is not empowered to reopen the classification, it follows that it is similarly without power to make any ruling on the merits of a registrant's claims, since such a ruling on the merits of a claim can be made only by a reopening, with concomitant rights in the registrant to a personal appearance and an administrative appeal of an adverse decision, see n. 2, supra. From this it follows that in no event can a mere refusal to reopen signify more than a recognition of lack of power to do so; it cannot and does not bear any significance as to the merits of a registrant's claim.
9
The petitioners further argue that while each board's action in these cases took the form of a refusal to reopen, the decision not to do so was in fact based on the board's consideration of the merits, and could be viewed as such by the Armed Forces.6 The simple answer to this contention is that no matter what the boards' apparent motivations in refusing to reopen the petitioners' classifications may have been, the boards were simply without power to reopen, and an expressed or unexpressed indication of the boards' views of the claims cannot be deemed a denial of those claims on the merits.
10
As in Ehlert, we turn finally to a consideration of whether 'the conditions for the validity of such a rule . . . are met in practice.' Army Regulation 635—20, 3.b(2), supra, bars in-service review of a request for conscientious objector status if such a request has been 'claimed and denied by the Selective Service System prior to induction.' While the critical word 'denied' might arguably be applied to a board's refusal to reopen a classification, it cannot be so applied to a refusal to reopen a classification based on a claim of conscientious objection crystallizing after issuance of a notice to report, now that Ehlert has made clear that such a refusal can only be based on the board's lack of power to reopen in such a posture. We note that in a letter written by the General Counsel for the Department of the Army with respect to the then-pending case of United States v. Shomock and printed in the opinion of that case, 462 F.2d 338, 345 n. 17 (CA3 1972), the General Counsel indicated that when a refusal to reopen is not based on a decision on the merits, a registrant may raise such a claim in the Army and will be given a full and fair hearing.7 In the event that a local board in one way or another manifests its views as to the sincerity of a registrant's late-crystallizing claims, as in the case of the petitioner Musser, or expresses any other conclusion concerning the merits of his claims, such expressions must be given no effect by the Armed Forces in reviewing an in-service conscientious objector request.
11
It follows that the Courts of Appeals in these cases correctly ruled that the petitioners' orders to report for induction were valid. The motion of the petitioner Waldron for leave to proceed in forma pauperis and the petitions for certiorari are granted, and the judgments are affirmed.
12
Affirmed.
13
Mr. Justice BRENNAN and Mr. Justice MARSHALL would grant these petitions and set these cases for oral argument.
14
Mr. Justice DOUGLAS, dissenting.
15
In Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971), the Court decided that the Selective Service System may place special hurdles on conscientious objector claims first raised after a notice of induction has been issued. In allowing the Selective Service to set what it termed reasonable 'timeliness' regulations, the Court assumed that the conscientious objector claims not considered by the local board would receive full consideration by the military after induction. Id., at 107, 91 S.Ct., at 1324. '(I)f . . . a situation should arise in which neither the local board nor the military had made available a full opportunity to present a prima facie conscientious objection claim for determination under established criteria, . . . a wholly different case would be presented.' Ibid. I dissented in Ehlert, arguing that under the regulations of the Selective Service System the local boards should consider the claim as arising from a circumstance over which the registrant has no control, and that civilian rather than military adjudication of these claims should be preferred. Id., at 108, 91 S.Ct., at 1325. But apart from my own views on that question, the decisions affirmed in today's per curiam are highly questionable, since they appear to be that 'wholly different case.'
16
Neither petitioner in these cases received a full administrative review of the conscientious objector claims presented to his local board. But in each case the board purported to look into the claim. In Musser's case the board made an explicit finding that his beliefs were not 'sincere'—a finding which one judge below found to be without basis. In Waldron's case no explicit finding on the merits was made, yet the board postponed his induction and interviewed him after the State Director recommended this course following his review of Waldron's file. Waldron's claim was not specifically denied as untimely. Thus in each case it would appear that either explicitly or implicitly some evaluation of the merits of the CO claim was made. But because the claims were considered late, neither petitioner was afforded the normal administrative appeal rights.1 Such a result can be justified under Ehlert only if these claims are to receive full de novo consideration by the military. In challenging assurances that their claims will receive such consideration, the petitioners point to 3.b(2) of Army Regulation 635—20, which was not considered in Ehlert. It provides that '(r)equests for discharge after entering military service will not be favorably considered when . . . (2) (b)ased solely on conscientious objection claimed and denied by the Selective Service System prior to induction.'
17
The issue, then, is whether the actions of petitioners' local boards may constitute, in the Army's view, denial of the CO claim, thus barring its consideration by the Army. On its face the regulation would surely allow this construction. Such a possibility could perhaps have been avoided if the local boards in these cases had explicitly based their actions on the claims' being untimely, as the Board in Ehlert did. But the boards here did not do this, and indeed in Musser's case purported rather clearly to reject the claim on the merits. These cases are thus different from the petitioner's in Ehlert. With the local board's actions here at best ambiguous, we cannot know that the Army will consider the claims.
18
The majority emphasizes that in the circumstances of these cases the local boards were without authority to reopen the classifications and consider the claims on the merits. That is, of course, now the law. But while this rule effectively forecloses registrants from the procedural rights within the Selective Service System that a reopening would afford, it cannot guarantee that the Army will afford the registrant a full hearing on his claims. That will depend upon the Army's application of its own regulations to these facts.2
19
Indeed, even if we assume that the Army will superficially grant petitioners' claims de novo consideration, we in fact have no way of discovering whether sub silentio some weight will be accorded the prior proceedings of the draft boards. Yet those proceedings are deserving of no weight whatsoever since petitioners were foreclosed from the administrative appeal ordinarily allowed.
20
The opinions summarily affirmed today conflict squarely, as the Solicitor General concedes, with decisions in the First, Second, and Third Circuits. United States v. Alioto, 469 F.2d 722 (CA1 1972); United States v. Jerrold, 480 F.2d 1293 (CA1 1973); United States v. Cotton, 346 F.Supp. 691 (SDNY 1972); United States v. Usdin, 6 S.S.L.R. 3039 (EDNY 1972); United States v. Shomock, 462 F.2d 338 (CA3 1972); United States v. Ziskowski, 465 F.2d 480 (CA3 1972); United States v. Folino, No. 72—1974, CA3 June 29, 1973. At a minimum we should have set these cases for argument and full briefing.
1
At the time the administrative decisions involved in these cases were made, Regulation 1625.2 read in pertinent part as follows:
'The local board may reopen and consider anew the classification of a registrant . . . upon the written request of the registrant . . . if such request is accompanied by written information presenting facts not considered when the registrant was classified, which, if true, would justify a change in the registrant's classification; . . . provided . . . the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction (SSS Form No. 252) or an Order to Report for Civilian Work and Statement of Employer (SSS Form No. 153) unless the local board first specifically finds there has been a change in the registrant's status resulting from circumstances over which the registrant had no control.'
2
As used in the Selective Service Regulations and in this opinion, the term 'reopen' signifies a fresh determination by the local board of the classification to which a registrant belongs. See Regulation 1625.11, 32 CFR § 1625.11. When a case is reopened by a local board, the registrant is automatically accorded the right to a personal appearance before the local board and an administrative appeal of any adverse decision by the board, Regulation 1625.13, 32 CFR § 1625.13, even though a registrant is 'reclassified' in the same classification as that in which he had formerly been put. Mulloy v. United States, 398 U.S. 410, 414—415, 90 S.Ct. 1766, 1770, 26 L.Ed.2d 362 (1970).
3
As examples of the sort of nonvolitional changes that Regulation 1625.2 was intended to allow, the Government has consistently cited, and the Court in Ehlert mentioned, an injury to the registrant, or death in his family making him the sole surviving son. 402 U.S., at 104, 91 S.Ct., at 1323.
4
United States v. Alioto, 469 F.2d 722 (CA1 1972); United States v. Ziskowski, 465 F.2d 480 (CA3 1972); United States v. Shomock, 462 F.2d 338 (CA3 1972). See also United States v. Cotton, 346 F.Supp. 691 (SDNY 1972); United States v. Usdin, 6 S.S.L.R. 3039 (EDNY 1972).
5
Although the language of Regulation 1625.2 is permissive in stating that a local board 'may' reopen if the prerequisites are met, in Mulloy v. United States, supra, we held that a board must reopen a classification if a prima facie case for a new classification has been made to the board and the timeliness requirements are met. 398 U.S., at 415—416, 1770—1771.
6
The petitioners in both of the present cases, relying primarily on Miller v. United States, 388 F.2d 973 (CA9 1967), contend that by considering the merits of the claims for conscientious objector status the boards effected a 'de facto reopening' which was merely clothed as a denial of reopening. In Miller and in the subsequent case of United States v. Aufdenspring, 439 F.2d 388 (CA9 1971), the State Director, acting under since-rescinded Regulation 1625.3, independently ordered a reopening of the registrants' cases, thus circumventing the timeliness proviso contained in Regulation 1625.2 with respect to requests for reopening by registrants. The courts in those cases held that the local boards' refusals to reopen were procedurally impermissible, since in each case the refusal was based on a review of the substance of the registrant's claim and thus was in fact a refusal to reclassify without the procedural advantages to the registrant inherent in a reclassification, see n. 2, supra.
Those decisions were correctly distinguished by the Courts of Appeals in the present cases. Petitioner Musser's claim for a reopening and reclassification was based solely upon his own request, and thus the timeliness proviso of Regulation 1625.2 fully applied. In Waldron's case, the State Director recommended postponement and an interview in accordance with Local Board Memorandum 41. But the court found that this postponement was effected under the Director's authority given by Regulation 1632.2 to postpone any induction, rather than in the exercise of his authority under Regulation 1625.3 to cause a reopening; further, the court noted that the Director's suggestion of an interview could not in any event trigger a reopening under Regulation 1625.3 since the communication was not in writing, as that Regulation specifically required.
7
The pertinent part of the General Counsel's letter is as follows:
'If the appellant had entered the Army in May 1969 under circumstances where the Selective Service System actually considered and denied his conscientious objector claim on the merits, he would not have been entitled to an in-service determination on the merits of his conscientious objector claim.
'If the appellant had entered the Army in May 1969 under circumstances where his local draft board merely refused to reopen his classification because his asserted-views crystallized subsequent to the receipt of his induction notice, in the view of the Department of the Army personnel responsible for administering the conscientious objector claims of in-service members, he would have been entitled under Army policy to an inservice determination on the merits of his conscientious objector claim.' 462 F.2d, at 345. (Emphasis added.)
Although the letter interpreted and reported policies in effect at the time of Shomock's ordered induction, there appears to have been no significant change of policy at the time of the ordered inductions in these cases.
1
If the board reopens the file, the registrant has the right after an adverse decision to a personal appearance before the board and appeal. Since here the files were not considered reopened, the petitioners had no such rights. Compare 32 CFR § 1625.4 with 32 CFR § 1625.13.
2
Unlike Ehlert, in these cases we have no assurances from the Army that the registrants will receive a hearing. The majority refers to a letter from the Army's General Counsel lodged with the Court of Appeals in United States v. Shomock, 462 F.2d 338, 345 n. 17 (CA3 1972). But this letter does no more than distinguish between claims denied by the Selective Service System on the merits and those not considered because the board did not reopen the classification; only the latter will receive a hearing in the Army. But there is no assurance that in the confused circumstances of these cases the Army will not consider these claims to have been denied on the merits.
| 23
|
414 U.S. 70
94 S.Ct. 316
38 L.Ed.2d 274
Louis J. LEFKOWITZ, Attorney General of New York, et al., Appellants,v.M. Russell TURLEY et al.
No. 72—331.
Argued Oct. 10, 1973.
Decided Nov. 19, 1973.
Syllabus
New York statutes require public contracts to provide that if a contractor refuses to waive immunity or to testify concerning his state contracts, his existing contracts may be canceled and he shall be disqualified from further transactions with the State for five years, and further require disqualification from contracting with public authorities upon a person's failure to waive immunity or answer questions respecting his state transactions. Appellees, New York-licensed architects, when summoned to testify before a grand jury investigating various criminal charges, refused to sign waivers of immunity, whereupon various contracting authorities were notified of appellees' conduct and had their attention called to the applicable disqualification statutes. Appellees thereafter brought this action challenging the statutes as violative of their constitutional privilege against compelled self-incrimination. A three-judge District Court declared the statutes unconstitutional under the Fourteenth and Fifth Amendments. Held:
1. The Fifth Amendment privilege against self-incrimination is not inapplicable simply because the issue arises in the context of official inquiries into the job performance of a public contractor. The ordinary rule is that the privilege is available to witnesses called before a grand jury as these appellees were, and the State's legitimate interest in maintaining the integrity of its civil service and of its transactions with independent contractors, like other state concerns, cannot override the requirements of the Fifth Amendment. Pp. 77—79.
2. The State could not compel testimony that had not been immunized and the waiver sought by the State, under threat of loss of contracts, would have been no less compelled than a direct request for the testimony without resort to the waiver device, Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562; Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082; Uniformed Sanitation Men Assn., Inc., et al. v. Sanitation Comm'r, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089, and there is no constitutional distinction in terms of compulsion between the threat of job loss in those cases and the threat of contract loss to a contractor. Pp. 79—84.
3. Under a proper accommodation between the interest of the State and the Fifth Amendment, the State can require employees or contractors to respond to inquiries, but only if it offers them immunity sufficient to supplant their Fifth Amendment privilege. Kastigar v. United States, 406 U.S. 411, 92 S.Ct. 1653, 32 L.Ed.2d 212. Pp. 84—85.
342 F.Supp. 544, affirmed.
Brenda Soloff. New York City, for appellants.
Richard O. Robinson, Buffalo, N.Y., for appellees.
Mr. Justice WHITE delivered the opinion of the Court.
1
New York General Municipal Law §§ 103—a and 103—b, McKinney's Consol.Laws, c. 24, and New York Public Authorities Law §§ 2601 and 2602, McKinney's Consol.Laws, c. 43—A, require public contracts to provide that if a contractor refuses to waive immunity or to answer questions when called to testify concerning his contracts with the State or any of its subdivisions, his existing contracts may be canceled and he shall be disqualified from further transactions with the State for five years.1 In addition to specifying these contract terms, the statutes require disqualification from contracting with public authorities upon failure of any person to waive immunity or to answer questions with respect to his transactions with the State or its subdivisions. The issue in this case is whether these sections are consistent with the Fourteenth Amendment insofar as it makes applicable to the States the Fifth Amendment privilege against compelled self-incrimination.
2
* Appellees are two architects licensed by the State of New York. They were summoned to testify before a grand jury investigating various charges of conspiracy, bribery, and larceny. They were asked, but refused, to sign waivers of immunity, the effect of which would have been to waive their right not to be compelled in a criminal case to be a witness against themselves. They were then excused and the District Attorney, as directed by law, notified various contracting authorities of appellees' conduct and called attention to the applicable disqualification statutes. Appellees thereupon brought this action alleging that their existing contracts and future contracting privileges were threatened and asserted that the pertinent statutory provisions were violative of the constitutional privilege against compelled self-incrimination. A three-judge District Court was convened and declared the four statutory provisions at issue unconstitutional under the Fourteenth and Fifth Amendments, 342 F.Supp. 544 (WDNY 1972). We noted probable jurisdiction, 410 U.S. 924, 93 S.Ct. 1353, 35 L.Ed.2d 585 (1973). The State appealed pursuant to 28 U.S.C. § 1253. We affirmed the judgment of the District Court.
II
3
The Fifth Amendment provides that no person 'shall be compelled in any criminal case to be a witness against himself.' The Amendment not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings. McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 17, 69 L.Ed. 158 (1924), squarely held that
4
'(t)he privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it. The privilege protects a mere witness as fully as it does one who is also a party defendant.'
5
In this respect, McCarthy v. Arndstein reflected the settled view in this Court. The object of the Amendment 'was to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime.' Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 198, 35 L.Ed. 1110 (1892). See also Bram v. United States, 168 U.S. 532, 542—543, 18 S.Ct. 183, 186 187, 42 L.Ed. 568 (1897); Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896); Boyd v. United States, 116 U.S. 616, 634, 637—638, 6 S.Ct. 524, 534, 536—537, 29 L.Ed. 746 (1886); United States v. Saline Bank, 1 Pet. 100, 7 L.Ed. 69 (1828). This is the rule that is now applicable to the States. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 635 (1964). 'It must be considered irrelevant that the petitioner was a witness in a statutory inquiry and not a defendant in a criminal prosecution, for it has long been settled that the privilege protects witnesses in similar federal inquiries.' Id., at 11, 84 S.Ct., at 1495. In any of these contexts, therefore, a witness protected by the privilege may rightfully refuse to answer unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant. Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). Absent such protection, if he is nevertheless compelled to answer, his answers are inadmissible against him in a later criminal prosecution. Bram v. United States, supra; Boyd v. United States, supra.
6
Against this background, there is no room for urging that the Fifth Amendment privilege is inapplicable simply because the issue arises, as it does here, in the context of official inquiries into the job performance of a public contractor. Surely, the ordinary rule is that the privilege is available to witnesses called before grand juries as these appellee architects were. Hale v. Henkel, 201 U.S. 43, 66, 26 S.Ct. 370, 375, 50 L.Ed. 652 (1906).
7
It is true that the State has a strong, legitimate interest in maintaining the integrity of its civil service and of its transactions with independent contractors furnishing a wide range of goods and services; and New York would have it that this interest is sufficiently strong to override the privilege. The suggestion is that the State should be able to interrogate employees and contractors about their job performance without regard to the Fifth Amendment to discharge those who refuse to answer or to waive the privilege by waiving the immunity to which they would otherwise be entitled, and to use any incriminating answers obtained in subsequent criminal prosecutions. But claims of overriding interests are not unusual in Fifth Amendment litigation and they have not fared well.
8
In McCarthy v. Arndstein, supra, the United States insisted that because of the strong public interest in marshaling and distributing assets of bankrupts, the Fifth Amendment should not protect a bankrupt during the official examinations mandated by the Bankruptcy Act. That position did not prevail. The bankrupt's testimony could be had, but only if he were afforded sufficient immunity to supplant the privilege. And long before McCarthy v. Arndstein, the Court recognized that without the compelled testimony of knowledgeable and perhaps implicated witnesses, the enforcement of the transportation laws 'would become impossible,' but nevertheless proceeded on a basis that witnesses must be granted adequate immunity if their evidence was to be compelled. Brown v. Walker, 161 U.S., at 610, 16 S.Ct., at 651. Similarly, the enforcement of the antitrust laws against private corporations was at stake in Hale v. Henkel, supra, but immunity was essential to command the testimony of individual witnesses. Also, it would be difficult to overestimate the importance of the interest of the States in the enforcement of their ordinary criminal laws; but the price for incriminating answers from third-party witnesses is sufficient immunity to satisfy the imperatives of the Fifth Amendment privilege against compelled self-incrimination. Finally, in almost the very context here involved, this Court has only recently held that employees of the State do not forfeit their constitutional privilege and that they may be compelled to respond to questions about the performance of their duties but only if their answers cannot be used against them in subsequent criminal prosecutions. Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967); Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968); Uniformed Sanitation Men Assn., Inc., et al. v. Sanitation Comm'r, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968).
III
9
In Garrity v. New Jersey, certain police officers were summoned to an inquiry being conducted by the Attorney General concerning the fixing of traffic tickets. They were asked questions following warnings that if they did not answer they would be removed from office and that anything they said might be used against them in any criminal proceeding. No immunity of any kind was offered or available under state law. The questions were answered and the answers later used over their objections, in their prosecutions for conspiracy. The Court held that 'the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.' 385 U.S., at 500, 87 S.Ct. at 620. The Court also held that in the context of threats of removal from office the act of responding to interrogation was not voluntary and was not an effective waiver of the privilege against self-incrimination, the Court conceding, however, that there might be other situations 'where one who is anxious to make a clean breast of the whole affair volunteers the information.' Id., at 499, 87 S.Ct. at 619.
10
The issue in Gardner v. Broderick, supra, was whether the State might discharge a police officer who, after he was summoned before a grand jury to testify about the performance of his official duties and was advised of his right against compulsory self-incrimination, then refused to waive that right as requested by the State. Conceding that appellant could be discharged for refusing to answer questions about the performance of his official duties, if not required to waive immunity, the Court held that the officer could not be terminated, as he was, for refusing to waive his constitutional privilege. Although under Garrity any waiver executed may have been invalid and any answers elicited inadmissible in evidence, the State did not purport to recognize as much and instead attempted to coerce a waiver on the penalty of loss of employment. The 'testimony was demanded before the grand jury in part so that it might be used to prosecute him, and not solely for the purpose of securing an accounting of his performance of his public trust.' 392 U.S., at 279, 88 S.Ct., at 1916. Hence, the State's statutory provision requiring his dismissal for his refusal to waive immunity could not stand.
11
The companion case, Sanitation Men v. Sanitation Comm'r, supra, was to the same effect. Here again, public employees were officially interrogated and advised that refusal to answer and sign waivers of immunity would lead to dismissal. Here again, the Court held that the State presented the employees with 'a choice between surrendering their constitutional rights or their jobs,' 392 U.S., at 284, 88 S.Ct., at 1920, although clearly they would 'subject themselves to dismissal if they refuse to account for their performance of their public trust, after proper proceedings, which do not involve an attempt to coerce them to relinquish their constitutional rights.' Id., at 285, 88 S.Ct., at 1920.
12
These cases, and their predecessors, ultimately rest on a reconciliation of the well-recognized policies behind the privilege of self-incrimination, Murphy v. Waterfront Comm'n, 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678 (1964), and the need of the State, as well as the Federal Government, to obtain information 'to assure the effective functioning of government,' id., at 93, 84 S.Ct., at 1611 (White, J., concurring). Immunity is required if there is to be 'rational accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify.' Kastigar v. United States, 406 U.S., at 446, 92 S.Ct., at 1657. It is in this sense that immunity statutes have 'become part of out constitutional fabric.' Ullmann v. United States, 350 U.S. 422, 438, 76 S.Ct. 497, 506, 100 L.Ed. 511 (1956).2
13
We agree with the District Court that Garrity, Gardner, and Sanitation Men control the issue now before us. The State sought to interrogate appellees about their transactions with the State and to require them to furnish possibly incriminating testimony by demanding that they waive their immunity and by disqualifying them as public contractors when they refused. It seems to us that the State intended to accomplish what Garrity specifically prohibited to compel testimony that had not been immunized. The waiver sought by the State, under threat of loss of contracts, would have been no less compelled than a direct request for the testimony without resort to the waiver device. A waiver secured under threat of substantial economic sanction cannot be termed voluntary. As already noted, Garrity specifically rejected the claim of an effective waiver when the policemen in that case, in the face of possible discharge, proceeded to answer the questions put to them. 385 U.S., at 498, 87 S.Ct., at 619. The same holding is implicit in both Gardner and Sanitation Men.
14
The State nevertheless asserts that whatever may be true of state employees, a different rule is applicable to public contractors such as architects. Because independent contractors may not depend entirely on transactions with the State for their livelihood, it is suggested that disqualification from contracting with official agencies for a period of five years is neither compulsion within the meaning of the Fifth Amendment nor a forbidden penalty for refusing to answer questions put to them about their job performance. But we agree with the District Court that 'the plaintiffs' disqualification from public contracting for five years as a penalty for asserting a constitutional privilege is violative of their Fifth Amendment rights.' 342 F.Supp., at 549. We fail to see a difference of constitutional magnitude between the threat of job loss to an employee of the State, and a threat of loss of contracts to a contractor.3
15
If the argument is that the cost to a contractor is small in comparison to the cost to an employee of losing his job, the premise must be that it is harder for a state employee to find employment in the private sector, than it is for an architect. An architect lives off his contracting fees as surely as a state employee lives off his salary, and fees and salaries may be equally hard to come by in the private sector after sanctions have been taken by the State. In some sense the plight of the architect may be worse, for under the New York statutes it may be that any firm that employs him thereafter will also be subject to contract cancellation and disqualification.4 A significant infringement of constitutional rights cannot be justified by the speculative ability of those affected to cover the damage.
IV
16
We should make clear, however, what we have said before. Although due regard for the Fifth Amendment forbids the State to compel incriminating answers from its employees and contractors that may be used against them in criminal proceedings, the Constitution permits that very testimony to be compelled if neither it nor its fruits are available for such use. Kastigar v. United States, supra. Furthermore, the accommodation between the interest of the State and the Fifth Amendment requires that the State have means at its disposal to secure testimony if immunity is supplied and testimony is still refused. This is recognized by the power of the courts to compel testimony, after a grant of immunity, by use of civil contempt and coerced imprisonment. Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966). Also, given adequate immunity, the State may plainly insist that employees either answer questions under oath about the performance of their job or suffer the loss of employment. By like token, the State may insist that the architects involved in this case either respond to relevant inquiries about the performance of their contracts or suffer cancellation of current relationships and disqualification from contracting with public agencies for an appropriate time in the future. But the State may not insist that appellees waive their Fifth Amendment privilege against self-incrimination and consent to the use of the fruits of the interrogation in any later proceedings brought against them. Rather, the State must recognize what our cases hold: that answers elicited upon the threat of the loss of employment are compelled and inadmissible in evidence. Hence, if answers are to be required in such circumstances States must offer to the witness whatever immunity is required to supplant the privilege and may not insist that the employee or contractor waive such immunity.
17
Affirmed.
18
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join.
19
I join the Court's opinion in all respects but one. It is my view that immunity which permits testimony to be compelled 'if neither it nor its fruits are available for . . . use' in criminal proceedings does not satisfy the privilege against self-incrimination. 'I believe that the Fifth Amendment's privilege against self-incrimination requires that any jurisdiction that compels a man to incriminate himself grant him absolute immunity under its laws from prosecution for any transaction revealed in that testimony.' Piccirillo v. New York, 400 U.S. 548, 562, 91 S.Ct. 520, 527, 27 L.Ed.2d 596 (1971) (Brennan, J., dissenting.)
1
N.Y. General Municipal Law §§ 103—a and 103—b (Supp.1973 1974) provide:
Section 103—a. Ground for cancellation of contract by municipal corporations and fire districts:
'A clause shall be inserted in all specifications or contracts made or awarded by a municipal corporation or any public department, agency or official thereof on or after the first day of July,
nineteen hundred fifty-nine or by a fire district or any agency or official thereof on or after the first day of September, nineteen hundred sixty, for work or services performed or to be performed, or goods sold or to be sold, to provide that upon the refusal of a person, when called before a grand jury, head of a state department, temporary state commission or other state agency, . . . head of a city department, or other city agency, which is empowered to compel the attendance of witnesses and examine them under oath, to testify in an investigation concerning any transaction or contract had with the state, any political subdivision thereof, a public authority or with any public department, agency or official of the state or of any political subdivision thereof or of a public authority, to sign a waiver of immunity against subsequent criminal prosecution or to answer any relevant question concerning such transaction or contract,
'(a) such person, and any firm, partnership or corporation of which he is a member, partner, director or officer shall be disqualified from thereafter selling to or submitting bids to or receiving awards from or entering into any contracts with any municipal corporation, or fire district, or any public department, agency or official thereof, for goods, work or services, for a period of five years after such refusal, and to provide also that
'(b) any and all contracts made with any municipal corporation or any public department, agency or official thereof on or after the first day of July, nineteen hundred fifty-nine or with any fire district or any agency or official thereof on or after the first day of September, nineteen hundred sixty, by such person, and by any firm, partnership, or corporation of which he is a member, partner, director or officer may be cancelled or terminated by the municipal corporation or fire district without incurring any penalty or damages on account of such cancellation or termination, but any monies owing by the municipal corporation or fire district for goods delivered or work done prior to the cancellation or termination shall be paid.
'The provisions of this section as in force and effect prior to the first day of September, nineteen hundred sixty, shall apply to specifications or contracts made or awarded by a municipal corpora-
tion on or after the first day of July, nineteen hundred fifty-nine, but prior to the first day of September, nineteen hundred sixty.'
Section 103—b. Disqualification to contract with municipal corporations and fire districts:
'Any person who, when called before a grand jury, head of a state department, temporary state commission or other state agency, . . . head of a city department or other city agency, which is empowered to compel the attendance of witnesses and examine them under oath, to testify in an investigation concerning any transaction or contract had with the state, any political subdivision thereof, a public authority, or with a public department, agency or official of the state or of any political subdivision thereof or of a public authority, refuses to sign a waiver of immunity against subsequent criminal prosecution or to answer any relevant question concerning such transaction or contract, and any firm, partnership or corporation of which he is a member, partner, director or officer shall be disqualified from thereafter selling to or submitting bids to or receiving awards from or entering into any contracts with any municipal corporation or fire district, or with any public department, agency or official thereof, for goods, work or services, for a period of five years after such refusal or until a disqualification shall be removed pursuant to the provisions of section one hundred three-c of this article.
'It shall be the duty of the officer conducting the investigation before the grand jury, the head of a state department, the chairman of the temporary state commission or other state agency, . . . the head of a city department or other city agency before which the refusal occurs to send notice of such refusal, together with the names of any firm, partnership or corporation of which the person so refusing is known to be a member, partner, officer or director, to the commissioner of transportation of the state of New York and the appropriate departments, agencies and officials of the state, political subdivisions thereof or public authorities with whom the person so refusing and any firm, partnership or corporation of which he is a member, partner, director or officer, is known to have a contract. However, when such refusal occurs before a body other than a grand jury, notice of refusal shall not be sent for a period of ten days after such refusal occurs. Prior to the expiration of
this ten day period, any person, firm, partnership or corporation which has become liable to the cancellation or termination of a contract or disqualification to contract on account of such refusal may commence a special proceeding at a special term of the supreme court, held within the judicial district in which the refusal occurred, for an order determining whether the questions in response to which the refusal occurred were relevant and material to the inquiry. Upon the commencement of such proceeding, the sending of such notice of refusal to answer shall be subject to order of the court in which the proceeding was brought in a manner and on such terms as the court may deem just. If a proceeding is not brought within ten days, notice of refusal shall thereupon be sent as provided herein.'
N.Y. Public Authorities Law §§ 2601 and 2602 (Supp.1973—1974) provide:
Section 2601. Ground for cancellation of contract by public authority:
'A clause shall be inserted in all specifications or contracts hereafter made or awarded by any public authority or by any official of any public authority created by the state or any political subdivision, for work or services performed or to be performed or goods sold or to be sold, to provide that upon the refusal by a person, when called before a grand jury, head of a state department, temporary state commission or other state agency, . . . head of a city department, or other city agency, which is empowered to compel the attendance of witnesses and examine them under oath, to testify in an investigation concerning any transaction or contract had with the state, any political subdivision thereof, a public authority or with any public department, agency or official of the state or of any political subdivision thereof or of a public authority, to sign a waiver of immunity against subsequent criminal prosecution or to answer any relevant question concerning such transaction or contract,
'(a) such person, and any firm, partnership or corporation of which he is a member, partner, director or officer shall be disqualified from thereafter selling to or submitting bids to or receiving awards from or entering into any contracts with any public authority or official thereof, for goods, work or services, for a period of five years after such refusal, and to provide also that
'(b) any and all contracts made with any public authority or
official thereof, since the effective date of this law, by such person and by any firm, partnership or corporation of which he is a member, partner, director or officer may be cancelled or terminated by the public authority without incurring any penalty or damages on account of such cancellation or termination, but any monies owing by the public authority for goods delivered or work done prior to the cancellation or termination shall be paid.'
Section 2602. Disqualification to contract with public authority:
'Any person, who, when called before a grand jury, head of a state department, temporary state commission or other state agency, . . . head of a city department, or other city agency, which is empowered to compel the attendance of witnesses and examine them under oath, to testify in an investigation concerning any transaction or contract had with the state, any political subdivision thereof, a public authority or with a public department, agency or official of the state or of any political subdivision thereof or of a public authority, refuses to sign a waiver of immunity against subsequent criminal prosecution or to answer any relevant questions concerning such transaction or contract, and any firm, partnership or corporation, of which he is a member, partner, director or officer shall be disqualified from thereafter selling to or submitting bids to or receiving awards from or entering into any contracts with any public authority or any official of any public authority created by the state or any political subdivision, for goods, work or services, for a period of five years after such refusal or until a disqualification shall be removed pursuant to the provisions of section twenty-six hundred three of this title.
'It shall be the duty of the officer conducting the investigation before the grand jury, the head of a state department, the chairman of the temporary state commission or other state agency, . . . the head of a city department or other city agency before which the refusal occurs to send notice of such refusal, together with the names of any firm, partnership or corporation of which the person so refusing is known to be a member, partner, officer or director, to the commissioner of transportation of the state of New York, or the commissioner of general services as the case may be, and the appropriate
departments, agencies and officials of the state, political subdivisions thereof or public authorities with whom the persons (sic) so refusing and any firm, partnership or corporation of which he is a member, partner, director or officer, is known to have a contract. However, when such refusal occurs before a body other than a grand jury, notice of refusal shall not be sent for a period of ten days after such refusal occurs. Prior to the expiration of this ten day period, any person, firm, partnership or corporation which has become liable to the cancellation or termination of a contract or disqualification to contract on account of such refusal may commence a special proceeding at a special term of the supreme court, held within the judicial district in which the refusal occurred, for an order determining whether the questions in responde to which the refusal occurred were relevant and material to the inquiry. Upon the commencement of such proceeding, the sending of such notice of refusal to answer shall be subject to order of the court in which the proceeding was brought in a manner and on such terms as the court may deem just. If a proceeding is not brought within ten days, notice of refusal shall thereupon be sent as provided herein.'
2
In Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953), a doctor inducted into the Army was denied a commission as an officer after refusing to divulge whether he was a Communist, as required by a loyalty certificate prescribed for commissioned officers. Instead he asserted his 'Federal constitutional privilege' when called upon to answer the question. In holding that the Government was justified in refusing the commission because of the failure to answer, the Court had no occasion to consider whether Orloff would have been exposed to criminal prosecution if he had stated that he was a member of the Communist Party. The case differs significantly from the one before us since the State here asks the architects to affirmatively expose themselves to criminal prosecution by waiving their privilege against self-incrimination, or from Garrity, where the threat of criminal prosecution was apparent both from the nature of the proceeding, and the absence of applicable state immunity statutes.
Kimm v. Rosenberg, 363 U.S. 405, 80 S.Ct. 1139, 4 L.Ed.2d 1299 (1960), is also inapposite. The Court there held that an alien whose deportation had been ordered was ineligible for a discretionary order permitting his voluntary departure, because he had failed to establish that he was not affiliated with the Communist Party. Petitioner's imminent departure from the country, whether it was voluntary or compelled, obviously made the threat of criminal prosecution on the basis of his answer remote.
3
As Garrity succinctly put it: 'The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent.' 385 U.S. 493, 497, 87 S.Ct. 616. 618, 17 L.Ed.2d 562 (1967).
4
The contract disqualifications apply not only to the person who refuses to waive immunity but also to 'any firm, partnership or corporation of which he is a member, partner, director or officer . . ..'
| 01
|
414 U.S. 44
94 S.Ct. 330
38 L.Ed.2d 254
DEPARTMENT OF GAME OF the State of WASHINGTON, Petitioner,v.The PUYALLUP TRIBE et al. PUYALLUP TRIBE, Petitioner, v. DEPARTMENT OF GAME OF the State of WASHINGTON.
Nos. 72—481, 72—746.
Argued Oct. 10, 1973.
Decided Nov. 19, 1973.
Syllabus
Commercial net fishing by Puyallup Indians, for which the Indians have treaty protection, Puyallup Tribe v. Dept. of Game, 391 U.S. 392, 88 S.Ct. 1725, 20 L.Ed.2d 689, forecloses the bar against net fishing of steelhead trout imposed by Washington State Game Department's regulation, which discriminates against the Puyallups, and as long as steelhead fishing is permitted, the regulation must achieve an accommodation between the Puyallups' net-fishing rights and the rights of sports fishermen. Pp. 45—59.
80 Wash.2d 561, 497 P.2d 171, reversed and remanded.
Joseph L. Coniff, Jr., Olympia, Wash., for petitioner in No. 72—481 and for respondent in No. 72—746.
Harry R. Sachse, New Orleans, La., for respondents in No. 72 481 and petitioner in No. 72—746.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
In 1963 the Department of Game and the Department of Fisheries of the State of Washington brought this action against the Puyallup Tribe and some of its members, claiming they were subject to the State's laws that prohibited net fishing at their usual and accustomed places and seeking to enjoin them from violating the State's fishing regulations. The Supreme Court of the State held that the tribe had protected fishing rights under the Treaty of Medicine Creek and that a member who was fishing at a usual and accustomed fishing place of the tribe may not be restrained or enjoined from doing so unless he is violating a state statute or regulation 'which has been established to be reasonable and necessary for the conservation of the fishery.' 70 Wash.2d 245, 262, 422 P.2d 754, 764.
2
On review of that decision we held that, as provided in the Treaty of Medicine Creek, the "right of taking fish, at all usual and accustomed grounds and stations (which) is . . . secured to said Indians, in common with all citizens of the Territory" extends to off-reservation fishing but that 'the manner of fishing, the size of the take, the restriction of commercial fishing, and the like may be regulated by the State in the interest of conservation, provided the regulation meets appropriate standards and does not discriminate against the Indians.' 391 U.S. 392, 395, 398, 88 S.Ct. 1725, 1728. We found the state court decision had not clearly resolved the question whether barring the 'use of set nets in fresh water streams or at their mouths' by all, including Indians, and allowing fishing only by hook and line in these areas was a reasonable and necessary conservation measure. The case was remanded for determination of that question and also 'the issue of equal protection implicit in the phrase 'in common with" as used in the Treaty. Id., at 400, 403, 88 S.Ct., at 1730, 1931.
3
In Washington the Department of Fisheries deals with salmon fishing, while steelhead trout are under the jurisdiction of the Department of Game. On our remand the Department of Fisheries changed its regulation to allow Indian net fishing for salmon in the Puyallup River (but not in the bay or in the spawning areas of the river). The Department of Game, however, continued its total prohibition of net fishing for steelhead trout. The Supreme Court of Washington upheld the regulations imposed by the Department of Fisheries which, as noted, were applicable to salmon; and no party has brought that ruling back here for review. The sole question tendered in the present cases concerns the regulations of the Department of Game concerning steelhead trout. We granted the petitions for certiorari, 410 U.S. 981, 93 S.Ct. 1495, 36 L.Ed.2d 177.
4
The Supreme Court of Washington, while upholding the regulations of the Department of Game prohibiting fishing by net for steelhead in 1970, 80 Wash.2d 561, 497 P.2d 171, held (1) that new fishing regulations for the Tribe must be made each year, supported by 'facts and data that show the regulation is necessary for the conservation' of the steelhead, id., at 576, 497 P.2d, at 180; (2) that the prohibition of net fishing for steelhead was proper because 'the catch of the steelhead sports fishery alone in the Puyallup River leaves no more than a sufficient number of steelhead for escapement necessary for the conservation of the steelhead fishery in that river.' Id., at 573, 497 P.2d, at 178 179.
5
The ban on all net fishing in the Puyallup River for steelhead1 grants, in effect, the entire run to the sports fishermen. Whether that amounts to discrimination under the Treaty is the central question in these cases.
6
We know from the record and oral argument that the present run of steelhead trout is made possible by the planting of young steelhead trout called smolt and that the planting program is financed in large part by the license fees paid by the sports fishermen. The Washington Supreme Court said:
7
'Mr. Clifford J. Millenbac(h), Chief of the Fisheries Management Division of the Department of Game, testified that the run of steelhead in the Puyallup River drainage is between 16,000 and 18,000 fish annually; that approximately 5,000 to 6,000 are native run which is the maximum the Puyallup system will produce even if undisturbed; that approximately 10,000 are produced by the annual hatchery plant of 100,000 smolt; that smolt, small steelhead from 6 to 9 inches in length, are released in April, and make their way to the sea about the first of August; that during this time all fishing is closed to permit their escapement; that the entire cost of the hatchery smolt plant, exclusive of some federal funds, is financed from license fees paid by sports fishermen. The record further shows that 61 per cent of the entire sports catch on the river is from hatchery-planted steelhead; that the catch of steelhead by the sports fishery, as determined from 'card count' received from the licensed sports fishermen, is around 12,000 to 14,000 annually;2 that the escapement required for adequate hatchery needs and spawning is 25 per cent to 50 per cent of the run; that the steelhead fishery cannot therefore withstand a commercial fishery on the Puyallup River.' Id., at 572, 497 P.2d, at 178.
8
At oral argument counsel for the Department of Game represented that the catch of steelhead that were developed from the hatchery program was in one year 60% of the total run and in another 80%. And he stated that approximately 80% of the cost of that program was financed by the license fees of sports fishermen. Whether that issue will emerge in this ongoing litigation as a basis for allocating the catch between the two groups, we do not know. We mention it only to reserve decision on it.
9
At issue presently is the problem of accommodating net fishing by the Puyallups with conservation needs of the river. Our prior decision recognized that net fishing by these Indians for commercial purposes was covered by the Treaty. 391 U.S., at 398 399, 88 S.Ct., at 1728—1729. We said that 'the manner of fishing, the size of the take, the restriction of commercial fishing, and the like may be regulated by the State in the interest of conservation, provided the regulation . . . does not discriminate against the Indians.' Id., at 398, 88 S.Ct., at 1728. There is discrimination here because all Indian net fishing is barred and only hook-and-line fishing, entirely pre-empted by non-Indians, is allowed.
10
Only an expert could fairly estimate what degree of net fishing plus fishing by hook and line would allow the escapement of fish necessary for perpetuation of the species. If hook-and-line fishermen now catch all the steelhead which can be caught within the limits needed for escapement, then that number must in some manner be fairly apportioned between Indian net fishing and non-Indian sports fishing so far as that particular species is concerned. What formula should be employed is not for us to propose. There are many variables—the number of nets, the number of steelhead that can be caught with nets, the places where nets can be located, the length of the net season, the frequency during the season when nets may be used. On the other side are the number of hook-and-line licenses that are issuable, the limits of the catch of each sports fisherman, the duration of the season for sports fishing, and the like.
11
The aim is to accommodate the rights of Indians under the Treaty and the rights of other people.
12
We do not imply that these fishing rights persist down to the very last steelhead in the river. Rights can be controlled by the need to conserve a species; and the time may come when the life of a steelhead is so precarious in a particular stream that all fishing should be banned until the species regains assurance of survival. The police power of the State is adequate to prevent the steelhead from following the fate of the passenger pigeon; and the Treaty does not give the Indians a federal right to pursue the last living steelhead until it enters their nets.
13
We reverse the judgment below insofar as it treats the steelhead problem and remand the cases for proceedings not inconsistent with this opinion.
14
So ordered.
15
Reversed and remanded.
16
Mr. Justice WHITE, with whom THE CHIEF JUSTICE and Mr. Justice STEWART join, concurring.
17
I agree that, consistently with the Treaty, commercial fishing by Indians cannot be totally forbidden in order to permit sports fishing in the usual volume. On the other hand, the Treaty does not obligate the State of Washington to subsidize the Indian fishery with planted fish paid for by sports fishermen. The opinion below, as I understand it, indicates that the river, left to its own devices, would have an annual run of 5,000 or 6,000 steelhead. It is only to this run that Indian Treaty rights extend. Moreover, if there were no sports fishing and no state-planted steelhead, and if the State, as the Court said it could when this case was here before, may restrict commercial fishing in the interest of conservation, the Indian fishery cannot take so many fish that the natural run would suffer progressive depletion. Because the Court's opinion appears to leave room for this approach and for substantial, but fair, limits on the Indian commercial fishery, I am content to concur.
1
'ANNUAL CATCH LIMIT—STEELHEAD ONLY: Thirty steelhead over 20 in length . . .' 1970 Game Fish Seasons and Catch Limits 3 (Dept. of Game). (Cited at 80 Wash.2d 561, 572, 497 P.2d 171, 178.)
2
The Washington Supreme Court noted 'that substantially all the steelhead fishery occurs after their entrance into the respective rivers to which they return.' 80 Wash.2d, at 575, 497 P.2d, at 180.
| 12
|
414 U.S. 105
94 S.Ct. 326
38 L.Ed.2d 303
Gregory HESSv.State of INDIANA.
No. 73—5290.
Nov. 19, 1973.
PER CURIAM.
1
Gregory Hess appeals from his conviction in the Indiana courts for violating the State's disorderly conduct statute.1 Appellant contends that his conviction should be reversed because the statute is unconstitutionally vague, Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926), because the statute is overbroad in that it forbids activity that is protected under the First and Fourteenth Amendments, Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972), and because the statute, as applied here, abridged his constitutionally protected freedom of speech, Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949). These contentions were rejected in the City Court, where Hess was convicted, and in the Superior Court, which reviewed his conviction.2 The Supreme Court of Indiana, with one dissent, considered and rejected each of Hess' constitutional contentions, and accordingly affirmed his conviction, Ind., 297 N.E.2d 413.
2
The events leading to Hess' conviction began with an antiwar demonstration on the campus of Indiana University. In the course of the demonstration, approximately 100 to 150 of the demonstrators moved onto a public street and blocked the passage of vehicles. When the demonstrators did not respond to verbal directions from the sheriff to clear the street, the sheriff and his deputies began walking up the street, and the demonstrators in their path moved to the curbs on either side, joining a large number of spectators who had gathered. Hess was standing off the street as the sheriff passed him. The sheriff heard Hess utter the word 'fuck' in what he later described as a loud voice and immediately arrested him on the disorderly conduct charge. It was later stipulated that what appellant had said was 'We'll take the fucking street later,' or 'We'll take the fucking street again.' Two witnesses who were in the immediate vicinity testified, apparently without contradiction, that they heard Hess' words and witnessed his arrest. They indicated that Hess did not appear to be exhorting the crowd to go back into the street, that he was facing the crowd and not the street when he uttered the statement, that his statement did not appear to be addressed to any particular person or group, and that his tone, although loud, was no louder than that of the other people in the area.
3
Indiana's disorderly conduct statute was applied in this case to punish only spoken words. It hardly needs repeating that '(t)he constitutional guarantees of freedom of speech forbid the States to punish the use of words or language not within 'narrowly limited classes of speech." Gooding v. Wilson, supra, 405 U.S. at 521—522, 92 S.Ct. at 1106. The words here did not fall within any of these 'limited classes.' In the first place, it is clear that the Indiana court specifically abjured any suggestion that Hess' words could be punished as obscene under Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and its progeny. Indeed, after Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 418 (1971), such a contention with regard to the language at issue would not be tenable. By the same token, any suggestion that Hess' speech amounted to 'fighting words,' Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), could not withstand scrutiny. Even if under other circumstances this language could be regarded as a personal insult, the evidence is undisputed that Hess' statement was not directed by any person or group in particular. Although the sheriff testified that he was offended by the language, he also stated that he did not interpret the expression as being directed personally at him, and the evidence is clear that appellant had his back to the sheriff at the time. Thus, under our decisions, the State could not punish this speech as 'fighting words.' Cantwell v. Connecticut, 310 U.S. 296, 309, 60 S.Ct. 900, 905, 84 L.Ed. 1213 (1940); Cohen v. California, supra, 403 U.S. at 20, 91 S.Ct. at 1785.
4
In addition, there was no evidence to indicate that Hess' speech amounted to a public nuisance in that privacy interests were being invaded. 'The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is . . . dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.' Cohen v. California, supra, at 21, 91 S.Ct. at 1786. The prosecution made no such showing in this case.
5
The Indiana Supreme Court placed primary reliance on the trial court's finding that Hess' statement 'was intended to incite further lawless action on the part of the crowd in the vicinity of appellant and was likely to produce such action.' 297 N.E.2d 413, 415 (1973). At best, however, the statement could be taken as counsel for present moderation; at worst, it amounted to nothing more than advocacy of illegal action at some indefinite future time. This is not sufficient to permit the State to punish Hess' speech. Under our decisions, 'the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.' Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969). (Emphasis added.) See also Terminiello v. Chicago, supra, 337 U.S., at 4, 69 S.Ct., at 895. Since the uncontroverted evidence showed that Hess' statement was not directed to any person or group of persons, it cannot be said that he was advocating, in the normal sense, any action. And since there was no evidence or rational inference from the import of the language, that his words were intended to produce, and likely to produce, imminent disorder, those words could not be punished by the State on the ground that they had 'a 'tendency to lead to violence." 297 N.E.2d, at 415.
6
Accordingly, the motion to proceed in forma pauperis is granted and the judgment of the Supreme Court of Indiana is reversed.
7
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE and Mr. Justice BLACKMUN join, dissenting.
8
The Court's per curiam opinion rendered today aptly demonstrates the difficulties inherent in substituting a different complex of factual inferences for the inferences reached by the courts below. Since it is not clear to me that the Court has a sufficient basis for its action, I dissent.
9
It should be noted at the outset that the case was tried de novo in the Superior Court of Indiana upon a stipulated set of facts, and, therefore, the record is perhaps unusually colorless and devoid of life. Nevertheless, certain facts are clearly established. Appellant was arrested during the course of an antiwar demonstration conducted at Indiana University in May 1970. The demonstration was of sufficient size and vigor to require the summoning of police, and both the Sheriff's Department and the Bloomington Police Department were asked to help university officials and police remove demonstrators blocking doorways to a campus building. At the time the sheriff arrived, 'approximately 200—300 persons' were assembled at that particular building.
10
The doorways eventually were cleared of demonstrators, but, in the process, two students were placed under arrest. This action did not go unnoticed by the demonstrators. As the stipulation notes, '(i)n apparent response to these arrests, about 100—150 of the persons who had gathered as spectators went into Indiana Avenue in front of Bryan Hall and in front of the patrol car in which the two arrestees had been placed.' Thus, by contrast to the majority's somewhat antiseptic description of this massing as being '(i)n the course of the demonstration,' the demonstrators' presence in the street was not part of the normal 'course of the demonstration' but could reasonably be construed as an attempt to intimidate and impede the arresting officers. Furthermore, as the stipulation also notes, the demonstrators 'did not respond to verbal directions' from the sheriff to clear the street. Thus, the sheriff and his deputies found it necessary to disperse demonstrators by walking up the street directly into their path. Only at that point did the demonstrators move to the curbs.
11
The stipulation contains only one other declaration of fact: that Sheriff Thrasher arrested the appellant, Gregory Hess, for disorderly conduct. The remainder of the stipulation merely summarizes testimony, particularly the testimony of Sheriff Thrasher, two female witnesses (both students at Indiana University) who were apparently part of the crowd, and Dr. Owen Thomas, a professor of English at the university. The only 'established' facts which emerge from these summaries are that 'Hess was standing off the street on the eastern curb of Indiana Avenue' and that he said, in the words of the trial court, 'We'll take the fucking street later (or again).' The two female witnesses testified, as the majority correctly observes, that they were not offended by Hess' statement, that it was said no louder than statements by other demonstrators, 'that Hess did not appear to be exhorting the crowd to go back into the street,' that he was facing the crowd, and 'that his statement did not appear to be addressed to any particular person or group.' (Emphasis added.)
12
The majority makes much of this 'uncontroverted evidence,' but I am unable to find anywhere in the opinion an explanation of why it must be believed. Surely the sentence 'We'll take the fucking street later (or again)' is susceptible of characterization as an exhortation, particularly when uttered in a loud voice while facing a crowd. The opinions of two defense witnesses cannot be considered proof to the contrary, since the trial court was perfectly free to reject this testimony if it so desired. Perhaps, as these witnesses and the majority opinion seem to suggest, appellant was simply expressing his views to the world at large, but that is surely not the only rational explanation.
13
The majority also places great emphasis on appellant's use of the word 'later,' even suggesting at one point that the statement 'could be taken as counsel for present moderation.' The opinion continues: '(A)t worst, it amounted to nothing more than advocacy of illegal action at some indefinite future time.' From that observation, the majority somehow concludes that the advocacy was not directed towards inciting imminent action. But whatever other theoretical interpretations may be placed upon the remark, there are surely possible constructions of the statement which would encompass more or less immediate and continuing action against the harassed police. They should not be rejected out of hand because of an unexplained preference for other acceptable alternatives.
14
The simple explanation for the result in this case is that the majority has interpreted the evidence differently from the courts below. In doing so, however, I believe the Court has exceeded the proper scope of our review. Rather than considering the 'evidence' in the light most favorable to the appellee and resolving credibility questions against the appellant, as many of our cases have required,* the Court has instead fashioned its own version of events from a paper record, some 'unconstroverted evidence,' and a large measure of conjecture. Since this is not the traditional function of any appellate court, and is surely not a wise or proper use of the authority of this Court, I dissent.
1
'Whoever shall act in a loud, boisterous or disorderly manner so as to disturb the peace and quiet of any neighborhood or family, by loud or unusual noise, or by tumultuous or offensive behavior, threatening, traducing, quarreling, challenging to fight or fighting, shall be deemed guilty of disorderly conduct, and upon conviction, shall be fined in any sum not exceeding five hundred dollars ($500) to which may be added imprisonment for not to exceed one hundred eighty (180) days.' Ind.Code 35—27—2—1, (1971), Ind.Ann.Stat. § 10—1510 (Supp.1972).
2
The State contends that Hess failed to preserve his constitutional contentions in the state courts. But the record demonstrates that Hess moved to quash the affidavit for disorderly conduct in the City Court on the constitutional grounds that he is asserting in this Court. The State points out that, on appeal to the Superior Court, appellant received a trial de novo and did not again move to quash the affidavit in that court. But the refusal of the City Court to quash the affidavit was asserted as error by Hess on his appeal to the Superior Court, and his memorandum in support of his appeal pressed the constitutional contentions. Since the Supreme Court of Indiana considered and resolved each of Hess' constitutional contentions, it is apparent that it regarded Hess' actions in the state courts as sufficient under state law to preserve his constitutional arguments on appeal.
*
See, e.g., Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).
| 23
|
414 U.S. 86
94 S.Ct. 334
38 L.Ed.2d 287
Cecilia ESPINOZA and Rudolfo Espinoza, Petitioners,v.FARAH MANUFACTURING COMPANY, INC.
No. 72—671.
Argued Oct. 10, 11, 1973.
Decided Nov. 19, 1973.
Syllabus
Petitioners, Mr. And Mrs. Espinoza, brought suit after exhausting their administrative remedies with the Equal Employment Opportunity Commission (EEOC), alleging that respondent's refusal to hire Mrs. Espinoza in its San Antonio division because of her Mexican citizenship violated § 703 of Title VII of the Civil Rights Act of 1964, which makes it an unlawful employment practice for an employer to fail or refuse to hire any individual because of his race, color, religion, sex, or national origin. The District Court granted petitioners' motion for summary judgment, relying primarily on an EEOC guideline providing that a lawful alien resident may not be discriminated against on the basis of citizenship. The Court of Appeals reversed. Held: An employer's refusal to hire a person because he is not a United States citizen does not constitute employment discrimination on the basis of 'national origin' in violation of § 703. Pp. 88—86.
(a) In light of the statute's legislative history and the long-standing practice of requiring federal employees to be United States citizens, it is clear that Congress did not intend the term 'national origin' to embrace citizenship requirements. Pp. 88—89.
(b) The EEOC's guideline, though perhaps significant in a wide range of other situations, does not apply here or support the premise that discrimination on the basis of citizenship is tantamount to discrimination on the basis of national origin, since there is no showing that respondent (96% of whose San Antonio division employees are Mexican-Americans) discriminated against persons of Mexican origin. Pp. 92—95.
(c) Though the Act protects aliens against illegal discrimination because of race, color, religion, sex, or national origin, it does not proscribe discrimination on the basis of alienage. P. 95.
5. Cir., 462 F.2d 1331, affirmed.
George Cooper, San Antonio, Tex., for petitioners.
Kenneth R. Carr, El Paso, Tex., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
This case involves interpretation of the phrase 'national origin' in Tit. VII of the Civil Rights Act of 1964. Petitioner Cecilia Espinoza is a lawfully admitted resident alien who was born in and remains a citizen of Mexico. She resides in San Antonio, Texas, with her husband, Rudolfo Espinoza, a United States citizen. In July 1969, Mrs. Espinoza sought employment as a seamstress at the San Antonio division of respondent Farah Manufacturing Co. Her employment application was rejected on the basis of a longstanding company policy against the employment of aliens. After exhausting their administrative remedies with the Equal Employment Opportunity Commission,1 petitioners commenced this suit in the District Court alleging that respondent had discriminated against Mrs. Espinoza because of her 'national origin' in violation of § 703 of Tit. VII, 78 Stat. 255, 42 U.S.C. § 2000e—2(a)(1). The District Court granted petitioners' motion for summary judgment, holding that a refusal to hire because of lack of citizenship constitutes discrimination on the basis of 'national origin.' 343 F.Supp. 1205. The Court of Appeals reversed, concluding that the statutory phrase 'national origin' did not embrace citizenship. 462 F.2d 1331. We granted the writ to resolve this question of statutory construction, 411 U.S. 946, 93 S.Ct. 1920, 36 L.Ed.2d 408, and now affirm.
2
Section 703 makes it 'an unlawful employment practice for an employer . . . to fail or refuse to hire . . . any individual . . . because of such individual's race, color, religion, sex, or national origin.' Certainly the plain language of the statute supports the result reached by the Court of Appeals. The term 'national origin' on its face refers to the country where a person was born, or, more broadly, the country from which his or her ancestors came.2
3
The statute's legislative history, though quite meager in this respect, fully supports this construction. The only direct definition given the phrase 'national origin' is the following remark made on the floor of the House of Representatives by Congressman Roosevelt, Chairman of the House Subcommittee which reported the bill: 'It means the country from which you or your forebears came. . . . You may come from Poland, Czechoslovakia, England, France, or any other country.' 110 Cong.Rec. 2549 (1964). We also note that an earlier version of § 703 had referred to discrimination because of 'race, color, religion, national origin, or ancestry.' H.R. 7152, 88th Cong., 1st Sess., § 804, Oct. 2, 1963 (Comm. print) (emphasis added). The deletion of the word 'ancestry' from the final version was not intended as a material change, see, H.R.Rep.No.914, 88th Cong., 1st See. 87 (1963), suggesting that the terms 'national origin' and 'ancestry' were considered synonymous.
4
There are other compelling reasons to believe that Congress did not intend the term 'national origin' to embrace citizenship requirements. Since 1914, the Federal Government itself, through Civil Service Commission regulations, has engaged in what amounts to discrimination against aliens by denying them the right to enter competitive examination for federal employment. Exec. Order No. 1997, H.R.Doc.No. 1258, 63d Cong., 3d Sess. 118 (1914); see 5 U.S.C. § 3301; 5 CFR § 338.101 (1972). But it has never been suggested that the citizenship requirement for federal employment constitutes discrimination because of national origin, even though since 1943, various Executive Orders have expressly prohibited discrimination on the basis of national origin in Federal Government employment. See, e.g., Exec. Order No. 9346, 3 CFR 1280 (Cum.Supp. 1938—1943); Exec. Order No. 11478, 3 CFR 446 (1970).
5
Moreover, § 701(b) of Tit. VII, in language closely paralleling § 703, makes it 'the policy of the United States to insure equal employment opportunities for Federal employees without discrimination because of . . . national origin . . ..' Civil Rights Act of 1964, Pub.L. 88—352, § 701(b), 78 Stat. 254, re-enacted, Pub.L. 89—554, 80 Stat. 523, 5 U.S.C. § 7151. The legislative history of that section reveals no mention of any intent on Congress' part to reverse the longstanding practice of requiring federal employees to be United States citizens. To the contrary, there is every indication that no such reversal was intended. Congress itself has on several occasions since 1964 enacted statutes barring aliens from federal employment. The Treasury, Postal Service, and General Government Appropriation Act, 1973, for example, provides that 'no part of any appropriation contained in this or any other Act shall be used to pay the compensation of any officer or employee of the Government of the United States . . . unless such person (1) is a citizen of the United States.'3 Pub.L. 92—351, § 602, 86 Stat. 487. See also Pub.L. 91—144, § 502, 83 Stat. 336; Pub.L. 91—439, § 502, 84 Stat. 902.
6
To interpret the term 'national origin' to embrace citizenship requirements would require us to conclude that Congress itself has repeatedly flouted its own declaration of policy. This Court cannot lightly find such a breach of faith. See Bate Refrigerating Co. v. Sulzberger, 157 U.S. 1, 38, 15 S.Ct. 508, 517, 39 L.Ed. 601 (1895). So far as federal employment is concerned, we think it plain that Congress has assumed that the ban on national-origin discrimination in § 701(b) did not affect the historical practice of requiring citizenship as a condition of employment. See First National Bank in St. Louis v. Missouri, 263 U.S. 640, 658, 44 S.Ct. 213, 215, 68 L.Ed. 486 (1924). And there is no reason to believe Congress intended the term 'national origin' in § 703 to have any broader scope. Cf. King v. Smith, 392 U.S. 309, 330—331, 88 S.Ct. 2128, 2140, 20 L.Ed.2d 1118 (1968).
7
Petitioners have suggested that the statutes and regulations discriminating against noncitizens in federal employment are unconstitutional under the Due Process Clause of the Fifth Amendment. We need not address that question here,4 for the issue presented in this case is not whether Congress has the power to discriminate against aliens in federal employment, but rather, whether Congress intended to prohibit such discrimination in private employment. Suffice it to say that we cannot conclude Congress would at once continue the practice of requiring citizenship as a condition of federal employment and, at the same time, prevent private employers from doing likewise. Interpreting § 703 as petitioners suggest would achieve the rather bizarre result of preventing Farah from insisting on United States citizenship as a condition of employment while the very agency charged with enforcement of Tit. VII would itself be required by Congress to place such a condition on its own personnel.
8
The District Court drew primary support for its holding from an interpretative guideline issued by the Equal Employment Opportunity Commission which provides:
9
'Because discrimination on the basis of citizenship has the effect of discriminating on the basis of national origin, a lawfully immigrated alien who is domiciled or residing in this country may not be discriminated against on the basis of his citizenship . . ..' 29 CFR § 1606.1(d) (1972).
10
Like the Court of Appeals, we have no occasion here to question the general validity of this guideline insofar as it can be read as an expression of the Commission's belief that there may be many situations where discrimination on the basis of citizenship would have the effect of discriminating on the basis of national origin. In some instances, for example, a citizenship requirement might be but one part of a wider scheme of unlawful national-origin discrimination. In other cases, an employer might use a citizenship test as a pretext to disguise what is in fact national-origin discrimination. Certainly Tit. VII prohibits discrimination on the basis of citizenship whenever it has the purpose or effect of discriminating on the basis of national origin. 'The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.' Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971).
11
It is equally clear, however, that these principles lend no support to petitioners in this case. There is no indication in the record that Farah's policy against employment of aliens had the purpose or effect of discriminating against persons of Mexican national origin.5 It is conceded that Farah accepts employees of Mexican origin, provided the individual concerned has become an American citizen. Indeed, the District Court found that persons of Mexican ancestry make up more than 96% of the employees at the company's San Antonio division, and 97% of those doing the work for which Mrs. Espinoza applied. While statistics such as these do not automatically shield an employer from a charge of unlawful discrimination, the plain fact of the matter is that Farah does not discriminate against persons of Mexican national origin with respect to employment in the job Mrs. Espinoza sought. She was denied employment, not because of the country of her origin, but because she had not yet achieved United States citizenship. In fact, the record shows that the worker hired in place of Mrs. Espinoza was a citizen with a Spanish surname.
12
The Commission's guideline may have significance for a wide range of situations, but not for a case such as this where its very premise—that discrimination on the basis of citizenship has the effect of discrimination on the basis of national origin—is not borne out.6 It is also significant to note that the Commission itself once held a different view as to the meaning of the phrase 'national origin.' When first confronted with the question, the Commission, through its General Counsel, said: "National origin' refers to the country from which the individual or his forebears came . . ., not to whether or not he is a United States citizen . . ..' EEOC General Counsel's Opinion Letter, 1 CCH Employment Prac. Guide 1220.20 (1967).7 The Commission's more recent interpretation of the statute in the guideline relied on by the District Court is no doubt entitled to great deference, Griggs v. Duke Power Co., supra, 401 U.S., at 434, 91 S.Ct. at 855; Phillips v. Martin Marietta Corp., 400 U.S. 542, 545, 91 S.Ct. 496, 498, 27 L.Ed. 613 (1971) (Marshall, J., concurring), but that deference must have limits where, as here, application of the guideline would be inconsistent with an obvious congressional intent not to reach the employment practice in question. Courts need not defer to an administrative construction of a statute where there are 'compelling indications that it is wrong.' Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969); see also Zuber v. Allen, 396 U.S. 168, 193, 90 S.Ct. 314, 328, 24 L.Ed.2d 345 (1969); Volkswagenwerk Aktiengesellschaft v. FMC, 390 U.S. 261, 272, 88 S.Ct. 929, 935, 19 L.Ed.2d 1090 (1968).
13
Finally, petitioners seek to draw support from the fact that Tit. VII protects all individuals from unlawful discrimination, whether or not they are citizens of the United States. We agree that aliens are protected from discrimination under the Act. That result may be derived not only from the use of the term 'any individual' in § 703, but also as a negative inference from the exemption in § 702, which provides that Tit. VII 'shall not apply to an employer with respect to the employment of aliens outside any State . . ..' 42 U.S.C. § 2000e-1. Title VII was clearly intended to apply with respect to the employment of aliens inside any State.8
14
The question posed in the present case, however, is not whether aliens are protected from illegal discrimination under the Act, but what kinds of discrimination the Act makes illegal. Certainly it would be unlawful for an employer to discriminate against aliens because of race, color, religion, sex, or national origin—for example, by hiring aliens of Anglo-Saxon background but refusing to hire those of Mexican or Spanish ancestry. Aliens are protected from illegal discrimination under the Act, but nothing in the Act makes it illegal to discriminate on the basis of citizenship or alienage.
15
We agree with the Court of Appeals that neither the language of the Act, nor its history, nor the specific facts of this case indicate that respondent has engaged in unlawful discrimination because of national origin.9
16
Affirmed.
17
Mr. Justice DOUGLAS, dissenting.
18
It is odd that the Court which holds that a State may not bar an alien from the practice of law1 or deny employment to aliens2 can read a federal statute that prohibits discrimination in employment on account of 'national origin' so as to permit discrimination against aliens.
19
Alienage results from one condition only: being born outside the United States. Those born within the country are citizens from birth. It could not be more clear that Rarah's policy of excluding aliens is de facto a policy of preferring those who were born in this country. Therefore the construction placed upon the 'national origin' provision is inconsistent with the construction this Court has placed upon the same Act's protections for persons denied employment on account of race or sex.
20
In connection with racial discrimination we have said that the Act prohibits 'practices, procedures, or tests neutral on their face, and even neutral in terms of intent,' if they create 'artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.' Griggs v. Duke Power Co., 401 U.S. 424, 430—431, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) (emphasis added). There we found that the employer could not use test or diploma requirements which on their face were racially neutral, when in fact those requirements had a de facto discriminatory result and the employer was unable to justify them as related to job performance. The tests involved in Griggs did not eliminate all blacks seeking employment, just as the citizenship requirement here does not eliminate all applicants of foreign origin. Respondent here explicitly conceded that the citizenship requirement is imposed without regard to the alien's qualifications for the job.
21
These petitioners against whom discrimination is charged are Chicanos. But whether brown, yellow, black, or white, the thrust of the Act is clear: alienage is no barrier to employment here. Griggs, as I understood it until today, extends its protective principles to all, not to blacks alone. Our cases on sex discrimination under the Act yield the same result as Griggs. See Phillips v. Martin Marietta Corp., 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613 (1971).
22
The construction placed upon the statute in the majority opinion is an extraordinary departure from prior cases, and it is opposed by the Equal Employment Opportunity Commission, the agency provided by law with the responsibility of enforcing the Act's protections. The Commission takes the only permissible position: that discrimination on the basis of alienage always has the effect of discrimination on the basis of national origin. Refusing to hire an individual because he is an alien 'is discrimination based on birth outside the United States and is thus discrimination based on national origin in violation of Title VII.' Brief for Commission as Amicus Curiae. The Commission's interpretation of the statute is entitled to great weight.
23
There is no legislative history to cast doubt on this construction.3 Indeed, any other construction flies in the face of the underlying congressional policy of removing 'artificial, arbitrary, and unnecessary barrier(s) to employment.' McDonnell Douglas Corp. v. Green, 411 U.S. 792, 806, 93 S.Ct. 1817, 1826, 36 L.Ed.2d 668 (1973).
24
Mrs. Espinoza is a permanent resident alien, married to an American citizen, and her children will be native-born American citizens. But that first generation has the greatest adjustments to make to their new country. Their unfamiliarity with America makes them the most vulnerable to exploitation and discriminatory treatment. They, of course, have the same obligation as American citizens to pay taxes, and they are subject to the draft on the same basis. But they have never received equal treatment in the job market. Writing of the immigrants of the late 1800's, Oscar Handlin has said:
25
'For want of alternative, the immigrants took the lowest places in the ranks of industry. They suffered in consequence from the poor pay and miserable working conditions characteristic of the sweatshops and the homework in the garment trades and in cigar making. But they were undoubtedly better off than the Irish and Germans of the 1840's for whom there had been no place at all.' The Newcomers 24 (1959).
26
The majority decides today that in passing sweeping legislation guaranteeing equal job opportunities, the Congress intended to help only the immigrant's children, excluding those 'for whom there (is) no place at all.' I cannot impute that niggardly an intent to Congress.
1
Section 706(e), 42 U.S.C. § 2000e—5(e).
2
See, e.g., Minnesota State Act Against Discrimination, Minn.Stat. § 363.01, subd. 6 (1971), defining 'national origin' as 'the place of birth of an individual or of any of his lineal ancestors.'
Several States have statutes making it illegal to discriminate on the basis of national origin, and many of these statutes have apparently been interpreted by the appropriate state enforcement agency as not barring citizenship requirements. For example, the New York Human Rights Law provides that it is an unlawful discriminatory practice to refuse to hire any individual because of his or her origin and additionally provides that it shall be unlawful for an employer to make any pre-employment inquiry 'which expresses directly or indirectly, any limitation, specification or discrimination as to . . . national origin . . ..' N.Y. Executive Law § 296 (McKinney's Consol. Laws, c. 18, 1972). The New York State Commission Against Discrimination has ruled that an employer may lawfully ask a job applicant whether he or she is a citizen of the United States. See 3 CCH Employment Prac. Guide 26,051, p. 8899.
While these interpretations of state statutes do not control our construction of federal law, we think them indicative of a general understanding that the term 'national origin' does not embrace a requirement of United States citizenship.
3
Petitioners argue that it is unreasonable to attribute any great significance to these provisions in determining congressional intent because the barrier to employment of noncitizens has been tucked away in appropriations bills rather than expressed in a more affirmative fashion. We disagree. Indeed, the fact that Congress has occasionally enacted exceptions to the general barrier indicates to us that Congress was well aware of what it was doing. See, e.g., Pub.L. 92—204, § 703, 85 Stat. 726 (Dept. of Defense); Pub.L. 91—382, 84 Stat. 823 (Library of Congress).
4
We left this question undecided in Sugarman v. Dougall, 413 U.S. 634, 646 n. 12, 93 S.Ct. 2842, 2855, 37 L.Ed.2d 853 (1973). See Jalil v. Hampton, 148 U.S.App.D.C. 415, 460 F.2d 923, cert. denied, 409 U.S. 887, 93 S.Ct. 112, 34 L.Ed.2d 144 (1972); Mow Sun Wong v. Hampton, 333 F.Supp. 527 (ND Cal.1971).
5
There is no suggestion, for example, that the company refused to hire aliens of Mexican or Spanish-speaking background while hiring those of other national origins. Respondent's president informed the EEOC's Regional Director investigating the charge that once in its history the company had made a single exception to its policy against hiring aliens, but the nationality of the individual concerned is not revealed in the record. While the company asks job applicants whether they are United States citizens, it makes no inquiry as to their national origin.
6
It is suggested that a refusal to hire an alien always disadvantages that person because of the country of his birth. A person born in the United States, the argument goes, automatically obtains citizenship at birth, while those born elsewhere can acquire citizenship only through a long and sometimes difficult process. See 8 U.S.C. §§ 1423(1), 1423(2), 1427(a), and 1430. The answer to this argument is that it is not the employer who places the burdens of naturalization on those born outside the country, but Congress itself, through laws enacted pursuant to its constitutional power '(t)o establish an uniform Rule of Naturalization.' U.S.Const., Art. 1, § 8, cl. 4.
Petitioners' reliance on Phillips v. Martin Marietta Corp., 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613 (1971), is misplaced for similar reasons. In Phillips we held it unlawful under § 703 to have 'one hiring policy for § 2000e—1. Title VII was clearly intended Id., at 544, 91 S.Ct., at 498. Farah, however, does not have a different policy for the foreign born than for those born in the United States. It requires of all that they be citizens of the United States.
7
The Opinion Letter was addressed to the question whether it was lawful to discriminate against nonresident aliens in favor of citizens and resident aliens, and expressly reserved any decision 'regarding discrimination in favor of United States citizens and against resident aliens.' Nevertheless, the definition of 'national origin' set forth in the Letter is inconsistent with that suggested by petitioners here.
8
'Title VII of the Civil Rights Act of 1964 protects all individuals, both citizens and noncitizens, domiciled or residing in the United States, against discrimination on the basis of race, color, religion, sex, or national origin.' 29 CFR § 1606.1(c) (1972).
9
Petitioners argue that respondent's policy of discriminating against aliens is prohibited by 42 U.S.C. § 1981, which provides: 'All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens . . ..' This issue was neither raised before the courts below nor presented in the petition for a writ of certiorari. Accordingly we express no views thereon.
1
In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973).
2
Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973).
3
The only legislative history the majority points to is Congressman Roosevelt's definition of 'national origin': 'It means the country from which you or your forebears came. . . . You may come from Poland, Czechoslovakia, England, France, or any other country.' Supra, at 89. But that only makes clear what petitioners here argue—that Mrs. Espinoza cannot be discriminated against because she comes from a foreign country. The majority's mention of the deletion of the word 'ancestry,' ibid., is certainly irrelevant. Obviously 'national origin' comprehends 'ancestry,' but as Congressman Roosevelt pointed out it means more—not only where one's forebears were born, but where one himself and born.
| 12
|
414 U.S. 51
94 S.Ct. 303
38 L.Ed.2d 260
Stanley T. KUSPER, Jr., et al., Appellants,v.Harriet G. PONTIKES.
No. 71—1631.
Argued Oct. 9, 1973.
Decided Nov. 19, 1973.
Syllabus
Appellee, a qualified Chicago voter who voted in a February 1971 Republican primary involving nominations for municipal officers, challenges the constitutionality of § 7—43(d) of the Illinois Election Code, under which she was barred from voting in a March 1972 Democratic primary. Section 7—43(d) prohibits a person from voting in the primary election of a political party if he has voted in the primary of any other party within the preceding 23 months, an exception being made if the primary is of a 'political party within a city . . . only.' Appellants contended, inter alia, that the three-judge District Court, which held the three-judge District should have abstained because the state courts might have found the statutory exception applicable to the 1971 primary. Held:
1. The District Court did not err in declining to abstain from making a constitutional ruling in view of an Illinois Supreme Court adjudication confining the statutory exception to political parties entitled to nominate only for city offices and making it inapplicable to the Democratic and Republican parties. Appellee is thus not relieved of the bar of the 23-month rule. Pp. 53—56.
2. Section 7—43(d) unconstitutionally infringes upon the right of free political association protected by the First and Fourteenth Amendments by 'locking' the voter in his pre-existing party affiliation for a substantial period of time following his participation in any primary election, and the State's legitimate interest in preventing party 'raiding' cannot justify the substantial restraint of the 23-month rule. Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1, distinguished. Pp. 56—61.
345 F.Supp. 1104, affirmed.
Aldus S. Mitchell, Jr., Chicago, Ill., for appellants.
Ray Jeffrey Cohen, Chicago, Ill., for appellee.
Mr. Justice STEWART delivered the opinion of the Court.
1
Under § 7—43(d) of the Illinois Election Code, a person is prohibited from voting in the primary election of a political party if he has voted in the primary of any other party within the preceding 23 months.1 Appellee, Harriet G. Pontikes, is a qualified Chicago voter who voted in a Republican primary in February 1971;2 she wanted to vote in a March 1972 Democratic primary, but was barred from doing so by this 23-month rule.3 She filed a complaint for declaratory and injunctive relief in the United States District Court for the Northern District of Illinois, alleging that § 7—43(d) unconstitutionally abridged her freedom to associate with the political party of her choice by depriving her of the opportunity to vote in the Democratic primary. A statutory three-judge court was convened,4 and held, one judge dissenting, that the 23-month rule is unconstitutional. 345 F.Supp. 1104.5 We noted probable judiction of this appeal from that judgment. 411 U.S. 915, 93 S.Ct. 1540, 36 L.Ed.2d 306.6
2
* At the outset, we are met by the appellants'7 argument that the District Court should have abstained from adjudicating the constitutionality of the 23-month rule. They base this argument upon that portion of § 7—43(d) which provides that:
3
'(P)articipation by a primary elector in a primary of a political party which, under the provisions of Section 7—2 of this Article, is a political party within a city, village or incorporated town or town only and entitled hereunder to make nominations of candidates for city, village or incorporated town or town offices only, and for no other office or offices, shall not disqualify such primary elector from participating in other primaries of his party . . ..' Ill.Rev.Stat., c. 46, § 7—43(d).
4
The appellants note that the February 1971 Republican primary election in which Mrs. Pontikes voted involved only nominations for the offices of mayor, city clerk, and city treasurer of the city of Chicago. They claim that the state courts might interpret this 1971 primary to have been one of a 'political party within a city . . . only,' and thus outside the purview of the 23-month rule.
5
As we stated in Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 509, 92 S.Ct. 1749, 1756, 32 L.Ed.2d 257:
6
'Abstention is a 'judge-made doctrine . . ., first fashioned in 1941 in Railroad Commission v. Pullman Co., 312 U.S. 496 (61 S.Ct. 643, 85 L.Ed. 971), (that) sanctions . . . escape (from immediate decision) only in narrowly limited 'special circumstances,' Propper v. Clark, 337 U.S. 472, 492 (69 S.Ct. 1333, 1344, 93 L.Ed. 1480),' Zwickler v. Koota, 389 U.S. 241, 248 (88 S.Ct. 391, 395, 19 L.Ed.2d 444) (1967), justifying 'the delay and expense to which application of the abstention doctrine inevitably gives rise.' England v. (Louisiana State Board of) Medical Examiners, 375 U.S. 411, 418 (84 S.Ct. 461, 466, 11 L.Ed.2d 440) (1964).'8
7
The paradigm of the 'special circumstances' that make abstention appropriate is a case where the challenged state statute is susceptible of a construction by the state judiciary that would avoid or modify the necessity of reaching a federal constitutional question. Zwickler v. Koota, 389 U.S. 241, 249, 88 S.Ct. 391, 396, 19 L.Ed.2d 444; Harrison v. NAACP, 360 U.S. 167, 176—177, 79 S.Ct. 1025, 1030, 3 L.Ed.2d 1152. Abstention in such circumstances not only serves to minimize federal-state friction, but also avoids premature and perhaps unnecessary constitutional adjudication. Harman v. Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 1181, 14 L.Ed.2d 50. But the doctrine of abstention 'contemplates that deference to state court adjudication only be made where the issue of state law is uncertain.' Ibid., 85 S.Ct., at 1182. Where, on the other hand, it cannot be fairly concluded that the underlying state statute is susceptible of an interpretation that might avoid the necessity for constitutional adjudication, abstention would amount to shirking the solemn responsibility of the federal courts to 'guard, enforce, and protect every right granted or secured by the constitution of the United States,' Robb v. Connolly, 111 U.S. 624, 637, 4 S.Ct. 544, 551, 28 L.Ed. 542.
8
We think that the Illinois statute involved in this case is not fairly susceptible of a reading that would avoid the necessity of constitutional adjudication. The appellants' argument—that the February 1971 Chicago Republican primary might be considered that of a 'political party within a city . . . only'—is foreclosed by the decision of the Illinois Supreme Court in Faherty v. Board of Election Comm'rs, 5 Ill.2d 519, 126 N.E.2d 235. That decision made it clear that the kind of 'local' primaries that are outside the scope of § 7—43(d) are simply those of "purely city . . . political part(ies)"—those parties entitled, under § 7—2 of the Illinois Election Code, to make nominations for city offices only. Id., at 524, 126 N.E.2d, at 238.9
9
Since both the Democratic and Republican parties are, of course, entitled in Illinois to make nominations not only for city offices, but for congressional, state, and county offices as well, the Faherty court held that they were not within the statutory definition of 'city' parties. It follows then, that despite the fact that the February 1971 Republican primary in which the appellee voted involved only nominations for offices within the city of Chicago, Mrs. Pontikes was still clearly barred by the 23-month rule from voting in the March 1972 Democratic primary.10 The District Court was thus wholly justified in declining to abstain from deciding the constitutional validity of the 23-month rule, and it is to that issue that we now turn.
II
10
There can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of 'orderly group activity' protected by the First and Fourteenth Amendments. NAACP v. Button, 371 U.S. 415, 430, 8o S.Ct. 328, 336, 9 L.Ed.2d 405; Bates v. Little Rock, 361 U.S. 516, 522—523, 80 S.Ct. 412, 416, 4 L.Ed.2d 480; NAACP v. Alabama, 357 U.S. 449, 460—461, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488. The right to associate with the political party of one's choice is an integral part of this basic constitutional freedom. Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24. Cf. United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508.
11
To be sure, administration of the electoral process is a matter that the Constitution largely entrusts to the States.11 But, in exercising their powers of supervision over elections and in setting qualifications for voters, the States may not infringe upon basic constitutional protections. See, e.g., Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274; Kramer v. Union School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583; Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675. As the Court made clear in Williams v. Rhodes, supra, unduly restrictive state election laws may so impinge upon freedom of association as to run afoul of the First and Fourteenth Amendments. 393 U.S., at 30, 89 S.Ct., at 10. And see id., at 35 41, 89 S.Ct., at 12—15 (Douglas, J., concurring); id., at 41—48, 89 S.Ct., at 15—19 (Harlan, J., concurring).
12
There can be little doubt that § 7—43(d) substantially restricts an Illinois voter's freedom to change his political party affiliation. One who wishes to change his party registration must wait almost two years before his choice will be given effect. Moreover, he is forced to forgo participation in any primary elections occurring within the statutory 23-month hiatus. The effect of the Illinois statute is thus to 'lock' the voter into his pre-existing party affiliation for a substantial period of time following participation in any primary election, and each succeeding primary vote extends this period of confinement.
13
The 23-month rule does not, of course, deprive those in the appellee's position of all opportunities to associate with the political party of their choice. But neither did the state attempts to compel disclosure of NAACP membership lists in Bates v. Little Rock and NAACP v. Alabama work a total restriction upon the freedom of the organization's members to associate with each other. Rather, the Court found in those cases that the statutes under attack constituted a 'substantial restraint'12 and a 'significant interference'13 with the exercise of the constitutionally protected right of free association.
14
The same is true of § 7—43(d). While the Illinois statute did not absolutely preclude Mrs. Pontikes from associating with the Democratic party, it did absolutely preclude her from voting in that party's 1972 primary election. Under our political system, a basic function of a political party is to select the candidates for public office to be offered to the voters at general elections. A prime objective of most voters in associating themselves with a particular party must surely be to gain a voice in that selection process. By preventing the appellee from participating at all in Democratic primary elections during the statutory period, the Illinois statute deprived her of any voice in choosing the party's candidates, and thus substantially abridged her ability to associate effectively with the party of her choice.
III
15
As our past decisions have made clear, a significant encroachment upon associational freedom cannot be justified upon a mere showing of a legitimate state interest. Bates v. Little Rock, supra, 361 U.S., at 524, 80 S.Ct., at 417; NAACP v. Alabama, supra, 357 U.S., at 463, 78 S.Ct., at 1172. For even when pursuing a legitimate interest, a State may not choose means that unnecessarily restrict constitutionally protected liberty. Dunn v. Blumstein, 405 U.S., at 343, 92 S.Ct., at 1003. 'Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.' NAACP v. Button, 371 U.S., at 438, 83 S.Ct., at 340. If the State has open to it a less drastic way of satisfying its legitimate interests, it may not choose a legislative scheme that broadly stifles the exercise of fundamental personal liberties. Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231.
16
The appellants here urge that the 23-month rule serves the purpose of preventing 'raiding'—the practice whereby voters in sympathy with one party vote in another's primary in order to distort that primary's results. It is said that our decision in Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1, recognized the state interest in inhibiting 'raiding,' and upheld the constitutional validity of legislation restricting a voter's freedom to change parties, enacted as a means of serving that interest.
17
It is true, of course, that the Court found no constitutional infirmity in the New York delayed-enrollment statute14 under review in Rosario. That law required a voter to enroll in the party of his choice at least 30 days before a general election in order to be eligible to vote in the next party primary, and thus prevented a change in party affiliation during the approximately 11 months between the deadline and the primary election.15 It is also true that the Court recognized in Rosario that a State may have a legitimate interest in seeking to curtail 'raiding,' since that practice may affect the integrity of the electoral process. Id., at 761, 93 S.Ct., at 1251. But it does not follow from Rosario that the Illinois statutory procedures also pass muster under the Fourteenth Amendment, for the Illinois Election Code differs from the New York delayed-enrollment law in a number of important respects.
18
The New York statute at issue in Rosario did not prevent voters from participating in the party primary of their choice; it merely imposed a time limit on enrollment. Under the New York law, a person who wanted to vote in a different party primary every year was not precluded from doing so; he had only to meet the requirement of declaring his party allegiance 30 days before the preceding general election. The New York law did not have the consequence of 'locking' a voter into an unwanted party affiliation from one election to the next; any such confinement was merely the result of the elector's voluntary failure to take timely measures to enroll. Id., at 757—759, 93 S.Ct., at 1249. The Court therefore concluded that the New York delayed-enrollment law did not prevent voters 'from associating with the political party of their choice.' Id., at 762, 93 S.Ct., at 1252. And see id., at 758 and n. 8, 93 S.Ct., at 1250.
19
The basic difference in the Illinois law is obvious. Since the appellee here voted in the 1971 Republican primary, the state law absolutely precluded her from participating in the 1972 Democratic primary. Unlike the petitioners in Rosario, whose disenfranchisement was caused by their own failure to take timely measures to enroll, there was no action that Mrs. Pontikes could have taken to make herself eligible to vote in the 1972 Democratic primary.16 The Illinois law, unlike that of New York, thus 'locks' voters into a pre-existing party affiliation from one primary to the next, and the only way to break the 'lock' is to forgo voting in any primary for a period of almost two years.
20
In other words, while the Court held in Rosario that the New York delayedenrollment scheme did not prevent voters from exercising their constitutional freedom to associate with the political party of their choice, the Illinois 23-month rule clearly does just that. It follows that the legitimate interest of Illinois in preventing 'raiding' cannot justify the device it has chosen to effect its goal. For that device conspicuously infringes upon basic constitutional liberty. Far from supporting the validity of the Illinois legislation, the Court's decision in Rosario suggests that the asserted state interest can be attained by 'less drastic means,' which do not unnecessarily burden the exercise of constitutionally protected activity.
21
We conclude, therefore, that § 7—43(d) of the Illinois Election Code unconstitutionally infringes upon the right of free political association protected by the First and Fourteenth Amendments. The judgment of the District Court is accordingly affirmed.
22
Affirmed.
23
THE CHIEF JUSTICE concurs in the result.
24
Mr. Justice BLACKMUN, dissenting.
25
The deprivation Mrs. Pontikes claims to have suffered, and which the Court today enshrouds with the mantle of unconstitutionality, is that she has been restrained by the Illinois statute from voting in one primary election of one party in the relatively minor context of a personal desire to undo an established party affiliation. Apart from this meager restraint, appellee Pontikes is fully free to associate with the party of her varying choice. She is, and has been, completely free to vote as she chooses in any general election. And she was free to vote in the primary of the party with which she had affiliated and voted in the preceding primary.
26
It is important, I think—and deserving of repeated emphasis to note that this very limited statutory restriction on the appellee's exercise of her franchise is triggered solely by her personal and voluntary decision. This being so, the Court's conclusion seems to me to dilute an important First Amendment concept the vitality of which, in the long run, necessarily will suffer from strained and artificial applications of this kind. The mere fact that a state statute lightly brushes upon the right to vote and the right of association, important as these are, should not automatically result in invalidation. Prior case law does not require a conclusion of invalidity where, as here, the intrusion is so minor. See McDonald v. Board of Election Comm'rs, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969); Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973).
27
In nearly all the voting cases relied upon by the Court and by the appellee, the Court was faced with situations where the disqualification amounted to a direct disenfranchisement or a vote dilution suffered by a discrete class whose impediment, as so imposed, was the result of an involuntary condition not directly tied to the franchise. See, for example, Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (poll tax and wealth); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (location); Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969) (property ownership); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965) (military status). Cf. Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) (residence). In each of these cases there was a direct impairment of the ability of the affected class, without voluntary action, to participate in the electoral process. The level of intrusion was markedly significant.
28
What is before us here is a fairly complex statutory structure designed by Illinois to protect the integrity of the ballot box and the party system. The interest asserted by the State is clearly a legitimate one. Rosario v. Rockefeller, 410 U.S., at 761, 93 S.Ct., at 1251; Dunn v. Blumstein, 405 U.S., at 345, 92 S.Ct., at 1004; Bullock v. Carter, 405 U.S. 134, 145, 92 S.Ct. 849, 857, 31 L.Ed.2d 92 (1972). And, it seems to me, means of the kind Illinois has employed are reasonably related to the fulfillment of that interest. The extent to which organized party raiding can disrupt, with unfortunate results, the orderly process of party primary balloting is, perhaps, open to reasonable differences of opinion. Indeed, in this case the parties have joined issue as to the precise degree of impact this practice has had in recent Illinois elections. Regardless of which factual version is to be credited, the legitimacy of the interest is unquestioned. With respect to a State like Illinois, where party regimentation on an extensive scale is legendary, the Court, in my view, should move cautiously when it is tempted to pass judgment in terms of assuming that there is a better or a less drastic means by which the State is able to achieve its admittedly laudable and lawful purpose.
29
By resorting to a standard of rigid and strict review, and by indulging in what I fear is a departure from the appropriately deferential approach in Rosario, the Court places itself in the position of failing to give the States the elbow room they deserve and must possess if they are to formulate solutions for the many and particular problems confronting them that are associated with the preservation of the integrity of the franchise. Cf. Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970); Burns v. Fortson, 410 U.S. 686, 687, 93 S.Ct. 1209, 1210, 35 L.Ed.2d 633 (1973) (concurring opinion). Surely, at some point, the important interest of the State in protecting its entire electoral system outweighs a minor and incidental burden that happens to fall on a few uniquely situated citizens.
30
The Illinois Legislature has determined that a rule precluding voting in the primaries of different parties in successive annual elections is a desirable and necessary means by which to preserve an otherwise vulnerable structure. In Rosario, 410 U.S., at 762, 93 S.Ct., at 1252, we applied a 'particularized legitimate purpose' standard to a similarly directed scheme and upheld the New York statute. As Mr. Justice REHNQUIST points out in his dissent, post, at 68, the degree of disenfranchisement resulting from the New York provision is potentially as great as, if not greater than, the Illinois provision challenged here. That case and this one, taken together, therefore, effect incongruous results. Not only is the actual disenfranchisement in this case no greater than that in Rosario, but the Illinois provision has a more rational relation to its purpose than does the New York provision. The New York statute specified an arbitrary time period prior to which it is assumed that organized party switching for raiding purposes will not occur. In contrast, Illinois chose not to employ a flat time limit that is by nature speculative and arbitrary; instead, it tied its disqualification directly to a significant event, namely, a vote in another party's last primary. Seemingly, the 23-month period was chosen so that the limitation would not extend back beyond the most recent primary. When primaries are held annually, the 23-month period amounts to no more than a one-year limitation, and in this respect the statute is drawn as narrowly as can be expected for a system that is tied to a prior primary vote rather than a designated time period. By tying the cut-off to a primary, the Illinois scheme seems directly designed to succeed in preventing organized crossovers, for it is highly unlikely that any significant number of party regulars would ever be instructed not to vote at all in one primary in order to subvert the next one that will not be held for another year.
31
Mr. Justice REHNQUIST also observes that the Illinois system does have the side effect of creating a per se exclusion for a few voters. It is this factor, apparently, that has caused the Court to seek to distinguish Rosario. In New York the disqualification occasioned by the time limit will have its impact, more often than not, upon those who have not been diligent. This, indeed, was the very situation in Rosario. The Illinois provision, on the other hand, affects only party switchers. And they clearly are the group most amenable to organized raiding. I do not agree that any marginal difference that may exist between the New York rule and the Illinois rule must have the effect of transforming a 'legitimate time limitation,' Rosario, 410 U.S., at 762, 93 S.Ct., at 1252, into an unconstitutional denial of freedom of association. This incongruity underscores what I believe to be the potential mischief that results from an easy and all-too-ready resort to a strict-scrutiny standard in election cases of this kind. To be sure, the line between constitutionality and unconstitutionality must be drawn somewhere. But I would not draw it short of what Illinois has done here.
32
Mr. Justice REHNQUIST, with whom Mr. Justice BLACKMUN joins, dissenting.
33
The Court decides that the Illinois rule disqualifying a person from voting in the primary of one political party if he has voted in the primary of another political party during the preceding 23 months imposes an impermissible burden on Illinois voters' exercise of their right of free political association. In so doing it distinguishes Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973), decided last Term. I find Rosario more difficult to distinguish than does the Court.
34
Section 7—43 of the Illinois Election Code provides that every person eligible to register to vote is entitled to vote at primary elections; it goes on to set out a number of exceptions to that general entitlement, including both persons disqualified under the 23-month rule challenged in this case and persons disqualified because they refuse to declare a party affiliation.1 Section 7—44 requires a primary voter to declare his party affiliation to the primary judges at the polling place; it further provides that, if challenged, the voter must establish his right to vote.2 Section 7 45 requires a challenged voter to supply an affidavit, in a statutorily prescribed form, to establish that he is entitled to vote under § 7—43. The affidavit states, inter alia, that the affiant has not voted in the primary of any other political party within the forbidden 23-month period.
35
The Illinois system of primary elections, unlike the New York system before the Court in Rosario, does not require a voter to have enrolled as a member of a party months in advance in order to be eligible to vote in that party's primary. Illinois provides instead for a declaration of party affiliation at the primary polling place. And Illinois, not surprisingly in view of its different primary system, has chosen another way to protect its interest in preventing 'raiding' than has New York. It is true, as the Court makes clear, that the Illinois rule requires a voter affiliated with one party to sit out primaries during a period of 23 months in order to effectuate a switch in affiliation to another party and qualify to vote in its primaries. In this respect Illinois' rule imposes a greater burden on its voters' associational freedom than does New York's, since in New York a sufficiently prescient and diligent voter can vote in a different party's primary every year. Of course, it cannot be said whether the Illinois appellee here underwent her change in party loyalty in time, and would have taken the necessary steps to enroll, had Illinois had New York's rule.
36
On the other hand, Illinois' rule imposes a lesser burden on its previously unaffiliated voters than does New York's. Indeed, it imposes a lesser burden on any voter who has, for whatever reason, failed to vote in the primary of another party within the past 23 months. Such voters are not required to foresee their interest in the primary by eight or more months, as are New York voters under the rule upheld in Rosario. As a practical matter, a voter is not required to swear that he has not participated in the primary of another party as a condition of his right to vote unless he is challenged. In these respects the Illinois rule is more closely tailored to the State's interest in preventing 'raiding' than is the New York rule. Voters who have recently demonstrated loyalty to another party by voting in its primary, are more likely than those who have not to engage in 'raiding.' Moreover, challenges for violations of the 23-month rule are not likely to be made where no serious danger of 'raiding' is perceived.
37
Both the Illinois rule struck down today and the New York rule upheld in Rosario restrict voters' freedom to associate with the political party of their choice. In both instances the State has sought to justify the restrictions as promoting the State's legitimate interest in preventing 'raiding.' While neither rule is perfectly fashioned to accomplish that and no other result, I cannot conclude that the Illinois rule imposes a significantly greater burden on the exercise of associational freedom than does the New York rule we upheld last Term in Rosario.
1
Ill.Rev.Stat., c. 46, § 7—43 provides, in pertinent part:
'No person shall be entitled to vote at a primary:
'(d) If he has voted at a primary held under this Article 7 of another political party within a period of 23 calendar months next preceding the calendar month in which such primary is held: Provided, participation by a primary elector in a primary of a political party which, under the provisions of Section 7—2 of this Article, is a political party within a city, village or incorporated town or town only and entitled hereunder to make nominations of candidates for city, village or incorporated town or town offices only, and for no other office or offices, shall not disqualify such primary elector from participating in other primaries of his party: And, provided, that no qualified voter shall be precluded from participating in the primary of any purely city, village or incorporated town or town political party under the provisions of Section 7—2 of this Article by reason of such voter having voted at the primary of another political party within a period of 23 calendar months next preceding the calendar month in which he seeks to participate in held.'
2
The Republican primary in which the appellee voted involved nominations for the offices of mayor, city clerk, and city treasurer of Chicago.
3
The March 1972 Democratic primary involved, inter alia, nominations for Governor, United States Senator, United States Representative, state legislators, county officers, and delegates to the National Convention of the Democratic Party.
4
28 U.S.C. §§ 2281, 2284.
5
The District Court upheld the constitutional validity of Ill.Rev.Stat., c. 46, §§ 7—43(a) and 7—44, which require a declaration of party affiliation as a prerequisite to voting in a primary election. This holding, which was unanimous, has not been appealed.
6
This case was consolidated in the District Court with a similar action brought by two other voters against the county clerk of Lake County, Illinois. The defendant in that case has not appealed from the District Court's judgment.
7
The appellants in this case are members of the Chicago Board of Election Commissioners, who are responsible for administering the provisions of the Illinois Election Code within the city. See Ill.Rev.Stat., c. 46, § 6—21 et seq.
8
Bracketed material in original.
9
Ill.Rev.Stat., c. 46, § 7—2 defines the term 'political party' under Illinois law, and states the offices for which various types of political parties are entitled to make nominations. Under § 7—2, a party that garners more than 5% of the entire vote cast at a statewide general election is defined as a 'political party within the State,' and is entitled to make nominations for all state and county offices in the next succeeding primary. Similarly, a party that polls more than 5% of the entire vote cast at a municipal general election is defined as a 'political party within . . . (a) city,' and is entitled to make nominations for city elective positions at the next succeeding primary.
Under § 7—43(d), a 'political party within a city . . . only' is one that has qualified under § 7—2 to make only city nominations; in other words, a party that has polled more than 5% of the vote at the preceding municipal general election, but less than 5% of the vote at the preceding state-wide general election. Obviously, the Republican party, in whose 1971 Chicago primary the appellee voted, does not fit within this description.
10
It is true, as the appellants argue, that the plaintiff in Faherty v. Board of Election Comm'rs, 5 Ill.2d 519, 126 N.E.2d 235, wished to vote in a Chicago Democratic primary after having voted, within the past year, in a statewide Republican primary; thus, the factual setting in Faherty was precisely the converse of that here. This, however, is a distinction without a difference. The holding of Faherty was that Republican and Democratic primaries, even those involving only citywide offices, were not primaries of political parties 'within a city . . . only.' See n. 9, supra. Thus, these primaries are fully within the purview of the § 7—43(d) 23-month rule.
11
See Art. I, § 2; Art. II, § 1. With respect to elections to federal office, however, the Court has held that Congress has power to establish voter qualifications. Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272.
12
NAACP v. Alabama, 357 U.S. 449, 462, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488.
13
Bates v. Little Rock, 361 U.S. 516, 523, 80 S.Ct. 412, 416, 4 L.Ed.2d 480.
14
N.Y. Election Law § 186, McKinney's Consol.Laws, c. 100.
15
New York presidential primaries are held in June; thus, in presidential election years, the cutoff date prescribed by § 186 occurs about eight months before the primary. Rosario v. Rockefeller, 410 U.S. 752, 760, 93 S.Ct. 1245, 1251, 36 L.Ed.2d 1.
16
She could, of course, have made herself eligible to vote in the 1972 Democratic primary by forgoing participation in the 1971 Republican primary. But such a course would have prevented her from associating with the party of her choice in 1971, and thus in no way would have obviated the constitutional deficiencies inherent in the Illinois law.
1
Ill.Rev.Stat., c. 46, § 7—43, provides:
'Every person having resided in this State 6 months and in the precinct 30 days next preceding any primary therein who shall be a citizen of the United States above the age of 21 years, shall be entitled to vote at such primary.
'The following regulations shall be applicable to primaries:
'No person shall be entitled to vote at a primary:
'(a) Unless he declares his party affiliations as required by this Article;
'(b) Who shall have signed the petition for nomination of a candidate of any party with which he does not affiliate, when such candidate is to be voted for at the primary;
'(c) Who shall have signed the nominating papers of an independent candidate for any office for which office candidates for nomination are to be voted for at such primary; or
'(d) If he has voted at a primary held under this Article 7 of another political party within a period of 23 calendar months next preceding the calendar month is which such primary is held: Provided, participation by a primary elector in a primary of a political party which, under the provisions of Section 7—2 of this Article, is a political party within a city, village or incorporated town or town only and entitled hereunder to make nominations of candidates for city, village or incorporated town or town offices only, and for no other office or offices, shall not disqualify such primary elector from participating in other primaries of his party: And, provided, that no qualified voter shall be precluded from participating in the primary of any purely city, village or incorporated town or town political party under the provisions of Section 7—2 of this Article by reason of such voter having voted at the primary of another political party within a period of 23 calendar months next preceding the calendar month (in which such primary) in which he seeks to participate is held.
'(e) In cities, villages and incorporated towns having a board of election commissioners only voters registered as provided by Article 6 of this Act shall be entitled to vote at such primary.
'(f) No person shall be entitled to vote at a primary unless he is registered under the provisions of Article 4, 5 or 6 of this Act, when his registration is required by any of said Articles to entitle him to vote at the election with reference to which the primary is held.'
2
Ill.Rev.Stat., c. 46, § 7—44 provides: 'Any person desiring to vote at a primary shall state his name, residence and party affiliation to the primary judges, one of whom shall thereupon announce the same in a distinct tone of voice, sufficiently loud to be heard by all persons in the polling place. When article 4, 5 or 6 is applicable the Certificate of Registered Voter therein prescribed shall be made and signed and the official poll record shall be made. If the person desiring to vote is not challenged, one of the primary judges shall give to him one, and only one, primary ballot of the political party with which he declares himself affiliated, on the back of which such primary judge shall endorse his initials in such manner that they may be seen when the primary ballot is properly folded. If the person desiring to vote is challenged he shall not receive a primary ballot from the primary judges until he shall have established his right to vote as hereinafter provided. No person who refuses to state his party affiliation shall be allowed to vote at a primary.'
| 12
|
414 U.S. 100
94 S.Ct. 313
38 L.Ed.2d 298
Mary Louise Green PASCHALL et al., Appellants,v.CHRISTIE-STEWART, INC., et al.
No. 72—922.
Argued Oct. 16, 1973.
Decided Nov. 19, 1973.
Rehearing Denied Jan. 7, 1974.
See 414 U.S. 1138, 94 S.Ct. 884.
William J. Legg, Oklahoma City, Okl., for appellants.
Joe S. Rolston, Ill, Oklahoma City, Okl., for appellees.
PER CURIAM.
1
In this case we noted probable jurisdiction, 411 U.S. 915, 93 S.Ct. 1543, 36 L.Ed.2d 306 (1973), in order to consider whether the published notice provisions of the then-applicable Oklahoma tax-sale statutes, Okla.Stat., Tit. 68, §§ 382 and 432b (1951), comported with due process of law guaranteed by the Fourteenth Amendment.1 See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). This was the only issue addressed by the appellate courts of Oklahoma2 and by the parties in the Jurisdictional Statement and the papers responsive thereto filed with this Court.
2
After oral argument and upon our review of the record, it now appears that there might have been an independent and, possibly, an unchallenged ground for the judgment of the state trial court, viz., the running of the Oklahoma period of limitation for adverse claims.3 If that should prove to be the case, any decision by this Court would be advisory and beyond our jurisdiction. Murdock v. City of Memphis, 87 U.S. 590, 636, 20 Wall. 590, 636, 22 L.Ed. 429, 444 (1875).
3
The judgment of the Supreme Court of Oklahoma is therefore vacated and the case is remanded to that court to consider whether the appellants preserved the right to challenge the trial court's determination that the State's statute of limitations is a bar to their mineral rights claim, and, if so, whether, under state law, the statute of limitations independently bars appellants' claim, irrespective of the constitutional adequacy of the tax-sale notice provisions of §§ 382 and 432b.4 Cf. Walker v. Hoffman, 405 P.2d 57 (Okl.1965).
4
It is so ordered.
5
Judgment vacated and case remanded.
6
Mr. Justice DOUGLAS, with whom Mr. Justice STEWART concurs, dissenting.
7
Appellants claim title to the mineral interests here in controversy through deeds recording the severed interests on the books of the Seminole County Clerk in 1926 and 1930. In 1952 the owner of the separate surface interest failed to pay ad valorem taxes and the county satisfied its tax claim by selling the entire fee to the appellees after 'notice' through newspaper publication. The taxsale statutes did not require that notice be given to the mineral owners by way of personal service, mailing, or posting, and no such notice was attempted. In an action to quiet title appellants contended that, as record owners of the mineral rights, they were never given constitutionally sufficient notice of the tax delinquency proceedings and as to them the proceedings were invalid. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950).
8
The trial court, finding the tax-sale proceedings valid and finding appellants' attack on the tax-sale deed barred by the statute of limitations, quieted title in appellees. The Oklahoma Court of Appeals reversed that judgment but was itself reversed by the Oklahoma Supreme Court, each court addressing itself expressly only to the constitutional claim. The Court today remands the case to determine whether appellants adequately preserved the right to challenge the adverse trial court ruling on the statute of limitations issue and whether this may serve as an independent bar to the assertion of their claim.
9
It should first be noted that proper preservation of this issue in the state courts is a hurdle facing not the appellants but the appellees. The Oklahoma Court of Appeals quieted title in appellants and thus must necessarily have found, not only that the tax sale was constitutionally infirm, but also that the appellants' claim was not time barred. The Oklahoma Supreme Court reversed that judgment and affirmed the judgment of the trial court after finding that '(t)he question for decision is whether the Oklahoma statutory procedure . . . complies with . . . due process of law.' 502 P.2d 1265, 1266 (1972) (emphasis added). Whether appellees adequately raised the statute of limitations ground in objecting to the Court of Appeals judgment, we do not know. What we do know is that the Oklahoma Supreme Court quieted title in appellees by rejecting appellants' constitutional claim. Either because the issue was not properly before the court or because decision on it was not necessary, the statute of limitations issue was not reached.
10
What faces this Court is thus a decision quieting title in appellees by rejecting appellants' federal constitutional claim. As the majority notes, this was the only issue addressed by the parties in the Jurisdictional Statement and the responsive papers filed with this Court. When a constitutional adjudication is not the only basis on which a state court judgment rests, a review of that adjudication by this Court would be advisory since the judgment would rest on its independent grounds regardless of the outcome of our review. But the only issue before us in this case is a constitutional one since the only basis for the reversal below is the rejection of appellants' constitutional claim. When a decision rests only on a constitutional determination, a review of that determination is dispositive of the correctness of the decision and is thus not advisory. I would therefore face the constitutional claim at this point.
1
The ad valorem taxes in question were for the year 1952. The original tax sale took place in November 1953 and the resale in May 1956. Okla.Stat., Tit. 68, §§ 383 and 432 (1951). The statutes cited (§§ 382, 383, 432, and 432b) were repealed by Okla.Sess.Laws 1965, c. 501, § 3, and replaced by corresponding provisions of the State's present Ad Valorem Tax Code, namely, Okla.Stat.Ann., Tit. 68, §§ 24312, 24313, 24329, and 24331 (1966).
2
See 502 P.2d 1265 (1972). The earlier opinion of the Oklahoma Court of Appeals, Division 2, is not reported; it is reproduced in the Jurisdictional Statement, App. A, p. vii.
3
The trial court's judgment read in part as follows:
'(2) The Court Further Finds, Orders, Adjudges and Decrees that from the date of the recording of said resale tax deed, on June 6, 1956 . . . said Grantees therein, the Cross-Petitioners, R. W. Garrett and R. H. Vaughn, have been in the open, continuous, visible, notorious, exclusive and hostile possession of said lands and premises, receiving all of the rents, profits and income therefrom, and that said contesting substituted party defendants, are further forever barred and precluded by the statute of limitations, from seeking to assert the invalidity of said resale tax deed, as provided by 12 O.S.1961, Sec. 93(3) and (6).' Jurisdictional Statement, App. B, p. xvii.
Okla.Stat.Ann., Tit. 12, § 93 (Supp.1973—1974), reads:
§ 93. Limitation of real actions.—'Actions for the recovery of real property, or for the determination of any adverse right or interest therein, can only be brought within the periods hereinafter prescribed, after the cause of action shall have accrued, and at no other time thereafter:
'(3) An action for the recovery of real property sold for taxes, within five (5) years after the date of the recording of the tax deed . . . provided, nothing herein shall be construed as reviving any cause of action for recovery of real property heretofore barred nor as divesting any interest acquired by adverse possession prior to the effective date hereof.
'(6) Numbered paragraphs 1, 2, and 3 shall be fully operative regardless of whether the deed or judgment or the precedent action or proceeding upon which such deed or judgment is based is void or voidable in whole or in part, for any reason, jurisdictional or otherwise; provided that this paragraph shall not be applied so as to bar causes of action which have heretofore accrued, until the expiration of one (1) year from and after its effective date.'
4
Whether the alleged lack of constitutionally valid notice would preclude the running of the statute of limitations for an adverse land claim is a question that has not been presented to this Court or to the Oklahoma courts below. Cf. Schroeder v. City of New York, 371 U.S. 208, 213—214, 83 S.Ct. 279, 282, 283, 9 L.Ed.2d 255, 259, 260 (1962). We intimate no view on this issue.
| 89
|
414 U.S. 113
94 S.Ct. 466
38 L.Ed.2d 344
CHICAGO MERCANTILE EXCHANGEv.Darryl B. DEAKTOR et al.
No. 73—241.
Dec. 3, 1973.
PER CURIAM.
1
The petitioner, Chicago Mercantile Exchange, was sued in two separate actions in the District Court. In one, the Phillips suit, it was alleged that the Exchange had forced sales of futures contracts in March 1970 fresh eggs at artificially depressed market prices and had thereby monopolized and restrained commerce in violation of §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. §§ 1, 2, and had violated § 9(b) of the Commodity Exchange Act (CEA), as amended, 82 Stat. 33, 7 U.S.C. § 13(b), by manipulating prices of a commodity for future delivery on a contract market. The Exchange was also accused of violating § 5a of the CEA, 7 U.S.C. § 7a(8), for failure to enforce one of its own rules. In the second suit, the Deaktor case, the Exchange was charged with violating the CEA and its own rules as a designated contract market because it had failed to exercise due care to halt the manipulative conduct of certain of its members who allegedly had cornered the July 1970 market in frozen pork bellies futures contracts.
2
The Exchange defended both actions on the ground that it was faithfully discharging its statutory duty of self-regulation. It asserted that its challenged acts in the Phillips case were measures taken to prevent speculation in futures contracts and as such were not in violation of the CEA. Rather, they were authorized and required by the statute and hence cannot be considered within the reach of the antitrust laws. Likewise, in the Deaktor suit, the Exchange claimed that it had taken all proper and reasonable steps to perform its statutory responsibility to prevent manipulation.
3
The Exchange further urged that because the Commodity Exchange Commission had jurisdiction to determine whether the Exchange was violating the CEA or its own rules and to impose sanctions for any such offense, both suits should be stayed to permit the Commission to determine in the first instance whether or not the actions of the Exchange under scrutiny were in discharge of its proper duties under the CEA and its regulations. The District Court refused the stay, and the Court of Appeals affirmed. Deaktor v. L. D. Schreiber & Co., 479 F.2d 529 (CA7 1973). Both courts were in error.
4
Ricci v. Chicago Mercantile Exchange, 409 U.S. 289, 93 S.Ct. 573, 34 L.Ed.2d 525 (1973), held that an antitrust action against the Exchange should have been stayed to afford the Commodity Exchange Commission an opportunity to determine if the challenged conduct of the Exchange was in compliance with the statute and with Exchange rules. Because administrative adjudication of alleged violations of the CEA and the rules lay at the heart of the task assigned the Commission by Congress, we recognized that the court, although retaining final authority to interpret the CEA and its relationship to the antitrust laws, should avail itself of the abilities of the Commission to unravel the intricate and technical facts of the commodity industry and to arrive at some judgment as to whether the Exchange had conducted itself in compliance with the law. An adjudication by the Commission that the actions of the Exchange were authorized or required by the CEA would not necessarily dispose of the question of immunity from antitrust liability. We nevertheless thought the considered view of the Commission would be of sufficient aid to the court that the action should not go forward without making reasonable efforts to invoke the jurisdiction of the Commission. Id., at 305—306, 93 S.Ct. 573. As we did in Ricci.
5
'we simply recognize that Congress has established a specialized agency that would determine either that a . . . rule of the Exchange has been violated or that it has been followed. Either judgment would require determination of facts and the interpretation and application of the Act and Exchange rules. And either determination will be of great help to the antitrust court in arriving at the essential accommodation between the antitrust and the regulator regime . . ..' Id., at 307, 93 S.Ct., at 583.
6
In our judgment, the Court of Appeals, as in Ricci, should have requested the District Court to stay the proceedings in the Phillips case to afford an opportunity to invoke the jurisdiction of the Commission. For very similar reasons, the Deaktor plaintiffs, who also alleged violations of the CEA and the rules of the Exchange, should be routed in the first instance to the agency whose administrative functions appear to encompass adjudication of the kind of substantive claims made against the Exchange in this case.
7
The petition for writ of certiorari is granted, the judgment of the Court of Appeals is reversed, and the case remanded for further proceedings consistent with this opinion.
8
So ordered.
9
Reversed and remanded.
10
Mr. Justice STEWART dissents. He would affirm the judgment substantially upon the reasoning of Judge Castle's concurring opinion in the Court of Appeals. 479 F.2d 529, 535.
| 89
|
414 U.S. 117
94 S.Ct. 383
38 L.Ed.2d 348
MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., Petitioner,v.David WARE
No. 72-312.
Argued Oct. 9, and 10, 1973.
Decided Dec. 4, 1973.
Syllabus
When respondent voluntarily terminated his employment as an account executive in petitioner securities broker's San Francisco office for a similar position with a competitor, petitioner determined, pursuant to a forfeiture clause of its employees' profit-sharing plan, that respondent, by entering competitive employment, had forfeited all rights to the plan's benefits. Respondent sought a declaratory judgment in a California state court that the forfeiture clause was unlawful under § 16600 of the California Business and Professions Code, which invalidates every contract restraining a person from engaging in a lawful business. Petitioner answered, inter alia, that a condition of respondent's employment with petitioner was approval by the New York Stock Exchange; that respondent, at the time of his employment, applied on an Exchange form for such approval, as required by Exchange Rule 345(a)(1), pledging to abide by Exchange rules; and as required by Rule 347(b) agreed to submit to arbitration any controversy arising out of termination of his employment. On petitioner's appeal from the denial of its petition for an order directing arbitration, the California Court of Appeal held that a written agreement to arbitrate did exist, but that the forfeiture clause of the profit-sharing plan was invalid as in restraint of trade under California law when applied to California residents, and petitioner's contributions under the plan were wages under provisions of the California Labor Code giving wage earners a right of action for wages due and unpaid despite any private agreement to arbitrate. Held: Exchange Rules 345(a)(1) and 347(b), promulgated as self-regulatory measures pursuant to § 6 of the Securities Exchange Act of 1934 (the Act), and respondent's pledge to abide by those rules, do not pre-empt the avenues of wage relief otherwise available to respondent under California law. Pp. 125—140.
(a) Rule 347(b) does not fall under the Exchange's mandate to protect the investing public and to insure just and equitable trade practices set forth in §§ 6(d) and 19(b) of the Act, so as to require pre-emption of contrary state law by such rule, there being nothing in the Act or any SEC rule or regulation specifying arbitration as a favored means of resolving employer-employee disputes, and it being clear that Rule 347(b) would not be subject to the SEC's modification or review under § 19(b). Pp. 134-136.
(b) Rule 347(b) cannot be categorized as part of a need for uniform national regulation, there being no revelation in the Act or in any SEC regulation that nationwide uniformity of an exchange's housekeeping affairs is necessary, and it not being shown that national uniformity in the area of wage claims is vital to federal securities policy. Pp. 136—137.
(c) The 'applicable state laws' referred to in § 6(c) of the Act, which subjects exchange rules to a requirement of consistency with the Act, 'and the applicable laws of the State in which it is located,' are not in this instance, merely because the New York Stock Exchange is in New York City, the laws of New York so as to require the California court to apply New York law compelling arbitration of this dispute and validating the forfeiture clause of the profit-sharing plan, since § 6(c) has no independent existence creating some sort of spurious uniformity of application for all States, but merely requires that any exchange rule adopted outside the Act's context comport with the laws of the State in which the exchange is located. Pp. 137—139.
(d) Where California has manifested a strong statutory policy of protecting its wage earners from what it regards as undesirable economic pressures affecting the employment relationship, that policy should prevail absent any interference with the federal regulatory scheme; in this case there is not only no such interference, but the Act's structure manifests a congressional intent that state policies in this area should operate vigorously. Pp. 139—140.
(e) Even though petitioner's profitsharing plan is open to all eligible employees in the United States, and respondent's employment and petitiner's business are interstate, the application of the California law would not unduly burden interestate commerce. P. 140.
24 Cal.App.3d 35, 100 Cal.Rptr. 791, affirmed.
William H. Orrick, Jr., San Francisco, Cal., for petitioner.
Joseph C. Barton, San Francisco, Cal., for respondents.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This case presents the question whether certain rules of the New York Stock Exchange, promulgated as self-regulating measures pursuant to § 6 of the Securities Exchange Act of 1934, 48 Stat. 885, 15 U.S.C. § 78f, and a broker's employee's pledge to abide by those rules, pre-empt avenues of wage relief otherwise available to the employee under state law. The California Court of Appeal answered this in the negative. 24 Cal.App.3d 35, 100 Cal.Rptr. 791 (1972). Because of the significance of the question in the area of federal-state relations, we granted certiorari. 410 U.S. 908, 93 S.Ct. 956, 35 L.Ed.2d 269 (1973).
2
* Respondent, David Ware, in July 1958 entered the employ of petitioner Merrill Lynch, Pierce, Fenner & Smith, Inc., a New York corporation, as a registered representative or 'account executive' in the petitioner's San Francisco office. Ware worked there continuously until March 1969 when he voluntarily terminated that relationship and accepted a similar position in San Francisco with one of Merrill Lynch's competitors.
3
Merrill Lynch is a broker-dealer in securities and is a member-corporation of the New York Stock Exchange. Since prior to 1958, the firm has had a noncontributory Profit-Sharing Plan for its employees in the United States. Under the Plan an employee may have allocated to his account both vested and unvested units, as therein described. Article 11 of the Plan relates to 'Forfeiture of Benefits' upon the happening of specified events. One such event is competitive activity:
4
'11.1 A Participant who, in the determination of the Committee, voluntarily terminates his employment with the Corporation or provokes his termination and engages in an occupation which is, in the determination of the Committee, competitive with the Corporation, or any affiliate or subsidiary thereof, shall forfeit all rights to any benefits otherwise due or to become due from the Trust Fund with respect to units credited for fiscal years subsequent to the fiscal year ended December 30, 1960.'
5
The Committee referred to is provided for by the Plan's Art. 1. It has not less than five nor more than nine persons (not necessarily employees) appointed by Merrill Lynch and serving 'at the pleasure of the Corporation.' Article 1.2 states that the Committee 'shall administer the Plan' and 'shall determine any questions arising in the administration, interpretation and application of the Plan, which determination shall be conclusive and binding on all persons.'
6
At the time Ware terminated his employment with Merrill Lynch in March 1969, both vested and unvested units were allocated to his account. Upon his departure, the Committee, pursuant to Art. 11.1, determined that Ware, by entering competitive employment, had forfeited all rights to benefits due or to become due him under the Plan.
7
In January 1970 Ware filed this class action in California state court against Merrill Lynch and the members of the Committee. The class purported to consist of Ware and all other similarly situated former Merrill Lynch employees in California. Declaratory relief was sought to the effect that Art. 11.1 was 'unlawful and void under applicable California law,' and that the defendants were obligated to pay all vested units credited from December 30, 1960, to the date of termination of employment.
8
Although the statute was not cited in the complaint, the parties appear to agree that the suit rested principally on § 16600 of the California Business and Professions Code. This reads:
9
'Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.'
10
In its answer, Merrill Lynch alleged that the provisions of Art. 11.1 were a reasonable resraint on competition under the laws of New York or of the United States; that, pursuant to Art. 22.11 of the Plan, it was to be construed according to the laws of New York; that under New York law Art. 11.1 is lawful, valid, and enforceable; that a condition of Ware's employment with Merrill Lynch was approval by the New York Stock Exchange; that Ware, at the time of his employment in 1958, executed a written application, on an Exchange form, for approval of his employment as a registered representative, as required by the Exchange's Rule 345(a)(1);2 that by 30(j) of that form Ware agreed that any controversy with a member arising out of the termination of his emplyment would be settled by arbitration at the instance of any party;3 that the Exchange approved the application; that Ware's sole remedy was arbitration; and that a declaration that Art. 11.1 was invalid under the laws of California would cause Merrill Lynch to discriminate in the administration of the Plan and would deprive it of due process of law.
11
Merrill Lynch, invoking § 1281.2 of the California Code of Civil Procedure,4 petitioned the state court for an order directing arbitration pursuant to the above-quoted 30(j) and Ware's pledge, contained in his application for approval or employment, that he would 'abide by the Constitution and Rules of the Board of Governors of the New York Stock Exchange' and that he submitted himself 'to the jurisdiction of such Exchange.'
12
Ware opposed arbitration on the grounds that no contract to arbitrate existed between him and Merrill Lynch; that if an agreement to this effect existed, it was a contract of adhesion; and that, since § 16600 made the forfeiture provision illegal under California law, it was not arbitrable.
13
The state trial court, by minute order, denied the petition to compel arbitration.
14
Merrill Lynch then appealed. The California Court of Appeal held that a written agreement to arbitrate did exist; that the Exchange form was 'a contractual agreement'; and that the 'approval and registration by Merrill Lynch made the application a contract between the parties.' 24 Cal.App.3d, at 40—41, 100 Cal.Rptr., at 795—796. The court went on to hold, however, that the forfeiture clause was invalid and unenforceable under California law, when applied to California residents, as being in restraint of trade. Id., at 42—43, 100 Cal.Rptr., at 796—797. Cited as supporting authorities were Frame v. Merrill Lynch, Pierce, Fenner & Smith Inc., 20 Cal.App.3d 668, 97 Cal.Rptr. 811 (1971), where the same forfeiture clause was held ineffective under California law, but where the court also held that an enforceable agreement to arbitrate existed,5 and Muggill v. Reuben H. Donnelley Corp., 62 Cal.2d 239, 42 Cal.Rptr. 107, 398 P.2d 147 (1965).
15
Finally, the Court of Appeal, while taking note of California's 'strong public policy' favoring arbitration, held that Merrill Lynch's contributions under its Profit-Sharing Plan were wages, within the meaning of §§ 2006 and 2297 of the California Labor Code, and that § 229 gave Ware 'the right to bring his claim in court in spite of any agreement to arbitrate.' 24 Cal.App.3d, at 43—44, 100 Cal.Rptr., at 797—798. Merrill Lynch's petition for hearing by the Supreme Court of California was denied without opinion. See 24 Cal.App.3d, at 45, 100 Cal.Rptr. 791.
II
16
The broad issue thus presented to us is the extent to which authority delegated under a federal regulatory statute pre-empts state law. Specifically, we are concerned with the questions (a) whether, in the context of the present case, § 229 of the California Labor Code, which would preclude compulsory arbitration of wage disputes, is ineffective under the Supremacy Clause; (b) whether § 16600 of the California Business and Professions Code unduly interferes with federal regulation of the securities industry; and (c) whether that California legislation unconstitutionally burdens interstate commerce.
17
In order to resolve these questions, we think it necessary to review the principles of stock exchange pre-emption delineated in this Court's decision a decade ago in Silver v. New York Stock Exchange, 373 U.S. 341, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963), and to examine the geneses of the federal Act and of the California statute.
18
A. In Silver the Court considered whether, and to what extent, the federal antitrust laws apply to securities exchanges regulated by the 1934 Act. It held that the mere passage of the Act did not effect, pro tanto, a repeal of the federal antitrust laws, but that particular instances of exchange regulation that fall within the scope and purposes of the Act may be justified and will be upheld against antitrust challenge. Id., at 357—361, 83 S.Ct. at 1257. With respect to the specific question there presented, it was clear that the New York Stock Exchange had exercised its 'tremedous economic Power,' id., at 361, 83 S.Ct. at 1259, against two nonmenbers by discontinuing their direct-wire telephone connections with members of the Exchange without notice, hearing, or statement of reasons. It was the Court's view, under the circumstances, that procedural guarantees were necessary in order to protect against the possibility of procribed antitrust practices and to provide the 'extremely beneficial effect in keeping exchange action from straying into areas wholly foreign to the purposes of the Securities Exchange Act.' Id., at 362, 3 S.Ct. at 1259. See also, Ricci v. Chicago Mercantile Exchange, 409 U.S. 289, 300—301, 93 S.Ct. 573, 579, 34 L.Ed.2d 525 (1973).
19
In contrast with Silver, we are not confronted here with conflicting federal regulatory schemes. The present controversy concerns the interrelationship between statutes adopted, respectively, by the Federal Government and a State. The analytical framework of Silver is instructive, nonetheless. There the Court reviewed carefully the securities exchange regulatory scheme that Congress had adopted in order to identify the character and purposes of the Act and the extent to which instances of exchange self-regulation were necessary to the furtherance of congressional aims and objectives. 373 U.S., at 349 361, 83 S.Ct. at 1252. It was mindful, also, of the purposes behind the conflicting statutes which, in that case, were the antitrust laws. So here, we may not overlook the body of law relating to the sensitive interrelationship between statutes adopted by the separate, yet coordinate, federal and state sovereignities. Our analysis is also to be tempered by the conviction that the proper approach is to reconcile 'the operation of both statutory schemes with one another rather than holding one completely ousted.' Id., at 357, 83 S.Ct. at 1257.8 The principle that emerged from Silver, and the premise upon which the Court based its judgment, was that conflicting law, absent repealing or exclusivity provisions, should be pre-empted by exchange self-regulation 'only to the extent necessary to protect the achievement of the aims of the Securities Exchange Act.' Id., at 361, 83 S.Ct. at 1259.
20
B. The Securities Exchange Act of 1934, as amended, 15 U.S.C. §§ 78a to 78hh—1, 'regulates securities markets and the business of securities brokers and dealers.' Report of Special Study of Securities Markets of the Securities and Exchange Commission, H.R.Doc. No. 95, pt. 1, 88th Cong., 1st Sess., 3 (1963). Two types of regulation are reflected in the Act. Some provisions impose direct requirements and prohibitions. Among these are mandatory exchange registration, restrictions on broker and dealer borrowing, and the prohibition of manipulative or deceptive practices. Other provisions are flexible and rely on the technique of self-regulation to achieve their objectives. Ibid. Supervised self-regulation, although consonant with the traditional private governance of exchanges, allows the Government to monitor exchange business in the public interest.9 Mr. Justice DOUGLAS, when he was Chairman of the Securities and Exchange Commission, observed that this permits the exchanges to 'take the leadership with Government playing a residual role. Government would keep the shotgun, so to speak, behind the door, loaded, well oiled, cleaned, ready for use but with the hope it would never have to be used.' W. Douglas, Democracy and Finance 82 (J. Allen ed. 1940).
21
The Act provides for stock exchanges to be registered by the Commission. § 6, 15 U.S.C. § 78f. It outlaws securities transactions conducted on unregistered exchanges. § 5, 15 U.S.C. § 78e. It conditions registration on a showing that the exchange has rules that are 'just and adequate to insure fair dealing and to protect investors.' § 6(d), 15 U.S.C. § 78f(d). An exchange seeking registration must also meet other requirements. It must agree 'to enforce so far as is within its powers compliance by its members' with the Act and the Commission's rules and regulations thereunder. § 6(a)(1), 15 U.S.C. § 78f(a) (1). It must include in its rules a provision for the disciplining of a member for 'conduct or proceeding inconsistent with just and equitable principles of trade.' § 6(b), 15 U.S.C. § 78f(b). And it must supply to the Commission copies of its constitution, articles of incorporation, and bylaws, and such data or other information as the Commission may require 'as being necessary or appropriate in the public interest or for the protection of investors.' § 6(a) (3) and (2), 15 U.S.C. § 78f(a)(3) and (2).
22
The Commission's direct authority with respect to exchange self-regulation is supervisory. Apart from its responsibilities in registering exchanges, the Commission may 'alter or supplement' the rules of an exchange if such action is 'necessary or appropriate for the protection of investors or to insure fair dealing in securities traded in upon such exchange or to insure fair administration of such exchange.' § 19(b), 15 U.S.C. § 78s(b).10 This authority, however, relates to 12 designated subject areas and 'similar matters.' Ibid. As a consequence, some exchange rules are not subject to direct Commission scrutiny, In re Rules of the New York Stock Exchange, 10 S.E.C. 270, 294 (1941), and, instead, if they do not operate contrary to the interests of insuring fair dealing and protecting investors, would kindle no federal curiosity and would serve no identifiable public purpose. It is to be noted, moreover, that the Commission has exercised its direct supervisory power sparingly. Securities Industry Study, Report of the Subcommittee on Securities, Committee on Banking, Housing and Urban Affairs, S. Doc. No. 93—13, p. 180 (1973).
23
Apart from registration and direct Commission supervision, the only other qualification on exchange autonomy is the statutory requirement that any rules promulgated and enforced by an exchange not be 'inconsistent with this (Act) and the rules and regulations thereunder and the applicable laws of the State in which it is located.' § 6(c), 15 U.S.C. § 78f(c).
24
From this review of relevant portions of the Act, it is apparent that Congress accorded maximum scope to self-regulation, and reposed powers in the Commission 'to be exercised as needed but in such manner as to allow maximum initiative and responsibility to the self-regulators.' Report of the Special Study, supra, pt. 4, p. 726. In the words of the Senate Report issued at the time of enactment,
25
'Thus the initiative and responsibility for promulgating regulations pertaining to the administration of their ordinary affairs remain with the exchanges themselves. It is only where they fail adequately to provide protection to investors that the Commission is authorized to step in and compel them to do so.' S.Rep. No. 792, 73d Cong., 2d Sess., 13 (1934).
26
It is thus clear that the congressional aim in supervised self-regulation is to insure fair dealing and to protect investors from harmful or unfair trading practices. To the extent that any exchange rule or practice contravenes this policy, or any auhorized rule or regulation under the Act, the rule may be subject to appropriate federal regulatory supervision or action. Correspondingly, any rule or practice not germane to fair dealing or investor protection would not appear to fall under the shadow of the federal umbrella; it is, instead, subject to applicable state law.
27
C. On the other side are the California statutes. By the addition of § 229 to its Labor Code in 1959 California codified for the wage earner, with the solitary-collective-bargaining agreement exception, a right of action to recover due and unpaid wages from his employer, regardless of the existence of any private agreement to arbitrate. Selected 1959 Code Legislation, 34 Cal.St.B.J. 581, 706—707. This was due, apparently, to the legislature's desire to protect the worker from the exploitative employer who would demand that a prospective employee sign away in advance his right to resort to the judicial system for redress of an employment grievance. The statute's legislative history is sparse, but the exception carved out for collective-bargaining disputes provides the obvious conclusion that it was the individual, nonunion, and otherwise unprotected wage earner who was the intended beneficiary of the State's grace in providing this remedy. This conclusion is fortified by the fact that § 200(a) of the Code defines 'wages' broadly to include 'all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation.' And the California court itself has noted 'the established policy . . . of protecting and promoting' the right, "favored' in the law,' of the wage earner 'to all wages lawfully accrued to him.' City of Ukiah v. Fones, 64 Cal.2d 104, 108, 48 Cal.Rptr. 865, 867, 410 P.2d 369, 371 (1966). It may be, too, that the legislature felt that arbitration was a less than adequate protection against awarding the wage earner something short of what was due compensation. In any event, there is the harder substance of California case law. In Local 659 v. Color Corp. of America, 47 Cal.2d 189, 302 P.2d 294 (1956), decided prior to the addition of § 229 to the Labor Code, the court held that the then § 1280 of the State's Code of Civil Procedure, providing for the enforcement of an arbitration clause in a contract and characterizing it as 'irrevocable,' was subject to waiver or mutual rescission. The statute provided that arbitration was required 'save upon such grounds as exist at law or in equity for the revocation of any contract.'11 California, thus, does not exclude a remedy available at law or in equity for the revocation of any contract that happens to contain an arbitration clause.
28
This conclusion as to the broad and liberal intendment of § 229 is reinforced by the Court of Appeal's observation in the present case, 24 Cal.App.3d, at 44—45, 100 Cal.Rptr., at 798, that the State's Arbitration Act, revised in 1961, embraced no attempt to change the right of action first accorded the wage earner only two years earlier in 1959. The record is clear, moreover, that legislative attention was drawn in 1961 to § 229. The California Senate was asked to reconsider its unanimous vote in favor of the Arbitration Act on the ground that there was legislative uncertainty as to its effect upon § 229. 2 Journal of the Senate 2215—2218 (May 4, 1961). The motion to reconsider was later waived, and the bill was transmitted to the Assembly. Id., at 2287 (May 8, 1961). Thus, the Senate had in mind the rights accorded wage earners by § 229, and those rights were placed in focus with the 'historical friendliness of California to the institution of arbitration.' Feldman, Arbitration Modernized—The New California Arbitration Act, 34 So.Calif.L.Rev. 413, 414 (1961). Section 229 thus survived subsequent legislative scrutiny and has now manifested itself as an important state policy through interpretation by the California courts.
29
One might also consider, as the respondent suggests here, the California antitrust policies embodied in § 16600 of the Business and Professions Code, quoted, supra, p. 121. This statute has been in effect for many years and is well entrenched in case law and in commentary.12 We need not pursue in depth the policy considerations supporting this statute because, in our judgment, § 16600, standing alone and apart from § 229, under existing case law, would not provide the necessary support to uphold a challenge to arbitration. Our inclination in this respect is buttressed by the different results reached by the California Court of Appeal in this case and in Frame, supra, respectively. In Frame, the court decided that the 'strong (California) public policy' against restraining one from engaging in a lawful business foreclosed the application of the more permissive New York law to the forfeiture provision of the profit-sharing plan. Although California public policy thus served to nullify the contract's forfeiture provision, arbitration, nonetheless, was not precluded. By way of contrast, the present case provoked a claim under § 229, in addition to Ware's reliance on § 16600, in the face of Merrill Lynch's motion to compel arbitration. The California court declared again that the forfeiture clause was invalid but, in addition, held that the arbitration clause was unenforceable, relying on § 16600 and § 229, respectively. With this analysis of the state statutes made by the California court, we rest on that court's interpretation of state law and do not, and in fact cannot, disturb its determination that under those statutes arbitration will lie in the one instance but not in the other.
30
With this background, we turn to specific arguments advanced by the petitioner here.
III
31
A. Merrill Lynch suggests that Rule 347(b) of the New York Stock Exchange, set forth in n. 3, supra, falls under the Exchange's mandate to protect the investing public and to insure just and equitable trade practices.13 Its contention is that confidence in the industry and in the integrity and ability of its members has been jeopardized by failures of major brokerage houses with consequent substantial losses to the public. Investor confidence would be further undermined, it is said, by protracted litigation between member firms and their employees over disputes that airse out of employment relationships; public airing of every claim of this kind will erode confidence in the market; and arbitration, on the other hand, will internalize these disputes and provide an expeditious and economical method of resolution by arbitrators familiar with industry customs and practices.
32
As is seen by our discussion above, §§ 6(d) and 19(b) of the Act, 15 U.S.C. §§ 78f(d) and 78s(b), establish the measure of congressionally delegated authority for self-regulation in the national interest. Section 6(d) requires that exchange rules be 'just and adequate to insure fair dealing and to protect investors.' Section 19(b) gives the Commission limited power over certain types of exchange rules 'for the protection of investors or to insure fair dealing in securities' or to 'insure fair administration' of the exchanges.14 Measured by these standards, we conclude that the policy arguments advanced by Merrill Lynch do not require pre-emption of contrary state law by Rule 347(b).
33
To begin with the obvious, there is nothing in the Act and there is no Commission rule or regulation that specifies arbitration as the favored means of resolving employer-employee disputes.15 It is also clear that Rule 347(b) would not be subject to the Commission's modification or review under § 19(b). The United States, as amicus, concedes as much, and we conclude, as the Government suggests, that the relationship between compulsory employer-employee arbitration and fair dealing and investor protection is 'extremely attenuated and peripheral, if it exists at all.' Brief for the United States 9. Merrill Lynch has not alleged that arbitration will effect fair dealing or result in investor protection. It suggests only that investor confidence not be shaken further by public airing of employer-employee disputes. There is no explanation of why a judicial proceeding, even though public, would prevent lessening of investor confidence. It is difficult to understand why muffling a grievance in the cloakroom of arbitration would undermine confidence in the market. To the contrary, for the generally sophisticated investing public, market confidence may tend to be restored in the light of impartial public court adjudication. Furthermore, it should be apparent that, so far as investor confidence is concerned, compulsory arbitration of an employee-employer grievance is no substitute for direct effective disciplinary action against any abusive exchange practice. Other rules of the Exchange serve this very function. Rule 345(b), for example, permits the Exchange to disapprove, and thereby by forestall, the employment of any person, and Rule 345(d) spells out punitive measures for 'conduct inconsistent with just and equitable principles of trade,' or 'acts detrimental to the interest or welfare of the Exchange,' or 'conduct contrary to an established practice of the Exchange.' These measures, designed to insure fair dealing and to protect investors, are of the kind directly related to the Act's purposes and ordinarily would not be expected to yield to provisions of state law.
34
B. Rule 347(b) cannot be categorized, as the petitioner suggests, as part of a need for uniform national regulation. There is no revelation in the Act or in any Commission rule or regulation that nationwide uniformity of an exchange's housekeeping affairs is necessary or desirable. And Merrill Lynch has not demonstrated that national uniformity in the area of wage claims is vital, in some way, to federal securities policy. Convenience in exchange management may be desirable, but it does not support a plea for uniform application when the rule to be applied is not necessary for the achievement of the national policy objectives reflected in the Act. Indeed, Congress, in the securities field, has not adopted a regulation system wholly apart from and exclusive of state regulation. Cf. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 234—236, 67 S.Ct. 1146, 1154, 91 L.Ed. 1447 (1947); Campbell v. Hussey, 368 U.S. 297, 302, 82 S.Ct. 327, 329, 7 L.Ed.2d 299 (1961). Instead, Congress intended to subject the exchanges to state regulation that is not inconsistent with the federal Act. Section 6(c), 15 U.S.C. § 78f(c), explicitly subjects exchange rules to a requirement of consistency with the Act 'and the applicable laws of the State in which (the exchange) is located.' 'Where the Government has provided for collaboration the courts should not find conflict.' Union Brokerage Co. v. Jensen, 322 U.S. 202, 209, 64 S.Ct. 967, 972, 88 L.Ed. 1227 (1944). And we observed in Silver that the scheme of self-regulation provides in some cases for no agency check on exchange behavior and, therefore, '(s)ome form of review of exchange self-policing, whether by administrative agency or by the courts, is . . . not at all incompatible with the fulfillment of the aims of the Securities Exchange Act.' 373 U.S., at 359, 83 S.Ct. at 1258.
35
C. It is also argued that the applicable state laws referred to in § 6(c) are the laws of the State in which the exchange itself is located. Thus, because the New York Stock Exchange is in the city of New York, it is said that 'the applicable laws' are those of New York, and that the California court was in error in not applying New York law that would have compelled arbitration of this dispute and would have validated the forfeiture provision of the Profit-Sharing Plan.
36
We are not persuaded that this is what Congress intended. Section 6(c) has no independent existence creating some sort of spurious uniformity of application for all States. It has meaning only in the context of the assertion of a federal interest, and it hinges on our determination that the particular rule be integrally related to or substantially effect that aims and purposes of the Act. It merely requires that any exchange rule adopted outside the context of the Act be consistent with the laws of the State in which the exchange is located.16
37
If the rule is sought to be enforced in another State, normal conflict of laws principles come into play, and the rule's effect depends on the resolution of that conflict. Were this not so, there would be no purpose behind the choice-of-law clause in the Profit-Sharing Plan itself. More importantly, the uniform application Merrill Lynch's interpretation of the Act would purportedly foster is seen to be ephemeral when one considers that broker-dealers like petitioner are also members of exchanges located outside New York, and are therefore subject, under the 'state of location' theory, to other States' laws. In effect, we are asked to sacrifice the individual's expectation of uniform treatment in the State of his residence for uniformity of application of the effect of an exchange's rules. We decline to do so because we believe that Congress intended that those elements of the old regime of complete self-regulation, that is, those elements not related to the federal objectives, be subject to state law and to established conflicts principles when their application out of State comes into controversy. After all, a stock exchange is organized as an association in accordance with the laws of the State of its location. Any assertion of extraterritorial jurisdiction contends, of course, with the public policy of the State in which this jurisdiction is sought. To ascribe more to § 6(c) would be contrary to the congressional scheme and to what might be regarded as common sense.
D. Mr. Justice Brennan has stated:
38
'The principle to be derived from our decisions is that federal regulation of a field of commerce should not be deemed preemptive of state regulatory power in the absence of persuasive reasons—either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained.' Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 1163, 10 L.Ed.2d 248 (1963).
39
In other contexts, pre-emption has been measured by whether the state statute frustrates any part of the purpose of the federal legislation. Colorado Anti-Discrimination Comm'n v. Continental Air Lines, Inc., 372 U.S. 714, 724, 83 S.Ct. 1022, 1027, 10 L.Ed.2d 84 (1963); Perez v. Campbell, 402 U.S. 637, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971); Rice v. Board of Trade, 331 U.S. 247, 253—255, 67 S.Ct. 1160, 1163, 91 L.Ed. 1468 (1947). And only last term Mr. Justice Douglas, in speaking for the Court, observed that while prior cases on pre-emption 'are not precise guidelines,' because 'each case turns on the peculiarities and special features of the federal regulatory scheme in question,' it is where there is in existence a pervasive and comprehensive scheme of federal regulation that pre-emption follows in order to fulfill the federal statutory purposes. City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 638—639, 93 S.Ct. 1854, 1862, 36 L.Ed.2d 547 (1973).
40
In the area of regulation that we are considering here, California has manifested a strong policy of protecting its wage earners from what it regards as undesirable economic pressures affecting the employment relationship. This policy prevails in the absence of interference with the federal regulatory scheme. We find no such interference and we also find in the structure of the Act an intent on the part of Congress that state policies in this area should operate vigorously.
41
E. It is suggested, finally, that the petitioner's Profit-Sharing Plan operates on a national level; that it is open to all eligible Merrill Lynch employees in the United States; that the employment of respondent and the class he represents is interstate in nature, as is Merrill Lynch's business; and that the application of the California statutes would unduly burden interstate commerce.
42
What has been said above provides the answer to this argument. It is in line with the principle, long established, that the National Government's power, under the Commerce Clause, to regulate commerce does not exclude all state power of regulation. Southern Pacific Co. v. State of Arizona, 325 U.S. 761, 766—767, 65 S.Ct. 1515, 1518, 89 L.Ed. 1915 (1945); Brotherhood of Locomotive Firemen & Enginemen v. Chicago, R.I. & P.R. Co., 393 U.S. 129, 89 S.Ct. 323, 21 L.Ed.2d 289 (1968); Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960).
43
The judgment of the Court of Appeal is affirmed.
44
It is so ordered.
45
Affirmed.
46
Mr. Justice STEWART took no part in the decision of this case.
1
'22.1 The validity of the Plan or of any of the provisions thereof shall be determined under and shall be construed according to the laws of the State of New York.'
2
'Rule 345. (a) No member or member organization shall
'(1) permit any person to perform regularly the duties customarily performed by a registered representative, unless such person shall have een registered with and is acceptable to the Exchange . . ..'
3
Paragraph 30(j) of the Exchange form reads:
'(j) I agree that any controversy between me and any . . . member organization arising out of my employment or the termination of my employment by and with such . . . member organization shall be settled by arbitration at the instance of any such party in accordance with the Constitution and rules then obtaining of the New York Stock Exchange.'
Paragraph 30(d) of the same form reads in part:
'(d) I have read the Constitution and Rules of the Board of Governors of the New York Stock Exchange and, if approved, I hereby pledge myself to abide by the Constitution and Rules of the Board of Governors of the New York Stock Exchange as the same have been or shall be from time to time amended, and by all rules and regulations adopted pursuant to the Constitution, and by all practices of the Exchange.'
Rule 347(b) of the New York Stock Exchange, adopted in April 1958, prior to Ware's employment, provides:
'(b) Any controversy between a registered representative and any . . . member organization arising out of the employment or termination of employment of such registered representative by and with such . . . member organization shall be settled by arbitration, at the instance of any such party, in accordance with the arbitration procedure prescribed elsewhere in these rules.'
It is thus apparent that 30(j) of the form follows the language of the Exchange's Rule 347(b).
4
'§ 1281.2 Order to arbitrate controversy; petition; determination of court
'On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that:
'(a) The right to compel arbitration has been waived by the petitioner; or
'(b) Grounds exist for the revocation of the agreement. . . .'
5
In Frame, decided only five months earlier, the same California Court of Appeal reversed a trial court's order denying arbitration and thus seemingly arrived at an ultimate result opposite to that reached in the present case. The court held, 20 Cal.App.3d 668, 671—673, 97 Cal.Rptr. 811, 813—815, that Frame (like Ware) had made an agreement to arbitrate; that there was no basis for using the doctrine of adhesion to avoid arbitration; that the forfeiture provision of Art. 11.1 was ineffective under § 16600; that the agreement's provision that New York law was to apply 'must not be allowed to defeat' the policy of § 16600; that, however, the entire contract was not necessarily unlawful; and that a
'latent question exists as to whether the agreements of the parties may be construed as applying only to such permissible subjects of restraint as breaches of confidence and misappropriation of trade secrets. Other questions may be raised as to the time and circumstances of respondent's employment and the amount of any benefits earned and remaining unpaid. All of these matters, whether they involve questions of law or questions of fact, are in the first instance properly subject to arbitration.' 20 Cal.App.3d, at 673, 97 Cal.Rptr., at 815.
But no mention was made in Frame of §§ 200 and 229 of the State's Labor Code, see nn. 6—7, infra, and, as the court later said in this case, 24 Cal.App.3d 35, 43, 100 Cal.Rptr. 791, 797, '(t)he Frame court did not consider the effect of section 229 of the Labor Code on the arbitration agreement.' Apparently, neither side in Frame sought review by the California Supreme Court.
6
'§ 200. Definitions
'As used in this article: (a) 'Wages' includes all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation.'
7
'§ 229. Actions to enforce payment of wages; effect of arbitration agreements
'Actions to enforce the provisions of this article for the collection of due and unpaid wages claimed by an individual may be maintained without regard to the existence of any private agreement to arbitrate. This section shall not apply to claims involving any dispute concerning the interpretation or application of any collective bargaining agreement containing such an arbitration agreement.'
Section 229 was added to the Code in 1959. Cal.Stats.1959, c. 1939, p. 4532.
8
This approach is supported by decisions extending back to the turn of the century. Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963); Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960); International Assn. of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018 (1958); Union Brokerage Co. v. Jensen, 322 U.S. 202, 64 S.Ct. 967, 88 L.Ed. 1227 (1944); Savage v. Jones, 225 U.S. 501, 32 S.Ct. 715, 56 L.Ed. 1182 (1912).
9
The first attempt at exchange regulation arose after the panic of 1907 when, in response to public concern over speculation, President Theodore Roosevelt urged Congress to take action. 42 Cong.Rec. 1347, 1349 (1908). Nothing of significance happened, however, until after the 1929 stock market crash. It became apparent that 'transactions in securities as commonly conducted upon securities exchanges and over-the-counter markets are affected with a national public interest which makes it necessary to provide for regulation and control of such transactions and of practices and matters related thereto.' Securities Exchange Act of 1934, § 2, 15 U.S.C. § 78b. Self-regulation was adopted as a means of policing the exchanges. The tradition, as has been noted, had been one of self-governance; the financial community was strongly opposed to governmental control of daily exchange business; and the task was deemed to be of such magnitude that Government simply could not regulate effectively every aspect of the industry. Comment, 48 Minn.L.Rev. 597—598 (1964); 2 L. Loss, Securities Regulation, 1175—1176 (1961), and 5 id., at 3138—3139 (1969).
10
The Commission also has broad rule making power under the Act. See, for example, §§ 8, 9, and 11, 15 U.S.C. §§ 78h, 78i, and 78k. No question is presented in this case as to the authority of the Commission to promulgate rules affecting the operation of stock exchanges.
11
Section 1280 was repealed and replaced in 1961 to make the saving clause in § 1281 now read, 'save upon such grounds as exist for the revocation of any contract.' Cal.Stats. 1961, c. 461, pp. 1540—1541, §§ 1 and 2.
12
See citations following § 16600 in West's Ann.Calif.Bus. & Prof.Code 41 et seq.
13
The phrase 'just and equitable trade practices' would be inappropriately used to justify Rule 347(b). This is because the standard refers to rules adopted pursuant to § 6(b) of the Act, 16 U.S.C. § 78f(b), providing for the expulsion, suspension, or disciplining of a member for 'conduct or proceeding inconsistent with just and equitable principles of trade.' Arbitration is not the type of disciplinary rule that § 6(b) contemplates.
14
As noted supra, at 129, the Commission's review power over exchange rules is circumscribed by certain subject matter limitations explicitly enumerated in § 19(b). None of the subject matter categories suggests that the Commission has review authority with respect to a rule requiring arbitration of employer-employee disputes.
15
This Court and other federal courts, of course, have endorsed the suitability of arbitration to resolve federally created rights. Wilko v. Swan, 346 U.S. 427, 431, 74 S.Ct. 182, 98 L.Ed. 168 (1953); Coenen v. R. W. Pressprich & Co., 453 F.2d 1209 (C.A.2), cert. denied, 406 U.S. 949, 92 S.Ct. 2045, 32 L.Ed.2d 337 (1972). See other cases cited by Mr. Justice White in his dissenting opinion in United States Bulk Carriers, Inc. v. Arguelles, 400 U.S. 351, 374—375, 91 S.Ct. 409, 421, 27 L.Ed.2d 456 (1971). These cases, however, concern situations where a federal act itself has provided for arbitration. Yet in Wilko v. Swan an investor customer's agreement to arbitrate was held void under § 14 of the Securities Act of 1933, 15 U.S.C. § 77n, notwithstanding the provisions of § 3 of the United States Arbitration Act, 9 U.S.C. § 3. See Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967).
16
The Act contains other provisions indicating the intent of Congress that state law continues to apply where the Act itself does not. Thus, § 28(a), 15 U.S.C. § 78bb(a), states that the rights and remedies provided by the Act 'shall be in addition to any and all other rights and remedies that may exist at law or in equity.' It further provides that nothing in the Act 'shall affect the jurisdiction of the securities commission . . . of any State . . . insofar as it does not conflict with the provisions' of the Act 'or the rules and regulations thereunder.' Section 28(b), 15 U.S.C. § 78bb(b), provides that nothing in the Act 'shall be construed to modify existing law . . . with regard to the binding effect . . . of (exchange) action taken . . . to settle disputes between its members . . . on any person who has agreed to be bound thereby.'
| 78
|
414 U.S. 141
94 S.Ct. 396
38 L.Ed.2d 368
Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Petitioner,v.Hugh Kyle NAUGHTEN.
No. 72—1148.
Argued Oct. 16, 1973.
Decided Dec. 4, 1973.
Syllabus
At respondent's Oregon criminal trial, the trial judge charged, in accordance with a state statutory provision: 'Every witness is presumed to speak the truth. This presumption may be overcome by the manner in which the witness testifies, by the nature of his or her testimony, by evidence affecting his or her character, interest, or motives, by contradictory evidence or by a presumption.' Respondent was convicted and, following exhaustion of his state remedies, brought this federal habeas corpus action. The Court of Appeals, reversing the District Court, concluded that the 'presumption of truthfulness' instruction placed the burden of proving innocence upon the defendant and thus did not comport with due process. Held: The instruction cannot be considered in isolation and when viewed, as it must be, in the context of the overall charge, in which the trial court twice gave explicit instructions affirming the presumption of innocence and declaring the State's obligation to prove guilt beyond a reasonable doubt, did not so infect the entire trial that the resulting conviction violated the requirements of the Due Process Clause of the Fourteenth Amendment, the challenged instruction having neither shifted the burden of proof to the defendant nor negated the presumption of innocence accorded under state law. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, distinguished. Pp. 144—150.
476 F.2d 845, reversed.
John W. Osburn, Salem, Or., for petitioner.
Ross R. Runkel, Salem, Or., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Respondent Naughten was tried in an Oregon state court for the crime of armed robbery. The State's principal evidence consisted of testimony by the owner of the grocery store that respondent had robbed the store at gunpoint and of corroborative testimony by another eyewitness. In addition, two police officers testified that respondent had been found near the scene of the robbery and that the stolen money was located near his car in a neighboring parking lot. A few items of clothing, identified as belonging to respondent, and the stolen money were also introduced. Respondent neither took the stand himself nor called any witnesses to testify in his behalf.
2
The trial judge charged the jury that respondent was presumed innocent 'until guilt is proved beyond a reasonable doubt,' and then continued:
3
'Every witness is presumed to speak the truth. This presumption may be overcome by the manner in which the witness testifies, by the nature of his or her testimony, by evidence affecting his or her character, interest, or motives, by contradictory evidence, or by a presumption.' App. 16.
4
The trial judge also instructed the jury as to the State's burden of proof, defining in detail the concept of reasonable doubt; later, at the respondent's request, he gave an additional instruction on the presumption of innocence.1 The jury returned a verdict of guilty, and respondent was sentenced to a term in the state penitentiary.
5
The Oregon Court of Appeals affirmed respondent's conviction, finding that inclusion of the 'presumption of truthfulness' instruction in the judge's charge to the jury was not error. The Supreme Court of Oregon denied a petition for review. His state remedies thus exhausted, respondent sought federal habeas corpus relief in the United States District Court for the District of Oregon, asserting that the presumption-of-truthfulness charge shifted the State's burden to prove guilt beyond a reasonable doubt and forced respondent instead to prove his innocence. The District Court noted that similar instructions had met with disfavor in the federal courts of appeals, but observed that '(those) cases (did) not involve appeals from State Court convictions.' Recognizing that the instruction was 'proper under Oregon law,' the District Court stated:
6
'In any event, the giving of the instruction did not deprive petitioner of a federally protected constitutional right.'2
7
The Court of Appeals for the Ninth Circuit reversed.3 That court, noting that the instruction in question 'has been almost universally condemned'4 and that Naughten had not testified or called witnesses in his own behalf, went on to say:
8
'Thus, the clear effect of the challenged instruction was to place the burden on Naughten to prove his innocence. This is so repugnant to the American concept that it is offensive to any fair notion of due process of law.' 476 F.2d 845, 847.
9
We granted certiorari to consider whether the giving of this instruction in a state criminal trial so offended established notions of due process as to deprive the respondent of a constitutionally fair trial.
10
Although the presumption-of-truthfulness instruction apparently became increasingly used in federal criminal prosecutions following the publication of Judge Mathes' Jury Instructions and Forms for Federal Criminal Cases, 27 F.R.D. 39, 67 (1961),5 the instruction appears to have had quite an independent origin in Oregon practice. The instruction given in Naughten's trial was directly based on § 44.370 of the Oregon Revised Statutes, a provision first passed in 1862. Only four years ago, the Oregon Supreme Court upheld the validity of the instruction against constitutional attack. State v. Kessler, 254 Or. 124, 458 P.2d 432 (1969). At that time the court noted the extensive criticism of similar instructions in the federal courts of appeals and the possible effect of such instructions on the presumption of innocence. Nonetheless, though the court stated that 'it might be preferable not to instruct the jury in criminal cases where defendant does not take the stand that a witness is presumed to speak the truth,' it concluded that there was no error in giving the instruction 'if accompanied by an explanation of how the presumption can be overcome.' Id., at 128, 458 P.2d, at 435. The Oregon Court of Appeals followed that holding in affirming respondent's conviction in this case.
11
The criticism of the instruction by the federal courts has been based on the idea that the instruction may 'dilute,' 'conflict with,' 'seem to collide with,' or 'impinge upon' a criminal defendant's presumption of innocence;6 'clash with' or 'shift' the prosecution's burden of proof;7 or 'interfere' with or 'invade' the province of the jury to determine credibility.8 In fact, in some cases, the courts of appeals have determined that a presumption-of-truthfulness instruction is so undesirable that the defendant may be entitled to a new trial on that ground alone.9 A reading of these cases, however, indicates that the courts of appeals were primarily concerned with directing inferior courts within the same jurisdiction to refrain from giving the instruction because it was thought confusing, of little positive value to the jury, or simply undesirable. The appellate courts were, in effect, exercising the so-called supervisory power of an appellate court to review proceedings of trial courts and to reverse judgments of such courts which the appellate court concludes were wrong.
12
Within such a unitary jurisdictional framework the appellate court will, of course, require the trial court to conform to constitutional mandates, but it may likewise require it to follow procedures deemed desirable from the viewpoint of sound judicial practice although in no-wise commanded by statute or by the Constitution. Thus even substantial unanimity among federal courts of appeals that the instruction in question ought not to be given in United States district courts within their respective jurisdictions is not, without more, authority for declaring that the giving of the instruction makes a resulting conviction invalid under the Fourteenth Amendment. Before a federal court may overturn a conviction resulting from a state trial in which this instruction was used, it must be established not merely that the instruction is undesirable, erroneous, or even 'universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment.
13
In determining the effect of this instruction on the validity of respondent's conviction, we accept at the outset the well established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge. Boyd v. United States, 271 U.S. 104, 107, 46 S.Ct. 442, 443, 70 L.Ed. 857 (1926). While this does not mean that an instruction by itself may never rise to the level of constitutional error, see Cool v. United States, 409 U.S. 100, 93 S.Ct. 354, 34 L.Ed.2d 335 (1972), it does recognize that a judgment of conviction is commonly the culmination of a trial which includes testimony of witnesses, argument of counsel, receipt of exhibits in evidence, and instruction of the jury by the judge. Thus not only is the challenged instruction but one of many such instructions, but the process of instruction itself is but one of several components of the trial which may result in the judgment of conviction.
14
The Court of Appeals in this case stated that the effect of the instruction was to place the burden on respondent to prove his innocence. But the trial court gave, not once but twice, explicit instructions affirming the presumption of innocence and declaring the obligation of the State to prove guilt beyond a reasonable doubt. The Court of Appeals, recognizing that these other instructions had been given, nevertheless declared that 'there was no instruction specifically directed to that under attack so specifically directed to that under attack as can be said to have effected a cure.' 476 F.2d, at 847. But we believe this analysis puts the cart before the horse; the question is not whether the trial court failed to isolate and cure a particular ailing instruction, but rather whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.
15
This Court has recently held that the Due Process Clause requires the State in criminal prosecutions to prove guilt beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In that case the judge, presiding over the trial of a juvenile charged with stealing $112 from a woman's pocketbook, specifically found that the evidence was sufficient to convict under a 'preponderance of the evidence' standard but insufficient to convict under a 'beyond a reasonable doubt' standard. Id., at 360 and n. 2, 90 S.Ct. at 1070. Since the judge found that a New York statute compelled evaluation under the more lenient standard, the defendant was found guilty. This Court reversed, stating that '(t)he reasonable-doubt standard plays a vital role in the American scheme of criminal procedure,' id., at 363, 90 S.Ct. at 1072, and holding explicitly 'that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.' Id., at 364, 90 S.Ct. at 1073.
16
We imply no retreat from the doctrine of Winship when we observe that it was a different case from that before us now. There the trial judge made an express finding that the State was not required to prove guilt beyond a reasonable doubt; in this case the State's burden of proof was emphasized and re-emphasized in the course of the complete jury instructions. Respondent nevertheless contends that, despite the burden of proof and reasonable-doubt instructions given by the trial court, the charge as to presumption of truthfulness impliedly placed the burden of proof on him. We do not agree.
17
Certainly the instruction by its language neither shifts the burden of proof nor negates the presumption of innocence accorded under Oregon law. It would be possible perhaps as a matter of abstract logic to contend that any instruction suggesting that the jury should believe the testimony of a witness might in some tangential respect 'impinge' upon the right of the defendant to have his guilt proved beyond a reasonable doubt. But instructions bearing on the burden of proof, just as those bearing on the weight to be accorded different types of testimony and other familiar subjects of jury instructions, are in one way or another designed to get the jury off dead center and to give it some guidance by which to evaluate the frequently confusing and conflicting testimony which it has heard. The well-recognized and long-established function of the trial judge to assist the jury by such instructions is not emasculated by such abstract and conjectural emanations from Winship.
18
It must be remembered that 'review by this Court of state action expressing its notion of what will best further its own security in the administration of criminal justice demands appropriate respect for the deliberative judgment of a state in so basic an exercise of its jurisdiction.' McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 613, 87 L.Ed. 819 (1943). In this case, while the jury was informed about the presumption of truthfulness, it was also specifically instructed to consider the manner of the witness, the nature of the testimony, and any other matter relating to the witness' possible motivation to speak falsely. It thus remained free to exercise its collective judgment to reject what it did not find trustworthy or plausible. Furthermore, by acknowledging that a witness could be discredited by his own manner or words, the instruction freed respondent from any undue pressure to take the witness stand himself or to call witnesses under the belief that only positive testimony could engender disbelief of the State's witnesses.
19
The jury here was charged fully and explicitly about the presumption of innocence and the State's duty to prove guilt beyond a reasonable doubt. Whatever tangential undercutting of these clearly stated propositions may, as a theoretical matter, have resulted from the giving of the instruction on the presumption of truthfulness is not of constitutional dimension. The giving of that instruction, whether judged in terms of the reasonable-doubt requirement in In re Winship, supra, or of offense against 'same principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,' Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934), did not render the conviction constitutionally invalid.
20
Reversed.
21
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join, dissenting.
22
Respondent was found guilty of armed robbery and assault, after the jury had been charged, in pertinent part, as follows:
23
'The law provides for certain disputable presumptions which are to be considered as evidence.
24
'A presumption is a deduction which the law expressly directs to be made from particular facts and is to be considered by you along with the other evidence. However, since these presumptions are disputable presumptions only, they may be out-weighed or equaled by other evidence. Unless out-weighed or equaled, however, they are to be accepted by you as true.
25
'The law presumes that the defendant is innocent, and this presumption follows the defendant until guilt is proved beyond a reasonable doubt.
26
'Every witness is presumed to speak the truth. This presumption may be overcome by the manner in which the witness testifies, by the nature of his or her testimony, by evidence affecting his or her character, interest, or motives, by contradictory evidence, or by a presumption.
27
'Burden of Proof. The burden is upon the State to prove the guilt of the defendant beyond a reasonable doubt.' (Emphasis added.)
28
A timely objection was taken to the part instructing upon the presumption of truthfulness. In my view the charge permitted the jury to convict even though the evidence may have failed to establish respondent's guilt beyond a reasonable doubt, and therefore denied respondent due process of law.
29
The charge directed the jury to find that the State's witnesses had spoken the truth, unless the presumption of truthfulness were 'overcome' by demeanor, impeachment, or contradictory evidence. This instruction followed an earlier instruction that a presumption could be rebutted by other evidence which 'out-weighed or equaled' the presumption, but that otherwise 'the law expressly direct(ed)' that a finding be made in accordance with the presumption. Considered together, these instructions clearly required the jury to believe a witness' testimony until his or her untruthfulness had been demonstrated by evidence making it appear as likely as not that the testimony was false.1 Since the State's case rested almost entirely upon the testimony of two eyewitnesses and two police officers, see ante, at 142, and since respondent neither called witnesses nor took the stand himself, the practical effect of the court's instructions was to convert the State's burden of proving guilt beyond a reasonable doubt to proving guilt by a preponderance of the evidence.2
30
The reduction of the prosecution's burden of persuasion to a preponderance clearly conflicts with the Due Process Clause guarantee that an accused shall not be convicted 'except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.' In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). In Cool v. United States, 409 U.S. 100, 93 S.Ct. 354, 34 L.Ed.2d 335 (1972), we held that an 'unacceptable risk' existed that the jury might have understood an instruction—that certain defense testimony could properly be considered if found to be true beyond a reasonable doubt—as requiring that the defense testimony be considered only if believed beyond a reasonable doubt. Id., at 102 n. 3, 93 S.Ct. at 356. Over a dissent which asserted that the Court was parsing instructions and engaging in semantical distinctions without considering the trial court's charge to the jury as a whole, id., at 107—108, 93 S.Ct. at 358—359, the instruction was found 'fundamentally inconsistent' with our Winship decision, since a possibility existed that exculpatory testimony—that would have created a reasonable doubt in the minds of the jurors—had been rejected because not believable beyond a reasonable doubt. Id., at 104, 93 S.Ct. at 357. Thus, the evil in Cool was the unacceptable risk that jurors would understand the instruction to require that defense testimony be rejected out of hand which, if considered, might have given rise to a reasonable doubt about the defendant's guilt. Respondent suffered no less a constitutional deprivation when, in unequivocal terms, the jury was instructed to accept the statements of prosecution witnesses as true even though the jurors might have entertained substantial and reasonable doubts about the veracity of the testimony—but not sufficient to conclude that it was as likely as not that the testimony was false.
31
Moreover, the presumption-of-truthfulness instruction itself is constitutionally defective. In Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970), we approved an inference of 'knowledge' from the fact of possessing smuggled heroin, because "(c)ommon sense' . . . tells us that those who traffic in heroin will inevitably become aware that the product they deal in is smuggled,' id., at 417; at the same time, we rejected the presumption that possession of unstamped cocaine was prima facie evidence that the drug was not purchased in or from the original stamped container, because a 'reasonable possibility' existed that the defendant 'stole the cocaine himself or obtained it from a stamped package in possession of the actual thief.' Id., at 423—424, 90 S.Ct. at 653, 656 (emphasis added). In the instant case, common sense does not dictate that a prosecution witness who has sworn or affirmed to tell the truth will inevitably do so, and there is surely a reasonable possibility that he will fail to do so.3 Since here no defense witnesses were called, the practical effect of the presumption of truthfulness was to permit the jury to find each and every element of the crimes charged without requiring that the elements be proved beyond a reasonable doubt. The presumption itself thus violates the mandate of winship that 'every fact necessary to constitute the crime' be proved beyond a reasonable doubt. See Barnes v. United States, 412 U.S. 837, 854, 93 S.Ct. 2357, 2367, 37 L.Ed.2d 380 (1973) (Brennan, J., dissenting).
32
Viewed in the context of the overall charge to the jury, the instructions were no less objectionable. To be sure—as had been the case in Cool—the jurors were instructed that guilt must be proved beyond a reasonable doubt. However, they were also directed in effect to ignore certain doubts they might have entertained concerning the credibility of the prosecution's witnesses. Had the instructions concerning the reasonable-doubt standard necessarily contradicted the instructions dealing with the burden of proof needed to overcome the truthfulness presumption, the constitutional objection might have been dissipated. But there is, in my view, an 'unacceptable risk' that the jury understood the instructions unambiguously to require that they put to one side certain doubts about the credibility of the testimony they had heard and only then determine whether the evidence supported a finding of guilt beyond a reasonable doubt.4 I therefore conclude that the instructions are constitutionally infirm.
33
In this circumstance, the constitutional error inhering in the instruction cannot properly be viewed as harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). The reasonable-doubt standard reduces the risk that an error in factfinding could deprive an innocent man of his good name and freedom. See In re Winship, supra, 397 U.S., at 363—364, 90 S.Ct. at 1072—1073. It also impresses the jurors with their solemn responsibility to avoid being misled by suspicion, conjecture, or mere appearance, and to arrive at a state of certainty concerning the proper resolution of the relevant factual issues. Here, the truth-finding function of the jury was invaded and the State's burden of proving guilt beyond a reasonable doubt was diminished. When the reasonable-doubt standard has been thus compromised, it cannot be said beyond doubt that the error 'made no contribution to a criminal conviction.' Harrington v. California, 395 U.S. 250, 255, 89 S.Ct. 1726, 1729, 23 L.Ed.2d 284 (1969) (dissenting opinion). Rather, such an error so conflicts with an accused's right to a fair trial that the 'infraction can never be treated as harmless error.' Chapman v. California, supra, 386 U.S., at 23, 87 S.Ct., at 827.
1
The judge also instructed the jury that respondent did not have to testify and that the jury was to draw no inference of guilt from his failure to do so.
2
Alternatively, the District Court held that assuming there has been error of constitutional proportions in the charge, the error was harmless in view of the overwhelming evidence of guilt. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). The Court of Appeals, without detailing its reasoning, disagreed, stating that the State had not met its burden of showing that the error was harmless. In view of our disposition of this case, we do not reach that issue.
3
476 F.2d 845, 846 (1972). The court then denied a petition for rehearing by an equally divided vote.
4
The court cited nine cases from various federal courts of appeals, all of which had expressed disapproval of the presumption-of-truthfulness instruction. See United States v. Birmingham, 447 F.2d 1313 (C.A.10, 1971); United States v. Stroble, 431 F.2d 1273 (C.A.6, 1970); McMillen v. United States, 386 F.2d 29 (C.A.1, 1967), cert. denied, 390 U.S. 1031, 88 S.Ct. 1424, 20 L.Ed.2d 288 (1968); United States v. Dichiarinte, 385 F.2d 333 (C.A.7, 1967); United States v. Johnson, 371 F.2d 800 (C.A.3, 1967); United States v. Persico, 349 F.2d 6 (C.A.2, 1965). See also United States v. Safley, 408 F.2d 603 (C.A.4, 1969); Harrison v. United States, 387 F.2d 614 (C.A.5, 1968); Stone v. United States, 123 U.S.App.D.C. 369, 379 F.2d 146 (1967) (Burger, J.). None of these cases, however, dealt with review of a state court proceeding.
5
Judge Mathes' original instruction was modified in W. Mathes & E. Devitt, Federal Jury Practice and Instructions § 9.01 (1965), and is not included in E. Devitt & C. Blackmar, Federal Jury Practice and Instructions (2d ed. 1970). See id., vol. 1, § 12.01, and accompanying note.
6
See, e.g., United States v. Johnson, supra, 371 F.2d, at 804; United States v. Stroble, supra, 431 F.2d, at 1278; United States v. Dichiarinte, supra, 385 F.2d, at 339; Stone v. United States, supra, 126 U.S.App.D.C., at 370, 126 U.S.App.D.C. 369, 379 F.2d, at 147.
7
See, e.g., United States v. Meisch, 370 F.2d 768, 774 (C.A.3, 1966); United States v. Birmingham, supra, 447 F.2d at 1315.
8
See, e.g., United States v. Stroble, supra; United States v. Birmingham, supra.
9
See, e.g., United States v. Birmingham, supra. However, the instruction given in Birmingham was somewhat different from the instruction given here. The jury there was told that the presumption of truthfulness controlled '(u) nless and until outweighed by evidence to the contrary.' 447 F.2d, at 1315. Apparently no additional instruction was given regarding consideration of the manner or nature of the witnesses' testimony or of the witnesses' possible motivations to speak falsely. See also Johnson, supra.
1
Due to the structuring of the instructions it is conceivable that the jurors would have understood that, since the presumption of innocence could be overcome only by proof of guilt beyond a reasonable doubt, the presumption of truthfulness could likewise be overcome only by evidence of untruthfulness beyond a reasonable doubt. If the instructions were in fact understood in this manner, the ensuing arguments concerning the unconstitutionality of the instructions would follow a fortiori.
2
The courts of appeals in every circuit have disapproved of presumption-of-truthfulness instructions and have often expressed their objections in terms of constitutional values. See McMillen v. United States, 386 F.2d 29 (C.A.1, 1967); United States v. Bilotti, 380 F.2d 649 (C.A.2, 1967); United States v. Evans, 398 F.2d 159 (C.A.3, 1968); United States v. Safley, 408 F.2d 603 (C.A.4, 1969); United States v. Reid, 469 F.2d 1094 (C.A.5, 1972); United States v. Stroble, 431 F.2d 1273 (C.A.6, 1970); United States v. Dichiarinte, 385 F.2d 333 (C.A.7, 1967); United States v. Gray, 464 F.2d 632 (C.A.8, 1972); the instant case, Naughten v. Cupp, 476 F.2d 845 (C.A.9, 1972); United States v. Birmingham, 447 F.2d 1313 (C.A.10, 1971); Stone v. United States, 126 U.S.App.D.C. 369, 379 F.2d 146 (1967). But the courts have been particularly concerned about the impact that such instructions might have when the defendant has not offered testimony. See United States v. Safley, supra, 408 F.2d at 605; United States v. Boone, 401 F.2d 659, 661 (C.A.3, 1968); United States v. Evans, supra, 398 F.2d at 162; United States v. Dichiarinte, supra, 385 F.2d at 339; Stone v. United States, supra, at 370, 379 F.2d, at 147; United States v. Johnson, 371 F.2d 800, 805 (C.A.3, 1967); United States v. Meisch, 370 F.2d 768, 774 (C.A.3, 1966). However, even in a situation where the defendant has introduced rebuttal testimony, the impact of the presumption on the parties will be imponderable and not necessarily equal. See McMillen v. United States, supra, 386 F.2d at 33.
3
The origins of the presumption that witnesses will testify truthfully appear to extend back at least into the 19th century, see ante, at 144—145, when it was a widely held belief that a willful violation of the oath would expose the witness 'at once to temporal and to eternal punishment.' T. Starkie, Law of Evidence 29 (10th Am. ed. 1876). In addition, at that time many of the common-law rules of incompetency were applied to disqualify individuals from testifying for reasons which today would merely be grounds for impeachment. See generally 9 W. Holdsworth, History of English Law 177—197 (1926); C. McCormick, Evidence, c. 7 (2d ed. 1972). Since that time, the rationale underlying the presumption has been substantially undercut.
4
The majority's reliance on Boyd v. United States, 271 U.S. 104, 46 S.Ct. 442, 70 L.Ed. 857 (1926), ante, at 146—147, is misplaced. There it was found that an 'ambiguous' statement in the charge in a criminal case was likely understood in its harmless sense because of additional curative instructions. Id., at 107, 46 S.Ct., at 443. The disputed instruction, even if erroneous, concerned a question of law under the Harrison Anti-Narcotic Act not of constitutional dimension, and the Court relied on the fact that a proper objection had not been taken to the charge. See id., at 107—108, 46 S.Ct., at 443.
| 01
|
414 U.S. 168
94 S.Ct. 414
38 L.Ed.2d 388
GOLDEN STATE BOTTLING COMPANY, INC., et al., Petitioners,v.NATIONAL LABOR RELATIONS BOARD.
No. 72—702.
Argued Oct. 11, 1973.
Decided Dec. 5, 1973.
Syllabus
Petitioner All American Beverages, Inc. (All American), purchased the soft drink bottling and distribution business of petitioner Golden State Bottling Co. (Golden State) after the National Labor Relations Board (NLRB) had ordered Golden State, 'its officers, agents, successors, and assigns' to reinstate with backpay a driver-salesman whose discharge by Golden State was found to have been an unfair labor practice. In a subsequent back-pay specification proceeding to which both firms were parties, upon finding that All American after the acquisition continued the business without interruption or substantial change in operations, employee complement, or supervisory personnel, and that hence All American, having acquired the business with knowledge of the outstanding NLRB order, was a 'successor' for purposes of the National Labor Relations Act (NLRA), liable for the reinstatement of the driver-salesman with backpay, the NLRB ordered All American to reinstate him and both firms jointly or severally to pay him a specified sum of backpay. The Court of Appeals enforced the order. Held:
1. The Court of Appeals did not err in determining that, on the record as a whole, substantial evidence supported the NLRB's finding that All American purchased the business with knowledge of the unfair labor practice litigation, since it cannot be said on the basis of the record that the Court of Appeals 'misapprehended or grossly misapplied' the standard of review. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. Pp. 172—174.
2. The issuance of a reinstatement and backpay order against a bona fide successor that did not itself commit the unfair labor practice does not exceed the NLRB's remedial powers under § 10(c) of the NLRA, since such powers include broad discretion to fashion and issue such an order in order to achieve the ends and effectuate the policies of the Act. Pp. 175—177.
3. Federal Rule Civ.Proc. 65(d), which provides that injunctions and restraining orders shall be binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order, does not bar judicial enforcement of the NLRB order running to All American, since a bona fide successor, acquiring, with knowledge that the wrong remains unremedied, the employing enterprise which was the locus of the unfair labor practice, may be considered in privity with its predecessor for purposes of Rule 65(d). Pp. 177 181.
4. The NLRB properly exercised its discretion in issuing the order against All American by striking an equitable balance among the conflicting legitimate interests of the bona fide successor, the public, and the affected employee for purposes of effectuating the national labor policies of avoiding labor strife, preventing a deterrent effect on the exercise of rights guaranteed employees by § 7 of the NLRA, and protecting the victimized employee, such policies being achieved at a relatively minimal cost to the bona fide successor. Pp. 181—185.
5. The NLRB did not err in ordering both firms jointly or severally to pay the driver-salesman a specified sum of backpay, since an offending predecessor-employer should at least be required to make the dischargee whole for any loss of pay suffered by reason of the discharge until such time as he secures substantially equivalent employment, since joint and several liability will more fully insure that the employee is fully recompensed by protecting him against, e.g., the successor's insolvency, and since the possibility that the successor will unjustifiably delay reinstatement to the predecessor's prejudice can be met by a protective provision in the contract of sale. Pp. 186—187.
6. The fact that the driver-salesman, but for his discharge as an ordinary employee would, under Golden State's policy, have become a distributor about a year later and as an independent contractor would have been excluded from NLRA coverage, did not preclude the NLRB from including in the gross backpay computation the dischargee's putative earnings as a distributor, since a reinstatement and backpay order is aimed at restoring the status quo that would have obtained but for the employer's unfair labor practice. Pp. 187—189.
9 Cir., 467 F.2d 164, affirmed.
Morton B. Jackson, Los Angeles, Cal., for petitioners.
Norton J. Come, Washington, D.C., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The principal question for decision in this case is whether the bona fide purchaser of a business, who acquires and continues the business with knowledge that his predecessor has committed an unfair labor practice in the discharge of an employee, may be ordered by the National Labor Relations Board to reinstate the employee with backpay.
2
Petitioners are Golden State Bottling Co., Inc. (Golden State), and All American Beverages, Inc. (All American). All American bought Golden State's soft drink bottling and distribution business after the National Labor Relations Board had ordered Golden State, 'its officers, agents, successors, and assigns' to reinstate with backpay a driver-salesman, Kenneth L. Baker, whose discharge by Golden State was found by the Board to have been an unfair labor practice.1 In a subsequent backpay specification proceeding to which both Golden State and All American were parties, see 29 CFR §§ 102.52—102.59, the Board found that All American continued after the acquisition to carry on the business without interruption or substantial changes in method of operation, employee complement, or supervisory personnel. In that circumstance, although All American was a bona fide purchaser of the business, unconnected with Golden State, the Board found that All American, having acquired the business with knowledge of the outstanding Board order, was a 'successor' for purposes of the National Labor Relations Act and liable for the reinstatement of Baker with backpay under the principles announced in Perma Vinyl Corp., 164 N.L.R.B. 968 (1967), enforced sub nom. United States Pipe & Foundary Co. v. NLRB, 398 F.2d 544 (CA5 1968).2 The Board therefore ordered that All American reinstate Baker and that Golden State and All American jointly or severally pay Baker a specified sum of net backpay. 187 N.L.R.B. 1017 (1971). The Court of Appeals for the Ninth Circuit, one judge dissenting, enforced the order, 467 F.2d 164 (1972). We granted certiorari, 410 U.S. 953, 93 S.Ct. 1417, 35 L.Ed.2d 685 (1973). We affirm.
3
* There is a threshold question of whether the Court of Appeals erred in determining that the evidence 'offered substantial support for the Board's finding that All American purchased (the bottling business) with knowledge of the unfair labor practice litigation.' 467 F.2d, at 165. We address that question mindful of the congressionally imposed limitation on this Court's review of the Court of Appeals' determination:
4
'Whether on the record as a whole there is substantial evidence to support agency findings is a question which Congress has placed in the keeping of the Courts of Appeals. This Court will intervene only in what ought to be the rare instance when the standard appears to have been misapprehended or grossly misapplied.' Universal Camera Corp. v.
5
NLRB, 340 U.S. 474, 491, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951). (Emphasis added.)
6
Thus limited, we cannot find fault with the Court of Appeals' conclusion that, on the record as a whole, substantial evidence supported the Board's finding that All American purchased the business with knowledge of the unfair labor practice litigation. Eugene Schilling, Golden State's secretary and manager of the bottling business, who had discharged Baker and then closely followed the progress of the litigation, continued with the enterprise under All American's ownership with the title of general manager and 'president'. Indeed, All American's purchase of the business was conditioned on Schilling's staying on in a managerial capacity; the sales contract expressly stipulated that Schilling 'shall have agreed to be employed by (All American) for a period of one year after the Closing Date as General Manager . . ..' Schilling participated on at least one occasion with Golden State's president, Edwin J. Crofoot, in the sale negotations. Even if strict agency principles would not impute Schilling's knowledge to All American until Schilling actually entered its employ, see Restatement (Second) of Agency § 9(3) (1958); Thomas Engine Corp., 179 N.L.R.B. 1029, 1042 (1970), enforced sub nom. NAW v. NLRB, 442 F.2d 1180 (CA9 1971), the Court of Appeals cannot be said to have 'misapprehended or grossly misapplied' the governing standard in appraising this evidence as sufficiently substantial to support an inference that Schilling informed his prospective employer of the litigation before completion of the sale. It is true that both Schilling and Crofoot testified at the hearing in the specification proceeding that they had not informed All American of the litigation before the sale was completed. But the trial examiner refused to credit their testimony in light of documentary evidence from which he inferred that the Golden State officials had attempted to conceal the sale from the Board, 187 N.L.R.B., at 1021. The examiner also refused to credit Crofoot's testimony that, while All American expressly asked him whether any litigation was pending, he did not mention the unfair labor practice case because he had forgotten it, although admitting that he had authorized payment of substantial fees in connection with it. Ibid. Finally, the examiner inferred from the unexplained failure of All American to produce its negotiators as witnesses that their testimony would not have supported All American's disclaimer of knowledge.3
7
On this state of the record, there is no justification for this Court's intervention, since Universal Camera precludes us from substituting our judgment for that of the Court of Appeals. 'This is not the place . . . to reverse a Court of Appeals because were we in its place we would find the record tilting one way rather than the other . . ..' NLRB v. Pitsburg S.S. Co., 340 U.S. 498, 503, 71 S.Ct. 453, 456, 95 L.Ed. 479 (1951); see Central Hardware Co. v. NLRB, 407 U.S. 539, 548, 92 S.Ct. 2238, 2243, 33 L.Ed.2d 122 (1972).
II
8
The Board has pursued an uneven course in its treatment of a bona fide successor's liability to remedy the unfair labor practices of its predecessor. In 1944 the Board determined that liability would not be imposed on a bona fide successor, South Carolina Granite Co., 58 N.L.R.B. 1448, enforced sub nom. NLRB v. Blair Quarries, Inc., 152 F.2d 25 (CA4 1945). In 1947 the Board abandoned that view and determined that joint and several remedial responsibility would be imposed upon a bona fide successor who had knowledge of the seller's unfair labor practice at the time of the purchase, Alexander Milburn Co., 78 N.L.R.B. 747. When, however, two Courts of Appeals refused to enforce remedial orders against bona fide successors NLRB v. Birdsall-Stockdale Motor Co., 208 F.2d 234 (CA10 1953), and NLRB v. Lunder Shoe Corp., 211 F.2d 284 (CA1 1954), the Board, in 1954, re-examined and overruled Alexander Milburn Co., declaring in Symns Grocer Co., 109 N.L.R.B. 346, that '(n)o provision of the (National Labor Relations) Act authorizes the Board to impose the responsibility for remedying unfair labor practices on persons who did not engage therein.' Id., at 348. Finally, in 1967, in yet another turnabout, the Board overruled Symns Grocer Co. in Perma Vinyl, supra, and announced that, in circumstances there defined, see n. 2, supra, remedial orders would be imposed upon bona fide successors for the unfair labor practices of their predecessors.
9
We must consider at the outset whether the issuance of a reinstatement and backpay order against a bona fide successor exceeds the Board's remedial powers under § 10(c) of the Act, 29 U.S.C. § 160(c). Section 10(c), in pertinent part, provides:
10
'If upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in . . . any such unfair labor practice, then the Board . . . shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act . . ..' (Emphasis added.)
11
The Board's restrictive view in Symns Grocer Co. of its remedial powers derived from a limitation perceived to inhere in the words 'any person named in the complaint has engaged in . . . any such unfair labor practice' (emphasis added). These words were regarded as precluding authority to issue remedial orders against persons, like bona fide successors, who had not perpetrated the unfair labor practice. In Perma Vinyl, however, the Board found a broader authority in the words of the section authorizing the Board 'to take such affirmative action . . . as will effectuate the policies of this Act.' These words were construed as granting 'broad administrative power . . . to frame such remedial orders . . . not, of course, restricted to requiring remedial action by the offending employer alone,' 164 N.L.R.B., at 969, as were necessary to further the public interest subserved by the Act. See NLRB v. Colten, 105 F.2d 179 (CA6 1939).
12
We agree that the Board's remedial powers under § 10(c) include broad discretion to fashion and issue the order before us as relief adequate to achieve the ends, and effectuate the policies, of the Act. Early on, this Court recognized that § 10(c) does not limit the Board's remedial powers to the actual perpetrator of an unfair labor practice and thereby prevent the Board from issuing orders binding a successor who did not himself commit the unlawful act. We have said that a Board order that, as in this case, runs to the 'officers, agents, successors, and assigns' of an offending employer, may be applied, not only to a new employer who is 'merely a disguised continuance of the old employer,' Southport Petroleum Co. v. NLRB, 315 U.S. 100, 106, 62 S.Ct. 452, 456, 86 L.Ed. 718 (1942), but also "in appropriate circumstances . . . (to) those to whom the business may have been transferred, whether as a means of evading the judgment or for other reasons." Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14, 65 S.Ct. 478, 481, 89 L.Ed. 661 (1945) (emphasis added); see also NLRB v. Ozark Hardwood Co., 282 F.2d 1, 5 (CA8 1960). If the words 'person named in the complaint has engaged in . . . any . . . such unfair labor practice' in § 10(c) do not restrict Board authority to prevent orders running to the offending employer's successors and assigns who have acquired the business as a means of evading the Board order, we do not see how those words may be read to bar the Board from issuing reinstatement and backpay orders against bona fide successors when the Board has properly found such orders to be necessary to protect the public interest in effectuating the policies of the Act. The Board's orders run to the evader and the bona fide purchaser, not because the act of evasion or the bona fide purchase is an unfair labor practice, but because the Board is obligated to effectuate the policies of the Act. Construing § 10(c) thus to grant the Board remedial power to issue such orders results in a reading of the section, as it should be read, in the light of "the provisions of the whole law, and . . . its object and policy." Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 285, 76 S.Ct. 349, 359, 100 L.Ed. 309 (1956); see NLRB v. Lion Oil Co., 352 U.S. 282, 288, 77 S.Ct. 330, 333, 1 L.Ed.2d 331 (1957).
13
It is also argued, however, that Fed.Rule Civ.Proc. 65(d), in any event, is a bar to judicial enforcement of a Board order requiring that a bona fide successor reinstate with backpay an employee illegally discharged by its predecessor. We disagree.4 Rule 65(d) provides that injunctions and restraining orders shall be 'binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.' See generally O. Fiss, Injunctions 691—700 (1972). We reject petitioners' contention that Regal Knitwear Co. v. NLRB, supra, 324 U.S. at 14, 65 S.Ct. at 481, supports the argument that this Rule is a bar to judicial authority to enforce Board orders against bona fide successors. In Regal Knitwear, the Court refused the offending employer's application to strike the phrase 'successors and assigns' from the Board's order, citing Walling v. James V. Reuter, Inc., 321 U.S. 671, 64 S.Ct. 826, 88 L.Ed. 1001 (1944), which involved an injunction against violation of the Fair Labor Standards Act. Regal Knitwear treated a Board cease-and-desist order as 'somewhat analogous' to such an injunction, and stated:
14
"Not only is such an injunction enforcible by contempt proceedings against the corporation, its agents and officers and those individuals associated with it in the conduct of its business, but it may also, in appropriate circumstances, be enforced against those to whom the business may have been transferred, whether as a means of evading the judgment or for other reasons.' . . .
15
'We do not undertake to decide whether or under what circumstances any kind of successor or assign will be liable for violation of a Labor Board order. . . . (W)hether one brings himself in contempt as a 'successor or assign' depends on an appraisal of his relations and behavior and not upon mere construction of terms of the order.' 324 U.S., at 14—15, 65 S.Ct. at 481.
16
Plainly then, Regal Knitwear recognizes that Rule 65(d) is not a bar to enforcement of all Board orders running to successors or assigns not themselves offending employers. The Court simply left open the question of whether the Rule precludes the enforcement of remedial orders running to a successor who is a bona fide purchaser. We answer that question today by holding that the Rule is not a bar to judicial enforcement of the Board order entered against the bona fide successor in this case.
17
Rule 65(d) 'is derived from the common-law doctrine that a decree of injunction not only binds the parties defendant but also those identified with them in interest, in 'privity' with them, represented by them or subject to their control.' Regal Knitwear, 324 U.S., at 14, 65 S.Ct. at 481. Persons acquiring an interest in property that is a subject of litigation are bound by, or entitled to the benefit of, a subsequent judgment, despite a lack of knowledge. Restatement of Judgments § 89, and comment c (1942); see 1 J. Story, Equity Jurisprudence § 536 (14th ed. 1918). This principle has not been limited to in rem or quasi in rem proceedings. Restatement of Judgments, supra, § 89, comment d; see ICC v. Western N.Y. & P.R. Co., 82 F. 192, 194 (W.D.Pa.1897). We apply that principle here in order to effectuate the public policies of the Act. 'Courts of equity may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved.' Virginia R. Co. v. System Federation, 300 U.S. 515, 552, 57 S.Ct. 592, 601, 81 L.Ed. 789 (1937); see Walling v. James V. Reuter, Inc., 321 U.S., at 674 675, 64 S.Ct. at 827. We hold that a bona fide purchaser, acquiring, with knowledge that the wrong remains unremedied, the employing enterprise which was the locus of the unfair labor practice, may be considered in privity with its predecessor for purposes of Rule 65(d). Cf. United States v. Hall, 472 F.2d 261, 266—267 (CA5 1972); Rivera v. Lawton, 35 F.2d 823 (CA1 1929); United States v. Dean Rubber Mfg. Co., 71 F.Supp. 96 (WD Mo.1946); United Gilpin Corp. v. Wilmore, 100 Colo. 453, 68 P.2d 34 (1937); 7 J. Moore, Federal Practice 65.13, p. 109 and n. 1 (2d ed. 1973).
18
Our holding in no way contravenes the policy underlying Rule 65(d), of not having 'order(s) or injunction(s) so broad as to make punishable the conduct of persons who act independently and whose rights have not been adjudged according to law.' Regal Knitwear, 324 U.S., at 13, 65 S.Ct. at 481; see Alemite Mfg. Corp. v. Staff, 42 F.2d 832 (CA2 1930). The tie between the offending employer and the bona fide purchaser of the business, supplied by a Board finding of a continuing business enterprise, establishes the requisite relationship of dependence. Moreover, procedures were announced in Perma Vinyl which provide the necessary procedural safeguards. There will be no adjudication of liability against a bona fide successor 'without affording (it) a full opportunity at a hearing, after adequate notice, to present evidence on the question of whether it is a successor which is responsible for remedying a predecessor's unfair labor practices. The successor (will) also be entitled, of course, to be heard against the enforcement of any order issued against it.' 164 N.L.R.B., at 969.
19
In this case, All American has no complaint that it was denied due notice and a fair hearing. It was made a party to the supplemental backpay specification proceeding, given notice of the hearing, and afforded full opportunity, with the assistance of counsel, to contest the question of its successorship for purposes of the Act and its knowledge of the pendency of the unfair labor practice litigation at the time of purchase.
20
We now turn to the question whether the Board properly exercised its discretion in issuing the order against All American. The Board's decisional process in the Perma Vinyl line of cases has involved striking a balance between the conflicting legitimate interests of the bona fide successor, the public, and the affected employee. What we said of the Board's decisional process in another context is pertinent here:
21
'The ultimate problem is the balancing of the conflicting legitimate interests. The function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review.' NLRB v. Truck Drivers Local Union 449 International Brotherhood of Teamsters, 353 U.S. 87, 96, 77 S.Ct. 643, 648, 1 L.Ed.2d 676 (1957).
22
The Board's Perma Vinyl principles introduced into the balancing process an emphasis upon protection for the victimized employee:
23
'Especially in need of help, it seems to us, are the employee victims of unfair labor practices who, because of their unlawful discharge, are now without meaningful remedy when title to the employing business operation changes hands.' 164 N.L.R.B., at 969.
24
The Board found support for this policy, and we think properly, in the Court's observation in John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 549, 84 S.Ct. 909, 919, 11 L.Ed.2d 898 (1964):
25
'Employees . . . ordinarily do not take part in negotiations leading to a change in corporate ownership. The negotiations will ordinarily not concern the well-being of the employees, whose advantage or disadvantage, potentially great, will inevitably be incidental to the main considerations. The objectives of national labor policy, reflected in established principles of federal law, require that the rightful prerogative of owners independently to rearrange their businesses and even eliminate themselves as employers be balanced by some protection to the employees from a studden change in the employment relationship.'
26
In Wiley a labor union sued under § 301 of the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U.S.C. § 185, to compel a corporate employer to arbitrate under a collective-bargaining agreement. The agreement originally had been entered into with another corporation which had subsequently merged with Wiley for genuine business reasons. We held that the disappearance of the contracting corporation by merger did not necessarily terminate the rights of employees guaranteed by the agreement and that the successor employer could be compelled to arbitrate, so long as there was a 'substantial continuity of identity in the business enterprise,' evidenced there by the wholesale transfer of the predecessor's employees to the successor. 376 U.S., at 551, 84 S.Ct. at 915.5
27
Later, in NLRB v. Burns International Security Services, Inc., 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972), the Court extended the Wiley principle to a case where the original employer, a plant protection company, was displaced by a different company. The new company hired a majority of the employees of the old company. The Court held that the new company had been properly ordered to bargain with the bargaining representative which had been certified to the old company, since the bargaining unit remained essentially unchanged. It was also held, however, that the new employer was not bound by the collective-bargaining agreement agreed to by the union and the predecessor employer, inasmuch as § 8(d) of the Act, as well as the legislative history of the labor laws, reflected a policy against compelling a party to agree to substantive contractual obligations. 406 U.S., at 281— 284, 291, 92 S.Ct. at 1579, 1584. Similarly, the Court refused to bind the union, since it might have made bargaining concessions with the previous employer which it would not necessarily agree to in negotiations with the successor. Id., at 288, 92 S.Ct. at 1582.
28
We in no way qualify the Burns holdings in concluding that the Board's order against All American strikes an equitable balance.6 When a new employer, such as All American, has acquired substantial assets of its predecessor and continued, without interruption or substantial change, the predecessor's business operations, those employees who have been retained will understandably view their job situations as essentially unaltered. Under these circumstances, the employees may well perceive the successor's failure to remedy the predecessor employer's unfair labor practices arising out of an unlawful discharge as a continuation of the predecessor's labor policies. To the extent that the employees' legitimate expectation is that the unfair labor practices will be remedied, a successor's failure to do so may result in labor unrest as the employees engage in collective activity to force remedial action. Similarly, if the employees identify the new employer's labor policies with those of the predecessor but do not take collective action, the successor may benefit from the unfair labor practices due to a continuing deterrent effect on union activities. Moreover, the Board's experience may reasonably lead it to believe that employers intent on suppressing union activity may select for discharge those employees most actively engaged in union affairs, so that a failure to reinstate may result in a leadership vacuum in the bargaining unit. Cf. Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 193, 61 S.Ct. 845, 852, 85 L.Ed. 1271 (1941). Further, unlike Burns, where an important labor policy opposed saddling the successor employer with the obligations of the collective-bargaining agreement, there is no underlying congressional policy here militating against the imposition of liability.
29
Avoidance of labor strife, prevention of a deterrent effect on the exercise of rights guaranteed employees by § 7 of the Act, 29 U.S.C. § 157, and protection for the victimized employee—all important policies subserved by the National Labor Relations Act, see 29 U.S.C. § 141—are achieved at a relatively minimal cost to the bona fide successor. Since the successor must have notice before liability can be imposed, 'his potential liability for remedying the unfair labor practices is a matter which can be reflected in the price he pays for the business, or he may secure an indemnity clause in the sales contract which will indemnify him for liability arising from the seller's unfair labor practices.' Perma Vinyl Corp., 164 N.L.R.B., at 969. If the reinstated employee does not effectively perform, he may, of course, be discharged for cause. See 29 U.S.C. § 160(c).7
III
30
Golden State attacked in the Court of Appeals the provision of the Board's order directing that it and All American jointly or severally pay Baker a specified sum of net backpay. Golden State contends that, at most, it 'should be ordered to pay to Baker back pay he would have earned as a driver-salesman in Golden State's employ from the date of this wrongful termination until the date of sale of the bottling company by Golden State, January 31, 1968.' Brief for Petitioners 60.8 The Court of Appeals declined to consider this argument because Golden State had agreed orally and in the contract of sale to indemnify All American for any backpay paid Baker by All American and therefore was 'liable for such wages by virtue of its agreement, whether or not it would also be liable absent that agreement.' 467 F.2d, at 166. But Golden State's contractual obligation may be subject to contractual defenses and for that reason may not in fact be the equivalent of the liability imposed upon Golden State by the order. We shall therefore decide Golden State's challenge to the validity of the imposition of joint and several liability upon Golden State. We find no merit in the challenge.
31
The Board justified such provisions in Perma Vinyl in these words: 'With respect to the offending employer himself, it must be obvious that it cannot be in the public interest to permit the violator of the Act to shed all responsibility for remedying his own unfair labor practices by simply disposing of the business. If he has unlawfully discharged employees before transferring ownership to another, he should at least be required to make would the dischargees for any loss of pay suffered by reason of the discharges until such time as they secure substantially equivalent employment with another employer.' 164 N.L.R.B., at 970. In addition, joint and several liability will more fully insure that the employee is fully recompensed by protecting him, e.g., against the insolvency of the successor. The possibility that the successor will injustifiably delay reinstatement to the predecessor's prejudice can be met by a protective provision in the contract of sale. We cannot say that the Board has erred in thus 'striking (the) balance to effectuate national labor policy . . ..' NLRB v. Teamsters Local 449, 353 U.S., at 96, 77 S.Ct. at 648.9
IV
32
When Baker was discharged on August 16, 1963, he was Golden State's leading driver-salesman. On October 1, 1964, Golden State began converting its top driver-salesmen to distributors, or independent contractors, who realized net profits, after the deduction of their operating expenses, from the purchase of products from Golden State and the resale to customers. The Board found that Baker would have become a distributor on October 1, 1964, but for his discharge on August 16, 1963. The Board therefore computed Baker's gross backpay subsequent to October 1, 1964, on the basis of what he would have earned as a distributor after that date.
33
Petitioners argue that the change on October 1, 1964, from driversalesman to distributor ended their liability to Baker on that date because distributors are 'independent contractors' excluded from coverage of the Act by 29 U.S.C. § 152(3). The Court of Appeals rejected that contention, stating:
34
'However, it is undisputed that when Baker was discriminatorily discharged he was an ordinary employee. The Act's remedies are not thwarted by the fact that an employee who is within the Act's protections when the discrimination occurs would have been promoted or transferred to a position not covered by the Act if he had not been discriminated against. N.L.R.B. v. Bell Aircraft Corp., 206 F.2d 235, 236 237 (2d Cir. 1953).' 467 F.2d, at 166.
35
We agree with the Court of Appeals and add only the observation that its conclusion is buttressed by the consideration that an order requiring reinstatement and backpay is aimed at 'restoring the economic status quo that would have obtained but for the company's wrongful refusal to reinstate . . ..' N.L.R.B. v. J. H. Rutter-Rex Mfg. Co., Inc., 396 U.S. 258, 263, 90 S.Ct. 417, 420, 24 L.Ed.2d 405 (1969).10 The Board treats net profits of the employee who goes into business on his own as interim earnings for the purpose of computing net backpay. Mastro Plastics Corp., 136 N.L.R.B. 1342, 1350 (1962), enforced in part, N.L.R.B. v. Mastro Plastics Corp., 354 F.2d 170 (CA2 1965). In the effort to restore the economic status quo that would have obtained but for Baker's wrongful discharge, it was also proper to compute what he would have earned after October 1, 1964, on the basis of his net profits as a distributor. Cf. N.L.R.B. v. Rice Lake Creamery Co., 124 U.S.App.D.C. 355, 358, 365 F.2d 888, 891 (1966); N.L.R.B. v. Mooney Aircraft, Inc., 375 F.2d 402 (CA5 1967).
36
Affirmed.
1
On June 10, 1964, the Board found that Golden State violated § 8(a)(3) and (1) of the National Labor Relations Act, 49 Stat. 452, as amended, 29 U.S.C. §§ 158(a)(3) and (1), by discharging Baker, on August 16, because of union activities, and ordered Baker's reinstatement with backpay. 147 N.L.R.B. 410. On December 2, 1965, the Court of Appeals for the Ninth Circuit enforced the Board's order with respect to Baker. 9 Cir., 353 F.2d 667. Due to a delay in the Court of Appeals' disposition of the Board's petition for rehearing on a portion of the court's decision unrelated to Baker, a final decree was not entered until November 27, 1968, see 401 F.2d 454.
2
Perma Vinyl states the principles and their rationale as follows: 'To further the public interest involved in effectuating the policies of the Act and achieve the 'objectives of national labor policy, reflected in established principles of federal law,' we are persuaded that one who acquires and operates a business of an employer found guilty of unfair labor practices in basically unchanged form under circumstances which charge him with notice of unfair labor practice charges against his predecessor should be held responsible for remedying his predecessor's unlawful conduct.
'In imposing this responsibility upon a bona fide purchaser, we are not unmindful of the fact that he was not a party to the unfair labor practices and continues to operate the business without any connection with his predecessor. However, in balancing the equities involved there are other significant factors which must be taken into account. Thus, 'It is the employing industry that is sought to be regulated and brought within the corrective and remedial provisions of the Act in the interest of industrial peace.' When a new employer is substituted in the employing industry there has been no real change in the employing industry insofar as the victims of past unfair labor practices are concerned, or the need for remedying those unfair labor practices. Appropriate steps must still be taken if the effects of the unfair labor practices are to be erased and all employees reassured of their statutory rights. And it is the successor who has taken over control of the business who is generally in the best position to remedy such unfair labor practices most effectively. The imposition of this responsibility upon even the bona fide purchaser does not work an unfair hardship upon him. When he substituted himself in place of the perpetrator of the unfair labor practices, he became the beneficiary of the unremedied unfair labor practices. Also, his potential liability for remedying the unfair labor practices is a matter which can be reflected in the price he pays for the business, or he may secure an indemnity clause in the sales contract which will indemnify him for liability arising from the seller's unfair labor practices.' 164 N.L.R.B. 968, 969 (footnotes omitted).
3
See, e.g., Interstate Circuit, Inc. v. United States, 306 U.S. 208, 226, 59 S.Ct. 467, 474, 83 L.Ed. 610 (1939); N.L.R.B. v. Dorn's Transp. Co., Inc., 405 F.2d 706, 713 (CA2 1969).
4
A short answer to petitioners' argument might appear to be that, because the Board's supplemental order to All American required only reinstatement and backpay, and not that All American cease and desist from future unlawful activity, no injunctive relief was ordered, and therefore Rule 65(d) need not be considered. But we have previously found Rule 65(d) applicable to mandatory injunctions and have noted that the courts of appeals have applied it 'not only to prohibitory injunctions but to enforcement orders and affirmative decrees as well.' International Longshoremen's Assn., Local 1291 v. Philadelphia Marine Trade Assn., 389 U.S. 64, 75 and n. 14, 88 S.Ct. 201, 207, 19 L.Ed.2d 236 (1967); see generally Developments in the Law—Injunctions, 78 Harv.L.Rev. 994, 1061—1063 (1965).
In not requiring the bona fide purchaser to cease and desist, the Board followed prior practice. See Thomas Engine Corp., 179 N.L.R.B. 1029 and n. 4 (1970), enforced sub nom. UAW v. N.L.R.B., 442 F.2d 1180 (CA9 1971). This approach seems consistent with the fact that the successor's obligations do not arise out of its own unfair labor practices. The Board's practice after its earlier decision in Alexander Milburn Co., 78 N.L.R.B. 747 (1947), had been to order the bona fide purchaser to cease and desist. This may account for decisions of the courts of appeals, e.g., N.L.R.B. v. Birdsall-Stockdale Motor Co., 208 F.2d 234, 236 (CA10 1953), opposing the Board's position in Alexander Milburn, which eventually led to the Board's overruling of that decision in Symns Grocer Co., 109 N.L.R.B. 346 (1954). See DuRoss, Protecting Employee Remedial Rights Under the Perma Vinyl Doctrine, 39 Geo.Wash.L.Rev. 1063, 1089 (1971).
5
We recognize that, unlike the situation in Wiley where state law provided some support for holding the successor by consolidation liable, see 376 U.S., at 547—548, 84 S.Ct. at 912, the general rule of corporate liability is that, when a corporation sells all of its assets to another, the latter is not responsible for the seller's debts or liabilities, except where (1) the purchaser expressly or impliedly agrees to assume the
obligations; (2) the purchaser is merely a continuation of the selling corporation; or (3) the transaction is entered into to escape liability. See 15 W. Fletcher, Cyclopedia Corporations §§ 7122—7123 (1961 rev. ed.); Kloberdanz v. Joy Mfg. Co., 288 F.Supp. 817 (Colo.1968). The perimeters of the labor-law doctrine of successorship, however, have not been so narrowly confined. See 15 W. Fletcher, supra, § 7122 p. 196 (Supp.1972); Slicker, A Reconsideration of the Doctrine of Employer Successorship—A Step Toward a Rational Approach, 57 Minn.L.Rev. 1051, 1062—1063 (1973). Successorship has been found 'where the new employer purchases a part or all of the assets of the predecessor employer, N.L.R.B. v. Interstate 65 Corp., 453 F.2d 269 (CA6 1971); (and) where the entire business is purchased by the new employer, NLRB v. McFarland, 306 F.2d 219 (CA10 1962) . . ..' NLRB v. Burns International Security Services, Inc., 406 U.S. 272, 306, 92 S.Ct. 1571, 1591, 32 L.Ed.2d 61 (1972) (opinion of Rehnquist, J.); see id., at 291, 92 S.Ct. at 1584 (opinion of the Court). The refusal to adopt a mode of analysis requiring the Board to distinguish among mergers, consolidations, and purchases of assets is attributable to the fact that, so long as there is a continuity in the 'employing industry,' the public policies underlying the doctrine will be served by its broad application. Cf. NLRB v. Colten, 105 F.2d 179, 183 (CA6 1939).
6
A purchasing company cannot be obligated to carry out under § 10(c) every outstanding and unsatisfied order of the Board. For example, because the purchaser is not obligated by the Act to hire any of the predecessor's employees, see NLRB v. Burns International Security Services, Inc., supra, at 280 n. 5, 92 S.Ct. at 1578, the purchaser, if it does not hire any or a majority of those employees, will not be bound by an outstanding order to bargain issued by the Board against the predecessor or by any order tied to the continuance of the bargaining agent in the unit involved. Id., at 280—281, 92 S.Ct. at 1578.
7
The only court of appeals panel which has considered the Perma Vinyl decision, other than the Fifth Circuit in enforcing the Board's order in that case, United States Pipe & Foundry Co. v. N.L.R.B., 398 F.2d 544, and the Ninth Circuit in the decision under review, 467 F.2d 164, has expressed its approval. UAW v. N.L.R.B., 442 F.2d, at 1183 (Tuttle, J.). Commentators have generally concurred. See DuRoss, supra, n. 4; Goldberg, The Labor Law Obligations of a Successor Employer, 63 Nw.U.L.Rev. 735 (1969); Comment, Successor Employer's Obligation to Remedy Unfair Labor Practices, 68 Col.L.Rev. 1602 (1968); Comment, 42 N.Y.U.L.Rev. 1202 (1967); Comment, 47 N.C.L.Rev. 459 (1969); Comment, 41 Temp.L.Q. 156 (1967); Comment, 13 Vill.L.Rev. 232 (1967).
8
Although the original order of the Board required Golden State to reinstate Baker, 147 N.L.R.B., at 412, the Board concedes that the sale to All American terminated Golden State's reinstatement obligation. See N.L.R.B. v. New Madrid Mfg. Co., 215 F.2d 908 (CA8 1954).
9
Golden State's reliance on Textile Workers Union v. Darlington Mfg. Co., 380 U.S. 263, 85 S.Ct. 994, 13 L.Ed.2d 827 (1965), is misplaced. In Darlington, it was held that an employer's liquidation of its entire business, even if motivated by antiunion animus, would not be an unfair labor practice. Id., at 273—274, 85 S.Ct. at 1001. But Golden State committed an unfair labor practice over four years prior to the sale of the bottling business to All American, and in that circumstances, the sale could not terminate its continuing liability for backpay.
10
It is apparent that had Golden State already reinstated Baker with backpay before the sale of its business, and thereby fully complied with the Board's order, All American would have had no more obligation to employ him in the continuing business than it had to employ and of Golden State's other employees. See n. 6, supra.
| 67
|
414 U.S. 190
94 S.Ct. 427
38 L.Ed.2d 406
E. E. FALK, Individually and as partner in Drucker & Falk, et al., Petitioners,v.Peter J. BRENNAN, Secretary of Labor, United States Department of Labor.
No. 72—844.
Argued Oct. 11, 1973.
Decided Dec. 5, 1973.
Syllabus
Respondent brought this action to enjoin petitioners (hereafter D & F), a fully integrated partnership managing apartment complexes for a fixed percentage of the gross rentals collected from each project, from mimimum wage and other violations of the Fair Labor Standards Act. The District Court dismissed the complaint, adopting D & F's contentions that it does not have a $500,000 'annual gross volume of sales made or business done' and thus does not come within the term 'enterprise engaged in commerce' as defined in § 3(s) of the Act, and that it is not an employer, within the meaning of § 3(d), of the maintenance personnel who are paid from the rentals received at the apartment complexes where they work. The Court of Appeals, reversed, holding that D & F met the statutory definition of 'employer' and that in determining whether the enterprise satisfies the dollar-volume limitation, it is the gross rentals (which exceed $500,000 annually) that D & F collects at all the apartment complexes that must be considered rather than the gross commissions that D & F receives from the apartment owners held:
1. D & F, whose managerial responsibilities at each of the buildings give it substantial control of the terms and conditions of the work of employees at those buildings, is an 'employer' under the expansive definition of the term in § 3(e) of the Act. P. 195.
2. D & F sells only its professional management services, and the gross rentals it collects as part of those services do not represent sales attributable to its enterprise. D & F's commissions are therefore the relevant measure of its gross sales made or business done for purposes of the dollar-volume limitation in § 3(s)(1). Thus, though D & F is an 'enterprise' under § 3(r), Brennan v. Arnheim & Neely, Inc., 410 U.S. 512, 93 S.Ct. 1138, 35 L.Ed.2d 463, the Act does not apply to D & F as its commissions are below the § 3(s)(1) limitation. Pp. 195—201.
Herbert V. Kelly, Newport News, Va., for petitioners.
Andrew L. Frey, Washington, D.C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The Secretary of Labor initiated this action against the petitioners, partners in a real estate management company, for an injunction against future violations of various provisions of the Fair Labor Standards Act of 1938, 52 Stat. 1060, as amended, 29 U.S.C. § 201 et seq., and for back wages allegedly due to employees affected by past violations of the Act.1 The petitioners' defense was that they are not 'employers'2 of the employees involved, and that their business is not a single 'enterprise' that is subject to the Act's requirements. This latter contention brought together two separate arguments. First, the petitioners contended that their combined activities do not constitute an 'enterprise,' as that term is defined in § 3(r), 29 U.S.C. § 203(r). Second, the petitioners argue, even if their business activities do amount to an 'enterprise,' they are not an '(e)nterprise engaged in commerce or in the production of goods for commerce,' as that term is defined in § 3(s), 29 U.S.C. § 203(s), because they do not have an 'annual gross volume of sales made or business done' of $500,000.3
2
Under the partnership name of Drucker & Falk (D & F), the petitioners render management services for the owners of a number of apartment complexes in the State of Virginia. Under its contracts with the apartment owners, D & F agrees to perform, on behalf of each owner and under his nominal supervision, virtually all management functions that are ordinarily required for the proper functioning of an apartment complex.4 These contracts are for a stated term of not less than one year. Each party can terminate the arrangement by giving the other party 30 days' notice of his intent to do so. Neither D & F nor any of its partners hold any property interest in the buildings that D & F manages. D & F receives as compensation a fixed percentage of the gross rentals collected from each project.5
3
The rentals collected by D & F are deposited in local bank accounts.6 From these accounts it pays all expenses incurred in operating and maintaining the buildings. After deducting its compensation, as well as any other applicable expenses, D & F transmits payments to the various owners on a periodic basis. If disbursements for any apartment complex exceed its gross rental receipts, the owner is required under the contract to reimburse D & F.
4
The subject of the Secretary's complaint was the wages and hours of the maintenance personnel who work at each of the apartment complexes, the contention being that D & F is in violation of the minimum wage, overtime, and recordkeeping provisions of the Act with respect to these maintenance workers. These employees work under the supervision of D & F and are paid from the rentals received at the apartment complexes where they are employed. They are considered in the contracts between the owners and D & F as 'employees of the project owners.'
5
In the District Court, D & F contended that its management activities at the several apartment complexes do not constitute a single 'enterprise,' as that term is defined in § 3(r) of the Act, 29 U.S.C. § 203(r); that, even if its business is a single 'enterprise,' it does not have the $500,000 'annual gross volume of sales made or business done' required by § 3(s)(1), 29 U.S.C. § 203(s)(1), for coverage by the Act; and that it is not an 'employer' of these maintenance workers, as that term is defined in § 3(d), 29 U.S.C. § 203(d). The District Court agreed with all three of these contentions and dismissed the complaint. The Court of Appeals reversed. It held that the management activities performed by D & F constitute a single 'enterprise' for coverage purposes and that D & F meets the statutory definition of 'employer' with respect to the maintenance workers. The appellate court also concluded that, in determining whether the enterprise satisfies the dollar-volume limitation, it is the gross rentals that D & F collects at all the apartment complexes that must be considered, rather than, as the District Court had held, the gross commissions that D & F receives from the apartment owners. Since there is no question that these gross rentals exceed $500,000 annually, the court held that D & F is subject to the Act and in violation thereof with respect to the maintenance workers.
6
We granted certiorari to review this judgment of the Court of Appeals.7 Two days later, we held in Brennan v. Arnheim & Neely, Inc., 410 U.S. 512, 93 S.Ct. 1138, 35 L.Ed.2d 463 (1973), that a fully integrated real estate management company that directs management operations at several separately owned buildings was a single 'enterprise' for purposes of the Act, thus confirming the holding of the Court of Appeals on that issue in the present case. But our decision in Arnheim & Neely did not reach the other two statutory questions raised by D & F. We accordingly limited the grant of certiorari to questions 2 and 3 presented by the petition:
7
'(2) Under the Fair Labor Standards Act to be covered an enterprise must have an 'annual gross volume of sales made or business done' of $500,000. Is this figure to be measured by the gross rentals collected by the agent or by that agent's gross commissions?
8
'(3) Are maintenance workers employed at the buildings managed by petitioners employees of the apartment owner or of the petitioners?' 410 U.S. 954, 93 S.Ct. 1419, 35 L.Ed.2d 686.
9
* As to question 3, the 'employees' issue, it is clear that the maintenance workers are employees of the building owners. But we think that the Court of Appeals was unquestionably correct in holding that D & F is also an 'employer' of the maintenance workers under § 3(d) of the Act, which defines 'employer' as 'any person acting directly or indirectly in the interest of an employer in relation to an employee.' 29 U.S.C. § 203(d). Section 3(e) defines 'employee' to include 'any individual employed by an employer.' 29 U.S.C. § 203(e). In view of the expansiveness of the Act's definition of 'employer' and the extent of D & F's managerial responsibilities at each of the buildings, which gave it substantial control of the terms and conditions of the work of these employees, we hold that D & F is, under the statutory definition, an 'employer' of the maintenance workers. We turn, therefore, to the other question embraced in the grant of certiorari.
II
10
In Brennan v. Arnheim & Neely, Inc., supra, we held that the integrated operations of a real estate management company satisfied the definition of 'enterprise' under § 3(r) of the Act. This holding was based upon the conclusion that the management activities met the three statutory tests of an 'enterprise': related activities, unified operation or common control, and common business purpose. It is important to understand, however, that the 'enterprise' the Court found in Arnheim & Neely consisted of the sale of management services by the respondent. The Court did not hold that the separate property interests of each apartment owner were to be considered part of the management enterprise of Arnheim & Neely. Indeed, § 3(r) and the legislative history of the 1961 'enterprise amendments' to the Act strongly suggest that the use of common agents by independent entities is not sufficient to convert to a single 'enterprise' what otherwise are independent businesses.8 Thus, D & F's enterprise in the present case, as in Arnheim & Neely, consists of and is limited to its combined management activities at the various apartment complexes.
11
The Act imposes its requirements, not on every 'enterprise,' but only on an 'enterprise engaged in commerce or in the production of goods for commerce.'9 One of the statutory elements of the latter term is the dollar-volume limitation, which in this case is $500,000 annually.10 The bone of contention between the Secretary and D & F is whether this dollarvolume limitation is to be measured by the annual gross rentals collected by D & F as agent of the apartment owners, or by the gross commissions paid to D & F by the owners as compensation for its management services. Section 3(s)(1), which prescribes the dollar-volume limitation, speaks of 'an enterprise whose annual gross volume of sales made or business done is not less than $500,000.' 29 U.S.C. § 203(s)(1). (Emphasis added.) This statutory language requires that, after determining what the relevant enterprise is, we turn our attention to what that enterprise sells or to what business it does.
12
Any doubt about whether the rental of space is a 'sale' for purposes of the Act was removed when Congress amended § 3(s) in 1966 to provide that the dollarvolume limitation would henceforth be measured by 'annual gross volume of sales made or business done,' 80 Stat. 831 (emphasis added). The Senate Report on the 1966 amendments makes clear that the added language was intended to dispel any uncertainty that revenue derived from services, rentals, or loans, even though perhaps not literally 'sales,' was nevertheless to be considered in measuring the dollar-volume limitation of § 3(s). The Report indicates that the amendment was intended to signify legislative approval of the result in Wirtz v. Savannah Bank & Trust Co., 5 Cir., 362 F.2d 857, which so interpreted § 3(s) as it read before the addition of the 'business done' language. As the Senate Report explained:
13
'The annual gross volume of sales made or business done by an enterprise, within the meaning of section 3(s), will thus continue to include both the gross dollar volume of the sales . . . which it makes, as measured by the price paid by the purchaser for the property or services sold to him . . ., and the gross dollar volume of any other business activity in which the enterprise engages which can be similarly measured on a dollar basis. This would include, for example, such activity by an enterprise as making loans or renting or leasing property of any kind.' S.Rep. No. 1487, 89th Cong., 2d Sess., 7—8, U.S.Code Cong. & Admin.News p. 3009.
14
But, a determination that rentals are 'sales made or business done' within the meaning of the Act does not begin to dispose of the issue before us. The question remains, under § 3(s)(1), what enterprise made the sales or did the business.
15
The Secretary contends that the 'sales made or business done' by D & F includes the gross rental income of apartments in the buildings that it manages. He argues that the fact that D & F does not own the buildings should not preclude attribution of the rentals to it. D & F argues that it sells only managerial services and thus that the rentals it collects on behalf of the owners are not 'sales made or business done' by its enterprise. It contends, therefore, that its gross sales should be measured, not by the rentals it collects from the tenants, but rather by the management fees that the owners pay it as compensation for its services—i.e., its gross commissions.
16
The line between a seller of a product and a seller of a service is not always readily discernible, especially when one of the services relates to the sale of a product or, what amounts to the same thing for purposes of the Act, the rental of space. As an abstract proposition, the Secretary is undoubtedly correct in his position that ownership is not necessarily determinative in attributing 'sales made or business done' for purposes of the statute. For example, a consignment seller's gross sales might properly be measured by his gross receipts from sales of the product, even though he did not actually hold title to the product that he sold. Realistically, such a seller is in the business of selling the product that is consigned to him, and he is functionally in a position no different from that of a seller who has purchased the product before resale. The only practical difference may be that the 'cost of goods sold' element of the profit equation is expended before resale in the one case and after resale in the other.
17
In the present case, however, we are convinced that the enterprise of D & F is limited to the sale of its professional management services, and, accordingly, that the commissions it receives are the relevant measure of its gross sales made or business done for purposes of the dollar-volume limitation in § 3(s) (1). D & F collects a number of rentals on behalf of the property owners. In nearly every case, these rentals are paid pursuant to lease agreements of significant duration. Some may predate D & F's management of the premises, and D & F may thus have had absolutely nothing to do with the 'sales' underlying the periodic rentals it collects for the owner.11 When a lease does expire and is not renewed by the tenant, D & F undertakes to find a new tenant for the owner and serves as agent for the owner in the negotiation and execution of a new lease. With respect to such a lease, a colorable argument can be made for attribution of the rentals to D & F, since its negotiation of a new lease increases, or at least maintains, the volume of rents collected and thus also its percentage compensation. But such an argument does not withstand any but the most superficial analysis.
18
In the typical commodity sale the seller's remuneration is a function of the gross margin between the cost of the product to him and the resale price. At first blush, the determination of D & F's compensation as a percentage of the gross rentals seems somewhat akin to the margin of the typical seller. Upon reflection, however, a critical difference appears: when a lease is negotiated by D & F its remuneration is calculated, not from the proceeds derived from that lease, but only from the rentals collected during its managerial tenure, during which period it renders significant and substantial management services beyond its earlier service in negotiating the lease. It is clear, therefore, that the business of the D & F enterprise is not the sale of a product (the rental of realty) but a sale of professional management services. This conclusion follows logically from our holding in Arnheim & Neely that the relevant enterprise for purposes of deciding whether a real estate management company is covered by the Act, consists of its 'aggregate management activities' at the various buildings that it supervises. 410 U.S., at 519, 93 S.Ct., at 1142. In this regard, the commissions received by D & F differ even from the compensation received by the typical broker of realty or stock, whose primary undertaking is to negotiate a sale of the principal's property and whose compensation is calculated on the proceeds of that sale.
19
On these facts, we think the conclusion is inescapable that D & F vends only its professional management services, and that the gross rentals it collects as part of these services do not represent sales attributable to its enterprise It follows that the correct measure of the 'gross volume of sales made or business done' by D & F is the gross commissions it receives from the apartment owners as compensation for the management services it renders.12 Since these commissions did not reach $500,000 annually during the period involved in this litigation, it follows that D & F was not an '(e)nterprise engaged in commerce or in the production of goods for commerce,' within the meaning of the Act.
20
The judgment of the Court of Appeals is vacated and the case is remanded to the District Court for further proceedings consistent with this opinion.13
21
It is ordered.
22
Judgment of Court of Appeals vacated and case remanded.
23
Mr. Justice BRENNAN, which whom Mr. Justice DOUGLAS, Mr. Justice WHITE, and Mr. Justice MARSHALL join, concurring in part and dissenting in part.
24
I concur in the Court's holding that petitioners are 'employers' of the maintenance workers who service the apartment buildings managed by D & F.
25
I dissent, however, from the holding that, for the purposes of § 3(s)(1), 'the enterprise of D & F is limited to the sale of its professional management services,' and that those services must be measured by D & F's commissions. The record in this case leaves no doubt whatever that D & F's enterprise activities resulted in both the sale of professional management services and rental space. While the Court acknowledges that sales of rental space are 'sales made or business done' within the meaning of § 3(s)(1), ante, at 187, it nevertheless decides that rental sales should not be attributed to D & F because, 'when a lease is negotiated by D & F, its remuneration is calculated not from the proceeds derived from that lease, but only from the rentals collected during its managerial tenure, during which period it renders significant and substantial management services beyond its earlier service in negotiating the lease.' Ante, at 200.
26
To be sure, D & F's remuneration for renting an apartment may not be subject to precise calculation at the time of the sale: compensation for the sale is derived from D & F's percentage of monthly rent receipts, which includes D & F's compensation for building operation and maintenance; and conceivably the building owner might terminate D & F's management contract before the tenant makes all the monthly payments required under the lease, thus reducing D & F's compensation for the sale of the rental space. It is also true that after selling the rental space, D & F performs other significant and substantial management services. But these rather unsurprising observations hardly supply a basis for the Court's conclusion that: 'It is clear, therefore, that the business of the D & F enterprise is not the sale of a product (the rental of realty) but a sale of professional management services,' and that such services must be measured by commissions. Neither the facts in this case, nor the plain words of § 3(s)(1), and the uncommonly unambiguous legislative history of that section support the Court's conclusion that Congress meant to measure one particular enterprise activity to the exclusion of others.
27
* Section 3(s)(1) limits coverage under the Act to those enterprises 'whose annual gross volume of sales made or business done is not less than $500,000 . . ..'1 29 U.S.C. s 203(s)(1). The term 'sales' employed in § 3(s)(1) is defined with specificity in § 3(k) of the Act, 29 U.S.C. § 203(k), to mean 'any sale, exchange, contract to sell, consignment for sale, shipment for sale, or other disposition' (emphasis added). Those are simple and entirely unambiguous words that do not even remotely imply that only some 'sales made or business done' should be measured. Clearly, § 3(s)(1), in terms, embraces the gross volume of apartment leases sold by D & F, as well as the professional management services sold by D & F to building owners.2
28
In addition, even were the wording of § 3(s)(1) less clear '(t)his is not a case where perforce we must attempt to resolve a controversy as to the true meaning of equivocal statutory language unaided by any reliable extrinsic guide to legislative intention,' Mitchell v. Kentucky Finance Co., 359 U.S. 290, 293, 79 S.Ct. 756, 758, 3 L.Ed.2d 815 (1959). Senate and House Reports concerning the 1961 and 1966 'enterprise amendments' to the Act show explicitly that Congress intended enterprise activities to be measured by all 'sales made or business done.'3
29
Prior to 1961, the protections of the Act were extended only to employees who were themselves 'engaged in commerce or in the production of goods for commerce,' §§ 6(a), 7(a), 29 U.S.C. §§ 206(a), 207(a). With the enterprise amendments of 1961, Congress substantially broadened the coverage of the Act to include all employees 'employed in an enterprise engaged in commerce,' 75 Stat. 65, 67, 69. But not every enterprise meeting the statutory definition in § 3(r) of the Act was brought within the Act's coverage. Section 3(s)(1) prescribed a dollar-volume test that limited the Act's coverage to those enterprises that had an 'annual gross volume of sales of . . . not less than $1,000,000,' id., at 66. The Senate and House Reports show that the dollar-volume test was adopted to establish an economic standard that predicates coverage of the Act upon the size of the enterprise and its impact upon commerce. See H.R.Rep.No.75, 87th Cong., 1st Sess., 3, 7, 13 (1961); S.Rep.No.145, 87th Cong., 1st Sess., 6—7, 31 (1961); U.S.Code Cong. & Admin. News p. 1620; see also the Staff Report of Labor Subcommittee offered on the floor by Senator McNamara, 107 Cong.Rec. 5840—5842 (1961).
30
To insure that the term 'sales' would not be given a narrow or technical interpretation that might exclude some enterprises that have the requisite dollar volume of business, but that do not make typical commodity sales.4 Congress amended the enterprise provisions of the Act in 1966, 80 Stat. 831, by substituting the wording 'annual gross volume of sales made or business done' (emphasis added), for 'annual gross volume of sales,' the term employed in the 1961 amendments. The Senate Report fully explains Congress' reasons for changing the terminology:
31
'This test . . . is intended to measure the size of an enterprise for purposes of enterprise coverage in terms of the annual gross volume in dollars (exclusive of specified taxes) of the business transactions which result from activities of the enterprise, regardless of whether such transactions are 'sales' in a technical sense.
32
'. . . The addition of the term 'business done' to the statutory language should make this intent abundantly plain for the future and remove any possible reason for misapprehension. The annual gross volume of sales made or business done by an enterprise, within the meaning of section 3(s), will thus continue (under the 1966 Amendments) to include both the gross dollar volume of the sales (as defined in sec. 3(k)) which it makes, as measured by the price paid by the purchaser for the property or services sold to him (exclusive of any excise taxes at the retail level which are separately stated), and the gross dollar volume of any other business activity in which the enterprise engages which can be similarly measured on a dollar basis. This would include, for example, such activity by an enterprise as making loans or renting or leasing property of any kind.' S.Rep.No.1487, 89th Cong., 2d Sess., 7—8 (1966). (Emphasis added); U.S.Code Cong & Admin.News p. 3009.
33
Congressional intent, with respect to the dollar-volume test in § 3(s)(1), could not be more clear: 'the business transactions which result from activities of the enterprise' are to be measured. No transactions are excepted from measurement. Nothing in the legislative history suggests that when remuneration for essentially different transactions is in some way commingled, or when an enterprise engages in closely related activities, only those transactions constituting the essence of enterprise should be measured. For the purposes of § 3(s)(1), the only relevant inquiry is what activities the enterprise engages in, and what sales or business transactions result from those activities. Measurement of the dollar volume of those transactions indicates the size of the enterprise and its impact upon commerce.
34
Turning to the facts in this case, it is clear from the stipulated record in the District Court that D & F engages in essentially two distinct, though related, activities. First, D & F rents apartments to the public. In this connection D & F employs a staff of sales personnel who advertise available apartments, interview prospective tenants, and negotiate and renew leases on behalf of the apartment-building owner. Second, D & F operates and maintains apartment buildings. By contract with the building owner, D & F agrees to collect rent; initiate, prosecute, and settle all legal proceedings for eviction, possession of the premises, and unpaid rent; make repairs and alterations; negotiate contracts for utilities and other necessary services; purchase supplies; pay all bills, including mortgage payments; prepare an operating budget for the building owner's review and approval; submit periodic reports to the owner; and hire, discharge, and supervise all labor and employees required for the operation and maintenance of the premises. Thus, D & F performs both brokerage and management activities. Indeed, the first article of every contract entered into by D & F and a building owner states: 'Owners hereby employ and appoint (D & F) as the sole and exclusive renting and management agent . . .' (emphasis added).
35
The business transactions resulting from these activities are quite distinct and subject to separate measurement. D & F's brokerage activities result in the sale of rental space to the public. D & F's management activities result in a business transaction between D & F and the building owner, i.e., D & F's sale of professional management services.
36
The Court, however, focuses upon D & F's management activities and measures only the resulting transaction between D & F and the building owners. To be sure, these transactions have an impact upon commerce and must, therefore, be measured under the dollar-volume test. As a result of these transactions, D & F hires and supervises more than 100 persons who perform all the functions necessary for the efficient operation and maintenance of apartment buildings, and thus engages in activities which clearly induce a flow of men, money, and materials across state lines. But, as significant as this impact upon commerce may be, it pales by comparison to the impact caused by D & F's brokerage activities. To sell apartments, D & F employs a special staff of personnel whose duties include developing marketing strategies, placing advertisements in various media, interviewing prospective tenants, and negotiating leases. These activities generate a flow of millions of dollars per year in gross rent receipts, with consequent impacts upon commerce too numerous and obvious to trace here. The significant impact of D & F's brokerage activities upon commerce is not diminished by the fact that the apartment buildings are owned by others. It is D & F's brokerage activities—not the building owners'—that result in the sale of rental space. In this respect, D & F, as a broker selling rental space owned by others, is indistinguishable from the salesman of consignment goods, whose 'sales made or business done,' the Court concedes, ante, at 199, must be measured by the gross receipts from sales of the product.
37
Ignoring D & F's brokerage activities and their resulting transactions, therefore, not only contradicts Congress' clearly expressed intention that transactions resulting from any activity of the enterprise be measured, but also undermines the effectiveness of the dollar-volume test as a measure of an enterprise's size and impact upon commerce.5 Where both the words of a statute and its legislative history clearly indicate the purpose of Congress, it should be respected,' Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 402, 71 S.Ct. 745, 754, 95 L.Ed. 1035 (1951) (Frankfurter, J., dissenting).
II
38
Even proceeding on the Court's erroneous basic premise, however, D & F's sales of professional management services exceed $500,000 when computed, as Congress required, under the specific regulations promulgated by the Wage and Hour Division of the Department of Labor to effectuate § 3(s)(1).6 As a guide to making computations under § 3(s)(1), Congress instructed that:
39
'The method of calculating the requisite dollar volume of sales of business (for enterprise coverage purposes) will be the same as is now followed under the law with respect to calculating the annual dollar volume of sales in retail and service establishments, and in laundries under the exemptions provided in section 13(a)(2), (3), (4), and (13) of the act. The procedure for making the calculation is set forth in the Department's Interpretative Bulletin (pertaining to retailers of goods and services). As it is there stated, the 'annual dollar volume of sales' consists of the gross receipts from all types of sales during a 12-month period.' S.Rep.No.145, 87th Cong., 1st Sess., 38 (1901). (Emphasis added); U.S.Code Cong. & Admin.News p. 1657.
40
This 'gross receipts' method of computation is presently embodied in regulations which state: 'The annual gross dollar volume of sales made or business done of an enterprise or establishment consists of the gross receipts from all of its sales or its volume of business done during a 12month period,' 29 CFR § 779.265. (Emphasis added.) See also 29 CFR §§ 779.259, 779.266—779.269.
41
Gross receipts from 'sales' of professional services are not necessarily limited to commissions. True, if the 'sale' is only of the personal labor of the seller, commissions may well be the sole measure of 'sales made or business done' because commissions are the seller's only gross receipts. And where, in addition to his own labor, the seller of professional services provides, for a commission, personnel and materials as an integral part of the professional services rendered, the commission still constitutes the gross receipts for the sale of services. If, on the other hand, the purchaser of the professional services reimburses the seller for the costs of men and material and also pays a commission, plainly 'gross receipts' under the statute and regulation are the reimbursement plus the commission.
42
D & F was compensated for its professional management services on a cost-plus-commission basis. It employed maintenance workers and purchased materials necessary for the operation and maintenance of the apartment buildings. By contract, the building owner agreed to reimburse D & F for these operation and maintenance costs,7 and, in addition, to pay D & F a commission.8 Thus, D & F's gross receipts must include amounts paid by the building owner to cover operation and maintenance costs, plus the amount paid as commissions.
1
The complaint alleged violations of the minimum wage (29 U.S.C. § 206(b)), overtime (29 U.S.C. § 207(a)(2)), and recordkeeping (29 U.S.C. § 211(c)) provisions of the Act.
2
Section 3(d), 29 U.S.C. § 203(d), states that an "Employer' includes any person acting directly or indirectly in the interest of an employer in relation to an employee.'
3
The dollar-volume limitation was $500,000 at all times relevant to this action. 29 U.S.C. § 203(s)(1). On February 1, 1969, the dollar-volume limitation was reduced to $250,000.
4
D & F performs all the functions required for leasing, maintaining, and operating the apartment buildings. These include advertising the availability of apartments for rent; signing, renewing, and canceling leases; collecting rents; instituting, prosecuting, and settling all legal proceedings for eviction, possession of the premises, and unpaid rent; making necessary repairs and alterations; negotiating contracts for essential utilities and other services; purchasing supplies; paying bills; preparing operating budgets for the property owners' review and approval; submitting periodic reports to the owners; and hiring and supervising all employees required for the operation and maintenance of the buildings and grounds.
5
The commission that D & F receives varies between 4% and 6%, depending on the particular arrangements with the building owner.
6
The rents for all the buildings managed by D & F totaled over $7,700,000 in 1967 and over $8,600,000 in 1968.
7
Both the District Court and the Court of Appeals had this case before them twice. Initially, the District Court dismissed the complaint. The Court of Appeals reversed and remanded for further proceedings. Shultz v. Falk, 439 F.2d 340. The petitioners sought certiorari, and we denied the writ. Falk v. Hodgson, 404 U.S. 827, 92 S.Ct. 62, 30 L.Ed.2d 56 (1971). On remand to the District Court, the petitioners resisted the imposition of judgment and particularly the awarding of prejudgment interest. The District Court rendered judgment against the petitioners and awarded prejudgment interest. The Court of Appeals affirmed, and the petitioners again sought certiorari.
8
Section 3(r), 29 U.S.C. § 203(r) provides, in pertinent part:
'(A) retail service establishment which is under independent ownership shall not be deemed to be so operated or controlled as to be other than a separate and distinct enterprise by reason of any arrangement, which includes, but is not necessarily limited to, an agreement, (1) that it will sell, or sell only, certain goods specified by a particular manufacturer, distributor, or advertiser, or (2) that it will join with other such establishments in the same industry for the purpose of collective purchasing, or (3) that it will have the exclusive right to sell the goods or use the brand name of a manufacturer, distributor, or advertiser within a specified area, or by reason of the fact it occupies premises leased to it by a person who also leases premises to other retail or service establishments.'
The Senate Report on the 1961 amendments to the Act, U.S.Code Cong. & Admin.News pp. 1620, 1661, included the following statements regarding this portion of § 3(r):
'(T)he mere fact that a group of independently owned and operated stores join together to combine their purchasing activities or to run combined advertising will not for these reasons mean that their activities are performed through unified operation or common control and they will not for these reasons be considered a part of the same 'enterprise." S.Rep.No.145, 87th Cong., 1st Sess., 42.
9
See, e.g., § 6(b) (29 U.S.C. § 206(b)), § 7(a) (29 U.S.C. § 207(a)), and § 11(c) (29 U.S.C. § 211(c)).
10
The petitioners' gross commissions amounted to slightly more than $434,000 and somewhat less than $463,000 in 1967 and 1968, respectively, the years involved in this litigation.
11
The record does not show what proportion of the rentals is attributable to leases predating D & F's managerial tenure at each building. When the underlying lease does predate D & F's contract with the owner, however, the total absence of any participation by D & F in the lease transaction, of which the periodic rentals are merely the proceeds, belies any attempt to attribute these rentals to D & F as an index of its gross 'sales made or business done.'
12
Part II of the dissent suggests that the 'annual gross dollar volume of sales made or business done' of D & F's enterprise 'must include amounts paid by the building owner to cover operation and maintenance costs, plus the amount paid as commissions.' Post, at 211. The dissent's rationale is that D & F was in effect paying the operation and maintenance costs itself and then being reimbursed by the apartment owners. Such an argument was not made by the Secretary. Even if such a payment and reimbursement arrangement would cause the operation and maintenance costs to be included in measuring 'annual gross volume of sales made or business done' (which we do not decide), it is clear that such an arrangement did not exist between D & F and the building owners. The rentals were collected by D & F as the agent for the owners and were placed in bank accounts on their behalf. D & F paid the operation and maintenance costs of the buildings from the owners' funds pursuant to its agreement with, and on the authority of, the owners.
13
A footnote in the Secretary's brief states that, in addition to its management services, D & F also sells insurance and real estate. These operations might bring D & F's 'annual gross volume of sales made or business done' to more than $500,000 for the years in question if the insurance, real estate sales, and real estate management operations of D & F's business are 'related activities' for enterprise coverage purposes under § 3(r) of the Act. We leave for the District Court the consideration of the Secretary's contention.
1
Section 3(r) of the Act, 29 U.S.C. § 203(r), defines 'enterprise' to mean:
'the related activities performed (either through unified operations or common control) by any person or persons for a common business purpose, and includes all such activities whether performed in one or more establishments or by one or more corporate or other organizational units including departments of an establishment operated through leasing arrangements, but shall not include the related activities performed for such enterprise by an independent contractor . . ..'
The dollar-volume test of § 3(s)(1) of the Act, 29 U.S.C. § 203(s)(1), limits coverage during the period February 1, 1967, through January 31, 1969, to those enterprises 'whose annual gross volume of sales made or business done is not less than $500,000 (exclusive of excise taxes at the retail level which are separately stated) . . ..' On February 1, 1969, the dollar-volume test was reduced to $250,000. It is not disputed that each year since February 1, 1969, petitioners have met the dollar-volume requirement of the Act.
2
In addition to the Courts of Appeals below, the Court of Appeals for the Fifth and Tenth Circuits have held that the leasing of rental property constitutes a 'sale' within the meaning of the enterprise provisions of the Act. See Wirtz v. Savannah Bank & Trust Co., 362 F.2d 857 (CA5 1966); Wirtz v. First National Bank & Trust Co., 365 F.2d 641 (CA10 1966).
3
A continuance of the judicial practice of liberal interpretation of the Act was clearly contemplated by Congress:
'In keeping with the broad statutory definitions of the coverage phrases used, the courts have repeatedly expressed and adhered to the principle that the coverage phrases should receive a liberal interpretation, consonant with the definitions, with the purpose of the Act, and with its character as remedial and humanitarian legislation.' H.R.Rep.No.1366, 89th Cong., 2d Sess., 10 (accompanying the 1966 amendments to the Act).
4
Questions concerning the scope of the term 'sales' in the dollar-volume provision of the 1961 enterprise amendments had arisen in suits brought by the Secretary of Labor to enforce the Act. For example, in Wirtz v. Savannah Bank & Trust Co., supra, the defendant bank contended 'that the term 'sales' must be given a 'literal interpretation' and . . . would not include rental receipts, interest on loans and securities or income from services.' 362 F.2d, at 862—863 (footnote omitted).
5
An enterprise's dollar volume of 'sales made or business done' is measured by its 'gross receipts,' see part II, infra. The record indicates that D & F collected gross rent receipts of $7,752,600.86 in 1967 and $8,607,086.04 in 1968. That portion of the gross rent receipts attributable to D & F's sales of rental space constitutes the proper dollar-volume measure of D & F's brokerage activities. As discussed in part II, infra, D. & F's 'gross receipts' for its management activities must be measured by the commissions D & F receives for such services plus any reimbursements D & F receives for the cost of men and materials. Since D & F is paid a single commission for both its brokerage and management activities, that portion representing compensation for its sale of rental space must be subtracted from the total commission in order accurately to measure that portion of the commission attributable to its professional management services.
6
Section 602 of Pub.L. 89—601, 80 Stat. 844, provides that the Secretary of Labor is 'authorized to promulgate necessary rules, regulations, or orders with regard to the (1966 enterprise) amendments made by this Act.'
7
The apartment building owners never actually sent funds to D & F to cover its costs and commissions. Rather, these sums were deducted by D & F from the total receipts it collected from the tenants of each apartment building.
8
D & F's commissions are either 4% or 6% of gross rent receipts, depending upon the extent of the services it agrees to render.
| 67
|
414 U.S. 212
94 S.Ct. 405
38 L.Ed.2d 422
John P. FOLEY, Jr., et al., Petitioners,v.BLAIR & CO., INC., et al.
No. 72—1154.
Argued Nov. 12, 1973.
Decided Dec. 5, 1973.
Leo H. Raines, New York City, for the petitioners.
Harvey R. Miller, New York City, for respondents.
PER CURIAM.
1
Blair & Co., Inc., was a member of the New York Stock Exchange, engaged in the general brokerage and commission business. In the early summer of 1970, as the result of operating losses and a shrinkage of capital, Blair began a program of self-liquidation, which involved the transfer of customer accounts to other broker-dealers and the delivery of securities to customers so requesting. Blair apparently believed that its resources were sufficient to allow it to discharge its obligations to all customers and general creditors through this program. In September 1970, however, Blair concluded that successful implementation of this program might require the assistance of a Special Trust Fund which the New York Stock Exchange had established in 1964 to avoid bankruptcy of member firms.1
2
Consequently, on September 21, 1970, Blair entered into an agreement with the New York Stock Exchange, whereby the trustees of the special fund would make loans and guarantees to protect Blair's customers against loss. The agreement provided that the first such loan, guarantee, or advance by the fund would give the New York Stock Exchange the power to appoint a Liquidator of its own choosing to manage Blair's affairs. The powers of the Liquidator were set forth in the agreement.2
3
On September 25, 1970, the trustees made an initial advance of $1,000, which triggered the appointment of respondent Patrick E. Scorese as Liquidator. Any plans for further advances or loans were terminated four days later, however, when the petitioners, holders of subordinated debentures of Blair, filed an involuntary petition in bankruptcy against Blair in the United States District Court for the Southern District of New York. Inter alia, the petition alleged that the appointment of the Liquidator constituted an act of bankruptcy under § 3a(5) of the Bankruptcy Act, 11 U.S.C. § 21(a)(5). That section makes it an act of bankruptcy if any person
4
'(5) while insolvent or unable to pay his debts as they mature, procured, permitted, or suffered voluntarily or involuntarily the appointment of a receiver or trustee to take charge of his property.'
5
Concluding that Blair's consent to the appointment of the Liquidator in fact constituted this fifth act of bankruptcy, the Referee adjudicated Blair an involuntary bankrupt. The District Court denied a petition to review his order. On appeal, however, a divided panel of the Court of Appeals for the Second Circuit reversed, reasoning that the Liquidator was not a 'receiver or trustee' within the statutory definition. 471 F.2d 178. We granted the writ of certiorari, 411 U.S. 930, 93 S.Ct. 1901, 36 L.Ed.2d 389 in order to resolve this issue of seeming importance in the administration of the Bankruptcy Act, and oral argument was heard on November 12, 1973.
6
The respondents have suggested, however, that we should not decide the merits of the controversy, because the present circumstances of Blair & Co. render the case moot. The suggestion is premised on a series of events following the filing of the original involuntary petition. On April 15, 1971, two days after the Referee had granted the petitioners' motion for summary judgment on the issue of whether Blair had committed the fifth act of bankruptcy, Blair filed a petition for relief under Chapter XI of the Bankruptcy Act, pursuant to § 321 of the Act, 11 U.S.C. § 721.3 On May 18, 1971, the Referee entered an order pursuant to § 325 of the Act, 11 U.S.C. § 725, staying ordinary bankruptcy proceedings under Chapters I—VII pending the determination of the Chapter XI petition.
7
On May 26, 1971, Blair filed with the District Court its proposed arrangement with its creditors under Chapter XI. On September 27, 1971, the bankruptcy court found that the proposed arrangement had been accepted in writing by the requisite majority in number and amount of Blair's creditors, in accordance with §§ 336(4) and 362 of the Act, 11 U.S.C. §§ 736(4), 762.4 Shortly thereafter on October 4, 1971, the petitioners moved in the District Court to dismiss the Chapter XI proceedings. This motion was not acted upon until February 16, 1973, after the Court of Appeals had reversed the adjudication of Blair as an involuntary bankrupt; on that date, the motion was denied. On June 12, 1973, the District Court denied a petition for review of that order. On October 2, 1973, while the present case was awaiting argument in this Court, the bankruptcy court entered an order confirming the arrangement proposed by Blair under Chapter XI. Apparently, no appeal was taken from the order of confirmation.
8
In light of the confirmation of the Chapter XI arrangement, the respondents suggest that this case no longer presents a live controversy. They rely upon § 371 of the Act, 11 U.S.C. § 771, which provides that confirmation of an arrangement 'shall discharge a debtor from all his unsecured debts and liabilities provided for by the arrangement,' and argue that the petitioners thus no longer have any monetary stake in resolution of the controversy over whether the fifth act of bankruptcy was committed. See generally 9 W. Collier, bankruptcy 9.32, 9.33 (14th ed. 1972). The respondents also argue that the original adjudication of bankruptcy is irrelevant to the present situation, since § 322 of the Act, 11 U.S.C. § 722, does not make the pendency of bankruptcy proceedings a prerequisite to the filing of a petition for relief under Chapter XI.
9
While the issue of mootness was briefed and argued before this Court, it was not treated in the opinion of the Court of Appeals, no doubt because the final confirmation order was not entered by the District Court until well after the appellate court had issued its judgment. Under these circumstances, we think it appropriate that the Court of Appeals have the opportunity to consider the mootness issue in the first instance. In reviewing the question of mootness, the Court of Appeals should consider the effect of § 64a(1) of the Act, 11 U.S.C. § 104(a)(1). Inter alia, that section provides that 'one reasonable attorney's fee' for the services rendered to petitioning creditors in involuntary cases shall be treated as a priority debt in bankruptcy proceedings, payable out of the estate in advance of distribution of any dividends to creditors. Section 64 is made applicable to § 321 Chapter XI proceedings by § 302 of the Act, 11 U.S.C. § 702, and thus might allow the treatment of at least some of the petitioners' counsel fees as a priority expense. See 8 W. Collier, Bankruptcy 5.33(3.1) and n. 25 (14th ed. 1972); see also Reading Co. v. Brown, 391 U.S. 471, 475, 88 S.Ct. 1759, 20 L.Ed.2d 751.5
10
For the reasons stated above, we vacate the judgment of the Court of Appeals, and remand the case to that court to consider whether it has now become moot.
11
It is so ordered.
12
Vacated and remanded.
1
The Special Trust Fund is authorized by the Constitution of the New York Stock Exchange, Art. XIX, § 1.
2
Paragraph VIII of the agreement provided:
'Immediately following his appointment by the Exchange, the Liquidator shall take control of the business and property of the Corporation for the purpose of liquidating the business of the Corporation and shall proceed as follows in connection with the liquidation:
'i.) he shall promptly take such steps as he may deem practicable to reduce the Corporation's operating expenses and to dispose of the Corporation's salable assets;
'ii.) he shall have power to retain independent public accountants, consultants, counsel and other agents and assistants and shall have power to augment and reduce or eliminate the staff of the Corporation;
'iii.) he shall, as soon as practicable, assert and collect or settle all claims and rights of the Corporation;
'iv.) he shall pay any claim against the Corporation considered by him to be a valid claim of any customer of the Corporation;
'v.) he shall take such other steps as he deems necessary or appropriate to liquidate the business of the Corporation.
'It is agreed that consistent with the duty of the Liquidator to effect a fair and orderly liquidation of the business of the Corporation to enable prompt settlement with its customers, the Liquidator shall act in accordance with what he deems to be good business practice.'
On the same date that this agreement was signed, Blair executed a second instrument that more specifically delineated the powers of the Liquidator, who was described as 'the true and lawful attorney and agent of and for the Corporation (Blair).'
3
The actual order adjudging Blair a bankrupt was not issued until April 27, 1971.
4
The September 27 finding was an oral one, made in open court. Written findings to the same effect were filed on December 27, 1971.
5
While the effect of § 64a(1) upon the issue of mootness was discussed at oral argument, it was not the subject of briefing by either of the parties.
| 89
|
414 U.S. 156
94 S.Ct. 407
38 L.Ed.2d 379
NORTH DAKOTA STATE BOARD OF PHARMACY, Petitioner,v.SNYDER'S DRUG STORES, INC.
No. 72—1176.
Argued Nov. 6, 1973.
Decided Dec. 5, 1973.
Syllabus
The North Dakota Supreme Court, relying on Liggett Co. v. Baldridge, 278 U.S. 105, 49 S.Ct. 57, 73 L.Ed. 204, held unconstitutional a state statute, under which respondent had been denied a pharmacy operating permit, requiring that an applicant for such a permit be 'a registered pharmacist in good standing,' or 'a corporation or association, the majority stock in which is owned by registered pharmacists in good standing, actively and regularly employed in and responsible for the management, supervision, and operation of such pharmacy.' The court remanded the case so that petitioner Board could conduct an administrative hearing 'sans the constitutional issue,' on respondent's alleged failure to meet certain structural and safety standards on which petitioner had also rested its permit denial. Held:
1. This Court does not lack jurisdiction to review the State Supreme Court's judgment, which is 'final' within the meaning of 28 U.S.C. § 1257, for it is not apparent how petitioner Board would be able to preserve the constitutional issue now ready for adjudication without defying the State Supreme Court. Pp. 159—164.
2. The North Dakota statutory requirements for permitting the operation of a pharmacy do not violate the Due Process Clause of the Fourteenth Amendment. In enacting the challenged legislation the State was well within its authority 'to legislate against what (it) found to be injurious practices in (its) internal commercial and business affairs,' Lincoln Federal Labor Union v. Northwestern Iron and Metal Co., 335 U.S. 525, 536, 69 S.Ct. 251, 257, 93 L.Ed. 212, and this Court will not substitute its own judgment for what the State feels is reasonable necessary to protect the interests of the public. Liggett Co. v. Baldridge, supra, overruled. Pp. 164 167.
202 N.W.2d 140, reversed and remanded.
A. William Lucas, Bismarck, N.D., for petitioner.
Mart R. Vogel, Fargo, N.D., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
North Dakota passed a statute1 that requires that the applicant for a permit to operate a pharmacy be 'a registered pharmacist in good standing' or 'a corporation or association, the majority stock in which is owned by registered pharmacists in good standing, actively and regularly employed in and responsible for the management, supervision, and operation of such pharmacy.'
2
Petitioner Board denied a permit to Snyder's Drug Stores, Inc., because it did not comply with the stock-ownership requirements of the statute, it appearing that all the common stock of Snyder's was owned by Red Owl Stores and it not being shown if any Red Owl shareholders were pharmacists registered and in good standing in North Dakota. On apprepeal to the state district court, summary judgment was granted Snyder's. On appeal to the Supreme Court of North Dakota, that court held2 that the North Dakota statute was unconstitutional by reason of our decision in 1928 in Liggett Co. v. Baldridge, 278 U.S. 105, 49 S.Ct. 57, 73 L.Ed. 204. That case involved a Pennsylvania statute that required that 100% of the stock of the corporation be owned by pharmacists. The North Dakota statute, however, requires only that a majority of the stock be owned by pharmacists. But the North Dakota Supreme Court held that the difference did not take this case out from under the Liggett case because under both statutes control of the corporation having a pharmacy license had to be in the hands of pharmacists responsible for the management and operation of the pharmacy. That court therefore remanded the case, so that the Board could conduct 'an administrative hearing on the application, sans the constitutional issue, pursuant to our Administrative Agencies Practice Act,' 202 N.W.2d 140, 145 (Italics added).
3
The case is here on a petition for certiorari which we granted, 411 U.S. 947, 93 S.Ct. 1926, 36 L.Ed.2d 408.
4
* We are met at the outset with a suggestion that the judgment of the Supreme Court of North Dakota is not 'final' within the meaning of 28 U.S.C. § 1257 which restricts our jurisdiction to review state court decisions.3
5
The finality requirement of 28 U.S.C. § 1257, which limits our review of state court judgments, serves several ends: (1) it avoids piecemeal review of state court decisions; (2) it avoids giving advisory opinions in cases where there may be no real 'case' or 'controversy' in the sense of Art. III; (3) it limits review of state court determinations of federal constitutional issues to leave at a minimum federal intrusion in state affairs.
6
Mr. Justice Frankfurter, writing for the Court in Radio Station WOW v. Johnson, 326 U.S. 120, 124, 65 S.Ct. 1475, 1478, 89 L.Ed. 2092, summarized the requirement by Congress that in appeals from federal district courts as well as in review of state court decisions the judgments be 'final':
7
'This requirement has the support of considerations generally applicable to good judicial administration. It avoids the mischief of economic waste and of delayed justice. Only in very few situations, where intermediate rulings may carry serious public consequences, has there been a departure from this requirement of finality for federal appellate jurisdiction. This prerequisite to review derives added force when the jurisdiction of this Court is invoked to upset the decision of a State court. Here we are in the realm of potential conflict between the courts of two different governments. And so, ever since 1789, Congress has granted this Court the power to intervene in State litigation only after 'the highest court of a State in which a decision in the suit could be had' has rendered a 'final judgment or decree.' § 237 of the Judicial Code, 28 U.S.C. § 344(a). This requirement is not one of those technicalities to be easily scorned. It is an important factor in the smooth working of our federal system.'
8
But, as he pointed out, this concept of 'finality' has a 'penumbral area.' Ibid. Speaking for the Court in that case, he held that Nebraska's ruling on the legality of a radio license issued by the Federal Communications Commission could be reviewed even though the state court had not yet determined the final accounting. He stated: 'Of course, where the remaining litigation may raise other federal questions that may later come here . . . to allow review of an intermediate adjudication would offend the decisive objection to fragmentary reviews.' Id., at 127, 65 S.Ct. at 1480.
9
Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484, involved the constitutionality of a state statute in effect making it a crime for a newspaper editor on election day to urge people to vote a certain may on the issues being submitted. The state court held the act did not violate the Federal Constitution and remanded the case for trial. It was argued that the judgment was not 'final' for purposes of 28 U.S.C. § 1257. We noted that the point had 'a surface plausibility, since it is true the judgment of the State Supreme Court did not literally end the case.' 384 U.S., at 217, 86 S.Ct., at 1436. We held it 'final,' however, because if the Act were constitutional the editor would in reality have no defense. Since conviction seemed likely, we concluded that to deny review at that stage would 'result in a completely unnecessary waste of time and energy in judicial systems already troubled by delays due to congested dockets.' Id., at 217—218, 86 S.Ct., at 1436.
10
In Hudson Distributors, Inc. v. Eli Lilly & Co., 377 U.S. 386, 84 S.Ct. 1273, 12 L.Ed.2d 394, the question on the merits was whether the requirement of a state act setting minimum retail prices was consonant with federal law. The state court held the state act constitutional under both the State and the Federal Constitutions and remanded the case for further proceedings. In reliance on Curry and on Langdeau4 we held that the fact that there were to be further proceedings in the state court did not render the state judgment 'nonfinal or unappealable within the meaning of 28 U.S.C. § 1257.' Id., at 389 n. 4, 84 S.Ct., at 1276.
11
The exceptions noted5 have a long lineage dating back to Mr. Chief Justice Taney's opinion in Forgay v. Conrad, 6 How. 201, 12 L.Ed. 404, where the Court held 'final' an interlocutory decree requiring a litigant 'to deliver up property which he claims,' even though a final accounting has yet to be made. Id., at 205. Unless that interlocutory order was deemed 'final,' Mr. Chief Justice Taney pointed out, the 'right of appeal is of very little value to him and he may be ruined before he is permitted to avail himself of the right.' Ibid.
12
It is equally important that we treat the judgment in the instant case as 'final,' for we have discovered no way which the licensing authority in North Dakota has of preserving the constitutional question now ripe for decision.
13
The Board here denied respondent's application without an evidentiary hearing since the application showed that under the North Dakota Act respondent could in no way qualify for a license. The State Supreme Court held that Act unconstitutional and that thus an applicant failing to meet the requirements of the state statute is nevertheless entitled to consideration for a license. As previously noted, the State Supreme Court, indeed, directed the Board on remand to reconsider the application 'sans' the constitutional question.
14
There were state law questions to be considered on the remand, for the state board had also rested its denial of a permit on the failure of Snyder's to meet certain structural and safety standards. The Supreme Court remanded for an administrative hearing on those other issues.
15
If we deny review at this point, respondent has no constitutional barrier to the grant of a license.
16
The state licensing authority might, of course, after an administrative hearing reinstate its earlier findings that the respondent does not meet the necessary structural and safety standards. If respondent is denied a license for that reason, the denial will obviously be on a state ground. If respondent is granted a license, the battle over the constitutionality of the new Act will be lost as far as this case is concerned.
17
There is no suggestion that 'the remaining litigation may raise other federal questions,' Radio Station WOW v. Johnson, 326 U.S., at 127, 65 S.Ct., at 1480, 'such as is true of eminent domain cases.' Ibid. For in those cases the federal constitutional question embraces not only a taking, but a taking on payment of just compensation. A state judgment is not final unless it covers both aspects of that integral problem. See Grays Harbor Logging Co. v. Coats-Fordney Logging Co., 243 U.S. 251, 256, 37 S.Ct. 295, 297, 61 L.Ed. 702.
18
It would appear that, as a matter of North Dakota procedure, the only way in which the Board could preserve the constitutional issue would be to defy its own State Supreme Court and deny the application on the ground of failure to meet the ownership requirement. The state Administrative Agencies Practice Act provides that: 'Any party to any proceeding heard by an administrative agency' may appeal from the decision of the agency. N.D.Cent.Code § 28—32—15. The statute appears to treat the agency as a tribunal and not as a 'party' able to appeal its own order.
19
If the Board thus grants the license in accordance with the State Supreme Court decision and then seeks to appeal its own grant on the basis of the validity of the state ownership requirement, the appeal may well be dismissed and the dismissal would rest on the independent state ground that state procedural law does not provide the agency the right to appeal.
II
20
Liggett, decided in 1928, belongs to that vintage of decisions which exalted substantive due process by striking down state legislation which a majority of the Court deemed unwise. Liggett has to date not been expressly overruled. We commented on it disparagingly, however, in Daniel v. Family Security Life Ins. Co., 336 U.S. 220, 69 S.Ct. 550, 93 L.Ed. 632, which concerned the constitutionality of a state statute providing that life insurance companies and their agents may not operate an undertaking business and undertakers may not serve as agents for life insurance companies. We noted that 'Liggett held that it was 'clear' that 'mere stock ownership in a corporation, owning and operating a drug store, can have no real or substantial relation to the public health; and that the act in question creates an unreasonable and unnecessary restriction upon private business,' 278 U.S., at 113, 49 S.Ct., at 59. In Daniel, however, we stated that 'a pronounced shift of emphasis since the Liggett case,' 336 U.S., at 225, 69 S.Ct., at 553, had deprived the words 'unreasonable' and 'arbitrary' of the meaning which Liggett ascribed to them. We had indeed held in Lincoln Federal Labor Union v. Northwestern Iron and Metal Co., 335 U.S. 525, 69 S.Ct. 251, 93 L.Ed. 212, that a State had power, so far as the Due Process Clause of the Fourteenth Amendment was concerned, to legislate that no person should be denied the opportunity to obtain or retain employment because he was or was not a member of a labor union. After reviewing Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940, Adair v. United States, 208 U.S. 161, 28 S.Ct. 277, 52 L.Ed. 436, and Coppage v. Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441, we said:
21
'This Court beginning at least as early as 1934, when the Nebbia case was decided, has steadily rejected the due process philosophy enunciated in the Adair-Coppagy line of cases. In doing so it has consciously returned closer and closer to the earlier constitutional principle that states have power to legislate against what are found to be injurious practices in their internal commercial and business affairs, so long as their laws do not run afoul of some specific federal constitutional prohibition, or of some valid federal law. . . . Under this constitutional doctrine the due process clause is no longer to be so broadly construed that the Congress and state legislatures are put in a strait jacket when they attempt to suppress business and industrial conditions which they regard as offensive to the public welfare.' 335 U.S., at 536—537, 69 S.Ct., at 257.
22
We reached the same result in Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93, where we sustained the constitutionality of a state law prohibiting persons other than lawyers from engaging in the business of debt adjusting and debt pooling. We said:
23
'We conclude that the Kansas Legislature was free to decide for itself that legislation was needed to deal with the business of debt adjusting. Unquestionably, there are arguments showing that the business of debt adjusting has social utility, but such arguments are properly addressed to the legislature, not to us. We refuse to sit as a 'superlegislature to weigh the wisdom of legislation,' and we emphatically refuse to go back to the time when courts used the Due Process Clause 'to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.' Nor are we able or willing to draw lines by calling a law 'prohibitory' or 'regulatory.' Whether the legislature takes for its textbook Adam Smith, Herbert Spencer, Lord Keynes, or some other is no concern of ours. The Kansas debt adjusting statute may be wise or unwise. But relief, if any be needed, lies not with us but with the body constituted to pass laws for the State of Kansas.' Id., at 731—732, 69 S.Ct., at 1032 (footnotes omitted).
24
The majority of the Court in Liggett for which Mr. Justice Sutherland spoke held that business or property rights could be regulated under the Fourteenth Amendment only if the 'legislation bears a real and substantial relation to the public health, safety, morals, or some other phase of the general welfare,' 278 U.S., at 111—112, 49 S.Ct., at 59. The majority held the Act governing pharmacies 'creates an unreasonable and unnecessary restriction upon private business.' Id., at 113, 49 S.Ct., at 59. The opposed view stated by Mr. Justice Holmes, and concurred in by Mr. Justice Brandeis, was:
25
'A standing criticism of the use of corporations in business is that it causes such business to be owned by people who do not know anything about it. Argument has not been supposed to be necessary in order to show that the divorce between the power of control and knowledge is an evil. The selling of drugs and poisons calls for knowledge in a high degree, and Pennsylvania after enacting a series of other safeguards has provided that in that matter the divorce shall not be allowed. Of course, notwithstanding the requirement that in corporations hereafter formed all the stockholders shall be licensed pharmacists, it still would be possible for a stockholder to content himself with drawing dividends and to take no hand in the company's affairs. But obviously he would be more likely to observe the business with an intelligent eye than a casual investor who looked only to the standing of the stock in the market. The Constitution does not make it a condition of preventive legislation that it should work a perfect cure. It is enough if the questioned act has a manifest tendency to cure or at least to make the evil less.' Id., at 114—115,
26
Those two opposed views of public policy are considerations for the legislative choice. The Liggett case was a creation at war with the earlier constitutional view of legislative power Munn v. Illinois, 94 U.S. 113, 132, 134, 24 L.Ed. 77, and opposed to our more recent decisions. Olsen v. Nebraska ex rel. Western Ref. & Bond Ass'n, 313 U.S. 236, 241, 61 S.Ct. 862, 85 L.Ed. 1305; Williamson v. Lee Optical Co., 348 U.S. 483, 487—488, 75 S.Ct. 461, 464, 99 L.Ed. 563; Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 72 S.Ct. 405, 96 L.Ed. 469, as well as the Daniel, Lincoln Union, and Ferguson cases already discussed. The Liggett case, being a derelict in the stream of the law, is hereby overruled. We reverse and remand the judgment below and free the courts and agencies of North Dakota from what the State Supreme Court deemed to be the mandate of Liggett.
27
So ordered.
28
Reversed and remanded.
1
N.D.Cent.Code § 43—15—35(5) (Supp.1973) provides:
'Requirements for permit to operate pharmacy.—The board shall issue a permit to operate a pharmacy, or a renewal permit, upon satisfactory proof that:
'5. The applicant for such permit is qualified to conduct the pharmacy, and is a registered pharmacist in good standing or is a partnership, each active member of which is a registered pharmacist in good standing, or a corporation or association, and majority stock in which is owned by registered pharmacists in good standing, actively and regularly employed in and responsible for the management, supervision, and operation of such pharmacy . . .
'The provision of subsection 5 of this section shall not apply to the holder of a permit on July 1, 1963, if otherwise qualified to conduct the pharmacy, provided that any such permit holder who shall discontinue operations under such permit or fail to renew such permit upon expiration shall not thereafter be exempt from the provisions of such subsection as to such discontinued or lapsed permit. The provisions of subsection 5 of this section shall not apply to hospital pharmacies furnishing service only to patients in such hospital.'
2
202 N.W.2d 140.
3
'Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court . . ..' 28 U.S.C. § 1257.
4
We held in Local No. 438 Const. and General Laborers' Union v. Curry, 371 U.S. 542, 83 S.Ct. 531, 9 L.Ed.2d 514, that a state court judgment which authorized a temporary injunction against picketing because in the court's view the National Labor Relations Board did not have exclusive jurisdiction was 'final' for purposes of 28 U.S.C. § 1257. We did not wait until the litigation had been resolved in the state court, as the state court had finally determined its jurisdiction and erroneously so. 371 U.S., at 548, 83 S.Ct., at 535.
In Mercantile National Bank v. Langdeau, 371 U.S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523, a receiver for a Texas insurance company sued two national banks, and the only question tendered on appeal from the state court concerned the question of venue, viz., in what state court a national bank could be sued. It was argued that the state court judgment was not 'final' for purposes of 28 U.S.C. § 1257. We rejected that view, holding the judgment 'final' and saying: '(W)e believe that it serves the policy underlying the requirement of finality in 28 U.S.C. § 1257 to determine now in which state court appellants may be tried rather than to subject them, and appellee, to long and complex litigation which may all be for naught if consideration of the preliminary question of venue is postponed until the conclusion of the proceedings.' 371 U.S., at 558, 83 S.Ct., at 522.
5
In California v. Stewart, 384 U.S. 436, 498—499, 86 S.Ct. 1602, 1640, 16 L.Ed.2d 694, in a capital case the State Supreme Court set aside the verdict on a federal constitutional ground and directed that the defendant (respondent) be retried. He moved that we dismiss the State's petition, which we had granted, for lack of a 'final' judgment. We noted, however, that if on a retrial he were acquitted, there was no appeal available to the State. We therefore held that the judgment under review was 'final' for our purposes. Id., at 498 n. 71, 86 S.Ct., at 1640.
In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, the state court had given a defendant post-conviction relief and remanded the case for retrial on the question of punishment. We took the case to determine whether the suppression of evidence by the prosecution entitled the defendant to a retrial on the issue of guilt as well as punishment. We held that the issue of guilt was quite independent of the issue of punishment and that it was time to decide the due process and/or equal protection questions presented by the state decision.
| 78
|
414 U.S. 260
94 S.Ct. 488.
38 L.Ed.2d 456
James E. GUSTAFSON, Petitioner,v.State of FLORIDA.
No. 71—1669.
Argued Oct. 9, 1973.
Decided Dec. 11, 1973.
Syllabus
During the course of a patdown search of the person of petitioner, who had been arrested for not having his driver's license in his possession, the arresting officer seized marihuana cigarettes, for the unlawful possession of which petitioner was subsequently tried and convicted. The State Supreme Court upheld the conviction, concluding that the search leading to the discovery of the marihuana, which was used as evidence in petitioner's trial, was not unreasonable.
Held: The full search of the person of the suspect made incident to a lawful custodial arrest did not violate the Fourth and Fourteenth Amendments, United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427, and it is of no constitutional significance that, contrary to the situation in Robinson, police regulations did not require that petitioner be taken into custody or establish the conditions under which a full-scale body search should be conducted, nor, as in Robinson, is it relevant that the arresting officer had no subjective fear of petitioner or suspicion that he was armed, since it is the fact of custodial arrest that gives rise to the authority to search. Pp. 263—266.
258 So.2d 1, affirmed.
James M. Russ, Orlando, Fla., for petitioner.
Barry Scott Richard, Miami, Fla., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Petitioner James Gustafson was convicted in a Florida trial court for unlawful possession of marihuana. At his trial the State introduced into evidence marihuana which had been seized from him during a search incident to his arrest on a charge of driving without possession of an operator's license. The District Court of Appeals of Florida, Fourth District, reversed petitioner's conviction, holding that the search which had led to the discovery of the marihuana was unreasonable under the Fourth and Fourteenth Amendments. 243 So.2d 615 (1971). The Supreme Court of Florida in turn reversed that decision, State v. Gustafson, 258 So.2d 1 (1972), and petitioner sought certiorari in this Court. We granted certiorari, 410 U.S. 982, 93 S.Ct. 1494, 36 L.Ed.2d 177 (1973), and set the case for argument with United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 also decided today. For the reasons set forth below, we affirm the judgment of the Supreme Court of Florida.
2
At approximately 2 a.m., on January 12, 1969, Lieutenant Paul R. Smith, a uniformed municipal police officer of Eau Gallie, Florida, was on a routine patrol in an unmarked squad car when he observed a 1953 white Cadillac, bearing New York license plates, driving south through the town. Smith observed the automobile weave across the center line and back to the right side of the road 'three or four' times. Smith testified that be observed the two occupants of the Cadillac look back; after they apparently saw the squad car, the car drove across the highway and behind a grocery store, and then headed south on another city street.
3
At that point Smith turned on his flashing light and ordered the Cadillac over to the side of the road. After stopping the vehicle, Smith asked petitioner, the driver, to produce his operator's license. Petitioner informed Smith that he was a student and that he had left his operator's license in his dormitory room in the neighboring city of Melbourne, Florida. Petitioner was then placed under arrest for failure to have his vehicle operator's license in his possession. It was conceded by the parties below and in this Court that the officer had probable cause to arrest upon learning that petitioner did not have his license in his possession, and that he took petitioner into custody in order to transport him to the stationhouse for further inquiry.1
4
Smith then proceeded to search the petitioner's person. Smith testified that he patted down the clothing of the petitioner, 'outside and inside, I checked the belt, the shirt pockets and all around the belt, completely around inside.' Upon completing his patdown, he testified, he placed his hand into the left front coat pocket of the coat petitioner was wearing. From that pocket he extracted a 'long chain' and a Benson and Hedges cigarette box. Smith testified that he then 'opened (the cigarette box) and it appeared there were marihuana cigarettes in the box.2 I had been shown this in training at the police department and these appeared to be marihuana to me.'
5
* Petitioner urges that there could be no evidentiary purpose for the search conducted by Smith, and therefore the authority to search for weapons incident to a lawful arrest is controlled by the standards laid down in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Petitioner contends that this case is different from United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427, in that petitioner had experienced no previous encounters with the officer in this case, and the offense for which he was arrested was 'benign or trivial in nature,' carrying with it no mandatory minimum sentence as did the offense for which Robinson was arrested. Petitioner points out that here, unlike Robinson, there were no police regulations which required the officer to take petitioner into custody, nor were there police department policies requiring full-scale body searches upon arrest in the field. Petitioner also points to the fact that here, as in Robinson the officer expressed no fear for his own well-being or for that of others in dealing with the petitioner.
6
We have held today in United States v. Robinson that '(i)t is the fact of the lawful arrest which establishes the authority to search, and . . . in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable' search under that Amendment.' 414 U.S., at 235, 94 S.Ct., at 477. Our decision in Robinson indicates that the limitations placed by Terry v. Ohio, supra, on protective searches conducted in an investigatory stop situation based on less than probable cause are not to be carried over to searches made incident to lawful custodial arrests. We stated in Robinson:
7
'The justification or reason for the authority to search incident to a lawful arrest rests quite as much on the need to disarm the suspect in order to take him into custody as it does on the need to preserve evidence on his person for later use at trial. Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925); Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). The standards traditionally governing a search incident to lawful arrest are not, therefore, commuted to the stricter Terry standards by the absence of probable fruits or further evidence of the particular crime for which the arrest is made.' 414 U.S., at 234, 94 S.Ct., at 234.
8
Neither Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), nor Peters v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), relied upon by petitioner, purported to limit the traditional authority of the arresting officer to conduct a full search of the person of an arrestee incident to a lawful custodial arrest. United States v. Robinson, 414 U.S., at 225—226, 228—229, 94 S.Ct., at 472, 473—474. Indeed, as our decision in Robinson indicates, not only has this been established Fourth Amendment law since the decision in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), but it was also the rule both at common law and in the early development of American law. United States v. Robinson, 414 U.S., at 230—233, 94 S.Ct., at 474—476.
9
Though the officer here was not required to take the petitioner into custody by police regulations as he was in Robinson, and there did not exist a departmental policy establishing the conditions under which a full-scale body search should be conducted, we do not find these differences determinative of the constitutional issue. Id., at 223 n. 2, 94 S.Ct., at 471.3 It is sufficient that the officer had probable cause to arrest the petitioner and that he lawfully effectuated the arrest, and placed the petitioner in custody. In addition, as our decision in Robinson makes clear, the arguable absence of 'evidentiary' purpose for a search incident to a lawful arrest is not controlling. Id., at 233, 94 S.Ct., at 477.4 'The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect.' Id., at 235, 94 S.Ct., at 477.
II
10
We hold, therefore, that upon arresting petitioner for the offense of driving his automobile without possession of a valid oeprator's license, and taking him into custody, Smith was entitled to make a full search of petitioner's person incident to that lawful arrest. Since it is the fact of custodial arrest which gives rise to the authority to search, it is of no moment that Smith did not indicate any subjective fear of the petitioner or that he did not himself suspect that the petitioner was armed. Having in the course of his lawful search come upon the box of cigarettes, Smith was entitled to inspect it; and when his inspection revealed the homemade cigarettes which he believed to contain an unlawful substance, he was entitled to seize them as 'fruits, instrumentalities or contraband' probative of criminal conduct. Harris v. United States, 331 U.S. 145, 154—155, 67 S.Ct. 1098, 1103—1104, 91 L.Ed. 1399 (1947); Warden v. Hayden, 387 U.S. 294, 299, 307, 87 S.Ct. 1642, 1650, 18 L.Ed.2d 782 (1967); Adams v. Williams, 407 U.S. 143, 149, 92 S.Ct. 1921, 1925, 32 L.Ed.2d 612 (1972); United States v. Robinson, 414 U.S., at 236, 94 S.Ct., at 477. The judgment of the Surpeme Court of Florida is therefore affirmed.
11
Affirmed.
12
Mr. Justice STEWART, concurring.
13
It seems to me that a persuasive claim might have been made in this case that the custodial arrest of the petitioner for a minor traffic offense violated his rights under the Fourth and Fourteenth Amendments. But no such claim has been made. Instead, the petitioner has fully conceded the constitutional validity of his custodial arrest. That being so, it follows that the incidental search of his person was also constitutionally valid. To hold otherwise would, as the Court makes clear in this case and in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427, mark an abrupt departure from settled constitutional precedent.
14
Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN join, dissenting.
15
I respectfully dissent for the reasons stated in my opinion in United States v. Robinson, 414 U.S. 218, at 237, 94 S.Ct. 467, at 477, 38 L.Ed.2d 427. The facts show that after arresting petitioner Gustafson for driving without possession of an operator's license, Officer Smith conducted a search of petitioner's person in which he removed a Benson and Hedges cigarette box. The officer put petitioner in the back seat of the squad car and then opened the cigarette box, disclosing marihuana cigarettes. As my Brother STEWART indicates, ante, at 266, no challenge was made either here or below with respect to the lawfulness of Officer Smith's decision to effect a full custodial arrest for this minor traffic offense. Whether or not it was lawful for the officer to have searched petitioner's person and removed the cigarette package before placing petitioner in the squad car, see United States v. Robinson, 414 U.S., at 250—255, 94 S.Ct., at 483—486 (Marshall, J., dissenting), there was no justification for his opening the package and looking inside.
16
There was no reason to believe, and Officer Smith did not in fact believe, that petitioner was a dangerous person or that the package contained a weapon. The package's weight alone no doubt would have indicated that it did not contain a gun or knife. In any event, even were it possible that the package contained some sort of weapon—say a razor blade—there was no chance the petitioner could use it once it was in the officer's hands. The opening of the package had no connection whatsoever with the protective purpose of the search.
17
The State argues, and the Florida Supreme Court found, see 258 So.2d 1, 2 (1972), that Officer Smith had a reasonable suspicion petitioner was intoxicated justifying searching for intoxicating drugs such as marihuana. Leaving aside the question whether the officer could search for intoxicants, absent probable cause that petitioner had committed an offense involving intoxication, I do not find sufficient evidence in this record to support the conclusion that Officer Smith even had a reasonable suspicion petitioner was intoxicated. To begin with, Officer Smith neither arrested petitioner for driving while intoxicated nor did he give petitioner a sobriety test. See Fla.Stat.Ann. §§ 322.261 and 322.262 (1968). Smith testified that petitioner did not have any trouble getting out of his car, did not have difficulty standing up, and did not slur his speech when answering the officer's questions. Nor did the fact that petitioner's car weaved across a lane justify such a suspicion. As Officer Smith testified, he did not arrest petitioner on a careless-driving-by-weaving charge because there was simply not enough evidence. If there was not enough evidence to justify a charge for the weaving itself, I find it hard to understand how there could be enough evidence to suspect that petitioner was intoxicated. Officer Smith testified that petitioner's eyes looked bleary, but that was hardly surprising, since the arrest took place at 2 a.m.
18
The only need for a search in this case was to disarm petitioner to protect Officer Smith from harm while the two were together in the patrol car. The search conducted by Officer Smith went far beyond what was reasonably necessary to achieve that end. It therefore fell outside the scope of a properly drawn 'search incident to arrest' exception to the Fourth Amendment's warrant requirement. I would reverse the judgment of the Florida Supreme Court holding that the fruits of the search could be admitted at petitioner's trial.
1
Brief for Petitioner 9.
2
Upon placing petitioner under arrest for driving without possession of an operator's license and after removing the chain and the cigarette box from petitioner's clothing, Smith told the assisting officer on the scene to check the other passenger of the Cadillac to see if he had an operator's permit so that he could drive the car to the station. Smith then put petitioner in the back seat of the squad car. Smith then opened the cigarette box and observed the rolled cigarettes he believed to be marihuana. He then told the other officer to place the other passenger in the squal car so that he could also be transported to the station, for the purpose of investigation. The passenger was frisked by the other officer and placed in the squad car; no charges were placed against the passenger. In addition to the marihuana conviction which we here review, petitioner was charged with driving without possession of an operator's license; that charge was dropped when petitioner produced a valid operator's license at a later date.
3
Smith testified that he wrote about eight to 10 traffic citations per week, and that about three or four out of every 10 persons he arrested for the offense of driving without a license were taken into custody to the police station. Smith indicated that an offender is more likely to be taken into custody if he does not reside in the city of Eau Gallie. Finally, Smith testified that after making a custodial arrest, he always searches the arrestee before placing him into the patrol car.
4
The State of Florida argues in this Court that there was an evidentiary purpose for the search of petitioner. It is contended that Smith's observation of the erratic motions of the car that petitioner was driving created a reasonable suspicion that the petitioner may have been under the influence of some intoxicant. Upon confronting petitioner after stopping the car, Smith indicated that he noticed that the petitioner's eyes were 'bleary.' The State argues that the officer had probable cause to arrest the petitioner for driving while intoxicated, and that Smith thought Gustafson was intoxicated when he confronted him. Since Smith did not detect an odor of alcohol during that confrontation, the State argues it was reasonable for the officer to search the petitioner's person for drugs that may have been the cause of the suspected intoxication. Florida makes it a criminal offense to drive while intoxicated not only by alcohol, but also by unlawful drugs. Fla.Stat.Ann. § 317.201 (1968).
| 01
|
414 U.S. 218
94 S.Ct. 467
38 L.Ed.2d 427
UNITED STATES, Petitioner,v.Willie ROBINSON, Jr.
No. 72—936.
Argued Oct. 9, 1973.
Decided Dec. 11, 1973.
Syllabus
Having, as a result of a previous check of respondent's operator's permit, probable cause to arrest respondent for driving while his license was revoked, a police officer made a full-custody arrest of respondent for such offense. In accordance with prescribed procedures, the officer made a search of respondent's person, in the course of which he found in a coat pocket a cigarette package containing heroin. The heroin was admitted into evidence at the District Court trial, which resulted in respondent's conviction for a drug offense. The Court of Appeals reversed on the ground that the heroin had been obtained as a result of a search in violation of the Fourth Amendment. Held: In the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable' search under that Amendment. Pp. 224—237.
(a) A search incident to a valid arrest is not limited to a frisk of the suspect's outer clothing and removal of such weapons as the arresting officer may, as a result of such frisk, reasonably believe and ascertain that the suspect has in his possession, and the absence of probable fruits or further evidence of the particular crime for which the arrest is made does not narrow the standards applicable to such a search. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 distinguished. Pp. 227 229; 234—235.
(b) A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment and a search incident to the arrest requires no additional justification, such as the probability in a particular arrest situation that weapons or evidence would in fact be found upon the suspect's person; and whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest need not be litigated in each case. Pp. 235.
(c) Since the custodial arrest here gave rise to the authority to search, it is immaterial that the arresting officer did not fear the respondent or suspect that he was armed. P. 236—237.
153 U.S.App.D.C. 114, 471 F.2d 1082, reversed.
Allan A. Tuttle, Raleigh, N.C., for petitioner.
Joseph V. Gartlan, Jr., Washington, D.C., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Respondent Robinson was convicted in United States District Court for the District of Columbia of the possession and facilitation of concealment of heroin in violation of 26 U.S.C. § 4704(a) (1964 ed.), and 21 U.S.C. § 174 (1964 ed.). He was sentenced to concurrent terms of imprisonment for these offenses. On his appeal to the Court of Appeals for the District of Columbia Circuit, that court first remanded the case to the District Court for an evidentiary hearing concerning the scope of the search of respondent's person which had occurred at the time of his arrest. 145 U.S.App.D.C. 46, 447 F.2d 1215 (1971). The District Court made findings of fact and conclusions of law adverse to respondent, and he again appealed. This time the Court of Appeals en banc reversed the judgment of conviction, holding that the heroin introduced in evidence against respondent had been obtained as a result of a search which violated the Fourth Amendment to the United States Constitution. 153 U.S.App.D.C. 114, 471 F.2d 1082 (1972). We granted certiorari, 410 U.S. 982, 93 S.Ct. 1500, 36 L.Ed.2d 177 (1973), and set the case for argument together with Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456, also decided today.
2
On April 23, 1968, at approximately 11 p.m., Officer Richard Jenks, a 15-year veteran of the District of Columbia Metropolitan Police Department, observed the respondent driving a 1965 Cadillac near the intersection of 8th and C Streets, N.E., in the District of Columbia. Jenks, as a result of previous investigation following a check of respondent's operator's permit four days earlier, determined there was reason to believe that respondent was operating a motor vehicle after the revocation of his operator's permit. This is an offense defined by statute in the District of Columbia which carries a mandatory minimum jail term, a mandatory minimum fine, or both. D.C.Code Ann. § 40—302(d) (1967).
3
Jenks signaled respondent to stop the automobile, which respondent did, and all three of the occupants emerged from the car. At that point Jenks informed respondent that he was under arrest for 'operating after revocation and obtaining a permit by misrepresentation.' It was assumed by the Court of Appeals, and is conceded by the respondent here, that Jenks had probable cause to arrest respondent, and that he effected a fullcustody arrest.1
4
In accordance with procedures prescribed in police department instructions,2 Jenks then began to search respondent. He explained at a subsequent hearing that he was 'face-to-face' with the respondent, and 'placed (his) hands on (the respondent), my righ-hand to his left breast like this (demonstrating) and proceeded to pat him down thus (with the right hand).' During this patdown, Jenks felt an object in the left breast pocket of the heavy coat respondent was wearing, but testified that he 'couldn't tell what it was' and also that he 'couldn't actually tell the size of it.' Jenks then reached into the pocket and pulled out the object, which turned out to be a 'crumpled up cigarette package.' Jenks testified that at this point he still did not know what was in the package:
5
'As I felt the package I could feel objects in the package but I couldn't tell what they were. . . . I knew they weren't cigarettes.'
6
The officer then opened the cigarette pack and found 14 gelatin capsules of white powder which he thought to be, and which later analysis proved to be, heroin. Jenks then continued his search of respondent to completion, feeling around his waist and trouser legs, and examining the remaining pockets. The heroin seized from the respondent was admitted into evidence at the trial which resulted in his conviction in the District Court.
7
The opinion for the plurality judges of the Court of Appeals, written by Judge Wright, the concurring opinion of Chief Judge Bazelon, and the dissenting opinion of Judge Wilkey, concurred in by three judges, gave careful and comprehensive treatment to the authority of a police officer to search the person of one who has been validly arrested and taken into custody. We conclude that the search conducted by Jenks in this case did not offend the limits imposed by the Fourth Amendment, and we therefore reverse the judgment of the Court of Appeals.
8
* It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment. This general exception has historically been formulated into two distinct propositions. The first is that a search may be made of the person of the arrestee by virtue of the lawful arrest. The second is that a search may be made of the area within the control of the arrestee.
9
Examination of this Court's decisions shows that these two propositions have been treated quite differently. The validity of the search of a person incident to a lawful arrest has been regarded as settled from its first enunciation, and has remained virtually unchallenged until the present case. The validity of the second proposition, while likewise conceded in principle, has been subject to differing interpretations as to the extent of the area which may be searched.
10
Because the rule requiring exclusion of evidence obtained in violation of the Fourth Amendment was first enunciated in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), it is understandable that virtually all of this Court's search-and-seizure law has been developed since that time. In Weeks, the Court made clear its recognition of the validity of a search incident to a lawful arrest:
11
'What then is the present case? Before answering that inquiry specifically, it may be well by a process of exclusion to state what it is not. It is not an assertion of the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime. This right has been uniformly maintained in many cases. 1 Bishop on Criminal Procedure, § 211; Wharton, Crim.Plead. and Practice, 8th ed., § 60; Dillon v. O'Brien and Davis, 16 Cox C.C. 245.' Id., at 392, 34 S.Ct. at 344.
12
Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925), decided 11 years after Weeks, repeats the categorical recognition of the validity of a search incident to lawful arrest:
13
'The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and size things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted.' Id., at 30, 46 S.Ct. at 5.
14
Throughout the series of cases in which the Court has addressed the second proposition relating to a search incident to a lawful arrest—the permissible area beyond the person of the arrestee which such a search may cover—no doubt has been expressed as to the unqualified authority of the arresting authority to search the person of the arrestee. E.g., Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927); Go-Bart Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931); United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932); Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948); United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950); Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). In Chimel, where the Court overruled Rabinowitz and Harris as to the area of permissible search incident to a lawful arrest, full recognition was again given to the authority to search the person of the arrestee:
15
'When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction.' 395 U.S., at 762—763, 89 S.Ct. at 2040.
16
Three years after the decision in Chimel, supra, we upheld the validity of a search in which heroin had been taken from the person of the defendant after his arrest on a weapons charge, in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), saying:
17
'Under the circumstances surrounding Williams' possession of the gun seized by Sgt. Connolly, the arrest on the weapons charge was supported by probable cause, and the search of his person and of the car incident to that arrest was lawful' Id., at 149, 92 S.Ct. at 1925.
18
Last Term in Cupp v. Murphy, 412 U.S. 291, 295, 93 S.Ct. 2000, 2003, 36 L.Ed.2d 900 (1973), we again reaffirmed the traditional statement of the authority to search incident to a valid arrest.
19
Thus the broadly stated rule, and the reasons for it, have been repeatedly affirmed in the decisions of this Court since Weeks v. United States, supra, nearly 60 years ago. Since the statements in the cases speak not simply in terms of an exception to the warrant requirement, but in terms of an affirmative authority to search, they clearly imply that such searches also meet the Fourth Amendment's requirement of reasonableness.
II
20
In its decision of this case, the Court of Appeals decided that even after a police officer lawfully places a suspect under arrest for the purpose of taking him into custody, he may not ordinarily proceed to fully search the prisoner. He must, instead, conduct a limited frisk of the outer clothing and remove such weapons that he may, as a result of that limited frisk, reasonably believe and ascertain that the suspect has in his possession. While recognizing that Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), dealt with a permissible 'frisk' incident to an investigative stop based on less than probable cause to arrest, the Court of Appeals felt that the principles of that case should be carried over to this probable-cause arrest for driving while one's license is revoked. Since there would be no further evidence of such a crime to be obtained in a search of the arrestee, the court held that only a search for weapons could be justified.
21
Terry v. Ohio, supra, did not involve an arrest for probable cause, and it made quite clear that the 'protective frisk' for weapons which it approved might be conducted without probable cause. Id., at 21—22, 24—25, 88 S.Ct. at 1879—1880, 1881—1882. This Court's opinion explicitly recognized that there is a 'distinction in purpose, character, and extent between a search incident to an arrest and a limited search for weapons.'
22
'The former, although justified in part by the acknowledged necessity to protect the arresting officer from assault with a concealed weapon, Preston v. United States, 376 U.S. 364, 367 (84 S.Ct. 881, 883, 11 L.Ed.2d 777) (1964), is also justified on other grounds, ibid., and can therefore involve a relatively extensive exploration of the person. A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation. Warden v. Hayden, 387 U.S. 294, 310 (87 S.Ct. 1642, 1652, 18 L.Ed.2d 782) (1967) (Mr. Justice Fortas, concurring). Thus it must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, and may realistically be characterized as something less than a 'full' search, even though it remains a serious intrusion.
23
'. . . An arrest is a wholly different kind of intrusion upon individual freedom from a limited search for weapons, and the interests each is designed to serve are likewise quite different. An arrest is the initial stage of a criminal prosecution. It is intended to vindicate society's interest in having its laws obeyed, and it is inevitably accompanied by future interference with the individual's freedom of movement, whether or not trial or conviction ultimately follows. The protective search for weapons, on the other hand, constitutes brief, though far from inconsiderable, intrusion upon the sancity of the person.' Id., at 25—26, 88 S.Ct., at 1882 (footnote omitted).
24
Terry, therefore, affords no basis to carry over to a probable-cause arrest the limitations this Court placed on a stop-and-frisk search permissible without probable cause.
25
The Court of Appeals also relied on language in Peters v. New York, 392 U.S. 40, 66, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917 (1968), a companion case to Terry. There the Court held that the police officer had authority to search Peters because he had probable cause to arrest him, and went on to say:
26
'(T)he incident search was obviously justified 'by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime.' Preston v. United States, 376 U.S. 364, 367 (84 S.Ct. 881, 11 L.Ed.2d 777) (1964). Moreover, it was reasonably limited in scope by these purposes. Officer Lasky did not engage in an unrestrained and thorough-going examination of Peters and his personal effects.' Id., at 67, 88 S.Ct., at 1905.
27
It is, of course, possible to read the second sentence from this quotation as imposing a novel limitation on the established doctrine set forth in the first sentence. It is also possible to read it as did Mr. Justice Harlan in his opinion concurring in the result:
28
'The second possible source of confusion is the Court's statement that 'Officer Lasky did not engage in an unrestrained and thorough-going examination of Peters and his personal effects.' (392 U.S., at 67, 88 S.Ct.), at 1905. Since the Court found probable cause to arrest Peters, and since an officer arresting on probable cause is entitled to make a very full incident search, I assume that this is merely a factual observation. As a factual matter, I agree with it.' Id., at 77, 88 S.Ct., at 1909 (footnote omitted).
29
We do not believe that the Court in Peters intended in one unexplained and unelaborated sentence to impose a novel and far-reaching limitation on the authority to search the person of an arrestee incident to his lawful arrest. While the language from Peters was quoted with approval in Chimel v. California, 395 U.S., at 764, 89 S.Ct. at 2040, it is preceded by a full exposition of the traditional and unqualified authority of the arresting officer to search the arrestee's person. Id., at 763, 89 S.Ct. at 2040. We do not believe that either Terry or Peters, when considered in the light of the previously discussed statements of this Court, justified the sort of limitation upon that authority which the Court of Appeals fashioned in this case.
III
30
Virtually all of the statements of this Court affirming the existence of an unqualified authority to search incident to a lawful arrest are dicta. We would not, therefore, be foreclosed by principles of stare decisis from further examination into history and practice in order to see whether the sort of qualifications imposed by the Court of Appeals in this case were in fact intended by the Framers of the Fourth Amendment or recognized in cases decided prior to Weeks. Unfortunately such authorities as exist are sparse. Such common-law treatises as Blackstone's Commentaries and Holmes' Common Law are simply silent on the subject. Pollock and Maitland, in their History of English Law, describe the law of arrest as 'rough and rude' before the time of Edward I, but do not address the authority to search incident to arrest. 2 F. Pollock & F. Maitland, The History of English Law ,582 (2d ed. 1909).
31
The issue was apparently litigated in the English courts in Dillon v. O'Brien, 16 Cox C.C. 245 (Exch. Ireland, 1887), cited in Weeks v. United States, supra, There Baron Palles said:
32
'But the interest of the State in the person charged being brought to trial in due course necessarily extends, as well to the preservation of material evidence of his guilt or innocence, as to his custody for the purpose of trial. His custody is of no value if the law is powerless to prevent the abstraction or destruction of this evidence, without which a trial would be no more than an empty form. But if there be a right to production or preservation of this evidence, I cannot see how it can be enforced otherwise than by capture.' Id., at 250.
33
Spalding v. Preston, 21 Vt. 9 (1848), represents an early holding in this country that evidence may be seized from one who is lawfully arrested. in Closson v. Morrison, 47 N.H. 482 (1867), the Court made the following statement:
34
'(W)e think that an officer would also be justified in taking from a person whom he had arrested for crime, any deadly weapon he might find upon him, such as a revolver, a dirk, a knife, a sword cane, a slung shot, or a club, though it had not been used or intended to be used in the commission of the offence for which the prisoner had been arrested, and even though no threats of violence towards the officer had been made. A due regard for his own safety on the part of the officer, and also for the public safety, would justify a sufficient search to ascertain if such weapons were carried about the person of the prisoner, or were in his possession, and if found, to seize and hold them until the prisoner should be discharged, or until they could be otherwise properly disposed of. Spalding v. Preston, 21 Vt. 9, 16.
35
'So we think it might be with money or other articles of value, found upon the prisoner, by means of which, if left in his possession, he might procure his escape, or obtain tools, or implements, or weapons with which to effect his escape. We think the officer arresting a man for crime, not only may, but frequently should, make such searches and seizures; that in many cases they might be reasonable and proper, and courts would hold him harmless for so doing, when he acts in good faith, and from a regard to his own or the public safety, or the security of his prisoner.' Id., at 484—485.
36
Similarly, in Holker v. Hennessey, 141 Mo. 527, 42 S.W. 1090 (1897), the Supreme Court of Missouri said:
37
'Generally speaking, in the absence of a statute, an officer has no right to take any property from the person of the prisoner except such as may afford evidence of the crime charged, or means of identifying the criminal, or may be helpful in making an escape.' Id., at 539, 42 S.W., at 1093.
38
Then Associate Judge Cardozo of the New York Court of Appeals summarized his understanding of the historical basis for the authority to search incident to arrest in these words:
39
'The basic principle is this: Search of the person is unlawful when the seizure of the body is a trespass, and the purpose of the search is to discover grounds as yet unknown for arrest or accusation (citation omitted). Search of the person becomes lawful when grounds for arrest and accusation have been discovered, and the law is in the act of subjecting the body of the accused to its physical dominion.
40
'The distinction may seem subtle, but in truth it is founded in shrewd appreciation of the necessities of government. We are not to strain an immunity to the point at which human nature rebels against honoring it in conduct. The peace officer empowered to arrest must be empowered to disarm. If he many disarm, he may search, lest a weapon be concealed. The search being lawful, he retains what he finds if connected with the crime.' People v. Chiagles, 237 N.Y. 193, 197, 142 N.E. 583, 584 (1923).
41
While these earlier authorities are sketchy, they tend to support the broad statement of the authority to search incident to arrest found in the successive decisions of this Court, rather than the restrictive one which was applied by the Court of Appeals in this case. The scarcity of case law before Weeks is doubtless due in part to the fact that the exclusionary rule there enunciated had been first adopted only 11 years earlier in Iowa; but it would seem to be also due in part to the fact that the issue was regarded as well settled.3
42
The Court of Appeals in effect determined that the only reason supporting the authority for a full search incident to lawful arrest was the possibility of discovery of evidence or fruits.4 Concluding that there could be no evidence or fruits in the case of an offense such as that with which respondent was charged, it held that any protective search would have to be limited by the conditions laid down in Terry for a search upon less than probable cause to arrest. Quite apart from the fact that Terry clearly recognized the distinction between the two types of searches, and that a different rule governed one than governed the other, we find additional reason to disagree with the Court of Appeals.
43
The justification or reason for the authority to search incident to a lawful arrest rests quite as much on the need to disarm the suspect in order to take him into custody as it does on the need to preserve evidence on his person for later use at trial. Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925); Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). The standards traditionally governing a search incident to lawful arrest are not, therefore, commuted to the stricter Terry standards by the absence of probable fruits or further evidence of the particular crime for which the arrest is made.
44
Nor are inclined, on the basis of what seems to us to be a rather speculative judgment, to qualify the breadth of the general authority to search incident to a lawful custodial arrest on an assumption that persons arrested for the offense of driving while their licenses have been revoked are less likely to possess dangerous weapons than are those arrested for other crimes.5 It is scarcely open to doubt that the danger to an officer is far greater in the case of the extended exposure which follows the taking of a suspect into custody and transporting him to the police station than in the case of the relatively fleeting contact resulting from the typical Terry-type stop. This is an adequate basis for treating all custodial arrests alike for purposes of search justification.
45
But quite apart from these distinctions, our more fundamental disagreement with the Court of Appeals arises from its suggestion that there must be litigated in each case the issue of whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest. We do not think the long line of authorities of this Court dating back to Weeks, or what we can glean from the history of practice in this country and in England, requires such a case-by-case adjudication. A police officer's determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable' search under that Amendment.
IV
46
The search of respondent's person conducted by Officer Jenks in this case and the seizure from him of the heroin, were permissible under established Fourth Amendment law. While through, the search partook of none of the extreme or patently abusive characteristics which were held to violate the Due Process Clause of the Fourteenth Amendment in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). Since it is the fact of custodial arrest which gives rise to the authority to search,6 it is of no moment that Jenks did not indicate any subjective fear of the respondent or that he did not himself suspect that respondent was armed.7 Having in the course of a lawful search come upon the crumpled package of cigarettes, he was entitled to inspect it; and when his inspection revealed the heroin capsules, he was entitled to seize them as 'fruits, instrumentalities, or contraband' probative of criminal conduct. Harris v. United States, 331 U.S., at 154—155, 67 S.Ct., at 1103—1104; Warden v. Hayden, 387 U.S. 294, 299, 307, 87 S.Ct. 1642, 1646, 1650 (1967); Adams v. Williams, 407 U.S., at 149, 92 S.Ct., at 1924. The judgment of the Court of Appeals holding otherwise is reversed.
47
Reversed.
48
Mr. JUSTICE POWELL, concurring.*
49
Although I join the opinions of the Court, I write briefly to emphasize what seems to me to be the essential premise of our decisions.
50
The Fourth Amendment safeguards the right of "the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." These are areas of an individuals's life about which he entertains legitimate expectations of privacy. I believe that an individual lawfully subjected to a custodial arrest retains no significant Fourth Amendment interest in the privacy of his person. Under this view the custodial arrest is the significant intrusion of state power into the privacy of one's person. If the arrest is lawful, the privacy interest guarded by the Fourth Amendment is subordinated to a legitimate and overriding governmental concern. No reason then exists to frustrate law enforcement by requiring some independent justification for a search incident to a lawful custodial arrest. This seems to me the reason that a valid arrest justifies a full search of the person, even if that search is not narrowly limited by the twin rationales of seizing evidence and disarming the arrestee.1 The search incident to arrest is reasonable under the Fourth Amendment because the privacy interest protected by that constitutional guarantee is legitimately abated by the fact of arrest.2
51
Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN join, dissenting.
52
Certain fundamental principles have characterized this Court's Fourth Amendment jurisprudence over the years. Perhaps the most basic of these was expressed by Mr. Justice Butler, speaking for a unanimous Court in Go-Bart Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931): 'There is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances.' Id., at 357, 51 S.Ct., at 158. As we recently held: 'The constitutional validity of a warrantless search is preeminently the sort of question which can only be decided in the concrete factual context of the individual case.' Sibron v. New York, 392 U.S. 40, 59, 88 S.Ct. 1889, 1901, 20 L.Ed.2d 917 (1968). And the intensive, at times painstaking, case-by-case analysis characteristic of our Fourth Amendment decisions bespeaks our 'jealous regard for maintaining the integrity of individual rights.' Mapp v. Ohio, 367 U.S. 643, 647, 81 S.Ct. 1684, 1687, 6 L.Ed.2d 1081 (1961). See also Weeks v. United States, 232 U.S. 383, 393, 34 S.Ct. 341, 344, 58 L.Ed.2d 652 (1914).
53
In the present case, however, the majority turns its back on these principles, holding that 'the fact of the lawful arrest' always establishes the authority to conduct a full search of the arrestee's person, regardless of whether in a particular case 'there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest.' Ante, at 357. The majority's approach represents a clear and marked departure from our long tradition of case-by-case adjudication of the reasonableness of searches and seizures under the Fourth Amendment. I continue to believe that '(t)he scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances.' Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). Because I find the majority's reasoning to be at odds with these fundamental principles, I must respectfully dissent.
54
* On April 19, 1968, Officer Richard Jenks stopped a 1965 Cadillac driven by respondent at the intersection of 9th and U Streets, N.W., in the District of Columbia, for what was called a 'routine spot check.' At that time, Officer Jenks examined respondent's temporary operator's permit, automobile registration card, and Selective Service classification card. Although he permitted respondent to go on his way, Officer Jenks pursued a discrepancy he had noted between the '1938' date of birth given on the operator's permit and the '1927' date of birth given on the Selective Service card. A check of police traffic records showed that an operator's permit issued to one Willie Robinson, Jr., born in 1927, had been revoked, and that a temporary operator's permit had subsequently been issued to one Willie Robinson, born in 1938. The pictures on the revoked permit and on the application for the temporary permit were of the same man—the person stopped by Jenks for the routine check on April 19. Having investigated the matter himself in this fashion, it is clear that Officer Jenks had probable cause to believe that respondent had violated a provision of the District of Columbia Motor Vehicle Code making it unlawful for any person to operate a motor vehicle in the District during the period for which his operator's permit is revoked. D.C.Code Ann. § 40—302(d) (1967).
55
Four days later, on April 23, 1968, while on duty in their patrol car, Officer Jenks and his partner saw respondent driving the same vehicle. They pulled up behind respondent's car and signaled it to stop. From all indications in the record, respondent immediately complied and brought his car to a stop alongside the curb, the officers parking their patrol car immediately behind his.
56
Respondent got out of his car and walked back toward the patrol car. Both Officer Jenks and his partner got out of the patrol car and started toward respondent's car. Officer Jenks asked respondent for his permit and registration card and, when shown the same permit respondent had given him four days earlier, informed respondent that he was under arrest for operating a motor vehicle after revocation of his operator's permit.
57
Jenks then began to search respondent. His normal procedure in conducting a search of an arrestee would be to 'have him spread-eagle over a wall or something of that nature.' But in Jenks' own words, 'I think almost every search is different. It depends on the man's size and the nature of the crime.' Since he had a substantial height and weight advantage over respondent, and because the arrest was only for a traffic offense, Jenks chose instead to conduct the search face to face, in contrast to his normal practice.
58
The first step in the search was for Jenks to place both his hands on respondent's chest and begin to pat him down. During this patdown, Jenks felt something in the left breast pocket of respondent's heavy overcoat. Jenks later testified that he could not immediately tell what was in the pocket. The record does indicate, however, that the object did not feel like a gun and that Jenks had no particular indication it was a weapon of any kind.1 Nonetheless, he reached into the pocket and took the object out. It turned out to be a crumpledup cigarette package.
59
With the package now in his hands, Jenks could feel objects inside but could not tell what they were. It does not appear that Jenks had any reason to believe, or did in fact believe, that the objects were weapons of any sort. He nevertheless opened up the package and looked inside, thereby finding the gelatin capsules of heroin which were introduced against respondent at his trial for the possession and facilitation of concealment of heroin.
II
60
Mr. Justice Jackson, writing for the Court in Johnson v. United States, 333 U.S. 10, 13—14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948), explained:
61
'The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. . . . When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.'
62
See also Coolidge v. New Hampshire, 403 U.S. 443, 449, 91 S.Ct. 2022, 2029, 29 L.Ed.2d 564 (1971). The majority's fear of overruling the 'quick ad hoc judgment' of the police officer is thus inconsistent with the very function of the Amendment—to ensure that the quick ad hoc judgments of police officers are subject to review and control by the judiciary.
63
In the vast majority of cases, the determination of when the right of privacy must reasonably yield to the right of search is required to be made by a neutral judicial officer before the search is conducted. See Katz v. United States, 389 U.S. 347, 356 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145 (1925). The Constitution requires that 'the deliberate, impartial judgment of a judicial officer . . . be interposed between the citizen and the police. . . .' Wong Sun v. United States, 371 U.S. 471, 481—482, 83 S.Ct. 407, 414, 9 L.Ed.2d 441 (1963).
64
The requirement that the police seek prior approval of a search from a judicial officer is, no doubt, subject to 'a few specifically established and well-delineated exceptions.' Katz v. United States, supra, 389 U.S., at 357, 88 S.Ct. at 514; including searches of a moving vehicle, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); searches in certain exigent circumstances, Warden v. Hayden, 387 U.S. 294, 298—299, 87 S.Ct. 1642, 1645—1646, 18 L.Ed.2d 782 (1967); McDonald v. United States, 335 U.S. 451, 454—455, 69 S.Ct. 191, 192—193, 93 L.Ed. 153 (1948); and searches incident to a lawful arrest, Agnello v. United States, supra; Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). But because an exception is invoked to justify a search without a warrant does not preclude further judicial inquiry into the reasonableness of that search. It is the role of the judiciary, not of police officers, to delimit the scope of exceptions to the warrant requirement. '(T)he general requirement that a search warrant be obtained is not lightly to be dispensed with, and 'the burden is on those seeking (an) exemption (from the requirement) to show the need for it . . .." Id., at 762, 89 S.Ct., at 2039, quoting United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59 (1951). Exceptions to the warrant requirement are not talismans precluding further judicial inquiry whenever they are invoked, see Coolidge v. New Hampshire, supra, 403 U.S., at 461, 91 S.Ct. at 2035, but rather are 'jealously and carefully drawn.' Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958).
65
Carrying out our mandate of delineating the proper scope of the search-incident-to-arrest exception requires consideration of the purposes of that exception as they apply to the particular search that occurred in this case. See Chimel v. California, supra, 395 U.S., at 762—763, 89 S.Ct., at 2039—2040; Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964). Yet the majority, rather than focusing on the facts of this case, places great emphasis on the police department order which instructed Officer Jenks to conduct a full search and to examine carefully everything he found whenever making an in-custody arrest. See ante, at 221 and n. 2. But this mode of analysis was expolicitly rejected in Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). There both the defendant and the State urged that the principal issue before us was the constitutionality of a state statute which authorized the search there in question. We declined, however, to engage in what we viewed 'as the abstract and unproductive exercise' of laying the words of the statute next to the Fourth Amendment 'in an effort to determine whether the two are in some sense compatible.' Id., at 59, 88 S.Ct., at 1901. 'Our constitutional inquiry,' we concluded, 'would not be furthered here by an attempt to pronounce judgment on the words of the statute. We must confine our review instead to the reasonableness of the searches and seizures which underlie these two convictions.' Id., at 62, 88 S.Ct., at 1902.
66
The majority also suggests that the Court of Appeals reached a novel and unprecedented result by imposing qualifications on the historically recognized authority to conduct a full search incident to a lawful arrest. Nothing could be further from the truth, as the Court of Appeals itself was so careful to point out.
67
One need not go back to Blackstone's Commentaries, Holmes' Common Law, or Pollock & Maitland in search of precedent for the approach adopted by the Court of Appeals. Indeed, given the fact that that mass production of the automobile did not begin until the early decades of the present century, I find it somewhat puzzling that the majority even looks to these sources for guidance on the only question presented in this case: the permissible scope of a search of the person incident to a lawful arrest for violation of a motor vehicle regulation. The fact is that this question has been considered by several state and federal courts, the vast majority of which have held that, absent special circumstances, a police officer has no right to cnduct a full search of the person incident to a lawful arrest for violation of a motor vehicle regulation.
68
In Barnes v. State, 25 Wis.2d 116, 130 N.W.2d 264 (1964), for example, police officers stopped a car for a brake-light violation. Rather than simply issue a citation, the officers placed the driver under arrest. A full search of the driver's person was then conducted, including shining a flashlight into his overcoat pocket, disclosing a small quantity of marihuana and a package of cigarette papers. The Supreme Court of Wisconsin held the search of the driver's pocket unreasonable. While expressly holding that where a traffic offender is actually arrested, as distinguished from being given a summons, it is reasonable for the arresting officer to search his person for weapons, nevertheless the court held it unreasonable to look inside the driver's overcoat pocket with a flashlight. 'We cannot conceive,' the court said, 'that this aspect of the search was a legitimate search for weapons. . . . We reject the state's contention that any search of the person of one lawfully arrested is a valid search.' Id., at 126, 130 N.W.2d, at 269.
69
In State v. Curtis, 290 Minn. 429, 190 N.W.2d 631 (1971), police officers stopped a car which had defective tail-lights and which had made an illegal right turn. The officers decided to take the driver down to the station house and searched him for weapons before putting him in the squad car. One of the officers felt the outside of the driver's pockets. As in Robinson's case, the officer 'detected some object but couldn't tell what it was. It did not feel like a gun or knife.' Id., at 430, 190 N.W.2d, at 632. 'Neither officer expressed any concern for his personal safety. There was no testimony that they suspected defendant of any other criminal activity or were aware of any dangerous propensities on his part.' Id., at 431, 190 N.W.2d, at 633. Nevertheless the officer reached into the pocket, resulting in the discovery of a package of marihuana. The Minnesota Supreme Court held the search unlawful. While recognizing the 'concern for the injuries and loss of life experienced by police officers in face-to-face confrontations with traffic offenders,' the court held that 'the validity of a search for weapons following a traffic arrest depends on whether the officer had reasonable grounds to believe a search was necessary for his own safety or to prevent an escape.' Id., at 436—437, 190 N.W.2d, at 636, citing Shelton v. State, 3 Md.App. 394, 399, 239 A.2d 610, 613 (1968).
70
Of like import is the decision of the Oregon Supreme Court in State v. O'Neal, 251 Or. 163, 444 P.2d 951 (1968) (en banc). Here defendant's automobile was stopped because it had no rear license plate. When asked to produce an operator's license, the defendant produced a temporary operator's license issued to another person which had expired several years earlier. The officers then arrested defendant and placed him in the back seat of the police car. 'One of the officers got in the police car and asked the defendant to remove his money from his wallet and give his wallet to the officer. The defendant did so and the officer took papers from the wallet and examined them. When the officer unfolded one piece of paper a half-smoked marijuana cigarette fell out.' Id., at 164—165, 444 P.2d, at 952. The court held that search unlawful. Again, while recognizing the officer's right to conduct a search incident to arrest in order to protect the officer and deprive the prisoner of potential means of escape, the court held:
71
'The search of the wallet obviously had nothing to do with the officers' safety. The defendant testified that the officers 'patted him down' before placing him in the police car. The officers did not remember whether they had or had not. In any event, it is difficult to see how defendant's wallet could have reasonably been believed to have contained a weapon.' Id., at 166, 444 P.2d, at 953.
72
See also People v. Marsh, 20 N.Y.2d 98, 281 N.Y.S.2d 789, 228 N.E.2d 783 (1967); People v. Superior Court of Los Angeles County, 7 Cal.3d 186, 101 Cal.Rptr. 837, 496 P.2d 1205 (1972); State v. Quintana, 92 Ariz. 267, 376 P.2d 130 (1962) (en banc); People v. Zeigler, 358 Mich. 355, 100 N.W.2d 456 (1960). The Tenth Circuit has likewise stated that it is 'in complete agreement with the prevailing federal and state authority which condemns the search of persons and automobiles following routine traffic violations.' United States v. Humphrey, 409 F.2d 1055, 1058 (1969). See also Amador-Gonzalez v. United States, 391 F.2d 308, 315 (CA5 1968) (Wisdom, J.).
73
Accordingly, I think it disingenuous for the Court to now pronounce that what precedents exist on the question 'tend to support the broad statement of the authority to search incident to arrest found in the successive decisions of this Court, rather than the restrictive one which was applied by the Court of Appeals in this case.'2 Ante, at 232—233. It is disquieting, to say the least, to see the Court at once admit that '(v)irtually all of the statements of this Court affirming the existence of an unqualified authority to search incident to a lawful arrest are dicta' and concede that we are presented with an open question on which 'further examination into history and practice' would be helpful, yet then conduct an examination into prior practice which is not only wholly superficial, but totally inaccurate and misleading.
74
The majority's attempt to avoid case-by-case adjudication of Fourth Amendment issues is not only misguided as a matter of principle, but is also doomed to fail as a matter of practical application. As the majority itself is well aware, see ante, at 221 n. 1, the powers granted the police in this case are strong ones, subject to potential abuse. Although, in this particular case, Officer Jenks was required by police department regulations to make an in- custoday arrest rather than to issue a citation, in most jurisdictions and for most traffic offenses the determination of whether to issue a citation or effect a full arrest is discretionary with the officer. There is always the possibility that a police officer, lacking probable cause to obtain a search warrant, will use a traffic arrest as a pretext to conduct a search. See, e.g., Amador-Gonzalez v. United States, supra. I suggest this possibility not to impugn the integrity of our police, but merely to point out that case-by-case adjudication will always be necessary to determine whether a full arrest was effected for purely legitimate reasons or, rather, as a pretext for searching the arrestee.
75
'An arrest may not be used as a pretext to search for evidence.' United States v. Lefkowitz, 285 U.S. 452, 467, 52 S.Ct. 420, 424, 76 L.Ed. 877 (1932). See also Jones v. United States, 357 U.S. at 500, 78 S.Ct. at 1257; Abel v. United States, 362 U.S. 217, 226 and 230, 80 S.Ct. 683, 690 and 692, 4 L.Ed.2d 668 (1960); United States v. Rabinowitz, 339 U.S. 56, 82, 70 S.Ct. 430, 442, 94 L.Ed. 653 (1950) (Frankfurter, J., dissenting). Cf. Chimel v. California, 395 U.S., at 767—768, 89 S.Ct., at 2042—2043.
III
76
The majority states that '(a) police officer's determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search.'3 Ante, at 235. No precedent is cited for this broad assertion—not surprisingly, since there is none. Indeed, we only recently rejected such 'a rigid all-or-nothing model of justification and regulation under the Amendment, (for) it obscures the utility of limitations upon the scope, as well as the initiation, of police action as a means of constitutional regulation. This Court has held in the past that a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope.' Terry v. Ohio, 392 U.S., at 17—18, 88 S.Ct., at 1878. As we there concluded, 'in determining whether the seizure and search were 'unreasonable' our inquiry is a dual one—whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.' Id., at 19—20, 88 S.Ct., at 1879.
77
As I view the matter, the search in this case divides into three distinct phases: the patdown of respondent's coat pocket; the removal of the unknown object from the pocket; and the opening of the crumpled-up cigarette package.
A.
78
No question is raised here concerning the lawfulness of the patdown of respondent's coat pocket. The Court of Appeals unanimously affirmed the right of a police officer to conduct a limited frisk for weapons when making an incustody arrest, regardless of the nature of the crime for which the arrest was made. As it said:
79
'(I)t would seem clearly unreasonable to expect a police officer to place a suspect in his squad car for transportation to the stationhouse without first taking reasonable measures to insure that the suspect is unarmed. We therefore conclude that whenever a police officer, acting within the bounds of his authority, makes an incustody arrest, he may also conduct a limited frisk of the suspect's outer clothing in order to remove any weapons the suspect may have in his possession.' 153 U.S.App.D.C. 114, 130, 471 F.2d 1082, 1098 (1972) (footnote omitted; emphasis in original).
B
80
With respect to the removal of the unknown object from the coat pocket, the first issue presented is whether that aspect of the search can be sustained as part of the limited frisk for weapons. The weapons search approved by the Court of Appeals was modeled upon the narrowly drawn protective search for weapons authorized in Terry, which consists 'of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault.' See Sibron v. New York, 392 U.S., at 65, 88 S.Ct., at 1904. See also Terry, supra, 392 U.S., at 30, 88 S.Ct., at 1884.
81
It appears to have been conceded by the Government below that the removal of the object from respondent's coat pocket exceeded the scope of a Terry frisk for weapons, since, under Terry, an officer may not remove an object from the suspect's pockets unless he has reason to believe it to be a dangerous weapon. 153 U.S.App.D.C., at 121, and n. 9, 471 F.2d, at 1089 and n. 9, citing ALI Model Code of Pre-Arraignment Procedure § 110.2(4) (Proposed Official Draft No. 1, 1972). Cf. Sibron v. New York, supra, 392 U.S., at 65, 88 S.Ct., at 1904.4
82
In the present case, however, Officer Jenks had no reason to believe and did not in fact believe that the object in respondent's coat pocket was a weapon. He admitted later that the object did not feel like a gun. See n. 1, supra. In fact, he did not really have any thoughts one way or another about what was in the pocket. As Jenks himself testified, 'I just searched him. I didn't think about what I was looking for. I just searched him.' Since the removal of the object from the pocket cannot be justified as part of a limited Terry weapons frisk, the question arises whether it is reasonable for a police officer, when effecting an in-custody arrest of a traffic offender, to make a fuller search of the person than is permitted pursuant to Terry.
83
The underlying rationale of a search incident to arrest of a traffic offender initially suggests as reasonable a search whose scope is similar to the protective weapons frisk permitted in Terry. A search incident to arrest, as the majority indicates, has two basic functions: the removal of weapons the arrestee might use to resist arrest or effect an escape, and the seizure of evidence or fruits of the crime for which the arrest is made, so as to prevent their concealment or destruction. See ante, at 234; Chimel v. California, 395 U.S., at 763, 89 S.Ct., at 2040.
84
The Government does not now contend that the search of respondent's pocket can be justified by any need to find and seize evidence in order to prevent its concealment or destruction, for, as the Court of Appeals found, there is no evidence or fruits of the offense with which respondent was charged. The only rationale for a search in this case, then, is the removal of weapons which the arrestee might use to harm the officer and attempt an escape. This rationale, of course, is identical to the rationale of the search permitted in Terry. As we said there, 'The sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.' Terry v. Ohio, supra, 392 U.S., at 29, 88 S.Ct., at 1884. Since the underlying rationale of a Terry search and the search of a traffic violator are identical, the Court of Appeals held that the scope of the searches must be the same. And in view of its conclusion that the removal of the object from respondent's coat pocket exceeded the scope of a lawful Terry frisk, a conclusion not disputed by the Government or challenged by the majority here, the plurality of the Court of Appeals held that the removal of the package exceeded the scope of a lawful search incident to arrest of a traffic violator.
85
The problem with this approach, however, is that it ignores several significant differences between the context in which a search incident to arrest for a traffic violation is made, and the situation presented in Terry. Some of these differences would appear to suggest permitting a more thorough search in this case than was permitted in Terry; other differences suggest a narrower, more limited right to search than was there recognized.
86
The most obvious difference between the two contexts relates to whether the officer has cause to believe that the individual he is dealing with possesses weapons which might be used against him. Terry did not permit an officer to conduct a weapons frisk of anyone he lawfully stopped on the street, but rather, only where 'he has reason to believe that he is dealing with an armed and dangerous individual. . . .' 392 U.S., at 27, 88 S.Ct. at 1883. While the policeman who arrests a suspected rapist or robber may well have reason to believe he is dealing with an armed and dangerous person, certainly this does not hold true with equal force with respect to a person arrested for a motor vehicle violation of the sort involved in this case.
87
Nor was there any particular reason in this case to believe that respondent was dangerous. He had not attempted to evade arrest, but had quickly complied with the police both in bringing his car to a stop after being signaled to do so and in producing the documents Officer Jenks requested. In fact, Jenks admitted that he searched respondent face to face rather than in spread-eagle fashion because he had no reason to believe respondent would be violent.
88
While this difference between the situation presented in Terry and the context presented in this case would tend to suggest a lesser authority to search here than was permitted in Terry, other distinctions between the two cases suggest just the opposite. As the Court of Appeals noted, a crucial feature distinguishing the in-custody arrest from the Terry context "is not the greater likelihood that a person taken into custody is armed, but rather the increased likelihood of danger to the officer if in fact the person is armed." 153 U.S.App.D.C., at 130, 471 F.2d, at 1098, quoting People v. Superior Court of Los Angeles County, 7 Cal.3d, at 214, 101 Cal.Rptr., at 857, 496 P.2d, at 1225 (Wright, C.J., concurring) (emphasis in original). A Terry stop involves a momentary encounter between officer and suspect, while an in-custory arrest places the two in close proximity for a much longer period of time. If the individual happens to have a weapon on his person, he will certainly have much more opportunity to use it against the officer in the in-custody situation. The prolonged proximity also makes it more likely that the individual will be able to extricate any small hidden weapon which might go undetected in a weapons frisk, such as a safety pin or razor blade. In addition, a suspect taken into custody may feel more threatened by the serious restraint on his liberty than a person who is simply stopped by an officer for questioning, and may therefore be more likely to resort to force.
89
Thus, in some senses there is less need for a weapons search in the in-custody traffic arrest situation than in a Terry context; while in other ways, there is a greater need. Balancing these competing considerations in order to determine what is a reasonable warrantless search in the traffic arrest context is a difficult process, one for which there may be no easy analytical guideposts. We are dealing with factors not easily quantified and, therefore, not easily weighed one against the other. And the competing interests we are protecting—the individual's interest in remaining free from unnecessarily intrusive invasions of privacy and society's interest that police officers not take unnecessary risks in the performance of their duties—are each deserving of our most serious attention and do not themselves tip the balance in any particular direction.
90
As will be explained more fully below, I do not think it necessary to solve this balancing equation in this particular case. It is important to note, however, in view of the reasoning adopted by the majority, that available empirical evidence supports the result reached by the plurality of the Court of Appeals, rather than the result reached by the Court today.
91
The majority relies on statistics indicating that a significant percentage of murders of police officers occurs when the officers are making traffic stops. But these statistics only confirm what we recognized in Terry—that 'American criminals hae a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded.' Terry v. Ohio, supra, 392 U.S., at 23, 88 S.Ct. at 1881. As the very next sentence in Terry recognized, however, '(v)irtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives.' Id., at 24, 88 S.Ct. at 1881. The statistics relied on by the Government in this case support this observation. Virtually all of the killings are caused by guns and knives, the very type of weapons which will not go undetected in a properly conducted weapons frisk.5 It requires more than citation to these statistics, then, to support the proposition that it is reasonable for police officers to conduct more than a Terry-type frisk for weapons when seeking to disarm a traffic offender who is taken into custody.
C
92
The majority opinion fails to recognize that the search conducted by Officer Jenks did not merely involve a search of respondent's person. It also included a separate search of effects found on his person. And even were we to assume, arguendo, that it was reasonable for Jenks to remove the object he felt in respondent's pocket, clearly there was no justification consistent with the Fourth Amendment which would authorize his opening the package and looking inside.
93
To begin with, after Jenks had the cigarette package in his hands, there is no indication that he had reason to believe or did in fact believe that the package contained a weapon. More importantly, even if the crumpled-up cigarette package had in fact contained some sort of small weapon, it would have been impossible for respondent to have used it once the package was in the officer's hands. Opening the package, therefore, did not further the protective purpose of the search. Even the dissenting opinion in the Court of Appeals conceded that 'since the package was now in the officer's possession, any risk of the prisoner's use of a weapon in this package had been eliminated.'6 153 U.S.App.D.C., at 150, 471 F.2d, at 1118 (Wilkey, J., dissenting).
94
It is suggested, however, that since the custodial arrest itself represents a significant intrusion into the privacy of the person, any additional intrusion by way of opening or examining effects found on the person is not worthy of constitutional protection. But such an approach was expressly rejected by the Court in Chimel. There it was suggested that since the police had lawfully entered petitioner's house to effect an arrest, the additional invasion of privacy stemming from an accompanying search of the entire house was inconsequential. The Court answered: '(W)e can see no reason why, simply because some interference with an individual's privacy and freedom of movement has lawfully taken place, further intrusions should automatically be allowed despite the absence of a warrant that the Fourth Amendment would otherwise require.' 395 U.S., at 766—767, n. 12, 89 S.Ct. at 2042.
95
The Fourth Amendment preserves the right of 'the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . ..' Chimel established the principle that the lawful right of the police to interfere with the security of the person did not, standing alone, automatically confer the right to interfere with the security and privacy of his house. Hence, the mere fact of an arrest should be no justification, in and of itself, for invading the privacy of the individual's personal effects.
96
The Government argues that it is difficult to see what constitutionally protected 'expectation of privacy' a prisoner has in the interior of a cigarette pack. One wonders if the result in this case would have been the same were respondent a businessman who was lawfully taken into custody for driving without a license and whose wallet was taken from him by the police. Would it be reasonable for the police officer, because of the possibility that a razor blade was hidden somewhere in the wallet, to open it, remove all the contents, and examine each item carefully? Or suppose a lawyer lawfully arrested for a traffic offense is found to have a sealed envelope on his person. Would it be permissible for the arresting officer to tear open the envelope in order to make sure that it did not contain a clandestine weapon—perhaps a pin or a razor blade? Cf. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); Chimel v. California, supra, 395 U.S., at 758, 89 S.Ct. at 2037. Would it not be more consonant with the purpose of the Fourth Amendment and the legitimate needs of the police to require the officer, if he has any question whatsoever about what the wallet or letter contains, to hold on to it until the arrestee is brought to the precinct station?7
97
I, for one, cannot characterize any of these instrusions into the privacy of an individual's papers and effects as being negligible incidents to the more serious intrusion into the individual's privacy stemming from the arrest itself. Nor can any principled distinction be drawn between the hypothetical searches I have posed and the search of the cigarette package in this case. The only reasoned distinction is between warrantless searches which serve legitimate protective and evidentiary functions and those that do not. See Chimel, supra, at 766, 89 S.Ct. at 2041.
98
The search conducted by Officer Jenks in this case went far beyond what was reasonably necessary to protect him from harm or to ensure that respondent would not effect an escape from custody. In my view, it therefore fell outside the scope of a properly drawn 'search incident to arrest' exception to the Fourth Amendment's warrant requirement. I would affirm the judgment of the Court of Appeals holding that the fruits of the search should have been suppressed at respondent's trial.
1
The Court of Appeals noted that there was a difference in the presentation of the facts in the various proceedings that were conducted in the District Court. Counsel for respondent on appeal stressed that respondent had a record of two prior narcotics convictions, and suggested that Officer Jenks may have been aware of that record through his investigation of criminal records, while Jenks was checking out the discrepancies in the birthdates on the operator's permit and on the Selective Service card that had been given to him for examination when he had confronted the respondent on the previous occasion. Respondent argued below that Jenks may have used the subsequent traffic violation arrest as a mere pretext for a narcotics search which would not have been allowed by a neutral magistrate had Jenks sought a warrant. The Court of Appeals found that Jenks had denied he had any such motive, and for the purposes of its opinion accepted the Government's version of that factual question, since even accepting that version it still found the search involved to be unconstitutional. 153 U.S.App.D.C. 114, 120 n. 3, 471 F.2d 1082, 1088 n. 3. We think it is sufficient for purposes of our decision that respondent was lawfully arrested for an offense, and that Jenks' placing him in custody following that arrest was not a departure from established police department practice. See n. 2, infra. We leave for another day questions which would arise on facts different from these.
2
The Government introduced testimony at the evidentiary hearing upon the original remand by the Court of Appeals as to certain standard operating procedures of the Metropolitan Police Department. Sergeant Dennis C. Donaldson, a Metropolitan Police Department Training Division instructor, testified that when a police officer makes 'a full custody arrest,' which he defined at one where an officer 'would arrest a subject and subsequently transport him to a police facility for booking,' the officer is trained to make a full 'field type search':
'Q. Would you describe the physical acts the officer is instructed to perform with respect to this filed search in a full custody arrest situation?
'A. (Sgt. Donaldson). Basically, it is a thorough search of the
individual. We would expect in a field search that the officer completely search the individual and inspect areas such as behind the collar, underneath the dollar, the waistband of the trousers, the cuffs, the socks and shoes. Those are the areas we would ask a complete thorough search of.
'Q. What are the instructions in a field type search situation when an officer feels something on the outside of the garment?
'A. If it is a full custody arrest and he is conducting a field search, we expect him to remove anything and examine it to determine exactly what it is.
'THE COURT: That is a fully custody arrest. What is the last part of it?
'THE WITNESS: In conducting a field search, which is done any time there is a full custody arrest, we expect the officer to examine anything he might find on the subject.
'THE COURT: Would he do the same thing in a pat-down search?
'THE WITNESS: If he could determine in his pat-down or frisk by squeezing that it was not, in fact, a weapon that could be used against him, then we don't instruct him to go further.
'THE COURT: But in a field search, even though he may feel something that he believes is not a weapon, is he instructed to take it out?
'THE WITNESS: Yes, sir.'
Sergeant Donaldson testified that officers are instructed to examine the 'contents of all of the pockets' of the arrestee in the course of the field search. It was stated that these standard operating procedures were initiated by the police department '(p)rimarily, for (the officer's) own safety and, secondly, for the safety of the individual he has placed under arrest and, thirdly, to search for evidence of the crime.' While the officer is instructed to make a full field search of the person of the individual he arrests, he is instructed, and police department regulations provide, that in the case of a fullcustody arrest for driving after revocation, 'areas beyond (the arrestee's) immediate control should not be searched because there is no probable cause to believe that the vehicle contains fruits, instrumentalities, contraband or evidence of the offense of driving after revocation.' Those regulations also provide that in the case
of some traffic offenses, including the crime of operating a motor vehicle after revocation of an operator's permit, the officer shall make a summary arrest of the violator and take the violator, in custody, to the station house for booking. D.C. Metropolitan Police Department General Order No. 3, series 1959 (Apr. 24, 1959).
Such operating procedures are not, of course, determinative of the constitutional issues presented by this case.
3
See T. Taylor, Two Studies in Constitutional Interpretation 44—45 (1969).
Taylor suggests that there 'is little reason to doubt that search of an arrestee's person and premises is as old as the institution of arrest itself.' Id., at 28. 'Neither in the reported cases nor the legal literature is there any indication that search of the person of an arrestee, or the premises in which he was taken, was ever challenged in England until the end of the nineteenth century . . . (and) the English courts gave the point short shrift.' Id., at 29.
4
Where the arrest is made for a crime for which it is reasonable to believe that evidence exists, the Court of Appeals recognizes that 'warrantless intrusion into the pockets of the arrestee to discover such evidence is reasonable under the 'search incident' exception.' 153 U.S.App.D.C., at 127, 471 F.2d, at 1095. The court then states that the officer may use this 'reasonable (evidentiary) intrusion' to simultaneously look for weapons. Ibid.
5
Such an assumption appears at least questionable in light of the available statistical data concerning assaults on police officers who are in the course of making arrests. The danger to the police officer flows from the fact of the arrest, and its attendant proximity, stress, and uncertainty, and not from the grounds for arrest. One study concludes that approximately 30% of the shootings of police officers occur when an officer stops a person in an automobile. Bristow, Police Officer Shootings—A Tactical Evaluation, 54 J.Crim.L.C. & P.S. 93 (1963), cited in Adams v. Williams, 407 U.S. 143, 148, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972). The Government in its brief notes that the Uniform Crime Reports, prepared by the Federal Bureau of Investigation, indicate that a significant percentage of murders of police officers occurs when the officers are making traffic stops. Brief for the United States 23. Those reports indicate that during January—March 1973, 35 police officers were murdered; 11 of those officers were killed while engaged in making traffic stops. Ibid.
6
The opinion of the Court of Appeals also discussed its understanding of the law where the police officer makes what the court characterized as 'a routine traffic stop,' i.e., where the officer would simply issue a notice of violation and allow the offender to proceed. Since in this case the officer did make a full-custody arrest of the violator, we do not reach the question discussed by the Court of Appeals.
7
The United States concedes that 'in searching respondent, (Officer Jenks) was not motivated by a feeling of imminent danger and was not specifically looking for weapons.' Brief for the United States 34. Officer Jenks testified, 'I just searched him (Robinson). I didn't think about what I was looking for. I just searched him.' As previously noted, Officer Jenks also testified that upon removing the cigarette package from the respondent's custody, he was still unsure what was in the package, but that he knew it was not cigarettes.
*
This opinion also applies to No. 71-1669, Gustafson v. Florida, post, p. 260.
1
The Court of Appeals for the Ninth Circuit aptly stated this rationale in Charles v. United States, 278 F.2d 386, 388-389 (1960);
"Power over the body of the accused is the essence of his arrest; the two cannot be separated. To say that the police may curtail the liberty of the accused but refrain from impinging upon the sanctity of his pockets except for enumerated reasons is to ignore the custodial duties which devolve upon arresting authorities. Custody must of necessity be asserted initially over whatever the arrested party has in his possession at the time of apprehension. Once the body of the accused is validly subjected to the physical dominion of the law, inspections of his person, regardless of purpose, cannot be deemed unlawful, unless they violate the dictates of reason either because of their number or their manner of perpetration." (Citation omitted.)
2
In Gustafson, post, p. 260, the petitioner conceded the validity of the custodial arrest, although that conclusion was not as self-evident as in Robinson. Gustafson would have presented a different question if the petitioner could have proved that he was taken into custody only to afford a pretext for a search actually undertaken for collateral objectives. But no such question is before us.
1
At the suppression hearing, Officer Jenks was shown a small derringer and was asked, after the gun was placed in a cost pocket, 'whether or not it feels like the lump you felt in Mr. Robinson's pocket the night you arrested him?' Jenks answered that the object 'does not feel the same' but rather felt 'harder,' 'larger,' and '(m)uch more suspicious.'
2
Even the Court's attempt to dip into the English common law is selective. The power to conduct a search incident to arrest was litigated in Leigh v. Cole, 6 Cox C.C. 329 (Oxford Circuit 1853), a civil case in which the plaintiff, a lawyer, was stopped while on the road and arrested by defendant superintendent of police. After the plaintiff was taken to the station house, a police constable searched him, at the defendant's direction, and a tobacco box and a piece of paper were taken from him. In instructing the jury, the learned judge stated: 'With respect to searching a prisoner, there is no doubt that a man when in custody may so conduct himself, by reason of violence of language or conduct, that a police officer may reasonably think it prudent and right to search him, in order to ascertain whether he has any weapon with which he might do mischief to the person or commit a breach of the peace; but at the same time it is quite wrong to suppose that a general rule can be applied to such a case. Even when a man is confined for being drunk and disorderly, it is not correct to say that he must submit to the degradation of being searched, as the searching of such a person must depend upon all the circumstances of the case.' Id., at 332.
3
The majority's reference to the quick ad hoc judgment of the police officer may be read as an expression of doubt whether this kind of on-the-street policy activity can effectively be controlled by court-imposed standards. This problem was discussed in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), where we recognized 'the limitations of the judicial function in controlling the myriad daily situations in which policemen and citizens confront each other on the street.' Id., at 12, 88 S.Ct., at 1875. But as we concluded there, even though '(n)o judicial opinion can comprehend the protean variety of the street encounter, . . . courts still retain their traditional responsibility to guard against police conduct . . . which trenches upon personal security without the objective evidentiary justification which the Constitution requires. When such conduct is identified, it must be condemned by the judiciary and its fruits must be excluded from evidence in criminal trials.' Id., at 15, 88 S.Ct., at 1876.
4
This was also the position of the Police Department itself. Sergeant Donaldson, a Police Department Training Division instructor, testified: 'If (the officer) could determine in his pat-down or frisk by squeezing that it was not, in fact, a weapon that could be used against him, then we don't instruct him to go further.'
5
The Uniform Crime Reports prepared by the Federal Bureau of Investigation which are relied on by the majority, see ante, at 234 n. 5, indicate that 112 police officers were killed nationwide in 1972. Of these, 108 were killed by firearms. Two of the remaining four were killed with knives, and the last two cases involved a bomb and an automobile.
6
The dissent argued, however, that 'further inspection of the package was still justifiable as a protective measure. If the package had contained a razor blade, or live bullets, the officer would have been alerted to search Robinson much more thoroughly since the possibility of there being other weapons concealed on his person would increase.' 153 U.S.App.D.C., at 150, 471 F.2d, at 1118 (emphasis in original). But as Chief Judge Bazelon indicated in his opinion below, this kind of reasoning would render meaningless scope limitations on searches. Were one to accept this logic, for example, it would have been reasonable for the police to search the entire house in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), for if a weapon had been found somewhere in the house, the arresting officer would have been alerted to search Chimel himself more thoroughly, as the possibility of there being other weapons concealed on his person would arguably have increased.
7
Nor would it necessarily have been reasonable for the police to have opened the cigarette package at the police station. The Government argued below, as an alternative theory to justify the search in this case, that when a suspect is booked and is about to be placed in station house detention, it is reasonable to search his person to prevent the introduction of weapons or contraband into the jail facility and to inventory the personal effects found on the suspect. Since respondent's cigarette package would have been removed and opened at the station house anyway, the argument goes, the search might just as well take place in the field at the time of the arrest. This argument fails for two reasons. First, as the Court of Appeals had indicated in its opinion in United States v. Mills, 153 U.S.App.D.C. 156, 472 F.2d 1231 (1972) (en banc), the justification for station house searches is not the booking process itself, but rather the fact that the suspect will be placed in jail. In the District of Columbia, petty offenses of the sort involved in the present case are bailable, and, as the Government stipulated in Mills, the normal procedure is for offenders to be advised of the opportunity to post collateral at the station house and to avoid an inventory search unless they are unable or refuse to do so. Id., at 160—161, 472 F.2d, at 1235—1236. One cannot justify a full search in the field on a subsequent event that quite possibly may never take place.
Second, even had it become necessary to place respondent in confinement, it is still doubtful whether one could justify opening up the cigarette package and examining its contents. The purposes of preventing the introduction of weapons or contraband into the jail facility are fully served simply by removing the package from the prisoner. It is argued that the police must inventory effects found on the prisoner in order to avoid a later claim by the prisoner that jail personnel stole his property. But as the Court of Appeals noted in Mills, the police can protect themselves against such claims by means involving a less extreme intrusion on privacy than would be entailed in opening up and examining the contents of all effects found on the person. As an example, the Court of Appeals suggested that the prisoner be given 'an opportunity, like that accorded someone given a bathhouse locker for temporary use, to 'check' his belongings in a sealed envelope, perhaps upon executing a waiver releasing the officer of any responsibility.' Id., at 164 n. 11, 472 F.2d, at 1239 n. 11.
The Government also suggested in oral argument before this Court that it would be administratively inconvenient to require a police officer, after removing an object from an arrestee, to told on to the object rather tha to look inside and determine what it contained. Mere administrative inconvenience, however, cannot justify invasion of Fourth Amendment rights. Chimel v. California, supra, 395 U.S., at 768, 89 S.Ct., at 2043. One can no doubt imagine cases where the inconvenience might be so substantial as to interfere with the task of transporting the suspect into custody. While these situations might necessitate a different rule, certainly in this case there would have been no inconvenience whatsoever. Officer Jenks could easily have placed the cigarette package in his own pocket or handed it to his partner to hold onto until they reached the precinct station.
| 01
|
414 U.S. 313
94 S.Ct. 517
38 L.Ed.2d 526
BONELLI CATTLE COMPANY et al., Petitioners,v.State of ARIZONA et al.
No. 72—397.
Argued Oct. 15, 1973.
Decided Dec. 17, 1973.
Syllabus.
Certain land abutting the east bank of the Colorado River was conveyed in 1910 by federal patent to a railroad company. Upon admission to the Union in 1912 Arizona succeeded the Federal Government to title to the bed of the Colorado River. The river's gradual eastward movement submerged the subject land by erosion so that title was mechanically transferred to the State as part of the reverbed. In 1955 petitioner cattle company acquired title to the original railroad grant, most of which by that time was covered by water. In 1959 the subject land was abandoned by the Colorado as a result of a federal rechanneling project. Petitioner cattle company filed this action to quiet title and prevailed in the lower courts, but the Arizona Supreme Court reversed, holding that under the equal-footing doctrine and the Submerged Lands Act, Arizona held title to the beds of all navigable waters within its borders and thus to the subject land as a result of the river's gradual eastward movement. Held:
1. Ownership of the subject land is governed by federal law. The issue here is not what rights the State has accorded private owners in lands that the State holds as sovereign but how far the State's sovereign right extends under the equal-footing doctrine and the federal Submerged Lands Act, i.e., whether the State retains title to lands formerly beneath the Colorado or whether title thereto is defeasible by withdrawal of those waters. Pp. 317 321.
2. The equal-footing doctrine does not support the State's claim, since when the water receded from the disputed land, there was no longer a public purpose to be served by the State, as sovereign holding title thereto. Pp. 321—324.
3. Nor does the Submerged Lands Act, which did not abrogate the federal law of accretion, support the State's claim, since that Act does not extend to the States any interest in the beds of navigable rivers beyond those afforded by the equal-footing doctrine. Pp. 324—325.
4. Title to the subject land, under the applicable federal common law, is vested in petitioner as riparian landowner and not in the State as owner of the riverbed. Pp. 325—332.
(a) Analysis of the interests of the State and petitioner, in light of the rationales for the federal common-law doctrines of accretion and avulsion, compels the conclusion that, as between the State, as owner of the riverbed, and petitioner, as riparian owner, the surfacing of the subject land should be treated as an accretion; hence title to the disputed land should be vested in petitioner. Pp. 325—330.
(b) The doctrine of avulsion (whereby ab avulsive change caused by a stream suddenly and perceptively abandoning its old channel does not affect title and the boundary established by the former river stream remains at that line, even if the result is to cut off a landowner's riparian rights) dows not apply here because of the limited interests of the State in the subject property. Pp. 328—329.
107 Aria. 465, 489 P.2d 699, and 108 Ariz. 258, 495 P.2d 1312, reversed and remanded.
Elmer C. Coker, Phoenix, Ariz., for petitioners.
Dale R. Shumway, Phoenix, Ariz., for respondents.
Opinion of the Court by MR. JUSTICE MARSHALL, announced by MR. JUSTICE BRENNAN.
1
The question for decision is whether title to land abandoned by the stream of the Colorado River as a result of a federal rechanneling project vests in the State of Arizona, as owner of the beds under navigable streams within its borders, or in petitioner cattle company, as the owner of land riparian to the river at the time of the rechanneling.
2
The circumstances that give rise to this case are as follows. In 1910, the subject land was conveyed by federal patent, as part of a larger parcel, to the Sante Fe Pacific Railroad Co. A survey conducted in 1905 and 1906, and approved by the Surveyor General of the United States in 1906, indicates that as of the date of the patent, the Santa Fe parcel abutted the east bank of the Colorado River.1 Upon admission to the Union in 1912, Arizona succeeded the Federal Government to title to the bed of the Colorado River. The exact location of the river in 1912 in relation to the subject property is unclear from the record, but it is generally agreed that between 1903 and 1959 (when it was rechanneled) the river moved gradually eastward, eroding its east bank and depositing alluvion on its west bank, resulting in the submergence by erosion of the subject land. As the river crept eastward, the boundary between upland owners and the state-owned riverbed moved mechanically with it, transferring title to the lands which became part of the riverbed to the State. The operation of Hoover Dam, begun in 1938, reduced the flow of water in the Colorado River and substantially decreased its annual flood stage high-water mark. Nonetheless, by 1955, when the Bonelli Cattle Co. acquired title to the subject portion of the original Sante Fe grant, all but 60 acres in the southeast corner of its parcel was covered by water. In 1959, a Federal Bureau of Reclamation Project deepened and rechanneled the Colorado River in the area of the subject land, thereby confining the stream of the river to a substantially reduced portion of the Bonelli property.2
3
In 1962, the Bonelli Cattle Co. filed the instant action to quiet title to the land from which the river had withdrawn as a result of the federal rechanneling project. The state trial court granted judgment for Bonelli and against the State of Arizona. The Arizona Court of Appeals, the State's intermediate appellate court, affirmed, upholding Bonelli's contention that if the changes in the river were accretive, the surfaced land belonged to Bonelli, as a riparian owner, and if the change were avulsive, the land nonetheless belonged to Bonelli under the doctrine of reemergence.3
4
The Arizona Supreme Court reversed,4 holding that under the equal-footing doctrine and the Submerged Lands Act, Arizona holds title to the beds of all navigable waters within its borders and thus to the subject land as a result of the gradual eastward movement of the river. The Arizona Supreme Court found that, because the federal rechannelization project was an 'engineering relocation of the waters of the river by artificial means,' it was, under state law, an avulsive change, which did not divest the State of its title to the exposed land which had formerly been part of the riverbed. The court denied a rehearing and, in a supplemental opinion, clarified the extent of the dry land owned by the State.5 It held that the high-water mark of the river, to which the State's ownership extends, was fixed by the natural state of the river as it existed in 1938, before the operation of Hoover Dam.6 We granted certiorari, 410 U.S. 908, 93 S.Ct. 957, 35 L.Ed.2d 269 (1973). We hold that the ownership of the subject land is governed by federal law, and that the land surfaced by the narrowing of the river channel belongs, not to the State as owner of the riverbed, but to Bonelli as riparian owner. We need not, therefore, reach the question of whether the Arizona Supreme Court properly determined the average high-water mark of the river.
5
* The first issue we must decide is whether state or federal law governs this controversy. The State of Arizona claims title to the subject land by virtue of the equal-footing doctrine7 and the Submerged Lands Act,8 the basic principles of which are as follows. When the Original Colonies ratified the Constitution, they succeeded to the Crown's title and interest in the beds of navigable waters within their respective borders. As new States were forged out of the federal territories after the formation of the Union, they were 'admitted (with) the same rights, sovereignty and jurisdiction . . . as the original States possess within their respective borders.' Mumford v. Wardwell, 6 Wall. 423, 436, 18 L.Ed. 756 (1867). Accordingly, title to lands beneath navigable waters passed from the Federal Government to the new States, upon their admission to the Union, under the equal-footing doctrine. See, e.g., Pollard's Lessee v. Hagan, 3 How. 212, 11 L.Ed. 565 (1845); Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331 (1894); Weber v. Board of Harbor Comm'rs, 18 Wall. 57, 65—66, 21 L.Ed. 798 (1873).
6
In order for the States to guarantee full public enjoyment of their navigable watercourses,9 it has been hald that their title to the bed of a navigable river mechanically follows the river's gradual changes in course. See Oklahoma v. Texas, 268 U.S. 252, 45 S.Ct. 497, 69 L.Ed. 937 (1925). Thus, where portions of a riparian owner's land are encroached upon by a navigable stream, under federal law, the State succeeds to title in the bed of the river to its new high-water mark.
7
The Submerged Lands Act of 1953 did not disturb these doctrines or their inherent limitations. The Act merely confirmed the States' pre-existing rights in the beds of the navigable waterways within their boundaries by, in effect, quitclaiming all federal claims thereto. And, consonant with the abovedescribed common-law doctrine concerning title to the bed of a river that has shifted course, the Submerged Lands Act quitclaims all federal rights to title to lands beneath the navigable streams, as 'hereafter modified by accretion, erosion, and reliction.' 43 U.S.C. § 1301(a)(1).
8
The State of Arizona asserts title to the subject land on the basis of the following application of these principles. When Arizona achieved statehood in 1912, it assumed title to the land beneath the stream of the Colorado River, by virtue of the equal-footing doctrine.10 It subsequently acquired title to the subject land when it was submerged by the river's eastward movement. The State asserts that once having acquired title, it was not divested of its proprietary interest in the land by the subsequent withdrawal of the water due to the rechanneling of the river.
9
Having concluded that title to the subject land was thus vested in the State as a matter of settled federal law, the state courts determined that local law controlled whether petitioner, as a riparian owner, had any interest in the land thereafter. As the Court said in Arkansas v. Tennessee, 246 U.S. 158, 176, 38 S.Ct. 301, 305, 62 L.Ed. 638 (1918): '(I)t is for the States to establish for themselves such rules of property as they deem expedient with respect to the navigable waters within their borders and the riparian lands adjacent to them. . . .'
10
We continue to adhere to the principle that it is left to the States to determine the rights of riparian owners in the beds of navigable streams which, under federal law, belong to the State. But this doctrine does not require that state law govern the instant controversy. The issue before us is not what rights the State has accorded private owners in lands which the State holds as sovereign; but, rather, how far the State's sovereign right extends under the equal-footing doctrine and the Submerged Lands Act—whether the State retains title to the lands formerly beneath the stream of the Colorado River or whether that title is defeasible by the withdrawal of those waters. As this Court observed in Borax, Ltd. v. Los Angeles, 296 U.S. 10, 22, 56 S.Ct. 23, 29, 80 L.Ed. 9 (1935): 'The question as to the extent of this federal grant, that is, as to the limit of the land conveyed, . . . is necessarily a federal question. . . . (I)t involves the ascertainment of the essential basis of a right asserted under federal law.'
11
Arkansas v. Tennessee, supra, and the cases cited therein are not to the contrary. In Arkansas v. Tennessee, for example, we held that federal law governed the question of how far into the river channel a State held title. Only then did this Court turn to state law to determine whether riparian owners had been accorded any rights in that land. But even the State's disposition of its submerged land vis-a-vis private owners was to be 'in each case limited by the terstate boundary,' a matter determined by federal law. 246 U.S., at 176, 38 S.Ct., at 306. Similarly, in Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331 (1894), the Court held that under settled federal law, the tidelands there at issue belonged to the State in its sovereign capacity; hence whether the State had accorded riparian owners any interests in the tidelands properly remained a matter of local law; 'if (the States) choose to resign to the riparian proprietor rights which properly belong to them in their sovereign capacity, it is not for others to raise objections.' Id., at 43, 14 S.Ct., at 564. In Barney v. Keokuk, 94 U.S. 324, 338, 24 L.Ed. 224 (1877), the Court left it to the States to decide whether to accord title to the land beneath nontidal navigable waters to reparian owners after recognizing that under federal law such lands belong to the States. See also Scott v. Lattig, 227 U.S. 229, 242, 33 S.Ct. 242, 243, 57 L.Ed. 490 (1913).
12
The present case, however, does not involve a question of the disposition of lands, the title to which is vested in the State as a matter of settled federal law. The very question to be decided is the nature and extent of the title to the bed of a navigable stream held by the State under the equal-footing doctrine and the Submerged Lands Act. In this case, the question of title as between the State and a private landowner necessarily depends on a construction of a 'right asserted under federal law.'11
II
13
We cannot accept the State's argument that the equal-footing doctrine supports its claim to the disputed land. Historically, title to the beds beneath navigable waters is held by the sovereign, Barney v. Keokuk, supra, 94 U.S., 338, 24 L.Ed. 224, as a public trust for the protection of navigation and related purposes.
14
'(T)itle to the . . . lands under water . . . enures to the State within which they are situated . . .. Such title . . . (is) held in trust for the public purposes of navigation and fishery.' Hardin v. Jordan, 140 U.S. 371, 381, 11 S.Ct. 808, 811, 35 L.Ed. 428 (1891).
15
See United States v. Kansas City Life Ins. Co., 339 U.S. 799, 808, 70 S.Ct. 885, 890, 94 L.Ed. 1277 (1950). As this Court observed in an earlier federal water law case:
16
'Such waters . . . are incapable of ordinary and private occupation, cultivation and improvement; and their natural and primary uses are public in their nature, for highways of navigation and commerce, domestic and foreign, and for the purpose of fishing . . ..' Shively v. Bowlby, supra, 152 U.S., at 11, 14 S.Ct., at 551.
17
The State's title is to the '(river)bed as a bed,'12 and the State of Arizona will continue to hold title to the bed beneath the Colorado River to its present highwater mark. But the exposed land involved here is no longer, as described in Shively, 'incapable of ordinary and private occupation . . . (whose) primary uses are public in their nature, for highways of navigation . . .'13 The equal-footing doctrine was never intended to provide a State with a windfall of thousands of acres of dry land exposed when the main thread of a navigable stream is changed.14 It would be at odds with the fundamental purpose of the original grant to the States to afford a State title to land from which a navigable stream had receded unless the land was exposed as part of a navigational or related public project of which it was a necessary and integral part or unless, of course, the artificial accretion was somehow caused by the upland owner himself. There has been no showing that the rechannelization project was undertaken to give the State title to the subject lands for the protection of navigation or related public goals.15 Indeed, the State of Arizona did not participate in the rechannelization of the Colorado River, although it had implicitly assented to the project.16
18
The advance of the Colorado's waters divested the title of the upland owners in favor of the State in order to guarantee full public enjoyment of the watercourse. But, when the water receded from the land, there was no longer a public benefit to be protected; consequently, the State, as sovereign, has no need for title. That the cause of the recession was artificial, or that the rate was perceptible, should be of no effect.
19
Nor does the Submerged Lands Act provide a basis for the State's claim to the subject lands. The Arizona Supreme Court incorrectly construed this Act as a grant by Congress to the States of lands 'formerly . . . beneath navigable waters.'17 The Act did not abrogate the federal law of accretion, but defined lands beneath navigable waters as being those covered by streams as 'hereafter modified by accretion, erosion, and reliction.'18 Contrary to the implication raised by the Arizona Supreme Court, the Act creates no new rights for the States in the beds of their inland waterways. The Act is not a grant of title to land but only a quitclaim of federal proprietary rights in the beds of navigable waterways.19 The Act specifically excepts from its scope lands lawfully conveyed or patented by the United States.20 Since the Act does not extend to the States any interest beyond those afforded by the equalfooting doctrine, the State can no more base its claim to lands unnecessary to a navigational purpose on the Submerged Lands Act than on that doctrine.
III
20
The question remains as to who owns the subject land under the applicable federal common law. It is, of course, clear that the State of Arizona did hold title to the subject property before the waters of the river receded. Both the State and the Solicitor General of the United States as Amicus curiae, urge that the federal common-law doctrine of avulsion is applicable and thus that the State remains holder of title in the former riverbed. Bonelli, the only private claimant, argues that the narrowing of the river course should properly be characterized as an artificial accretion, hence that the disputed land, which had originally been lost from the Bonelli parcel to the river by erosion, should once again belong to it as the riparian owner.
21
Federal law recognizes the doctrine of accretion whereby the 'grantee of land bounded by a body of navigable water acquires a right to any . . . natural and gradual accretion formed along the shore.' Hughes v. Washington, 389 U.S. 290, 293, 88 S.Ct. 438, 440, 19 L.Ed.2d 530 (1967); accord, Jones v. Johnston, 18 How. 150, 156, 15 L.Ed. 320 (1856). When there is a gradual and imperceptible accumulation of land on a navigable riverbank, by way of alluvion or reliction, the riparian owner is the beneficiary of title to the surfaced land:
22
'It is the established rule that a riparian proprietor of land bounded by a stream, the banks of which are changed by the gradual and imperceptible process of accretion or erosion, continues to hold to the stream as his boundary; if his land is increased he is not accountable for the gain, and if it is diminished he has no reocurse for the loss.' Philadelphia Co. v. Stimson, 223 U.S. 605, 624, 32 S.Ct. 340, 346, 56 L.Ed. 570 (1912).
23
There are a number of interrelated reasons for the application of the doctrine of accretion. First, where lands are bounded by water, it may well be regarded as the expectancy of the riparian owners that they should continue to be so bounded.21 Second, the quality of being riparian, especially to navigable water, may be the land's 'most valuable feature' and is part and parcel of the ownership of the land itself. Hughes v. Washington, supra, 389 U.S., at 293, 88 S.Ct., at 440; Yates v. Milwaukee, 10 Wall. 497, 504, 19 L.Ed. 984 (1871). Riparianness also encompasses the vested right to future alluvion, which is an 'essential attribute of the original property.' County of St. Clair v. Lovingston, 23 Wall. 46, 68, 23 L.Ed. 59 (1874). By requiring that the upland owner suffer the burden of erosion and by giving him the benefit of accretions, riparianness is maintained. Finally, there is a compensation theory at work. Riparian land is at the mercy of the wanderings of the river. Since a riparian owner is subject to losing land by erosion beyond his control, he should benefit from any addition to his lands by the accretions thereto which are equally beyond his control. Ibid. The effect of the doctrine of accretion is to give the riparian owner a '"fee, determinable upon the occupancy of his soil by the river,' and (to afford) the State (a title) to the river bed (which is) likewise a . . . 'qualified' fee 'determinable in favor of the riparians upon the abandonment of the bed by the river.'"22
24
The doctrine of accretion applies to changes in the river course due to artificial as well as natural causes. County of St. Clair v. Lovingston, supra, 23 Wall., at 64—69, 23 L.Ed. 59; United States v. Claridge, 416 F.2d 933 (C.A.9, 1969), cert. denied, 397 U.S. 961, 90 S.Ct. 994, 25 L.Ed.2d 253 (1970) (changes in the Colorado River's course, caused by the construction of Hoover Dam, are accretive). Where accretions to riparian land are caused by conditions created by strangers to the land, the upland owner remains the beneficiary thereof.23
25
But the federal law is otherwise where 'a stream suddenly and perceptibly abandons its old channel.' Philadelphia Co. v. Stimson, 223 U.S., at 624—625, 32 S.Ct., at 346. Such an avulsive change does not affect title and the boundary established by the former river stream remains at that line, even if the result is to cut off a landowner's riparian rights. St. Louis v. Rutz, 138 U.S. 226, 245, 11 S.Ct. 337, 344, 34 L.Ed. 941 (1891). The rationale for the doctrine of avulsion is a need to mitigate the hardship that a shift in title caused by a sudden movement of the river would cause the abutting landowners were the accretion principle to be applied. As this Court, quoting from 8 Op.Atty.Gen. 175, observed in Nebraska v. Iowa, 143 U.S. 359, 362, 12 S.Ct. 396, 397, 36 L.Ed. 186 (1892):
26
"(When in) deserting its original bed, the river forces for itself a new channel in another direction, then the nation, through whose territory the river thus breaks its way suffers injury by the loss of territory greater than the benefit of retaining the natural river boundary, and that boundary remains in the middle of the deserted river bed." The Arizona Supreme Court held that because the rechanneling of the Colorado River was an 'engineering relocation of the waters of the river by artificial means,' it was, under state law, an avulsion and did not divest the State of title to the land from which the river had withdrawn. But federal law must be applied with a view toward the limited nature of the sovereign's rights in the riverbed, and an analysis of the interests of the State and Bonelli, in light of the rationales for the federal common-law doctrines of accretion and avulsion, compels the conclusion that, as between the State, as owner of the riverbed, and Bonelli, as a riparian owner, the surfacing of the subject land should be treated as accretion; hence title to the disputed land should be vested in Bonelli.
27
The rationale for the application of the doctrine of avulsion is not applicable to this dispute because of the limited interests of the State in the subject property. The Federal Government, which holds a paramount navigable servitude in the river,24 determined that it was too wide and shallow to permit navigation in the area of the subject land, and that the river therefore needed to be deepened and rechanneled. The resulting changes in the river's thread actually enhanced the State's interest in the navigability of the river. The State's acquisition of the exposed land here could only be a windfall, since unnecessary to the State's purpose in holding title to the beds of the navigable streams within its borders.25 Accordingly, the narrowing of the river and vesting of title to the surfaced land in riparian owners does not detract from the State's legitimate interest in title to the riverbed,26 so as to require mitigation of the accretion principle by application of the doctrine of avulsion.
28
The policies behind the doctrine of accretion are, however, fully applicable. That doctrine guarantees the riparian character of land by automatically granting to a riparian owner title to lands which form between his holdings and the river and thus threaten to destroy that valuable feature of his property. The riparian owner is at the mercy, not only of the natural forces which create such intervening lands, but also, because of the navigational servitude, of governmental forces which may similarly affect the riparian quality of his estate. Accordingly, where land cast up in the Federal Government's exercise of the servitude is not related to furthering the navigational or related public interests, the accretion doctrine should provide a disposition of the land as between the riparian owner and the State. See Michaelson v. Silver Beach Impr. Assn., 342 Mass. 251, 173 N.E.2d 273 (1961).
29
Similarly, riparian lands may suffer noncompensable losses or be deprived of their riparian character altogether by the State or Federal Government in the exercise of the navigational servitude. In compensation for such losses, land surfaced in the course of such governmental activity should inure to the riparian owner where not necessary to the navigational project or its purposes. In the case before us, all of the subject land, which composed a substantial portion of Bonelli's parcel, was lost to the State by erosion to serve the public interest in the navigability of the river. Now that the land has resurfaced in the process of rechannelization, it should return to the estate of the riparian owner.27
30
'No other rule can be applied on just principles. Every proprietor whose land is thus bounded (by a navigable stream), is subject to loss, by the same means which may add to his territory: and as he is without remedy for his loss, in this way, he cannot be held accountable for his gain.' New Orleans v. United States, 10 Pet. 662, 717, 9 L.Ed. 573 (1836).
31
Finally, recognition of the State's claim to the subject land would raise a serious constitutional issue as to whether the State's assertion of title is a taking without compensation, a question which we find unnecessary to decide on our view of the case. As Mr. Justice Stewart warned in Hughes v. Washington, 389 U.S., at 298, 88 S.Ct., at 443 (concurring opinion):
32
'Although the State in this case made no attempt to take the accreted lands by eminent domain, it achieved the same result by effecting a retroactive transformation of private into public property—without paying for the privilege of doing so . . . (T)he Due Process Clause of the Fourteenth Amendment forbids such confiscation by a State, no less through its courts than through its legislature, and no less when a taking is unintended than when it is deliberate . . ..'
33
In the exercise of its navigational servitude, the State or Federal Government may decrease the value of riparian property without compensation because the property is held subject to the exercise of that servitude. The government may, without paying compensation, deprive a riparian owner of his common-law right to use flowing water, St. Anthonys Falls Water Power Co. v. St. Paul Water Comm'rs, 168 U.S. 349, 18 S.Ct. 157, 42 L.Ed. 497 (1897), or to build a wharf over the water, Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331 (1894). We have held that the State may deprive the owner of the riparian character of his property in the exercise of its navigational servitude. United States v. Rands, 389 U.S. 121, 88 S.Ct. 265, 19 L.Ed.2d 329 (1967). But there is no claim here by the State that depriving Bonelli of the subject land is necessary to any navigational or related purpose. Cf. United States v. River Rouge Impr. Co., 269 U.S. 411, 419, 46 S.Ct. 144, 147, 70 L.Ed. 339 (1926); Colberg, Inc. v. State, 67 Cal.2d 408, 62 Cal.Rptr. 401, 432 P.2d 3 (1967), cert. denied, 390 U.S. 949, 88 S.Ct. 1037, 19 L.Ed.2d 1139 (1968). Moreover, what is involved in this case is not just the diminution or elimination of riparian rights, but the State's attempt to completely divest all of Bonelli's title and interest in the subject land. See Yates v. Milwaukee, 10 Wall., at 504.
IV
34
We hold that title to the subject land, which was exposed by the federal rechannelization of the Colorado River, is vested in petitioner Bonelli Cattle Co. The judgment of the Supreme Court of Arizona is reversed and the case remanded for further proceedings not inconsistent with this opinion.
35
Reversed and remanded.
36
MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case.
37
MR. JUSTICE STEWART (dissenting).
38
The Court in this case holds that federal common law governs the resolution of conflicting claims to the exposed bed of a navigable river between Arizona as the owner of the riverbed and a riparian landowner.1 I think this ruling emasculates the equal-footing doctrine, under which this Court has long held 'that the new States since admitted have the same rights, sovereignty and jurisdiction . . . as the original States possess within their respective borders.' Mumford v. Wardwell, 6 Wall, 423, 436, 18 L.Ed. 756 (1867).
39
After the Revolution, the 13 Original States succeeded both to the Crown's title to the beds underlying navigable rivers and to its sovereignty over that property. Ibid. '(T)he shores of navigable waters and the soils under the same in the original States were not granted by the Constitution to the United States, but were reserved to the several States.' Ibid. If the equal-footing doctrine means what it says, then the States that were later admitted to the Union must hold the same title and must exercise the same sovereignty. Weber v. Board of Harbor Comm'rs, 18 Wall. 57, 65—66, 21 L.Ed. 798 (1873); Shively v. Bowlby, 152 U.S. 1, 16, 14 S.Ct. 548, 553, 38 L.Ed. 331 (1894); Pollard's Lessee v. Hagan, 3 How. 212, 223, 11 L.Ed. 565 (1845). Just as with other real property within a State's boundaries, an element of sovereignty over the property constituting the riverbed is the power of the State's courts to determine and apply state property rules in the resolution of conflicting claims to that property. Today, however, the Court holds that federal common law supersedes the common-law property rules applied by Arizona pursuant to its sovereign authority over the property in question.
40
This Court has repeatedly recognized a State's power, as a function of its sovereignty over the lands within its borders, to apply state common-law property rules such as those applied by the Supreme Court of Arizona in this case:
41
'Th(e) right of the states to regulate and control the shores of tide waters, and the land under them, is the same as that which is exercised by the crown in England. In this country the same rule has been extended to our great navigable lakes . . .; and also . . . to navigable rivers . . .; but it depends on the law of each State to what waters and to what extent this prerogative of the state over the lands under water shall be exercised.' Hardin v. Jordan, 140 U.S. 371, 382, 11 S.Ct. 808, 812, 35 L.Ed. 428 (1891).
42
With respect to an avulsion exposing large portions of riverbed and leading to conflicting claims to the ownership of the exposed land, virtually the twin of this case, the Court has said:
43
'How the land that emerges . . . shall be disposed of as between public and private ownership is a matter to be determined according to the law of each State, under the familiar doctrine that it is for the States to establish for themselves such rules of property as they deem expedient with respect to the navigable waters within their borders and the riparian lands adjacent to them. . . . Thus, (the State) may limit riparian ownership by the ordinary high-water mark . . . (or) may, in the case of an avulsion followed by a drying up of the old channel of the river, recognize the right of former riparian owners to be restored to that which they have lost through gradual erosions in times preceding the avulsion . . ..' Arkansas v. Tennessee, 246 U.S. 158, 175—176, 38 S.Ct. 301, 305, 62 L.Ed. 638 (1918).
Along the same vein, the Court has said:
44
'It is generally conceded that the riparian title attaches to subsequent accretions to the land effected by the gradual and imperceptible operation means from the bed of the river, or to sudden accretions produced by unusual floods, is a question which each State decides for itself. . . . The confusion of navigable with tide water, found in the monuments of the common law, long prevailed in this country . . . (I)t laid the foundation in many States of doctrines with regard to the ownership of the soil in navigable waters above tide-water at variance with sound principles of public policy. Whether, as rules of property, it would now be safe to change these doctrines where they have been applied . . . is for the several States themselves to determine. . . . (The decision) properly belongs to the States by their inherent sovereignty . . .' Barney v. Keokuk, 94 U.S. 324, 337—338, 24 L.Ed. 224 (1877).
45
To put the matter bluntly, the Court's application of the equal-footing doctrine in this case seems to me wholly wrong. While conceding that the later admitted States have "the same rights, sovereignty and jurisdiction . . . as the original States possess within their respective borders," ante, at 318, the Court holds that 'the nature and extent of the title to the bed of a navigable stream held by the State under the equal-footing doctrine' involves a "right asserted under federal law" that must be determined under the rules of federal common law. The effect of the Court's analysis is completely to undercut the equal-footing doctrine. As noted above, the original States derived their sovereign rights and powers directly from the Crown after the Revolution and retained whatever powers they did not later surrender or limit in the Federal Constitution. Even under the Court's 'title' analysis, therefore, federal common law would not govern the conflicting claims involved here if the river were located in Massachusetts or Virginia, rather than in Arizona.
46
The upshot of the Court's decision is that the 13 Original States are free to develop and apply their own rules of property law for the resolution of conflicting claims to an exposed bed of a river, while those States admitted after the Constitution's ratification must under today's decision knuckle under to this Court's supervisory view of 'federal common law.' A later-admitted State like Arizona is thus not at all on an equal footing with the original States in the exercise of sovereignty over real property within its boundaries. And the vehicle used by the Court to arrive at this unjust result is, incredibly, the very doctrine that was intended to insure to the new States equal footing with the original States. Thus, the Court's strange application of the equalfooting doctrine brings that constitutional principle into fundamental conflict with the purpose it was intended to serve.
47
If the equal-footing doctrine means anything, it means that Arizona cannot be treated as a second-class State. It means that, upon admission to the Union, it received title to, and sovereignty over, the beds of navigable rivers within its boundaries, to the same extent as the original States after the Revolution. As a function of that sovereignty, Arizona courts have the power to develop and apply state common law in determining legal questions that arise with respect to this property, including conflicting claims to the bed that is later exposed by the vagaries of the river. And the power of the Arizona courts to decide this controversy under state law surely includes the power to decide it in a way that we here might think is wholly wrong.2
1
The federal patent to the Santa Fe Pacific Railroad conveyed a parcel of land in township 19 North of Range 22 West, described as follows:
'The lots one, two, three, four, five and six, the south half of the northeast quarter, the south half of the northwest quarter, the northeast quarter of the southwest quarter, and the southeast quarter of section three, containing five hundred eighty-nine and forty hundredths acres.'
The map of the area, approved by the Surveyor General, indicates that, as of 1906, lots 5 and 6 of the Santa Fe parcel abutted the Colorado River. Petitioner Bonelli Cattle Co. was deeded a parcel of land constituting roughly the eastern half of the original Santa Fe grant. The Bonelli deed described the subject property as the 'E(ast) 1/2 (of) Section 3, excepting Lot 2 thereof.'
2
The rechannelization also surfaced a small usable pocket of land on the west bank of the Colorado River which was part of the Bonelli parcel. This land is not in Arizona by virtue of the Boundary Compact between Arizona and Nevada, approved by Congress, Pub.L. 87—50, 75 Stat. 93, and hence is not involved in the present controversy.
3
11 Ariz.App. 412, 464 P.2d 999 (1970).
4
107 Ariz. 465, 489 P.2d 699 (1971).
5
108 Ariz. 258, 495 P.2d 1312 (1972).
6
Before the operation of Hoover Dam, the river's annual spring floods covered substantially more of the adjacent land than at any time thereafter. It is to the high-water mark of the river at this annual flood stage that the State of Arizona claims title.
7
See Joint Res. No. 8, To Admit the Territories of New Mexico and Arizona as States into the Union of an equal footing with the original States, 37 Stat. 39.
8
67 Stat. 29, 43 U.S.C. § 1301 et seq.
9
See discussion, infra, at 321—324.
10
The Colorado River has been determined to be a navigable waterway, Arizona v. California, 283 U.S. 423, 51 S.Ct. 522, 75 L.Ed. 1154 (1931), and, once found to be navigable, it remains so. United States v. Appalachian Electric Power Co., 311 U.S. 377, 408, 61 S.Ct. 291, 299, 85 L.Ed. 243 (1940).
11
Petitioner Bonelli and the Solicitor General of the United States, as amicus curiae, assert that this case should be governed by federal law for a different reason. In Hughes v. Washington, 389 U.S. 290, 88 S.Ct. 438, 19 L.Ed.2d 530 (1967), this Court held that where an upland property owner traced its title to a prestatehood federal patent, the owner's right to accretions is a question of federal law. Id., at 292, 88 S.Ct., at 440. We are here again concerned with the right to accretions conveyed by a pre-statehood federal patent, but it is unclear whether, at the time of Santa Fe Pacific's patent, the portion of the land which ultimately became Bonelli's parcel was actually riparian. Bonelli argues that its remote grantor, the Santa Fe Pacific Railroad, was given a patent by the United States which afforded it the right to riparian accretions as governed by federal law, and that it was expected that the river might wander within the parcel of land making parts thereof riparian which were not so at the time of the patent. Petitioner argues that its predecessor was therefore entitled to pass onto his successors all the rights he had in the property—including his riparian rights. We need not, however, decide whether Hughes compels the application of federal law to the controversy before us, because the State's claim in this case is premised on a construction of the federal equal-footing doctrine and the congressionally enacted Submerged Lands Act.
12
State v. Gill, 259 Ala. 177, 183, 66 So.2d 141, 145 (1953). For a perceptive discussion of the historical antecedents for the sovereign's rights in the beds of navigable waterways and of the State's modern interests in those lands, see Lundquist, Artificial Additions to Riparian Land: Extending the Doctrine of Accretion, 14 Ariz.L.Rev. 315 (1972).
13
152 U.S., at 11, 14 S.Ct., at 551.
14
The Supreme Court of Arizona relied on this Court's decisions in Goodtitle v. Kibbe, 9 How. 471, 13 L.Ed. 220 (1850), and Pollard's Lessee v. Hagan, 3 How. 212, 11 L.Ed. 565 (1845), for the proposition that a federal rechanneling project could not diminish the extent of the State's landholdings. Those decisions involved post-statehood federal patents of land covered by navigable waters at the time of statehood. This Court held only that since title to lands beneath navigable waters was vested in Alabama at statehood, the Federal Government did not thereafter own the subject lands, hence its attempted conveyance was void. The Court did not intimate that the operation of federal law could not diminish the State's title to lands formerly beneath navigable waters.
15
For a discussion of the navigational-purpose limitation on the State's interest in the lands beneath its waterways, see United States v. River Rouge Impr. Co., 269 U.S. 411, 419, 46 S.Ct. 144, 147, 70 L.Ed. 339 (1926); Colberg, Inc. v. State, 67 Cal.2d 408, 416, 62 Cal.Rptr. 401, 406—407, 432 P.2d 3, 8—9 (1967), cert. denied, 390 U.S. 949, 88 S.Ct. 1037, 19 L.Ed.2d 1139 (1968); Michaelson v. Silver Beach Impr. Assn., 342 Mass. 251, 173 N.E.2d 273 (1961). The extent of the State's interests should not be narrowly construed because it is denominated a navigational purpose. See Zabel v. Tabb, 430 F.2d 199 (C.A.5, 1970), cert. denied, 401 U.S. 910, 91 S.Ct. 873, 27 L.Ed.2d 808 (1971) (recognizing conservation as a proper interest). Since the State asserts no public need for ownership of the subject land we do not attempt to define the exact parameters of the permissible public purposes.
16
In contrast, this Court's decision in Marine R & Coal Co. v. United States, 257 U.S. 47, 42 S.Ct. 32, 66 L.Ed. 124 (1921), involved a determination of federal rights in land created when the Federal Government itself filled in tidelands belonging to it under a series of interstate compacts.
17
108 Ariz., at 259, 495 P.2d, at 1313 (emphasis added).
18
43 U.S.C. § 1301(a)(1).
19
The legislative history of the Act indicates that it was intended to be merely confirmatory of the State's existing rights in the beds of their navigable waterways. S.Rep.No.133, 83d Cong., 1st Sess., pt. 1, pp. 6—8 (1953); People v. Hecker, 179 Cal.App.2d 823, 4 Cal.Rptr. 334 (1960). See generally 1953 U.S.Code Cong. & Admin.News, pp. 1395—1640. Congress was concerned about this Court's decision in United States v. California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947), which held that the Federal Government had a 'paramount interest' in the marginal sea-lands 'outside of inland waters, but within territorial limits'—and that the States had no title in those lands. See H.R.Rep.No.1778, 80th Cong., 2d Sess., 5 (1948). That concern is irrelevant to the case before us, which involves an inland waterway.
20
43 U.S.C. § 1301(f).
21
E.g., Nebraska v. Iowa, 143 U.S. 359, 365—366, 12 S.Ct. 396, 398, 36 L.Ed. 186 (1892); Hardin v. Jordan, 140 U.S. 371, 11 S.Ct. 838, 35 L.Ed. 428 (1891); Anderson-Tully Co. v. Tingle, 166 F.2d 224, 227—228 (CA5), cert. denied, 335 U.S. 816, 69 S.Ct. 36, 93 L.Ed. 371 (1948).
22
107 Ariz., at 472, 489 P.2d, at 706 (Lockwood, J., dissenting), quoting, State v. R. E. Janes Gravel Co., 175 S.W.2d 739, 741 (Tex.Civ.App.1943), rev'd on other grounds sub nom. Maufrais v. State, 142 Tex. 559, 180 S.W.2d 144 (1944).
23
See sources collected at Burns v. Forbes, 412 F.2d 995, 997 n. 2 (C.A3, 1969); cf. Beaver v. United States, 350 F.2d 4, 11 (C.A.9, 1965), cert. denied, 383 U.S. 937, 86 S.Ct. 1067, 15 L.Ed.2d 854 (1966); Esso Standard Oil Co. v. Jones, 233 La. 915, 98 So.2d 236, aff'd on rehearing, 233 La. 940, 98 So.2d 244 (1957).
24
See, e.g., Philadelphia Co. v. Stimson, 223 U.S. 605, 633 635, 32 S.Ct. 340, 350, 56 L.Ed. 570 (1912).
25
See discussion, supra, at 321—324.
26
The State may well have an interest in the river as an interstate boundary justifying application of avulsion principles to determining the location of that boundary; '(t)he emergence of . . . land . . . ought not in reason to have any controlling effect upon the location of the boundary line . . ..' Arkansas v. Tennessee, 246 U.S. 158, 175, 38 S.Ct. 301, 305, 62 L.Ed. 638 (1918). But, since the land claimed by the State and petitioner is already limited by the interstate boundary, however determined, there is no such interest to compel application of avulsion principles to the disposition of title to the subject property.
27
Under the doctrine of re-emergence, when identifiable riparian land, once lost by erosion, subsequently re-emerges as a result of perceptible change in the river course, title to the surfaced land revests in its former owner. See Arkansas v. Tennessee, 246 U.S., at 174—175, 38 S.Ct., at 305; Beaver v. United States, 350 F.2d, at 11. The re-emergence doctrine has been accepted by a number of States, Herron v. Choctaw & Chickasaw Nations, 228 F.2d 830 (C.A.10, 1956) (applying Oklahoma law); State v. Gill, 259 Ala. 177, 66 So.2d 141 (1953); Esso Standard Oil Co. v. Jones, 233 La. 915, 98 So.2d 236, aff'd on rehearing, 233 La. 940, 98 So.2d 244 (1957); Mulry v. Norton, 100 N.Y. 424, 3 N.E. 581 (1885). Because of the limited interest of the State in the former riverbed, we have held the doctrine of avulsion inapplicable to this suit between the State and a private riparian owner, who is seeking title to surfaced land identifiable as part of his original parcel. In that sense, we have embraced the re-emergence concept.
But we need not here determine whether, in a suit between private landowners (or in which the State claims title in some capacity other than as owner of the riverbed), the differing interests of the parties might require a holding that the rechannelization should be treated as an avulsion. Nor need we determine whether, in a suit between a riparian owner and a former owner of surfaced land, the former should take the property as an accretion or the latter as a re-emergence. It is only the State's claim to title under the equal-footing doctrine which required the invocation of federal law to resolve the instant dispute.
1
The Court emphasizes the fact that it is the State that holds the title to the riverbed property. The nature of the title held by the State, however, is such that it could be conveyed to a private owner. ('(T)he settled law of this country (is) that the ownership of, and dominion and sovereignty over, lands covered by tide waters, or navigable (rivers), within the limits of the several states, belong to the respective states within which they are found, with the consequent right to use or dispose of any portion thereof . . ..' Shively v. Bowlby, 152 U.S. 1, 47, 14 S.Ct. 548, 565, 38 L.Ed. 331 (1894); Illinois Central R. Co. v. Illinois, 146 U.S. 387, 435, 13 S.Ct. 110, 111, 36 L.Ed. 1018 (1892); United States v. Holt Bank, 270 U.S. 49, 54—55, 46 S.Ct. 197, 198—199, 70 L.Ed. 465 (1926).) Since the State could hardly convey more title than it held, it would appear from the Court's opinion that federal law would also govern the resolution of conflicting claims to the exposed riverbed as between a private owner of the bed and a private riparian owner.
2
The Court implies, but does not hold, that the decision of the Arizona Supreme Court might constitute a taking of the petitioner cattle company's property without compensation, in violation of due process of law. My conviction that this infirmity was present in the decision of the Washington Supreme Court was the reason for my special concurrence in Hughes v. Washington, 389 U.S. 290, 294—298, 88 S.Ct. 438, 441—443, 19 L.Ed.2d 530 (1967). Hughes was a case in which a state court effected a retroactive change in state property law that resulted in an unconstitutional taking of property without compensation. That, however, is not the situation here. The Arizona Supreme Court simply applied its established property rules with regard to the effects of avulsion, accretion, erosion, and reliction in resolving conflicting claims to the exposed riverbed. It declined the petitioners' invitation to adopt the 'enlightened' re-emergence doctrine as part of the law of Arizona. This case, therefore, does not involve a retroactive alteration of state law such as would constitute an unconstitutional taking of private property.
| 910
|
414 U.S. 270
94 S.Ct. 495
38 L.Ed.2d 495
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.SAVAIR MANUFACTURING COMPANY.
No. 72—1231.
Argued Nov. 12, 1973.
Decided Dec. 17, 1973.
Syllabus
A labor union's offer to waive initiation fees for all employees who sign union authorization cards before a certification election under the National Labor Relations Act interferes with the employees' right to refrain from union activities guaranteed by § 7 of the Act; does not comport with the principle of 'fair and free choice of bargaining representatives by employees' that is inherent in § 9(c)(1)(A), NLRB v. A.J. Tower Co., 329 U.S. 324, 67 S.Ct. 324, 91 L.Ed. 322 and is ground for denying enforcement of an order against the employer to bargain with the union after it wins the election. Pp. 270—281.
6 Cir., 470 F.2d 305, affirmed.
Norton J. Come, Washington, D.C., for petitioner.
Robert J. Solner, Birmingham, Mich., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
The National Labor Relations Board, acting pursuant to § 9(c) of the National Labor Relations Act, as amended, 61 Stat. 144,1 29 U.S.C. § 159(c), conducted an election by secret ballot among the production and maintenance employees of respondent at the request of the Mechanics Educational Society of America (hereafter Union). Under the Act2 the Union, if it wins the election, becomes 'the exclusive representative of all the employees' in that particular unit for purposes of collective bargaining. The Union won the election by a vote of 22—20.
2
Respondent filed objections to the election, but after an evidentiary hearing a hearing officer found against respondent and the Board certified the Union as the representative of the employees in that unit. Respondent, however, refused to bargain. The Union thereupon filed an unfair labor practice charge with the General Counsel, who issued a complaint alleging that respondent had violated §§ 8(a)(1) and (5) of the Act.3 The Board sustained the allegations and ordered respondent to bargain with the Union. 194 N.L.R.B. 298. The Court of Appeals denied enforcement of the order. 470 F.2d 305. We granted the petition for certiorari, 411 U.S. 964, 93 S.Ct. 2147, 36 L.Ed.2d 683, there apparently being a conflict between this decision in the Sixth Circuit and a decision in the Eighth Circuit. NLRB v. DIT-MCO, Inc., 428 F.2d 775, and also with one in the Ninth Circuit, NLRB v. G.K. Turner Associates, 457 F.2d 484. We affirm.
3
It appeared that prior to the election, 'recognition slips' were circulated among employees. An employee who signed the slip before the election4 became a member of the Union and would not have to pay what at times was called an 'initiation fee' and at times a 'fine.' If the Union was voted in, those who had not signed a recognition slip would have to pay.
4
The actual solicitation of signatures on the 'recognition slips' was not done by Union officials. Union officials, however, explained to employees at meetings that those who signed the slips would not be required to pay an initiation fee, while those who did not would have to pay. Those officials also picked out some five employees to do the soliciting and authorized them to explain the Union's initiation-fee policy. Those solicited were told that there would be no initiation fee charged those who signed the slip before the election. Under the bylaws of the Union, an initiation fee apparently was not to be higher than $10; but the employees who testified at the hearing (1) did not know how large the fee would be and (2) said that their understanding was that the fee was a 'fine' or an 'assessment.' One employee, Donald Bridgeman, testified that he signed the slip to avoid paying the 'fine' if the Union won. He got the message directly from an employee picked by the Union to solicit signatures on the 'slips.' So did Thomas Rice, another employee.
5
The Board originally took the position that pre-election solicitation of memberships by a union with a promise to waive the initiation fee of the union was not consistent with a fair and free choice of bargaining representatives. Lobue Bros., 109 N.L.R.B. 1182. Later in DIT-MCO, Inc., 163 N.L.R.B. 1019, the Board explained its changed position as follows:
6
'We shall assume, arguendo, that employees who sign cards when offered a waiver of initiation fees do so solely because no cost is thus involved; that they in fact do not at that point really want the union to be their bargaining representative. The error of the Lobue premise can be readily seen upon a review of the consequences of such employees casting votes for or against union representation. Initially, it is obvious that employees who have received or been promised free memberships will not be required to pay an initiation fee, whatever the outcome of the vote. If the union wins the election, there is by postulate no obligation; and if the union loses, there is still no obligation, because compulsion to pay an initiation fee arises under the Act only when a union becomes the employees' representative and negotiates a valid union-security agreement. Thus, whatever kindly feeling toward the union may be generated by the cost-reduction offer, when consideration is given only to the question of initiation fees, it is completely illogical to characterize as improper inducement or coercion to vote 'Yes' a waiver of something that can be avoided simply by voting 'No.'
7
'The illogic of Lobue does not become any more logical when other consequences of a vote for representation are considered. Thus, employees know that if a majority vote for the union, it will be their exclusive representative, and, provided a valid union-security provision is negotiated, they will be obliged to pay dues as a condition of employment. Thus, viewed solely as a financial matter, a 'no' vote will help to avoid any subsequent obligations, a 'yes' may well help to incur such obligations. In these circumstances, an employee who did not want the union to represent him would hardly be likely to vote for the union just because there would be no initial cost involved in obtaining membership. Since an election resulting in the union's defeat would entail not only no initial cost, but also insure that no dues would have to be paid as a condition of employment, the financial inducement, if a factor at all, would be in the direction of a vote against the union, rather than for it.' Id., at 1021—1022.
8
We are asked to respect the expertise of the Board on this issue, giving it leeway to alter or modify its policy in light of its ongoing experience with the problem. The difficulty is not in that principle but with the standards to govern the conduct of elections under § 9(c)(1)(A). We said in NLRB v. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 327, 328, 91 L.Ed. 322, that the duty of the Board was to establish 'the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees.'
9
It is, of course, true as we said in NLRB v. Wyman-Gordon Co., 394 U.S. 759, 767, 89 S.Ct. 1426, 1430, 22 L.Ed.2d 709, that 'Congress granted the Board a wide discretion to ensure the fair and free choice of bargaining representatives.' See also NLRB v. Waterman S.S. Co., 309 u.S. 206, 226, 60 S.Ct. 493, 503, 84 L.Ed. 704. But in this case two opposed groups are in contention: one composed of those who want a union and the other, of those who prefer not to have one. The Board in its DIT-MCO opinion says 'it is completely illogical to characterize as improper inducement or coercion' a waiver of initiation fees for those who vote 'yes' when the whole problem can be avoided by voting 'no.' 163 N.L.R.B., at 1021—1022. But the Board's analysis ignores the realities of the situation.
10
Whatever his true intentions, an employee who signs a recognition slip prior to an election is indicating to other workers that he supports the union. His outward manifestation of support must often serve as a useful campaign tool in the union's hands to convince other employees to vote for the union, if only because many employees respect their coworkers' views on the unionization issue. By permitting the union to offer to waive an initiation fee for those employees signing a recognition slip prior to the election, the Board allows the union to buy endorsements and paint a false portrait of employee support during its election campaign.
11
That influence may well have been felt here for, as noted,5 there were 28 who signed up with the Union before the election petition was filed with the Board and either seven or eight more who signed up before the election. We do not believe that the statutory policy of fair elections prescribed in the Tower case permits endorsements, whether for or against the union, to be bought and sold in this fashion.
12
In addition, while it is correct that the employee who signs a recognition slip is not legally bound to vote for the union and has not promised to do so in any formal sense, certainly there may be some employees who would feel obliged to carry through on their stated intention to support the union. And on the facts of this case, the change of just one vote would have resulted in a 21—21 election rather than a 22—20 election.
13
Any procedure requiring a 'fair' election must honor the right of those who oppose a union as well as those who favor it. The Act is wholly neutral when it comes to that basic choice. By § 7 of the Act employees have the right not only to 'form, join, or assist' unions but also the right 'to refrain from any or all of such activities.' 29 U.S.C. § 157. An employer who promises to increase the fringe benefits by $10 for each employee who votes against the union, if the union loses the election, would cross the forbidden line under our decisions. See NLRB v Exchange Parts Co., 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed.2d 435. The right of employees to 'form, join, or assist' labor unions guaranteed by § 7 has an express sanction in § 8(a)(1) which makes it an unfair labor practice for an employer 'to interfere with, restrain, or coerce employees' in the exercise of those rights. 29 U.S.C. §§ 157, 158(a)(1). Such interference is an unfair labor practice as we held in NLRB v. Exchange Parts Co., supra. But, as already noted, § 7 guarantees the right of employees 'to refrain from any or all of such activities.'
14
Congress has also listed in § 8(b) of the Act 'unfair' labor practices of unions. 29 U.S.C. § 158(b). There is no explicit provision which makes 'interference' by a union with the right of an employee to 'refrain' from union activities an unfair labor practice.
Section 8(c), however, provides:
15
'The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.' 29 U.S.C. § 158(c) (emphasis added).
16
Whether it would be an 'unfair' labor practice for a union to promise a special benefit to those who sign up for a union seems not to have been squarely resolved.6 The right of a free choice is, however, inherent in the principles reflected in § 9(c)(1)(A).
17
When the dissent says that '(t)he special inducement is to sign the card, not to vote for the union' and that treating the two choices as one is untenable, it overlooks cases like NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547. There we held that the gathering of authorization cards from a majority of the employees in the bargaining unit may entitle the union to represent the employees for collective-bargaining purposes, even though there has been and will be no election, id., at 582—583, 89 S.Ct., at 1923—1924 and that rejection of that authorization by the employer is an unfair labor practice. Where the solicitation of cards is represented as being solely for the purpose of obtaining an election, a contrary result is indicated. Id. 584, 606, 89 S.Ct. 1924, 1936. Thus the solicitation of authorization cards may serve one of two ends. Of course, when an election is contemplated, an employee does not become a member of the union merely by signing a card. But prior to the election if the union receives overwhelming support, the pro-union group may decide to treat the union authorization cards as authorizing it to conduct collective bargaining without an election. The latent potential of that alternative use of authorization cards cautions us to treat the solicitation of authorization cards in exchange for consideration of fringe benefits granted by the union as a separate step protected by the same kind of moral standard that governs elections themselves.
18
The Board in its supervision of union elections may not sanction procedures that cast their weight for the choice of a union and against a nonunion shop or for a nonunion shop and against a union.
19
In the Exchange Parts case we said that, although the benefits granted by the employer were permanent and unconditional, employees were 'not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged.' 375 U.S., at 409, 84 S.Ct., at 460. If we respect, as we must, the statutory right of employees to resist efforts to unionize a plant, we cannot assume that unions exercising powers are wholly benign towards their antagonists whether they be nonunion protagonists or the employer. The failure to sign a recognition slip may well seem ominous to nonunionists who fear that if they do not sign they will face a wrathful union regime, should the union win. That influence may well have had a decisive impact in this case where a change of one vote would have changed the result.
20
Affirmed.
21
Mr. Justice WHITE, with whom Mr. Justice BRENNAN and Mr. Justice BLACKMUN join, dissenting.
22
The report of the Hearing Officer, filed in response to the Company's objections to the election, reveals that prior to the filing of the representation petition, a union organizer had told employees that, if the Union won the election, they would be subject to an initiation fee or 'fine' if they did not sign an authorization card. The Union was then engaged in securing the necessary 30% showing of union support which would entitle it to hold an election under the Labor Board's rules. 29 CFR §§ 101.17, 101.18 (1973). The officer concluded that there was 'insufficient evidence . . . that a threat of a 'fine' occurred either before or after the filing date of the petition.' In any event, he also concluded that conduct occurring before the filing of an election petition was not ground for setting aside the election since '(w)hether or not a sufficient valid showing of interest was obtained, constitutes a matter for administrative determination.' Cf. Goodyear Tire & Rubber Co., 138 N.L.R.B. 453 (1962).1
23
After the representation petition was filed and the election campaign proper commenced, the Union's Secretary-Treasurer, Alfred Smith, addressed a group of about 20 employees at an organization meeting. In response to a question about the initiation fee, Smith indicated that there was 'a small fee' which would be waived for all employees who signed cards prior to the election.2 The fee was, in fact, $10. Qualification for fee waiver was obtained by signing membership cards, but the testimony indicated that no one incurred any obligation to the Union until and unless the Union became the bargaining agent and a collective contract was signed. The Hearing Officer found 'no evidence, nor any contention, that the Union misrepresented to employees that they would have to become members immediately upon the certification of the union as bargaining agent.'
24
On this record, the Board, obviously relying on its decision in DIT—MCO, Inc., 163 N.L.R.B. 1019 (1967), enforced, 428 F.2d 775 (CA8 1970), which overruled its prior decision in Lobue Bros., 109 N.L.R.B. 1182 (1954), ordered the employer to bargain with the Union. 194 N.L.R.B. 298 (1971). The Sixth Circuit denied enforcement of the order, 470 F.2d 305 (1972), and the majority now affirms that judgment.
25
Because in my view the Labor Board has 'a wide degree of discretion in establishing the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees,' NLRB v. A. J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 328, 91 L.Ed. 322 (1946), and because I am unpersuaded that the waiver of initiation fees in this case is so clearly coercive within § 7 of the National Labor Relations Act that the Board has abused its discretion in finding otherwise, I respectfully dissent.
26
* It is well established that an 'unconditional' offer to waive initiation fees, where the waiver offer is left open for some period of time after the election, is not coercive and does not constitute an unfair labor practice. The Sixth Circuit itself has so held, NLRB v. Gafner Automotive & Machine, Inc., 400 F.2d 10 (1968), and other courts of appeals have reached the same result. Amalgamated Clothing Workers v. NLRB, 345 F.2d 264 (CA2 1965); NLRB v. Crest Leather Mfg. Corp., 414 F.2d 421 (CA5 1969). The existence of the initiation fee is created by the union and represents a self-imposed barrier to entry.3 There is no evidence that the fee is normally imposed for the sole purpose of removing it during a labor campaign. A different case might be put if the union purported to remove a nonexistent fee or artifically inflated the fee so as to misrepresent the benefit tendered by its removal. See NLRB v. Gorbea, Perez & Morell, 328 F.2d 679 (CA1 1964). Similarly, it is established that the union can promise employees to obtain wage increases or other benefits if it is elected as a bargaining representative. Wilson Athletic Goods Mfg. Co. v. NLRB, 164 F.2d 637 (CA7 1947).
27
It must be obvious that these waivers of fees are a form of economic inducement, as the opinion for the Court employs that term. Undoubtedly an offer to reduce the cost of joining the union makes the union a more attractive possibility and may influence an employee to vote for the union, though one would assume, in view of the other costs and benefits at stake, that this consideration will be marginal. Similarly, if the union represents to the employees that it will attempt to secure higher wages, an employee's calculations of costs and benefits will be altered, but in that instance the union is merely stating the obvious; indeed, the promise of higher wages is the primary rationale for the existence of the union. In any event, these forms of inducement are valid.
28
In the instant case, an offer which by its terms expires with the conclusion of the election is also a form of economic inducement. But insofar as the offer might affect the calculation of costs and benefits of joining the union, its effect is the same as an offer which does not expire until some time after the election. The inability to distinguish between these two situations, at least where small fees are involved and where the sole source of concern is pure financial inducement, led the Board to conclude in DIT—MCO that 'an employee who did not want the union to represent him would hardly he likely to vote for the union just because there would be no initial cost involved in obtaining membership.' 163 N.L.R.B., at 1022.
29
The majority places heavy reliance on the supposed analogy between the waiver of fees in this case and an actual increase in benefits made by an employer during the course of an election campaign. NLRB v. Exchange Parts Co., 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964). There the employer increased vacation-pay benefits during the course of the campaign. The Court agreed with the Board that this was coercive activity on the part of the employer, and accordingly reversed the Court of Appeals, and ordered enforcement of the Board's order. It was stated that '(t)he danger inherent in welltimed increases in benefits is the suggestion of a fist inside the velvet glove.' Id., at 409, 84 S.Ct., at 460. A number of important differences exist between that case and the instant one. First, the employer actually gave his employees substantial increased benefits, whereas here the benefit is only contingent and small; the union glove is not very velvet. Secondly, in the union context, the fist is missing. When the employer increased benefits, the threat was made 'that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged.' Ibid. The Union, on the other hand, since it was not the representative of the employees, and would not be if it were unsuccessful in the election, could not make the same threat by offering a benefit which it would take away if it lost the election. A union can only make its own victory more desirable in the minds of the employees.4
II
30
If pure economic inducement in the form of lowering anticipated costs of joining the union is not to be considered coercive, one must focus on the special dangers, if any, presented by the conditional offer, an analysis not undertaken by the majority. It has been proposed that the conditional offer is specially to be proscribed because of the interjection of a new consideration into the voting choice of an employee: how probable it is that the union will win or lose the election. NLRB v. Gafner Automotive & Machine, Inc., 400 F.2d, at 13 (Phillips, J., concurring); Amalgamated Clothing Workers v. NLRB, 345 F.2d, at 268 (Friendly, J., concurring). The argument might be that an employee who estimates that the costs of joining the union exceed the benefits, even taking into account the reduced initiation fees available by signing a card, will still sign the card, as a hedge, because of his prediction that the union will win the election.5 A statement of the theory carries with it its own disproof. The special inducement is to sign the card, not to vote for the union. The majority decision collapses these two choices into one, and is thus untenable. The majority assumes, contrary to fact, that the employee has joined the Union by signing the authorization card. This is only true, however, if the Union wins the election and signs a collective contract, and the employee can still seek to prevent that outcome by casting his vote against the Union in a secret ballot. The testimony was clear that if the Union loses the election, the employee who signs the card incurs no obligation to the Union. The expressed preference in the National Labor Relations Act for secret ballot elections assumes that voters may act differently in private than in public, and ordinarily guarantees to employees the ability to make a secret choice. It is, therefore, important to highlight the fact that the Board in DIT-MCO assumed, arguendo, 'that employees who sign cards when offered a waiver of initiation fees do so solely because no cost is thus involved; that they in fact do not at that point really want the union to be their bargaining representative.' 163 N.L.R.B., at 1021.
31
There is no need to consider here, as does the majority, whether the Union could achieve recognition on the basis of authorization cards secured, in part, by an offer of fee waiver. Of course, a card majority cannot serve as a basis for a § 8(a)(5) bargaining order under NLRB v. Gissel Packing Co., 395 U.S. 575, 614—616, 89 S.Ct. 1918, 1940—1941, 23 L.Ed.2d 547 (1969), unless the employer has committed serious unfair labor practices. It may be that even given a serious unfair labor practice on the part of the employer, these cards could not serve as a basis for recognition. In this case, however, the Board's bargaining order was based on the vote of a secret ballot election, and the Court must supply the connective between the decision to sign a card and the decision to vote for the Union.6 This connective can only be supplied by some rather speculative counter-rational psychological assumptions, i.e., that a person who signs the card will vote for the union.7 The Board assumes that such is not the case, and I am not prepared to upset the Board's judgment on this matter.8 The majority opinion stresses the fact that the margin of Union victory was only two votes, and thus suggests that the 'psychological connective' may explain the outcome indicating that it 'may well have had a decisive impact' (emphasis added). But there is not evidence to this effect, and definitions of unfair practices which become a function of the outcome of an election are subject to severe problems of administration. The Board, in my judgment, is entitled to regulate elections on standard theories of coercion.
III
32
Since the case for coercion arising out of the conditional offer is speculative, and since the alteration of the calculus of costs and benefits is marginal where a small fee is involved, the issue here resolves into the proper allocation of institutional responsibility between an administrative agency and a reviewing court. The Board, upon reflection and study, has concluded that the conditional offer is not coercive within the meaning of § 7. This represented a basic change in policy but 'one of the signal attributes of the administrative process is flexibility in reconsidering and reforming of policy.' City of Chicago v. FPC, 128 U.S.App.D.C. 107, 115, 385 F.2d 629, 637 (1967). Such revisions are especially likely in the regulation of labor elections, due to the substantial problems in deciding what is likely to interfere with employee free choice. See Bok, The Regulation of Campaign Tactics in Representation Elections under the National Labor Relations Act, 78 Harv.L.Rev. 38, 44—45 (1964).
33
While the invocation of agency expertise is not talismanic, see Radio Corp. v. United States, 341 U.S. 412, 421, 71 S.Ct. 806, 810, 95 L.Ed. 1062 (1951) (Frankfurter, J., dubitante), and while the decision of the Board must be supported by substantial evidence, Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), one cannot ask the agency to do the impossible. When choosing between alternative contentions of coercion, the agency must make judgments based on available knowledge. This is a difficult task and accounts in part for the decision of Congress to entrust the Board 'with a wide degree of discretion in establishing the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees.' NLRB v. A. J. Tower Co., 329 U.S. at 330, 67 S.Ct., at 328. Recognition of this discretion has been a recurrent theme in this Court's review of Board decisions. NLRB v. Waterman S.S. Co., 309 U.S. 206, 226, 60 S.Ct. 493, 503, 84 L.Ed. 704 (1940); NLRB v. Wyman-Gordon Co., 394 U.S. 759, 767, 89 S.Ct. 1426, 1430, 22 L.Ed.2d 709 (1969). In other contexts, the Board has had to perform the 'far more delicate task . . . of weighing the interests of employees in concerted activity against the interest of the employer in operating his business in a particular manner . . ..' NLRB v. Erie Resistor Corp., 373 U.S. 221, 229, 83 S.Ct. 1139, 1145, 10 L.Ed.2d 308 (1963); American Ship Bldg. Co. v. NLRB, 380 U.S. 300, 312, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965). There is certainly a conflicting interest between the union's right to make itself attractive to employees without misrepresentation and the employee's unfettered choice to vote for or against the union. I think it is rational for the Board to conclude on the basis of the facts presented that the decision of the Union to waive small fees was not coercive within the meaning of § 7. I, therefore, respectfully dissent.
1
Section 9(c)(1)(A) provides in part:
'(c)(1) Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board
'(A) by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a substantial number of employees (i) wish to be represented for collective bargaining and that their employer declines to recognize their representative as the representative defined in (§ 9(a)) . . .
'the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice. . . . If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.' 29 U.S.C. § 159(c).
2
Section 9(a) provides:
'Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment . . ..' 29 U.S.C. § 159(a).
3
Sections 8(a)(1) and (5) provide:
'It shall be an unfair labor practice for an employer—
'(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in (§ 7);
'(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section (9(a)).' 29 U.S.C. §§ 158(a)(1) and (5).
4
The question for review presented by the Board is whether the 'Board properly concluded that a union's offer to waive initiation fees for all employees who sign union authorization cards before a Board representation election, if the union wins the election, does not tend to interfere with employee free choice in the election.' (Emphasis added.) There was testimony by Alfred Smith, National Secretary-Treasurer of the Union, that he told the employees at a meeting that the waiver of initiation fees was open to all who signed the authorization cards before the collective-bargaining contract was signed.
The Hearing Officer, however, found that 'Bridgeman further testified that subsequent to that meeting, and prior to the election, Bennie McKnight told employees that if they signed the union membership and authorization card before the
election, there would be no union 'initiation fee' if the union were successful at the election.' (Emphasis added.)
While Bridgeman's testimony about McKnight's representations after the meeting might have been only implicit, the Hearing Officer also referred to Bridgeman's testimony that Smith himself had stated at the meeting that waiver of the initiation fee would be limited to those signing up before the election. The Hearing Officer clearly proceeded on the premise that the waiver was open only to those who signed up before the election:
'The Employer further argues that it is an economic inducement contingent upon how employees vote in the election and on the results of the election, and as such, constitutes an objectionable inducement. This argument, however, has been rejected by the Board. In the DIT—MCO, Inc., 163 N.L.R.B. No. 147 case (p. 1019), the Board held that a provisional waiver of initiation fees prior to election is not improper regardless of whether it is contingent upon the results of the election. The Board pointed out that it would be unreasonable to conclude that a statement by the union during an election to the effect that an assessment of money or an obligation to pay money which could be avoided by the execution of a union membership card prior to the election, would influence a vote in favor of the Union when the simplest way to avoid the incurrence of any financial obligation would be to vote 'no.' Thus, it would appear that any threat to impose a 'fine,' 'assessment' or 'initiation fee,' or 'payment to join the union,' although it may induce an employee to execute a union authorization membership card, would more probably induce him to vote 'no' at the election.' (Emphasis added.)
The Court of Appeals read the Hearing Officer's Report to state that the waiver was limited to those signing up before the election, as do we. Such a reading is amply supported by the evidence in the record beyond the testimony to which we have already alluded. The record demonstrates the pressure which employees felt to sign up with the Union quickly, before the election and perhaps even before the representation petition itself was filed, a pressure utterly inconsistent with a belief that a waiver would be available
to them up to the time a collective-bargaining agreement was signed after the election. It is also supported by the fact that 28 individuals signed up with the Union before the election petition was filed with the Board on August 12, 1970, and apparently an additional seven or eight signed up before the September 22, 1970, election. But there is no indication of any individuals signing up with the Union after the election, which would be the obviously rational decision once the Union had won the election.
The Board argues that unions have a valid interest in waiving the initiation fee when the union has not yet been chosen as a bargaining representative, because "(e)mployees otherwise sympathetic to the union might well have been reluctant to pay out money before the union had done anything for them. Waiver of the (initiation fees) would remove this artificial obstacle to their endorsement of the union.' See Amalgamated dorsement of the union." See Amalgamated Clothing Workers v. NLRB, 345 F.2d 264, 268 (CA2 1969). While this union interest is legitimate, the Board's argument ignores the fact that this interest can be preserved as well by waiver of initiation fees available not only to those who have signed up with the union before an election but also to those who join after the election. The limitation imposed by the union in this case—to those joining before the election—is necessary only because it serves the additional purpose of affecting the Union organizational campaign and the election.
5
See n. 4, supra.
6
The lower courts have recognized that promising benefits or conferring benefits before representation elections may unduly influence the representational choices of employees where the offer is not across the board to all employees but, as here, only to those who sign up prior to the election. See, e.g., NLRB v. Gorbea, Perez & Morell, 328 F.2d 679, 681—682 and nn. 6—7 (CA1 1964) (promise to waive initiation fee for those joining union prior to election, but not after, may substantially influence election); Amalgamated Clothing Workers v. NLRB, 345 F.2d, at 268 269 (Friendly, J., concurring) (improper to waive fees for those joining union immediately while indicating that this is foreclosed to those joining later). See also Collins & Aikman Corp. v. NLRB, 383 F.2d 722, 728—729 (CA4 1967) (paying employee $7 to be observer at election is an 'unreasonable or excessive economic inducement' potentially influencing other employees and is ground to set aside election); NLRB v. Commercial Letter, Inc., 455 F.2d 109 (CA8 1972) (disproportionate payments to employees attending union 'hearings' prior to representation election).
The NLRB itself has recognized in other contexts that promising or conferring benefits may unduly influence representation elections. See, e.g., Wagner Electric Corp., 167 N.L.R.B. 532, 533 (grant of life insurance policy to those who signed with union before representation election 'subjects the donees to a constraint to vote for the donor union'); General Cable Corp., 170 N.L.R.B. 1682 ($5 gift to employees by union before election, even when not conditioned on outcome of election, was inducement to cast ballots favorable to union); Teletype Corp., 122 N.L.R.B. 1594 (payment of money by rival unions to those attending pre-election meetings).
1
The opinion for the Court places no special emphasis on the fact that the waiver of initiation fees may have been referred to as a 'fine.' Since the Hearing Officer expressly found that no such representation was made, the matter deserves no further attention.
2
Mr. Bridgeman, an employee who attended the meeting, testified that his brother asked Smith if there was a fee for joining the union. Mr. Smith's answer was '(t)here would be a small fee.' App. 28.
3
The role of the initiation fee has been described by one writer as follows: 'Initiation fees serve several sorts of union purposes. First, of course they are a source of revenue, which is occasionally expendable however during an organization drive when the union is anxious to induce workers to join the union. Second, the initiation fee represents for the older member a kind of equity payment by the new member to compensate, at least partially, for the efforts that others have put into building the union. . . .' J. Barbash, The Practice of Unionism 79 (1956).
4
The Court cannot ignore the fact, as well, that § 1 of the National Labor Relations Act declared the congressional policy of 'encouraging the practice and procedure of collective bargaining.' 29 U.S.C. § 151. The existence of unions is an inescapable corollary of this preference. To the extent that this Court prohibits the union from promising a fairer deal for unionized employees by describing the benefits to be obtained by unionization, this policy is seriously eroded. This Court has often underscored this preference in the Act. See, e.g., Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 182, 61 S.Ct. 845, 846, 85 L.Ed. 1271 (1941); NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180, 87 S.Ct. 2001, 2006, 18 L.Ed.2d 1123 (1967). This preference is only one of opportunity and the free choice of the employee must be protected, but restrictions on the communications of the union as to potential benefits may unduly prevent the intelligent exercise of such choice. The employer may garner loyalty through his actions and record of past performance for his own employees; the union can only sell employees the future.
5
This possibility of hedging is to some extent borne out by the record. Although the Court cannot know what the correlation was between signed cards and votes for the Union, we do know that not everyone who signed cards voted for the Union. Twenty-eight persons plus signed cards (App. 75) and only 22 voted for the Union. Moreover, there is testimony that some employees discussed the hedge. 'Of course some of us fellows did say to other fellows that were really against it (the Union) and have always been against it you better sign your ticket and turn it in because if you didn't if it does get voted in, if the majority of the men vote the union in, at least you have to pay your dues which is very natural but you wouldn't have to pay no initiation fee.' App. 28—29. (Emphasis added.)
6
As to the possible effect of the fee waiver offer on securing the 30% showing necessary for holding an election, whether or not there is a valid showing is a matter for administrative determination not subject to litigation by the parties. Goodyear Tire & Rubber Co., 138 N.L.R.B. 453 (1962). Courts of appeals have uniformly so held. See NLRB v. J. I. Case Co., 201 F.2d 597 (CA9 1953); NLRB v. White Constr. & Eng. Co., 204 F.2d 950, 953 (CA5 1953); Kearney & Trecker Corp. v. NLRB, 209 F.2d 782, 787—788 (CA7 1953); NLRB v. National Truck Rental Co., 99 U.S.App.D.C. 259, 261—262, 239 F.2d 422, 424—425 (1956) (Burger, J.), cert. denied, 352 U.S. 1016, 77 S.Ct. 561, 1 L.Ed.2d 547 (1957); NLRB v. Louisville Chair Co., 385 F.2d 922, 926—927 (CA6 1967); Intertype Co. v. NLRB, 401 F.2d 41, 43 (CA4 1968), cert. denied, 393 U.S. 1049, 89 S.Ct. 686, 21 L.Ed.2d 691 (1969).
7
It is certainly arguable that such a connection can be made when the union pays a person cash to vote for or assist the union. The benefit of the union has been tendered and the employee may well feel he has incurred a moral obligation to vote for the union. See e.g., Wagner Electric Corp., 167 N.L.R.B. 532 (1967) (grant of life insurance policy to those who signed with union before representation election 'subjects the donees to a constraint to vote for the donor union'). See also Collins & Aikman Corp. v. NLRB, 383 F.2d 722 (CA4 1967) (payment of $7 to employee to be observer at election); NLRB v. Commercial Letter, Inc., 455 F.2d 109 (CA8 1972) (excessive payments to union members to attend meetings). In Wagner, supra, the Board distinguished the initiation fee decision in DIT-MCO, Inc., 163 N.L.R.B. 1019 (1967), on the ground that there was no immediate improvement in an employee's economic situation when fees were waived.
8
The majority in its conclusion seems to articulate still another theory of coercion: 'The failure to sign a recognition slip may well seem ominous to nonunionists who fear that if they do not sign they will face a wrathful union regime, should the union win.' This theory, of course, assumes a card signer will vote for the union. Moreover, this problem is fundamental in labor elections, at the outset, when cards are collected for the purpose of holding an election pursuant to the necessary showing of support, and, at the conclusion, if the union wins, when those who oppose the union must still decide to join the union or face the union's wrath. One could easily argue that at least an equal deterrent to signing the card is the wrathful employer if the union loses the election.
| 67
|
414 U.S. 291
94 S.Ct. 505
38 L.Ed.2d 511
H. Keith ZAHN et al., Petitioners,v.INTERNATIONAL PAPER COMPANY.
No. 72—888.
Argued Oct. 16, 1973.
Decided Dec. 17, 1973.
Syllabus
Multiple plaintiffs with separate and distinct claims must each satisfy the jurisdictional amount for suits in federal courts, and in this diversity class action under Fed.Rule Civ.Proc. 23(b)(3) by owners of lakeshore property charging respondent with polluting the lake, where only the named plaintiffs but not the unnamed plaintiffs could show damages in the jurisdictional amount, a class action is not maintainable. Each plaintiff in a Rule 23(b)(3) class action must satisfy the jurisdictional amount and any plaintiff was does not must be dismissed from the case. Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319, followed. Pp. 292—302.
469 F.2d 1033, affirmed.
Peter F. Langrock, Middlebury, Vt., for petitioners.
Taggart Whipple, New York City, for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
Petitioners, asserting that they were owners of property fronting on Lake Champlain in Orwell, Vermont, brought this action in the District Court on behalf of a class consisting of themselves and 200 lake-front property owners and lessees. They sought damages from International Paper Co., a New York corporation, for allegedly having permitted discharges from its pulp and paper-making plant, located in New York, to flow into Ticonderoga Creek and to be carried by that stream into Lake Champlain, thereby polluting the waters of the lake and damaging the value and utility of the surrounding properties. The suit was brought as a diversity action, jurisdiction assertedly resting on 28 U.S.C. § 1332(a)(1). The claim of each of the named plaintiffs was found to satisfy the $10,000 jurisdictional amount, but the District Court was convinced 'to a legal certainty' that not every individual owner in the class had suffered pollution damages in excess of $10,000. Reading Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969), as precluding maintenance of the action by any member of the class whose separate and distinct claim did not individually satisfy the jurisdictional amount and concluding that it would not be feasible to define a class of property owners each of whom had more than a $10,000 claim, the District Court then refused to permit the suit to proceed as a class action. 53 F.R.D. 430 (Vt.1971). A divided Court of Appeals affirmed, 469 F.2d 1033 (CA2 1972), principally on the authority of Snyder v. Harris, supra. We granted the petition for writ of certiorari, 410 U.S. 925, 93 S.Ct. 1370, 35 L.Ed.2d 585 (1973).
2
The Court of Appeals correctly held that this case is governed by the rationale of this Court's prior cases construing the statutes defining the jurisdiction of the District Court. We therefore affirm its judgment.
3
From the outset, Congress has provided that suits between citizens of different States are maintainable in the district courts only if the 'matter in controversy' exceeds the statutory minimum, now set at $10,000. 28 U.S.C. § 1332(a).1 The same jurisdictional-amount requirement has applied when the general federal-question jurisdiction of the district courts, 28 U.S.C. § 1331(a), is sought to be invoked.2 A classic statement of the dichotomy that developed in construing and applying these sections is found in Troy Bank of Troy, Indiana v. G. A. Whitehead & Co., 222 U.S. 39, 40—41, 32 S.Ct. 9, 56 L.Ed. 81 (1911):
4
'When two or more plaintiffs, having separate and distinct demands, unite for convenience and economy in a single suit, it is essential that the demand of each be of the requisite jurisdictional amount; but when several plaintiffs unite to enforce a single title or right, in which they have a common and undivided interest, it is enough if their interests collectively equal the jurisdictional amount.'
5
This distinction and rule that multiple plaintiffs with separate and distinct claims must each satisfy the jurisdictional-amount requirement for suit in the federal courts were firmly rooted in prior cases dating from 1832,3 and have continued to be the accepted construction of the controlling statutes, now §§ 1331 and 1332.4 The rule has been applied to forbid aggregation of claims where none of the claimants satisfies the jurisdictional amount, as was the case in Scott v. Frazier, 253 U.S. 243, 244, 40 S.Ct. 503, 64 L.Ed. 883 (1920), for example, where the Court stated the rule to be that 'the amount in controversy must equal the jurisdictional sum as to each complainant.' It also requires dismissal of those litigants whose claims do not satisfy the jurisdictional amount, even though other litigants assert claims sufficient to invoke the jurisdiction of the federal court. Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001 (1939); Stewart v. Dunham, 115 U.S. 61, 64—65, 5 S.Ct. 1163, 1164—1165, 29 L.Ed. 329 (1885); Township of Bernards v. Stebbins, 109 U.S. 341, 355, 3 S.Ct. 252, 262, 27 L.Ed. 956 (1883).
6
In Clark v. Paul Gray, Inc., decided after the effective date of the Federal Rules of Civil Procedure in 1938, the Court applied the familiar rule that 'when several plaintiffs assert separate and distinct demands in a single suit, the amount involved in each separate controversy must be of the requisite amount . . ., and . . . those amounts cannot be added together to satisfy jurisdictional requirements.' 306 U.S., at 589, 59 S.Ct., at 748. Upon ascertaining on its own motion that only one of the plaintiffs in the District Court had presented a claim satisfying the jurisdictional amount, the Court reached the merits of that claim but directed the District Court to dismiss the claims of all other plaintiffs for want of jurisdiction.
7
The same rules were applied to class actions contemplated by Fed.Rule Civ.Proc. 23. The spurious class action authorized by Rule 23(a)(3), as it stood prior to amendment in 1966,5 was viewed by Judge Frank, writing for himself and Judges Learned and Augustus Hand, as, 'in effect, but a congeries of separate suits so that each claimant must, as to his own claim, meet the jurisdictional requirements.' Steele v. Guaranty Trust Co. of N.Y., 164 F.2d 387, 388 (CA2 1947).6 The direct precedent for Steele was a 1941 decision in the same Circuit expressed in an opinion written by Judge Charles Clark, who, as a member of and Reporter for the Advisory Committee, was a principal architect of the Federal Rules of Civil Procedure. That case, Hackner v. Guaranty Trust Co. of N.Y., 117 F.2d 95 (CA2 1941), involved a class action brought on behalf of plaintiffs with separate and distinct claims. Judge Clark invoked a long line of authority in this Court, and in other courts, to hold that among parties related only by a common question of law and fact, 'aggregation is improper' and that jurisdiction cannot be supplied for those without claims in the requisite amount 'by adding a plaintiff who can show jurisdiction.' Id., at 98. (Citations omitted). This was the accepted view in the federal courts with respect to class actions.7 In consequence, district courts were to entertain the claims of only those class action plaintiffs whose individual cases satisfied the jurisdictional-amount requirement.
8
The meaning of the 'matter in controversy' language of § 1332 as it applied to class actions under Rule 23 reached this Court in Snyder v. Harris, supra, the occasion being a division of opinion in the courts of appeals as to whether the 1966 amendments to Rule 23 had changed the jurisdictional-amount requirement of § 1332 as applied to class actions involving separate and distinct claims.8 None of the named plaintiffs and none of the unnamed members of the class before the Court alleged claims in excess of the requisite amount. It was nevertheless urged that in class action situations, particularly in light of the 1966 amendments to the rule, aggregation of separate and distinct claims should be permitted. The Court was of a contrary view, holding that class actions involving plaintiffs with separate and distinct claims were subject to the usual rule that a federal district court can assume jurisdiction over only those plaintiffs presenting claims exceeding the $10,000 minimum specified in § 1332. Aggregation of claims was impermissible, and the federal court was without jurisdiction where none of the plaintiffs presented a claim of the requisite size. The Court unmistakably rejected the notion that the 1966 amendments to Rule 23 were intended to effect, or effected, any change in the meaning and application of the jurisdictional-amount requirement insofar as class actions are concerned.
9
'The doctrine that separate and distinct claims could not be aggregated was never, and is not now, based upon the categories of old Rule 23 or of any rule of procedure. That doctrine is based rather upon this Court's interpretation of the statutory phrase 'matter in controversy.' The interpretation of this phrase as precluding aggregation substantially predates the 1938 Federal Rules of Civil Procedure. '. . . Nothing in the amended Rule 23 changes this doctrine. . . . The fact that judgments under class actions formerly classified as spurious may now have the same effect as claims brought under the joinder provisions is certainly no reason to treat them differently from joined actions for purposes of aggregation.' 394 U.S., at 336—337, 89 S.Ct., at 1057.
10
The Court also refused to reconsider its prior constructions of the 'matter in controversy' phrase, concluding that it should not do so where Congress, with complete understanding of how the courts had construed the statute, had not changed the governing language and down through the years had continued to specify and had progressively increased the jurisdictional amount necessary for instituting suit in the federal courts.
11
None of the plaintiffs in Snyder v. Harris alleged a claim exceeding $10,000, but there is no doubt that the rationale of that case controls this one. As previously indicated, Snyder invoked the well-established rule that each of several plaintiffs asserting separate and distinct claims must satisfy the jurisdictional-amount requirement if his claim is to survive a motion to dismiss. This rule plainly mandates not only that there may be no aggregation and that the entire case must be dismissed where none of the plaintiffs claims more than $10,000 but also requires that any plaintiff without the jurisdictional amount must be dismissed from the case, even though others allege jurisdictionally sufficient claims.
12
This follows inescapably from the Court's heavy reliance on Clark v. Paul Gray, Inc., supra, where only one of several plaintiffs had a sufficiently, large claim and all other plaintiffs were dismissed from the suit.9 Moreover, the Court cited with approval the decision in Alvarez v. Pan American Life Insurance Co., 375 F.2d 992 (CA5), cert. denied, 389 U.S. 827, 88 S.Ct. 74, 19 L.Ed.2d 82 (1967), which was decided after the 1966 amendments to Rule 23 and which involved a class action with only one member of the class having a claim sufficient to satisfy § 1332. Only that claim was held within the jurisdiction of the District Court.
13
We conclude, as we must, that the Court of Appeals in the case before us accurately read and applied Snyder v. Harris:10 Each plaintiff in a Rule 23(b)(3) class action must satisfy the jurisdictional amount, and any plaintiff who does not must be dismissed from the case—'one plaintiff may not ride in on another's coattails.' 469 F.2d, at 1035.
14
Neither are we inclined to overrule Snyder v. Harris nor to change the Court's long standing construction of the 'matter in controversy' requirement of § 1332. The Court declined a like invitation in Snyder v. Harris after surveying all relevant considerations and concluding that to do so would undermine the purpose and intent of Congress in providing that plaintiffs in diversity cases must present claims in excess of the specified jurisdictional amount. At this time, we have no good reason to disagree with Snyder v. Harris or with the historic construction of the jurisdictional statutes, left undisturbed by Congress over these many years.
15
It also seems to us that the application of the jurisdictional-amount requirement to class actions was so plainly etched in the federal courts prior to 1966 that had there been any thought of departing from these decisions and, in so doing, of calling into question the accepted approach to cases involving ordinary joinder of plaintiffs with separate and distinct claims, some express statement of that intention would surely have appeared, either in the amendments themselves or in the official commentaries. But we find not a trace to this effect. As the Court thought in Snyder v. Harris, the matter must rest there, absent further congressional action.11
16
Affirmed.
17
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join, dissenting.
18
The Court holds that, in a diversity suit, a class action under Fed.Rule Civ.Proc. 23(b)(3) is maintainable only when every member of the class, whether an appearing party or not, meets the $10,000 jurisdictional-amount requirement of 28 U.S.C. § 1332(a). It finds this ruling compelled by the 'rationale of this Court's prior cases construing the statutes defining the jurisdiction of the District Court.' I disagree and respectfully dissent.
19
The jurisdictional-amount provision of § 1332(a) tersely states that 'the matter in controversy (must exceed) the sum or value of $10,000 . . ..' Those words, substantially unchanged since the passage of the Judiciary Act of 1789,1 apply to 'civil actions,' and say nothing about the requirements applicable to individual claimants and individual claims. Although Congress has several times altered the amount required,2 generally upward,3 it has left the task of defining those requirements to the judiciary.4 The result has been a relatively complex and sensitive set of rules designed to implement Congress' broad directive in a way that is responsive to the demands of fairness and efficiency in adjudication.
20
One 'bright line' has emerged to control all § 1332 actions: there must be at least one plaintiff, or joint interest, seeking more than the statutory amount. Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969); Troy Bank of Troy, Indiana v. G. A. Whitehead & Co., 222 U.S. 39, 32 S.Ct. 9, 56 L.Ed. 81 (1911). The 'long-standing' and 'well established' rule on aggregation of claims that the Court invokes was developed to determine whether a group of claims was sufficiently interrelated to constitute such a 'joint' claim or 'common and undivided interest.'5
21
Once jurisdiction has attached to the 'action,' however, the 'aggregation' rule has been but one of several ways to establish jurisdiction over additional claims and parties. In this case, the claims of the named plaintiffs provided the District Court with jurisdiction over the diversity action. And petitioners make no argument inconsistent with the Court's holding that the theory of 'joint' claims or interests will not support jurisdiction over the nonappearing members of their class. Their contention is rather that a second theory, ancillary jurisdiction, supports a determination that those claims may be entertained.
22
Ancillary jurisdiction to adjudicate claims that cannot be fitted within the aggregation rules has long been recognized by this Court, see Freeman v. Howe, 24 How. 450, 16 L.Ed. 749 (1861); Phelps v. Oaks, 117 U.S. 236, 6 S.Ct. 714, 29 L.Ed. 888 (1886); Wichita R. & Light Co. v. Public Utilities Comm'n, 260 U.S. 48, 43 S.Ct. 51, 67 L.Ed. 124 (1922). But, as one commentator has pointed out, the rules developed to control the exercise of that jurisdiction cannot be explained by 'any single rationalizing principle.' C. Wright, Federal Courts § 9, p. 21 (2d ed. 1970). They are instead accommodations that take into account the impact of the adjudication on parties and third persons, the susceptibility of the dispute or disputes in the case to resolution in a single adjudication, and the structure of the litigation as governed by the Federal Rules of Civil Procedure.6
23
After consideration of these Factors, the Court has sustained the exercise of ancillary jurisdiction over compulsory counterclaims under Rule 13(a), Horton v. Liberty Mutual Insurance Co., 367 U.S. 348, 81 S.Ct. 1570, 6 L.Ed.2d 890 (1961); aff'g 275 F.2d 148 (CA5 1960); Moore v. New York Cotton Exchange, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750 (1926). It has also done so where a party's intervention was held to be a matter of right, as is now provided by Rule 24(a), Phelps v. Oaks, supra; see 2 W. Barron & A. Holtzoff, Federal Practice & Procedure § 593 (C. Wright ed. 1961). Following this lead, the courts of appeals have sustained ancillary jurisdiction over cross-claims permitted by Rule 13(g), R. M. Smythe & Co v. Chase National Bank, 291 F.2d 721 (CA2 1961); Childress v. Cook, 245 F.2d 798 (CA5 1957); over impleaded defendants under Rule 14, Pennsylvania R. Co. v. Erie Avenue Warehouse Co., 302 F.2d 843 (CA3 1962); and over defendants interpleaded under Rule 22 Walmac Co. v. Isaacs, 220 F.2d 108 (CA1 1955). See Developments in the Law—Multiparty Litigation in the Federal Courts, 71 Harv.L.Rev. 874 passim (1958).7
24
Class actions under Rule 23(b)(3) are equally appropriate for such treatment. There are ample assurances, in the provisions of the Rule that 'the questions of law or fact common to the members of the class (must) predominate over any questions affecting only members,'8 to guarantee that ancillary jurisdiction will not become a facade hiding attempts to secure federal adjudication of nondiverse parties' disputes over unrelated claims. And the practical reasons for permitting adjudication of the claims of the entire class are certainly as strong as those supporting ancillary jurisdiction over compulsory counterclaims and parties that are entitled to intervene as of right. Class actions were born of necessity.9 The alternatives wer joinder of the entire class, or redundant litigation of the common issues. The cost to the litigants and the drain on the resources of the judiciary resulting from either alternative would have been intolerable. And this case presents precisely those difficulties: approximately 240 claimants are involved, and the issues will doubtless call for extensive use of expert testimony on difficult scientific issues.
25
It is, or course, true that an exercise of ancillary jurisdiction in such cases would result in some increase in the federal courts' workload, for unless the class action is permitted many of the claimants will be unable to obtain any federal determination of their rights. But that objection is applicable to every other exercise of ancillary jurisdiction. It should be a sufficient answer that denial of ancillary jurisdiction will impose a much larger burden on the state and federal judiciary as a whole, and will substantially impair the ability of the prospective class members to assert their claims.
26
If the State provides a class action device comparable to Rule 23(b)(3), some of this inefficiency and unfairness may be avoided, but certainly not all. The named plaintiffs, and any other members of their class who can meet the jurisdictional-amount requirement, may choose to litigate those claims in the district courts, as these plaintiffs have shown to be their preference. Moreover, they will probably now be required separately to litigate the common issues in their cases,10 thus possibly enlarging the federal judiciary's burden, and ironically reversing the Court's apparent purpose.
27
Moreover, if the State does not provide a Rule 23(b)(3) device, litigation of the claims of class members who either lack the jurisdictional amount or simply prefer to litigate their claims in the state courts—as they would be free to do under any construction of the jurisdictional requirement—will produce a multitude of suits. And the chief influence mitigating that flood the fact that many of these landowners' claims are likely to be worthless because the cost of asserting them on a case-by-case basis will exceed their potential value—will do no judicial system credit.
28
Not only does the practical desirability of sustaining ancillary jurisdiction bring Rule 23(b)(3) class actions within the logic of our decisions, but the Court has long since recognized that fact, and has sustained ancillary jurisdiction over the nonappearing members in a class action who do not meet the requirements of traditional rule of complete diversity laid down in Strawbridge v. Curtiss, 3 Cranch 267, 2 L.Ed. 435 (1806). In Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 41 S.Ct. 338, 65 L.Ed. 673 (1921), the Court not only held that only the original named plaintiffs and defendants had to satisfy the diversity requirements, but it also stated that intervention by nondiverse members of the class would not destroy the District Court's jurisdiction. Id., at 366, 41 S.Ct., at 342. Particularly in view of the constitutional background on which the statutory diversity requirements are written, see 469 F.2d 1033, 1038 (CA2 1972) (Timbers, J., dissenting), it is difficult to understand why the practical approach the Court took in Supreme Tribe of Ben-Hur must be abandoned where the purely statutory 'matter in controversy' requirement is concerned.
29
Certainly this result is not compelled by Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969), for that decision turned solely on whether federal diversity jurisdiction could be established over the 'action.' Nor can I accept the Court's contention that Snyder's citation to Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001 (1939), controls here. That case dealt only with the jurisdictional-amount requirements for the original named plaintiffs who litigated the case. Here petitioners clearly meet that requirement. Snyder's characterization of Clark as a class action did not turn that case into a precedent for applying the jurisdictional-amount requirements to nonappearing class members who, so far as the Court indicated in Clark, were not even involved in that case.
30
It would be far more consistent with Clark for the Court to rule, as it did in Supreme Tribe of Ben-Hur, that only the original named plaintiffs must meet the jurisdictional requirements, and that nonappearing class members and intervenors need not. Such a ruling, while going a step farther than petitioners seek, would be reasonable and pragmatically justified. There is a substantial difference between the impact on a case of an appearing party and a nonappearing class member, and intervention poses no threat since the district courts are given discretion by Rule 23(d)(3) to permit intervention subject to appropriate conditions. See 3B J. Moore Federal Practice 23.73(3), p. 1441 (2d ed. 1969). The question in this case is not whether the class action must be permitted, but whether the District Court has the power to determine whether to permit it, taking into account the elaborate guidance and discretion provided by Rule 23.
31
The Court also appears to rely on Snyder's rejection of 'the notion that the 1966 amendments to Rule 23 were intended to effect, or effected, any change in the meaning and application of the jurisdictional amount requirement insofar as class actions are concerned.' Ante, at 299. Snyder based this rejection on Rule 82's admonition that the Federal Rules of Civil Procedure are not to be 'construed to extend or limit the jurisdiction of the United States district courts . . ..' Reliance on Rule 82 was proper there because the petitioner contended that the restructuring of Rule 23 to abolish 'spurious' class actions in favor of a 'functional' approach that took into account the nature of the litigation and its effects undercut this Court's long line of decisions establishing the minimum requirements for diversity jurisdiction over a 'civil action.'
32
But this case presents no suggestion that the 1966 amendments override the Court's decisions construing § 1332. There are no earlier decisions construing the jurisdictional-amount requirements for the nonappearing members of a 'spurous' class, probably because the old Rule did not bind members of the class unless they affirmatively requested inclusion.11 Nor did the 1966 amendments bring Rule 23(b)(3) class actions within any other holdings. If anything, they merely made the determination whether the class should be permitted to turn more directly on the kinds of concerns that have motivated the exercise of ancillary jurisdiction.12
33
The question in this case ought, instead, to be whether changes in the Civil Rules may affect, and be affected by, the determination whether to exercise existing jurisdiction. Of course, they must. As the Reporter to the Advisory Committee on Civil Rules that prepared the 1966 amendments has observed: 'From the start the Civil Rules, elaborating and complicating actions through joinder of claims and parties, have profoundly influenced jurisdictional result.'13 The Court's prior decisions upholding novel exercises of ancillary jurisdiction have made liberal use of the opportunities presented by the Civil Rules and amendments of them, and Rule 82 has stood as no bar to that action.
34
Indeed, the effects of today's decision will also be influenced by the form of Rule 23. The District Court, after ruling that ancillary jurisdiction could not be exercised, was confronted with a dilemma that did not exist prior to the 1966 amendments: identification of the members of the class that would be bound by the decision so that they could be provided the required notice.14 After determining that it was not possible to determine which of the 240 proposed members met the $10,000 requirement, the court denied class action status to all. But few, if any, Rule 23(b)(3) classes will lend themselves to a determination, on the basis of the pleadings, that each proposed member meets that requirement. Intervention, at least for the purpose of establishing jurisdiction, may be necessary, and that is more than even the old Rule contemplated when it specified that class members had to request inclusion in order to be bound.
35
Thus, on the basis of the Court's implicit holding that ancillary jurisdiction would not support recognition of a Rule 23(b)(3) class, the 1966 amendments will still influence the mumber of cases in which federal jurisdiction will be exercised. They will, as in this case, simply curtail the exercise of jurisdiction rather than expand it. In view of the Court's previous concern with practical realities in both its cases involving class actions and its cases involving the exercise of ancillary jurisdiction, I think that this limitation is both unwarranted and unwise.
1
The section provides in pertinent part that:
'(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and is between—
'(1) citizens of different States . . ..'
Section 11 of the First Judiciary Act of 1789 set the jurisdictional amount in diversity suits at $500. 1 Stat. 78. In 1801, Congress lowered the requirement to $400 in the Midnight Judges Act, 2 Stat. 89, 92, but it was quickly restored to $500 the following year. 2 Stat. 132. The jurisdictional-amount requirement remained fixed at this level until the Act of Mar. 3, 1887, 24 Stat. 552, when it was raised to $2,000. The figure was subsequently increased by $1,000 by the Act of Mar. 3, 1911, § 24, 36 Stat. 1091. See S.Rep.No.388, 61st Cong., 2d Sess., pt. 2, pp. 30—32 (1910); H.R.Rep.No.818, 61st Cong., 2d Sess (1910); Conference Report, S.Doc.No.848, 61st Cong., 3d Sess. (1911); 45 Cong.Rec. 3596—3599 (1910); 46 Cong.Rec. 4002, 4003, 4004 (1911).
The current $10,000 jurisdictional amount, codified in 28 U.S.C. § 1332(a), was enacted by the Act of July 25, 1958, 72 Stat. 415. The legislative history discloses that the change was made 'on the premise that the amount should be fixed at a sum of money that will make jurisdiction available in all substantial controversies where other elements of Federal jurisdiction are present. The jurisdictional amount should not be so high as to convert the Federal courts into courts of big business nor so low as to fritter away their time in the trial of petty controversies.' S.Rep.No.1830, 85th Cong., 2d Sess., 3—4 (1958); U.S.Code Cong. & Admin.News 1958, p. 3101; see also id., at 21; H.R.Rep.No.1706, 85th Cong., 2d Sess., 3 (1958).
2
Section 1331(a) provides:
'(a) The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.'
3
The following are representative of innumerable cases confirming this principle: Woodside v. Beckham, 216 U.S. 117, 30 S.Ct. 367, 54 L.Ed. 408 (1910); Waite v. Santa Cruz, 184 U.S. 302, 328—329, 22 S.Ct. 327, 336—337, 46 L.Ed. 552 (1902); Wheless v. St. Louis, 180 U.S. 379, 382, 21 S.Ct. 402, 403, 45 L.Ed. 583 (1901); Bernards Township v. Stebbins, 109 U.S. 341, 355, 3 S.Ct. 252, 262, 27 L.Ed. 956 (1883). Cf. Clay v. Field, 138 U.S. 464, 11 S.Ct. 419, 34 L.Ed. 1044 (1891); Russell v. Stansell, 105 U.S. 303, 26 L.Ed. 989 (1882); Seaver v. Bigelows, 5 Wall. 208, 18 L.Ed. 595 (1867); Stratton v. Jarvis, 8 Pet. 4, 8 L.Ed. 846 (1834); Oliver v. Alexander, 6 Pet. 143, 8 L.Ed. 349 (1832).
Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969), noted that the judicial interpretation of 'matter in controversy' to bar aggregation of separate and distinct claims dated back to at least Oliver v. Alexander, which is representative of the unbroken line of decision of this Court interpreting our appellate jurisdiction when that jurisdiction was confined to review of lower court decisions in which the 'matter in dispute' exceeded a designated monetary amount. Consistently, plaintiffs with separate and distinct claims could not aggregate their respective 'matters in dispute' to bring an appeal to this Court. See, e.g., Stewart v. Dunham, 115 U.S. 61, 64—65, 5 S.Ct. 1163, 1164—1165, 29 L.Ed. 329 (1885) (and cases cited therein). The original Alexander construction of our appellate jurisdiction was applied to the jurisdictional-amount requirement for federal trial courts in Walter v. Northeastern R. Co., 147 U.S. 370, 373, 13 S.Ct. 348, 349, 37 L.Ed. 206 (1893):
'Is the plaintiff entitled to join (all his actions) in a single suit in a Federal court, and sustain the jurisdiction by reason of the fact that the total amount involved exceeds $2,000? We think not. It is well settled in this court that when two or more plaintiffs, having several interests, unite for the convenience of litigation in a single suit, it can only be sustained in the court of original jurisdiction, or on appeal in this court, as to those whose claims exceed the jurisdictional amount; and that when two or more defendants are sued by the same plaintiff in one suit the test of jurisdiction is the joint or several character of the liability to the plaintiff.'
4
Rogers v. Hennepin County, 239 U.S. 621, 36 S.Ct. 217, 60 L.Ed. 469 (1916); Title Guaranty & Surety Co. v. Allen, 240 U.S. 136, 36 S.Ct. 345, 60 L.Ed. 566 (1916); Pinel v. Pinel, 240 U.S. 594, 596, 36 S.Ct. 416, 60 L.Ed. 817 (1916); Scott v. Frazier, 253 U.S. 243, 244, 40 S.Ct. 503, 64 L.Ed. 883 (1920); Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001 (1939).
5
Rule 23(a)(3) provided:
'If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may, on behalf of all, sue or be sued, when the character of the right sought to be enforced for or against the class is
'(3) several, and there is a common question of law or fact affecting the several rights and a common relief is sought.'
6
'The spurious class suit was a permissive joinder device. . . .
'There was no jural relationship between the members of the class; unlike, for example, the members of an unincorporated association, they had taken no steps to create a legal relationship among themselves. They were not fellow travelers by agreement. The right or liability of each was distinct. The class was formed solely by the presence of a common question of law or fact. When a suit was brought by or against such a class, it was merely an invitation to joinder—an invitation to become a fellow traveler in the litigation, which might or might not be accepted. It was an invitation and not a command performance.' 3B J. Moore, Federal Practice 23.10(1), pp. 2601—2603 (2d ed. 1969).
Professor Moore thus recognized that the jurisdictional-amount requirements governing the joinder of separate and distinct claims applied to spurious class suits:
'These principles applied with equal force in the class action, since the class actions as constituted under original Rule 23 were but procedural devices to permit some to prosecute or defend an action without the necessity of all appearing as plaintiffs or defendants.' Id., 23.13, p. 2957.
7
Alfonso v. Hillsborough County Aviation Authority, 308 F.2d 724 (C.A.5, 1962); Troup v. McCart, 238 F.2d 289 (C.A.5, 1956); Hughes v. Encyclopaedia Britannica, 199 F.2d 295 (C.A.7, 1952); Ames v. Mengel Co., 190 F.2d 344 (C.A.2, 1951); Miller v. National City Bank of New York, 166 F.2d 723 (C.A.2, 1948); Matlaw Corp. v. War Damage Corp., 164 F.2d 281 (C.A.7, 1947); Sturgeon v. Great Lakes Steel Corp., 143 F.2d 819 (C.A.6, 1944); Black & Yates, Inc. v. Mahogany Assn., 129 F.2d 227 (C.A.3, 1942); Woerter v. Orr, 127 F.2d 969 (C.A.10, 1942); Central Mexico Light & Power Co. v. Munch, 116 F.2d 85 (C.A.2, 1940); Independence Shares Corp. v. Deckert, 108 F.2d 51, 53 (C.A.3, 1939), rev'd on other grounds, 311 U.S. 282, 61 S.Ct. 229, 85 L.Ed. 189 (1940); Ames v. Chestnut Knolls, Inc., 159 F.Supp. 791 (Del.1958); Air Line Dispatchers Ass'n v. California Eastern Airways, 127 F.Supp. 521 (N.D.Cal.1954); Goldberg v. Whittier Corp., 111 F.Supp. 382 (E.D.Mich.1953); Schuman v. Little Bay Constr. Corp., 110 F.Supp. 903 (S.D.N.Y.1953); Giescke v. Denver Tramway Corp., 81 F.Supp. 957 (Del.1949); Koster v. Turchi, 79 F.Supp. 268 (E.D.Pa.) aff'd, 173 F.2d 605 (C.A.3, 1948); Shipley v. Pittsburgh & L.E.R. Co., 70 F.Supp. 870, 873, 874—875 (W.D.Pa.1947); Long v. Dravo Corp., 6 F.R.D. 226 (W.D.Pa.1946); Scarborough v. Mountain States Tel. & Tel. Co., 45 F.Supp. 176 (W.D.Tex.1942); Stevenson v. City of Bluefield, 39 F.Supp. 462 (S.D.W.Va.1941).
8
The Court of Appeals for the Fifth Circuit held that there had been no change in the rule. Alvarez v. Pan American Life Insurance Co., 375 F.2d 992, cert. denied, 389 U.S. 827, 88 S.Ct. 74, 19 L.Ed.2d 82 (1967). The same result was reached in the Eighth Circuit in Snyder v. Harris, 390 F.2d 204, 205 (1968), but a contrary ruling developed in the Tenth Circuit, Gas Service Co. v. Coburn, 389 F.2d 831, 833—834 (1968). We granted the petitions for certiorari in the latter two cases and decided them together. Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969).
In Snyder, the named plaintiff was a shareholder of an insurance company who brought a diversity suit against the company's board of directors on behalf of herself and approximately 4,000 other shareholders. Although Mrs. Snyder's claim totaled only $8,740 in damages, she defended the motion to dismiss for lack of jurisdiction on the ground that if all 4,000 potential claims were aggregated, the amount in controversy would well exceed $10,000. The District Court held that the claims could not be aggregated, and the Court of Appeals affirmed. In the consolidated case, Gas Service Co. v. Coburn, a customer of petitioner public utility brought a diversity suit on behalf of himself and 18,000 other similarly situated consumers, alleging the illegal collection of a city franchise tax. The single named plaintiff's damages amounted to only $7.81, but the District Court allowed all the claims to be aggregated to satisfy the jurisdictional-amount requirement. The Court of Appeals affirmed.
9
The dissent recognizes that Clark requires the dismissal of any named plaintiff in an action whose case does not satisfy the jurisdictional amount. But apparently unnamed members of the class would enjoy advantages not shared by the named plaintiffs since their separate and distinct cases would be exempted from the jurisdictional-amount requirement. Why this should be the case and how this squares with Clark or with Snyder v. Harris are left unexplained. We simply apply the rule governing named plaintiffs joining in an action to the unnamed members of a class, as Snyder v. Harris surely contemplated.
10
The inevitability of this conclusion was suggested by the dissent in Snyder v. Harris, 394 U.S., at 343, 89 S.Ct., at 1060, (Fortas, J., dissenting). The same result was reached in City of Inglewood v. City of Los Angeles, 451 F.2d 948, 952—954 (1971), by the Court of Appeals for the Ninth Circuit.
11
Because a class action invoking general-federal question jurisdiction under 28 U.S.C. § 1331 would be subject to the same jurisdictional-amount rules with respect to plaintiffs having separate and distinct claims, the result here would be the same even if a cause of action under federal law could be stated, see Illinois v. City of Milwaukee, 406 U.S. 91, 98—101, 92 S.Ct. 1385, 1390—1391, 31 L.Ed.2d 712 (1972), or if substantive federal law were held to control this case. Of course, Congress has exempted major areas of federal-question jurisdiction from any jurisdictional-amount requirements, see 28 U.S.C. §§ 1333—1334, 1336—1340, 1343—1345, 1347—1358, 1361—1362, the exemption being so widely applicable, in fact, that the Court in Snyder v. Harris, 394 U.S., at 341, 89 S.Ct., at 1059, discounted the impact of its holding in federal cases.
1
Section 11, 1 Stat. 78. The First Judiciary Act used the term 'matter in dispute,' ibid., and that phrase was retained until 1911, when the jurisdictional amount was increased from $2,000 to $3,000, Act of Mar. 3, 1911, § 24, 36 Stat. 1091, and the words 'matter in controversy' were substituted.
2
The amendments are catalogued in n. 1 of the Court's opinion.
3
Adjustments for changes in the purchasing power of the dollar generally have been given as the explanation for this phenomenon. See, e.g., S.Rep.No.1830, 85th Cong., 2d Sess., 4; (1958) U.S.Code Cong. & Admin. News 1958, p. 3101:
'The present requirement of $3,000 has been on the statute books since 1911 and obviously the value of the dollar in terms of its purchasing power has undergone marked depreciation since that date. The Consumers Price Index for moderate income families in large cities indicates a rise of about 152 percent since 1913, shortly after the present $3,000 minimum was established. . . . Accordingly the committee believes that the standard for fixing jurisdictional amounts should be increased to $10,000.'
See H.R.Rep.No.1706, 85th Cong., 2d Sess., 3 (1958) (containing identical language). The only decrease, in 1801, is discussed in n. 1 of the Court's opinion.
4
The only recent suggestion of congressional purpose is an oft-repeated statement in the legislative history of the 1958 amendments:
'The recommendations of the Judicial Conference (of the United States) regarding the amount in controversy, which this committee approves, is based on the premise that the amount should be fixed at a sum of money that will make jurisdiction available in all substantial controversies where other elements of Federal jurisdiction are present. The jurisdictional amount should not be so high as to convert the Federal courts into courts of big business nor so low as to fritter away their time in the trial of petty controversies.'
S.Rep.No.1830, supra, at 3—4 (emphasis added); U.S.Code Cong. & Admin.News, 1958, p. 3101; H.R.Rep.No.1706, supra, at 3 (containing identical language).
5
See Troy Bank of Troy Indiana v. G. A. Whitehead & Co., 222 U.S. 39, 32 S.Ct. 9, 56 L.Ed. 81 (1911), and cases cited in n. 3 of the Court's opinion. The Court also observes, quite correctly, that the same rule on aggregation has been applied to the federal-question jurisdiction, 28 U.S.C. § 1331. But the assertion, in the Court's final footnote, that the same jurisdictional rules it announces for § 1332 will apply to § 1331, is even more questionable than its application of those rules in this case. The continued need for exercise of diversity jurisdiction, at least where a showing of prejudice is not made, has been challenged by respected authorities. See Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law & Contemp.Prob. 216, 234—240 (1948); Currie, The Federal Courts and the American Law Institute (pts. I & II), 36 U.Chi.L.Rev. 1, 268 (1968, 1969). Cf. S.Rep.No.1830, supra, n. 3; U.S.Code Cong. & Admin.News, p. 3099. But a sharply different view has been taken of the federal-question jurisdiction, and the Court has reflected that view in its decisions upholding the exercise of jurisdiction over pendent claims under state law. See United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Similarly significant disincentives to assertion of federal rights in federal forums are likely if claimants are barred from combining to reduce the time and cost of litigation.
6
See Fraser, Ancillary Jurisdiction and the Joinder of Claims in the Federal Courts, 33 F.R.D. 27 (1963); H. Hart & H. Wechsler, The Federal Court and the Federal System 1075—1081 (2d ed. 1973). Professor Kaplan, the Reporter for the 1966 amendments, has articulated his expectation that Rule 23 would be similarly accommodated:
'New rule 23 alters the pattern of class actions; subdivision (b)(3), in particular, is a new category deliberately created. Like other innovations from time to time introduced into the Civil Rules, those as to class actions change the total situation on which the statutes and theories regarding subject matter jurisdiction are brought to bear.'
Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 Harv.L.Rev. 356, 399—400 (1967).
7
See also 7 C. Wright & A. Miller, Federal Practice & Procedure § 1756, pp. 564—565 (1972), approving as sound and 'a natural corollary to other applications of the ancillary jurisdiction concept,' a holding that only one representative party need meet the jurisdictional-amount requirement to support-a class action in Lesch v. Chicago & Eastern Illinois R. Co., 279 F.Supp. 908 (N.D.Ill.1968).
8
Rule 23(b)(3). This Rule further states: 'The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.'
9
See 3B J. Moore, Federal Practice 23.02(1), 23.05 passim (2d ed. 1969).
10
This is the probable consequence of the District Court's determination, after holding that each class member had to meet the jurisdictional-amount requirement, that it could find 'no appropriate class over which (it had) jurisdiction.' 53 F.R.D. 430, 433 (Vt.1971); see infra, at 311—312.
11
See Developments in the Law—Multiparty Litigation in the Federal Courts, 71 Harv.L.Rev. 874, 941—942 and cases cited n. 493 (1958).
12
See Rules 23(a)(1), (2), (3) and (b)(3)(A), (B), (C). Cf. H. Hart & H. Wechsler, supra, n. 6, at 1078. ('Under the revised rule, which contemplates that in a class action all members of the class not properly excluded will be bound by the judgment, the 'spurious' class action no longer exists, and ancillary jurisdiction may support intervention by class members in all cases.')
13
Kaplan, supra, n. 6, at 400.
14
Rules 23(c)(2), (3).
| 89
|
414 U.S. 338
94 S.Ct. 613
38 L.Ed.2d 561
UNITED STATES, Petitioner,v.John P. CALANDRA.
No. 72—734.
Argued Oct. 11, 1973.
Decided Jan. 8. 1974.
Syllabus
When respondent's place of business was being searched by federal agents under a warrant issued in connection with a gambling investigation and specifying that the object of the search was to discover and seize bookmaking records and wagering paraphernalia, one agent, knowing of a pending federal investigation of loansharking activities, discovered and seized a suspected loansharking record. Subsequently, a grand jury investigating loansharking activities subpoenaed respondent to query him on the seized evidence, but he refused to testify on Fifth Amendment grounds. After the Government then requested transactional immunity for respondent, the District Court granted respondent's suppression motion on the grounds that the affidavit supporting the warrant was insufficient and that the search exceeded the scope of the warrant, and further ordered that respondent need not answer any of the grand jury's questions based on the suppressed evidence. The Court of Appeals affirmed. Held: A witness summoned to appear and testify before a grand jury may not refuse to answer questions on the ground that they are based on evidence obtained from an unlawful search and seizure. Pp. 342 355.
(a) The exclusionary rule, under which evidence obtained in violation of the Fourth Amendment or the fruits of such evidence cannot be used in a criminal proceeding against the victim of the illegal search and seizure, is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect on future unlawful police conduct, rather than a personal constitutional right of the party aggrieved. Pp. 347—348.
(b) Despite its broad deterrent purpose, the rule does not proscribe the use of illegally seized evidence in all proceedings or against all persons, and its application has been restricted to those areas where its remedial objectives are though most efficaciously served. P. 348.
(c) Allowing a grand jury witness to invoke the exclusionary rule would unduly interfere with the effective and expeditious discharge of the grand jury's duties, and extending the rule to grand jury proceedings would achieve only a speculative and minimal advance in deterring police misconduct at the expense of substantially impeding the grand jury's role. Pp. 349—352.
(d) Grand jury questions based on evidence obtained from an unlawful search and seizure involve no independent governmental invasion of privacy, but rather the usual abridgment thereof common to all grand jury questioning. Such questions are only a derivative use of the product of a past unlawful search and seizure and work no new Fourth Amendment wrong. Pp. 353—355. 6 Cir., 465 F.2d 1218, reversed.
Louis F. Claiborne, Washington, D.C., for petitioner.
Robert J. Rotatori, Cleveland, Ohio, for respondent.
Mr. Justice POWELL delivered the opinion of the Court.
1
This case presents the question whether a witness summoned to appear and testify before a grand jury may refuse to answer questions on the ground that they are based on evidence obtained from an unlawful search and seizure. The issue is of considerable importance to the administration of criminal justice.
2
* On December 11, 1970, federal agents obtained a warrant authorizing a search of respondent John Calandra's place of business, the Royal Machine & Tool Co. in Cleveland, Ohio. The warrant was issued in connection with an extensive investigation of suspected illegal gambling operations. It specified that the object of the search was the discovery and seizure of bookmaking records and wagering paraphernalia. A master affidavit submitted in support of the application for the warrant contained information derived from statements by confidential informants to the Federal Bureau of Investigation (FBI), from physical surveillance conducted by FBI agents, and from court-authorized electronic surveillance.1
3
The Royal Machine & Tool Co. occupies a two-story building. The first floor consists of about 13,000 square feet, and houses industrial machinery and inventory. The second floor contains a general office area of about 1,500 square feet and a small office occupied by Calandra, president of the company, and his secretary. On December 15, 1970, federal agents executed the warrant directed at Calandra's place of business and conducted a thorough, four-hour search of the premises. The record reveals that the agents spent more than three hours searching Calandra's office and files.
4
Although the agents found no gambling paraphernalia, one discovered, among certain promissory notes, a card indicating that Dr. Walter Loveland had been making periodic payments to Calandra. The agent stated in an affidavit that he was aware that the United States Attorney's office for the Northern District of Ohio was investigating possible violations of 18 U.S.C. §§ 892, 893, and 894, dealing with extortionate credit transactions, and that Dr. Loveland had been the victim of a 'loansharking' enterprise then under investigation. The agent concluded that the card bearing Dr. Loveland's name was a loansharking record and therefore had it seized along with various other items, including books and records of the company, stock certificates, and address books.
5
On March 1, 1971, a special grand jury was convened in the Northern District of Ohio to investigate possible loansharking activities in violation of federal laws. The grand jury subpoenaed Calandra in order to ask him questions based on the evidence seized during the search of his place of business on December 15, 1970. Calandra appeared before the grand jury on August 17, 1971, but refused to testify, invoking his Fifth Amendment privilege against self-incrimination. The Government then requested the District Court to grant Calandra transactional immunity pursuant to 18 U.S.C. § 2514. Calandra requested and received a postponement of the hearing on the Government's application for the immunity order so that he could prepare a motion to suppress the evidence seized in the search.
6
Calandra later moved pursuant to Fed.Rule Crim.Proc. 41(e) for suppression and return of the seized evidence on the grounds that the affidavit supporting the warrant was insufficient and that the search exceeded the scope of the warrant. On August 27, the District Court held a hearing at which Calandra stipulated that he would refuse to answer questions based on the seized materials. On October 1, the District Court entered its judgment ordering the evidence suppressed and returned to Calandra and further ordering that Calandra need not answer any of the grand jury's questions based on the suppressed evidence. 332 F.Supp. 737 (1971). The court held that 'due process . . . allows a witness to litigate the question of whether the evidence which constitutes the basis for the questions asked of him before the grand jury has been obtained in a way which violates the constitutional protection against unlawful search and seizure.' Id., at 742. The court found that the search warrant had been issued without probable cause and that the search had exceeded the scope of the warrant.
7
The Court of Appeals for the Sixth Circuit affirmed, holding that the District Court had properly entertained the suppression motion and that the exclusionary rule may be invoked by a witness before the grand jury to bar questioning based on evidence obtained in an unlawful search and seizure.2 465 F.2d 1218 (1972). The offer to grant Calandra immunity was deemed irrelevant. Id., at 1221.
8
We granted the Government's petition for certiorari, 410 U.S. 925, 93 S.Ct. 1357, 35 L.Ed.2d 585 (1973). We now reverse.
II
9
The institution of the grand jury is deeply rooted in Anglo-American history.3 In England, the grand jury served for centuries both as a body of accusers sworn to discover and present for trial persons suspected of criminal wrongdoing and as a protector of citizens against arbitrary and oppressive governmental action. In this country the Founders thought the grand jury so essential to basic liberties that they provided in the Fifth Amendment that federal prosecution for serious crimes can only be instituted by 'a presentment or indictment of a Grand Jury.' Cf. Costello v. United States, 350 U.S. 359, 361—362, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956). The grand jury's historic functions survive to this day. Its responsibilities continue to include both the determination whether there is probable cause to believe a crime has been committed and the protection of citizens against unfounded criminal prosecutions. Branzburg v. Hayes, 408 U.S. 665, 686—687, 92 S.Ct. 2646, 2658—2659, 33 L.Ed.2d 626 (1972).
10
Traditionally the grand jury has been accorded wide latitude to inquire into violations of criminal law. No judge presides to monitor its proceedings. It deliberates in secret and may determine alone the course of its inquiry. The grand jury may compel the production of evidence or the testimony of witnesses as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials. 'It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime.' Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 471, 63 L.Ed. 979 (1919).
11
The scope of the grand jury's powers reflects its special role in insuring fair and effective law enforcement. A grand jury proceeding is not an adversary hearing in which the guilt or innocence of the accused is adjudicated. Rather, it is an ex parte investigation to determine whether a crime has been committed and whether criminal proceedings should be instituted against any person. The grand jury's investigative power must be broad if its public responsibility is adequately to be discharged. Branzburg v. Hayes, supra, 408 U.s., at 700, 92 S.Ct., at 2665; Costello v. United States, supra, 350 U.S., at 364, 76 S.Ct., at 409.
12
In Branzburg, the Court had occasion to reaffirm the importance of the grand jury's role:
13
'(T)he investigation of crime by the grand jury implements a fundamental governmental role of securing the safety of the person and property of the citizen . . ..' 408 U.S., at 700, 92 S.Ct., at 2666.
14
'The role of the grand jury as an important instrument of effective law enforcement necessarily includes an investigatory function with respect to determining whether a crime has been committed and who committed it. . . . 'When the grand jury is performing its investigatory function into a general problem area . . . society's interest is best served by a thorough and extensive investigation.' Wood v. Georgia, 370 U.S. 375, 392 (82 S.Ct. 1364, 1374, 8 L.Ed.2d 569) (1962). A grand jury investigation 'is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed.' United States v. Stone, 429 F.2d 138, 140 (C.A.2 1970). Such an investigation may be triggered by tips, rumors, evidence proffered by the prosecutor, or the personal knowledge of the grand jurors. Costello v. United States, supra, 350 U.S. at 362 (76 S.Ct. 406 at 408). It is only after the grand jury has examined the evidence that a determination of whether the proceeding will result in an indictment can be made . . ..' Id., at 701—702, 92 S.Ct., at 2666.
15
The grand jury's sources of information are widely drawn, and the validity of an indictment is not affected by the character of the evidence considered. Thus, an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence, Costello v. United States, supra; Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910); or even on the basis of information obtained in violation of a defendant's Fifth Amendment privilege against self-incrimination, Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958).
16
The power of a federal court to compel persons to appear and testify before a grand jury is also firmly established. Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). The duty to testify has long been recognized as a basic obligation that every citizen owes his Government. Blackmer v. United States, 284 U.S. 421, 438, 52 S.Ct. 252, 255, 76 L.Ed. 375 (1932); United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950). In Branzburg v. Hayes, supra, 408 U.S., at 682 and 688, 92 S.Ct., at 2657 and 2660 the Court noted that '(c)itizens generally are not constitutionally immune from grand jury subpoenas . . ..' and that 'the long standing principle that 'the public . . . has a right to every man's evidence' . . . is particularly applicable to grand jury proceedings.' The duty to testify may on occasion be burdensome and even embarrassing. It may cause injury to a witness' social and economic status. Yet the duty to testify has been regarded as 'so necessary to the administration of justice' that the witness' personal interest in privacy must yield to the public's overriding interest in full disclosure. Blair v. United States, 250 U.S., at 281, 39 S.Ct., at 471. Furthermore, a witness may not interfere with the course of the grand jury's inquiry. He 'is not entitled to urge objections of incompetency or irrelevancy, such as a party might raise, for this is no concern of his.' Id., at 282, 39 S.Ct., at 471. Nor is he entitled 'to challenge the authority of the court or of the grand jury' or 'to set limits to the investigation that the grand jury may conduct.' Ibid.
17
Of course, the grand jury's subpoena power is not unlimited.4 It may consider incompetent evidence, but it may not itself violate a valid privilege, whether established by the Constitution, statutes, or the common law. Branzburg v. Hayes, supra; United States v. Bryan, supra; Blackmer v. United States, supra; 8 J. Wigmore, Evidence §§ 2290—2391 (McNaughton rev. ed. 1961). Although, for example, an indictment based on evidence obtained in violation of a defendant's Fifth Amendment privilege is nevertheless valid, Lawn v. United States, supra, the grand jury may not force a witness to answer questions in violation of that constitutional guarantee. Rather, the grand jury may override a Fifth Amendment claim only if the witness is granted immunity co-extensive with the privilege against self-incrimination. Kastigar v. United States, supra. Similarly, a grand jury may not compel a person to produce books and papers that would incriminate him. Boyd v. United States, 116 U.S. 616, 633—635, 6 S.Ct. 524, 533—534, 29 L.Ed. 746 (1886). Cf. Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed. 548 (1973). The grand jury is also without power to invade a legitimate privacy interest protected by the Fourth Amendment. A grand jury's subpoena duces tecum will be disallowed if it is 'far too sweeping in its terms to be regarded as reasonable' under the Fourth Amendment. Hale v. Henkel, 201 U.S. 43, 76, 26 S.Ct. 370, 380, 50 L.Ed. 652 (1906). Judicial supervision is properly exercised in such cases to prevent the wrong before it occurs.
III
18
In the instant case, the Court of Appeals held that the exclusionary rule of the Fourth Amendment limits the grand jury's power to compel a witness to answer questions based on evidence obtained from a prior unlawful search and seizure. The exclusionary rule was adopted to effectuate the Fourth Amendment right of all citizens 'to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . ..' Under this rule, evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed. 1081 (1961). This prohibition applies as well to the fruits of the illegally seized evidence. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920).
19
The purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim:
20
'(T)he ruptured privacy of the victims' homes and effects cannot be restored. Reparation comes too late.' Linkletter v. Walker, 381 U.S. 618, 637, 85 S.Ct. 1731, 1742, 14 L.Ed.2d 601 (1965).
21
Instead, the rule's prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures:
22
'The rule is calculated to prevent, not to repair. Its purpose is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.' Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960).
23
Accord, Mapp v. Ohio, supra, 367 U.S., at 656, 81 S.Ct., at 1692; Tehan v. United States ex rel. Shott, 382 U.S. 406, 416, 86 S.Ct. 459, 465, 15 L.Ed.2d 453 (1966); Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968). In sum, the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.5
24
Despite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons. As with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served. The balancing process implicit in this approach is expressed in the contours of the standing requirement. Thus, standing to invoke the exclusionary rule has been confined to situations where the Government seeks to use such evidence to incriminate the victim of the unlawful search. Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); Alderman v. United States, 294 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); Wong Sun v. United States, supra; Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). This standing rule is premised on a recognition that the need for deterrence and hence the rationale for excluding the evidence are strongest where the Government's unlawful conduct would result in imposition of a criminal sanction on the victim of the search.6
IV
25
In deciding whether to extend the exclusionary rule to grand jury proceedings, we must weigh the potential injury to the historic role and functions of the grand jury against the potential benefits of the rule as applied in this context. It is evident that this extension of the exclusionary rule would seriously impede the grand jury. Because the grand jury does not finally adjudicate guilt or innocence, it has traditionally been allowed to pursue its investigative and accusatorial functions unimpeded by the evidentiary and procedural restrictions applicable to a criminal trial. Permitting witnesses to invoke the exclusionary rule before a grand jury would precipitate adjudication of issues hitherto reserved for the trial on the merits and would delay and disrupt grand jury proceedings. Suppression hearings would halt the orderly progress of an investigation and might necessitate extended litigation of issues only tangentially related to the grand jury's primary objective.7 The probable result would be 'protracted interruption of grand jury proceedings,' Gelbard v. United States, 408 U.S. 41, 70, 92 S.Ct. 2357, 2372, 33 L.Ed.2d 179 (1972) (White, J., concurring), effectively transforming them into preliminary trials on the merits. In some cases the delay might be fatal to the enforcement of the criminal law. Just last Term we reaffirmed our disinclination to allow litigious interference with grand jury proceedings:
26
'Any holding that would saddle a grand jury with minitrials and preliminary showings would assuredly impede its investigation and frustrate the public's interest in the fair and expeditious administration of the criminal laws.' United States v. Dionisio, 410 U.S. 1, 17, 93 S.Ct. 764, 773, 35 L.Ed.2d 67 (1973).
27
Cf. United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971); Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940). In sum, we believe that allowing a grand jury witness to invoke the exclusionary rule would unduly interfere with the effective and expeditious discharge of the grand jury's duties.
28
Against this potential damage to the role and functions of the grand jury, we must weigh the benefits to be derived from this proposed extension of the exclusionary rule. Suppression of the use of illegally seized evidence against the search victim in a criminal trial is thought to be an important method of effectuating the Fourth Amendment. But it does not follow that the Fourth Amendment requires adoption of every proposal that might deter police misconduct. In Alderman v. United States, 394 U.S., at 174—175, 89 S.Ct., at 967, for example, this Court declined to extend the exclusionary rule to one who was not the victim of the unlawful search:
29
'The deterrent values of preventing the incrimination of those whose rights the police have violated have been considered sufficient to justify the suppression of probative evidence even though the case against the defendant is weakened or destroyed. We adhere to that judgment. But we are not convinced that the additional benefits of extending the exclusionary rule to other defendants would justify further encroachment upon the public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth.'
30
We think this observation equally applicable in the present context.
31
Any incremental deterrent effect which might be achieved by extending the rule to grand jury proceedings is uncertain at best. Whatever deterrence of police misconduct may result from the exclusion of illegally seized evidence from criminal trials, it is unrealistic to assume that application of the rule to grand jury proceedings would significantly further that goal. Such an extension would deter only police investigation consciously directed toward the discovery of evidence solely for use in a grand jury investigation. The incentive to disregard the requirement of the Fourth Amendment solely to obtain an indictment from a grand jury is substantially negated by the inadmissibility of the illegally seized evidence in a subsequent criminal prosecution of the search victim. For the most part, a prosecutor would be unlikely to request an indictment where a conviction could not be obtained. We therefore decline to embrace a view that would achieve a speculative and undoubtedly minimal advance in the deterrence of police misconduct at the expense of substantially impeding the role of the grand jury.8
V
32
Respondent also argues that each and every question based on evidence obtained from an illegal search and seizure constitutes a fresh and independent violation of the witness' constitutional rights.9 Ordinarily, of course, a witness has no right of privacy before the grand jury. Absent some recognized privilege of confidentiality, every man owes his testimony. He may invoke his Fifth Amendment privilege against compulsory self-incrimination, but he may not decline to answer on the grounds that his responses might prove embarrassing or result in an unwelcome disclosure of his personal affairs. Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979 (1919). Respondent's claim must be, therefore, not merely that the grand jury's questions invade his privacy but that, because those questions are based on illegally obtained evidence, they somehow constitute distinct violations of his Fourth Amendment rights. We disagree.
33
The purpose of the Fourth Amendment is to prevent unreasonable governmental intrusions into the privacy of one's person, house, papers, or effects. The wrong condemned is the unjustified governmental invasion of these areas of an individual's life. That wrong, committed in this case, is fully accomplished by the original search without probable cause. Grand jury questions based on evidence obtained thereby involve no independent governmental invasion of one's person, house, papers, or effects, but rather the usual abridgment of personal privacy common to all grand jury questioning. Questions based on illegally obtained evidence are only a derivative use of the product of a past unlawful search and seizure. They work no new Fourth Amendment wrong. Whether such derivative use of illegally obtained evidence by a grand jury should be proscribed presents a question, not of rights, but of remedies.
34
In the usual context of a criminal trial, the defendant is entitled to the suppression of, not only the evidence obtained through an unlawful search and seizure, but also any derivative use of that evidence. The prohibition of the exclusionary rule must reach such derivative use if it is to fulfill its function of deterring police misconduct. In the context of a grand jury proceeding, we believe that the damage to that institution from the unprecedented extension of the exclusionary rule urged by respondent outweighs the benefit of any possible incremental deterrent effect. Our conclusion necessarily controls both the evidence seized during the course of an unlawful search and seizure and any question or evidence derived therefrom (the fruits of the unlawful search).10 The same considerations of logic and policy apply to both the fruits of an unlawful search and seizure and derivative use of that evidence, and we do not distinguish between them.11
35
The judgment of the Court of Appeals is reversed.
36
Reversed.
37
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join, dissenting.
38
The Court holds that the exclusionary rule in search-and-seizure cases does not apply to grand jury proceedings because the principal objective of the rule is 'to deter future unlawful police conduct,' ante, at 347, and 'it is unrealistic to assume that application of the rule to grand jury proceedings would significantly further that goal.' Ante, at 351. This downgrading of the exclusionary rule to a determination whether its application in a particular type of proceeding furthers deterrence of future police misconduct reflects a startling misconception, unless it is a purposeful rejection, of the historical objective and purpose of the rule.
39
The commands of the Fourth Amendment are, of course, directed solely to public officials. Necessarily, therefore, only official violations of those commands could have created the evil that threatened to make the Amendment a dead letter. But curtailment of the evil, if a consideration at all, was at best only a hoped-for effect of the exclusionary rule, not its ultimate objective. Indeed, there is no evidence that the possible deterrent effect of the rule was given any attention by the judges chiefly responsible for its formulation. Their concern as guardians of the Bill of Rights was to fashion an enforcement tool to give content and meaning to the Fourth Amendment's guarantees. They thus bore out James Madison's prediction in his address to the First Congress on June 8, 1789:
40
'If they (the rights) are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.' 1 Annals of Cong. 439 (1789).
41
Since, however, those judges were without power to direct or control the conduct of law enforcement officers, the enforcement tool had necessarily to be one capable of administration by judges. The exclusionary rule, if not perfect, accomplished the twin goals of enabling the judiciary to avoid the taint of partnership in official lawlessness and of assuring the people—all potential victims of unlawful government conduct—that the government would not profit from its lawless behavior, thus minimizing the risk of seriously undermining popular trust in government.
42
That these considerations, not the rule's possible deterrent effect, were uppermost in the minds of the framers of the rule clearly emerges from the decision which fashioned it:
43
'The effect of the Fourth Amendment is to put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers, and effects, against all unreasonable searches and seizures under the guise of law. . . . The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures . . . should find no sanction in the judgments of the courts, which are charged at all times with the support of the Constitution, and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.
44
'This protection is equally extended to the action of the government and officers of the law acting under it. . . . To sanction such proceedings would be to affirm by judicial decision a manifest neglect, if not an open defiance, of the prohibitions of the Constitution, intended for the protection of the people against such unauthorized action.' Weeks v. United States, 232 U.S. 383, 391—392, 394, 34 S.Ct. 341, 344, 345, 58 L.Ed. 652 (1914) (emphasis added).
45
Mr. Justice Brandeis and Mr. Justice Holmes added their enormous influence to these precepts in their notable dissents in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928). Mr. Justice Brandeis said:
46
'In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.' Id., at 485, 48 S.Ct., at 575.
And Mr. Justice Holmes said:
47
'(W)e must consider the two objects of desire both of which we cannot have, and make up our minds which to choose. It is desirable that criminals should be detected, and to that end that all available evidence should be used. It also is desirable that the government should not itself foster and pay for other crimes, when they are the means by which the evidence is to be obtained. . . . We have to choose, and for my part I think it a less evil that some criminals should escape than that the government should play an ignoble part.
48
'. . . If the existing code does not permit district attorneys to have a hand in such dirty business it does not permit the judge to allow such iniquities to succeed.' Id., at 470, 48 S.Ct., at 575.
49
The same principles were reiterated less than six years ago. In Terry v. Ohio, 392 U.S. 1, 12—13, 88 S.Ct. 1868, 1875, 20 L.Ed.2d 889 (1968), Mr. Chief Justice Warren said for the Court:
50
'The rule also serves another vital function—'the imperative of judicial integrity.' Elkins v. United States, 364 U.S. 206, 222, (80 S.Ct. 1437, 1447, 4 L.Ed.2d 1669) (1960). Courts which sit under our Constitution cannot and will not be made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions.'
51
It is true that deterrence was a prominent consideration in the determination whether Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), which applied the exclusionary rule to the States, should be given retrospective effect. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). But that lends no support to today's holding that the application of the exclusionary rule depends solely upon whether its invocation in a particular type of proceeding will significantly further the goal of deterrence. The emphasis upon deterrence in Linkletter must be understood in the light of the crucial fact that the States had justifiably relied from 1949 to 1961 upon Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), and consequently, that application of Mapp would have required the wholesale release of innumerable convicted prisoners, few of whom could have been successfully retried. In that circumstance, Linkletter held not only that retrospective application of Mapp would not further the goal of deterrence but also that it would not further 'the administration of justice and the intergrity of the judicial process.' 381 U.S. at 637, 85 S.Ct. at 1742. Cf. Kaufman v. United States, 394 U.S. 217, 229, 89 S.Ct. 1068, 1075, 22 L.Ed.2d 227 (1969).
52
Thus, the Court seriously errs in describing the exclusionary rule as merely 'a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect . . ..' Ante, at 348. Rather, the exclusionary rule is 'part and parcel of the Fourth Amendment's limitation upon (governmental) encroachment of individual privacy,' Mapp v. Ohio, supra, 367 U.S., at 651, 81 S.Ct., at 1689, and 'an essential part of both the Fourth and Fourteenth Amendments,' Id., at 657, 81 S.Ct., at 1693, that 'gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice.' Id., at 660, 81 S.Ct., at 1694.
53
This Mapp summation crystallizes the series of decisions that developed the rule and with which today's holding is plainly at war. For the first time, the Court today discounts to the point of extinction the vital function of the rule to insure that the judiciary avoid even the slightest appearance of sanctioning illegal government conduct. This rejection of 'the imperative of judicial integrity,' Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669 (1960), openly invites '(t)he conviction that all government is staffed by . . . hypocrites, (a conviction) easy to instill and difficult to erase.' Paulsen, The Exclusionary Rule and Misconduct by the Police, 52 J.Crim.L.C. & P.S. 255, 258 (1961). When judges appear to become 'accomplices in the willful disobedience of a Constitution they are sworn to uphold,' Elkins v. United States, supra, 364 U.S., at 223, 80 S.Ct., at 1447, we imperil the very foundation of our people's trust in their Government on which our democracy rests. See On Lee v. United States, 343 U.S. 747, 758—759, 72 S.Ct. 967, 974—975, 96 L.Ed. 1270 (1952) (Frankfurter, J., dissenting). The exclusionary rule is needed to make the Fourth Amendment something real; a guarantee that does not carry with it the exclusion of evidence obtained by its violation is a chimera. Moreover,
54
'(I)nsistence on observance by law officers of traditional fair procedural requirements is, from the long point of view, best calculated to contribute to that end. However much in a particular case insistence upon such rules may appear as a technicality that inures to the benefit of a guilty person, the history of the criminal law proves that tolerance of shortcut methods in law enforcement impairs its enduring effectiveness.' Miller v. United States, 357 U.S. 301, 313, 78 S.Ct. 1190, 1197, 2 L.Ed.2d 1332 (1958).
55
The judges who developed the exclusionary rule were well aware that it embodied a judgment that it is better for some guilty persons to go free than for the police to behave in forbidden fashion. A similar judgment led the Court to decide in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), that a grand jury must be denied access to plainly relevant but illegally seized papers. In that case, after federal agents unlawfully seized papers belonging to the Silverthornes and their corporation, and presented the documents to a grand jury which had previously indicted the Silverthornes, a district court ordered the documents returned and copies that had been prepared in the interim impounded. After returning the originals, the grand jury attempted to recoup them by issuance of a subpoena duces tecum. Compliance with the subpoena was refused, and contempt convictions followed. In reversing the judgment of convictions, the Court, speaking through Mr. Justice Holmes, held that the Government was barred from utilizing any fruits of its forbidden act, stating that '(t)he essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.' Id., at 392, 40 S.Ct., at 183.
56
Silverthorne plainly controls this case. Respondent, like plaintiffs in error in Silverthorne,1 seeks to avoid furnishing the grand jury with evidence that he would not have been called upon to supply but for the unlawful search and seizure. The Court would distinguish Silverthorne on the ground that there the plaintiffs in error had been indicted and could invoke the exclusionary rule 'on the basis of their status as criminal defendants,' since the Government's effort to obtain the documents was 'founded on a belief that they might be useful in the criminal prosecution already authorized by the grand jury.' Ante, at 352 n. 8. The effort was clearly not founded on any such belief. Overlooked is the fact that the grand jury's interest in again obtaining the documents in Silverthorne may well have been to secure information leading to further criminal charges, especially since indictments of three other individuals, as well as additional indictments of the Silverthornes, had been the consequence of initial submission of the documents to the grand jury. See Brief on Behalf of Plaintiffs in Error in No. 358, O.T.1919, pp. 4, 18—19.2 Only if Silverthorne is overruled can its precedential force to compel affirmance here be denied.
57
Congressional concern with the Silverthorne holding was clearly evidenced in enactment of 18 U.S.C. § 2515, providing that '(w)henever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any . . . proceeding in or before any . . . grand jury . . . if the disclosure of that information would be in violation of this chapter.' (Emphasis added.) In Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972), we set aside the adjudication in criminal contempt of a grand jury witness who refused to comply with a court order to testify on the ground that interrogation was to be based upon information obtained from the witness' communications allegedly intercepted by federal agents by means of illegal wiretapping and electronic surveillance. Our reasons track the grounds advanced in Silverthorne.
58
'The purposes of § 2515 and Title III as a whole would be subverted were the plain command of § 2515 ignored when the victim of an illegal interception is called as a witness before a grand jury and asked questions based upon that interception. Moreover, § 2515 serves not only to protect the privacy of communications, but also to ensure that the courts do not become partners to illegal conduct: the evidentiary prohibition was enacted also 'to protect the integrity of court and administrative proceedings.' Consequently, to order a grand jury witness, on pain of imprisonment, to disclose evidence that § 2515 bars in unequivocal terms is both to thwart the congressional objective of protecting individual privacy by excluding such evidence and to entangle the courts in the illegal acts of Government agents.' 408 U.S., at 51, 92 S.Ct., at 2362. (footnotes omitted).
59
Similarly to allow Calandra to be subjected to questions derived from the illegal search of his office and seizure of his files is 'to thwart the (Fourth and Fourteenth Amendments' protection) of . . . individual privacy . . . and to entangle the courts in the illegal acts of Government agents.' Ibid. 'And for a court, on petition of the executive department, to sentence a witness who is (himself) the victim of the illegal (search and seizure), to jail for refusal to participate in the exploitation of that (conduct in violation of the explicit command of the Fourth Amendment) is to stand our whole system of criminal justice on its head.' In re Evans, 146 U.S.App.D.C. 310, 323, 452 F.2d 1239, 1252 (1971) (Wright, J., concurring).
60
It is no answer, to suggest as the Court does, that the grand jury witnesses' Fourth Amendment rights will be sufficiently protected 'by the inadmissibility of the illegally seized evidence in a subsequent criminal prosecution of the search victim.' Ante, at 351. This, of course, is no alternative for Calandra, since he was granted transactional immunity and cannot be criminally prosecuted. But the fundamental flaw of the alternative is that to compel Calandra to testify in the first place under penalty of contempt necessarily 'thwarts' his Fourth Amendment protection and 'entangle(s) the courts in the illegal acts of Government agents' consequences that Silverthorne condemned as intolerable.
61
To be sure, the exclusionary rule does not 'provide that illegally seized evidence is inadmissible against anyone for any purpose.' Alderman v. United States, 394 U.S. 165, 175, 89 S.Ct. 961, 967, 22 L.Ed.2d 176 (1969). But clearly there is a crucial distinction between withholding its cover from individuals whose Fourth Amendment rights have not been violated—as has been done in the 'standing' cases, Alderman v. United States, supra; Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) and withdrawing its cover from persons whose Fourth Amendment rights have in fact been abridged.
62
Respondent does not seek vicariously to assert another's Fourth Amendment rights. He himself has been the victim of an illegal search and desires 'to mend no one's privacy (but his) own.' Gelbard v. United States, supra, 408 U.S., at 63, 92 S.Ct., at 2369 (Douglas, J., concurring). Respondent is told that he must look to damages to redress the concededly unconstitutional invasion of his privacy. In other words, officialdom may profit from its lawlessness if it is willing to pay a price.
63
In Mapp, the Court thought it had 'close(d) the only courtroom door remaining open to evidence secured by official lawlessness' in violation of Fourth Amendment rights. 367 U.S., at 654—655, 81 S.Ct., at 1691. The door is again ajar. As a consequence, I am left with the uneasy feeling that today's decision may signal that a majority of my colleagues have positioned themselves to reopen the door still further and abandon altogether the exclusionary rule in search-and-seizure cases; for surely they cannot believe that application of the exclusionary rule at trial furthers the goal of deterrence, but that its application in grand jury proceedings will not 'significantly' do so. Unless we are to shut our eyes to the evidence that crosses our desks every day, we must concede that official lawlessness has not abated and that no empirical data distinguishes trials from grand jury proceedings. I thus fear that when next we confront a case of a conviction rested on illegally seized evidence, today's decision will be invoked to sustained the conclusion in that case also, that 'it is unrealistic to assume' that application of the rule at trial would 'significantly further' the goal of deterrence though, if the police are presently undeterred, it is difficult to see how removal of the sanction of exclusion will induce more lawful official conduct.
64
The exclusionary rule gave life to Madison's prediction that 'independent tribunals of justice . . . will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.' 1 Annals of Cong. 439 (1789). We betray the trust upon which that prediction rested by today's long step toward abandonment of the exclusionary rule. The observations of a recent commentator highlight the grievous error of the majority's retreat:
65
'If constitutional rights are to be anything more than pious pronouncements, then some measurable consequence must be attached to their violation. It would be intolerable if the guarantee against unreasonable search and seizure could be violated without practical consequence. It is likewise imperative to have a practical procedure by which courts can review alleged violations of constitutional rights and articulate the meaning of those rights. The advantage of the exclusionary rule—entirely apart from any direct deterrent effect—is that it provides an occasion for judicial review, and it gives credibility to the constitutional guarantees. By demonstrating that society will attach serious consequences to the violation of constitutional rights, the exclusionary rule invokes and magnifies the moral and educative force of the law. Over the long term this may integrate some fourth amendment ideals into the value system or norms of behavior of law enforcement agencies.' Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U.Chi.L.Rev. 665, 756 (1970).
66
See also Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 Harv.L.Rev. 1532, 1562—1563 (1972).
67
I dissent and would affirm the judgment of the Court of Appeals.
1
On the basis of the same affidavit, federal agents also obtained warrants authorizing searches of Calandra's residence and automobile. The present case involves only the search of the Royal Machine & Tool Co.
2
The Court of Appeals affirmed the District Court's finding that the search of Calandra's business and seizure of his property were unlawful. 465 F.2d 1218, 1226 n. 5. Although the Government does not agree with the court's finding, it has not sought review of this issue. In addition, the Government has not challenged the District Court's order directing return of the illegally seized property to Calandra.
3
For a discussion of the history and role of the grand jury, see Costello v. United States, 350 U.S. 359, 361—362, 76 S.Ct. 406, 407—408, 100 L.Ed. 397 (1956); Blair v. United States, 250 U.S. 273, 279—283, 39 S.Ct. 468, 470—471, 63 L.Ed. 979 (1919); Hale v. Henkel, 201 U.S. 43, 59, 26 S.Ct. 370, 372, 50 L.Ed. 652 (1906); 4 W. Blackstone, Commentaries *301 et seq.; G. Edwards, The Grand Jury 1—44 (1906); 1 F. Pollock & F. Maitland, History of English Law 151 (2d ed. 1909); 1 W. Holdsworth, History English Law 321—323 (7th rev.ed. 1956).
4
The grand jury is subject to the court's supervision in several respects. See Brown v. United States, 359 U.S. 41, 49, 79 S.Ct. 539, 545, 3 L.Ed.2d 609 (1959); Fed.Rules Crim.Proc. 6 and 17; 1 L. Orfield, Criminal Procedure Under the Federal Rules § 6:108, pp. 475—477 (1966). In particular, the grand jury must rely on the court to compel production of books, papers, documents, and the testimony of witnesses, and the court may quash or modify a subponea on motion if compliance would be 'unreasonable or oppressive.' Fed.Rule Crim.Proc. 17(c).
5
There is some disagreement as to the practical efficacy of the exclusionary rule, and as the Court noted in Elkins v. United States, 364 U.S. 206, 218, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960), relevant '(e)mpirical statistics are not available.' Cf. Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U.Chi.L.Rev. 665 (1970). We have no occasion in the present case to consider the extent of the rule's efficacy in criminal trials.
6
In holding that the respondent had standing to invoke the exclusionary rule in a grand jury proceedings, the Court of Appeals relied on Fed.Rule Crim.Proc. 41(e). 465 F.2d, at 1222 1224. Rule 41(e) provides, in relevant part, that '(a) person aggrieved by an unlawful search and seizure may move the district court . . . for the return of the property and to suppress for the use as evidence anything so obtained . . ..' It further states that '(t)he motion shall be made before trial or hearing . . ..' We have recognized that Rule 41(e) is 'no broader than the constitutional rule.' Alderman v. United States, 394 U.S., 165, 173 n. 6, 89 S.Ct. 961, 996 n. 6, 22 L.Ed.2d 176 (1969); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Rule 41(e), therefore, does not constitute a statutory expansion of the exclusionary rule.
The Court of Appeals also found that the Government's offer of immunity under 18 U.S.C. § 2514 was irrelevant to respondent's standing to invoke the exclusionary rule. 465 F.2d, at 1221. We agree with that determination for the reasons stated in Parts III, IV, and V of this opinion.
7
The force of this argument is well illustrated by the facts of the present case. As of the date of this decision, almost two and one-half years will have elapsed since respondent was summoned to appear and testify before the grand jury. If respondent's testimony was vital to the grand jury's investigation in August 1971 of extortionate credit transactions, it is possible that this particular investigation has been completely frustrated.
8
Respondent relies primarily on Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), which the dissent contends 'plainly controls this case.' Post, at 362. In that case, federal officers unlawfully seized certain documents belonging to the Silverthornes and their lumber company and presented them to a grand jury that had already indicted the Silverthornes and the company. A district court ordered the return of the documents but impounded photographs and copies of the originals. Later, the prosecutor caused the grand jury to issue subpoenas duces tecum to the Silverthornes and the company to produce the originals, and their refusal to comply led to a contempt citation. In reversing the judgment, the Court held that the subpoenas were invalid because they were based on knowledge obtained from the illegally seized evidence, citing Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Mr. Justice Holmes, writing for the Court, stated that the 'essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.' 251 U.S., at 392, 40 S.Ct., at 183.
Silverthorne is distinguishable from the present case in several significant respects. There, plaintiffs in error had previously been indicted by the grand jury and thus could invoke the exclusionary rule on the basis of their status as criminal defendants. Moreover, the Government's interest in recapturing the original documents' was founded on a belief that they might be useful in the criminal prosecution already authorized by the grand jury. It did not appear that the grand jury neeed the documents to perform its investigative or accusatorial functions. Thus, the primary consequence of the Court's decision was to exclude the evidence from the subsequent criminal trial. Finally, prior to the issuance of the grand jury subpoenas, there had been a judicial determination that the search and seizure were illegal. The claim of plaintiffs in error was not raised for the first time in a pre-indictment motion to suppress requiring interruption of grand jury proceedings.
By contrast, in the instant case respondent had not been indicted by the grand jury and was not a criminal defendant. Under traditional principles, he had no standing to invoke the exclusionary rule. The effect of the District Court's order was to deprive the grand jury of testimony it needed to conduct its investigation. Furthermore, respondent's motion to suppress had not been previously made and required interruption of the grand jury proceedings. In these circumstances, Silverthorne is certainly not controlling. To the extent that the Court's broad dictum might be construed to suggest a different result in the present case, we note that it has been substantially undermined by later cases. See Parts III and IV of this opinion.
9
At oral argument, counsel for respondent stated the contention as follows:
'I submit to the Court that each question asked of the Respondent before the Grand Jury, which question was only asked because of a past violation of the Fourth Amendment, (amounts to) a new, immediate violation of the Fourth Amendment . . .. (A) question derived from a past violation, a question into the privacy of the witness amounts to another intrusion in violation of the Fourth Amendment.' Tr. of Oral Arg. 17.
'(R)efusing to answer a question in which the question conceivably is derived from a past violation of the Fourth Amendment, gives rise to an additional or new Fourth Amendment right to resist answering that question because the question itself becomes an additional intrusion . . ..' Tr. of Oral Arg. 19 20.
10
It should be noted that, even absent the exclusionary rule, a grand jury witness may have other remedies to redress the injury to his privacy and to prevent a further invasion in the future. He may be entitled to maintain a cause of action for damages against the officers who conducted the unlawful search. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). He may also seek ruturn of the illegally seized property, and exclusion of the property and its fruits from being used as evidence against him in a criminal trial. Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931). In these circumstances, we cannot say that such a witness is necessarily left remediless in the face of an unlawful search and seizure.
11
The dissent's reliance on Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972), is misplaced. There, the Court construed 18 U.S.C. § 2515, the evidentiary prohibition of Tit. III of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 211, as amended, 18 U.S.C. §§ 2510 2520. It held that § 2515 could be invoked by a grand jury witness as a defense to a contempt charge brought for refusal to answer questions based on information obtained from the witness' communications alleged to have been unlawfully intercepted through wiretapping and electronic surveillance. The Court's holding rested exclusively on the interpretation of Tit. III, which represented a congressional effort to afford special safeguards against the unique problems posed by misuse of wiretapping and electronic surveillance. There was no indication, in either Gelbard or the legislative history, that Tit. III was regarded as a restatement of existing law with respect to grand jury proceedings. As Mr. Justice White noted in his concurring opinion in Gelbard, Tit. III, 'unquestionably works a change in the law with respect to the rights of grand jury witnesses . . .' 408 U.S., at 70, 92 S.Ct., at 2372.
The dissent also voices concern that today's decision will betray "the imperative of judicial integrity," sanction 'illegal government conduct,' and even 'imperil the very foundation of our people's trust in their Government.' Post, at 360. There is no basis for this alarm. 'Illegal conduct' is hardly sanctioned, nor are the foundations of the Republic imperilled, by declining to make an unprecedented extension of the exclusionary rule to grand jury proceedings where the rule's objectives would not be effectively served and where other important and historic values would be unduly prejudiced. Cf. Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); and cases cited supra, at 347—348.
1
Neither the Silverthorne Lumber Co., because it was a corporation, see Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906), nor respondent, because he was granted transactional immunity, could invoke the privilege against self-incrimination. The situations are therefore completely comparable.
2
The Court also argues that '(t)he (Silverthorne's claim) was not raised for the first time in a pre-indictment motion to suppress requiring interruption of grand jury proceedings,' ante, at 352 n. 8, and therefore presumably its assertion occasioned no delay. However, the District Court in Silverthorne had granted an earlier application for return of the seized documents from the grand jury after determining that they had been obtained in violation of the Fourth Amendment. This Court made no intimation that the District Court acted improperly in considering the initial application.
| 01
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414 U.S. 368
94 S.Ct. 629
38 L.Ed.2d 583
GATEWAY COAL COMPANY, Petitioner,v.UNITED MINE WORKERS OF AMERICA et al.
No. 72—782.
Argued Oct. 15, 1973.
Decided Jan. 8, 1974.
Syllabus
Certain foremen at petitioner company's coal mine were suspended for falsifying records to show no reduction in airflow at the mine when in fact the airflow had been substantially reduced because of the collapse of a ventilation structure. When the company reinstated the foremen while criminal charges were pending against them, the miners, who are represented by respondent union, struck to protest the alleged safety hazard created by retention of the foremen. The union refused the company's offer to arbitrate. The company then brought this action under § 301 of the Labor Management Relations Act, contending that the broad arbitration clause of the collective-bargaining agreement governed the dispute. The District Court issued a preliminary injunction requiring the union to end the strike and submit to arbitration, and ordered suspension of the two foremen pending the arbitral decision. The Court of Appeals reversed and vacated the injunction, holding that there was a public policy disfavoring compulsory arbitration of safety disputes and that, absent an express provision of the collective-bargaining agreement, the union had no contractual duty to submit the controversy to arbitration and hence no implied obligation not to strike. Held:
1. The arbitration clause of the collective-bargaining agreement covering, inter alia, 'any local trouble of any kind aris(ing) at the mine,' is sufficiently broad to encompass the instant dispute, the foremen's continued presence in the mine being plainly a local issue. Pp. 374—380.
(a) On its face such contractual language admits of only one interpretation: that the agreement required the union to submit this dispute to arbitration for resolution by an impartial umpire. P. 376.
(b) The 'presumption of arbitrability' (an order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute, and doubts should be resolved in favor of coverage), United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403; United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409; United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424, applies to safety disputes. Pp. 377—380.
2. The duty to arbitrate imposed by the collective-bargaining agreement gave rise to an implied no-strike obligation supporting issuance of an injunction against a work stoppage since, in the absence of an explicit expression negating any implied no-strike obligation, the agreement to arbitrate and the duty not to strike should be construed as having coterminous application. Pp. 380 384.
3. On the facts, § 502 of the Labor Management Relations Act providing that the quitting of labor by employees in good faith because of abnormally dangerous conditions for work shall not be deemed a strike, did not deprive the District Court of authority to enforce the no-strike obligation, the suspension of the foremen pending a final arbitral decision having eliminated any safety issue. Pp. 385—387.
4. The circumstances of this case satisfy the traditional equitable considerations controlling the availability of injunctive relief, Boys Markets, Inc. v. Retail Clerk's Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199, the District Court finding that the union's continued breach of its no-strike obligation would irreparably harm the petitioner, and eliminating any safety issue by suspending the foremen pending a final arbitral decision. P. 387.
466 F.2d 1157, reversed.
Leonard L. Scheinholtz, Pittsburgh, Pa., for petitioner.
Joseph A. Yablonski, Washington, D.C., for respondents.
Mr. Justice POWELL delivered the opinion of the Court.
1
This case involves a labor dispute over safety conditions between Gateway Coal Co. and United Mine Workers of America. The questions presented are of considerable importance to the development of federal policy regarding arbitration of safety disputes and enforcement of a contractual duty not to strike.
2
* Gateway Coal Co. (the company) owns and operates a large underground coal mine known as the Gateway Mine, in Greene County, Pennsylvania. Some 550 production and maintenance workers, employed by the company, are represented for purposes of collective bargaining by United Mine Workers of America (the union), including its administrative division, District No. 4, and Local No. 6330.
3
On the morning of April 15, 1971, shortly before the daylight shift at the mine reported for work, a shuttle car operator on the departing midnight shift noticed an unusually low airflow in his section of the mine. His foreman made an anemometer check and discovered an airflow of only 11,000 cubic feet per minute, less than half the normal rate of 28,000 cubic feet per minute.1 The company evacuated the men from the mine and ordered the day shift employees to stand by on the surface. An ensuing investigation revealed that the collapse of a ventilation structure had partially blocked an intake airway. Immediate repairs restored normal airflow, and underground mining operations resumed. In the meantime, however, some 100 of the 226 day-shift employees had disregarded the company's instructions to stand by and had gone home.
4
The following morning the union requested reporting pay for those employees who did not stand by as ordered on April 15, but the company refused. The union rejected the company's offer to arbitrate this dispute, and the miners on all three shifts walked off the job.
5
On April 17, pursuant to a union request, state and federal inspectors visited the mine to determine the adequacy of the repairs. The investigation revealed that, although collapse of the ventilation structure apparently occurred between 4 and 4:30 on the morning of April 15, records of the anemometer checks purportedly made by three foremen sometime between 5 a.m. and 8 a.m. disclosed no reduction in airflow.2 The state inspector impounded the book of entries and notified the company that he would press criminal charges against the three foremen for falsification of the records. The company immediately suspended two of the men but decided against suspension of the third because he had reported the trouble.
6
On Sunday, April 18, about 200 company miners attended a special union meeting and voted not to work unless the company suspended all three foremen. The company acquiesced in this demand, and the following Monday the miners returned to work. Criminal prosecutions were instituted against the three foremen, and the Pennsylvania Department of Environmental Resources undertook consideration of possible decertification proceedings against them.
7
On May 29, while the criminal charges were still pending, the company received word from the Department that it was at liberty to return the three foremen to work if it so desired.3 One of the three had retired during his suspension, but the company reinstated the other two and scheduled them to resume work on the midnight shift on June 1. On that date, miners on all three shifts struck to protest the alleged safety hazard created by the presence of the two foremen in the mines. On June 8, the company formally offered to arbitrate this dispute, but the union refused. Subsequently, the two foremen pleaded nolo contendere to the criminal charges for falsification of the records and paid fines of $200 each.
8
Faced with a continuing strike and a refusal to arbitrate, the company invoked the jurisdiction of the District Court under § 301 of the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U.S.C. § 185. It argued that the broad arbitration clause of the collective-bargaining agreement governed this dispute and requested an injunction against continuance of the strike. In a temporary restraining order later converted into a preliminary injunction, the District Court required the union to end the strike and to submit the dispute to an impartial umpire without delay.4 The order further provided for suspension of the two foremen pending the umpire's decision and prospectively required both parties to abide by his resolution of the controversy.
9
On appeal, the Court of Appeals for the Third Circuit, with one judge dissenting, reversed the judgment of the District Court and vacated the preliminary injunction.5 466 F.2d 1157 (1972). The court intimated that a special provision of the collective-bargaining agreement involved here might be construed to remove safety disputes from the coverage of the general arbitration clause and reasoned that, in any event, the usual federal policy favoring arbitration of labor relations disputes did not apply to questions concerning safety. Id., at 1159—1160. Relying in part on § 502 of the Labor Management Relations Act, 29 U.S.C. § 143, the court found that there was a public policy disfavoring compulsory arbitration of safety disputes. Since it was 'neither particularly stated nor unambiguously agreed in the labor contract that the parties shall submit mine safety disputes to binding arbitration,' the Court of Appeals concluded that the union had no contractual duty to submit this controversy to arbitration and hence no implied obligation not to strike. 466 F.2d, at 1159. Perceiving no wrong to enjoin, the court found it unnecessary to consider whether injunctive relief in this case was appropriate under the traditional considerations of equity set forth by this Court in Boys Markets, Inc. v. Retail Clerk's Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). We granted certiorari, 410 U.S. 953, 93 S.Ct. 1418, 35 L.Ed.2d 686 (1973).
10
This case presents three questions. First, did the collective-bargaining agreement then in force between these parties impose on them a compulsory duty to submit safety disputes to arbitration by an impartial umpire? Second, if so, did that duty to arbitrate give rise to an implied no-strike obligation supporting issuance of a Boys Markets injunction? Third, did the circumstances of this case satisfy the traditional equitable considerations controlling the availability of injunctive relief? We answer all three questions in the affirmative and accordingly reverse the judgment below.
II
11
No obligation to arbitrate a labor dispute arises solely by operation of law. The law compels a party to submit his grievance to arbitration only if he has contracted to do so. At all times material to this case, the parties were bound by the National Bituminous Coal Wage Agreement of 1968 (the agreement). The section of the agreement entitled 'Settlement of Local and District Disputes'6 provides for resolution of grievances by direct negotiation between the parties and ultimately, should such negotiations fail, for arbitration by an impartial umpire 'mutually agreed upon by the operator or operators affected and . . . the United Mine Workers of America.' The section further states that the 'decision of the umpire shall be final.' This arbitration clause governs disputes 'as to the meaning and application of the provisions of this agreement,' disputes 'about matters not specifically mentioned in this agreement,' and 'any local trouble of any kind aris(ing) at the mine.' Paragraph 3 of the 'Miscellaneous' section of the agreement7 states that both parties 'agree and affirm . . . that all disputes and claims which are not settled by agreement shall be settled by the machinery provided in the 'Settlement of Local and District Disputes' section . . ..' It excepts from the arbitration obligation only those disputes 'national in character.'
12
This arbitration provision appears sufficiently broad to encompass the instant dispute. The contractual obligation reaches 'any local trouble of any kind aris(ing) at the mine,' and the continued presence in Gateway Mine of two particular foremen is plainly a local issue. On its face, this contractual language admits of only one interpretation: that the agreement required the union to submit this dispute to arbitration for resolution by an impartial umpire.
13
The Court of Appeals avoided this conclusion by reference to an assumed public policy disfavoring arbitration of safety disputes. The majority of that court recognized that the usual federal policy encourages arbitration of labor disputes but reasoned that this presumption of arbitrability applies only to disagreements over 'wages, hours, seniority, vacations and other economic matters.' 466 F.2d, at 1159. The court thought that safety disputes should be treated as sui generis, and concluded that it should 'reject any avoidable construction of a labor contract as requiring final disposition of safety disputes by arbitration.'8 Id., at 1160. We disagree.
14
The federal policy favoring arbitration of labor disputes is firmly grounded in congressional command. Section 203(d) of the Labor Management Relations Act, 29 U.S.C. § 173(d), states in part:
15
'Final adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement.'
16
In the Steelworkers trilogy,9 this Court enunciated the now well-known presumption of arbitrability for labor disputes:
17
'An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.' United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582—583, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960).
18
The Court also elaborated the basis for this policy. It noted that commercial arbitration and labor arbitration have different objectives. In the former case, arbitration takes the place of litigation, while in the latter 'arbitration is the substitute for industrial strife.' Id., at 578, 80 S.Ct., at 1351. A collective-bargaining agreement cannot define every minute aspect of the complex and continuing relationship between the parties. Arbitration provides a method for resolving the unforeseen disagreements that inevitably arise. And in resolving such disputes, the labor arbitrator necessarily and appropriately has resort to considerations foreign to the courts:
19
'The labor arbitrator's source of law is not confined to the express provisions of the contract, as the industrial common law—the practices of the industry and the shop—is equally a part of the collective bargaining agreement although not expressed in it. The labor arbitrator is usually chosen because of the parties' confidence in his knowledge of the common law of the shop and their trust in his personal judgment to bring to bear considerations which are not expressed in the contract as criteria for judgment. The parties expect that his judgment of a particular grievance will reflect not only what the contract says but, insofar as the collective bargaining agreement permits, such factors as the effect upon productivity of a particular result, its consequence to the morale of the shop, his judgment whether tensions will be heightened or diminished. For the parties' objective in using the arbitration process is primarily to further their common goal of uninterrupted production under the agreement, to make the agreement serve their specialized needs.' Id., at 581—582, 80 S.Ct., at 1352, 1353.
20
We think these remarks are as applicable to labor disputes touching the safety of the employees as to other varieties of disagreement. Certainly industrial strife may as easily result from unresolved controversies on safety matters as from those on other subjects, with the same unhappy consequences of lost pay, curtailed production, and economic instability. Moreover, the special expertise of the labor arbitrator, with his knowledge of the common law of the shop, is as important to the one case as to the other, and the need to consider such factors as productivity and worker morale is as readily apparent.
21
The Court of Appeals majority feared that an arbitrator might be too grudging in his appreciation of the workers' interest in their own safety. We see little justification for the court's assumption, especially since the parties are always free to choose an arbitrator whose knowledge and judgment they trust. We also disagree with the implicit assumption that the alternative to arbitration holds greater promise for the protection of employees. Relegating safety disputes to the arena of economic combat offers no greater assurance that the ultimate resolution will ensure employee safety. Indeed, the safety of the workshop would then depend on the relative economic strength of the parties rather than on an informed and impartial assessment of the facts.
22
We therefore conclude that the 'presumption of arbitrability' announced in the Steelworkers trilogy applies to safety disputes, and that the dispute in the instant case is covered by the arbitration clause in the parties' collective-bargaining agreement.10
III
23
The second question is whether the District Court had authority to enjoin the work stoppage. The answer depends on whether the union was under a contractual duty not to strike. In Boys Markets, Inc. v. Retail Clerk's Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), the Court considered the proper accommodation between the literal terms of § 4 of the Norris-LaGuardia Act11 and the subsequently enacted provisions of § 301(a) of the Labor Management Relations Act.12 The Court noted the shift in congressional emphasis 'from protection of the nascent labor movement to the encouragement of collective bargaining and to administrative techniques for the peaceful resolution of industrial disputes.' 398 U.S., at 251, 90 S.Ct., at 1593. It concluded that § 301(a) empowers a federal court to enjoin violations of a contractual duty not to strike.
24
Although the collective bargaining-argument in Boys Markets contained an express no-strike clause,13 injunctive relief also may be granted on the basis of an implied undertaking not to strike. In Teamsters Local 174 v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962), the Court held that a contractual commitment to submit disagreements to final and binding arbitration gives rise to an implied obligation not to strike over such disputes.14 Indeed, the strong federal policy favoring arbitration of labor disputes was the linchpin of this Court's reasoning in Boys Markets. Denial of all equitable relief for breaches of no-strike obligations would have carried 'devastating implications for the enforceability of arbitration agreements.' 398 U.S., at 247, 90 S.Ct., at 1591. As Mr. Justice Brennan stated for the Court in that case:
25
'(A) no-strike obligation, express or implied, is the quid pro quo for an undertaking by the employer to submit grievance disputes to the process of arbitration. . . . Any incentive for employers to enter into such an arrangement is necessarily dissipated if the principal and most expeditious method by which the no-strike obligation can be enforced is eliminated.' Id., at 248, 90 S.Ct., at 1591. (Citation omitted.)
26
Thus, an arbitration agreement is usually linked with a concurrent no-strike obligation, but the two issues remain analytically distinct. Ultimately, each depends on the intent of the contracting parties. It would be unusual, but certainly permissible, for the parties to agree to a broad mandatory arbitration provision yet expressly negate any implied no-strike obligation. Such a contract would reinstate the situation commonly existing before our decision in Boys Markets. Absent an explicit expression of such an intention, however, the agreement to arbitrate and the duty not to strike should be construed as having coterminous application.
27
In the present case, the Court of Appeals identified two provisions which it thought excepted safety disputes from the general no-strike obligation. The first is § (e) of the collective-bargaining agreement, which provides for a union mine safety committee at each mine. As this section was thought central to the outcome of this case, we set forth the relevant provisions in full:
28
'The mine safety committee may inspect any mine development or equipment used in producing coal. If the committee believes conditions found endanger the life (sic) and bodies of the mine workers, it shall report its findings and recommendations to the management. In those special instances where the committee believes an immediate danger exists and the committee recommends that the management remove all mine workers from the unsafe area, the operator is required to follow the recommendation of the committee.
29
'If the safety committee in closing down an unsafe area acts arbitrarily and capriciously, members of such committee may be removed from the committee. Grievances that may arise as a result of a request for removal of a member of the safety committee under this section shall be handled in accordance with the provisions providing for settlement of disputes.' App. 12a.
30
The union contends that this provision reserves to the workers the right to strike over safety disputes and also that the committee's determination of 'immediate danger' may be wholly subjective and without foundation in fact. In short, the safety committee may object to any aspect of mine operation as an 'immediate danger' and call the workers off the job to force whatever changes it proposes. The union further argues that since the exercise of this option cannot constitute a breach of the collective-bargaining agreement, the District Court had no wrong to enjoin.
31
We need not decide whether § (e) is subject to such an expansive reading, for, as the District Court found, that section was never invoked in this controversy. The safety committee did inspect the mine to determine the cause of the ventilation failure, but there was no showing that it ever reported findings or made recommendations to the company management. Nor was there any showing that the committee found conditions dangerous to the 'life (sic) and bodies of the mine workers' or which, if any, of its members formed the requisite belief in the existence of 'an immediate danger.'
32
The Court of Appeals majority apparently believed that the vote by the local membership, the body superior to the union safety committee, constituted substantial compliance with the purpose and intent of § (e) and obviated any need for compliance with the formal procedure. As a matter of simple contractual interpretation, we think that proposition doubtful. Under the union's construction of § (e), the committee's good-faith belief in the existence of an immediate danger, no matter how unfounded that view, is conclusive. The management's only recourse against arbitrary and capricious decisions by the committee is to seek removal of the offending members. Circumvention of the procedures of § (e), including a formal vote by the committee members, thus removes the only deterrent to unreasonable action by the committee. Given this circumstance, one would not lightly assume that failure to follow the specific procedures outlined in § (e) is somehow de minimis. In any event, whether the union properly invoked this provision is a substantial question of contractual interpretation, and the collective-bargaining agreement explicitly commits to resolution by an impartial umpire all disagreements 'as to the meaning and application of the provisions of this agreement.'15
33
The Court of Appeals majority also based its denial of injunctive relief on § 502 of the Labor Management Relations Act, 29 U.S.C. § 143, which provides in part:
34
'(N)or shall the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment of such employee or employees be deemed a strike under this chapter.'
35
This section provides a limited exception to an express or implied no-strike obligation. The Court of Appeals held that 'a refusal to work because of good faith apprehension of physical danger is protected activity and not enjoinable, even where the employees have subscribed to a comprehensive no-strike clause in their labor contract.' 466 F.2d at 1160. We agree with the main thrust of this statement—that a work stoppage called solely to protect employees from immediate danger is authorized by § 502 and cannot be the basis for either a damages award or a Boys Markets injunction.
36
The Court of Appeals majority erred, however, in concluding that an honest belief, no matter how unjustified, in the existence of 'abnormally dangerous conditions for work' necessarily invokes the protection of § 502. If the courts require no objective evidence that such conditions actually obtain, they face a wholly speculative inquiry into the motives of the workers. As Judge Rosenn pointed out in his dissent from the judgment below, the difficulty occasioned by this view is especially apparent where, as here, the claim concerns not some identifiable, presently existing threat to the employees' safety, but rather a generalized doubt in the competence and integrity of company supervisors.16 Any employee who believes a supervisor or fellow worker incompetent and who honestly fears that at some future time he may commit some unspecified mistake creating a safety hazard could demand his colleague's discharge and walk off the job despite the contractual agreement not to do so. Absent the most explicit statutory command, we are unwilling to conclude that Congress intended the public policy favoring arbitration and peaceful resolution of labor disputes to be circumvented by so slender a thread as subjective judgment, however honest it may be. We agree with Judge Rosenn that a union seeking to justify a contractually prohibited work stoppage under s 502 must present 'ascertainable, objective evidence supporting its conclusion that an abnormally dangerous condition for work exists.' 466 F.2d, at 1162. We find this reading of the statute consistent both with common sense and with its previous application. See, e.g., Philadelphia Marine Trade Assn. v. NLRB, 330 F.2d 492 (CA3), cert. denied sub nom. International Longshoremen's Assn., Local 1242 v. NLRB, 379 U.S. 833, 85 S.Ct. 65, 13 L.Ed.2d 41 and Local 1566, International Longshoremen's Assn., AFL—CIO v. NLRB, 379 U.S. 841, 85 S.Ct. 79, 13 L.Ed.2d 47 (1964); NLRB v. Fruin-Colnon Construction Co., 330 F.2d 885 (CA8 1964); NLRB v. Knight Morley Corp., 251 F.2d 753 (CA6 1957), cert. denied, 357 U.S. 927, 78 S.Ct. 1372, 2 L.Ed.2d 1370 (1958); Redwing Carriers, Inc., 130 N.L.R.B. 1208 (1961), enf'd as modified, Teamsters, Chauffeurs and Helpers Local Union No. 79, etc. v. NLRB, 117 U.S.App.D.C. 84, 325 F.2d 1011 (1963), cert. denied, 377 U.S. 905, 84 S.Ct. 1165, 12 L.Ed.2d 176 (1964).
IV
37
On the facts of this case, we think it clear that § 502 did not deprive the District Court of authority to enforce the contractual no-strike obligation. The union inferred from the foremen's failure to record the reduced airflow on the morning of April 15 that their return to the job created an abnormally dangerous working condition. One may doubt whether this assertion alone could suffice to invoke the special protection of § 502. In any event, the District Court resolved the issue by expressly conditioning injunctive relief on the suspension of the two foremen pending decision by the impartial umpire.
38
For similar reasons, it is also evident that injunctive relief was appropriate in the present case under the equitable principles set forth in Boys Markets, Inc. v. Retail Clerk's Union, 398 U.S., at 254, 90 S.Ct., at 1594. The District Court found that the union's continued breach of its no-strike obligation would cause irreparable harm to the petitioner. It eliminated any safety issue by suspending the two foremen pending a final arbitral decision. In these circumstances, we cannot say that the District Court abused its discretion.
39
The judgment of the Court of Appeals is reversed.
40
Mr. Justice DOUGLAS, dissenting.
41
* The dispute in this labor case does not involve hourly wages, pension benefits, or the like. It involves the life and death of the workers in the most dangerous occupation in America.1 The history of the coal miner is a history of fatal catastrophes, which have prompted special protective legislation.2 Nor was the mine involved here an exception. It is classified by the United States Bureau of Mines as 'especially hazardous,' triggering special inspection procedures to insure the safety of the men who work it. Federal Coal Mine Health and Safety Act of 1969, § 103(i), 83 Stat. 750, 30 U.S.C. § 813(i). Congress has received testimony about safety problems at this mine in which the workers, a year before this dispute, complained of the supervisors' negligence in safety matters, particularly their practice of 'not testing for gas.'3 At those hearings Senator Harrison Williams, the principal author of the 1969 mine safety act, commented that the enforcement performance of the United States Bureau of Mines was 'outrageous . . . just plain unbelievable.'4
42
It was in the context of this history that the workers discovered that three of their foremen had negligently failed to check and record the airflow in the mine before the daylight shift began, as was their duty. Instead they made false entries in their log books. As a result, they had not discovered that the airflow in the mine was 11,000 cubic feet per minute rather than the normal 28,000. Reduced airflow can result in a buildup of methane gas, creating conditions for accidental explosions resulting from the operation of normal mining equipment. The workers walked off the job and refused to return unless the foremen were removed. The majority passes off the workers' concern here as only 'a generalized doubt in the competence and integrity of company supervisors' as if there were only unfounded fears about a few men in an operation with an exemplary safety record. Yet the foremen in question pleaded nolo contendere to state charges of falsifying the records involved in this incident, and their admitted misfeasance is precisely the kind of reckless disregard for the miners' safety which permeates the history of this industry.
43
In response to this history, the union obtained, in the collective-bargaining agreement in force during this incident, a provision for a union 'mine safety committee' with the authority to present the mine operator with a binding 'recommendation' that all workers be removed from an unsafe mine area. The agreement provides no recourse for the operator in disagreement with the committee's determinations, although he may subsequently seek removal from the committee of members he believes to have acted arbitrarily. Yet it is clear from this provision that the union reserved to itself the authority to determine that a mine be closed because of safety hazards. Although there is an explicit provision that a dispute over whether a committee member should be removed is arbitrable, there is no such provision for arbitration if the mine operator disagrees with the committee's recommendation. The inescapable inference, absent any contrary presumption, is that this question is not subject to arbitration.5 And in what clearly appears to be a buttress to the union's authority in this matter, all no-strike provisions from prior contracts were explicitly excluded from the agreement in question here, which contains no such commitment on the part of the union.
44
This is the contractual context in which the employer brought this action, under § 301 of the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U.S.C. § 185, to compel arbitration of the safety dispute and enjoin the work stoppage. It is, of course, clearly established that because of congressional policy favoring arbitration of labor disputes, a general arbitration provision, as found in the agreement here in question, is broadly construed. Steelworkers trilogy (United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403; United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409; United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424.) This policy is grounded, as the majority points out, in the expression of policy by Labor Management Relations Act. And once a dispute is determined to be arbitrable, there is an implied agreement by the union not to strike, Teamsters Local 174 v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593, which is enforceable by a federal court injunction under the principles enunciated in Boys Markets, Inc. v. Retail Clerk's Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199, because of the close relationship between the duty to arbitrate and the duty not to strike. Lucas Flour, supra, at 104—106, 82 S.Ct., at 577; Boys Markets, supra, at 247—249, 90 S.Ct., at 1590.
45
Yet this whole scheme, grounded as it is on congressional expression of policy, must allow for any congressionally indicated exceptions to that policy. In a § 301 suit the federal courts are to apply federal law 'which the courts must fashion from the policy of our national labor laws.' Textile Workers v. Lincoln Mills, 353 U.S. 448, 456, 77 S.Ct. 912, 918, 1 L.Ed.2d 972. Although the 'presumption of arbitrability' might be sufficient in the ordinary case to overcome the contrary implications in the collective-bargaining agreement involved here, I find that presumption seriously weakened in the area of safety disputes by § 502 of the Labor Management Relations Act, 29 U.S.C. § 143, which expressly shields walk-offs by workers concerned for their safety: That section reads in part: '(N)or shall the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment of such employee or employees be deemed a strike under this chapter.' Although there is nothing in the legislative history of this section to shed light on its purpose, the words of the section are themselves fairly clear. They recognize in the law what is in any case an unavoidable principle of human behavior: self preservation. As Judge Hastie said for the majority in the Court of Appeals: 'Men are not wont to submit matters of life or death to arbitration . . ..' 466 F.2d 1157, 1160.
46
This is an area involving 'the penumbra of express statutory mandates' to be solved 'by looking at the policy of the legislation and fashioning a remedy that will effectuate that policy.' Lincoln Mills, supra, at 457, 77 S.Ct., at 918. Although there is a general policy favoring arbitration, I do not find that Congress intended to extend that policy here. Application of the 'presumption of arbitrability' is not inevitable in every labor dispute. But miners' determination to act to protect their own safety is as inevitable in labor disputes as elsewhere. Absent any presumption, I cannot find that the dispute here was arbitrable or that the union was under any duty not to strike. It follows then, as the Court of Appeals found, that there was no wrong to remedy.
II
47
Congress in 1969 set up pervasive administrative controls over working and environmental conditions with the coal mines,6 83 Stat. 742. The need for a more effective regulatory scheme was described in H.R.Rep.No.91—563; 1970 U.S.C.ode Cong. & Admin.News, p. 2503. The 1969 Act states in its findings and purpose that 'the first priority and concern of all in the coal mining industry must be the health and safety of its most precious resource—the minor.' § 2(a), 30 U.S.C. § 801(a). Ease of investigating mines was insured. The Act provides that when a representative of the miners believes that a violation of a mandatory standard exists and an imminent danger exists, the right of immediate inspection is given the Federal Government. § 103(g), 30 U.S.C. § 813(g). The Secretary of the Interior may make a spot investigation of a mine for five working days when he believes hazardous conditions exist. § 103(i), 30 U.S.C. § 813(i). Once a hazardous condition is found the Secretary can order that all miners be evacuated from the area and prohibited from entering it. § 104(a), 30 U.S.C. § 814(a). The Secretary can abate mining in incipient or potential mining areas, § 105, 30 U.S.C. § 815; and his orders are within limits subject to judicial review by the miners as well as by the operators, § 106, 30 U.S.C. § 816.
48
Detailed ventilating requirements are placed in the Act, § 303, 30 U.S.C. § 863; and examinations of each mine must be made within 'three hours immediately preceding the beginning of any shift.' § 303(d)(1), 30 U.S.C. § 863(d)(1). Examinations for hazardous conditions must be made at least once a week, § 303(f), 30 U.S.C. § 863(f); and weekly investigations of ventilating conditions must be made and various monitors which detect dangerous gases must be installed, § 303(l), 30 U.S.C. § 863(l). The regulatory scheme covers the subject matter in minute detail.
49
Penalties run against operators of mines and also against miners who violate in specified ways 'mandatory safety standards.' Compensation of miners laid off by closed mines is provided, § 110(a), 30 U.S.C. § 820(a); and miners are protected against discharge or other discrimination by protests they have made against the operations by testimony they have given. § 110(b), 30 U.S.C. § 820(b).
50
Title IV of the Act treats disability payments and payments for the death of miners. It bolsters state workmen's compensation laws and makes the owners liable, through self-insurance or through liability insurance, where an adequate state law does not exist, § 423, 30 U.S.C. § 933. State laws inconsistent with the federal act are suspended; but state laws which provide more stringent standards or controls survive, § 506, 30 U.S.C. § 955.
51
A close reading of this Act convinces me that it must displace all agreements to arbitrate safety conditions. It is in that respect a more extreme case than United States Bulk Carriers v. Arguelles, 400 U.S. 351, 91 S.Ct. 409, 27 L.Ed.2d 456, where we held that a federal statute giving seamen a specific judicial remedy was not displaced by arbitration. When it comes to health, safety of life, or determination of environmental conditions within the mines, Congress has pre-empted the field. An arbiter is no part of the paraphernalia described in the Act. An arbiter seeks a compromise, an adjustment, an accommodation. There is no mandate in arbitration to apply a specific law. Those named in the present Act who construe, apply, and formulate the law are the Secretary and the courts.
52
Moreover, arbitration awards might compromise administration of the 1969 Act. Rulings of arbiters might not jibe with rulings of the Secretary. Rulings of the arbiters might even color claims for compensation or damages by negativing the very basis of liability either in workmen's compensation acts or in state lawsuits for damages.
53
Hence, though I disagree with the way in which the Court reads this particular arbitration clause, I conclude that even though the collective-bargaining agreement is read to authorize arbitration, the 1969 Act precludes it. The 1969 Act specifies the arms of the law which handle these matters of safety of mines. Congress has given arbiters no share of the power.
1
While this reduced airflow undoubtedly increased the accumulation of coal dust and flammable gas in the mine, it still exceeded the state ventilation requirement of 6,000 cubic feet per minute, Pa. Bituminous Coal Minn Act, Pub.L. 659 (1961), Pa.Stat.Ann., Tit. 52, § 701—242(b) (1966), and the federal requirement of 9,000 cubic feet per minute, Federal Coal Mine Health and Safety Act of 1969, § 303(b), 83 Stat. 767, 30 U.S.C. § 863(b).
2
Section 303(d)(1) of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 863(d)(1), requires such inspections within three hours immediately prior to the beginning of any shift.
3
After its investigation, the Department concluded that:
'In view of the satisfactory record and good performance of these foreman (sic) in the past and the pending legal action, we feel that no further action should be taken in this matter. The coal company is at liberty to return the three (3) assistant foreman (sic) to work if it so desires.' App. 16a—17a.
4
The District Court found that the present work stoppage was occasioned by a safety dispute over the reinstatement of the suspended foremen rather than by an economic dispute over reporting pay for April 15.
5
While the appeal was pending and prior to the Court of Appeals' decision, the impartial umpire rendered his decision in favor of the company and determined, inter alia, that the two foremen should be permitted to return to work. 466 F.2d 1157, 1159.
6
This section provides, in relevant part:
'Should differences aries between the Mine Workers and the operators as to the meaning and application of the provisions of this agreement, or should differences arise about matters not specifically mentioned in this agreement, or should any local trouble of any kind arise at the mine, an earnest effort shall be made to settle such differences immediately: (The parties will not be represented by legal counsel at any of the steps below.)
'1. Between the aggrieved party and the mine management.
'2. Through the management of the mine and the mine committee.
'3. Through district representatives of the United Mine Workers of America and a commissioner representative (where employed) of the coal company.
'4. By a board consisting of four members, two of whom shall be designated by the Mine Workers and two by the operators. Neither the Mine Workers' representatives on the board nor the operators' representatives on the board shall be the same persons who participated in steps (1), (2), or (3) of this procedure.
'5. Should the board fail to agree the matter shall, within twenty (20) days after decision by the board, be referred to an umpire to be mutually agreed upon by the operator or operators affected any by the duly designated representatives of the United Mine Workers of America, and the umpire so agreed upon shall expeditiously and without delay decide said case. The decision of the umpire shall be final. Expenses and salary incident to the services of an umpire shall be paid equally by the operator or operators affected and by the Mine Workers.
'A decision reached at any stage of the proceedings above outlined shall be binding on both parties hereto and shall not be subject to reopening by any other party or branch of either association except by mutual agreement.' App. 13a—14a.
7
Paragraph 3 provides:
'The United Mine Workers of America and the operators agree and affirm that they will maintain the integrity of this contract and that all disputes and claims which are not settled by agreement shall be settled by the machinery provided in the 'Settlement of Local and District Disputes' section of this agreement unless national in character in which event the parties shall settle such disputes by free collective bargaining as heretofore practiced in the industry, it being the purpose of this provision to provide for the settlement of all such disputes and claims through the machinery in this contract provided and by collective bargaining without recourse to the courts.' App. 15a.
8
In finding a public policy disfavoring arbitration of safety disputes, the court reasoned as follows:
'Considerations of economic peace that favor arbitration of ordinary disputes have little weight here. Men are not wont to submit matters of life or death to arbitration and no enlightened society encourages, much less requires, them to do so. If employees believe that correctible circumstances are unnecessarily adding to the normal dangers of their hazardous employment, there is no sound reason for requiring them to subordinate their judgment to that of an arbitrator, however impartial he may be. The arbitrator is not staking his life on his impartial decision. It should not be the policy of the law to force the employees to stake theirs on his judgment.' 466 F.2d, at 1160.
We find this analysis unpersuasive for the reasons stated in this section of our opinion.
The Court of Appeals also relied on § 502 of the Labor Management Relations Act, 29 U.S.C. § 143. Section 502 provides that 'the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work' shall not 'be deemed a strike under this chapter.' On its face, this section appears to bear more directly on the scope of the no-strike obligation than on the arbitrability of safety disputes. Indeed, there is nothing in the legislative history to suggest that § 502 was intended as a limit on arbitration. See 1 Legislative History of the Labor Management Relations Act, 1947, pp. 29, 156, 290, 436, 573, 895 (G.P.O.1948). For this reason, we reserve our discussion of § 502 until Part III of this opinion. To the extent that § 502 might be relevant to the issue of arbitrability, we find that the considerations favoring arbitrability outweigh the ambiguous import of that section in the present context.
9
United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960).
10
The Court of Appeals also found support for its refusal to order arbitration in § (e) of the collective-bargaining agreement. Section (e) provides for an employee mine safety committee empowered to inspect mine facilities and equipment and to report its findings to the management. If the committee finds an 'immediate danger,' it may make a binding recommendation to remove all workers from the unsafe area.
Although the Court of Appeals did not state that § (e) was an express exception to the arbitration clause, it evidently believed that the section created an ambiguity in the agreement which had to be resolved against arbitrability. However, as the Court stated in United Steelworkers of America v. Warrior & Gulf Navigation Co., supra, '(d)oubts should be resolved in favor of coverage.' 363 U.S., at 583, 80 S.Ct., at 1353. Thus, '(i)n the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, particularly where, as here, the exclusion clause is vague and the arbitration clause quite broad.' Id., at 584—585, 80 S.Ct., at 1354. Since § (e) clearly does not constitute an express exception to the arbitration clause, it follows that the safety dispute in the instant case must be deemed to fall within the broad arbitration clause.
The dissent maintains that the Federal Coal Mine Health and Safety Act of 1969, 83 Stat. 742, 30 U.S.C. § 801 et seq., pre-empts the field and 'displace(s) all agreement to arbitrate safety conditions.' Post, at 394. Respondents have not made this contention, and a fair reading of the Act discloses no congressional intention, either express or implied, to accomplish such a drastic result.
11
'No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute (as these terms are herein defined) from doing, whether singly or in concert, any of the following acts:
'(a) Ceasing or refusing to perform any work or to remain in any relation of employment . . ..' 47 Stat. 70, 29 U.S.C. § 104.
12
'Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.' 29 U.S.C. § 185(a).
13
398 U.S., at 239 n. 3, 90 S.Ct., at 1586.
14
Lucas Flour involved a damages action for breach of the implied no-strike obligation, while the present case involves injunctive relief. The policy reasons favoring the availability of injunctive relief, however, are equally compelling. As the Court stated in Boys Markets, Inc. v. Retail Clerk's Union, 398 U.S. 235, 248, 90 S.Ct. 1583, 1591, 26 L.Ed.2d 199 (1970):
'(A)n award of damages after a dispute has been settled is no substitute for an immediate halt to an illegal strike. Furthermore, an action for damages prosecuted during or after a labor dispute would only tend to aggravate industrial strife and delay an early resolution of the difficulties between employer and union.'
15
Respondents also argue that Paragraph 1 of the 'Miscellaneous' section of the agreement disavows any intent to impose a no-strike duty. Paragraph 1 provides:
'1. Any and all provisions in either the Appalachian Joint Wage Agreement of June 19, 1941, or the National Bituminous Coal Wage Agreement of April 11, 1945, containing any 'no strike' or 'penalty' clause or clauses or any clause denominated 'Illegal Suspension of Work' are hereby rescinded, cancelled, abrogated and made null and void.' App. 14a.
This paragraph effectively rescinds certain no-strike clauses in two prior agreements. It does not, however, purport to negate any no-strike duty created by the present agreement. As we have noted, the agreement makes arbitration the exclusive and compulsory means for finally resolving disputes. Under Teamsters Local 174 v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962), this arbitration provision gives rise to an implied no-strike duty. We do not think that Paragraph 1 can be fairly construed as an exception to that no-strike duty. Cf. Lewis v. Benedict Coal Corp., 259 F.2d 346 (CA6 1958) (Stewart, J.), affirmed by an equally divided Court sub nom. United Mine Workers of America v. Benedict Coal Corp., 361 U.S. 459, 80 S.Ct. 489, 4 L.Ed.2d 442 (1960).
16
Judge Rosenn contended with justification that a wholly subjective test would open 'new and hazardous avenues in labor relations for unrest and strikes.' He stated: 'This test will require a court to accept the naked assertion of an employee that the presence of an of his fellow employees in a plant constitutes a safety hazard. If employees may label another employee a working risk and thereupon engage in a work stoppage which, because of its characterization as a safety strike, is unreviewable by arbitration or court, no employer can expect stability in labor relations. Moreover, each employee is the possible victim of the attitudes, fancies and whims of his fellow employees. Unions, themselves, will be at the mercy of 'wildcatters." 466 F.2d, at 1162.
1
Bureau of Labor Statistics, Injury Rates by Industry, 1970, pp. 3, 6 (Report No. 406, 1972).
2
S.Rep.No.91—411, pp. 3—6; H.R.Rep.No.91—563, pp. 1—3; 1969 U.S.Code Cong. & Admin.News, p. 2503.
3
Hearings on Health and Safety in the Coal Mines before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 91st Cong., 2d Sess., 27, 351 (1970).
4
Id., at 191.
5
This inference is strengthened by the agreement's provisions for arbitration if the operator objected to recommendations by federal coal mine inspectors. § (b)(2) of the agreement. There would obviously be no need for this special arbitration provision if the parties felt that safety questions could be handled through the regular arbitration machinery.
Indeed the provision in question here has a long history supporting this construction. The 1946 agreement, known as the Krug-Lewis agreement, and arising from President Truman's seizure of the mines in 1946, United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884, expressly permitted union safety committees to initiate safety stoppages, although the Federal Coal Mines Administrator (Capt. N.H. Collisson), was given authority to halt such a stoppage. At hearings following the Centralia mine disaster, resulting in the death of 111 miners, Secretary of the Interior Krug testified that the meaning of the provision 'was to given the mine safety committee complete authority to get the men out of the mine, if they felt the mine was unsafe . . ..' Hearings pursuant to S.Res. 98 before a Special Subcommittee of the Senate Committee on Public Lands, 80th Cong., 1st Sess., 312. The predecessor to the current provision appeared in the National Bituminous Coal Wage Agreement of 1947, which deleted Collisson's authority to override the miners.
6
The hazards of various working conditions to the health of workers have been of great concern to Congress, its latest Act being the Occupational Safety and Health Act of 1970, 84 Stat. 1590, which in terms does not exclude employees who are in the coal-mining business. The Act looks toward increasing the quality of the environment in which employees work and of improving the workmen's compensation system under which they are protected. See Brodeur, Casualties of the Workplace, New Yorker, Nov. 19, 1973, p. 87, for an account of the industrial-medical complex that works to keep plants profitable to the owners and dangerous to the workers.
| 67
|
414 U.S. 395
94 S.Ct. 645
38 L.Ed.2d 603
UNITED STATES, Petitioner,v.Thomas E. MAZE.
No. 72—1168.
Argued Nov. 13 and 14, 1973.
Decided Jan. 8, 1974.
Syllabus
Respondent was convicted of violating the federal mail fraud statute, 18 U.S.C. § 1341, by devising a scheme to defraud through unlawfully obtaining possession from one Meredith of a credit card issued by a Louisville bank, which respondent used to obtain goods and services from motel operators in various States knowing that the operators to whom he presented the card for payment would mail the sales slips to the Louisville bank, which would in turn mail them to Meredith. Section 1341 makes it a crime, inter alia, for a person who has devised a scheme to defraud or for obtaining money or property by means of false pretenses for the purpose of executing the scheme knowingly to cause to be delivered by mail according to the direction thereon any thing delivered by the Postal Service. The Court of Appeals reversed the judgment of conviction on the ground that § 1341 was inapplicable to respondent's conduct. Held: The mailings were not sufficiently closely related to respondent's scheme to bring his conduct within the statute. Though mailings were to be directed to adjusting the accounts between respondent's victims (the motels, the Louisville bank, and Meredith), they were not for the purpose of executing the scheme embraced by the statute since that scheme had already reached fruition when respondent checked out of the motel and did not depend on which of his victims ultimately bore the loss. Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435; United States v. Sampson, 371 U.S. 75, 83 S.Ct. 173, 9 L.Ed.2d 136, distinguished. Pp. 398—405.
468 F.2d 529, affirmed.
Jewell S. Lafontant, Washington, D.C., for petitioner.
William T. Warner, Louisville, Ky., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
In February 1971 respondent Thomas E. Maze moved to Louisville, Kentucky, and there shared an apartment with Charles L. Meredith. In the spring of that year respondent's fancy lightly turned to thoughts of the sunny Southland, and he thereupon took Meredith's BankAmericard and his 1968 automobile and headed for Southern California. By presenting the BankAmericard and signing Meredith's name, respondent obtained food and lodging at motels located in California, Florida, and Louisiana. Each of these establishments transmitted to the Citizens Fidelity Bank & Trust Co. in Louisville, which had issued the BankAmericard to Meredith, the invoices representing goods and services furnished to respondent. Meredith, meanwhile, on the day after respondent's departure from Louisville, notified the Louisville bank that his credit card had been stolen.
2
Upon respondent's return to Louisville he was indicted on four counts of violation of the federal mail fraud statute, 18 U.S.C. § 1341, and one count of violation of the Dyer Act, 18 U.S.C. § 2312. The mail fraud counts of the indictment charged that respondent had devised a scheme to defraud the Louisville bank, Charles L. Meredith, and several merchants in different States by unlawfully obtaining possession of the BankAmericard issued by the Louisville bank to Meredith, and using the card to obtain goods and services. The indictment charged that respondent had obtained goods and services at four specified motels by presenting Meredith's BankAmericard for payment and representing himself to be Meredith, and that respondent knew that each merchant would cause the sales slips of the purchases to be delivered by mail to the Louisville bank which would in turn mail them to Meredith for payment. The indictment also charged that the delay in this mailing would enable the respondent to continue purchasing goods and services for an appreciable period of time.
3
Respondent was tried by a jury in the United States District Court for the Western District of Kentucky. At trial, representatives of the four motels identified the sales invoices from the transactions on Meredith's BankAmericard which were forwarded to the Louisville bank by their motels. An official of the Louisville bank testified that all of the sales invoices for those transactions were received by the bank in due course through the mail, and that this was the customary method by which invoices representing BankAmericard purchases were transmitted to the Louisville bank. The jury found respondent guilty as charged on all counts, and he appealed the judgment of conviction to the Court of Appeals for the Sixth Circuit. That court reversed the judgment as to the mail fraud statute, but affirmed it as to the Dyer Act. 468 F.2d 529 (1972).1 Because of an apparent conflict among the courts of appeals as to the circumstances under which the fraudulent use of a credit card may violate the mail fraud statute,2 we granted the Government's petition for certiorari. 411 U.S. 963, 93 S.Ct. 2145, 36 L.Ed.2d 683 (1973). For the reasons stated below, we affirm the judgment of the Court of Appeals.
4
The applicable parts of the mail fraud statute provide as follows:3
5
'Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises . . . for the purpose of executing such scheme or artifice or attempting so to do . . . knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any (matter or thing whatever to be sent or delivered by the Postal Service) shall be fined not more than $1,000 or imprisoned not more than five years, or both.' 18 U.S.C. § 1341.
6
In Pereira v. United States, 347 U.S. 1, 8—9, 74 S.Ct. 358, 363, 98 L.Ed. 435 (1954), the Court held that one 'causes' the mails to be used where he 'does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended . . ..' We assume, as did the Court of Appeals, that the evidence would support a finding by the jury that Maze 'caused' the mailings of the invoices he signed from the out-of-state motels to the Louisville bank. But the more difficult question is whether these mailings were sufficiently closely related to respondent's scheme to bring his conduct within the statute.4
7
Under the statute, the mailing must be 'for the purpose of executing the scheme, as the statute requires,' Kann v. United States, 323 U.S. 88, 94, 65 S.Ct. 148, 151, 89 L.Ed. 88 (1944), but '(i)t is not necessary that the scheme contemplate the use of the mails as an essential element,' Pereira v. United States, supra, 347 U.S. at 8, 74 S.Ct. at 362. The Government relies on Pereira, supra, and United States v. Sampson, 371 U.S. 75, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962), to support its position, while respondent relies on Kann v. United States, supra, and Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1960).
8
In Kann, supra, corporate officers and directors were accused of having set up a dummy corporation through which to divert profits of their own corporation to their own use. As a part of the scheme, the defendants were accused of having fraudulently obtained checks payable to them which were cashed or deposited at a bank and then mailed for collection to the drawee bank. This Court held that the fraud was completed at the point at which defendants cashed the checks:
9
'The scheme in each case had reached fruition. The persons intended to receive the money had received it irrevocably. It was immaterial to them, or to any consummation of the scheme, how the bank which paid or credited the check would collect from the drawee bank. It cannot be said that the mailings in question were for the purpose of executing the scheme, as the statute requires.' 323 U.S. at 94, 65 S.Ct. at 151.
10
In Parr supra, the defendants were charged, inter alia, with having obtained gasoline and other products and services for their own purposes by the unauthorized use of a gasoline credit card issued to the school district which employed them. The oil company which furnished products and services to the defendants would mail invoices to the school district for payment, and the school district's payment was made by check sent in the mail. Relying on Kann, the Court again found that there was not a sufficient connection between the mailing and the execution of the defendants' scheme, because it was immaterial to the defendants how the oil company went about collecting its payment.
11
The defendant in Pereira, supra, was charged with having defrauded a wealthy widow of her property after marrying her. The Court describes the conduct of defendant in these words:
12
'Pereira asked his then wife if she would join him in the hotel venture and advance $35,000 toward the purchase price of $78,000. She agreed. It was then agreed, between her and Pereira, that she would sell some securities that she possessed in Los Angeles, and bank the money in a bank of his choosing in El Paso. On June 15, she received the check for $35,000 on the Citizens National Bank of Los Angeles from her brokers in Los Angeles, and gave it to Pereira, who endorsed it for collection to the State National Bank of El Paso. The check cleared, and on June 18, a cashier's check for $35,000 was drawn in favor of Pereira.' 347 U.S., at 5, 74 S.Ct., at 361.
13
Thus the mailings in Pereira played a significant part in enabling the defendant in that case to acquire dominion over the $35,000, with which he ultimately absconded.5 Unlike the mailings in Pereira, the mailings here were directed to the end of adjusting accounts between the motel proprietor, the Louisville bank, and Meredith, all of whom had to a greater or lesser degree been the victims of respondent's scheme. Respondent's scheme reached fruition when he checked out of the motel, and there is no indication that the success of his scheme depended in any way on which of his victims ultimately bore the loss.6 Indeed, from his point of view, he probably would have preferred to have the invoices misplaced by the various motel personnel and never mailed at all.
14
The Government, however, relying on United States v. Sampson, supra, argues that essential to the success of any fraudulent credit-card scheme is the 'delay' caused by use of the mails 'which aids the perpetrator . . . in the continuation of a fraudulent credit card scheme and the postponement of its detection.' In Sampson, various employees of a nationwide corporation were charged with a scheme to defraud businessmen by obtaining advance fees on the promise that the defendants would either help the businessmen to obtain loans or to sell their businesses. Even after the checks representing the fees had been deposited to the accounts of the defendants, however, the plan called for the mailing of the accepted application together with a form letter assuring the victims that the services for which they had contracted would be performed. The Court found that Kann and Parr did not preclude the application of the mail fraud statute to 'a deliberate, planned use of the mails after the victims' money had been obtained.' 371 U.S., at 80, 83 S.Ct. at 176.
15
We do not believe that Sampson sustains the Government's position. The subsequent mailings there were designed to lull the victims into a false sense of security, postpone their ultimate complaint to the authorities, and therefore make the apprehension of the defendants less likely than if no mailings had taken place. But the successful completion of the mailings from the motel owners here to the Louisville bank increased the probability that respondent would be detected and apprehended. There was undoubtedly delay in transmitting invoices to the Louisville bank, as there is in the physical transmission of any business correspondence between cities separated by large distances. Mail service as a means of transmitting such correspondence from one city to another is designed to overcome the effect of the distance which separates the places. But it is the distance, and not the mail service,7 which causes the time lag in the physical transmission of such correspondence.8
16
Congress has only recently passed an amendment to the Truth in Lending Act9 which makes criminal the use of a fraudulently obtained credit card in a 'transaction affecting interstate of foreign commerce.' 84 Stat. 1127, 15 U.S.C. § 1644. Congress could have drafted the mail fraud statute so as to require only that the mails be in fact used as a result of the fraudulent scheme.10 But it did not do this; instead, it required that the use of the mails be 'for the purpose of executing such scheme or artifice . . ..' Since the mailings in this case were not for that purpose, the judgment of the Court of Appeals is
17
Affirmed.
18
Mr. Chief Justice BURGER, with whom Mr. Justice WHITE joins, dissenting.
19
I join in the dissent of Mr. Justice WHITE which follows but add a few observations on an aspect of the Court's holding which seems of some importance. Section 1341 of Title 18 U.S.C. has traditionally been used against fraudulent activity as a first line of defense. When a 'new' fraud develops—as constantly happens the mail fraud statute becomes a stopgap device to deal on a temporary basis with the new phenomenon, until particularized legislation can be developed and passed to deal directly with the evil. 'Prior to the passage of the 1933 (Securities) Act, most criminal prosecutions for fraudulent securities transactions were brought under the Federal Mail Fraud Statute.' Mathews, Criminal Prosecutions Under the Federal Securities Laws and Related Statutes: The Nature and Development of SEC Criminal Cases, 39 Geo.Wash.L.Rev. 901, 911 (1971). Loan sharks were brought to justice by means of 18 U.S.C. § 1341, Lynch, Prosecuting Loan Sharks Under the Mail Fraud Statute, 14 Ford.L.Rev. 150 (1945), before Congress, in 1968, recognized the interstate character of loansharking and the need to provide federal protection against this organized crime activity, and enacted 18 U.S.C. § 891 et seq., outlawing extortionate extensions of credit. Although inadequate to protect the buying and investing public fully, the mail fraud statute stood in the breach against frauds connected with the burgeoning sale of undeveloped real estate, until Congress could examine the problems of the land sales industry and pass into law the Interstate Land Sales Full Disclosure Act, 82 Stat. 590, 15 U.S.C. § 1701 et seq. Coffey & Welch, Federal Regulation of Land Sales: Full Disclosure Comes Down to Earth, 21 Case. W.Res.L.Rev. 5 (1969). Similarly, the mail fraud statute was used to stop credit card fraud, before Congress moved to provide particular protection by passing 15 U.S.C. § 1644.
20
The mail fraud statute continues to remain an important tool in prosecuting frauds in those areas where legislation has been passed more directly addressing the fraudulent conduct. Mail fraud counts fill pages of securities fraud indictments even today. Mathews, supra, 39 Geo.Wash.L.Rev., at 911. Despite the prevasive Government regulation of the drug industry, postal fraud statutes still play an important role in controlling the solicitation of mail-order purchases by drug distributors based upon fraudulent misrepresentations. Hart, The Postal Fraud States: Their Use and Abuse, 11 Food Drug Cosm.L.J. 245, 247, 261 (1956). Maze's interstate escapade—of which there are numberless counterparts demonstrates that the federal mail fraud statute should have a place in dealing with fraudulent credit card use even with 15 U.S.C. § 1644 on the books.
21
The criminal mail fraud statute must remain strong to be able to cope with the new varieties of fraud that the ever-inventive American 'con artist' is sure to develop. Abuses in franchising and the growing scandals from pyramid sales schemes are but some of the threats to the financial security of our citizenry that the Federal Government must be ever alert to combat. Comment, Multi-Level or Pyramid Sales Systems: Fraud or Free Enterprise, 18 S.D.L.Rev. 358 (1973).
22
The decision of the Court in this case should be viewed as limited to the narrow facts of Maze's criminal adventures on which the Court places so heavy a reliance, and to the Court's seeming desire not to flood the federal courts with a multitude of prosecutions for relatively minor acts of credit card misrepresentation considered as more appropriately the business of the States. The Court of Appeals, whose judgment is today affirmed, was careful to state that '(w)e do not hold that the fraudulent use of a credit card can never constitute a violation of the mail fraud statute.' 468 F.2d 529, 536 (C.A.6 1972). The Court's decision, then, correct or erroneous, does not mean that the United States ought, in any way, to slacken its prosecutorial efforts under 18 U.S.C. § 1341 against those who would use the mails in schemes to defraud the guileless members of the public with worthless securities, patent medicines, deeds to arid and inaccessible tracts of land, or other empty promises of instant wealth and happiness. I agree with Mr. Justice WHITE that the judgment of the Court of Appeals was error and should be reversed.
23
Mr. Justice WHITE, with whom THE CHIEF JUSTICE, Mr. Justice BRENNAN, and Mr. Justice BLACKMUN concur, dissenting.
24
Until today the acts charged in the indictment in this case knowingly causing four separate sales invoices to be mailed by merchants to the bank that had issued the stolen BankAmericard in furtherance of a scheme to defraud the bank by using the credit card without authorization and by falsely securing credit—would have been a criminal offense punishable as mail fraud under 18 U.S.C. § 1341.1 But no more. By misreading this Court's prior decisions and giving an unambiguous federal criminal statute an unrealistic reading, the majority places beyond the reach of the statute a fraudulent scheme that by law is not consummated until after the mails have been used, that utilizes the mails as a central, necessary instrumentality in its perpetration, and that demands federal investigatory and prosecutorial resources if it is to be effectively checked. Because I cannot subscribe to the majority's reasoning or the result it reaches, I dissent.
25
As 'part of his scheme and artifice to defraud,' respondent was charged with 'obtain(ing) property and services on credit through the use of' an unlawfully possessed BankAmericard and 'by means of false and fraudulent pretenses, representations and promises. . . .' App. 5, 6. The property and services were obtained from Citizens Fidelity Bank and Trust Company of Louisville, Kentucky, a BankAmericard licensee, Charles Meredith, the authorized card holder and user, and various persons and business concerns 'which had previously entered into agreements with BankAmericard to furnish property and services on credit to the holders of BankAmericard . . ..' Id., at 6. The indictment also charged that the mails played an indispensable role in respondent's fraudulent activities:
26
'It was a further part of his scheme and artifice to defraud that the defendant would and did obtain property and services on credit through the use of (the) BankAmericard . . . by charging purchases on credit, well knowing at the time that the bank copies of the sales invoices recording these purchases would be, and were, delivered by mail to Citizens Fidelity Bank and Trust Company, Louisville, Kentucky, according to the directions thereon for posting to the BankAmericard account of Charles L. Meredith, that copies of these sales invoices, together with a bill for the accumulated charges, would subsequently be mailed in the normal course of business to Charles L. Meredith; and that the delay inherent in this posting and mailing would enable the defendant to continue to make purchases with (the) BankAmericard . . . before his scheme and artifice to defraud could be detected.' Id., at 6—7.
27
* Section 1341 proscribes use of the mails 'for the purpose of executing' a fraudulent scheme. The trial court had instructed the jury that it could convict on the four mail fraud counts only if it found, inter alia, that 'the mails were in fact used to carry out the scheme and that the use of the mails was reasonably foreseeable. The mail matter need not disclose on its face a fraudulent representation or purpose, but need only be intended to assist in carrying out the scheme to defraud.' App. 37 (emphasis added). Viewing each fraudulent transaction as consummated at the time respondent received goods in exchange for signing the BankAmericard sales drafts, the Court of Appeals held that respondent did not cause the subsequent mailings 'for the purpose of executing his fraudulent scheme.' 468 F.2d 529, 535 (emphasis in original). The court below acknowledged that 'the fraud was directed against the card issuer and the card holder,' but it nevertheless concluded that the relevant perspective was respondent's. 'As far as (respondent) was concerned, his transaction was complete when he checked out of each motel; the subsequent billing was merely 'incidental and collateral to the scheme and not a part of it." Id., at 534, quoting Kann v. United States, 323 U.S. 88, 95, 65 S.Ct. 148, 151, 89 L.Ed. 88 (1944).
28
The majority has uncritically embraced this unnecessarily restrictive approach to construing the statute. Like the Court of Appeals, it has selectively seized upon language in our prior decisions in pursuit of its notion that the fraudulent scheme ended when respondent duped the motels into giving him goods and services on credit. We are told, for example as in Kann, supra, where the mails were used to deliver checks drawn from a dummy corporation as part of a scheme by corporate officers to defraud their own corporation, that the scheme here 'had reached fruition,' that the person 'intended to receive the (goods and services) had received it irrevocably,' that it was 'immaterial . . . to any consummation of the scheme' how the sales invoices were forwarded by the motels to the issuing bank for payment and billing to the card holder, and that the so-called billing process was, as previously noted, 'incidental and collateral to the scheme and not a part of it.' 323 U.S., at 94, 95, 65 S.Ct. 148, 151. 'Therefore, only if the mailings were 'a part of the execution of the fraud,' or, as we said in Pereira v. United States, 347 U.S. 1, 8 (74 S.Ct. 358, 363, 98 L.Ed. 435), were 'incident to an essential part of the scheme,' do they fall within the ban of the federal mail fraud statute.' Parr v. United States, 363 U.S. 370, 390, 80 S.Ct. 1171, 1183, 4 L.Ed.2d 1277 (1960).
29
What the majority overlooks is the salient fact that the fraud in this case—and most others involving unauthorized use of credit cards—was practiced on the card issuer and not on the individual merchants who, furnished lodgings and meals to respondent. As the Court of Appeals itself recognized, '(t)he merchants who honored the BankAmericard were likely insulated from loss under their agreements with BankAmericard. See Brandel & Leonard, Bank Charge Cards: New Cash or New Credit, 69 Mich.L.Rev. 1033, 1040 (1971).' 468 F.2d, at 534 n. 3.2 Here, then, the fraud was ultimately perpetrated upon the credit card issuer and not the merchant.3 The mails thus became 'part of the execution of the fraud . . ..' Kann v. United States, supra, 323 U.S., at 95, 65 S.Ct., at 151. Indeed, they were 'an essential element' and not merely 'incident to an essential part of the scheme . . ..' Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 363, 98 L.Ed. 435 (1954).
30
Nor had respondent's plan reached fruition. For his part, he may very well not have schemed beyond obtaining the goods and services under false pretenses with a stolen credit card. But from a legal standpoint of criminal fraud, this was only the first and certainly
31
'not the last step in the fraudulent scheme. It was a continuing venture. . . . The use of the mails was crucial to the total success of the fraudulent project. We are not justified in chopping up . . . the scheme into segments and isolating one part from the others. What would be warranted if the scheme were to defraud (only the merchants). But it is plain that these plans had a wider reach and that but for the use of the mails they would not have been finally consummated.' Kann v. United States, supra, 323 U.S., at 96, 65 S.Ct. at 152 (Douglas, J., dissenting).
32
Since it was the card-issuing bank that was actually defrauded, the mails were employed 'for the purpose of executing (the) scheme . . ..'
II
33
The mails further contributed to the realization of respondent's fraudulent scheme by creating the delay in detecting the fraud that necessarily results from the time-consuming processing of credit card invoices by mail. See United States v. Chasson, supra, 451 F.2d, at States v. Chason, supra, 451 F.2d 301, 303—304 (CA2), cert. denied, 405 U.S. 1016, 92 S.Ct. 1291, 31 L.Ed.2d 479 (1971). During his two-week, $2,000 transcontinental spending spree, respondent took full advantage of this inevitable delay to continue his unlawful activities. If the motel owners had employed an instantaneous identification or verification system, respondent's fraudulent scheme would most likely have been nipped in the bud. But the simple truth of the matter is that they did not. As a direct consequence of the prevailing business practice of mailing invoices to the issuer for subsequent billing to the card holder and the system's attendant time delays, respondent was able to buy valuable time to postpone detection and thereby execute his scheme.
34
The majority mysteriously ignores prior decisions that 18 U.S.C. § 1341 reaches 'cases where the use of the mails is a means of concealment so that further frauds which are part of the scheme may be perpetrated.' Kann v. United States, supra, 323 U.S., at 94—95, 65 S.Ct. at 151. See United States v. Hendrickson, 394 F.2d 807 (C.A.6 1968), cert. denied 393 U.S. 1031, 89 S.Ct. 642, 21 L.Ed.2d 574 (1969); United States v. Riedel, 126 F.2d 81, 83 (C.A.7 1942); United States v. Lowe, 115 F.2d 596, 599 (C.A.7), cert. denied, 311 U.S. 717, 61 S.Ct. 441, 85 L.Ed. 466 (1940). Moreover, it fails to take appropriate account of our most recent decision construing § 1341. In United States v. Sampson, 371 U.S. 75, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962), an indictment for mail fraud had been dismissed by the District Court on the ground that the mailings after the money had already been obtained from the victims were not 'for the purpose of executing' the scheme to defraud. We reversed.
35
'We are unable to find anything in either the Kann or the Parr case which suggests that the Court was laying down an automatic rule that a deliberate, planned use of the mails after the victims' money had been obtained can never be 'for the purpose of executing' the defendants' scheme. Rather the Court found only that under the facts in those cases the schemes had been fully executed before the mails were used. And Court of Appeals decisions rendered both and after Kann have followed the view that subsequent mailings can in some circumstances provide the basis for an indictment under the mail fraud statutes.' Id., at 80, 83 S.Ct. at 176. (footnote omitted).
36
As previously indicated, the indictment here charged that respondent knew that the delay inherent in the posting and mailing of the credit card invoices would enable him to continue making purchases with the purloined card before his criminal conduct could be detected. Respondent engaged in a criminal enterprise that is by its very nature short-lived. Every time delay in the card holder's receipt of the forged credit card slips allows the scheme to continue that much longer. For my part, the indictment charged a crime under 18 U.S.C. § 1341, and the Government established respondent's guilt beyond a reasonable doubt.
III
37
The majority's decision has ramifications far beyond the mere reversal of a lone criminal conviction. In this era of the 'cashless' society, Americans are increasingly resorting to the use of credit cards in their day-to-day consumer purchases. Today well over 300 million credit cards are in circulation, and annual charges exceed $60 billion. In 1969 alone, 1.5 million credit cards were lost or stolen, resulting in fraud losses exceeding $100 million. 115 Cong.Rec. 38987 (1969). Current estimates of annual credit card fraud losses are put as high as $200 million. Cleveland, Bank Credit Cards: Issuers, Merchants, and Users, 90 Banking L.J. 719, 729 (1973). Under the result reached by the majority, only those credit card frauds exceeding $5,000 covered by 15 U.S.C. 1644 will be subject to federal criminal jurisdiction.
38
Yet this burgeoning criminal activity, as evidenced by the very facts of this case, does not recognize artificial state boundaries. In the future, nationwide credit card fraud schemes will have to be prosecuted in each individual State in which a fraudulent transaction transpired. Here, for example, respondent must now be charged and tried in California, Louisiana, and Florida. This result, never intended by Congress, may precipitate a widespread inability to apprehend and/or prosecute those who would hijack the credit card system.
39
I dissent.
1
The Court of Appeals determined that even though it affirmed respondent's Dyer Act conviction, for which he had received a concurrent five-year sentence, it should also consider the mail fraud convictions as well. There is no jurisdictional barrier to such a decision, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), and the court decided that 'no considerations of judicial economy or efficiency have been urged to us that would outweigh the interest of appellant in the opportunity to clear his record of a conviction of a federal felony.' 468 F.2d, at 536 n. 6. We agree that resolution of the mail fraud questions presented by this case is appropriate.
2
The decision of the Court of Appeals for the Tenth Circuit in United States v. Lynn, 461 F.2d 759 (1972), appears consistent with the decision of the Sixth Circuit in the instant case. Five other courts of appeals apparently take a contrary view. E.g., United States v. Kellerman, 431 F.2d 319 (CA2), cert. denied, 400 U.S. 957, 91 S.Ct. 356, 27 L.Ed.2d 266 (1970); United States v. Chason, 451 F.2d 301 (CA2 1971), cert. denied, 405 U.S. 1016, 92 S.Ct. 1291, 31 L.Ed.2d 479 (1972); United States v. Madison, 458 F.2d 974 (CA2), cert. denied, 409 U.S. 859, 93 S.Ct. 145, 34 L.Ed.2d 105 (1972); United States v. Ciotti, 469 F.2d 1204 (CA3 1972), cert. pending, No. 72—6155; Adams v. United States, 312 F.2d 137 (CA5 1963); Kloian v. United States, 349 F.2d 291 (CA5 1965), cert. denied, 384 U.S. 913, 86 S.Ct. 1349, 16 L.Ed.2d 365 (1966); United States v. Reynolds, 421 F.2d 178 (CA5 1970); United States v. Thomas, 429 F.2d 407 (CA5 1970); United States v. Kelly, 467 F.2d 262 (CA7 1972), cert. denied, 411 U.S. 933, 93 S.Ct. 1905, 36 L.Ed.2d 393 (1973); United States v. Kelem, 416 F.2d 346 (CA9 1969), cert. denied, 397 U.S. 952, 90 S.Ct. 977, 25 L.Ed.2d 134 (1970).
3
The full text of the section reads as follows:
'Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.' 18 U.S.C. § 1341.
4
The Government indicates that in 1969 it was estimated that more than 300 million consumer credit cards were in circulation, with annual charges between $40 billion and $60 billion. It was also estimated that, in 1969, 1.5 million cards were lost or stolen, and that losses due to fraud had risen from $20 million in 1966 to $100 million in 1969. Brief for United States 14 n. 2, citing 115 Cong.Rec. 38987 (Dec. 12, 1969). The mail fraud statute, first enacted in 1872, c. 335, § 301, 17 Stat. 323, while obviously not directed at credit card frauds as such, is sufficiently general in its language to include them if the requirements of the statute are otherwise met.
5
While it is clearly implied in this Court's opinion in Pereira that the El Paso bank did not immediately credit the account of the defendant, but instead awaited advice from the Los Angeles bank to which it had mailed the check, the opinion of the Court of Appeals for the Fifth Circuit in Pereira makes that fact abundantly clear:
'The return of (the) check from Texas to California constitutes the mailing referred to in the First Count . . .. In mailing the check back to the bank in California on which it was drawn, the El Paso, Texas, bank sent 'instructions to wire fate', meaning to wire whether the item was paid or not. Upon receiving a telegram stating that the check had been paid, the bank in El Paso gave Pereira its cashier's check for $35,286.01, which Pereira promptly cashed on June 19, 1951.' Pereira v. United States, 202 F.2d 830, 836 (1953).
6
Mr. Justice WHITE's dissenting opinion indicates that respondent engaged in a 'two-week, $2,000 transcontinental spending spree.' While we are not sure of the legal significance of the amounts fraudulently charged on the credit card by the respondent, we note that the four counts of mail fraud charged in the indictment were based on charges on Meredith's credit card totaling $301.85. Brief for Respondent 4 n. 2; Brief for United States 4—5.
7
Since we are admonished that we may not as judges ignore what we know as men, we do not wish to be understood as suggesting that delays in mail service are solely attributable to the distance involved. If the Postal Service appears on occasion to be something less than a 20th century version of the wingfooted Mercury, the fact remains that the invoices were mailed to and were ultimately received by the Louisville bank.
8
Distance is not the only cause of delay. The Court of Appeals noted that BankAmericard had a billing system in which billing was accomplished by collecting receipts over a one-month period and then billing the card holder. 468 F.2d, at 535. It might reasonably be argued that respondent himself used facilities of interstate travel for the purpose of executing his scheme, since the large distances separating the defrauded motels from one another and from the Louisville bank probably did make it more difficult to apprehend him than if he had simply defrauded local enterprises in Louisville. But the statute is cast, not in terms of use of the facilities of interstate travel, but in terms of use of the mails.
9
Volume 84 Stat. 1127, 15 U.S.C. § 1644 provides:
'Whoever, in a transaction affecting interstate or foreign commerce, uses any counterfeit, fictitious, altered, forged, lost, stolen, or fraudulently obtained credit card to obtain goods or services, or both, having a retail value aggregating $5,000 or more, shall be fined not more than $10,000 or imprisoned not more than five years, or both.'
The Court of Appeals felt that the enactment by Congress of the above amendment to the Truth in Lending Act manifested a legislative judgment that credit card fraud schemes were to be excluded from the application of the mail fraud statute 'unless the offender makes a purposeful use of the mails to accomplish his scheme.' 468 F.2d, at 536.
Respondent contends that the passage of the amendment indicates that Congress believed in 1970 that credit card fraud was not a federal crime under 18 U.S.C. § 1341 or otherwise. Respondent also notes that the legislative history of the passage of the amendment indicates that the original bill, as enacted by the Senate, contained no jurisdictional amount limitation. The Senate-House conferees, at the request of the Department of Justice, later added the limitation of federal jurisdiction under the section to purchases exceeding $5,000. Brief for Respondent 16 21.
The Government contends that the Court of Appeals erred in attaching significance to the 1970 amendment, urging that there is no indication that Congress intended its provisions to be the sole vehicle for the federal prosecution of credit card frauds. Brief for United States 33—37, citing United States v. Beacon Brass Co., 344 U.S. 43, 45, 73 S.Ct. 77, 78, 97 L.Ed. 61 (1952).
We deem it unnecessary to determine the significance of the passage of the amendment, since we conclude without resort to that fact that the mail fraud statute does not cover the respondent's conduct in this case.
10
We are admonished by THE CHIEF JUSTICE in dissent that the 'mail fraud statute must remain strong to be able to cope with the new varieties of fraud' which threaten 'the financial security of our citizenry' and which 'the Federal Government must be ever alert to combat.' We believe that under our decision the mail fraud statute remains a strong and useful weapon to combat those evils which are within the broad reach of its language. If the Federal Government is to engage in combat against fraudulent schemes not covered by the statute, it must do so at the initiative of Congress and not of this Court.
1
See, e.g., United States v. Kelly, 467 F.2d 262 (CA7 1972), cert. denied, 411 U.S. 933, 93 S.Ct. 1905, 36 L.Ed.2d 393 (1973); United States v. Madison, 458 F.2d 974 (CA2), cert. denied, 409 U.S. 859, 93 S.Ct. 145, 34 L.Ed.2d 105 (1972); United States v. Chason, 451 F.2d 301 (CA2 1971), cert. denied, 405 U.S. 1016, 92 S.Ct. 1291, 31 L.Ed.2d 479; United States v. Kellerman, 431 F.2d 319 (CA2), cert. denied, 400 U.S. 957, 91 S.Ct. 356, 27 L.Ed.2d 266 (1970); United States v. Thomas, 429 F.2d 407 (CA5 1970); United States v. Kelem, 416 F.2d 346 (CA9 1969), cert. denied, 397 U.S. 952, 90 S.Ct. 977, 25 L.Ed.2d 134 (1970); Adams v. United States, 312 F.2d 137 (CA5 1963).
The majority recognizes that prior to this decision at least five courts of appeals had taken a view contrary to that reached by the court below. Ante, at 398 n. 2. The Court of Appeals in this case relied upon United States v. Lynn, 461 F.2d 759 (CA10 1972), but the indictment in that case did not allege that the plan defrauded the authorized card holder or the credit card issuer.
2
Almost all of the bank credit card systems presently in operation in this country rely upon a three-way transaction between the card issuer, the cardholder, and a subscribing retailer. This tripartite credit card arrangement basically entails three separate contractual
agreements: (1) between the bank issuing the credit card and the individual cardholder; (2) between one of the banks in the system and a local merchant; and (3) between the merchant and the cardholder. See generally Comment, The Tripartite Credit Card Transaction: A Legal Infant, 48 Calif.L.Rev. 459 (1960).
'The most important of the many parties to such a system is the bank which issues the charge cards to the public. The issuerbank establishes an account on behalf of the person to whom the card is issued, and the two enter into an agreement which governs their relationship. This agreement establishes a line of credit under which the cardholder may incur obligations to the issuer by a cash advance or through a purchase of goods or services from one of the merchant-members.
'These merchants also have an agreement with the banks requiring them to honor all charge cards issued by a member-bank, and enabling them to deposit slips evidencing sales to cardholders in an ordinary checking account at the bank with which he has reached an agreement in return for a discounted credit to that account. These slips are then cleared and forwarded through an interchange system to the member-bank which originally issued the card and from which the cardholder will be billed periodically. The cardholder must then decide whether to make payment in full within a specified period, free of finance charges, or to defer payment and ultimately be charged an extra percentage of the amount billed.' Comment, Bank Credit Cards—Contemporary Problems, 41 Fordham L.Rev. 373, 374 (1972) (footnote omitted).
Because the legal relationship between the parties is dictated by the terms of their respective agreements, the contract governs the distribution of risk for credit card frauds between the merchant and the issuer. Under most systems, with certain exceptions for negligence on the part of the merchant if he honors an expired card or one appearing on the current 'stop list' or if he makes a sale for an amount in excess of the cardholder's credit line, the issuer assumes all risks for frauds. Murray, A Legal-Empirical Study of the Unauthorized Use of Credit Cards, 21 U.Miami L.Rev. 811, 813 (1967); Note, Credit Cards: Distributing Fraud
Loss, 77 Yale L.J. 1418, 1420 (1968); Comment, The Triparties Credit Card Transaction, 48 Calif.L.Rev., at 464—465.
"As far as the merchant is concerned, he is in the same financial and legal position as if he were receiving certified checks on a bank that does not clear at par, with no risk that the check will be returned or payment stopped, or as if he were receiving cash at a small discount for the bank's services. This firm bank commitment is what makes the merchant willing to accept a bank card as freely as cash and what makes the bank card as good as cash to its holder (and without the risks of carrying cash).
"Under these arrangements, the card-issuing bank takes all the credit risk, which is appropriate to the banking function it performs, the cardholder selects the merchant with whom he will deal, and the bank and the cardholder-purchaser expect the merchant to assume the merchandise risk. It is this division and allocation of risks between merchant and bank which permits the bank card to be used as though it were cash with hundreds of thousands of participating merchants throughout the country and abroad." Cleveland, Bank Credit Cards: Issuers, Merchants, and Users, 90 Banking L.J. 719, 723—724 (1973), quoting Statement of the American Bankers Association, the Consumers Bankers Association, Interbank Card Association, and National BankAmericard, Inc. to the Federal Trade Commission in the matter of Revised Proposed Trade Regulation Rule of Preservation of Consumers' Claims and Defenses, 4—5 (Mar. 5, 1973).
3
Section 133(a) of the Truth in Lending Act limited the cardholder's liability for the unauthorized use of his credit card to $50. 84 Stat. 1126, 15 U.S.C. § 1643(a).
| 01
|
414 U.S. 441
94 S.Ct. 656
38 L.Ed.2d 635
COMMUNIST PARTY OF INDIANA et al., Appellants,v.Edgar D. WHITCOMB, etc., et al.
No. 72—1040.
Argued Oct. 16, 1973.
Decided Jan. 9, 1974.
Rehearing Denied Feb. 25, 1974.
See 415 U.S. 952, 94 S.Ct. 1476.
Syllabus
The application of appellants (the Communist Party of Indiana, certain of its officers and potential voters, and its candidates for President and Vice President) for a place on the Indiana ballot for the 1972 general election was rejected for failure to submit a statutory loyalty oath stating that the Party 'does not advocate the overthrow of local, state or National Government by force or violence.' Appellants, contending that the statute was unconstitutional, thereupon filed this action in the District Court for injunctive and declaratory relief. On September 28, 1972, a three-judge court declared the statute constitutional and ordered the Election Board to place the Party on the ballot, but only if the required oath was submitted. After a qualified oath submitted by the Party was rejected, appellats on October 3 sought a District Court order directing the Board to accept such oath, and on the same day the Board requested reconsideration of the September 28 order. The next day the District Court denied both motions. On October 10 appellants filed a notice of appeal to this Court, which it later sought to withdraw so that the District Court might act on appellants' motion of the same day that the September 28 order be amended in certain respects. On October 31, the District Court allowed withdrawal of the appeal notice but denied the motion to amend. Appellants refiled their notice of appeal to this Court on November 29, which appellees contend is untimely. Held:
1. Appellants' notice of appeal was within the 60-day appeal period prescribed by 28 U.S.C. § 2101(b), since appellees' October 3 motion for reconsideration suspended the finality of the September 28 judgment until the District Court's denial of such motion on October 4 restored it, so that the time for appeal thus began to run from October 4. Pp. 445—446.
2. The loyalty oath requirement of the Indiana statute violates the First and Fourteenth Amendments. Pp. 446—450.
(a) The principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action, applies to state regulation burdening access to the ballot, rights of association in the political party of one's choice, casting an effective ballot, and in running for office, which are interests as substantial as those in other areas that this Court has protected against statutory schemes contrary to the First and Fourteenth Amendments. Pp. 448—449.
(b) For purposes of determining whether for grant a place on the ballot, a group advocating violent overthrow as abstract doctrine need not be regarded as necessarily advocating unlawful action. P. 449—450.
Reversed.
Sanford Jay Rosen, New York City, for appellants.
Theodore L. Sendak, Crown Point, Ind., for appellees.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This is a loyalty oath case. The question for decision is whether the First and Fourteenth Amendments are violated by Indiana's requirement, Ind.Ann.Stat. § 29—3812 (1969), IC 1971, 3 1—11—12, that '(n)o existing or newly-organized political party or organization shall be permitted on or to have the names of its candidates printed on the ballot used at any election until it has filed an affidavit, by its officers, under oath, that it does not advocate the overthrow of local, state or national government by force or violence . . ..'1
2
Appellants are the Communist Party of Indiana, a new political party in Indiana, certain of its officers and potential voters, and its candidates for President and Vice President in the 1972 election. Appellees are the Indiana State Election Board and its members. When appellants applied to the Election Board in August 1972 for a place on Indiana's National Ballot for the 1972 general election without submitting the required oath, the Board, on the advice of the Attorney General of Indiana, rejected the application. Appellants thereupon filed this action in the District Court for the Northern District of Indiana seeking a declaration of the unconstitutionality of § 29—3812, and an injunction requiring that the Election Board place the Party on the ballot. A three-judge court was convened and that court, on September 28, 1972, in an unreported opinion, declared the provision of § 29—3812 that is challenged on this appeal constitutional and issued an order requiring the Election Board to place the Communist Party and its nominees on the National Ballot only '(i)n the event that the Communist Party of Indiana shall submit an affidavit in keeping with this memorandum and order. . . .'2 The Communist Party submitted an affidavit that, in addition to the statutory language, added the following:
3
'The term advocate as used herein has the meaning given it by the Supreme Court of the United States in Yates v. United States, 354 U.S. 298 at 320 (77 S.Ct. 1064, 1 L.Ed.2d 1356), 'the advocacy and teaching of concrete action for the forcible overthrow of the government, and not of principles divorced from action."
4
The Election Board rejected the affidavit and appellants, on October 3, returned to the District Court, seeking an order directing the Board to accept it. On the same day, the Election Board filed a motion requesting reconsideration of the order of September 28.3 The District Court, on October 4, denied both motions by order entered that day. Appellants on October 10 filed a notice of appeal to this Court to enable them to seek emergency relief. That effort was abandoned, and appellants then sought leave of the District Court to withdraw the notice of appeal in order that the District Court might act on a motion of appellants, also filed October 10, that the District Court amend its September 28 order to include a determination that § 29—3812 was constitutional 'only insofar as it proscribes advocacy directed at promoting unlawful action, as distinguished from advocacy of abstract doctrine.' On October 31, the District Court entered an order granting leave to withdraw the notice of appeal of October 10 but denying the motion to amend the September 28 memorandum.
5
Appellants refiled their notice of appeal on November 29. Appellees moved to dismiss the appeal as jurisdictionally untimely, arguing that the 60-day period for appeal, 28 U.S.C. § 2101(b), expired on November 27. We postponed consideration of the question of our jurisdiction to the merits. 410 U.S. 981, 93 S.Ct. 1504, 36 L.Ed.2d 176 (1973). We hold that the appeal was timely. Appellees' motion for reconsideration of October 3 suspended the finality of the judgment of September 28 until the District Court's denial of the motion on October 4 restored it. Time for appeal thus began to run from October 4 and the notice of appeal filed November 29 was timely.4 As to the merits, we hold that the loyalty oath requirement of § 29—3812 violates the First and Fourteenth Amendments,5 and therefore reverse the judgment of the District Court.6
6
Loyalty oath cases are not strangers to this Court, see Note, Loyalty Oaths, 77 Yale L.J. 739. (1968), but the constitutional questions presented in earlier cases arising from their use to limit access to the ballot have not had plenary consideration.7 The District Court decided this case under the pressure of a ballot-printing deadline, and its memorandum opinion states no reasons and cites no authorities to support the court's holding that 'that portion of the statute providing 'that it does not advocate the overthrow of local, state or national government by force or violence,' is constitutional and hence enforceable by Indiana.'
7
Appellees do not deny that § 29—3812 exacts a broad oath embracing advocacy of abstract doctrine as well as advocacy of action. Yet this Court has held in many contexts that the First and Fourteenth Amendments render invalid statutes regulating advocacy that are not limited to advocacy of action. And, as we have so often emphasized, '(p)recision of regulation must be the touchstone in an area so closely touching our most precious freedoms.' NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963).
8
We most recently summarized the constitutional principles that have evolved in this area in Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969). We expressly overruled the earlier holding of Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095 (1927), that 'without more, 'advocating' violent means to effect political and economic change involves such danger to the security of the State that the State may outlaw it.' 395 U.S., at 447, 89 S.Ct., at 1829. For, we said:
9
'(L)ater decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. As we said in Noto v. United States, 367 U.S. 290, 297—298 (81 S.Ct. 1517, 1520—1521, 6 L.Ed.2d 836) (1961), 'the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.' . . . A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control. Cf. Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957) . . ..' Id., at 447 448, 89 S.Ct., at 1829.
10
This principle that 'the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action' has been applied not only to statutes that directly forbid or proscribe advocacy, see Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961); Noto v. United States, 367 U.S. 290, 81 S.Ct. 1517, 6 L.Ed.2d 836 (1961); Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957); but also to regulatory schemes that determine eligibility for public employment, Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966); Cramp v. Board of Public Instruction, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961); see also United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); tax exemptions, Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958); and moral fitness justifying disbarment, Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957).
11
Appellees argue that the principle should nevertheless not obtain in cases of state regulation of access to the ballot. We perceive no reason to make an exception, and appellees suggest none. Indeed, all of the reasons for application of the principle in the other contexts are equally applicable here. 'To be sure, administration of the electoral process is a matter that the Constitution largely entrusts to the States. But, in exercising their powers of supervision over elections and in setting qualifications for voters, the States may not infringe upon basic constitutional protections.' Kusper v. Pontikes, 414 U.S. 51, at 57, 94 S.Ct. 303, at 307, 38 L.Ed.2d 260 (footnote omitted). At stake are appellants' First and Fourteenth Amendment rights to associate with others for the common advancement of political beliefs and ideas. 'The right to associate with the political party of one's choice is an integral part of this basic constitutional freedom.' Ibid., Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968). At stake as well are appellants' interests as party members in casting an effective ballot. See Bullock v. Carter, 405 U.S. 134, 142—144, 92 S.Ct. 849, 855—856, 31 L.Ed.2d 92 (1972).
12
Thus, burdening access to the ballot, rights of association in the political party of one's choice, interests in casting an effective vote and in running for office, not because the Party urges others 'to do something, now or in the future . . . (but) . . . merely to believe in something,' Yates v. United States, supra, 354 U.S., at 325, 77 S.Ct., at 1080, is to infringe interests certainly as substantial as those in public employment, tax exemption, or the practice of law. For 'the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights . . ..' Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506 (1964). 'Other rights, even the most basic, are illusory if the right to vote is undermined.' Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 535, 11 L.Ed.2d 481 (1964).
13
Appellees argue: 'It is fraudulent for a group seeking by violent revolution to overthrow our democratic form of government to disguise itself as a political party and use the very forms of the democracy it seeks to subvert in order to gain support and carry on its nefarious ends.' Brief for Appellees 7. Again, they argue 'that the affidavit required under the statute refers to the official actions of the party itself, thus reducing to a minimum any possibility of 'innocent involvement' in activities which might be considered advocacy.' Id., at 10. As we understand appellees, this is an argument that, at least for purposes of determining whether to grant a place on the ballot, any group that advocates violent overthrow as abstract doctrine must be regarded as necessarily advocating unlawful action. We reject that proposition. Its acceptance would only return the law to the 'thoroughly discredited' regime of Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095 (1927), unanimously overruled by the Court in Brandenburg v. Ohio, 395 U.S., at 447, 449, 89 S.Ct., at 1829, 1830.8
14
Reversed.
15
Mr. Justice POWELL, with whom THE CHIEF JUSTICE, Mr. Justice BLACKMUN, and Mr. Justice REHNQUIST join, concurring in the result.
16
I concur in the result. In my view it was quite unnecessary to reach the issue addressed by the Court.
17
It was established at trial that appellees had certified the Democratic and Republican Parties despite the failure of party officials to submit the prescribed affidavits under Ind.Ann.Stat. § 29—3812 (1969).1 In Williams v. Rhodes, 393 U.S. 23, 31, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968), this Court held that a discriminatory preference for established parties under a State's electoral system can be justified only by a 'compelling state interest.' In the present case, no colorable justification has been offered for placing on appellants burdens not imposed on the two established parties.2 It follows that the appellees' discriminatory application of the Indiana statute denied appellants equal protection under the Fourteenth Amendment.3
1
Section 29—3812 reads in pertinent part as follows:
'No political party or organization shall be recognized and given a place on or have the names of its candidates printed on the ballot used at any election which advocates the overthrow, by force or violence, of the local, state or national government, or which advocates, or carries on, a program of sedition or of treason, and which is affiliated or cooperates with or has any relation with any foreign government, or any political party or group of individuals of any foreign government. Any political party or organization which is in existence at the time of the passage of this act . . . or which shall have had a ticket on the ballot one or more times prior to any election, and which does not advocate any of the doctrines the advocacy of which is prohibited by this act, shall insert a plank in its platform that it does not advocate any of the doctrines prohibited by this act. No existing or newly-organized political party or organization shall be permitted on or to have the names of its candidates printed on the ballot used at any election until it has filed an affidavit, by its officers, under oath, that it does not advocate the overthrow of local, state or national government by force or violence, and that it is not affiliated with and does not cooperate with nor has any relation with any foreign government, or any political party, organization or group of individuals of any foreign government. The affidavit herein provided for shall be filed with the state election board or the county election board having charge of the printing of the ballot on which such ticket is to appear.'
2
The District Court's decision of September 28 also decided attacks upon the loyalty oath provision of § 29—3812 made in actions brought by two other new political parties, the American Independent Party and the Indiana Peace and Freedom Party. All three actions challenged, in addition to the 'advocacy' provision, the provision of § 29—3812 requiring a party also to file an affidavit that 'it is not affiliated with and does not cooperate with nor has any relation with any foreign government, or any political party, organization or group of individuals of any foreign government.' The September 28 memorandum of the three-judge court declared this provision of § 29—3812 unconstitutional. The American Independent Party and the Indiana Peace and Freedom Party then filed affidavits accepted by the Election Board and were placed on the National Ballot for the 1972 elections. On November 11, the Election Board appealed that portion of the order to this Court. We summarily affirmed. Whitcomb v. Communist Party, 410 U.S. 976, 93 S.Ct. 1502, 36 L.Ed.2d 173 (1973).
3
Section 29—3801 Ind.Stat.Ann. (1969), IC 1971, 3—1—11—1 provides for ballot listing of any party that files petitions containing signatures of one-half of one percent 'of the total vote of all parties cast in the state for secretary of state at the last preceding general election.' The sufficiency of the Communist Party petitions in this respect was challenged by appellees in the District Court but was not discussed in the court's September 28 memorandum although the issuance of the injunction presupposed a decision adverse to appellees. The motion for reconsideration requested the court to reconsider that result.
4
Appellees also argue that the notice of appeal of November 29 was ineffective because the earlier notice of October 10 divested the District Court of jurisdiction and that that jurisdiction could not have been revested by the granting of leave to withdraw the October 10 notice. But since the October 10 notice was clearly timely, that argument is reduced to an attack on the untimeliness under Supreme Court Rule 13(1) of the filing of the jurisdictional statement on January 26, 1973. Timely docketing of the jurisdictional statement is not, however, a jurisdictional requisite. Johnson v. Florida, 391 U.S. 596, 598, 88 S.Ct. 1713, 1714, 20 L.Ed.2d 838 (1968).
Appellees' brief also invokes § 3 of the Communist Control Act of 1954, 68 Stat. 776, 50 U.S.C. § 842, providing that '(t)he Communist Party of the United States . . . (is) not entitled to any of the rights, privileges, and immunities attendant upon legal bodies created under the jurisdiction of the laws of the United States or any political subdivision thereof . . ..' We have difficulty understanding appellees' argument that this statute is applicable to the Communist Party of Indiana or in any way relevant to the issues in this case. The statute was not relied upon by either the Election Board, or the District Court when it denied declaratory relief. In any event, insofar as the argument is that this statute bars the Communist Party of Indiana from maintaining this action, it is rejected. See Communist Party, U.S.A. v. Catherwood, 367 U.S. 389, 81 S.Ct. 1465, 6 L.Ed.2d 919 (1961).
5
Appellants also contend that the requirement is constitutionally precluded as an oath different from that prescribed for a President by Art. II, § 1, and for any other state or federal officer by Art. VI, cl. 3. See Cole v. Richardson, 405 U.S. 676, 92 S.Ct. 1332, 31 L.Ed.2d 593 (1972). In view of our result we need not address those contentions.
6
The only question presented in the jurisdictional statement is whether § 29—3812 is facially valid. Thus, we do not reach the question whether the Election Board's apparent failure to require the Republican and Democratic Parties, the two major parties in Indiana, to comply with the statute rises to the level of a denial of equal protection of the law as applied, or was within the Board's 'prosecutorial discretion.' We note, however, that the only relevant testimony in the District Court, given by the Board's clerk, is entirely silent as to the reasons behind the omission.
7
E.g., Lisker v. Kelley, 401 U.S. 928, 91 S.Ct. 927, 28 L.Ed.2d 210 (1971), summarily aff'g, 315 F.Supp. 777 (D.C.1970); Gerende v. Board of Supervisors, 341 U.S. 56, 71 S.Ct. 565, 95 L.Ed. 745 (1951), presenting a constitutional challenge to a Maryland statute imposing a loyalty requirement on candidates for municipal office rested on 'the narrowing construction tendered by the Attorney General (of Maryland) during oral argument so as to avoid the constitutional issue that was argued.' Whitehill v. Elkins, 389 U.S. 54, 58, 88 S.Ct. 184, 186, 19 L.Ed.2d 228 (1967). And Socialist Labor Party v. Gilligan, 406 U.S. 583, 92 S.Ct. 1716, 32 L.Ed.2d 317 (1972), was dismissed as insufficiently concrete and mature to permit adjudication, on the authority of Rescue Army v. Municipal Court of City of Los Angeles, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666 (1947).
8
Cf. Noto v. United States, 367 U.S. 290, 298, 81 S.Ct. 1517, 1521, 6 L.Ed.2d 836 (1961), a prosecution under the Smith Act, 18 U.S.C. § 2385, where we held that the constitutional limitations require that criminal advocacy by the Communist Party be proved by 'some substantial direct or circumstantial evidence of a call to violence now or in the future which is both sufficiently strong and sufficiently pervasive to lend color to the otherwise ambiguous theoretical material regarding Communist Party teaching, and to justify the inference that such a call to violence may fairly be imputed to the Party as a whole, and not merely to some narrow segment of it.' See also Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961); Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957).
1
The complaint in this case expressly alleged that § 29 3812 subjected appellants to burdens not imposed on the Republican and Democratic Parties, and proof at trial was directed to that issue. The Court now maintains that this issue cannot be considered because it was not expressly raised in the jurisdictional statement. Ante, at 446—447 n. 6. Supreme Court Rule 15(1)(c) provides, however, that the jurisdictional statement 'will be deemed to include every subsidiary question fairly comprised therein' and that 'questions set forth in the jurisdictional statement or fairly comprised therein will be considered by the court.' The issue of discriminatory application of the statute certainly falls within the gravamen of appellants' jurisdictional statement and should therefore be considered. See, e.g., United States v. Arnold, Schwinn & Co., 388 U.S. 365, 371 372 n. 4, 87 S.Ct. 1856, 1861, n. 4 18 L.Ed.2d 1249 (1967). Moreover, the appropriate exercise of judicial power requires that important constitutional issues not be decided unnecessarily where narrower grounds exist for according relief. This consideration applies even though such grounds are not raised in the jurisdictional submissions. Boynton v. Virginia, 364 U.S. 454, 457, 81 S.Ct. 182, 184, 5 L.Ed.2d 206 (1960). Cf. Barr v. Matteo, 355 U.S. 171, 172, 78 S.Ct. 204, 205, 2 L.Ed.2d 179 (1957).
2
The Court's intimation that a prima facie case of constitutional deprivation was not established because Board officials were 'silent as to the reasons behind the omission' of the established parties from the affidavit requirement (ante, at 447 n. 6) misses the point. Nothing more need be shown than that the statute was in fact discriminatorily applied. It is the Board officials not the appellants, who must then come forth with reasons justifying the discriminatory application of the statute.
3
In view of this patently unconstitutional application of the statute, there is no occasion to reach the broader issue addressed by the Court today. Although I express no conclusion on that issue, it should be noted that this is the first case touching upon the type of oath which may be required of a candidate for the office of President of the United States. The Indiana oath, of course, is required of the party rather than its presidential candidate. But it could be argued that Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), and its progeny are not controlling here. Under Art. IV, cl. 3, all state and federal officers are bound by oath 'to support this Constitution,' and under Art. II, § 1, cl. 8, the President must swear that he will 'faithfully execute the Office . . . and will to the best of (his) Ability, preserve, protect and defend the Constitution of the United States.' Art. II, § 3, also imposes on the President the affirmative duty to 'take Care that the Laws be faithfully executed.' Neither the effect of these explicit constitutional obligations nor the responsibility of a chief executive official of government to enforce the rule of law was a relevant issue in any of the Yates line of cases. Cf. Cole v. Richardson, 405 U.S. 676, 92 S.Ct. 1332, 31 L.Ed.2d 593 (1972).
| 23
|
414 U.S. 417
94 S.Ct. 700
38 L.Ed.2d 618
Robert Edward MARSHALL, Petitioner,v.UNITED STATES.
No. 72—5881.
Argued Oct. 16 and 17, 1973.
Decided Jan. 9, 1974.
Syllabus
Petitioner, who had three prior felony convictions, moved for commitment as a narcotic addict pursuant to Title II of the Narcotic Rehabilitation Act of 1966 (NARA), following a fourth felony conviction. The District Court held that the NARA's two-prior-felony exclusion precluded the requested commitment, rejecting petitioner's post-sentence motion to vacate his sentence on the ground that the two-prior-felony exclusion violated equal protection as embodied in the Fifth Amendment. The Court of Appeals affirmed. Held: Title II of NARA does not deny due process or equal protection by excluding from rehabilitative commitment, in lieu of penal incarceration, addicts with two or more prior felony convictions, since Congress could rationally assume that an addict with a multiple-felony record is likely to benefit less from rehabilitative treatment, present a possible impediment to the successful treatment of others, and be a greater threat to society upon release, because of that record. Pp. 422—430.
(a) In adopting the two-felony exclusion Congress sought to exclude from NARA treatment (1) those less likely to be rehabilitated thereby and (2) those with a 'history of serious crimes.' Pp. 423—425.
(b) Congress could reasonably assume that because of the nature of addiction treatment the multiple-felony offender would less likely benefit from and might interfere with a rehabilitation program. Pp. 425, 428.
(c) Congress should have a wide latitude in formulating an experimental program like NARA, involving as it does medical and scientific uncertainties. Pp. 427—428.
(d) In excluding multiple offenders Congress could safeguard that experimental program from possible improper exploitation and also avoid a possible unacceptable risk to society represented by a reduced level of deterrence. Pp. 429—430.
470 F.2d 34, affirmed.
James F. Hewitt, San Francisco, Cal., for petitioner.
Jewell S. Lafontant, Washington, D.C., for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari to consider petitioner's claim that the provisions of Title II of the Narcotic Addict Rehabilitation Act of 1966, 18 U.S.C. §§ 4251—4255, deny due process and equal protection by excluding from discretionary rehabilitative commitment, in lieu of penal incarceration, addicts with two or more prior felony convictions. The Circuits are in apparent conflict on this question. See the opinion of the Court of Appeals in this case, sub. nom. Marshall v. Parker, 470 F.2d 34, (CA9), and Watson v. United States, 141 U.S.App.D.C. 335, 439 F.2d 442 (1970); United States v. Hamilton, 149 U.S.App.D.C. 295, 462 F.2d 1190 (1972); United States v. Bishop, 469 F.2d 1337 (CA1 1972); and Macias v. United States, 464 F.2d 1292 (CA5 1972), cert. pending, No. 72—5539.
2
(1)
3
Petitioner, Robert Edward Marshall, pleaded guilty to an indictment charging him with entering a bank with intent to commit a felony, in violation of 18 U.S.C. § 2113(a). At sentencing, petitioner requested that he be considered for treatment as a narcotic addict pursuant to Tit. II of the Narcotic Addict Rehabilitation Act of 1966 (NARA). The sentencing judge, after noting petitioner's prior felony convictions for burglary, forgery, and possession of a firearm, concluded that the exclusion of persons with two prior convictions from the discretionary provisions of the Act as set forth in 18 U.S.C. § 4251(f)(4)1 did not permit commitment under NARA. Petitioner was sentenced to 10 years' imprisonment pursuant to 18 U.S.C. § 4208(a)(2), but the District Judge recommended that petitioner receive treatment for narcotics addiction while incarcerated.2
4
Ten months after being sentenced, petitioner moved to vacate his sentence under 28 U.S.C. § 2255 on the ground that the two-prior-felony exclusion of NARA under § 4251(f)(4) violates equal protection as embodied in the Due Process Clause of the Fifth Amendment.
5
The District Judge took note of Watson v. United States, supra, but declined to follow that holding. The District Judge also noted that there was no showing, as in Watson, supra, that petitioner's prior convictions and his drug addicition were related3 and since his prior convictions did not relate to traffic in narcotics, the provisions of 18 U.S.C. § 4251(f)(2) did not apply. The District Judge determined that, given the purposes of the statute, Congress had not acted arbitrarily in providing different disposition standards for convicted persons with records of prior felony convictions from those without such convictions, these classifications being related to eligibility for rehabilitative commitment under NARA.
6
The Court of Appeals viewed petitioner's § 2255 petition as a motion under Rule 35 of the Federal Rules of Criminal Procedure for correction of an illegal sentence, and held the statutory classification constitutionally permissible, noting its disagreement with the decisions in Watson, supra, and United States v. Hamilton, supra. Viewing the Act in its entirety,4 the Court of Appeals concluded that Congress expressly limited the reach of the Act to addicts most likely to be rehabilitated through treatment and provided an exclusion as to convicted persons having two or more prior convictions.
7
Concluding there is no 'fundamental right' to rehabilitation from narcotics addiction at public expense after conviction of a crime, and there being no 'suspect' classification under the statutory scheme, the Court of Appeals considered the correct standard to be whether the statutory classification bore 'some relevance to the purpose for which the classification is made.' Baxstrom v. Herold, 383 U.S. 107, 111, 86 S.Ct. 760, 762, 15 L.Ed.2d 620 (1966); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). The court reasoned that Congress adopted the challenged standards in an effort to restrict eligibility to those most likely to respond to treatment and held that Congress could not be said to have acted irrationally in so doing. The District Court's denial of petitioner's motion to vacate his sentence was affirmed, 470 F.2d 34 (CA9 1972). We granted certiorari, 410 U.S. 954, 93 S.Ct. 1429, 35 L.Ed.2d 686 (1973). We agree with the District Court's and the Court of Appeals' reading of the statute and affirm.
8
(2)
9
Petitioner concedes that the concept of equal protection as embodied in the Due Process Clause of the Fifth Amendment, see Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954), does not require that all persons be dealt with identically, but rather that there be some 'rational basis' for the statutory distinctions made, McGinnis v. Royster, 410 U.S. 263, 270, 93 S.Ct. 1055, 1060, 35 L.Ed.2d 282 (1973), or that they 'have some relevance to the purpose for which the classification is made.' Baxstrom v. Herold, supra, 383 U.S., at 111, 86 S.Ct., at 763; Rinaldi v. Yeager, 384 U.S. 305, 309, 86 S.Ct. 1497, 1499, 16 L.Ed.2d 577 (1966). See also James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972); Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972). He argues that no such nexus exists under the classification provided by the challenged statute.
10
The broad purpose of Congress in enacting NARA, as set forth in the Act itself, was:
11
'(T)hat certain persons charged with or convicted of violating Federal criminal laws, who are determined to be addicted to narcotic drugs, and likely to be rehabilitated through treatment, should, in lieu of prosecution or sentencing, be civilly committed for confinement and treatment designed to effect their restoration to health, and return to society as useful members.' 42 U.S.C. § 3401.
12
See also H.R.Rep.No.1486, 89th Cong., 2d Sess., 7 (1966), 1966 U.S.Code Cong. & Admin.News, pp. 4245, 4248 ('to provide for the treatment and rehabilitation of narcotic addicts when they are charged with or convicted of offenses against the United States'); S.Rep.No.1667, 89th Cong., 2d Sess., 12 (1966). Congress recognized that some relationship between drug addiction and crime probably existed, and concluded that prosecution and imprisonment of all addicts, without more, would not cure addiction or retard the rising addiction rate, and that a rehabilitative rather than a purely penal approach to the problem was called for. Id., at 13, 17.
13
It was not the purpose of Congress, however, to make every addict eligible for civil commitment simply by reason of addiction. The congressional intent in adopting the statutory exclusion based on prior convictions which is challenged here is somewhat less explicitly defined,5 but the objectives emerge clearly when the Act is read as a whole. Having recognized some nexus between drug addiction and crime, Congress specifically sought to insure that any program aimed at providing for the treatment of drug addiction would not hinder traditional efforts to deal effectively with the strictly criminal aspects of the problem.6 The most explicit statement of congressional intent is found in the House Report:
14
'The practical effect of the implementation of the law provided for in the bill, is that strict punishment can be meted out where required to the hardened criminal, while justice can be tempered with judgment and fairness in those cases where it is to the best interest of society and the individual that such a course be followed.
15
'The definition of 'eligible individual' as set forth in the bill insures that the persons considered as candidates for civil commitment will not include criminals charged with violent crimes or be those whose records disclose a history of serious crimes.'7 H.R.Rep.No.1486, at 9—10; 1966 U.S.Code Cong. & Admin.News, pp. 4250—4251 (Emphasis supplied.)
Similarly, the Senate Report notes:
16
'The bill contains sufficient safeguards to assure adequate protection of the general public against the addict who is or may be a hardened criminal, while providing the flexibility necessary to enable Federal authorities to medically treat the addict who is capable of being cured and rehabilitated . . ..' S.Rep.No.1667, at 13.8
17
It is quite clear that in adopting the two-prior-felony exclusion, Congress sought first, to exclude from NARA treatment those less likely to be rehabilitated by such treatment, and second, to exclude those whose records disclosed a 'history of serious crimes.' The question we are called upon to decide is whether Congress could rationally have assumed that a person, who has committed two or more prior felonies and is an addict at the time sentence is to be imposed is likely to be less susceptible of rehabilitation by reason of his past record, thus posing a greater threat to society upon release.
18
Congress' concern with susceptibility and suitability of multiple offenders to rehabilitative treatment can reasonably be said to derive from its belief that because of the nature of addiction treatment, one who had evidenced greater difficulty in conforming his behavior to societal rules and laws would himself be less likely to benefit from treatment. Additionally, such a person might also pose impediments to the successful treatment of others in the program. As testimony before both the House and Senate committees revealed, the treatment process for narcotics addiction is an arduous and a delicate undertaking, particularly in the aftercare stage when the subject is released into an unstructured environment which requires from the addict strict obedience to the limitations of the prescribed regime and full cooperation in the rehabilitative efforts.9
19
Additionally, there is no generally accepted medical view as to the efficacy of presently known therapeutic methods of treating addicts and the prospect for the successful rehabilitation of narcotics addicts thus remains shrouded in uncertainty. Indeed, even the premise that drug addiction is one of the significant root causes of crime is not without challenge. See generally D. Musto, The American Disease: Origins of Narcotic Control (1973). See also American Bar Association and American Medical Association, Joint Committee on Narcotic Drugs, Drug Addiction: Crime or Disease? (1961). As testimony before the Congress revealed, no evidence to date has demonstrated more than a speculative chance for the successful rehabilitation of narcotics addicts. H.R.Rep. No. 1486, at 51. S.Rep.No.1667, at 14. The NARA program was therefore fundamentally experimental in nature. See 112 Cong.Rec. 11896—11901 (1966). The suggestion that there is 'obscurity' in the holding of this Court in Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968), fails to take into account that when courts deal with problems in the administration of criminal law such as those related to drug addiction, alcoholism, mental disease, and the like, they are necessarily confined to the existing limits of human knowledge in those areas. As Mr. Justice Marshall noted in Powell:
20
'(T)he inescapable fact is that there is no agreement among members of the medical profession about what it means to say that 'alcoholism' is a 'disease.' One of the principal works in this field states that . . . 'alcoholism has too many definitions and disease has practically none." Id., at 522, 88 S.Ct. at 2149.
21
The holding in Powell was a candid acknowledgment that the medical uncertainties afford little basis for judicial responses in absolute terms.
22
When Congress undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad and courts should be cautious not to rewrite legislation, even assuming, arguendo, that judges with more direct exposure to the problem might make wiser choices. Accordingly, it would have been a permissible choice for Congress to permit discretionary inclusion i NARA programs of those whose prior offenses were determined to be addiction related or motivated. Such a discretion might appropriately have been vested in the trial judge much in the manner in which he is now required to exercise his discretion under § 4252 in determining whether the defendant is an addict who is likely to be rehabilitated through treatment.10 That Congress has not yet chosen to so provide, however, does not render constitutionally impermissible its decision to limit treatment to those with less than two prior felony convictions. Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972).
23
It should be recognized that the classification selected by Congress is not one which is directed 'against' any individual or category of persons, but rather it represents a policy choice in an experimental program made by that branch of Government vested with the power to make such choices. The Court has frequently noted that legislative classifications need not be perfect or ideal. The line drawn by Congress at two felonies, for example, might, with as much soundness, have been drawn instead at one, but this was for legislative, not judicial choice. McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973); Powell v. Texas, supra, 392 U.S., at 539—540, 88 S.Ct., at 2157 (Black, J., concurring). Against this background, it cannot be said that it was unreasonable or irrational for Congress to act on the predicate reflected in the legislative history and explicitly stated in the exclusion provision of § 4251(f)(4), that a person with two or more prior felonies would be less likely to adjust and adhere to the disciplines and rigors of the treatment program11 and hence is a less promising prospect for treatment than those with lesser criminal records.
24
In addition, Congress might rationally have sought to exclude from NARA treatment centers those it thought might be potentially disruptive elements within the sensitive environment of a drug treatment program.12 Nor can Congress be said to have acted without reason in determining that an addict with multiple convictions was more 'hardened' and thus a greater potential danger to society on early release than the addict who had committed one prior felony or none.
25
Under NARA, Congress provided for comparatively lenient sentencing possibilities,13 but in excluding addicts with two prior felonies, it sought to assure that in an essentially experimental program to which limited resources were allocated these features would not be exploited by persons who were viewed by Congress as primarily antisocial and only secondarily addicts.14 In addition, since the fact of two prior felony convictions may be said to evidence a lesser susceptibility of deterrence, the reduced level of deterrence implicit in the benign policy of Title II could reasonably be thought by Congress to create an unacceptable risk to society and thus require the exclusion of such persons from NARA disposition.
26
We therefore hold that Title II of the NARA, 18 U.S.C. §§ 4251—4255, does not constitute a denial of due process or equal protection by excluding from rehabilitative commitment, in lieu of penal incarceration, addicts with two or more prior felony convictions.
27
Affirmed.
28
Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN concur, dissenting.
29
Title II of the Narcotic Addict Rehabilitation Act of 1966 authorizes treatment in lieu of prison sentence for those addicts convicted of an offense against the United States who the sentencing court has determined are 'likely to be rehabilitated through treatment.' 18 U.S.C. § 4253(a). Petitioner was denied treatment for his disease of narcotics addiction, even though no determination was ever made that he is not likely to be rehabilitated through treatment, because the Act excludes from consideration for the NARA program any person with two or more prior felony convictions. 18 U.S.C. § 4251(f)(4). Two courts of appeals have concluded that the two-felony exclusion, though intended by Congress to serve admittedly legitimate ends, is not a sufficiently rational means toward those ends to withstand scrutiny under equal protection principles.1 The Court today, while alluding to some of the statute's serious flaws, nevertheless finds it unconstitutional. I must respectfully dissent.
30
In the present case the Court of Appeals analyzed the constitutionality of the two-felony exclusion by focusing on what it perceived to be this Court's two-tiered approach to equal protection issues. See 470 F.2d 34, 38 (1972). Under this view, classifications involving a 'fundamental interest' or 'suspect classification' are subject to so-called 'strict scrutiny,' while all other statutes are tested by a standard of minimal rationality. While the Court today neither expressly endorses nor rejects this approach, its analysis is so deferential as to confirm an earlier observation that, except in cases where the Court choses to invoke strict scrutiny, the Equal Protection Clause has been all but emasculated. See San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 98, 93 S.Ct. 1278, 1329, 36 L.Ed.2d 16 (Marshall, J., dissenting).2
31
At the outset, then, I must once again take issue with the Court's apparently rigid approach to equal protection issues. See, .e.g., Dandridge v. Williams, 397 U.S. 471, 519—530, 90 S.Ct. 1153, 1178, 25 L.Ed.2d 491 (1970) (Marshall, J., dissenting); Richardson v. Belcher, 404 U.S. 78, 90—91, 92 S.Ct. 254, 261, 30 L.Ed.2d 231 (1971) (Marshall, J., dissenting); San Antonio School Dist. v. Rodriguez, supra, 411 U.S., at 98—110, 93 S.Ct., at 1329 (Marshall, J., dissenting). True, as the Court of Appeals found, this case dos not fit into any neat 'fundamental interest' or 'suspect classification' mold. Notwithstanding, I find it hard to understand why a statute which sends a man to prison and deprives him of the opportunity even to be considered for treatment for his disease of narcotics addiction,3 while providing treatment and suspension of prison sentence to others similarly, situated, should be tested under the same minimal standards of rationality that we apply to statutes regulating who can sell eyeglasses or who can own pharmacies. See Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955); North Dakota State Bd. of Pharmacy v. Snyder's Drug Stores, Inc., 414 U.S. 156, 94 S.Ct. 407, 38 L.Ed.2d 379. This case does not involve discrimination against business interests more than powerful enough to protect themselves in the legislative halls, but the very life and health of a man caught up in the spiraling web of addiction and crime.
32
I press my disagreement no further here, for a careful analysis of the two-felony exclusion and the ends Congress sought to achieve shows that the exclusion is a totally irrational means toward those ends. If deferential scrutiny under the equal protection guarantee is to mean more than total deference and no scrutiny, surely it must reach the statutory exclusion involved in this case.
33
One of Congress' primary purposes in enacting the two-felony exclusion was to limit treatment to those convicted persons considered most deserving of the special benefits provided by the new law. As the Government argues in its brief, Congress wanted to grant the benefits of treatment to those who 'were primarily addicts, and only secondarily criminals.' Brief for United States 6. To state the goal more precisely, Congress intended to give treatment to those addicts whose criminal activity was only a symptom or product of their addiction. The House Report recognized that 'Narcotic addicts in their desperation to obtain drugs often turn to crime in order to obtain money to feed their addiction.' H.R.Rep.No.1486, 89th Cong., 2d Sess., 8 (1966); 1966 U.S.Code Cong. & Admin.News, p. 4249. On the other hand, Congress knew there were others who were first of all criminals, and only secondarily addicts—that is, persons whose criminal activity was independent of their narcotics addiction. It was thought important to preserve strict criminal penalties for such hardened criminals, rather than permit them to use the fact of their addiction to escape punishment for a crime. See 112 Cong.Rec. 11813 (1966).
34
The plain fact of the matter, however, is that the two-felony exclusion does not further this legislative end, as the following examples demonstrate. Defendant A, with a prior felony conviction for assault with intent to commit murder, is convicted of stealing funds from a national bank. Neither crime was in any way related to narcotics addiction. In fact, A was not even an addict at the time he committed the crimes, but has become an addict during the pendency of his bank theft trial. Defendant B, who has two prior felony convictions for narcotics offenses, is convicted of possession of heroin for his own use. Given the above-stated legislative purpose one would think that Defendant B, all of whose criminal activity was related to his narcotics addiction, would be eligible for NARA treatment, while Defendant A, none of whose criminal activity was so related, would not be eligible. But just the opposite is true, because of the two-felony exclusion.4
35
The problem with the statute is not, as the majority would have it, that Congress chose two felonies as the cutoff point rather than one or three. Rather, the statute fails to achieve the legislative end of discriminating between people who are mainly addicts and those who are mainly criminals because a numerical test was used to achieve a qualitative result for which it was totally unsuited.
36
A second basic purpose sought to be achieved through the two-felony exclusion was to restrict NARA treatment to those persons deemed likely to be rehabilitated. But the two-felony rule, again, is not a rational means toward that end. To begin with, it must be remembered that the statute itself limits participation in the program to those persons who, after an examination in the custody of the Attorney General, are determined to be addicts 'likely to be rehabilitated through treatment.' The two-felony exclusion, to the extent it is justified by reference to this policy, amounts to a conclusive and irrebuttable presumption that a person with two or more felony convictions is not likely to be rehabilitated through treatment. We have only recently reiterated that 'permanent irrebuttable presumptions have long been disfavored,' see Vlandis v. Kline, 412 U.S. 441, 446, 93 S.Ct. 2230, 2233, 37 L.Ed.2d 63 (1973). This is particularly true where an interest as important as personal liberty is at stake. And as one would expect of medical problems in general, whether a particular individual's disease of narcotics addiction is amenable to treatment is the very kind of question which requires an individualized determination.5
37
The two-felony presumption of nonamenability to rehabilitation is also plainly contrary to fact. The Administrator of the California Youth and Adult Corrections Agency pointed out that the two-or-more felony provision 'would result in a great many persons being excluded who might prove to be the best subjects for the program.'6 As he indicated, it was the experience of the California program,7 upon which the federal program was modeled in large part, that 'persons who have had as many as four or five previous convictions and have grown older in years respond to the program better than some of the younger persons earlier in their careers.'8 Nor was any contrary evidence presented to Congress.
38
Another purpose of the two-felony exclusion was to weed out those violent, antisocial individuals whose participation in the program would interfere with the rehabilitation of others. But again, Congress has drawn a numerical test to achieve a qualitative result for which it is manifestly unsuited. An addict with a prior conviction for attempted murder can participate in the NARA program, while one whose prior record includes two convictions for possession of narcotic drugs cannot.9
39
It makes no sense to deem an addict a 'hardened criminal' unworthy or unsuited for treatment simply because he has engaged in criminal activity which may have been the symptom or product of his addiction. Congress enacted NARA because it knew that almost all addicts are hardened criminals in this sense. Not only are they driven to rob and steal in order to obtain money to sustain their habits, but their habits themselves involve the commission of felonies every day of their lives. As the House Report stated, the purpose of the bill was 'to treat the unfortunate addict who is capable of rehabilitation to render assistance in a manner which will enable him to extricate himself from an otherwise hopeless and repetitious pattern of addiction and crime.'10 To deny treatment to those addicts who have been convicted of a certain number of felonies, without regard to the relationship between their addiction and the prior offenses, is, in the apt words of Congressman Ryan, like 'building a sanatorium to treat tuberculosis, and then refusing admittance to patients with a contagious disease.' 112 Cong.Rec. 11812 (1966).11
40
It is argued that the NARA program is essentially experimental in nature, and that courts should therefore be particularly reluctant to interfere with legislative decisions. But this observation must be tempered by a realization that we are experimenting here with people's lives and health. And it can hardly be said that a program now in its seventh year of operation is still basically experimental. Only last year, Congress broadened the NARA program to include methadone maintenance as part of the available rehabilitative treatment, recognizing the many cases of addiction which, though not totally curable, can be maintained in a manner which fosters the individual's social rehabilitation and permits him to become a productive member of society. See Pub.L. No. 92—420, 86 Stat. 677; S.Rep.No.92—1071 (1972). With the program widened in this fashion, it seems even more irrational to exclude those who might well benefit from the expanded program through the operation of broad and arbitrary exclusions that do not reasonably further any legitimate congressional purposes.
41
Finally, we must be mindful that the growing concern with treatment of narcotics addicts has not arisen in a legal vacuum, but has paralleled a growing awareness of the Eighth Amendment questions raised when criminal punishment is imposed for activities which are the symptom or direct product of the disease of narcotics addiction.12 The Court today, by dicta implying that Congress may, consistent with the equal protection concept, deny NARA benefits to persons convicted of narcotics-related offenses because of two prior convictions for narcotics-related offenses,13 only exacerbates these Eighth Amendment problems.
42
Mr. Justice Jackson, himself a strong opponent of substantive due process, once argued that the vitality of the Equal Protection Clause as a ground for constitutional adjudication is that it 'does not disable any governmental body from dealing with the subject at hand.' Rather, it merely sends the legislature back to the drawing board to draft a statute which more precisely and more evenhandedly solves the problem. See Railway Express Agency v. People of New York, 336 U.S. 106, 112, 69 S.Ct. 463, 466, 93 L.Ed. 533 (1949) (concurring opinion). I would not deny Congress the right to limit the NARA program to persons whose criminal activity was a product of their addiction, to those who were likely to be rehabilitated, or to those whose presence in a treatment center would not interfere with the rehabilitation of others. But I would have Congress make a second attempt at drafting a statute which actually furthers these ends.
1
Title 18 U.S.C. § 4253(a) provides in relevant part that:
'Following the examination provided for in section 4252, if the court determines that an eligible offender is an addict and is likely to be rehabilitated through treatment, it shall commit him to the custody of the Attorney General for treatment under this chapter . . ..'
Title 18 U.S.C. § 4251(f) provides that:
'(f) 'Eligible offender' means any individual who is convicted of an offense against the United States, but does not include—
'(1) an offender who is convicted of a crime of violence.
'(2) an offender who is convicted of unlawfully importing or selling or conspiring to import or sell a narcotic drug, unless the court determines that such sale was for the primary purpose of enabling the offender to obtain a narcotic drug which he requires for his personal use because of his addiction to such drug.
'(3) an offender against whom there is pending a prior charge of a felony which has not been finally determined or who is on probation or whose sentence following conviction on such a charge, including any time on parole or mandatory release, has not been fully served: Provided, That an offender on probation, parole, or mandatory release shall be included if the authority authorized to require his return to custody consents to his commitment.
'(4) an offender who has been convicted of a felony on two or more prior occasions.
'(5) an offender who has been committed under title I of the Narcotic Addict Rehabilitation Act of 1966, under this chapter, under the District of Columbia Code, or under any State proceeding because of narcotic addiction on three or more occasions.'
Title 18 U.S.C. § 4251(d) defines 'felony' for purposes of the Act to include
'any offense in violation of a law of the United States classified as a felony under section 1 of title 18 of the United States Code, and further includes any offense in violation of a law of any State, any possession or territory of the United States, the District of Columbia, the Canal Zone, or the Commonwealth of Puerto Rico, which at the time of the offense was classified as a felony by the law of the place where that offense was committed.'
2
Prisoners not eligible for treatment under NARA may receive the benefit of programs comparable to those provided under NARA, available to narcotics addicts under administrative processes of the Federal Bureau of Prisons. See generally Drug Abuse Programs Manual, Bureau of Prisons Policy Statement No. 8500.1 (Apr. 20, 1973).
3
Because the two-prior-felony convictions in Watson were for violations of narcotics laws, there was some conjecture that the rationale of that case was limited to its facts. In United States v. Hamilton, 149 U.S.App.D.C. 295, 462 F.2d 1190 (1972), the Court of Appeals for the District of Columbia Circuit, the same court which decided Watson, dispelled all doubt by holding the two-prior-felony exclusion to be unconstitutional where the defendant has been convicted of one prior narcotics law felony and four prior non-narcotics felony offenses. Subsequently, in United States v. Bishop, 469 F.2d 1337 (1972), the Court of Appeals for the First Circuit also held the exclusion of § 4251(f)(4) to be unconstitutional where the prior felonies were non-narcotics violations.
4
In 1966, Congress enacted the Narcotic Addict Rehabilitation Act, Pub.L. 89—793, 80 Stat. 1438. Title I of the Act, 28 U.S.C. §§ 2901—2906, provides for civil rehabilitative commitment prior to trial of persons charged with federal crimes, and dismissal of the charges upon successful completion of the treatment. Title II, 18 U.S.C. §§ 4251—4255, provides for similar commitment in lieu of imprisonment for those convicted of a federal crime. Title III, 42 U.S.C. §§ 3411—3426, provides for civil commitment of persons not involved in the criminal process. In each case, the court must, after ordering commitment for examination, determine whether the individual is an addict, as defined by the statute, 28 U.S.C. § 2901(a), 18 U.S.C. § 4251(a), 42 U.S.C. § 3411(a), and whether he 'is likely to be rehabilitated through treatment,' 28 U.S.C. § 2902(b), 18 U.S.C. § 4253(a), 42 U.S.C. § 3415.
5
The Act was based on the House-passed Administration bill, H.R. 9167. The two-felony exclusion is derived from that bill, which contained all five of the final exclusions in some form. All of the other House bills considered by the House Committee, but one, also had a two-felony exclusion. See Civil Commitment and Treatment of Narcotic Addicts, Hearings on H.R. 9051, 9159, 9167 and Related Bills before Subcommittee No. 2 of the House Committee on the Judiciary, 89th Cong., 1st and 2d Sess., ser. 10, pp. 1—14, 17, 20—53 (1965 and 1966). The Senate bill, S. 2191, did not, however, contain the two-felony exclusion, see S.Rep.No.1667, 89th Cong., 2d Sess., 7—8 (1966). In conference, where Titles I and II of the House bill were adopted, the two-felony exclusion was incorporated into the final bill. See H.R.Conf.Rep.No.2316, 89th Cong., 2d Sess., 2—3, 6 (1966); 1966 U.S.Code Cong. & Admin.News, p. 4263; 112 Cong.Rec. 27616 (1966).
6
'After carefully considering the proposed legislation, as amended, the committee finds that it offers a flexible and logical means to provide for the treatment of drug addicts who are likely candidates for rehabilitation without essentially changing the authority of law enforcement officials and the courts to enforce full criminal actions in appropriate cases.' S.Rep.No.1667, at 37. (Emphasis supplied.)
7
Though actually discussing the definition of 'eligible individuals' contained in Title I, concerning civil commitment prior to trial, the identical definitions are contained in Title II, and the House Report indicates that there is no difference between the rationale or the language of the various provisions. See H.R.Rep. No. 1486, 89th Cong., 2d Sess., 12, 20 (1966).
8
Prior to inclusion of the two-prior-felony exclusion, the Senate Report described the purposes of the restrictions on eligibility by stating:
'The net effect is to confine eligibility for the benefits of the legislation to addicts accused of nonviolent crimes who show good prospects for rehabilitation, while retaining strict criminal punishment for dangerous or hardened offenders, narcotics pushers, and persons with a history of failure to respond to treatment.' S.Rep.No.1667, at 17.
The bill which emerged from conference included the two-prior-felony exclusion, and the report on that bill merely noted that 'the conferees for the Senate felt it reasonable to exclude hardened offenders with serious criminal records and persons who have demonstrated their unsuitability for civil treatment.' 112 Cong.Rec. 27616 (1966).
9
The Senate Report states:
'The process is extremely complex and difficult, involving sustained therapy, principally psychiatric, and perhaps a return to the community in stages, utilizing short visits, a halfway house, a work camp, or some similar facility. . . . In addition, some sanction should be available to enforce the cooperation of the addict in the post-hospitalization period.' S.Rep.No.1667, at 15.
10
Some criticism has been directed at the cautious use of the NARA program. See Report by the Comptroller General of the United States to the Congress, Limited Use of Federal Programs to Commit Narcotic Addicts for Treatment and Rehabilitation (1971).
11
Similarly rational was the related congressional choice to give priority of treatment to convicted addicts at an early stage in their lives. Although not invariably so, those with no felony record may well be younger, as a group, than those with multiple convictions, and this notwithstanding that the median age of serious offenders has shown a steady downward trend.
12
Virtually all drug treatment programs include group therapy and involve extensive personal interaction among those in the treatment program. In addition, there are strict institutional rules regarding virtually every aspect of the addict's daily existence which he is expected to follow, and the existence of such authority is considered vital to successful treatment, both in the program itself, and particularly during the aftercare period. See Code, Report on the Treatment of Drug Addiction, Task Force Report: Narcotics and Drug Abuse, The President's Commission on Law Enforcement and Administration of Justice 135—147 (1967); Petersen, Yarvis & Farkas, The Federal Bureau of Prisons Treatment Program for Narcotics Addicts (1969); Federal Drug Abuse Programs, A Report Prepared by the Task Force on Federal Heroin Addiction Programs and Submitted to the Criminal Law Section of the American Bar Association and the Drug Abuse Council 241—278, 393—416 (1972); Vaillant & Rasor, The Role of Compulsory Supervision in the Treatment of Addiction, 30 Fed.Prob. 53—59 (June 1966).
13
Under 18 U.S.C. § 4253, an individual who is determined to be eligible for NARA treatment is to be committed to the custody of the Attorney General for treatment for 'an indeterminate period of time not to exceed ten years, but in no event shall it exceed the maximum sentence that could otherwise have been imposed.' Title 18 U.S.C. § 4254 then allows for conditional release of an offender, upon the requisite determination, any time after the offender has received six months' treatment. Thereafter, he is legally on parole under the jurisdiction of the Board of Parole, 18 U.S.C. § 4255.
14
See 112 Cong.Rec. 11813 (1966).
1
See Watson v. United States, 141 U.S.App.D.C. 335, 439 F.2d 442 (1970); United States v. Hamilton, 149 U.S.App.D.C. 295, 462 F.2d 1190 (1972); United States v. Bishop, 469 F.2d 1337 (CA1 1972). In addition to the statute's flaws noted in this opinion, these decisions also point out other anomalies implicit in the two-felony exclusion. Under the Act, an addict who has engaged in trafficking to support his own habit would be eligible for noncriminal disposition under Tit. II, whereas a nontrafficking addict found, for the third time, in possession of narcotics for his own use would not. This result, 'is curiously at odds with the Congressional preoccupation, underlying the Narcotic Addict Rehabilitation Act, with the distinction between traffickers and non-traffickers, and the reiterated purpose that 'strict punishment . . . be meted out where required to the hardened criminal, while justice . . . be tempered with judgment and fairness in those cases where it is to the best interest of society and the individual that such a course be followed." Watson v. United States, supra, 141 U.S.App.D.C., at 349, 439 F.2d, at 456. Other anomalies stem from the definition of 'felony' in 18 U.S.C. § 4251(d). '(T)wo persons who both had twice previously committed the identical crime of possession of marijuana might be treated differently under (the two-felony exclusion) simply because one committed his crimes in Florida where possession over five grams is a felony and the other committed his in New York where it is only a misdemeanor . . . or because one committed both of his crimes before May 1, 1971, and the other committed them after that date, when the federal offense of marijuana possession was reduced to a misdemeanor for first offenders . . ..' United States v. Bishop, supra, 469 F.2d, at 1345.
2
Cf. Gunther, The Supreme Court 1971 Term, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1, 8 (1972).
3
Drug addiction is specifically referred to as a 'disease' in the Senate Report recommending enactment of Pub.L. No. 92—420, 86 Stat. 677, which expanded the NARA program to include methadone maintenance. See S.Rep.No.92—1071, p. 3 (1972). The most widely accepted and authoritative definition of heroin addiction is one promulgated by the World Health Organization, which lists its characteristics as:
'(1) an overpowering desire or need to continue taking the drug and to obtain it by any means; the need can be satisfied by the drug taken initially or by another with morphine-like properties;
'(2) a tendency to increase the dose owing to the development of tolerance;
'(3) a psychic dependence on the effects of the drug related to a subjective and individual appreciation of those effects; and
'(4) a physical dependence on the effects of the drug requiring its presence for maintenance of homeostasis and resulting in a definite, characteristic, and self-limited abstinence syndrome when the drug is withdrawn.' United States v. Moore, 158 U.S.App.D.C. 375, 465—466, 486 F.2d 1139, 1229—1230 (1973) (Wright, J., dissenting), quoting World Health Organization Expert Committee on Addiction-Producing Drugs, Thirteenth Report, World Health Organization Technical Report Series No. 273, p. 13 (1964).
Congress has similarly defined an 'addict' to include one 'who is so far addicted to the use of narcotic drugs as to have lost the power of self-control with reference to his addiction.' 21 U.S.C. § 802(1).
4
Defendant A would not be excluded from the program under the statutory exclusion of 'an offender who is convicted of a crime of violence,' 18 U.S.C. § 4251(f)(1), since that exclusion applies only to a person convicted of a crime of violence in the same proceeding in which Tit. II is considered as an alternative to prison sentence. Thus, if one has just been convicted of a 'crime of violence' as defined in § 4251(b), one is disqualified from the program under § 4251(f)(1), while if one had previously been so convicted but is now convicted of a nonviolent crime one would be eligible. See United States v. Bishop, 469 F.2d, at 1344.
5
Congressman Celler remarked: 'Each individual case must be scrutinized to determine whether civil commitment will be efficacious. I submit that it should not be the Congress who, at long distance, makes such determinations. In the absence of the facts of individual cases, these decisions can only be arbitrary.' See Civil Commitment and Treatment of Narcotic Addicts, Hearings on H.R. 9051, 9159, 9167 and Related Bills before Subcommittee No. 2 of the House Committee on the Judiciary, 89th Cong., 1st and 2d Sess., ser. 10, p. 55 (1965 and 1966).
6
The Narcotic Addict Rehabilitation Act of 1966, Hearings before a Special Subcommittee of the Senate Committee on the Judiciary, 89th Cong., 2d Sess., 91 (1966).
7
See Cal. Welf. & Inst. Code §§ 3050—3054, 3104—3107, and 3109 (1972). The California statute has no exclusion similar to the two-felony exclusion. It is also interesting to note that while the California Act, like the federal Act, excludes persons convicted of certain crimes of violence, see id., § 3052, the statute also provides that even in the case of an offender convicted of a crime of violence, 'the judge may request the district attorney to investigate the facts relevant to the advisability of commitment pursuant to this section. In unusual cases, wherein the interest of justice would best be served, the judge may, with the concurrence of the district attorney and defendant, other commitment notwithstanding' the crime-of-violence exclusion. Id., § 3051.
8
Hearings, supra, n. 5, at 153.
9
The statute's disregard of all time limits is further evidence of its arbitrary nature. 'All prior felonies are counted whether a joy-ride by a peer-imitating teenager or a rape committed by a 35-year old sex deviate during the pendency of the proceedings in which sentence is about to be imposed. Any intervening period between felonies of good behavior or attempts at rehabilitation are ignored; a person is thought to harden as a criminal merely because he accumulates a fixed number of judgments, regardless of changes in his personality or personal circumstances over time.' United States v. Bishop, supra, 469 F.2d, at 1345.
10
H.R.Rep.No.1486, 89th Cong., 2d Sess., 5 (1966); 1966 U.S.Code Cong. and Admin. News, p. 4249.
11
The majority's contention, see ante, at 420 n. 2, that prisoners not eligible for the NARA program are not actually denied treatment because they may receive the benefits of similar programs within the Federal Bureau of Prisons is simply contrary to fact. As the Government itself indicates in its brief, treatment begins immediately upon commitment under NARA, and the offender is eligible for conditional release on parole after six months of treatment. Brief for United States 2 n. 1. Addicts not committed under NARA, however, are not placed in any rehabilitation program until about one year before their anticipated release. Ibid. Thus, an addict like petitioner, who received a 10-year sentence, will have to go many years without treatment for his disease because of his exclusion from the NARA program.
More importantly, we are told that the Bureau of Prisons does not have sufficient facilities for treatment of the approximately 5,000 federal prisoners estimated to suffer from some degree of drug dependency. In the Government's own words: 'Thus, although commitment under NARA assures treatment, a judicial recommendation for similar treatment at the time an ordinary criminal sentence is imposed does not.' Id., at 3 n. 1. Indeed, there is no indication in the record in this case that petitioner has yet received any treatment for his addiction, notwithstanding the sentencing court's recommendation of treatment.
12
In Watson v. United States, 141 U.S.App.D.C. 335, 439 F.2d 442 (1970), it was argued that criminal punishment of an addict for possession of narcotics solely for his own use was impermissible under the Eighth Amendment, but the question was left undecided because not clearly raised before the trial court. See id., at 346, 439 F.2d, at 453. Plenary consideration of the Eighth Amendment problems of convicting addicts for addiction-related offenses came in United States v. Moore, 158 U.S.App.D.C. 375, 486 F.2d 1139 (en banc), cert. denied, 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed.2d 224 (1973). Although the defense of addiction was rejected by a 5—4 decision, it now appears that for two members of the majority, the rejection of the Eighth Amendment defense 'rested on the availability to the defendant-addict of treatment through NARA.' See United States v. Harrison, 158 U.S.App.D.C. 229, 231, 485 F.2d 1008, 1010 (1973).
This Court has previously dealt with related issues in Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), and Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968).
13
As the majority opinion indicates, petitioner had three prior felony convictions for burglary, forgery, and possession of a firearm, respectively, and there was no attempt to show that his prior convictions related to traffic in narcotics. In addition, there does not appear to have been any showing that petioner's present conviction for entering a bank with intent to commit a felony was narcotic related. Accordingly, the majority's remarks with respect to Congress' power to exclude from the NARA program persons whose prior and pesent offense are addiction related or motivated purport to resolve questions not before us in this case. See ante, at 427—428.
| 34
|
414 U.S. 453
94 S.Ct. 690
38 L.Ed.2d 646
NATIONAL RAILROAD PASSENGER CORPORATION et al., Petitioners,v.NATIONAL ASSOCIATION OF RAILROAD PASSENGERS.
No 72—1289.
Argued Nov. 12, 1973.
Decided Jan. 9, 1974.
Rehearing Denied Feb. 25, 1974.
See 415 U.S. 952, 94 S.Ct. 1478.
Syllabus*
Respondent brought this action to enjoin discontinuance of certain passenger trains on the ground that such discontinuance was prohibited by the Rail Passenger Service Act of 1970 (Amtrak Act). The District Court dismissed the action on the ground that respondent lacked standing under § 307(a) of the Amtrak Act, which confers jurisdiction on federal district courts to grant equitable relief on petition of the Attorney General or, in a case involving a labor agreement, on petition of any affected employee, including authorized employee representatives, if Amtrak or any railroad acts inconsistently with the Act or fails to discharge its responsibilities thereunder. The Court of Appeals reversed, holding that respondent did have standing and that § 307(s) does not otherwise bar such a suit by an allegedly aggrieved private party. Held: Section 307(a), in light of its express language, and the legislative history of that provision and of the Act as a whole, provides the exclusive remedies for breaches of any duties or obligations imposed by the Act, and no additional private cause of action to enforce compliance with the Act can properly be inferred. Pp. 455—465. 154 U.S.App.D.C. 214, 475 F.2d 325.
Reversed and remanded.
E. Barrett Prettyman, Jr., Washington, D.C., for the petitioners.
Gordon P. MacDougall, Washington, D.C., for the respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The respondent, the National Association of Railroad Passengers (NARP), brought this action in the District Court to enjoin the announced discontinuance of certain passenger trains that had previously been operated by the Central of Georgia Railway Co. (Central). Named as defendants were Central, its parent, Southern Railway Co. (Southern), and the National Railroad Passenger Corp. (Amtrak), all of which are the petitioners in this Court. The question before us is whether this action is maintainable under applicable federal law.
2
After the enactment of the Rail Passenger Service Act of 1970 (Amtrak Act), 84 Stat. 1327, 45 U.S.C. § 501 et seq., Central contracted with Amtrak for the latter to assume Central's intercity rail passenger service responsibilities.1 Southern has not entered into any contract with Amtrak. The train discontinuances that precipitated this action were announced by Amtrak pursuant to § 404(b)(2) of the Amtrak Act, 45 U.S.C. § 564(b)(2).2 The gravamen of the respondent's complaint was that these discontinuances are not authorized by, and in fact are prohibited by, the Amtrak Act.3 The District Court concluded that the respondent lacks standing under § 307 of the Amtrak Act, 45 U.S.C. § 547, and accordingly dismissed the action. The Court of Appeals reversed and held that the respondent has standing and that § 307 does not otherwise bar such a suit by a private party who is allegedly aggrieved.4 We granted certiorari to decide whether such a private cause of action can be maintained in light of § 307(a) of the Amtrak Act. 411 U.S. 981, 93 S.Ct. 2273, 36 L.Ed.2d 957 (1973).
3
In this Court and in the Court of Appeals, the parties have approached the question from several perspectives. The issue has been variously stated to be whether the Amtrak Act can be read to create a private right of action to enforce compliance with its provisions; whether a federal district court has jurisdiction under the terms of the Act to entertain such a suit; and whether the respondent has standing to bring such a suit. Because the reference in each instance is to § 307(a) of the Act and the legislative history behind that provision, these questions overlap in the context of this case even more than they ordinarily would. But, however phrased, the threshold question clearly is whether the Amtrak Act or any other provision of law creates a cause of action whereby a private party such as the respondent can enforce duties and obligations imposed by the Act; for it is only if such a right of action exists that we need consider whether the respondent had standing to bring the action and whether the District Court had jurisdiction to entertain it.
4
The respondent has pointed to no provision of law outside the Amtrak Act itself that can be read to create or imply the cause of action that it seeks to bring against the petitioners. It follows that support for the bringing of this action must be found, if at all, within the four corners of that Act. The only section of the Act that authorizes any suits to enforce duties and obligations is § 307(a), which provides:
5
'If the Corporation or any railroad engages in or adheres to any action, practice, or policy inconsistent with the policies and purposes of this chapter, obstructs or interferes with any activities authorized by this chapter, refuses, fails, or neglects to discharge its duties and responsibilities under this chapter, or threatens any such violation, obstruction, interference, refusal, failure, or neglect, the district court of the United States for any district in which the Corporation or other person resides or may be found shall have jurisdiction, except as otherwise prohibited by law, upon petition of the Attorney General of the United States or, in a case involving a labor agreement, upon petition of any employee affected thereby, including duly authorized employee representatives, to grant such equitable relief as may be necessary or appropriate to prevent or terminate any violation, conduct, or threat.' 45 U.S.C. § 547(a).
6
In terms, § 307(a) purports only to confer jurisdiction not to create a cause of action. The legislative history, however, makes clear that the congressional purpose was to authorize certain types of suits for the enforcement of the Act's provisions. The House Report explained the section as follows:
7
'Section 307 authorizes the Attorney General of the United States to sue the corporation or any railroad to prevent acts of omission or commission in violation of this legislation. In the case of labor agreements, individual employees or duly authorized employee representatives may sue for equitable relief.' H.R.Rep. No. 91—1580, p. 9 (1970), U.S.Code Cong. & Admin. News, p. 4743.
8
In light of the language and legislative history of § 307(a), we read it as creating a public cause of action, maintainable by the Attorney General, to enforce the duties and responsibilities imposed by the Act. The only private cause of action created by that provision, however, is explicitly limited to 'a case involving a labor agreement.' Thus, no authority for the action the respondent has brought can be found in the language of § 307(a). The argument is made, however, that § 307(a) serves only to authorize certain suits against Amtrak and that it should not be read to preclude other private causes of action for the enforcement of obligations imposed by the Act. The respondent claims that railroad passengers are the intended beneficiaries of the Act and that the courts should therefore imply a private cause of action whereby they can enforce compliance with the Act's provisions. See J. I. Case Co. v. Borak, 377 U.S. 426, 431—432, 84 S.Ct. 1555, 1559—1560, 12 L.Ed.2d 423 (1964). It goes without saying, however, that the inference of such a private cause of action not otherwise authorized by the statute must be consistent with the evident legislative intent and, of course, with the effectuation of the purposes intended to be served by the Act.
9
A frequently stated principle of statutory construction is that when legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the statute to subsume other remedies. 'When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode.' Botany Worsted Mills v. United States, 278 U.S. 282, 289, 49 S.Ct. 129, 132, 73 L.Ed. 379 (1929). This principle of statutory construction reflects an ancient maxim—expressio unius est exclusio alterius. Since the Act creates a public cause of action for the enforcement of its provisions and a private cause of action only under very limited circumstances, this maxim would clearly compel the conclusion that the remedies created in § 307(a) are the exclusive means to enforce the duties and obligations imposed by the Act. But even the most basic general principles of statutory construction must yield to clear contrary evidence of legislative intent. Neuberger v. Commissioner, 311 U.S. 83, 88, 61 S.Ct. 97, 101, 85 L.Ed. 58 (1940). Accordingly, we turn to the legislative history of § 307(a).
10
The original draft of § 307(a) differed from its present form in several respects. It conferred upon federal district courts jurisdiction to entertain suits against Amtrak (but not individual railroads) 'upon petition of the Attorney General of the United States or, in a case involving a labor agreement, upon petition of any individual affected thereby . . ..'5 At the hearings of the House Committee, representatives of organized labor took issue with certain aspects of the draft provision and proposed several changes. One of these proposals would have authorized suits against the railroads as well as Amtrak. Another would have authorized private suits by 'any person adversely affected or aggrieved thereby, including the representatives of the employees of any railroad or of the Corporation.' In support of the latter proposal, one labor spokesman testified:
11
'The . . . amendment we propose would modify the language of section 307(a) . . . so as to provide that any aggrieved party, including employee representatives, could institute legal proceedings for violations of the law.
12
'As the bill now reads, only the Attorney General, except in cases involving a labor agreement, could bring such actions.' Supplemental Hearings on H.R. 17849 and S. 3706 before the Subcommittee on Transportation and Aeronautics of the House Committee on Interstate and Foreign Commerce, 91st Cong., 2d Sess., ser. 91—62, p. 134 (1970) (emphasis added).
13
The Secretary of Transportation, who was to be the primary administrative officer responsible for the implementation of the Act, sent a letter to the Subcommittee Chairman commenting on these proposed changes. His letter stated that he did not object to allowing suits against railroads as well as Amtrak.6 As to the proposal to amend the bill to permit suits by any 'aggrieved person,' however, he stated:
14
'Sanctions are normally imposed by the Government. Consequently, I would be opposed to permitting 'any person' to seek enforcement of section 307. I would have no objection, however, if the section were revised to permit employee representatives, as well as employees adversely affected, to seek equitable relief.' Hearings. supra, at 85.
15
Thereafter, the Committee redrafted § 307(a) in conformity with the Secretary's recommendations. The Committee's redraft and the bill as finally enacted authorized suits against railroads as well as Amtrak, and permitted suits involving labor agreements by 'duly authorized employee representatives' as well as by affected employees, but did not authorize suits by 'any person adversely affected or aggrieved.'
16
Both the Secretary of Transportation and the representatives of organized labor thus interpreted § 307(a) in its present form as precluding private actions other than those specifically authorized therein. Although the transcript of the House Committee hearings does not indicate that any Committee member voiced explicit affirmative agreement with this interpretation, it is surely most unlikely that the members of the Committee would have stood mute if they had disagreed with it. Especially in light of the Secretary's substantial role in the eventual implementation of the Act,7 we cannot conclude that his interpretation of its draft provisions was not accorded significant weight by the Committee.
17
The members of the Committee had before them a specific proposal that would have altered the interpretation that was being placed on § 307(a), and would have explicitly permitted suit to enforce the Act's provisions by 'any person adversely affected or aggrieved.' The Committee's deliberate failure to adopt that proposal, after learning of the Secretary's views, cannot but give weight to the conclusion that the Committee agreed with the Secretary's interpretation of the meaning and effect of the existing language, as well as with his opposition to the proposed change. These factors are substantial indicia that the legislators understood that § 307(a) as written would preclude private causes of action to enforce compliance with the Act, other than in the limited area of cases 'involving a labor agreement.' We have found no contrary indication in any of the hearings or committee reports. Thus, the explicit legislative history of § 307(a), such as it is, serves to support the same interpretation of its language that would be accorded by settled rules of statutory construction.
18
This construction of § 307(a) is also completely consistent with the Act as a whole and with its more generalized legislative history. In outlining the purpose of the Amtrak Act, the House Report, referring to a comment by the Secretary of Transportation, noted that '(i)n order to achieve economic viability in a basic rail passenger system, . . . there will have to be a 'paring of uneconomic routes." H.R.Rep. No. 91—1580, p. 3 (1970), U.S.Code Cong. & Admin. News, p. 4737. Thus, Congress concluded that 'a rational reduction of present service will be required in order to save any passenger service.' Ibid. (emphasis in original). In § 404 of the Act, Congress provided an efficient means whereby Amtrak could eliminate uneconomic routes (other than a 'basic system' designated and from time to time augmented by the Secretary of Transportation) without the necessity of submitting to the time-consuming proceedings of state regulatory bodies or the Interstate Commerce Commission that had been required before the Act's passage.8 If, however, § 307(a) were to be interpreted as permitting private lawsuits to prevent the discontinuance of passenger trains, then the only effect of the Act in this regard would have been to substitute the federal district courts for the state or federal administrative bodies formerly required to pass upon proposed discontinuances.9
19
If the respondent's view of the Act were to prevail, a private plaintiff could secure injunctive process to prevent the discontinuance of an 'uneconomic' passenger train pendente lite, which would force Amtrak to continue the train's operation and to incur the resulting deficits and dislocations within its entire system while the court considered the propriety of the proposed discontinuance.10 Since suits could be brought in any district through which Amtrak trains pass and since there would be a myriad of possible plaintiffs, the potential would exist for a barrage of lawsuits that, either individually or collectively, could frustrate or severely delay any proposed passenger train discontinuance. Even if one court eventually upheld the discontinuance, its judgment would not control a suit brought in another district and would not, in any event, obviate the loss in the interim of substantial sums and the diversion of rolling stock from more heavily traveled routes. This would completely undercut the efficient apparatus that Congress sought to provide for Amtrak to use in the 'paring of uneconomic routes.' It would also product the anomalous result of a discontinuance procedure under the Act considerably less efficient than that which existed before, since there would no longer be a single forum that could finally determine the permissibility of a proposed discontinuance. In the place of the state or federal regulatory bodies, the Congress would have substituted any and all federal district courts through whose jurisdictions an Amtrak train might run.
20
Congress clearly did not intend to replace the delays often inherent in the administrative proceedings contemplated by § 13a of the Interstate Commerce Act with the probably even greater delays inherent in multiple federal court proceedings.11 Instead, it clothed the Attorney General with the exclusive (except in cases involving labor agreements) authority to police the Amtrak system and to enforce the various duties and obligations imposed by the Act. In light of the substantial scrutiny to which Amtrak operations are subject by both Congress and the Executive, Congress could quite rationally suppose that this remedy will effectively prevent and correct any Amtrak breaches of obligations under the Act.12
21
For these reasons we hold that § 307(a) provides the exclusive remedies for breaches of any duties or obligations imposed by the Amtrak Act, and that no additional private cause of action to enforce compliance with the Act's provisions can properly be inferred.13 Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.
22
It is so ordered.
23
Reversed and remanded.
24
Mr. Justice POWELL took no part in the consideration or decision of this case.
25
Mr. Justice BRENNAN, concurring.
26
Although I am in agreement that the legislative history of the Amtrak Act provides a clear and convincing expression of Congress' intent to preclude anyone except the Attorney General and in certain situations an employee or his duly authorized representative from maintaining an action under the Act against petitioners, I would leave open the question whether a private suit for mandamus under 28 U.S.C. § 1361 might be maintained against the Attorney General if his refusal to act under § 307 even though within the letter of his authority—went 'beyond any rational exercise of discretion.' United States ex rel. Schonbrun v. Commanding Officer, 2 Cir., Armed Forces, 403 F.2d 371, 374 (CA 2 1967); see Byse & Fiocca, Section 1361 of the Mandamus and Venue Act of 1962 and 'Nonstatutory' Judicial Review of Federal Administrative Action, 81 Harv.L.Rev. 308, 333—335 (1967).
27
Mr. Justice DOUGLAS, dissenting.
28
The Rail Passenger Service Act of 1970, 45 U.S.C. § 501 et seq., authorized the creation of Amtrak to provide intercity rail passage. With 'the expectation that the rendering of such (rail) service along certain corridors (could) be made a profitable commercial undertaking,' the Act established Amtrak as a private-for-profit corporation. 45 U.S.C. § 541; H.R.Rep.No.91 1580, p. 1 (1970), U.S.Code Cong. & Admin.News, p. 4735. Amtrak has until January 1, 1975, to tender a contract to a railroad to release the latter of its entire responsibility for the provision of intercity rail passenger service. 45 U.S.C. § 564(a). Unless a railroad has a contract with Amtrak to render the service, it may not discontinue intercity passenger service prior to January 1, 1975, 'the provisions of any other Act, the laws or constitution of any State, or the decision or order of, or the pendency of any proceeding before, a Federal or State court, agency, or authority to the contrary notwithstanding.' Ibid. Those intercity services are not yet a part of 'the basic system' put together by Amtrak, a system which by § 202 of the Act is unique in the sense that it 'shall not be reviewable in any court.'1 45 U.S.C. § 522.
29
Our problem concerns, not 'the basic system' created by Amtrak, but what were called on oral argument the 'excess' lines that, absent a contract with Amtrak, are under a congressional mandate not to discontinue 'any intercity passenger train whatsoever prior to January 1, 1975.' 45 U.S.C. § 564(a).
30
The Court phrases the question in terms of whether a 'right of action' exists, saying that no question of 'standing' or 'jurisdiction' is presented. Whatever the merits of the distinction between these three concepts may be in some situations, the difference here is only a matter of semantics. The District Court dismissed the cause for lack of 'standing.' The Court of Appeals reversed, ruling that there was 'standing.' The parties argue the case on the basis of 'standing.' Even the Solicitor General who appeared as amicus curiae in support of granting the petition for certiorari conceives of the issue in terms of 'standing.' By the Court's own admission this is not a case where all judicial review is foreclosed. For § 307(a), 45 U.S.C. § 547(a), does create a cause of action. May that cause of action be enforced by passengers or only by the Attorney General or by individual employees or railroad unions? Standing of passengers to sue or the existence of a cause of action in passengers is identical in that posture of the case.
31
Whatever the semantics, the question is whether respondent, National Association of Railroad Passengers, a national organization of railroad patrons, may bring this action to enjoin the discontinuance by Central of Georgia Railway Co.2 of passenger trains between Savannah and Atlanta, Georgia, and between Albany, Georgia, and Birmingham, Alabama.
32
Section 307(a), 45 U.S.C. § 547(a), gives the Attorney General of the United States and employees under labor agreements the power to obtain from a district court equitable relief against either Amtrak or any railroad acting in violation of the Act.3 Petitioners argue that § 307(a) restricts suits to the Attorney General and to employees. That seems a strained construction. The most I think that can be drawn from the words of § 307(a) and the legislative history is that Congress wanted to make sure that some federal agency had some oversight over the public activity of this private-for-profit corporation. Hence the grant of standing, or cause of action, to the Attorney General. Moreover, it took out of the penumbra of aggrieved persons, employees having rights under collective agreements. Congress left untouched 28 U.S.C. § 1337 which provides that '(t)he district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce . . ..' Aggrieved passengers are the most obvious complainants when it comes to saving passenger trains from extinction. Certainly passengers of discontinued trains suffer injury in fact and are within the zone of interests protected by the Amtrak Act and thus satisfy two of the three requirements of Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 124. As to the third—that judicial review has not been precluded—it seems as plain to me as it did to the Court of Appeals. Where as here there is no express denial of judicial review, the test is whether 'nonreviewability can fairly be inferred.' Barlow v. Collins, 397 U.S. 159, 166, 90 S.Ct. 832, 837, 838, 25 L.Ed.2d 192. And, since judicial review 'is the rule, and nonreviewability an exception which must be demonstrated,' preclusion of judicial review 'is not lightly to be inferred.' Ibid. '(O)nly upon a showing of 'clear and convincing evidence' of a contrary legislative intent should the courts restrict access to judicial review.' Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681.
33
The grant of jurisdiction to the Attorney General to screen state voting right procedures that might have a discriminatory effect did not, we held in Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1, deprive individual citizens of standing to sue.
34
'The achievement of the Act's laudable goal could be severely hampered, however, if each citizen were required to depend solely on litigation instituted at the discretion of the Attorney General. For example, the provisions of the Act extend to States and the subdivisions thereof. The Attorney General has a limited staff and often might be unable to uncover quickly new regulations and enactments passed at the varying levels of state government. It is consistent with the broad purpose of the Act to allow the individual citizen standing to insure that his city or county government complies with the § 5 approval requirements.' Id., at 556 557, 89 S.Ct. at 827. (footnotes omitted).
35
The Attorney General is a busy person; and it is not credible to believe that a grant of power to him to sue precludes the standing of passengers who are the prime casualties when passenger service is discontinued.
36
Each case involving the availability of judicial review stands on its own feet. In Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61, we denied judicial review since the collective-bargaining right was being protected by a neutral agency, the National Mediation Board. There is no such body standing between the passengers and Amtrak. Amtrak is a private-for-profit corporation which is only construing its own enabling Act. If passengers are denied standing to sue, Amtrak is largely on its own. Especially is this so in light of the Attorney General's own view that the grant of power in § 307(a) is limited and does not authorize him to seek correction of all violations of the Act.4 So far as I can ascertain the Attorney General has not intruded in any case.5 To leave the complete oversight to employees is to make nonreviewable most of Amtrak's decisions. Congress specifically did that when it came to 'the basis group' of carriers. But its mandate not to discontinue passenger service until January 1, 1975, except on a contract with Amtrak is clear. If in that interim there can be no policing of the Act, we have given a corporation which is private and operating for a profit, an administrative absolution we seldom have been willing to conclude that Congress has bestowed even on federal agencies. I cannot believe the Congress had any such purpose.
37
We deal here with a federal cause of action and it is the judicial tradition 'for federal courts to fashion federal law where federal rights are concerned.' Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 457, 77 S.Ct. 912, 918, 1 L.Ed.2d 972. The fact that a private suit to enforce a federal law is not specifically sanctioned by Congress seldom means that standing to sue is foreclosed. The purpose of the Amtrak Act was to preserve and improve train service. The object was not to protect trains per se nor to create an in rem action. The purpose, which the Court in its dedication to legalisms overlooks, was to protect the people who ride the trains. The case is very much on all fours with J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423, where Congress made it unlawful to solicit proxies in violation of rules prescribed by the Securities and Exchange Commission. No standing, no cause of action was expressly given stockholders who might suffer from corporate action pursuant to a deceptive proxy solicitation. Yet we held that the Commission was not granted an exclusive role to play in policing the area:
38
'Private enforcement of the proxy rules provides a necessary supplement to Commission action. As in antitrust treble damage litigation, the possibility of civil damages or injunctive relief serves as a most effective weapon in the enforcement of the proxy requirements. The Commission advises that it examines over 2,000 proxy statements annually and each of them must necessarily be expedited. Time does not permit an independent examination of the facts set out in the proxy material and this results in the Commission's acceptance of the representations contained therein at their face value, unless contrary to other material on file with it.' Id., at 432, 84 S.Ct., at 1560.
39
The Court is in the mood to close all possible doors to judicial review so as to let the existing bureaucracies roll on to their goal of administrative absolutism. When the victims of administrative venality or administrative caprice are not allowed even to be heard, the abuses of the monsters we have created will become intolerable. The separation of powers was designed to provide, not for judicial supremacy, but for checks and balances. When we turn back this respondent, we turn back passengers who are the victims of the present transportation debacle. Those who complain are not adventurers who seek personal aggrandizement as do jackals who historically have fattened on some economic debacles. The passengers are the victims of the transportation crisis out of which Amtrak seeks to make a fortune. These passengers should be heard. They satisfy the stringent test we laid down in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, they have 'such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues . . ..' Id., at 204, 82 S.Ct., at 703.
40
I would affirm the judgment of the Court of Appeals whether the rationalization be based on standing, cause of action, or jurisdiction.
*
The syllabus constituted no part of the opinion of the Court but has been 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, 26 S.Ct. 282, 287, 50 L.Ed. 499.
1
Section 401 of the Act, 45 U.S.C. § 561, authorizes Amtrak to contract with any railroad to undertake its entire responsibility for intercity rail passenger service. Upon entering such a contract, a railroad can discontinue any intercity passenger train by merely filing a 30-day notice of intent with the Interstate Commerce Commission, in accordance with the notice requirements of § 13a of the Interstate Commerce Act, 49 U.S.C. § 13a.
2
Except in certain limited situations not here pertinent, 45 U.S.C. § 564(b)(2) authorizes Amtrak to discontinue any passenger service, other than that contained in a 'basic system' designated by the Secretary of Transportation, upon its own initiative.
3
The respondent's position on the merits is based on the fact that Central, which entered a contract with Amtrak, is a subsidiary of Southern, which did not enter a contract with Amtrak. The respondent contends that the contract between Amtrak and Central does not comply with § 401(a)(1) of the Amtrak Act because Southern, the parent company, has not contracted with Amtrak. Since § 401(a)(1), authorizes only a contract for Amtrak to undertake a railroad's entire responsibility for intercity rail passenger service, the respondent contends that Southern cannot relieve itself of only part of this responsibility by allowing a subsidiary to contract with Amtrak while declining itself to do so. Accordingly, the respondent argues that Southern and Central, having entered no statutorily authorized contract with Amtrak, are prohibited by § 404(a), 45 U.S.C. § 564(a), from discontinuing any passenger train before January 1, 1975.
4
The decision of the District Court is unreported. The opinion of the Court of Appeals appears at 154 U.S.App.D.C. 214, 475 F.2d 325 (1973).
5
Supp. Hearing on H.R.17849 and S.3706 before Subcomm. on Transportation and Aeronautics of House Comm. on Interstate and Foreign Commerce, 91st Cong., 22 Sess., ser. 9—62, at 44 (1970).
6
Although the Secretary did not oppose this amendment, he expressed the opinion that it might be unnecessary to make sanctions applicable to any railroad in light of other, existing statutes and in light of Amtrak's amenability to suit under § 307(a) as it was then written.
7
See, e.g., 45 U.S.C. §§ 521, 522, 548(c), 563(a), 602, 621, and 645 (1970 ed. and Supp. II).
8
See n. 2, supra.
9
Before 1958, railroads desiring to discontinue uneconomic passenger routes were required to secure the permission of state regulatory commissions. In 1958, in an effort to reduce losses on passenger train operations, Congress enacted § 13a of the Interstate Commerce Act, 49 U.S.C. § 13a, which gave the railroads the option of bypassing state agencies and petitioning the Interstate Commerce Commission for permission to discontinue passenger trains. Under § 13a after the railroad has filed a notice of discontinuance continuance with the Commission, an aggrieved person may file a complaint. Either upon such complaint or on its own initiative, the Commission may institute an investigation of the proposed discontinuance. If the Commission does begin an investigation, it may delay the discontinuance for as long as four months. If it finds that the discontinuance is contrary to the public interest, the Commission may require the continuance of the route for a period of one year. Orders approving or disapproving proposed discontinuances are subject to judicial review. See, e.g., Southern R. Co. v. North Carolina, 376 U.S. 93, 84 S.Ct. 564, 11 L.Ed.2d 541 (1964). If, on the other hand, the Commission decides that the discontinuance is clearly permissible under § 13a of the Act, and decides not to conduct an investigation or decides to terminate an investigation already begun, an aggrieved person has no recourse to the courts to review the Commission's decision. New Jersey v. United States, 168 F.Supp. 324 (N.J. 1958), aff'd, 359 U.S. 27, 79 S.Ct. 607, 3 L.Ed.2d 625 (1959); City of Chicago v. United States, 396 U.S. 162, 90 S.Ct. 309, 24 L.Ed.2d 340 (1969).
Thus, if the Commission takes no action on a complaint by a passenger, under § 13a there is no recourse to the courts. Only if the Commission conducts in investigation and issues an order, a procedure that Congress explicitly eliminated for routes subject to the Amtrak Act but outside the basic system, is judicial review available. It thus appears that the Amtrak Act has in effect substituted, in matters covered by that statute, the scrutiny of the Attorney General for that of the Commission under § 13a. Just as an aggrieved passenger has no access to the courts when the Commission, under § 13a, takes no action on a complaint, so likewise under the Amtrak Act an aggrieved passenger has no access to the courts when the Attorney General has refused to object to a proposed passenger train discontinuance by bringing an action under § 307(a) to enjoin it. There is no reason apparent from the Amtrak Act, its legislative history, or its underlying purposes to think that Congress intended to create a private remedy substantially equivalent to one that had been eliminated under pre-existing federal law.
10
That this is a very real possibility is demonstrated by Amtrak's experience in Wood v. National Railroad Passenger Corp., 341 F.Supp. 908 (D.Conn.1972), where the court granted and then extended a temporary restraining order while it considered the merits of a challenge to a proposed discontinuance. The restraining order was dissolved when Amtrak prevailed on the merits.
11
The Amtrak Act was in significant part a response to congressional dissatisfaction with the administrative delays inherent in passenger route discontinuances under existing legislation. As the Senate Report observed, 'trains which clearly served no useful purpose were either required to be kept in operation or were allowed to be discontinued only after protracted administrative and judicial proceedings.' S.Rep. 91—765, p. 2 (1970). It is evident that Congress intended to eliminate the possibility of such 'protracted proceedings' from the procedures it created in § 404 of the Act for efficient discontinuance of uneconomic routes.
12
See 45 U.S.C. § 644, authorizing the Comptroller General to audit Amtrak's books and record, and § 548, requiring periodic reports to Congress and to the President concerning Amtrak's operations.
13
Since we hold that no right of action exists, questions of standing and jurisdiction became immaterial. In finding that the respondent had standing, the Court of Appeals relied primarily upon Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). In finding jurisdiction, the court relied upon 28 U.S.C. § 1337.
1
Amtrak may eliminate service which is part of the 'basic system' only by filing notice with the ICC in accordance with the pre-Act discontinuance procedures contained in 49 U.S.C. § 13a. 45 U.S.C. § 564(b)(3). Rail service which is undertaken by Amtrak on its own initiative but which is not part of the basic system may be discontinued at any time. 45 U.S.C. § 564(b)(2). Excess lines, however, even though undertaken by Amtrak on its own initiative become part of the basic system and thus subject to the ICC discontinuance procedures if operated by Amtrak for a continuous period of two years. 45 U.S.C. § 563(a).
2
Central is a subsidiary of Southern Railway Co. While Central has entered into a contract with Amtrak to relieve it of responsibility for all intercity passenger service, Southern has not. Whether that failure of Southern bars the discontinuance of this passenger-train service goes to the merits of the complaint, was not passed upon below, and has no relevance to the question of standing to sue, the only issue before us.
3
Title 45 U.S.C. § 547(a) provides: 'If the Corporation or any railroad engages in or adheres to any action, practice, or policy inconsistent with the policies and purposes of this chapter, obstructs or interferes with any activities authorized by this chapter, refuses, fails, or neglects to discharge its duties and responsibilities under this chapter, or threatens any such violation, obstruction, interference, refusal, failure, or neglect, the district court of the United States for any district in which the Corporation or other person resides or may be found shall have jurisdiction, except as otherwise prohibited by law, upon petition of the Attorney General of the United States or, in a case involving a labor agreement, upon petition of any employee affected thereby, including duly authorized employee representatives, to grant such equitable relief as may be necessary or appropriate to prevent or terminate any violation, conduct, or threat.'
4
In refusing to become involved in the case consolidated with this one in the Court of Appeals, the Attorney General's Office expressed the view that 'the statutory mandate of section 307(a) (45 U.S.C. § 547(a)) does not give the Attorney General the authority to sue for a construction of the Act or to enjoin a purely technical violation.' Letter from Assistant Attorney General L. Patrick Gray III to Congressman John Slack, Nov. 19, 1971, in Brief for Respondent 29, 30.
5
As the Court of Appeals noted, the petitioners 'have been unable to refer us to a single instance in which the Attorney General has either instigated or participated in litigation under the Amtrak Act, except for a few cases brought by other parties in which he intervened solely to support the defense that parties other than labor and the Attorney General did not have standing to sue.' Potomac Passengers Assn. v. Chesapeake & Ohio R. Co., 154 U.S.App.D.C. 214, 227, 475 F.2d 325, 338 (1973). On oral argument respondent informed us of two instances in which it obtained injunctive relief against rail service discontinuance after the Attorney General declined to act.
| 78
|
414 U.S. 478
94 S.Ct. 664
38 L.Ed.2d 666
Denis M. VACHONv.State of NEW HAMPSHIRE
No. 73—573.
Jan. 14, 1974.
Rehearing Denied Feb. 25, 1974.
See 415 U.S. 952, 94 S.Ct. 1477.
PER CURIAM.
1
A 14-year-old girl bought a button inscribed 'Copulation Not Masturbation' at the Head Shop in Manchester, New Hampshire. In consequence, appellant, perator of the shop, was sentenced to 30 days in jail and fined $100 after conviction upon a charge of 'wilfully' contributing to the delinquency of a minor in violation of New Hampshire's Rev.Stat.Ann. § 169:32 (Supp.1972).1 In affirming the conviction, the New Hampshire Supreme Court held that the 'wilfully' component of the offense required that the State prove that the accused acted "voluntarily and intentionally and not because of mistake or accident or other innocent reason." 113 N.H. 239, 242, 306 A.2d 781, 784 (1973). Thus, the State was required to produce evidence that appellant, knowing the girl to be a minor,2 personally sold her the button, or personally caused another to sell it to her. Appellant unsuccessfully sought dismissal of the charge at the close of the State's case on the ground that the State had produced no evidence to meet this requirement, and unsuccessfully urged the same ground as a reason for reversal in the State Supreme Court. We have reviewed the transcript of the trial on this issue, pursuant to Rule 40(1) (d)(2) of the Rules of this Court.3
2
Our independent examination of the trial record discloses that evidence is completely lacking that appellant personally sold the girl the button or even that he was aware of the sale or present in the store at the time. The girl was the State's only witness to the sale. She testified that she and a girl friend entered the store and looked around until they saw 'a velvet display card on a counter' from which they 'picked out (the) pin.' She went to some person in the store with the button 'cupped in (her) hand' and paid that person 25 cents for the button. She did not say that appellant was that person, or even that she saw him in the store. Rather, she testified that she could not identify who the person was. We therefore agree with Justice Grimes, dissenting, that 'there is no evidence whatever that the defendant sold the button, that he knew it had been sold to a minor, that he authorized such sales to minors or that he was even in the store at the time of the sale.' 113 N.H., at 244, 306 A.2d, at 785. This fatal void in the State's case was not filled by appellant's concession at trial that he 'controlled the premises on July 26.' That concession was evidence at most that he operated the shop; it was in no way probative of the crucial element of the crime that he personally sold the minor the button or personally caused it to be sold to her.
3
In these circumstances, the conviction must be reversed. 'It is beyond question, of course, that a conviction based on a record lacking any relevant evidence as to a crucial element of the offense charged . . . violate(s) due process.' Harris v. United States, 404 U.S. 1232, 1233, 92 S.Ct. 10, 12, 30 L.Ed.2d 25 (1971). (Douglas, J., in chambers); Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960); Johnson v. Florida, 391 U.S. 596, 88 S.Ct. 1713, 20 L.Ed.2d 838 (1968); see also Adderley v. Florida, 385 U.S. 39, 44, 87 S.Ct. 242, 245, 17 L.Ed.2d 149 (1966).
4
The judgment is reversed and the case is remanded to the New Hampshire Supreme Court for further proceedings not inconsistent with this opinion.
5
It is so ordered.
6
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE and Mr. Justice WHITE join, dissenting.
7
Appellant Denis M. Vachon operates the Head Shop in Manchester, New Hampshire, where he sells various beads, dresses, posters, and the like. In July 1969, a 14-year-old girl accompanied by her girl friend, went to the shop seeking to purchase a button or pin like the one purchased by her friend the previous week. She found the button, inscribed 'Copulation Not Masturbation,' and purchased it from a salesperson in the store. It was conceded in the New Hampshire courts that appellant was in control of the premises where the sale was made. At a jury-waived trial, appellant was convicted on contributing to the delinquency of a minor, a statutory offense proscribed in these words:
8
'(A)nyone . . . who shall knowingly or wilfully encourage, aid, cause, or abet, or connive at, or has knowingly or wilfully done any act to produce, promote, or contribute to the delinquency of (a) child, may be punished . . ..' N.H.Rev.Stat.Ann. § 169:32 (Supp.1972).
9
The Supreme Court of New Hampshire affirmed appellant's conviction. 113 N.H. 239, 306 A.2d 781 (1973).
10
The Court decides that appellant's conviction under this statute violates rights secured to him by the Due Process Clause of the Fourteenth Amendment, concluding on the basis of its 'independent examination of the trial record' that 'evidence is completely lacking that appellant personally sold the girl the button or even that he was aware of the sale or present in the store at the time.
11
* In one sense there can be no doubt that the Court's conclusion is based upon an 'independent examination of the trial record,' since the claim sustained here was neither made in constitutional form to the Supreme Court of New Hampshire, nor even presented by appellant in his jurisdictional statement in this Court.*
12
A litigant seeking a preserve a constitutional claim for review in this Court must not only make clear to the lower courts the nature of his claim, but he must also make it clear that the claim is constitutionally grounded. Bailey v. Anderson, 326 U.S. 203, 66 S.Ct. 66, 90 L.Ed. 3 (1945). The closest that appellant came in his brief on appeal to the Supreme Court of New Hampshire to discussing the issue on which this Court's opinion turns is in the sixth section (at 17—18), which is headed: 'The State's failure to introduce any evidence of scienter should have resulted in dismissal of the charge following the presentation of the State's case.' Appellant in that section makes the customary appellate arguments of insufficiency of the evidence and does not so much as mention either the United States Constitution or a single case decided by this Court. The Supreme Court of New Hampshire treated these arguments as raising a classic state law claim of insufficient evidence of scienter; nothing in that court's opinion remotely suggests that it was treating the claim as having a basis other than in state law.
13
The Court purports to decide the scienter question on the basis of Rule 40(1) (d)(2) of the Rules of this Court, which provides:
14
'1. Briefs of an appellant or petitioner on the merits shall be printed as prescribed in Rule 39, and shall contain in the order here indicated—
15
'(d)(2) The phrasing of the questions presented need not be identical with that set forth in the jurisdictional statement or the petition for certiorari, but the brief may not raise additional questions or change the substance of the questions already presented in those documents. Questions not presented according to this paragraph will be disregarded, save as the court, at its opinion, may notice a plain error not presented.'
16
The very language of this rule makes it clear that it applies to this Court's review of cases in which it has previously either noted probable jurisdiction or granted certiorari. The cases cited by the Court in support of what it does here are therefore necessarily cases in which review had been granted and which had been orally argued; in addition, each of those cases arose in the federal courts. See Columbia Heights Realty Co. v. Rudolph, 217 U.S. 547, 30 S.Ct. 581, 54 L.Ed. 877 (1910); Sibbach v. Wilson & Co., 312 U.S. 1, 61 S.Ct. 422, 85 L.Ed. 479 (1941); Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971).
17
Whatever the import of Rule 40(1)(d)(2) in cases arising in the federal courts, it surely does not give this Court the power to simply ignore the limitations placed by 28 U.S.C. § 1257 on our jurisdiction to review final judgments of the highest court of a State. That jurisdiction permits review in this Court by appeal where a state statute has been upheld against a federal constitutional challenge, or by writ of certiorari where a federal constitutional challenge is 'specifically set up or claimed' in state court. Our prior cases establish that we will 'not decide federal constitutional issues raised here for the first time on review of state court decisions.' Cardinale v. Louisiana, 394 U.S. 437, 438, 89 S.Ct. 1161, 1162, 22 L.Ed.2d 398 (1969). See Crowell v. Randell, 10 Pet. 368, 9 L.Ed. 458 (1836). Since the Supreme Court of New Hampshire was not presented with a federal constitutional challenge to the sufficiency of the evidence, resolution of this question by the Court is inconsistent with the congressional limitation on our jurisdiction to review the final judgment of the highest court of a State.
II
18
Even if appellant's sufficiency-of-the-evidence contention in the Supreme Court of New Hampshire could be said to have been presented as a federal constitutional claim based on Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960), I would nonetheless be unable to join in the Court's disposition of it. In Thompson, the only state court proceedings reaching the merits of the case were in the Louisville Police Court from which there was no right of appeal to any higher state court, and there was therefore no state court opinion written which construed the statute under which Thompson was convicted. This Court therefore had no choice but to engage in its own construction of the statute and upon doing so it concluded that the record was 'entirely lacking in evidence to support any of the charges.' Id., at 204, 80 S.Ct. at 628. Thompson was obviously an extraordinary case, and up until now has been saved for extraordinary situations; it has not heretofore been broadened so as to make lack of evidentiary support for only one of several elements of an offense a constitutional infirmity in a state conviction.
19
Here, however, the Supreme Court of New Hampshire construed the state statute defining contributing to the delinquency of a minor, and held that the evidence adduced at the trial was sufficient to support a finding on each element of that offense. While the Supreme Court of New Hampshire did say, as the Court indicates, that the State was required to prove that the accused acted "voluntarily and intentionally and not because of mistake or accident or other innocent reason," 113 N.H., at 242, 306 A.2d, at 784, it said this in a context of several paragraphs of treatment of the elements of the offense. Just as those reading and relying upon our opinions would be ill-advised to seize one phrase out of context, I think we are ill-advised to so treat the opinion of the Supreme Court of New Hampshire. That court had several observations to make about the statutory offense which bear on the issue of 'wilfulness' upon which this Court focuses:
20
'It is uncontested that the defendant was in control of the premises where the sale was made. There was evidence that a girl friend of this minor had previously purchased there a pin 'like that.' These pins were displayed on a card on a counter. The trial court saw the minor and had an opportunity to conclude whether her minority should have been apparent to whoever sold the pin. The court could find that the defendant was aware of the character of the pins which were being offered for sale and sold in his establishment.
21
'Defendant is charged with wilfully contributing to the delinquency of a minor by selling or causing to be sold to her the button in question. To act wilfully is 'to act voluntarily and intentionally and not because of mistake or accident or other innocent reason.' (Citations omitted.) The trial court could properly find and rule that the sale of this button to the minor was intentional. The trial court could further conclude that the seller of this type of button should have realized that it would tend to be harmful to the morals of the purchaser or others. R.S.A. 169:32 (Supp.1972). This would warrant a finding and ruling that the defendant wilfully contributed to the delinquency of this minor as charged in the complaint. (Citations omitted.)' Id., at 242, 306 A.2d, at 784.
22
The Court simply casts aside this authoritative construction of New Hampshire law, seizes one phrase out of context, and concludes that there was no evidence to establish that the appellant '(knew) the girl to be a minor, personally sold her the button, or personally caused another to sell it to her.' The word 'personally' is the contribution of this Court to the New Hampshire statute; it is not contained in the statute, and is not once used by the Supreme Court of New Hampshire in its opinion dealing with the facts of this very case. Indeed, the entire thrust of the opinion of the Supreme Court of New Hampshire is that appellant need not personally have sold the button to the minor nor personally have authorized its sale to a minor in order to be guilty of the statutory offense. The only fair reading of the above-quoted language from the Supreme Court of New Hampshire is that the word 'wilfully' in the statute does not mean 'personally,' and the facts that the appellant controlled and operated the shop, that the same type of pin had been previously purchased at the shop, and that the pins were prominently offered for sale were sufficient evidence on the issue of willfulness.
23
This may seem to us a somewhat broad construction of the language 'wilfully' or 'knowingly,' though our own cases make it clear that we are dealing with words which may be given a variety of meanings by their context:
24
'The difference between willful failure to pay a tax when due, which is made a misdemeanor, and wilful attempt to defeat and evade one, which is made a felony is not easy to detect or define. Both must be willful, and willful, as we have said, is a word of many meanings, its construction often being influenced by its context. United States v. Murdock, 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381. It may well mean something more as applied to nonpayment of a tax than when applied to failure to make a return. Mere voluntary and purposeful, as distinguished from accidental, omission to make a timely return might meet the test of willfulness.' Spies v. United States, 317 U.S. 492, 497—498, 63 S.Ct. 364, 367, 87 L.Ed. 418 (1943).
25
But since our authority to review state court convictions is limited to the vindication of claims of federal rights, we must take the meaning of the statute, and of the words 'wilfully' and knowingly' which it uses, as given to us by the Supreme Court of New Hampshire. I would have though such a proposition well settled by our prior decisions:
26
'We of course are bound by a State's interpretation of its own statute and will not substitute our judgment for that of the State's when it becomes necessary to analyze the evidence for the purpose of determining whether that evidence supports the findings of a state court.' Garner v. Louisiana, 368 U.S. 157, 166, 82 S.Ct. 248, 253, 7 L.Ed.2d 207 (1961).
27
We do have constitutional authority in appropriate cases to hold that the State's construction of its statute is such that the statutory language did not give a criminal defendant fair warning of the conduct which is construed to be embraced within it. Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948); Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). But this is a far cry from our own rewriting of a state statute in order to make it require a highly specific intent, and then turning around and saying that there was no evidence before the state courts to prove the kind of intent which we have said the statute requires. I would at least note probable jurisdiction over the appeal and set the case for oral argument. Since the Court instead chooses, without ever having heard argument, to rewrite the New Hampshire statute and substitute its interpretation for that of the Supreme Court of New Hampshire, I dissent.
1
The statute provides in pertinent part:
'(A)nyone . . . who . . . has knowingly or wilfully done any act to . . . contribute to the delinquency of (a) child, may be punished by a fine of not more than five hundred dollars or by imprisonment for not more than one year or both.'
2
The complaint charged that appellant 'did wilfully contribute to the delinquency of a minor by selling or causing to be sold a button with obscene material with slogan on same, to wit, 'Copulation Not Masturbation' to . . . a minor child of the age of 14 years, knowing the said child was a minor . . ..'
3
The Rule provides, in pertinent part, that: 'Questions not presented according to (the requirements of this rule) will be disregarded, save as the court, at its option, may notice a plain error not presented.' This discretion has been long acknowledged, see Columbia Heights Realty Co. v. Rudolph, 217 U.S. 547, 30 S.Ct. 581, 54 L.Ed. 877 (1910). recently affirmed in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 320 n. 6, 91 S.Ct. 1434, 1438, 28 L.Ed.2d 788 (1971), and extends to review of the trial court record, see Sibbach v. Wilson & Co., 312 U.S. 1, 61 S.Ct. 422, 85 L.Ed. 479 (1941). See also Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949).
*
Appellant makes two contentions in his jurisdictional statement: First, that the New Hampshire statutes defining contributing to the delinquency of a minor and sale and delivery of obscene material (N.H.Rev.Stat.Ann. §§ 571—A:1, 571—A:2 (Supp.1972)) have been applied to the sale of the button by appellant in a way that infringes upon his First and Fourteenth Amendment rights; and, second, that the New Hampshire statute defining contributing to the delinquency of a minor is unconstitutionally vague. There is simply nothing else presented by the jurisdictional statement.
| 34
|
414 U.S. 473
94 S.Ct. 713
38 L.Ed.2d 661
Wilbur SCHMIDT, Director of Wisconsin Department of Health and Social Services, et al.v.Alberta LESSARD
No. 73—568.
Jan. 14, 1974.
PER CURIAM.
1
In October and November 1971, appellee Alberta Lessard was subjected to a period of involuntary commitment under the Wisconsin State Mental Health Act, wis.Stat. § 51.001 et seq. While in confinement, she filed this suit in the United States District Court for the Eastern District of Wisconsin, on behalf of herself and all other persons 18 years of age or older who were being held involuntarily pursuant to the Wisconsin involuntary-commitment laws, alleging that the statutory scheme was violative of the Due Process Clause of the Fourteenth Amendment. Jurisdiction was predicated on 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983. Since both declaratory and injunctive relief were sought, a District Court of three judges was convened, pursuant to 28 U.S.C. § 2281.
2
After hearing argument and receiving briefs, the District Court filed a comprehensive opinion, declaring the Wisconsin statutory scheme unconstitutional. 349 F.Supp. 1078. The opinion concluded by stating that
3
'Alberta Lessard and the other members of her class are entitled to declaratory and injunctive relief against further enforcement of the present Wisconsin scheme against them. . . . (Miss Lessard is also entitled to an injunction against any further extensions of the invalid order which continues to make her subject to the jurisdiction of the hospital authorities.' Id., at 1103.
4
Over nine months later, the District Court entered a judgment, which simply stated that
5
'It is Ordered and Adjudged that judgment be and hereby is entered in accordance with the Opinion heretoforce entered . . ..'
6
The defendants-appellants now seek to invoke the appellate jurisdiction of this Court, pursuant to 28 U.S.C. § 1253. That statute provides that
7
'Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.'
8
In response, the appellee has filed a motion to dismiss the appeal for want of jurisdiction. Relying upon this Court's decision in Gunn v. University Committee to End the War, 399 U.S. 383, 90 S.Ct. 2013, 26 L.Ed.2d 684 she claims that the District Court's judgment did not constitute 'an order granting or denying' an injunction.
9
In Gunn, a statutory three-judge court had found a Texas breach of the peace statute unconstitutional. There, as here, the opinion of the District Court concluded by stating that the plaintiffs 'are entitled to . . . injunctive relief.' University Committee to End the War v. Gunn, 289 F.Supp. 469, 475 (W.D.Tex.). The District Court in Gunn, however, entered no further order or judgment of any kind; the concluding paragraph of the opinion was the only mention of injunctive relief. Thus, we concluded that we lacked jurisdiction to hear the appeal under 28 U.S.C. § 1253, because of the total absence of any order 'granting or denying' an injunction.
10
Although the language of the District Court opinion here parallels that in Gunn, there is thus an important distinction between the two cases. While the record in Gunn was devoid of any order granting injunctive relief, there was in the present case a judgment entered 'in accordance with the Opinion.' Since the opinion of the District Court by its own terms authorizes the granting of injunctive relief to the appellee, we believe that the judgment here is sufficient to invoke our jurisdiction under 28 U.S.C. § 1253.
11
Yet, although sufficient to invoke our appellate jurisdiction, the District Court's order provides a wholly inadequate foundation upon which to premise plenary judicial review. Rule 65(d) of the Federal Rules of Civil Procedure provides, in relevant part:
12
'Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained . . ..' The order here falls far short of satisfying the second and third clauses of Rule 65(d). Neither the brief judgment order nor the accompanying opinion is 'specific' in outlining the 'terms' of the injunctive relief granted; nor can it be said that the order describes 'in reasonable detail . . . the act or acts sought to be restrained.' Rather, the defendants are simply told not to enforce 'the present Wisconsin scheme' against those in the appellee's class.
13
As we have emphasized in the past, the specificity provisions of Rule 65(d) are no mere technical requirements. The Rule was designed to prevent uncertainty and confusion on the part of those faced with injunctive orders, and to avoid the possible founding of a contempt citation on a decree too vague to be understood. International Longshoremen's Assn. v. Philadelphia Marine Trade Assn., 389 U.S. 64, 74—76, 88 S.Ct. 201, 206—208, 19 L.Ed.2d 236; Gunn, supra, at 388—389. See generally 7 J. Moore, Federal Practice 65.11; 11 C. Wright & A. Miller, Federal Practice and Procedure § 2955.1 Since an injunctive order prohibits conduct under threat of judicial punishment, basic fairness requires that those enjoined receive explicit notice of precisely what conduct is outlawed.2
14
The requirement of specificity in injunction orders performs a second important function. Unless the trial court carefully frames its orders of injunctive relief, it is impossible for an appellate tribunal to know precisely what it is reviewing. Gunn, supra, 399 U.S. at 388, 90 S.Ct. at 2016. We can hardly begin to assess the correctness of the judgment entered by the District Court here without knowing its precise bounds. In the absence of specific injunctive relief, informed and intelligent appellate review is greatly complicated, if not made impossible.
15
Hence, although the order below is sufficient to invoke our appellate jurisdiction, it plainly does not satisfy the important requirements of Rule 65(d). Accordingly, we vacate the judgment of the District Court and remand the case to that court for further proceedings consistent with this opinion.
16
Vacated and remanded.
17
Mr. Justice DOUGLAS dissents.
1
The record in this case suggests that a good deal of confusion has been engendered by the absence of a specific injunctive order. About six months after the opinion in this action was entered, the appellee submitted a memorandum to the District Court, alleging numerous instances of 'noncompliance' with the decision and requesting affirmative judicial relief. No action was taken on this request, and, on July 18, 1973, both the appellee and the appellants joined in a 'Motion to Reconvene for Clarification of Opinion.' That motion outlined the uncertainty that had followed the District Court's original opinion, and asked the court to 'clarify' its precise holdings. The District Court has taken no action on this joint motion, perhaps because of the subsequent filing of a notice of appeal.
2
'The judicial contempt power is a potent weapon. When it is founded upon a decree too vague to be understood, it can be a deadly one. Congress responded to that danger by requiring that a federal court frame its orders so that those who must obey them will know what the court intends to require and what it means to forbid.' International Longshoremen's Assn. v. Philadelphia Marine Trade Assn., 389 U.S. 64, 76, 88 S.Ct. 201, 208.
| 89
|
414 U.S. 514
94 S.Ct. 685.
38 L.Ed.2d 694
W. C. SPOMER, State's Attorney of Alexander County, Illinois, Petitioner,v.Ezell LITTLETON et al.
No. 72—955.
Argued Oct. 17, 1973.
Decided Jan. 15, 1974.
Syllabus
Respondents, 17 black and two white residents of Cairo, Illinois, brought a civil rights class action against the then State's Attorney of Alexander County, Illinois, individually and in his official capacity, charging him with certain purposeful racial discrimination practices, under color of state law, in violation of the Constitution and 42 U.S.C. §§ 1981—1983, 1985. The District Court dismissed the complaint for want of jurisdiction to grant injunctive relief. The Court of Appeals reversed, holding that a prosecutor's quasi-judicial immunity from injunctive proscription was not absolute, and that since respondents' remedies at law were inadequate, an injunctive remedy might be available if respondents could prove their claims. Subsequent to the Court of Appeals' decision, petitioner was elected as successor State's Attorney, and in the petition for certiorari filed with this Court was substituted as a party. Held: Where, on the record, respondents have never charged petitioner with anything and do not presently seek to enjoin him from doing anything, so that there may no longer be a controversy between respondents and any Alexander County State's Attorney concerning injunctive relief to be applied in futuro, the case is vacated and remanded to the Court of Appeals for a determination, in the first instance, of whether the former dispute is now moot and whether respondents will want to, and should be permitted to, amend their complaint to include claims for relief against petitioner. Pp. 520 523.
468 F.2d 389, vacated and remanded.
James B. Zagel, Chicago, Ill., for petitioner.
Alan M. Wiseman, Chicago, Ill., for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
This is a companion case to O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674, involving claims which the respondents, 17 black and two white residents of Cairo, Illinois, individually and as representatives of the class they purport to represent, set forth in that portion of their amended civil rights complaint which alleged wrongful conduct on the part of Peyton Berbling, individually and in his capacity as State's Attorney for Alexander County, Illinois, the county in which the city of Cairo is located. As discussed in O'Shea, the complaint alleged a broad range of racially discriminatory patterns and practices in the administration of the criminal justice system in Alexander County by the Police Commissioner of Cairo, Magistrate Michael O'Shea and Associate Judge Dorothy Spomer of the Alexander County Circuit Court, State's Attorney Berbling, and Earl Shepherd, an investigator for Berbling. Allegedly, a decade of active, but lawful, efforts to achieve racial equality for the black residents of Cairo had resulted in continuing intentional conduct on the part of those named as defendants in the complaint to deprive the plaintiff-respondents of the evenhanded protection of the criminal laws, in violation of various amendments to the Constitution and 42 U.S.C. §§ 1981, 1982, 1983, and 1985.
2
In particular, the complaint charged State's Attorney Berbling with purposeful racial discrimination, under color of state law, by neglecting to provide for respondents' safety though knowing of the possibility of racial disorders, by refusing to prosecute persons who threaten respondents' safety and property, and by refusing to permit respondents to give evidence against white persons who threaten them. It was alleged, with particular incidents recounted as to some charges, that 'Berbling has denied and continues to deny' the constitutional rights of respondents and members of their class by following the practices of (a) refusing to initiate criminal proceedings and to hear criminal charges against white persons upon complaint by members of respondents' class,1 (b) submitting misdemeanor complaints which have been filed by black persons against whites to a grand jury, rather than proceeding by information or complaint, and then either interrogating witnesses and complainants before the grand jury with purposeful intent to racially discriminate,2 or failing to interrogate them at all,3 (c) inadequately prosecuting the few criminal proceedings instituted against whites at respondents' behest in order to lose the cases or settle them on terms more favorable than those brought against blacks, (d) recommending substantially greater bonds and sentences in cases involving respondents and members of their class than for cases involving whites, (e) charging respondents and members of their class with significantly more serious charges for conduct which would result in no charge or a minor charge against a white person, and (f) depriving respondents of their right to give evidence concerning the security of members of their class.4 Each of these practices was alleged to be willful, malicious, and carried out with intent to deprive respondents and members of their class of the benefits of the county criminal justice system and to deter them from peacefully boycotting or otherwise engaging in protected First Amendment activity. Since there was asserted to be no adequate remedy at law, respondents requested that Berbling be enjoined from continuing these practices, that he be required to 'submit a monthly report to (the District Court) concerning the nature, status and disposition of any complaint brought to him by plaintiffs or members of their class, or by white persons against plaintiffs or members of their class,' and that the District Court maintain continuing jurisdiction in this action.5
3
The District Court dismissed that portion of the complaint requesting injunctive relief against Berbling, as well as against Investigator Shepherd, Magistrate O'Shea, and Judge Dorothy Spomer, for want of jurisdiction to grant any such remedy, which was perceived as directed against discretionary acts on the part of these elected state officials. The Court of Appeals reversed, holding that whatever quasi-judicial immunity from injunctive proscription it had previously recognized was appropriate for a prosecutor, was not absolute, and since respondents' alternative remedies at law were thought to be inadequate, an injunctive remedy might be available if respondents could prove their claims of racial discrimination at trial.6
4
The Court of Appeals rendered its decision on October 6, 1972. At the subsequent election in November of that year, petitioner W. C. Spomer7 was chosen by the voters to succeed Berbling as State's Attorney for Alexander County, and Spomer took office on December 4. In the petition for certiorari filed with this Court on January 3, 1973, seeking review of the Court of Appeals' approval of the possibility of some form of injunctive relief addressed to the State's Attorney in the course of his prosecutorial role, petitioner Spomer relied upon Supreme Court Rule 48(3), which provides that '(w)hen a public officer is a party to a proceeding here in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and his successor is automatically substituted as a party.' Respondents did not oppose the substitution,8 and we granted certiorari and set the case for argument together with O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674. 411 U.S. 915, 93 S.Ct. 1544, 36 L.Ed.2d 306 (1973).
5
It has become apparent, however, that there is nothing in the record upon which we may firmly base a conclusion that a concrete controversy between W. C. Spomer and the respondents is presented to this Court for resolution. No allegations in the complaint cited any conduct of W. C. Spomer as the basis for equitable or any other relief. Indeed, Spomer is not named as a defendant in the complaint at all, and, of course, he never appeared before either the District Court or the Court of Appeals. The injunctive relief requested against former State's Attorney Berbling, moreover, is based upon an alleged practice of willful and malicious racial discrimination evidenced by enumerated instances in which Berbling favored white persons and disfavored Negroes. The wrongful conduct charged in the complaint is personal to Berbling, despite the fact that he was also sued in his then capacity as State's Attorney.9 No charge is made in the complaint that the policy of the office of State's Attorney is to follow the intentional practices alleged, apart from the allegation that Berbling, as the incumbent at the time, was then continuing the practices he had previously followed. Cf. Allen v. Regents of University System of Georgia, 304 U.S. 439, 444—445, 58 S.Ct. 980, 982—983, 82 L.Ed. 1448 (1938). Nor have respondents ever attempted to substitute Spomer for Berbling after the Court of Appeals decision, so far as the record shows, or made any record allegations that Spomer intends to continue the asserted practices of Berbling of which they complain. The plain fact is that, on the record before us, respondents have never charged Spomer with anything and do not presently seek to enjoin him from doing anything.10 Under these circumstances, recognizing that there may no longer be a controversy between respondents and any Alexander County State's Attorney concerning injunctive relief to be applied in futuro, see Two Guys From Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 588, 81 S.Ct. 1135, 1138, 6 L.Ed.2d 551 (1961), we remand to the Court of Appeals for a determination, in the first instance, of whether the former dispute regarding the availability of injunctive relief against the State's Attorney is now moot and whether respondents will want to, and should be permitted to, amend their complaint to include claims for relief against the petitioner. Cf. Land v. Dollar, 330 U.S. 731, 739, 67 S.Ct. 1009, 1013, 91 L.Ed. 1209 (1947).
6
The judgment of the Court of Appeals is vacated and the case is remanded for further consideration and proceedings consistent with this opinion.
7
It is so ordered.
8
Judgment of Court of Appeals vacated and remanded.
1
Specific examples of Berbling's practice were alleged as follows:
'(1) On March 28, 1969, defendant refused to permit James Wilson to file criminal charges against Charlie Sullivan, a white man, who pointed a gun at him as he (Wilson) attempted to move into the house next door to Charlie Sullivan on 22nd Street, in Cairo, Illinois. Sullivan threatened Wilson with the gun and told him to move the truck containing household furnishings and leave the area, thereby attempting to prevent James Wilson from holding property.
'(2) On or about March 29, 1969, defendant refused to permit James Wilson to file criminal charges against Charlie Sullivan who fired shots from a gun around James Wilson's home to intimidate his family in order to prevent James Wilson from holding property.
'(3) In January, 1970, defendant refused to permit Robert Martin to file charges against Charlie Sullivan, who tried to run him down in a truck while peacefully marching in exercise of his First Amendment rights.
'(4) In June, 1970, defendant refused to permit Ezell Littleton to file charges against a white man who without cause or justification assaulted and battered him.
'(5) In June, 1970, defendant refused to permit Rev. Manker Harris to file charges against two white policemen of the City of Cairo for attempted murder and/or malicious prosecution.
'(6) On August 10, 1970, defendant Berbling, through a subordinate, defendant Earl Shepherd, refused to permit plaintiff Hazel James to file criminal charges against Raymond Hurst, a white man, who had kicked plaintiff James in the stomach while she was peacefully demonstrating against the racially discriminatory practices of merchants and of public officials of the City of Cairo.
'(7) In May, 1969, Plaintiff Ewing and eight others could have (brought) and desired to bring criminal charges against a white man who threatened them with a shotgun, but did not because they knew of defendant's practice of refusing to take complaints and were discouraged from making useless gestures.'
2
Cited in support of this allegation was an incident when 'Morris Garrett (a 13 year old boy), on August 8, 1970, during a demonstration against the racially discriminatory practices of merchants and public officials of the City of Cairo, was struck by one Tom Madra. A complaint was filed which was presented to the grand jury. Morris Garrett appeared before the grand jury. Defendant Berbling, rather than question him regarding the incident, asked him such questions as 'did you get paid for picketing?' A no-true bill was returned by the grand jury.'
3
Two episodes of this type were described:
'(1) On August 13, 1970, Cheryl Garrett and Yvonda Taylor, ages 18 and 16 respectively, were shot at by one Jack Guetterman, Jr. Rev. Walter Garrett and Ezell Littleton, following a telephone call from the young girls, went to the scene of the shooting. Shortly thereafter police officers arrived. While Rev. Walter Garrett was discussing the situation with one police officer, one Jack Guetterman, Sr. struck Rev. Garrett in the fact, causing him to fall to the ground. A complaint was filed by Rev. Walter Garrett respecting this incident. Defendant Berbling presented the complaint to the grand jury, but Rev. Garrett was not interrogated at all respecting the incident. Ezell Littleton, who witnessed the assault, was not called to testify.
'(2) On or about August 8, 1970, Curtis Johnson was struck by one Al Moss while demonstrating against the racially discriminatory practices of merchants and public officials of the City of Cairo. A complaint was filed, which was presented to the grand jury. Curtis Johnson, however, was not interrogated by defendant Berbling respecting the incident.'
4
Thus, respondents alleged that Berbling sought the 'dropping of a criminal charge arising out of a complaint filed by Frank Hollis, a black person, against Tom Madra, a white person, in return for which (Berbling) would drop pending criminal charges against several of the (respondents).'
5
Damages were also sought against Berbling for these practices and for an alleged conspiracy with his investigator, Shepherd, to refuse to prosecute those who threatened respondents' safety and to prevent them from giving evidence against whites concerning acts threatening their personal safety. As to the latter, the sixth example in n. 1, supra, was reiterated. The Court of Appeals held that 'insofar as defendant Berbling was acting within his prosecutorial function he has a quasi-judicial immunity from suit for damages under the Civil Rights Acts,' 468 F.2d 389, 410, and remanded to allow respondents to amend the complaint and to have the District Court determine in the first instance whether some of the acts then alleged would be sufficiently removed from quasi-judicial activity 'to warrant removing the cloak of immunity from them.' Id., at 410—411. Berbling's petition for certiorari questioning this aspect of the Court of Appeals' ruling was not timely filed in this Court and has been denied. No. 72—1107, 414 U.S. 1143, 94 S.Ct. 894, 39 L.Ed.2d 97. No question concerning damage relief is involved in the case presently before us.
6
The scope of any injunction which might be found warranted was not finally established or restricted. It was suggested that an initial decree might require 'only periodic reports of various types of aggregate data on actions on bail and sentencing and dispositions of complaints,' and confidence was expressed that the District Court would be able to establish further guides as required and, if necessary, to consider individual decisions. 468 F.2d, at 415.
7
State's Attorney W. C. Spomer should not be confused with Judge Dorothy Spomer, a petitioner in O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674.
8
In their brief in opposition to the petition, p. 6, respondents stated that they 'seek only equitable relief against petitioner W. C. Spomer. Because the amended complaint asks relief against Berbling in his individual as well as his official capacity, he remains a party in interest in this action.' Of course, Spomer, not Berbling, filed for review of the Court of Appeals' decision respecting injunctive relief, and Berbling is not before the Court in this case. Nor did respondents ever seek relief of any kind against Spomer by their complaint.
9
This Court's Rule 48(3), governing automatic substitution of successor public officers when the predecessor was a party 'in his official capacity,' is based upon Fed.Rule Civ.Proc. 25(d), as amended in 1961. Prior to the 1961 amendment, substitution was not automatic. The history and application of former and present Rule 25(d) are sketched in 3B J. Moore, Federal Practice 25.09 (1)—(3) (2d ed. 1969). Of particular relevance is the Advisory Committee Note on the 1961 'automatic substitution' amendment to Rule 25(d) which suggests that '(i)n general it will apply whenever effective relief would call for corrective behavior by the one then having official status and power, rather than one who has lost that status and power through ceasing to hold office.' See id., 25.09(3), at 25—403, 25—404. The question of whether corrective behavior is thought to be necessary is, of course, dependent on whether the dispute with the predecessor continues with the successor.
10
Despite the statement respondents made in their brief in opposition to the petition for certiorari, n. 8, supra, the record does not contain any indication that respondents have ever sought injunctive relief against Spomer in any proceedings in the District Court or the Court of Appeals. Nor would they have had reason to do so in the absence of knowledge that he would succeed Berbling. While Spomer did substitute himself in place of his predecessor, and his counsel made the somewhat extraordinary statement at oral argument that 'there is nothing in this record, nor will there be on the part of my client, to indicate that he would change the policies which are alleged to have been exercised by his predecessor,' Tr. of Oral Arg. 7, to determine whether respondents have a live controversy with Spomer, we must look to the charges they press. Indeed, counsel for respondents observed at oral argument of this case that 'in order for us to proceed against Mr. Spomer, it would be necessary for us to investigate the facts to see that the concession apparently made by the State's Attorney is true and amend our complaint.' Id., at 19. This merely serves to underscore our concern that we are being asked to render an opinion on the merits of what is now and may continue to be a hypothetical or abstract dispute. See Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240—241, 57 S.Ct. 461, 463—464, 81 L.Ed. 617 (1937); United States v. Fruehauf, 365 U.S. 146, 157, 81 S.Ct. 547, 553, 5 L.Ed.2d 476 (1961); North Carolina v. Rice, 404 U.S. 244, 245—246, 92 S.Ct. 402, 403—404, 30 L.Ed.2d 413 (1971).
| 89
|
414 U.S. 488
94 S.Ct. 669.
38 L.Ed.2d 674
Michael O'SHEA, as Magistrate of the Circuit Court for Alexander County, Illinois, and Dorothy Spomer, as Associate Circuit Judge for Alexander County, Illinois, Petitioners,v.Ezell LITTLETON et al.
No. 72—953.
Argued Oct. 17, 1973.
Decided Jan. 15, 1974.
Syllabus
Respondents, 17 black and two white residents of Cairo, Illinois, brought a civil rights class action against petitioners, a magistrate and a circuit court judge, who allegedly engaged under color of state law, in a continuing pattern and practice of conduct consisting of illegal bond-setting, sentencing, and jury-fee practices in criminal cases, which assertedly deprived respondents and members of their class of their rights under the Constitution and 42 U.S.C. §§ 1981—1983, 1985. The District Court dismissed the action for want of jurisdiction to issue the injunctive relief sought and on the ground of judicial immunity. The Court of Appeals reversed, holding that issuance of injunctions against judicial officers was not forbidden if their conduct was intentionally racially discriminatory against a cognizable class of persons. Absent sufficient remedy at law, it was held that if respondents proved their allegations, the District Court should fashion appropriate relief to enjoin petitioners from depriving others of their constitutional rights while carrying out their judicial duties in the future. Held:
1. The complaint fails to satisfy the threshold requirement of Art. III of the Constitution that those who seek to invoke the power of federal courts must allege an actual case or controversy, where none of the named plaintiffs is identified as himself having suffered any injury in the manner specified, the claim alleging injury is in only the most general terms, and there are no allegations that any relevant state criminal statute is unconstitutional on its face or as applied or that plaintiffs have been or will be improperly charged with violating criminal law. Pp. 493—499.
(a) If none of the named plaintiffs purporting to represent a class meets the case-or-controversy requirement, none may seek relief on behalf of himself or any other member of the class. Pp. 494—495.
(b) That requirement is not satisfied by general assertions or inferences that in the course of their activities respondents will be prosecuted for violating valid criminal laws. P. 497.
(c) Where it can only be speculated whether respondents will be arrested for violating an ordinance or state statute, particularly in the absence of allegations that unconstitutional criminal statutes are being employed to deter constitutionally protected conduct, and respondents have not pointed to any imminent prosecutions contemplated against them so that they do not claim any constitutional right to engage in conduct proscribed by therefore presumably permissible state laws, or that it is otherwise their intention to so conduct themselves, the threat of injury from the alleged course of conduct they attack is too remote to satisfy the case-or-controversy requirement and permit adjudication by a federal court. Pp. 497—498.
2. Even if the complaint were considered to present an existing case or controversy, no adequate basis for equitable relief has been stated. Pp. 499—504.
(a) The injunctive relief sought by respondents would constitute a major continuing intrusion of the equitable power of the federal courts into the daily conduct of state criminal proceedings, and would sharply conflict with recognized principles of equitable restraint, Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669. Pp. 499—502.
(b) Respondents also failed to establish the basic requisites of the issuance of equitable relief—the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law—in view of the conjectural nature of the threatened injury to which respondents are allegedly subjected, and where there are available other procedures, both state and federal, which could provide relief. Pp. 502—504.
7 Cir., 468 F.2d 389, reversed.
Robert J. O'Rourke, Chicago, Ill., for petitioners.
Alan M. Wiseman, Chicago, Ill., for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
The respondents are 19 named individuals who commenced this civil rights action, individually and on behalf of a class of citizens of the city of Cairo, Illinois, against the State's Attorney for Alexander County, Illinois, his investigator, the Police Commissioner of Cairo, and the petitioners here, Michael O'Shea and Dorothy Spomer, Magistrate and Associate Judge of the Alexander County Circuit Court, respectively, alleging that they have intentionally engaged in, and are continuing to engage in, various patterns and practices of conduct in the administration of the criminal justice system in Alexander County that deprive respondents of rights secured by the First, Sixth, Eighth, Thirteenth, and Fourteenth Amendments, and by 42 U.S.C. §§ 1981, 1982, 1983, and 1985. The complaint, as amended, alleges that since the early 1960's, black citizens of Cairo, together with a small number of white persons on their behalf, have been actively, peaceably and lawfully seeking equality of opportunity and treatment in employment, housing, education, participation in governmental decisionmaking and in ordinary day-to-day relations with white citizens and officials of Cairo, and have, as an important part of their protest, participated in, and encouraged others to participate in, an economic boycott of city merchants who respondents consider have engaged in racial discrimination. Allegedly, there had resulted a great deal of tension and antagonism among the white citizens and officials of Cairo.
2
The individual respondents are 17 black and two white residents of Cairo. The class, or classes, which they purport to represent are alleged to include 'all those who, on account of their race or creed and because of their exercise of First Amendment rights, have (been) in the past and continue to be subjected to the unconstitutional and selectively discriminatory enforcement and administration of criminal justice in Alexander County,' as well as financially poor persons 'who, on account of their poverty, are unable to afford bail, or are unable to afford counsel and jury trials in city ordinance violation cases.' The complaint charges the State's Attorney, his investigator, and the Police Commissioner with a pattern and practice of intentional racial discrimination in the performance of their duties, by which the state criminal laws and procedures are deliberately applied more harshly to black residents of Cairo and inadequately applied to white persons who victimize blacks, to deter respondents from engaging in their lawful attempt to achieve equality. Specific supporting examples of such conduct involving some of the individual respondents are detailed in the complaint as to the State's Attorney and his investigator.
3
With respect to the petitioners, the county magistrate and judge, a continuing pattern and practice of conduct, under color of law, is alleged to have denied and to continue to deny the constitutional rights of respondents and members of their class in three respects: (1) petitioners set bond in criminal cases according to an unofficial bond schedule without regard to the facts of a case or circumstances of an individual defendant in violation of the Eighth and Fourteenth Amendments; (2) 'on information and belief' they set sentences higher and impose harsher conditions for respondents and members of their class than for white persons, and (3) they require respondents and members of their class when charged with violations of city ordinances which carry fines and possible jail penalties if the fine cannot be paid, to pay for a trial by jury in violation of the Sixth, Eighth, and Fourteenth Amendments. Each of these continuing practices is alleged to have been carried out intentionally to deprive respondents and their class of the protections of the county criminal justice system and to deter them from engaging in their boycott and similar activities. The complaint further alleges that there is no adequate remedy at law and requests that the practices be enjoined. No damages were sought against the petitioners in this case, nor were any specific instances involving the individually named respondents set forth in the claim against these judicial officers.
4
The District Court dismissed the case for want of jurisdiction to issue the injunctive relief prayed for and on the ground that petitioners were immune from suit with respect to acts done in the course of their judicial duties. The Court of Appeals reversed, holding that Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288 (1967), on which the District Court relied, did not forbid the issuance of injunctions against judicial officers if it is alleged and proved that they have knowingly engaged in conduct intended to discriminate against a cognizable class of persons on the basis of race. Absent sufficient remedy at law, the Court of Appeals ruled that in the event respondents proved their allegations, the District Court should proceed to fashion appropriate injunctive relief to prevent petitioners from depriving others of their constitutional rights in the course of carrying out their judicial duties in the future.1 We granted certiorari. 411 U.S. 915, 93 S.Ct. 1544, 36 L.Ed.2d 306 (1973).
5
* We reverse the judgment of the Court of Appeals. The complaint failed to satisfy the threshold requirement imposed by Art. III of the Constitution that those who seek to invoke the power of federal courts must allege an actual case or controversy. Flast v. Cohen, 392 U.S. 83, 94—101, 88 S.Ct. 1942, 1949—1953, 20 L.Ed.2d 947 (1968); Jenkins v. McKeithen, 395 U.S. 411, 421—425, 89 S.Ct. 1843, 1848—1851, 23 L.Ed.2d 404 (1969) (opinion of Marshall, J.). Plaintiffs in the federal courts 'must allege some threatened or actual injury resulting from the putatively illegal action before a federal court may assume jurisdiction.' Linda R.S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973).2 There must be a 'personal stake in the outcome' such as to 'assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.' Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). Nor is the principle different where statutory issues are raised. Cf. United States v. SCRAP, 412 U.S. 669, 687, 93 S.Ct. 2405, 2415, 37 L.Ed.2d 254 (1973). Abstract injury is not enough. It must be alleged that the plaintiff 'has sustained or is immediately in danger of sustaining some direct injury' as the result of the challenged statute or official conduct. Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1923). The injury or threat of injury must be both 'real and immediate,' not 'conjectural' or 'hypothetical.' Golden v. Zwickler, 394 U.S. 103, 109—110, 89 S.Ct. 956, 960, 22 L.Ed.2d 113 (1969); Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941); United Public Workers v. Mitchell, 330 U.S. 75, 89—91, 67 S.Ct. 556, 564—565, 91 L.Ed. 754 (1947). Moreover, if none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class.3 Bailey v. Patterson, 369 U.S. 31, 32—33, 82 S.Ct. 549, 550—551, 7 L.Ed.2d 512 (1962); Indiana Employment Division v. Burney, 409 U.S. 540, 93 S.Ct. 883, 35 L.Ed.2d 62 (1973). See 3B J. Moore, Federal Practice, 23.10—1, n. 8 (2d ed. 1971).
6
In the complaint that began this action, the sole allegations of injury are that petitioners 'have engaged in and continue to engage in, a pattern and practice of conduct . . . all of which has deprived and continues to deprive plaintiffs and members of their class of their' constitutional rights and, again, that petitioners 'have denied and continue to deny to plaintiffs and members of their class their constitutional rights' by illegal bond-setting, sentencing, and jury-fee practices. None of the named plaintiffs is identified as himself having suffered any injury in the manner specified. In sharp contrast to the claim for relief against the State's Attorney where specific instances of misconduct with respect to particular individuals are alleged, the claim against petitioners alleges injury in only the most general terms. At oral argument, respondents' counsel stated that some of the named plaintiffs-respondents, who could be identified by name if necessary, had actually been defendants in proceedings before petitioners and had suffered from the alleged unconstitutional practices.4 Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief, however, if unaccompanied by any continuing, present adverse effects. Neither the complaint nor respondents' counsel suggested that any of the named plaintiffs at the time the complaint was filed were themselves serving an allegedly illegal sentence or were on trial or awaiting trial before petitioners. Indeed, if any of the respondents were then serving an assertedly unlawful sentence, the complaint would inappropriately be seeking relief from or modification of current, existing custody. See Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Furthermore, if any were then on trial or awaiting trial in state proceedings, the complaint would be seeking injunctive relief that a federal court should not provide. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); see also Part II, infra. We thus do not strain to read inappropriate meaning into the conclusory allegations of this complaint.
7
Of course, past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury. But here the prospect of future injury rests on the likelihood that respondents will again be arrested for and charged with violations of the criminal law and will again be subjected to bond proceedings, trial, or sentencing before petitioners. Important to this assessment is the absence of allegations that any relevant criminal statute of the State of Illinois is unconstitutional on its face or as applied or that respondents have been or will be improperly charged with violating criminal law. If the statutes that might possibly be enforced against respondents are valid laws, and if charges under these statutes are not improvidently made or pressed, the question becomes whether any perceived threat to respondents is sufficiently real and immediate to show an existing controversy simply because they anticipate violating lawful criminal statutes and being tried for their offenses, in which event they may appear before petitioners and, if they do, will be affected by the allegedly illegal conduct charged. Apparently, the proposition is that if respondents proceed to violate an unchallenged law and if they are charged, held to answer, and tried in any proceedings before petitioners, they will be subjected to the discriminatory practices that petitioners are alleged to have followed. But it seems to us that attempting to anticipate whether and when these respondents will be charged with crime and will be made to appear before either petitioner takes us into the area of speculation and conjecture. See Younger v. Harris, supra, at 41—42, 91 S.Ct. at 749. The nature of respondents' activities is not described in detail and no specific threats are alleged to have been made against them. Accepting that they are deeply involved in a program to eliminate racial discrimination in Cairo and that tensions are high, we are nonetheless unable to conclude that the case-or-controversy requirement is satisfied by general assertions or inferences that in the course of their activities respondents will be prosecuted for violating valid criminal laws. We assume that respondents will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct said to be followed by petitioners.
8
As in Golden v. Zwickler, we doubt that there is "sufficient immediacy and reality" to respondents' allegations of future injury to warrant invocation of the jurisdiction of the District Court. There, 'it was wholly conjectural that another occasion might arise when Zwickler might be prosecuted for distributing the handbills referred to in the complaint.' 394 U.S., at 109, 89 S.Ct., at 960. Here we can only speculate whether respondents will be arrested, either again or for the first time, for violating a municipal ordinance or a state statute, particularly in the absence of any allegations that unconstitutional criminal statutes are being employed to deter constitutionally protected conduct. Cf. Perez v. Ledesma, 401 U.S. 82, 101—102, 91 S.Ct. 674, 685, 27 L.Ed.2d 701 (1971) (opinion of Brennan, J.). Even though Zwickler attacked a specific statute under which he had previously been prosecuted, the threat of a new prosecution was not sufficiently imminent to satisfy the jurisdictional requirements of the federal courts. Similarly, respondents here have not pointed to any imminent prosecutions contemplated against any of their number and they naturally do not suggest that any one of them expects to violate valid criminal laws. Yet their vulnerability to the alleged threatened injury from which relief is sought is necessarily contingent upon the bringing of prosecutions against one or more of them. Under these circumstances, where respondents do not claim any constitutional right to engage in conduct proscribed by therefore presumably permissible state laws, or indicate that it is otherwise their intention to so conduct themselves, the threat of injury from the alleged course of conduct they attack is simply too remote to satisfy the case-or-controversy requirement and permit adjudication by a federal court.
9
In Boyle v. Landry, 401 U.S. 77, 81, 91 S.Ct. 758, 760, 27 L.Ed.2d 696 (1971), the Court ordered a complaint dismissed for insufficiency of its allegations where there was no basis for inferring 'that any one or more of the citizens who brought this suit is in any jeopardy of suffering irreparable injury if the State is left free to prosecute under the intimidation statute in the normal manner.' The Court expressed the view that 'the normal course of state criminal prosecutions cannot be disrupted or blocked on the basis of charges which in the last analysis amount to nothing more than speculation about the future.' Ibid. A similar element of uncertainty about whether the alleged injury will be likely to occur is present in this case, and a similar reluctance to interfere with the normal operation of state administration of its criminal laws in the manner sought by respondents strengthens the conclusion that the allegations in this complaint are too insubstantial to warrant federal adjudication of the merits of respondents' claim.
II
10
The foregoing considerations obviously shade into those determining whether the complaint states a sound basis for equitable relief; and even if we were inclined to consider the complaint as presenting an existing case or controversy, we would firmly disagree with the Court of Appeals that an adequate basis for equitable relief against petitioners had been stated. The Court has recently reaffirmed the 'basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.' Younger v. Harris, 401 U.S. 37, 43—44, 91 S.Ct. 746, 750, 27 L.Ed.2d 669 (1971). Additionally, recognition of the need for a proper balance in the concurrent operation of federal and state courts counsels restraint against the issuance of injunctions against state officers engaged in the administration of the State's criminal laws in the absence of a showing of irreparable injury which is "both great and immediate." Id., at 46, 91 S.Ct., at 751. See, e.g., Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927 (1926); Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943). In holding that 42 U.S.C. § 1983 is an act of Congress that falls within the 'expressly authorized' exception to the absolute bar against federal injunctions directed at state court proceedings provided by 28 U.S.C. § 2283, the Court expressly observed that it did not intend to 'question or quality in any way the principles of equity, comity, and federalism that must restrain a federal court when asked to enjoin a state court proceeding.' Mitchum v. Foster, 407 U.S. 225, 243, 92 S.Ct. 2151, 2162, 32 L.Ed.2d 705 (1972). Those principles preclude equitable intervention in the circumstances present here.
11
Respondents do not seek to strike down a single state statute, either on its face or as applied; nor do they seek to enjoin any criminal prosecutions that might be brought under a challenged criminal law. In fact, respondents apparently contemplate that prosecutions will be brought under seemingly valid state laws. What they seek is an injunction aimed at controlling or preventing the occurrence of specific events that might take place in the course of future state criminal trials. The order the Court of Appeals thought should be available if respondents proved their allegations would be operative only where permissible state prosecutions are pending against one or more of the beneficiaries of the injunction. Apparently the order would contemplate interruption of state proceedings to adjudicate assertions of noncompliance by petitioners. This seems to us nothing less than an ongoing federal audit of state criminal proceedings which would indirectly accomplish the kind of interference that Younger v. Harris, supra, and related cases sought to prevent.
12
A federal court should not intervene to establish the basis for future intervention that would be so intrusive and unworkable. In concluding that injunctive relief would be available in this case because it would not interfere with prosecutions to be commenced under challenged statutes, the Court of Appeals misconceived the underlying basis for withholding federal equitable relief when the normal course of criminal proceedings in the state courts would otherwise be disrupted. The objection is to unwarranted anticipatory interference in the state criminal process by means of continuous or piecemeal interruptions of the state proceedings by litigation in the federal courts; the object is to sustain '(t)he special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.' Stefanelli v. Minard, 342 U.S. 117, 120, 72 S.Ct. 118, 120, 96 L.Ed. 138 (1951).5 See also Cleary v. Bolger, 371 U.S. 392, 83 S.Ct. 385, 9 L.Ed.2d 390 (1963); Wilson v. Schnettler, 365 U.S. 381, 81 S.Ct. 632, 5 L.Ed.2d 620 (1961); Pugach v. Dollinger, 365 U.S. 458, 81 S.Ct. 650, 5 L.Ed.2d 678 (1961); cf. Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233 (1956). An injunction of the type contemplated by respondents and the Court of Appeals would disrupt the normal course of proceedings in the state courts via resort to the federal suit for determination of the claim ab initio, just as would the request for injunctive relief from an ongoing state prosecution against the federal plaintiff which was found to be unwarranted in Younger. Moreover, it would require for its enforcement the continuous supervision by the federal court over the conduct of the petitioners in the course of future criminal trial proceedings involving any of the members of the respondents' broadly defined class.6 The Court of Appeals disclaimed any intention of requiring the District Court to sit in constant day-to-day supervision of these judicial officers, but the 'periodic reporting' system it thought might be warranted7 would constitute a form of monitoring of the operation of state court functions that is antipathetic to established principles of comity. Cf. Greenwood v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966). Moreover, because an injunction against acts which might occur in the course of future criminal proceedings would necessarily impose continuing obligations of compliance, the question arises of how compliance might be enforced if the beneficiaries of the injunction were to charge that it had been disobeyed. Presumably, any member of respondents' class who appeared as an accused before petitioners could allege and have adjudicated a claim that petitioners were in contempt of the federal court's injunction order, with review of adverse decisions in the Court of Appeals and, perhaps, in this Court. Apart from the inherent difficulties in defining the proper standards against which such claims might be measured, and the significant problems of proving noncompliance in individual cases, such a major continuing intrusion of the equitable power of the federal courts into the daily conduct of state criminal proceedings is in sharp conflict with the principles of equitable restraint which this Court has recognized in the decisions previously noted.
13
Respondents have failed, moreover, to establish the basic requisites of the issuance of equitable relief in these circumstances—the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law. We have already canvassed the necessarily conjectural nature of the threatened injury to which respondents are allegedly subjected. And if any of the respondents are ever prosecuted and face trial, or if they are illegally sentenced, there are available state and federal procedures which could provide relief from the wrongful conduct alleged. Open to a victim of the discriminatory practices asserted under state law are the right to a substitution of judge or a change of venue, Ill.Rev.Stat., c. 38, §§ 114—5, 114—6 (1971), review on direct appeal or on postconviction collateral review, and the opportunity to demonstrate that the conduct of these judicial officers is so prejudicial to the administration of justice that available disciplinary proceedings, including the possibility of suspension or removal, are warranted. Ill.Const., Art. VI, § 15(e). In appropriate circumstances, moreover, federal habeas relief would undoubtedly be available.
14
Nor is it true that unless the injunction sought is available federal law will exercise no deterrent effect in these circumstances. Judges who would willfully discriminate on the ground of race or otherwise would willfully deprive the citizen of his constitutional rights, as this complaint alleges, must take account of 18 U.S.C. § 242. See Greenwood v. Peacock, supra, at 830, 86 S.Ct., at 1813; United States v. Price, 383 U.S. 787, 793 794, 86 S.Ct. 1152, 1156, 16 L.Ed.2d 267 (1966); United States v. Guest, 383 U.S. 745, 753—754, 86 S.Ct. 1170, 1175—1176, 16 L.Ed.2d 239 (1966); Screws v. United States, 325 U.S. 91, 101—106, 65 S.Ct. 1031, 1035—1038, 89 L.Ed. 1495 (1945); United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). Cf. Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492 (1961). That section provides:
15
'Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State . . . to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined . . . or imprisoned . . ..'
16
Whatever may be the case with respect to civil liability generally, see Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), or civil liability for willful corruption, see Alzua v. Johnson, 231 U.S. 106, 110—111, 34 S.Ct. 27, 28—29, 58 L.Ed. 142 (1913); Bradley v. Fisher, 13 Wall. 335, 347, 350, 354, 20 L.Ed. 646 (1872), we have never held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal deprivation of constitutional rights. Cf. Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676 (1880). On the contrary, the judicially fashioned doctrine of official immunity does not reach 'so far as to immunize criminal conduct proscribed by an Act of Congress . . ..' Gravel v. United States, 408 U.S. 606, 627, 92 S.Ct. 2614, 2628, 33 L.Ed.2d 583 (1972).
17
Considering the availability of other avenues of relief open to respondents for the serious conduct they assert, and the abrasive and unmanageable intercession which the injunctive relief they seek would represent, we conclude that, apart from the absence of an existing case or controversy presented by respondents for adjudication, the Court of Appeals erred in deciding that the District Court should entertain respondents' claim.
18
Reversed.
19
Mr. Justice BLACKMUN, concurring in part.
20
I join the judgment of the Court and Part I of the Court's opinion which holds that the complaint 'failed to satisfy the threshold requirement imposed by Art. III of the Constitution that those who seek to invoke the power of federal courts must allege an actual case or controversy.' Ante, at 493.
21
When we arrive at that conclusion, it follows, it seems to me, that we are precluded from considering any other issue presented for review. Thus, the Court's additional discussion of the question whether a case for equitable relief was stated amounts to an advisory opinion that we are powerless to render. Hayburn's Case, 2 Dall. 409, 1 L.Ed. 436 (1792); United States v. Evans, 213 U.S. 297, 301, 29 S.Ct. 507, 508, 53 L.Ed. 803 (1909); Muskrat v. United States, 219 U.S. 346, 360—361 (1911); Stearns v. Wood, 236 U.S. 75, 35 S.Ct. 229, 59 L.Ed. 475 (1915); Coffman v. Breeze Corps., 323 U.S. 316, 65 S.Ct. 298, 89 L.Ed. 264 (1945); United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754, 31 S.Ct. 250, 255, 55 L.Ed. 246 (1947); Paschall v. Christie-Stewart, Inc., 414 U.S. 100, at 101—102, 94 S.Ct. 313, at 315, 38 L.Ed.2d 298.
22
Mr. Justice Frankfurter stated the applicable principle in speaking for the Court in International Longshoremen's & Warehousemen's Union v. Boyd, 347 U.S. 222, 223, 74 S.Ct. 447, 448, 98 L.Ed. 650 (1954):
23
'On this appeal, appellee contends that the District Court should not have reached the statutory and constitutional questions—that it should have dismissed the suit for want of a 'case or controversy,' for lack of standing on the union's part to bring this action, . . .. Since the first objection is conclusive, there is an end of the matter.'
24
I would adhere to that principle. Either there is no case or controversy and that is the end of the matter, or there is a case or controversy and the Court may go on to a decision on the merits. In my view, the Court may not have it both ways.
25
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL concur, dissenting.
26
The respondents in this case are black and indigent citizens of Cairo, Illinois. Suing in federal court, they alleged that since the early 1960's black citizens of Cairo have been actively seeking equal opportunity and treatment in employment, housing, education, and ordinary day-to-day relations with the white citizens and officials of Cairo. In this quest, blacks have engaged in a boycott of local merchants deemed to have engaged in racial discrimination.
27
Alleging that this quest for equality has generated substantial antagonism from white governmental officials, respondents brought a class action under 42 U.S.C. §§ 1981, 1982, 1983, and 1985, seeking to represent citizens of Cairo who have been subjected in the past, and continue to be subjected, to the allegedly discriminatory and unconstitutional administration of criminal justice in Alexander County, Illinois, which includes Cairo. Among their other claims, respondents alleged that petitioners Michael O'Shea and Dorothy Spomer, both now judges in Alexander County,1 engage in acts which deprive them and members of their class of their constitutional rights. These judges allegedly set bond in criminal cases without regard to the facts of individual cases and as punishment, and not merely to assure the appearance of defendants at trial; impose higher sentences and harsher conditions of sentencing on black than on white citizens; and require respondents and members of their class, when charged with violations of city ordinances which carry fines and possible jail penalties, to pay for a trial by jury if the fine cannot be paid.
28
* An injunction was sought against this conduct. The District Court referred obliquely to want of jurisdiction, but, focusing on the fact that the complaint sought review of matters of judicial discretion, concluded that the action should be dismissed because judges and magistrates are immune from liability for acts done in performance of their duties. In reversing and remanding the case to the District Court, the Court of Appeals held that the action was not barred by the doctrine of judicial immunity. The Court of Appeals also held that the complaint contained sufficiently specific factual averments to satisfy Fed.Rule Civ.Proc. 8(a). 468 F.2d 389.
29
This Court now decides for the first time in the course of this litigation that the complaint is deficient because it does not state a 'case or controversy' within the meaning of Art. III.
30
The fact that no party has raised that issue in this closely contested case is no barrier, of course, to our consideration of it. But the reasoning and result reached by the Court are to say the least a tour de force and quite inconsistent with the allegations in the complaint, which are within constitutional requirements.
31
We know from the record and oral argument that Cairo, Illinois, is boiling with racial conflicts. This class action brought under 42 U.S.C. §§ 1981, 1982, 1983, and 1985 is to remedy vast invasions of civil rights. The Court, however, says that it is not a 'case or controversy' because none of the named plaintiffs has alleged infringement of his rights and the fact that other members of the class may have been injured is not enough. As to the latter, Bailey v. Patterson, 369 U.S. 31, 32—33, 82 S.Ct. 549, 550—551, 7 L.Ed.2d 512, is cited in support. But in Bailey the named persons were given standing to sue, the statement that '(t)hey cannot represent a class of whom they are not a part,' id., at 32—33, 82 S.Ct., at 550, being dictum and its only authority being McCabe v. Atchison, T. & S.F.R. Co., 235 U.S. 151, 162—163, 35 S.Ct. 69, 71—72, 59 L.Ed. 169, which was not a class action. Nor was the question on which the case is made to turn resolved in Indiana Employment Sec. Division v. Burney, 409 U.S. 540, 93 S.Ct. 883, 35 L.Ed.2d 62. For we only held that where the named plaintiff had received relief and nothing appeared as to the relief, if any, granted to members of the class, the possible question of mootness should be resolved by the District Court. Even so, there were dissents. The upshot is that one crucial issue on which the Court makes this case turn has not been decided by the Court and was never argued here. At the very least we should have a full-dress argument on that point.
32
But I do not press the point, for the amended complaint is sufficiently specific to warrant a trial.
33
As respects O'Shea, the Magistrate, and Spomer, the Circuit Judge, the charges concerning named plaintiffs are as follows:
34
(1) that excessive bonds have been required in violation of the Eighth and Fourteenth Amendments because petitioners follow an unofficial bond schedule without regard to the facts of individual cases; (2) on information and belief, that petitioners set higher sentences and impose harsher conditions for respondents and members of their class than for white persons;
35
(3) that, where the named plaintiffs have been fined and at times sentenced to jail and cannot pay the fines, these judges have required them to pay for a trial by jury.
36
Moreover, the amended complaint alleges that O'Shea and Spomer 'continue to engage in a pattern and practice' which 'has deprived and continues to deprive' the named plaintiffs and members of their class of their constitutional rights. Moreover, it is alleged that since early in the 1960's the blacks of Cairo and some whites have been actively and peaceably seeking to end discrimination in Cairo and that those activities have generated and continue to generate tension and antagonism in Cairo.
37
It is also alleged that the police commissioner in Cairo 'has denied and continues to deny to plaintiffs and members of their class their constitutional rights in the following ways:
38
'(a) Defendant has made or caused to be made or cooperated in the making of arrests and the filing of charges against plaintiffs and members of their class where such charges are not warranted and are merely for the purpose of harassment and to discourage and prevent plaintiffs and their class from exercising their constitutional rights.
39
'(b) Defendant has made or caused to be made or cooperated in the making of arrests and the filing of charges against plaintiffs and members of their class where there may be some colorable basis to the arrest or charge, but the crime defined in the charge is much harsher than is warranted by the facts and is far more severe than like charges would be against a white person.'
40
These allegations support the likelihood that the named plaintiffs as well as members of their class will be arrested in the future and therefore will be brought before O'Shea and Spomer and be subjected to the alleged discriminatory practices in the administration of justice.
41
These allegations of past and continuing wrongdoings clearly state a case or controversy in the Art. III sense. They are as specific as those alleged in Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404, and in Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, where we held that cases or controversies were presented.
42
Specificity of proof many not be forthcoming; but specificity of charges is clear.
43
What has been alleged here is not only wrongs done to named plaintiffs, but a recurring pattern of wrongs which establishes, if proved, that the legal regime under control of the whites in Cairo, Illinois, is used over and over again to keep the blacks from exercising First Amendment rights, to discriminate against them, to keep from the blacks the protection of the law in their lawful activities, to weight the scales of justice repeatedly on the side of white prejudices and against black protests, fears, and suffering. This is a more pervasive scheme for suppression of blacks and their civil rights than I have ever seen. It may not survive a trial. But if this case does not present a 'case or controversy' involving the named plaintiffs, then that concept has been so watered down as to be no longer recognizable. This will please the white superstructure, but it does violence to the conception of evenhanded justice envisioned by the Constitution.
44
Suits under 42 U.S.C. § 1983 are exceptions to the absolute bar against federal injunctions directed at state court proceedings provided in 28 U.S.C. § 2283.2 See Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705. It will be much more appropriate to pass on the nature of any equitable relief to be granted after the case has been tried. It may be that when the case is ended, no injunction against any state proceeding will be asked for or will seem appropriate. Or the injunctive relief in final analysis may come down to very narrow and discrete orders prohibiting precise practices. The Court labels this an 'ongoing federal audit of state criminal proceedings.' That of course is a regime that we do not foster. But the federal Constitution is supreme and if the power of the white power-structure in Cairo. Illinois, is so great as to disregard it, extraordinary relief is demanded. I would cross the bridge of remedies only when the precise contours of the problem have been established after a trial.
45
To repeat, in the instant case, there are allegations that state lower-court judges are willfully discriminating in their sentencing determinations and are imposing excessive bail. The effects of such results may well persist quite aside from the disposition of the underlying substantive charges at trial or on appeal, and may well be functionally unreviewable. The Court of Appeals observed, 468 F.2d at 408, that the individual defendant in a criminal case will find it difficult, if not impossible, to obtain review of a sentence within statutory limits unless it is manifestly harsh or unjustified, citing the Illinois rule that 'imposition of sentence is a matter of judicial discretion, and in the absence of a manifest abuse of that discretion it will not be altered by a reviewing court.' People v. Bonner, 37 Ill.2d 553, 563, 229 N.E.2d 527, 533 (1967), cert. denied, 392 U.S. 910, 88 S.Ct. 2067, 20 L.Ed.2d 1368 (1968).
46
Furthermore, the respondents do not primarily allege individual instances of excessively harsh treatment, on an absolute scale, of black and indigent defendants, but rather a pattern of discriminatory treatment, especially in favor of prosperous white defendants. Such allegations would amount to denials of equal protection even if blacks and poor whites were not subject to sentences which were so excessive that they constituted manifest abuses of discretion, as long as wealthy whites were at the same time receiving relatively lenient sentences from the same judges. A single instance of sentencing by itself might not strike the conscience of a reviewing court, but when coupled with a pattern of discriminatory treatment could will justify the equitable intervention of a federal court. A class suit where evidence could be developed showing a pattern of discriminatory bail and sentencing decisions by the petitioners would be the one appropriate vehicle in which these claims could be developed.
47
Whether respondents could come forward with such evidence, and whether the Federal District Court in the exercise of its equitable discretion could frame suitable relief are, of course, questions which can be answered only after a trial on the merits. The resolution of those issues would then be properly reviewable. But the principles of abstention and comity should not bar this suit ab initio.
II
48
Because I believe that the complaint is sufficient to state an actual 'case or controversy,' I would reach the further question, on the merits, whether equitable relief may be warranted in the circumstances of this case. I agree, nonetheless, with my Brother BLACKMUN that the Court's discussion in Part II of its opinion, whether a case for equitable relief was stated, is an advisory opinion since the Court has determined that there is no 'case or controversy' in the Article III sense.
APPENDIX TO OPINION OF DOUGLAS, J., DISSENTING
49
There are seven statutes in addition to 42 U.S.C. § 1983 which the Court has recognized constitute 'express exceptions' to the policy of nonintervention in state proceedings enunciated by the anti-injunction statute: (1) The Bankruptcy Act, 11 U.S.C. § 1 et seq., specifically recognized by Congress as an exception to 28 U.S.C. § 2283. See Mitchum v. Foster, 407 U.S. 225, 233, 92 S.Ct. 2151, 2157, 32 L.Ed.2d 705. (2) The Interpleader Act of 1936, 28 U.S.C. § 2361, allowing federal courts to restrain prosecution of state court suits involving property involved in federal interpleader actions. See Treinies v. Sunshine Mining Co., 308 U.S. 66, 74, 60 S.Ct. 44, 48, 84 L.Ed. 85. (3) The 1851 Act limiting the liability of shipowners by providing for the cessation of proceedings against them when they have made a deposit equal to the value of their ships with a federal court, 46 U.S.C. § 185. See Providence & N.Y. S.S. Co. v. Hill Mfg. Co., 109 U.S. 578, 599—600, 3 S.Ct. 379, 393, 27 L.Ed. 1038. (4) The Frazier-Lemke Farm Mortgage Act, 11 U.S.C. § 203(s)(2) (1958 ed.). See Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370. (5) The Federal Habeas Corpus Act, 28 U.S.C. § 2251, permitting a stay of state court proceedings when a federal habeas action is pending. See Ex parte Royall, 117 U.S. 241, 248—249, 6 S.Ct. 734, 738, 29 L.Ed. 868. (6) Section 205(a) of the Emergency Price Control Act of 1942, 56 Stat. 33. See Porter v. Dicken, 328 U.S. 252, 255, 66 S.Ct. 1094, 1096, 90 L.Ed. 1203. (7) Legislation providing for the removal of litigation to federal courts and the simultaneous cessation of state court proceedings, 28 U.S.C. § 1446(e). See French v. Hay, 22 Wall. 250, 22 L.Ed. 857.
50
This Court has also recognized the power of a federal court to stay proceedings in a state court to prevent relitigation of an issue already decided in a federal proceeding. See Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 41 S.Ct. 338, 65 L.Ed. 673; Julian v. Central Trust Co., 193 U.S. 93, 112, 24 S.Ct. 399, 407, 48 L.Ed. 629. It has recognized the power of a federal court to enjoin state court proceedings to protect the jurisdiction which a federal court has already acquired over a res. See Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226; Toucey v. New York Life Ins. Co., 314 U.S. 118, 135—136, 62 S.Ct. 139, 144, 86 L.Ed. 100. And we have found it proper for a federal court to directly enjoin state proceedings when the injunction was sought by either the United States, Leiter Minerals, Inc. v. United States, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267, or by a federal agency asserting superior federal interests, see NLRB v. Nash-Finch Co., 404 U.S. 138, 92 S.Ct. 373, 30 L.Ed.2d 328.
1
While the Court of Appeals did not attempt to specify exactly what type of injunctive relief might be justified, it at least suggested that it might include a requirement of 'periodic reports of various types of aggregate data on actions on bail and sentencing.' 468 F.2d, at 415. The dissenting judge urged that a federal district court has no power to supervise and regulate by mandatory injunction the discretion which state court judges may exercise within the limits of the powers vested in them by law, and that any relief contemplated by the majority holding which might be applicable to the pattern and practice alleged, if proven, would subject the petitioners to the continuing supervision of the District Court, the necessity of defending their motivations in each instance when the fixing of bail or sentence was challenged by a Negro defendant as inconsistent with the equitable relief granted, and the possibility of a contempt citation for failure to comply with the relief awarded. Id., at 415—417.
2
We have previously noted that 'Congress may enact statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute. See, e.g., Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 212, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972) (White, J., concurring); Hardin v. Kentucky Utilities Co., 390 U.S. 1, 6, 88 S.Ct. 651, 19 L.Ed.2d 787 (1968).' Linda R.S. v. Richard D., 410 U.S. 614, 617 n. 3, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973). But such statutes do not purport to bestow the right to sue in the absence of any indication that invasion of the statutory right has occurred or is likely to occur. Title 42 U.S.C. § 1983, in particular, provides for liability to the 'party injured' in an action at law, suit in equity, or other proper proceeding for redress. Perforce, the constitutional requirement of an actual case or controversy remains. Respondents still must show actual or threatened injury of some kind to establish standing in the constitutional sense.
3
There was no class determination in this case as the complaint was dismissed on grounds which did not require that determination to be made. Petitioners assert that the lack of standing of the named respondents to raise the class claim is buttressed by the incongruous nature of the class respondents seek to represent. The class is variously and incompatibly defined in the complaint as those residents of Cairo, both Negro and white, who have boycotted certain businesses in that city and engaged in similar activities for the purpose of combatting racial discrimination, as a class of all Negro citizens suffering racial discrimination in the application of the criminal justice system in Alexander County (though two white persons are named respondents), and as all poor persons unable to afford bail, counsel, or jury trials in city ordinance cases. The absence of specific claims of injury as a result of any of the wrongful practices charged, in light of the ambiguous and contradictory class definition proffered, bolsters our conclusion that these respondents cannot invoke federal jurisdiction to hear the claims they present in support of their request for injunctive relief.
4
Tr. of Oral Arg. 21, 23, 26.
5
It was noted in Stefanelli that in suits brought under 42 U.S.C. § 1983 'we have withheld relief in equity even when recognizing that comparable facts would create a cause of action for damages. Compare Giles v. Harris, 180 U.S. 475, 23 S.Ct. 639, 47 L.Ed. 909, with Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281.' 342 U.S., at 122, 72 S.Ct., at 121.
6
See n. 3, supra.
7
See n. 1, supra.
1
O'Shea, Magistrate of Alexander County Circuit Court when this suit was instituted. became Associate Judge in the county on July 1, 1971.
2
Title 28 U.S.C. § 2283 provides that:
'A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.'
| 89
|
38 L.Ed.2d 713
94 S.Ct. 756
414 U.S. 538
AMERICAN PIPE AND CONSTRUCTION CO. et al., Petitioners,v.State of UTAH et al.
No. 72—1195.
Argued Nov. 12, 1973.
Decided Jan. 16, 1974.
Rehearing Denied Feb. 25, 1974.
See 415 U.S. 952, 94 S.Ct. 1477.
Syllabus
Eleven days short of a year after a final consent judgment had been entered against petitioners in civil actions by the Government to restrain federal antitrust violations (which actions had been filed almost four years before entry of that judgment), the State of Utah commenced a Sherman Act treble-damages class action against petitioners, in which the State purported to represent various state and local agencies and certain other Western States. The action was found to be timely under the federal four-year statute of limitations governing antitrust suits (§ 4B of the Clayton Act) because of § 5(b) of that Act providing that whenever the United States institutes any proceeding to restrain antitrust violations, the running of the statute of limitations in respect of every private right of action arising under such laws and based on any matter complained of in such proceeding shall be suspended during the pendency thereof and for one year thereafter. The District Court thereafter granted petitioners' motion for an order pursuant to Fed.Rule Civ.Proc. 23(c)(1) that the suit could not be maintained as a class action, the court finding that, although the prerequisites to a class action contained in Rule 23(a)(2) through (4) had been met, the requirement of Rule 23(a)(1) that 'the class (be) so numerous that joinder of all members is impracticable' was not satisfied. Eight days after entry of this order, respondent towns, municipalities, and water districts, all of which had been claimed as members of the original class, moved to intervene as plaintiffs in Utah's action, either as of right under Fed.Rules Civ.Proc. 24(a)(2) or by permission under Rule 24(b)(2), but the District Court denied this motion, concluding that the limitation period had run as to all those respondents and had not been tolled by institution of the class action. The Court of Appeals reversed as to denial of permission to intervene under Rule 24(b)(2), finding that as to the members of the class Utah purported to represent, suit was actually commenced by Utah's filing of the class action. Held:
1. The commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the requirement of Rule 23(a)(1) been met, and here where respondents, who were purported members of the class, made timely motions to intervene after the District Court had found the suit inappropriate for class action status, the institution of the original class suit tolled the limitations statute for respondents. Pp. 552—556.
2. A judicial tolling of the statute of limitations does not abridge or modify a substantive right afforded by the antitrust acts; the mere fact that a federal statute providing for substantive liability also sets a time limitation upon the institution of suit does not restrict the power of the federal courts to hold that the statute of limitations is tolled under certain circumstances not inconsistent with the legislative purpose. Pp. 556—559.
3. The District Court's determination in denying permission to intervene that respondents were absolutely barred by the statute of limitations, was not an unreviewable exercise of discretion but rather a conclusion of law which the Court of Appeals correctly found to be erroneous. Pp. 559—560.
4. The commencement of the class action suspended the running of the limitations period only during the pendency of the motion to strip the suit of its class action character. Since the class action was filed with 11 days yet to run in the period as tolled by § 5(b), the intervenors had 11 days after entry of the order denying them participation in the class suit in which to move to file their intervention motion. Their filing only 8 days after the entry of such order was thus timely. Pp. 560—561.
473 F.2d 580, affirmed.
Jesse R. O'Malley, Los Angeles, Cal., for petitioners.
Gerald R. Miller, Salt Lake City, Utah, for respondents.
Mr. Justice STEWART delivered the opinion of the Court.
1
This case involves an aspect of the relationship between a statute of limitations and the provisions of Fed.Rule Civ.Proc. 23 regulating class actions in the federal courts. While the question presented is a limited one, the details of the complex proceedings, originating almost a decade ago, must be briefly recounted.
2
On March 10, 1964, a federal grand jury returned indictments charging a number of individuals and companies, including the petitioners here, with criminal violations of § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 1. The indictments alleged that the defendants combined and conspired together in restraint of trade in steel and concrete pipe by submitting collusive and rigged bids for the sale of such pipe and by dividing and allocating business among themselves. Shortly thereafter, on June 19, 1964, pleas of nolo contendere were accepted and judgments of guilt were entered. Four days later, on June 23, 1964, the United States filed civil complaints in the United States District Court for the Central District of California against the same companies, which complaints, as subsequently amended, sought to restrain further violations of the Sherman Act and violations of the Clayton and False Claims Acts. These civil actions were the subject of extended negotiations between the Government and the defendants which culminated in a 'Final Judgment,' entered on May 24, 1968, in which the companies consented to a decree enjoining them from engaging in certain specified future violations of the antitrust laws.1
3
Eleven days short of a year later, on May 13, 1969, the State of Utah commenced a civil action for treble damages against the petitioners in the United States District Court for the District of Utah, claiming that the petitioners had conspired to rig prices in the sale of concrete and steel pipe in violation of § 1 of the Sherman Act. The suit purported to be brought as a class action in which the State represented 'public bodies and agencies of the state and local government in the State of Utah who are end users of pipe acquired from the defendants' and also those States in the 'Western Area' which had not previously filed similar actions. This action was found to be timely under the federal statute of limitations governing antitrust suits2 because of the provision of § 5(b) of the Clayton Act, 38 Stat. 731, as amended, 15 U.S.C. § 16(b), which states that
4
'(w)henever any civil or criminal proceeding is instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws, . . . the running of the statute of limitations in respect of every private right of action arising under said laws and based in whole or in part on any matter complained of in said proceeding shall be suspended during the pendency thereof and for one year thereafter . . ..'3
5
Since the Government's civil actions against the petitioners had ended in a consent judgment entered on May 24, 1968, Utah's suit, commenced on May 13, 1969, was timely under § 5(b), with 11 days to spare.4
6
On a motion made by the majority of the petitioners, the suit was subsequently transferred by the Judicial Panel on Multidistrict Litigation from Utah to the United States District Court for the Central District of California for trial by Judge Martin Pence, Chief Judge of the District of Hawaii, sitting in the California District by assignment. The transfer and assignment were found appropriate because of the prior concentration of more than 100 actions arising out of the same factual situation in the Central District of California before Judge Pence. In re Concrete Pipe, 303 F.Supp. 507, 508—509. (Jud.Pan.Mult.Lit.1969.)
7
In November 1969 the petitioners moved for an order pursuant to Fed.Rule Civ.Proc. 23(c)(1) that the suit could not be maintained as a class action.5 This motion was subsequently granted. In his memorandum opinion in support of the order granting the motion Judge Pence found that those 'Prerequisites to a class action' contained in Rule 23(a)(2) through (4) appeared to have been met, or at least that minor deficiencies in meeting those standards for determining the suitability of proceeding as a class would 'not be fatal to the plaintiffs' class action.' 49 F.R.D. 17, 20.6 But the requirement of Rule 23(a)(1) that 'the class (be) so numerous that joinder of all members is impracticable' was found by Judge Pence not to be satisfied: While the complaint had alleged that the members of the class totaled more than 800, Judge Pence, relying on his extensive experience in dealing with litigation involving the same defendants and similar causes of action, concluded that the number of entities which ultimately could demonstrate injury from the trade practices of the petitioners was for lower, and, further, that '(f)rom prior actual experience in like cases involving the same alleged conspiracy, this court could not find that number so numerous that joinder of all members was impracticable . . ..' 49 F.R.D., at 21.
8
On December 12, 1969, eight days after entry of the order denying class action status,7 the respondents, consisting of more than 60 towns, municipalities, and water districts in the State of Utah, all of which had been claimed as members of the original class, filed motions to intervene as plaintiffs in Utah's action either as of right, under Rule 24(a)(2)8 or, in the alternative, by permission under Rule 24(b)(2),9 and for other relief not pertinent here. On March 30, 1970, the District Court denied the respondents' motion in all respects concluding that the limitations period imposed by § 4B of the Clayton Act, as tolled by § 5(b), had run as to all these respondents and had not been tolled by the institution of the class action in their behalf. 50 F.R.D. 99.
9
On appeal, the Court of Appeals for the Ninth Circuit affirmed as to the denial of leave to intervene as of right under Rule 24(a)(2), but, with one judge dissenting, reversed as to denial of permission to intervene under Rule 24(b)(2).10 473 F.2d 580. Finding that 'as to members of the class Utah purported to represent, and whose claims it tendered to the court, suit was actually commenced by Utah's filing,' the appellate court concluded that '(i)f the order (denying class action status), through legal fiction, is to project itself backward in time it must fictionally carry backward with it the class members to whom it was directed, and the rights they presently possessed. It cannot leave them temporally stranded in the present.' Id., at 584. We granted certiorari to consider a seemingly important question affecting the administration of justice in the federal courts. 411 U.S. 963, 93 S.Ct. 2146, 36 L.Ed.2d 683.
10
* Under Rule 23 as it stood prior to its extensive amendment in 1966, 383 U.S. 1047—1050, a so-called 'spurious' class action could be maintained when 'the character of the right sought to be enforced for or against the class is . . . several, and there is a common question of law or fact affecting the several rights and a common relief is sought.'11 The Rule, however, contained no mechanism for determining at any point in advance of final judgment which of those potential members of the class claimed in the complaint were actual members and would be bound by the judgment. Rather, '(w)hen a suit was brought by or against such a class, it was merely an invitation to joinder—an invitation to become a fellow traveler in the litigation, which might or might not be accepted.' 3B J. Moore, Federal Practice 23.10(1), p. 23—2603 (2d ed.). Cf. Snyder v. Harris, 394 U.S. 332, 335, 89 S.Ct. 1053, 1056, 22 L.Ed.2d 319; Zahn v. International Paper Co., 414 U.S. 291, at 296 and n. 6, 94 S.Ct. 505, at 509 and n. 6, 38 L.Ed.2d 511. A recurrent source of abuse under the former Rule lay in the potential that members of the claimed class could in some situations await developments in the trial or even final judgment on the merits in order to determine whether participation would be favorable to their interests. If the evidence at the trial made their prospective position as actual class members appear weak, or if a judgment precluded the possibility of a favorable determination, such putative members of the class who chose not to intervene or join as parties would not be bound by the judgment. This situation—the potential for so-called 'one-way intervention' aroused considerable criticism upon the ground that it was unfair to allow members of a class to benefit from a favorable judgment without subjecting themselves to the binding effect of an unfavorable one.12 The 1966 amendments were designed, in part, specifically to mend this perceived defect in the former Rule and to assure that members of the class would be identified before trial on the merits and would be bound by all subsequent orders and judgments.13
11
Under the present Rule, a determination whether an action shall be maintained as a class action is made by the court '(a)s soon as practicable after the commencement of an action brought as a class action . . ..' Rule 23(c)(1).14 Once it is determined that the action may be maintained as a class action under subdivision (b)(3),15 the court is mandated to direct to members of the class 'the best notice practicable under the circumstances' advising them that they may be excluded from the class if they so request, that they will be bound by the judgment, whether favorable or not if they do not request exclusion, and that a member who does not request exclusion may enter an appearance in the case. Rule 23(c)(2).16 Finally, the present Rule provides that in Rule 23(b)(3) actions the judgment shall include all those found to be members of the class who have received notice and who have not requested exclusion. Rule 23(c)(3).17 Thus, potential class members retain the option to participate in or withdraw from the class action only until a point in the litigation 'as soon as practicable after the commencement' of the action when the suit is allowed to continue as a class action and they are sent notice of their inclusion within the confines of the class. Thereafter they are either nonparties to the suit and ineligible to participate in a recovery or to be bound by a judgment, or else they are full members who must abide by the final judgment, whether favorable or adverse.
12
Under former Rule 23, there existed some difference of opinion among the federal courts of appeals and district courts as to whether parties should be allowed to join or intervene as members of a 'spurious' class after the termination of a limitation period, when the initial class action complaint had been filed before the applicable statute of limitations period had run. A majority of the courts ruling on the question, emphasizing the representative nature of a class suit, concluded that such intervention was proper.18 Other courts concluded that since a 'spurious' class action was essentially a device to permit individual joinder or intervention, each individual so participating would have to satisfy the timeliness requirement.19 This conflict in the implementation of the former Rule was never resolved by this Court.
13
Under present Rule 23, however, the difficulties and potential for unfairness which, in part, convinced some courts to require individualized satisfaction of the statute of limitations by each member of the class, have been eliminated, and there remain no conceptual or practical obstacles in the path of holding that the filing of a timely class action complaint commences the action for all members of the class as subsequently determined.20 Whatever the merit in the conclusion that one seeking to join a class after the running of the statutory period asserts a 'separate cause of action' which must individually meet the timeliness requirements, Athas v. Day, 161 F.Supp. 916, 919 (D.Colo.1958), such a concept is simply inconsistent with Rule 23 as presently drafted. A federal class action is no longer 'an invitation to joinder' but a truly representative suit designed to avoid, rather than encourage, unnecessary filing of repetitious papers and motions. Under the circumstances of this case, where the District Court found that the named plaintiffs asserted claims that were 'typical of the claims or defenses of the class' and would 'fairly and adequately protect the interests of the class,' Rule 23(a)(3), (4), the claimed members of the class stood as parties to the suit until and unless they received notice thereof and chose not to continue. Thus, the commencement of the action satisfied the purpose of the limitation provision as to all those who might subsequently participate in the suit as well as for the named plaintiffs. To hold to the contrary would frustrate the principal function of a class suit, because then the sole means by which members of the class could assure their participation in the judgment if notice of the class suit did not reach them until after the running of the limitation period would be to file earlier individual motions to join or intervene as parties precisely the multiplicity of activity which Rule 23 was designed to avoid in those cases where a class action is found 'superior to other available methods for the fair and efficient adjudication of the controversy.' Rule 23(b)(3).
14
We think no different a standard should apply to those members of the class who did not rely upon the commencement of the class action (or who were even unaware that such a suit existed) and thus cannot claim that they refrained from bringing timely motions for individual intervention or joinder because of a belief that their interests would be represented in the class suit.21 Rule 23 is not designed to afford class action representation only to those who are active participants in or even aware of the proceedings in the suit prior to the order that the suit shall or shall not proceed as a class action. During the pendency of the District Court's determination in this regard, which is to be made 'as soon as practicable after the commencement of an action,' potential class members are mere passive beneficiaries of the action brought in their behalf. Not until the existence and limits of the class have been established and notice of membership has been sent does a class member have any duty to take note of the suit or to exercise any responsibility with respect to it in order to profit from the eventual outcome of the case. It follows that even as to asserted class members who were unaware of the proceedings brought in their interest or who demonstrably did not rely on the institution of those proceedings, the later running of the applicable statute of limitations does not bar participation in the class action and in its ultimate judgment.
II
15
In the present case the District Court ordered that the suit could not continue as a class action, and the participation denied to the respondents because of the running of the limitation period was not membership in the class, but rather the privilege of intervening in an individual suit pursuant to Rule 24(b)(2).22 We hold that in this posture, at least where class action status has been denied solely because of failure to demonstrate that 'the class is so numerous that joinder of all members is impracticable,' the commencement of the original class suit tolls the running of the statute 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. As the Court of Appeals was careful to note in the present case, '(m)aintenance of the class action was denied not for failure of the complaint to state a claim on behalf of the members of the class (the court recognized the probability of common issues of law and fact respecting the underlying conspiracy), not for lack of standing of the representative, or for reasons of bad faith or frivolity.' 473 F.2d, at 584. (Footnote omitted.)
16
A contrary rule allowing participation only by those potential members of the class who had earlier filed motions to intervene in the suit would deprive Rule 23 class actions of the efficiency and economy of litigation which is a principal purpose of the procedure. Potential class members would be induced to file protective motions to intervene or to join in the event that a class was later found unsuitable. In cases such as this one, where the determination to disallow the class action was made upon considerations that may vary with such subtle factors as experience with prior similar litigation or the current status of a court's docket,23 a rule requiring successful anticipation of the determination of the viability of the class would breed needless duplication of motions. We are convinced that the rule most consistent with federal class action procedure must be that the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.24
17
This rule is in no way inconsistent with the functional operation of a statute of limitations. As the Court stated in Order of Railroad Telegraphers v Railway Express Agency, 321 U.S. 342, 64 S.Ct. 582, 88 L.Ed. 788, statutory limitation periods are 'designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.' Id., at 348—349, 64 S.Ct., at 586. The policies of ensuring essential fairness to defendants and of barring a plaintiff who 'has slept on his rights,' Burnett v. New York Central R. Co., 380 U.S. 424, 428, 85 S.Ct. 1050, 1054, 13 L.Ed.2d 941, are satisfied when, as here, a named plaintiff who is found to be representative of a class commences a suit and thereby notifies the defendants 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. Within the period set by the statute of limitations, the defendants have the essential information necessary to determine both the subject matter and size of the prospective litigation, whether the actual trial is conducted in the form of a class action, as a joint suit, or as a principal suit with additional intervenors.25
18
Since the imposition of a time bar would not in this circumstance promote the purposes of the statute of limitations, the tolling rule we establish here is consistent both with the procedures of Rule 23 and with the proper function of the limitations statute. While criticisms of Rule 23 and its impact on the federal courts have been both numerous and trenchant, see, e.g., American College of Trial Lawyers, Report and Recommendations of the Special Committee on Rule 23 of the Federal Rules of Civil Procedure (1972); H. Friendly, Federal Jurisdiction: A General View 118—120 (1973); Handler, The Shift from Substantive to Procedural Innovations in Antitrust Suits—The Twenty-Third Annual Antitrust Review, 71 Col.L.Rev. 1, 5—12 (1971); Handler, Twenty-Fourth Annual Antitrust Review, 72 Col.L.Rev. 1, 34—42 (1972), this interpretation of the Rule is nonetheless necessary to insure effectuation of the purposes of litigative efficiency and economy that the Rule in its present form was designed to serve.
III
19
The petitioners contend, however, that irrespective of the policies inherent in Rule 23 and in statutes of limitations, the federal courts are powerless to extend the limitation period beyond the period set by Congress because that period is a 'substantive' element of the right conferred on antitrust plaintiffs and cannot be extended or restricted by judicial decision or by court rule.26 Unlike the situation where Congress has been silent as to the period within which federal rights must be asserted,27 in the antitrust field Congress has specified a precise limitation period, and further has provided for a tolling period in the event that Government litigation is instituted. The inclusion of the limitation and the tolling period, the petitioners assert, makes the 'substantive' statute immune from extension by 'procedural' rules. They rely in large part on the Court's decision in The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358, in which it was stated, with respect to state wrongful-death statutes,
20
'The statutes create a new legal liability, with the right to a suit for its enforcement, provided the suit is brought within 12 months, and not otherwise. The time within which the suit must be brought operates as a limitation of the liability itself as created, and not of the remedy alone. It is a condition attached to the right to sue at all.' Id., at 214, 7 S.Ct., at 147.
21
In The Harrisburg, however, the Court dealt with a situation where a plaintiff who was invoking the maritime jurisdiction of a federal court sought relief under a state statute providing for substantive liability.'28 The Court held that when a litigant in a federal court asserted a cause of action based upon a state statute he was bound by the limitation period contained within that statute rather than by a federal time limit. Cf. Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079. But the Court in The Harrisburg did not purport to define or restrict federal judicial power to delineate circumstances where the applicable statute of limitations would be tolled. As we said in Burnett, supra, '(w)hile the embodiment of a limitation provision in the statute creating the right which it modifies might conceivably indicate a legislative intent that the right and limitation be applied together when the right is sued upon in a foreign forum, the fact that the right and limitation are written into the same statute does not indicate a legislative intent as to whether or when the statute of limitations should be tolled.' 380 U.S., at 427 n. 2, 85 S.Ct., at 1054. The proper test is not whether a time limitation is 'substantive' or 'procedural,' but whether tolling the limitation in a given context is consonant with the legislative scheme.29
22
In recognizing judicial power to toll statutes of limitation in federal courts we are not breaking new ground. In Burnett v. New York Central R. Co., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941, a railroad employee claiming rights under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., initially brought suit in a state court within the three-year time limitation specifically imposed by § 6 of the Act, 45 U.S.C. § 56. The state proceeding was subsequently dismissed because of improper venue. Immediately after the dismissal, but also after the running of the limitation period, the employee attempted to bring suit in federal court. Reversing determinations of the District Court and the Court of Appeals that the federal suit was time barred, the Court held that the commencement of the state suit fulfilled the policies of repose and certainty inherent in the limitation provisions and tolled the running of the period. See also Herb v. Pitcairn, 325 U.S. 77, 65 S.Ct. 954, 89 L.Ed. 1483.
23
Similarly, in cases where the plaintiff has refrained from commencing suit during the period of limitation because of inducement by the defendant, Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 79 S.Ct. 760, 3 L.Ed.2d 770, or because of fraudulent concealment, Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743, this Court has not hesitated to find the statutory period tolled or suspended by the conduct of the defendant. In Glus, supra, the Court specifically rejected a contention by the defendant that when 'the time limitation is an integral part of a new cause of action . . . that cause is irretrievably lost at the end of the statutory period.' 359 U.S., at 232, 79 S.Ct., at 761. To the contrary, the Court found that the strict command of the limitation period provided in the federal statute was to be suspended by considerations '(d)eeply rooted in our jurisprudence.' Ibid.
24
These cases fully support the conclusion that the mere fact that a federal statute providing for substantive liability also sets a time limitation upon the institution of suit does not restrict the power of the federal courts to hold that the statute of limitations is tolled under certain circumstances not inconsistent with the legislative purpose.
IV
25
Finally, the petitioners urge that the Court of Appeals' reversal of the District Court for failure to permit intervention under Rule 24(b)(2) was nonetheless improper because the District Court in denying such permission was doing no more than exercising a legal discretion which the Court of Appeals did not find to be abused.30 They point out that Rule 24(b) explicitly refers to a district judge's permission to intervene as an exercise of discretion,31 and that this Court has held that '(t)he exercise of discretion in a matter of this sort is not reviewable by an appellate court unless clear abuse is shown . . ..' Allen Calculators, Inc. v. National Cash Register Co., 322 U.S. 137, 142, 64 S.Ct. 905, 908, 88 L.Ed. 1188; see also Brotherhood of Railroad Trainmen v. Baltimore & O.R. Co., 331 U.S. 519, 524, 67 S.Ct. 1387, 1390, 91 L.Ed. 1646.
26
In denying permission to intervene in this case, however, Judge Pence did not purport to weigh the competing considerations in favor of and against intervention, but simply found that the prospective intervenors were absolutely barred by the statute of limitations. This determination was not an exercise of discretion, but rather a conclusion of law which the Court of Appeals correctly found to be erroneous. The judgment of the Court of Appeals reversing the District Court's order directed that the case be remanded 'for further proceedings upon the motions (to intervene).' 473 F.2d, at 584. Rather than reviewing an exercise of discretion, the Court of Appeals merely directed that discretion be exercised.32
V
27
It remains to determine the precise effect the commencement of the class action had on the relevant limitation period. Section 5(b) of the Clayton Act provides that the running of the statutes of limitations be 'suspended' by the institution of a Government antitrust suit based on the same subject matter. The same concept leads to the conclusion that the commencement of the class action in this case suspended the running of the limitation period only during the pendency of the motion to strip the suit of its class action character. The class suit brought by Utah was filed with 11 days yet to run in the period as tolled by § 5(b), and the intervenors thus had 11 days after the entry of the order denying them participation in the suit as class members in which to move for permission to intervene. Since their motions were filed only eight days after the entry of Judge Pence's order, it follows that the motions were timely.
28
The judgment of the Court of Appeals for the Ninth Circuit is therefore affirmed.
29
Affirmed.
30
Mr. Justice BLACKMUN, concurring.
31
I join the Court's opinion and concur in its judgment. Our decision, however, must not be regarded as encouragement to lawyers in a case of this kind to frame their pleadings as a class action, intentionally, to attract and save members of the purported class who have slept on their rights. Nor does it necessarily guarantee intervention for all members of the purported class.
32
As the Court has indicated, the purpose of statutes of limitations is to prevent surprises 'through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.' Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 348 349, 64 S.Ct. 582, 586, 88 L.Ed. 788 (1944). Under our decision today, intervenors as of right will be permitted to press their claims subject only to the requirement that they have an interest relating to the property or transaction and be impaired or impeded in their ability to protect that interest. Fed.Rule Civ.Proc. 24(a). Such claims, therefore, invariably will concern the same evidence, memories, and witnesses as the subject matter of the original class suit, and the defendant will not be prejudiced by later intervention, should class relief be denied. Permissive intervenors may be barred, however, if the district judge, in his discretion, concludes that the intervention will 'unduly delay or prejudice the adjudication of the rights of the original parties.' Fed.Rule Civ.Proc. 24(b). The proper exercise of this discretion will prevent the type of abuse mentioned above and might preserve a defendant whole against prejudice arising from claims for which he has received no prior notice.
33
The provision in Fed.Rule Civ.Proc. 23(c)(1), that an order allowing the maintenance of a suit as a class action 'may be conditional, and may be altered or amended before the decision on the merits,' could be viewed to generate uncertainty under the Court's decision, for the class aspect might be disbanded after the litigation has long been underway. Rule 23(c)(1), of course, provides that the court shall decide whether a class action may be maintained '(a)s soon as practicable after the commencement of an action.' This decision, therefore, will normally be made expeditiously. And any later alteration with respect to intervention is subject to the discretionary elements of Rule 24(b), mentioned above, and to Rule 23(d)(3)'s provision that 'the court may make appropriate orders . . . imposing conditions . . . on intervenors.'
1
Consent decrees binding each of the petitioners other than American Pipe & Construction Co. were entered on December 8, 1967; however, in an earlier action the District Court in Arizona determined that the 'Final Judgment' entered on May 24, 1968, was final as to all petitioners. Maricopa County v. American Pipe & Construction Co., 303 F.Supp. 77, 87 (1969).
2
Section 4B of the Clayton Act, 15 U.S.C. § 15b, provides in pertinent part as follows:
'Any action to enforce any cause of action (under the antitrust laws) shall be forever barred unless commenced within four years after the cause of action accrued.'
3
The section contains the additional proviso that
'whenever the running of the statute of limitations . . . is suspended hereunder, any action to enforce such cause of action shall be forever barred unless commenced either within the period of suspension or within four years after the cause of action accrued.'
4
The petitioners had earlier argued that since there was a four-day hiatus between the entry of judgment on the pleas of nolo contendere in the criminal actions and the commencement of the Government civil suit, the tolling period provided by § 5(b) should have begun to run from the termination of the criminal proceedings. This contention was rejected in Maricopa County v. American Pipe & Construction Co., supra, 303 F.Supp., at 83—86, and has not been pressed here.
5
Subdivision (c)(1) of Rule 23 provides:
'As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits.'
6
The 'Prerequisites to a class action' listed in subdivision (a) of Rule 23 are as follows:
'One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.'
7
While the memorandum in support of the order denying class action status was dated December 17, 1969, the order itself was filed on December 4, 1969.
8
'Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.'
9
'Permissive intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.'
10
As originally filed, the respondents' motions to intervene included allegations based on events occurring during the four years prior to December 12, 1969, the date of the filing of the motions. The denial of leave to intervene did not apply to these allegations, which were still timely as to the respondents even under the District Court's order, and the order was thus not appealable as a final order under 28 U.S.C. § 1291. Furthermore, in the same order the court declined to certify the question of the tolling effect of the class action as an appealable order under 28 U.S.C. § 1292(b). 50 F.R.D. 99, 109—110. The respondents subsequently amended their complaint to confine its allegations to events more than four years prior to the filing of their motions, thereby making the court's order final as to them and permitting immediate appeal under 28 U.S.C. § 1291.
11
Original Rule 23 provided as follows:
'(a) Representation. If persons constituting a class are so numerous as to make it impracticable to bring them all before the
court, such of them, one or more, as will fairly insure the adequate representation of all may, on behalf of all, sue or be sued, when the character of the right sought to be enforced for or against the class is
'(1) joint, or common, or secondary in the sense that the owner of a primary right refuses to enforce that right and a member of the class thereby becomes entitled to enforce it;
'(2) several, and the object of the action is the adjudication of claims which do or may affect specific property involved in the action; or
'(3) several, and there is a common question of law or fact affecting the several rights and a common relief is sought.
'(b) Secondary action by shareholders. In an action brought to enforce a secondary right on the part of one or more shareholders in an association, incorporated or unincorporated, because the association refuses to enforce rights which may properly be asserted by it, the complaint shall be verified by oath and shall aver (1) that the plaintiff was a shareholder at the time of the transaction of which he complains or that his share thereafter devolved on him by operation of law and (2) that the action is not a collusive one to confer on a court of the United States jurisdiction of any action of which it would not otherwise have jurisdiction. The complaint shall also set forth with particularity the efforts of the plaintiff to secure from the managing directors or trustees and, if necessary, from the shareholders such action as he desires, and the reasons for his failure to obtain such action or the reasons for not making such effort.
'(c) Dismissal or compromise. A class action shall not be dismissed or compromised without the approval of the court. If the right sought to be enforced is one defined in paragraph (1) of subdivision (a) of this rule notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs. If the right is one defined in paragraphs (2) or (3) of subdivision (a) notice shall be given only if the court requires it.'
12
See, e.g., Kalven & Rosenfield, The Contemporary Function of the Class Suit, 8 U.Chi.L.Rev. 684 (1941); Developments in the Law—Multiparty Litigation in the Federal Courts, 71 Harv.L.Rev. 874, 935 (1958); 2 W. Barron & A. Holtzoff, Federal Practice & Procedure & 568 (C. Wright ed. 1961).
13
See Advisory Committee's Note to Proposed Rule 23 of Rules of Civil Procedure, 28 U.S.C.App., pp. 7765, 7768; 39 F.R.D. 98, 105—106.
14
See n. 5, supra.
15
Subsection (b)(3) of Rule 23, allowing maintenance of a class action in situations generally analogous to those covered by the 'spurious' class suit under former Rule 23, provides that an action may be maintained as a class action 'if the prerequisites of subdivision (a) are satisfied,' and in addition:
'the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.'
16
'In any class action maintained under subdivision (b)(3), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that (A) the court will exclude him from the class if he so requests by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (C) any member who does not request sexclusion may, if he desires, enter an appearance through his counsel.'
17
'The judgment in an action maintained as a class action under subdivision (b)(1) or (b)(2), whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action maintained as a class action under subdivision (b)(3), whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in subdivision (c)(2) was directed, and who have not requested exclusion, and whom the court finds to be members of the class.'
18
York v. Guaranty Trust Co., 143 F.2d 503 (CA2 1944), rev'd on other grounds, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079; Escott v. Barchris Construction Corp., 340 F.2d 731 (CA2 1965); DePinto v. Provident Security Life Insurance Co., 323 F.2d 826 (CA9 1963); Union Carbide & Carbon Corp. v. Nisley, 300 F.2d 561 (CA10 1961).
19
Pennsylvania Co. for Insurances v. Deckert, 123 F.2d 979 (CA3 1941); Athas v. Day, 161 F.Supp. 916 (D.Colo.1958). The cases arising under former Rule 23 are discussed and analyzed in Simeone, Procedural Problems of Class Suits, 60 Mich.L.Rev. 905 (1962); Note, Class Actions Under New Rule 23 and Federal Statutes of Limitation: A Study of Conflicting Rationale, 13 Vill.L.Rev. 370 (1968).
20
The courts that have dealt with this problem under present Rule 23 have reached this conclusion. Esplin v. Hirschi, 402 F.2d 94 (CA10 1968); Philadelphia Elec. Co. v. Anaconda Am. Brass Co., 43 F.R.D. 452 (ED Pa.1968).
21
In York v. Guaranty Trust Co., supra, the Court of Appeals for the Second Circuit permitted joinder in a 'spurious' class suit on the reasoning that to rule otherwise would create a 'trap for the unwary' who might refrain from instituting suit on the supposition that their interests were represented in the class suit. 143 F.2d, at 529. As a member of that court subsequently observed, the contrary rule could be a 'trap' only for those who were aware of and relied upon the commencement of the class suit. Escott v. Barchris Construction Corp., 340 F.2d, at 735 (Friendly, J., concurring). See also Comment, Spurious Class Actions Based upon Securities Frauds under the Revised Federal Rules of Civil Procedure, 35 Fordham L.Rev. 295, 308—309 (1966). In the present litigation, the District Court found that only seven of the more than 60 intervenors were aware of and relied on the attempted class suit. 50 F.R.D., at 101 and n. 1.
22
The petition for certiorari did not, of course, present the question of whether intervention as of right under Rule 24(a)(2) was properly denied by the District Court, and we do not reach that question. Our conclusion as to the effect of the commencement of a class suit on tolling the statute of limitations as to those who subsequently move to intervene by permission under Rule 24(b)(2) would apply a fortiori to intervenors as of right under Rule 24(a)(2).
23
As indicated, supra, at 543, Judge Pence based his conclusion that the number of potential members was not so large as to make joinder impracticable on inferences from his prior experience with similar antitrust litigation against the same defendants. Not only would a district court's estimate of the expected attrition among the class of plaintiffs be difficult for any individual plaintiff to predict, but other federal courts have indicated that subsequent attrition will not be considered as a factor affecting numerosity under Rule 23(a)(1) when considered at the outset of the case. See, e.g., Iowa v. Union Asphalt & Roadoils, Inc., 281 F.Supp. 391, 401 (SD Iowa 1968); 3B J. Moore, Federal Practice 23.05, p. 23—279 (2d ed.). Indeed, one commentator has observed that '(t)he federal decisions under original Rule 23(a) reflect . . . contrariety of opinion as to the meaning of 'bumerous." Id., at 23—272.
24
The Advisory Committee's Note on Proposed Rule 23 observes on the issue resolved here only that the question 'whether the intervenors in the nonclass action shall be permitted to claim . . . the benefit of the date of the commencement of the action for purposes of the statute of limitations (is) to be decided by reference to the laws governing . . . limitations as they apply in particular contexts.' 28 U.S.C.App., p. 7767; 39 F.R.D., at 104.
25
As Judge Friendly has noted, in certain situations the intervenors may raise issues not presented in the class action complaint and to that extent the defendants will not have received notice of the nature of the claims against them. Escott v. Barchris Construction Corp., 340 F.2d, at 735 (concurring opinion). This problem, however, will be minimized when, as here, the District Court has already found that the named plaintiffs' claims typify those of the class. Furthermore, under Rule 23(d)(3) 'the court may make appropriate orders . . . imposing conditions on . . . intervenors.'
26
The Enabling Act empowering the Supreme Court to promulgate rules of procedure commands that '(s)uch rules shall not abridge, enlarge or modify any substantive right . . ..' 28 U.S.C. § 2072.
27
In such situations the federal courts have generally looked to local law as the source of a federal limitation period. 'Apart from penal enactments, Congress has usually left the limitation of time for commencing actions under national legislation to judicial implications. As to actions at law, the silence of Congress has been interpreted to mean that it is federal policy to adopt the local law of limitation. (Citations omitted.) The implied absorption of State statutes of limitation within the interstices of the federal enactments is a phase of fashioning remedial details where Congress has not spoken but left matters for judicial determination within the general framework of familiar legal principles.' Holmberg v. Armbrecht, 327 U.S. 392, 395, 66 S.Ct. 582, 584, 90 L.Ed. 743. See International Union, United Auto, Aerospace and Agricultural Implement Workers of America (UAW), A.F.L.—C.I.O. v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192. But see McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 78 S.Ct. 1201, 2 L.Ed.2d 1272.
28
The plaintiff in The Harrisburg initially claimed that federal maritime law afforded him a substantive cause of action for wrongful death. The Court held in that case that the federal maritime law did not extent to such suits. This holding was overruled in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339.
29
Our conclusion that a judicial tolling of the statute of limitations does not abridge or modify a substantive right afforded by the antitrust acts is consistent with what scant legislative history there is on the limitation and tolling provisions. Sections 4B and 5(b) of the Clayton Act were added to the antitrust laws in 1955, long after the original substantive liabilities were established. During debate a member of the House Judiciary Committee reporting the bill was asked, '(A)m I correct in assuming that this limitation provided by this amendment is strictly a procedural limitation and has nothing to do with substance?' to which he replied: 'It was the specific purpose of the committee in reporting this bill to in no way affect the substantive rights of individual litigants. It is simply a procedural change and suggested with the thought of setting up a uniform statute of limitations. That is the sole purpose.' 101 Cong.Rec. 5131 (1955) (remarks of Reps. Murray and Quigley).
30
The dissenting judge in the Court of Appeals based his conclusion on this ground. 473 F.2d, at 584.
31
Rule 24(b) concludes, 'In exercising its discretion (as to whether to permit intervention) the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.' (Emphasis added.)
32
Furthermore, there is persuasive intrinsic evidence that Judge Pence ruled against the respondents only on the issue of the applicability of the statute of limitations. First, his original conclusion that joinder was a more practicable remedy, 49 F.R.D., at 20, would be incongruous if immediately thereafter he asserted that intervention was, in fact, impracticable. Second, as noted previously, n. 10, supra, the District Court did not deny leave to intervene as to those who confined the allegations of their complaints to events occurring less than four years prior to the motions to intervene.
| 89
|
414 U.S. 524
94 S.Ct. 740
38 L.Ed.2d 702
Edward F. O'BRIEN et al., Appellants,v.Albert SKINNER, Sheriff, Monroe County, et al.
No. 72—1058.
Argued Nov. 6, 1973.
Decided Jan. 16, 1974.
Syllabus
Appellants, who are incarcerated in jail as convicted misdemeanants or pretrial detainees unable to make bail but who are under no voting disability under state law, and who requested but were denied the right to register and vote under mobile registration, absentee voting, or other procedures, brought this action challenging the constitutionality of the New York election laws. The contested statutes allow qualified persons to register and vote by absentee measures if precluded from personally doing so because of illness, physical disability, their duties, occupation, or business, and permit absentee voting (but not registration) if the voters are vacationing away from their residence on election day or are confined in a veterans' hospital. The state trial and intermediate appellate courts initially viewed appellants' confinement as physical disability and held that they were entitled to vote by absentee ballot. The New York Court of Appeals reversed that determination, concluding that the disability imposed by incarceration did not come within the terms of the statute. Held: The challenged provisions as thus construed, which raise no question of disenfranchisement of persons convicted of criminal conduct and permit incarcerated persons to register and vote by absentee means if confined in a county where they are not residents, violate the Equal Protection Clause of the Fourteenth Amendment, as they arbitrarily discriminate between categories of qualified voters. Pp. 528—531.
31 N.Y.2d 317, 338 N.Y.S.2d 890, 291 N.E.2d 134, reversed and remanded.
William D. Eggers, Rochester, N.Y., for appellants.
Michael K. Consedine, Rochester, N.Y., for appellees.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
This is an appeal from the judgment of the Court of Appeals of New York taken by 72 persons who were at the time of the trial of the original action, detained in confinement. Some are simply detained awaiting trial, others are confined pursuant to misdemeanor convictions; none is subject to any voting disability under the laws of New York.
2
The Court of Appeals of New York,1 by divided vote, held that failure of the State to provide appellants with any means of registering and voting was not a violation of the New York statutes and not a denial of any federal or state consitutional right.
3
Before the November 1972 general elections in New York, the appellants applied to the authorities of Monroe County, including the Board of Elections, to establish a mobile voters registration unit in the county jail in compliance with a mobile registration procedure which had been employed in some county jails in New York State. This request was denied and appellants then requested that they be either transported to polling places under appropriate restrictions or, in the alternative, that they be permitted to register and vote under New York's absentee voting provisions which, essentially, provide that qualified voters are allowed to register and vote by absentee measures if they are unable to appear personally because of illness or physical disability, or because of their 'duties, occupation or business.' The statutes also allow absentee voting, but not registration, if the voter is away from his residence on election day because he is confined in a veterans'- hospital or is away on vacation.2 The election authorities denied the request, taking the position that they were under no obligation to permit the appellants to register or to vote in person and that inmates did not qualify for absentee voting under the provisions of the New York statutes.
4
The Supreme Court for Monroe County in New York considered the claims presented by the appellants and treated them as a proceeding in the nature of mandamus. The conclusion reached by that court was that the legislature of New York had provided for absentee registration and voting by any voter unable to appear personally because of confinement in an institution (other than a mental institution). The court concluded that the election laws should be construed to apply to an inmate confined in jail and not otherwise disenfranchised since this constituted a 'physical disability' in the sense that he was physically disabled from leaving his confinement to go to the polls to vote, and that the statute therefore entitled such persons to vote by absentee ballot. However, the court noted that there was no showing that any of the persons claiming these rights had timely filed all the necessary forms but that this could yet be accomplished in time for voting by absentee ballot in November 1972. The Appellate Division of the Fourth Judicial Department of the Supreme Court of New York on review gave a similar construction to the election laws, stating:
5
'We believe that petitioners, being so confined, are physically disabled from voting and should be permitted to do so by casting absentee ballots.' 40 A.D.2d 942, 337 N.Y.S.2d 700 (1972).
6
On appeal to the New York Court of Appeals, however, these holdings were reversed, that court stating:
7
'The right to vote does not protect or insure against those circumstances which render voting impracticable. The fact of incarceration imposes many other disabilities, some private, others public, of which voting is only one. Under the circumstances, and in view of the Legislature's failure to extend these absentee provisions to others similarly disadvantaged, it hardly seems plausible that petitioners' right to vote has been arbitrarily denied them. It is enough that these handicaps, then, are functions of attendant impracticalities or contingencies, not legal design.' 31 N.Y.2d 317, 320—321, 338 N.Y.S.2d 890, 893—894, 291 N.E.2d 134, 136—137.
8
Judge Fuld dissented, being of the view that §§ 117—a and 153 a of the Election Law of New York should be read in the manner announced by the Appellate Division. Judge Burke, joining Judge Fuld, agreed, stating additionally that any construction of the election law precluding appellants from exercising their right to register and vote violated the equal protection guarantees of the Fourteenth Amendment.
9
It is important to note at the outset that the New York election laws here in question do not raise any question of disenfranchisement of a person because of conviction for criminal conduct. As we noted earlier, these appellants are not disabled from voting except by reason of not being able physically—in the very literal sense—to go to the polls on election day or to make the appropriate registration in advance by mail. The New York statutes are silent concerning registration or voting facilities in jails and penal institutions, except as they provide for absentee balloting. If a New York resident eligible to vote is confined in a county jail in a county in which he does not reside, paradoxically, he may secure an absentee ballot and vote and he may also register by mail, presumably because he is 'unavoidably absent from the county of his residence.' N.Y. Election Law § 117(1)(b) (1964).3
10
Thus, under the New York statutes, two citizens awaiting trial—or even awaiting a decision whether they are to be charged sitting side by side in the same cell, may receive different treatment as to voting rights. As we have noted, if the citizen is confined in the county of his legal residence he cannot vote by absentee ballot as can his cellmate whose residence is in the adjoining county. Although neither is under any legal bar to voting, one of them can vote by absentee ballot and the other cannot.
11
This Court had occasion to examine claims similar to those presented here in McDonald v. Board of Election Comm'rs, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969). There a state statute provided for absentee voting by persons 'medically incapacitated' and for pretrial detainees who were incarcerated outside their county of residence. Unlike the present case, however, in McDonald 'there (was) nothing in the record to show that appellants (were) in fact absolutely prohibited from voting by the State . . .,' id., at 808 n. 7, 89 S.Ct., at 1408, since there was the possibility that the State might furnish some other alternative means of voting. Id., at 808, 89 S.Ct., at 1408. Essentially the Court's disposition of the claims in McDonald rested on failure of proof.
12
More recently in Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973), the Court again considered the problem of inmate voting and concluded that, unlike the voting restrictions in the McDonald case, the statute there in question was an absolute bar to voting because of a specific provision that 'persons confined in a penal institution' were not permitted to vote by absentee ballot. It is clear, therefore, that the appellants here, like the petitioners in Goosby, bring themselves within the precise fact structure that the McDonald holding foreshadowed.
13
New York's election statutes, as construed by its highest court, discriminate between categories of qualified voters in a way that, as applied to pretrial detainees and misdemeanants, is wholly arbitrary. As we have noted, New York extends absentee registration privileges to eligible citizens who are unable to appear personally because of 'illness or physical disability,' and to citizens required to be outside their counties of residence on normal registration days because of their 'duties, occupation or business.' In addition, New York extends absentee voting privileges to those voters unable to get to the polls because of illness or physical disability, to those who are inmates of veterans' bureau hospitals, and to those who are absent from their home county on election day either because of 'duties, occupation or business' or vacation. Indeed, those held in jail awaiting trial in a county other than their residence are also permitted to register by mail and vote by absentee ballot. Yet, persons confined for the same reason in the county of their residence are completely denied the ballot. The New York statutes, as construed, operate as a restriction which is 'so severe as itself to constitute an unconstitutionally onerous burden on the . . . exercise of the franchise.' Rosario v. Rockefeller, 410 U.S. 752, 760, 93 S.Ct. 1245, 1251, 36 L.Ed.2d 1 (1973). Appellants and others similarily situated are, as we have noted, under no legal disability impeding their legal right to register or to vote; they are simply not allowed to use the absentee ballot and are denied any alternative means of casting their vote although they are legally qualified to vote.
14
The construction given the New York statutes by its trial court and the Appellate Division may well have been a reasonable interpretation of New York law, but the highest court of the State has concluded otherwise and it is not our function to construe a state statute contrary to the construction given it by the highest court of a State. We have no choice, therefore, but to hold that, as construed, the New York statutes deny appellants the equal protection of the laws guaranteed by the Fourteenth Amendment.
15
Reversed and remanded for further proceedings not inconsistent with this opinion.
16
It is so ordered.
17
Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN join, concurring.
18
While I join the opinion of the Court, my analysis of the issues presented here requires further elaboration.
19
I fully agree with the Court's holding that the Court of Appeals' reliance on our decision in McDonald v. Board of Election Comm'rs, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969), was misplaced. Although we rejected in McDonald a claim similar to that presented by appellants here, the crux of our decision was our conclusion that the rational-basis test was the proper standard to apply in evaluating the prisoners' equal protection claims. We relied heavily in McDonald on the fact that there was no evidence that the State made it impossible for the appellants to exercise their right to vote. As the Court noted,
20
'(T)he record is barren of any indication that the State might not, for instance, possibly furnish the jails with special polling booths or facilities on election day, or provide guarded transportation to the polls themselves for certain inmates, or entertain motions for temporary reductions in bail to allow some inmates to get to the polls on their own.' Id., at 808 n. 6, 89 S.Ct., at 1408.
21
The Court therefore characterized the appellants' claim by saying '(i)t is thus not the right to vote that is at stake here but a claimed right to receive absentee ballots.' Id., at 807, 89 S.Ct., at 1408. Because of the relatively trivial inconvenience encountered by a voter unable to vote by absentee ballot when other means of exercising the right to vote are available, the Court properly rejected appellants' contention that strict scrutiny of the statutory classifications was required.
22
In this case, however, the New York Court of Appeals has made clear that the fundamental premises on which McDonald was based are absent. See Goosby v. Osser, 409 U.S. 512, 518—522, 93 S.Ct. 854, 858—861, 35 L.Ed.2d 36 (1973). The New York court 'reject(ed) out of hand' any alternative which would permit appellants to vote without using absentee ballots.1 In this posture, it can no longer be contended that this case involves 'merely a claimed right to absentee ballots' and 'not the right to vote,' or that the challenged statutes 'have no direct impact on (appellants') right to vote,' as the Court of Appeals, relying on McDonald, argued, 31 N.Y.2d 317, 320, 338 N.Y.S.2d 890, 893, 291 N.E.2d 134, 136; such statements, in the context of this case, fly in the face of reality. Nor can it be contended that denial of absentee ballots to appellants does not deprive them of their right to vote any more than it deprives others who may 'similarly' find it 'impracticable' to get to the polls on election day, see id., at 320—321, 338 N.Y.S.2d, at 893—894, 291 N.E.2d, at 136—137; here, it is the State which is both physically preventing appellants from going to the polls and denying them alternative means of casting their ballots. Denial of absentee registration and absentee ballots is effectively an absolute denial of the franchise to these appellants.
23
It is well settled that 'if a challenged statute grants the right to vote to some citizens and denies the franchise to others, 'the Court must determine whether the exclusions are necessary to promote a compelling state interest." Dunn v. Blumstein, 405 U.S. 330, 337, 92 S.Ct. 995, 1000, 31 L.Ed.2d 274 (1972), quoting Kramer v. Union Free School District No. 15, 395 U.S. 621, 627, 89 S.Ct. 1886, 1889, 23 L.Ed.2d 583 (1969); see also Cipriano v. City of Houma, 395 U.S. 701, 704, 89 S.Ct. 1897, 1899, 23 L.Ed.2d 647 (1969); City of Phoenix v. Kolodziejski, 399 U.S. 204, 205, 209, 90 S.Ct. 1990, 1992, 1994, 26 L.Ed.2d 523 (1970). It is this standard of review which must be employed here.
24
New York law provides for absentee registration and voting by numerous categories of voters who may be unable to appear in person at the polls. New York permits absentee registration and voting by, inter alia, those who are unable to appear personally because of illness or physical disability, or those whose duties, occupation, or business takes them out of their county of residence. Absentee ballots are even available to those who are on vacation outside the county on election day. Significantly, it is also conceded that pretrial detainees and convicted misdemeanants residing in Monroe County but confined outside the county may register and vote by mail.2
25
In light of these extensive provisions for participation in the electoral process through the mail by others, New York's exclusion of pretrial detainees and convicted misdemeanants confined in the county of their residence cannot withstand analysis. The only basis even suggested for this discrimination is the possibility recognized by the Court in McDonald 'that without the protection of the voting booth, local officials might be too tempted to try to influence the local vote of in-county inmates.' 394 U.S., at 810, 89 S.Ct., at 1409. Though protection of the integrity of the ballot box is surely a legitimate state concern, I frankly find something a bit disturbing about this approach to the problem. It is hard to conceive how the State can possibly justify denying any person his right to vote on the ground that his vote might afford a state official the opportunity to abuse his position of authority. If New York truly has so little confidence in the integrity of its state officers, the time has come for the State to adopt stringent measures to prevent official misconduct, not to further penalize its citizens by depriving them of their right to vote. There are surely less burdensome means to protect inmate voters against attempts to influence their votes the alternatives suggested by the Court in McDonald, for example.
26
I thus have little difficulty in concluding that the asserted state interest is insufficient to justify the statutes' discrimination against pretrial detainees and convicted misdemeanants under the compelling-state-interest test. I think it is clear that the State's denial of all opportunity for appellants to register and vote deprives them of the right to vote on an equal basis with other citizens guaranteed under the Equal Protection Clause.
27
Mr. Justice BLACKMUN, with whom Mr. Justice REHNQUIST joins, dissenting.
28
Once again, we are confronted with a claim, fashionable of late, that a state statute which, because of its positive provisions, Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973); Kusper v. Pontikes, 414 U.S. 51, 94 S.Ct. 303, 38 L.Ed.2d 260; see Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973), or because of its failure to provide particular persons particular relief, as here, is an unconstitutional deprivation of the right to vote. And once again the Court strikes down the state statutes.
29
Because I think the Court is unnecessarily and unwisely elevating and projecting constitutional pronouncement into an area and into distant and obscure corners of that area—that, for me, should be a domain reserved for the State's own housekeeping, I dissent.
30
I join, and with some emphasis, the Court's observations and those of Mr. Justice MARSHALL in his concurring opinion, to the effect that the muchamended New York statutes here under challenge cut unevenly. Surely, no one would claim that they are now a model of the draftsman's art. The absentee-voting privilege appears to be available for the voter who is an inmate of a veterans' bureau hospital, N.Y.Election Law § 117 (1964), but not, seemingly, due to the statute's silence (unless he can otherwise qualify 'because of illness or physical disability,' id., § 117—a), for the voter who is just as nonambulatory, and just as confined, in some municipal or denominational institution. It is available, under § 117, for the voter, 'unavoidably absent' on business, and even for the voter 'absent' on vacation, but not, seemingly, for the voter who is absent attending a wedding or visiting a seriously ill relative in the next State. And it is concededly available for the occupant of the county jail who resides in another New York county but not for the occupant who resides in the local county.
31
These are irritating and less-than-thoughtful sub silentio distinctions, and the temptation to eliminate them by striking down the statutes is strong and appealing. I am not convinced, however, that we should be so ready to interfere. New York's present statutory structure has developed by successive remedial amendments, each designed to correct a then-apparent gap. The State, after all, as a matter of constitutional requirement, need not have provided for any absentee registration or absentee voting. And
32
'a legislature traditionally has been allowed to take reform 'one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind,' Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 489, 75 S.Ct. 461, 99 L.Ed. 563 (1955); and a legislature need not run the risk of losing an entire remedial scheme simply because it failed, through inadvertence or otherwise, to cover every evil that might conceivably have been attacked. . . .' McDonald v. Board of Election Comm'rs, 394 U.S. 802, 809, 89 S.Ct. 1404, 1409, 22 L.Ed.2d 739 (1969).
33
See also Jefferson v. Hackney, 406 U.S. 535, 546, 92 S.Ct. 1724, 1731, 32 L.Ed.2d 285 (1972).
34
Furthermore, this fallout from the New York statutes is minor and collateral and not of great, let alone constitutional, import. There is bound to be a dividing line somewhere, intended or unintended (as I suspect this was). If that dividing line operates to deprive a person of what he feels is his right to vote, his reaction will be critical. Whether he has a constitutional claim, however, is something else again. Line drawing is necessary, as the Court conceded in Dunn v. Blumstein, 405 U.S. 330, 348, 92 S.Ct. 995, 1005, 31 L.Ed.2d 274 (1972), and by the very process of line drawing, someone will be left out or treated differently.
35
I feel, therefore, that any unequal effect of the New York statutes is largely incidental and wholly a function of the State's failure to extend its remedial provisions a little further. These appellants are affected, to be sure, but they are affected because it was their misfortune to be detainees or convicted misdemeanants serving their sentences in the county jail on the critical day. The misdemeanants were in jail through their own doing, just as the petitioners in Rosario v. Rockefeller, supra, found themselves unable to vote because of their failure to meet an enrollment deadline. The plight of detainees elicits concern, of course, for a detainee may not be guilty of the offense with which he is charged. Yet the statutes' effect upon him, although unfortunate, produces a situation on more critical than the situation of the voter, just as unfortunate, who on election day is away attending the funeral of a loved one in a distant State. These are inequalities, but they are the incidental inequalities of life, and I do not regard them as unconstitutional.
36
I would refrain from continued tampering and interference with the details of state election laws. If details are deserving of cure, the State's legislature, not this Court, ought to be the curative agent.
1
31 N.Y.2d 317, 338 N.Y.S.2d 890, 291 N.E.2d 134 (1972).
2
At the time this permit was sought, N.Y.Election Law § 153 a, McKinney's Consol.Laws, c. 17 (Supp.1971—1972) provided, in pertinent part:
'1. A voter residing in an election district in which the registration is required to be personal or in an election district in a county or city in which permanent personal registration is in effect, and who is unable to appear personally for registration because he is confined at home or in a hospital or institution, other than a mental institution because of illness or physical disability or because his duties, occupation or business require him to be outside the county of residence, or if a resident of the city of New York, outside said city, on such days, may be registered in the manner provided by this section. A voter residing in an election district in which personal registration is not required may file an application for absentee registration in accordance with the provisions of this section and also may be registered in the manner otherwise provided by law.'
Effective January 1, 1973, § 153—a was repealed, and replaced by N.Y.Election Law § 153 (Supp.1972—1973), which contains substantially identical provisions.
N.Y.Election Law § 117—a (1964) provides, in pertinent part:
'1. A qualified voter, who, on the occurrence of any general election, may be unable to appear personally at the polling place of the election district in which he is a qualified voter because of illness or physical disability, may also vote as an absentee voter under this chapter . . ..'
N.Y.Election Law § 117 (1964) provides, in pertinent part:
'1. A qualified voter, who, on the occurrence of any general election, may be—
'a. unavoidably absent from his residence because he is an inmate of a veterans' bureau hospital, or
'b. unavoidably absent from the county of his residence, or, if a resident of the city of New York from said city, because his duties, occupation or business require him to be elsewhere on the day of election, or
'c. absent from the county of his residence, or, if a resident of the city of New York from said city, because he is on vacation elsewhere on the day of election,
'may vote as an absentee voter under this chapter.'
3
At oral argument, counsel for the appellees conceded that Monroe County election officials have interpreted the portions of New York Election Laws §§ 117 and 153—a that extend absentee voting and registration privileges to those whose 'duties, occupation or business' requires absence from their home counties as including convicted misdemeanants and pretrial detainees incarcerated outside Monroe County.
1
The Court of Appeals stated:
'We reject out of hand any scheme which would commit respondents to a policy of transporting such detainees to public polling places; would assign them the responsibility of providing special voting facilities under such conditions (or) would threaten like hazards embraced by such schema.' 31 N.Y.2d 317, 319, 338 N.Y.S.2d 890, 892, 291 N.E.2d 134, 135 (1972). Presumably this includes a flat rejection of the possibility of temporary reductions in bail to allow detainees to vote suggested by the Court in McDonald.
2
As the Court emphasizes, New York law does not disenfranchise either convicted misdemeanants or persons being held for trial on criminal charges. Indeed, it appears that the New York Constitution does not permit such disenfranchisement. Article II, § 1, of the Constitution provides that '(e) very citizen shall be entitled to vote' and Art. II, § 3, excludes only those 'convicted of bribery or of any infamous crime.' We therefore need not confront in this case the very substantial constitutional problems presented if a State did seek to exclude these classes from the franchise.
| 12
|
414 U.S. 632
94 S.Ct. 791
39 L.Ed.2d 52
CLEVELAND BOARD OF EDUCATION et al., Petitioners,v.Jo Carol LaFLEUR et al. Susan COHEN, Petitioner, v. CHESTERFIELD COUNTY SCHOOL BOARD et al.
Nos. 72—777 and 72—1129.
Argued Oct. 15, 1973.
Decided Jan. 21, 1974.
Syllabus
Pregnant public school teachers brought these actions under 42 U.S.C. § 1983 challenging the constitutionality of mandatory maternity leave rules of the Cleveland, Ohio (No. 72—777), and Chesterfield County, Virginia (No 72—1129), School Boards. The Cleveland rule requires a pregnant school teacher to take unpaid maternity leave five months before the expected childbirth, with leave application to be made at least two weeks before her departure. Eligibility to return to work is not accorded until the next regular semester after her child is three months old. The Chesterfield County rule requires the teacher to leave work at least four months, and to give notice at least six months, before the anticipated childbirth. Re-employment is guaranteed no later than the first day of the school year after the date she is declared re-eligible. Both schemes require a physician's certificate of physical fitness prior to the teacher's return. Each Court of Appeals reversed the court below, one holding the Chesterfield County maternity leave rule constitutional, the other holding the Cleveland rule unconstitutional. Held:
1. The mandatory termination provisions of both maternity rules violate the Due Process Clause of the Fourteenth Amendment. Pp. 639—648.
(a) The arbitrary cutoff dates (which obviously come at different times of the school year for different teachers) have no valid relationship to the State's interest in preserving continuity of instruction, as long as the teacher is required to give substantial advance notice that she is pregnant. Pp. 639—648.
(b) The challenged provisions are violative of due process since they create a conclusive presumption that every teacher who is four or five months pregnant is physically incapable of continuing her duties, whereas any such teacher's ability to continue past a fixed pregnancy period is an individual matter; and the school boards' administrative convenience alone cannot suffice to validate the arbitrary rules. Pp. 643—648.
2. The Cleveland three-month return provision also violates due process, being both arbitrary and irrational. It creates an irrebuttable presumption that the mother (whose good health must be medically certified) is not fit to resume work, and it is not germane to maintaining continuity of instruction, as the precise point a child will reach the relevant age will occur at a different time throughout the school year for each teacher. Pp. 648—650.
3. The Chesterfield County return rule, which is free of any unnecessary presumption, comports with due process requirements. P. 650.
No. 72—777, 6 Cir., 465 F.2d 1184, affirmed; No. 72—1129, 4 Cir., 474 F.2d 395, reversed and remanded.
Charles F. Clarke, Cleveland, Ohio, for petitioners in 72 777.
Jane M. Picker, Cleveland, Ohio, for respondents.
Philip J. Hirschkop, Alexandria, Va., for petitioner in 72 1129.
Samuel W. Hixon, III, Richmond, Va., for respondents.
Mr. Justice STEWART delivered the opinion of the Court.
1
The respondents in No. 72—777 and the petitioner in No. 72 1129 are female public school teachers. During the 1970—1971 school year, each informed her local school board that she was pregnant; each was compelled by a mandatory maternity leave rule to quit her job without pay several months before the expected birth of her child. These cases call upon us to decide the constitutionality of the school boards' rules.
2
* Jo Carol LaFleur and Ann Elizabeth Nelson, the respondents in No. 72—777, are junior high school teachers employed by the Board of Education of Cleveland, Ohio. Pursuant to a rule first adopted in 1952, the school board requires every pregnant school teacher to take maternity leave without pay, beginning five months before the expected birth of her child. Application for such leave must be made no later than two weeks prior to the date of departure. A teacher on maternity leave is not allowed to return to work until the beginning of the next regular school semester which follows the date when her child attains the age of three months. A doctor's certificate attesting to the health of the teacher is a prerequisite to return; an additional physical examination may be required. The teacher or maternity leave is not promised re-employment after the birth of the child; she is merely given priority in reassignment to a position for which she is qualified. Failure to comply with the mandatory maternity leave provisions is ground for dismissal.1
3
Neither Mrs. LaFleur nor Mrs. Nelson wished to take an unpaid maternity leave; each wanted to continue teaching until the end of the school year.2 Because of the mandatory maternity leave rule, however, each was required to leave her job in March 1971.3 The two women then filed separate suits in the United States District Court for the Northern District of Ohio under 42 U.S.C. § 1983, challenging the constitutionality of the maternity leave rule. The District Court tried the cases together, and rejected the plaintiffs' arguments. 326 F.Supp. 1208. A divided panel of the United States Court of Appeals for the Sixth Circuit reversed, finding the Cleveland rule in violation of the Equal Protection Clause of the Fourteenth Amendment.4 465 F.2d 1184.
4
The petitioner in No. 72—1129, Susan Cohen, was employed by the School Board of Chesterfield County, Virginia. That school board's maternity leave regulation requires that a pregnant teacher leave work at least four months prior to the expected birth of her child. Notice in writing must be given to the school board at least six months prior to the expected birth date. A teacher on maternity leave is declared re-eligible for employment when she submits written notice from a physician that she is physically fit for re-employment, and when she can give assurance that care of the child will cause only minimal interference with her job responsibilities. The teacher is guaranteed re-employment no later than the first day of the school year following the date upon which she is declared re-eligible.5
5
Mrs. Cohen informed the Chesterfield County School Board in November 1970, that she was pregnant and expected the birth of her child about April 28, 1971.6 She initially requested that she be permitted to continue teaching until April 1, 1971.7 The school board rejected the request, as it did Mrs. Cohen's subsequent suggestion that she be allowed to teach until January 21, 1971, the end of the first school semester. Instead, she was required to leave her teaching job on December 18, 1970. She subsequently filed this suit under 42 U.S.C. § 1983 in the United States District Court for the Eastern District of Virginia. The District Court held that the school board regulation violates the Equal Protection Clause, and granted appropriate relief. 326 F.Supp. 1159. A divided panel of the Fourth Circuit affirmed, but, on rehearing en banc, the Court of Appeals upheld the constitutionality of the challenged regulation in a 4—3 decision. 474 F.2d 395.
6
We granted certiorari in both cases, 411 U.S. 947, 93 S.Ct. 1921, 36 L.Ed.2d 408, in order to resolve the conflict between the Courts of Appeals regarding the constitutionality of such mandatory maternity leave rules for public school teachers.8
II
7
This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147; Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010; Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510; Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070; Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042. See also Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645; Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655. As we noted in Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349, there is a right 'to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.'
8
By acting to penalize the pregnant teacher for deciding to bear a child, overly restrictive maternity leave regulations can constitute a heavy burden on the exercise of these protected freedoms. Because public school maternity leave rules directly affect 'one of the basic civil rights of man,' Skinner v. Oklahoma, supra, 316 U.S., at 541, 62 S.Ct., at 1113, the Due Process Clause of the Fourteenth Amendment requires that such rules must not needlessly, arbitrarily, or capriciously impinge upon this vital area of a teacher's constitutional liberty. The question before us in these cases is whether the interests advanced in support of the rules of the Cleveland and Chesterfield County School Boards can justify the particular procedures they have adopted.
9
The school boards in these cases have offered two essentially overlapping explanations for their mandatory maternity leave rules. First, they contend that the firm cutoff dates are necessary to maintain continuity of classroom instruction, since advance knowledge of when a pregnant teacher must leave facilitates the finding and hiring of a qualified substitute. Secondly, the school boards seek to justify their maternity rules by arguing that at least some teachers become physically incapable of adequately performing certain of their duties during the latter part of pregnancy. By keeping the pregnant teacher out of the classroom during these final months, the maternity leave rules are said to protect the health of the teacher and her unborn child, while at the same time assuring that students have a physically capable instructor in the classroom at all times.9
10
It cannot be denied that continuity of instruction is a significant and legitimate educational goal. Regulations requiring pregnant teachers to provide early notice of their condition to school authorities undoubtedly facilitate administrative planning toward the important objective of continuity. But, as the Court of Appeals for the Second Circuit noted in Green v. Waterford Board of Education, 473 F.2d 629, 635:
11
'Where a pregnant teacher provides the Board with a date certain for commencement of leave . . . that value (continuity) is preserved; an arbitrary leave date set at the end of the fifth month is no more calculated to facilitate a planned and orderly transition between the teacher and a substitute than is a date fixed closer to confinement. Indeed, the latter . . . would afford the Board more, not less, time to procure a satisfactory long-term substitute.' (Footnote omitted.)
12
Thus, while the advance-notice provisions in the Cleveland and Chesterfield County rules are wholly rational and may well be necessary to serve the objective of continuity of instruction, the absolute requirements of termination at the end of the fourth or fifth month of pregnancy are not. Were continuity the only goal, cutoff dates much later during pregnancy would serve as well as or better than the challenged rules, providing that ample advance notice requirements were retained. Indeed, continuity would seem just as well attained if the teacher herself were allowed to choose the date upon which to commence her leave, at least so long as the decision were required to be made and notice given of it well in advance of the date selected.10
13
In fact, since the fifth or sixth month of pregnancy will obviously begin at different times in the school year for different teachers, the present Cleveland and Chesterfield County rules may serve to hinder attainment of the very continuity objectives that they are purportedly designed to promote. For example, the beginning of the fifth month of pregnancy for both Mrs. LaFleur and Mrs. Nelson occurred during March of 1971. Both were thus required to leave work with only a few months left in the school year, even though both were fully willing to serve through the end of the term.11 Similarly, if continuity were the only goal, it seems ironic that the Chesterfield County rule forced Mrs. Cohen to leave work in mid-December 1970 rather than at the end of the semester in January, as she requested.
14
We thus conclude that the arbitrary cutoff dates embodied in the mandatory leave rules before us have no rational relationship to the valid state interest of preserving continuity of instruction. As long as the teachers are required to give substantial advance notice of their condition, the choice of firm dates later in pregnancy would serve the boards' objectives just as well, while imposing a far lesser burden on the women's exercise of constitutionally protected freedom.
15
The question remains as to whether the cutoff dates at the beginning of the fifth and sixth months can be justified on the other ground advanced by the school boards—the necessity of keeping physically unfit teachers out of the classroom. There can be no doubt that such an objective is perfectly legitimate, both on educational and safety grounds. And, despite the plethora of conflicting medical testimony in these cases, we can assume, arguendo, that at least some teachers become physically disabled from effectively performing their duties during the latter stages of pregnancy.
16
The mandatory termination provisions of the Cleveland and Chesterfield County rules surely operate to insulate the classroom from the presence of potentially incapacitated pregnant teachers. But the question is whether the rules sweep too broadly. See Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231. That question must be answered in the affirmative, for the provisions amount to a conclusive presumption that every pregnant teacher who reaches the fifth or sixth month of pregnancy is physically incapable of continuing. There is no individualized determination by the teacher's doctor—or the school board's—as to any particular teacher's ability to continue at her job. The rules contain an irrebuttable presumption of physical incompetency, and that presumption applies even when the medical evidence as to an individual woman's physical status might be wholly to the contrary.
17
As the Court noted last Term in Vlandis v. Kline, 412 U.S. 441, 446, 93 S.Ct. 2230, 2233, 37 L.Ed.2d 63, 'permanent irrebuttable presumptions have long been disfavored under the Due Process Clause of the Fifth and Fourteenth Amendments.' In Vlandis, the Court declared unconstitutional, under the Due Process Clause of the Fourteenth Amendment, a Connecticut statute mandating an irrebuttable presumption of nonresidency for the purposes of qualifying for reduced tuition rates at a state university. We said in that case, id., at 452, 93 S.Ct., at 2236:
18
'(I)t is forbidden by the Due Process Clause to deny an individual the resident rates on the basis of a permanent and irrebuttable presumption of nonresidence, when that presumption is not necessarily or universally true in fact, and when the State has reasonable alternative means of making the crucial determination.'
19
Similarly, in Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551, the Court held that an Illinois statute containing an irrebuttable presumption that unmarried fathers are incompetent to raise their children violated the Due Process Clause. Because of the statutory presumption, the State took custody of all illegitimate children upon the death of the mother, without allowing the father to attempt to prove his parental fitness. As the Court put the matter:
20
'It may be, as the State insists, that most unmarried fathers are unsuitable and neglectful parents. It may also be that Stanley is such a parent and that his children should be placed in other hands. But all unmarried fathers are not in this category; some are wholly suited to have custody of their children.' Id., at 654, 92 S.Ct., at 1214 (footnotes omitted).
21
Hence, we held that the State could not conclusively presume that any particular unmarried father was unfit to raise his child; the Due Process Clause required a more individualized determination. See also United States Dept. of Agriculture v. Murry, 413 U.S. 508, 93 S.Ct. 2832; id., at 514—517, 93 S.Ct., at 2836—2837 (concurring opinion); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90; Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675.
22
These principles control our decision in the cases before us. While the medical experts in these cases differed on many points, they unanimously agreed on one—the ability of any particular pregnant woman to continue at work past any fixed time in her pregnancy is very much an individual matter.12 Even assuming, arguendo, that there are some women who would be physically unable to work past the particular cutoff dates embodied in the challenged rules, it is evident that there are large numbers of teachers who are fully capable of continuing work for longer than the Cleveland and Chesterfield County regulations will allow. Thus, the conclusive presumption embodied in these rules, like that in Vlandis, is neither 'necessarily (nor) universally true,' and is violative of the Due Process Clause.
23
The school boards have argued that the mandatory termination dates serve the interest of administrative convenience, since there are many instances of teacher pregnancy, and the rules obviate the necessity for case-by-case determinations. Certainly, the boards have an interest in devising prompt and efficient procedures to achieve their legitimate objectives in this area. But, as the Court stated in Stanley v. Illinois, supra, 405 U.S., at 656, 92 S.Ct., at 1215:
24
'(T)he Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones.' (Footnote omitted.)
25
While it might be easier for the school boards to conclusively presume that all pregnant women are unfit to teach past the fourth or fifth month or even the first month, of pregnancy, administrative convenience alone is insufficient to make valid what otherwise is a violation of due process of law.13 The Fourteenth Amendment requires the school boards to employ alternative administrative means, which do not so broadly infringe upon basic constitutional liberty, in support of their legitimate goals.14
26
We conclude, therefore, that neither the necessity for continuity of instruction nor the state interest in keeping physically unfit teachers out of the classroom can justify the sweeping mandatory leave regulations that the Cleveland and Chesterfield County School Boards have adopted. While the regulations no doubt represent a good-faith attempt to achieve a laudable goal, they cannot pass muster under the Due Process Clause of the Fourteenth Amendment, because they employ irrebuttable presumptions that unduly penalize a female teacher for deciding to bear a child.
III
27
In addition to the mandatory termination provisions, both the Cleveland and Chesterfield County rules contain limitations upon a teacher's eligibility to return to work after giving birth. Again, the school boards offer two justifications for the return rules continuity of instruction and the desire to be certain that the teacher is physically competent when she returns to work. As is the case with the leave provisions, the question is not whether the school board's goals are legitimate, but rather whether the particular means chosen to achieve those objectives unduly infringe upon the teacher's constitutional liberty.
28
Under the Cleveland rule, the teacher is not eligible to return to work until the beginning of the next regular school semester following the time when her child attains the age of three months. A doctor's certificate attesting to the teacher's health is required before return; an additional physical examination may be required at the option of the school board.
29
The respondents in No. 72—777 do not seriously challenge either the medical requirements of the Cleveland rule or the policy of limiting eligibility to return to the next semester following birth. The provisions concerning a medical certificate or supplemental physical examination are narrowly drawn methods of protecting the school board's interest in teacher fitness; these requirements allow an individualized decision as to the teacher's condition, and thus avoid the pitfalls of the presumptions inherent in the leave rules. Similarly, the provision limiting eligibility to return to the semester following delivery is a precisely drawn means of serving the school board's interest in avoiding unnecessary changes in classroom personnel during any one school term.
30
The Cleveland rule, however, does not simply contain these reasonable medical and next-semester eligibility provisions. In addition, the school board requires the mother to wait until her child reaches the age of three months before the return rules begin to operate. The school board has offered no reasonable justification for this supplemental limitation, and we can perceive none. To the extent that the three-month provision reflects the school board's thinking that no mother is fit to return until that point in time, it suffers from the same constitutional deficiencies that plague the irrebuttable presumption in the termination rules.15 The presumption, moreover, is patently unnecessary, since the requirement of a physician's certificate or a medical examination fully protects the school's interests in this regard. And finally, the three-month provision simply has nothing to do with continuity of instruction, since the precise point at which the child will reach the relevant age will obviously occur at a different point throughout the school year for each teacher.
31
Thus, we conclude that the Cleveland return rule, insofar as it embodies the three-month age provision, is wholly arbitrary and irrational, and hence violates the Due Process Clause of the Fourteenth Amendment. The age limitation serves no legitimate state interest, and unnecessarily penalizes the female teacher for asserting her right to bear children.
32
We perceive no such constitutional infirmities in the Chesterfield County rule. In that school system, the teacher becomes eligible for re-employment upon submission of a medical certificate from her physician; return to work is guaranteed no later than the beginning of the next school year following the eligibility determination.16 The medical certificate is both a reasonable and narrow method of protecting the school board's interest in teacher fitness, while the possible deferring of return until the next school year serves the goal of preserving continuity of instruction. In short, the Chesterfield County rule manages to serve the legitimate state interests here without employing unnecessary presumptions that broadly burden the exercise of protected constitutional liberty.
IV
33
For the reasons stated, we hold that the mandatory termination provisions of the Cleveland and Chesterfield County maternity regulations violate the Due Process Clause of the Fourteenth Amendment, because of their use of unwarranted conclusive presumptions that seriously burden the exercise of protected constitutional liberty. For similar reasons, we hold the three-month provision of the Cleveland return rule unconstitutional.
34
Accordingly, the judgment in No. 72—777 is affirmed; the judgment in No. 72—1129 is reversed, and the case is remanded to the Court of Appeals for the Fourth Circuit for further proceedings consistent with this opinion.
35
It is so ordered.
36
Judgment in No. 72—777 affirmed.
37
Judgment in No. 72—1129 reversed and case remanded.
38
Mr. Justice DOUGLAS concurs in the result.
39
Mr. Justice POWELL (concurring in the result).
40
I concur in the Court's result, but I am unable to join its opinion. In my view these cases should not be decided on the ground that the mandatory maternity leave regulations impair any right to bear children or create an 'irrebuttable presumption.' It seems to me that equal protection analysis is the appropriate frame of reference.
41
These regulations undoubtedly add to the burdens of childbearing. But certainly not every government policy that burdens childbearing violates the Constitution. Limitations on the welfare benefits a family may receive that do not take into account the size of the family illustrate this point. See Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). Undoubtedly Congress could, as another example, constitutionally seek to discourage excessive population growth by limiting tax deductions for dependents. That would represent an intentional governmental effort to 'penalize' childbearing. See ante, at 640. The regulations here do not have that purpose. Their deterrent impact is wholly incidental. If some intentional efforts to penalize childbearing are constitutional, and if Dandridge, supra, means what I think it does, then certainly these regulations are not invalid as an infringement of any right to procreate.
42
I am also troubled by the Court's return to the 'irrebuttable presumption' line of analysis of Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (Powell, J., not participating), and Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973). Although I joined the opinion of the Court in Vlandis and continue fully to support the result reached there, the present cases have caused me to re-examine the 'irrebuttable presumption' rationale. This has led me to the conclusion that the Court should approach that doctrine with extreme care. There is much to what Mr. Justice REHNQUIST says in his dissenting opinion, post, at 660, about the implications of the doctrine for the traditional legislative power to operate by classification. As a matter of logic, it is difficult to see the terminus of the road upon which the Court has embarked under the banner of 'irrebuttable presumptions.' If the Court nevertheless uses 'irrebuttable presumption' reasoning selectively, the concept at root often will be something else masquerading as a due process doctrine. That something else, of course, is the Equal Protection Clause.
43
These cases present precisely the kind of problem susceptible of treatment by classification. Most school teachers are women, a certain percentage of them are pregnant at any given time, and pregnancy is a normal biological function possessing, in the great majority of cases, a fairly well defined term. The constitutional difficulty is not that the boards attempted to deal with this problem by classification. Rather, it is that the boards chose irrational classifications.
44
A range of possible school board goals emerge from the cases. Several may be put to one side. The records before us abound with proof that a principal purpose behind the adoption of the regulations was to keep visibly pregnant teachers out of the sight of schoolchildren.1 The boards do not advance this today as a legitimate objective, yet its initial primacy casts a shadow over these cases. Moreover, most of the after-the-fact rationalizations proposed by these boards are unsupported in the records. The boards emphasize teacher absenteeism, classroom discipline, the safety of schoolchildren, and the safety of the expectant mother and her unborn child. No doubt these are legitimate concerns. But the boards have failed to demonstrate that these interests are in fact threatened by the continued employment of pregnant teachers.
45
To be sure, the boards have a legitimate and important interest in fostering continuity of teaching. And, even a normal pregnancy may at some point jeopardize that interest. But the classifications chosen by these boards, so far as we have been shown, are either counterproductive or irrationally overinclusive even with regard to this significant, nonillusory goal. Accordingly, in my opinion these regulations are invalid under rational-basis standards of equal protection review.2
46
In speaking of continuity of teaching, the boards are referring in part to their valid interest in reducing the number of times a new teacher is assigned to a given class. It is particularly appropriate to avoid teacher turnover in the middle of a semester, since continuity in teaching approach, as well as teacher-pupil relationships, is otherwise impaired. That aspect of the Cleveland regulation limiting a teacher's eligibility to return to the classroom to the semester following delivery, which the Court approves, ante, at 649, rationally serves this legitimate state interest. But the four- and five-months prebirth leave periods of the two regulations and the three-month post-birth provision of the Cleveland regulation do not. As the Court points out, ante, at 642—643, such cutoff points are more likely to prevent continuity of teaching than to preserve it. Because the cutoff dates occur throughout the school year, they inevitably result in the removal of many capable teachers from the classroom in the middle or near the end of a semester, thus provoking the disruption the boards hope to avoid.
47
The boards' reference to continuity of teaching also encompasses their need to assure constant classroom coverage by teachers who are up to the task. This interest is obviously legitimate. No one disputes that a school board must concern itself with the physical and emotional capabilities of its teachers. But the objectionable portions of these regulations appear to be bottomed on factually unsupported assumptions about the ability of pregnant teachers to perform their jobs. The overwhelming weight of the medical testimony adduced in these cases is that most teachers undergoing normal pregnancies are quite capable of carrying out their responsibilities until some ill-defined point a short period prior to term. Certainly the boards have made little effort to contradict this conclusion. Thus, it appears that by forcing all pregnant teachers undergoing a normal pregnancy from the classroom so far in advance of term, the regulations compel large numbers of able-bodied teachers to quit work.3 Once more, such policies inhibit, rather than further, the goal of continuity of teaching. For no apparent reason, they remove teachers from their students and require the use of substitutes.
48
The boards' reliance on the goal of continuity of teaching also takes into account their obvious planning needs. Boards must know when pregnant teachers will temporarily cease their teaching responsibilities, so that substitutes may be scheduled to fill the vacancies. And, planning requires both notice of pregnancy and a fixed termination date. It appears, however, that any termination date serves the purpose.4 The choice of a cutoff date that produces several months of forced unemployment is thus wholly unnecessary to the planning of the boards. Certainly nothing in the records of these cases is to the contrary.
49
For the above reasons, I believe the linkage between the boards' legitimate ends and their chosen means is too attenuated to support those portions of the regulations overturned by the Court. Thus, I concur in the Court's result. But I think it important to emphasize the degree of latitude the Court, as I read it, has left the boards for dealing with the real and recurrent problems presented by teacher pregnancies. Boards may demand in every case 'substantial advance notice of (pregnancy) . . ..' Ante, at 643. Subject to certain restrictions, they may require all pregnant teachers to cease teaching 'at some firm date during the last few weeks of pregnancy. . . .' Id., at 647 n. 13.5 The Court further holds that boards may in all cases restrict reentry into teaching to the outset of the school term following delivery. Id., at 649.
50
In my opinion, such class-wide rules for pregnant teachers are constitutional under traditional equal protection standards.6 School boards, confronted with sensitive and widely variable problems of public education, must be accorded latitude in the operation of school systems and in the adoption of rules and regulations of general application. E.g., San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 42—43, 93 S.Ct. 1278, 1301—1302, 36 L.Ed.2d 16 (1973). A large measure of discretion is essential to the effective discharge of the duties vested in these local, often elective, governmental units. My concern with the Court's opinion is that, if carried to logical extremes, the emphasis on individualized treatment is at war with this need for discretion. Indeed, stringent insistence on individualized treatment may be quite impractical in a large school district with thousands of teachers.
51
But despite my reservations as to the rationale of the majority, I nevertheless conclude that in these cases the gap between the legitimate interests of the boards and the particular means chosen to attain them is too wide. A restructuring generally along the lines indicated in the Court's opinion seems unavoidable. Accordingly, I concur in its result.
52
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE joins (dissenting).
53
The Court rests its invalidation of the school regulations involved in these cases on the Due Process Clause of the Fourteenth Amendment, rather than on any claim of sexual discrimination under the Equal Protection Clause of that Amendment. My Brother STEWART thereby enlists the Court in another quixotic engagement in his apparently unending war on irrebuttable presumptions. In these cases we are told that although a regulation 'requiring a termination of employment at some firm date during the last few weeks of pregnancy,' supra, at 647 n. 13, might pass muster, the regulations here challenged requiring termination at the end of the fourth or fifth month of pregnancy violate due process of law.
54
As the Chief Justice pointed out in his dissent last year in Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63, 'literally thousands of state statutes create classifications permanent in duration, which are less than perfect, as all legislative classifications are, and might be improved on by individualized determinations . . ..' Id., at 462, 93 S.Ct., at 2241. Hundreds of years ago in England, before Parliament came to be thought of as a body having general lawmaking power, controversies were determined on an individualized basis without benefit of any general law. Most students of government consider the shift from this sort of determination, made on an ad hoc basis by the King's representative, to a relatively uniform body of rules enacted by a body exercising legislative authority, to have been a significant step forward in the achievement of a civilized political society. It seems to me a little late in the day for this Court to weigh in against such an established consensus.
55
Countless state and federal statutes draw lines such as those drawn by the regulations here which, under the Court's analysis, might well prove to be arbitrary in individual cases. The District of Columbia Code, for example, draws lines with respect to age for several purposes. The Code requires that a person to be eligible to vote be 18 years of age,1 that a male be 18 and a female be 16 before a valid marriage may be contracted,2 that alcoholic beverages not be sold to a person under the age of 21 years,3 or beer or light wines to any person under the age of 18 years.4 A resident of the District of Columbia must be 16 years of age to obtain a permit to operate a motor vehicle,5 and the District of Columbia delegate to the United States Congress must be 25 years old.6 Nothing in the Court's opinion clearly demonstrates why its logic would not equally well sustain in challenge to these laws from a 17-year-old who insists that he is just as well informed for voting purposes as an 18-year-old, from a 20-year-old who insists that he is just as able to carry his liquor as a 21-year-old, or from the numerous other persons who fall on the outside of lines drawn by these and similar statutes.
56
More closely in point is the jeopardy in which the Court's opinion places longstanding statutes providing for mandatory retirement of government employees. Title 5 U.S.C. § 8335 provides with respect to Civil Service employees:
57
'(a) Except as otherwise provided by this section, an employee who becomes 70 years of age and completes 15 years of service shall be automatically separated from the service. . . .'
58
It was pointed out by my Brother Stewart only last year in his concurring opinion in Roe v. Wade, 410 U.S. 113, 168, 93 S.Ct. 705, 734, 35 L.Ed.2d 147, that 'the 'liberty' protected by the Due Process Clause of the Fourteenth Amendment covers more than those freedoms explicitly named in the Bill of Rights. . . . Cf. . . . Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 60 L.Ed. 131.' In Truax v. Raich, the Court said:
59
'It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the Amendment to secure.' 239 U.S. 33, 41, 36 S.Ct. 7, 10, 60 L.Ed. 131 (1915).
60
Since this right to pursue an occupation is presumably on the same lofty footing as the right of choice in matters of family life, the Court will have to strain valiantly in order to avoid having today's opinion lead to the invalidation of mandatory retirement statutes for governmental employees. In that event federal, state, and local governmental bodies will be remitted to the task, thankless both for them and for the employees involved, of individual determinations of physical impairment and senility.
61
It has been said before, Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955), but it bears repeating here: All legislation involves the drawing of lines, and the drawing of lines necessarily results in particular individuals who are disadvantaged by the line drawn being virtually indistinguishable for many purposes from those individuals who benefit from the legislative classification. The Court's disenchantment with 'irrebuttable presumptions,' and its preference for 'individualized determination,' is in the last analysis nothing less than an attack upon the very notion of lawmaking itself.
62
The lines drawn by the school boards in the city of Cleveland and Chesterfield County in these cases require pregnant teachers to take forced leave at a stage of their pregnancy when medical evidence seems to suggest that a majority of them might well be able to continue teaching without any significant possibility of physical impairment. But, so far as I am aware, the medical evidence also suggests that in some cases there may be physical impairment at the stage of pregnancy fastened on by the regulations in question, and that the probability of physical impairment increases as the pregnancy advances. If legislative bodies are to be permitted to draw a general line anywhere short of the delivery room, I can find no judicial standard of measurement which says the ones drawn here were invalid. I therefore dissent.
1
The Cleveland rule provides:
'Any married teacher who becomes pregnant and who desires to return to the employ of the Board at a future date may be granted a maternity leave of absence without pay. 'APPLICATION A maternity leave of absence shall be effective not less than five (5) months before the expected date of the normal birth of the child. Application for such leave shall be forwarded to the Superintendent at least two (2) weeks before the effective date of the leave of absence. A leave of absence without pay shall be granted by the Superintendent for a period not to exceed two (2) years.
'REASSIGNMENT A teacher may return to service from maternity leaves not earlier than the beginning of the regular school semester which follows the child's age of three (3) months. In unusual circumstances, exceptions to this requirement may be made by the Superintendent with the approval of the Board. Written request for return to service from maternity leave must reach the Superintendent at least six (6) weeks prior to the beginning of the semester when the teacher expects to resume teaching and shall be accompanied by a doctor's certificate stating the health and physical condition of the teacher. The Superintendent may require an additional physical examination.
'When a teacher qualifies to return from maternity leave, she shall have priority in reassignment to a vacancy for which she is qualified under her certificate, but she shall not have prior claim to the exact position she held before the leave of absence became effective.
'A teacher's failure to follow the above rules for maternity leave of absence shall be construed as termination of contract or as grounds for dismissal.' (Emphasis in original.)
2
Mrs. LaFleur's child was born on July 28, 1971; Mrs. Nelson's child was born during August of that year.
3
Effective February 1, 1971, the Cleveland regulation was amended to provide that only teachers with one year of continuous service qualified for maternity leave; teachers with less than one year were required to resign at the beginning of the fifth month of pregnancy. Since Mrs. Nelson had less than a year of service at the time she notified her principal that she was pregnant, the school board originally required her to resign her teaching position. The school board has since conceded that the February 1 amendment did not apply to Mrs. Nelson, since it was enacted after her contract of employment was executed. Pursuant to that concession, the board has placed Mrs. Nelson, like Mrs. LaFleur, on mandatory leave.
4
Chief Judge Phillips filed a separate opinion, dissenting in part and concurring in part. He felt that the portion of the challenged regulation requiring maternity leave at the beginning of the fifth month of pregnancy was constitutional; he agreed with the majority, however, that the three-month post-delivery waiting period before becoming eligible to return to teaching was unconstitutional.
5
The Chesterfield County rule provides:
'MATERNITY PROVISIONS
'a. Notice in writing must be given to the School Board at least six (6) months prior to the date of expected birth.
'b. Termination of employment of an expectant mother shall become effective at least four (4) months prior to the expected birth of the child. Termination of employment may be extended if the superintendent receives written recommendations from the expectant mother's physician and her principal, and if the superintendent feels that an extension will be in the best interest of the pupils and school involved.
'c. Maternity Leave
'(1) Maternity leave must be requested in writing at the time of termination of employment.
'(2) Maternity leave will be granted only to those persons who have a record of satisfactory performance.
'(3) An individual will be declared eligible for re-employment when she submits written notice from her physician that she is physically fit for full-time employment and when she can give full assurance that care of the child will cause minimal interference with job responsibilities.
'(4) Re-employment will be guaranteed no later than the first day of the school year following the date that the individual was declared eligible for re-employment.
'(5) All personnel benefits accrued, including seniority, will be retained during maternity leave unless the person concerned shall have accepted other employment.
'(6) The school system will have discharged its responsibility under this policy after offering re-employment for the first vacancy
that occurs after the individual has been declared eligible for re-employment.'
6
Mrs. Cohen's child was in fact born on May 2.
7
Unlike the Cleveland rule, n. 1, supra, the Chesterfield County regulation allows the superintendent of schools to extend a teacher's employment beyond the normal cutoff date, if he determines that such action is in the best interests of the students and school involved. See n. 5, supra.
8
Apart from the cases here under review, there are at least three other reported federal appellate opinions dealing with the constitutionality of mandatory maternity leave regulations. Compare Green v. Waterford Board of Education, 473 F.2d 629 (CA2), and Buckley v. Coyle Public School System, 476 F.2d 92 (CA10) (both invalidating mandatory leave rules for pregnant public school teachers)
with Schattman v. Texas Employment Comm'n, 459 F.2d 32 (CA5) (upholding a leave policy of a state agency).
For opinions of the district courts dealing with mandatory maternity leaves, see, e.g., Heath v. Westerville Board of Education, 345 F.Supp. 501 (SD Ohio); Pocklington v. Duval County School Board, 345 F.Supp. 163 (MD Fla.); Bravo v. Board of Education of the City of Chicago, 345 F.Supp. 155 (ND Ill.); Williams v. San Francisco Unified School District, 340 F.Supp. 438 (ND Cal.); Seaman v. Spring Lake Park Independent School District, 363 F.Supp. 944 (Minn.); Monell v. Department of Social Services, 357 F.Supp. 1051 (SDNY).
Cf. Struck v. Secretary of Defense, 460 F.2d 1372 (CA9), vacated and remanded to consider the issue of mootness 409 U.S. 1071, 93 S.Ct. 676, 34 L.Ed.2d 660; Gutierrez v. Laird, 346 F.Supp. 289 (DC); Robinson v. Rand, 340 F.Supp. 37 (Colo.) (all dealing with Air Force regulations requiring separation of pregnant personnel).
The practical impact of our decision in the present cases may have been somewhat lessened by several recent developments. At the time that the teachers in these cases were placed on maternity leave, Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U.S.C. § 2000e et seq., did not apply to state agencies and educational institutions. 42 U.S.C. §§ 2000e(b) and 2000e—1. On March 24, 1972, however, the Equal Employment Opportunity Act of 1972 amended Title VII to withdraw those exemptions. Pub.L. 92 261, 86 Stat. 103. Shortly thereafter, the Equal Employment Opportunity Commission promulgated guidelines providing that a mandatory leave or termination policy for pregnant women presumptively violates Title VII. 29 CFR § 1604.10, 37 Fed.Reg. 6837. While the statutory amendments and the administrative regulations are, of course, inapplicable to the cases now before us, they will affect like suits in the future.
In addition, a number of other federal agencies have promulgated regulations similar to those of the Equal Employment Opportunity Commission, forbidding discrimination against pregnant workers with regard to sick leave policies. See, e.g., 5 CFR § 630.401(b) (Civil
Service Commission); 41 CFR § 60—20.3(g) (Office of Federal Contract Compliance). See generally Koontz, Childbirth and Child Rearing Leave: Job-Related Benefits, 17 N.Y.L.F. 480, 487—490; comment, Love's Labors Lost: New Conceptions of Maternity Leaves, 7 Harv.Civ. Rights-Civ.Lib.L.Rev. 260, 280—281. We, of course, express no opinion as to the validity of any of these regulations.
9
The records in these cases suggest that the maternity leave regulations may have originally been inspired by other, less weighty, considerations. For example, Dr. Mark C. Schinnerer, who served as Superintendent of Schools in Cleveland at the time the leave rule was adopted, testified in the District Court that the rule had been adopted in part to save pregnant teachers from embarrassment at the hands of giggling schoolchildren; the cutoff date at the end of the fourth month was chosen because this was when the teacher 'began to show.' Similarly, at least several members of the Chesterfield County School Board thought a mandatory leave rule was justified in order to insulate schoolchildren from the sight of conspicuously pregnant women. One member of the school board thought that it was 'not good for the school system' for students to view pregnant teachers, 'because some of the kids say, my teacher swallowed a water melon, things like that.' FC The school boards have not contended in this Court that these considerations can serve as a legitimate basis for a rule requiring pregnant women to leave work; we thus note the comments only to illustrate the possible role of outmoded taboos in the adoption of the rules. Cf. Green v. Waterford Board of Education, 473 F.2d, at 635 ('Whatever may have been the reaction in Queen Victoria's time, pregnancy is no longer a dirty word').
10
It is, of course, possible that either premature childbirth or complications in the latter stages of pregnancy might upset even the most careful plans of the teacher, the substitute, and the school board. But there is nothing in these records to indicate that such emergencies could not be handled, as are all others, through the normal use of the emergency substitute teacher process. See Green, supra, at 635—636.
11
Indeed, it is somewhat difficult to view the Cleveland mandatory leave rule as seriously furthering the goal of continuity, since the rule requires only two weeks' advance notice before the leave is to commence.
12
There were three medical witnesses in the Cleveland case: Dr. Sarah Marcus and Dr. Veners Rutenbeigs (Mrs. Nelson's obstetrician), who testified on behalf of the respondents, and Dr. William C. Weir, the petitioners' expert. While Dr. Weir generally disagreed with his colleagues on the potential effects of pregnancy on a teacher's job performance, he noted that each pregnancy was an individual matter, and should be prescribed for as such. Similarly, the two medical experts in the Chesterfield County case, Dr. Leo J. Dunn and Dr. David C. Forrest, testified that each particular pregnancy must be managed as an individual matter. Cf. R. Benson, Handbook of Obstetrics & Gynecology, 109 (4th ed. 1971); Curran, Equal Protection of the Law: Pregnant School Teachers, 285 New England J. Medicine, 336; Comment, Mandatory Maternity Leave of Absence Policies—An Equal Protection Analysis, 45 Temp.L.Q. 240, 245.
13
This is not to say that the only means for providing appropriate protection for the rights of pregnant teachers is an individualized determination in each case and in every circumstance. We are not dealing in these cases with maternity leave regulations requiring a termination of employment at some firm date during the last few weeks of pregnancy. We therefore have no occasion to decide whether such regulations might be justified by considerations not presented in these records—for example, widespread medical consensus about the 'disabling' effect of pregnancy on a teacher's job performance during these latter days, or evidence showing that such firm cutoffs were the only reasonable method of avoiding the possibility of labor beginning while some teacher was in the classroom, or proof that adequate substitutes could not be procured without at least some minimal lead time and certainty as to the dates upon which their employment was to begin.
14
The school boards have available to them reasonable alternative methods of keeping physically unfit teachers out of the classroom. For example, they could require the pregnant teacher to submit to medical examination by a school board physician, or simply require each teacher to submit a current certification from her obstetrician as to her ability to continue work. Indeed, when evaluating the physical ability of a teacher to return to work, each school board in this case relies upon precisely such procedures. See nn. 1 and 5, supra; see also text, infra, at 648—650.
15
It is clear that the factual hypothesis of such a presumption—that no mother is physically fit to return to work until her child reaches the age of three months—is neither necessarily nor universally true. See R. Benson, supra, n. 12, at 209 (patient may return to 'full activity or employment' if course of progress up to fourth or fifth week is normal). Cf. Comment, Love's Labors Lost: New Conceptions of Maternity Leaves, 7 Harv.Civ.Rights-Civ.Lib.L.Rev., at 262 n. 11, 287 n. 145.
Of course, it may be that the Cleveland rule is based upon another theory—that new mothers are too busy with their children within the first three months to allow a return to work. Viewed in that light, the rule remains a conclusive presumption, whose underlying factual assumptions can hardly be said to be universally valid.
16
The Virginia rule also requires that the teacher give assurance that care of the child will not unduly interfere with her job duties. While such a requirement has within it the potential for abuse, there is no evidence on this record that the assurance required here is anything more than that routinely sought by employers from prospective employees—that the worker is willing to devote full attention to job duties. Nor is there any evidence in this record that the school authorities do not routinely accept the woman's assurance of her ability to return.
1
See, e.g., ante, at 641, n. 9.
2
I do not reach the question whether sexbased classifications invoke strict judicial scrutiny, e.g., Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), or whether these regulations involve sex classifications at all. Whether the challenged aspects of the regulations constitute sex classifications or disability classifications, they must at least rationally serve some legitimate articulated or obvious state interest. While there are indeed some legitimate state interests at stake here, it has not been shown that they are rationally furthered by the challenged portions of these regulations.
3
Teachers who undergo abnormal pregnancies may well be disabled, either temporarily or for a substantial period. But as I read the Court, boards may deal with abnormal pregnancies like any other disability. Ante, at 642, n. 10.
4
One may question, however, whether planning needs are well served by the mere two-week gap between notice and departure set forth in the Cleveland regulation. The brief notice the Cleveland board has allowed itself casts some doubt on that board's reliance on planning needs.
5
The Court's language does not specify a particular prebirth cutoff point, and we need not decide that issue, as these boards have attempted to support only four- and five-month dates. In light of the Court's language, however, I would think that a four-week prebirth period would be acceptable. I do not agree with the Court's view of the stringent standards a board must meet to justify a reasonable prebirth cutoff date. See ante, at 799 n. 13. Nothing in the Constitution mandates the heavy burden of justification the Court has imposed on the boards in this regard. If school boards must base their policies on a 'widespread medical consensus . . .,' the 'only reasonable method . . .' for accomplishing a goal, or a demonstration that needed services will otherwise be impossible to obtain, ibid., they may be seriously handicapped in the performance of their duties.
6
As the Court notes, these cases arose prior to the recent amendment extending Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., to state agencies and educational institutions. Pub.L. 92—261, 86 Stat. 103. See ante, at 639 n 8. Like the Court, I do not address the impact of Title VII on mandatory maternity leave regulations.
1
D.C.Code Ann. § 1—1102 (1973).
2
Id., § 30—103.
3
Id., § 25—121.
4
Ibid.
5
Id., § 40—301.
6
Id., § 1—291(b)(2).
| 12
|
414 U.S. 563
94 S.Ct. 786
39 L.Ed.2d 1
Kinney Kinmon LAU, a minor by and through Mrs. Kam Wai Lau, his guardian ad litem, et al., Petitioners,v.Alan H. NICHOLS et al.
No. 72—6520.
Argued Dec. 10, 1973.
Decided Jan. 21, 1974.
Syllabus
The failure of the San Francisco school system to provide English language instruction to approximately 1,800 students of Chinese ancestry who do not speak English, or to provide them with other adequate instructional procedures, denies them a meaningful opportunity to participate in the public educational program and thus violates § 601 of the Civil Rights Act of 1964, which bans discrimination based 'on the ground of race, color, or national origin,' in 'any program or activity receiving Federal financial assistance,' and the implementing regulations of the Department of Health, Education, and Welfare. Pp. 565—569.
483 F.2d 791, reversed and remanded.
1
Edward H. Steinman, Santa Clara, Cal., for petitioners; Kenneth Hecht and David C. Moon, San Francisco, Cal., on the briefs.
2
Thomas M. O'Connor, San Francisco, Cal., for respondents; George E. Frueger and Burk E. Delventhal, San Francisco, Cal., on the brief.
3
J. Stanley Pottinger, Asst. Atty. Gen., San Francisco, Cal., for the United States, as amicus curiae, by special leave of Court; Solicitor Gen., Robert Bork, Deputy Solicitor Gen., Lawrence G. Wallace, Mark L. Evans and Brian K. Landsberg, Washington, D.C., on the brief.
4
Stephen J. Pollak, Ralph J. Moore, Jr., David Rubin, Washington, D.C., and Peter T. Galiano, Burlingame, Cal., for Nat. Ed. Assn. and others; W. Reece Bader and James R. Madison, San Francisco, Cal., for San Francisco Lawyers' Committee for Urban Affairs; J. Harold Flannery, Washington, D.C., for Center for Law and Ed., Harvard University; Herbert Teitelbaum, New York City, for Puerto Rican Legal Defense and Ed. Fund, Inc; Mario G. Obledo, San Francisco, Cal., Sanford J. Rosen, Berkeley, Cal., Michael Mendelson, and Alan Exelrod, San Francisco, Cal., for Mexican American Legal Defense and Educational Fund and others; Samuel Rabinove, Joseph B. Robison, Arnold Forster, and Elliot C. Rothenberg, New York City, for American Jewish Committee and others; F. Raymond Marks, Berkeley, Cal., for the Childhood and Government Project; Martin Glick, San Francisco, Cal., for Efrain Tostado and others; and the Chinese Consolidated Benevolent Assn. and others, as amicus curiae.
5
Mr. Justice DOUGLAS delivered the opinion of the Court.
6
The San Francisco, California, school system was integrated in 1971 as a result of a federal court decree, 339 F.Supp. 1315. See Lee v. Johnson, 404 U.S. 1215, 92 S.Ct. 14, 30 L.Ed.2d 19. The District Court found that there are 2,856 students of Chinese ancestry in the school system who do not speak English. Of those who have that language deficiency, about 1,000 are given supplemental courses in the English language.1 About 1,800, however, do not receive that instruction.
7
This class suit brought by non-English-speaking Chinese students against officials responsible for the operation of the San Francisco Unified School District seeks relief against the unequal educational opportunities, which are alleged to violate, inter alia, the Fourteenth Amendment. No specific remedy is urged upon us. Teaching English to the students of Chinese ancestry who do not speak the language is one choice. Giving instructions to this group in Chinese is another. There may be others. Petitioners ask only that the Board of Education be directed to apply its expertise to the problem and rectify the situation.
8
The District Court denied relief. The Court of Appeals affirmed, holding that there was no violation of the Equal Protection Clause of the Fourteenth Amendment or of § 601 of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. § 2000d, which excludes from participation in federal financial assistance, recipients of aid which discriminate against racial groups, 483 F.2d 791. One judge dissented. A hearing en banc was denied, two judges dissenting. Id., at 805.
9
We granted the petition for certiorari because of the public importance of the question presented, 412 U.S. 938, 93 S.Ct. 2786, 37 L.Ed.2d 397.
10
The Court of Appeals reasoned that '(e)very student brings to the starting line of his educational career different advantages and disadvantages caused in part by social, economic and cultural background, created and continued completely apart from any contribution by the school system,' 483 F.2d, at 797. Yet in our view the case may not be so easily decided. This is a public school system of California and § 71 of the California Education Code states that 'English shall be the basic language of instruction in all schools.' That section permits a school district to determine 'when and under what circumstances instruction may be given bilingually.' That section also states as 'the policy of the state' to insure 'the mastery of English by all pupils in the schools.' And bilingual instruction is authorized 'to the extent that it does not interfere with the systematic, sequential, and regular instruction of all pupils in the English language.' Moreover, § 8573 of the Education Code provides that no pupil shall receive a diploma of graduation from grade 12 who has not met the standards of proficiency in 'English,' as well as other prescribed subjects. Moreover, by § 12101 of the Education Code (Supp. 1973) children between the ages of six and 16 years are (with exceptions not material here) 'subject to compulsory full-time education.'
11
Under these state-imposed standards there is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum; for students who do not understand English are effectively foreclosed from any meaningful education.
12
Basic English skills are at the very core of what these public schools teach. Imposition of a requirement that, before a child can effectively participate in the educational program, he must already have acquired those basic skills is to make a mockery of public education. We know that those who do not understand English are certain to find their classroom experiences wholly incomprehensible and in no way meaningful.
13
We do not reach the Equal Protection Clause argument which has been advanced but rely solely on § 601 of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, to reverse the Court of Appeals.
14
That section bans discrimination based 'on the ground of race, color, or national origin,' in 'any program or activity receiving Federal financial assistance.' The school district involved in this litigation receives large amounts of federal financial assistance. The Department of Health, Education, and Welfare (HEW), which has authority to promulgate regulations prohibiting discrimination in federally assisted school systems, 42 U.S.C. § 2000d—1, in 1968 issued one guideline that '(s)chool systems are responsible for assuring that students of a particular race, color, or national origin are not denied the opportunity to obtain the education generally obtained by other students in the system.' 33 Fed.Reg. 4955. In 1970 HEW made the guidelines more specific, requiring school districts that were federally funded 'to rectify the language deficiency in order to open' the instruction to students who had 'linguistic deficiencies,' 35 Fed.Reg. 11595.
15
By § 602 of the Act HEW is authorized to issue rules, regulations, and orders2 to make sure that recipients of federal aid under its jurisdiction conduct any federally financed projects consistently with § 601. HEW's regulations, 45 CFR 80.3(b)(1), specify that the recipients may not
16
'(ii) Provide any service, financial aid, or other benefit to an individual which is different, or is provided in a different manner, from that provided to others under the program;
17
'(iv) Restrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit under the program.'
18
Discrimination among students on account of race or national origin that is prohibited includes 'discrimination . . . in the availability or use of any academic . . . or other facilities of the grantee or other recipient.' Id., § 80.5(b).
19
Discrimination is barred which has that effect even though no purposeful design is present: a recipient 'may not . . . utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination' or have 'the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin.' Id., § 80.3(b)(2).
20
It seems obvious that the Chinese-speaking minority receive fewer benefits than the English-speaking majority from respondents' school system which denies them a meaningful opportunity to participate in the educational program—all earmarks of the discrimination banned by the regulations.3 In 1970 HEW issued clarifying guidelines, 35 Fed.Reg. 11595, which include the following:
21
'Where inability to speak and understand the English language excludes national origin-minority group children from effective participation in the educational program offered by a school district, the district must take affirmative steps to rectify the language deficiency in order to open its instructional program to these students.'
22
'Any ability grouping or tracking system employed by the school system to deal with the special language skill needs of national origin-minority group children must be designed to meet such language skill needs as soon as possible and must not operate as an educational deadend or permanent track.'
23
Respondent school district contractually agreed to 'comply with title VI of the Civil Rights Act of 1964 . . . and all requirements imposed by or pursuant to the Regulation' of HEW (45 CFR pt. 80) which are 'issued pursuant to that title . . .' and also immediately to 'take any measures necessary to effectuate this agreement.' The Federal Government has power to fix the terms on which its money allotments to the States shall be disbursed. Oklahoma v. United States Civil Service Commission, 330 U.S. 127, 142—143, 67 S.Ct. 544, 552—554, 91 L.Ed. 794. Whatever may be the limits of that power, Steward Machine Co. v. Davis, 301 U.S. 548, 590, 57 S.Ct. 883, 892, 81 L.Ed. 1279 et seq., they have not been reached here. Senator Humphrey, during the floor debates on the Civil Rights Act of 1964, said:4
24
'Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination.'
25
We accordingly reverse the judgment of the Court of Appeals and remand the case for the fashioning of appropriate relief.
26
Reversed and remanded.
27
Mr. Justice WHITE concurs in the result.
28
Mr. Justice STEWART, with whom THE CHIEF JUSTICE and Mr. Justice BLACKMUN join, concurring in the result.
29
It is uncontested that more than 2,800 schoolchildren of Chinese ancestry attend school in the San Francisco Unified School District system even though they do not speak, understand, read, or write the English language, and that as to some 1,800 of these pupils the respondent school authorities have taken no significant steps to deal with this language deficiency. The petitioners do not contend, however, that the respondents have affirmatively or intentionally contributed to this inadequacy, but only that they have failed to act in the face of changing social and linguistic patterns. Because of this laissez-faire attitude on the part of the school administrators, it is not entirely clear that § 601 of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, standing alone, would render illegal the expenditure of federal funds on these schools. For that section provides that '(n)o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.'
30
On the other hand, the interpretive guidelines published by the Office for Civil Rights of the Department of Health, Education, and Welfare in 1970, 35 Fed.Reg. 11595, clearly indicate that affirmative efforts to give special training for non-English-speaking pupils are required by Tit. VI as a condition to receipt of federal aid to public schools:
31
'Where inability to speak and understand the English language excludes national origin-minority group children from effective participation in the educational program offered by a school district, the district must take affirmative steps to rectify the language deficiency in order to open its instructional program to these students.'1
32
The critical question is, therefore, whether the regulations and guidelines promulgated by HEW go beyond the authority of § 601.2 Last Term, in Mourning v. Family Publications Service, Inc., 411 U.S. 356, 369, 93 S.Ct. 1652, 1661, 36 L.Ed.2d 318, we held that the validity of a regulation promulgated under a general authorization provision such as § 602 of Tit. VI3 'will be sustained so long as it is 'reasonably related to the purposes of the enabling legislation.' Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 280—281, 89 S.Ct. 518, 525, 21 L.Ed.2d 474 (1969).' I think the guidelines here fairly meet that test. Moreover, in assessing the purposes of remedial legislation we have found that departmental regulations and 'consistent administrative construction' are 'entitled to great weight.' Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 210, 93 S.Ct. 364, 367, 34 L.Ed.2d 415; Griggs v. duke Power Co., 401 U.S. 424, 433—434, 91 S.Ct. 849, 854—855, 28 L.Ed.2d 158; Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616. The Department has reasonably and consistently interpreted § 601 to require affirmative remedial efforts to give special attention to linguistically deprived children.
33
For these reasons I concur in the result reached by the Court.
34
Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE joins, concurring in the result.
35
I join Mr. Justice STEWART'S opinion and thus I, too, concur in the result. Against the possibility that the Court's judgment may be interpreted too broadly, I stress the fact that the children with whom we are concerned here number about 1,800. This is a very substantial group that is being deprived of any meaningful schooling because the children cannot understand the language of the classroom. We may only guess as to why they have had no exposure to English in their preschool years. Earlier generations of American ethnic groups have overcome the language barrier by earnest parental endeavor or by the hard fact of being pushed out of the family or community nest and into the realities of broader experience.
36
I merely wish to make plain that when, in another case, we are concerned with a very few youngsters, or with just a single child who speaks only German or Polish or Spanish or any language other than English, I would not regard today's decision, or the separate concurrence, as conclusive upon the issue whether the statute and the guidelines require the funded school district to provide special instruction. For me, numbers are at the heart of this case and my concurrence is to be understood accordingly.
1
A report adopted by the Human Rights Commission of San Francisco and submitted to the Court by respondents after oral argument shows that, as of April 1973, there were 3,457 Chinese students in the school system who spoke little or no English. The document further showed 2,136 students enrolled in Chinese special instruction classes, but at least 429 of the enrollees were not Chinese but were included for ethnic balance. Thus, as of April 1973, no more than 1,707 of the 3,457 Chinese students needing special English instruction were receiving it.
2
Section 602 provides:
'Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity, by way of grant, loan, or contract other than a contract of insurance or guaranty, is authorized and directed to effectuate the provisions of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken. . . .' 42 U.S.C. § 2000d—1.
3
And see Report of the Human Rights Commission of San Francisco, Bilingual Education in the San Francisco Public Schools, Aug. 9, 1973.
4
110 Cong.Rec. 6543 (Sen. Humphrey, quoting from President Kennedy's message to Congress, June 19, 1963).
1
These guidelines were issued in further clarification of the Department's position as stated in its regulations issued to implement Tit. VI, 45 CFR pt. 80. The regulations provide in part that no recipient of federal financial assistance administered by HEW may
'Provide any service, financial aid, or other benefit to an individual which is different, or is provided in a different manner, from that provided to others under the program; (or)
'Restrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit under the program.' 45 CFR § 80.3(b)(1)(ii), (iv).
2
The respondents do not contest the standing of the petitioners to sue as beneficiaries of the federal funding contract between the Department of Health, Education, and Welfare and the San Francisco Unified School District.
3
Section 602, 42 U.S.C. § 2000d—1, provides in pertinent part:
'Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity, by way of grant, loan, or contract other than a contract of insurance or guaranty, is authorized and directed to effectuate the provisions of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken. . . .'
The United States as amicus curiae asserts in its brief, and the respondents appear to concede, that the guidelines were issued pursuant to § 602.
| 12
|
414 U.S. 685
94 S.Ct. 771
39 L.Ed.2d 90
Francis SNIDER et al.v.ALL STATE ADMINISTRATORS, INC., et al.
No. 73—731.
Jan. 21, 1974.
PER CURIAM.
1
Petitioner Snider has filed a motion to dispense with the printing of the petition for certiorari as required by our Rule 39. He has filed no motion and affidavit in conformity with our Rule 53, dealing with proceedings in forma pauperis. While we undoubtedly have authority to waive the application of particular rules in appropriate circumstances, we have during this Term denied a considerable number of similar motions.* Typically in each of these cases the moving petitioner made generalized allegations of inability to afford payment of printing costs, but made not showing sufficient to comply with Rule 53 governing proceedings in forma pauperis. Motions such as these are disfavored, and petitioner's motion is denied.
2
Rule 39, entitled 'Form of appendices, petitions, briefs, etc.,' contains the following definition:
3
'Printing, as the term is used in these rules, shall include any process capable of producing a clear black image on white paper but shall not include ordinary carbon copies. If papers are filed in a form which is not clearly legible, the clerk will require that new copies be substituted, but the filing shall not thereby be deemed untimely.'
4
We think it is clear from this definition, and from the other parts of Rule 39, that documents governed by Rule 39 need not have been imprinted on a press in order to comply with its terms. They are required to be the product of a process 'capable of producing a clear black image on white paper,' and to conform to the paper-size, binding, and type-size requirements also set forth in the Rule. The Rule is thus functional in nature, and is designed to assure the Court that appendices, petitions, briefs, and the like which are subject to its provisions will be of uniform size and good legibility. We are not disposed to waive these standards.
5
In future cases, the Clerk will be instructed not to accept for record a petition for certiorari or other document which is subject to Rule 39 and fails to conform to the requirements of that Rule, and to submit only the motion to dispense with printing to the Court for decision. In the event such motion is denied, the petition or other document will be returned to the party seeking to file it at the time the order of denial is entered.
6
Petitioner's motion to dispense with printing the petition for certiorari in this case is denied. Because our view as to the probable fate of motions such as his may not heretofore have been apparent to the Bar, he is granted 21 days from the entry of this order in which to file a petition which conforms to Rule 39.
7
Motion denied.
*
See, e.g., Wallace v. Smith, 414 U.S. 907, 94 S.Ct. 228, 38 L.Ed.2d 144, motion denied October 15, 1973; Broccolino v. Maryland Comm'n on Judicial Disabilities, 414 U.S. 1038, 94 S.Ct. 537, 38 L.Ed.2d 328, motion denied November 19, 1973; Chippas v. United States, 414 U.S. 1109, 94 S.Ct. 837, 38 L.Ed.2d 736, motion denied December 17, 1973. See also Morton v. Mancari, No. 73—362, 414 U.S. 1142, 94 S.Ct. 893, 39 L.Ed.2d 99, motion to dispense with printing the motion to dismiss or affirm denied January 14, 1974.
| 89
|
414 U.S. 614
94 S.Ct. 747
39 L.Ed.2d 38
Jean CHRISTIAN and Victor L. Green, Appellants,v.NEW YORK STATE DEPARTMENT OF LABOR, DIVISION OF EMPLOYMENT, et al.
No. 72—5704.
Argued Nov. 13, 1973.
Decided Jan. 21, 1974.
Syllabus
Appellants, former federal probationary employees who were denied benefits under the Unemployment Compensation for Federal Employees Program brought this action in District Court seeking declaratory and injunctive relief against provisions of the Program and its implementing regulations that they contended operated to deny them a hearing on the factual basis for their removal from federal service, for the purpose of determining their eligibility under state law for unemployment compensation. They claimed that the Act requires such a hearing and, alternatively, that the denial of a hearing deprived them of due process and equal protection. A three-judge District Court held that the statute does not require a hearing to contest the employing agency's findings; dismissed the constitutional claims against the federal defendants for lack of subject-matter jurisdiction; and held that the state agency's denial of a hearing did not violate the Due Process or Equal Protection Clauses. Held: Any decision upon appellants' statutory or constitutional claims would be premature in view of the fact that the record does not disclose that the state agency, in notifying appellants of the adverse determinations, informed them, as it was required to do by the applicable regulation, of their 'right to additional information or reconsideration and correction' of the findings by the employing agencies; or that appellants invoked the available procedure entitling them to request their agencies 'to reconsider and correct' those findings. The District Court's dismissal of the suit as to both federal and state defendants is therefore vacated with directions that the court determine whether appellants should be permitted to invoke the applicable administrative procedures. Pp. 618—624.
347 F.Supp. 1158, vacated.
E. Richard Larson, New York City, for appellants.
Mark L. Evans, Washington, D.C., for appellees.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Appellants, discharged federal probationary employees, were denied unemployment compensation by the New York State Department of Labor, an 'agent of the United States' under agreement with the Secretary of Labor for the administration of the Unemployment Compensation for Federal Employees (UCFE) Program, 5 U.S.C. § 8501 et seq. Appellants brought this class suit against that state agency in the District Court for the Southern District of New York, joining as defendants the United States Department of Labor, which is charged with overall responsibility for the program, and the United States Post Office Department and Department of the Treasury, which are appellants' former employing agencies.
2
Appellants alleged that the state agency had based its adverse determinations on findings of fact made ex parte by the federal employing agencies, and that the state agency had refused to afford either appellant a hearing at which he or she could attempt to contest those federal findings. The result, appellants claimed, was a deprivation of any opportunity to be heard, in violation of the UCFE statutes and of the Fifth and Fourteenth Amendments. They sought certification as representatives of the class of persons similarly situated, the convening of a three-judge court, and declaratory, injunctive, and mandamus relief.
3
The District Court viewed the suit as a constitutional attack on 5 U.S.C. § 8506(a),1 which, inter alia, makes the findings of the federal employing agency 'final and conclusive' on the state agency, and on the regulations of the Secretary of Labor promulgated, pursuant to 5 U.S.C. § 8508, to enforce the program.2 A three-judge court was convened. That court, in an opinion reported at 347 F.Supp. 1158 (1972), first examined the statutory claim and held that § 8506(a) does not require that appellants receive either a state or a federal hearing to contest the employing agency's findings. Next, the court noted that jurisdiction over the claims against the federal defendants had been alleged only under 28 U.S.C. § 1361, providing for mandamus actions. Holding that § 1361 will not support a constitutional challenge to a statute, the court dismissed the constitutional claims against the federal defendants for lack of subject-matter jurisdiction.3 Finally, turning to the constitutional claims against the state defendants, the court, apparently assuming for purposes of argument that the federal defendants were not constitutionally required to afford appellants a hearing, treated the claims as asserting that denial of a state hearing was, in effect, a denial of any hearing on the federal findings. The court held that the denial of a hearing by the state agency did not violate either the Due Process or the Equal Protection Clauses.
4
We noted probable jurisdiction of appellants' appeal, 411 U.S. 930, 93 S.Ct. 1904, 36 L.Ed.2d 389 (1973). We are of the view that decision upon appellants' statutory and constitutional claims would be premature. We cannot discover in the record that the state agency, in notifying appellants of the adverse determinations, informed them, as required by 20 CFR § 609.20, of their 'right to additional information or reconsideration and correction' of the findings by the employing agencies. Nor can we discover from the record whether or not appellants invoked 20 CFR § 609.23, entitling them to request their employing agencies 'to reconsider and correct' those findings.
5
The 'findings' of appellant Christian's federal employer, the United States Post Office Department, were that Christian was discharged because of excessive absences. The 'findings' of appellant Green's employer, the Department of the Treasury, were that Green was discharged for consuming an alcoholic beverage within 24 hours of going on duty as a sky marshal. It is clear that neither was afforded a prior hearing by his or her agency or any opportunity to challenge the justifications for discharge.4 Each then applied for unemployment compensation through the New York State Department of Labor. As required by § 8506, New York requested and obtained from each agency its 'findings' describing the nature of the employment, including the reasons for the discharge. On the basis of those findings, the state officials made an initial determination that neither appellant qualified for compensation under the applicable state standards.5
6
We find nothing whatever in the record to show compliance by the state agency with 20 CFR § 609.20. All that appears is that the New York officials sent each appellant a letter that included (a) a recitation that no employment benefits could be paid, (b) the state rule that required that conclusion, (c) a short summary of the findings of the federal agency, and (d) a statement that the individual could request a hearing before an impartial state referee. Indeed, the letter appears to be a form letter appropriate in cases of private and state employee applicants, but not tailored for the situation of the federal employee applicant given rights of reconsideration and correction by the Secretary's regulations.
7
Appellant Christian requested and obtained a hearing before a state referee. The referee permitted her to introduce evidence to rebut the federal findings, credited that evidence, and recommended that she be provided unemployment compensation. The state Appeals Board, however, reversed on the ground that § 8506 prohibited re-examination of the facts found by the federal agency. Appellant Green had not obtained a hearing at the time this suit was filed, and the record does not disclose whether he requested one.6
8
The UCFE Program does not, as the state Appeals Board recognized, contemplate a hearing before the state agency for correction of factual findings of the federal employer. But, while prohibiting state re-examination of the facts, § 8506(a) also requires an opportunity for federal re-examination:
9
'The regulations (promulgated by the Secretary of Labor) shall include provision for correction by the employing agency of errors and omissions. Findings made in accordance with the regulations are final and conclusive for the purpose of (state adjudication).'
10
The regulations promulgated by the Secretary of Labor plainly attach great significance to the right of the discharged employee to have the employing agency reconsider its stated reasons for his discharge. The crucial requirement that triggers this reconsideration is the obligation imposed upon the state agency to notify the applicant of the content of the federal findings, which notice 'shall (also) inform the Federal civilian employee of his right to additional information or reconsideration and correction of such findings.' 20 CFR § 609.20. Thereupon, the employee may obtain additional information from the employing agency concerning the basis of its findings, § 609.22. Whether or not he avails himself of that opportunity, he may file a request for reconsideration and correction, 'together with such information as supports his request, through the State agency before which the claim is pending . . ..' § 609.23. Upon receipt of such a request, the federal agency must consider any information submitted by the employee, promptly correct any errors or omissions, and either affirm, modify, or reverse its original findings in writing. § 609.9. Finally, the State is required to stay its adjudicatory process pending federal reconsideration, although it is conclusively bound by any factual findings of the federal agency, §§ 609.23(a), 609.18(c), when it applies its own law to redetermine eligibility. §§ 609.24(c), (d).
11
Appellants' contention that § 8506(a) works a denial of due process and equal protection by depriving them of a hearing before the state agency is thus misdirected. Congress has precluded a hearing on the federal findings in any state forum, but it has required the Secretary of Labor to provide a 'hearing' of some dimensions in conjunction with the mandated procedures for reconsideration. Whether a more comprehensive hearing than §§ 609.22—609.24 of the regulations now provide is required either by the language of § 8506(a) or by the Constitution—and we intimate no views on those questions—the regulations of the Department of Labor, as implemented by the federal agencies subject to those regulations, should be the focal point of the inquiry.7
12
The absence of any indication in the record that this federal administrative procedure was followed, is in our view, a bar to our consideration of appellants' attack upon the validity of the regulations. It is true that the fact that the employing agency's decision is not statutorily subject to judicial review does not preclude review of the agency's procedure used to reach that determination. See Cole v. Young, 351 U.S. 536, 76 S.Ct. 861, 100 L.Ed. 1396 (1956); L. Jaffe, Judicial Control of Administrative Action 371—372 (1965). But there are sound practical reasons for declining such review where the agency has not had the opportunity to apply its challenged procedure to a determination that is clearly within its subject-matter jurisdiction.
13
The most obvious reasons relate to economy. A favorable agency decision on the merits of the claim may moot the objections to the procedure employed. And 'it is generally more efficient for the administrative process to go forward without interruption than it is to permit the parties to seek aid from the courts at various intermediate stages,' McKart v. United States, 395 U.S. 185, 194, 89 S.Ct. 1657, 1663, 23 L.Ed.2d 194 (1969).
14
But there are also persuasive reasons more directly related to the presentation of the procedural claim, as we have noted in cases involving the analogous requirement that administrative remedies be exhausted prior to application for judicial review of the merits. See McGee v. United States, 402 U.S. 479, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971); Rosado v. Wyman, 397 U.S. 397, 406 407, 90 S.Ct. 1207, 1214—1215, 25 L.Ed.2d 442 (1970). Appellants' criticism, on this appeal, of the federal administrative remedy as an 'ex parte' determination amply demonstrates the point. The requlations clearly require that the agency receive and consider any additional information the employee submits. Thus, the question is not whether there is to be some form of adversary proceeding, but whether that proceeding must be as elaborate as appellants contend.8 That determination would be hazardous on the scant record before us. The regulations appear capable of accommodating various kinds of issues, and their requirements should be construed with an eye to the nature of the agencies involved and the employment relationship. We cannot know at this stage what particular procedures will be applied, whether credibility determinations will arise, how they will be treated if they do, or even what official within a federal employing agency will be responsible for the reconsideration. Removal of these uncertainties from the case may significantly advance judicial resolution of appellants' claims, while occasioning no great cost to them.9
15
But we cannot determine on this record whether the District Court would have dismissed this suit for failure to invoke the federal administrative procedures. The adverse notification provided by New York clearly fails to satisfy the notice requirement of 20 CFR § 609.20 of the Secretary's regulations. Without that crucial information concerning their rights, appellants could hardly be found to have waived them by proceeding in the state forum.10 Yet the record is silent concerning whether such information was provided, either with the state notice or otherwise. Under the circumstances, we vacate the District Court's dismissal of the suit as to both federal and state defendants and remand to the District Court with directions to determine whether appellants should be permitted to invoke the federal procedures. In such case, the suit should be retained on the docket for final decision following the federal redetermination proceedings.
16
So ordered.
17
Dismissal vacated and case remanded.
APPENDIX TO OPINION OF THE COURT
Code of Federal Regulations
Title 20: Employees' Benefits
18
Part 609—Unemployment Compensation for Federal Civilian Employees
19
s 609.1 Definitions.
20
(b) 'Federal agency' means any department, agency, or governmental body of the United States, including any instrumentality wholly or partially owned by the United States, employing individuals in Federal civilian service.
21
(f) 'Federal findings' means the facts found by a Federal agency as to (1) whether an individual has performed Federal civilian service for such agency during the base period specified on a Form ES—931; (2) the period or periods of such Federal civilian service; (3) the individual's Federal civilian wages for the base period specified on such form; and (4) the reasons for termination of his Federal civilian service.
22
s 609.6 Federal findings on Form ES—931.
23
(a) Within 4 work days after receipt from a State agency or the Secretary of a Form ES—931 a Federal agency shall make its Federal findings, complete all copies of the form, and transmit its Federal findings to the State agency or the Secretary, as appropriate, on such form or as a part thereof. If documents necessary for completion of a Form ES—931 have been assigned to an agency records center or the Federal Records Center in St. Louis the Federal agency shall obtain the necessary information from the records center. Any records center shall give priority to such request.
24
(b) If a completed Form ES—931 cannot be returned within 4 work days of receipt the Federal agency immediately shall inform the State agency or the Secretary, as appropriate, and shall include an estimated date by which the completed form will be returned.
25
(c) Each Federal agency shall maintain a control of the Form ES—931 received by it that will enable it to ascertain at any time the number of such forms that have not been returned to the requesting State agency or the Secretary and the date of the Federal agency's receipt of such unreturned forms.
26
s 609.7 Corrected Federal findings.
27
If a Federal agency ascertains at any time within 1 year after it has returned a completed Form ES—981 (sic) to a State agency or the Secretary that any of its Federal findings were erroneous it shall promptly correct its error and forward corrected Federal findings to the State agency or the Secretary, as appropriate.
28
s 609.8 Answering requests for additional information.
29
On receipt of a request for additional information under § 609.22 a Federal agency except where it would be inconsistent with general policies followed in the case of separations for security reasons shall furnish in writing to the requesting authority such additional information as (1) will enable a Federal civilian employee to understand the basis for Federal findings or (2) will enable the requesting authority to correctly apply a State unemployment compensation law.
30
s 609.9 Answering requests for correction of Federal findings.
31
On receipt of a request for reconsideration and correction of Federal findings under § 609.23 a Federal agency shall consider the information supplied in connection with such request and shall review its Federal findings. The Federal agency promptly shall correct any errors or omissions in its Federal findings and shall affirm, modify, or reverse any or all of its Federal findings in writing. The Federal agency then shall forward its reconsidered Federal findings to the requesting authority. s 609.18 Finality of Federal findings.
32
(a) Federal findings under § 609.6 or § 609.7 shall be final and conclusive except that Federal findings which contradict the reasons given by a Federal civilian employee for his resignation or which relate to the validity of such reasons shall not be final and conclusive unless such employee has been afforded an opportunity for a fair hearing on any issue involved in the alleged reasons for resignation. Such opportunity for hearing may be afforded by the Federal agency or the U.S. Civil Service Commission at any appropriate stage with respect to any personnel action, or upon request for reconsideration under § 609.23.
33
(b) Additional information submitted by a Federal agency under § 609.8 shall be considered part of the original Federal findings which, as so supplemented, shall be final and conclusive, as provided in paragraph (a) of this section.
34
(c) Federal findings which after reconsideration under § 609.9 have been affirmed, modified, or reversed by the Federal agency shall be final and conclusive, as provided in paragraph (a) of this section.
35
s 609.19 Determination of entitlement.
36
(a) Entitlement. The State agency of a State whose unemployment compensation law applies to a Federal civilian employee under § 609.15 promptly shall determine such employee's entitlement to compensation and pay such compensation in the same amounts, on the same terms, and subject to the same conditions as would apply to such employee if his Federal civilian service and wages had been included as employment and wages under the State unemployment compensation law except that § 609.31 shall apply to the Virgin Islands agency in lieu of this paragraph.
37
(b) Determination in absence of Form ES—931. (1) If a Form ES 931 has not been received from a Federal agency by the 12th day after such form was forwarded to such agency, a State agency shall determine entitlement to compensation on the basis of a Federal civilian employee's statement under oath if in addition to furnishing such statement such employee submits for examination any document issued by a Federal agency (as for example Standard Form 50 or W—2) showing that he performed service for such agency.
38
(2) If a Form ES—931 received from a Federal agency after such determination contains Federal findings which would result in a change in the Federal civilian employee's entitlement to compensation the State agency promptly shall make a redetermination and give such employee notice thereof. All payments of compensation made after such redetermination shall be in accordance therewith and all payments of compensation made prior to such determination shall be adjusted in accordance therewith. If the Federal civilian employee has received compensation not in accordance with the redetermination § 609.21 shall apply.
39
s 609.20 Notice of determination.
40
A notice of determination or redetermination shall be given to a Federal civilian employee with respect to any determination or redetermination under § 609.19 or § 609.31. Such notice shall be given in the same manner as notice of determination or redetermination is given to claimants under the State unemployment compensation law. The notice shall include the Federal findings and shall inform the Federal civilian employee of his right to additional information or reconsideration and correction of such findings. The State agency shall set forth the Federal findings in sufficient detail to enable the Federal civilian employee to determine whether he wishes to request reconsideration or correction of any such findings.
41
s 609.22 Procedure for obtaining additional information.
42
(a) Request by Federal civilian employee. If a Federal civilian employee needs additional information in order to understand the basis for a Federal finding in connection with a claim for compensation under the UCFE program he may file a request through the State agency, or the Secretary if the State agency does not determine claims under the UCFE program, for more specific information from the Federal agency which made such Federal finding. Such request shall be mailed by the State agency or the Secretary to the appropriate Federal agency. If notice of a determination of entitlement has been given to the Federal civilian employee before a request for additional information is filed, such employee must file concurrently with such request a timely appeal or request for redetermination under the State unemployment compensation law. No hearing on such appeal shall be scheduled before the State agency receives from the Federal agency the additional information requested.
43
(b) Request by State agency. If at any stage of determining a Federal civilian employee's entitlement to compensation a State agency, State administrative appeal authority (including the referee in the Virgin Islands), or the Secretary determines that Federal findings do not contain sufficient information to enable correct application of the State unemployment compensation law a request may be made for additional facts from the appropriate Federal agency. s 609.23 Procedure for obtaining correction of Federal findings.
44
(a) Request by Federal civilian employee. A Federal civilian employee who wishes a Federal agency to reconsider and correct Federal findings in connection with a claim for compensation under the UCFE program may file a request for such reconsideration and correction, together with such information as supports his request, through the State agency before which the claim is pending or through the Secretary if the State agency does not determine claims under the UCFE program. Such request shall be mailed by the State agency or the Secretary to the appropriate Federal agency. If notice of a determination of entitlement has been given to the Federal civilian employee before a request for reconsideration and correction of Federal findings is filed, such employee must file concurrently with such request a timely appeal under the State unemployment compensation law. No hearing on such appeal shall be scheduled before the State agency receives from the Federal agency its reconsidered Federal findings.
45
(b) Request by State agency. A State agency, State administrative appeal authority (including the referee in the Virgin Islands), or the Secretary may request a Federal agency to reconsider and correct its Federal findings at any stage in determining a Federal civilian employee's entitlement to compensation.
46
s 609.24 Procedure after correction of Federal findings.
47
(a) A State agency shall forward to the affected Federal civilian employee a copy of reconsidered Federal findings or additional information furnished by a Federal agency.
48
(b) If additional information or reconsidered Federal findings provide a basis under the State unemployment compensation law for the State agency to redetermine such employee's entitlement to compensation the State agency promptly shall make a redetermination and give notice thereof to the affected Federal civilian employee.
49
(c) If a State agency after reviewing additional information or reconsidered Federal findings submitted by a Federal agency does not consider that there is a basis for making a redetermination the State agency promptly shall set a date for hearing the Federal civilian employee's appeal.
50
(d) If Federal findings are corrected under § 609.7 a State agency shall notify the affected Federal civilian employee of such correction. If the State unemployment compensation law permits and the corrected Federal findings afford a basis for such action the State agency shall redetermine such employee's entitlement to compensation and give notice of redetermination to such employee.
51
s 609.25 Appeal by Federal civilian employee.
52
(a) A determination or redetermination by a State agency as to a Federal civilian employee's entitlement to compensation is subject to review, except for Federal findings which are final and conclusive under § 609.18, in the same manner and to the same extent as other determinations of entitlement under the State unemployment compensation law.
1
That subsection provides:
'(a) Each agency of the United States and each wholly or partially owned instrumentality of the United States shall make available to State agencies which have agreements under this subchapter, or to the Secretary of Labor, as the case may be, such information concerning the Federal service and Federal wages of a Federal employee as the Secretary considers practicable and necessary for the determination of the entitlement of the Federal employee to compensation under this subchapter. The information shall include the findings of the employing agency concerning—
'(1) whether or not the Federal employee has performed Federal service;
'(2) the periods of Federal service;
'(3) the amount of Federal wages; and
'(4) the reasons for termination of Federal service.
'The employing agency shall make the findings in the form and manner prescribed by regulations of the Secretary. The regulations shall include provision for correction by the employing agency of errors and omissions. Findings made in accordance with the regulations are final and conclusive for the purpose of sections 8502(d) and 8503(c) of this title. This subsection does not apply with respect to Federal service and Federal wages covered by subchapter II of this chapter.'
2
The pertinent sections of 20 CFR appear in the Appendix to this opinion.
3
The District Court stated no reasons to support this holding. Appellants attack it, arguing that mandamus jurisdiction lies where the act of a federal official, although authorized by statute, is alleged to violate the Constitution, citing Garfield v. United States ex rel. Goldsby, 211 U.S. 249, 29 S.Ct. 62, 53 L.Ed. 168 (1908). Alternatively, they contend that jurisdiction over the federal defendants lies under 28 U.S.C. § 1343(3) so long as there has been joint participation by state and federal officers under color of state law, see Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). At oral argument the Assistant to the Solicitor General stated: '(W)e do not contest jurisdiction under (the) mandamus statute.' Tr. of Oral Arg. 26. See also Brief for Federal Appellees 6 n. 2.
We have no occasion to address appellants' contentions that the District Court has jurisdiction to hear the constitutional claims against the federal defendants. There is jurisdiction of the federal defendants in any event for purposes of consideration of the appellants' statutory claim that the Secretary has disobeyed a nondiscretionary command in § 8506 that he provide for a full hearing. See infra, at 621—622. Our remand directs that the District Court reconsider that claim as related to the availability under the Secretary's regulations of a right of reconsideration and correction of the findings of the employing agencies.
4
Appellant Green unsuccessfully sought review of the factual basis for his discharge by the Civil Service Commission under 5 CFR § 315.806. But, as provided by that regulation, a probationary federal employee has no right to appeal a discharge, and is only entitled to a hearing on the basis of claims that the discharge resulted from discrimination based on race, color, religion, sex, political persuasion, marital status, or physical handicap, or that the procedure used violated 5 CFR § 315.805.
5
Section 8502, 5 U.S.C., provides in part:
'(b) The agreement shall provide that compensation will be paid by the State to a Federal employee in the same amount, on the same terms, and subject to the same conditions as the compensation which would be payable to him under the unemployment compensation law of the State if his Federal service and Federal wages assigned under section 8504 of this title to the State had been included as employment and wages under that State law.
'(d) A determination by a State agency with respect to entitlement to compensation under an agreement is subject to review in the same manner and to the same extent as determinations under the State unemployment compensation law, and only in that manner and to that extent.'
See 20 CFR § 609.14; N.Y.Labor Law § 500 et seq. (1965), McKinney's Consol.Laws, c. 31. Both appellants were denied compensation on the basis of § 593, which includes as grounds for denial 'voluntary separation without good cause' and 'misconduct in connection with his employment.'
6
Both appellants were entitled to a hearing, N.Y.Labor Law § 620, review by the Appeals Board, id., § 621, and state judicial review on questions of law, id., § 624.
7
We note that an employee who resigns must, pursuant to 20 CFR § 609.18, be 'afforded an opportunity for a fair hearing on any issue involved in the alleged reasons for resignation,' if the federal findings are to be final and conclusive. The Solicitor General argues that there are sound reasons for limiting such opportunities to resignees since the agency 'will have no information concerning (their) reasons.' Brief for Federal Appellees 28. At this stage of the litigation, however, we have no way of knowing what protections this procedure includes, how it differs from the procedures available to discharged employees, or what kinds of 'resignations' it will cover.
8
'(C)onsideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.' Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961).
See Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971).
9
Cf. McKart v. United States, 395 U.S. 185, 196—197, 89 S.Ct. 1657, 1664, 23 L.Ed.2d 194 (1969).
10
At oral argument the Assistant to the Solicitor General suggested that appellants might now be barred from obtaining reconsideration and correction of the findings by the passage of time. We find no such limitation in the regulations. Indeed, the only time limitation imposed with regard to corrections is to be found in 20 CFR § 609.7, which requires the federal employing agency to 'promptly correct its error' if it ascertains within one year of its initial submission of findings to the State that 'any of its Federal findings were erroneous.' That this is an independent obligation, imposed on the agency without regard to the receipt of a request for reconsideration by the employee, is clear both from the language of the regulation and from the fact that all other time limits imposed by the regulations are designed to protect the employee from delay by the agency. See, e.g., 20 CFR §§ 609.6, 609.19(b). Compare id., § 609.24(a), with id., § 609.24(d). Moreover, a construction of the regulation as barring reconsideration and correction despite the State's failure to provide the notice required by the regulations might raise independent constitutional problems.
| 34
|
414 U.S. 573
94 S.Ct. 806
39 L.Ed.2d 9
SEA-LAND SERVICES, INC., Petitioner,v.Helen Stein GAUDET, Administratrix of the Estate of Awtrey C. Gaudet, Sr.
No. 72—1019.
Argued Nov. 7, 1973.
Decided Jan. 21, 1974.
Rehearing Denied March 18, 1974.
See 415 U.S. 986, 94 S.Ct. 1582.
Syllabus
Respondent's husband, a longshoreman, was severely injured aboard petitioner's vessel in Louisiana navigable waters. Shortly after termination of an action based on unseaworthiness, in which he recovered damages for past and future wages, pain and suffering, and medical and incidental expenses, the husband died and respondent brought this maritime wrongful-death action for damages suffered by her. The District Court dismissed respondent's suit on grounds of res judicata and failure to state a claim. The Court of Appeals reversed, on the basis of Moragne v. State Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339. Held: Respondent's maritime wrongful-Death action is not barred by decedent's recovery in his lifetime for damages for his personal injuries. Pp. 575—595.
(a) Moragne v. States Marine Lines, supra, created a true wrongful-death remedy that is founded upon the death itself and is independent of any action the decedent may have had for his own personal injuries, and because respondent's suit this involves a different cause of action from decedent's, it is not precluded by res judicata. Pp. 575—583.
(b) The maritime wrongful-death remedy permits a decedent's dependents to recover damages for loss of support, services, and society, as well as damages for funeral expenses. Pp. 583—591.
(c) All but the first of the foregoing elements of damages could not accrue until the decedent's death and therefore could not subject petitioner to double liability. Though there is an apparent overlap between a decedent's recovery for loss of future wages and the dependents' subsequent claim for support, the doctrine of collateral estoppel would bar dependents from recovering for loss of support to the extent that the decedent had recovered for future wages. Pp. 591—595.
436 F.2d 1331, affirmed.
Stuart A. McClendon, Metairie, La., for petitioner.
George W. Reese, New Orleans, La., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Moragne v. States Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), overruling The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886), held that an action for wrongful death based on unseaworthiness is maintainable under federal maritime law, but left the shaping of the new nonstatutory action to future cases. The question in this case is whether the widow of a longshoreman may maintain such an action for the wrongful death of her husband—alleged to have resulted from injuries suffered by him while aboard a vessel in navigable waters—after the decedent recovered damages in his lifetime for his injuries.
2
Respondent's husband suffered severe injuries while working as a longshoreman aboard petitioner's vessel, the S.S. Claiborne, in Louisiana navigable waters. He recovered $140,000 for his permanent disability, physical agony, and loss of earnings in an action based on unseaworthiness,1 but died shortly after the action was terminated. Respondent brought this wrongful-death action in the District for the Eastern District of Louisiana for damages suffered by her. Based on her husband's recovery, the District Court dismissed the widow's suit on grounds of Res judicata and failure to state a claim. The Court of Appeals for the Fifth Circuit reversed, holding that Moragne gave 'Mrs. Gaudet . . . a compensable cause of action for Mr. Gaudet's death wholly apart from and not extinguished by the latter's recovery for his personal injuries . . ..' 463 F.2d 1331, 1332 (1972). We granted certiorari, 411 U.S. 963, 93 S.Ct. 2141, 36 L.Ed. 683 (1973), and now affirm.
3
* The harshness of Harrisburg rule that in the absence of a statute, there is no maritime action for wrongful death, was only partially relieved by enactment there is no maritime action for wrongful death, was only partially relieved by enactment of federal and state wrongful death statutes.2 The deathon the High Seas Act, 41 Stat. 537, 46 U.S.C. §§ 761—768, created a wrongful-death action for death outside the three-mile limit.3 The Jones Act, 41 Stat. 1007, 46 U.S.C. § 688, incorporating the Federal Employers' Liability Act, 35 Stat. 65, 45 U.S.C. §§ 51—60, established such an action based on negligence for the wrongful death of a seaman regardless of the situs of the wrong; but otherwise, wrongful-death actions for deaths occurring on navigable waters within the three-mile territorial waters of a State depended upon whether the State had enacted a wrongful-death statute and, if so, whether the statute permitted recovery.4
4
Moragne reflected dissatisfaction with this state of the law that illogically and unjustifiably deprived the dependents of many maritime death victims of an adequate remedy for their losses. Three clearly unjust consequences were of particular concern:
5
'The first of these is simply the discrepancy produced whenever the rule of The Harrisburg holds sway: within territorial waters, identical conduct violating federal law (here the furnishing of an unseaworthy vessel) produces liability if the victim is merely injurd, but frequently not if he is killed. . . .
6
'The second incongruity is that identical breaches of the duty to provide a seaworthy ship, resulting in death, produce liability outside the three-mile limit—since a claim under the Death on the High Seas Act may be founded on unseaworthiness, see Kernan v. American Dredging Co., 355 U.S. 426, 430 n. 4 (78 S.Ct. 394, 397, 2 L.Ed.2d 382) (1958)—but not within the territorial waters of a State whose local statute excludes unseaworthiness claims. . . .
7
'The third, and assertedly the 'strangest' anomaly is that a true seaman—that is, a member of a ship's company, covered by the Jones Act—is provided no remedy for death caused by unseaworthiness within territorial waters, while a longshoreman, to whom the duty of seaworthiness was extended only because he performs work traditionally done by seamen, does have such a remedy when allowed by a state statute (footnote omitted).' 398 U.S., at 395—396, 90 S.Ct., at 1784.
8
In overruling The Harrisburg, Moragne ended these anomalies by the creation of a uniform federal cause of action for maritime death, designed to extend to the dependents of maritime wrongful-death victims admiralty's 'special solicitude for the welfare of those men who under (take) to venture upon hazardous and unpredictable sea voyages.' Id., at 387, 90 S.Ct., at 1780. Our approach to the resolution of the issue before us must necessarily be consistent with the extension of this 'special solicitude' to the dependents of the seafaring decedent.
9
Petitioner, Sea-Land Services, Inc. (Sea-Land), would attach no significance to this extension in shaping the maritime wrongful-death remedy. It argues that the wrongful-death remedy should recognize no loss independent of the decedent's claim for his personal injuries, and therefore that respondent had a wrongful-death remedy only 'in the event Gaudet failed to prosecute (his own claim) during his lifetime.' Brief for Petitioner 6. But Moragne had already implicitly rejected that argument; for we there recognized that a single tortious act might result in two distinct, though related harms, giving rise to two separate causes of action: 'in the case of mere injury, the person physically harmed is made whole for his harm, while in the case of death, those closest to him—usually spouse and children—seek to recover for their total loss of one on whom they depended.' Id., at 382, 90 S.Ct., at 1778. Thus, Moragne created a true wrongful-death remedy—founded upon the death itself and independent of any action the decedent may have had for his own personal injuries.5 Because the respondent's suit involves a different cause of action, it is not precluded by res judicata. For res judicata operates only to bar
10
'repetitious suits involving the same cause of action. (The bar) rests upon considerations of economy of judicial time and public policy favoring the establishment of certainty in legal relations. The rule provides that when a court of competent jurisdiction has entered a final judgment on the merits of a cause of action, the parties to the suit and their privies are thereafter bound 'not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.' Cromwell v. County of Sac, 94 U.S. 351, 352 (24 L.Ed. 195). The judgment puts an end to the cause of action, which cannot again be brought into litigation between the parties upon any ground whatever, absent fraud or some other factor invalidating the judgment. See Von Moschzisker, 'Res Judicata,' 38 Yale L.J. 299; Restatement of the Law of Judgments §§ 47, 48.' Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 719, 92 L.Ed. 898 (1948).
11
To be sure, a majority of courts interpreting state and federal wrongful-death statute have held that an action for wrongful death is barred by the decedent's recovery for injuries during his lifetime. But the bar does not appear to rest in those cases so much upon principles of res judicata or public policy as upon statutory limitations on the wrongful-death action. As one authority has noted, '(t)he fact that all civil remedies for wrongful death derive from statute has important consequences. Since the right was unknown to common law, the legislatures which created the right were free to impose restrictions upon it.' 2 Harper & James, § 24.1 p. 1285. Thus, England's Lord Campbell's Act,6 the first wrongful-death statute permits recovery 'whensoever the Death of a Person shall be caused by (the) wrongful Act . . . (of another) and the Act . . . is such as would (if Death had not ensued) have entitled the Party injured to maintain an Action and recover Damages in respect thereof . . ..' Early English cases interpreting the Act held that this language conditioned wrongful-death recovery upon the existence of an actionable cause of the decedent at his death;7 if the deceased and reduced his claim to judgment and settled with or released his tortfeasor, and therefore up to the time he died could not have maintained a further action for his injuries, his dependents could have no cause of action for his wrongful death. Since Lord Campbell's Act became the prototype of American wrongful-death statutes, most state statutes contained nearly identical language and have been similarly interpreted by state courts.8 Though the federal wrongful-death statutes do not contain the same controversial language, the FELA, at least, has been held to be 'essentially identical with' Lord Campbell's Act, Michigan C.R. Co. v. Vreeland, 227 U.S. 59, 69, 33 S.Ct. 192, 195, 57 L.Ed. 417 (1913), and therefore similar restrictions have been placed on FELA wrongful death recovery. Mellon v. Goodyear, 277 U.S. 335, 345, 48 S.Ct. 541, 544, 72 L.Ed. 906 (1928).9
12
Moragne, on the other hand, requires that the shape of the new maritime wrongful-death remedy (not a statutory creation but judge-made, see The Tungus v. Skovagaard, 358 U.S. 588, 611, 79 S.Ct. 503, 3 L.Ed.2d 524 (1959) (opinion of Brennan, J.)) be guided by the principle of maritime law that 'certainly it better becomes the humane and liberal character of proceedings in admiralty to give than to withhold the remedy, when not required to withhold it by established and inflexible rules,' The Sea Gull, 21 F.Cas. 909 (No. 12,578) (C.C.Md.1865), quoted in Moragne, 398 U.S. at 387, 90 S.Ct., at 1781. Since the policy underlying the remedy is to insure compensation of the dependents for their losses resulting from the decedent's death, the remedy should not be precluded merely because the decedent, during his lifetime, is able to obtain a judgment for his own personal injuries. No statutory language or 'established and inflexible rules' of maritime law require a contrary conclusion.10
II
13
Sea-Land argues that, if dependents are not prevented from bringing a separate cause of action for wrongful death in cases where the decedent has already received a judgment for his personal injuries, then necessarily it will be subject to double liability. In order to evaluate this argument it is necessary first to identify the particular harms suffered by the dependents, for which the maritime wrongful-death remedy permits recovery of damages. In identifying these compensable harms, we are not without useful guides; for in Moragne we recognized that with respect to 'particular questions of the measure of damages, the courts will not be without persuasive analogy for guidance. Both the Death on the High Seas Act and the numerous state wrongful-death acts have been implemented with success for decades. The experience thus built up counsels that a suit for wrongful death raises no problems unlike those that have long been grist for the judicial mill.' 398 U.S., at 408, 90 S.Ct., at 1792. Our review of those authorities, and the policies of maritime law, persuade us that, under the maritime wrongful-death remedy, the decedent's dependents may recover damages for their loss of support, services, and society, as well as funeral expenses.
14
Recovery for loss of support has been universally recognized,11 and includes all the financial contributions that the decedent would have made to his dependents had he lived. Similarly, the overwhelming majority of state wrongful-death acts12 and courts interpreting the Death on the High Seas Act13 have permitted recovery for the monetary value of services the decedent provided and would have continued to provide but for his wrongful death.14 Such services include, for example, the nurture, training, education, and guidance that a child would have received had not the parent been wrongfully killed.15 Services the decedent performed at home or for his spouse are also compensable.16
15
Compensation for loss of society, however, presents a closer question. The term 'society' embraces a broad range of mutual benefits each family member receives from the others' continued existence, including love, affection, care, attention, companionship, comfort, and protection.17 Unquestionably, the deprivation of these benefits by wrongful death is a grave loss to the decedent's dependents. Despite this fact, a number of early wrongful-death statutes were interpreted by courts to preclude recovery for these losses on the ground that the statutes were intended to provide compensation only for 'pecuniary loss,' and that the loss of society is not such an economic loss.18 Other wrongful-death statutes contain express language limiting recovery to pecuniary losses;19 for example, the Death on the High Seas Act limits recovery to 'a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought. . .,' 46 U.S.C. § 762 (emphasis added), and consequently has been construed to exclude recovery for the loss of society.20
16
A clear majority of States, on the other hand, have rejected such a narrow view of damages, and, either by express statutory provision or by judicial construction, permit recovery for loss of society.21 This expansion of damages recoverable under wrongful-death statutes to include loss of society has led one commentator to observe that '(w)hether such damages are classified as 'pecuniary,' or recognized and allowed as nonpecuniary, the recent trend is unmistakably in favor of permitting such recovery.' Speiser Wrongful Death 218. Thus, our decision to permit recovery for loss of society aligns the maritime wrongful-death remedy with a majority of state wrongful-death statutes.22 But in any event, our decision is compelled if we are to shape the remedy to comport with the humanitarian policy of the maritime law to show 'special solicitude' for those who are injured within its jurisdiction.23
17
Objection to permitting recovery for loss of society often centers upon the fear that such damages are somewhat speculative and that factfinders will return excessive verdicts.24 We were not unaware of this objection in Moragne, where we said:
18
'(O)ther courts have recognized that calculation of the loss sustained by dependents or by the estate of the deceased, which is required under most present wrongful—death statutes . . . does not present difficulties more insurmountable than assessment of damages for many nonfatal personal injuries.' 398 U.S., at 385, 90 S.Ct., at 1779.
19
For example, juries are often called upon to measuire damages for pain and suffering, mental anguish in disfigurement cases, or intentional infliction of emotional harm. In fact, since the 17th century, juries have assessed damages for loss of consortium—which encompasses loss of society—in civil actions brought by husbands whose wives have been negligently injured.25 More recently, juries have been asked to measure loss of consortium suffered by wives whose husbands have been negligently harmed.26 Relying on this history, the Florida Supreme Court recognized as early as 1899 that the damages for loss of society recovered by a wife for the wrongful death of her husband were 'no more fanciful or speculative than the frugality, industry, usefulness, attention, and tender solicitude of a wife (all of which a husband might recover at common law in an action for consortium), and the one can be compensated (as easily) by that simple standard of pecuniary loss . . . as the other.' Florida C. & P.R. Co. v. Foxworth, 41 Fla. 1, 73, 25 So. 338, 348.
20
We are confident that the measure of damages for loss of society in a maritime wrongful-death action can 'be left to turn mainly upon the good sense and deliberate judgment of the tribunal assigned by law to ascertain what is a just compensation for the injuries inflicted.' The 'City of Panama', 101 U.S. 453, 464, 25 L.Ed. 1061 (1880). As in all damages awards for tortious injury, '(i) nsistence on mathematical precision would be illusory and the judge or juror must be allowed a fair latitude to make reasonable approximations guided by judgment and practical experience,' Whitaker v. Blidberg Rothchild Co., 296 F.2d 554, 555 (CA4 1961). Moroever, appellate tribunals have amply demonstrated their ability to control excessive awards, see, e.g., Moore-McCormack Lines, Inc. v. Richardson, 295 F.2d 583 (CA2 1961); Dugas v. National Aircraft Corp., 438 F.2d 1386 (CA3 1971).
21
Finally, in addition to recovery for loss of support, services, and society, damages for funeral expenses may be awarded under the maritime wrongful-death remedy in circumstances where the decedent's dependents have either paid for the funeral or are liable for its payment. A majority of States provided for such recovery under their wrongful-death statutes.27 Furthermore, although there is a conflict over whether funeral expenses are compensable under the Death on the High Seas Act, compare The Culberson, 61 F.2d 194 (CA3 1932), with Moore v. The OS Fram, 226 F.Supp. 816 (SD Tex.1963), aff'd, sub nom. Wilhelm Seafoods, Inc. v. Moore, 328 F.2d 686 (CA5 1964), it is clear that funeral expenses were permitted under the general maritime law prior to The Harrisburg, see, e.g., Hollyday v. The David Reeves, 12 F.Cas. 386 (No. 6,625) (Md.1879). We therefore find no persuasive reason for not following the earlier admiralty rule and thus hold that funeral expenses are compensable.28
22
Turning now to Sea-Land's double-liability argument, we note that, in contrast to the elements of damages which we today hold may be recovered in a maritime wrongful-death action, the decedent recovered damages only for his loss of past and future wages, pain and suffering, and medical and incidental expenses. Obviously, the decedent's recovery did not include damages for the dependents' loss of services or of society, and funeral expenses. Indeed, these losses—unique to the decedent's dependents—could not accrue until the decedent's death. Thus, recovery of damages for these losses in the maritime wrongful-death action will not subject Sea-Land to double liability or provide the dependents with a windfall.
23
There is, however, an apparent overlap between the decedent's recovery for loss of future wages and the dependents' subsequent claim for support.29 In most instances, the dependents' support will derive, at least in part, from the decedent's wages. But, when a tortfeasor has already fully compensated the decedent, during his lifetime, for his loss of future wages, the tortfeasor should not be required to make further compensation in a subsequent wrongful-death suit for any portion of previously paid wages. Any potentional for such double liability can be eliminated by the application of familiar principles of collateral estoppel to preclude a decedent's dependents from attempting to relitigate the issue of the support due from the decedent's future wages.30
Collateral estoppel applies
24
'where the second action between the same parties is upon a different cause or demand . . .. In this situation, the jdugment in the prior action operates as an estoppel, not as to matters which might have been litigated and determined, but 'only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.' Cromwell v. County of Sac, 353 (94 U.S. 351). And see Russell v. Place, 94 U.S. 606 (24 L.Ed. 214); Southern Pacific R. Co. v. United States, 168 U.S. 1, 48 (18 S.Ct. 18, 27, 42 L.Ed. 355); Mercoid Corp. v. Mid-Continent Co., 320 U.S. 661, 671 (64 S.Ct. 268, 273, 88 L.Ed. 376). Since the cause of action involved in the second proceeding is not swallowed by the judgment in theprior suit, the parties are free to litigate points which were not at issue in the first proceeding, even though such points might have been tendered and decided at that time. But maters which were actually litigated and determined in the first proceeding cannot later be relitigated.' Commissioner of Internal Revenue v. Sunnen, 333 U.S., at 597—598, 68 S.Ct., at 719.
25
And while the general rule is that nonparties to the first action are not bound by a judgment or resulting determination of issues, see Blonder-Tongue v. University Foundation, 402 U.S. 313, 320—327, 91 S.Ct. 1434, 1438—1442, 28 L.Ed.2d 788 (1971), several exceptions exist. The pertinent exception here is that nonparties may be collaterally estopped from relitigating issues necessarily decided in a suit brought by a party who acts as a fiduciary representative for the beneficial interest of the nonparties.31 In such cases, 'the beneficiaries are bound by the judgment with respect to the interest which was the subject of the fiduciary relationship; they are . . . bound by the rules of collateral estoppel in suits upon different causes of action,' F. James, Civil Procedure § 11.28, p. 592 (1965).
26
Under the prevailing American rule, a tort victim suing for damages for permanent injuries is permitted to base his recovery 'on his prospective earnings for the balance of his life expectancy at the time of his injury undiminished by any shortening of that expectancy as a result of the injury,' 2 Harper & James § 24.6, pp. 1293—1294 (emphasis in original).32 Thus, when a decedent brings his own personal-injury action during his lifetime and recovers damages for his lost wages he acts in a fiduciary capacity to the extent that he represents his dependents' interest in that portion of his prospective earnings which, but for his wrongful death, they had a reasonable expectation of his providing for their support. Since the decedent's recovery of any future wages will noramlly be dependent upon his fully litigating that issue, we need not fear that applying principles of collateral estoppel to preclude the decedent's dependents' claim for a portion of those future wages will deprive the dependants of their day in court.
27
The judgment of the Court of Appeals is affirmed.
28
Affirmed.
29
Mr. Justice POWELL, with whom THE CHIEF JUSTICE Mr. Justice STEWART, and Mr. Justice REHNQUIST join, dissenting.
30
The Court today rewrites several areas of the admiralty law of wrongful death. In holding that a wrongful-death action may be brught although the decedent has previously recovered in his own suit based on the same wrongful act, the Court disregards a major body of maritime and state law. The majority opinion also opens up an area of sentimental damages that has not been allowed under traditional admiralty doctrine. It hopes to prevent double recovery through a novel application of collateral estoppel principles, which rests in turn on the unprecedented concept that a seriously injured person acts as a fiduciary for an undefined class of potential beneficiaries with regard to his own recovery in his own personal-injury action. Given the sweep of the majority's approach, the upshot in many areas will be a nearly total nullification of the congressional enactments previously governing maritime wrongful death. Except for a technical joinder of counts to obtain a jury trial and thus to maximize the benefits promised by the Court's opinion, no one entitled to rely on the admiralty doctrine of unseaworthiness will, after today, seek relief under the federal maritime wrongful-death statutes. Several limitations built into those congressional enactments have been swept aside by the majority's decision.
31
In reaching these results, the majority purports to apply Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). It is true that Moragne overruled The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886), and held that an action for death caused by a violation of maritime duties would lie under the general law of admiralty. But Moragne does not support the Court's far-reaching holding in this case. Indeed, Moragne, which was essentially a response to a gap in maritime remedies for deaths occurring in state territorial waters, explicitly counsels against the sort of tabula rasa restructuring of the law of admiralty undertaken by the majority. Writing for the Court, Mr. Justice Harlan stressed the need to 'assure uniform vindication of federal policies . . ..' 398 U.S., at 401, 90 S.Ct., at 1788. He eschewed 'the fashioning of a whole new body of federal law . . .,' id., at 405, 90 S.Ct., at 1790, believing that the lower courts would have slight difficulty 'in applying accepted maritime law to actions for wrongful death.' Id., at 406, 90 S.Ct., at 1791. He stated that those courts would find 'persuasive analogy for guidance' in the accumulated experiences under the state wrongful-death statutes and the Death on the High Seas Act, 46 U.S.C. § 761 et seq., 398 U.S., at 408, 90 S.Ct., at 1791. He emphasized the consistency of the Court's holding with the congressional purposes behind the Jones Act, 46 U.S.C. § 688. 398 U.S., at 400—402, 90 S.Ct., at 1787—1788.
32
The Court how now rejected these guidelines so recently laid down in Moragne. Disregarding the source of law endorsed by Moragne, as well as the concern for uniformity expressed in that opinion, the Court has fashioned a new substantive right of recovery in conflict with 'accepted maritime law' and a new body of law with regard to the elements of damages recoverable in admiralty wrongful-death actions. In my view, these unprecedented extensions of admiralty law exhibit little deference for stare decises or, indeed, for enunciated congressional policy. I also believe these new doctrines are unsound as a matter of principle, will create difficulty and confusion in the litigation of admiralty cases, and are very likely to result in duplicative recoveries.
33
* Long accepted law under the Jones Act,1 one of the two federal maritime wrongful-death statutes,2 does not countenance the result reached by the majority today. The Jones Act 'created a federal right of action for the wrongful death of a seaman based on the statutory action under the Federal Employers' Liability Act (FELA).' Kernan v. American Dredging Co., 355 U.S. 426, 429, 78 S.Ct. 394, 396, 2 L.Ed.2d 382 (1958). Since the FELA, 45 U.S.C. §§ 51—60, is the 're gime which the Jones Act made applicable to seamen . . .,'3 the 'entire judicially developed doctrine of liability' under the FELA governs a Jones Act case. Kernan, supra, at 439, 78 S.Ct., at 401. An uninterrupted line of FELA and Jones Act cases going back a half century holds that if the decedent reduces his claim to settlement or judgment prior to his death, or otherwise extinguishes his right to pursue the claim, no subsequent wrongful-death action may be brought. See, e.g., Mellon v. Goodyear, 277 U.S. 335, 48 S.Ct., 541, 72 L.Ed. 906 (1928); Flynn v. NewYork, N.H. & H.R. Co., 283 U.S. 53, 51 S.Ct. 357, 75 L.Ed. 837 (1931); Walrod v. Southern Pacific Co., 447 F.2d 930 (CA9 1971); Seaboard Air. Line R. Co. v. Oliver, 261 F. 1 (CA5 1919); Gilmore v. Southern R. Co., 229 F.Supp. 198 (ED La. 1964); Purvis v. Luckenbach S.S. Co., 93 F.Supp. 271 (SDNY 1949).
34
Mellon and its progeny hold unequivocally that a judgment, settlement, or similarly conclusive event with regard to the decedent's own right to seek recovery for his personal injuries '(precludes) any remedy by the personal representative based upon the same wrongful act.' Mellon, supra, 277 U.S., at 344, 48 S.Ct., at 544. The Court in Mellon quoted with approval the following language from a state court opinion:
35
'"Whether the right of action is a transmitted right or an original right; whether it be created by a survival statute or by a statute creating an independent right, the general consensus of opinion seems to be that the gist and foundation of the right in all cases is the wrongful act, and that for such wrongful act but one recovery should be had, and that, if the deceased had received satisfaction in his lifetime, either by settlement and adjustment or by adjudication in the courts, no further right of action existed.'" Supra, at 345, 48 S.Ct., at 544. (Citation omitted.)
36
The Mellon rule does not rest on a disagreement in principle with the majority's view, ante, at 577—578, that a single wrong is capable of producing separate and distinct injuries, those to the decedent and those to his beneficiaries. Indeed, the Court in Mellon explicitly recognized that distinction. It noted that although originating in the same wrongful act, there are two separate and distinct claims, one assertable by the injured person and the other upon his death by his personal representative or dependents. 277 U.S., at 340, 342, 48 S.Ct., at 542, 543. Nevertheless, Mellon and uniformly consistent Jones Act and FELA cases that have followed it hold that when the decedent extinguishes his own claim he simultaneously forecloses any wrongful-death action. As Mr. Justice Holmes put it for a unamimous Court in Flynn, supra, the wrongful-death action is 'derivative and dependent upon the continuance of a right in the injured employee at the time of his death.' 283 U.S., at 56, 51 S.Ct., at 358 (citation omitted). Thus, the Court's opinion in this case creates a square conflict with one of the major bodies of maritime law that Moragne viewed as a source of guidance.
37
The Court's implication that the Death on the High Seas Act4 Supports its departure from Mellon, ante, at 583 n. 10, is at best conjectural. In fact, no cases addressing the situation presented here appear to have arisen under that Act. Conceivably such a case could arise, because the High Seas Act by its terms covers deaths caused by injuries inflicted at sea, not simply deaths occurring on the high seas. Cf. Lacey v. L, W. Wiggins Airways, Inc., 95 F. Supp. 916 (Mass.1951).5 Thus, it would be possible in theory for a person injured at sea to recover for his personal injuries and, following his death, for his survivors to attempt to bring suit under the High Seas Act. But certainly the Act would not be read as allowing the subsequent action. Such a result would conflict with the Mellon line of cases under the Jones Act and the FELA, producing precisely the lack of uniformity normally sought to be avoided in admiralty. Moreover, the High Seas Act contains a substitution provision, 46 U.S.C. § 765, that by implication forbids a wrongful-death action following a decedent's judgment. Section 765 provides that if a person who suffers injuries within the scope of the Act dies during the pendency of his own personal injury action, that action may be transformed by a personal representative into a wrongful-death action countenanced by the Act.6 Surely this substitution provision evidences a congressional recognition that only one action or the other should be allowed to proceed to judgment.
38
The Court's reference in Moragne to the 'strong concern for uniformity' in admiralty law, 398 U.S., at 401, 90 S.Ct., at 1788, often repeated and often related to congressional policies underlying the Jones Act and the Death on the High Seas Act, id., at 396 n. 12, 401—402, 90 S.Ct., at 1785, 1788, was not an expression of concern solely for intellectual consistency. 'Such uniformity not only will further the concerns of both of the . . . Acts but also will give effect to the constitutionally based principle that federal admiralty law should be 'a system of law coextensive with, and operating uniformly in, the whole country.' The Lottawanna, 21 Wall. 558, 575 (22 L.Ed. 654) (1875).' 398 U.S., at 401—402, 90 S.Ct., at 1788. But the lack of uniformity produced by the majority's holding should be evident. For example, whether a seaman's injuries occur on land or at sea will be determinative under the majority's approach. If on land, the seaman will have the Jones Act as his admiralty-related remedy.7 Under that Act and the Mellon line of cases his own personal-injury action will foreclose a subsequent wrongful-death action—a misfortune that would not have befallen him and his survivors if only he had been lucky enough to have been injured at sea. This anomaly is not something, I suspect, the Court will long abide. Since '(i)t has been consistently true in this branch of the law that whatever a seaman can get under one theory he can sooner or later get under all the others . . .,'8 The Court's holding undoubtedly portends an express overruling of Mellon and its successors, cases that the Court bypasses today.
39
Aside from the disunity in the law of admiralty inherent in its opinion, I fail to see how the Court can square its sweeping approach with Moragne's reliance on and admonition to draw by analogy from the federal statutes. E.g., 398 U.S., at 400 402, 408, 90 S.Ct., at 1788, 1791. Moragne envisioned a process of accommodation with those statutes, not their abrupt and near-total forced absolescence. In this regard, it might be noted that the Court has still not resolved many of the practical questions left open in Moragne, such as how to define the class of beneficiaries or an appropriate limitation period. Presumably, in resolving such questions the lower courts are to continue to rely on the admiralty wrongful-death statutes. Now they are placed in the interesting position of analogizing to statutes under which the very claim before them would be blocked.
II
40
The Court in Moragne also counseled the lower courts to draw by analogy from the case law under the state wrongful-death statutes. Id., at 408, 90 S.Ct., at 1791. Under the great majority of those statutes, whether of survival or true death act character, Mrs. Gaudet's cause of action would have been foreclosed by her husband's recovery.9 The Restatement of Torts is also in direct conflict with the position taken by the Court:
41
'Although the death statutes create a new cause of action, both they and the survival statutes are dependent upon the rights of the deceased. Hence where no action could have been brought by the deceased had he not been killed, no right of action exists. Likewise a release by the deceased or a judgment eithr in his favor or, if won on the merits, in favor of the defendant, bars an action after his death. . . .'10
42
Because of the likelihood of double recovery and the threat to repose inherent in the majority's holding, several leading commentators also favor the majority rule under the state wrongful-death statutes.11 This is particularly true where, as here, the deceased in his own action has recovered his loss of earnings over his preaccident life expectancy.12 Even those opposed to the majority position under state law recognize the 'force' of that view in such a case.13
III
43
The Court devotes a major portion of its opinion to the elements of damages recoverable under Moragne. Ante, at 584—591. In particular, the Court embraces the Court of Appeals' suggestion, 463 F.2d 1331, 1333 (CA5 1972), that Mrs. Gaudet is entitled to seek damages for loss of 'society,' including love, affection, care, attention, companionship, comfort, and protection. Ante, at 585—590. Although I would not otherwise address the question of damages because I believe that no cause of action exists here, I think it important to note that the Court's holding that loss of society may be recovered is a clear example of the majority's repudiation of the congressional purposes expressed in the two federal maritime wrongful-death statutes.14 The traditional admiralty view is that such nonpecuniary damages are not recoverable under the Death on the High Seas Act and the Jones Act.
44
The Death on the High Seas Act by its terms restricts recovery to pecuniary losses,15 a restriction the lower federal courts have consistently read as excluding loss of consortium and similar non-pecuniary injuries to personal relationship, affections, and sentiments.16 Because of its relationship to the FELA and its overlapping coverage with the Death on the High Seas Act, the Jones Act also has been read as forbidding recovery of the sentimental losses approved by the Court today.17 Moreover, these well-established damages principles under the two federal maritime wrongful-death statutes, coupled with a concern for uniformity in admiralty law, have led most lower courts that have taken part in the continuing development of the Moragne cause of action to conclude that the affection-related damages endorsed by the Court are not recoverable under Moragne.18 These courts have heeded Moragne's admonition not to fashion a whole new body of law, yet their holdings are disapproved by the majority. Ante, at 588 n. 23.
IV
45
The reasons underlying the extensive state and admiralty precedent contrary to the Court's holding that this action may be brought are not difficult to discern. The majority's statement that this precedent rests not so much on policy as on 'statutory limitations on the wrongful-death action . . .,' ante, at 579, is erroneous.19 The large number of courts that have refused to adopt the majority's view have done so for very good, practical reasons. The Court has adopted a rule that will be difficult to administer, that presents a serious risk of unfairness for those in petitioner's position, and that fails to foster the law's normal regard for finality.
46
The majority's position requires it to establish procedures to prevent a double recovery of the elements of damages awarded Gaudet in his own lawsuit. This is no easy task, as '(i)t should be obvious that as yet no satisfactory systematic solution to the whole(double recovery) problem has been found.'20 The Court adopts a collateral estoppel theory, and apparently would implement this by treating the injured seaman as a 'fiduciary' for his dependents. Ante, at 593—594. Apart from the utter novelty of this extension of the law of trusts and fiduciary duties, the majority's estoppel theory is hardly a 'satisfactory solution' to the problem of unfair recoveries.21 Apparently the Court intends to limit the elements of proof of damages that may be introduced at the second trial. But this will in no way guarantee that the second trier of fact will succeed in compartmentalizing the allowable from the unallowable elements of damages in the second trial. The highly conceptualized nature of the parsing of categories of damages undertaken by the Court suggests how unlikely it is that the majority's theoretical distinctions will be meaningful in practice. And control by way of appellate review of the injustices that are bound to occur will be, practically speaking, an impossible task.
47
Mr. Gaudet's judgment was given by a jury. It would be unrealistic to assume that that verdict was restricted to an objective measurement of Gaudet's lost earnings plus the 'value' of his pain and suffering. In all likehood, Gaudet's award reflected an element of the jury's concern for a permanently disabled working man. As anyone who has tried jury cases knows, jury sympathy commonly overcomes a theoretical inability to recover for such intangibles as loss of society. If Mrs. Gaudet is then allowed to recover in her subsequent lawsuit the full value, whatever that is, of her loss of love, attention, care, affection, companionship, comfort, and protection, she will be given a second opportunity to benefit from the imprecision built into any award for injuries that cannot be measured objectively. The Gaudet family may well then receive substantially more than just compensation for its injuries.
48
One expression of jury sympathy is commonplace, despite its conflict with the damages principles that in theory control. But certainly two opportunities for jury sentiment cross the line between benignity and bonanza and should not be sanctioned. And, it is in those cases where the decedent's suit and the subsequent Moragne wrongful-death action are both tried to juries that the majority's procedures for preventing a windfall are most likely to break down. Since it is an admiralty actin, a Moragne claim by itself will not entitle the wrongful death claimant to a jury. But there will be cases in which the claimant will be able to join a state law action to a Moragne claim and obtain a jury for both, either in state or federal court. See, ante, at 589 n. 24. When that happens, those in petitioner's position will be subjected twice to the vagaries of a jury, the second time on such wide-open damages concepts as those embraced by the majority.
49
The Court's approval of a second recovery based on the same wrong for which decedent already had recovered, compounded by its rejection of traditional admiralty 'pecuniary loss' damage standards, seems particularly inappropriate given the nature of the claim relied on by both Gaudets. The maritime concept of unseaworthiness is not based on fault. The doctrine has evolved into a judicially created form of strict liability.22 When the law imposes absolute liability, it often restricts recovery to damages for those injuries that are clearly ascertainable and susceptible of monetary compensation. E.g., Igneri v. Cie. de Transports Oceaniques, 323 F.2d 257, 268 (CA2 1963), cert. denied, 376 U.S. 949, 84 S.Ct. 965, 11 L.Ed.2d 969 (1964). This reflects the impossibility of deterrence and the inappropriateness of punishment in many cases where liability is absolute. The Court has broken with that wise rule of social policy in this case.
50
The Court also has ignored the law's normal regard for an end to duplicative litigation arising from the same transaction. After her husband's judgment was affirmed on appeal,23 Mrs. Gaudet commenced this action by, in essence, changing a few lines in her husband's complaint and filing it again in the same United States District Court as a Moragne wrongful-death action. That court's dismissal of Mrs. Gaudet's complaint on res judicata grounds24 is hardly surprising, given the striking similarities between the two Gaudet complaints. Both complaints were based on the maritime doctrine of unseaworthiness, a condition that Mrs. Gaudet alleged was established as a matter of res judicata by Mr. Gaudet's successful lawsuit. App. 2, 5—6. The same facts and injuries were alleged. Id., at 1—2, 4—5. Both sought recovery, in the amount of $250,000. Id., at 2, 6. Whereas Mr. Gaudet had sought recovery for lost earnings, id., at 2, Mrs. Gaudet sought compensation for her 'severe financial loss.' Id., at 5. Thus, on the face of the complaints, Mrs. Gaudet apparently sought recovery solely for elements of damages that had been encompassed by her husband's judgment.25
51
There should be strong reasons of policy to justify such repetitive suits and to impose on petitioner the attendant doubling of litigation expenses. The reasons advanced by the majority opinion do not, in my view, approach that level of persuasion. Petitioner has already fully litigated, and paid, a large judgment compensating Gaudet's estate for the injuries Gaudet incurred on board its vessel. Ordinarily, petitioner would have been able to consider the case closed and to order its affairs on the basis of a verdict affirmed on appeal. Today's result deprives petitioner of that reliance interest, subjecting it to another round of litigation with wideopen damages possibilities. The admiralty precedents, the prevailing weight of state law, and elementary fairness call for relieving petitioner of that unjustifiable burden.
52
As noted at the outset of this dissent, the Court has written new admiralty law as to the right of survivors to recover for wrongful death and has expanded significantly the elements of damages recoverable. In reaching these results, the majority opinion has discredited, if not in substance overruled, the unanimous decisions of the Court in the Mellon and Flynn cases. In Moragne, a decision on which I believe the majority places a mistaken reliance, the Court emphasized its reluctance to disregard or overrule established precedent:
53
'Very weighty considerations underlie the principle that courts should not lightly overrule past decisions. Among these are the desirability that the law furnish a clear guide for the conduct of individuals, to enable them to plan their affairs with assurance against untoward surprise; the importance of furthering fair and expeditious adjudication by eliminating the need to relitigate every relevant proposition in every case; and the necessity of maintaining public faith in the judiciary as a source of impersonal and reasoned judgments. The reasons for rejecting any established rule must always be weighed against these factors.' 398 U.S., at 403, 90 S.Ct., at 1789.
54
Mr. Justice Harlan, for the Court, then went on to state with care the reasons for rejecting The Harrisburg rule, described as an 'unjustifiable anomaly.' Id., at 404, 90 S.Ct. at 1789. The substantive rule rejected today is no comparable anomaly. It has been the generally applied doctrine since wrongful-death actions were introduced in this country. It has been the rule of the relevant federal statutes since their inception, and Congress has not modified the rule during that entire period. It was the rule announced in Mellon and Flynn, supra, cases the Court chooses not to follow today. And, unlike the opinion in Moragne, the majority has not provided, in my view, sound reasons of precedent or policy for overturning the rule.
1
The jury reduced a verdict of $175,000 by 20% because of decedent's contributory negligence.
2
Wrongful-death statutes are to be distinguished from survival statutes. The latter have been separately enacted to abrogate the common-law rule that an action for tort abated at the death of either the injured person or the tortfeasor. Survival statutes permit the deceased's estate to prosecute any claims for personal injury the deceased would have had, but for his death. They do not permit recovery for harms suffered by the deceased's family as a result of his death. See Michigan C.R. Co. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417 (1913); Schumacher, Rights of Action Under Death and Survival Statutes, 23 Mich.L.Rev. 114 (1924) (hereafter Schumacher); Winfield, Death as Affecting Liability in Tort, 29 Col.L.Rev. 239 (1929); Livingston, Survival of Tort Actions, A Proposal for California Legislation, 37 Calif.L.Rev. 63 (1949); New York Law Revision Commission Report 157 et seq. (1935). The underlying reasons for survival statutes have been summarized by Professor Harper:
'At early common law, the personal representative could not be sued for a tort committed by the decedent during his lifetime. From early notions of the untransmittability of blame and the quasi-criminal nature of early tort law must not be forgotten—to the crystallization of the maxim actio personalis moritur cum persona, the common law was developed without exception, and the rule was uniform that tort actions died with the parties, either wrongdoer or injured party. There was, then, no survival of a right of action either in favor of or against an executor or administrator until statutes modified somewhat the rule of dependability upon the lives of the original parties to the wrong.' F. Harper, Law of Torts 673—674 (1933) quoted in 2 F. Harper & F. James, Law of Torts, § 24.1 n. 2 (1956) (hereafter Harper & James). Survival statutes, in one form or another, have been enacted in over one-half the States and supplement the state wrongful-death statutes, see W. Prosser, the Law of Torts § 126, p. 900 (4th ed. 1971) (hereafter Prosser) though in a small number of States the survival statute provides the only death remedy available, see 2 Harper & James § 24.2, p. 1288. The Federal Employers' Liability Act, 45 U.S.C. § 59, and the Jones Act, 46 U.S.C. § 688, but not the Death on the High Seas, Act, 46 U.S.C. § 761—768, contain survival provisions.
3
Kernan v. American Dredging Co., 355 U.S. 426, 430 n. 4, 78 S.Ct. 394, 397, 22 L.Ed.2d 382 (1958).
4
The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524 (1959).
5
Most wrongful-death statutes have also been construed to create an independent cause of action in favor of the decedent's dependents, see F. Tiffany, Death by Wrongful Act § 23 (2d ed. 1913) (hereafter Tiffany); 2 Harper & James § 24.2; Schumacher 121. Thus, for example, Coleridge, J., said of England's Lord Campbell's Act, '(I)t will be evident that this Act does not transfer this right of action to (the decedent's) representative, but gives to the representative a totally new right of action, on different principles,' Blake v. Midland R. Co., 18 Q.B. (Ad. & E., N.S. *93, *110, 118 Eng.Rep. 35, 41 (1852). See also Seward v. The Vera Cruz, 10 App.Cas. 59, 70 (Lord Blackburn). Interpreting the wrongful-death provisions of the Federal Employer's Liability Act, 45 U.S.C. §§ 51—60, this Court described the action as 'independent of any cause of action which the decedent had, and includes no damages which he might have recovered for his injury if he had survived. It is one beyond that which the decedent had, one proceeding upon altogether different principles. It is a liability for the loss and damage sustained by relatives dependent upon the decedent,' Michigan C.R. Co. v. Vreeland, 227 U.S., at 68, 33 S.Ct. at 195.
6
Lord Campbell's Act, 9 & 10 Vict., c. 93, An Act for compensating the Families of Persons killed by Accidents (Aug. 26, 1846):
'Whereas no Action at Law is now maintainable against a Person who by his wrongful Act, Neglect, or Default may have caused the Death of another Person . . .: Be it therefore enacted . . . That whensoever the Death of a Person shall be caused by wrongful Act, Neglect, or Default, and the Act, Neglect, or Default is such as would (if Death had not ensued) have entitled the Party injured to maintain an Action and recover damages in respect thereof, then and in every such Case the Person who would have been liable if Death had not ensued shall be liable to an Action for Damages, notwithstanding the Death of the Person injured, and although the Death shall have been caused under such Circumstances as amount in Law to Felony.
'II. And be it enacted, That every such Action shall be for the Benefit of the Wife, Husband, Parent, and Child of the Person whose Death shall have been so caused, and shall be brought by and in the Name of the Executor or Administrator of the Person deceased; and in every such Action the Jury may give such Damages as they may think proportioned to the Injury resulting from such Death to the Parties respectively for whom and for whose Benefit the Action shall be brought . . .
'III. Provided always, and be it enacted That not more than One Action shall lie for and in respect of the same Subject Matter of Complaint . . ..'
7
See, e.g., Read v. Great Eastern R. Co., L.R. 3 Q.B. 555, 558, in which the court held: 'The question turns upon the construction of s. 1 of 9 & 10 Vict. (Lord Campbell's Act), c. 93. Before that statute the person who received a personal injury, and survived its consequences, could bring an action, and recover damages for the injury; but if he died from its effects, then no action could be brought. To meet this state of the law the 9 & 10 Vict. c. 93, was passed, and, whenever the death of a person is caused by a wrongful act, and the act is such as would, if death had not ensued, have entitled the party injured to maintain an action, and recover damages in respect thereof, then . . . the person who would have been liable if death had not ensued shall be liable for an action for damages notwithstanding the death of the party injured.' Here, taking the plea to be true, the party injured could not 'maintain an action in respect thereof,' because he had already received satisfaction.'
8
See, e.g., Legg v. Britton, 64 Vt. 652, 24 A. 1016 (1892); Melitch v. United R. & E. Co., 121 Md. 457, 88 A. 229 (1913). This interpretation has been by no means universal. A number of courts interpreting Lord Campbell's Act-type state wrongful-death statutes have held that a wrongful-death action could be prosecuted even though before his death the decedent could not have brought a cause of action for his personal injuries because he had already recovered a judgment, settled, or released his claims. A classic statement of this view is that of the South Dakota Supreme Court in Rowe v. Richards, 35 S.D. 201, 215—216, 151 N.W. 1001, 1006 (1915):
'We must confess our inability to grasp the logic of any course of so-called reasoning through which the conclusion is drawn that the husband simply because he may live to suffer from a physical injury and thus become vested with a cause of action for the violation of his own personal right, has an implied power to release a cause of action—one which has not then accrued; one which may never accrue; and one which from its very nature cannot accrue until his death; and one which, if it ever does accrue, will accrue in favor of his wife and be based solely upon a violation of a right vested solely in the wife.'
The contrary interpretation of the pertinent statutory language has also been the subject of scholarly criticism. Professor Prosser argues: 'It is not at all clear, however, that such provisions of the death acts ever were intended to prevent recovery where the deceased once had a cause of action, but it has terminated before his death. The more reasonable interpretation would seem to be that they are directed at the necessity of some original tort on the part of the defendant, under circumstances giving rise to liability in the first instance, rather than to subsequent changes in the situation affecting only the interest of the decedent.' Prosser § 127, p. 911. See also Schumacher 120—121; Fleming, The Lost Years: A Problem in the Computation and Distribution of Damages, 50 Calif.L.Rev. 598, 608—610 (1962); Anno., 70 Am.St.Rep. 666, 684 (1898). In States where the limiting language of Lord Campbell's Act is absent from the wrongful-death statute, the courts have permitted wrongful-death actions although the decedent has already recovered for his own injuries, see, e.g., Blackwell v. American Film Co., 189 Cal. 689, 693—694, 209 P. 999, 1001 (1922).
9
Beyond the common elements that the FELA may share with Lord Campbell's Act, express statutory terms peculiar to the FELA lend additional support for the result reached in Mellon v. Goodyear. The Act provides:
'Every common carrier by railroad while engaging in commerce . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence .. . of such carrier, or by reason of any defect or insufficiency, due to its negligence . . ..' 45 U.S.C. § 51 (emphasis added).
The significant language, of course, is the use of the disjunctive 'or.' This language was understood by the Court of Appeals for the Fifth Circuit in Seaboard Air Line R. Co. v. Oliver, 261 F. 1, 2 (1919): 'The two distinct rights of action are given in the alternative or disjunctively. The language used indicates the absence of an intention to allow recoveries for the same wrong by both the injured employe and, in case of his death, by his personal representative; only one recovery being allowed when the injured employe dies without having enforced the right of action given to him. It seems to be a fair inference from that language that the right of action given to the injured employe 's personal representative was intended to be unenforceable after the enforcement and satisfaction of the one given to the employe himself.'
10
Significantly, the Death on the High Seas Act, 46 U.S.C. §§ 761—768, the only federal statute 'that deals specifically and exclusively with actions for wrongful death . . . for breaches of the duties imposed by general maritime law.' Moragne v. States Marine Lines, 398 U.S. 375, 407, 90 S.Ct. 1772, 1791, 26 L.Ed.2d 339 (1970), has not been interpreted, as the FELA has been, to bar wrongful-death recovery in cases where the decedent has already recovered during his lifetime for his personal injuries.
11
See, e.g., Michigan C.R. Co. v. Vreeland, 227 U.S., at 70, 33 S.Ct., at 196; The S.S. Black Gull, 90 F.2d 619 (CA2 1937) (interpreting the Death on the High Seas Act); Bugas v. National Aircraft Corp., 438 F.2d 1386 (CA3 1971) (interpreting the Death on the High Seas Act); Tiffany §§ 153, 160; S. Speiser, Recovery for Wrongful Death § 3.4 (1966) (hereafter Speiser); Prosser § 127, p. 906. Damages for loss of support have also been awarded consistently in post-Moragne maritime wrongful-death actions. See, e.g., Dennis v. Central Gulf S.S. Corp., 323 F.Supp. 943 (ED La.1971), aff'd, 453 F.2d 137 (CA5 1972); Petition of United States Steel Corp., 436 F.2d 1256 (CA6 1970); In re Cambria S.S. Co., 353 F.Supp. 691 (ND Ohio 1973); Mascuilli v. United States, 343 F.Supp. 439 (ED Pa.1972); 1972); In re Sincere Navigation Corp., 329 F.Supp. 652 (ED La.1971); Petition of Canal Barge Co., 323 F.Supp. 805 (ND Miss.1971).
12
Tiffany §§ 158—164; Speiser §§ 3.36, 3.40.
13
Moore-McCormack Lines, Inc. v. Richardson, 295 F.2d 583 (CA2 1961); Dugas v. National Aircraft Corp., supra; Carli v. New London Flying Service, Inc., 1965 AMC 1644 (DC Conn.1962).
14
Such damages have also been recovered in post-Moragne maritime wrongful-death actions. See, e.g., Dennis v. Central Gulf S.S. Corp., supra; Petition of United States Steel Corp., supra; In re Cambria S.S. Co., supra; Mascuilli v. United States, supra; In re Sincere Navigation Corp., supra; Petition of Canal Barge Co., supra.
15
See, e.g., Michigan C.R.Co. v. Vreeland, supra, 227 U.S., at 71, 33 S.Ct., at 196; Moore-McCormack Lines, Inc. v. Richardson, supra; Gaydos v. Domabyl, 301 Pa. 523, 152 A. 549 (1930).
16
See, e.g., Michigan C.R. Co. v. Vreeland, supra, 227 U.S., at 71, 74, 33 S.Ct., at 196, 197; Carli v. New London Flying Service, Inc., Supra, Alden v. Norwood Arena Inc., 332 Mass. 267, 124 N.E.2d 505 (1955); Kroeger v. Safranek, 165 Neb. 636, 87 N.W.2d 221 (1957).
17
Loss of society must not be confused with mental anguish or grief, which is not compensable under the maritime wrongful-death remedy. The former entails the loss of positive benefits, while the latter represents an emotional response to the wrongful death. The difference between the two is well expressed as follows:
'When we speak of recovery for the beneficiaries' mental anguish, we are primarily concerned, not with the benefits they have lost, but with the issue of compensating them for their harrowing experience resulting from the death of a loved one. This requires a somewhat negative approach. The fundamental question in this area of damages is what deleterious effect has the death, as such, had upon the claimants? In other areas of damage, we focus on more positive aspects of the injury such as what would the decedent, had he lived, have contributed in terms of support, assistance, training, comfort, consortium, etc.
'The great majority of jurisdictions, including several which do allow damages for other types of nonpecuniary loss, hold that the grief, bereavement, anxiety, distress, or mental pain and suffering of the beneficiaries may not be regarded as elements of damage in a wrongful death action,' Speiser § 3.45, p. 223 (emphasis in original) (footnotes omitted).
18
Lord Campbell's Act, which, by its terms, allows the jury to award 'such damages as they may think proportional to the injury,' was interpreted to permit recovery only for 'pecuniary losses,' Blake v. Midland R. Co., 18 Q.B. (Ad. & E., N.S.) *93, 118 Eng.Rep. 35 (1852). Most American courts, interpreting similar wrongful-death statutes, followed suit, see, e.g., Michigan C.R. Co. v. Vreeland, supra, 227 U.S., at 70, 33 S.Ct., at 196. See also Speiser § 3.1.
19
A list of the States that have such statutes and reprints of the individual statutes may be found in Speiser § 3.1, p. 58, n. 5, and Appendix.
20
See, e.g., Middleton v. Luckenbach S.S. Co., Inc., 70 F.2d 326 (CA2 1934); First Nat. Bank in Greenwich v. National Airlines, Inc., 288 F.2d 621 (CA2 1961).
21
The various state and federal wrongful-death statutes have been closely canvassed and catalgued in Speiser (Supp.1972) and Comment, Wrongful Death Damages in North Carolina, 44 N.C.L.Rev. 402 (1966). Those sources indicate that 27 of the 44 state and territorial wrongful-death statutes which measure damages by the loss sustained by the beneficiaries, permit recovery for loss of society. Alaska, Arkansas, Florida, Hawaii, Kansas, Mississippi, Nevada, West Virginia, Wisconsin, and Wyoming have statutes expressly providing for such damages. Arizona, Idaho, Louisiana, New Mexico, Puerto Rico, South Carolina, Utah, Virginia, and Washington have equivocal statutory language that has been judicially interpreted to include recovery for loss of society. Finally, the wrongful-death statutes of California, Delaware, Michigan, Minnesota, Montana, Pennsylvania, Texas, and the Virgin Islands, which either expressly or by judicial construction limit recovery to pecuniary losses have been judicially interpreted, nevertheless, to permit recovery for the pecuniary value of the decedent's society.
22
We recognize, of course, that our decision permits recovery of damages not generally available under the Death on the High Seas Act. Traditionally, however, 'Congress has largely left to this Court the responsibility for fashioning the controlling rules of admiralty law,' Fitzgerald v. United States Lines Co., 374 U.S. 16, 20, 83 S.Ct. 1646, 1650, 10 L.Ed.2d 720 (1963). The scope and content of the general maritime remedy for wrongful death established in Moragne is no exception. After combing the legislative history of the Death on the High Seas Act, we concluded in Moragne that Congress expressed 'no intention . . . of foreclosing any nonstatutory federal remedies that might be found appropriate to effectuate the policies of general maritime law.' 398 U.S., at 400, 90 S.Ct., at 1787. Nothing in the legislative history of the Act suggests that Congress intended the Act's statutory measure of damages to pre-empt any additional elements of damage for a maritime wrongful-death remedy which this Court might deem 'appropriate to effectuate the policies of general maritime law.' To the contrary Congress' insistence that the Act not extend to territorial waters, see S.Rep.No.216, 66th Cong., 2d Sess., 3 (1919); H.R.Rep. No. 674, 66th Cong., 1st Sess., 3 (1920); 59 Cong.Rec. 4482—4486 (1920), indicates that Congress was not concerned that there be a uniform measure of damages for wrongful for in many instances state wrongful-deaths occurring within admiralty's jurisdic-death statues extending to territorial waters provided a more liberal measure of damages than the Death on the High Seas Act. See Greene v. Vantage S.S. Corp., 466 F.2d 159 (CA4 1972).
23
Insofar as Simpson v. Knutsen, 444 F.2d 523 (CA9 1971), and Petition of United States Steel Corp., 436 F.2d 1256 (CA6 1970), are inconsistent with our holding, we disagree.
24
Of course, the maritime wrongful-death remedy is an admiralty action ordinarily tried to the court and not a jury. There are instances, however, where the admiralty action may be joined with a civil claim, for example, a claim based upon the Jones Act, see Moragne, 398 U.S., at 396 n. 12, 90 S.Ct., at 1785; Peace v. Fidalgo Island Packing Co., 419 F.2d 371 (CA9 1969), or a state survival statute, see Dugas v. National Aircraft Corp., 438 F.2d 1386 (CA3 1971); Petition of Gulf Oil Corp., 172 F.Supp. 911 (SDNY 1959); cf. Kernan v. American Dredging Co., 355 U.S. 426, 430 n. 4, 78 S.Ct. 394, 397, 2 L.Ed.2d 382 (1958), and a jury trial may be requested.
25
See E.g., Young v. Pridd, 3 Cro.Car. 89, 79 Eng.Rep. 679 (Ex. Ch. 1627); Hyde v. Scyssor, 2 Cro.Jac. 538, 79 Eng.Rep. 462 (K.B. 1619); Mowry v. Chaney, 43 Iowa 609 (1876); Guevin v. Machester St. R., 78 N.H. 289 99, A. 298 (1916); Holbrook, The Change in the Meaning of Consortium, 22 Mich.L.Rev. 1 (1923); Lippman, The Breakdown of Consortium, 30 Col.L.Rev. 651 (1930); Note, Judicial Treatment of Negligent Invasion of Consortium, 61 Col.L.Rev. 1341 (1961). Damages for loss of consortium have been awarded by courts of admiralty as well. See N.Y. & Long Branch Steamboat Co. v. Johnson, 195 F. 740 (CA3 1912); 1 E. Benedict, Admiralty 366 (6th ed. 1940) ('When a personal injury to a wife is maritime by locality, her husband may recover his damages for loss of her services, loss of consortium, etc., in admiralty'). But see Igneri v. Cie. de Transports Oceaniques, 323 F.2d 257 (CA2 1963).
26
See, e.g., Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 F.2d 811 (1950); Prosser § 125, p. 895; Note, Judicial Treatment of Negligent Invasion of Consortium, 61 Col.L.rev. 1341 (1961).
27
See Speiser § 3.49; Comment, Wrongful Death Damages in North Carolina, 44 N.C.L.Rev. 402, 419—420 (1966).
28
Funeral expenses have been awarded in post-Moragne wrongful-death actions. See, e.g., Greene v. Vantage S.S. Corp., 466 F.2d 159 (CA4 1972); Dennis v. Central Gulf S.S. Corp., 323 F.Supp. 943 (ED La.1971), aff'd, 453 F.2d 137 (CA5 1972); Mascuilli v. United States, 343 F.Supp. 439 (ED Pa.1972); In re Sincere Navigation Corp., 329 F.Supp. 652 (ED La.1971).
29
The Court of Appeals below recognized the potential problem of double recovery and committed 'to the discretion of the trial court the task of making an appropriate deduction from or accommodation of any judgment to which Mrs. Gaudet might otherwise be entitled, to insure that no double recovery results. Cf. Billiot v. Sewart, 382 F.2d 662 (5th Cir. 1967); Prosser, (Law of Torts,) at 934—935,' 463 F.2d, at 1333 n. 1. In our view, application of collateral estoppel principles makes resort to theories of setoff or recoupment generally unnecessary.
30
If the dependents' total support received from the decedent exceeds the future wages paid to the decedent by the tortfeasor, the dependents will have an actionable cause for support against the tortfeasor for the difference. In that circumstance, if a special verdict was not rendered in the decedent's action specifying the amount of damages awarded for future wages, it may become necessary in the dependents' action to determine what portion of the decedent's lumpsum recovery for his injuries was atributable to future wages. This in no way conflicts with our holding that the dependents will be estopped from relitigating the amount of future wages; it is merely an acknowledgment that the amount of the wage recovery in the first action may have to be clarified in the second.
31
See Vestal, Preclusion/Res Judicata Variables: Parties, 50 Iowa L.Rev. 27, 63—64 (1964); Note, Developments in the Law—Res Judicata, 65 Harv.L.Rev. 818, 855—856 (1952); Restatement of Judgments § 92 (1942) deals expressly with wrongful-death actions and provides that, even in cases where the wrongful- death action is not premised upon the decedent's having an extant cause of action for personal injuries at the time of his death, 'the rules osres judicata apply in actions brought after his death as to issues litigated in an action brought by him and terminating in a judgment before his death,' id., comment on subsection (1).
32
This rule appears to have been rejected in England in favor of compensating a personalinjury victim on the basis of his life expectancy after the accident. See Oliver v. Ashman, (1961) 3 W.L.R. 669 (C.A.); Fleming, The Lost Years: A Problem in the Computation and Distribution of Damages, 50 Calif.L.Rev. 598, 600 (1962). Under the English rule, the accident victim is not permitted to recover lost wages for the difference in years between his pre-accident and post-accident life expectancy.
1
46 U.S.C. § 688. The Jones Act provides:
'Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.'
Since the Act employs the terms 'in the course of his employment . . .,' the cause of action it provides 'follows from the seaman's employment status and is not limited to injury or death occurring on the high seas.' Moragne v. States Marine Lines, Inc., 398 U.S. 375, 394, 90 S.Ct. 1772, at 1784, 26 L.Ed.2d 339 (1970). Proof of negligence is a predicate to recovery. Ibid.
2
The second such statute, the Death on the High Seas Act, is discussed below. See text, at 599—601 and nn. 4—6, infra.
3
Igneri v. Cie. de Transports Oceaniques, 323 F.2d 257, 266 (CA2 1963), cert. denied, 376 U.S. 949, 84 S.Ct. 965, 11 L.Ed.2d 969 (1964).
4
46 U.S.C. § 761 et seq. The opening section of the Death on the High Seas Act, 46 U.S.C. § 761, provides:
'Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued.'
5
But see Pickles v. F. Leyland & Co., 10 F.2d 371 (Mass.1925). Pickles holds that if the death occurs on land, the High Seas Act is not applicable, even though the injuries ultimately producing death were inflicted at sea. Id., at 372. If this were the correct view, it would be easy to see why cases like the instant one had not previously arisen under the High Seas Act. The Act would simply not allow actions like the present one. However, the Act says 'death .. . caused by wrongful act, neglect, or default occurring on the high seas . . .,' not 'death occurring on the high seas.' See n. 4, supra. Pickles, therefore, is probably an erroneous reading of the Act.
6
Section 765 reads:
'If a person die as the result of such wrongful act, neglect, or default as is mentioned in section 761 of this title (see n. 4, supra) during the pendency in a court of admiralty of the United States of a suit to recover damages for personal injuries in respect of such act, neglect, or default, the personal representative of the decedent may be substituted as a party and the suit may proceed as a suit under this chapter for the recovery of (pecuniary losses).'
7
See n. 1, supra.
8
G. Gilmore & C. Black, The Law of Admiralty 308 (1957).
9
E.g., Roberts v. Union Carbide Corp., 415 F.2d 474 (CA3 1969) (New Jersey law); Schlavick v. Manhattan Brewing Co., 103 F.Supp. 744 (ND Ill.1952) (Indiana law). The cases are reviewed in W. Prosser, The Law of Torts 911—912 (4th ed. 1971) (hereafter Prosser); 2 F. Harper & F. James, The Law of Torts § 24.6 (1956 and Supp.1968); Fleming, The Lost Years: A Problem in the Computation and Distribution of Damages, 50 Calif.L.Rev. 598, 599, 608—609 (1962) (hereafter Fleming). The latter commentator notes that '(a)t least twenty-three jurisdictions . . . have so held in the clearest terms and some half a dozen more have so indicated in dicta.' Id., at 608—609, n. 38. Nine or 10 contrary jurisdictions constitute a 'substantial minority view' according to Prosser 912 and nn. 35—39. However, Prosser notes that this view is 'largely confined to jurisdictions which do not allow the decedent to recover for his own curtailed life . . ..' Id., at 912. As the Court points out, ante, at 593—594, the Moragne cause of action is not subject to that limitation.
10
Restatement of Torts, Explanatory Notes § 925, comment a, p. 639 (1939). This position is repeated almost verbatim in the most recent working draft of the second Restatement. See Restatement (Second) of Torts, Explanatory Notes § 925, comment a, p. 196 (Tent. Draft No. 19, Mar. 30, 1973). See also Restatement of Torts, Explanatory Notes § 926, comment a, p. 646: '(In those states with statutes combining the functions of a death statute and a survival statute) the representatives of the deceased can recover in a single action both for the damages preceding death and for those caused by the death. Even in such States, however, a judgment obtained by the deceased or a release of the cause of action by him terminates the right of action.'
Accord, Restatement (Second) of Torts, Explanatory Notes § 926, comment a, p. 204. See also id., Explanatory Notes § 925, comment i, p. 199:
(A) release of his claim by the injured person bars an action after his death for causing the death, as also does a judgment either for, or if on the merits, against him given in an action brought by him for the tort.'
11
E.g., 2 Harper & James, supra, at 1293—1294:
'If . . . deceased recovers before his death, his recovery for permanent injuries will be based, under the prevailing American rule, on his prospective earnings for the balance of his life expectancy at the time of his injury undiminished by any shortening of that expectancy as a result of the injury. Presumably any settlement would reflect the legal liability under this rule. The danger of double recovery becomes clear when it is recalled that any benefits of which the survivors were deprived, by the death, would have come out of these very prospective earnings if deceased had lived. At least in the case of serious and apparently permanent injuries, therefore, there is real danger of double recovery if a wrongful death action is allowed after recovery or release by deceased during his life-time.' (Emphasis in original; citations omitted.)
See id., at n. 14: '(Double recovery) is a theoretical' as well as a 'practical' danger. . . . The prevailing rules . . . seem therefore to be fully justified.' (Citation omitted.) See also Prosser 911: 'The courts undoubtedly have been influenced by a fear of double recovery. This is of course possible in point of law, not only under the survival type of death act, but also in any jurisdiction where the decedent would be allowed to recover for the prospective earnings lost through his diminished life expectancy.' (Citations omitted.) The latter appears to have been the measure of Mr. Gaudet's recovery in his personal injury action. 463 F.2d 1331, 1333 n. 1 (CA5 1972); Tr. of Oral Arg. 20 21.
12
E.g., Duffey, The Maldistribution of Damages in Wrongful Death, 19 Ohio St.L.J. 264, 273 (1958): In such cases, '(t)he recovery in the wrongful death action based on the decedent's future earning capacity is . . . simply a portion or segment of the larger recovery obtained by the injured person himself in the personal injury action.' See n. 11, supra.
13
Fleming 610. '(The fear of duplication of damages) has force. . . whenever allowance was made for prospective loss of earnings (in the decedent's own lawsuit), since this would have drawn on, or depleted, the fund contingently available to satisfy the dependents for loss of their expectancy of support.' This commentator also states that the minority of state courts that do not view decedent recovery as a bar to a subsequent wrongfuldeath action and that are 'content with the bland assertion that no duplication of damages can arise because the release or recovery by the decedent could not have covered the period beyond his death . . .' are relying on a 'protestation of faith rather than a conclusion drawn from proven facts . . ..' Id., at 615 (emphasis in original).
14
I do not address the correctness of the Court's holding that Moragne allows the recovery of loss of services, see, e.g., Michigan C.R. Co. v. Vreeland, 227 U.S. 59, 71, 73, 33 S.Ct. 192, 196, 197, 57 L.Ed. 417 (1913), or funeral expenses. Compare Cities Service Oil Co. v. Launey, 403 F.2d 537, 540 (CA5 1968), with Greene v. Vantage S.S. Corp., 466 F.2d 159, 167 (CA4 1972).
15
46 U.S.C. § 762. Section 762 provides:
'The recovery in such suit shall be a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought and shall be apportioned among them by the court in proportion to the loss they may severally have suffered by reason of the death of the person by whose representative the suit is brought.'
16
E.g., Igneri v. Cie. de Transports Oceaniques, 323 F.2d, at 266 n. 21; Middleton v. Luckenbach S.S. Co., 70 F.2d 326, 330 (CA2), cert. denied, 293 U.S. 577, 55 S.Ct. 89, 79 L.Ed. 674 (1934). See Dugas v. National Aircraft Corp., 438 F.2d 1386, 1392 (CA3 1971) ('The amount of recovery under the Death on the High Seas Act is determined by the actual pecuniary loss sustained by the beneficiary due to th wrongful death').
17
E.g., Igneri v. Cie. de Transports Oceaniques, supra, at 266 ('(I)t is established . . . that the damages recoverable by a seaman's widow suing for wrongful death under the Jones Act do not include recovery for loss of consortium'). Cf. Cities Service Oil Co. v. Launey, supra, 403 F.2d, at 540. See Gulf, C. & S.F.R. Co. v. McGinnis, 228 U.S. 173, 175, 33 S.Ct. 426, 427, 57 L.Ed. 785 (1913); Michigan C.R.Co. v. Vreeland, supra, 227 U.S., at 68, 70 71, 33 S.Ct., at 196; G. Gilmore & C. Black, The Law of Admiralty 306 (1957):
'Recovery under the High Seas Act like that under FELA § 51 (and thus the Jones Act) is based on pecuniary loss to the beneficiaries as a result of the wrongful death. The damage calculation therefore involves an estimate of what the decedent's life expectancy would have been, his probable earnings during that period and the amounts he would have contributed to beneficiaries.'
18
E.g., Simpson v. Knutsen, 444 F.2d 523 (CA9 1971); Petition of United States Steel Corp., 436 F.2d 1256, 1279 (CA6 1970), cert. denied, 402 U.S. 987, 91 S.Ct. 1649, 29 L.Ed.2d 153 (1971); In re Cambria S.S. Co., 353 F.Supp. 691, 697—698 (N.D.Ohio 1973); Green v. Ross, 338 F.Supp. 365, 367 (S.D.Fla.1972); Petition of Canal Barge Co., 323 F.Supp. 805, 820—821 (N.D.Miss.1971). The state courts of Louisiana, the State where Mr. Gaudet's injuries occurred, have reached the same result. Strickland v. Nutt, 264 So.2d 317, 322 (La.App.), aff'd sub nom. DeRouen v. Nutt, 262 La. 1123, 266 So.2d 432 (1972). ('The Moragne case, with the desire for uniformity in maritime death actions announced therein, precludes loss of love and affection as an element of damage here.')
Only one Fifth Circuit case, other than the instant case, and two cases from the United States District Court for the Eastern District of Louisiana have concluded that Moragne signaled a break with settled admiralty wrongful-death damages rules. Dennis v. Central Gulf S.S. Corp., 5 Cir., 453 F.2d 137, cert. denied, 409 U.S. 948, 93 S.Ct. 286, 34 L.Ed.2d 218 (1972); In re Farrell Lines, Inc., 339 F.Supp. 91 (D.C.1971); In re Sincere Navigation Corp., 329 F.Supp. 652 (D.C.1971). In the latter case, the court candidly admitted that its decision 'may conflict with Moragne's goal of uniformity of recovery for all who perish on navigable waters.' Id., at 657.
19
The majority's opinion, apparently in an effort to avoid the force of precedent contrary to its view, contrasts disparagingly these statutes with the more 'humane' judge-made rule of Moragne. Ante, at 581—583. But the majority ignores the extent to which the Court in Moragne expressly identified its holding with the policy and principles of the very statutes now criticized:
'The policy thus established (by the state and federal wrongful-death statutes) has become itself a part of our law, to be given its appropriate weight not only in matters of statutory construction but also in those of decisional law.' 398 U.S., at 390—391, 90 S.Ct., at 1782. And, again:
'Both the Death on the High Seas Act and the numerous state wrongful-death acts have been implemented with success for decades. The experience thus built up counsels that a suit for wrongful death raises no problems unlike those that have long been grist for the judicial mill.' Id., at 408, 90 S.Ct., at 1792.
Contrary to the Court's intimations, there is no basis for suggesting a tension between these statutes and Moragne. Indeed, it is clear from the Moragne opinion that the Court relied upon the statutes in its analysis, sought only to fill a narrow gap in the law left by them, and considered that the statutes afforded 'persuasive analogy for guidance' in developing the Moragne cause of action. Ibid.
20
Prosser 912 (footnote omitted).
21
The theory probably creates more problems than it resolves. What are the boundaries of the class of potential beneficiaries who are estopped to relitigate loss of support? If a seriously injured person is the fiduciary for an undefined class of potential beneficiaries, may he be enjoined from wasting his assets or disinheriting members of his family? There will also be some nice questions under the majority's approach about whether a particular item of proof at the second trial is to be introduced with regard to the forbidden issue of support or the permissible issue of, say, services.
22
Moragne v. States Marine Lines, Inc., 398 U.S., at 399, 90 S.Ct., at 1786. Cf., Comment, Maritime Wrongful Death After Moragne: The Seaman's Legal Lifeboat, 59 Geo.L.J. 1411 n. 4 (1971).
23
Stein v. Sea-Land Services, Inc., 440 F.2d 1181 (CA5 1971). It might be noted that because Gaudet's death intervened between the jury verdict and the appeal, his recovery went directly to his estate, not to him personally.
24
Pet. for Cert. 17.
25
Although the majority fails to address the point, presumably its result means that Mrs. Gaudet must at least amend her complaint upon remand to the District Court.
| 78
|
414 U.S. 661
94 S.Ct. 772
39 L.Ed.2d 73
The ONEIDA INDIAN NATION OF NEW YORK STATE et al., Petitioners,v.The COUNTY OF ONEIDA, NEW YORK, et al.
No. 72-851.
Argued Nov. 6 and 7, 1973.
Decided Jan. 21, 1974.
Syllabus
Petitioners brought this action for the fair rental value for a specified period of certain land in New York that the Oneidas had ceded to the State in 1795, alleging, inter alia, that the Oneidas had owned and occupied the land from time immemorial to the time of the American Revolution; that in the 1780's and 1790's various treaties with the United States had confirmed their right to possession of the land until purchased by the United States; that in 1790 the treaties had been implemented by the Nonintercourse Act forbidding the conveyance of Indian lands without the United States' consent; and that the 1795 cession was without such consent and hence ineffective to terminate the Oneidas' right to possession under the treaties and applicable federal statutes. The District Court, ruling that the action arose under state law, dismissed the complaint for failure to raise a question arising under the laws of the United States within the meaning of either 28 U.S.C. § 1331 or 28 U.S.C. § 1362. The Court of Appeals, relying on the 'wellpleaded complaint rule' of Taylor v. Anderson, 234 U.S. 74, 34 S.Ct. 724, 58 L.Ed. 1218, affirmed and held that although the decision would ultimately depend on whether the 1795 cession complied with the Nonintercourse Act, and what the consequences would be if it did not, this alone did not establish 'arising under' jurisdiction because the federal issue was not one of the necessary elements of the complaint, which essentially sought relief based on the right to possession of real property. Held: The complaint states a controversy arising under the Constitution, laws, or treaties of the United States sufficient to invoke the jurisdiction of the District Court under 28 U.S.C. §§ 1331 and 1362. Pp. 666—682.
(a) Petitioners asserted a current right to possession conferred by federal law, wholly independent of state law, the threshold allegation required of such a well-pleaded complaint—the right to possession—being plainly enough alleged to be based on federal law so that the federal law issue did not arise solely in anticipation of a defense. Pp. 666, 677.
(b) Petitioners' claim of a federal right to possession governed wholly by federal law is not so insubstantial or devoid of merit as to preclude a federal controversy within the District Court's jurisdiction, regardless of how the federal issue is ultimately resolved. Pp. 666—667.
(c) Indian title is a matter of federal law and can be extinguished only with federal consent. Pp. 670—674.
(d) This is not a case where the underlying right or obligation arises only under state law and federal law is merely alleged as a barrier to its effectuation. Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70, distinguished. Pp. 675—676.
(e) In sustaining the District Court's jurisdiction, the well-pleaded complaint rule of Taylor v. Anderson, supra, is not disturbed, since here the right to possession itself is claimed to arise under federal law in the first instance, and allegedly aboriginal title of an Indian tribe guaranteed by treaty and protected by statute has never been extinguished. P. 676.
(f) The complaint satisfies the requirement that it reveal a dispute or controversy respecting the validity, construction, or effect of a federal law, upon the determination of which the result depends. Pp. 677—678.
(g) The conclusion that this case arises under the laws of the United States comports with the language and legislative history of 25 U.S.C. § 233 granting to New York civil jurisdiction over disputes between Indians or between Indians and others. Pp. 678—682.
2 Cir., 464 F.2d 916, reversed and remanded.
George C. Shattuck, Syracuse, N.Y., for petitioners.
William L. Burke for respondent.
Jeremiah Jochnowitz, Albany, N.Y. for the State of New York, as amicus curiae, by special leave of Court.
Mr. Justice WHITE delivered the opinion of the Court.
1
Both § 1331 and § 1362 of Title 28 of the United States Code confer jurisdiction on the district courts to hear cases 'aris(ing) under the Constitution, laws, or treaties of the United States.'1 Section 1331 requires that the amount in controversy exceed $10,000. Under § 1362, Indian tribes may bring such suits without regard to the amount in controversy. The question now before us is whether the District Court had jurisdiction over this case under either of these sections.
2
* The complaint was filed in the United States District Court for the Northern District of New York by the Oneida Indian Nation of New York State and the Oneida Indian Nation of Wisconsin against the Counties of Oneida and Madison in the State of New York.2 The complaint alleged that from time immemorial down to the time of the American Revolution the Oneidas had owned and occupied some six million acres of land in the State of New York. The complaint also alleged that in the 1780's and 1790's various treaties had been entered into between the Oneidas and the United States confirming the Indians' right to possession of their lands until purchased by the United States3 and that in 1790 the treaties had been implemented by federal statute the Nonintercourse Act, 1 Stat. 137, forbidding the conveyance of Indian lands without the consent of the United States. It was then alleged that in 1788 the Oneidas had ceded five million acres to the State of New York, 300,000 acres being withheld as a reservation, and that in 1795 a portion of these reserved lands was also ceded to the State. Assertedly, the 1795 cession was without the consent of the United States and hence ineffective to terminate the Indians' right to possession under the federal treaties and the applicable federal statutes. Also alleging that the 1795 cession was for an unconscionable and inadequate price and that portions of the premises were now in possession of and being used by the defendant counties, the complaint prayed for damages representing the fair rental value of the land for the period January 1, 1968, through December 31, 1969.
3
The District Court ruled that the cause of action, regardless of the label given it, was created under state law and required only allegations of the plaintiffs' possessory rights and the defendants' interference therewith. The possible necessity of interpreting a federal statute or treaties to resolve a potential defense was deemed insufficient to sustain federal-question jurisdiction. The complaint was accordingly dismissed for want of subject matter jurisdiction for failure of the complaint to raise a question arising under the laws of the United States within the meaning of either § 1331 or § 1362.
4
The Court of Appeals affirmed, with one judge dissenting, ruling that the jurisdictional claim 'shatters on the rock of the 'well-pleaded complaint' rule for determining federal question jurisdiction.' 464 F.2d 916, 918 (CA2 1972). Although '(d)ecision would ultimately turn on whether the deed of 1795 complied with what is now 25 U.S.C. § 177 and what the consequences would be if it did not,' id., at 919, this alone did not establish 'arising under' jurisdiction because the federal issue was not one of the necessary elements of the complaint, which was read as essentially seeking relief based on the right to possession of real property. The Court of Appeals thought Taylor v. Anderson, 234 U.S. 74, 34 S.Ct. 724, 58 L.Ed. 1218 (1914), directly in point. There, a complaint in ejectment did not state a claim arising under the laws of the United States even though it alleged that the defendants were claiming under a deed that was void under acts of Congress restraining the alienation of lands allotted to Choctaw and Chickasaw Indians. The Court applied the principle that whether a case arises under federal law for purposes of the jurisdictional statute 'must be determined from what necessarily appears in the plaintiff's statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose.' Id., at 75—76, 34 S.Ct. at 724. Because the only essential allegations were plaintiffs' rights to possession, defendants' wrongful holding and the damage claim, the complaint did not properly assert a federal issue, however likely it might be that it would be relevant to or determinative of a defense. In the present case, noting that the District Judge was correct in holding that under New York law these allegations would suffice to state a cause of action in ejectment, the Court of Appeals considered Taylor to be dispositive.
5
Both the District Court and the Court of Appeals were in error, and we reverse the judgment of the Court of Appeals.
II
6
Accepting the premise of the Court of Appeals that the case was essentially a possessory action, we are of the view that the complaint asserted a current right to possession conferred by federal law, wholly independent of state law. The threshold allegation required of such a well-pleaded complaint—the right to possession—was plainly enough alleged to be based on federal law. The federal law issue, therefore, did not arise solely in anticipation of a defense. Moreover, we think that the basis for petitioners' assertion that they had a federal right to possession governed wholly by federal law cannot be said to be so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy within the jurisdiction of the District Court, whatever may be the ultimate resolution of the federal issues on the merits. See, e.g., The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 27 L.Ed. 716 (1913); Montana Catholic Missions v. Missoula County, 200 U.S. 118, 130, 26 S.Ct. 197, 201, 50 L.Ed. 398 (1906); Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 106, 53 S.Ct. 549, 550, 77 L.Ed. 1062 (1933); Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 249, 71 S.Ct. 692, 694, 95 L.Ed. 912 (1951). Given the nature and source of the possessory rights of Indian tribes to their aboriginal lands, particularly when confirmed by treaty, it is plain that the complaint asserted a controversy arising under the Constitution, laws, or treaties of the United States within the meaning of both § 1331 and § 1362.
7
It very early became accepted doctrine in this Court that although fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign—first the discovering European nation and later the original States and the United States—a right of occupancy in the Indian tribes was nevertheless recognized. That right, sometimes called Indian title and good against all but the sovereign, could be terminated only by sovereign act. Once the United States was organized and the Constitution adopted, these tribal rights to Indian lands became the exclusive province of the federal law. Indian title, recognized to be only a right of occupancy, was extinguishable only by the United States. The Federal Government took early steps to deal with the Indians through treaty, the principal purpose often being to recognize and guarantee the rights of Indians to specified areas of land. This the United States did with respect to the various New York Indian tribes, including the Oneidas. The United States also asserted the primacy of federal law in the first Nonintercourse Act passed in 1790, 1 Stat. 137, 138, which provided that 'no sale of lands made by any Indians . . . within the United States, shall be valid to any person . . . or to any state . . . unless the same shall be made and duly executed at some public treaty, held under the authority of the United States.'4 This has remained the policy of the United States to this day. See 25 U.S.C. § 177.
8
In United States v. Santa Fe Pacific R. Co., 314 U.S. 339, 345, 62 S.Ct. 248, 251, 86 L.Ed. 1116 (1941), a unanimous Court succinctly summarized the essence of past cases in relevant respects:
9
"Unquestionably it has been the policy of the federal government from the beginning to respect the Indian right of occupancy, which could only be interfered with or determined by the United States.' Cramer v. United States, 261 U.S. 219, 227, 43 S.Ct. 342, (344,) 67 L.Ed. 622. This policy was first recognized in Johnson v. M'Intosh, 8 Wheat. 543, 5 L.Ed. 681, and has been repeatedly reaffirmed. Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483; Mitchel v. United States, 9 Pet. 711, 9 L.Ed. 283; Chouteau v. Molony, 16 How. 203, 14 L.Ed. 905; Holden v. Joy, 17 Wall. 211, 21 L.Ed. 523; Buttz v. Northern Pacific Railroad (119 U.S. 55, 7 S.Ct. 100, 30 L.Ed. 330); United States v. Shoshone Tribe, 304 U.S. 111, 58 S.Ct. 794, 82 L.Ed. 1213. As stated in Mitchel v. United States, supra, 9 Pet. 746, 9 L.Ed. 283, Indian 'right of occupancy is considered as sacred as the fee simple of the whites."
10
The Santa Fe case also reaffirmed prior decisions to the effect that a tribal right of occupancy, to be protected, need not be 'based upon a treaty, statute, or other formal government action.' Id., at 347, 62 S.Ct., at 252. Tribal rights were nevertheless entitled to the protection of federal law, and with respect to Indian title based on aboriginal possession, the 'power of Congress . . . is supreme.' Ibid.
11
As indicated in Santa Fe, the fundamental propositions which it restated were firmly rooted in earlier cases. In Johnson v. M'Intosh, 8 Wheat. 543, 5 L.Ed. 681 (1823), the Court refused to recognize land titles originating in grants by Indians to private parties in 1773 and 1775; those grants were contrary to the accepted principle that Indian title could be extinguished only by or with the consent of the general government. The land in question, when ceded to the United States by the State of Virginia, was 'occupied by numerous and warlike tribes of Indians; but the exclusive right of the United States to extinguish their title, and to grant the soil, has never, we believe, been doubted.' Id., at 586, 5 L.Ed. 681. See also id., at 591—597, 603, 5 L.Ed. 681. The possessory and treaty rights of Indian tribes to their lands have been the recurring theme of many other cases.5
12
The rudimentary propositions that Indian title is a matter of federal law and can be extinguished only with federal consent apply in all of the States, including the original 13. It is true that the United States never held fee title to the Indian lands in the original States as it did to almost all the rest of the continental United States and that fee title to Indian lands in these States, or the pre-emptive right to purchase from the Indians, was in the State, Fletcher v. Peck, 6 Cranch 87, 3 L.Ed. 162 (1810).6 But this reality did not alter the doctrine that federal law, treaties, and statutes protected Indian occupancy and that its termination was exclusively the province of federal law.
13
For example, in Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483 (1832), the State of Georgia sought to prosecute a white man for residing in Indian country contrary to the laws of the State. This Court held the prosecution a nullity, the Chief Justice referring to the treaties with the Cherokees and to the
14
'universal conviction that the Indian nations possessed a full right to the lands they occupied, until that right should be extinguished by the United States, with their consent: that their territory was separated from that of any state within whose chartered limits they might reside, by a boundary line, established by treaties: that, within their boundary, they possessed rights with which no state could interfere: and that the whole power of regulating the intercourse with them, was vested in the United States.' Id., at 560, 8 L.Ed. 483.
15
The Cherokee Nation was said to be occupying its own territory 'in which the laws of Georgia can have no force . . ..' The Georgia law was declared unconstitutional because it interfered with the relations 'between the United States and the Cherokee nation, the regulation of which, according to the settled principles of our constitution, are committed exclusively to the government of the union.' Id., at 561, 8 L.Ed. 483.
16
There are cases of similar import with respect to the New York Indians. These cases lend substance to petitioners' assertion that the possessory right claimed is a federal right to the lands at issue in this case. Fellows v. Blacksmith, 19 How. 366, 372, 15 L.Ed. 684 (1857), which concerned the Seneca Indians, held that the 'forcible removal (of Indians) must be made, if made at all, under the direction of the United States (and) that this interpretation is in accordance with the usages and practice of the Government in providing for the removal of Indian tribes from their ancient possessions.' In The New York Indians, 5 Wall. 761, 18 L.Ed. 708 (1867), the State sought to tax the reservation lands of the Senecas. The Court held the tax void. The Court referred to the Indian right of occupancy as creating 'an indefeasible title to the reservations that may extend from generation to generation, and will cease only by the dissolution of the tribe, or their consent to sell to the party possessed of the right of pre-emption,' id., at 771, 18 L.Ed. 708, and noted that New York 'possessed no power to deal with Indian rights or title,' id., at 769, 18 L.Ed. 708. Of major importance, however, was the treaty of 1794 in which the United States acknowledged certain territory to be the property of the Seneca Nation and promised that 'it shall remain theirs until they choose to sell the same to the people of the United States . . ..' Id., at 766-767, 18 L.Ed. 708. The rights of the Indians to occupy those lands 'do not depend on . . . any . . . statutes of the State, but upon treaties, which are the supreme law of the land; it is to these treaties we must look to ascertain the nature of these rights, and the extent of them.' Id., at 768, 18 L.Ed. 708.7 The State's attempt to tax reservation lands was invalidated as an interference with Indian possessory rights guaranteed by the Federal Government.
17
Much later, in United States v. Forness, 125 F.2d 928 (CA2), cert. denied, sub. nom. City of Salamanca v. United States, 316 U.S. 694, 62 S.Ct. 1293, 86 L.Ed. 1764 (1942),8 the Government sued to set aside certain leases granted by the Seneca tribe on certain reservation lands. It was argued in opposition that the suit was merely an action for ejectment which under state law could be defeated by a tender; but the Court of Appeals for the Second Circuit held that the Indian rights were federal and that 'state law cannot be invoked to limit the rights in lands granted by the United States to the Indians, because, as the court below recognized, state law does not apply to the Indians except so far as the United States has given its consent.' Id., at 932. There being no federal statute making the statutory or decisional law of the State of New York applicable to the reservations, the controlling law remained federal law; and, absent federal statutory guidance, the governing rule of decision would be fashioned by the federal court in the mode of the common law.9
III
18
Enough has been said, we think, to indicate that the complaint in this case asserts a present right to possession under federal law. The claim may fail at a later stage for a variety of reasons; but for jurisdictional purposes, this is not a case where the underlying right or obligation arises only under state law and federal law is merely alleged as a barrier to its effectuation, as was the case in Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936). There, the suit was on a contract having its genesis in state law, and the tax that the defendant had promised to pay was imposed by a state statute. The possibility that a federal statute might bar its collection was insufficient to make the case one arising under the laws of the United States.
19
Nor in sustaining the jurisdiction of the District Court do we disturb the well-pleaded complaint rule of Taylor v. Anderson, supra, and like cases.10 Here, the right to possession itself is claimed to arise under federal law in the first instance. Allegedly, aboriginal title of an Indian tribe guaranteed by treaty and protected by statute has never been extinguished. In Taylor, the plaintiffs were individual Indians, not an Indian tribe; and the suit concerned lands allocated to individual Indians, not tribal rights to lands. See 32 Stat. 641. Individual patents had been issued with only the right to alienation being restricted for a period of time. Cf. Minnesota v. United States, 305 U.S. 382, 386 n. 1, 59 S.Ct. 292, 294, 83 L.Ed. 235 (1939); McKay v. Kalyton, 204 U.S. 458, 27 S.Ct. 346, 51 L.Ed. 566 (1907). Insofar as the underlying right to possession is concerned, Taylor is more like those cases indicating that 'a controversy in respect of lands has never been regarded as presenting a Federal question merely because one of the parties to it has derived his title under an act of Congress.' Shulthis v. McDougal, 225 U.S. 561, 570, 32 S.Ct. 704, 707, 56 L.Ed. 1205 (1912).11 Once patent issues, the incidents of ownership are, for the most part, matters of local property law to be vindicated in local courts, and in such situations it is normally insufficient for 'arising under' jurisdiction merely to allege that ownership or possession is claimed under a United States patent. Joy v. City of St. Louis, 201 U.S. 332, 342—343, 26 S.Ct. 478, 481, 50 L.Ed. 776 (1906). As the Court stated in Packer v. Bird, 137 U.S. 661, 669, 11 S.Ct. 210, 212, 34 L.Ed. 819 (1891):
20
'The courts of the United States will construe the grants of the general government without reference to the rules of construction adopted by the states for their grants; but whatever incidents or rights attach to the ownership of property conveyed by the government will be determined by the states, subject to the condition that their rules do not impair the efficacy of the grants or the use and enjoyment of the property by the grantee.'
21
In the present case, however, the assertion of a federal controversy does not rest solely on the claim of a right to possession derived from a federal grant of title whose scope will be governed by state law. Rather, it rests on the not insubstantial claim that federal law now protects, and has continuously protected from the time of the formation of the United States, possessory rights to tribal lands, wholly apart from the application of state law principles which normally and separately protect a valid right of possession.
22
For the same reasons, we think the complaint before us satisfies the additional requirement formulated in some cases that the complaint reveal a 'dispute or controversy respecting the validity, construction, or effect of such a law, upon the determination of which the result depends.' Shulthis v. mcDougal, supra, 225 U.S. at 569, 32 S.Ct. at 706; Gold-Washing & Water Co. v. Keyes, 96 U.S. 199, 203, 24 L.Ed. 656 (1878).12 Here, the Oneidas assert a present right to possession based in part on their aboriginal right of occupancy which was not terminable except by act of the United States. Their claim is also asserted to arise from treaties guaranteeing their possessory right until terminated by the United States, and 'it is to these treaties (that) we must look to ascertain the nature of these (Indian) rights, and the extent of them.' The New York Indians, 5 Wall., at 768, 18 L.Ed. 708. Finally, the complaint asserts a claim under the Nonintercourse Acts which put in statutory form what was or came to be the accepted rule—that the extinguishment of Indian title required the consent of the United States. To us, it is sufficiently clear that the controversy stated in the complaint arises under the federal law within the meaning of the jurisdictional statutes and our decided cases.
IV
23
This is not to ignore the obvious fact that New York had legitimate and farreaching connections with its Indian tribes antedating the Constitution and that the State has continued to play a substantial role with respect to the Indians in that State.13 There has been recurring tension between federal and state law; state authorities have not easily accepted the notion that federal law and federal courts must be deemed the controlling considerations in dealing with the Indians. Fellows v. Blacksmith, The New York Indians, United States v. Forness, and the Tuscarora litigation are sufficient evidence that the reach and exclusivity of federal law with respect to reservation lands and reservation Indians did not go unchallenged; and it may be that they are to some extent challenged here. But this only underlines the legal reality that the controversy alleged in the complaint may well depend on what the reach and impact of the federal law will prove to be in this case.
24
We are also aware that New York and federal authorities eventually reached partial agreement in 1948 when criminal jurisdiction over New York Indian reservations was ceded to the State. 62 Stat. 1224, 25 U.S.C. § 232. In addition, in 1950 civil disputes between Indians or between Indians and others were placed within the jurisdiction of the state courts 'to the same extent as the courts of the State shall have jurisdiction in other civil actions and proceedings, as now or hereafter defined by the laws of such State.' 64 Stat. 845, 25 U.S.C. § 233.14 The latter statute, however, provided for the preservation of tribal laws and customs and saved Indian reservation lands from taxation and, with certain exceptions, from execution to satisfy state court judgments. Furthermore, it provided that nothing in the statute 'shall be construed as authorizing the alienation from any Indian nation, tribe, or band of Indians of any lands within any Indian reservation in the State of New York' or as 'conferring jurisdiction on the courts of the State of New York or making applicable the laws of the State of New York in civil actions involving Indian lands or claims with respect thereto which relate to transactions or events transpiring prior to September 13, 1952.' The Senate report on the bill disclaimed any intention of 'impairing any of their property or rights under existing treaties with the United States.' S.Rep.No.1836, 81st Cong., 2d Sess., 2 (1950). Under the penultimate proviso the matter of alienating tribal reservation lands would appear to have been left precisely where it was prior to the Act.15 Moreover, the final proviso of the statute negativing the application of state law with respect to transactions prior to the adoption of the Act was added by amendment on the floor of the Senate, and its purpose was explained by the gentleman who offered it to be as follows:
25
'Mr. Chairman, I do not think there will be any objection from any source with regard to this particular amendment. This just assures the Indians of an absolutely fair and impartial determination of any claims they might have had growing out of any relationship they have had with the great State of New York in regard to their lands.
26
'I think there will be no objection to that; they certainly ought to have a right to have those claims properly adjudicated. . . .
27
'In addition thereto, of course, they may go into the Federal courts and adjudicate any differences they have had between themselves and the great State of New York relative to their lands, or claims in regard thereto, and I am sure that the State of New York should have and no doubt will have, no objection to such provision.' 96 Cong.Rec. 12460 (1950) (remarks of Congressman Morris).
28
Our conclusion that this case arises under the laws of the United States is, therefore, wholly consistent with and in furtherance of the intent of Congress as expressed by its grant of civil jurisdiction to the State of New York with the indicated exceptions.16
29
The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.
30
It is so ordered.
31
Reversed and remanded.
32
Mr. Justice REHNQUIST, with whom Mr. Justice POWELL joins, concurring.
33
The majority opinion persuasively demonstrates that the plaintiffs' right to possession in this case was and is rooted firmly in federal law. Thus, I agree that this is not a case which depends for its federal character solely on possible federal defenses or on expected responses to possible defenses. I also agree that the majority decision is consistent with our decision in Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936). However, I think it worthwhile to add a brief concurrence to emphasize that the majority opinion does not disturb the long line of this Court's cases narrowly applying the principles of 28 U.S.C. § 1331 and the well-pleaded complaint rule to possessory land actions brought in federal court.
34
As the majority seems willing to accept, the complaint in this action is basically one in ejectment. Plaintiffs are out of possession; the defendants are in possession, allegedly wrongfully; and the plaintiffs claim damages because of the allegedly wrongful possession. These allegations appear to meet the pleading requirements for an ejectment action as stated in Taylor v. Anderson, 234 U.S. 74, 34 S.Ct. 724, 58 L.Ed. 1218 (1914). Thus the complaint must be judged according to the rules applicable to such cases.
35
The federal courts have traditionally been inhospitable forums for plaintiffs asserting federal-question jurisdiction of possessory land claims. The narrow view of the scope of federal-question jurisdiction taken by the federal courts in such cases probably reflects a recognition that federal issues were seldom apt to be dispositive of the lawsuit. Commonly, the grant of a land patent to a private party carries with it no guarantee of continuing federal interest and certainly carries with it no indefinitely redeemable passport into federal court. On the contrary, as the majority points out, the land thus conveyed was generally subject to state law thereafter.
36
Thus, this Court's decisions have established a strict rule that mere allegation of a federal source of title does not convert an ordinary ejectment action into a federal case. As the Court noted in Shoshone Mining Co. v. Rutter, 177 U.S. 505, 507, 20 S.Ct. 726, 44 L.Ed. 864 (1900), 'a suit to enforce a right which takes its origin in the laws of the United States is not necessarily one arising under the Constitution or laws of the United States, within the meaning of the jurisdiction clauses, for if it did every action to establish title to real estate (at least in the newer States) would be such a one, as all titles in those States come from the United States or by virtue of its laws.' This rule was even applied to cases in which land grants to Indians, subject to limited restrictions on alienation, were involved. See Taylor, supra.
37
The majority today finds this strict rule inapplicable to this case, and for good reason. In contrast to the typical instance in which the Federal Government conveys land to a private entity, the Government, by transferring land rights to Indian tribes, has not placed the land beyond federal supervision. Rather the Federal Government has shown a continuing solicitude for the rights of the Indians in their land. The Nonintercourse Act of 1790 manifests this concern in statutory form. Thus, the Indians' right to possession in this case is based not solely on the original grant of rights in the land but also upon the Federal Government's subsequent guarantee. Their claim is clearly distinguishable from the claims of land grantees for whom the Federal Government has taken no such responsibility.
38
The opinion for the Court today should give no comfort to persons with garden-variety ejectment claims who, for one reason or another, are covetously eyeing the door to the federal courthouse. The general standards for determining federal jurisdiction, and in particular the standards for evaluating compliance with the well-pleaded complaint rule, will retain their traditional vigor tomorrow as today.
1
Section 1331(a) provides:
'The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.'
Under § 1362:
'The district courts shall have original jurisdiction of all civil actions, brought by any Indian tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States.'
2
Initially, only diversity jurisdiction under 28 U.S.C. § 1332 was alleged in the complaint. The necessary jurisdictional amount was averred. Federal-question jurisdiction was asserted by an amendment to the complaint. Jurisdiction under § 1332 was rejected by the District Court and the Court of Appeals and is not at issue here.
3
Three treaties with the Six Indian Nations of the Iroquois Confederacy in New York were alleged: the Treaty of Fort Stanwix of 1784, which provides in part that '(t)he Oneida and Tuscarora nations shall be secured in the possession of the lands on which they are settled'; The Treaty of Fort Harmar of 1789 where the Oneida and the Tuscarora nations were 'again secured and confirmed in the possession of their respective lands'; and the Treaty of Canandaigua of 1794, Art. II of which provides: 'The United States acknowledge the lands reserved to the Oneida, Onondaga and Cayuga Nations, in their respective treaties with the state of New-York, and called their reservations, to be their property; and the United States will never claim the same, nor disturb them . . . in the free use and enjoyment thereof: but the said reservations shall remain theirs, until they choose to sell the same to the people of the United States, who have the right to purchase.' The treaties referred to are found at 7 Stat. 15, 7 Stat. 33, and 7 Stat. 44, respectively.
4
Section 4 of the Act provided that 'no sale of lands made by any Indians, or any nation or tribe of Indians within the United States, shall be valid to any person or persons, or to any state, whether having the right of pre-emption to such lands or not, unless the same shall be made and duly executed at some public treaty, held under the authority of the United States.' The second Nonintercourse Act passed in 1793 made it a misdemeanor to negotiate for Indian lands without federal authority, but it was made lawful for state agents who were present at any treaty held with the Indians under the authority of the United States, in the presence and with the approbation of the United States Commissioner, 'to propose to, and adjust with the Indians, the compensation to be made for their claims to lands within such state, which shall be extinguished by the treaty.' 1 Stat. 329, 330—331 § 8. This statutory policy, without major change, was carried forward in § 12 of the 1796 Act, 1 Stat. 469, 472; § 12 of the 1799 Act, 1 Stat. 743, 746; § 12 of the 1802 Act, 2 Stat. 139, 143; § 12 of the Act of 1834, 4 Stat. 729, 730—731; and in Rev.Stat. § 2116, now 25 U.S.C. § 177.
5
Representative of almost countless cases are Cherokee Nation v. Georgia, 5 Pet. 1, 8 L.Ed. 25 (1831); United States v. Rogers, 4 How. 567, 11 L.Ed. 1105 (1846); The Kansas Indians, 5 Wall. 737, 18 L.Ed. 667 (1866); The New York Indians, 5 Wall. 761, 18 L.Ed. 708 (1867); Holden v. Joy, 17 Wall. 211, 21 L.Ed. 523 (1872); Beecher v. Wetherby, 95 U.S. 517, 24 L.Ed. 440 (1877); United states v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886); Spalding v. Chandler, 160 U.S. 394, 16 S.Ct. 360, 40 L.Ed. 469 (1896); United States v. Sandoval, 231 U.S. 28, 34 S.Ct. 1, 58 L.Ed. 107 (1913); Nadeau v. Union Pacific R. Co., 253 U.S. 442, 40 S.Ct. 570, 64 L.Ed. 1002 (1920); Minnesota v. United States, 305 U.S. 382, 59 S.Ct. 292, 83 L.Ed. 235 (1939); United States v. Alcea Band of Tillamooks, 329 U.S. 40, 67 S.Ct. 167, 91 L.Ed. 29 (1946); Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 75 S.Ct. 313, 99 L.Ed. 314 (1955).
U.S. Dept. of Interior, Federal Indian Law 32—43, 583—645, 675—687 (1958) (hereinafter Federal Indian Law), sets out some of the fundamentals of the law dealing with Indian possessory rights to real property stemming from aboriginal title, treaty, and statute.
6
See also Cherokee Nation v. Georgia, supra, 5 Pet., at 38, 8 L.Ed. 25; Clark v. Smith, 13 Pet. 195, 10 L.Ed. 123 (1839); Lattimer's Lessee v. Poteet, 14 Pet. 4, 10 L.Ed. 328 (1840); Seneca Nation v. Christy, 162 U.S. 283, 16 S.Ct. 828, 40 L.Ed. 970 (1896). 'Outside of the territory of the original colonies, the ultimate fee is located in the United States and may be granted to individuals subject to the Indian right of occupancy.' Federal Indian Law 599; Missouri v. Iowa, 7 How. 660, 12 L.Ed. 861 (1849).
7
In an earlier case, New York ex rel. Cutler v. Dibble, 21 How. 366, 16 L.Ed. 149 (1859), the Court had upheld New York statutes which protected the Indians from intrusion by others on their tribal lands, and had asserted that '(n)otwithstanding the peculiar relation which these Indian nations hold to the Government of the United States, the State of New York had the power of a sovereign over their persons and property, so far as it was necessary to preserve the peace of the Commonwealth, and protect these feeble and helpless bands from imposition and intrusion.' Id., at 370, 16 L.Ed. 149. It is apparent that by the later decision in The New York Indians, supra, the Court did not consider the potential implications of the dictum expressed in Dibble applicable in situations where the State's power was exercised other than for the protection of the Indians on their tribal lands. In any event, whatever Dibble may have held with respect to state power to protect Indian possession, it does not question the Indians' right to possession under federal law.
8
The question of the application of federal law to Indian tribal property in New York was litigated in the state courts in the intervening years as well. In 1870, an unreported decision of the New York Supreme Court held that tribal leases of Seneca reservation lands, ratified by the New York Legislature, were invalid in the absence of approval from the United States. See United States v. Forness, supra, at 930—931; H.R.Rep.Misc.Doc.No.75, 43d
Cong., 2d Sess. (1875); Brief for the Warden and the State of New York 26—27, New York ex rel. Ray v. Martin, No. 158, O.T.1945, 326 U.S. 496, 66 S.Ct. 307, 90 L.Ed. 261 (1946). In the mid-1890's, in Buffalo, R. & P.R. Co. v. Lavery, 75 Hun. 396, 27 N.Y.S. 443 (5th Dept., App.Div.1894), affirmed on opinion below, 149 N.Y. 576, 43 N.E. 986 (1896), a private non-Indian lessee of Indian land under a lease first granted by the Senecas in 1866, which was concededly not legally effective until an 1875 Act of Congress validated such leases, was nonetheless held to have priority over a railroad claiming under an 1872 lease from the Senecas and a state statute purportedly validating the lease as one to a railroad which had been ratified by a state court, because the state statute which would have given the railroad a superior right to possession was incapable of confirming possessory rights to Indian tribal lands without federal authority. The New York courts held that it was 'not within the legislative power of the State to enable the Indian nation to make, or others to take from the Indians, grants or leases of lands within their reservations. In that matter the Federal government, having the power under the Constitution to do so, has assumed to control it by . . . act of Congress (referring to the Indian Nonintercourse Act). . . . As respects their lands, subject only to the pre-emptive title, the Indians are treated as the wards of the United States, and it is only pursuant to the Federal authority that their lands can be granted or demised by or acquired by conveyance or leased from them.' 75 Hun., at 399—400, 27 N.Y.S., at 445.
Still later, in People ex rel. Cusick v. Daly, 212 N.Y. 183, 105 N.E. 1048 (1914), the New York Court of Appeals held that without the consent of Congress New York could not prosecute Indian crimes on reservations. Relying on the classic federal cases, the court held that federal power was pre-eminent and that the Federal Government had made treaties with the Indians which confirmed their territorial possession, although the Federal Government never owned the fee of the land within the State's confines. Id., at 192, 105 N.E. 1048. Within the reservation federal power, when exercised, foreclosed the exercise of power by the State. 'It is said that there is a difference between the Indians whose reservations are the direct gift of the federal government and those whose reservations have been derived from
the state or from other sources. We find no such distinction in the statute, and we can think of none that logically differentiates one from the other. Even if we assume that, in the absence of federal legislation, the state has the most ample power to legislate for the Indians within its borders, there seems to be no escape from the conclusion that when Congress does act the power of the state must yield to the paramount authority of the federal government.' Id., at 196—197, 105 N.E., at 1052.
9
Still later, federal authority over Indian lands was again challenged. In Tuscarora Nation of Indians v. Power Authority, 257 F.2d 885 (1958), the Court of Appeals for the Second Circuit rejected New York's claim that the Nonintercourse Act did not apply to the State of New York and that, as one of the original 13 States, it never surrendered to the United States its power to condemn Indian lands. The Court of Appeals also held that the Act of Sept. 13, 1950, 64 Stat. 845, 25 U.S.C. § 233, whereby the United States ceded civil jurisdiction over Indian reservations to the State of New York, expressly and effectively excepted from its coverage the alienation of reservation lands, a matter over which the United States had reaffirmed its paramount authority. Nonetheless, the Court of Appeals held that the Niagara River Power Project Act, 71 Stat. 401 (1957), 16 U.S.C. §§ 836, 836a, by which Congress directed the Federal Power Commission to issue a license to the New York Power Authority for the construction and operation of a power
project to utilize water made available to the United States by a 1950 treaty with Canada, constituted federal authorization for the Power Authority to exercise the right of eminent domain, but only in accordance with § 21 of the Federal Power Act, 41 Stat. 1074, 16 U.S.C. § 814, which permits the acquisition of sites for the purpose of developing waterways by the exercise of the right of eminent domain in the federal district court in which the land is located or in the state courts. Because the Power Authority had proceeded to appropriate a portion of the Tuscaroras' reservation lands by filing a map and other documents pursuant to procedures established by the State's Highway Law and Public Authorities Law, those proceedings were vacated and annulled. Subsequently, the Power Authority abandoned efforts to obtain possession of the land by appropriation pursuant to those statutes and instead proceeded by condemnation proceedings in the District Court for the Western District of New York. The Tuscaroras petitioned for review of the Court of Appeals decision, but the Court denied certiorari. 358 U.S. 841, 79 S.Ct. 66, 3 L.Ed.2d 76 (1958). The Superintendent of Public Works of the State of New York simultaneously appealed from it under 28 U.S.C. § 1254(2), and the Court, on the Tuscaroras' subsequent suggestion of mootness, which the Power Authority supported and the Superintendent continued to oppose, and which was based on the Power Authority's abandonment of its appropriation proceedings in favor of the condemnation suit, vacated the Court of Appeals' judgment and remanded to the District Court with directions to dismiss the complaint as moot. 362 U.S. 608, 80 S.Ct. 960, 4 L.Ed.2d 1009 (1960). See Records and Briefs in No. 384, O.T.1958; Records and Briefs in No. 4, O.T.1959.
10
See, e.g., Gold-Washing & Water Co. v. Keyes, 96 U.S. 199, 24 L.Ed. 656 (1878); Florida C. & P.R. Co. v. Bell, 176 U.S. 321, 20 S.Ct. 399, 44 L.Ed. 486 (1900); Filhiol v. Maurice, 185 U.S. 108, 22 S.Ct. 560, 46 L.Ed. 827 (1902); Filhiol v. Torney, 194 U.S. 356, 24 S.Ct. 698, 48 L.Ed. 1014 (1904); Joy v. City of St. Louis, 201 U.S. 332, 26 S.Ct. 478, 50 L.Ed. 776 (1906); White v. Sparkill Realty Corp., 280 U.S. 500, 50 S.Ct. 186, 74 L.Ed. 578 (1930).
11
Florida C. & P.R. Co. v. Bell, supra, 176 U.S., at 328 329, 20 S.Ct., at 402; Joy v. City of St. Louis, supra, 201 U.S., at 341—342, 26 S.Ct., at 480.
12
Tennessee v. Union & Planters' Bank, 152 U.S. 454, 460, 14 S.Ct. 654, 656, 38 L.Ed. 511 (1894); Joy v. City of St. Louis, supra, 201 U.S., at 340, 26 S.Ct., at 480.
13
For brief accounts of the New York experience with its Indians, see Federal Indian Law, 965—979; Gunther, Governmental Power and York Indian Lands—A Reassessment of a Persistent Problem of Federal-State Relations, 8 Buffalo L.Rev. 1 (1958); Brief for the Warden and the State of New York, New York ex rel. Ray v. Martin, No. 158, O.T.1945, 326 U.S. 496, 66 S.Ct. 307, 90 L.Ed. 261 (1946).
14
Section 233 provides:
'Jurisdiction of New York State courts in civil actions.
'The courts of the State of New York under the laws of such State shall have jurisdiction in civil actions and proceedings between Indians or between one or more Indians and any other person or persons to the same extent as the courts of the State shall have jurisdiction in other civil actions and proceedings, as now or hereafter defined by the laws of such Stat: Provided, That the governing body of any recognized tribe of Indians in the State of New York shall have the right to declare, by appropriate enactment prior to September 13, 1952, those tribal laws and customs which they desire to preserve, which, on certification to the Secretary of the Interior by the governing body of such tribe shall be published in the Federal Register and thereafter shall govern in all civil cases involving reservation Indians when the subject matter of such tribal laws and customs is involved or at issue, but nothing herein contained shall be construed to prevent such courts from recognizing and giving effect to any tribal law or custom which may be proven to the satisfaction of such courts: Provided further, That nothing in this section shall be construed to require any such tribe or the members thereof to obtain fish and game licenses from the State of New York for the exercise of any hunting and fishing rights provided for such Indians under any agreement, treaty, or custom:
Provided further, That nothing herein contained shall be construed as subjecting the lands within any Indian reservation in the State of New York to taxation for State or local purposes, nor as subjecting any such lands, or any Federal or State annuity in favor of Indians or Indian tribes, to execution on any judgment rendered in the State courts, except in the enforcement of a judgment in a suit by one tribal member against another in the matter of the use or possession of land: And provided further, That nothing herein contained shall be construed as authorizing the alienation from any Indian nation, tribe, or band of Indians of any lands within any Indian reservation in the State of New York: Provided further, That nothing herein contained shall be construed as conferring jurisdiction on the courts of the State of New York or making applicable the laws of the State of New York in civil actions involving Indian lands or claims with respect thereto which relate to transactions or events transpiring prior to September 13, 1952.'
15
'The text and history of the new legislation are replete with indications that congressional consent is necessary to validate the
exercise of state power over tribal Indians and, most significantly, that New York cannot unilaterally deprive Indians of their tribal lands or authorize such deprivations. The civil jurisdiction law, to make assurance doubly sure, contains a proviso that explicitly exempts reservations from state and local taxation and that negatives any authorization of 'the alienation from any Indian nation, tribe, or band or Indians of any land within any Indian reservation in the State of New York.' The Senate Committee's report on that law emphasizes that 'State law does not apply to Indians except so far as the United States has given its consent' and points out that the law provides that 'no lands within any reservation be alienated.' During the congressional hearings, most Indian leaders continued to oppose the bills, partly because of fear of state attempts to deprive them of their reservations, despite the New York Joint Committee's repeated assurances. Accordingly, New York's representatives once more disavowed any intention to break up the reservations and, more clearly than some state officials in the history of the controversy, disclaimed any state power to do so. Moreover, both federal and state officials agreed that the bills would retain ultimate federal power over the Indians and that federal guardianship, particularly with respect to property rights, would continue.' Gunther, supra, n. 13, 8 Buffalo L.Rev., at 16. (Footnotes omitted.)
16
Because of our determination that the complaint states a controversy arising under the laws of the United States sufficient to invoke the jurisdiction of the District Court under §§ 1331 and 1362, in accordance with prior decisions of this Court, we have no occasion to address and do not reach the contention pressed by petitioners that the Congress, in enacting § 1362 in 1966, 80 Stat. 880, intended to expand the scope of 'arising under' jurisdiction in the District Courts, beyond what judicial interpretations of that language have allowed under § 1331, for that category of suits brought by Indian tribes, in addition to eliminating the amount in controversy requirement when Indian tribes sue.
| 12
|
415 U.S. 36
94 S.Ct. 1011
39 L.Ed.2d 147
Harrell ALEXANDER, Sr., Petitioner,v.GARDNER-DENVER COMPANY.
No. 72—5847.
Argued Nov. 5, 1973.
Decided Feb. 19, 1974.
Syllabus
Following discharge by his employer, respondent company, petitioner, a black, filed a grievance under the collective-bargaining agreement between respondent and petitioner's union, which contained a broad arbitration clause, petitioner ultimately claiming that his discharge resulted from racial discrimination. Upon rejection by the company of petitioner's claims, an arbitration hearing was held, prior to which petitioner filed with the Colorado Civil Rights Commission a racial discrimination complaint which was referred to the Equal Employment Opportunity Commission (EEOC). The arbitrator ruled that petitioner's discharge was for cause. Following the EEOC's subsequent determination that there was not reasonable ground to believe that a violation of Title VII of the Civil Rights Act of 1964 had occurred, petitioner brought this action in District Court, alleging that his discharge resulted from a racially discriminatory employment practice in violation of the Act. The District Court granted respondent's motion for summary judgment, holding that petitioner was bound by the prior arbitral decision and had no right to sue under Title VII. The Court of Appeals affirmed. Held: An employee's statutory right to trial de novo under Title VII of the Civil Rights Act of 1964 is not foreclosed by prior submission of his claim to final arbitration under the nondiscrimination clause of a collective-bargaining agreement. Pp. 44—60.
(a) Title VII was designed to supplement, rather than supplant, existing laws and institutions relating to employment discrimination, as may be inferred from the legislative history of Title VII, which manifests a congressional intent to allow an individual to pursue rights under Title VII and other applicable state and federal statutes. Pp. 47—49.
(b) The doctrine of election of remedies is inapplicable in the present context, which involves statutory rights distinctly separate from the employee's contractual rights, regardless of the fact that violation of both rights may have resulted from the same factual occurrence. Pp. 49—51.
(c) By merely resorting to the arbitral forum petitioner did not waive his cause of action under Title VII; the rights conferred thereby cannot be prospectively waived and form no part of the collective-bargaining process. Pp. 51—52.
(d) The arbitrator's authority is confined to resolution of questions of contractual rights, regardless of whether they resemble or duplicate Title VII rights. Pp. 52—54.
(e) In instituting a Title VII action, the employee is not seeking review of the arbitrator's decision and thus getting (as the District Court put it) 'two strings to his bow when the employer has only one,' but is asserting a right independent of the arbitration process that the statute gives to employees, the only possible victims of discriminatory employment practices. P. 54.
(f) Permitting an employee to resort to the judicial forum after arbitration procedures have been followed does not undermine the employer's incentive to arbitrate, as most employers will regard the benefits from a no-strike pledge in the arbitration agreement as outweighing any costs resulting from giving employees an arbitral antidiscrimination remedy in addition to their Title VII judicial remedy. Pp. 54—55.
(g) A policy of deferral by federal courts to arbitral decisions (as opposed to adoption of a preclusion rule) would not comport with the congressional objective that federal courts should exercise the final responsibility for enforcement of Title VII and would lead to: the arbitrator's emphasis on the law of the shop rather than the law of the land; factfinding and other procedures less complete than those followed in a judicial forum; and perhaps employees bypassing arbitration in favor of litigation. Pp. 55—59.
(h) In considering an employee's claim, the federal court may admit the arbitral decision as evidence and accord it such weight as may be appropriate under the facts and circumstances of each case. Pp. 59—60.
10 Cir., 466 F.2d 1209, reversed.
Paul J. Spiegelman, Washington, D.C., for petitioner.
Robert G. Good, Denver, Colo., for respondent.
Lawrence G. Wallace, Washington, D.C., for the U.S., as amicus curiae, by special leave of Court.
Mr. Justice POWELL delivered the opinion of the Court.
1
This case concerns the proper relationship between federal courts and the grievance-arbitration machinery of collective-bargaining agreements in the resolution and enforcement of an individual's rights to equal employment opportunities under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U.S.C. § 2000e et seq. Specifically, we must decide under what circumstances, if any, an employee's statutory right to a trial de novo under Title VII may be foreclosed by prior submission of his claim to final arbitration under the nondiscrimination clause of a collective-bargining agreement.
2
* In May 1966, petitioner Harrell Alexander, Sr., a black, was hired by respondent Gardner-Denver Co. (the company) to perform maintenance work at the company's plant in Denver, Colorado. In June 1968, petitioner was awarded a trainee position as a drill operator. He remained at that job until his discharge from employment on September 29, 1969. The company informed petitioner that he was being discharged for producing too many defective or unusable parts that had to be scrapped.
3
On October 1, 1969, petitioner filed a grievance under the collective-bargaining agreement in force between the company and petitioner's union, Local No. 3029 of the United Steelworkers of America (the union). The grievance stated: 'I feel I have been unjustly discharged and ask that I be reinstated with full seniority and pay.' No explicit claim of racial discrimination was made.
4
Under Art. 4 of the collective-bargaining agreement, the company retained 'the right to hire, suspend or discharge (employees) for proper cause.'1 Article 5, § 2, provided, however, that 'there shall be no discrimination against any employee on account of race, color, religion, sex, national origin, or ancestry,'2 and Art. 23, § 6(a), stated that '(n)o employee will be discharged, suspended or given a written warning notice except for just cause.' The agreement also contained a broad arbitration clause covering 'differences aris(ing) between the Company and the Union as to the meaning and application of the provisions of this Agreement' and 'any trouble aris(ing) in the plant.'3 Disputes were to be submitted to a multistep grievance procedure, the first four steps of which involved negotiations between the company and the union. If the dispute remained unresolved, it was to be remitted to compulsory arbitration. The company and the union were to select and pay the arbitrator, and his decision was to be 'final and binding upon the Company, the Union, and any employee or employees involved.' The agreement further provided that '(t)he arbitrator shall not amend, take away, add to, or change any of the provisions of this Agreement, and the arbitrator's decision must be based solely upon an interpretation of the provisions of this Agreement.' The parties also agreed that there 'shall be no suspension of work' over disputes covered by the grievance arbitration clause.
5
The union processed petitioner's grievance through the above machinery. In the final pre-arbitration step, petitioner raised, apparently for the first time, the claim that his discharge resulted from racial discrimination. The company rejected all of petitioner's claims, and the grievance proceeded to arbitration. Prior to the arbitration hearing, however, petitioner filed a charge of racial discrimination with the Colorado Civil Rights Commission, which referred the complaint to the Equal Employment Opportunity Commission on November 5, 1969.
6
At the arbitration hearing on November 20, 1969, petitioner testified that his discharge was the result of racial discrimination and informed the arbitrator that he had filed a charge with the Colorado Commission because he 'could not rely on the union.' The union introduced a letter in which petitioner stated that he was 'knowledgeable that in the same plant others have scrapped an equal amount and sometimes in excess, but by all logical reasoning I . . . have been the target of preferential discriminatory treatment.' The union representative also testified that the company's usual practice was to transfer unsatisfactory trainee drill operators back to their former positions.
7
On December 30, 1969, the arbitrator ruled that petitioner had been 'discharged for just cause.' He made no reference to petitioner's claim of racial discrimination. The arbitrator stated that the union had failed to produce evidence of a practice of transferring rather than discharging trainee drill operators who accumulated excessive scrap, but he suggested that the company and the union confer on whether such an arrangement was feasible in the present case.
8
On July 25, 1970, the Equal Employment Opportunity Commission determined that there was not reasonable cause to believe that a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., had occurred. The Commission later notified petitioner of his right to institute a civil action in federal court within 30 days. Petitioner then filed the present action in the United States District Court for the District of Colorado, alleging that his discharge resulted from a racially discriminatory employment practice in violation of § 703(a)(1) of the Act, 42 U.S.C. § 2000e—2(a)(1).
9
The District Court granted respondent's motion for summary judgment and dismissed the action. 346 F.Supp. 1012 (1971). The court found that the claim of racial discrimination had been submitted to the arbitrator and resolved adversely to petitioner.4 It then held that petitioner, having voluntarily elected to pursue his grievance to final arbitration under the nondiscrimination clause of the collective-bargaining agreement, was bound by the arbitral decision and thereby precluded from suing his employer under Title VII. The Court of Appeals for the Tenth Circuit affirmed per curiam on the basis of the District Court's opinion. 466 F.2d 1209 (1972).
10
We granted petitioner's application for certiorari. 410 U.S. 925, 93 S.Ct. 1398, 35 L.Ed.2d 586 (1973). We reverse.
II
11
Congress enacted Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., to assure equality of employment opportunities by eliminating those practices and devices that discriminate on the basis of race, color, religion, sex, or national origin. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668 (1973); Griggs v. Duke Power Co., 401 U.S. 424, 429—430, 91 S.Ct. 849, 852—853, 28 L.Ed.2d 158 (1971). Cooperation and voluntary compliance were selected as the preferred means for achieving this goal. To this end, Congress created the Equal Employment Opportunity Commission and established a procedure whereby existing state and local equal employment opportunity agencies, as well as the Commission, would have an opportunity to settle disputes through conference, conciliation, and persuasion before the aggrieved party was permitted to file a lawsuit. In the Equal Employment Opportunity Act of 1972, Pub. L. 92—261, 86 Stat. 103, Congress amended Title VII to provide the Commission with further authority to investigate individual charges of discrimination, to promote voluntary compliance with the requirements of Title VII, and to institute civil actions against employers or unions named in a discrimination charge.
12
Even in its amended form, however, Title VII does not provide the Commission with direct powers of enforcement. The Commission cannot adjudicate claims or impose administrative sanctions. Rather, final responsibility for enforcement of Title VII is vested with federal courts. The Act authorizes courts to issue injunctive relief and to order such affirmative action as may be appropriate to remedy the effects of unlawful employment practices. 42 U.S.C. §§ 2000e—5(f) and (g) (1970 ed., Supp. II). Courts retain these broad remedial powers despite a Commission finding of no reasonable cause to believe that the Act has been violated. McDonnell Douglas Corp. v. Green, supra, 411 U.S., at 798—799, 93 S.Ct., at 1822—1823. Taken together, these provisions make plain that federal courts have been assigned plenary powers to secure compliance with Title VII.
13
In addition to reposing ultimate authority in federal courts, Congress gave private individuals a significant role in the enforcement process of Title VII. Individual grievants usually initiate the Commission's investigatory and conciliatory procedures. And although the 1972 amendment to Title VII empowers the Commission to bring its own actions, the private right of action remains an essential means of obtaining judicial enforcement of Title VII. 42 U.S.C. § 2000e—5(f)(1) (1970 ed., Supp. II). In such cases, the private litigant not only redresses his own injury but also vindicates the important congressional policy against discriminatory employment practices. Hutchings v. United States Industries, Inc., 428 F.2d 303, 310 (CA5 1970); Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 715 (CA7 1969); Jenkins v. United Gas Corp., 400 F.2d 28, 33 (CA5 1968). See also Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968).
14
Pursuant to this statutory scheme, petitioner initiated the present action for judicial consideration of his rights under Title VII. The District Court and the Court of Appeals held, however, that petitioner was bound by the prior arbitral decision and had no right to sue under Title VII.5 Both courts evidently thought that this result was dictated by notions of election of remedies and waiver and by the federal policy favoring arbitration of labor disputes, as enunciated by this Court in Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 923, 1 L.Ed.2d 972 (1957), and the Steelworkers trilogy6 See also Boys Markets, Inc. v. Retail Clerks' Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970); Gateway Coal Co. v. United Mine Workers of America, 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974). We disagree.
III
15
Title VII does not speak expressly to the relationship between federal courts and the grievance-arbitration machinery of collective-bargaining agreements. It does, however, vest federal courts with plenary powers to enforce the statutory requirements; and it specifies with precision the jurisdictional prerequisites that an individual must satisfy before he is entitled to institute a lawsuit. In the present case, these prerequisites were met when petitioner (1) filed timely a charge of employment discrimination with the Commission, and (2) received and acted upon the Commission's statutory notice of the right to sue. 42 U.S.C. § 2000e—5(b), (e), and (f). See McDonnell Douglas Corp. v. Green, supra, 411 U.S., at 798, 93 S.Ct., at 1822. There is no suggestion in the statutory scheme that a prior arbitral decision either forecloses an individual's right to sue or divests federal courts of jurisdiction.
16
In addition, legislative enactments in this area have long evinced a general intent to accord parallel or overlapping remedies against discrimination.7 In the Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq., Congress indicated that it considered the policy against discrimination to be of the 'highest priority.' Newman v. Piggie Park Enterprises, Inc., supra, 390 U.S., at 402, 88 S.Ct. at 966. Consistent with this view, Title VII provides for consideration of employment-discrimination claims in several forums. See 42 U.S.C. § 2000e—5(b) (1970 ed., Supp. II) (EEOC); 42 U.S.C. § 2000e—5(c) (1970 ed., Supp. II) (state and local agencies); 42 U.S.C. § 2000e—5(f) (1970 ed., Supp. II) (federal courts). And, in general, submission of a claim to one forum does not preclude a later submission to another.8 Moreover, the legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes.9 The clear inference is that Title VII was designed to supplement rather than supplant, existing laws and institutions relating to employment discrimination. In sum, Title VII's purpose and procedures strongly suggest that an individual does not forfeit his private cause of action if he first pursues his grievance to final arbitration under the nondiscrimination clause of a collective-bargaining agreement.
17
In reaching the opposite conclusion, the District Court relied in part on the doctrine of election of remedies.10 That doctrine, which refers to situations where an individual pursues remedies that are legally or factually inconsistent,11 has no application in the present context. In submitting his grievance to arbitration, an employee seeks to vindicate his contractual right under a collective-bargaining agreement. By contrast, in filing a lawsuit under Title VII, an employee asserts independent statutory rights accorded by Congress. The distinctly separate nature of these contractual and statutory rights is not vitiated merely because both were violated as a result of the same factual occurrence. And certainly no inconsistency results from permitting both rights to be enforced in their respectively appropriate forums. The resulting scheme is somewhat analogous to the procedure under the National Labor Relations Act, as amended,12 where disputed transactions may implicate both contractual and statutory rights. Where the statutory right underlying a particular claim may not be abridged by contractual agreement, the Court has recognized that consideration of the claim by the arbitrator as a contractual dispute under the collective-bargaining agreement does not preclude subsequent consideration of the claim by the National Labor Relations Board as an unfair labor practice charge or as a petition for clarification of the union's representation certificate under the Act. Carey v. Westinghouse Electric Corp., 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320 (1964).13 Cf. Smith v. Evening News Assn., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). There, as here, the relationship between the forums is complementary since consideration of the claim by both forums may promote the policies underlying each. Thus, the rationale behind the election-of-remedies doctrine cannot support the decision below.14
18
We are also unable to accept the proposition that petitioner waived his cause of action under Title VII. To begin, we think it clear that there can be no prospective waiver of an employee's rights under Title VII. It is true, of course, that a union may waive certain statutory rights related to collective activity, such as the right to strike. Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 76 S.Ct. 349, 100 L.Ed. 309 (1956); Boys Markets, Inc. v. Retail Clerk's Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). These rights are conferred on employees collectively to foster the processes of bargaining and properly may be exercised or relinquished by the union as collective-bargaining agent to obtain economic benefits for union members. Title VII, on the other hand, stands on plainly different ground; it concerns not majoritarian processes, but an individual's right to equal employment opportunities. Title VII's strictures are absolute and represent a congressional command that each employee be free from discriminatory practices. Of necessity, the rights conferred can form no part of the collective-bargaining process since waiver of these rights would defeat the paramount congressional purpose behind Title VII. In these circumstances, an employee's rights under Title VII are not susceptible of prospective waiver. See Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953).
19
The actual submission of petitioner's grievance to arbitration in the present case does not alter the situation. Although presumably an employee may waive his cause of action under Title VII as part of a voluntary settlement,15 mere resort to the arbitral forum to enforce contractual rights constitutes no such waiver. Since an employee's rights under Title VII may not be waived prospectively, existing contractual rights and remedies against discrimination must result from other concessions already made by the union as part of the economic bargain struck with the employer. It is settled law that no additional concession may be exacted from any employee as the price for enforcing those rights. J. I. Case Co. v. NLRB, 321 U.S. 332, 338—339, 64 S.Ct. 576, 580 581, 88 L.Ed. 762 (1944).
20
Moreover, a contractual right to submit a claim to arbitration is not displaced simply because Congress also has provided a statutory right against discrimination. Both rights have legally independent origins and are equally available to the aggrieved employee. This point becomes apparent through consideration of the role of the arbitrator in the system of industrial self-government.16 As the proctor of the bargain, the arbitrator's task is to effectuate the intent of the parties. His source of authority is the collective-bargaining agreement, and he must interpret and apply that agreement in accordance with the 'industrial common law of the shop' and the various needs and desires of the parties. The arbitrator, however, has no general authority to invoke public laws that conflict with the bargain between the parties:
21
'(A)n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.' United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960).
22
If an arbitral decision is based 'solely upon the arbitrator's view of the requirements of enacted legislation,' rather than on an interpretation of the collective-bargaining agreement, the arbitrator has 'exceeded the scope of the submission,' and the award will not be enforced. Ibid. Thus the arbitrator has authority to resolve only questions of contractual rights, and this authority remains regardless of whether certain contractual rights are similar to, or duplicative of, the substantive rights secured by Title VII.
IV
23
The District Court and the Court of Appeals reasoned that to permit an employee to have his claim considered in both the arbitral and judicial forums would be unfair since this would mean that the employer, but not the employee, was bound by the arbitral award. In the District Court's words, it could not 'accept a philosophy which gives the employee two strings to his bow when the employer has only one.' 346 F.Supp., at 1019. This argument mistakes the effect of Title VII. Under the Steelworkers trilogy, an arbitral decision is final and binding on the employer and employee, and judicial review is limited as to both. But in instituting an action under Title VII, the employee is not seeking review of the arbitrator's decision. Rather, he is asserting a statutory right independent of the arbitration process. An employer does not have 'two strings to his bow' with respect to an arbitral decision for the simple reason that Title VII does not provide employers with a cause of action against employees. An employer cannot be the victim of discriminatory employment practices. Oubichon v. North American Rockwell Corp., 482 F.2d 569, 573 (CA9 1973).
24
The District Court and the Court of Appeals also thought that to permit a later resort to the judicial forum would undermine substantially the employer's incentive to arbitrate and would 'sound the death knell for arbitration clauses in labor contracts.' 346 F.Supp., at 1019. Again, we disagree. The primary incentive for an employer to enter into an arbitration agreement is the union's reciprocal promise not to strike. As the Court stated in Boys Markets, Inc. v. Retail Clerk's Union, 398 U.S., at 248, 90 S.Ct., at 1591, a no-strike obligation, express or implied, is the quid pro quo for an undertaking by the employer to submit grievance disputes to the process of arbitration.' It is not unreasonable to assume that most employers will regard the benefits derived from a no-strike pledge as outweighing whatever costs may result from according employees an arbitral remedy against discrimination in addition to their judicial remedy under Title VII. Indeed, the severe consequences of a strike may make an arbitration clause almost essential from both the employees' and the employer's perspective. Moreover, the grievance-arbitration machinery of the collective-bargaining agreement remains a relatively inexpensive and expeditious means for resolving a wide range of disputes, including claims of discriminatory employment practices. Where the collective-bargaining agreement contains a nondiscriination clause similar to Title VII, and where arbitral procedures are fair and regular, arbitration may well produce a settlement satisfactory to both employer and employee. An employer thus has an incentive to make available the conciliatory and therapeutic processes of arbitration which may satisfy an employee's perceived need to resort to the judicial forum, thus saving the employer the expense and aggravation associated with a lawsuit. For similar reasons, the employee also has a strong incentive to arbitrate grievances, and arbitration may often eliminate those misunderstandings or discriminatory practices that might otherwise precipitate resort to the judicial forum.
V
25
Respondent contends that even if a preclusion rule is not adopted, federal courts should defer to arbitral decisions on discrimination claims where: (i) the claim was before the arbitrator; (ii) the collective-bargaining agreement prohibited the form of discrimination charged in the suit under Title VII; and (iii) the arbitrator has authority to rule on the claim and to fashion a remedy.17 Under respondent's proposed rule, a court would grant summary judgment and dismiss the employee's action if the above conditions were met. The rule's obvious consequence in the present case would be to deprive the petitioner of his statutory right to attempt to establish his claim in a federal court.
26
At the outset, it is apparent that a deferral rule would be subject to many of the objections applicable to a preclusion rule. The purpose and procedures of Title VII indicate that Congress intended federal courts to exercise final responsibility for enforcement of Title VII; deferral to arbitral decisions would be inconsistent with that goal. Furthermore, we have long recognized that 'the choice of forums inevitably affects the scope of the substantive right to be vindicated.' U.S. Bulk Carriers v. Arguelles, 400 U.S. 351, 359—360, 91 S.Ct. 409, 413—414, 27 L.Ed.2d 456 (1971) (Harlan, J., concurring). Respondent's deferral rule is necessarily premised on the assumption that arbitral processes are commensurate with judicial processes and that Congress impliedly intended federal courts to defer to arbitral decisions on Title VII issues. We deem this supposition unlikely.
27
Arbitral procedures, while well suited to the resolution of contractual disputes, make arbitration a comparatively inappropriate forum for the final resolution of rights created by Title VII. This conclusion rests first on the special role of the arbitrator, whose task is to effectuate the intent of the parties rather than the requirements of enacted legislation. Where the collective-bargaining agreement conflicts with Title VII, the arbitrator must follow the agreement. To be sure, the tension between contractual and statutory objectives may be mitigated where a collective-bargaining agreement contains provisions facially similar to those of Title VII. But other facts may still render arbitral processes comparatively inferior to judicial processes in the protection of Title VII rights. Among these is the fact that the specialized competence of arbitrators pertains primarily to the law of the shop, not the law of the land. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581—583, 80 S.Ct. 1347, 1352—1353, 4 L.Ed.2d 1409 (1960).18 Parties usually choose an arbitrator because they trust his knowledge and judgment concerning the demands and norms of industrial relations. On the other hand, the resolution of statutory or constitutional issues is a primary responsibility of courts, and judicial construction has proved especially necessary with respect to Title VII, whose broad language frequently can be given meaning only by reference to public law concepts.
28
Moreover, the factfinding process in arbitration usually is not equivalent to judicial factufinding. The record of the arbitration proceedings is not as complete; the usual rules of evidence do not apply; and rights and procedures common to civil trials, such as discovery, compulsory process, cross-examination, and testimony under oath, are often severely limited or unavailable. See Bernhardt v. Polygraphic Co., 350 U.S. 198, 203, 76 S.Ct. 273, 276, 100 L.Ed. 199 (1956); Wilko v. Swan, 346 U.S., at 435—437, 74 S.Ct., at 186 188. And as this Court has recognized, '(a)rbitrators have no obligation to the court to give their reasons for an award.' United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S., at 598, 80 S.Ct., at 1361. Indeed, it is the informality of arbitral procedure that enables it to function as an efficient, inexpensive, and expeditious means for dispute resolution. This same characteristic, however, makes arbitration a less appropriate forum for final resolution of Title VII issues than the federal courts.19
29
It is evident that respondent's proposed rule would not allay these concerns. Nor are we convinced that the solution lies in applying a more demanding deferral standard, such as that adopted by the Fifth Circuit in Rios v. Reynolds Metals Co., 467 F.2d 54 (1972).20 As respondent points out, a standard that adequately insured effectuation of Title VII rights in the arbitral forum would tend to make arbitration a procedurally complex, expensive, and time-consuming process. And judicial enforcement of such a standard would almost require courts to make denovo determinations of the employees' claims. It is uncertain whether any minimal savings in judicial time and expense would justify the risk to vindication of Title VII rights.
30
A deferral rule also might adversely affect the arbitration system as well as the enforcement scheme of Title VII. Fearing that the arbitral forum cannot adequately protect their rights under Title VII, some employees may elect to bypass arbitration and institute a lawsuit. The possibility of voluntary compliance or settlement of Title VII claims would thus be reduced, and the result could well be more litigation, not less.
31
We think, therefore, that the federal policy favoring arbitration of labor disputes and the federal policy against discriminatory employment practices can best be accommodated by permitting an employee to pursue fully both his remedy under the grievance-arbitration clause of a collective-bargaining agreement and his cause of action undeR titlE VII. the federal court should consider the employee's claim de novo. The arbitral decision may be admitted as evidence and accorded such weight as the court deems appropriate.21
32
The judgment of the Court of Appeals is reversed.
33
Reversed.
1
Article 4 of the agreement provided:
'MANAGEMENT
'The Union recognizes that all rights to manage the Plant, to determine the products to be manufactured, the methods of manufacturing or assembling, the scheduling of production, the control of raw materials, and to direct the working forces, including the right to hire, suspend or discharge for proper cause, and the right to relieve employees from duty because of lack of work or other legitimate reasons, and the right to maintain order and efficiency are vested exclusively in the Company.
'It is understood by the parties that all rights recognized in this Article are subject to the terms of this Agreement.'
2
Article 5 of the agreement provided:
'MUTUAL RESPONSIBILITY
'Section 1. The parties agree that during the term of this Agreement there shall be no strike, slow-down or other interruption of production, and that for the same period there shall be no lockout, subject to the provisions of Article 26, Term of Agreement.
'Section 2. The Company and the Union agree that there shall be no discrimination against any employee on account of race, color, religion, sex, national origin, or ancestry. The Company further states and the Union approves that no such discrimination shall be practiced against any applicant for employment.'
3
Article 23, containing the grievance-arbitration procedures of the agreement, provided in relevant part:
'Section 5. Should differences arise between the Company and the Union as to the meaning and application of the provisions of this Agreement, or should any trouble arise in the plant, there shall be no suspension of work, but an earnest effort shall be made by both the Company and the Union to settle such differences promptly. Grievances must be presented within five (5) working days after the date of the occurrence giving rise to the grievance or they shall be considered waived. Grievances shall be taken up in the following manner; except that any grievance filed by the Local Union shall be submitted in writing at Step 3 of the grievance procedure as set forth herein:
'Step 1. An attempt shall first be made by the employee with or without his assistant grievance committeeman (at the employee's option), and the employee's foreman to settle the grievance. The foreman shall submit his answer within one (1) working day and if the grievance is not settled, it shall be reduced to writing, signed by the employee and his assistant grievance committeeman, and the foreman shall submit his signed answer of such grievance.
'Step 2. If the grievance is not settled in Step 1, it shall be presented to the Superintendent, or his representative, within two (2) working days after the Union has received the Foreman's answer in Step 1. The Superintendent or his representative shall submit his signed answer two (2) working days after receiving the grievance.
'Step 3. If the grievance is not settled in Step 2, it shall be presented to the manager of Manufacturing or his representative within five (5) working days after the Union has received the Superintendent's answer in Step 2. The Manager of Manufacturing or his representative shall meet with the representatives of the Union to attempt to resolve the grievance within five (5) working days following the presentation of the grievance. The Manager of
Manufacturing or his representative shall submit his signed answer within three (3) working days after the date of such meeting.
'Step 4. If the grievance is not settled in Step 3, it shall be referred to the Personnel Manager, and/or his representatives, and the International representative and chairman of the grievance committee within five (5) working days after the Union has received the Step 3 answer. Within ten (10) working days after the grievance has been referred to Step 4, the above mentioned parties shall meet for the purpose of discussing such grievance. Within five (5) working days following the meeting, the Company representatives shall submit their signed answer to the Union. The Union representatives shall signify their concurrence or nonconcurrence and affix their signatures to the grievance.
'Step 5. Grievances which have not been settled under the foregoing procedure may be referred to arbitration by notice in writing within ten (10) calendar days after the date of the Company's final answer in Step 4. Within five (5) days after receipt of referral to arbitration the parties shall select an impartial arbitrator.
'Should the parties be unable to agree upon an arbitrator, the selection shall be made by the Senior Judge of the U.S. Circuit Court of Appeals for the Tenth Circuit. The decision of the arbitrator shall be final and binding upon the Company, the Union, and any employee or employees involved. The expenses and fee of the arbitrator shall be divided equally between the Company and the Union. The arbitrator shall not amend, take away, add to, or change any of the provisions of this Agreement, and the arbitrator's decision must be based solely upon an interpretation of the provisions of this Agreement.
'Section 6. (a) No employee will be discharged, suspended or given a written warning notice except for just cause.
'(g) Should it be determined that the employee has been unjustly suspended or discharged the Company shall reinstate the employee and pay full compensation at the employee's basic hourly rate or earned rate, whichever is the higher, for the time lost.'
4
In reaching this conclusion, the District Court relied on petitioner's deposition acknowledging that he had raised the racial discrimination claim during the arbitration hearing. 346 F.Supp., at 1014.
5
The District Court recognized that a conflict of authorities existed on this issue but chose to rely on Dewey v. Reynolds Metals Co., 429 F.2d 324, 332 (CA6 1970), affirmed by an equally divided Court, 402 U.S. 689, 91 S.Ct. 2186, 29 L.Ed.2d 267 (1971). There, the Sixth Circuit held that prior submission of an employee's claim to arbitration under a collective-bargaining agreement precluded a later suit under Title VII. The Sixth Circuit appears to have since retreated in part from Dewey by suggesting that there is no preclusion where both arbitration and 'court or agency processes' are pursued simultaneously. See Spann v. Kaywood Division, Joanna Western Mills Co., 446 F.2d 120, 122 (CA6 1971). The Fifth, Seventh, and Ninth Circuits have squarely rejected a preclusion rule. See Hutchings v. United States Industries, Inc., 428 F.2d 303 (CA5 1970); Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (CA7 1969); Oubichon v. North American Rockwell Corp., 482 F.2d 569 (CA9 1973).
6
United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). In Texile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 923, 1 L.Ed.2d 972 (1957), this Court held that a grievance-arbitration provision of a collective-bargaining agreement could be enforced against unions and employers under § 301 of the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U.S.C. § 185. The Court noted that the congressional policy, as embodied in § 203(d) of the LMRA, 61 Stat. 154, 29 U.S.C. § 173(d), was to promote industrial peace and that the grievance-arbitration provision of a collective agreement was a major factor in achieving this goal. 353 U.S., at 455, 77 S.Ct., at 917. In the Steelworkers trilogy, the Court further advanced this policy by declaring that an order to arbitrate will not be denied 'unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.' United Steelworkers of America v. Warrior & Gulf Navigation Co., supra, 363 U.S., at 582—583, 80 S.Ct., at 1353. The Court also stated that 'so far as the arbitrator's decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.' United Steelworkers of America v. Enterprise Wheel & Car Corp., supra, 363 U.S., at 599, 80 S.Ct., at 1362. And in Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965), the Court held that grievance-arbitration procedures of acollective-bargaining agreement must be exhausted before an employee may file suit to enforce contractual rights.
For the reasons stated in Parts III, IV, and V of this opinion, we hold that the federal policy favoring arbitration does not establish that an arbitrator's resolution of a contractual claim is dispositive of a statutory claim under Title VII.
7
See, e.g., 42 U.S.C. § 1981 (Civil Rights Act of 1866); 42 U.S.C. § 1983 (Civil Rights Act of 1871).
8
For example, Commission action is not barred by 'findings and orders' of state or local agencies. See 42 U.S.C. § 2000e—5(b) (1970 ed., Supp. II). Similarly, an individual's cause of action is not barred by a Commission finding of no reasonable cause to believe that the Act has been violated. See 42 U.S.C. § 2000e—5(f) (1970 ed., Supp. II); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
9
For example, Senator Joseph Clark, one of the sponsors of the bill, introduced an interpretive memorandum which stated: 'Nothing in title VII or anywhere else in this bill affects rights and obligations under the NLRA and the Railway Labor Act. . . . (T)itle VII is not intended to and does not deny to any individual, rights and remedies which he may pursue under other Federal and State statutes. If a given action should violate both title VII and the National Labor Relations Act, the National Labor Relations Board would not be deprived of jurisdiction.' 110 Cong.Rec. 7207 (1964). Moreover, the Senate defeated an amendment which would have made Title VII the exclusive federal remedy for most unlawful employment practices. 110 Cong.Rec. 13650—13652 (1964). And a similar amendment was rejected in connection with the Equal Employment Opportunity Act of 1972. See H.R. 9247, 92d Cong., 1st Sess. (1971); H.R.Rep.No.92—238 (1971). See also 2 U.S.Code Cong. & Admin.News, 92d Cong., 2d Sess., 2137, 2179, 2181 2182 (1972). The report of the Senate Committee responsible for the 1972 Act explained that the 'provisions regarding the individual's right to sue under title VII, nor any of the other provisions of this bill, are meant to affect existing rights granted under other laws.' S.Rep.No.92—415, p. 24 (1971). For a detailed discussion of the legislative history of the 1972 Act, see Sape & Hart. Title VII Reconsidered: The Equal Opportunity Act of 1972, 40 Geo.Wash.L.Rev. 824 (1972).
10
The District Court adopted the reasoning of the Sixth Circuit in Dewey v. Reynolds Metals Co., 429 F.2d, at 332, affirmed by an equally divided Court, 402 U.S. 689, 91 S.Ct. 2186, 29 L.Ed.2d 267 (1971), which was apparently based in part on the doctrine of election of remedies. See n. 5, supra. The Sixth Circuit, however, later described Dewey as resting instead on the doctrine of equitable estoppel and on 'themes of res judicata and collateral estoppel.' Newman v. Avco Corp., 451 F.2d 743, 747 in n. 1 (CA6 1971). Whatever doctrinal label is used, the essence of these holdings remains the same. The policy reasons for rejecting the doctrines of election of remedies and waiver in the context of Title VII are equally applicable to the doctrines of res judicata and collateral estoppel.
11
See generally 5A A. Corbin, Contracts §§ 1214—1227 (1971 ed.). Most courts have recognized that the doctrine of election of remedies does not apply to suits under Title VII. See, e.g., Bowe v. Colgate-Palmolive Co., 416 F.2d, at 714—715; Hutchings v. United States Industries, Inc., 428 F.2d, at 314; Macklin v. Spector Freight Systems, Inc., 156 U.S.App.D.C. 69, 478 F.2d 979, 990—991 (1973); Voutsis v. Union Carbide Corp., 452 F.2d 889, 893 894 (CA2 1971), cert. denied, 406 U.S. 918, 92 S.Ct. 1768, 32 L.Ed.2d 117 (1972); Newman v. Avco Corp., supra, 451 F.2d, at 746 n. 1; Oubichon v. North American Rockwell Corp., 482 F.2d, at 572 573.
12
61 Stat. 136, 29 U.S.C. § 151 et seq.
13
As the Court noted in Carey:
'By allowing the dispute to go to arbitration . . . those conciliatory measures which Congress deemed vital to 'industrial peace' . . . and which may be dispositive of the entire dispute, are encouraged. The superior authority of the Board may be invoked at any time. Meanwhile the therapy of arbitration is brought to bear in a complicated and troubled area.' 375 U.S., at 272, 84 S.Ct., at 409.
Should disagreements arise between the Board and the arbitrator, the Board's ruling would, of course, take precedence as to those issues within its jurisdiction. Ibid.
14
Nor can it be maintained that election of remedies is required by the possibility of unjust enrichment through duplicative recoveries. Where, as here, the employer has prevailed at arbitration, there, of course, can be no duplicative recovery. But even in cases where the employee has first prevailed, judicial relief can be structured to avoid such windfall gains. See, e.g., Oubichon v. North American Rockwell Corp., supra; Bowe v. Colgate-Palmolive Co., supra. Furthermore, if the relief obtained by the employee at arbitration were fully equivalent to that obtainable under Title VII, there would be no further relief for the court to grant and hence no need for the employee to institute suit.
15
In this case petitioner and respondent did not enter into a voluntary settlement expressly conditioned on a waiver of petitioner's cause of action under Title VII. In determining the effectiveness of any such waiver, a court would have to determine at the outset that the employee's consent to the settlement was voluntary and knowing. In no event can the submission to arbitration of a claim under the nondiscrimination clause of a collective-bargaining agreement constitute a binding waiver with respect to an employee's rights under Title VII.
16
See Meltzer, Labor Arbitration and Overlapping and Conflicting Remedies for Employment Discrimination, 39 U.Chi.L.Rev. 30, 32—35 (1971); Meltzer, Ruminations About Ideology, Law, and Labor Arbitration, 34 U.Chi.L.Rev. 545 (1967). As the late Dean Shulman stated:
'A proper conception of the arbitrator's function is basic. He is not a public tribunal imposed upon the parties by superior authority which the parties are obliged to accept. He has no general charter to administer justice for a community which transcends the parties. He is rather part of a system of self-government created by and confined to the parties. He serves their pleasure only, to administer the rule of law established by their collective agreement.' Shulman, Reason, Contract, and Law in Labor Relations, 68 Harv.L.Rev. 999, 1016 (1955).
17
Brief for Respondent 37. Respondent's proposed rule is analogous to the NLRB's policy of deferring to arbitral decisions on statutory issues in certain cases. See Spielberg Mfg. Co., 112 N.L.R.B. 1080, 1082 (1955).
18
See also Gould, Labor Arbitration of Grievances Involving Racial Discrimination, 118 U.Pa.L.Rev. 40, 47—48 (1969); Platt, The Relationship between Arbitration and Title VII of the Civil Rights Act of 1964, 3 Ga.L.Rev. 398 (1969). Significantly, a substantial proportion of labor arbitrators are not lawyers. See Note, The NLRB and Deference to Arbitration, 77 Yale L.J. 1191, 1194 n. 28 (1968). This is not to suggest, of course, that arbitrators do not possess a high degree of competence with respect to the vital role in implementing the federal policy favoring arbitration of labor disputes.
19
A further concern is the union's exclusive control over the manner and extent to which an individual grievance is presented. See Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965). In arbitration, as in the collective-bargaining process, the interests of the individual employee may be subordinated to the collective intersts of all employees in the bargaining unit. See J. I. Case Co. v. NLRB, 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762 (1944). Moreover, harmony of interest between the union and the individual employee cannot always be presumed, especially where a claim of racial discrimination is made. See, e.g., Steele v. Louisville & N.R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944); Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187 (1944). And a breach of the union's duty of fair representation may prove difficult to establish. See Vaca v. Sipes, supra; Humphrey v. Moore, 375 U.S. 335, 342, 348—351, 84 S.Ct. 363, 367, 371—373, 11 L.Ed.2d 370 (1964). In this respect, it is noteworthy that Congress thought it necessary to afford the protections of Title VII against unions as well as employers. See 42 U.S.C. § 2000e—2(c).
20
In Rios, the court set forth the following deferral standard: 'First, there may be no deference to the decision of the arbitrator unless the contractual right coincides with rights under Title VII. Second, it must be plain that the arbitrator's decision is in no way violative of the private rights guaranteed by Title VII, nor of the public policy which inheres in Title VII. In addition, before deferring, the district court must be satisfied that (1) the factual issues before it are identical to those decided by the arbitrator; (2) the arbitrator had power under the collective agreement to decide the ultimate issue of discrimination; (3) the evidence presented at the arbitral hearing dealt adequately with all factual issues; (4) the arbitrator actually decided the factual issues presented to the court;(5) the arbitration proceeding was fair and regular and free of procedural infirmities. The burden of proof in establishing these conditions of limitation will be upon the respondent § distinguished from the claimant.' 467 F.2d, at 58.
For a discussion of the problems posed by application of the Rios standard, see Note, Judicial Deference to Arbitrators' Decisions in Title VII Cases, 26 Stan.L.Rev. 421 (1974).
21
We adopt no standards as to the weight to be accorded an arbitral decision, since this must be determined in the court's discretion with regard to the facts and circumstances of each case. Relevant factors include the existence of provisions in the collective-bargaining agreement that conform substantially with Title VII, the degree of procedural fairness in the arbitral forum, adequacy of the record with respect to the issue of discrimination, and the special competence of particular arbitrators. Where an arbitral determination gives full consideration to an employee's Title VII rights, a court may properly accord it great weight. This is especially true where the issue is solely one of fact, specifically addressed by the parties and decided by the arbitrator on the basis of an adequate record. But courts should ever the mindful that Congress, in enacting Title VII, thought it necessary to provide a judicial forum for the ultimate resolution of discriminatory employment claims. It is the duty of courts to assure the full availability of this forum.
| 12
|
415 U.S. 61
94 S.Ct. 937
39 L.Ed.2d 166
Arthur F. SAMPSON, Administrator, General Services Administration, et al., Petitioners,v.Jeanne M. MURRAY
No. 72—403.
Argued Nov. 14, 1973.
Decided Feb. 19, 1974.
Syllabus
Upon being notified that she was going to be discharged on a specific date from her position as a probationary Government employee, respondent filed this action claiming that the applicable Civil Service regulations for discharge of probationary employees had not been followed, and seeking a temporary injunction against her dismissal pending an administrative appeal to the Civil Service Commission (CSC). The District Court granted a temporary restraining order, and after an adversary hearing at which the Government declined to produce the discharging official as a witness to testify as to the reasons for the dismissal, ordered the temporary injunctive relief continued. The Court of Appeals affirmed, rejecting the Government's contention that the District Court had no authority to grant temporary injunctive relief in this class of cases, and holding that the relief granted was within the permissible bounds of the District Court's discretion. Held: While the District Court is not totally without authority to grant interim injunctive relief to a discharged Government employee, nevertheless under the standards that must govern the issuance of such relief the District Court's issuance of the temporary injunctive relief here cannot be sustained. Pp. 68—92.
(a) The District Court's authority to review agency action, Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403, does not come into play until it may be authoritatively said that the administrativedecision to discharge an employee does in fact fail to conform to the applicable regulations, and until administrative action has become final, no court is in a position to say that such action did or did not conform to the regulations. Here the District Court authorized, on an interim basis, relief that the CSC had neither considered nor authorized—the mandatory reinstatement of respondent in her Government position. Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229; FTC v. Dean Foods Co., 384 U.S. 597, 86 S.Ct. 1738, 16 L.Ed.2d 802, distinguished. Pp. 71—78.
(b) Considering the disruptive effect that the grant of temporary relief here was likely to have on the administrative process, and in view of the historical denial of all equitable relief by federal courts in disputes involving discharge of Government employees; the well-established rule that the Government be granted the widest latitude in handling its own internal affairs; and the traditional unwillingness of equity courts to enforce personal service contracts, the Court of Appeals erred in routinely applying the traditional standards governing more orthodox 'stays,' and respondent at the very least must show irreparable injury sufficient in kind and degree to override the foregoing factors. Pp. 78—84.
(c) Viewing the order at issue as a preliminary injunction, the Court of Appeals erred in suggesting that at this stage of the proceeding the District Court need not have concluded that there was actually irreparable injury, and in intimating that, as alleged in respondent's unverified complaint, either loss of earnings or damage to reputation might afford a basis for a finding of irreparable injury. Pp. 84—92.
149 U.S.App.D.C. 256, 462 F.2d 871, reversed.
Keith A. Jones, Washington, D.C., for petitioners.
Thomas J. McGrew, Washington, D.C., for respondent, pro hac vice, by special leave of Court.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Respondent is a probationary employee in the Public Buildings Service of the General Services Administration (GSA). In May 1971, approximately four months after her employment with GSA began, she was advised in writing by the Acting Commissioner of the Public Buildings Service, W. H. Sanders, that she would be discharged from her position on May 29, 1971. She then filed this action in the United States District Court for the District of Columbia, seeking to temporarily enjoin her dismissal pending her pursuit of an administrative appeal to the Civil Service Commission. The District Court granted a temporary restraining order, and after an adversary hearing extended the interim injunctive relief in favor of respondent until the Acting Commissioner of the Public Buildings Service testified about the reasons for respondent's dismissal.
2
A divided Court of Appeals for the District of Columbia Circuit affirmed,1 rejecting the Government's contention that the District Court had no authority whatever to grant temporary injunctive relief in this class of cases, and holding that the relief granted by the District Court in this particular case was within the permissible bounds of its discretion. We granted certiorari, sub nom. Kunzig v. Murray, 410 U.S. 981, 93 S.Ct. 1494, 36 L.Ed.2d 177 (1973). We agree with the Court of Appeals that the District Court is not totally without authority to grant interim injunctive relief to a discharged Government employee, but conclude that, judged by the standards which we hold must govern the issuance of such relief, the issuance of the temporary injunctive relief by the District Court in this case cannot be sustained.
3
* Respondent was hired as a program analyst by the Public Buildings Service after previous employment in the Defense Intelligence Agency. Under the regulations of the Civil Service Commission, this career conditional appointment was subject to a one-year probationary period.2 Applicable regulations provided that respondent, during this initial term of probation, could be dismissed without being afforded the greater procedural advantages available to permanent employees in the competitive service.3 The underlying dispute between the parties arises over whether the more limited procedural requirements applicable to probationary employees were satisfied by petitioners in this case.
4
The procedural protections which the regulations accord to most dismissed probationary employees are limited. Commonly a Government agency may dismiss a probationary employee found unqualified for continued employment simply 'by notifying him in writing as to why he is being separated and the effective date of the action.'4 More elaborate procedures are specified when the ground for terminating a probationary employee is 'for conditions arising before appointment.'5 In such cases the regulations require that the employee receive 'an advance written notice stating the reasons, specifically and in detail, for the proposed action'; that the employee be given an opportunity to respond in writing and to furnish affidavits in support of his response; that the agency 'consider' any answer filed by the employee in reaching its decision; and that the employee be notified of the agency's decision at the earliest practicable date.6 Respondent contends that her termination was based in part on her activities while in the course of her previous employment in the Defense Intelligence Agency, and that therefore she was entitled to an opportunity to file an answer under this latter provision.
5
The letter which respondent received from the Acting Commissioner, notifying her of the date of her discharge, stated that the reason for her discharge was her 'complete unwillingness to follow office procedure and to accept direction from (her) supervisors.' After receipt of the letter, respondent's counsel met with a GSA personnel officer to discuss her situation and, in the course of the meeting, was shown a memorandum prepared by an officer of the Public Buildings Service upon which Sanders apparently based his decision to terminate respondent's employment. The memorandum contained both a discussion of respondent's conduct in her job with the Public Buildings Service and a discussion of her conduct during her previous employment at the Defense Intelligence Agency. Relying upon the inclusion of the information concerning her previous employment, respondent's counsel requested that she be given a detailed statement of the charges against her and an opportunity to reply—the procedures to which she would be entitled under the regulations if in fact the basis of her discharge had been conduct during her previous employment. This request was denied.
6
Respondent then filed an administrative appeal with the Civil Service Commission pursuant to the provisions of 5 CFR § 315.806(c), alleging that her termination was subject to § 315.805 and was not effected in accordance with the procedural requirements of that section.7 While her administrative appeal was pending undecided, she filed this action. Her complaint alleged that the agency had failed to follow the appropriate Civil Service regulations, alleged that her prospective discharge would deprive her of income and cause her to suffer the embarrassment of being wrongfully discharged, and requested a temporary restraining order and interim injunctive relief against her removal from employment pending agency determination of her appeal. The District Court granted the temporary restraining order at the time of the filing of respondent's complaint, and set a hearing on the application for a temporary injunction for the following week.
7
At the hearing on the temporary injunction, the District Court expressed its desire to hear the testimony of Sanders in person, and refused to resolve the controversy on the basis of his affidavit which the Government offered to furnish. When the Government declined to produce Sanders, the court ordered the temporary injunctive relief continued, stating that 'Plaintiff may suffer immediate and irreparable injury, loss and damage before the Civil Service Commission can consider Plaintiff's claim.'8 The Government, desiring to test the authority of the District Court to enter such an order, has not produced Sanders, and the interim relief awarded respondent continues in effect at this time.
8
On the Government's appeal to the Court of Appeals for the District of Columbia Circuit, the order of the District Court was affirmed. Although recognizing that 'Congress presumably could remove the jurisdiction of the District Courts to grant such equitable interim relief, in light of the remedies available,'9 the court found that the District Court had the power to grant relief in the absence of an explicit prohibition from Congress. The Court of Appeals decided that the District Court acted within the bounds of permissible discretion in requiring Sanders to appear and testify,10 and in continuing the temporary injunctive relief until he was produced as a witness by the Government.
II
9
While it would doubtless be intellectually neater to completely separate the question whether a District Court has authority to issue any temporary injunctive relief at the behest of a discharged Government employee from the question whether the relief granted in this case was proper, we do not believe the questions may be thus bifurcated into two watertight compartments. We believe the basis for our decision can best be illuminated by taking up the various arguments which the parties urge upon us.
10
Petitionrs point out, and the Court of Appeals below apparently recognized, that Congress has given the District Courts no express statutory authorization to issue temporary 'stays' in Civil Service cases. Although Congress has often specifically conferred such authority when it so desired—for example, in the enabling statutes establishing the NLRB,11 the FTC,12 the FPC,13 and the SEC14—the statutes governing the Civil Service Commission are silent on the question.15 The rules and regulations promulgated pursuant to a broad grant of statutory authority likewise make no provision for interlocutory judicial intervention.
11
The Court of Appeals nevertheless found that the district courts had traditional power to grant stays in such personnel cases. Commenting upon the Government's arguments for reversal below, the court stated:
12
'It is asserted that the Civil Service Commission has been given exclusive review jurisdiction. But, as noted initially, there is no statutory power in the Civil Service Commission to grant a temporary stay of discharge. Prior to the Civil Service Act a United States District Court would certainly have had jurisdiction and power to grant such temporary relief. The statute did not explicitly take it away, nor implicitly by conferring such jurisdiction and power of the CSC; we hold the District Court still has jurisdiction and may exercise the power under established standards in appropriate circumstances.'16
13
If the issue were to turn solely on the earlier decisions of this Court examining the authority of federal courts to intervene in disputes about governmental employment, we think this assumption of the Court of Appeals is wrong. In Keim v. United States, 177 U.S. 290, 20 S.Ct. 574, 44 L.Ed. 774 (1900), this Court held that the Court of Claims had no authority to award damages to an employee who claimed he had been wrongfully discharged by his federal employer.17 In White v. Berry, 171 U.S. 366, 18 S.Ct. 917, 43 L.Ed. 199 (1898), a Government employee had sought to enjoin his employer from dismissing him from office, alleging that the removal would violate both the Civil Service Act and the applicable regulations.18 The Circuit Court assumed jurisdiction and issued an order prohibiting the defendant from interfering with the plaintiff's discharge of his duty "until he shall be removed therefrom by proper proceedings had under the civil service act, and the rules and regulations made thereunder, or by judicial proceedings at law . . .."19 This Court reversed. Discussing the apparently well-established principle that "a court of equity will not, by injunction, restrain an executive officer from making a wrongful removal of a subordinate appointee,"20 the Court held that 'the circuit court, sitting in equity, was without jurisdiction to grant the relief asked.'21
14
Respondent's case, then, must succeed, if at all, despite earlier established principles regarding equitable intervention in disputes over tenure of governmental employees, and not because of them. Much water has flowed over the dam since 1898, and cases such as Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957), cited by the District Court in its memorandum opinion in this case, establish that federal courts do have authority to review the claim of a discharged governmental employee that the agency effectuating the discharge has not followed administrative regulations.22 In that case, however, judicial proceedings were not commenced until the administrative remedy had been unsuccessfully pursued.23 The fact that Government personnel decisions are now ultimately subject to the type of judicial review sought in Service v. Dulles, supra, does not, without more, create the authority to issue interim injunctive relief which was held lacking in cases such as White v. Berry, supra.
15
The Court of Appeals found support for its affirmance of the District Court's grant of injunctive relief in Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229 (1942). In Scripps-Howard the licensee of a Cincinnati radio station petitioned the FCC to vacate an order permitting a Columbus radio station to change its frequency and to increase its broadcasting power. The licensee also requested a hearing. When the Commission denied the petition, the licensee filed a statutory appeal in the Court of Appeals for the District of Columbia Circuit and, in conjunction with the docketing of the appeal, asked the court to stay the FCC order pending its decision. The Court of Appeals, apparently departing from a longstanding policy of issuing such stays,24 declined to do so in this case and ultimately certified the question of its power to this Court.25
16
This Court held that the Court of Appeals had power to issue the stay, analogizing it to the traditional stay granted by an appellate court pending review of an inferior court's decision:
17
'It has always been held, therefore, that, as part of its traditional equipment for the administration of justice,[*] a federal court can stay the enforcement of a judgment pending the outcome of an appeal.'26
18
But in Scripps-Howard the losing party before the agency sought an interim stay of final agency action pending statutory judicial review.27 A long progression of cases in this Court had established the authority of a court, empowered by statute to exercise appellate jurisdiction, to issue appropriate writs in aid of that jurisdiction.28
19
The All Writs Act, first enacted as a part of the Judiciary Act of 1789, provided statutory confirmation of this authority.29 This Court in Scripps-Howard held that the same principles governed the authority of courts charged by statute with judicial review of agency decisions, and that the authority to grant a stay exists in such a court even though not expressly conferred by the statute which confers appellate jurisdiction.
20
Scripps-Howard, supra, of course, is not the instant case. The authority of the District Court to review agency action under Service v. Dulles, supra, does not come into play until it may be authoritatively said that the administrative decision to discharge an employee does in fact fail to conform to applicable regulations.30 Until administrative action has become final, no court is in a position to say that such action did or did not conform to applicable regulations. Here respondent had obtained no administrative determination of her appeal at the time she brought the action in the District Court. She was in effect asking that court to grant her, on an interim basis, relief which the administrative agency charged with review of her employer's action could grant her only after it had made a determination on the merits.
21
While both the District Court and the Court of Appeals characterized the District Court's intervention as a 'stay,' the mandatory retention of respondent in the position from which she was dismissed actually served to provide the most extensive relief which she might conceivably obtain from the agency after its review on the merits. It may well be that the Civil Service Commission, should it have agreed with respondent's version of the basis for her dismissal, would prohibit the final separation of respondent unless and until proper procedures had been followed. But this is not to say that it would hold respondent to be entitled to full reinstatement with the attendant tension with her superiors that the agency intended to avoid by dismissing her. Congress has provided that a wrongfully dismissed employee shall receive full payment and benefits for any time during which the employee was wrongfully discharged from employment.31 The Civil Service Commission could conceivably accommodate the conflicting claims in this case by directing respondent's superiors to provide her with an opportunity to reply by affidavit, and by ordering that she receive backpay for any period of her dismissal prior to the completion of the type of dismissal procedure required by the regulations.
22
The Court in Scripps-Howard recognized that certain forms of equitable relief could not properly be granted by federal courts. The Court specifically contrasted the stay of a license grant and the stay of a license denial, finding that the latter would have no effect:
23
'Of course, no court can grant an applicant an authorization which the Commission has refused.
24
No order that the Court of Appeals could make would enable an applicant to go on the air when the Commission has denied him a license to do so. A stay of an order denying an application would in the nature of things stay nothing. It could not operate as an affirmative authorization of that which the Commission has refused to authorize.'32
25
Surely that conclusion would not vary depending upon whether the radio station had started broadcasting on its own initiative and sought to stay a Commission order directing it to cease. Yet here the District Court did authorize, on an interim basis, relief which the Civil Service Commission had neither considered nor authorized—the mandatory reinstatement of respondent in her Government position. We are satisfied that Scripps-Howard, involving as it did the traditional authority of reviewing courts to grant stays, provides scant support for the injunction issued here.
26
The Court of Appeals also relied upon FTC v. Dean Foods Co., 384 U.S. 597, 86 S.Ct. 1738, 16 L.Ed.2d 802 (1966), in reaching its decision. There a closely divided Court held that a Court of Appeals having ultimate jurisdiction to review orders of the Federal Trade Commission might, upon the Commission's application,33 grant a temporary injunction to preserve the controversy before the agency. The Commission's application alleged,34 and the court accepted,35 that refusal to grant the injunction would result in the practical disappearance of one of the entities whose merger the Commission sought to challenge. The disappearance, in turn, would mean that the agency, and the court entrusted by statute with authority to review the agency's decision, would be incapable of implementing their statutory duties by fashioning effective relief. Thus invocation of the All Writs Act, as a preservative of jurisdiction, was considered appropriate.
27
Neither the reviewing jurisdiction of the Civil Service Commission nor that of the District Court would be similarly frustrated by a decision of the District Court remitting respondent to her administrative remedy. Certainly the Civil Service Commission will be able to weigh respondent's contentions and to order necessary relief without the aid of the District Court injunction. In direct contrast to the claim of the FTC in Dean Foods that its jurisdiction would be effectively defeated by denial of relief, the Commission here has argued that judicial action interferes with the normal agency processes.36 And we see nothing in the record to suggest that any judicial review available under the doctrine of Service v. Dulles would be defeated in the same manner as review in Dean Foods.
28
We are therefore unpersuaded that the temporary injunction granted by the District Court in this case was justified either by our prior decisions dealing with the availability of injunctive relief to discharged federal employees, or by those dealing with the authority of reviewing courts to grant temporary stays or injunctions pending full appellate review. If the order of the District Court in this case is to be upheld, the authority must be found elsewhere.
III
29
This Court observed in Scripps-Howard that '(t)he search for significance in the silence of Congress is too often the pursuit of a mirage,' 316 U.S., at 11, 62 S.Ct., at 880, 86 L.Ed. 1229, and this observation carries particular force when a statutory scheme grants broad regulatory latitude to an administrative agency. In Scripps-Howard a careful review of the relevant statutory provisions and legislative history persuaded this Court that Congress had not intended to nullify the power of an appellate court,37 having assumed jurisdiction after an agency decision, to issue stays in aid of its jurisdiction. The Court noted, in particular, that stays were allowed in other cases processed through the FCC38 and that the Court of Appeals had routinely issued stays in similar cases before undertaking an unexpected shift in policy.39 But, at the other end of the spectrum, in Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52 (1963), this Court held that a specific congressional grant of power to the ICC to suspend proposed rate modifications precluded the District Court from extending the suspension by temporary injunction. This was true despite arguments that district courts traditionally had such power and that Congress did not explicitly revoke the power by statute.40
The Court there said:
30
'The more plausible inference is that Congress meant to foreclose a judicial power to interfere with the timing of rate changes which would be out of harmony with the uniformity of rate levels fostered by the doctrine of primary jurisdiction.'41
31
The overall scheme governing employees of the Federal Government falls nealty within neither of these precedents. Unlike Scripps-Howard, traditional stay practice lends little support to the sort of relief which the District Court granted respondent here, and the precedents dealing with the availability of equitable relief to discharged Government employees are quite unfavorable to respondent. Unlike Arrow Transportation, supra, the administrative structure is far more a creature of agency regulations that of statute. We are thus not prepared to conclude that Congress in this class of cases has wholly divested the district courts of their customary authority to grant temporary injunctive relief, and to that extent we agree with the Court of Appeals. But merely because the factors relied upon by the Government do not establish that the district courts are wholly bereft of the authority claimed for them here does not mean, as the Court of Appeals appeared to believe, that temporary injunctive relief in this class of cases is to be dispensed without regard to those factors. While considerations similar to those found sufficient in Arrow Transportation to totally deprive the district courts of equitable authority do not have that force here, they nonetheless are entitled to great weight in the equitable balancing process which attends the grant of injunctive relief.
32
We are dealing in this case not with a permanent Government employee, a class for which Congress has specified certain substantive and procedural protections,42 but with a probationary employee, a class which Congress has specifically recognized as entitled to less comprehensive procedures. Title 5 U.S.C. § 3321, derived from the original Pendleton Act,43 requires the creation of this classification:
33
'The President may prescribe rules which shall provide, as nearly as conditions of good administration warrant, that there shall be a period of probation before an appointment in the competitive service becomes absolute.'
34
It is also clear from other provisions in the Civil Service statutory framework that Congress expected probationary employees to have fewer procedural rights than permanent employees in the competitive service. For example, preference eligibles,44 commonly veterans, are entitled to hearing procedures extended to persons in the competitive service only after they have completed 'a probationary or trial period.'45 Persons suspended for national security reasons are given expanded protection provided they have completed a trial or probationary period.46
35
The Civil Service regulations are consistent with these statutes. These regulations are promulgated by the Civil Service Commission as authorized by Congress in 5 U.S.C. §§ 1301—1302.47 Part 752, the regulations governing adverse agency actions, provides certain procedural safeguards for employees but, as did the statutes cited above, exempts 'employee(s) currently serving a probationary or trial period.'48 Such employees are remitted to the procedures specified in subpart H of Part 315,49 the procedures at issue here. Under § 752.202 of the regulations permanent competitive service employees are to be retained in an active-duty status only during the required 30-day-notice period, and the Commission is given no authority to issue additional stays.50 It cannot prevent the dismissal of an employee or order his reinstatement prior to hearing and determining his appeal on the merits. Reasonably, a probationary employee could be entitled to no more than retention on active duty for the period preceding the effective date of his discharge.
36
Congress has also provided a broad remedy for cases of improper suspension or dismissal. The Back Pay Act of 194851 supplemented the basic Lloyd-LaFollette Act of 1912 and provided that any person in the competitive Civil Service who was unjustifiably discharged and later restored to his position was entitled to full backpay for the time he was out of work. The benefits of this Act were extended to additional employees, including probationary employees, in 1966.52 Respondent was eligible for full compensation for any period of improper discharge under this section.
37
As we have noted, respondent's only substantive claim, either before the District Court or in her administrative appeal, was that petitioners had violated the regulations promulgated by the Civil Service Commission. Those same regulations provided for an appeal to the agency which promulgated the regulations and further provided that until that appeal had been heard on the merits, the employer's discharge of the employee was to remain in effect. Respondent, however, sought judicial intervention before fully utilizing the administrative scheme.
38
The District Court, exercising its equitable powers, is bound to give serious weight to the obviously disruptive effect which the grant of the temporary relief awarded here was likely to have on the administrative process. When we couple with this consideration the historical denial of all equitable relief by the federal courts in cases such as White v. Berry, 171 U.S. 366, 18 S.Ct. 917, 43 L.Ed. 199 (1898), the well-established rule that the Government has traditionally been granted the widest latitude in the 'dispatch of its own internal affairs,' Cafeteria and Restaurant Workers Union, Local 473, A.F.L.—C.I.O. v. McElroy, 367 U.S. 886, 896, 81 S.Ct. 1743, 1749, 6 L.Ed.2d 1230 (1961), and the traditional unwillingness of courts of equity to enforce contracts for personal service either at the behest of the employer or of the employee, 5A A. Corbin, Contracts (1964), § 1204, we think that the Court of Appeals was quite wrong in routinely applying to this case the traditional standards governing more orthodox 'stays.' See Virginia Petroleum Jobbers Assn. v. FPC, 104 U.S.App.D.C. 106, 259 F.2d 921 (1958).53 Although we do not hold that Congress has wholly foreclosed the granting of preliminary injunctive relief in such cases, we do believe that respondent at the very least must make a showing of irreparable injury sufficient in kind and degree to override these factors cutting against the general availability of preliminary injunctions in Government personnel cases. We now turn to the showing made to the District Court on that issue, and to the Court of Appeals' treatment of it.
IV
The Court of Appeals said in its opinion:
39
'Without passing on the merits of Mrs. Murray's contention that she will suffer irreparable harm if the sought-for-relief is not granted (a task for the District Court here), we note that there was a determination that such a loss of employment could be 'irreparable harm' in Reeber v. Rossell, (D.C., 91 F.Supp. 108) (1950), a case quite similar to that at bar. We agree with the Reeber court that such a loss of employment can amount to irreparable harm, and that injunctive relief may be a proper remedy pending the final administrative determination of the validity of the discharge by the Civil Service Commission.'54
40
At another point in its opinion, the Court of Appeals said:
41
'As the District Court here felt that the hearing on the motion for the preliminary injunction could not be completed until Mr. Sanders was produced to testify, it was proper for him to continue the stay, in order to preserve the status quo pending the completion of the hearing.'55
42
The court in its supplemental opinion filed after the Government's petition for rehearing further expanded its view of this aspect of the case:
43
'The court's opinion does not hold, and the trial judge has not yet held, that interim relief is proper in Mrs. Murray's case, but we do hold that the trial judge may consider granting such relief, as this is inherent in his historical equitable role.'56
44
In form the order entered by the District Court now before us is a continuation of the temporary restraining order originally issued by that court.57 It is clear from the Court of Appeals' opinion that that court so construed it. But since the order finally settled upon by the District Court was in no way limited in time, the provisions of Fed.Rule Civ.Proc. 65 come into play. That Rule states, in part:
45
'(b) . . . A temporary restraining order may be granted without written or oral notice to the adverse party or his attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition . . .. Every temporary restraining order granted without notice . . . shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period.'
46
The Court of Appeals whose judgment we are reviewing has held that a temporary restraining order continued beyond the time permissible under Rule 65 must be treated as a preliminary injunction, and must conform to the standards applicable to preliminary injunctions. National Mediation Board v. Air Line Pilots Assn., 116 U.S.App.D.C. 300, 323 F.2d 305 (1963). We believe that this analysis is correct, at least in the type of situation presented here, and comports with general principles imposing strict limitations on the scope of temporary restraining orders.58 A district court, if it were able to shield its orders from appellate review merely by designating them as temporary restraining orders, rather than as preliminary injunctions, would have virtually unlimited authority over the parties in an injunctive proceeding. In this case, where an adversary hearing has been held, and the court's basis for issuing the order strongly challenged, classification of the potentially unlimited order as a temporary restraining order seems particularly unjustified. Therefore we view the order at issue here as a preliminary injunction.
47
We believe that the Court of Appeals was quite wrong in suggesting that at this stage of the proceeding the District Court need not have concluded that there was actually irreparable injury.59 This Court has stated that '(t)he basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies,' Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506—507, 79 S.Ct. 948, 954, 3 L.Ed.2d 988 (1959), and the Court of Appeals itself in Virginia Petroleum Jobbers Assn. v. FPC, 104 U.S.App.D.C. 106, 259 F.2d 921 (1958), has recognized as much. Yet the record before us indicates that no witnesses were heard on the issue of irreparable injury, that respondent's complaint was not verified, and that the affidavit she submitted to the District Court did not touch in any way upon considerations relevant to irreparable injury.60 We are therefore somewhat puzzled about the basis for the District Court's conclusion that respondent 'may suffer immediate and irreparable injury.' The Government has not specifically urged this procedural issue here, however, and the Court of Appeals in its opinion discussed the elements upon which it held that the District Court might base a conclusion of irreparable injury. Respondent's unverified complaint alleged that she might be deprived of her income for an indefinite period of time, that spurious and unrebutted charges against her might remain on the record, and that she would suffer the embarrassment of being wrongfully discharged in the presence of her co-workers.61 The Court of Appeals intimated that either loss of earnings or damage to reputation might afford a basis for a finding of irreparable injury and provide a basis for temporary injunctive relief.62 We disagree.63
48
Even under the traditional standards of Virginia Petroleum Jobbers, supra, it seems clear that the temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury.64 In that case the court stated:
49
'The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.'65
50
This premise is fortified by the Back Pay Act discussed above.66 This Act not only affords monetary relief which will prevent the loss of earnings on a periodic basis from being 'irreparable injury' in this type of case, but its legislative history suggests that Congress contemplated that it would be the usual, if not the exclusive, remedy for wrongful discharge. The manager of the bill on the floor of the Senate, Senator Langer, commented on the bill at the time of its passage:
51
'(It) . . . provides that an agency or department of the Government may remove any employee at any time, but that the employee shall then have a right of appeal. When he is removed, he is of course off the pay roll. If he wins the appeal, it is provided that he shall be paid for the time during which he was suspended.'67
52
Respondent's complaint also alleges, as a basis for relief, the humiliation and damage to her reputation which may ensue. As a matter of first impression it would seem that no significant loss of reputation would be inflicted by procedural irregularities in effectuating respondent's discharge, and that whatever damage might occur would be fully corrected by an administrative determination requiring the agency to conform to the applicable regulations. Respondent's claim here is not that she could not as a matter of statutory or administrative right to discharged, but only that she was entitled to additional procedural safeguards in effectuating the discharge.
53
Assuming for the purpose of discussion that respondent had made a satisfactory showing of loss of income and had supported the claim that her reputation would be damaged as a result of the challenged agency action, we think the showing falls for short of the type of irreparable injury which is a necessary predicate to the issuance of a temporary injunction in this type of case.68 We therefore reverse the decision of the Court of Appeals which approved the action of the District Court.
54
It is so ordered.
55
Mr. Justice DOUGLAS, dissenting.
56
I think with all respect that while the narrow isolated issue involved in this litigation is exposed in the opinion of the Court the nature of the problem is not.
57
Respondent, a probationary employee, claims that her discharge was not based exclusively on her work as a probationary employee. If it were based on her work as probationary employee, the procedure is quite summary and her right of appeal to the Civil Service Commission is limited to only a few grounds such as discrimination based on race, color, religion, sex, or national origin, 5 CFR § 315.806. But her claim is that her discharge was based, at least in part, on conduct prior to her federal employment. In case that prior conduct is the basis of the discharge, the employee is entitled to advance notice of proposed termination, an opportunity to respond in writing with supporting affidavits, and notice of any adverse decisions on or prior to the effective date of the termination, 5 CFR § 315.805.
58
The Congress in 1966 provided that all wrongfully discharged federal employees, including probationary employees are entitled to backpay, 5 U.S.C § 5596, and the Court concludes that that is the employee's exclusive remedy.
59
But where an agency has terminated employment and the employee appeals to the Civil Service Commission, the Commission has no power to issue a stay of the agency's action. This is, therefore, not a case where the employee has gone to the courts for relief which the Commission could have granted but refused to do so. Nor is respondent challenging the Civil Service law; nor is she asking for a ruling on the merits of her claim; nor did the District Court, whose judgment was affirmed by the Court of Appeals, act in derogation of the administrative process. Rather, it protected that process by staying the discharge until the Commission had ruled on the appeal.
60
The power to issue a stay is inherent in judicial power and as indicated by the Court rests on the exercise of an informed discretion on a showing of irreparable injury to the applicant or to the public interest, Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 14, 62 S.Ct. 875, 882, 86 L.Ed. 1229. That doctrine is not limited, as the Department of Justice suggests, to issuance of stays by a court only after an appeal has been taken. We held in Federal Trade Commission v. Dean Foods Co., 384 U.S. 597, 603—604, 86 S.Ct. 1738, 1742—1743, 16 L.Ed.2d 802, that the All Writs Act, 28 U.S.C. § 1651, which empowers federal courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law," extends to 'potential jurisdiction of the appellate court where an appeal is not then pending but may be later perfected.' The District Court has at least a limited review of the Commission, Norton v. Macy, 135 U.S.App.D.C. 214, 217, 417 F.2d 1161, 1164; Dozier v. United States, 473 F.2d 866 (CA5). Hence the All Writs Act justified its power to grant a stay.
61
We have, therefore, a case where a stay supplements and does not curtail administrative power, the Commission having no authority to grant that relief. The District Court power preserves the status quo, does not pass on the merits of the controversy, and limits its stay to the date when the merits of the discharge are adjudicated by the Commission. I agree with the Court that that order was appealable.
62
A point is made that respondent has not shown irreparable injury. That misstates the issue. The District Court issued a stay pending a hearing on whether a temporary injunction should issue. The hearing, if held, would encompass two issues: (1) whether the grounds for respondent's discharge antedated her present employment (see 149 U.S.App.D.C. 256, 269, 462 F.2d 871, 884) and were not restricted to her record as a probationary employee;1 and (2) whether she would suffer irreparable injury. As stated by the Court of Appeals, respondent 'may show . . . irreparable damage, if the hearing before Judge Gasch is allowed to proceed to a decision.' Id., at 269, 462 F.2d, at 884. The stay was issued by the District Court only because the federal agency involved refused to produce as a witness the officer who had decided to discharge respondent. Both the District Court and the Court of Appeals were alert to the necessity to show irreparable injury before an injunction issues.
63
On that issue there is more than meets the eye.
64
Employability is the greatest asset most people have. Once there is a discharge from a prestigious federal agency, dismissal may be a badge that bars the employee from other federal employment. The shadow of that discharge is cast over the area where private employment may be available. And the harm is not eliminated by the possibility of reinstatement, for in many cases the ultimate absolution never catches up with the stigma of the accusation. Thus the court in Schwartz v. Covington, 341 F.2d 537, 538, issued a stay upon a finding of irreparable injury where a serviceman was to be discharged for alleged homosexual activity: '(A)ppellee has shown that he will suffer irreparable damage if the stay is not granted. Irrespective of the government's recent assurance that the appellee would be reinstated if he prevails upon review of his discharge, the injury and the stigma attached to an undesirable discharge are clear.' Unlike a layoff or discharge due to fortuitous circumstances such as the so-called energy crisis, a discharge on the basis of an employee's lifetime record or on the basis of captious or discriminatory attitudes of a superior may be a cross to carry the rest of an employee's life. And we cannot denigrate the importance of one's social standing or the status of social stigma as legally recognized harm. In Ah Kow v. Nunan, 5 Sawy. 552, the Circuit Court, speaking through Mr. Justice Field, held that a Chinese prisoner could recover damages from the sheriff who cut off his queue, the injury causing great mental anguish, disgrace in the eyes of friends and relatives, and ostracism from association with members of his own race.
65
There is no frontier where the employee may go to get a new start. We live today in a society that is closely monitored. All of our important acts, our setbacks, the accusations made against us go into data banks and are instantly retrievable by the computer.2 An arrest goes into the data bank even though it turns out to be unconstitutional or based on mistaken identity. There is no federal procedure for erasing arrests. While they arise in 50 States as well as in the federal area, only a few States have procedures for erasing them; and that entails a long and laborious procedure.3 Moreover, this generation grew up in the age where millions of people were screened for 'loyalty' and 'security'; and many were discharged from the federal service; many resigned rather than face the ordeal of the 'witch hunt' that was laid upon them. Discharge from the federal service or resignation under fire became telltale signs of undesirability. Therefore, the case of irreparable injury for an unexplained discharge from federal employment may be plain enough on a hearing.
66
The District Court and the Court of Appeals were well within the limits of the law in granting a stay so that the issue of irreparable injury might be determined. It hardly comports with any standard for the expenditure of judicial energies to spend our time trying to find error in the exercise of the lower court's discretion to protect federal employees by giving them at least a chance to prove irreparable injury.
67
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN concurs, dissenting.
68
In my view no appelable order has been entered in this case, and both the Court of Appeals and this Court accordingly lack jurisdiction.
69
The orders issued by the District Court are both temporary restraining orders. The first, issued on May 28 and captioned 'Temporary Restraining Order,' enjoined Mrs. Murray's dismissal until the determination of her application for an injunction. The second, issued on June 4 and also captioned 'Temporary Restraining Order,' provides 'that the Temporary Restraining Order issued by this Court at twelve o'clock p.m., May 28, 1971, is continued until the appearance of the aforesaid W. H. Sanders.' At no time did the District Court indicate it was issuing anything but a temporary restraining order. During the hearing on the application for a preliminary injunction, after the court indicated it wanted to hear from Mr. Sanders in person, the Government informed the court that Mr. Sanders was then out of town on vacation. The court replied: 'Let me know when he can be available.' Counsel for the Government responded: 'Very well.' And the District Court then said: 'The T.R.O. will be continued until he shows up. . . . Tell the agency I will continue the temporary restraining order until the witness appears.' Tr. 10.
70
It is well settled that the grant or denial of a temporary restraining order is not appelable, except in extraordinary circumstances, not present here, where the denial of the temporary restraining order actually decides the merits of the case or is equivalent to a dismissal of the suit. See generally 11 C. Wright & A. Miller, Federal Practice & Procedure § 2962, pp. 616—617 (1973), and cases there cited.
71
The Court holds, however, that since the temporary restraining order was extended by the District Court beyond the time limitation imposed by Fed.Rule Civ.Proc. 65(b), it became an appelable preliminary injunction. I cannot agree. Federal Rule Civ.Proc. 52(a) expressly provides that 'in granting or refusing interlocutory injunctions the court shall . . . set forth the findings of fact and conclusions of law which constitute the grounds of its action.' This Rule applies to preliminary injunctions, and as no findings of fact and conclusions of law have yet been filed in this case, no valid preliminary injunction was ever issued. See National Mediation Board v. Air Line Pilots Assn., 116 U.S.App.D.C. 300, 323 F.2d 305 (1963); Sims v. Greene, 160 F.2d 512 (CA3 1947).
72
Nor would it make sense for this Court to review the District Court's order in this case as the grant of a preliminary injunction. Where the District Court has not entered findings of fact and conclusions of law under Rule 52(a), meaningful review is well-nigh impossible. 'It is of the highest importance to a proper review of the action of a court in granting or refusing a preliminary injunction that there should be fair compliance with Rule 52(a) of the Rules of Civil Procedure.' Mayo v. Lakeland Highlands Canning Co., 309 U.S. 310, 316, 60 S.Ct. 517, 520, 84 L.Ed. 774 (1940).
73
It is suggested that if an indefinitely extended temporary restraining order remained unappealable, the District Court would have virtually unlimited authority over the parties in an injunctive action. At the outset, this cannot justify this Court's reaching the merits of Mrs. Murray's claim for a preliminary injunction. Even if the order entered by the District Court is appealable, it should be appealable only for the purposes of holding it invalid for failure to comply with Rule 52(a). This was the precise course taken by the Court of Appeals for the District of Columbia Circuit in National Mediation Board, supra, on which the majority relies. See also Sims v. Greene, supra.
74
In addition, the Government had other courses it could have taken in this case. In view of the District Court's error in granting a restraining order of unlimited duration without complying with the requirements for a preliminary injunction, the Government could have moved the District Court to dissolve its order indefinitely continuing the temporary restraining order. Rule 65(b) expressly provides for such a motion.1 Had the Government followed this course, the District Court could have corrected its error and gone on to resolve the issues presented by the application for a preliminary injunction. The end result would have been the grant or denial of a preliminary injunction, with findings of fact and conclusions of law, which we could meaningfully review.
75
Here, instead, we find the Supreme Court determining that although the District Court had jurisdiction to grant injunctive relief, the equities of Mrs. Murray's case did not support a preliminary injunction, when neither the District Court nor the Court of Appeals has yet confronted the latter issue.2 I do not believe this makes for sound law.
76
Since the majority persists in considering the merits of Mrs. Murray's claim for injunctive relief, some additional comment is in order. I agree with the majority's conclusion that Congress did not divest federal courts of their longexercised authority to issue temporary injunctive relief pending the exhaustion of both administrative and judicial review of an employee's claim of wrongful dismissal. I cannot accept, however, the way in which the majority opinion then proceeds to take away with the left hand what it has just given with the right, by precluding injunctive relief in all but so-called 'extraordinary cases,' whatever they may be.
77
At the outset, I see no basis for applying any different standards for granting equitable relief in the context of a discharged probationary employee than the long-recognized principles of equity applied in all other situations. See Virginia Petroleum Jobbers Assn. v. FPC, 104 U.S.App.D.C. 106, 259 F.2d 921 (1958). Indeed, it appears that the factors which the majority would have courts weigh before granting injunctive relief are all encompassed within the traditional formulations. The adequacy of backpay as a remedy, for example, is relevant in determining whether the party seeking relief has shown that 'without such relief, it will be irreparably injured.' Id., at 110, 259 F.2d, at 925. Likewise, the possible disruptive effect which temporary injunctive relief might have on the office where respondent was employed or on the administrative review process itself relates to whether 'the issuance of a stay (will) substantially harm other parties interested in the proceedings.' Idid.
78
However one articulates the standards for granting temporary injunctive relief, I take it to be well settled that a prerequisite for such relief is a demonstrated likelihood of irreparable injury for which there is no adequate legal remedy. But I cannot accept the majority's apparent holding, buried deep in a footnote, that because of the Back Pay Act, a temporary loss in income can never support a finding of irreparable injury, no matter how severely it may affect a particular individual. See ante, at 92 n. 68. Many employees may lack substantial savings, and a loss of income for more than a few weeks' time might seriously impair their ability to provide themselves with the essentials of life—e.g,., to buy food, meet mortgage or rent payments, or procure medical services. Cf. Goldberg v. Kelly, 397 U.S. 254, 264, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287 (1970). Government employees might have skills not readily marketable outside the Government, making it difficult for them to find temporary employment elsewhere to tide themselves over until the lawfulness of their dismissal is finally determined. In some instances, the likelihood of finding alternative employment may be further reduced by the presence on the employee's records of the very dismissal at issue. Moreover, few employers wil be willing to hire and train a new employee knowing he will return to his former Government position if his appeal is successful. Finally, the loss of income may be 'temporary' in only the broadest sense of that word. Not infrequently, dismissed federal employees must wait several years before the wrongful nature of their dismissal is finally settled and their right to backpay established. See, e.g., Paroczay v. United States, 369 F.2d 720, 177 Ct.Cl. 754 (1966); Paterson v. United States, 319 F.2d 882, 162 Ct.Cl. 675 (1963).
79
The availability of a backpay award several years after a dismissal is scant justice for a Government employee who may have long since been evicted from his home and found himself forced to resort to public assistance in order to support his family. And it is little solace to those who are so injured to be told that their plight is 'normal' and 'routine.' Whether common or not, such consequences amount to irreparable injury which a court of equity has power to prevent.
80
Nor can I agree with the majority's analysis of Mrs. Murray's claim of damaged reputation. It is argued that Mrs. Murray can suffer no significant loss of reputation by procedural irregularities in effectuating her discharge because her claim is not that she could not as a matter of statutory or administrative right be discharged, but only that she was entitled to additional procedural safeguards in effectuating the discharge. Ante, at 91. In my view, this analysis not only reflects a total misunderstanding of the gist of Mrs. Murray's complaint, but also fails to comprehend the purposes behind the Civil Service Commission regulations at issue here.
81
The Commission provides a special pretermination procedure where a probationary employee is to be terminated 'for conditions arising before appointment,' not as an empty gesture, but rather because the employing agency might be mistaken about these preappointment conditions, and might decide not to dismiss the employee if he is given an opportunity to present his side of the story. Mrs. Murray does not seek a hearing as an end in itself, but rather to correct what she believes is a mistaken impression the agency had about her conduct in her prior job, in the hope what with the record straight, the agency would not discharge her. She seeks to save her job and to avoid the blot on her employment record that a dismissal entails, and it is in this sense that she claims her dismissal would injure her reputation.
82
Whether the likelihood of irreparable injury to Mrs. Murray if she is not allowed to retain her job pending her administrative appeal, when balanced against the Government's interests in having her out of the office during this period, supports equitable relief in the present case is a question I would leave for the District Court. Because of Mr. Sanders' absence, the District Court cut short its hearing on the application for a preliminary injunction before either the Government or Mrs. Murray had an opportunity to present witnesses or other evidence. Mrs. Murray still has not had her day in court to present evidence supporting her allegation of irreparable injury, and what that evidence would be were she given that opportunity we can only speculate.
1
Murray v. Kunzig, 149 U.S.App.D.C. 256, 462 F.2d 871 (1972). For a discussion of the Court of Appeals' jurisdiction, and the jurisdiction of this Court, see infra, at 86—88.
2
5 CFR § 315.801.
3
Compare 5 CFR §§ 315.801—315.807 with 5 CFR § 752.101 et seq.
4
5 CFR § 315.804.
5
5 CFR § 315.805.
6
Section 315.805 reads in full:
'§ 315.805 Termination of probationers for conditions arising before appointment.
'When an agency proposes to terminate an employee serving a probationary or trial period for reasons based in whole or in part on conditions arising before his appointment, the employee is entitled to the following:
'(a) Notice of proposed adverse action. The employee is entitled to an advance written notice stating the reasons, specifically and in detail, for the proposed action.
'(b) Employee's answer. The employee is entitled to a reasonable time for filing a written answer to the notice of proposed adverse action and for furnishing affidavits in support of his answer. If the employee answers, the agency shall consider the answer in reaching its decision.
'(c) Notice of adverse decision. The employee is entitled to be notified of the agency's decision at the earliest practicable date. The agency shall deliver the decision to the employee at or before the time the action will be made effective. The notice shall be in writing, inform the employee of the reasons for the action, inform the employee of his right of appeal to the appropriate office of the Commission, and inform him of the time limit within which the appeal must be submitted as provided in § 315.806(d).'
7
Section 315.806(c) reads:
'A probationer whose termination is subject to § 315.805 may appeal on the ground that his termination was not effected in accordance with the procedural requirements of that section.'
8
The order of the District Court stated in full:
'It appearing to the Court from the affidavits and accompanying exhibits that a Temporary Restraining Order, pending the appearance before this Court of Mr. W. H. Sanders, Acting Commissioner, Public Buildings Service, should issue because, unless Defendants are restrained from terminating Plaintiff's employment, Plaintiff may suffer immediate and irreparable injury, loss and damage before the Civil Service Commission can consider Plaintiff's claim,
'NOW, THEREFORE, IT IS ORDERED, that the Temporary Restraining Order issued by this Court at twelve o'clock p.m., May 28, 1971, is continued until the appearance of the aforesaid W. H. Sanders.
'IT IS FURTHER ORDERED that a copy of this Order be served by the United States Marshal on Defendants forthwith.'
9
149 U.S.App.D.C., at 262 n. 21, 462 F.2d, at 877 n. 21.
10
Id., at 263—264, 462 F.2d, at 878—879.
11
29 U.S.C. §§ 160(j), (l).
12
15 U.S.C. § 53(a).
13
16 U.S.C. § 825m(a).
14
15 U.S.C. §§ 77t(b), 78u(e).
15
Respondent does suggest that 5 U.S.C. § 705 may confer authority to grant relief in this case. That section reads:
'When an agency finds that justice so requires, it may postpone the effective date of action taken by it, pending judicial review. On such conditions as may be required and to the extent necessary to prevent irreparable injury, the reviewing court, including the court to which a case may be taken on appeal from or on application for certiorari or other writ to a reviewing court, may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings.'
The relevant legislative history of that section, however, indicates that it was primarily intended to reflect existing law under the Scripps-Howard doctrine, discussed infra, and not to fashion new rules of intervention for District Courts. See S.Rep.No.752, 79th Cong., 1st Sess., 27, 44 (1945). Thus respondent's various contentions may be grouped under her primary theory discussed in the text.
16
149 U.S.App.D.C., at 265, 462 F.2d, at 880 (footnotes omitted.)
17
The Court there expressed the traditional judicial deference to administrative processes in the following terms:
'The appointment to an official position in the Government, even if it be simply a clerical position, is not a mere ministerial act, but one involving the exercise of judgment. The appointing power must determine the fitness of the applicant; whether or not he is the proper one to discharge the duties of the position. Therefore it is one of those acts over which the courts have no general supervising power.
'In the absence of specific provision to the contrary, the power of removal from office is incident to the power of appointment. 'It cannot for a moment be admitted that it was the intention of the Constitution that those offices which are denominated inferior offices should be held during life. And if removable at pleasure, by whom is such removal to be made? In the absence of all constitutional provision or statutory regulation it would seem to be a sound and necessary rule to consider the power of removal as incident to the power of appointment.' In re Hennen, 13 Pet. 230, 259 (10 L.Ed. 138); Parsons v. United States, 167 U.S. 324 (17 S.Ct. 880, 42 L.Ed. 185). Unless, therefore, there be some specific provision to the contrary, the action of the Secretary of the Interior in removing the petitioner from office on account of inefficiency is beyond review in the courts either by mandamus to reinstate him or by compelling payment of salary as though he had not been removed.' 177 U.S., at 293—294, 20 S.Ct., at 575.
18
The plaintiff in White protested that he was being discharged because of his political affiliation, a basis for discharge specifically prohibited under the Civil Service rules. 171 U.S., at 367—368, 18 S.Ct., at 917—918. Such a contention obviously went to the heart of the Civil Service legislation, since a primary purpose of that system was to remove large sectors of Government employment from the political 'spoils system' which had previously played a large part in the selection and discharge of Government employees. See generally H. Kaplan, The Law of Civil Service 1—22 (1958).
19
171 U.S., at 374—375, 18 S.Ct., at 920.
20
The Court quoted from Morgan v. Nunn, 84 F. 551 (CCMD Tenn.1898), and noted that '(s)imilar decisions have been made in other circuit courts of the United States.' 171 U.S., at 377—378, 18 S.Ct., at 921.
21
Id., at 378, 18 S.Ct., at 922.
22
In Service an employee discharged under the provisions of the McCarran rider, 65 Stat. 581, contended that the Secretary of State had not followed departmental regulations in effecting his dismissal. This Court agreed with plaintiff's position and decided that his 'dismissal cannot stand.' 354 U.S., at 388, 77 S.Ct., at 1165. However, the employee in that case had made a full effort to secure administrative review of his discharge prior to filing suit in the District Court. These efforts, as the Court noted, id., at 370, 77 S.Ct., at 1156, had 'proved unsuccessful.' In the present case petitioner has petitioned the court before ascertaining whether administrative relief will be granted.
23
See n. 22, supra.
24
The Court pointed out that 'even though the Radio Act of 1927 contained no provisions dealing with the authority of the Court of Appeals for the District of Columbia to stay orders of the Commission on appeal, the Court had been issuing stays as a matter of course wherever they were found to be appropriate, without objection by the Commission.' Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 13, 62 S.Ct. 875, 881, 86 L.Ed. 1229 (1942).
25
The precise question certified was:
"Where, pursuant to the provisions of Section 402(b) of the Communications Act of 1934, an appeal has been taken, to the United States Court of Appeals, from an order of the Federal Communications Commission, does the court, in order to preserve the status quo pending appeal, have power to stay the execution of the Commission's order from which the appeal was taken, pending the determination of the appeal?" Id., at 6, 62 S.Ct., at 878.
The wording of the question certified makes clear that the Court was faced only with the situation in which an appeal has been filed seeking review of completed agency action.
26
Id., at 9—10, 62 S.Ct., at 880. In the Court's opinion a footnote, herein designated with an asterisk, referred to the All Writs Act, 28 U.S.C. § 1651(a), which reads:
'The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.'
The reliance of the Court on this provision was noted by the Court of Appeals in its opinion in this case. 149 U.S.App.D.C., at 261 n. 17, 462 F.2d, at 876 n. 17.
27
See n. 25, supra.
28
For example, the two cases cited by the Court in Scripps-Howard involved situations in which a court accepted appeal jurisdiction and, in connection with that acceptance, issued a stay of the decision below. See In re Classen, 140 U.S. 200, 11 S.Ct. 735, 35 L.Ed. 406 (1891) (writ of error to this Court); In re McKenzie, 180 U.S. 536, 21 S.Ct. 468, 45 L.Ed. 657 (1901) (appeal taken to the Circuit Court of Appeals). The All Writs Act, n. 26, supra, provided the authority in each case.
29
See n. 26, supra.
30
See n. 22, supra. As noted above, the employee in Service sought to have the Secretary's action declared invalid within the administrative system. He sought judicial relief only after it became evident that no administrative relief would be forthcoming.
31
The Back Pay Act is found at 5 U.S.C. § 5596. The pertinent provisions read:
'(b) An employee of an agency who, on the basis of an administrative determination or a timely appeal, is found by appropriate authority under applicable law or regulation to have undergone an unjustified or unwarranted personnel action that has resulted in the withdrawal or reduction of all or a part of the pay, allowances, or differentials of the employee—
'(1) is entitled, on correction of the personnel action, to receive for the period for which the personnel action was in effect an amount equal to all or any part of the pay, allowances, or differentials, as applicable, that the employee normally would have earned during that period if the personnel action had not occurred, less any amounts earned by him through other employment during that period . . ..'
32
316 U.S., at 14, 62 S.Ct., at 882.
33
A preliminary question of importance in Dean Foods was whether the Commission, in the absence of express statutory authorization, could petition the Court of Appeals for preliminary relief. This Court said:
'(T)he Commission is a governmental agency to which Congress has entrusted, inter alia, the enforcement of the Clayton Act, granting it the power to order divestiture in appropriate cases. At the same time, Congress has given the courts of appeals jurisdiction to review final Commission action. It would stultify congressional purpose to say that the Commission did not have the incidental power to ask the courts of appeals to exercise their authority derived from the All Writs Act.' 384 U.S., at 606, 86 S.Ct., at 1743.
A contrary decision, the Court felt, would have made it virtually impossible for the Commission itself to undertake review of the proposed merger. The congressional grant of authority to the FTC in Clayton Act cases thus could have been frustrated.
34
Id., at 599—600, 86 S.Ct., at 1740—1741. The complaint charged that one of the parties to the merger "as an entity will no longer exist," id., at 599, 86 S.Ct., at 1740, and that 'consummation of the agreement would 'prevent the Commission from devising, or render it extremely difficult for the Commission to devise, any effective remedy after its decision on the merits." Id., at 600, 86 S.Ct., at 1740. The Commission therefore was affirmatively asserting that the administrative remedy which it was authorized to fashion was inadequate.
35
Id., at 601, 86 S.Ct., at 1740.
36
In Dean Foods the Commission confessed its inability to fashion effective administrative relief. But petitioners here admit no such thing. Rather they strongly assert that the Back Pay Act, n. 31, supra, provides a complete remedy for any procedural irregularities which may have occurred in this case.
37
316 U.S., at 11—13, 62 S.Ct., at 880—881.
38
The Court compared the provisions of §§ 402(a) and 402(b) of the Communications Act of 1934, 48 Stat. 1064. The former section specifically authorized temporary stays, through application of the Urgent Deficiencies Appropriation Act of Oct. 22, 1913, 38 Stat. 208, of orders of the Federal Communications Commission which were under review—with certain exceptions. Those exceptions, which included the order there at issue, were treated under § 402(b) which made no specific provision for such stays. The Court thus was required to consider whether Congress deliberately sought to deprive courts of a power in those cases not governed by the Urgent Deficiencies Act which had been expressly authorized for those cases which were governed by the Act.
39
See n. 24, supra.
40
Although acknowledging that the legislative history did not clearly establish 'a design to extinguish whatever judicial power may have existed prior to 1910 to suspend proposed rates,' the Court concluded: '(w)e cannot suppose that Congress, by vesting the new suspension power in the Commission, intended to give backhanded approval to the exercise of a judicial power which had brought the whole problem to a head.' 372 U.S., at 664, 83 S.Ct., at 987.
41
Id., at 668, 83 S.Ct., at 990. (Emphasis in original.)
42
See 5 U.S.C. § 7501.
43
22 Stat. 404.
44
See 5 U.S.C. § 2108(3).
45
5 U.S.C. §§ 7511, 7512. Section 7511 defines a 'preference eligible employee' as 'a permanent or indefinite preference eligible who has completed a probationary or trial period as an employee of an Executive agency or as an individual employed by the government of the District of Columbia . . .,' subject to certain exceptions. Section 7512 provides that such an employee must receive written notice of the reasons for proposed adverse action, a chance to reply in writing and by affidavit, and notice of an adverse decision. A probationary employee, under the regulations, has more limited rights. See 5 CFR § 315.801 et seq.
46
5 U.S.C. § 7532(c)(2).
47
Title 5 U.S.C. § 3301 et seq., grants to the President authority to promulgate rules and regulations governing the Civil Service. Title 5 U.S.C. § 1301 provides that '(t)he Civil Service Commission shall aid the President, as he may request, in preparing the rules he prescribes under this title for the administration of the competitive service.' Title 5 U.S.C. § 1302 empowers the Commission to prescribe regulations, 'subject to the rules prescribed by the President . . ..'
48
5 CFR § 752.103(a)(5).
49
5 CFR § 315.801 et seq.
50
Title 5 CFR § 752.202(d) reads in part: 'Except as provided in paragraph (e) of this section, an employee against whom adverse action is proposed is entitled to be retained in an active duty status during the notice period.'
Section 752.202(a)(1) provides that 'at least 30 full days' advance written notice' is required.
51
See n. 31, supra.
52
80 Stat. 94, 95.
53
These considerations were set forth by the majority below as follows:
'(1) Has the petitioner made a strong showing that he is likely to prevail on the merits of his appeal? (2) Has the petitioner shown that without such relief he will be irreparably injured? (3) Would the issuance of a stay substantially harm other parties interested in the proceedings? (4) Where lies the public interest?' 149 U.S.App.D.C., at 263, 462 F.2d, at 878.
54
Id., at 266, 462 F.2d at 877 (emphasis in original).
55
Id., at 265, 462 F.2d, at 880.
56
Id., at 270, 462 F.2d, at 885 (emphasis in original).
57
See n. 8, supra.
58
The Court of Appeals for the Second Circuit, in an opinion cited by the Court of Appeals for the District of Columbia Circuit in National Mediation Board v. Air Line Pilots Assn., 116 U.S.App.D.C. 300, 323 F.2d 305 (1963), described these principles as follows:
'It is because the remedy is so drastic and may have such adverse consequences that the authority to issue temporary restraining orders is carefully hedged in Rule 65(b) by protective provisions. And the most important of these protective provisions is the limitation on the time during which such an order can continue to be effective.
'It is for the same reason, the possibility of drastic consequences which cannot later be corrected, that an exception is made to the
final judgment rule to permit review of preliminary injunctions. 28 U.S.C. § 1292(a)(1). To deny review of an order that has all the potential danger of a preliminary injunction in terms of duration, because it is issued without a preliminary adjudication of the basic rights involved, would completely defeat the purpose of this provision.
'We hold, therefore, that the continuation of the temporary restraining order beyond the period of statutory authorization, having, as it does, the same practical effect as the issuance of a preliminary injunction, is appealable within the meaning and intent of 28 U.S.C § 1292(a)(1).' Pan American World Airways, Inc. v. Flight Engineers' Intern. Assn., etc., 306 F.2d 840, 843 (CA2 1962). (Citations omitted; emphasis in original.)
Our Brother MARSHALL, in his dissenting opinion, nevertheless suggests that a district court can totally or partially impede review of an indefinite injunctive order by failing to make any findings of fact or conclusions of law. It would seem to be a consequence of this reasoning that an order which neglects to comply with one rule may be saved from the normal appellate review by its failure to comply with still another rule. We do not find this logic convincing. Admittedly, the District Court did not comply with Fed.Rule Civ.Proc. 52(a), but we do not think that we are thereby foreclosed from examining the record to determine if sufficient allegations or sufficient evidence supports the issuance of injunctive relief. As discussed below, nothing in the pleadings or affidavits or in the testimony at the hearing before the District Court, demonstrates that this is an extraordinary case supporting the award of judicial relief. See n. 68, infra.
59
We note that Rule 65 requires a showing of irreparable injury for the issuance of a temporary restraining order as well. Therefore, for the purposes of this part of the discussion, it would make no difference that the ordder was styled a temporary restraining order rather than a preliminary injunction.
60
The affidavit in its entirety states:
'JEANNE M. MURRAY, being first duly sworn, deposes as follows:
'1. I am presently employed by the Public Buildings Service of the General Services Administration (GSA) as a Program Analyst, GS—13.
'2. On May 20, 1971, at approximately five p.m., I was given a letter signed by Mr. W. H. Sanders, Acting Commissioner of the Public Buildings Service, informing me that my employment was to be terminated as of Saturday, May 29, 1971.
'3. I have never been told that GSA's Personnel files contain adverse information about my service in the Defense Intelligence Agency (DIA), nor have I ever seen a memorandum dealing with my employment there.
'4. I worked for slightly over a year at the DIA, and I have been
informed by the Acting Chief of Staff of the DIA, Rear Admiral D. E. Bergin, that my personnel file at DIA contains nothing derogatory to me.
'5. In recent weeks, I was informed by Mr. William Mulroney, a DIA employee, that someone from GSA had been making inquiries of DIA personnel about my term of service there.'
61
Complaint, par. 12.
62
149 U.S.App.D.C., at 262, 462 F.2d, at 877.
63
The Court of Appeals held that the Government's failure to produce witness Sanders, after the District Court chose to hear him orally, rather than to rely on his affidavit, allowed the District Court to continue the temporary restraining order until Sanders appeared. We have no doubt that a district court in appropriate circumstances may be justified in resolving against a party refusing to produce a witness under his control the relevant issues upon which that witness' testimony might have touched. But it is clear from the record that the testimony of the witness Sanders was desired to test the basis upon which respondent was discharged, testimony which, of course, would go to the issue of respondent's ultimate chances for success on the merits. While the District Court may well have been entitled to resolve that issue against the Government at that stage of the proceeding, this conclusion in no way dispenses with the necessity for a conclusion that irreparable injury will occur, since that is a separate issue that must be proved to the satisfaction of the Court by the person seeking equitable relief.
64
It should be noted that Virginia Petroleum Jobbers dealt with a fact situation quite dissimilar to this one. There the Federal Power Commission had denied petitioner leave to intervene in proceedings before the Commission. In conjunction with appeal of that decision the petitioner had filed a 'motion for a stay of further proceedings pending completion of (the Court's) review of the Commission's orders denying intervention or rehearing.' 104 U.S.App.D.C., at 109, 259 F.2d, at 924. Such a fact situation was far closer to the traditional situation in which equity powers have been employed to grant a stay pending appeal than is the situation involved in the instant case.
65
Id., at 110, 259 F.2d, at 925 (emphasis in original).
66
N. 31, supra.
67
94 Cong.Rec. 6681 (1948).
68
We recognize that cases may arise in which the circumstances surrounding an employee's discharge, together with the resultant effect on the employee, may so far depart from the normal situation that irreparable injury might be found. Such extraordinary cases are hard to define in advance of their occurrence. We have held that an insufficiency of savings or difficulties in immediately obtaining other employment—external factors common to most discharged employees and not attributable to any unusual actions relating to the discharge itself—will not support a finding of irreparable injury, however severely they may affect a particular individual. But we do not wish to be understood as foreclosing relief in the genuinely extraordinary situation. Use of the court's injunctive power, however, when discharge of probationary employees is an issue, should be reserved for that situation rather than employed in the routine case. See also Wettre v. Hague, 74 F.Supp. 396 (D.C.Mass.1947); vacated and remanded on other grounds, 168 F.2d 825 (CA1 1948).
1
Where, as here, conduct prior to appointment as a probationary employee as well as conduct during the period of employment is alleged to be the basis of the discharge, the requirements of procedural due process are obvious. We said in Wieman v. Updegraff, 344 U.S. 183, 192, 73 S.Ct. 215, 219, 97 L.Ed. 216, 'It is sufficient to say that constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory.' And see Schwartz v. Covington, 341 F.2d 537, 538 (CA9 1965).
2
With dossiers being compiled by commercial credit bureaus, state and local law enforcement agencies, the CIA, the FBI, the IRS, the Armed Services, and the Census Bureau, we live in an Orwellian age in which the computer has become 'the heart of a surveillance system that will turn society into a transparent world.' Miller, Computers, Data Banks and Individual Privacy: An Overview, 4 Col. Human Rights L.Rev. 1, 2 (1972). Although the subject of congressional concern, the problem is one which has thus far avoided legislative correction. See Federal Data Banks, Computers and the Bill of Rights, Hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 92d Cong., 1st Sess. (1971). See also A. Miller, The Assault on Privacy (1971).
3
Illinois provides that photographs, fingerprints, etc., be returned to unconvicted arrestees upon acquittal or release and further provides that the arrestee may petition a local court to have the record expunged by the arresting authorities. There is, however, no method for retrieving records which have been distributed to other law enforcement authorities or to private individuals. Ill.Rev.Stat., c. 38, § 206—5 (1973). Connecticut has a statute with similar shortcomings. Conn.Gen.Stat.Ann. § 54—90 (Supp.1971); see Satter & Kalom, False Arrest: Compensation and Deterrence, 43 Conn.B.J. 598, 612—613. New York's former Penal Law provided that all fingerprints, photographs, etc., of those acquitted of criminal charges had to be returned to the individual if no other criminal proceedings were pending against the individual and he had no prior convictions. N.Y.Penal Law § 516 (McKinney's Consol. Laws c. 40, 1909).
1
'On 2 days' notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.' Fed.Rule Civ.Proc. 65(b).
2
The Court of Appeals expressly stated that it was not evaluating Mrs. Murray's claim of irreparable injury because 'any such finding . . . is for the trial judge, who has not yet (decided (and may never decide)) this point in favor of Mrs. Murray.' 149 U.S.App.D.C. 256, 262 n. 21, 462 F.2d 871, 877 n. 21 (1972).
| 01
|
415 U.S. 1
94 S.Ct. 1028
39 L.Ed.2d 123
The RENEGOTIATION BOARD, Petitioner,v.BANNERCRAFT CLOTHING COMPANY, INC., et al.
No. 72—822.
Argued Oct. 17, 1973.
Decided Feb. 19, 1974.
Syllabus
(1) Respondents, whose profits on defense contracts are undergoing renegotiation pursuant to the Renegotiation Act of 1951, sued in the District Court under the Freedom of Information Act (FOIA) to enjoin petitioner Board from withholding documents that respondents had requested and from conducting any further renegotiation proceedings until the documents were produced. The District Court in each case granted injunctive relief. The cases were consolidated on appeal and the Court of Appeals affirmed, holding that the District Court had jurisdiction under the FOIA to enjoin administrative proceedings before petitioner and to order production of the documents. Though noting that the FOIA nowhere authorizes injunctions of agency proceedings, the court concluded that Congress intended to confer broad equitable jurisdiction upon the district courts and that 'temporary stays of pending administrative procedures may be necessary on occasion to enforce (FOIA) policy.' The court also concluded that contractors had to exhaust their administrative remedies only under the FOIA but not under the Renegotiation Act before they were able to request injunctive relief against renegotiation proceedings and that contractors' remedies before petitioner and de novo proceedings in the Court of Claims as provided under the Renegotiation Act were inadequate to prevent irreparable harm. Petitioner contends that the Act's provision in 5 U.S.C. § 552(a)(3) for enjoining an agency from withholding its records and ordering the production of records improperly withheld from a complainant is the sole method of judicial enforcement. Held:
1. The FOIA does not limit the inherent powers of an equity court to grant relief, as is manifest from the broad statutory language that Congress used, with its emphasis on disclosure, its carefully delineated exemptions, and the fact that § 552(a) vests equitable jurisdiction in the district courts. Pp. 16—20.
2. In a renegotiation case a contractor must pursue its administrative remedy under the Renegotiation Act and cannot through resort to preliminary litigation over an FOIA claim obtain judicial interference with the procedures set forth in the Renegotiation Act. Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 67 S.Ct. 1493, 91 L.Ed. 1796; Lichter v. United States, 334 U.S. 742, 68 S.Ct. 1294, 92 L.Ed. 1694; Macauley v. Waterman S.S. Corp., 327 U.S. 540, 66 S.Ct. 712, 90 L.Ed. 839. Pp. 20—25.
(a) It would contravene the Act's legislative purpose if judicial review by way of injunctive relief under FOIA were allowed to interrupt the process of bargaining that inheres in the statutory renegotiation scheme and would delay the Government's recovery of excessive profits. Pp. 20—25.
(b) The contractor through a de novo proceeding in the Court of Claims, where discovery procedures are available, is not limited in exercising its normal litigation rights. Pp. 23—24.
151 U.S.App.D.C. 174, 466 F.2d 345, reversed and remanded.
Harriet S. Shapiro, for petitioner.
Robert L. Ackerly and Burton A. Schwalb, Washington, D.C., for respondents.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
Three cases, consolidated for hearing in the court below, raise the issue of the effect of the Freedom of Information Act (FOIA), 5 U.S.C. § 552, upon proceedings pending under the Renegotiation Act of 1951, c. 15, 65 Stat. 7, as amended, 50 U.S.C. App. § 1211 et seq. In particular, they concern the jurisdiction of a federal district court to enjoin the renegotiation process until an FOIA claim is resolved.
2
* The three respondents, Bannercraft Clothing Company, Inc., Astro Communication Laboratory, a division of Aiken Industries, Inc., and David B. Lilly Co., Inc., successor to Delaware Fastener Corporation, all possessed national defense contracts with a 'Department' of the United States, as defined in § 103(a) of the Renegotiation Act, 50 U.S.C. App. § 1213(a). These agreements, therefore, under § 102 of that Act, 50 U.S.C. App. § 1212, were subject to renegotiation.
3
A. Bannercraft. In 1966 and 1967, this respondent manufactured uniforms at a plant in Philadelphia. its fiscal year was the calendar year. Because most of its production was subject to renegotiation, the company, for each of the two years, timely filed with the Renegotiation Board the financial statement required under § 105(e)(1) of the Act, 50 U.S.C. App. § 1215(e)(1). Representatives of the Eastern Regional Renegotiation Board then reviewed Bannercraft's operations and conferred with its president. On February 20, 1970, the Regional Board, by letter, advised the contractor that it was recommending that Bannercraft in 1967 had realized excessive profits in the amount of $1,400,000, subject to the usual adjustment for state taxes measured by income and for any tax credit to which the contractor was entitled under § 1481 of the Internal Revenue Code of 1954, 26 U.S.C. § 1481.1
4
Bannercraft promptly requested that it be furnished, pursuant to 32 CFR § 1477.3 (1970),2 with a 'written summary of the facts and reasons' upon which the determination was based. It asserted, however, that 'it is not possible to state (as the Regulation's proviso required) whether all relevant evidence has been submitted since we have never had in writting the basis upon which you made this determination.' The Regional Board replied that because 'the statement required by the regulation' was not submitted, 'your request for a summary is defective.'
5
Bannercraft's response was that it had 'submitted all of the evidence which it believes to be relevant to the renegotiation proceedings,' but that this was 'without prejudice to an opportunity to offer evidence on the issues disclosed by the (Regional Board's) Summary of Facts and Reasons' and that the required statement was 'somewhat meaningless when we do not have a written statement of the issue upon which you have made your finding.'
6
On March 16, Bannercraft, pursuant to the FOIA, made a written request of the Renegotiation Board that six categories of documents be produced.3 No response to this request was forthcoming.
7
In late April, the Board, by letters, notified Bannercraft of its determinations that the contractor had realized excessive profits in the amount of $75,000 for 1966 (the same figure determined by the Regional Board) and $1,450,000 for 1967 (an increase of $50,000 over the Regional Board's determination).
8
Bannercraft then went to court. On May 1, it filed a complaint against the Board in the United States District Court for the District of Columbia, praying that the Board be enjoined from withholding the documents requested and from conducting any further renegotiation proceedings with Bannercraft for 1966 and 1967 until the documents were produced. The Board opposed the application for temporary relief and moved to dismiss. Judge Smith issued a temporary restraining order and, thereafter, a preliminary injunction, each without opinion, and stayed further Board proceedings.
9
In May, the Board issued a Statement of Facts and Reasons for Bannercraft's years 1966 and 1967. Bannercraft then made a further request for documents related to the factual basis for the Board's conclusions reflected in the Statement. In July, the Board responded. It produced some documents and, with respect to others, claimed exemption under 5 U.S.C. § 552(b)4 or asserted that the information sought was not covered by the Act.5
10
On August 4, the Board moved to dissolve the preliminary injunction. It took the position that its response to Bannercraft's requests fulfilled its obligations under the FOIA. The District Court denied the motion. The Board then appealed.
11
B. Astro. This respondent's factual case is essentially the same as Bannercraft's. The year at issue is the fiscal year ended September 30, 1967. Astro, pursuant to the FOIA, requested production by the Board of five categories of material.6 At a conference held on May 12, 1970, Astro was advised that the Board had made a tentative determination of excessive profits for the year in the amount of $225,000. In July, the Board denied Astro's FOIA request.
12
On August 12, Astro filed its complaint against the Board in the United States District Court for the District of Columbia. It prayed for relief similar to that sought by Bannercraft. Judge Pratt enjoined the Board from continuing renegotiation proceedings with Astro. The court also ordered the Board to allow Astro, within 30 days, to inspect and obtain copies of all documents requested by Astro that the Board had no objection to turning over, and to submit to the court, in camera, all documents the Board objected to producing, with a statement of reasons for each objection. The Board appealed.
13
C. Lilly. This respondent's case is similar to the other two. In June 1970, Lilly and its predecessor in interest, Delaware Fastener Corporation, were advised by their renegotiator that he had made determinations of excessive profits for 1967 for Lilly in the amount of $200,000 and for Fastener in the amount of $500,000.7 On June 29, the two corporations asked the Board to furnish certain categories of information.8
14
No response was immediately forthcoming from the Board. On July 9, Lilly filed its complaint against the Board in the United States District Court for the District of Columbia, praying for an order compelling the Board to produce the documents demanded and restraining the Board from acting and, in particular, from requiring the contractors to elect a procedure until the documents had been produced and the contractors had been given a reasonable time to study them. Thereafter, the Board denied the request for information.
15
On July 31, Judge Jones issued an order temporarily restraining the Board from continuing renegotiation with Lilly and Delaware. Subsequently, the Board moved to dismiss the complaint or, in the alternative, for summary judgment. On September 1, a preliminary injunction was issued. The Board appealed.
16
The three appeals were consolidated and heard together in the United States Court of Appeals for the District of Columbia Circuit. The Court of Appeals, one judge dissenting, affirmed all three decisions. 151 U.S.App.D.C. 174, 466 F.2d 345 (1972). It held that the District Court possessed jurisdiction under the FOIA to enjoin administrative proceedings before the Board and to order the production of appropriate documents. It concluded that, 'although it is undeniably true that Congress was principally interested in opening administrative processes to the scrutiny of the press and general public' when it enacted the FOIA, 'Congress was also troubled by the plight of those forced to litigate with agencies on the basis of secret laws or incomplete information.' Id., at 181, 466 F.2d, at 352. The court then described this latter congressional concern as a 'subsidiary statutory purpose,' citing excerpts from S.Rep.No.813, 89th Cong., 1st Sess., 7 (1965), and from H.R.Rep.No.1497, 89th Cong., 2d Sess., 8 (1966), U.S.Code Cong. & Admin.News 1966, p. 2418, and also citing 5 U.S.C. § 552(a)(2). See infra, at 12 n. 9. It reasoned that, despite 'the fact that the Act nowhere in terms authorizes . . . injunctions' against agency proceedings, in enacting the statute Congress intended to confer broad equitable. jurisdiction upon the district courts, and that 'temporary stays of pending administrative procedures may be necessary on occasion to enforce the policy' of the FOIA. 151 U.S.App.D.C., at 181—183, 466 F.2d, at 352—354.
17
The court then turned to the exhaustion-of-administrative-remedies question. It observed that there is no general rule that it is always improper for a court to interfere with pending administrative proceedings citing McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969). It concluded thta 'when the purposes of the doctrine are individually measured against the facts of these cases, it is plain that no legitimate judicial policy would be served by depriving these appellees of the relief they seek.' 151 U.S.App.D.C., at 184, 466 F.2d, at 355. In effect, the court reasoned that contractors need exhaust only their administrative remedies under the FOIA, and not their administrative remedies under the Renegotiation Act, as a condition precedent to requesting injunctive relief against renegotiation proceedings. The court found the contractors' remedies before the Board and de novo proceedings in the Court of Claims inadequate to prevent irreparable harm.
18
The dissenting judge began with the accepted proposition that federal courts have only limited jurisdiction and stated that the majority's observation, to the effect that the 'existence of present need for judicial intervention does have a bearing on both jurisdiction and exhaustion,' is 'an error bordering on constitutional dimensions,' for the appellees' need 'is wholly irrelevant to determination of the jurisdiction of the District Courts in these cases.' Id., at 191, 466 F.2d, at 362.
19
The dissent then turned to the principle that where a statute creates a right and provides a special remedy, that remedy is exclusive. Thus, in the FOIA, Congress gave the general public an express right of access to all Federal Government information not within the exempted categories. This right was enforceable by 'the specific, narrow, remedies of an injunction against withholding agency records and an affirmative order to produce such records improperly withheld.' Ibid. The dissent concluded that no jurisdiction to grant any other remedy was conferred by Congress and that the District Court, therefore, was without jurisdiction to enjoin the proceedings before the Renegotiation Board. Nothing in the congressional reports cited by the majority justified its contrary conclusion. The dissent further concluded that there was no suggestion that Congress had any concern with litigants before the administrative agencies, and that what they were concerned with was to make information available 'to any member of the public without requiring any showing of need therefor.' Id., at 192, 466 F.2d, at 363.
20
The dissent also was at odds with the majority's disposition of the exhaustion issue. It asserted that the majority seriously misconstrued the intended functioning of the Renegotiation Board's procedures, namely, that controlled access to information concerning the Government's position plays a significant role in the administrative process; that interruption of the administrative proceedings totally destroys the balance of negotiating strength; and that the attempt to enjoin the ongoing negotiations was really not a request for relief under the FOIA but was a challenge to the Board's procedures themselves. Id., at 194—195, 466 F.2d, at 365—366.
21
We granted certiorari, 410 U.S. 907, 93 S.Ct. 967, 35 L.Ed.2d 269 (1973), because of the importance of the issue of the impact of the FOIA upon long-established procedures of the Renegotiation Board.
II
22
Before considering the issue of the District Court's jurisdiction to enjoin a proceeding pending in the Renegotiation Board, it is helpful to review the provisions of the FOIA and of the Renegotiation Act of 1951:
23
A. The FOIA. This statute, 5 U.S.C. § 552, was enacted in 1966, 80 Stat. 383, as a revision of § 3 of the Administrative Procedure Act, 5 U.S.C. § 1002 (1964 ed.). S.Rep.No.813, 89th Cong., 1st Sess., 3—4 (1965); H.R.Rep.No.1497, 89th Cong.,2d Sess., 1—6 (1966). It was amended by Pub.L. 90—23, adopted June 5, 1967, 81 Stat. 54.
24
Section 552(a) states, 'Each agency shall make available to the public' certain information of enumerated categories. This covers virtually all information not specifically exempted by § 552(b). Section 552(a)(2)9 provides the sanction that a 'final order, opinion, statement of policy, interpretation, or staff manual or instruction' may not be relied upon as precedent by the agency against a party unless 'it has been indexed and either made available or pblished,' or unless a party has 'actual and timely notice of the terms thereof.' Section 552(a)(3) specifically vests the District Court with jurisdiction 'to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld.' It places the burden on the agency to sustain its action; it empowers the District Court to punish the responsible employee for contempt in the event ofnoncompliance; and it provides that the FOIA suit generally is to take precedence on the court's docket and is to be expedited on the calendar.10
25
B. The Renegotiation Act of 1951.11 This statute, 50 U.S.C. App. §§ 1211—1233, enacted shortly after the close of World War II and at the height of the Korean conflict, recites that Congress had made available 'extensive funds' for the execution of the national defense program and that 'sound execution' of the program requires 'the elimination of excessive profits from contracts made with the United States, and from related subcontracts.' § 101, 50 U.S.C. App. § 1211. The Renegotiation Board is established as an independent agency in the Executive Branch to accomplish this objective. § 107, 50 U.S.C. App. § 1217(a). The Board's functions are excluded from the operation of the Administrative Procedure Act (5 U.S.C. § 551 et seq., and § 701 et seq.) except the public information section thereof (5 U.S.C. § 552), § 111, 50 U.S.C. App. § 1221.
26
The Board operates primarily by informal negotiation with the contractor and not by formal hearing. It is directed to 'endeavor to make an agreement with the contractor . . . with respect to he elimination of excessive profits.' § 105(a), 50 U.S.C. App. § 1215(a). The contractor subject to the Act must file, for its fiscal year, a detailed financial statement. § 105(e)(1), 50 U.S.C.App. § 1215(e)(1). On the basis of this statement an initial determination of excessive profits is made. From the date of filing of the statement, the Board has one year to commence proceedings12 and, with stated exceptions, the renegotiation is to be completed within two years following its commencement or 'all liabilities of the contractor . . . for excessive profits with respect to which such proceeding was commenced shall thereupon be discharged.'13 § 105(c), 50 U.S.C. App. § 1215(c).
27
If the Board and the contractor do not agree, the Board by order determines the excessive profits. § 105(a), 50 U.S.C. App. § 1215(a). At the request of the contractor, the Board shall furnish it 'with a statement of such determination, of the facts used as a basis therefor, and of its reasons for such determination.' Ibid. The contractor then may initiate a de novo proceeding in the Court of Claims,14 which has exclusive jurisdiction to determine the contractor's excessive profits. § 108, 50 U.S.C. App. § 1218 (1970 ed., Supp. II). The action 'shall not be treated as a proceeding to review the determination of the Board,' ibid., and the Board's statement 'shall not be used in the Court of Claims as proof of the facts or conclusions stated therein,' § 105(a), 50 U.S.C. App. § 1215(a) (1970 ed., Supp. II).
28
The renegotiation process itself is initiated by notice to the contractor and by assignment of the contractor's report to the appropriate Regional Board. 32 CFR § 1472.2 (1972).15 Personnel of the Regional Board then prepare a 'Report of Renegotiation' which includes a 'recommendation with respect to the amount, if any, of excessive profits for the fiscal year under review.' 32 CFR § 1472.3(d). This is only the first of several steps within the agency structure. Thereafter the statement is reviewed, succesively, by a panel of the Regional Board, by the Regional Board itself, and finally by the Rengotiation Board. At each level there is consultation with the contractor, the preparation of a report and analysis, and submission to the next higher level of a recommendation as to excessive profits. 32 CFR ss1472.3(d) and (f) (i), and §§ 1472.4(b)—(d). At each stage, the contractor is entitled to a statement of the basis for the recommendation. Each level is free to make new findings and no level is bound by the determination of the level below; the recommended settlement may decrease or increase at each level. Ibid.
III
29
It is clear, we think, that the Renegotiation Board, as an entity, is not exempt from applicable provisions of the FOIA. The Board, of course, is an 'independent establishment' in the Executive Branch. § 107(a) of the Renegotiation Act, 50 U.S.C. App. § 1217(a). But 'agency' is broadly defined to mean 'each authority of the Government of the United States,' except the Congress, the courts, territorial governments, the government of the District of Columbia, and, with respect to 5 U.S.C. § 552, certain other specifically described entities and functions. 5 U.S.C. § 551(1). The Renegotiation Board is not among those excepted. Further, the House Committee's discussion of the requirement of § 552(a)(2), that an agency's concurring and dissenting opinions as well as final opinions be made available, discloses that a reason for this provision was that 'a recent survey indicated that five agencies—including . . . the Renegotiation Board—do not make public the minority views of their members.' H.R.Rep.No.1497, supra, at 8, U.S.Code Cong. & Admin.News 1966, p. 2425. Thus, despite its unique operational methods, the Board falls within the definition of 'agency' in 551(1).16
30
So to conclude, however, does not provide automatically the answer to the question whether the FOIA authorizes a district court to enjoin Renegotiation Board proceedings until the court determines that the contractor is or is not entitled to information it claims under the FOIA.
31
As to this question, the respondent contractors assert that, although the FOIA does not grant this injunctive power in express terms, the power is to be implied from the court's inherent capacity to provide appropriate equitable relief. The Board, on the other hand, emphasizes that Congress in the Act expressly authorized the court to compel the production of agency records improperly withheld, placed the burden on the agency to sustain its action, and directed precedence on the docket for suits under the Act 'over all other causes' and expedition of those suits 'in every way.' 5 U.S.C. § 552(a)(3). The Board then contends that these provisions constitute the exclusive method for enforcing the disclosure requirements of the Act and that any implication of other injunctive power, at the behest of a litigant before the agency, would be inconsistent with the statutory language.
32
Clearly, as the Court of Appeals held, 151 U.S.App.D.C., at 181, 466 F.2d, at 352, the Congress 'was principally interested in opening administrative processes to the scrutiny of the press and general public when it passed the Information Act.' The Second Circuit has described the Act's 'ultimate purpose' as one 'to enable the public to have sufficient informtion in order to be able, through the electroal process, to make intelligent, informed choices with respect to the nature, scope, and procedure of fedeal governmental activities' (footnote omitted). Frankel v. SEC, 460 F.2d 813, 816, cert. denied, 409 U.S. 889, 93 S.Ct. 125, 34 L.Ed.2d 146 (1972). The Senate Report, too, expressed concern for 'an informed electorate.' S.Rep.No.813, 89th Cong., 1st Sess., 3 (1965).17
33
The FOIA, 5 U.S.C. § 552(a) (3), explicitly confers jurisdiction18 to grant injunctive relief of a described type, namely, 'to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.' In addition, it provides a specific remedy for noncompliance.
34
This primary purpose of the FOIA, and this express grant of jurisdiction to enjoin in a specific way, coupled with a limited sanction, might suggest that the Act's provision for compelled production was intended to be the exclusive enforcement method. It has been held that 'where a statute creates a right and provides a special remedy, that remedy is exclusive.' United States v. Babcock, 250 U.S. 328, 331, 39 S.Ct. 464, 465, 63 L.Ed. 1011 (1919). And 'Congress for reasons of its own decided upon the method for the protection of the 'right' which it created. It selected the precise machinery and fashioned the tool which it deemed suited to that end.' Switchmen's Union v. National Mediation Board, 320 U.S. 297, 301, 64 S.Ct. 95, 97, 88 L.Ed. 61 (1943). See National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 415 U.S. 453, 458, 94 S.Ct. 690, 693, 38 L.Ed.2d (1974). One therefore may argue, as the Board has argued here, that this is not a situation where 'Congress has utilized . . . the broad equitable jurisdiction that inheres in courts and where the proposed exercise of that jurisdiction is consistent with the statutory language and policy, the legislative background and the public interest.' Porter v. Warner Holding Co., 328 U.S. 395, 403, 66 S.Ct. 1086, 1091, 90 L.Ed. 1332 (1946).
35
There is significant authority however, that points to the opposite conclusion. Porter itself, although recognizing the kind of situation to which Babcock is applicable, 328 U.S., at 403, 66 S.Ct., at 1091, upheld broad equitable power in the District Court under a statute authorizing the court to grant injunctive and restraining relief 'or other order,' and did so, not only because of the presence of the 'other order' language, but because of the 'traditional equity powers of a court.' Id., at 400, 66 S.Ct., at 1090. Emphasis on broad equity power, even in the face of a silent statute, also appears in Mitchell v. Robert Demario Jewelry, Inc., 361 U.S. 288, 290—291, 80 S.Ct. 332, 334—335, 4 L.Ed.2d 323 (1960); Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229 (1942); Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 671 n. 22, 83 S.Ct. 984, 991, 10 L.Ed.2d 52 (1963); see L. Jaffe, Judicial Control of Administrative Action, 659 (1965), and is sometimes related to the All Writs Act, 28 U.S.C. § 1651(a). FTC v. Dean Foods Co., 384 U.S. 597, 603—604, 86 S.Ct. 1738, 1742—1743, 16 L.Ed.2d 802 (1966).
36
The broad language of the FOIA, with its obvious emphasis on disclosure and with its exemptions carefully delineated as exceptions; the truism that Congress knows how to deprive a court of broad equitable power when it chooses so to do, Scripps-Howard, supra, 316 U.S., at 17, 62 S.Ct., at 883; and the fact that the Act, to a definite degree, makes the District Court the enforcement arm of the sttute, 5 U.S.C. § 552(a)(3), persuade us that the babcock and Switchmen's Union principle of a statutorily prescribed special and exclusive remedy is not applicable to FOIA cases. With the express vesting of equitable jurisdiction in the district court by § 552(a), there is little to suggest, despite the Act's primary purpose, that Congress sought to limit the inherent powers of an equity court.
IV
37
We find it unnecessary, however, to decide in these cases, whether, or under what circumstances, it would be proper for the District Court to exercise jurisdiction to enjoin agency action pending the resolution of an asserted FOIA claim. We hold only that in a renegotiation case the contractor is obliged to pursue its administrative remedy and, when it fails to do so, may not attain its ends through the route of judicial interference. The nature of the renegotiation process mandates this result, and, were it otherwise, the effect would be that renegotiation, and its aims, would be supplanted and defeated by an FOIA suit.19
38
Before the adoption of the FOIA this Court consistently held that the design of the Renegotiation Act was to have renegotiation proceed expeditiously without interruption for judicial review, and that the Board's proceedings were not to be enjoined prior to the exhaustion of the administrative process. This was the result where the proceedings were challenged on constitutional grounds, Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 67 S.Ct. 1493, 91 L.Ed. 1796 (1947); Lichter v. united States, 334 U.S. 742, 789—793, 68 S.Ct. 1294, 1318—1320, 92 L.Ed. 1694 (1948), on statutory grounds, Macauley v. Waterman S.S. Crop., 327 U.S. 540, 66 S.Ct. 712, 90 L.Ed. 839 (1946), and on procedural grounds, Lichter, 334 U.S., at 791, 68 S.Ct., at 1319. The Court's emphasis was on the absence of any 'lawful function' on the part of the courts 'to anticipate the administrative decison with their own,' Aircraft, 331 U.S., at 767, 67 S.Ct., at 1501; on the availability of a due process hearing in the post-administrative de novo proceeding in the Tax Court, Macauley, 327 U.S., at 543, 66 S.Ct. at 714, where constitutional as well as nonconstitutional issues could be resolved, Aircraft, 331 U.S., at 769 n. 30, 67 S.Ct., at 1501, citing 89 Cong.Rec. 9930 (1943),20 and at 771, 67 S.Ct., at 1502; and on the Act's provisions for expeditious settlement in informal negotiation free 'from the tedious burden of litigation.' Id., at 770, 67 S.Ct., at 1502.
39
In Aircraft the Court rejected arguments substantially the same as those advanced by the respondents here, id., at 758 n. 12, 67 S.Ct., at 1496 (inability to participate effectively because of lack of information upon which the Board had relied, see No. 95, O.T.1946, Tr. of R., Vol. 1, p. 141), and refused to permit renegotiation to be enjoined. 'To countenance short-circuiting of the Tax Court proceedings here would be, under all the circumstances but more especially in view of Congress' policy and command with respect to those proceedings, a long overreaching of equity's strong arm.' 331 U.S., at 781, 67 S.Ct., at 1507.
40
Reflection upon the nature of the Renegotiation Board's process fortifies these conclusions. The character and the entire atmosphere of the process is negotiation—that is, renegotiation—of an existing contract. And negotiation is a bargaining process, with give and take, and with stress upon and use of the strengths of one's own position and the weaknesses of the position of the other party. It is in a process such as this where the phrase 'leading from strength' has been so effectively transferred in practical application from the card table to the world of commerce. It is part of the warp and woof of production. It is pure bargaining permitted by the statute with respect to contracts already made the same kind of bargaining that produces the union- employer agreement or the transfer of substantial property from the willing seller to the interested buyer.
41
We see nothing in the adoption of the FOIA in 1966 that impinges upon the settled law of the Aircraft-Lichter-Macauley cases or that warrants an exception to the principle they espouse. Nothing new by way of due process emerged with the FOIA. Nothing therein indicates that Congress wished to change the Renegotiation Act's purposeful design of negotiation without interruption for judicial review. FOIA's stress was on disclosure, to be sure, but it was on disclosure for the public, Environmental Production Agency v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973), and not for the negotiating self-interested contractor. Id., at 86, 93 S.Ct., at 835; see K. Davis, Administrative Law Treatise § 3A.4, p. 120, § 3A.29, p. 171 (Supp.1970). And when Congress in 1971 reviewed the Renegotiation Act and substituted the Court of Claims for the Tax Court, no other significant change in the existing process was effected. See S.Rep.No.92—245 (1971), accompanying H.R. 8311, U.S.Code Cong. & Admin.News 1971, p. 1130, which became the amending statute, Pub.L. 92—41, 85 Stat. 97.
42
It is no answer to say, as Bannercraft and Astro urge, that Aircraft, Lichter, and Macauley relate only to issues on the merits over which Congress had vested jurisdiction in the first instance in the Board and then in the Tax Court. We read those decisions otherwise.
43
Seeking injunctive relief during the pendency of renegotiation encourages delay through resort to preliminary litigation over an FOIA claim. The delay is not imaginary or without ultimate consequence. The present cases provide an example of this, for each has been pending now for more than three years. The Government is foreclosed from taking action to recover excessive profits until the Board's final order is entered; even then, interest does not begin to run until 30 days after the entry of that order. 50 U.S.C.App. §§ 1215(b)(1) and (2). The contractor, by delay, has little to lose and much to gain.
44
There is no limitation or denial of the contractor's normal litigation rights when the renegotiation process is at end. The contractor may institute its de novo proceeding in the Court of Claims, unfettered by any prejudice from the agency proceeding and free from any claim that the Board's determination is supported by substantial evidence. There the usual rights of discovery are available.21 And there the parties are not bound by a prior determination made at any level of the Renegotiation Board structure. 50 U.S.C. App. § 1218. That proceeding is the judicial remedy at law provided by the Renegotiation Act and is adequate protection against injury. Note, 41 Geo.Wash.L.Rev. 1072, 1084 (1973). We note that a contractor does not become obligated to remit excessive profits until termination of the Court of Claims suit, if it elects that course. The jury suffered, absent an injunction is no more than the risk of being unsuccessful in the de novo bargaining process and the incurrence of the expense incident to renegotiation.22 Mere litigation expense, even substantial and unrecoupable cost, does not constitute irreparable injury. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 51—52, 58 S.Ct. 459, 464, 82 L.Ed. 638 (1938); L. Jaffe, Judicial Control of Administrative Action 429 (1965). Without a clear showing of irreparable injury, see Virginia Petroleum Jobbers Assn. v. FPC, 104 U.S.App.D.C. 106, 111, 259 F.2d 921, 926 (1958), failure to exhaust administrative remedies serves as a bar to judicial intervention in the agency process. Myers, supra; Sears Roebuck & Co. v. NLRB, 153 U.S.App.D.C. 380, 382, 473 F.2d 91, 93 (1972).
45
Interference with the agency proceeding opens the way to the use of the FOIA as a tool of discovery, see Sears, Roebuck & Co. v. NLRB, 433 F.2d 210, 211 (CA6 1970), over and beyond that provided by the regulations issued by the Renegotiation Board for its proceedings. See 32 CFR §§ 1480.1—1480.12 (1972).23 Discovery for litigation purposes is not an expressly indicated purpose of the Act. Protection for the contractor in the renegotiation process is afforded through the injunctive power specifically bestowed by 5 U.S.C. § 552(a)(3).
46
The Renegotiation Act and its predecessors obviously emerged from congressional awareness that, with the vastness of defense expenditure overcharging and misappropriation of public funds by unscrupulous contractors and those fortuitously placed to perform needed work was almost inevitable. The target of the legislation was excessive profit, not the fair and reasonable one. The latter was anticipated and accepted. The line between a reasonable profit and excessive profit is not always easily ascertained or brightly lit. But the ascertainment of excessive profits was a duty vested by the Congress in the Renegotiation Board in the first instance. The Board thus is the fulcrum of a process that enables the Government initially to consult a contractor, to make a contract with it, and then to have the contract subject to modification for excessive profits, whenever they materialize, without violation of the Due Process Clause of the Fifth Amendment. The disgorging of excessive profits is not by way of a tax, but the process is not unlike the imposition of a tax equivalent to the excessive profits. Congress' initial placing of the contractor-initiated finale proceeding in the Tax Court is indicative of the relationship.
47
Of course, there is uncertainty in the renegotiation process. And, of course, that uncertainty is lessened or eliminated if the contractor, like the poker player, is able to ascertain all the cards in the Board's hand. There is risk, also, when the contractor accepts the determination of excessive profits made at any level of the renegotiation process. These risks, however, are the same risks that are inherent in the negotiation and voluntary settlement of any dispute. The one who pays possibly might pay less if he resorts to the factfinder instead of making the settlement. But he might pay more. That is the calculated risk he takes. It is the calculated risk provided for by Congress in the administrative process it prescribed in the Renegotiation Act. It is not a risk ungenerously laid upon the contractor, for it is counterbalanced by the profound interest of the public in the recapture of excessive profits that may flow to the contractor under its government contracts.
48
We stress, in conclusion, that the merits are not before us. They are yet to be decided by the District Court. Whether any demand made by these contractors is so vague as not to constitute a 'request for identifiable records,' 5 U.S.C. § 552(a)(3), or is for material exempt from disclosure under 5 U.S.C. § 552(b), are questions that remain open for decision on remand.
49
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
50
It is so ordered.
51
Mr. Justice DOUGLAS, with whom Mr. Justice STEWART, Mr. Justice MARSHALL, and Mr. Justice POWELL concur, dissenting.
52
The Court reverses the Court of Appeals, saying that respondent-contractors had not exhausted their administrative remedies. At issue is whether data in possession of the Renegotiation Board and relevant to the controversy between respondents and that Board should be disclosed to respondents. That raises a question under the Freedom of Information Act. It is, I submit, clear that respondents had exhausted every known way to obtain those data through administrative channels. Nothing remained to be done at that level. The District Court is the enforcement arm of the FOIA. Today's decision, however, says that court cannot act. Hence, respondents are without remedy. The end result is to make the FOIA a dead letter in this area. Hence my dissent.
53
The nature of the so-called administrative law aspects of the problems under the Renegotiation Act is unique. The aim, of course, is the elimination of excessive profits of contractors and subcontractors in the national defense program 50 U.S.C. App. § 1211. Detailed financial information must be filed with the Renegotiation Board, id., § 1215(e)(1). If on the basis of those data the Board decides to proceed, it refers the case to a Regional Renegotiation Board which determines tentatively the amount of excessive profits, 32 CFR § 1472.3(e).1 A conference with the contractor is then arranged. It may agree with the Regional Board's determination or contest it. If the latter, a second conference is held with a panel of the Regional Board which hears the arguments of the contractor and submits its recommendations to the Regional Board which may be for a greater or lesser amount than the original tentative determination, id., §§ 1472.3(f), (h), (i). Thereupon the Regional Board makes its recommendation, id., § 1472.3(i). If the contractor is still dissatisfied, it can appeal to the Renegotiation Board itself. In that event the case is assigned to a division of the Board which is not bound by or limited to any finding or determination of the Regional Board, id., § 1472.4(b). The division studies the case de novo and makes a recommendation to the Board which then makes a determination greater than, equal to, or less than any of the prior determinations, id., § 1472.4(d). Even then the renegotiation process continues, the Board seeking to obtain the contractor's voluntary agreement. Only if that effort fails is a final order determining the amount of excessive profits made, ibid.
54
That is the end of the administrative road; but the contractor still has an appeal to the Court of Claims which may redetermine de novo what the excessive profits are, 50 U.S.C. App. § 1218 (1970 ed., Supp. II); and from the Court of Claims certiorari may be sought here, id., § 1218a (1970 ed., Supp. II).
55
The history of the Act makes plain what can be inferred from the nature of the administrative process just described—that Congress chose negotiation, not confrontation or traditional adjudication, as the desirable route. The Act requires the Board to 'endeavor to make an agreement with the contractor or subcontractor with respect to the elimination of excessive profits,' id., § 1215(a). The pressure is on the contractor to settle, as at each successive step in the procedure its liability may be increased. The standards are rather vague and imprecise, §§ 1213(e)(1)—(6),2 the regulations stating that '(r) easonable profits will be determined in every case by over-all evaluation of the particular factors present and not by the application of any fixed formula with respect to rate of profit, or otherwise,' 32 CFR § 1460.8. The vagueness of the standards and the risk of an increase in liability at every level of the administrative process have a powerful coercive influence. Approximately 88% of the Board's cases are ended by voluntary agreement, coercive orders being entered in only 12% of the cases. See Fifteenth Annual Report, Renegotiation Board 13 (1970).
56
In the three cases involved in this litigation the District Court entered its stay orders before the contractors had run the gauntlet of the administrative process in the limited sense that each of them had another opportunity to negotiate at lower settlement with the Board, not counting a de novo hearing before the Court of Claims.
57
The documents which the contractors want are in possession of the Board. These documents, it is said, will reveal the strength or weakness of the Board's case against the contractors and the facts or assumptions on which the Board relies in assessing liability. Without those documents, it is said, any meaningful negotiation, envisioned by the Act, is difficult or impossible. Future de novo review is not meaningful, it is said, since the contractors are completely in the dark as to the practical considerations which could end the dispute, if the documents were made available. Disclosure of the documents aids negotiation, which is the aim of the Act, and disclosure is necessary and appropriate to carry out the purposes of the Act.
58
The Court properly holds that the Renegotiation Board is an 'agency' within the meaning of the Freedom of Information Act, 5 U.S.C. § 552(a). The Court also properly holds that § 552(a)(3), which grants the district court jurisdiction 'to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant,' makes that court the enforcement arm of the FOIA. But it denies relief here on the ground that these contractors are obliged to pursue their 'administrative remedy' before going to court for an enforcement order.
59
The Court relies on Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 67 S.Ct. 1493, 91 L.Ed. 1796, and other decisions of that vintage which established a judicial 'hands off' policy in renegotiation cases until the case had reached the Tax Court (now the Court of Claims) stage. But those cases antedated the FOIA. That Act, contrary to what the Court says, had as one of its purposes 'discovery for litigation purposes.' Congress was concerned not only with the press and the general public when it lifted the veil of secrecy surrounding federal agencies but also with litigants. According to the Senate Report, the new FOIA was designed in part to 'prevent a citizen from losing a controversy with an agency because of some obscure and hidden order or opinion which the agency knows about but which has been unavailable to the citizens simply because he had no way in which to discover it,' S.Rep.No.813, 89th Cong., 1st Sess., 7.
60
The FOIA deals with problems of discovery, to use a lawyer's term, and it does not leave the formulation of precise rules of discovery exclusively to the agencies themselves but, as noted, makes the district court the enforcement arm of the Act.
61
Exhaustion of administrative remedies has skeins of various colors, McKart v. United States, 395 U.S. 185, 193—194, 89 S.Ct. 1657, 1662—1663, 23 L.Ed.2d 194. Ordinarily courts do not interfere until the agency has completed its action, id., at 194, 89 S.Ct., at 1663, 'or else has clearly exceeded its jurisdiction,' ibid. The present case does not entail supplanting administrative expertise on the merits. The issues tendered concern only administrative procedure.
62
The court errs in saying that the contractors did not exhaust their administrative remedies. They strenuously sought the information mandated by the FOIA and exhausted all administrative procedure for obtaining it. That right to full disclosure, if not granted now, is forever lost. For as these contractors seek relief at a higher tier of the administrative process, the reviewing body will not consider whether the contractors could have negotiated settlements of a lesser amount if they had had access to the documents whose discovery is involved here. As Judge J. Skelly Wright said below:
63
'(I)t should be apparent here that if the contractors are to be granted relief at all they must have it now before the administrative momentum carries their cases beyond the point where the harm can be undone. If we take Congress' declaration of purpose seriously, then the parties are supposed to negotiate over excess profits at the lower administrative levels. The seemingly endless de novo reviews were intended to make the negotiating process work, not to provide a substitute for negotiation. If the negotiating process fails to occur, the opportunity is lost forever. To say that compulsory awards imposed by the Board or the Court of Claims at the end of the process provide an adequate remedy is to ignore the difference between an agreement freely arrived at, as preferred by Congress, and a judgment imposed by a court of law.' 151 U.S.App.D.C. 174, 186, 466 F.2d 345, 357.
64
The proceeding in the Court of Claims proscribes review of the Board. Title 50 U.S.C. App. § 1218 (1970 ed., Supp. II) states:
65
'A proceeding before the Court of Claims to finally determine the amount, if any, of excessive profits shall not be treated as a proceeding to review the determination of the Board, but shall be treated as a proceeding de novo.' (Emphasis added.)
66
There is no power, as I see it, for the Court of Claims to remand the case to the Board to cure any irregularity in its procedures. If these contractors are to have the remedy of full disclosure, it is now or never.
67
A procedure that accelerates settlements furthers the policy of the Renegotiation Act. The Board judges the profits of the contractors involved in the present case with the profits of other contractors in determining whether their profits are excessive. The relative prices, costs, and profits of those other companies are germane to the ultimate issue to be resolved. One of these contractors has a low (front office' overhead, as the executive officer is the president who has only a secretary. The rest of the employees are engaged in production. The contractor who has a low 'front office' expense is penalized for efficiency, if its profits are reduced to the scale allowed contractors who have a high 'front office' expense. The Board in its Regulations under the FOIA makes 'available for public inspection and copying summaries of facts and reasons issued by the Board,' 32 CFR § 1480.5(a). But an agency making decisions has no right to make secret the basis of those decisions,3 if the FOIA is to have any real meaning in the activities of the Renegotiation Board. If a contractor does not know the reasons why the Board or any of its agencies cuts the profits of a contractor 95%, it has no meaningful criteria to determine whether it should settle with the Board or continue to pursue its remedies up the escalator of the hierarchy. It is as if a court could rule for the plaintiff or for the defendant without ever having to disclose its reasons.
68
The result of today's decision is to put the citizen in a game of 'blind man's buff' with the Renegotiation Board. Enforcement of the policy of full disclosure under the FOIA is no intrusion in the determination of the merits of the controversy before the Board. The expertise of the Board does not relate to the FOIA but only to the Renegotiation Act. The FOIA merely describes some of the procedure to be followed by the Board. Aircraft concerned the intrusion of the judiciary into the administrative process by a suit to declare the whole renegotiating procedure unconstitutional prior to any adjudication of the merits of the contractor's claim. Granting the relief asked in that case would have gutted the statutes. Granting the relief here would merely make the rules of discovery, established by Congress, applicable to the Renegotiation Board. Denial of the relief establishes a regime of secrecy when Congress has demanded disclosure and gives the Renegotiation Board a degree of administrative absolution4 at war with the philosophy of the FOIA.
69
The trend at the federal level has been the evolution of administrative agencies as principalities of power. The Administrative Procedure Act, 60 Stat. 237, was passed as an antidote to that development. It contained a provision in § 3, 5 U.S.C. § 1002 (1964 ed.), for disclosure of information by the agencies. But it was soon criticized because it was 'full of loopholes which allow agencies to deny legitimate information to the public. It has been shown innumerable times that information is often withheld only to cover up embarrassing mistakes or irregularities and justified by such phrases . . . as—'requiring secrecy in the public interest,' 'required for good cause to be held confidential,' and 'properly and directly concerned." S.Rep.No. 1219, 88th Cong., 2d Sess., 8. As the House Report stated in support of supplanting § 3 of the Administrative Procedure Act with the FOIA 'Government agencies whose mistakes cannot bear public scrutiny have found 'good cause' for secrecy.'5 H.R.Rep.No.1497, 89th Cong., 2d Sess., 6 U.S.Code Cong. & Admin.News 1966, p. 2423. As respects the role of the courts the House Report stated:
70
'The procedure are to be de novo so that the court can consider the propriety of the withholding instead of being restricted to judicial sanctioning of agency discretion. The Court will have authority whenever it considers such action equitable and appropriate to enjoin the agency from withholding its records and to order the production of agency records improperly withheld. The burden of proof is placed upon the agency which is the only party able to justify the withholding. A private citizen cannot be asked to prove that an agency has withheld information improperly because he will now know the reasons for the agency action.' Id., at 9, U.S.Code Cong. & Admin.News 1966, p. 2426.
71
The reluctance of the Court to require this administrative agency to live under the law calls to mind the admonition of Mr. Justice Stone speaking for the Court in United States v. Morgan, 307 U.S. 183, 191, 59 S.Ct. 795, 799, 83 L.Ed. 1211:
72
'Court and agency are the means adopted to attain the prescribed end, and so far as their duties are defined by the words of the statute, those words should be construed so as to attain that end through co-ordinated action. Neither body should repeat in this day the mistake made by the courts of law when equity was struggling for recognition as an ameliorating system of justice; neither can rightly be regarded by the other as an alien intruder, to be tolerated if must be, but never to be encouraged or aided by the other in the attainment of the common aim.'
73
I would affirm the judgment below.
1
Shortly prior thereto, the Regional Board advised the contractor that it had determined its excessive profits for 1966 to be $75,000.
2
'§ 1477.3 Furnishing of other statements.
'When a Regional Board has made . . . a final recommendation in a Class A case . . . and the contractor is unable to decide whether to enter into an agreement for the refund of excessive profits so determined or recommended, the Regional Board . . . will furnish the contractor a written summary of the facts and reasons upon which such final determination or recommendation is based in order to assist the contractor in determining whether or not it will enter into an agreement: Provided, That the contractor requests such a statement within a reasonable time after it has been advised of such final determination or recommendation, and states that it has submitted all the evidence which it believes to be relevant to the renegotiation proceedings.'
3
The request was based on the decision, only six days earlier, in Grumman Aircraft Engineering Corp. v. Renegotiation Board, 138 U.S.App.D.C. 147, 425 F.2d 578 (1970), that the Renegotiation Board was subject to the FOIA and that certain Board orders and opinions were accessible to the contractor after deletions made in the light of the Act's exemption provisions. See the same case on remand, D.C., 325 F.Supp. 1146, aff'd, 157 U.S.App.D.C. 121, 482 F.2d 710 (1973).
The documents Bannercraft requested were: (1) communications between the Board and other Government agencies with respect to Bannercraft's renegotiable contracts for 1966 and 1967; (2) investigatory or other reports prepared by Board employees 'containing facts which are relevant to the Board's determination as to Bannercraft's renegotiable contracts' for the two years; (3) final opinions, and the like, and summaries on which determinations were based for the years 1962 through 1968 for 11 named companies engaged in similar manufacture; (4) facts upon which the Board concluded that Bannercraft's pricing policy in 1966 was unreasonable; (5) identification of those manufacturers with which Bannercraft's production cost was compared, as stated in the summary for 1966, with cross-reference to comparable data as to each of the 11 named manufacturers; and (6) the 'procurement information,' described in the summary for 1966, that the Board contended indicated that there was a lack of effective price competition.
4
'§ 552.
'(b) This section does not apply to matters that are—
'(3) specifically exempted from disclosure by statute;
'(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;
'(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;
'(7) investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency . . ..'
5
The Board took the position (a) that the Board-agency communications, the investigatory and other reports, and the 'procurement information' (to the extent it consisted of written records), being the first, second, and sixth items specified in the request of March 16, were exempt under 5 U.S.C. §§ 552(b)(3), (4), (5), and (7); (b) that the facts relied upon by the Board in concluding that Bannercraft's pricing policy was unreasonable, that is, the fourth item in the request of March 16, and the identification of manufacturers, the fifth item, were not requests 'for records'; and (c) that copies of clearance notices, orders, and renegotiation agreements issued with respect to the 11 companies named in the third item of the March 16 request, and with respect to manufacturers with whom Bannercraft's production cost was compared, as called for by the fifth item, all with identifying details deleted, were supplied therewith. Beyond this, documents requested by Bannercraft were refused.
6
These were all documents that constituted the Astro renegotiation report for the year; all documents in the file that analyzed 'or in any way (bore) upon' Astro's treatment of selling expenses; all file documents that had to do with 'Information received,' as referred to in a stated communication from the Regional Board to Astro; all file documents that related to the reasons for the Board's order denying Astro's request to file an untimely application for commercial exemption; and all records that had to do with Astro's renegotiation for the year 'to the extent that such documents have been generated by and are in the custody of either' the Regional Board or the Board itself.
7
Delaware Fastener Corp. was merged into David B. Lilly Co., Inc., in 1970 after renegotiation proceedings as to each corporation had begun, but before Lilly's suit was instituted.
8
The corporations requested all communications between the Board and other governmental agencies concerning either corporation; all sections of the Report of Renegotiation prepared by the Regional Board; all analyses used in comparing either of the corporations 'with other contractors or subcontractors and reflecting the facts relating to such comparisons'; all written communications betwen the Board and firms holding renegotiable contracts or subcontracts in any way concerning either of the corporations and their performance; and all intra-agency memoranda and written communications consisting of recommendations or analyses prepared by the Board in connection with the renegotiation proceedings.
9
'§ 552. Public Information; agency rules, opinions, orders, records, and proceedings
'(a) Each agency shall make available to the public information as follows:
'(2) Each agency, in accordance with published rules, shall make available for public inspection and copying—
'(A) final opinions . . .
'(B) . . . statements of policy and interpretations . . . and
'(C) administrative staff manuals and instructions to staff that affect a member of the public;
'. . . A final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the public may be relied on, used, or cited as precedent by an agency against a party other than an agency only if—
'(i) it has been indexed and either made available or published as provided by this paragraph; or
'(ii) the party has actual and timely notice of the terms thereof.'
10
In pertinent part, § 552(a)(3) provides: 'On complaint, the district court . . . has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter denovo and the burden is on the agency to sustain its action. In the event of noncompliance with the order of the court, the district court may punish for contempt the responsible employee . . .. Except as to causes the court considers of greater imortance, proceedings before the district court, as authorized by this paragraph, take precedence on the docket over all other causes and shall be assigned for hearing and trial at the earliest practicable date and expedited in every was.'
11
Predecessor renegotiation statutes are cited and described in Lichter v. United States, 334 U.S. 742, 745 n. 1, 68 S.Ct. 1294, 1297, 92 L.Ed. 1694 (1948).
12
Section 105(c), 50 U.S.C. App. § 1215(c), provides that, in the absence of fraud, malfeasance, or willful misrepresentation, all liabilities of the contractor for excessive profits shall be discharged if the 'proceeding is not commenced prior to the expiration of one year following the date upon which such statement is so filed.'
13
The respondents in the present litigation have agreed to suspend their limitation periods pending resolution of the FOIA claims. See 151 U.S.App.D.C. 174, 190 n. 12, 466 F.2d 345, 361 n. 12 (1972).
14
Until July 1971 the proceeding was to be initiated in the Tax Court. 65 Stat. 21.
15
The CFR citations throughout this section of this opinion are to the 1972 version of Renegotiation Board procedures in effect at the time of the Court of Appeal's decision. The regulations were amended substantially in the fall of 1972. See 32 CFR pts. 1400—1599 (1973).
16
The Court of Appeals in the present litigation and other federal decisions have recognized the general applicability of the FOIA to the Renegotiation Board. See Fisher v. Renegotiation Board, 153 U.S.App.D.C. 398, 473 F.2d 109 (1972); Lykes Bros. S.S. Co. v. United States, 459 F.2d 1393, 1401, 198 Ct.Cl. 312, 327 (1972); Grumman Aircraft Engineering Corp. v. Renegotiation Board, 138 U.S.App.D.C., 147, 425 F.2d 578 (1970).
17
Among other decisions emphasizing this general public purpose of the Act are Ethyl Corp. v. EPA, 478 F.2d 47, 48 (CA4 1973); Sterling Drug, Inc. v. FTC, 146 U.S.App.D.C. 237, 242, 450 F.2d 698, 703 (1971); Soucie v. David, 145 U.S.App.D.C. 144, 153, 448 F.2d 1067, 1076 (1971); LaMorte v.Mansfield, 438 F.2d 448, 451 (CA2 1971); Bristol—Myers Co. v. FTC, 138 U.S.App.D.C. 22, 25, 424 F.2d 935, 938, cert. denied, 400 U.S. 824, 91 S.Ct. 46, 27 L.Ed.2d 52 (1970).
18
S.1666, 88th Cong., 2d Sess., was passed by the Senate on July 28, 1964, 110 Cong.Rec. 17086—17089, and reconsidered and passed again on July 31, 1964, 110 Cong.Rec. 17666—17668. There was insufficient time, however, for full consideration by the House. S.1160, 89th Cong., 1st Sess., then became the FOIA and 'is substantially S. 1666.' S.Rep.No.813, 89th Cong., 1st Sess., 4 (1965). There was no change in the remedy provided.
The Senate report which accompanied S. 1666 explains, 'The provision for enjoining an agency from further withholding is placed in the statute to make clear that the district courts shall have this power.' S.Rep.No.1219, 88th Cong., 2d Sess., 7 (1964). In discussing the contempt provision, the Report states, 'This is another addition which has been made to avoid any possible misunderstanding as to the courts' powers.' Ibid.
19
See Note, 1973 U.Ill.L.F. 180, 191 (1973); Note, 51 Tex.L.Rev. 757, 765 (1973).
20
'The committee has provided that any contractor aggrieved by a determination of excessive profits under the old law, whether he was cooperative and assigned a closing agreement or not, may have a review of that determination in the Tax Court of the United States and in the review have all issues, constitutional and otherwise, decided by the court.' (Remarks of Cong. Disney.)
21
The Court of Claims has been described, 'by virtue of its role in the renegotiation process and its general expertise in the field of government contracts,' as being 'uniquely qualified to supervise discovery against the Renegotiation Board.' Note, 41 Geo.Wash.L.Rev. 1072, 1084 (1973).
22
In this litigation there is no allegation or evidence that the Board was negotiating in bad faith or acting ultra vires. We therefore are not now concerned with the situation where allegations or evidence of that kind is present.
23
Since the institution of these suits, the Board has amended its regulations to expand the discovery available to contractors. See 32 CFR §§ 1470.3, 1472.3 to 1472.6, 1474.3 to 1474.5 (1973).
1
The CFR citations throughout this opinion are to the regulations which were in effect in 1970. The regulations were substantially amended in the fall of 1972.
2
Section 1213(e) provides: 'In determining excessive profits favorable recognition must be given to the efficiency of the contractor or subcontractor, with particular regard to attainment of quantity and quality production, reduction of costs, and economy in the use of materials, facilities, and manpower; and in addition, there shall be taken into consideration the following factors:
'(1) Reasonableness of costs and profits, with particular regard to volume of production, normal earnings, and comparison of war and peacetime products;
'(2) The net worth, with particular regard to the amount and source of public and private capital employed;
'(3) Extent of risk assumed, including the risk incident to reasonable pricing policies;
'(4) Nature and extent of contribution to the defense effort, including inventive and developmental contribution and cooperation with the Government and other contractors in supplying technical assistance;
'(5) Character of business, including source and nature of materials, complexity of manufacturing technique, character and extent of subcontracting, and rate of turnover;
'(6) Such other factors the consideration of which the public interest and fair and equitable dealing may require, which factors shall be published in the regulations of the Board from time to time as adopted.'
3
The Board in its Regulations also provides: 'When a Regional Board has made . . . a final recommendation in a Class A case, . . . and the contractor is unable to decide whether to enter into an agreement for the refund of excessive profits so determined or recommended, the Regional Board of the Board, as the case may be, will furnish the contractor a written summary of the facts and reasons upon which such final determination or recommendation is based in order to assist the contractor in determining whether or not it will enter into an agreement: Provided, That the contractor requests such a statement within a reasonable time after it has been advised of such final determination or recommendation, and states that it has submitted all the evidence which it believes to be relevant to the renegotiation proceedings.' 32 CFR § 1477.3 (Emphasis added.)
4
The hygienic effect of the Administrative Procedure Act is absent here because the Renegotiation Board is excluded from that Act by reason of 50 U.S.C. App. § 1221, the only exception being found in § 5 U.S.C. § 552, at issue in this case.
5
For an account of the operation of the FOIA between 1967 and 1971 see Archibald, Access to Government Information—The Right Before First Amendment, The First Amendment and the News Media, Final Report, Annual Warren Conference on Advocacy in the United States, June 8—9, 1973.
| 45
|
415 U.S. 125
94 S.Ct. 1002
39 L.Ed.2d 209
PHILLIPS PETROLEUM COMPANYv.TEXACO, INC.
No. 73—347.
Decided Feb. 19, 1974.
PER CURIAM:
1
The respondent, Texaco, brought this action against the petitioner, Phillips Petroleum Co., in the Northern District of Oklahoma. The complaint asserted that Texaco had not been compensated for the helium constituent of natural gas sold by Texaco to Phillips. Texaco claimed it was entitled to the reasonable value of this helium in addition to the sums already paid by Phillips for the natural gas under the contract of sale. It is conceded that there is no diversity of citizenship between the parties. Accordingly, Texaco relied, as the basis for federal jurisdiction, on 28 U.S.C. § 1331(a), asserting that its claim '(arose) under the Constitution, laws, or treaties of the United States.' Phillips moved to dismiss for want of federal jurisdiction of the subject matter. The District Court granted this motion, and Texaco appealed to the Court of Appeals for the Tenth Circuit, which by a divided vote reversed the District Court's determination that federal jurisdiction was lacking. Phillips seeks certiorari to review the Tenth Circuit's decision and contends that past decisions of this Court make clear that Texaco's claim cannot be said to 'aris(e) under the Constitution, laws, or treaties of the United States.'
2
The substantive claim in this case is an outgrowth of an earlier decision of the Tenth Circuit, Northern Natural Gas Co. v. Grounds, 441 F.2d 704 (1971). That was a federal interpleader action, in which the Court of Appeals held that lessee-producers of natural gas could recover the reasonable value of helium contained in the gas that they produced and sold to pipeline companies, which later extracted and marketed the helium. The essence of the Grounds decision was its rejection of the buyers' contention that the contract price paid for the natural gas was compensation for 'the gas stream in its entirety and, absent an express reservation, (that) the buyer gets the whole stream for such purposes as it may determine.'1 Id., at 720. The Court of Appeals reasoned that, as a result of the Helium Act Amendments of 1960, 74 Stat. 922, which added § 11 (50 U.S.C. § 167i) to the Helium Conservation Act, 43 Stat. 1110, 'the Natural Gas Act . . . and the FPC fixed service rates, do not apply' to '(a) sale of the commingled helium as a component of the (natural) gas stream.' 441 F.2d, at 721. Accordingly, the Court of Appeals concluded that 'the reconciliation of the Natural Gas Act and of the 1960 amendments to the Helium Act . . . requires the conclusion that the FPC service rates do not apply to deny recovery for the contained helium' in the natural gas stream sold by the lessee-producers. Id., at 723. (Emphasis added.) The court went on to hold that the lessee-producers could therefore recover 'the reasonable value of the helium content of the processed gas.'
3
Because of the presence of federal interpleader jurisdiction, the court in Grounds did not consider whether there existed an independent basis for the exercise of federal jurisdiction. Texaco contends that the Court of Appeals in Grounds read the Natural Gas Act and § 11 of the Helium Conservation Act together to imply a federal cause of action for the recovery of the reasonable value of the helium constituent in natural gas. On the other hand, Phillips' position is that Grounds held only that the effect of these federal statutory provisions is to preclude the defense of payment to a quasi-contractual action brought for the recovery of the reasonable value of the helium. Hence, Phillips argues that the federal questions raised in the complaint are not part of Texaco's claim but are merely asserted in anticipation of a probable defense by Phillips.
4
This Court has repeatedly held that, in order for a claim to arise 'under the Constitution, laws, or treaties of the United States,' ' a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action.' Gully v. First National Bank in Meridian, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936). The federal questions 'must be disclosed upon the face of the complaint, unaided by the answer.' Moreover, 'the complaint itself will not avail as a basis of jurisdiction in so far as it goes beyond a statement of the plaintiff's cause of action and anticipates or replies to a probable defense.' Gully, supra, at 113, 57 S.Ct. at 98. See also Metcalf v. Watertown, 128 U.S. 586, 9 S.Ct. 947, 38 L.Ed. 861 (1888); Tennessee v. Union & Planters' Bank, 152 U.S. 454, 14 S.Ct. 654, 38 L.Ed. 511 (1894); Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908); Taylor v. Anderson, 234 U.S. 74, 34 S.Ct. 724, 58 L.Ed. 1218 (1914); Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194 (1950).
5
The Grounds case cannot properly be read as creating a federal cause of action, deriving from the Natural Gas Act and § 11 of the Helium Conservation Act, for the recovery of the reasonable value of helium contained in natural gas sold at rates sanctioned by the Federal Power Commission. Indeed, in commenting on its earlier Grounds decision, the Court of Appeals in the present case concluded that 'satisfactory utility regulation does not permit a utility rate to be used to obtain a commodity which is not within the contemplation of that rate.' (Emphasis added.) 481 F.2d 70, 73. In other words, the Grounds case simply held that payment for natural gas at rates established or permitted by the Commission under the authority of the Natural Gas Act will not be regarded as payment for the helium constituent and cannot be asserted as a defense to a suit for the recovery of the value of that helium. In short, the federal statutory provisions do not under Grounds create a federal right of recovery, but only preclude the interposition of a plea of payment to defeat a quasi-contractual suit for the value of the helium.2
6
Texaco's suit for the reasonable value of the helium is, in effect, an action in quantum meruit, whose source is state law and not federal law. Cf. Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974). To the extent that the Natural Gas Act and the 1960 Helium Act Amendments may bear on this action for the recovery of the reasonable value of constituent helium in natural gas, it is clear that their effect is no more than to overcome a potential defense to the action. Under the settled precedent of our past decisions noted above, it thus cannot be said that this suit 'arises under the Constitution, laws, or treaties of the United States.' Accordingly, there is no federal jurisdiction under 28 U.S.C. § 1331(a).
7
The petition for a writ of certiorari is granted, and the judgment of the Court of Appeals is reversed.
8
Mr. Justice DOUGLAS and Mr. Justice BRENNAN dissent from the summary disposition of this case without full briefing and oral argument. They would grant the petition and set the case for oral argument.
9
Mr. Justice WHITE took no part in the consideration or decision of this case.
1
The price paid here was in accordance with rates sanctioned by the Federal Power Commission, which has authority to establish such rates under the Natural Gas Act of 1938, 52 Stat. 821, 15 U.S.C. §§ 717—717w.
2
Texaco has not pointed to any language either in the Natural Gas Act and the 1960 Helium Act Amendments or in the legislative history of these enactments that could be read to create a federal cause of action for the recovery of the reasonable value of the helium under the circumstances of this case.
| 89
|
415 U.S. 104
94 S.Ct. 959
39 L.Ed.2d 195
WINDWARD SHIPPING (LONDON) LIMITED et al., Petitioners,v.AMERICAN RADIO ASSOCIATION, AFL-CIO, et al.
No. 72—1061.
Argued Dec. 3 and 4, 1973.
Decided Feb. 19, 1974.
Syllabus
Petitioners, foreign-flag shipowners and agents, sought injunctive relief in the Texas state courts to bar, as tortious under Texas law, the picketing of their vessels by respondent unions, which were protesting as substandard the wages paid to the foreign crewmen, who manned the vessels. The trial court sustained respondents' contention that state-court jurisdiction was pre-empted by the Labor Management Relations Act (LMRA), and the appellate court affirmed. Held: Respondents' activities, which did not involve wages paid within this country but were designed to force the foreign vessels to raise their operating costs to levels comparable to those of American shippers, would have materially affected the foreign ships' 'maritime operations' and precipitated responses by the foreign shipowners in the field of international relations transcending the domestic wage-cost decision that the LMRA was designed to regulate. Respondents' picketing was consequently not activity 'affecting commerce' as defined in §§ 2(6) and (7) of the National Labor Relations Act, as amended by the LMRA, and the Texas courts erred in holding that they were prevented by the LMRA from entertaining petitioners' injunction suit. Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 77 S.Ct. 699, 1 L.Ed.2d 709, followed; Longshoremen v. Ariadne Co., 397 U.S. 195, 90 S.Ct. 872, 25 L.Ed.2d 218, distinguished. Pp. 109 116.
482 S.W.2d 675, reversed.
Robert S. Ogden, Jr., New York City, for petitioners.
Howard Schulman, New York City, for respondents.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Petitioners are the owners and managing agents of two ships which are registered under the laws of Liberia and fly the Liberian flag. They sought injunctive relief in the state courts in Texas to bar picketing of their vessels by respondent unions. The trial court denied relief, finding that the dispute was 'arguably' within the jurisdiction of the National Labor Relations Board and that the jurisdiction of the state courts was therefore pre-empted. The Texas Court of Civil Appeals affirmed,1 and we granted certiorari, 412 U.S. 927, 93 S.Ct. 2749, 37 L.Ed.2d 157 (1973), to consider whether the activities here complained of were activities 'affecting commerce' within the meaning of §§ 2(6) and (7) of the National Labor Relations Act, 49 Stat. 450, 29 U.S.C. §§ 152(6) and (7).2 We hold that they were not, and therefore reverse the judgment of the Court of Civil Appeals.
2
* The vessels Northwind and Theomana are ships of Liberian registry, carrying cargo between foreign ports and the United States. Northwind is owned by petitioner Westwind Africa Line, Ltd., a Liberian corporation, while Theomana is owned by petitioner SPS Bulkcarriers Corp., a Liberian corporation, and managed by petitioner Windward Shipping (London) Ltd., a British corporation. The crews of both vessels are composed entirely of foreign nationals, represented by foreign unions and employed under foreign articles of agreement.
3
Respondents are American maritime unions, apparently representing a substantial majority of American merchant seamen.3 Alarmed by an accelerating decline in the number of jobs available to their members, these unions agreed to undertake collective action against foreign vessels, which they saw as the major cause of their business recession. Specifically, these unions agreed to picket foreign ships, calling attention to the competitive advantage enjoyed by such vessels because of a difference between foreign and domestic seamen's wages. All parties concede that such a difference does exist.4
4
The picketing here occurred at the Port of Houston, Texas, in October 1971. Both Northwind and Theomana were docked within the port, and respondents established picket lines in front of each vessel. There were four pickets assigned to each vessel, carrying signs which read:
5
'ATTENTION TO THE PUBLIC
6
THE WAGES AND BENEFITS PAID SEAMEN ABOARD THE VESSEL THEOMANA (NORTHWIND) ARE SUBSTANDARD TO THOSE OF AMERICAN SEAMEN. THIS RESULTS IN EXTREME DAMAGE TO OUR WAGE STANDARDS AND LOSS OF OUR JOBS. PLEASE DO NOT PATRONIZE THIS VESSEL. HELP THE AMERICAN SEAMEN. WE HAVE NO DISPUTE WITH ANY OTHER VESSEL ON THIS SITE.'
7
(Printed names of the six unions.)
8
These signs were supplemented by pamphlets of similar import.5 The pickets were instructed not to discuss the picketing with anyone, and they appear to have followed their instructions.
9
The picketing, although neither obstructive nor violent, was not without effect. Longshoremen and other port workers refused to cross the picket lines to load and unload petitioners' vessels. Petitioners filed separate suits in a Texas state court, asking the court to enjoin the picketing as tortious under Texas law. The primary basis for petitioners' claim was that the picketing sought to induce the owners and crews to break pre-existing contracts. Respondents presented several defenses, contending in particular that the jurisdiction of the Texas court was pre-empted by the National Labor Relations Act.6
10
The trial court sustained this contention, holding that jurisdiction properly lay with the NLRB, and the Texas Court of Civil Appeals affirmed. That court found that state jurisdiction was pre-empted by the Act when 'the activities complained of are arguably either protected by section 7 or prohibited by section 8 of the NLRA as amended by the LMRA,'7 see San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), and that the conduct here met that test. The court rejected petitioners' argument that the picketing interfered with the 'maritime operations of foreign-flag ships,' see McCulloch v. Sociedad Nacional, etc., 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963), in such manner as to remove it from the Board's jurisdiction.8 The court concluded:
11
'If (the picketing) but voices a complaint as to foreign wages and urges the public not to patronize foreign vessels it does not engage in matters outside of commerce. It is peaceful picketing, publicizing a labor dispute, of such a character that its validity is suggested by the Court's holding in the Marine Cooks case, supra. It is, at least arguably, a protected activity under section 7 of the LMRA. As such, it is an activity as to which the exclusive jurisdiction to determine its propriety has been preempted to the NLRB.'9
12
Petitioners contend that the Court of Appeals too narrowly construed this Court's decisions denying the NLRB jurisdiction in cases involving foreign-flag ships. We therefore begin by examining the principles established by those decisions for determining the jurisdiction of the NLRB.
II
13
In a series of cases decided over the past 17 years,10 this Court has discussed the application of the Labor Management Relations Act in situations which might be broadly described as disputes between unions representing workers in this country and owners of foreign flag vessels operating in international maritime commerce. Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 77 S.Ct. 699, 1 L.Ed.2d 709 (1957), is the leading case on the subject. In Benz the question was whether the Labor Management Relations Act, 1947, precluded a diversity suit for damages brought in the United States District Court by foreign shipowners against picketing American unions. The picketing had been undertaken in Portland, Oregon, to support striking foreign crews employed under foreign articles and had resulted in the refusal of workers to load and repair the docked foreign ships. The District Court had awarded damages and the Court of Appeals affirmed.
14
This Court held that the shipowners' action was not pre-empted by the Labor Management Relations Act. Studying the legislative history of the Act, the Court found no indication that it was intended to govern disputes between foreign shipowners and foreign crews. On the contrary, the Court concluded that the most revealing legislative history strongly suggested the bill was a 'bill of rights . . . for American workingmen and for their employers.' Id., at 144, 77 S.Ct., at 703. (Emphasis in original.) The Court stated that this history 'inescapably describes the boundaries of the Act as including only the workingmen of our own country and its possessions.' Ibid.
15
Recognition of the clear congressional purpose to apply the LMRA only to American workers and employers was doubtless a sufficient reason to place the picketing in Benz outside the Act. But the Court in that case made clear its reluctance to intrude domestic labor law willy-nilly into the complex of considerations affecting foreign trade, absent a clear congressional mandate to do so:
16
'For us to run interference in such a delicate field of international relations there must be present the affirmative intention of the Congress clearly expressed. It alone has the facilities necessary to make fairly such an important policy decision where the possibilities of international discord are so evident and retaliative action so certain.' Id., at 147, 77 S.Ct., at 704.
17
In the 17 years since Benz was decided, Congress has in no way indicated any such 'affirmative intention,' and this Court has continued to construe the LMRA in accordance with the dictates of that case.
18
The reasoning of Benz was reaffirmed in McCulloch v. Sociedad Nacional, etc., 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963), and Incres S.S. Co. v. International Maritime Workers Union, 372 U.S. 24, 83 S.Ct. 611, 9 L.Ed.2d 557 (1963), decided together six years later. In McCulloch, we held that the National Labor Relations Board had improperly assumed jurisdiction under the Act to order an election involving foreign crews of foreign-flag ships. Rejecting the Board's 'balancing of contacts' theory, the Court said:
19
'(T)o follow such a suggested procedure to the ultimate might require that the Board inquire into the internal discipline and order of all foreign vessels calling at American ports.' 372 U.S., at 19, 83 S.Ct., at 676.11
20
In Incres we applied this rationale to a situation involving union picketing of a foreign ship in an effort to organize the foreign crew. Reversing the holding of a New York state court that the picketing was arguably within the jurisdiction of the NLRB, the Court said:
21
'The Board's jurisdiction to prevent unfair labor practices, like its jurisdiction to direct elections, is based upon circumstances 'affecting commerce,' and we have concluded that maritime operations of foreign-flag ships employing alien seamen are not in 'commerce' within the meaning of § 2(6), 29 U.S.C. § 152(6).' 372 U.S., at 27, 83 S.Ct., at 613.
22
But Benz and its successor cases have not been read to exempt all organizational activities from the Act's protections merely because those activities in some way were directed at an employer who was the owner of a foreign-flag vessel docked in an American port. In International Longshoremen's Local 1416 v. Ariadne Shipping Co., 397 U.S. 195, 90 S.Ct. 872, 25 L.Ed.2d 218 (1970), the Court held that the picketing of foreign ships to protest substandard wages paid by their owners to nonunion American longshoremen was 'in 'commerce' within the meaning of § 2(6), and thus might have been subject to the regulatory power of the National Labor Relations Board.' Id., at 200, 90 S.cT., at 874. The pickets in Ariadne, unlike the pickets in Benz or Incres, were primarily engaged in a dispute as to whether an employer should hire unionized or nonunionized American workers to perform longshoremen's work,12 and the substandard wages which they were protesting were being paid to fellow American workers. The Court specifically noted: '(T) his dispute centered on the wages to be paid American residents.' Id., at 199, 90 S.cT., at 874.
23
The term 'in commerce,' as used in the LMRA, is obviously not self-defining, and certainly the activities in Benz, McCulloch, and Incres, held not covered by the Act, were literally just as much 'in commerce' as were the activities held covered in Ariadne. Those cases which deny jurisdiction to the NLRB recognize that Congress, when it used the words 'in commerce' in the LMRA, simply did not intend that Act to erase longstanding principles of comity and accommodation in international maritime trade. In Lauritzen v. Larsen, 345 U.S. 571, 577, 73 S.Ct. 921, 925, 97 L.Ed. 1254 (1953), the Court commented on the congressional intent with respect to the Jones Act of 1920 in these words:
24
'But Congress in 1920 wrote these all-comprehending words, not on a clean slate, but as a postscript to a long series of enactments governing shipping. All were enacted with regard to a seasoned body of maritime law developed by the experience of American courts long accustomed to dealing with admiralty problems in reconciling our own with foreign interests and in accommodating the reach of our own laws to those of other maritime nations.'13
25
We are even more reluctant to attribute to Congress an intention to disrupt this comprehensive body of law by construction of an Act unrelated to maritime commerce and directed solely at American labor relations.
III
26
The picketing activities in this case do not involve the inescapable intrusion into the affairs of foreign ships that was present in Benz and Incres; respondents seek neither to organize the foreign crews for purpose of representation nor to support foreign crews in their own wage dispute with a foreign shipowner. But those cases do not purport to fully delineate the threshold of interference with the maritime operations of foreign vessels which makes the LMRA inapplicable.
27
The picket signs utilized at the docks where the Northwind and Theomana were tied up protested the wages paid to foreign seamen who were employed by foreign shipowners under contracts made outside the United States. At the very least, the pickets must have hoped to exert sufficient pressure so that foreign vessels would be forced to raise their operating costs to levels comparable to those of American shippers, either because of lost cargo resulting from the longshoremen's refusal to load or unload the vessels, or because of wage increases awarded as a virtual self-imposed tariff to regain entry to American ports. Such a large-scale increase in operating costs would have more than a negligible impact on the 'maritime operations' of these foreign ships, and the effect would be by no means limited to costs incurred while in American ports. Unlike Ariadne, the protest here could not be accommodated by a wage decision on the part of the shipowners which would affect only wages paid within this country.
28
In this situation, the foreign vessels lot is not a happy one. A decision by the foreign owners to raise foreign seamen's wages to a level mollifying the American pickets would have the most significant and far-reaching effect on the maritime operations of these ships throughout the world. A decision to boycott American ports in order to avoid the difficulties induced by the picketing would be detrimental not only to the private balance sheets of the foreign shipowners but to the citizenry of a country as dependent on goods carried in foreign bottoms as is ours. Retaliatory action against American vessels in foreign ports might likewise be considered, but the employment of such tactics would probably exacerbate and broaden the present dispute. Virtually none of the predictable responses of a foreign shipowner to picketing of this type, therefore, would be limited to the sort of wage-cost decision benefiting American workingmen which the LMRA was designed to regulate. This case therefore, falls under Benz rather than under Ariadne.14
29
Since we hold that respondents' picketing was not 'in commerce' as defined by the Act, we do not reach the question of whether the activity was otherwise of such a nature that state courts would be precluded by the LMRA from entertaining an action to enjoin it. Our conclusion that the activities here involved were not 'in commerce' within the meaning of § 2(6) and (7) of NLRA,as amended by the LMRA, resolves a question which, of course, is one for the courts in the first instance. Ariadne, 397 U.S., at 200, 90 S.Ct., at 874—875. The Court of Civil Appeals was therefore wrong in holding that the courts of the State of Texas were prevented by the LMRA from entertaining petitioners' suit for an injunction.
30
Reversed.
31
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join, dissenting.
32
Today's reversal of the Texas Court of Civil Appeals does not, of course, end this case. There remain for disposition on remand two of the respondents' defenses not reached by the Texas courts, namely (1) that Texas law does not proscribe respondents' picketing, and (2) that, in any event, the First and Fourteenth Amendments protect respondents' conduct.1
33
But the fact that today's decision does not finally decide the legality of respondents' picketing should not obscure the significance of the Court's holding. Ninety-five percent of our export trade has already fled American-flag vessels for cheaper, foreign-registered shipping.2 In holding that respondents' picketing against foreign-flag vessels does not give rise to a dispute 'affecting commerce' within the National Labor Relations Board's jurisdiction, the Court effectively deprives American seamen, among all American employees in commerce, of any federally protected weapon with which to try to save their jobs.3 Additionally, the Court creates new difficulties for the Board in its administration of the Act by making the Board's statutory jurisdiction turn on the identity of the competitor that might be affected by the picketing—a distinction relevant in the determination whether picketing is protected or prohibited activity under the Act, but a distinction rejected in other contexts in the determination of Board jurisdiction.4
34
There is, of course, no doubt that Congress possesses the power to subject foreign shipping in American territorial waters to the federal labor laws.5 And the Court concedes that the picketing activities involved here fall literally within the term 'commerce' as used in the Labor Management Relations Act. Ante, at 112.
35
After acknowledging the paucity of support for an exclusion in the term 'commerce,' the Court, however, concludes that prior cases construing the 'affecting commerce' limitation in §§ 2(6), 2(7), and 10 (29 U.S.C. §§ 152(6), 152(7), and 160) support the holding that respondents' picketing against foreign-flag vessels is conduct not cognizable by the Board. With respect, I think that the Court misreads those cases, and also fails to take account of other relevant congressional and judicial guidance that leads to a contrary conclusion.
36
As the Court concedes, none of the cases relied upon reached the question before us, that is, whether American seamen may employ economic weapons to try to save their jobs by improving the competitive positions of their domestic employers vis-a -vis foreign shipping. Yet the Court relies upon those decisions as supporting the proposition that we must conclude that Congress 'simply did not intend that Act (LMRA) to erase longstanding principles of comity and accomodation in international maritime trade,' ante, at 112—113, because the economic impact upon foreign shipping from respondents' picketing might severely disrupt the maritime operations of foreign vessels. Not a word or sentence in any opinion in those cases supports that reading. Rather, those decisions rested squarely upon the reasoning that, in circumstances where Board cognizance of a dispute will necessarily involve Board inquiry into the labor relations between foreign crews and foreign vessels, Congress could not be understood to have granted the Board jurisdiction of the dispute.
37
In Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138, 77 S.Ct. 699, 1 L.Ed.2d 709 (1957), the seminal case in this area, an American union attempted to organize the foreign crew of a vessel operating under a foreign flag. The Court, holding that Congress did not fashion the LMRA 'to resolve labor disputes between nationals of other countries operating ships under foreign laws.' id., at 143, 77 S.Ct., at 702, said:
38
'It should be noted at the outset that the dispute from which these actions sprang arose on a foreign vessel. It was between a foreign employer and a foreign crew operating under an agreement made abroad under the laws of another nation. The only American connection was that the controversy erupted while the ship was transiently in a United States port and American labor unions participated in its picketing.' Id., at 142, 77 S.Ct., at 701.
39
Similarly, subsequent decisions also turned jurisdiction on the determination whether Board cognizance would require the Board to inquire into the internal relations between the foreign ship's crew and its foreign owner. In McCulloch v. Sociedad Nacional, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963), we held that the Board did not have jurisdiction to order an election on a foreign-flag vessel, for
40
'to follow such a suggested procedure to the ultimate might require that the Board inquire into the internal discipline and order of all foreign vessels calling at American ports.' Id., at 19, 83 S.Ct., at 676.
41
In Incres S.S. Co. v. International Maritime Workers Union, 372 U.S. 24, 83 S.Ct. 611, 9 L.Ed.2d 557 (1963), the issue was whether the Board had power to adjudicate the legality of the efforts of a union to organize the members of a foreign crew. Again, the Court held that the Board was without jurisdiction under the Act, since adjudication of that question would require that the Board examine into the relations between that crew and its foreign-flag employer. Id., at 27—28, 83 S.Ct., at 613.
42
The question whether a labor dispute would necessitate Board inquiry into the relations between foreign vessels and crews was yet again central in International Longshoremen's Local 1416 v. Ariadne Shipping Co., 397 U.S. 195, 90 S.Ct. 872, 25 L.Ed.2d 218 (1970), the most recent of the cases where we sustained Board jurisdiction of a dispute involving picketing of a foreign-flag ship in protest against wages being paid to American longshoreman unloading the foreign vessel in an American port. We held that the prohibited inquiry would not result in that case, explaining:
43
'We hold that (the longshoremen's) activities were not ('maritime operations of foreign-flag ships'). The American longshoremen's short-term, irregular and casual connection with the respective vessels plainly belied any involvement on their part with the ships' 'internal discipline and order.' Application of United States law to resolve a dispute over the wages paid the men for their longshore work, accordingly, would have threatened no interference in the internal affairs of foreign-flag ships likely to lead to conflict with foreign or international law. We therefore find that these longshore operations were in 'commerce' within the meaning of § 2(6), and thus might have been subject to the regulatory power of the National Labor Relations Board.' Id., at 200, 90 S.Ct., at 874.
44
Thus, the only appropriate issue in the instant case is whether NLRB cognizance of respondents' picketing would require that the Board inquire into the 'internal discipline and order' of foreign vessels, and thus threaten 'interference in the internal affairs of foreign-flag ships likely to lead to conflict with foreign or international law.' Tested by that principle, I conclude, contrary to the Court, that this case falls under Ariadne rather than under Benz.
45
Ariadne is the controlling precedent even if the Court is correct that this dispute 'could not be accommodated by a wage decision on the part of the shipowners which would affect only wages paid within this country.' Ante, at 114. For respondents' picketing is not directed at forcing the shipowners to make that or any other accommodation that could be characterized as interference with relations between crews and shipowners. Respondents' target is to persuade shippers not to patronize foreign vessels, and respondents have no concern with the form of the shipowners' response that makes their efforts succeed.6
46
Similarly, Ariadne is the controlling precedent even if the Court is right that '(v)irtually none of the predictable responses of a foreign shipowner to picketing of this type . . . would be limited to the sort of wage-cost decision benefiting American workingmen which the LMRA (as it amended the NLRA) was designed to regulate.' Ante, at 115. The question whether this case falls within the Board's jurisdiction does not turn on the 'predictable responses' of the foreign shipowner but, under our cases from Benz to Ariadne, solely on the question whether cognizance of respondents' activity would involve the Board in an examination into the internal relations between the foreign crews and shipowners. Cognizance of respondents' conduct in this case would not appear to require that inquiry. In any event, as the Texas Court of Civil Appeals correctly observed, it suffices for Board jurisdiction of that conduct that it is arguable whether that inquiry is required, for in such case it is for the Board to determine in the first instance whether that conduct involves a labor dispute within its cognizance. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959).
47
But my disagreement with the Court does not rest alone on its failure adequately to rationalize and distinguish the case law. As the Court states, the Nation's labor laws must be read in light of the longstanding involvement of Congress with maritime affairs. If that involvement is examined, however, it will demonstrate that, beginning with its first session, 1 Stat. 55, Congress has been deeply engaged in legislating to protect American vessels from competition, usually by enacting discriminatory laws against foreign-flag vessels. Myriad hearings and reports reflect congressional determination that the American merchant marine, largely because of protections afforded American seamen's wages and working conditions in collective bargaining fostered by the National Labor Relations Act, shall have legislative help to support its efforts to compete on equal terms for a share of our foreign commerce.7
48
This congressional support was highlighted as recently as 1970, in amendments to the Merchant Marine Act, 1936, 46 U.S.C. § 1101 et seq., to which we may look with profit. The declaration of policy of that Act, as amended in 1970, states as its purpose that '(i)t is necessary for the national defense and development of (the United States) foreign and domestic commerce that the United States shall have a merchant marine (a) sufficient to carry its domestic water-borne commerce and a substantial portion of the water-borne export and import foreign commerce of the United States . . ..' That merchant marine is further to be 'owned and operated under the United States flag by citizens of the United States, insofar as may be practicable,' and is to be 'manned with a trained and efficient citizen personnel.' 46 U.S.C. § 1101. See also Merchant Marine Act, 1920, 46 U.S.C. § 861. The 1936 Act furthers those aims by providing subsidies for the construction and operation of American-flag shipping, 46 U.S.C. §§ 1151, 1171, and goes far in imposing discriminations against foreign-flag shipping in regard to certain types of freight. 46 U.S.C. s 1241. See also 46 U.S.C. §§ 251, 808 (restricting coastwise trade). Far from conduct in conflict with Congress' legislative policies in the maritime field, respondents' picketing seeks precisely the same goals.
49
Yet the Court, although not remotely suggesting that respondents' picketing constitutes an illegal intrusion by private citizens into foreign affairs, reaches a conclusion that necessarily implies that Congress was content to leave the whole problem to resolution by the States. It is inconceivable that Congress meant to leave regulation of activity in this area of predominantly national concern to disparate state laws reflecting parochial interests.
50
I would affirm the judgment of the Texas Court of Civil Appeals.
1
482 S.W.2d 675 (1972).
2
The definitions in §§ 2(6) and (7), 29 U.S.C. §§ 152(6) and (7), as amended by the Labor Management Relations Act, 1947, are as follows:
'(6) The term 'commerce' means trade, traffic, commerce, transportation, or communication among the several States, or between the District of Columbia or any Territory of the United States and any State or other Territory, or between any foreign country and any State, Territory, or the District of Columbia, or within the District of Columbia or any Territory, or between points in the same State but through any other State or any Territory or the District of Columbia or any foreign country.
'(7) The term 'affecting commerce' means in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce.'
3
Respondents describe themselves in their brief as 'six labor organizations who collectively represent the overwhelming majority and practically almost all American merchant seamen.' Brief for Respondents 2.
4
The petitioners state:
'We do not contest the fact that the wages of foreign crews on foreign ships are substantially lower than those paid to American seamen on American ships.' Brief for Petitioners 19.
The brief notes some estimates that the American wage costs are between 2 1/2 to 4 times higher than the foreign wage costs. Id., at 19 n.
5
These pamphlets stated:
'To the Public—American Seamen have lost approximately 50% of their jobs in the past few years to foreign flag ships employing seamen at a fraction of the wages of American Seamen.
'American dollars flowing to these foreign ship owners operating ships at wages and benefits substandard to American Seamen, are hurting our balance of payments in addition to hurting our economy by the loss of jobs.
'A strong American Merchant Marine is essential to our national defense. The fewer American flag ships there are, the weaker our position will be in a period of national emergency.
'PLEASE PATRONIZE AMERICAN FLAG VESSELS, SAVE OUR JOBS, HELP OUR ECONOMY AND SUPPORT OUR NATIONAL DEFENSE BY HELPING TO CREATE A STRONG AMERICAN MERCHANT MARINE.
'Our dispute is limited to the vessel picketed at this site, the S.S. _ _' (App. 21).
6
The courts below considered only this ground advanced by respondents, finding it dispositive. We express no opinion on the merits of respondents' other contentions.
7
482 S.W.2d, at 678.
8
Id., at 680—682.
9
Id., at 682.
10
Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 77 S.Ct. 699, 1 L.Ed.2d 709 (1957); McCulloch v. Sociedad Nacional, etc., 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963); Incres S.S. Co. v. International Maritime Workers Union, 372 U.S. 24, 83 S.Ct. 611, 9 L.Ed.2d 557 (1963); International Longshoremen's Local 1416 v. Ariadne Shipping Co., 397 U.S. 195, 90 S.Ct. 872, 25 L.Ed.2d 218 (1970).
11
The Court in McCulloch also noted that the Board's actions had 'aroused vigorous protests from foreign governments and created international problems for our Government.' 372 U.S., at 17, 83 S.Ct., at 675.
12
The evidnece in Ariadne showed that the work at issue was performed partly by members of the foreign ships' crews and partly by outside labor. 397 U.S., at 196, 90 S.Ct., at 873. Those workers included in the classification 'outside labor' were nonunion members. This Court noted that '(t)he participation of some crew members in the longshore work does not obscure the fact that this dispute centered on the wages to be paid American residents, who were employed by each foreign ship not to serve as members of its crew but rather to do casual longshore work.' Id., at 199, 90 S.Ct., at 874.
13
The basic question at issue in Lauritzen was whether American or Danish law applied to a maritime tort which occurred in Havana Harbor. Although analysis of the Jones Act there obviously involved different considerations from analysis of the Labor Management Relations Act here, it is interesting to note that some arguments at least are common to both cases. In Lauritzen this Court rejected a 'candid and brash appeal' made by the seamen and various amici that the Court should 'extend the law to this situation as a means of benefiting seamen and enhancing the costs of foreign ship operation for the competitive advantage of our own.' 345 U.S., at 593, 73 S.Ct., at 933. We observed at that time that such arguments were obviously better directed to Congress.
14
We do not find the rationale of Marine Cooks & Stewards, AFL v. Panama S.S. Co., 362 U.S. 365, 80 S.Ct. 779, 4 L.Ed.2d 797 (1960), to be applicable here. Although that case involved a labor situation strikingly similar to the situation involved in this case, the controlling question in Marine Cooks was the jurisdiction of a federal district court to enjoin picketing of a foreign-flag ship under the Norris-LaGuardia Act, 29 U.S.C. § 101 et seq. The Court held that in such circumstances the district courts had no jurisdiction. However, as we later noted in McCulloch, 372 U.S., at 18, 83 S.Ct., at 676, Marine Cooks 'cannot be regarded as limiting the earlier Benz holding . . . since no question as to 'whether the picketing . . . was tortious under state or federal law' was either presented or decided.' Obviously the question whether Congress intended the federal courts to stay out of the labor injunction business involves significantly different considerations from the question whether Congress intended the Labor Management Relations Act to apply to the type of picketing of foreign ships involved here.
1
See NLRB v. Fruit & Vegetable Packers & Warehousemen, Local 760, 377 U.S. 58, 84 S.Ct. 1063, 12 L.Ed.2d 129 (1964); id., at 76, 84 S.Ct., at 1073 (Black, J., concurring); Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940).
2
See S.Rep.No.91—1080, p. 16 (1970). See also id., at 17 (Chart 7: Projected Decline in Seafaring Job Opportunities in Foreign Trade Fleet from 1969 to 1980).
3
Those meagre materials to be found in the congressional debates concerning the Labor Management Relations Act contradict the notion that Congress meant to distinguish among American workingmen for purposes of defining the Board's jurisdiction over labor disputes affecting commerce. See H.R.Rep.No.245, 80th Cong., 1st Sess., 4 (1947), discussed in Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138, 142—144, 77 S.Ct. 699, 701—703, 1 L.Ed.2d 709 (1957). See also International Longshoremen's Local 1416 v. Ariadne Shipping Co., 397 U.S. 195, 198—199, 90 S.Ct. 872, 873—874, 25 L.Ed.2d 218 (1970).
4
Thus, the Court refused to make that distinction even where the language of the Act might have been read as indicating that Congress meant to draw it. In Local 25, International Brotherhood of Teamsters v. New York, N.H. & H.R. Co., 350 U.S. 155, 76 S.Ct. 227, 100 L.Ed. 166 (1956), a union engaged in the over-the-road trucking of freight picketed a railroad loading yard to protest the 'piggy-backing' of truck trailers on railroad cars that was curtailing their opportunities for employment. The railroad, subject to the Railway Labor Act, 45 U.S.C. § 151 et seq., was a 'person' exempted from the NLRA's definition of 'employer.' 29 U.S.C. § 152(2).
Nonetheless, the Court relied upon the finding of the lower court that the 'union was in no way concerned with (the railroad's) labor policy,' and held that the dispute was subject to the jurisdiction of the National Labor Relations Board. The Court said:
'This interpretation permits the harmonious effectuation of three distinct congressional objectives: (1) to provide orderly and peaceful procedures for protecting the rights of employers, employees and the public in labor disputes so as to promote the full, free flow of commerce, as expressed in § 1(b) of the Labor Management Relations Act; (2) to maintain the traditional separate treatment of employer-employee relationships of railroads subject to the Railway Labor Act; and (3) to minimize 'diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies.' Garner v. Teamsters Union, 346 U.S. 485, 490, 74 S.Ct. 161, 98 L.Ed. 228.' 350 U.S., at 160 161, 76 S.Ct., at 231.
In contrast, there is no wording in the statute, or any legislative history, supporting a reading that Congress meant to draw that line as to seamen.
5
See Benz v. Compania Naviera Hidalgo, S.A., supra, at 142 of 353 U.S., at 701 of 77 S.Ct.:
'It is beyond question that a ship voluntarily entering the territorial limits of another country subjects itself to the laws and jurisdiction of that county. Wildenhus's Case, 1887, 120 U.S. 1, 7 S.Ct. 385, 30 L.Ed. 565. . . . It follows that if Congress had so chosen, it could have made the Act applicable to wage disputes arising on foreign vessels between nationals of other countries when the vessel comes within our territorial waters.'
6
The picket signs were not directed to improvement of the foreign crews' wages and working conditions. The protest was carefully phrased to appeal to shippers not to patronize the foreign ships because payment of wages 'substandard to those of American seamen . . . results in extreme damage to our wage standards and loss of our jobs.' Thus, cognizance of the dispute to determine the legality of the picketing as an unfair labor practice need not involve the Board in an inquiry whether the picketing called for an employer response in the form of an increase in the crews' wages. This would not of course mean that respondents would prevail on the merits. There may well be a question, for example, whether the picketing falls within the ban of § 8(b)(7), 29 U.S.C. § 158(b)(7), as prohibited recognitional picketing. See Rosen, Area Standards Picketing, 23 Lab.L.J. 67 (1972); Note, Picketing for Area Standards: An Exception to Section 8(b)(7), 1968 Duke L.J. 767.
7
See, e.g., H.R.Rep.No.91—1073 (1970); S.Rep.No.91—1080 (1970), U.S.Code Cong. & Admin.News 1970, p. 4188; Hearings on H.R.12324 and H.R.12569 before the Subcommittee on Merchant Marine of the House Committee on Merchant Marine & Fisheries, 92d Cong., 2d Sess. (1972) (Cargo for American Ships); Hearings on H.R.15424, H.R.15425, and H.R.15640 before the Subcommittee on Merchant Marine of the House Committee on Merchant Marine & Fisheries, 91st Cong., 2d Sess. (1970) (President's Maritime Program, pt. 2); Hearings on S.3287 before the Merchant Marine Subcommittee of the Senate Committee on Commerce, 91st Cong., 2d Sess. (1970) (the Maritime Program); Hearings on H.R.1897, H.R.2004, and H.R.2331 before the House Committee on Merchant Marine & Fisheries, 88th Cong., 1st Sess. (1963) (Maritime Labor Legislation).
| 910
|
415 U.S. 199
94 S.Ct. 1055
39 L.Ed.2d 270
Rogers C. B. MORTON, Secretary of the Interior, Petitioner,v.Ramon RUIZ et ux.
No. 72—1052.
Argued Nov. 5—6, 1973.
Decided Feb. 20, 1974.
Syllabus
Respondent Ruiz and his wife, Papago Indians, left their reservation in Arizona in 1940 to live in an Indian community a few miles away and Ruiz found employment at a nearby mine. During a prolonged strike, Ruiz applied for but was denied general assistance benefits under the Snyder Act by the Bureau of Indian Affairs (BIA) because of a provision in the BIA Manual limiting eligibility to Indians living 'on reservations' (and in jurisdictions under the BIA in Alaska and Oklahoma). After unsuccessful administrative appeals, respondents instituted this purported class action, claiming, inter alia, entitlement to such general assistance as a matter of statutory interpretation. The District Court's summary judgment for petitioner was reversed by the Court of Appeals on the ground that the Manual's residency limitation was inconsistent with the broad language of the Snyder Act, that Congress intended general assistance benefits to be available to all Indians, including those in respondents' position, and that Congress' subsequent actions in appropriating funds for the BIA general assistance program did not serve to ratify the imposed limitation. Held:
1. Congress did not intend to exclude from the BIA general assistance program these respondents and their class, who are full-blooded, unassimilated Indians living in an Indian community near their native reservation, and who maintain close economic and social ties with that reservation. Pp. 212—230.
(a) The legislative history of the subcommittee hearings regarding appropriations under the Snyder Act showing that the BIA's usual practice has been to represent to Congress that 'on or near' reservations is the equivalent of 'on' for purposes of welfare service eligibility, and that successive budget requests were for Indians living 'on or near' and not just for those living directly 'on,' clearly shows that Congress was led to believe that the programs were being made available to those nonassimilated Indians living near the reservation as well as to those living, 'on,' and a fair reading of such history can lead only to the conclusion that Indians situated near the reservation, such as respondents, were covered by the authorization. Pp. 213—229.
(b) The fact that Congress made appropriations during the time the 'on reservations' limitation appeared in the BIA Manual does not mean that Congress implicitly ratified the BIA policy, where such limitation had not been published in the Federal Register or in the Code of Federal Regulations, and there is nothing in the legislative history to show that the limitation was brought to the appropriation subcommittees' attention, let alone to the entire Congress. But, even assuming that Congress knew of the limitation when making appropriations, there is no reason to assume that it did not equate the 'on reservations' language with the 'on or near' category that continuously was described as the service area. P. 230.
2. Assuming, arguendo, that the Secretary rationally could limit the 'on or near' appropriation to include only Indians who lived directly 'on' the reservation (plus those in Alaska and Oklahoma), this has not been validly accomplished. Pp. 230—238.
(a) By not publishing its general assistance eligibility requirement in the Federal Register or in the Code of Federal Regulations, the BIA has failed to comply with the requirements of the Administrative Procedure Act (APA) as to publication of substantive policies. The Secretary's conscious choice not to treat this extremely significant requirement as a legislative-type rule, renders it ineffective so far as extinguishing the rights of those otherwise within the class of beneficiaries contemplated by Congress. Pp. 232—236.
(b) Moreover, the BIA has failed to comply with its own internal procedures, since the 'on reservations' limitation is clearly an important substantive policy within the class of directives—those that 'inform the public of privileges and benefits available' and of 'eligibility requirements'—that the BIA Manual declares are among those to be published. P. 235.
(c) Even assuming the lack of binding effect of the BIA policy, it is too late to argue that the words 'on reservations' in the BIA Manual mean something different from 'on or near' and therefore are entitled to deference as an administrative interpretation when, in fact, the two have been continuously equated by the BIA to Congress. Pp. 236—237.
9 Cir., 462 F.2d 818, affirmed and remanded.
Harry R. Sachse, New Orleans, La., for petitioner.
Winton D. Woods, Jr., Tucson, Ariz., for respondents.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This case presents a narrow but important issue in the administration of the federal general assistance program for needy Indians:
2
Are general assistance benefits available only to those Indians living on reservations in the United States (or in areas regulated by the Bureau of Indian Affairs in Alaska and Oklahoma), and are they thus unavailable to Indians (outside Alaska and Oklahoma) living off, although near, a reservation?
3
The United States District Court for the District of Arizona answered this question favorably to petitioner, the Secretary of the Interior, when, without opinion and on cross-motions for summary judgment, it dismissed the respondents' complaint. The Court of Appeals, one judge dissenting, reversed. 462 F.2d 818 (CA9 1972). We granted certiorari because of the significance of the issue and because of the vigorous assertion that the judgment of the Court of Appeals was inconsistent with long-established policy of the Secretary and of the Bureau. 411 U.S. 947, 93 S.Ct. 1923, 36 L.Ed.2d 408 (1973).
4
* The pertinent facts are agreed upon, although, as to some, the petitioner Secretary denies knowledge but does not dispute them. App. 45—48. The respondents, Ramon Ruiz and his wife, Anita, are Papago Indians and United States citizens. In 1940 they left the Papago Reservation in Arizona1 to seek employment 15 miles away at the Phelps-Dodge copper mines at Ajo. Mr. Ruiz found work there, and they settled in a community at Ajo called the 'Indian Village' and populated almost entirely by Papagos.2 Practically all the land and most of the homes in the Village are owned or rented by Phelps-Dodge. The Ruizes have lived in Ajo continuously since 1940 and have been in their present residence since 1947. A minor daughter lives with them. They speak and understand the Papago language but only limited English. Apart from Mr. Ruiz' employment with Phelps-Dodge, they have not been assimilated into the dominant culture, and they appear to have maintained a close tie with the nearby reservation.3
5
In July 1967, 27 years after the Ruizes moved to Ajo, the mine where he worked was shut down by a strike. It remained closed until the following March. While the strike was in progress, Mr. Ruiz' sole income was a $15 per week striker's benefit paid by the union.4 He sought welfare assistance from the State of Arizona but this was denied because of the State's apparent policy that striking workers are not eligible for general assistance or emergency relief.5
6
On December 11, 1967, Mr. Ruiz applied for general assistance benefits from the Bureau of Indian Affairs (BIA). He was immediately notified by letter that he was ineligible for general assistance because of the provisions (in effect since 1952) in 66 Indian Affairs Manual 3.1.4 (1965) that eligibility is limited to Indians living 'on reservations' and in jurisdictions under the BIA in Alaska and Oklahoma.6 An appeal to the Superintendent of the Papago Indian Agency was unsuccessful. A further appeal to the Phoenix Area Director of the BIA led to a hearing, but this, too, proved unsuccessful. The sole ground for the denial of general assistance benefits was that the Ruizes resided outside the boundaries of the Papago Reservation.
7
The respondents then instituted the present purported class action against the Secretary, claiming, as a matter of statutory interpretation, entitlement to the general assistance for which they had applied, and also challenging the eligibility provision as a violation of Fifth Amendment due process and of the Privileges and Immunities Clause of Art. IV, § 2, of the Constitution.
8
The Court of Appeals' reversal of the District Court's summary judgment for the Secretary was on the ground that the Manual's residency limitation was inconsistent with the broad language of the Snyder Act, 25 U.S.C. § 13, 'that Congress intended general assistance benefits to be available to all Indians, including those in the position' of the Ruizes, 462 F.2d, at 821, and that subsequent actions of Congress in appropriating funds for the BIA general assistance program did not serve to ratify the imposed limitation. The dissent took the position that the Secretary's policy was within the broad discretionary authority delegated to the Secretary to Congress with respect to the allocation of limited funds.
II
9
The Snyder Act,7 42 Stat. 208, 25 U.S.C. § 13, approved November 2, 1921, provides the underlying congressional authority for most BIA activities including, in particular and importantly, the general assistance program. Prior to the Act, there was no such general authorization. As a result, appropriation requests made by the House Committee on Indian Affairs were frequently stricken on the House floor by point-of-order objections. See H.R.Rep.No. 275, 67th Cong., 1st Seee. (1921); S.Rep.No.294, 67th Cong., 1st Sess. (1921); 61 Cong.Rec. 4659—4672 (1921). The Snyder Act was designed to remedy this situation. It is comprehensively worded for the apparent purpose of avoiding these point-of-order motions to strike. Since the passage of the Act, the BIA has presented its budget requests without further interruption of that kind and Congress has enacted appropriation bills annually in response to the requests.
10
The appropriation legislation at issue here, Department of Interior and Related Agencies Appropriation Act, 1968, Pub.L. 90—28, 81 Stat. 59, 60 (1967), recited:
11
'Bureau of Indian Affairs
12
'Education and Welfare Services
13
'For expenses necessary to provide education and welfare services for Indians, either directly or in cooperation with States and other organizations, including payment (in advance or from date of admission), of care, tuition, assistance, and other expenses of Indians in boarding homes, institutions, or schools; grants and other assistance to needy Indians; maintenance of law and order, and payment of rewards for information or evidence concerning violations of law on Indian reservations or lands; and operation of Indian arts and crafts shops; $126,478,000.'
14
This wording, except for the amount, is identical to that employed in similar legislation for prior fiscal years8 and, indeed, for subsequent ones.9 It is to be that neither the language of the Snyder Act nor that of the Appropriations Act imposes any geographical limitation on the availability of general assistance benefits and does not prescribe eligibility requirements or the details of any program. Instead, the Snyder Act states that the BIA (under the supervision of the Secretary) 'shall direct, supervise, and expend . . . for the benefit, care, and assistance of the Indians throughout the United States' for the stated purposes including, as the two purposes first described, '(g)eneral support' and 'relief of distress.' This is broadly phrased material and obviously is intended to include all BIA activities.10
15
The general assistance program is designed by the BIA to provide direct financial aid to needy Indians where other channels of relief, federal, state, and tribal, are not available. Benefits generally are paid on a scale equivalent to the State's welfare payments. Any Indian, whether living on a reservation or elsewhere, may be eligible for benefits under the various social security programs in which his State participates and no limitation may be placed on social security benefits because of an Indian claimant's residence on a reservation.11
16
In the formal budget request submitted to Congress by the BIA for fiscal 1968, the program was described as follows:
17
'General assistance will be provided to needy Indians on reservations who are not eligible for public assistance under the Social Security Act . . . and for whom such assistance is not available from established welfare agencies or through tribal resources.' Hearings on Department of the Interior and Related Agencies Appropriations for 1968 before a Subcommittee of the House Committee on Appropriations, 90th Cong., 1st Sess., 777—778 (1967),12 and Senate Hearings, Fiscal Year 1968, 90th Cong., 1st Sess., 695 (1967).12a
III
18
We are confronted, therefore, with the issues whether the geographical limitation placed on general assistance eligibility by the BIA is consistent with congressional intent and the meaning of the applicable statutes, or, to phrase it somewhat differently, whether the congressional appropriations are properly limited by the BIA's restrictions, and, if so, whether the limitation withstands constitutional analysis.
19
On the initial question, the Secretary argues, first, that the Snyder Act is merely an enabling act with no definition of the scope of the general assistance program, that the Appropriation Act did not provide for off- reservation Indian welfare (other than in Oklahoma and Alaska), and that Congress did not intend to expand the program beyond that presented to it by the BIA request. Secondly, he points to the 'on reservations' limitation in the Manual and suggests that Congress was well acquainted with that limitation,13 and that, by legislating in the light of the Manual's limiting provision, its appropriation amounted to a ratification of the BIA's definitive practice. He notes that, in recent years, Congress has twice rejected proposals that clearly would have provided off-reservation general assistance for Indians.14 Thus, it is said, Congress has appropriated no funds for general assistance for off-reservation Indians and, as a practical matter, the Secretary is unable to provide such a program.
20
The Court of Appeals placed primary reliance on the Snyder Act's provision for assistance to 'the Indians throughout' the United States. It concluded that the Act envisioned no geographical limitations on Indian programs and that, absent a clear congressional ratification of such a policy, the Secretary was powerless to shrink the coverage down to some lesser group of Indian beneficiaries.
21
Although we affirm the judgment of the Court of Appeals and its reversal of the judgment of the District Court, we reach its result on a narrower ground. We need not approach the issue in terms of whether Congress intended for all Indians, regardless of residence and of the degree of assimilation, to be covered by the general assistance program. We need only ascertain the intent of Congress with respect to those Indian claimants in the case before us. The question, so limited, is whether Congress intended to exclude from the general assistance program these respondents and their class, who are full-blooded, unassimilated Indians living in an Indian community near their native reservation, and who maintain close economic and social ties with that reservation. Except for formal residence outside the physical boundaries of the Papago Reservation, the respondents, as has been conceded, meet all other requirements for the general assistance program.
IV
22
There is, of course, some force in the Secretary's argument and in the facts that the BIA's budget requests consistently contained 'on reservations' general assistance language and that there was testimony before successive appropriations subcommittees to the effect that assistance of this kind was customarily so restricted. Nonetheless, our examination of this and other material leads us to a conclusion contrary to that urged by the Secretary.
23
A. In actual practice general assistance clearly has not been limited to reservation Indians. Indeed, the Manual's provision, see n. 6, supra, so heavily relied upon by the Secretary, itself provides that general assistance is available to nonreservation Indians in Alaska and Oklahoma. The rationale proffered for this is:
24
'The situation of Indians in Alaska and Oklahoma has historically been unique. Much of Oklahoma was once set aside as an Indian Territory, and though most of the reservations have been abolished, there remains a large area of concentrated Indian population with tribal organization, living on land held in trust by the United States . . .. A similar situation of large concentrations of native Americans, with few reservations and substantial separate legislation prevails in Alaska . . .. The responsibilities of the Bureau of Indian Affairs in these jurisdictions are substantially similar to the Bureau's responsibilities on the reservations.' Brief for Petitioner 21.
25
While this exception is not necessarily irrational, it definitely demonstrates that the limitation in the budget requests is not rigidly followed by the BIA, inasmuch as most off-reservation Indians in the two named States are regarded as eligible for general assistance funds. If, as the Secretary urges, we are to assume that Congress has been aware of the Manual's provision, Congress was just as clearly on notice that the words 'on reservations' did not possess their literal meaning in that context. Surely, some of the reasons for the Alaska-Oklahoma exception are equally applicable to Indians of the Ruiz class.
26
B. There was testimony in several of the hearings that the BIA, in fact, was not limiting general assistance to those within reservation boundaries and, on more than one occasion, Congress was notified that exceptions were being made where they were deemed appropriate. Notwithstanding the Manual, at least three categories of off-reservation Indians outside Alaska and Oklahoma have been treated as eligible for general assistance. The first is the Indian who relocates in the city through the BIA relocation program and who then is eligible for general assistance for the period of time required for him, under state law, to establish residence in the new location.15 The second evidently is the Indian from the Turtle Mountain Reservation in North Dakota who lives on trust land near but apart from that reservation.16 The third appears to be the Indian residing in Rapid City, South Dakota.17
27
In addition, although not controlling, it is not irrelevant that the 'on reservations' limitation in the budget requests has never appeared in the final appropriation bills.
28
C. Even more important is the fact that, for many years, to and including the appropriation year at issue, the BIA itself made continual representations to the appropriations subcommittees that nonurban Indians living 'near' a reservation were eligible for BIA services. Although, to be sure, several passages in the legislative history and the formal budget requests have defined eligibility in terms of Indians living 'on reservations,' the BIA, not infrequently, has indicated that living 'on or near' a reservation equates with living 'on' it.
29
An early example of this appears at the fiscal 1948 Senate Hearing. The following colloquy between Senator McCarran and Assistant Commissioner Zimmerman is one of the stronger statements made to Congress concerning the BIA's policy of limiting general assistance to reservation Indians and yet, within this very dialogue, relied on explicitly by the Secretary, is an indication that 'on reservations' is not given a rigid interpretation:
30
'Senator McCarran. I have one question right there.
31
'Do these items address themselves to reservation Indians or nonreservation Indians, or both?
32
'Take, for instance, this welfare administration fund, $87,786. Is that given to reservation Indians, nonreservation Indians alike?
33
'Mr. Zimmerman. No, sir; it is not.
34
'Senator McCarran. To whom is it given?
35
'Mr. Zimmerman. This money goes to reservation Indians.
36
'Senator McCarran. Entirely? 'Mr. Zimmerman. Yes.
37
'Senator McCarran. Now, in my State, for instance, you have in the outskirts of Reno and again on the outskirts of Battle Mountain small Indian villages. Do they get anything in the way of relief?
38
'Mr. Zimmerman. Those town colonies are treated as reservations.
39
'Senator McCarran. You regard them as reservations?
40
'Mr. Zimmerman. Yes; some of them are.
41
'Senator McCarran. Is the colony outside of the city of Reno a reservation?
42
'Mr. Zimmerman. For certain purposes the courts have held that it is a reservation.
43
'Senator McCarran. Do they own the land?
44
'Mr. Zimmerman. Yes; the Federal Government owns the land.
45
'Senator McCarran. The Federal Government owns the land?
46
'Mr. Zimmerman. Yes, sir.
47
'Senator McCarran. They build their houses on it or the Federal Government?
48
'Mr. Zimmerman. They build their own houses.
49
'Senator McCarran. But those Indians do receive the benefits?
50
'Mr. Zimmerman. They would be eligible; yes, sir.' Senate Hearings, Fiscal Year 1948, 80th Cong., 1st Sess., 598—599 (1947).
51
The interchangeability of 'on' and 'on or near' appears more directly in later years. In the relocation services section of the BIA's budget justification for fiscal 1959 it is stated:
52
'It is estimated that within the continental United States there are approximately 400,000 members of Indian tribes and bands. Of this number, approximately 30,000 live on or adjacent to reservations for which the Bureau assumes some responsibility. On most of the Indian reservations there is a surplus of population in proportion to reservation resources. Opportunities for self-support on or near these reservations are wholly inadequate and the increasing surplus population is faced with the alternative of moving away from the reservation or remaining to live in privation or dependent, partially or wholly, upon some form of public assistance.' Senate Hearings, Fiscal Year 1959, 85th Cong., 2d Sess., 288 (1958) (emphasis supplied).18
53
The relocation program is covered by the welfare appropriation. It is designed to provide short-term assistance to the needy Indian who leaves the reservation area and thereby disqualifies himself for the general assistance program. By describing the Indians who 'live on or adjacent to reservations' as those entitled to relocation services when they depart, the BIA in effect was telling Congress that 'moving away from the reservation' was a possibility even though the Indian lives only 'adjacent to' the reservation, and it would seem to follow that the Indian living 'adjacent to' the reservation was also eligible for general assistance.
54
At the fiscal 1962 hearing, Congressman Fenton inquired of Assistant Commissioner Gifford as to the Indian population in the United States. She replied:
55
'We have no absolute figure. Our best estimate of Indians on the reservations right now is about 375,000, I think. That is a figure we are using. Of course, there are Indians off of the reservations, and we do not have this count too clearly. However, for those we consider our direct responsibility on the reservations—
56
'Mr. Fenton. To whom we contribute?
57
'Miss Gifford. Yes we believe it is about 375,000.' House Hearings, Fiscal Year 1962, 87th Cong., 1st Sess., 205—206 (1961).
58
The foregoing statement by the Assistant Commissioner, of course, is not in itself particularly revealing on the issue that confronts us. As can be seen from subsequent hearings, however, the stated figure includes Indians 'on or near the reservations' and is not restricted to Indians who live 'on.' Also, this 'on or near' group, in contrast to those who live 'off' the reservation, are within the group for whom the BIA assumed 'direct responsibility.' Obviously, one can never be certain whether this expanded reading of 'on' is the result of the BIA's desire, when seeking appropriations, to represent its jurisdiction and function somewhat more broadly than it actually was, or whether it reflects actual policy.
59
The 'on or near' representations continued to be made to Congress. At the fiscal 1963 House hearing, Congressmen questioned Commissioner Nash, Associate Commissioner Officer, and Assistant Commissioner Gifford as to the Indian population served by the BIA:
60
'Mr. Denton. How many Indians are there at the present time?
61
'Miss Gifford. You mean the total population?
62
'Mr. Denton. Yes.
63
'Miss Gifford. We estimate that the total population on or near the reservations that we serve is 380,000.
64
'Mr. Denton. I expect there is no way you could tell how many Indians there are off the reservations.
65
'Mr. Nash. Well, we can take the total census figure for the Indian population and subtract those that are listed as living on or near the reservations, and this gives us a figure of 172,000 off the reservations; 380,000 on or near the reservations, including Alaska.
66
'Mr. Kirwan. What did you say was on the reservation?
67
'Mr. Nash. 380,000.
68
'Mr. Officer. We are citing our figure of 380,000 to include those Indians who live in the reservation vicinity and are eligible to receive our services, as well as the Indians and other Alaska natives. The total of Alaska natives is 43,000. When we subtract that from 380,000, we have 337,000 Indians who live on or near reservations outside Alaska. Now if we are going to be concerned only with those who live on reservations, then we have that figure of 285,000, which was in our press release.
69
'Mr. Kirwan. We want to clear that up. The press release emphasizes the 285,000 on the reservation. Now we have the figure on the reservation and those who live near the reservation. That is the point we want to clear.
70
'Mr. Officer. The 380,000 are those who live on or near reservations plus the natives of Alaska.
71
'Mr. Denton. That does include Eskimos?
72
'Mr. Officer. Yes, sir.
73
'Mr. Denton. What do you do in places like Oklahoma, where the Indians live 'chcekerboard'?
74
'Mr. Officer. It is for that reason that we cite figures of Indians living on or near reservations; because we have a number of situations similar to those in Oklahoma, where you don't have a well-defined reservation boundary.' House Hearings, Fiscal Year 1963, 87th Cong., 2d Sess., 352—354 (1962) (emphasis supplied).19
75
It is interesting to note that the Subcommittee was advised that Alaska and Oklahoma Indians are subsumed in the 'on or near' category rather than placed in the pure 'on' group, and, admittedly, they are entitled to general assistance. The figures stated also indicate that the number quoted the preceding year by Miss Gifford as the number 'on the reservation' actually referred to those 'on or near.'
76
A nearly identical dialogue occurred in 1964 at the Senate Subcommittee:
77
'Senator Bible. How many Indians do you have under your jurisdiction?
78
'Mr. Nash. 380,000.
79
'Senator Bible. How many nonreservation Indians do you have? Are those just reservation Indians?
80
'Mr. Nash. These are on or near. This would not include, for example, Indians living in Los Angeles, San Francisco, Chicago, Denver, Minneapolis, unless they were brought there as part of our vocational training or relocation programs.
81
'Senator Bible. What is the total Indian population in the United States?
82
'Mr. Nash. The 1960 census counted 552,000 Indians, Eskimos, and Aleuts.
83
'Chairman Hayden. Are these full-bloods or halfs?
84
'Mr. Nash. The census does not make an inquiry as to full or half. They merely say, 'Are you an Indian?' 'Are you known as an Eskimo?'
85
'Senator Bible. Following the Chairman's question, where does your jurisdiction rest in that regard? Do you have a measuring stick?
86
'Mr. Nash. No, sir. Our basis for providing services to an Indian is primarily on real estate. That is, we service those individuals who reside on trust or restricted land, or so close to it that the program of the reservation would be affected by services not performed for that person.' Senate Hearings, Fiscal Year 1965, 88th Cong., 2d Sess., 227—228 (1964) (emphasis supplied).20
87
The now-familiar BIA representations appear again at the House hearing for fiscal 1967:
88
'Mr. Denton. How many Indians are there on the reservations and how many are under the Indian Bureau's supervision?
89
'Mr. Nash. We recognize what we call the Federal Indian Service population at 380,000.
90
'Mr. Denton. Are they on reservations?
91
'Mr. Nash. This is on and near. The figure on the reservation is somewhat smaller, but this is the figure which is of those who are on reservations, are living on trust lands, have titles which are alienated, restricted against aliens, or are village communities in Alaska, Oklahoma, or are so near to reservations that they are dependent upon the facilities provided by the Bureau of Indian Affairs for their major community services.
92
'Mr. Denton. What is the total Indian population?
93
'Mr. Nash. The 1960 census counted 552,000. It would be from there up, because there are a good many people who—
94
'Mr. Denton. And 380,000 are on the reservations, so about 170,000 are not under the Government's care.
95
'Mr. Nash. That is correct.'
96
House Hearings, Fiscal Year 1967, 89th Cong., 2d Sess., 370 371 (1966) (emphasis supplied).
97
At the hearing for fiscal 1968, the appropriation year directly at issue, Commissioner Bennett made like representations to the Senate Subcommittee. These could have led Congress to believe that there are only two relevant classes of Indians so far as non-land-related BIA services are concerned, those living 'off' the reservation and those living 'on or near':
98
'Senator Bible. . . . Mr. Commissioner, and I am sorry because you may have covered this in earlier questioning, but what is the total Indian population under your jurisdiction at the present time?
99
'Mr. Bennett. The total Indian population under our jurisdiction at the present time is 380,000. These are on or near reservations and comprise our service population based on the 1960 census.
100
'Senator Bible. How many Indians do we have in the United States who are not under your jurisdiction and are not your responsibility? 'Mr. Bennett. Based on the 1960 census again the figure is about 170,000. These are people who moved away from the residential areas and generally have become a part of other communities.' Senate Hearings, Fiscal Year 1968, 90th Cong., 1st Sess., 819 (1967) (emphasis supplied).21
101
Another recurring representation made by the BIA throughout the annual hearings is that whenever it was asked about those Indians who were outside the agency's service area, that is, 'off' the reservations, the answer would refer to Indians who had left the reservations and moved to urban areas or who had attempted to be assimilated by the general population. Certainly, none of the references to those outside the service area seem appropriately applied to Indians of the Ruiz class.
102
During the fiscal 1950 Senate hearing, when the question arose as to the status of Indians who had left the reservation, Assistant Commissioner Zimmerman stated:
103
'Frankly, it has not been considered the obligation of the Indian Service in the years past to police Indians after they have established themselves in Phoenix or Flagstaff or Grand Forks, or wherever it may be.' Senate Hearings, Fiscal Year 1950, 81st Cong., 1st Sess., 483 (1949).
104
At the fiscal 1952 hearing, the following exchange between Senator Young and Commission Myer gives some indication of what Congress had in mind with respect to Indian beneficiaries 'leaving the reservation':
105
'Senator Young. . . . Is it true that, if an Indian leaves North Dakota to go out to the State of Washington to work, and if he runs out of work and runs out of money out there, . . . he is eligible for relief only if he is back on the reservation?
106
'Mr. Myer. No. If he has established residence, he is an eligible as anyone. I do not know what the situation is in the State of Washington, but some States would require a 2-year residence; some do not.
107
'Senator Young. Why could not an Indian get relief back there as well as on the reservation?
108
'Mr. Myer. That presents a problem that is a matter of very basic policy. That is a matter of whether or not we are going to extend our services to Indians wherever they are and follow them around the United States as they leave the reservation with the type of service we are providing on the reservation.' Senate Hearings, Fiscal Year 1952, 82d Cong., 1st Sess., 372 (1951).
109
The following representation by Acting Commissioner Crow to the House Subcommittee in 1961 seems to indicate that general assistance, although tied to residence, is concerned with those Indians who have not been assimilated:
110
'The Bureau provides services and assists the states in furnishing services to Indians in the United States, including the natives of Alaska, in the fields of human and natural resources. This includes among other things programs of education, welfare, law and order, and the protection, development, and management of trust property. Services are, in general, limited to those arising out of our relationship regarding trust property and to those Indian people who reside on trust or restricted land. Funds are not included in these estimates for furnishing services to Indian people who have established themselves in the general society.' House Hearings, Fiscal Year 1962, 87th Cong., 1st Sess., 98 (1961).
111
In the fiscal 1964 hearings, Commissioner Nash made the following statements indicating that 'leaving the reservation' meant something far different from moving 15 miles to a nonurban Indian village while still maintaining close ties with the native reservation:
112
'The 1960 census showed 552,000 Indians, Eskimos and all others, all people defined as 'Indians' by the census. This would include those who have left reservations, gone to Los Angeles, San Francisco, Denver, Chicago, because they simply answered to the census taker, 'Yes, I am an Indian,' when they asked. We do not pretend to follow those people with services wherever they go.
113
'. . . We have a need for services for 380,000 people. This includes those who are living directly on the reservations, and those who are living very close, so that the way in which they live affects reservations programs.' House Hearings, Fiscal Year 1964, 88th Cong., 1st Sess., 889 (1963) (emphasis supplied).
114
See also Senate Hearings, Fiscal Year 1967, 89th Cong., 2d Sess., 295—300 (1966).
115
It apparently was not until 1971, four years after the appropriation for fiscal 1968, that anyone in Congress seriously questioned the BIA as to its precise policy concerning the 'off-on' dichotomy. The following dialogue between Senator Bible, long a member of the Senate Subcommittee, and Commissioner Bruce is instructive:
116
'Senator Bible. . . . What rule do you use to determine who is under your jurisdiction? Who is under the jurisdiction of the Bureau of Indian Affairs?
117
'Mr. Bruce. American Indians living on reservations, one-fourth degree blood or more living in the United States and Alaska.
118
'Senator Bible. One-fourth degree or more is one of the qualifications. They must also live on a reservation?
119
'Mr. Bruce. On or near.
120
'Senator Bible. What does the word 'near' mean?
121
'Mr. Bruce. It is very difficult to define. Near reservation would be a nearby community.
122
'Senator Bible. Well, half a mile, 1 mile, 5 miles, 100 yards? I am just trying to find out what your jurisdiction is. You have some responsibilities. Now what are you responsible for?
123
'Mr. Bruce. They vary and that is why it is difficult to answer specifically.
124
'Senator Bible. Well, give me the variables then. From 100 yards up to 10 miles?
125
'Is that defined in a statute anywhere? If I was to become the Commissioner of Indian Affairs, God forbid, how would I know who I had jurisdiction over? They must make some determination.
126
'Mr. Bruce. There is a definition for Oklahoma, and Alaska.
127
'Senator Bible. What do your lawyers tell you? . . . Can you go into the heart of Manhattan and find some Indian with one-fourth degree of Indian blood? Do you have jurisdiction over him in the heart of Manhattan? 'Mr. Bruce. No, sir; not over Manhattan.
128
'Senator Bible. Well, if not over Manhattan, how about New York State? How about Troy or Syracuse or Rochester?
129
'Senator Bible. . . . I am just trying to get the record straight to see what your responsibility is for Indians beyond the reservation. I think we are clear for the Indians on the reservation.'
130
At this point a recess was taken and the Commissioner was instructed to present the Committee with a more precise breakdown. The dialogue continued:
131
'Senator Bible. Do you have a breakdown for the Indians on the reservations and the number beyond Indian reservations? Can you give me figures on that?
132
'Mr. Bruce. Yes.
133
'Senator Bible. All right. What are they?
134
'Mr. Bruce. 477,000 on or near.
135
'Senator Bible. 477,000 on or near, and we still don't know what near is . . ..
136
'Now on or near. Beyond the 477,000 Indians on reservations or near a reservation, you have no further jurisdiction over Indians?
137
'Mr. Bruce. That is right.
138
'Senator Bible. That is your total responsibility?
139
'Mr. Bruce. That is our total responsibility.22
140
'Senator Bible. Of the money that is in this budget, the $408 million, how much of that will be expended within the reservations and how much beyond the reservations?
141
'Mr. Bruce. Our total budget is to be spent for the benefit of reservation Indians.
142
'Senator Bible. You are still tripping me up on that on or near business. I wish you would define that.'
143
(At this point there was an exchange as to whether BIA services extend to Indians living in Chicago and other urban areas.)
144
'Senator Bible. . . . Now how many urban Indians do we have?
145
'Mr. Bruce. We are talking about more than 250,000.
146
'Senator Bible. 250,000?
147
'Mr. Bruce. Yes.
148
'Senator Bible. That is over and above the 477,458?
149
'Mr. Bruce. That is right.
150
'Senator Bible. And these are the difficulties that you have encountered in also a rather lengthy resume of some of the services that you perform for them as to your responsibility for the 250,000.
151
'Where do you find these 250,000 nonreservation Indians?
152
'Mr. Bruce. Living in urban cities—Los Angeles, San Francisco, Chicago, St. Louis, Cleveland, Denver, Minneapolis.' Senate Hearings, Fiscal Year 1972, 92d Cong., 1st Sess., 751—756 (1971).23
153
Although most of these passages refer to the BIA's overall jurisdiction and not to the scope of the general assistance program, there is nothing to indicate that general assistance would not be made available for all within the service area. Unlike programs such as law enforcement and land projects, general assistance is not tied inherently or logically to the physical boundaries of the reservation. And programs, such as relocation, that explicitly extend beyond the reservation are not limited to 'on or near.' So it is difficult to ascertain precisely what relevance the 'on or near' category would have if it did not relate to programs such as general assistance. Nowhere in the hearings had the BIA ever indicated which non-land-oriented programs are available to those 'on' as opposed to those 'on or near,' and the only conclusion that is to be drawn from the representations to Congress is that those Indians who fit the 'on or near' category are eligible for all BIA services not directly tied to the physical boundaries.
154
Thus, the usual practice of the BIA has been to represent to Congress that 'on or near' is the equivalent of 'on' for purposes of welfare service eligibility, and that the successive budget requests were for a universe of Indians living 'on or near' and not just for those living directly 'on.' In addition, the BIA has continually treated persons 'off' the reservations as not 'on or near.' In the light of this rather consistent legislative history, it is understandable that the Secretary now argues that general assistance has not been available to those 'off' the reservation. We do not accept the argument, however, that the history indicates that general assistance was thereby restricted to those within the physical boundaries. To the contrary, that history clearly shows that Congress was led to believe that the programs were being made available to those unassimilated needy Indians living near the reservation as well as to those living 'on.' Certainly, a fair reading of the congressional proceedings up to and including the fiscal 1968 hearing can lead only to the conclusion that Indians situated near the reservation, such as the Ruizes, were covered by the authorization.24
155
D. Wholly aside from this appropriation subcommittee legislative history, the Secretary suggests that Congress, each year since 1952, appropriated only in accord with the 'on reservations' limitation contained in the BIA Manual. By legislating annually 'in the light of (this) clear provision,' the Secretary argues, Congress implicitly ratified the BIA policy. This argument, also, is not convincing. The limitation has not been published in the Federal Register or in the Code of Federal Regulations, and there is nothing in the legislative history to show that the Manual's provision was brought to the subcommittees' attention, let alone to the entire Congress. To assume that Congress was aware of this provision, contained only in an internally circulated BIA document, would be most strained. But, even assuming that Congress was fully cognizant of the Manual's limitation when the 1958 appropriation was made, the language of geographic restriction in the Manual must be considered in conjunction with the representations consistently made. There is no reason to assume that Congress did not equate the 'on reservations' language with the 'on or near' category that continuously was described as the service area. In the light of the Manual's particular inclusion of Oklahoma and Alaska off-reservation Indians, it would seem that this interpretation of the provision would have been the logical one for anyone in Congress, who in fact was aware of it, to accept.
V
156
A. Having found that the congressional appropriation was intended to cover welfare services at least to those Indians residing 'on or near' the reservation, it does not necessarily follow that the Secretary is without power to create reasonable classifications and eligibility requirements in order to allocate the limited funds available to him for this purpose. See Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972). Thus, if there were only enough funds appropriated to provide meaningfully for 10,000 needy Indian beneficiaries and the entire class of eligible beneficiaries numbered 20,000, it would be incumbent upon the BIA to develop an eligibility standard to deal with this problem, and the standard, if rational and proper, might leave some of the class otherwise encompassed by the appropriation without benefits. But in such a case the agency must, at a minimum, let the standard be generally known so as to assure that it is being applied consistently and so as to avoid both the reality and the appearance of arbitrary denial of benefits to potential beneficiaries.
157
Assuming, arguendo, that the Secretary rationally could limit the 'on or near' appropriation to include only the smaller class of Indians who lived directly 'on' the reservation plus those in Alaska and Oklahoma, the question that remains is whether this has been validly accomplished. The power of an administrative agency to administer a congressionally created and funded program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress. In the area of Indian affairs, the Executive has long been empowered to promulgate rules and policies,25 and the power has been given explicitly to the Secretary and his delegates at the BIA.26 This agency power to make rules that affect substantial individual rights and obligations carries with it the responsibility not only to remain consistent with the governing legislation, Federal Maritime Comm'n v. Seatrain Lines, Inc., 411 U.S. 726, 93 S.Ct. 1773, 36 L.Ed.2d 620 (1973); Dixon v. United States, 381 U.S. 68, 74, 85 S.Ct. 1301, 1305, 14 L.Ed.2d 223 (1965); Brannan v. Stark, 342 U.S. 451, 72 S.Ct. 433, 96 L.Ed. 497 (1952), but also to employ procedures that conform to the law. See NLRB v. Wyman-Gordon Co., 394 U.S. 759, 764, 89 S.Ct. 1426, 1428, 22 L.Ed.2d 709 (1969) (plurality opinion). No matter how rational or consistent with congressional intent a particular decision might be, the determination of eligibility cannot be made on an ad hoc basis by the dispenser of the funds.
158
The Administrative Procedure Act was adopted to provide, inter alia, that administrative policies affecting individual rights and obligations be promulgated pursuant to certain stated procedures so as to avoid the inherently arbitrary nature of unpublished ad hoc determinations. See generally S.Rep.No.752, 79th Cong., 1st Sess., 12—13 (1945); H.R.Rep.No.1980, 79th Cong., 2d Sess., 21—23 (1946). That Act states in pertinent part:
159
'Each Agency shall separately state and currently publish in the Federal Register for the guidance of the public—
160
(D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency.' 5 U.S.C. § 552(a)(1).
161
The sanction added in 1967 by Pub.L. 90—23, 81 Stat. 54, provides:
162
'Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published.' Ibid.27
163
In the instant case the BIA itself has recognized the necessity of formally publishing its substantive policies and has placed itself under the structure of the APA procedures. The 1968 introduction to the Manual reads:
164
'Code of Federal Regulations: Directives which relate to the public, including Indians, are published in the Federal Register and codified in 25 Code of Federal Regulations (25 CFR). These directives inform the public of privileges and benefits available; eligibility qualifications, requirements and procedures; and of appeal rights and procedures. They are published in accordance with rules and regulations issued by the Director of the Federal Register and the Administrative Procedure Act as amended. . . .
165
'Bureau of Indian Affairs Manual: Policies, procedures, and instructions which do not relate to the public but are required to govern the operations of the Bureau are published in the Bureau of Indian Affairs Manual.' 0 BIAM 1.2.
166
Unlike numerous other programs authorized by the Snyder Act and funded by the annual appropriations, the BIA has chosen not to publish its eligibility requirements for general assistance in the Federal Register or in the CFR. This continues to the present time.28 The only official manifestation of this alleged policy of restricting general assistance to those directly on the reservations is the material in the Manual which is, by BIA's own admission, solely an internal-operations brochure intended to cover policies that 'do not relate to the public.' Indeed, at oral argument the Government conceded that for this to be a 'real legislative rule,' itself endowed with the force of law, it should be published in the Federal Register. Tr. of Oral Arg. 20.
167
Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures. This is so even where the internal procedures are possibly more rigorous than otherwise would be required. Service v. Dulles, 354 U.S. 363, 388, 77 S.Ct. 1152, 1165, 1 L.Ed.2d 1403 (1957); Vitarelli v. Seaton, 359 U.S. 535, 539—540, 79 S.Ct. 968, 972—973, 3 L.Ed.2d 1012 (1959). The BIA, by its Manual, has declared that all directives that 'inform the public of privileges and benefits available' and of 'eligibility requirements' are among those to be published. The requirement that, in order to receive general assistance, an Indian must reside directly 'on' a reservation is clearly an important substantive policy that fits within this class of directives. Before the BIA may extinguish the entitlement of these otherwise eligible beneficiaries, it must comply, at a minimum, with its own internal procedures.
168
The Secretary has presented no reason why the requirements of the Administrative Procedure Act could not or should not have been met. Cf. SEC v. Chenery Corp., 332 U.S. 194, 202, 67 S.Ct. 1575, 1580, 91 L.Ed. 1995 (1947). The BIA itself has not attempted to defend its rule as a valid exercise of its 'legislative power,' but rather depends on the argument that Congress itself has not appropriated funds for Indians not directly on the reservations. The conscious choice of the Secretary not to treat this extremely significant eligibility requirement, affecting rights of needy Indians, as a legislative-type rule, renders it ineffective so far as extinguishing rights of those otherwise within the class of beneficiaries contemplated by Congress is concerned.
169
The overriding duty of our Federal Government to deal fairly with Indians wherever located has been recognized by this Court on many occasions. See, e.g., Seminole Nation v. United States, 316 U.S. 286, 296, 62 S.Ct. 1049, 1054, 86 L.Ed. 1480 (1942); Board of County Comm'rs v. Seber, 318 U.S. 705, 63 S.Ct. 920, 87 L.Ed. 1094 (1943). Particularly here, where the BIA has continually represented to Congress, when seeking funds, that Indians living near reservations are within the service area, it is essential that the legitimate expectation of these needy Indians not be extinguished by what amounts to an unpublished ad hoc determination of the agency that was not promulgated in accordance with its own procedures, to say nothing of those of the Administrative Procedure Act. The denial of benefits to these respondents under such circumstances is inconsistent with 'the distinctive obligation of trust incumbent upon the Government in its dealings with these dependent and sometimes exploited people.' Seminole Nation v. United States, 316 U.S., at 296, 62 S.Ct., at 1054, see Squire v. Capoeman, 351 U.S. 1, 76 S.Ct. 611, 100 L.Ed. 883 (1956). Before benefits may be denied to these otherwise entitled Indians, the BIA must first promulgate eligibility requirements according to established procedures.
170
B. Even assuming the lack of binding effect of the BIA policy, the Secretary argues that the residential restriction in the Manual is a longstanding interpretation of the Snyder Act by the agency best suited to do this, and that deference is due its interpretation. See Griggs v. Duke Power Co., 401 U.S. 424, 433 434, 91 S.Ct. 849, 854—855, 28 L.Ed.2d 158 (1971). The thrust of this argument is not that the regulation itself has created the 'on' and 'near' distinction, but that Congress has intended to provide general assistance only to those directly on reservations, and that the Manual's provision is simply an interpretation of congressional intent. As we have already noted, however, the BIA, through its own practices and representations, has led Congress to believe that these appropriations covered Indians 'on or near' the reservations, and it is too late now to argue that the words 'on reservations' in the Manual mean something different from 'on or near' when, in fact, the two have been continuously equated by the BIA to Congress.
171
We have recognized previously that the weight of an administrative interpretation will depend, among other things, upon 'its consistency with earlier and later pronouncements' of an agency. Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944). See generally 1 K. Davis, Administrative Law Treatise §§ 5.03—5.06 (1958 ed. and Supp. 1970). In this instance the BIA's somewhat inconsistent posture belies its present assertion. In order for an agency interpretation to be granted deference, it must be consistent with the congressional purpose. Espinoza v. Farah Mfg. Co., 414 U.S. 86, 94 S.Ct. 334, 38 L.Ed.2d 287 (1973); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969). It is evident to us that Congress did not itself intend to limit its authorization to only those Indians directly on, in contrast to those 'near,' the reservation, and that, therefore, the BIA's interpretation must fail.
172
We emphasize that our holding does not, as was suggested at oral argument, Tr. of Oral Arg. 3, 5, and in the Brief for Petitioner 2, make general assistance available to all Indians 'throughout the country.' Even respondents do not claim this much. Brief for Respondents 23; Tr. of Oral Arg.28. The appropriation, as we see it, was for Indians 'on or near' the reservation. This is broad enough, we hold, to include the Ruizes who live where they found employment in an Indian community only a few miles from their reservation, who maintain their close economic and social ties with that reservation, and who are unassimilated. The parameter of their class will be determined, to the extent necessary, by the District Court on remand of the case. Whether other persons qualify for general assistance will be left to cases that arise in the future.
173
In view of our disposition of the statutory issue, we do not reach the respondents' constitutional arguments. We intimate no views as to them.
174
The judgment of the Court of Appeals is affirmed and the case is remanded for further proceedings consistent with this opinion.
175
It is so ordered.
176
Affirmed and remanded.
1
The Papago Indian Reservation was established by Executive Orders Nos. 2300 and 2524, S.Doc.No.53, 70th Cong., 1st Sess., 1008 and 1005, promulgated January 14, 1916, and February 1, 1917, respectively. Later adjustments therein appear to have been effected by the Act of June 28, 1926, 44 Stat. 775; by the Act of Feb. 21, 1931, 46 Stat. 1202; by the Act of July 28, 1937, 50 Stat. 536, 25 U.S.C. §§ 463a—463c; and by the Act of June 13, 1939, 53 Stat. 819. See also the Act of June 18, 1934, § 3, 48 Stat. 984; the Act of May 27, 1955, 69 Stat. 67; and 25 U.S.C. § 463. See Papago Tribe v. United States, 19 Ind.Cl.Comm'n 394, 433 434 (1968).
2
Ajo is located within the borders of the Papago aboriginal tribal land. The Indian Claims Commission has found that this land was taken from the Papagos by the United States. Papago Tribe v. United States. Id., at 422—423, 426.
3
The following material in the record indicates the close ties retained by the Ajo Indians with the Papago Reservation:
'(M)any of the Papagos (in the Indian Village at Ajo) still maintain and frequently visit homes on the reservation. Many still have cattle there and some even farm there. During the summer many wives and children spend long periods of time living on the reservation. Many of the miners attend reservation dances and other ceremonies, driving to the reservation after work ends in the afternoon and returning early the next morning to Ajo. Some miners still vote in the district elections on the reservation and many seek medical care there. Through the years many of the miners who have either been fired or laid off have returned to the reservation. Thus even some of the most 'acculturated' Ajo Indians still maintain very close ties to the reservation. . . .
'During the prolonged strike of copper miners these ties were frequently strengthened and even extended. During this time of crisis, the members of the Indian Community often used the reservation as a place of refuge and occasionally as a source of food, money, and medical care.' Affidavit of Larry R. Stucki, submitted in support of the respondents' motion for summary judgment. App. 84, 86—87.
As to the Ruizes in particular, it is said:
'(T)he whole family returned to South Komelik (on the reservation) during the whole month of August, 1967, and . . . they returned to South Komelik once or twice a month during the remainder of the strike, staying in Ajo only because one child, Mary Ann, was still attending school there.
'Ramon Ruiz . . . still maintained his home in South Komelik and . . . he planned to return there in 4 years when he retires. He had never thought of Ajo as being his real home. His poor command of the English language, in spite of having lived in Ajo for 28 years, tended to confirm this. His son did much of the talking and interpreted for his father frequently . . .. (W)hen the Ruiz(es') other son was killed in military service in Viet Nam, funeral services were held by the family in the church in Sells (on the reservation).
'. . . The siren song of the reservation, in most cases, prevents the complete severance of the umbilical cord to the homeland of these people.' Id., at 87.
4
Mr. Ruiz so stated at the hearing referred to, infra, before the BIA Area Director. App. 11, 16. Mrs. Ruiz at the same hearing stated that she worked about eight hours a week for $1 an hour. App. 19.
5
See Ariz.Rev.Stat.Ann. § 46—233.A.4 (Supp. 1971—1972) reflecting the amendment by Laws 1962, c. 117, § 23. See also Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971).
Striking workers, however, are eligible for the State's Surplus Commodities Distribution Program. Mr. Ruiz was certified under this program for two successive 90-day periods. App. 49—50.
6
The Manual provides in pertinent part:
'3.1 General Assistance.
'.1 Purpose. The purpose of the general assistance program is to provide necessary financial assistance to needy Indian families and persons living on reservations under the jurisdiction of this Bureau and in jurisdictions under the Bureau of Indian Affairs in Alaska and Oklahoma.
'.4 Eligibility Conditions.
'A. Residence. Eligibility for general assistance is limited to Indians living on reservations and in jurisdictions under the Bureau of Indian Affairs in Alaska and Oklahoma.'
7
The Snyder Act reads in full as follows:
'The Bureau of Indian Affairs, under the supervision of the Secretary of the Interior, shall direct, supervise, and expend such moneys
as Congress may from time to time appropriate, for the benefit, care, and assistance of the Indians throughout the United States for the following purposes:
'General support and civilization, including education.
'For relief of distress and conservation of health.
'For industrial assistance and advancement and general administration of Indian property.
'For extension, improvement, operation, and maintenance of existing Indian irrigation systems and for development of water supplies.
'For the enlargement, extension, improvement and repair of the buildings and grounds of existing plants and projects.
'For the employment of inspectors, supervisors, superintendents, clerks, field matrons, farmers, physicians, Indian police, Indian judges, and other employees.
'For the suppression of traffic in intoxicating liquor and deleterious drugs.
'For the purchase of horse-drawn and motor-propelled passenger-carrying vehicles for official use.
'And for general and incidental expenses in connection with the administration of Indian affairs.'
8
See, for example, the Appropriations Act for fiscal 1967, Pul.L. 89—435, 80 Stat. 170, 171 (1966); the Act for fiscal 1966, Pub.L. 89—52, 79 Stat. 174, 175 (1965); and the Act for fiscal 1965, Pub.L. 88—356, 78 Stat. 273, 274 (1964).
9
See the Appropriations Act for fiscal 1969, Pul.L. 90—425, 82 Stat. 425, 427 (1968); the Act for fiscal 1970, Pul.L. 91—98, 83 Stat. 147, 148 (1969); the Act for fiscal 1971, Pul.L. 91—361, 84 Stat. 669, 670 (1970); the Act for fiscal 1972, Pul.L. 92—76, 85 Stat. 229, 230 (1971); the Act for fiscal 1973, Pub.L. 92—369, 86 Stat. 508, 509 (1972); and the Act for fiscal 1974, Pub.L. 93 120, 87 Stat. 429, 430—431 (1973).
10
A critic of the Act (who also represented the Ruizes in the administrative proceedings) describes it as follows: 'The Snyder Act is a familiar and somewhat distressing occurrence in the history of Indian affairs. As in other instances, Congress enacted a very general measure and left the rest up to the Secretary of the Interior and the BIA. The result is that the structure of the welfare system in the BIA's own creation. The regulatory scheme is contained in the departmental manual which remains inaccessible except to a few social workers and persistent attorneys.' Wolf, Needed: A System of Income Maintenance for Indians, 10 Ariz.L.Rev. 597, 607—608 (1968) (footnote omitted).
11
See, for example, 42 U.S.C. § 1352(b)(2). An Indian thus is entitled to social security and state welfare benefits equally with other citizens of the State. State ex rel. Williams v. Kamp, 106 Mont. 444, 449, 78 P.2d 585, 587 (1938); U.S. Dept. of the Interior, Federal Indian Law 287, 516 (1958); Wolf, n. 10, supra, at 599.
12
Hearings on the Department of the Interior and/or related agencies appropriations before subcommittees of the Senate or House Committee on Appropriations will be hereinafter merely identified as to branch of Congress, fiscal year, and number and session of Congress.
12a
The hearings for the preceding four years disclose identically worded requests. House Hearings, Fiscal Year 1967, 89th Cong., 2d Sess., 255 (1966), and Senate Hearings, Fiscal Year 1967, 89th Cong., 2d Sess., 267 (1966); House Hearings, Fiscal Year 1966, 89th Cong., 1st Sess., 747—748 (1965), and Senate Hearings, Fiscal Year 1966, 89th Cong., 1st Sess., 653 (1965); House Hearings, Fiscal Year 1965, 88th Cong., 2d Sess., 775 (1964); Senate Hearings, Fiscal Year 1965, 88th Cong., 2d Sess., 148 (1964); House Hearings, Fiscal Year 1964, 88th Cong., 1st Sess., 844 (1963), and Senate Hearings, Fiscal Year 1964, 88th Cong., 1st Sess., 70 (1963).
Appropriations, 89th Cong., 2d Sess., 255, and S. Subcommittee of the Committee on Appropriations, 89th Cong., 2d Sess., 267 (fiscal 1967); Hearings, H. Subcommittee of the Committee on Appropriations, 89th Cong., 1st Sess., 747—748, and S. Subcommittee of the Committee on Appropriations, 89th Cong., 2d Sess., 653 (fiscal 1966); Hearings, H. Subcommittee of the Committee on Appropriations, 88th Cong., 2d Sess., 775, and S. Subcommittee of the Committee on Appropriations, 88th Cong., 2d Sess., 148 (fiscal 1965); Hearings, H. Subcommittee of the Committee on Appropriations, 88th Cong., 1st Sess., 844, and S. Subcommittee of the Committee on Appropriations, 88th Cong., 1st Sess., 70 (fiscal 1964).
13
The BIA's limitation in practice surfaced at many hearings. See, for example, the testimony of Assistant Commissioner Gifford in 1959:
'I believe the question comes up concerning Indians living off the reservation and who are in need not for these categories but for other types of assistance. In many cases the States and counties say that those Indians ought to be the responsibility of the Bureau of Indian Affairs; that they do not have sufficient funds to take care of them. We have never included in our request for welfare appropriations funds to take care of the needs of those Indians living off the reservation.' House Hearings, Fiscal Year 1960, 86th Cong., 1st Sess., 801 (1959) (emphasis supplied). See also Senate Hearings, Fiscal Year 1959, 85th Cong., 2d Sess., 291 (1958); Senate Hearings, Fiscal Year 1952, 82d Cong., 1st Sess., 372 (1951); Senate Hearings, Fiscal Year 1950, 81st Cong., 1st Sess., 592 (1949); Senate Hearings, Fiscal Year 1948, 80th Cong., 1st Sess., 598—599 (1947); Senate Hearings, Fiscal Year 1942, 77th Cong., 1st Sess., 160—162, 465—466 (1941).
14
The bills referred to were H.R.9621, 87th Cong., 2d Sess. (1962), and H.R.6279, 88th Cong., 1st Sess. (1963). Each provided that benefits would be available to all Indians in certain named States, and that the Government would reimburse the State for a percentage of the latter's contribution under the several categorical assistance programs. The failure of these bills can be ascribed just as easily, of course, to the rather arbitrary selection of States, to the specific percentage designated, or to a reluctance to provide for all Indians (rural or urban, assimilated or nonassimilated), as to the increase over the lesser group then being serviced. See United States v. Wise, 370 U.S. 405, 411, 82 S.Ct. 1354, 1358, 8 L.Ed.2d 500 (1962); Order of Railway Conductors v. Swan, 329 U.S. 520, 529, 67 S.Ct. 405, 409, 91 L.Ed. 471 (1947).
15
See, for example, Senate Hearings, Fiscal Year 1967, 89th Cong., 2d Sess., 302 (1966) (statement of Commissioner Nash); Senate Hearings, Fiscal Year 1959, 85th Cong., 2d Sess., 293 (1958) (statement of Duputy Commissioner Greenwood).
16
House Hearings, Fiscal Year 1961, 86th Cong., 2d Sess., 508—510 (1960) (statement of Commissioner Emmons); Tr. of Oral Arg. 15.
17
Senate Hearings, Fiscal Year 1967, 89th Cong., 2d Sess., 298—301 (1966).
18
Identical language, apart from the population figures, appeared in later BIA budget requests. See, for example, House Hearings, Fiscal Year 1962, 87th Cong., 1st Sess., 116 (1961).
19
The next year the Commissioner made the following statement as to the scope of the BIA service area:
'We have a need for services for 380,000 people. This includes those who are living directly on the reservations, and those who are living very close, so that the way in which they live affects reservations programs. They move back and forth, et cetera. We call this our 'Federal service to Indian population' and it is larger this year than last.' House Hearings, Fiscal Year 1964, 88th Cong., 1st Sess., 889 (1963) (emphasis supplied).
20
In the formal budget presented for fiscal 1966 the Commissioner introduced his statement with the following representation:
'We are a modern service bureau, serving about 380,000 Indian persons and Alaska natives who live on or near reservations in 25 States. The services we perform are basically of three types.' Senate Hearings, Fiscal Year 1966, 89th Cong., 1st Sess., 637 (1965) (emphasis supplied).
The third type there described consisted of welfare programs.
21
The following year the Commissioner introduced his budget request with this statement:
'We are a modern service Bureau, serving as many as 400,000 Indians and Alaskan natives who live on or near reservations people who find themselves isolated from the mainstream of American life—existing in poverty. In keeping with the general governmental policy of attacking the causes of poverty and the lack of salable skills, the objective of the Bureau of Indian Affairs is to coordinate Federal Programs and programs of State and local agencies which will improve educational, economic, social and political opportunities of Indians.' House Hearings, Fiscal Year 1969, 90th Cong., 2d Sess., 575 (1968); Senate Hearings, Fiscal Year 1969, 90th Cong., 2d Sess., 368 (1968) (emphasis supplied).
22
The following additional information was supplied:
'Population data
'The statistical figure given for Indians living on and adjacent to reservations is based upon residence, and includes the following groups. The figures are for March 1970;
'(a) 306,900 Indians resident within Federal reservation boundaries, excluding Alaska and Oklahoma, which are discussed below.
'(b) 32,600 Indians resident nearby, who may receive services because of their proximity and mobility. For example, Indians working in nearby towns frequently maintain close contact with reservation people and affairs; they may visit the reservation or return temporarily or permanently. Other Indians live on public domain allotments outside the reservation boundaries. The distance of such places is not spelled out, but depends on the extent of contact. Distant members of the tribe are not counted, although they may be carried on the tribal roll or the tribal census. See also comments below on the Navajo area.
'(c) 81,200 Indians resident in former reservation areas of Oklahoma. (This includes Osage, which has some attributes of a reservation.)
'(d) 56,800 Alaska natives resident in Alaska. This includes Aleuts and Eskimos as well as Indians.' Senate Hearings, Fiscal Year 1972, 92d Cong., 1st Sess., 752—753 (1971).
'See n. 3, supra.
23
Beginning with the fiscal 1973 hearings, there appeared a wide outpouring for BIA assistance for urban Indians. In the Appropriations Committee Report to the Senate for fiscal 1973, submitted by Senator Bible, the following language appears, indicating the Senate's earlier understanding that although the BIA program did not cover urban Indians, it did cover those 'on or near' the reservations:
'The Committee directs that the Secretary prepare a plan to assure Bureau of Indian Affairs type services to all Indians in the United States—rather than just to those living 'on or near reservations." S.Rep.No. 92—921, p. 6 (1972).
24
This conception as to the BIA's jurisdiction seems not to have been limited to Congress. Curiously enough, in the application, filed with this Court, for an extension of time within which to file the petition for certiorari in this case, the Solicitor General thus described the litigation:
'The court of appeals has held in this case that Indian welfare benefits administered by the Department of the Interior under the Snyder Act of 1921, 25 U.S.C. § 13, must be provided not only to Indians living on or near reservations, as has been the practice of the Department of the Interior for many years, but must also be made available to Indians residing anywhere in the country' (emphasis supplied).
25
'The President may prescribe such regulations as he may think fit for carrying into effect the various provisions of any act relating to Indian affairs, and for the settlement of the accounts of Indian affairs.' 25 U.S.C. § 9. This provision relates back to the Act of June 30, 1834, § 17, 4 Stat. 738.
26
'The Commissioner of Indian Affairs shall, under the direction of the Secretary of the Interior, and agreeably to such regulations as the President may prescribe, have the management of all Indian affairs and of all matters arising out of Indian relations.' 25 U.S.C. § 2. This relates back to the Act of July 9, 1832, § 1, 4 Stat. 564.
The Snyder Act provides:
'The Bureau of Indian Affairs, under the supervision of the Secretary of the Interior, shall direct, supervise, and expend such moneys as Congress may from time to time appropriate . . ..' 25 U.S.C. § 13.
27
The House report accompanying this provision stated:
'An added incentive for agencies to publish the necessary details about their official activities in the Federal Register is the provision that no person shall be 'adversely affected' by material required to be published—or incorporated by reference—in the Federal Register but not so published.' H.R.Rep.No.1497, 89th Cong., 2d Sess., 7 (1966), U.S.Code Cong. & Admin.News 1966, p. 2424. See S.Rep.No.813, 89th Cong., 1st Sess., 6 (1965); S.Rep.No.1219, 88th Cong., 2d Sess., 12 (1964).
28
Title 25 CFR (1973), on the subject of 'Indians,' contains regulations and sets forth eligibility requirements for law-and-order programs (pt. 11); care of Indian children in contract schools (pt. 22); federal schools for Indians (pt. 31); administration of educational loans, grants and other assistance for higher education (pt. 32); enrollment of Indians in public schools (pt. 33); administration of a program of vocational training for adult Indians (pt. 34); and general credit to Indians (pt. 91). The only reference to welfare activities is Subchapter D, entitled 'Social Welfare' and comprising pts. 21 and 22. Part 21 relates to the program under which the Commissioner 'may negotiate with State, territory, county or other Federal welfare agencies for such agencies to provide welfare services as contemplated' by 25 U.S.C. § 452. The regulations state that the program applies to 'Indians residing within a particular State within the exterior boundaries of Indian reservations under the jurisdiction of the Bureau of Indian Affairs or on trust or restricted lands under the jurisdiction of the Bureau of Indian Affairs.' 25 CFR § 21.1 (1973). But see 25 U.S.C. § 309 and 25 CFR § 34.3, where vocational training for adult Indians is also made available 'to additional Indians who reside near reservations in the discretion of the Secretary of the Interior when the failure to provide the services would have a direct effect upon Bureau programs within the reservation boundaries' (emphasis supplied). See also 25 CFR § 31.1.
The phrase 'within the exterior boundaries of Indian reservations under the jurisdiction of the Bureau of Indian Affairs,' when read in conjunction with the BIA's declared jurisdiction before Congress, would seem to include Indians living 'near' the reservations. In any event, the cited regulations do not deal with the general assistance program. There is nothing in the Code indicating that a general assistance program exists, to say nothing of the absence of eligibility criteria.
| 12
|
415 U.S. 130
94 S.Ct. 970
39 L.Ed.2d 214
Mallie LEWIS, Appellant,v.CITY OF NEW ORLEANS.
No. 72—6156.
Argued Dec. 10, 1973.
Decided Feb. 20, 1974.
Syllabus
On remand from this Court for reconsideration in light of Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408, appellant's conviction of violating a New Orleans ordinance making it unlawful 'to curse or revile or to use obscene or opprobrious language toward or with reference to' a police officer while in performance of his duties was again sustained by the Louisiana Supreme Court, which did not narrow or refine the words of the ordinance although stating that it was limited to 'fighting words' uttered to specific persons at a specific time. Held: The ordinance, as thus construed, is susceptible of application to protected speech, and therefore is overbroad in violation of the First and Fourteenth Amendments and facially invalid. The ordinance plainly has a broader sweep than the constitutional definition of 'fighting words' as being words 'which by their very utterance inflict injury or tend to incite an immediate breach of the peace,' Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031; Gooding v. Wilson, supra, 405 U.S., at 523, 92 S.Ct., at 1106, since, at the least, 'opprobrious language' embraces words that do not fall under that definition, the word 'opprobrious' embracing words 'conveying or intended to convey disgrace,' id., at 525, 92 S.Ct., at 1107. It is immaterial whether the words appellant used might be punishable under a properly limited ordinance. Pp. 131-134.
263 La. 809, 269 So.2d 450, reversed and remanded.
John Wilson Reed, New Orleans, La., for appellant.
Servando C. Garcia, III, New Orleans, La., for appellee.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Upon the Louisiana Supreme Court's reconsideration of this case in light of Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972), pursuant to our remand, 408 U.S. 913, 92 S.Ct. 2499, 33 L.Ed.2d 321 (1972), that court, three judges dissenting, again sustained appellant's conviction upon a charge of addressing spoken words to a New Orleans police officer in violation of New Orleans Ordinance 828 M.C.S. § 49-7, 263 La. 809, 269 So.2d 450 (1972).1 We noted probable jurisdiction, 412 U.S. 926, 93 S.Ct. 2756, 33 L.Ed.2d 153 (1973), and we reverse. We hold that § 49-7, as construed by the Louisiana Supreme Court, is overbroad in violation of the First and Fourteenth Amendments and is therefore facially invalid. Section 49-7 provides:
2
'It shall be unlawful and a breach of the peace for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty.'
3
The Louisiana Supreme Court on remand did not refine or narrow these words, but took them as they stood: 'The proscriptions are narrow and specific—wantonly cursing, reviling, and using obscene or opprobrious language.' 263 La., at 827, 269 So.2d at 456. Nonetheless, that court took the position that, as written, 'it (§ 49-7) is narrowed to 'fighting words' uttered to specific persons at a specific time . . ..' Id., at 826, 269 So.2d, at 456. But § 49-7 plainly has a broader sweep than the constitutional definition of 'fighting words' announced in Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942), and reaffirmed in Gooding v. Wilson, supra, 405 U.S., at 522, 92 S.Ct., at 1106, namely, 'those (words) which by their very utterance inflict injury or tend to incite an immediate breach of the peace.' That the Louisiana Supreme Court contemplated a broader reach of the ordinance is evident from its emphasis upon the city's justification for regulation of 'the conduct of any person towards a member of the city police while in the actual performance of his duty . . .. Permitting the cursing or reviling of or using obscene or opprobrious words to a police officer while in the actual performance of his duty would be unreasonable and basically incompatible with the officer's activities and the place where such activities are performed.' 263 La., at 825, 269 So.2d, at 456.2
4
At the least, the proscription of the use of 'opprobrious language,' embraces words that do not 'by their very utterance inflict injury or tend to incite an immediate breach of the peace.' That was our conclusion as to the word 'opprobrious' in the Georgia statute held unconstitutional in Gooding v. Wilson, where we found that the common dictionary definition of that term embraced words 'conveying or intended to convey disgrace' and therefore that the term was not limited to words which 'by their very utterance inflict injury or tend to incite an immediate breach of the peace.' 405 U.S., at 525, 92 S.Ct., at 1107. The same conclusion is compelled as to the reach of the term in § 49-7, for we find nothing in the opinion of the Louisiana Supreme Court that makes any meaningful attempt to limit or properly define—as limited by Chaplinsky and Gooding—'opprobrious,' or indeed any other term in § 49-7. In that circumstance it is immaterial whether the words appellant used might be punishable under a properly limited statute or ordinance. We reaffirm our holding in Gooding v. Wilson, supra, at 520-521, 92 S.Ct., at 1105, in this respect:
5
'It matters not that the words (appellant) used might have been constitutionally prohibited under a narrowly and precisely drawn statute. At least when statutes regulate or proscribe speech and when "no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution," . . . the transcendent value to all society of constitutionally protected expression is deemed to justify allowing 'attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity' . . .. This is deemed necessary because persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions provided by a statute susceptible of application to protected expression.'
6
In sum, § 49-7 punishes only spoken words. It can therefore withstand appellant's attack upon its facial constitutionality only if, as authoritatively construed by the Louisiana Supreme Court, it is not susceptible of application to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments. Cohen v. California, 403 U.S. 15, 18-22, 91 S.Ct. 1780, 1784, 1787, 29 L.Ed.2d 284 (1971); Terminiello v. Chicago, 337 U.S. 1, 4-5, 69 S.Ct. 894, 895-896, 93 L.Ed. 1131 (1949); Gooding v. Wilson, supra, 405 U.S., at 520, 92 S.Ct., at 1105. Since § 49-7, as construed by the Louisiana Supreme Court, is susceptible of application to protected speech, the section is constitutionally overbroad and therefore is facially invalid.
7
The judgment of the Louisiana Supreme Court is reversed and the case is remanded for further proceedings not inconsistent with this opinion.
8
Reversed and remanded.
9
Mr. Justice POWELL, concurring in the result.
10
I previously concurred in the remand of this case, 408 U.S. 913, 92 S.Ct. 2499, 33 L.Ed.2d 321 (1972), but only for reconsideration in light of Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 82 L.Ed. 1031 (1942). Pursuant to the remand order, we now have the Louisiana Supreme Court's decision construing New Orleans Ordinance 828 M.C.S. § 49-7. I agree with the Court's conclusion today that the Louisiana Supreme Court 'did not refine or narrow these words (of the ordinance), but took them as they stood.' Ante at 132. In conclusory language, that court construed the ordinance to create a per se rule. Whenever 'obscene or opprobrious language' is used 'toward or with reference to any member of the city police while in the actual performance of his duty,' such language constitutes 'fighting words' and hence a violation without regard to the facts and circumstances of a particular case. As so construed, the ordinance is facially overbroad.
11
Quite apart from the ambiguity inherent in the term 'oppobrious,' words may or may not be 'fighting words,' depending upon the circumstances of their utterance. It is unlikely, for example, that the words said to have been used here would have precipitated a physical confrontation between the middle-aged woman who spoke them and the police officer in whose presence they were uttered. The words may well have conveyed anger and frustration without provoking a violent reaction from the officer. Moreover, as noted in my previous concurrence, a properly trained officer may reasonably be expected to 'exercise a higher degree of restraint' than the average citizen, and thus be less likely to respond belligerently to 'fighting words.' 408 U.S. 913, 92 S.Ct. 2499. See Model Penal Code § 250.1, Comment 4 (Tent. Draft No. 13, 1961).
12
This ordinance, as construed by the Louisiana Supreme Court, confers on police a virtually unrestrained power to arrest and charge persons with a violation. Many arrests are made in 'one-on-one' situations where the only witnesses are the arresting officer and the person charged. All that is required for conviction is that the court accept the testimony of the officer that obscene or opprobrious language had been used toward him while in performance of his duties.* Indeed, the language need not be addressed directly to the officer since the ordinance is violated even if the objectionable language is used only 'with reference to any member of the city police.'
13
Contrary to the city's argument, it is unlikely that limiting the ordinance's application to genuine 'fighting words' would be incompatible with the full and adequate performance of an officer's duties. In arrests for the more common street crimes (i.e., robbery, assault, disorderly conduct, resisting arrest), it is usually unnecessary that the person also be charged with the less serious offense of addressing obscene words to the officer. The present type of ordinance tends to be invoked only where there is no other valid basis for arresting an objectionable or suspicious person. The opportunity for abuse, especially where a statute has received a virtually open-ended interpretation, is self-evident.
14
I therefore concur in the result.
15
Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, dissenting.
Mr. Justice Holmes aptly observed:
16
'All rights tend to declare themselves absolute to their logical extreme.' Hudson County Water Co. v. McCarter, 209 U.S. 349, 355, 28 S.Ct. 529, 531, 52 L.Ed. 828 (1908).
17
The extreme to which we allow ourselves to be manipulated by theory extended to the end of logic is exemplified by the Court's opinion in this case and in its blood brother of two years ago, Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). The 'overbreadth' and 'vagueness' doctrines, as they are now being applied by the Court, quietly and steadily have worked their way into First Amendment parlance much as substantive due process did for the 'old Court' of the 20's and 30's. These doctrines are being invoked indiscriminately without regard to the nature of the speech in question, the possible effect the statute or ordinance has upon such speech, the importance of the speech in relation to the exposition of ideas, or the purported or asserted community interest in preventing that speech. And it is no happenstance that in each case the facts are relegated to footnote status, conveniently distant and in a less disturbing focus. This is the compulsion of a doctrine that reduces our function to parsing words in the context of imaginary events. The result is that we are not merely applying constitutional limitations, as was intended by the Framers, and, indeed, as the history of our constitutional adjudication indicates, but are invalidating state statutes in wholesale lots because they 'conceivably might apply to others who might utter other words.' Gooding v. Wilson, 405 U.S., at 535, 92 S.Ct., at 1112 (dissenting opinion).
18
The application of this elliptical analysis to Gooding and to this case is instructive. In Gooding, officers were attempting to restore public access to a building when they were met by physical resistance and loud, personal abuse: "White son of a bitch, I'll kill you," "You son of a bitch, I'll choke you to death," and "You son of a bitch, if you ever put your hands on me again, I'll cut you all to pieces." The defendant was convicted under a Georgia statute which provided that any person 'who shall, without provocation, use to or of another, and in his presence . . . opprobrious words or abusive language, tending to cause a breach of the peace . . . shall be guilty of a misdemeanor.' The Court seized upon dictionary definitions and language of Georgia court decisions from the turn of the century. It concluded that the statute swept beyond the bounds of the 'fighting words' limitation of Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 82 L.Ed. 1031 (1942), despite the fact that the language of the statute virtually tracked the language used by the Chaplinsky Court to describe words properly subject to some regulation, and without any demonstration in reason how 'the narrow language of the Georgia statute has any significant potential for sweeping application to suppress or deter important protected speech.' 405 U.S., at 529, 92 S.Ct., at 1109 (Burger, C. J., dissenting).
19
In the present case, appellant and her husband were stopped by a police officer. Appellant's and the officer's respective versions of the incident are conflicting, but the municipal judge credited the officer's testimony. That finding, of course, on this record, is binding upon us. The officer testified that while he was waiting for appellant's husband to produce his driver's license, appellant came out of their truck 'and started yelling and screaming that I had her son or did something to her son and she wanted to know where he was. I said 'lady I don't have your son and I am not talking to you. I am talking to this man and you can go sit in the truck.' She said 'you god damn m. f. police—I am going to Giarrusso (the police superintendent) to see about this.' I said 'lady you are going to jail—you are under arrest.' She said 'you're not taking me to jail' and she started to get back in the cab of the truck and I caught up to her while she was getting in the cab. I attempted to take her and she started fighting and swinging her arms.' App. 8. A fight ensued and appellant was subdued with the help of another officer. Appellant was charged with resisting arrest and with wantonly reviling the police. She was convicted on both charges but appealed only the conviction of wantonly reviling the police.
20
We remanded this case to the Supreme Court of Louisiana to construe the meaning of the ordinance.1 408 U.S. 913, 92 S.Ct. 2499, 33 L.Ed.2d 321 (1972). That court, after reviewing the applicable precedents, including Chaplinsky and Gooding, specifically construed the ordinance as 'not offensive to protected speech; it is narrowed to 'fighting words' uttered to specific persons at a specific time; it is not overbroad and is therefore not unconstitutional. . . . Any reasonable man knows what it is to wantonly curse or revile . . .. The Section definitely does not sweep within its proscriptions all forms of abusive and derogatory speech.' 263 La. 809, 826-827, 269 So.2d 450, 456 (emphasis in original).
21
Again, setting the facts to one side, this Court selectively dissents the wording of the Louisiana Supreme Court opinion, eyes the word "opprobrious," refers us to its treatment of "opprobrious" in Gooding, observes that '§ 49-7 plainly has a broader sweep than the constitutional definition of 'fighting words' announced in Chaplinsky,' ante, at 132, and concludes that 'we find nothing in the opinion of the Louisiana Supreme Court that makes any meaningful attempt to limit or properly define—as limited by Chaplinsky and Gooding—' opprobrious,' or indeed any other term in § 49-7.' Ante, at 133. And, again, the ordinance is struck down with no discussion of whether it might significantly affect protected speech, and no reasons why the State's interest in public peace and the harmonious administration of its laws should not prevail over a lone, individual claim that the ordinance is unconstitutional as applied to others. I cannot reconcile what the Court says with what the Louisiana Supreme Court has said. I believe my Brethren of the majority merely seek a result here, just as I was convinced they sought a result in Gooding.
22
Mr. Justice Jackson warned of the dangers of this kind of constitutional analysis:
23
'But I did not suppose our function was that of a council of revision. The issue before us is whether what has been done has deprived this appellant of a constitutional right. It is the law as applied that we review, not the abstract, academic questions which it might raise in some more doubtful case.' Saia v. New York, 334 U.S. 558, 571, 68 S.Ct. 1148, 1155, 92 L.Ed. 1574 (1948) (dissenting opinion).
24
Overbreadth and vagueness in the field of speech, as the present case and Gooding indicate, have become result-oriented rubberstamps attuned to the easy and imagined self-assurance that 'one man's vulgarity is another's lyric.' Cohen v. California, 403 U.S. 15, 25, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284 (1971). The danger is apparent. Inherent in the use of these doctrines and this standard is a judicial-legislative confrontation. The more frequent our intervention, which of late has been unrestrained, the more we usurp the prerogative of democratic government. Instead of applying constitutional limitations, we do become a 'council of revision.' If the Court adheres to its present course, no state statute or city ordinance will be acceptable unless it parrots the wording of our opinions.
25
This surely is not what the Framers intended and this is not our constitutional function. I would adhere to what Mr. Justice Murphy, a known champion of First Amendment freedoms, wrote for a unanimous bench in Chaplinsky, 315 U.S., at 571-572, 62 S.Ct., at 769:
26
'Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. 'Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.' Cantwell v. Connecticut, 310 U.S. 296, 309—310, 60 S.Ct. 900, 84 L.Ed. 1213.' (Footnotes omitted.)
27
The speech uttered by Mrs. Lewis to the arresting officer 'plainly' was profane, 'plainly' it was insulting, and 'plainly' it was fighting. It therefore is within the reach of the ordinance, as narrowed by Louisiana's highest court. The ordinance, moreover, poses no significant threat to protected speech. And it reflects a legitimate community interest in the harmonious administration of its laws. Police officers in this day perhaps must be thick skinned and prepared for abuse, but a wanton, high-velocity, verbal attack often is but a step away from violence or passioned reaction, no matter how self-disciplined the individuals involved. In the interest of the arrested person who could become the victim of police overbearance, and in the interest of the officer, who must anticipate violence and who, like the rest of us, is fallibly human, legislatures have enacted laws of the kind challenged in this case to serve a legitimate social purpose and to restrict only speech that is 'of such slight social value as a step to truth that any benefit that may be derived from (it) is clearly outweighed by the social interest in order and morality.' Chaplinsky, supra, at 572, 62 S.Ct., at 769.2 In such circumstances we should stay our hand and not yield to the absolutes of doctrine.
28
I see no alternative to our affirmance, and I therefore dissent.
1
On January 3, 1970, appellant and her husband were in their pickup truck following a police patrol car that was taking their young son to a police station after his arrest. An Officer Berner in another patrol car intercepted and stopped the truck. Berner left his car and according to his testimony, asked the husband for his driver's license. Words were exchanged between Berner and appellant and Berner arrested appellant on a charge of violating § 49—7. The parties' respective versions of the words exchanged were in sharp contradiction. Berner testified that appellant left the truck and 'started yelling and screaming that I had her son or did something to her son and she wanted to know where he was. . . . She said, 'you god damn m.f. police—I am going to (the Superintendent of Police) about this." App. 8. Appellant's husband testified that Berner's first words were "let me see your god damned license. I'll show you that you can't follow the police all over the streets.' . . . After (appellant) got out and said 'Officer I want to find out about my son.' He said 'you get in the car woman. Get your black ass in the god damned car or I will show you something." App. 27. Appellant denied that she had used 'any profanity toward the officer.' App. 37. The Municipal Judge credited Berner's testimony and disbelieved appellant and her husband.
2
We have no occasion in light of the result reached to address the conflict between this view and that of the framers of the Model Penal Code that suggests that even 'fighting words' as defined by Chaplinsky should not be punished when addressed to a police officer trained to exercise a higher degree of restraint than the average citizen. See Model Penal Code § 250.1, Comment 4 (Tent.Draft No. 13, 1961).
*
The facts in this case, and particularly the direct conflict of testimony as to 'who said what,' well illustrate the possibility of abuse. Ante, at 131 n. 1.
1
'Section 49-7. Cursing, etc., police prohibited.
'It shall be unlawful and a breach of the peace for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty.'
2
The suggestion that the ordinance is open to selective enforcement is no reason to strike it down. Courts are capable of stemming abusive application of statutes. See, e.g., Norwell v. City of Cincinnati, 414 U.S. 14, 94 S.Ct. 187, 38 L.Ed.2d 170 (1973). Questions of credibility, moreover, have been resolved by courts for centuries and there is no reason to believe the so-called modern age requires any different treatment.
| 23
|
415 U.S. 164
94 S.Ct. 988
39 L.Ed.2d 242
UNITED STATES, Petitioner,v.William Earl MATLOCK.
No. 72—1355.
Argued Dec. 10—11, 1973.
Decided Feb. 20, 1974.
Syllabus
Respondent was arrested in the front yard of a house in which he lived along with a Mrs. Graff (daughter of the lessees) and others. The arresting officers, who did not ask him which room he occupied or whether he would consent to a search, were then admitted to the house by Mrs. Graff and, with her consent but without a warrant, searched the house, including a bedroom, which Mrs. Graff told them was jointly occupied by respondent and herself, and in a closet of which the officers found and seized money. Respondent was indicted for bank robbery, and moved to suppress the seized money as evidence. The District Court held that where consent by a third person is relied upon as justification for a search, the Government must show, inter alia, not only that it reasonably appeared to the officers that the person had authority to consent, but also that the person had actual authority to permit the search, and that the Government had not satisfactorily proved that Mrs. Graff had such authority. Although Mrs. Graff's statements to the officers that she and respondent occupied the same bedroom were deemed admissible to prove the officers' good-faith belief, they were held to be inadmissible extrajudicial statements to prove the truth of the facts therein averred, and the same was held to be true of statements by both Mrs. Graff and respondent that they were married, which was not the case. The Court of Appeals affirmed. Held:
1. When the prosecution seeks to justify a warrantless search by proof of voluntary consent it is not limited to proof that consent was given bythe defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected. Pp. 169—172.
2. It was error to exclude from evidence at the suppression hearings Mrs. Graff's out-of-court statements respecting the joint occupancy of the bedroom, as well as the evidence that both respondent and Mrs. Graff had represented themselves as husband and wife. Pp. 172—177.
(a) There is no automatic rule against receiving hearsay evidence in suppression hearings (where the trial court itself can accord such evidence such weight as it deems desirable), and under the circumstances here, where the District Court was satisfied that Mrs. Graff's out-of-court statements had in fact been made and nothing in the record raised doubts about their truthfulness, there was no apparent reason to exclude the declarations in the course of resolving the issues raised at the suppression hearings. Pp. 172—176.
(b) Mrs. Graff's statements were against her penal interest, since extramarital cohabitation is a state crime. Thus they carried their own indicia of reliability and should have been admitted as evidence at the suppression hearings, even if they would not have been admissible at respondent's trial. Pp. 176—177.
3. Although, given the admissibility of the excluded statements, the Government apparently sustained its burden of proof as to Mrs. Graff's authority to consent to the search, the District Court should reconsider the sufficiency of the evidence in light of this Court's opinion. Pp. 177—178.
7 Cir., 476 F.2d 1083, reversed and remanded.
Lawrence G. Wallace, Washington, D.C., for petitioner.
Donald S. Eisenberg, Madison, Wis., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
In Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), the Court reaffirmed the principle that the search of property, without warrant and without probable cause, but with proper consent voluntarily given, is valid under the Fourth Amendment. The question now before us is whether the evidence presented by the United States with respect to the voluntary consent of a third party to search the living quarters of the respondent was legally sufficient to render the seized materials admissible in evidence at the respondent's criminal trial.
2
* Respondent Matlock was indicted in February 1971 for the robbery of a federally insured bank in Wisconsin, in violation of 18 U.S.C. § 2113. A week later, he filed a motion to suppress evidence seized by law enforcement officers from a home in the town of Pardeeville, Wisconsin, in which he had been living. Suppression hearings followed. As found by the District Court, the facts were that respondent was arrested in the yard in front of the Pardeeville home on November 12, 1970. The home was leased from the owner by Mr. and Mrs. Marshall. Living in the home were Mrs. Marshall, several of her children, including her daughter Mrs. Gayle Graff, Gayle's three-year-old son, and respondent. Although the officers were aware at the time of the arrest that respondent lived in the house, they did not ask him which room he occupied or whether he would consent to a search. Three of the arresting officers went to the door of the house and were admitted by Mrs. Graff, who was dressed in a robe and was holding her son in her arms. The officers told her they were looking for money and a gun and asked if they could search the house. Although denied by Mrs. Graff at the suppression hearings, it was found that she consented voluntarily to the search of the house, including the east bedroom on the second floor which she said was jointly occupied by Matlock and herself. The east bedroom was searched and the evidence at issue here, $4,995 in cash, was found in a diaper bag in the only closet in the room.1 The issue came to be whether Mrs. Graff's relationship to the east bedroom was sufficient to make her consent to the search valid against respondent Matlock.
3
The District Court ruled that before the seized evidence could be admitted at trial, the Government had to prove, first, that it reasonably appeared to the searching officers 'just prior to the search, that facts exist which will render the consenter's consent binding on the putative defendant,' and, second, that 'just prior to the search, facts do exist which render the consenter's consent binding on the putative defendant.' There was no requirement that express permission from respondent to Mrs. Graff to allow the officers to search be shown; it was sufficient to show her authority to consent in her own right, by reason of her relationship to the premises. The first requirement was held satisfied because of respondent's presence in the yard of the house at the time of his arrest, because of Gayle Graff's residence in the house for some time and her presence in the house just prior to the search, and because of her statement to the officers that she and the respondent occupied the east bedroom.2
4
The District Court concluded, however, that the Government had failed to satisfy the second requirement and had not satisfactorily proved Mrs. Graff's actual authority to consent to the search. To arrive at this result, the District Court held that although Gayle Graff's statements to the officers that she and the respondent occupied the east bedroom were admissible to prove the good-faith belief of the officers, they were nevertheless extrajudicial statements inadmissible to prove the truth of the facts therein averred. The same was true of Mrs. Graff's additional statements to the officers later on November 12 that she and the respondent had been sleeping together in the east bedroom regularly, including the early morning of November 12, and that she and respondent shared the use of a dresser in the room. There was also testimony that both Gayle Graff and respondent, at various times and places and to various persons, had made statements that they were wife and husband. These statements were deemed inadmissible to prove that respondent and Gayle Graff were married, which they were not, or that they were sleeping together as a husband and wife might be expected to do. Having excluded these declarations, the District Court then concluded that the remaining evidence was insufficient to prove 'to a reasonable certainty, by the greater weight of the credible evidence, that at the time of the search, and for some period of reasonable length theretofore, Gayle Graff and the defendant were living together in the east bedroom.' The remaining evidence, briefly stated, was that Mrs. Graff and respondent had lived together in a one-bedroom apartment in Florida from April to August 1970; that they lived at the Marshall home in Pardeeville from August to November 12, 1970; that they were several times seen going up or down stairs in the house together; and that the east bedroom, which respondent was shown to have rented from Mr. and Mrs. Marshall, contained evidence that it was also lived in by a man and a woman.3 The District Court thought these items of evidence created an 'inference' or at least a 'mild inference' that respondent and Gayle Graff at times slept together in the east bedroom, but it deemed them insufficient to satisfy the Government's burden of proof. The District Court also rejected the Government's claim that it was required to prove only that at the time of the search the officers could reasonably have concluded that Gayle Graff's relationship to the east bedroom was sufficient to make her consent binding on respondent.
5
The Court of Appeals affirmed the judgment of the District Court in all respects. 7 Cir., 476 F.2d 1083. We granted certiorari, 412 U.S. 917, 94 S.Ct. 2734, 37 L.Ed.2d 143, and now reverse the Court of Appeals.
II
6
It has been assumed by the parties and the courts below that the voluntary consent of any joint occupant of a residence to search the premises jointly occupied is valid against the co-occupant, permitting evidence discovered in the search to be used against him at a criminal trial. This basic proposition was accepted by the Seventh Circuit in this case, 476 F.2d at 1086, as it had been in prior cases,4 and has generally been applied in similar circumstances by other courts of appeals,5 and various state courts.6 This Court left open, in Amos v. United States, 255 U.S. 313, 317, 41 S.Ct. 266, 267, 65 L.Ed. 654 (1921), the question whether wife's permission to search the residence in which she lived with her husband could 'waive his constitutional rights,' but more recent authority here clearly indicates that the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared. In Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 1425, 22 L.Ed.2d 684 (1969), the Court 'dismissed rather quickly' the contention that the consent of the petitioner's cousin to the search of a duffel bag, which was being used jointly by both men and had been left in the cousin's home, would not justify the seizure of petitioner's clothing found inside; joint use of the bag rendered the cousin's authority to consent to its search clear. Indeed, the Court was unwilling to engage in the 'metaphysical subtleties' raised by Frazier's claim that his cousin only had permission to use one compartment within the bag. By allowing the cousin the use of the bag, and by leaving it in his house, Frazier was held to have assumed the risk that his cousin would allow someone else to look inside. Ibid. More generally, in Schneckloth v. Bustamonte, 412 U.S., at 245—246, 93 S.Ct., at 2057, we noted that our prior recognition of the constitutional validity of 'third party consent' searches in cases like Frazier and Coolidge v. New Hampshire, 403 U.S. 443, 487—490, 91 S.Ct. 2022, 2048, 29 L.Ed.2d 564 (1971), supported the view that a consent search is fundamentally different in nature from the waiver of a trial right. These cases at least make clear that when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.7 The issue now before us is whether the Government made the requisite showing in this case.
III
7
The District Court excluded from evidence at the suppression hearings, as inadmissible hearsay, the out-of-court statements of Mrs. Graff with respect to her and respondent's joint occupancy and use of the east bedroom, as well as the evidence that both respondent and Mrs. Graff at various times and to various persons had represented themselves as husband and wife. The Court of Appeals affirmed the ruling. Both courts were in error.
8
As an initial matter we fail to understand why, on any approach to the case, the out-of-court representations of respondent himself that he and Gayle Graff were husband and wife were considered to be inadmissible against him. Whether or not Mrs. Graff's statements were hearsay, the respondent's own out-of-court admissions would surmount all objections based on the hearsay rule both at the suppression hearings and at the trial itself, and would be admissible for whatever inferences the trial judge could reasonably draw concerning joint occupancy of the east bedroom. See 4 J. Wigmore, Evidence § 1048 (J. Chadbourn rev. 1972); C. McCormick, Evidence § 262 (2d ed. 1972).8
9
As for Mrs. Graff's statements to the searching officers, it should be recalled that the rules of evidence normally applicable in criminal trials do not operate with full force at hearings before the judge to determine the admissibility of evidence.9 In Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), it was objected that hearsay had been used at the hearing on a challenge to the admissibility of evidence seized when a car was searched and that other evidence used at the hearing was held inadmissible at the trial itself. The Court sustained the trial court's rulings. It distinguished between the rules applicable to proceedings to determine probable cause for arrest and search and those governing the criminal trial itself—' There is a large difference between the two things to be proved, as well as between the tribunals which determine them, and therefore a like difference in the quanta and modes of proof required to establish them.' Id., at 173, 69 S.Ct., at 1309. That certain evidence was admitted in preliminary proceedings but excluded at the trial—and the Court thought both rulings proper was thought merely to 'illustrate the difference in standards and latitude allowed in passing upon the distinct issues of probable cause and guilt.' Id., at 174, 69 S.Ct., at 1310.
10
That the same rules of evidence governing criminal jury trials are not generally thought to govern hearings before a judge to determine evidentiary questions was confirmed on November 20 last year when the Court transmitted to Congress the proposed Federal Rules of Evidence. Rule 104(a) provides that preliminary questions concerning admissibility are matters for the judge and that in performing this function he is not bound by the Rules of Evidence except those with respect to privileges.10 Essentially the same language on the scope of the proposed Rules is repeated in Rule 1101(d)(1).11 The Rules in this respect reflect the general views of various authorities on evidence. 5 J. Wigmore, Evidence § 1385 (3d ed. 1940); C. McCormick, Evidence § 53, p. 122 n. 91 (2d ed. 1972). See also Maguire & Epstein, Rules of Evidence in Preliminary Controversies as to Admissibility, 36 Yale L.J. 1101 (1927).
11
Search warrants are repeatedly issued on ex parte affidavits containing out-of-court statements of identified and unidentified persons. United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965). An arrest and search without a warrant were involved in McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). At the initial suppression hearing, the police proved probable cause for the arrest by testifying to the out-of-court statements of an unidentified informer. The Government would have been obligated to produce the informer and to put him on the stand had it wanted to use his testimony at defendant's trial, but we sustained the use of his out-of-court statements at the suppression hearing, as well as the Government's refusal to identify him. In the course of the opinion, we specifically rejected the claim that defendant's right to confrontation under the Sixth Amendment and Due Process Clause of the Fourteenth Amendment had in any way been violated. We also made clear that there was no contrary rule governing proceedings in the federal courts.
12
There is, therefore, much to be said for the proposition that in proceedings where the judge himself is considering the admissibility of evidence, the exclusionary rules, aside from rules of privilege, should not be applicable; and the judge should receive the evidence and give it such weight as his judgment and experience counsel.12 However that may be, certainly there should be no automatic rule against the reception of hearsay evidence in such proceedings, and it seems equally clear to us that the trial judge should not have excluded Mrs. Graff's statements in the circumstances present here.
13
In the first place, the court was quite satisfied that the statements had in fact been made. Second, there is nothing in the record to raise serious doubts about the truthfulness of the statements themselves. Mrs. Graff harbored no hostility or bias against respondent that might call her statements into question. Indeed, she testified on his behalf at the suppression hearings. Mrs. Graff responded to inquiry at the time of the search that she and respondent occupied the east bedroom together. A few minutes later, having led the officers to the bedroom, she stated that she and respondent shared the one dresser in the room and that the woman's clothing in the room was hers. Later the same day, she stated to the officers that she and respondent had slept together regularly in the room, including the early morning of that very day. These statements were consistent with one another. They were also corroborated by other evidence received at the suppression hearings: Mrs. Graff and respondent had lived together in Florida for several months immediately prior to coming to Wisconsin, where they lived in the house in question and where they were seen going upstairs together in the evening; respondent was the tenant of the east bedroom and that room bore every evidence that it was also occupied by a woman; respondent indicated in prior statements to various people that he and Mrs. Graff were husband and wife. Under circumstances there was no apparent reason for the judge to distrust the evidence and to exclude Mrs. Graff's declarations from his own consideration for whatever they might be worth in resolving, one way or another, the issues raised at the suppression hearings.
14
If there is remaining doubt about the matter, it should be dispelled by another consideration: cohabitation out of wedlock would not seem to be a relationship that one would falsely confess. Respondent and Gayle Graff were not married, and cohabitation out of wedlock is a crime in the State of Wisconsin.13 Mrs. Graff's statements were against her penal interest and they carried their own indicia of reliability. This was sufficient in itself, we think, to warrant admitting them to evidence for consideration by the trial judge. This is the case even if they would be inadmissible hearsay at respondent's trial either because statements against penal interest are to be excluded under Donnelly v. United States, 228 U.S. 243, 272—277, 33 S.Ct. 449, 57 L.Ed. 820 (1913), or because, if Rule 804(b)(4) of the proposed Federal Rules of Evidence becomes the law, such declarations would be admissible only if the declarant is unavailable at the time of the trial.
15
Finally, we note that Mrs. Graff was a witness for the respondent at the suppression hearings. As such, she was available for cross-examination, and the risk of prejudice, if there was any, from the use of hearsay was reduced. Indeed, she entirely denied that she either gave consent or made the November 12 statements to the officers that the District Court excluded from evidence. When asked whether in fact she and respondent had lived together, she claimed her privilege against self-incrimination and declined to answer.
IV
16
It appears to us, given the admissibility of Mrs. Graff's and respondent's out-of-court statements, that the Government sustained its burden of proving by the preponderance of the evidence that Mrs. Graff's voluntary consent to search the east bedroom was legally sufficient to warrant admitting into evidence the $4,995 found in the diaper bag.14 But we prefer that the District Court first reconsider the sufficiency of the evidence in the light of this decision and opinion. The judgment of the Court of Appeals is reversed and the case is remanded to the Court of Appeals with directions to remand the case to the District Court for further proceedings consistent with this opinion.
17
So ordered.
18
Reversed and remanded.
19
Mr. Justice DOUGLAS, dissenting.
20
Respondent William Matlock has been indicted for robbing a federally insured bank in violation of 18 U.S.C. § 2113. The issue in this case involves the suppression of money found in a closet in Matlock's bedroom during a warrantless search of the home in which he lived. The search of the home, and of the bedroom, was authorized by one Gayle Graff, and the Court now remands this case for the District Court to determine in the light of evidence which that court had previously excluded, whether Mrs. Graff was in fact a joint occupant of the bedroom with sufficient authority to consent to the search. Because I believe that the absence of a search warrant in this case, where the authorities had opportunity to obtain one, is fatal, I dissent from that disposition of this case.
21
The home which was searched was rented by one William Marshall, and was occupied by members of his family, including his wife and his 21-year-old daughter Gayle Graff. Respondent Matlock paid the Marshalls for the use of a bedroom in the home, which he apparently occupied with Gayle Graff. Respondent was arrested in the yard of the home on the morning of November 12, 1970. He offered no resistance, and was restrained in a squad car a distance from the home. Immediately thereafter, officers walked to the home, where Mrs. Graff was present. The officers told her they were searchign for guns and money, and asked her whether Matlock lived in the home. After being asked by the officers whether they could search the house, and without being told that she could withhold her consent, Mrs. Graff permitted a police search.
22
During this first search, three officers entered the house. One of the officers testified that they walked through the kitchen, pantry area, front porch, and living room. The officers asked with bedroom was Matlock's. After Mrs. Graff had indicated the secondfloor bedroom which she and Matlock occupied and permitted its search, the officers found a diaper bag half full of money in the bedroom closet. The admissibility of this evidence is involved in the instant case.
23
The officers left the home, but returned a few minutes later for a second search. This time, they found certain other incriminating items in the pantry area. A third search was made in the afternoon. Again, the officers did not secure a warrant to search the home, but waited for an officer to bring Mrs. Marshall home, at which point they secured her consent to a search. Four officers participated in this search, which discovered further evidence downstairs and in a dresser in Matlock's bedroom.
24
At no time did the officers participating in any of the three searches, including the first search involved in this case, attempt to procure a search warrant from a judicial officer. The District Court, in a finding which the Government does not challenge, found that there was no exigent circumstances or emergency which could provide an excuse for the Government officers' failure to secure a warrant to invade the security of the Marshall home:
25
'At no time on November 12, 1970, was a search warrant obtained by any law enforcement officers for the purpose of conducting a search of the Marshall home. There was adequate time to obtain one or more warrants. There was no emergency, nor danger to any police officer or other persons which required that the search proceed without awaiting the time at which a search warrant could be applied for. The search of the house was not incidental to the arrest of the defendant.'
26
This, I believe, is the crucial finding in the case, rather than the ultimate resolution of the question of Gayle Graff's 'authority' to consent to the search. This search is impermissible because of the failure of the officers to secure a search warrant when they had the opportunity to do so.
27
The Fourth Amendment provides that '(t)he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' The judicial scrutiny provided by the second clause of the Amendment is essential to effectuating the Amendment, and if, under that clause a warrant could have been obtained but was not, the ensuing search is 'unreasonable' under the Amendment.1 The intervention of a judicial officer gives the Amendment vitality by restraining unnecessary and unjustified searches and invasions of privacy before they occur. At the same time, a written warrant helps ensure that a search will be limited in scope to the areas and objects necessary to the search because both the 'place to be searched' and the 'things to be seized' must be described with particularity. We have therefore held that only the gravest of circumstances could excuse the failure to secure a properly issued search warrant.
28
Up to now, a police officer had a duty to secure a warrant when he had the opportunity to do so, even if substantial probable cause existed to justify a search. In Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 decided in 1948, police officers smelled the unmistakable odor of opium outside a hotel room. They knocked on the door, identified themselves, and told the occupant that they wanted to talk to her. The occupant stepped back acquiescently and admitted the officers. We found that the entry was granted in submission to authority, and that the odors alone would not justify the search without a warrant, despite the fact that they would have provided probable cause for a warrant. Since, as in the instant case, no 'exceptional circumstances'2 were cited which might have justified the warrantless search, but only 'the inconvenience to the officers and some slight delay necessary to prepare papers and present the evidence to a magistrate,' d., at 14, 15, 68 S.Ct., at 369, we found the warrantless search unconstitutional. Mr. Justice Jackson explained for the Court the need for judicial intervention as a restraint of police conduct before a search was made; and what he said is applicable today:
29
'The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. . . . Crime, even in the privacy of one's own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.' Id., at 13—14, 68 S.Ct., at 369.
30
In Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, also decided in 1948, there was a search of an illegal distillery made without a warrant, even though the agents who conducted the search had ample information and time within which to secure a search warrant. Since there was no reason but the convenience of the police which could justify the warrantless search, we found it unreasonable. The police, when not constrained by the limitations of a warrant, are free to rummage about in the course of their search. '(T)hey did precisely what the Fourth Amendment was designed to outlaw. . . . Nothing circumscribed their activities on that raid except their own good senses, which the authors of the Amendment deemed insufficient to justify a search or seizure except in exceptional circumstances not here present.' Id., at 706—707, 68 S.Ct., at 1233. Speaking through Mr. Justice Murphy we explained again the reasons for our insistence on adherence to constitutional processes:
31
'This rule rests upon the desirability of having magistrates rather than police officers determine when searches and seizures are permissible and what limitations should be placed upon such activities. . . . In their understandable zeal to ferret out crime and in the excitement of the capture of a suspected person, officers are less likely to possess the detachment and neutrality with which the constitutional rights of the suspect must be viewed. To provide the necessary security against unreasonable intrusions upon the private lives of individuals, the framers of the Fourth Amendment required adherence to judicial processes wherever possible. And subsequent history has confirmed the wisdom of that requirement.' Id., at 705, 68 S.Ct., at 1232.
32
Likewise, in McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153, also decided in 1948, officers with probable cause to engage in a search failed to secure a warrant, and we found the search illegal. Officers had heard an adding machine, frequently used in numbers operations, when outside a rooming house. Entering the house through a window, they looked over the transom of McDonald's room and saw gambling paraphernalia. They shouted to McDonald to open his room, and he did so. Again, there was no grave emergency which alone could justify the failure to secure a warrant, id., at 455, 69 S.Ct., at 193, and again we patiently reiterated the reasons for our insistence that the police submit proposed searches to prior judicial scrutiny whenever feasible:
33
'We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home.' Id., at 455—456, 69 S.Ct., at 193.
34
Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514, decided in 1958, provides yet another instance of our recognition of the importance of adherence to judicial processes. Federal alcohol agents had secured a warrant to search a home during the daytime, having observed substantial evidence that illegal liquor was being produced. Rather than executing the warrant, they waited until the evening, when they entered and searched the home. We held, specifically through Mr. Justice Harlan, that probable cause to believe that the house contained contraband was not sufficient to legitimize a warrantless search: 'Were federal officers free to search without a warrant merely upon probable cause to believe that certain articles were within a home, the provisions of the Fourth Amendment would become empty phrases, and the protection it affords largely nullified.' Id., at 498, 78 S.Ct., at 1257.
35
And, indeed, the provisions of the Fourth Amendment carefully and explicitly restricting the circumstances in which warrants can issue and the breadth of searches have become 'empty phrases,' when the Court sanctions this search conducted without any effort by the police to secure a valid search warrant. This was not a case where a grave emergency, such as the imminent loss of evidence or danger to human life, might excuse the failure to secure a warrant. Mrs. Graff's permission to the police to invade the house, simultaneously violating the privacy of Matlock and the Marshalls, provides a sorry and wholly inadequate substitute for the protections which inhere in a judicially granted warrant. It is inconceivable that a search conducted without a warrant can give more authority than a search conducted with a warrant. See United States v. Lefkowitz, 285 U.S. 452, 464, 52 S.Ct. 420, 423, 76 L.Ed. 877. But here the police procured without a warrant all the authority which they had under the feared general warrants, hatred of which led to the passage of the Fourth Amendment. Government agents are now free to rummage about the house, unconstrained by anything except their own desires.3 Even after finding items which they may have expected to find and which doubtless would have been specified in a valid warrant, see Coolidge v. New Hampshire, 403 U.S. 443, 471, 91 S.Ct. 2022, 2040, 29 L.Ed.2d 564, they prolonged their exploratory search in pursuit of additional evidence. The judgment of whether the intrusion into the Marshalls' and Matlock's privacy was to be permitted was not made by an objective judicial officer respectful of the exacting demands of the Fourth Amendment; nor were the police limited by the need to make an initial showing of probable cause to invade the Marshall home. Since the Framers of the Amendment did not abolish the hated general warrants only to impose another oppressive regime on the people, I dissent.
36
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting.
37
I would not limit the remand to the determination whether Mrs. Graff was in fact a joint occupant of the bedroom with sufficient authority to consent to the search. In my view the determination is also required that Mrs. Graff consented knowing that she was not required to consent. 'It wholly escapes me how our citizens can meaningfully be said to have waived something as precious as a constitutional guarantee without ever being aware of its existence.' Schneckloth v. Bustamonte, 412 U.S. 218, 277, 93 S.Ct. 2041, 2073, 36 L.Ed.2d 854 (1973) (Brennan, J., dissenting). I would hold that an individual cannot effectively waive this right if he is totally ignorant of the fact that, in the absence of his consent, such invasions of privacy would be constitutionally prohibited.
1
There were other seizures in the house and the east bedroom on November 12, but none of them is at issue here.
2
Mrs. Graff was not advised that she had a right to refuse to consent to the search. The District Court expressed no view as to whether the absence of such advice would render her consent invalid, since it found that her consent, however voluntary, would not bind the respondent with regard to the search of his room. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), has since made clear, of course, that it is not essential for the prosecution of show that the consenter knew of the right to refuse consent in order to establish that the consent was voluntary.
3
When the officers searched the east bedroom, two pillows were on the double bed, which had been slept in, men's and women's clothes were in the closet, and men's and women's clothes were also in separate drawers of the dresser.
4
E.g., United States v. Stone, 471 F.2d 170, 173 (1972), cert. denied, 411 U.S. 931, 93 S.Ct. 1898, 36 L.Ed.2d 391 (1973); United States v. Wixom, 441 F.2d 623, 624—625 (1971); United States v. Airdo, 380 F.2d 103, 106—107, cert. denied, 389 U.S. 913, 88 S.Ct. 238, 19 L.Ed.2d 260 (1967). Each of these cases cited with approval United States v. Sferas, 210 F.2d 69, 74 (CA7), cert. denied sub nom. Skally v. United States, 347 U.S. 935, 74 S.Ct. 630, 98 L.Ed. 1086 (1954), which expressed the rule 'that where two persons have equal rights to the use or occupation of premises, either may give consent to a search, and the evidence thus disclosed can be used against either.'
5
E.g., United States v. Ellis, 461 F.2d 962, 967—968 (CA2), cert. denied, 409 U.S. 866, 93 S.Ct. 162, 34 L.Ed.2d 115 (1972); United States v. Cataldo, 433 F.2d 38, 40 (CA2 1970), cert. denied, 401 U.S. 977, 91 S.Ct. 1200, 28 L.Ed.2d 326 (1971); United States ex rel. Cabey v. Mazurkiewicz, 431 F.2d 839, 842—843 (CA3 1970); United States v. Thompson, 421 F.2d 373, 375—376 (CA5), vacated on other grounds, 400 U.S. 17, 91 S.Ct. 122, 27 L.Ed.2d 17 (1970); Gurleski v. United States, 405 F.2d 253, 260—262 (CA5 1968), cert. denied, 395 U.S. 981, 89 S.Ct. 2140, 23 L.Ed.2d 765 (1969); Wright v. United States, 389 F.2d 996, 998—999 (CA8 1968); Roberts v. United States, 332 F.2d 892, 894—898 (CA8 1964), cert. denied, 380 U.S. 980, 85 S.Ct. 1344, 14 L.Ed.2d 274 (1965); United States v. Wilson, 447 F.2d 1, 5—6 (CA9 1971); Nelson v. California, 346 F.2d 73, 77 (CA9), cert. denied, 382 U.S. 964, 86 S.Ct. 452, 15 L.Ed.2d 367 (1965); Burge v. United States, 342 F.2d 408, 413 (CA9), cert. denied, 382 U.S. 829, 86 S.Ct. 63, 15 L.Ed.2d 72 (1965).
6
E.g., People v. Howard, 166 Cal.App.2d 638, 651, 334 P.2d 105, 114 (1958); People v. Gorg, 45 Cal.2d 776, 783, 291 P.2d 469, 473 (1955); People v. Haskell, 41 Ill.2d 25, 28—29, 241 N.E.2d 430, 432 (1968); People v. Walker, 34 Ill.2d 23, 27—28, 213 N.E.2d 552, 555 (1966); Commonwealth ex rel. Cabey v. Rundle, 432 Pa. 466, 248 A.2d 197 (1968); State v. Cairo, 74 R.I. 377, 385—386, 60 A.2d 841, 845 (1948); Burge v. State, 443 S.W.2d 720, 722—723 (Ct.Crim.App.Tex.), cert. denied, 396 U.S. 934, 90 S.Ct. 277, 24 L.Ed.2d 233 (1969).
7
Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, see Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961) (landlord could not validly consent to the search of a house he had rented to another), Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) (night hotel clerk could not validly consent to search of customer's room) but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.
8
Rule 801(d)(2)(A) of the proposed Federal Rules of Evidence, approved by the Court on November 20, 1972, and transmitted to Congress, expressly provides that a party's own statements offered against him at trial are not hearsay.
9
Bridges v. Wixon, 326 U.S. 135, 153—154, 65 S.Ct. 1443, 1452, 89 L.Ed. 2103 (1945), upon which respondent and the Court of Appeals relied, involved the use of hearsay as substantive evidence bearing on the question of Bridges' membership in the Communist Party, a charge upon which a deportation order had been based. In addition to the fact that the use of unsworn, unsigned statements violated the rules of the Board of Immigration Appeals, the evidence was admitted to prove charges which directly jeopardized 'the liberty of an individual,' id., at 154, 65 S.Ct., at 1452, and not for the purpose of determining a preliminary question of admissibility, as in this case.
10
Rule 104(a) provides:
'(a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the judge, subject to the provisions of subdivision (b). In making his determination he is not bound by the rules of evidence except those with respect to privileges.'
11
Rule 1101(d)(1) provides:
'Rules inapplicable. The rules (other than those with respect to privileges) do not apply in the following situations:
'(1) Preliminary questions of fact. The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the judge under Rule 104(a).'
12
'Should the exclusionary law of evidence, 'the child of the jury system' in Thayer's phrase, be applied to this hearing before the judge? Sound sense backs the view that it should not, and that the judge should be empowered to hear any relevant evidence, such as affidavits or other reliable hearsay.' C. McCormick, Evidence § 53, p. 122 n. 91 (2d ed. 1972).
13
Wis.Stat. (1971) § 944.20 provides: 'Whoever does any of the following may be fined not more than $500 or imprisoned not more than one year in county jail or both: . . . (3) Openly cohabits and associates with a person he knows is not his spouse under circumstances that imply sexual intercourse.'
14
Accordingly, we do not reach another major contention of the United States in bringing this case here: that the Government in any event had only to satisfy the District Court that the searching officers reasonably believed that Mrs. Graff had sufficient authority over the premises to consent to the search.
The Government also contends that the Court of Appeals imposed an unduly strict standard of proof on the Government by ruling that its case must be proved 'to a reasonable certainty, by the great weight of the credible evidence.' But the District Court required only that the proof be by the greater weight of the evidence and the Court of Appeals merely affirmed the District Court's judgment. There was an inadvertence in articulating the applicable burden of proof, but it seems to have been occasioned by a similar inadvertence by the Government in presenting its case. In any event, the controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence. See Lego v. Twomey, 404 U.S. 477, 488—489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618 (1972). We do not understand the Government to contend that the standard employed by the District Court was in error, and we have no occasion to consider whether it was.
1
The second clause of the Fourth Amendment lays down exacting standards for the issuance of a valid search warrant. The Court,
however, in effect reads the provision of the first clause of the Amendment proscribing 'unreasonable' searches and seizures to allow it to create classes of judicially sanctioned 'reasonable' searches, even when they do not comport with the minimum standards which a warranted search must satisfy. But the history of the Amendment indicates that the Framers added the first clause to give additional protections to the people beyond the prescriptions for a valid warrant, and not to give the judiciary carte blanche to later dilute the warrant requirement by sanctioning classes of warrantless searches.
The form of oppressive search and seizure best known to the colonists was the general warrant, or general writ of assistance, which gave the officials of the Crown license to search all places and for everything in a given place, limited only by their own discretion. See Warden v. Hayden, 387 U.S. 294, 313—317, 87 S.Ct. 1642, 1655, 18 L.Ed.2d 782 (Douglas, J., dissenting). It was this abuse which James Otis condemned in Boston in 1761, see 2 J. Adams, Works 523—525, and which Patrick Henry condemned as Virginia debated the new Constitution in 1788. See 3 J. Elliot, Debates 448. Because the Crown had employed the general warrant, rather than the warrantless search, to invade the privacy of the colonists without probable cause and without limitation, it is not surprising that the hatred of the colonists focused on it.
But in concentrating their invective on the general warrant, the colonists and the Framers did not intend to subject themselves to searches without warrants. We begin with James Otis. In his 1761 speech, Otis not only condemned the general warrant, he also envisioned an acceptable alternative. This was not the search without a warrant, but rather searches under warrants confined by explicit restrictions: 'I admit that special writs of assistance, to search special places, may be granted to certain persons on oath.' 2 J. Adams, Works 524.
In 1778, during debates on the Constitution prior to passage of the Bill of Rights, Virginia recommended for congressional consideration a series of amendments to the Constitution, one of which guaranteed the security of the citizenry against unreasonable Government searches. This proposed amendment quite clearly presupposed that an 'unreasonable' search could be avoided only by
use of a warrant, and only if that warrant met certain standards. It did not conceive of warrantless searches:
'That every freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers, and property; all warrants, therefore, to search suspected places, or seize any freeman, his papers, or property, without information on oath (or affirmation of a person religiously scrupulous of taking an oath) of legal and sufficient cause, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend any suspected person, without specially naming or describing the place or person, are dangerous, and ought not to be granted.' 3 J. Elliot, Debates 658.
Accordingly, when the First Congress convened, James Madison of Virginia officially proposed amendments to the Constitution, including one restricting searches and seizures. Like the original Virginia recommendation, it was nurtured by a fear of the general warrants, and emphasized the warrant requirement:
'The rights of the people to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.' 1 Annals of Cong. 434—435.
After being referred to the Committee of Eleven, the amendment was returned to the floor of the House, where it was approved after amendment in a form which closely followed Madison's original proposal, and with its thrust still focusing on the warrant requirement: 'The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches, shall not be violated by warrants issuing without probable cause, supported by oath or affirmation, and not particularly describing the place to be searched and the persons or things to be seized.' Id., at 754.
Only at this point was the present form of the Amendment, with its two distinct clauses, first suggested. Mrs. Benson of New York, chairman of a Committee of Three to arrange the amendments, proposed that 'by warrants issuing' be changed to 'and no warrant shall issue.' His purpose was to strengthen the Amend-
ment, not to license later judicial efforts to undercut the warrant requirement:
'Mr. Benson objected to the words 'by warrants issuing.' This declaratory provision was good as far as it went, but he thought it was not sufficient; he therefore proposed to alter it so as to read 'and no warrant shall issue." Ibid.
Benson's amendment was defeated at that point, ibid., but when the Committee of Three returned the amendment to the House, it followed the form suggested by Benson. The prohibition against unreasonable searches was made explicit in a separate clause, and a second clause began with the words earlier proposed by Benson. This form was then accepted, id., at 779, and the Senate concurred. Senate Journal, Aug. 25, 1789. See generally N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 97—103.
The history of the separate clause prohibiting unreasonable searches and seizures demonstrates that it was created in an effort to strengthen the prohibition of searches without proper warrants and to broaden the protections against unneeded invasions of individual privacy. See id., at 103; Warden v. Hayden, 387 U.S. at 317—318, 87 S.Ct., at 1655 (Douglas, J., dissenting). It perverts the intent of the Framers to read it as permitting the creation of judicial exceptions to the warrant requirement in all but the most compelling circumstances. See J. Landynski, Search and Seizure and the Supreme Court 42—44.
2
By way of illustration, we observed: 'No suspect was fleeing or likely to take flight. The search was of permanent premises, not of a movable vehicle. No evidence or contraband was threatened with removal or destruction, except perhaps the fumes which we suppose in time will disappear.' 333 U.S., at 15, 68 S.Ct., at 369.
3
For an example of the abuse to which a warrantless search is subject, see Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876, where the police gutted a home during a warrantless search.
| 01
|
415 U.S. 189
94 S.Ct. 1005
39 L.Ed.2d 260
Julia Rogers CURTIS, Petitioner,v.Leroy LOETHER et al.
No. 72—1035.
Argued Dec. 4—5, 1973.
Decided Feb. 20, 1974.
Syllabus
The Seventh Amendment of the Constitution entitles either party to demand a jury trial in an action for damages in the federal courts under § 812 of the Civil Rights Act of 1968, which authorizes private plaintiffs to bring civil actions to redress violations of the Act's fair housing provisions. Pp. 191—198.
467 F.2d 1110, affirmed.
Jack Greenberg, New York City, for petitioner.
Robert D. Scott, Washington, D.C., for respondents.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Section 812 of the Civil Rights Act of 1968, 82 Stat. 88, 42 U.S.C. § 3612, authorizes private plaintiffs to bring civil actions to redress violations of Title VIII, the fair housing provisions of the Act, and provides that '(t)he court may grant as relief, as it deems appropriate, any permanent or temporary injunction, temporary restraining order, or other order, and may award to the plaintiff actual damages and not more than $1,000 punitive damages, together with court costs and reasonable attorney fees . . ..' The question presented in this case is whether the Civil Rights Act or the Seventh Amendment requires a jury trial upon demand by one of the parties in an action for damages and injunctive relief under this section.
2
Petitioner, a Negro woman, brought this action under § 812, claiming that respondents, who are white, had refused to rent an apartment to her because of her race, in violation of § 804(a) of the Act, 42 U.S.C. § 3604(a). In her complaint she sought only injunctive relief and punitive damages; a claim for compensatory damages was later added.1 After an evidentiary hearing, the District Court granted preliminary injunctive relief, enjoining the respondents from renting the apartment in question to anyone else pending the trial on the merits. This injunction was dissolved some five months later with the petitioner's consent, after she had finally obtained other housing, and the case went to trial on the issues of actual and punitive damages.
3
Respondents made a timely demand for jury trial in their answer. The District Court, however, held that jury trial was neither authorized by Title VIII nor required by the Seventh Amendment, and denied the jury request. Rogers v. Loether, 312 F.Supp. 1008 (ED Wis.1970). After trial on the merits, the District Judge found that respondents had in fact discriminated against petitioner on account of her race. Although he found no actual damages, see n. 1, supra, he awarded $250 in punitive damages, denying petitioner's request for attorney's fees and court costs.
4
The Court of Appeals reversed on the jury trial issue. Rogers v. Loether, 467 F.2d 1110 (CA7 1972). After an extended analysis, the court concluded essentially that the Seventh Amendment gave respondents the right to a jury trial in this action, and therefore interpreted the statute to authorize jury trials so as to eliminate any question of its constitutionality. In view of the importance of the jury trial issue in the administration and enforcement of Title VIII and the diversity of views in the lower courts on the question,2 we granted certiorari, 412 U.S. 937, 93 S.Ct. 2770, 37 L.Ed.2d 396 (1973).3 We affirm.
5
The legislative history on the jury trial question is sparse, and what little is available is ambiguous. There seems to be some indication that supporters of Title VIII were concerned that the possibility of racial prejudice on juries might reduce the effectiveness of civil rights damages actions.4 On the other hand, one bit of testimony during committee hearings indicates an awareness that jury trials would have to be afforded in damages actions under Title VIII.5 Both petitioner and respondents have presented plausible arguments from the wording and construction of § 812. We see no point to giving extended consideration to these arguments, however, for we think it is clear that the Seventh Amendment entitles either party to demand a jury trial in an action for damages in the federal courts under § 812.6
6
The Seventh Amendment provides that '(i)n suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.' Although the thrust of the Amendment was to preserve the right to jury trial as it existed in 1791, it has long been settled that the right extends beyond the common-law forms of action recognized at that time. Mr. Justice Story established the basic principle in 1830:
7
'The phrase 'common law,' found in this clause, is used in contradistinction to equity, and admiralty, and maritime jurisprudence. . . . By common law, (the Framers of the Amendment) meant . . . not merely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered . . .. In a just sense, the amendment then may well be construed to embrace all suits which are not of equity and admiralty jurisdiction, whatever might be the peculiar form which they may assume to settle legal rights.' Parsons v. Bedford, 3 Pet. 433, 446—447, 7 L.Ed. 732 (1830) (emphasis in original).
8
Petitioner nevertheless argues that the Amendment is inapplicable to new causes of action created by congressional enactment. As the Court of Appeals observed, however, we have considered the applicability of the constitutional right to jury trial in actions enforcing statutory rights 'as a matter too obvious to be doubted.' 467 F.2d, at 1114. Although the Court has apparently never discussed the issue at any length, we have often found the Seventh Amendment applicable to causes of action based on statutes. See, e.g., Dairy Queen, Inc. v. Wood, 369 U.S. 469, 477, 82 S.Ct. 894, 899, 8 L.Ed.2d 44 (1962) (trademark laws); Hepner v. United States, 213 U.S. 103, 115, 29 S.Ct. 474, 479, 53 L.Ed. 720 (1909) (immigration laws); cf. Fleitmann v. Welsbach Street Lighting Co., 240 U.S. 27, 36 S.Ct. 233, 60 L.Ed. 505 (1916) (antitrust laws), and the discussion of Fleitmann in Ross v. Bernhard, 396 U.S. 531, 535 536, 90 S.Ct. 733, 736—737, 24 L.Ed.2d 729 (1970).7 Whatever doubt may have existed should now be dispelled. The Seventh Amendment does apply to actions enforcing statutory rights, and requires a jury trial upon demand, if the statute creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of law.
9
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937), relied on by petitioner, lends no support to her statutory-rights argument. The Court there upheld the award of back pay without jury trial in an NLRB unfair labor practice proceeding, rejecting a Seventh Amendment claim on the ground that the case involved a 'statutory proceeding' and 'not a suit at common law or in the nature of such a suit.' Id., at 48, 57 S.Ct. at 629. Jones & Laughlin merely stands for the proposition that the Seventh Amendment is generally inapplicable in administrative proceedings, where jury trials would be incompatible with the whole concept of administrative adjudication8 and would substantially interfere with the NLRB's role in the statutory scheme. Katchen v. Landy, 382 U.S. 323, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966), also relied upon by petitioner, is to like effect. There the Court upheld, over a Seventh Amendment challenge, the Bankruptcy Act's grant of summary jurisdiction to the bankrutpcy court over the trustee's action to compel a claimant to surrender a voidable preference; the Court recognized that a bankruptcy court has been traditionally viewed as a court of equity, and that jury trials would 'dismember' the statutory scheme of the Bankruptcy Act. Id., at 339, 86 S.Ct., at 478. See also Guthrie National Bank v. Guthrie, 173 U.S. 528, 19 S.Ct. 513, 43 L.Ed. 796 (1899). These cases uphold congressional power to entrust enforcement of statutory rights to an administrative process or specialized court of equity free from the strictures of the Seventh Amendment. But when Congress provides for enforcement of statutory rights in an ordinary civil action in the district courts, where there is obviously no functional justification for denying the jury trial right, a jury trial must be available if the action involves rights and remedies of the sort typically enforced in an action at law.9
10
We think it is clear that a damages action under § 812 is an action to enforce 'legal rights' within the meaning of our Seventh Amendment decisions. See, e.g., Ross v. Bernhard, supra, 396 U.S., at 533, 542, 90 S.Ct., at 735, 740; Dairy Queen, Inc. v. Wood, supra, 369 U.S., at 476—477, 82 S.Ct., at 899. A damages action under the statute sounds basically in tort—the statute merely defines a new legal duty, and authorizes the courts to compensate a plaintiff for the injury caused by the defendant's wrongful breach. As the Court of Appeals noted, this cause of action is analogous to a number of tort actions recognized at common law.10 More important, the relief sought here—actual and punitive damages is the traditional form of relief offered in the courts of law.11
11
We need not, and do not, go so far as to say that any award of monetary relief must necessarily be 'legal' relief. See, e.g., Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960); Porter v. Warner Holding Co., 328 U.S. 395, 60 S.Ct. 1086, 90 L.Ed. 1332 (1946).12 A comparison of Title VIII with Title VII of the Civil Rights Act of 1964, where the courts of appeals have held that jury trial is not required in an action for reinstatement and back pay,13 is instructive, although we of course express no view on the jury trial issue in that context. In Title VII cases the courts of appeals have characterized back pay as an integral part of an equitable remedy, a form of restitution. But the statutory language on which this characterization is based—
12
'(T)he court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . . ., or any other equitable relief as the court deems appropriate,' 42 U.S.C. § 2000e—5(g) (1970 ed., Supp. II)—
13
contrasts sharply with § 812's simple authorization of an action for actual and punitive damages. In Title VII cases, also, the courts have relied on the fact that the decision whether to award back pay is committed to the discretion of the trial judge. There is no comparable discretion here: if a plaintiff proves unlawful discrimination and actual damages, he is entitled to judgment for that amount. Nor is there any sense in which the award here can be viewed as requiring the defendant to disgorge funds wrongfully withheld from the plaintiff. Whatever may be the merit of the 'equitable' characterization in Title VII cases, there is surely no basis for characterizing the award of compensatory and punitive damages here as equitable relief.14
14
We are not oblivious to the force of petitioner's policy arguments. Jury trials may delay to some extent the disposition of Title VIII damages actions. But Title VIII actions seeking only equitable relief will be unaffected, and preliminary injunctive relief remains available with out a jury trial even in damages actions Dairy Queen, Inc. v. Wood, 369 U.S., at 479 n. 20, 82 S.Ct., at 901. Moreover, the statutory requirement of expedition of § 812 actions, 42 U.S.C. § 3614 (1970), applies equally to jury and nonjury trials. We recognize, too, the possibility that jury prejudice may deprive a victim of discrimination of the verdict to which he or she is entitled. Of course, the trial judge's power to direct a verdict, to grant judgment notwithstanding the verdict, or to grant a new trial provides substantial protection against this risk, and respondents' suggestion that jury trials will expose a broader segment of the populace to the example of the federal civil rights laws in operation has some force. More fundamentally, however, these considerations are insufficient to overcome the clear command of the Seventh Amendment.15 The decision of the Court of Appeals must be affirmed.
15
Affirmed.
1
Although the lower courts treated the action as one for compensatory and punitive damages, petitioner has emphasized in this Court that her complaint sought only punitive damages. It is apparent, however, that petitioner later sought to recover actual damages as well. The District Court's pretrial order indicates the judge's understanding, following a pretrial conference with counsel, that the question of actual damages would be one of the issues to be tried. App. 18a. Petitioner in fact attempted to prove actual damages, App. 45a, but her testimony was excluded for failure to comply with a pretrial discovery order. The District Judge later dismissed the claim of actual damages for failure of proof. In these circumstances, it is irrelevant that the pleadings were never formally amended. Fed.Rules Civ.Proc. 15(b), 16.
2
The Seventh Circuit here was the first court of appeals to consider this issue, but the reported decisions of the district courts are evenly divided on the question. In addition to the District Court in this case, the court in Cauley v. Smith, 347 F.Supp. 114 (E.D.Va.1972), held that jury trial was not required in an action under § 812. Kastner v. Brackett, 326 F.Supp. 1151 (Nev.1971), and Kelly v. Armbrust, 351 F.Supp. 869 (N.D.1972), held that jury trial was required.
3
Petitioner married while the case was pending before the Court, and her motion to change the caption of the case accordingly was granted. 414 U.S. 1140, 94 S.Ct. 890, 39 L.Ed.2d 96 (1974).
4
See, e.g., Hearings on Miscellaneous Proposals Regarding Civil Rights before Subcommittee No. 5 of the House Committee on the Judiciary, 89th Cong., 2d Sess., ser. 16, p. 1183 (1966).
5
See Hearings on S.3296 before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 89th Cong., 2d Sess., pt. 2, p. 1178 (1966).
6
We recognize, of course, the 'cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the (constitutional) question may be avoided.' United States v. Thirty-seven Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 1404, 28 L.Ed.2d 822 (1971), and cases there cited. In this case, however, the necessity for jury trial is so clearly settled by our prior Seventh Amendment decisions that it would be futile to spend time on the statutory issue, particularly since our result is not to invalidate the Civil Rights Act but only to direct that a certain form of procedure be employed in federal court actions under § 812.
Moreover, the Seventh Amendment issue in this case is in a very real sense the narrower ground of decision. Section 812(a) expressly authorizes actions to be brought 'in appropriate State or local courts of general jurisdiction,' as well as in the federal courts. The Court has not held that the right to jury trial in civil cases is an element of due process applicable to state courts through the Fourteenth Amendment. Since we rest our decision on Seventh Amendment rather than statutory grounds, we express no view as to whether jury trials must be afforded in § 812 actions in the state courts.
7
See also Porter v. Warner Holding Co., 328 U.S. 395, 401 402, 66 S.Ct. 1086, 1090—1091, 90 L.Ed. 1332 (1946) (Emergency Price Control Act); Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 36 S.Ct. 482, 60 L.Ed. 874 (1916) (Safety Appliance Act). The Courts of Appeals have similarly rejected the notion that the Seventh Amendment has no application to causes of action created by statute. See e.g., International Brotherhood of Boilermakers v. Braswell, 388 F.2d 193, 197 (CA5), cert. denied, 391 U.S. 935, 88 S.Ct. 1848, 20 L.Ed.2d 854 (1968); Simmons v. Avisco, Local 713, Textile Workers, 350 F.2d 1012, 1018 (CA4 1965); Arnstein v. Porter, 154 F.2d 464, 468 (CA2 1946), as well as the decision of the Seventh Circuit in this case, 467 F.2d, at 1113—1116. See generally Developments in the Law—Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109, 1266 (1971).
8
'(T)he concept of expertise on which the administrative agency rests is not consistent with the use by it of a jury as fact finder.' L. Jaffe, Judicial Control of Administrative Action 90 (1965).
9
See Rogers v. Loether, 467 F.2d 1110, 1115—1116 (CA7 1972); Developments in the Law, supra, n. 7, at 1267—1268.
10
For example, the Court of Appeals recognized that Title VIII could be viewed as an extension of the common-law duty of innkeepers not to refuse temporary lodging to a traveler without justification, a duty enforceable in a damages action triable to a jury, to those who rent apartments on a long-term basis. See 467 F.2d at 1117. An action to redress racial discrimination may also be likened to an action for defamation or intentional infliction of mental distress. Indeed, the contours of the latter tort are still developing, and it has been suggested that 'under the logic of the common law development of a law of insult and indignity, racial discrimination might be treated as a dignitary tort.' C. Gregory & H. Kalven, Cases and Materials on Torts 961 (2d ed. 1969).
11
The procedural history of this case generated some question in the courts below as to whether the action should be viewed as one for damages and injunctive relief, or as one for damages alone, for purposes of analyzing the jury trial issue. The Court of Appeals concluded that the right to jury trial was properly tested by the relief sought in the complaint and not by the claims remaining at the time of trial. 467 F.2d, at 1118—1119. We need express no view on this question. If the action is properly viewed as one for damages only, our conclusion that this is a legal claim obviously requires a jury trial on demand. And if this legal claim is joined with an equitable claim, the right to jury trial on the legal claim, including all issues common to both claims, remains intact. The right cannot be abridged by characterizing the legal claim as 'incidental' to the equitable relief sought. Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959); Dairy Queen, Inc. v. Wood, 369 U.S. 469, 470—473, 82 S.Ct. 894, 896—897, 8 L.Ed.2d 44 (1962).
12
See also Swofford v. B&W, Inc., 336 F.2d 406, 414 (CA5 1964).
13
Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1125 (CA5 1969); Robinson v. Lorillard Corp., 444 F.2d 791, 802 (CA4), cert. dismissed under Rule 60, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971); cf. McFerren v. County Board of Education, 455 F.2d 199, 202—204 (CA6 1972); Harkless v. Sweeny Independent School District, 427 F.2d 319, 324 (CA5 1970), cert. denied, 400 U.S. 991, 91 S.Ct. 451, 27 L.Ed.2d 439 (1971); Smith v. Hampton Training School, 360 F.2d 577, 581 n. 8 (CA4 1966) (en banc); see generally Developments in the Law, supra, n. 7, at 1265—1266.
14
See Comment, The Seventh Amendment and Civil Rights Statutes: History Adrift in a Maelstrom, 68 Nw.U.L.Rev. 503, 524 527 (1973).
15
Although petitioner has emphasized that the policies underlying the Fair Housing Act are derived from the Thirteenth and Fourteenth Amendments, she expressly 'does not maintain that these constitutional considerations could prevent a jury trial if a jury were otherwise required by the Seventh Amendment.' Brief for Petitioner 7. Moreover, although the legislative history of Title VIII with respect to jury trials is ambiguous, there is surely no indication that Congress intended to override the requirements of the Seventh Amendment if it mandates that jury trials be provided in § 812 damage actions. We therefore have no occasion to consider in this case any question of the scope of congressional power to enforce § 2 of the Thirteenth Amendment or § 5 of the Fourteenth Amendment.
| 01
|
415 U.S. 143
94 S.Ct. 977
39 L.Ed.2d 225
UNITED STATES, Petitioner,v.Irving KAHN and Minnie Kahn.
No. 72—1328.
Argued Dec. 11 and 12, 1973.
Decided Feb. 20, 1974.
Syllabus
On the Government's application for an order authorizing a wiretap interception of the home telephones of respondent Irving Kahn, a suspected bookmaker, pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, the District Judge entered an order pursuant to 18 U.S.C. § 2518, which described the telephones to be tapped and found probable cause to believe that Mr. Kahn and 'others as yet unknown' were using the telephones to conduct an illegal gambling business, and authorized FBI agents to intercept wire communications 'of' Mr. Kahn and 'others as yet unknown.' The agents intercepted incriminating calls made by Mr. Kahn in Arizona to respondent Mrs. Kahn at their home in Chicago, and also incriminating calls made by Mrs. Kahn to 'a known gambling figure.' The respondents were subsequently indicted for violating the Travel Act. Upon being notified of the Government's intention to introduce the intercepted conversations at trial, respondents moved to suppress them. The District Court granted the motion. The Court of Appeals affirmed, construing the requirements of 18 U.S.C. §§ 2518(1)(b)(iv) and 2518(4)(a) that the person whose communications are to be intercepted is to be identified if known, as excluding from the term 'others as yet unknown' any persons who careful Government investigation would disclose were probably using the telephones for illegal activities, and that since the Government had not shown that further investigation of Mr. Kahn's activities would not have implicated his wife in the gambling business, she was not a 'person as yet unknown' within the purview of the wiretap order. Held:
1. Title III requires the naming of a person in the application or interception order only when the law enforcement authorities have probable cause to believe that that individual is 'committing the offense' for which the wiretap is sought, and since it is undisputed here that the Government had no reason to suspect Mrs. Kahn of complicity in the gambling business before the wiretapping began, it follows that under the statute she was among the class of persons 'as yet unknown' covered by the wiretap order. Pp. 151 155.
2. Neither the language of the wiretap order nor that of Title III requires the suppression of legally intercepted conversations to which Mr. Kahn was not himself a party. Pp. 155 158.
7 Cir., 471 F.2d 191, reversed and remanded.
Andrew L. Frey, Washington, D.C., for petitioner.
Anna R. Lavin, Chicago, Ill., for respondents.
Mr. Justice STEWART delivered the opinion of the Court.
1
On March 20, 1970, an attorney from the United States Department of Justice submitted an application for an order authorizing a wiretap interception pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510—2520, to Judge William J. Campbell of the United States District Court for the Northern District of Illinois. The affidavit accompanying the application contained information indicating that respondent Irving Kahn was a bookmaker who operated from his residence and used two home telephones to conduct his business.1 The affidavit also noted that the Government's informants had stated that they would refuse to testify against Kahn, that telephone company records alone would be insufficient to support a bookmaking conviction, and that physical surveillance or normal search-and-seizure techniques would be unlikely to produce useful evidence. The application therefore concluded that 'normal investigative procedures reasonably appear to be unlikely to succeed,' and asked for authorization to intercept wire communications of Irving Kahn and 'others as yet unknown' over two named telephone lines, in order that information concerning the gambling offenses might be obtained.
2
Judge Campbell entered an order, pursuant to 18 U.S.C. § 2518, approving the application.2 He specifically found that there was probable cause to believe that Irving Kahn and 'others as yet unknown' were using the two telephones to conduct an illegal gambling business, and that normal investigative techniques were unlikely to succeed in providing federal officials with sufficient evidence to successfully prosecute such crimes. The order authorized special agents of the FBI to 'intercept wire communications of Irving Kahn and others as yet unknown' to and from the two named telephones concerning gambling activities.
3
The authorization order further provided that status reports were to be filed with Judge Campbell on the fifth and 10th days following the date of the order, showing what progress had been made toward achievement of the order's objective, and describing any need for further interceptions.3 The first such report, filed with Judge Campbell on March 25, 1970, indicated that the wiretap had been terminated because its objectives had been attained. The status report gave a summary of the information garnered by the interceptions, stating in part that on March 21 Irving Kahn made two telephone calls from Arizona to his wife at their home in Chicago and discussed gambling wins and losses, and that on the same date Minnie Kann, Irving's wife, made two telephone calls from the intercepted telephones to a person described in the status report as 'a known gambling figure,' with whom she discussed various kinds of betting information.
4
Both Irving and Minnie Kahn were subsequently indicted for using a facility in interstate commerce to promote, manage, and facilitate an illegal gambling business, in violation of 18 U.S.C. § 1952.4 The Government prosecutor notified the Kahns that he intended to introduce into evidence at trial the conversations intercepted under the court order. The Kahns in turn filed motions to suppress the conversations. These motions were heard by Judge Thomas R. McMillen in the Northern District of Illinois, who, in an unreported opinion, granted the motion to suppress. He viewed any conversations between Irving and Minnie Kahn as within the 'marital privilege,' and hence inadmissible at trial.5 In addition, all other conversations in which Minnie Kahn was a participant were suppressed as being outside the scope of Judge Campbell's order, on the ground that Minnie Kahn was not a person 'as yet unknown' to the federal authorities at the time of the original application.
5
The Government filed an interlocutory appeal from the suppression order.6 A divided panel of the United States Court of Appeals for the Seventh Circuit affirmed that part of the District Court's order suppressing all conversations of Minnie Kahn, but reversed that part of the order based on the marital privilege. 471 F.2d 191. The court held that under the wiretap order all intercepted conversations had to meet two requirements before they could be admitted into evidence:
6
'(1) that Irving Kahn be a party to the conversations, and (2) that his conversations intercepted be with 'others as yet unknown." Id., at 195.
7
The court then construed the statutory requirements of 18 U.S.C. §§ 2518(1)(b) (iv) and 2518(4)(a) that the person whose communications are to be intercepted is to be identified if known, as excluding from the term 'others as yet unknown' any 'persons (who) careful investigation by the government would disclose were probably using the Kahn telephones in conversations for illegal activities.' Id., at 196. Since the Government in this case had not shown that further investigation of Irving Kahn's activities would not have implicated Minnie in the gambling business, the Court of Appeals felt that Mrs. Kahn was not a 'person as yet unknown' within the purview of Judge Campbell's order.
8
We granted the Government's petition for certiorari, 411 U.S. 980, 93 S.Ct. 2275, 36 L.Ed.2d 956, in order to resolve a seemingly important issue involving the construction of this relatively new federal statute.7
9
At the outset, it is worth noting what issues are not involved in this case. First, we are not presented with an attack upon the constitutionality of any part of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Secondly, review of this interlocutory order does not involve any questions as to the propriety of the Justice Department's internal procedures in authorizing the application for the wiretap.8 Finally, no argument is presented that the federal agents failed to conduct the wiretap here in such a manner as to minimize the interception of innocent conversations.9 The question presented is simply whether the conversations that the Government wishes to introduce into evidence at the respondents' trial are made inadmissible by the 'others as yet unknown' language of Judge Campbell's order or by the corresponding statutory requirements of Title III.
10
In deciding that Minnie Kahn was not a person 'as yet unknown' within the meaning of the wiretap order, the Court of Appeals relied heavily on an expressed objective of Congress in the enactment of Title III: the protection of the personal privacy of those engaging in wire communications.10 In light of this clear congressional concern, the Court of Appeals reasoned, the Government could not lightly claim that a person whose conversations were intercepted was 'unknown' within the meaning of Title III. Thus, it was not enough that Mrs. Kahn was not known to be taking part in any illegal gambling business at the time that the Government applied for the wiretap order; in addition, the court held that the Government was required to show that such complicity would not have been discovered had a thorough investigation of Mrs. Kahn been conducted before the wiretap application.
11
In our view, neither the legislative history nor the specific language of Title III compels this conclusion. To be sure, Congress was concerned with protecting individual privacy when it enacted this statute. But it is also clear that Congress intended to authorize electronic surveillance as a weapon against the operations of organized crime.11 There is, of course, some tension between these two stated congressional objectives, and the question of how Congress struck the balance in any particular instance cannot be resolved simply through general reference to the statute's expressed concern for the protection of individual privacy. Rather, the starting point, as in all statutory construction, is the precise wording chosen by Congress in enacting Title III.
12
Section 2518(1) of Title 18, U.S.C. sets out in detail the requirements for the information to be included in an application for an order authorizing the interception of wire communications. The sole provision pertaining to the identification of persons whose communications are to be intercepted is contained in § 2518(1)(b)(iv), which requires that the application state 'the identity of the person, if known, committing the offense and whose communications are to be intercepted.' (Emphasis supplied.) This statutory language would plainly seem to require the naming of a specific person in the wiretap application only when law enforcement officials believe that such an individual is actually committing one of the offenses specified in 18 U.S.C. § 2516. Since it is undisputed here that Minnie Kahn was not known to the Government to be engaging in gambling activities at the time the interception order was sought, the failure to include her name in the application would thus seem to comport with the literal language of § 2518(1)(b)(iv).
13
Moreover, there is no reason to conclude that the omission of Minnie Kahn's name from the actual wiretap order was in conflict with any of the provisions of Title III. Section 2518(4)(a) requires that the order specify 'the identity of the person, if known, whose communications are to be intercepted.' Since the judge who prepares the order can only be expected to learn of the target individual's identity through reference to the original application, it can hardly be inferred that this statutory language imposes any broader requirement than the identification provisions of § 2518(1)(b)(iv).
14
In effect, the Court of Appeals read these provisions of § 2518 as if they required that the application and order identify 'all persons, known or discoverable, who are committing the offense and whose communications are to be intercepted.' But that is simply not what the statute says: identification is required only of those 'known' to be 'committing the offense.' Had Congress wished to engraft a separate requirement of 'discoverability' onto the provisions of Title III, it surely would have done so in language plainer than that now embodied in § 2518.
15
Moreover, the Court of Appeals' interpretation of § 2518 would have a broad impact. A requirement that the Government fully investigate the possibility that any likely user of a telephone was engaging in criminal activities before applying for an interception order would greatly subvert the effectiveness of the law enforcement mechanism that Congress constructed. In the case at hand, the Court of Appeals' holding would require the complete investigation, not only of Minnie Kahn, but also of the two teen-aged Kahn children, and other frequenters of the Kahn residence before a wiretap order could be applied for. If the telephone were in a store or an office, the Government might well be required to investigate everyone who had access to it—in some cases, literally hundreds of people—even though there was no reason to suspect that any of them were violating any criminal law. It is thus open to considerable doubt that such a requirement would ultimately serve the interests of individual privacy. In any event, the statute as actually drafted contains no intimation of such total investigative demands.12
16
In arriving at its reading of § 2518, the Court of Appeals seemed to believe that taking the statute at face value would result in a wiretap order amounting to a 'virtual general warrant,' since the law enforcement authorities would be authorized to intercept communications of anyone who talked on the named telephone line. 471 F.2d at 197. But neither the statute nor the wiretap order in this case would allow the federal agents such total unfettered discretion. By its own terms, the wiretap order in this case conferred authority to intercept only communications 'concerning the above-described (gambling) offenses.'13 Moreover, in accord with the statute the order required the agents to execute the warrant in such a manner as to minimize the interception of any innocent conversations.14 And the order limited the length of any possible interception to 15 days, while requiring status reports as to the progress of the wiretap to be submitted to the District Judge every five days, so that any possible abuses might be quickly discovered and halted. Thus, the failure of the order to specify that Mrs. Kahn's conversations might be the subject of interception hardly left the executing agents free to seize at will every communication that came over the wire—and there is no indication that such abuses took place in this case.15
17
We conclude, therefore, that Title III requires the naming of a person in the application or interception order only when the law enforcement authorities have probable cause to believe that that individual is 'committing the offense' for which the wiretap is sought. Since it is undisputed that the Government had no reason to suspect Minnie Kahn of complicity in the gambling business before the wire interceptions here began, it follows that under the statute she was among the class of persons 'as yet unknown' covered by Judge Campbell's order.
18
The remaining question is whether, under the actual language of Judge Campbell's order, only those intercepted conversations to which Irving Kahn himself was a party are admissible in evidence at the Kahns' trial, as the Court of Appeals concluded. The effect of such an interpretation of the wiretap order in this case would be to exclude from evidence the intercepted conversations between Minnie Kahn and the 'known gambling figure' concerning betting information. Again, we are unable to read either the District Court order or the underlying provisions of Title III as requiring such a result.
19
The order signed by Judge Campbell in this case authorized the Government to 'intercept wire communications of Irving Kahn and others as yet unknown . . . to and from two telephones, subscribed to by Irving Kahn.' The order does not refer to conversations between Irving Kahn and others; rather, it describes 'communications of Irving Kahn and others as yet unknown' to and from the target telephones. To read this language as requiring that Irving Kahn be a party to every intercepted conversation would not only involve a substantial feat of verbal gymnastics, but would also render the phrase 'and others as yet unknown' quite redundant, since Kahn perforce could not communicate except with others.
20
Moreover, the interpretation of the wiretap authorization adopted by the Court of Appeals is at odds with one of the stated purposes of Judge Campbell's order. The District Judge specifically found that the wiretap was needed to 'reveal the identities of (Irving Kahn's) confederates, their places of operation, and the nature of the conspiracy involved.' It is evident that such information might be revealed in conversations to which Irving Kahn was not a party. For example, a confederate might call in Kahn's absence, and leave either a name, a return telephone number, or an incriminating message. Or, one of Kahn's associates might himself come to the family home and employ the target telephones to conduct the gambling business.16 It would be difficult under any circumstances to believe that a District Judge meant such intercepted conversations to be inadmissible at any future trial; given the specific language employed by Judge Campbell in the wiretap order today before us, such a conclusion is simply untenable.
21
Nothing in Title III requires that, despite the order's language, it must be read to exclude Minnie Kahn's communications. As already noted, 18 U.S.C. §§ 2518(1)(b)(iv) and 2518(4)(a) require identification of the person committing the offense only 'if known.' The clear implication of this language is that when there is probable cause to believe that a particular telephone is being used to commit an offense but no particular person is identifiable, a wire interception order may, nevertheless, properly issue under the statute.17 It necessarily follows that Congress could not have intended that the authority to intercept must be limited to those conversations between a party named in the order and others, since at least in some cases, the order might not name any specific party at all.18
22
For these reasons, we hold that the Court of Appeals was in error when it interpreted the phrase 'others as yet unknown' so as to exclude conversations involving Minnie Kahn from the purview of the wiretap order. We further hold that neither the language of Judge Campbell's order nor that of Title III requires the suppression of legally intercepted conversations to which Irving Kahn was not himself a party.
23
Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.
24
It is so ordered.
25
Reversed and remanded.
26
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL concur, dissenting.
27
As a result of our decision in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040, a wiretap—long considered to be a special kind of a 'search' and 'seizure'—was brought under the reach of the Fourth Amendment.1 The dominant feature of that Amendment was the command that 'no Warrants shall issue, but upon probable cause'—a requirement which Congress wrote into 18 U.S.C. § 2518.2 By § 2518(3), the judge issuing the warrant must be satisfied by the facts submitted by the police that there is 'probable cause' for belief that 'an individual' is committing the described offense, § 2518(3) (a); that there is 'probable cause' for belief that particular communications concerning the offense will be attained by interception, § 2518(3)(b); that normal investigative procedures have been tried but have failed or reasonably appear to be unlikely to succeed or to be too dangerous, § 2518(3)(c), and that there is 'probable cause' for belief that named facilities are being used or are about to be used in the commission of the named offense, § 2518(3)(d). The Act goes on to state that the judge must specify 'the identity of the person, if known, whose communications are to be intercepted.' § 2518(4)(a).
28
The judge in the present case described the telephones to be tapped and found probable cause to believe 'Irving Kahn and others as yet unknown' were connected with the commission of specified interstate crimes. The judicial order authorized special federal agents to 'intercept wire communications of Irving Kahn and others as yet unknown' concerning these crimes.
29
The agents intercepted incriminating calls made by Irving Kahn and also incriminating calls made by his wife, Minnie Kahn. The District Court on motions to suppress disallowed use of the conversations of Minnie Kahn; and the Court of Appeals agreed, saying that the probable-cause order made it necessary for the Government to meet two requirements: (1) 'that Irving Kahn be a party to the conversations, and (2) that his conversations intercepted be with 'others as yet unknown," 471 F.2d 191, 195. That seems to be a commonsense interpretation, for Irving Kahn when using a phone talks not to himself but with 'others' who at the time were 'unknown.' To construe the warrant as allowing a search of the conversations of anyone putting in calls on the Kahn telephone amounts, as the Court of Appeals said, 'to a virtual general warrant in violation' of Mrs. Kahn's rights, id., at 197.
30
Whether the search would satisfy the Fourth Amendment is not before us, the decision below being based solely on the Act of Congress. Seizure of the words of Mrs. Kahn is not specified in the warrant. The narrow scope of the search that was authorized was limited to Mr. Kahn and those whom he called or who called him.
31
Congress in passing the present Act legislated, of course, in light of the general warrant. The general warrant historically included a license to search for everything in a named place as well as a license to search all and any places in the discretion of the officers. Frisbie v. Butler, 1 Kirby 213 (Conn.);3 Quincy's Mass.Rep. 1761 1772, App. I.
32
In light of the prejudice against general warrants which I believe Congress shared,4 I would not allow Mrs. Kahn's conversations to be impliedly covered by the warrant, for to do so allows a search of the entire list of outgoing and incoming calls to the Kahn telephones, even though no showing of probable cause had been made concerning any member of the household other than Mr. Kahn.
33
I cannot believe that Congress sanctioned that practice.
34
In the first place, though the agents just heard Mrs. Kahn using the phone on March 21 and though they continued their surveillance until March 25, they took no steps to broaden the warrant to include Mrs. Kahn.5
35
There was time6 to obtain a warrant concerning Mrs. Kahn. I assume that one could have been obtained between March 21 and March 25. Then a judge would have decided the particularity of the search of the Kahn household.
36
Under today's decision a wiretap warrant apparently need specify but one name and a national dragnet becomes operative. Members of the family of the suspect, visitors in his home, doctors, ministers, merchants, teachers, attorneys, and everyone having any possible connection with the Kahn household are caught up in this web.
37
I would affirm the judgment below.
1
The affiant, a special agent of the Federal Bureau of Investigation, provided detailed information about Kahn's alleged gambling activities. This information was derived from the personal observations of three unnamed sources, whose past reliability in gambling
investigations was described by the affiant. In addition, the information was corroborated by telephone company records showing calls on Kahn's telephones to and from a known gambling figure in another State.
The Government's application and the accompanying affidavit also claimed that one Jake Jacobs was using a telephone at his private residence to conduct an illegal gambling business. The subsequent order of the District Court authorizing wire interceptions also covered Jacobs' phone. Any communications intercepted over the Jacobs telephone, however, play no role in the issues now before us.
2
Title 18 U.S.C. § 2518 provides in pertinent part:
'(1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant's authority to make such application. Each application shall include the following information:
'(b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a par-
ticular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted;
'(3) Upon such application the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire or oral communications within the territorial jurisdiction of the court in which the judge is sitting, if the judge determines on the basis of the facts submitted by the applicant that—
'(a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter;
'(b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception;
'(c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;
'(d) there is probable cause for belief that the facilities from which, or the place where, the wire or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person.
'(4) Each order authorizing or approving the interception of any wire or oral communication shall specify—
'(a) the identity of the person, if known, whose communications are to be intercepted;
'(b) the nature and location of the communications facilities as to which, or the place where, authority to intercept is granted;
'(c) a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates;
'(d) the identity of the agency authorized to intercept the communications, and of the person authorizing the application; and
'(e) the period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.'
3
Title 18 U.S.C. § 2518(6) provides in pertinent part:
'Whenever an order authorizing interception is entered pursuant to this chapter, the order may require reports to be made to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. Such reports shall be made at such intervals as the judge may require.'
4
The Travel Act, 18 U.S.C. § 1952, provides:
'(a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to—
'(1) distribute the proceeds of any unlawful activity; or
'(2) commit any crime of violence to further any unlawful activity; or
'(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity,
'and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both.
'(b) As used in this section 'unlawful activity' means (1) any business enterprise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics, or controlled substances (as defined in section 102(6) of the Controlled Substances Act) or prostitution offenses in violation of the laws of the State in which they are committed or of the United States, or (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States.
'(c) Investigations of violations under this section involving liquor shall be conducted under the supervision of the Secretary of the Treasury.'
The indictment in this case stated that the alleged gambling activities attributed to the Kahns were in violation of Ill.Rev.Stat., c. 38, §§ 28—1(a), (2), and (10).
5
Title 18 U.S.C. § 2517(4) provides that:
'No otherwise privileged wire or oral communication intercepted in accordance with, or in violation of, the provisions of this chapter shall lose its privileged character.'
6
Title 18 U.S.C. § 2518(10)(b) gives the United States the right to take an interlocutory appeal from an order granting a motion to suppress intercepted wire communications. In addition, 18 U.S.C. § 3731 generally provides for appeals by the Government from pretrial orders suppressing evidence.
7
The Kahns' cross-petition for certiorari, raising the marital privilege argument, was denied. 411 U.S. 986, 93 S.Ct. 2271, 36 L.Ed.2d 964.
8
Such issues are currently sub judice in United States v. Giordano, 411 U.S. 905, 93 S.Ct. 1530, 36 L.Ed.2d 194, and United States v. Chavez, 412 U.S. 905, 93 S.Ct. 2292, 36 L.Ed.2d 969.
9
In relevant part, 18 U.S.C. § 2518(5) requires:
'Every order and extension thereof shall contain a provision that the authorization to intercept . . . shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter . . ..'
10
See Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. 90—351, Tit. III, §§ 801(b) and (d), 82 Stat. 211; S.Rep.No.1097, 90th Cong., 2d Sess., 66, U.S.Code Cong. & Admin.News 1968, p. 2112.
11
See § 801(c) of the above Act, 82 Stat. 211; S.Rep.No.1097, supra, at 66—76, U.S.Code Cong. & Admin.News 1968, p. 2112.
12
It is true, as the Court of Appeals noted, that 18 U.S.C. §§ 2518(1)(c) and 2518(3)(c) require the application to demonstrate, and the judge authorizing any wire interception to find, that 'normal investigative procedures' have either failed or appear unlikely to succeed. This language, however, is simply designed to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime. See generally S.Rep.No.1097, 90th Cong., 2d Sess., 101, U.S.Code Cong. & Admin.News 1968, p. 2112. Once the necessity for the interception has been shown, §§ 2518(1)(c) and 2518(3)(c) do not impose an additional requirement that the Government investigate all persons who may be using the subject telephone in order to determine their possible complicity.
13
Title 18 U.S.C. § 2518(4)(c) requires that an order authorizing wire interceptions contain 'a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates.' See also 18 U.S.C. § 2518(1)(b)(iii), imposing a similar requirement as to the application for a wiretap order.
But cf. 18 U.S.C. § 2517(5), providing that under certain circumstances intercepted conversations involving crimes other than those identified in the order may be used in evidence.
14
See n. 9, supra.
15
The fallacy in the Court of Appeals' 'general warrant' approach may be illustrated by examination of an analogous conventional search and seizure. If a warrant had been issued, upon a showing of probable cause, to search the Kahn residence for physical records of gambling operations, there could be no question that a subsequent seizure of such records bearing Minnie Kahn's handwriting would be fully lawful, despite the fact that she had not been identified in the warrant or independently investigated. In fact, as long as the property to be seized is described with sufficient specificity, even a warrant failing to name the owner of the premises at which a search is directed, while not the best practice, has been held to pass muster under the Fourth Amendment. See Hanger v. United States, 398 F.2d 91, 99 (C.A.8); Miller v. Sigler, 353 F.2d 424, 428 (C.A.8) (dictum); Dixon v. United States, 211 F.2d 547, 549 (C.A.5); Carney v. United States, 79 F.2d 821, 822 (C.A.6); United States v. Fitzmaurice, 45 F.2d 133, 135 (C.A.2) (L. Hand, J.); Mascolo, Specificity Requirements for Warrants under the Fourth Amendment: Defining the Zone of Privacy, 73 Dick.L.Rev. 1, 21. See also United States v. Fiorella, 468 F.2d 688, 691 (C.A.2) ('The Fourth Amendment requires a warrant to describe only 'the place to be searched, and the persons or things to be seized', not the persons from whom things will be seized').
16
By referring to the conversations of Kahn and others 'to and from' the two telephones, the order clearly envisioned that the 'others' might be either receiving or transmitting gambling information from the two Kahn telephones. Yet it could hardly be expected in these instances that Irving Kahn would always be the person on the other end of the line, especially since either bettors or Kahn's confederates in the gambling business might often have occasion to dial the telephone numbers in issue.
17
Such a situation might obtain if a bettor revealed to law enforcement authorities that he had repeatedly called a certain telephone number in order to place wagers, but had never been told the name of the person at the other end of the line.
18
In fact, the Senate rejected an amendment to Title III that would have provided that only the conversations of those specifically named in the wiretap order could be admitted into evidence. 114 Cong.Rec. 14718 (1968) (Amendment 735).
1
Fourth Amendment: 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'
2
Title 18 U.S.C. § 2518 provides in pertinent part:
'(1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant's authority to make such application. Each application shall include the following information:
'(b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including . . . (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted;
'(3) Upon such application the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire or oral communications within the territorial jurisdiction of the court in which the judge is sitting, if the judge determines on the basis of the facts submitted by the applicant that—
'(c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;
'(4) Each order authorizing or approving the interception of any wire or oral communication shall specify—
'(a) the identity of the person, if known, whose communications are to be intercepted.'
3
The warrant in the Frisbie case read in relevant part:
'(Y)ou are commanded forthwith to search all suspected places and persons that the complainant thinks proper, to find his lost pork, and to cause the same, and the person with whom it shall be found, or suspected to have taken the same, and have him to appear before some proper authority, to be examined according to law.' 1 Kirby 213—214.
The Court ruled:
'With regard to the warrant—Although it is the duty of a justice of the peace granting a search warrant (in doing which he acts judicially) to limit the search to such particular place or places, as he, from the circumstances, shall judge there is reason to suspect; and the arrest to such person or persons as the goods shall be found with: And the warrant in the present case, being general, to search all places, and arrest all persons, the complainant should suspect, is clearly illegal'; id., at 215.
4
The explicit requirements of the wiretapping provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., and their legislative history manifest a congressional effort to prevent law enforcement agents from proceeding by way of general search warrants. Section 2518(4)(a), of course, requires that a wiretap authorization order identify the person, if known, whose communications are to be intercepted. Sections 2518(4)(b) and (c) require that the order also specify the nature and location of the communications facilities as to which, or the place where, authority to intercept is granted, and also particularly describe the type of communication to be intercepted and the particular offense to which it relates. Congress also provided that no order 'may authorize or approve the interception of any wire or oral communication for any period longer than is necessary to achieve the objective of the authorization.' § 2518(5). An authorization order, moreover, must specify that the electronic surveillance 'shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter.' Ibid.
Before a wiretap order can issue, Title III also demands that law enforcement officers applying for the order provide the judge with information describing the offense, the facility, the type of communication, and the identity of the person, if known, committing the offense and whose communications are to be intercepted, § 2518(1)(b), because in the view of Congress '(e)ach of these requirements reflects the constitutional command of particularization.' S.Rep.No.1097, 90th Cong., 2d Sess., 101, U.S.Code Cong. & Admin.News 1968, p. 2190. Furthermore, § 2518(3) requires the judge, before issuing a wiretap order, to find that there is probable cause to believe that an individual is involved with a particular offense, that particular communications concerning that offense will be intercepted, and that specific facilities are being used or are about to be used in connection with the commission of such offense, or are leased to, listed to, or commonly used by the individual. Congress inserted these provisions because it felt that, with them, 'the order will link up specific person, specific offense, and specific place. Together they are intended to meet the test of the Constitution that electronic surveillance techniques be used only under the most precise and discriminate circumstances, which fully comply with the requirement of particularity.' S.Rep.No.1097, supra, at 102, U.S.Code Cong. & Admin.News 1968, p. 2191.
See 74—75; 114 Cong.Rec. 14712, 14750 (remarks of Sen. McClellan); id., at 14728 (Sen. Tydings); id., at 14715 (Sen. Tower); id., at 14763 (Sen. Percy); id., at 14748 (Sen. Mundt).
5
If the statement made by Mrs. Kahn on the telephone March 21 was incriminating, there would be a question whether it could be the basis for obtaining a broadening of the warrant to include her without violating Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319. In that case papers had been seized by officers in violation of the parties' Fourth Amendment rights but used by the officials as a basis for demanding in proper form that the owners produce the papers. Mr. Justice Holmes, speaking for the Court, rejected that procedure, saying:
'The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course, this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government's own wrong cannot be used by it in the way proposed.' Id., 251 U.S., at 392, 40 S.Ct., at 183.
6
Cf. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210; Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663.
| 01
|
415 U.S. 239
94 S.Ct. 1179
39 L.Ed.2d 297
UNITED STATESv.Norbert Nisan KAHAN.
No. 73—428.
Decided Feb. 25, 1974.
PER CURIAM.
1
Respondent, a former Immigration inspector, was convicted by a jury in the District Court of numerous counts under a multiple-count indictment; the conviction covered 20 counts of improperly receiving gratuities for official acts, in violation of 18 U.S.C. § 201(g), and one of perjury before the grand jury, in violation of 18 U.S.C. s 1623, arising out of a scheme to defraud nonresident aliens and the Immigration and Naturalization Service. The Court of Appeals reversed respondent's conviction and remanded the case for retrial. 479 F.2d 290 (CA2 1973). Respondent's motion to proceed in forma pauperis in this Court, and the petition for a writ of certiorari, are granted. The judgment of the Court of Appeals is reversed, and the case is remanded to the District Court for reinstatement of the judgment of conviction.
2
At respondent's arraignment, counsel was appointed under the Criminal Justice Act of 1964, 18 U.S.C. § 3006A(b), to represent him after he requested the appointment and stated that he was without funds. In response to a direct question as to whether he had funds to employ an attorney, he failed to disclose that he had access to and control of four savings accounts in which he had deposited approximately $27,000 during 1970 and 1971,1 and from which he made frequent withdrawals immediately subsequent to the arraignment. The accounts were apparently established by respondent in so-called 'Totten trusts' for his children as the intended donees; under New York law these trusts were revocable at respondent's will. In re Totten, 179 N.Y. 112, 71 N.E. 748 (1904). The deposits to these undisclosed accounts aggregated more than the $25,000 which respondent reported as his total legitimate income on his tax returns for 1970 and 1971, and evidence of the deposits was admitted at trial as supporting the inference that he improperly received the gratuities as was charged. As part of the Government's case in chief the District Court admitted evidence of respondent's statements to the court as to his lack of funds.2 The statements were admitted as false exculpatory statements evincing respondent's consciousness that the bank deposits were incriminating, and as evidence of willfulness in making statements before the grand jury with knowledge of their falsity.
3
The Court of Appeals held that the admission of respondent's false statements violated his Fifth Amendment privilege against compulsory self-incrimination and his Sixth Amendment right to counsel because in its view the 'ultimate truth of the matter asserted in the pre-trial request for appointed counsel is of no moment. See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247.' 479 F.2d, at 292. The Court of Appeals cited United States v. Branker, 418 F.2d 378 (CA2 1969), for its application of Simmons v. United States, 330 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), to the assertion of the Sixth Amendment right. The Court of Appeals' reliance on Simmons misconceives the thrust of that holding.
4
In Simmons one of the defendants, in an attempt to establish standing to move for suppression of a suitcase containing incriminating evidence seized by the police, testified at the pretrial suppression hearing that the suitcase was similar to one he owned. The motion to suppress was denied, and the Government used the defendant's testimony against him in its case in chief. Viewing the testimony as an 'integral part' of the claim for exclusion, the Court held its use impermissible because it conditioned the exercise of what the defendant 'believed . . . to be a valid Fourth Amendment claim' on a waiver of the constitutional privilege against compulsory self-incrimination. Id., at 391, 394, 88 S.Ct. at 975, 976.
5
To establish standing to move for suppression of evidence assertedly illegally seized, the claimant must show the kind of interest in that evidence set forth in Brown v. United States, 411 U.S. 223, 229—230, 93 S.Ct. 1565, 1569—1570, 36 L.Ed.2d 208 (1973), which would necessarily be incriminating should the motion fail and the defendant's interest therein be introduced. The need to choose between waiving the Fifth Amendment privilege and asserting an incriminating interest in evidence sought to be suppressed, or invoking the privilege but thereby forsaking the claim for exclusion, creates what the Court characterized as an 'intolerable' need to surrender one constitutional right in order to assert another. Simmons, 390 U.S., at 394, 88 S.Ct. at 976.
6
Even assuming that the Simmons principle was appropriately extended to Sixth Amendment claims for appointed counsel by the Branker holding, a question which we do not now decide, cf. McGautha v. California, 402 U.S. 183, 210—213, 91 S.Ct. 1454, 1468 1470, 28 L.Ed.2d 711 (1971), that principle cannot be applied to protect respondent here. Simmons barred the use of pretrial testimony at trial to prove its incriminating content. Here, by contrast, the incriminating component of respondent's pretrial statements derives not from their content, but from respondent's knowledge of their falsity.3 The truth of the matter was that respondent was not indigent, and did not have a right to appointment of counsel under the Sixth Amendment. We are not dealing, as was the Court in Simmons, with what was 'believed' by the claimant to be a 'valid' constitutional claim, see n. 2, supra. Respondent was not, therefore, faced with the type of intolerable choice Simmons sought to relieve. The protective shield of Simmons is not to be converted into a license for false representations on the issue of indigency free from the risk that the claimant will be held accountable for his falsehood. Cf. Harris v. New York, 401 U.S. 222, 226, 91 S.Ct. 643, 646, 28 L.Ed.2d 1 (1971).
7
Reversed and remanded.
8
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN concurs, dissenting.
9
Mr. Justice HARLAN speaking for the Court in Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 976, 19 L.Ed.2d 1247 said: '(W)e find it intolerable that one constitutional right should have to be surrendered in order to assert another.' In that case an accused testified on a motion to suppress evidence in order to protect his Fourth Amendment rights but later discovered that the testimony would be used by the prosecution against him. We held that the testimony the defendant gave on a motion to suppress evidence on Fourth Amendment grounds was not admissible against him at trial on the issue of guilt 'unless he makes no objection.' Ibid.
10
If an accused in order to protect his Fourth Amendment right gives testimony that is protected by the Self-Incrimination Clause of the Fifth Amendment, I fail to see how testimony protective of Sixth Amendment rights is on a lower level. In United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138, we held unenforceable provisions of a federal act which made the death penalty applicable only to those who contested their guilt before a jury. The 'inevitable effect' in that case was 'to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial.' Id., at 581, 88 S.Ct., at 1216.
11
The suggestion that no Sixth Amendment right existed in this case does not find support in the record. There is no finding as to the amount of the funds restricted and beyond the reach of the respondent, or as to what free funds he actually had nor as to what were his obligations. Yet all of these facts would be necessary before we could reach that conclusion. This Court in passing on applications to proceed in forma pauperis looks not only to what the applicant's income and/or cash position is but what his periodic liabilities are. Thus a person with an income of $600 a month has been allowed to proceed in forma pauperis where his present obligations consume his entire income. The mere fact that one has money in the bank is therefore not enough to make frivolous his claim of indigency for purposes of in forma pauperis. We may not therefore responsibly say there was no genuine Sixth Amendment right to counsel in this case.
12
Moreover, whether one has a bona fide claim to appointed counsel is a legal point which laymen should not have to determine before they may speak without fear. The funds here involved were in Totten trusts and Kahan thought that he had no access to them under the law. One should not have to seek advice on points of law nor have an audit conducted on his personal finances before he feels free to assert his Sixth Amendment rights. Statements made in good faith may later turn out to be false and all those who utter the statements run the risk that they may not be able to convince others of their sincerity. If 'tension' between the Sixth and Fifth Amendments arises only when judges, with the benefit of hindsight and legal acumen not possessed by the defendant, later determine the Sixth Amendment claim to be 'bona fide,' many indigents with legitimate claims to appointed counsel will hesitate to speak freely in asserting the claim. As the court below phrased it, the defendant will be 'forced to gamble his right to remain silent against his need for counsel or his understanding of the requirements for appointment of counsel.' 479 F.2d 290, 292.
13
The principle of Simmons and Jackson is applicable, if reason is to prevail, where rights under the Fifth Amndment are entangled with rights under either the Fourth or the Sixth Amendment. There is such entanglement here, for the Fifth Amendment is as applicable to evidence concerning crimes with which the accused has not yet been charged as it is to evidence concerning crimes already charged. That was so held by a unanimous Court in Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 198, 35 L.Ed. 1110:
14
'It is broadly contended on the part of the appellee that a witness is not entitled to plead the privilege of silence, except in a criminal case against himself; but such is not the language of the Constitution. Its provision is that no person shall be compelled in any criminal case to be a witness against himself. This provision must have a broad construction in favor of the right which it was intended to secure. The matter under investigation by the grand jury in this case was a criminal matter, to inquire whether there had been a criminal violation of the Interstate Commerce Act. If Counselman had been guilty of the matters inquired of in the questions which he refused to answer, he himself was liable to criminal prosecution under the act. The case before the grand jury was, therefore, a criminal case. The reason given by Counselman for his refusal to answer the questions was that his answers might tend to criminate him, and showed that his apprehension was that, if he answered the questions truly and fully (as he was bound to do if he should answer them at all) the answers might show that he had committed a crime against the Interstate Commerce Act, for which he might be prosecuted. His answers, therefore, would be testimony against himself, and he would be compelled to give them in a criminal case.'
15
The Court of Appeals was correct in its application of this issue and I would affirm.
16
Mr. Justice MARSHALL, dissenting.
17
As the Court's per curiam opinion indicates, there is a tension between the Sixth Amendment right to appointed counsel for indigent defendants and the Fifth Amendment comparable to the tension between the Fourth and Fifth Amendments recognized in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). The situation presented in United States v. Branker, 418 F.2d 378 (CA2 1969), is instructive. There, in truthfully revealing his financial situation at the pretrial indigency hearing, the defendant disclosed that he had received $250 from a coconspirator. In order to assert his Sixth Amendment right to counsel, in other words, he was forced to provide potentially incriminating evidence.
18
As I view the matter, this tension between the Fifth and Sixth Amendments could be resolved in one of two ways. The first alternative is to permit the defendant seeking counsel as an indigent to lie about his financial situation wherever the truth might be incriminating. As a second alternative, we could require the defendant seeking appointment of counsel to tell the truth at the indigency hearing, and subject him to sanctions for his willful and knowing failure to do so, but bar use of any incriminating information so revealed.
19
I, for one, do not consider the first alternative to be acceptable. Nor did the Court of Appeals in this case, for it conceded that if the defendant willfully misrepresented his assets at the pretrial hearing, he could be prosecuted for perjury or false statement. 479 F.2d 290, 292 n. 3 (CA2 1973). See, e.g., United States v. Birrell, 470 F.2d 113 (CA2 1972). Likewise, respondent's Memorandum in Opposition disclaims any 'right to lie' at the pretrial hearing.
20
In view of its concession that the defendant can be penalized for willfully and knowingly falsifying information at a pretrial suppression hearing, I cannot understand the Court of Appeals' conclusion that this sanction can only take the form of a separate prosecution for perjury. If the defendant's willfully false statement can be used against him at a subsequent perjury trial, I see no reason why it cannot be used against him at his pending criminal trial.
21
My Brother DOUGLAS raises the possibility that a defendant will fail to exercise his Sixth Amendment rights for fear that a court may later find the Sixth Amendment claim not bona fide or his statements not made in good faith. This reasoning would not only control the present case, however, but would also bar the Government from bringing a perjury prosecution against a defendant who knowingly and willfully lies under oath at his pretrial hearing. For it could likewise be argued that a defendant will fail to exercise his Sixth Amendment rights for fear that a jury may later determine that he committed perjury at the indigency hearing.
22
The problem is not a frivolous one, but its solution does not lie, in my view, in permitting the defendant to perjure himself and remain free from sanction. Rather, it lies in procedures to ensure that the imposition of sanctions in appropriate cases will not in fact discourage good-faith assertions of Sixth Amendment claims. With respect to a subsequent perjury prosecution, the discouragement of legitimate Sixth Amendment claims is minimized by the requirement that the Government convince a jury that the defendant willfully and knowingly gave false testimony. I would provide a similar protection where the Government seeks to use a defendant's allegedly false pretrial statement as evidence against him at his pending criminal trial. Where such statement was purportedly given in furtherance of a Sixth Amendment right, I would bar the Government from introducing it in evidence unless the Government proved and the trial court found that the defendant had knowingly and willfully provided false information.
23
The solution, then, to the tension between the Fifth and Sixth Amendments is to require the defendant seeking appointment of counsel to tell the truth at his indigency hearing, and to bar use of any incriminating information so revealed. This approach is fully consistent with our Fifth Amendment cases. '(A) witness protected by the privilege may rightfully refuse to answer unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant.' Lefkowitz v. Turley, 414 U.S. 70, 78, 94 S.Ct. 316, 322, 38 L.Ed.2d 274 (1973). Where the Government requires the defendant to speak in order to assert his Sixth Amendment rights, it must shelter him with the immunity provided by the Fifth Amendment for such compelled testimony. Cf. United States v. Branker, supra.
24
Applying these principles to the present case, I believe respondent's conviction was properly reversed by the Court of Appeals. At trial, Kahan claimed to have understood that the Totten trust accounts he opened belonged to his children, with himself merely the custodian. See 479 F.2d at 292 n. 3 and 296 n. 3. The District Court never made a finding, before admitting evidence of Kahan's pretrial statements, that Kahan had willfully misrepresented his financial situation and in fact knew that the funds in the Totten trusts were his. The court found sufficient proof that the statements were false to warrant their admission, but this finding does not satisfy the test I would apply. The mere fact that a false statement was made is not enough. Statements which turn out to be false are often made in the good-faith but mistaken belief they are correct, cf. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and we should be cautious not to penalize good-faith assertions of Sixth Amendment rights.
25
I would affirm the judgment of the Court of Appeals.
1
The transcript of the colloquy at arraignment reads in part as follows:
'The Court: Your name, sir?
'The Defendant: I am Norbert Kahan, sir.
'The Court: Have you an attorney?
'The Defendant: No, sir.
'The Court: Have you any money to hire an attorney?
'The Defendant: I do, sir, but it's blocked by my wife from whom I am divorced.
'The Court: Do you want a week to try and straighten that out?
'The Defendant: There is a suit coming up sometime early next year.
'The Court: We can't wait until next year.
'The Defendant: Then if it pleases the Court I would like to have the Court assign me an attorney.
'The Court: You have no current funds?
'The Defendant: I beg your pardon?
'The Court: You have no current funds at all?
'The Defendant: No, sir.
'The Court: Are you working?
'The Defendant: No, sir.
'The Court: I'm going to assign Mr. Jesse Berman at this point.'
At trial it was determined that respondent never made these averments under oath, either orally or by presentment of written affidavit.
2
Respondent contended at trial that he understood himself to be merely the custodian of the four 'Totten trusts,' which he said belonged to his children. The trial judge ruled, out of the jury's presence, that there was sufficient proof of falsity to warrant the admission of his statements, that the false statements were relevant to issues on trial, and that the prejudicial effect of the statements did not outweigh their probative value. The jury was ultimately instructed that it should consider respondent's false statements only for the limited purposes, as set forth in text, for which they were introduced.
3
The grounds for admitting respondent's false statements, supra, at 241, make it clear by necessary implication that the trial judge—who alone decides the question of relevancy—thought respondent had willfully made false representations. Respondent's withdrawals from the aforementioned accounts shortly after he denied having current funds lend support to that view.
| 01
|
415 U.S. 250
94 S.Ct. 1076
39 L.Ed.2d 306
MEMORIAL HOSPITAL et al., Appellants,v.MARICOPA COUNTY et al.
No. 72—847.
Argued Nov. 6, 1973.
Decided Feb. 26, 1974.
Syllabus
This is an appeal from a decision of the Arizona Supreme Court upholding the constitutionality of an Arizona statute requiring a year's residence in a county as a condition to an indigent's receiving nonemergency hospitalization or medical care at the county's expense. Held: The durational residence requirement, in violation of the Equal Protection Clause, creates an 'invidious classification' that impinges on the right of interstate travel by denying newcomers 'basic necessities of life.' Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600. Pp. 253—270.
(a) Such a requirement, since it operates to penalize indigents for exercising their constitutional right of interstate migration, must be justified by a compelling state interest. Shapiro v. Thompson, supra; Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274. Pp. 253—262.
(b) The State has not shown that the durational residence requirement is 'legitimately defensible' in that it furthers a compelling state interest, and none of the purposes asserted as justification for the requirement—fiscal savings, inhibiting migration of indigents generally, deterring indigents from taking up residence in the county solely to utilize the medical facilities, protection of longtime residents who have contributed to the community particularly by paying taxes, maintaining public support of the county hospital, administrative convenience in determining bona fide residence, prevention of fraud, and budget predictability—satisfies the State's burden of justification and insures that the State, in pursuing its asserted objectives, has chosen means that do not unnecessarily impinge on constitutionally protected interests. Pp. 262—269.
108 Ariz. 373, 498 P.2d 461, reversed and remanded.
Mary M. Schroeder, Washington, D.C., for appellants.
William J. Carter, III, Phoenix, Ariz., for appellees.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
This case presents an appeal from a decision of the Arizona Supreme Court upholding an Arizona statute requiring a year's residence in a county as a condition to receiving nonemergency hospitalization or medical care at the county's expense. The constitutional question presented is whether this durational residence requirement is repugnant to the Equal Protection Clause as applied by this Court in Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).
2
* Appellant Henry Evaro is an indigent suffering from a chronic asthmatic and bronchial illness. In early June 1971, Mr. Evaro moved from New Mexico to Phoenix in Maricopa County, Arizona. On July 8, 1971, Evaro had a severe respiratory attack and was sent by his attending physician to appellant Memorial Hospital, a nonprofit private community hospital. Pursuant to the Arizona statute governing medical care for indigents, Memorial notified the Maricopa County Board of Supervisors that it had in its charge an indigent who might qualify for county care and requested that Evaro be transferred to the County's public hospital facility. In accordance with the approved procedures, Memorial also claimed reimbursement from the County in the amount of $1,202.60, for the care and services it had provided Evaro.
3
Under Arizona law, the individual county governments are charged with the mandatory duty of providing necessary hospital and medical care for their indigent sick.1 But the statute requires an indigent to have been a resident of the County for the preceding 12 months in order to be eligible for free nonemergency medical care.2 Maricopa County refused to admit Evaro to its public hospital or to reimburse Memorial solely because Evaro had not been a resident of the County for the preceding year. Appellees do not dispute that Evaro is an indigent or that he is a bona fide resident of Maricopa County.3
4
This action was instituted to determine whether appellee Maricopa County was obligated to provide medical care for Evaro or was liable to Memorial for the costs it incurred because of the County's refusal to do so. This controversy necessarily requires an adjudication of the constitutionality of the Arizona durational residence requirement for providing free medical care to indigents.
5
The trial court held the residence requirement unconstitutional as a violation of the Equal Protection Clause. In a prior there-judge federal court suit against Pinal County, Arizona, the District Court had also declared the residence requirement unconstitutional and had enjoined its future application in Pinal County. Valenciano v. Bateman, 323 F.Supp. 600 (D.C.Ariz.1971).4 Nonetheless, the Arizona Supreme Court upheld the challenged requirement. To resolve this conflict between a federal court and the highest court of the State, we noted probable jurisdiction, 410 U.S. 981, 93 S.Ct. 1499, 36 L.Ed.2d 176 (1972), and we reverse the judgment of the Arizona Supreme Court.
II
6
In determining whether the challenged durational residence provision violates the Equal Protection Clause, we must first determine what burden of justification the classification created thereby must meet, by looking to the nature of the classification and the individual interests affected.5 The Court considered similar durational residence requirements for welfare assistance in Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). The Court observed that those requirements created two classes of needy residents 'indistinguishable from each other except that one is composed of residents who have resided a year or more, and the second of residents who have resided less than a year, in the jurisdiction. On the basis of this sole difference the first class (was) granted and second class (was) denied welfare aid upon which may depend the ability . . . to obtain the very means to subsist food, shelter, and other necessities of life.' Id., at 627, 89 S.Ct., at 1327. The Court found that because this classification impinged on the constitutionally guaranteed right of interstate travel, it was to be judged by the standard of whether it promoted a compelling state interest.6 Finding such an interest wanting, the Court held the challenged residence requirements unconstitutional.
7
Appellees argue that the residence requirement before us is distinguishable from those in Shapiro, while appellants urge that Shapiro is controlling. We agree with appellants that Arizona's durational residence requirement for free medical care must be justified by a compelling state interest and that, such interests being lacking, the requirement is unconstitutional.
III
8
The right of interstate travel has repeatedly been recognized as a basic constitutional freedom.7 Whatever its ultimate scope, however, the right to travel, was involved in only a limited sense in Shapiro. The Court was there concerned only with the right to migrate, 'with intent to settle and abide'8 or, as the Court put it, 'to migrate, resettle, find a new job, and start a new life.' Id., at 629, 89 S.Ct., at 1328. Even a bona fide residence requirement would burden the right to travel, if travel meant merely movement. But, in Shapiro, the Court explained that '(t)he residence requirement and the one-year waiting-period requirement are distinct and independent prerequisites' for assistance and only the latter was held to be unconstitutional. Id., at 636, 89 S.Ct., at 1332. Later, in invalidating a durational residence requirement for voter registration on the basis of Shapiro, we cautioned that our decision was not intended to 'cast doubt on the validity of appropriately defined and uniformly applied bona fide residence requirements.' Dunn v. Blumstein, 405 U.S. 330, 342 n. 13, 92 S.Ct. 995, 1003 (1972).
IV
9
The appellees argue that the instant county residence requirement is distinguishable from the state residence requirements in Shapiro, in that the former penalizes, not interstate, but rather intrastate, travel. Even were we to draw a constitutional distinction between interstate and intrastate travel, a question we do not now consider, such a distinction would not support the judgment of the Arizona court in the case before us. Appellant Evaro has been effectively penalized for his interstate migration, although this was accomplished under the guise of a county residence requirement. What would be unconstitutional if done directly by the State can no more readily be accomplished by a county at the State's direction. The Arizona Supreme Court could have construed the waiting-period requirement to apply to intrastate but not interstate migrants;9 but it did not do so, and 'it is not our function to construe a state statute contrary to the construction given it by the highest court of a State.' O'Brien v. Skinner, 414 U.S. 524, 94 S.Ct. 740, 38 L.Ed.2d 702 (1974).
V
10
Although any durational residence requirement impinges to some extent on the right to travel, the Court in Shapiro did not declare such a requirement to be per se unconstitutional. The Court's holding was conditioned, 394 U.S., at 638 n. 21, 89 S.Ct., at 1333, by the caveat that some 'waiting-period or residence requirements . . . may not be penalties upon the exercise of the constitutional right of interstate travel.' The amount of impact required to give rise to the compelling-state-interest test was not made clear.10 The Court spoke of the requisite impact in two ways. First, we considered whether the waiting period would deter migration:
11
'An indigent who desires to migrate . . . will doubtless hesitate if he knows that he must risk making the move without the possibility of falling back on state welfare assistance during his first year of residence, when his need may be most acute.' Id., at 629, 89 S.Ct., at 1329.
12
Second, the Court considered the extent to which the residence requirement served to penalize the exercise of the right to travel.
13
The appellees here argue that the denial of nonemergency medical care, unlike the denial of welfare, is not apt to deter migration; but it is far from clear that the challenged statute is unlikely to have any deterrent effect. A person afflicted with a serious respiratory ailment, particularly an indigent whose efforts to provide a living for his family have been inhibited by his incapacitating illness, might well think of migrating to the clean dry air of Arizona, where relief from his disease could also bring relief from unemployment and poverty. But he may hesitate if he knows that he must make the move without the possibility of falling back on the State for medical care should his condition still plague him or grow more severe during his first year of residence.
14
It is true, as appellees argue, that there is no evidence in the record before us that anyone was actually deterred from traveling by the challenged restriction. But neither did the majority in Shapiro find any reason 'to dispute the 'evidence that few welfare recipients have in fact been deterred (from moving) by residence requirements.' . . . Indeed, none of the litigants had themselves been deterred.' Dunn, 405 U.S., at 340, 92 S.Ct., at 1002 (citations omitted). An attempt to distinguish Shapiro by urging that a durational residence requirement for voter registration did not deter travel, was found to be a 'fundamental misunderstanding of the law' in Dunn, supra, at 339—340, 92 S.Ct. at 1001:11
15
'Shapiro did not rest upon a finding that denial of welfare actually deterred travel. Nor have other 'right to travel' cases in this Court always relied on the presence of actual deterrence. In Shapiro we explicitly stated that the compelling state interest test would be triggered by 'any classification which serves to penalize the exercise of that right (to travel) . . .." (Emphasis in original; footnote omitted.)
16
Thus, Shapiro and Dunn stand for the proposition that a classification which 'operates to Penalize those persons . . . who have exercised their constitutional right of interstate migration,' must be justified by a compelling state interest. Oregon v. Mitchell, 400 U.S. 112, 238, 91 S.Ct. 260, 321, 27 L.Ed.2d 272 (1970) (separate opinion of Brennan, White, and Marshall, JJ.) (emphasis added). Although any durational residence requirement imposes a potential cost on migration, the Court in Shapiro cautioned that some 'waiting-period(s) . . . may not be penalties.' 394 U.S., at 638 n. 21, 89 S.Ct., at 1333. In Dunn v. Blumstein, supra, the Court found that the denial of the franchise, 'a fundamental political right,' Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1382, 12 L.Ed.2d 506 (1964), was a penalty requiring application of the compelling-state-interest test. In Shapiro, the Court found denial of the basic 'necessities of life' to be a penalty. Nonetheless, the Court has declined to strike down state statutes requiring one year of residence as a condition to lower tuition at state institutions of higher education.12
17
Whatever the ultimate parameters of the Shapiro penalty analysis,13 it is at least clear that medical care is as much 'a basic necessity of life' to an indigent as welfare assistance.14 And, governmental privileges or benefits necessary to basic sustenance have often been viewed as being of greater constitutional significance than less essential forms of governmental entitlements. See, e.g., Shapiro, supra; Goldberg v. Kelly, 397 U.S. 254, 264, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287 (1970); Sniadach v. Family Finance Corp., 395 U.S. 337, 340—342, 89 S.Ct. 1820, 1822—1823, 23 L.Ed.2d 349 (1969). It would be odd, indeed, to find that the State of Arizona was required to afford Evaro welfare assistance to keep him from discomfort of inadequate housing or the pangs of hunger but could deny him the medical care necessary to relieve him from the wheezing and gasping for breath that attend his illness.15
18
Nor does the fact that the durational residence requirement is inapplicable to the provision of emergency medical care save the challenged provision from constitutional doubt. As the Arizona Supreme Court observed, appellant 'Evaro was an indigent person who required continued medical care for the preservation of his health and well being . . .,' even if he did not require immediate emergency care.16 The State could not deny Evaro care just because, although gasping for breath, he was not in immediate danger of stopping breathing altogether. To allow a serious illness to go untreated until it requires emergency hospitalization is to subject the sufferer to the danger of a substantial and irrevocable deterioriation in his health. Cancer, heart disease, or respiratory illness, if untreated for a year, may become all but irreversible paths to pain, disability, and even loss of life. The denial of medical care is all the more cruel in this context, falling as it does on indigents who are often without the means to obtain alternative treatment.17
19
Finally, appellees seek to distinguish Shapiro as involving a partially federally funded program. Maricopa County has received federal funding for its public hospital18 but, more importantly, this Court has held that whether or not a welfare program is federally funded is irrelevant to the applicability of the Shapiro analysis Pease v. Hansen, 404 U.S. 70, 92 S.Ct. 318, 30 L.Ed.2d 224 (1971); Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971).
20
Not unlike the admonition of the Bible that, 'Ye shall have one manner of law, as well for the stranger, as for one of your own country,' Leviticus 24:22 (King James Version), the right of interstate travel must be seen as insuring new residents the same right to vital government benefits and privileges in the States to which they migrate as are enjoyed by other residents. The State of Arizona's durational residence requirement for free medical care penalizes indigents for exercising their right to migrate to and settle in that State.19 Accordingly, the classification created by the residence requirement, 'unless shown to be necessary to promote a compelling governmental interest, is unconstitutional.' Shapiro, 394 U.S. at 634, 89 S.Ct., at 1331. (Emphasis in original.)
VI
21
We turn now to the question of whether the State has shown that its durational residence requirement is 'legitimately defensible,'20 in that it furthers a compelling state interest.21 A number of purposes are asserted to be served by the requirement and we must determine whether these satisfy the appellees' heavy burden of justification, and insure that the State, in pursuing its asserted objectives, has chosen means that do not unnecessarily burden constitutionally protected interests. NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963).
The Arizona Supreme Court observed:
22
'Absent a residence requirement, any indigent sick person . . . could seek admission to (Maricopa County's) hospital, the facilities being the newest and most modern in the state, and the resultant volume would cause long waiting periods or severe hardship on (the) county if it tried to tax its property owners to support (these) indigent sick . . ..' 108 Ariz. 373, 376, 498 P.2d 461, 464.
23
The County thus attempts to sustain the requirement as a necessary means to insure the fiscal integrity of its free medical care program by discouraging an influx of indigents, particularly those entering the County for the sole purpose of obtaining the benefits of its hospital facilities.
24
First, a State may not protect the public fisc by drawing an invidious distinction between classes of its citizens, Shapiro, supra, 394 U.S., at 633, 89 S.Ct., at 1330, so appellees must do more than show that denying free medical care to new residents saves money. The conservation of the taxpayers' purse is simply not a sufficient state interest to sustain a durational residence requirement which, in effect, severely penalizes exercise of the right to freely migrate and settle in another State. See Rivera v. Dunn, 329 F.Supp. 554 (D.C.Conn.1971), aff'd, 404 U.S. 1054, 92 S.Ct. 742, 30 L.Ed.2d 743 (1972).
25
Second, to the extent the purpose of the requirement is to inhibit the immigration of indigents generally, that goal is constitutionally impermissible.22 And, to the extent the purpose is to deter only those indigents who take up residence in the County solely to utilize its new and modern public medical facilities, the requirement at issue is clearly overinclusive. The challenged durational residence requirement treats every indigent, in his first year of residence, as if he came to the jurisdiction solely to obtain free medical care. Such a classification is no more defensible than the waiting period in Shapiro, supra, of which the Court said:
26
'(T)he class of barred newcomers is all-inclusive, lumping the great majority who come to the State for other purposes with those who come for the sole purpose of collecting higher benefits.' 394 U.S., at 631, 89 S.Ct., at 1330.
27
Moreover, 'a State may no more try to fence out those indigents who seek (better public medical facilities) than it may try to fence out indigents generally.' Ibid. An indigent who considers the quality of public hospital facilities in entering the State is no less deserving than one who moves into the State in order to take advantage of its better educational facilities. Id., at 631—632, 89 S.Ct., at 1329—1330.
28
It is also useful to look at the other side of the coin—at who will bear the cost of indigents' illnesses if the County does not provide needed treatment. For those newly arrived residents who do receive at least hospital care, the cost is often borne by private nonprofit hospitals, like appellant Memorial—many of which are already in precarious financial straits.23 When absorbed by private hospitals, the costs of caring for indigents must be passed on to paying patients and 'at a rather inconvenient time' adding to the already astronomical costs of hospitalization which bear so heavily on the resources of most Americans.24 The financial pressures under which private nonprofit hospitals operate have already led many of them to turn away patients who cannot pay or to severely limit the number of indigents they will admit.25 And, for those indigents who receive no care, the cost is, of course, measured by their own suffering.
29
In addition, the County's claimed fiscal savings may well be illusory. The lack of timely medical care could cause a patient's condition to deteriorate to a point where more expensive emergency hospitalization (for which no durational residence requirement applies) is needed. And, the disability that may result from letting an untreated condition deteriorate may well result in the patient and his family becoming a burden on the State's welfare rolls for the duration of his emergency care, or permanently, if his capacity to work is impaired.26
30
The appellees also argue that eliminating the durational residence requirement would dilute the quality of services provided to longtime residents by fostering an influx of newcomers and thus requiring the County's limited public health resouces to serve an expanded pool of recipients. Appellees assert that the County should be able to protect its longtime residents because of their contributions to the community, particularly through the past payment of taxes. We rejected this 'contributory' rationale both in Shapiro and in Vlandis v. Kline, 412 U.S. 441, 450 n. 6, 93 S.Ct. 2230, 2235, 37 L.Ed.2d 63 (1973), by observing:
31
'(Such) reasoning would logically permit the State to bar new residents from schools, parks and libraries or deprive them of police and fire protection. Indeed it would permit the State to apportion all benefits and services according to the past tax contributions of its citizens. The Equal Protection Clause prohibits such an apportionment of state services.' Shapiro, 394 U.S., at 632—633, 89 S.Ct., at 1330 (footnote omitted).
32
Appellees express a concern that the threat of an influx of indigents would discourage 'the development of modern and effective (public medical) facilities.' It is suggested that whether or not the durational residence requirement actually deters migration, the voters think that it protects them from low income families' being attracted by the county hospital; hence, the requirement is necessary for public support of that medical facility. A State may not employ an invidious discrimination to sustain the political viability of its programs. As we observed in Shapiro, supra, at 641, 89 S.Ct., at 1335, '(p)erhaps Congress could induce wider state participation in school construction if it authorized the use of joint funds for the building of segregated schools,' but that purpose would not sustain such a scheme. See also Cole v. Housing Authority of City of Newport, 435 F.2d 807, 812—813 (CA1 1970).
B
33
The appellees also argue that the challenged statute serves some administrative objectives. They claim that the one-year waiting period is a convenient rule of thumb to determine bona fide residence. Besides not being factually defensible, this test is certainly overbroad to accomplish its avowed purpose. A mere residence requirement would accomplish the objective of limiting the use of public medical facilities to bona fide residents of the County without sweeping within its prohibitions those bona fide residents who had moved into the State within the qualifying period. Less drastic means, which do not impinge on the right of interstate travel, are available and employed27 to ascertain an individual's true intentions, without exacting a protracted waiting period which may have dire economic and health consequences for certain citizens. See Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960). The Arizona State welfare agency applies criteria other than the duration of residency to determine whether an applicant is a bona fide resident.28 The Arizona Medical Assistance to the Aged law provides public medical care for certain senior citizens, conditioned only on residence.29 Pinal County, Arizona, has operated its public hospital without benefit of the durational residence requirement since the application of the challenged statute in that County was enjoined by a federal court in Valenciano v. Bateman, 323 F.Supp. 600 (D.C.Ariz.1971).30
34
The appellees allege that the waiting period is a useful tool for preventing fraud. Certainly, a State has a valid interest in preventing fraud by any applicant for medical care, whether a newcomer or old-time resident, Shapiro, 394 U.S., at 637, 89 S.Ct., at 1333, but the challenged provision is ill-suited to that purpose. An indigent applicant, intent on committing fraud, could as easily swear to having been a resident of the county for the preceding year as to being one currently. And, there is no need for the State to rely on the durational requirement as a safeguard against fraud when other mechanisms to serve that purpose are available which would have a less drastic impact on constitutionally protected interests. NAACP v. Button, 371 U.S., at 438, 83 S.Ct., at 340. For example, state law makes it a crime to file an 'untrue statement . . . for the purpose of obtaining hospitalization, medical care or outpatient relief' at county expense. Ariz.Rev.Stat.Ann. § 11—297C (Supp.1973—1974). See Dunn, 405 U.S., at 353—354, 92 S.Ct., at 1008—1009; U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 2825, 37 L.Ed.2d 782 (1973).
35
Finally, appellees assert that the waiting period is necessary for budget predictability, but what was said in Shapiro is equally applicable to the case before us:
36
'The records . . . are utterly devoid of evidence that (the County) uses the one-year requirement as a means to predict the number of people who will require assistance in the budget year. (The appellees do not take) a census of new residents . . .. Nor are new residents required to give advance notice of their need for . . . assistance. Thus, the . . . authorities cannot know how many new residents come into the jurisdiction in any year, much less how many of them will require public assistance.' 394 U.S., at 634—635, 89 S.Ct., at 1331 (footnote omitted).
37
Whatever the difficulties in projecting how many newcomers to a jurisdiction will require welfare assistance, it could only be an even more difficult and speculative task to estimate how many of those indigent newcomers will require medical care during their first year in the jurisdiction. The irrelevance of the one-year residence requirement to budgetary planning is further underscored by the fact that emergency medical care for all newcomers and more complete medical care for the aged are cuttently being provided at public expense regardless of whether the patient has been a resident of the County for the preceding year. See Shapiro, supra, at 635, 89 S.Ct., at 1331—1332.
VII
38
The Arizona durational residence requirement for eligibility for nonemergency free medical care creates an 'invidious classification' that impinges on the right of interstate travel by denying newcomers 'basic necessities of life.' Such a classification can only be sustained on a showing of a compelling state interest. Appellees have not met their heavy burden of justification, or demonstrated that the State, in pursuing legitimate objectives, has chosen means which do not unnecessarily impinge on constitutionally protected interests. Accordingly, the judgment of the Supreme Court of Arizona is reversed and the case remanded for further action not inconsistent with this opinion.
39
So ordered.
40
Reversed and remanded.
41
THE CHIEF JUSTICE and Mr. Justice BLACKMUN concur in the result.
42
Mr. Justice DOUGLAS.
43
The legal and economic aspects of medical care1 are enormous; and I doubt if decisions under the Equal Protection Clause of the Fourteenth Amendment are equal to the task of dealing with these matters. So far as interstate travel per se is considered, I share the doubts of my Brother REHNQUIST. The present case, however, turns for me on a different axis. The problem has many aspects. The therapy of Arizona's atmosphere brings many there who suffer from asthma, bronchitis, arthritis, and tuberculosis. Many coming are indigent or become indigent after arrival. Arizona does not deny medical help to 'emergency' cases 'when immediate hospitalization or medical care is necessary for the preservation of life or limb,' Ariz.Rev.Stat.Ann. § 11—297(A) (Supp.1973—1974). For others, it requires a 12—month durational residence.
44
The Act is not aimed at interstate travelers; it applies even to a long-term resident who moves from one county to another. As stated by the Supreme Court of Arizona in the present case: 'The requirement applies to all citizens within the state including long term residents of one county who move to another county. Thus, the classification does not single out non-residents nor attempt to penalize interstate travel. The requirement is uniformly applied.' 108 Ariz. 373, 375, 498 P.2d 461, 463.
45
What Arizona has done, therefore, is to fence the poor out of the metropolitan counties, such as Maricopa County (Phoenix) and Pima County (Tucson) by use of a durational residence requirement. We are told that eight Arizona counties have no county hospitals and that most indigent care in those areas exists only on a contract basis. In San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16, we had a case where Texas created a scheme by which school districts with a low property tax base, from which they could raise only meager funds, offered a lower quality of education to their students than the wealthier districts. That system was upheld against the charge that the state system violated the Equal Protection Clause. It was a closely divided Court and I was in dissent. I suppose that if a State can fence in the poor in educational programs, it can do so in medical programs. But to allow Arizona freedom to carry forward its medical program we must go one step beyond the San Antonio case. In the latter there was no legal barrier to movement into a better district. Here a one-year barrier to medical care, save for 'emergency' care, is erected around the areas that have medical facilities for the poor.
46
Congress has struggled with the problem. In the Kerr-Mills Act of 1960, 74 Stat. 987, 42 U.S.C. § 302(b)(2), it added provisions to the Social Security Act requiring the Secretary of Health, Education, and Welfare to disapprove any state plan for medical assistance to the aged (Medicaid) that excludes 'any individual who resides in the state,' thus eliminating durational residence requirements.
47
Maricopa County has received over $2 million in federal funds for hospital construction under the Hill-Burton Act, 42 U.S.C. § 291 et seq. Section 291c(e) authorizes the issuance of regulations governing the operation of Hill-Burton facilities. The regulations contain conditions that the facility to be constructed or modernized with the funds 'will be made available to all persons residing in the territorial area of the applicant' and that the applicant will render 'a reasonable volume of services to persons unable to pay therefor.'2 The conditions of free services for indigents, however, may be waived if 'not feasible from a financial viewpoint.'
48
Prior to the application the state agency must obtain from the applicant an assurance 'that there will be made available in the facility or portion thereof to be constructed or modernized a reasonable volume of services to persons unable to pay therefor. The requirement of an assurance from an applicant shall be waived if the applicant demonstrates to the satisfaction of the State agency, subject to subsequent approval by the Secretary, that such a requirement is not feasible from a financial viewpoint.' 42 CFR § 53.111(c)(1).3
49
So far as I can ascertain, the durational residence requirement imposed by Maricopa County has not been federally approved as a condition to the receipt of Hill-Burton funds.
50
Maricopa County does argue that it is not financially feasible to provide free nonemergency medical care to new residents. Even so, the federal regulatory framework does not leave the County uncontrolled in determining which indigents will receive the benefit of the resources which are available. It is clear, for example, that the County could not limit such service to whites out of a professed inability to service indigents of all races because 42 CFR § 53.112(c) prohibits such discrimination in the operation of Hill-Burton facilities. It does not allow racial discrimination even against transients.
51
Moreover, Hill-Burton Act donees are guided by 42 CFR § 53.111(g), which sets out in some detail the criteria which must be used in identifying persons unable to pay for such services. The criteria include the patient's health and medical insurance coverage, personal and family income, financial obligations and resources, and 'similar factors.' Maricopa County, pursuant to the state law here challenged, employs length of county residence as an additional criterion in identifying indigent recipients of uncompensated nonemergency medical care. The federal regulations, however, do not seem to recognize that as an acceptable criterion.
52
And, as we held in Thorpe v. Housing Authority, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474; Mourning v. Family Publications Service, 411 U.S. 356, 93 S.Ct. 1652, 36 L.Ed.2d 318, these federal conditions attached to federal grants are valid when 'reasonably related to the purposes of the enabling legislation.' 393 U.S., at 280—281, 89 S.Ct., at 525.
53
It is difficult to impute to Congress approval of the durational residence requirement, for the implications of such a decision would involve weighty equal protection considerations by which the Federal Government, Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884, as well as the States, are bound.
54
The political processes4 rather than equal protection litigation are the ultimate solution of the present problem. But in the setting of this case the invidious discrimination against the poor, Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169, not the right to travel interstate, is in my view the critical issue.
APPENDIX TO OPINION OF DOUGLAS, J.
Gourmand and Food—A Fable5
55
The people of Gourmand loved good food. They ate in good restaurants, donated money for cooking research, and instructed their government to safeguard all matters having to do with food. Long ago, the food industry had been in total chaos. There were many restaurants, some very small. Anyone could call himself a chef or open a restaurant. In choosing a restaurant, one could never be sure that the meal would be good. A commission of distinguished chefs studied the situation and recommended that no one be allowed to touch food except for qualified chefs. 'Food is too important to be left to amateurs,' they said. Qualified chefs were licensed by the state with severe penalties for anyone else who engaged in cooking. Certain exceptions were made for food preparation in the home, but a person could serve only his own family. Furthermore, to become a qualified chef, a man had to complete at least twenty-one years of training (including four years of college, four years of cooking school, and one year of apprenticeship). All cooking schools had to be first class.
56
These reforms did succeed in raising the quality of cooking. But a restaurant meal became substantially more expensive. A second commission observed that not everyone could afford to eat out. 'No one,' they said, 'should be denied a good meal because of his income.' Furthermore, they argued that chefs should work toward the goal of giving everyone 'complete physical and psychological satisfaction.' For those people who could not afford to eat out, the government declared that they should be allowed to do so as often as they liked and the government would pay. For others, it was recommended that they organize themselves in groups an pay part of their income into a pool that would undertake to pay the costs incurred by members in dining out. To insure the greatest satisfaction, the groups were set up so that a member could eat out anywhere and as often as he liked, could have as elaborate a meal as he desired, and would have to pay nothing or only a small percentage of the cost. The cost of joining such prepaid dining clubs rose sharply.
57
Long ago, most restaurants would have one chef to prepare the food. A few restaurants were more elaborate, with chefs specializing in roasting, fish, salads, sauces, and many other things. People rarely went to these elaborate restaurants since they were so expensive. With the establishment of prepaid dining clubs, everyone wanted to eat at these fancy restaurants. At the same time, young chefs in school disdained going to cook in a small restaurant where they would have to cook everything. The pay was higher and it was much more prestigious to specialize and cook at a really fancy restaurant. Soon there were not enough chefs to keep the small restaurants open.
58
With prepaid clubs and free meals for the poor, many people started eating their three-course meals at the elaborate restaurants. Then they began to increase the number of courses, directing the chef to 'serve the best with no thought for the bill.' (Recently a 317-course meal was served.)
59
The costs of eating out rose faster and faster. A new government commission reported as follows: (1) Noting that licensed chefs were being used to peel potatoes and wash lettuce, the commission recommended that these tasks be handed over to licensed dishwashers (whose three years of dishwashing training included cooking courses) or to some new category of personnel. (2) Concluding that many licensed chefs were overworked, the commission recommended that cooking schools be expanded, that the length of training be shortened, and that applicants with lesser qualifications be admitted. (3) The commission also observed that chefs were unhappy because people seemed to be more concerned about the decor and service than about the food. (In a recent taste test, not only could one patron not tell the difference between a 1930 and a 1970 vintage but he also could not distinguish between white and red wines. He explained that he always ordered the 1930 vintage because he knew that only a really good restaurant would stock such an expensive wine.)
60
The commission agreed that weighty problems faced the nation. They recommended that a national prepayment group be established which everyone must join. They recommended that chefs continue to be paid on the basis of the number of dishes they prepared. They recommended that every Gourmandese be given the right to eat anywhere he chose and as elaborately as he chose and pay nothing.
61
These recommendations were adopted. Large numbers of people spent all of their time ordering incredibly elaborate meals. Kitchens became marvels of new, expensive equipment. All those who were not consuming restaurant food were in the kitchen preparing it. Since no one in Gourmand did anything except prepare or eat meals, the country collapsed.
62
Mr. Justice REHNQUIST, dissenting.
63
* The State of Arizona provides free medical care for indigents. Confronted, in common with its 49 sister States, with the assault of spiraling health and welfare costs upon limited state resources, it has felt bound to require that recipients meet three standards of eligibility.1 First, they must be indigent, unemployable, or unable to provide their own care. Second, they must be residents of the county in which they seek aid. Third, they must have maintained their residence for a period of one year. These standards, however, apply only to persons seeking nonemergency aid. An exception is specifically provided for 'emergency cases when immediate hospitalization or medical care is necessary for the preservation of life or limb . . ..'
64
Appellant Evaro moved from New Mexico to Arizona in June 1971, suffering from a 'chronic asthmatic and bronchial illness.' In July 1971 he experienced a respiratory attack, and obtained treatment at the facilities of appellant Memorial Hospital, a privately operated institution. The hospital sought to recover its expenses from appellee Maricopa County under the provisions of Ariz.Rev.Stat.Ann. § 11—297A (Supp. 1973—1974), asserting that Evaro was entitled to receive county care. Since he did not satisfy the eligibility requirements discussed above,2 appellee declined to assume responsibility for his care, and this suit was then instituted in the State Superior Court.
65
Appellants did not, and could not, claim that there is a constitutional right to nonemergency medical care at state or county expense or a constitutional right to reimbursement for care extended by a private hospital.3 They asserted, however, that the state legislature, having decided to give free care to certain classes of persons, must give that care to Evaro as well. The Court upholds that claim, holding that the Arizona eligibility requirements burdened Evaro's 'right to travel.'
66
Unlike many traditional government services, such as police or fire protection, the provision of health care has commonly been undertaken by private facilities and personnel. But as strains on private services become greater, and the costs of obtaining care increase, federal, state, and local governments have been pressed to assume a larger role. Reasonably enough, it seems to me, those governments which now find themselves in the hospital business seek to operate that business primarily for those persons dependent on the financing locality both by association and by need.
67
Appellants in this case nevertheless argue that the State's efforts, admirable though they may be, are simply not impressive enough. But others excluded by eligibility requirements certainly could make similar protests. Maricopa County residents of many years, paying taxes to both construct and support public hospital facilities, may be ineligible for care because their incomes are slightly above the marginal level for inclusion. These people have been excluded by the State, not because their claim on limited public resources is without merit, but because it has been deemed less meritorious than the claims of those in even greater need. Given a finite amount of resources, Arizona after today's decision may well conclude that its indigency threshold should be elevated since its counties must provide for out-of-state migrants as well as for residents of longer standing. These more stringent need requirements would then deny care to additional persons who until now would have qualified for aid.
68
Those presently excluded because marginally above the State's indigency standards, those who may be excluded in the future because of more stringent indigency requirements necessitated by today's decision, and appellant Evaro, all have a plausible claim to government-supported medical care. The choice between them uncessitated by a finite amount of resources is a classic example of the determination of priorities to be accorded conflicting claims, and would in the recent past have been thought to be a matter particularly within the competence of the state legislature to decide. As this Court stated in Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 1163, 25 L.Ed.2d 491 (1970), 'the Constitution does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients.'
69
The Court holds, however, that the State was barred from making the choice it made because of the burden its choice placed upon Evaro's 'right to travel.' Although the Court's definition of this 'right' is hardly precise, the Court does state: '(T)he right of interstate travel must be seen as insuring new residents the same right to vital government benefits and privileges in the States to which they migrate as are enjoyed by other residents.' This rationale merits further attention.
II
70
The right to travel throughout the Nation has been recognized for over a century in the decisions of this Court.4 See Crandall v. Nevada, 6 Wall. 35, 18 L.Ed. 744 (1868). But the concept of that right has not been static. To see how distant a cousin the right to travel enunciated in this case is to the right declared by the Court in Crandall, reference need only be made to the language of Mr. Justice Miller, speaking for the Court:
71
'But if the government has these rights on her own account, the citizen also has correlative rights. He has the right to come to the seat of government to assert any claim he may have upon that government, or to transact any business he may have with it. To seek its protection, to share its offices, to engage in administering its functions. He has a right to free access to its sea-ports, through which all the operations of foreign trade and commerce are conducted, to the sub-treasuries, the land offices, the revenue offices, and the courts of justice in the several States, and this right is in its nature independent of the will of any State over whose soil he must pass in the exercise of it.' Id., at 44.
72
The Court in Crandall established no right to free benefits from every State through which the traveler might pass, but more modestly held that the State could not use its taxing power to impede travel across its borders.5
73
Later cases also defined this right to travel quite conservatively. For example, in Williams v. Fears, 179 U.S. 270, 21 S.Ct. 128, 45 L.Ed. 186 (1900), the Court upheld a Georgia statute taxing 'emigrant agents'—persons hiring labor for work outside the State—although agents hiring for local work went untaxed. The Court recognized that a right to travel existed, stating:
74
'Undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit from or through the territory of any state is a right secured by the 14th Amendment and by other provisions of the Constitution.' Id., at 274, 21 S.Ct., at 129.
75
The Court went on, however, to decide that the statute, despite the added cost it assessed against exported labor, affected freedom of egress 'only incidentally and remotely.' Ibid.6
76
The leading earlier case, Edwards v. California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119 (1941), provides equally little support for the Court's expansive holding here. In Edwards the Court invalidated a California statute which subjected to criminal penalties any person 'that brings or assists in bringing into the State any indigent person who is not a resident of the State, knowing him to be an indigent person.' Id., at 171, 62 S.Ct., at 166. Five members of the Court found the statute unconstitutional under the Commerce Clause, finding in the Clause a 'prohibition against attempts on the part of any single State to isolate itself from difficulties common to all of them by restraining the transportation of persons and property across its borders.' Id., at 173, 62 S.Ct., at 167. Four concurring Justices found a better justification for the result in the Fourteenth Amendment's protection of the 'privileges of national citizenship.'7
77
Regardless of the right's precise source and definition, it is clear that the statute invalidated in Edwards was specifically designed to, and would, deter indigent persons from entering the State of California. The imposition of criminal penalties on all persons assisting the entry of an indigent served to block ingress as surely as if the State had posted guards at the border to turn indigents away. It made no difference to the operation of the statute that the indigent, once inside the State, would be supported by federal payments.8 Furthermore, the statute did not require that the indigent intend to take up continuous residence within the State. The statute was not therefore an incidental or remote barrier to migration, but was in fact an effective and purposeful attempt to insulate the State from indigents.
78
The statute in the present case raises no comparable barrier. Admittedly, some indigent persons desiring to reside in Arizona may choose to weigh the possible detriment of providing their own nonemergency health care during the first year of their residence against the total benefits to be gained from continuing location within the State, but their mere entry into the State does not invoke criminal penalties. To the contrary, indigents are free to live within the State, to receive welfare benefits necessary for food and shelter,9 and to receive free emergency medical care if needed. Furthermore, once the indigent has settled within a county for a year, he becomes eligible for full medical care at county expense. To say, therefore, that Arizona's treatment of indigents compares with California's treatment during the 1930's would border on the frivolous.
79
Since those older cases discussing the right to travel are unhelpful to Evaro's cause here, reliance must be placed elsewhere. A careful reading of the Court's opinion discloses that the decision rests almost entirely on two cases of recent vintage: Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), and Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). In Shapiro the Court struck down statutes requiring one year's residence prior to receiving welfare benefits. In Dunn the Court struck down a statute requiring a year's residence before receiving the right to vote. In placing reliance on these two cases, the Court must necessarily distinguish or discredit recent cases of this Court upholding statutes requiring a year's residence for lower in-state tuition.10 The important question for this purpose, according to the Court's analysis, is whether a classification "operates to penalize those persons . . . who have exercised their constitutional right of interstate migration." (Emphasis in Court's opinion.)
80
Since the Court concedes that 'some 'waiting-period(s) . . . may not be penalties," (ante, at 258—259) one would expect to learn from the opinion how to distinguish a waiting period which is a penalty from one which is not. Any expense imposed on citizens crossing state lines but not imposed on those staying put could theoretically be deemed a penalty on travel; the toll exacted from persons crossing from Delaware to New Jersey by the Delaware Memorial Bridge is a 'penalty' on interstate travel in the most literal sense of all. But such charges,11 as well as other fees for use of transportation facilities such as taxes on airport users,12 have been upheld by this Court against attacks based upon the right to travel. It seems to me that the line to be derived from our prior cases is that some financial impositions on interstate travelers have such indirect or inconsequential impact on travel that they simply do not constitute the type of direct purposeful barriers struck down in Edwards and Shapiro. Where the impact is that remote, a State can reasonably require that the citizen bear some proportion of the State's cost in its facilities. I would think that this standard is not only supported by this Court's decisions, but would be eminently sensible and workable. But the Court not only rejects this approach, it leaves us entirely without guidance as to the proper standard to be applied.
81
The Court instead resorts to ipse dixit, declaring rather than demonstrating that the right to nonemergency medical care is within the class of rights protected by Shapiro and Dunn:
82
'Whatever the ultimate parameters of the Shapiro penalty analysis, it is at least clear that medical care is as much 'a basic necessity of life' to an indigent as welfare assistance. And, governmental privileges or benefits necessary to basic sustenance have often been viewed as being of greater constitutional significance than less essential forms of governmental entitlements. See, e.g., Shapiro, supra; Goldberg v. Kelly, 397 U.S. 254, 264, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287 (1970); Sniadach v. Family Finance Corp., 395 U.S. 337, 340—342, 89 S.Ct. 1820, 1822—1823, 23 L.Ed.2d 349 (1969).' Ante, at 259. (Emphasis added; footnotes omitted.)
83
However clear this conclusion may be to the majority, it is certainly not clear to me. The solicitude which the Court has shown in cases involving the right to vote,13 and the virtual denial of entry inherent in denial of welfare benefits—'the very means by which to live,' Goldberg v. Kelly, 397 U.S. 254, 264, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287 (1970)—ought not be so casually extended to the alleged deprivation here. Rather, the Court should examine, as it has done in the past, whether the challenged requirement erects a real and purposeful barrier to movement, or the threat of such a barrier, or whether the effects on travel, viewed realistically, are merely incidental and remote. As the above discussion has shown, the barrier here is hardly a counterpart to the barriers condemned in earlier cases. That being so, the Court should observe its traditional respect for the State's allocation of its limited financial resources rather than unjustifiably imposing its own preferences.
III
84
The Court, in its examination of the proffered state interests, categorically rejects the contention that those who have resided in the county for a fixed period of time may have a greater stake in community facilities than the newly arrived. But this rejection is accomplished more by fiat than by reason. One of the principal factual distinctions between Starns v. Malkerson, 326 F.Supp. 234 (D.C.Minn.1970), aff'd, 401 U.S. 985, 91 S.Ct. 1231, 28 L.Ed.2d 527 (1971), and Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973), both of which upheld durational residence requirement for in-state university tuition,14 and Shapiro, which struck them down for welfare recipients, is the nature of the aid which the State or county provides. Welfare benefits, whether in cash or in kind, are commonly funded from current tax revenues, which may well be supported by the very newest arrival as well as by the longtime resident. But universities and hospitals, although demanding operating support from current revenues, require extensive capital facilities which cannot possibly be funded out of current tax revenues. Thus, entirely apart from the majority's conception of whether nonemergency health care is more or less important than continued education, the interest of longer established residents in capital facilities and their greater financial contribution to the construction of such facilities seems indisputable.15
85
Other interests advanced by the State to support its statutory eligibility criteria are also rejected virtually out of hand by the Court. The protection of the county economies is dismissed with the statement that '(t)he conservation of the taxpayers' purse is simply not a sufficient state interest . . ..'16 The Court points out that the cost of care, if not borne by the Government, may be borne by private hospitals such as appellant Memorial Hospital. While this observation is doubtless true in large part, and is bound to present a problem to any private hospital, it does not seem to me that it thus becomes a constitutional determinant. The Court also observes that the State may in fact save money by providing nonemergency medical care rather than waiting for deterioration of an illness. However valuable a qualified cost analysis might be to legislators drafting eligibility requirements, and however little this speculation may bear on Evaro's condition (which the record does not indicate to have been a deteriorating illness), this sort of judgment has traditionally been confided to legislatures, rather than to courts charged with determining constitutional questions.
86
The Court likewise rejects all arguments based on administrative objectives. Refusing to accept the assertion that a one-year waiting period is a 'convenient rule of thumb to determine bona fide residence,' the majority simply suggests its own alternatives. Similar analysis is applied in rejecting the appellees' argument based on the potential for fraud. The Court's declaration that an indigent applicant 'intent on committing fraud, could as easily swear to having been a resident of the county for the preceding year as to being one currently' ignores the obvious fact that fabricating presence in the State for a year is surely more difficult than fabricating only a present intention to remain.
87
The legal question in this case is simply whether the State of Arizona has acted arbitrarily in determining that access to local hospital facilities for nonemergency medical care should be denied to persons until they have established residence for one year. The impediment which this quite rational determination has placed on appellant Evaro's 'right to travel' is so remote as to be negligible: so far as the record indicates Evaro moved from New Mexico to Arizona three years ago and has remained ever since. The eligibility requirement has not the slightest resemblance to the actual barriers to the right of free ingress and egress protected by the Constitution, and struck down in cases such as Crandall and Edwards. And, unlike Shapiro, it does not involve an urgent need for the necessities of life or a benefit funded from current revenues to which the claimant may well have contributed. It is a substantial broadening of, and departure from, all of these holdings, all the more remarkable for the lack of explanation which accompanies the result. Since I can subscribe neither to the method nor the result, I dissent.
1
Ariz.Rev.Stat.Ann. § 11—291 (Supp.1973—1974).
2
Section 11—297A (Supp.1973—1974) provides in relevant part that:
'Except in emergency cases when immediate hospitalization or medical care is necessary for the preservation of life or limb no person shall be provided hospitalization, medical care or outpatient relief under the provisions of this article without first filing with a member of the board of supervisors of the county in which he resides a statement in writing, subscribed and sworn to under oath, that he is an indigent as shall be defined by rules and regulations of the state department of economic security, an unemployable totally dependent upon the state or county government for financial support, or an employable of sworn low income without sufficient funds to provide himself necessary hospitalization and medical care, and that he has been a resident of the county for the preceding twelve months.' (Emphasis added.)
3
Thus, the question of the rights of transients to medical care is not presented by this case.
4
Arizona's intermediate appellate court had also declared the durational residence requirement unconstitutional in Board of Supervisors, Pima County v. Robinson, 10 Ariz.App. 238, 457 P.2d 951 (1969), but its decision was vacated as moot by the Arizona Supreme Court. 105 Ariz. 280, 463 P.2d 536 (1970).
An Arizona one-year durational residence requirement for care at state mental health facilities was declared unconstitutional in Vaughan v. Bower, 313 F.Supp. 37 (D.C.Ariz.), aff'd, 400 U.S. 884, 91 S.Ct. 139, 27 L.Ed.2d 129 (1970). See n. 11, infra.
A Florida one-year durational residence requirement for medical care at public expense was found unconstitutional in Arnold v. Halifax Hospital Dist., 314 F.Supp. 277 (M.D.Fla.1970), and Crapps v. Duval County Hospital Auth., 314 F.Supp. 181 (M.D.Fla.1970).
5
E.g., Weber v. Aetna Cas. & Surety Co., 406 U.S. 164, 173, 92 S.Ct. 1400, 1405, 31 L.Ed.2d 768 (1972); Dunn v. Blumstein, 405 U.S. 330, 335, 92 S.Ct. 995, 999, 31 L.Ed.2d 274 (1972).
6
394 U.S., at 634, 89 S.Ct., at 1331. See also id., at 642 644, 89 S.Ct., at 1335—1337 (Stewart, J., concurring).
7
Dunn v. Blumstein, supra; Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); see Wyman v. Lopez, 404 U.S. 1055, 92 S.Ct. 736, 30 L.Ed.2d 743 (1972); Oregon v. Mitchell, 400 U.S. 112, 237, 91 S.Ct. 260, 321, 27 L.Ed.2d 272 (1970) (separate opinion of Brennan, White, and Marshall, JJ.), 285—286, 91 S.Ct. 345 (Stewart, J., concurring and dissenting, with whom Burger, C.J., and Blackmun, J., joined); Wyman v. Bowens, 397 U.S. 49, 90 S.Ct. 813, 25 L.Ed.2d 38 (1970); United States v. Guest, 383 U.S. 745, 757—759, 86 S.Ct. 1170, 1177—1179, 16 L.Ed.2d 239 (1966); cf. Griffin v. Breckenridge, 403 U.S. 88, 105—106, 91 S.Ct. 1790, 1799—1800, 29 L.Ed.2d 338 (1971); Demiragh v. DeVos, 476 F.2d 403 (CA2 1973). See generally Z. Chafee, Three Human Rights in the Constitution of 1787, pp. 171—181, 187 et seq. (1956).
8
See King v. New Rochelle Municipal Housing Auth., 442 F.2d 646, 648 n. 5 (CA2 1971); Cole v. Housing Authority of City of Newport, 435 F.2d 807, 811 (CA1 1970); Wellford v. Battaglia, 343 F.Supp. 143, 147 (D.C.Del.1972); cf. Truax v. Raich, 239 U.S. 33, 39, 36 S.Ct. 7, 9, 60 L.Ed. 131 (1915); Note, Shapiro v. Thompson: Travel, Welfare and the Constitution, 44 N.Y.U.L.Rev. 989, 1012 (1969).
9
Appellees argue that the County should be able to apply a durational residence requirement to preserve the quality of services provided its longtime residents because of their ties to the community and the previous contributions they have made, particularly through past payment of taxes. It would seem inconsistent to argue that the residence requirement should be construed to bar long-time Arizona residents, even if unconstitutional as applied to persons migrating into Maricopa County from outside the State. Surely, longtime residents of neighboring counties have more ties with Maricopa County and equity in its public programs, as through past payment of state taxes, than do migrants from distant States. This 'contributory' rationale is discussed, infra, at 266.
10
For a discussion of the problems posed by this ambiguity, see Judge Coffin's perceptive opinion in Cole v. Housing Authority of the City of Newport, 435 F.2d 807 (CA1 1970).
11
In Vaughan v. Bower, 313 F.Supp. 37 (D.C.Ariz.), aff'd, 400 U.S. 884, 91 S.Ct. 139, 27 L.Ed.2d 129 (1970), a federal court struck down an Arizona law permitting the director of a state mental hospital to return to the State of his prior residence, any indigent patient who had not been a resident of Arizona for the year preceding his civil commitment. It is doubtful that the challenged law could have had any deterrent effect on migration, since few people consider being committed to a mental hospital when they decide to take up residence in a new State. See also Affeldt v. Whitcomb, 319 F.Supp. 69 (N.D.Ind.1970), aff'd, 405 U.S. 1034, 92 S.Ct. 1304, 31 L.Ed.2d 576 (1972).
12
See Vlandis v. Kline, 412 U.S. 441, 452—453, n. 9, 93 S.Ct. 2230, 2236—2237, 37 L.Ed.2d 63 (1973).
13
For example, the Shapiro Court cautioned that it meant to 'imply no view of the validity of waiting-period or residence requirements determining eligibility (inter alia) to obtain a license to practice a profession, to hunt, or fish, and so forth.' 394 U.S., at 638, n. 21, 89 S.Ct., at 1333.
14
Dept. of Health, Education, and Welfare (HEW), Report on Medical Resources Available to Meet the Needs of Public Assistance Recipients, House Committee on Ways and Means, 86th Cong., 2d Sess., 74 (Comm. Print 1961). Similarly, President Nixon has observed: "It is health which is real wealth,' said Ghandi, 'and not pieces of gold and silver." Health, Message from the President, 92d Cong., 1st Sess., H.R.Doc. No. 92—49, p. 18 (1971). See also materials cited at n. 4, supra.
15
Reference to the tuition cases is instructive. The lower courts have contrasted instate tuition with 'necessities of life' in a way that would clearly include medical care in the latter category. The District Court in Starns v. Malkerson, 326 F.Supp. 234, 238 (Minn.1970), aff'd, 401 U.S. 985, 91 S.Ct. 1231, 28 L.Ed.2d 527 (1971), quoted with approval from Kirk v. Board of Regents, 273 Cal.App.2d 430, 440, 78 Cal.Rptr. 260, 266—267 (1969), appeal dismissed, 396 U.S. 554, 90 S.Ct. 754, 24 L.Ed.2d 744 (1970) (emphasis added):
"While we fully recognize the value of higher education, we cannot equate its attainment with food, clothing and shelter. Shapiro involved the immediate and pressing need for preservation of life and health of persons unable to live without public assistance, and their dependent children. Thus, the residence requirement in Shapiro could cause great suffering and even loss of life. The durational residence requirement for attendance at publicly financed institutions of higher learning (does) not involve similar risks. Nor was petitioner . . . precluded from the benefit of obtaining higher education. Charging higher tuition fees to nonresident students cannot be equated with granting of basic subsistence to one class of needy residents while denying it to an equally needy class of residents."
See also Note, The Constitutionality of Nonresident Tuition, 55 Minn.L.Rev. 1139, 1149—1158 (1971). Moreover, in Vlandis, supra, the Court observed that 'special problems (are) involved in determining the bona fide residence of college students who come from out of State to attend (a) public university . . .,' since those students are characteristically transient, 412 U.S., at 452, 93 S.Ct., at 2236. There is no such ambiguity about whether appellant Evaro is a bona fide resident of Maricopa County.
16
108 Ariz. 373, 374, 498 P.2d 461, 462 (emphasis added).
17
See Valenciano v. Bateman, 323 F.Supp. 600, 603 (D.C.Ariz.1971). See generally HEW Report on Medical Resources, supra, n. 14, at 73—74; Dept. of HEW, Human Investment Programs: Delivery of Health Services for the Poor (1967).
18
See Dept. of HEW, Hill-Burton Project Register, July 1, 1947—June 30, 1967. HEW Publication No. (HSM) 72—4011, p. 37. Maricopa County has received over $2 million in Hill-Burton (42 U.S.C. § 291 et seq.) funds since 1947.
19
Medicaid, the primary federal program for providing medical care to indigents at public expense, does not permit participating States to apply a durational residence requirement as a condition to eligibility, 42 U.S.C. § 1396a(b)(3), and 'this conclusion of a coequal branch of Government is not without significance.' Frontiero v. Richardson, 411 U.S. 677, 687—688, 93 S.Ct. 1764, 1771, 36 L.Ed.2d 583 (1973). The State of Arizona does not participate in the Medicaid program.
20
Cf. Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L.J. 1205, 1223—1224 (1970); Note, Developments in the Law—Equal Protection, 82 Harv.L.Rev. 1065, 1076—1077 (1969).
21
The Arizona Supreme Court observed that because this case involves a governmental benefit akin to welfare, the 'reasonable basis' test of Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), should apply. In upholding a state regulation placing an absolute limit on the amount of welfare assistance to be paid a dependent family regardless of size or actual need, the Court in Dandridge found it 'enough that the State's action be rationally based and free from invidious discrimination.' Id., at 487, 90 S.Ct., at 1162. The Court later distinguished Dandridge in Graham v. Richardson, 403 U.S. 365, 376, 91 S.Ct. 1848, 1854, 29 L.Ed.2d 534 (1971), where Mr. Justice Blackmun, writing for the Court, observed that '(a)ppellants' attempted reliance on Dandridge . . . is also misplaced, since the classification involved in that case (did not impinge) upon a fundamental constitutional right . . ..' Strict scrutiny is required here because the challenged classification impinges on the right of interstate travel. Compare Dandridge, supra, 397 U.S., at 484 n. 16, 90 S.Ct., at 1161, with Shapiro v. Thompson, supra.
22
Shapiro v. Thompson, 394 U.S., at 629, 89 S.Ct., at 1328.
23
See Cantor, The Law and Poor People's Access to Health Care, 35 Law & Contemp. Prob. 901, 909—914 (1970); cf. Catholic Medical Center v. Rockefeller, 305 F.Supp. 1256 (EDNY 1969), vacated and remanded, 397 U.S. 820, 90 S.Ct. 1517, 25 L.Ed.2d 806, aff'd on remand, 430 F.2d 1297, appeal dismissed, 400 U.S. 931, 91 S.Ct. 246, 27 L.Ed.2d 262 (1970).
24
HEW Report on Medical Resources, supra, n. 14, at 74. See generally Health, Message from the President, supra, n. 14; E. Kennedy, In Critical Condition: The Crises in America's Health Care (1973); Hearings on The Health Care Crisis in America before the Subcommittee on Health of the Senate Committee on Labor and Public Welfare, 92d Cong., 1st Sess. (1971).
25
Cantor, supra, n. 23; see E. Kennedy, supra, n. 24, at 78 94; Note, Working Rules for Assuring Nondiscrimination in Hospital Administration, 74 Yale L.J. 151, 156 n. 32 (1964); cf., e.g., Stanturf v. Sipes, 447 S.W.2d 558 (Mo.1969) (hospital refused treatment to frostbite victim who was unable to pay $25 deposit). See generally HEW Report on Medical Resources, supra, n. 14, at 74; Hearings on The Health Care Crisis in America, supra, n. 24.
26
'(L)ack of timely hospitalization and medical care for those unable to pay has been considered an economic liability to the patient, the hospital, and to the community in which these citizens might otherwise be self-supporting . . ..' HEW Report on Medical Resources, supra, n. 14, at 73; Comment, Indigents, Hospital Admissions and Equal Protection, 5 U.Mich.J.L. Reform 502, 515—516 (1972); cf. Battistella & Southby, Crisis in American Medicine, The Lancet 581, 582 (Mar. 16, 1968).
27
See Green v. Dept. of Public Welfare of Delaware, 270 F.Supp. 173, 177—178 (D.C.Del.1967).
28
Ariz.Rev.Stat.Ann. § 46—292(1) (Supp.1973—1974).
29
§ 46—261.02(3) (Supp.1973—1974).
30
In addition, Pima County, Arizona, did not apply the durational residence requirement between August 1969, when the requirement was found unconstitutional by the Arizona Court of Appeals, Board of Supervisors, Pima County v. Robinson, 10 Ariz.App. 238, 457 P.2d 951, and September 1970, when that judgment was vacated as moot by the Arizona Supreme Court, 105 Ariz. 280, 463 P.2d 536.
1
See appendix to this opinion, post, p. 274.
2
Title 42 CFR § 53.111(b)(8) defines that term to mean 'a level of uncompensated services which meets a need for such services in the area served by an applicant and which is within the financial ability of such applicant to provide.'
3
The waiver of such a requirement requires notice and opportunity for public hearing. 42 CFR § 53.111(c)(2).
4
For the impact of 'free' indigent care on private hospitals and their paying patients see Dept. of Health, Education and Welfare (HEW) Report on Medical Resources Available to Meet the Needs of Public Assistance Recipients, House Committee on Ways and Means, 86th Cong., 2d Sess. (Comm.Print 1961).
5
Foreword to an article on Medical Care and its Delivery: An Economic Appraisal by Judith R. Lave and Lester B. Lave in 35 Law & Contemp.Prob. 252 (1970).
1
Ariz.Rev.Stat.Ann. § 11—297A (Supp.1973—1974) reads as follows:
'Except in emergency cases when immediate hospitalization or medical care is necessary for the preservation of life or limb no person shall be provided hospitalization, medical care or outpatient relief under the provisions of this article without first filing with a member of the board of supervisors of the county in which he resides a statement in writing, subscribed and sworn to under oath, that he is an indigent, as shall be defined by rules and regulations of the state department of economic security, an unemployable totally dependent upon the state or county government for financial support, or an employable of sworn low income without sufficient funds to provide himself necessary hospitalization and medical care, and that he has been a resident of the county for the preceding twelve menths.'
2
The parties stipulated that Mr. Evaro was 'an indigent who recently changed his residence from New Mexico to Arizona and who has resided in the state of Arizona for less than twelve months.' App. 10. Therefore Mr. Evaro failed to meet only the third requirement discussed in the text.
3
This Court has noted that citizens have no constitutional right to welfare benefits. See, e.g., Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 33, 93 S.Ct. 1278, 1296, 36 L.Ed.2d 16 (1973).
4
Although the right to travel has been recognized by this Court for over a century, the origin of the right still remains somewhat obscure. The majority opinion in this case makes no effort to identify the source, simply relying on recent cases which state such a right exists.
5
The tax levied by the State of Nevada was upon every person leaving the State. As this Court has since noted, the tax was a direct tax on travel and was not intended to be a charge for the use of state facilities. See Evansville-Vanderburgh Airport Authority District v. Delta Airlines, Inc., 405 U.S. 707, 92 S.Ct. 1349, 31 L.Ed.2d 620 (1972).
6
The Court also rejected an equal protection argument, concluding: 'We are unable to say that such a discrimination, if it existed, did not rest on reasonable grounds, and was not within the discretion of the state legislature.' 179 U.S., at 276, 21 S.Ct., at 130.
7
See the concurring opinions of Mr. Justice Douglas (with whom Mr. Justice Black and Mr. Justice Murphy joined), 314 U.S., at 177, 62 S.Ct., at 168, and Mr. Justice Jackson, id., at 181, 62 S.Ct., at 170.
8
The Court in Edwards observed: 'After arriving in California (the indigent) was aided by the Farm Security Administration, which . . . is wholly financed by the Federal government.' 314 U.S., at 175, 62 S.Ct., at 168. The Court did not express a view at that time as to whether a different result would have been reached if the State bore the financial burden. But cf. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).
9
See Ariz.Rev.Stat.Ann. § 46—233 (Supp.1973—1974), which provides that an eligible recipient of general assistance must have 'established residence at the time of application.'
10
See Starns v. Malkerson, 326 F.Supp. 234 (D.C.Minn.1970), aff'd, 401 U.S. 985, 91 S.Ct. 1231, 28 L.Ed.2d 527 (1971); Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973).
11
See, e.g., Interstate Busses Corp. v. Blodgett, 276 U.S. 245, 48 S.Ct. 230, 72 L.Ed. 551 (1928); Hendrick v. Maryland, 235 U.S. 610, 35 S.Ct. 140, 59 L.Ed. 385 (1915).
12
See Evansville-Vanderburgh Airport Authority District v. Delta Airlines, 405 U.S. 707, 92 S.Ct. 1349, 31 L.Ed.2d 620 (1972).
13
See, e.g., Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970); Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969).
14
In Vlandis, while striking down a Connecticut statute that in effect prevented a new state resident from obtaining lower tuition rates for the full period of enrollment, we stated that the decision should not 'be construed to deny a State the right to impose on a student, as one element in demonstrating bona fide residence, a reasonable durational residency requirement, which can be met while in student status.' 412 U.S., at 452, 93 S.Ct., at 2236. Starns was cited as support for this position.
15
This distinction may be particularly important in a State such as Arizona where the Constitution provides for limitations on state and county debt. See Ariz.Const., Art. 9, § 5 (State); Art. 9, § 8 (County). See generally Comment, Dulling the Edge of Husbandry: The Special Fund Doctrine in Arizona, 1971 L. & Soc.O. (Ariz.St.L.J.) 555.
16
The appellees in this case filed an affidavit indicating that acceptance of appellants' position would impose an added burden on property taxpayers in Maricopa County of over.$2.5 million in the first year alone. App. 12—17.
| 12
|
415 U.S. 303
94 S.Ct. 1026
39 L.Ed.2d 343
Clover PATTERSON, Appellant,v.George WARNER, etc., et al.
No. 72—5830.
Argued Jan. 9, 1974.
Decided Feb. 26, 1974.
Rehearing Denied April 15, 1974.
See 416 U.S. 952, 94 S.Ct. 1962.
George R. Higinbotham, Charleston, W. Va., for appellant.
Phillip D. Gaujot, Asst. Atty. Gen., Charleston, W. Va., for appellees, pro hac vice by special leave of Court.
PER CURIAM.
1
We noted probable jurisdiction in this case, 411 U.S. 905, 93 S.Ct. 1533, 36 L.Ed.2d 194 (1973), because it appeared to present a significant issue, under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, as to the validity of that provision of W.Va.Code Ann. § 50—15—2 (1966),1 requiring a double bond as a condition for an appeal from a judgment entered by a justice of the peace in a civil case. See Lindsey v. Normet, 405 U.S. 56, 74—79, 92 S.Ct. 862, 874—877, 31 L.Ed.2d 36 (1972).
2
In November 1968 appellant Patterson purchased a used automobile from appellee Graham Motor Company under a deferred-purchase money contract. That portion of the price not paid at the time of purchase was evidenced by a negotiable promissory note. After taking delivery of the automobile but before completion of his payments, Patterson encountered mechanical difficulties with the car. Finding himself unable to obtain satisfaction from Graham, Patterson undertook to reject the purchase, pursuant to W.Va.Code Ann. § 46—2—602 (1966), and made no further payments on the note.
3
Graham then sued Patterson in appellee Warner's justice of the peace court and, despite a number of defenses asserted by Patterson—breach of warranty, fraud, rightful repudiation, and others—obtained a judgment for $300 plus costs.2
4
Patterson sought to appeal the case to a court of record. Bond was set at $600, double the amount of the judgment, as § 50 15—2 specified. Patterson was unable to find an individual surety and, being indigent, was also unable to raise the amount required by a commercial surety. As a result, the appeal was not perfected and the judgment adverse to him became final.
5
Prior to execution on the judgment, Patterson instituted this purported class action in the United States District Court for the Southern District of West Virginia against Justice of the Peace Warner and against Graham. He sought injunctive and declaratory relief. A three-judge court was convened and upheld the challenged West Virginia statute. It reasoned that the full hearing before the justice, with the opportunity to present a defense, accorded appellant due process, and that there was no requirement that the State provide appellate review. Turning to equal protection, the court held that a State may properly take steps to insure that an appellant post adequate security to protect a damages award already made, citing Lindsey v. Normet, 405 U.S., at 77, 92 S.Ct., at 876; that an appeal in forma pauperis in a civil case is a privilege, not a right; and that 'the concept of Equal Protection does not include full and unrestrained appellate review of an initial adjudication which afforded Due Process.' Patterson's request for relief was therefore denied.
6
After probable jurisdiction had been noted here, and shortly prior to the filing of briefs in this Court, the Supreme Court of West Virginia decided State ex rel. Reece v. Gies, W.Va., 198 S.E.2d 211 (1973). In Reece the portion of § 50—15—2 requiring an appeal bond in an amount double the damages plus one year's rent as a prerequisite to an appeal from a justice court in a suit for unlawful detention of real estate was under constitutional challenge. The West Virginia court, citing the District Court's decision in the present case and Greer v. Dillard, 213 Va. 477, 193 S.E.2d 668 (1973), upheld the bond amount provision, with two of the court's five justices dissenting on that issue, but went on to rule unanimously that the judgment entered against the defendant by a West Virginia justice of the peace was violative of the Due Process Clauses of the Federal and State Constitutions and was 'void.' 198 S.E.2d, at 216. Its rationale was that, because, the justice's fee was enhanced when he ruled in favor of the plaintiff, he possessed a pecuniary interest in the case's outcome, and the parties therefore were denied a neutral and unbiased judge. See also State ex rel. Moats v. Janco, 154 W.Va. 887, 180 S.E.2d 74 (1971).
7
The judgment entered against appellant Patterson by appellee Warner was rendered pursuant to the same West Virginia statutory scheme that was challenged, in part successfully, in Reece. Appellant, upon becoming aware of the Reece decision, filed a suggestion of mootness here. Appellee Warner at the time opposed the suggestion. Although that aspect of the case was not addressed in the briefs, it was discussed at oral argument. Tr. of Oral Arg. 3—6, 34—36. Appellant, despite his having made the suggestion of mootness, asserted at oral argument that Reece had no retroactive application, and that the judgment entered against him was not void and the case was not moot. Id., at 5. Appellee Warner contended otherwise, id., at 37—38, stating that in West Virginia, under Falconer v. Simmons, 51 W.Va. 172, 41 S.E. 193 (1902), a State Supreme Court pronouncement, with one exception, is fully retroactive in the sense that it is regarded as always having been the law.
8
Inasmuch as the decision of the Supreme Court of West Virginia in Reece was rendered after the entry of the judgment in the present case, the three-judge District Court had no occasion to consider whether the decision in Reece means that the judgment obtained by Graham against Patterson is void and whether the present case has become moot. We deem it desirable that the District Court, in the first instance, evaluate the effect of that intervening decision. Accordingly, the judgment of the District Court is vacated, and the case is remanded to that court for reconsideration in the light of State ex rel. Reece v. Gies, W.Va., 198 S.E.2d 211 (1973). In so doing, we intimate no view as to whether the case is or is not now moot.
9
It is so ordered.
10
Judgment vacated and case remanded.
1
W.Va.Code Ann. § 50—15—2 provides in pertinent part as follows:
'The appeal shall not be granted by the justice unless, within ten days after the judgment is rendered . . . bond with good security, to be approved by the justice, in a penalty double the amount of the judgment, is filed with him, with condition to the effect that the person proposing to appeal will perform and satisfy any judgment which may be rendered against him on such appeal . . . or if he does not wish to stay
the execution on such judgment, with condition to pay the costs of such appeal if the judgment appealed from be affirmed. In case there be judgment before the justice against the plaintiff for costs only, and the plaintiff desires to appeal, the bond shall be for costs, conditioned as aforesaid, and in a penalty not exceeding one hundred dollars. . . .'
2
Three hundred dollars is the monetary limit of the jurisdiction of a West Virginia justice of the peace in a civil action for the recovery of money. W.Va.Code Ann. § 50—2—1.
| 89
|
415 U.S. 333
94 S.Ct. 1098
39 L.Ed.2d 367
Alvis G. SPEIGHT, T/A Harem Book Store, et al., Appellants,v.Lewis R. SLATON, Etc., et al.
No. 72—1557.
Argued Jan. 7, 8, 1974.
Decided Feb. 27, 1974.
Robert Eugene Smith, Baltimore, Md., for appellants.
Thomas R. Moran, Atlanta, Ga., for appellees.
PER CURIAM.
1
This is an appeal from a decision of a three-judge district court (356 F.Supp.1101) declining to intervene in a pending state civil proceeding and holding that such intervention was barred by our decision in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669. The state proceeding, brought against appellants by the Solicitor General of Fulton County, Georgia, sought an injunction against the operation of appellant Speight's bookstore, and confiscation and destruction of all merchandise on the store's premises, on the grounds that the store was being used for the 'advertising, storage, sale, and exhibition for sale of materials obscene within the meaning of Section 26—2101 of the Criminal Code of Georgia.' The basis for the State's action was § 26—2103 of the Code under which the use of any premises for the violation of § 26 2101 constitutes a 'public nuisance,' thereby triggering the application of state statutory provisions for the abatement of public nuisances, c. 72—2 of the Code of Georgia. The case is here on appeal. 28 U.S.C. §§ 1253, 2101(b). We noted probable jurisdiction to decide whether under these circumstances federal intervention in the pending state proceedings was barred by our holding in Younger v. Harris, supra.
2
Since oral argument of this case the Georgia Supreme Court has struck down the application of § 26—2103 in another case involving similar facts. Sanders v. State, 231 Ga. 608, 203 S.E.2d 153 (1974). In Sanders the State has brought an action to enjoin the operation of a bookstore on the ground that certain publications sold by the store were obscene under § 26—2101. The supreme court held that this application of § 26—2103 'represents an unconstitutional prior restraint when construed and applied to authorize the permanent closure of the book store as a public nuisance upon a finding that a single publication, obscene under the standards of Code Ann. § 26—2101(b), was sold on its premises.' Id., at 611, 203 S.E.2d, at 155. As we understand the Georgia court's decision, the operation of a bookstore could not be enjoined merely because some of its merchandise had been judicially determined to be obscene. The Georgia court cited both the Federal and Georgia Constitutions in its decision, although it was not explicit as to whether each provided, in its view, an independent ground for its holding.
3
It would appear that this Georgia Supreme Court decision would probably foreclose the state action against which federal injunctive relief was sought by appellants in this case. In that event appellants could obtain full relief in the state court proceeding merely by moving to dismiss the state action, in accord with state procedural rules, in light of Sanders v. State. If that is the case, appellants could not now make any showing of irreparable injury by reason of the state court proceeding, and such a showing is of course required before the federal court could grant the equitable relief, apart from any special considerations involved in Younger v. Harris, supra, 401 U.S., at 46, 91 S.Ct., at 751.
4
We therefore vacate the judgment below and remand to the District Court for reconsideration in light of the decision of the Georgia Supreme Court in Sanders v. State, supra.
5
It is so ordered.
6
Judgment vacated and case remanded.
| 89
|
415 U.S. 322
94 S.Ct. 1099
39 L.Ed.2d 358
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.The MAGNAVOX COMPANY OF TENNESSEE.
No. 72—1637.
Argued Jan. 14, 15, 1974.
Decided Feb. 27, 1974.
Rehearing Denied April 15, 1974.
See 416 U.S. 952, 94 S.Ct. 1962.
Syllabus
At the time respondent company entered into acollective-bargaining agreement with a union, respondent had a blanket rule against distribution by employees of literature on company property. The collective agreement and subsequent contracts authorized the company to issue fair and nondiscriminatory rules for maintaining orderly conditions on plant property and also provided for bulletin boards for union notices. The union ultimately challenged the rule's validity, and upon denial of its request for a change, filed unfair-labor-practice charges against respondent; which the National Labor Relations Board (NLRB) upheld. The Court of Appeals denied enforcement of the NLRB's order, finding that the union had waived objection to the on-premises distribution ban. Held: Respondent's ban might interfere with the employees' rights under § 7 of the National Labor Relations Act 'to form, join, or assist labor organizations,' or to refrain from such activities, and such rights, unlike those in the economic area, cannot be waived by the employees' collective-bargaining representative. The bulletin-board provision did not afford an adequate alternative, since it did not give the union's adversaries equal access of communications with their fellow employees. Pp. 324—327.
474 F.2d 1269, reversed.
Peter G. Nash, Washington, D.C., for petitioner.
George K. McPherson, Atlanta, Ga., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
In 1954, the International Union of Electrical, Radio, and Machine Workers (IUE) became the collective-bargaining representative of respondent's employees. At that time respondent had a rule prohibiting employees from distributing literature on any of its property, including parking lots and other nonwork areas. The collective agreement authorized the company to issue rules for the 'maintenance of orderly conditions on plant property,' provided the rules were not 'unfair' or 'discriminatory.' It also provided that bulletin boards would be available for the posting of union notices, subject to the company's right to reject 'controversial' notices. All subsequent contracts contained similar provisions. Throughout the period since 1954 respondent has prohibited employees from distributing literature even in nonworking areas during nonworking time.
2
In due course, the IUE challenged the validity of the company's rule and requested that the rule be changed. The request was denied and the IUE filed charges against respondent for unfair labor practices in violation of § 8(a)(1) of the National Labor Relations Act, 49 Stat. 452, as amended, 29 U.S.C. § 158(a)(1). The Board held for IUE, following its earlier decision in Gale Products, 142 N.L.R.B. 1246, where it had said:
3
'Their place of work is the one location where employees are brought together on a daily basis. It is the one place where they clearly share common interests and where they traditionally seek to persuade fellow workers in matters affecting their union organizational life and other matters related to their status as employees.' Id., 1249.
4
The remedy in Gale Products ran in favor of employees whose distribution project was to reject a union representative. The Board in the present case, however, broadened the relief to embrace those who wanted to support a union representative, 195 N.L.R.B. 265. The Court of Appeals denied enforcement of the Board's order, because in its view the union had waived objection to the ban on on-premises distribution of literature and had the authority to do so. 474 F.2d 1269. The case is here on petition for certiorari, which we granted because of the conflict between this decision of the Court of Appeals for the Sixth Circuit with that of the Eighth in International Association of Machinists v. Labor Board, 415 F.2d 113, and that of the Fifth in Labor Board v. Mid-States Metal Products, Inc., 403 F.2d 702.
5
Employees have the right recognized in § 7 of the Act 'to form, join, or assist labor organizations' or 'to refrain' from such activities. 29 U.S.C. § 157. We agree that a ban on the distribution of union literature or the solicitation of union support by employees at the plant during nonworking time may constitute an interference with § 7 rights. The Board had earlier held that solicitation outside working hours but on company property was protected by § 7 and that a rule prohibiting it was 'discriminatory in the absence of evidence that special circumstances make the rule necessary in order to maintain production or discipline.' In re Peyton Packaging Co., 49 N.L.R.B. 828, 843—844. We approved that ruling in Republic Aviation Corp. v. NLRB, 324 U.S. 793, 801—803, 65 S.Ct. 982, 987—988, 89 L.Ed. 1372. No contention is made here that considerations of production or discipline make respondent's rule necessary. The sole issue concerns the power of the collective-bargaining representative to waive those rights.
6
The union may, of course, reach an agreement as to wages and other employment benefits and waive the right to strike during the time of the agreement as the quid pro quo for the employer's acceptance of the grievance and arbitration procedure. Textile Workers v. Lincoln Mills, 353 U.S. 448, 455, 77 S.Ct. 912, 917, 1 L.Ed.2d 972. Such agreements, however, rest on 'the premise of fair representation' and presuppose that the selection of the bargaining representative 'remains free.' Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 280, 76 S.Ct. 349, 361, 100 L.Ed. 309. In that case we held that the waiver of the 'right to strike' did not embrace a waiver of the right to strike 'against unlawful practices destructive of the foundation on which collective bargaining must rest.' Id., at 281, 76 S.Ct., at 357. We dealt there with rights in the economic area. Yet, as the Fifth Circuit held in the Mid-States case, a different rule should obtain where the rights of the employees to exercise their choice of a bargaining representative is involved—whether to have no bargaining representative, or to retain the present one, or to obtain a new one. When the right to such a choice is at issue, it is difficult to assume that the incumbent union has no self-interest of its own to serve by perpetuating itself as the bargaining representative. 403 F.2d, at 705. The place of work is a place uniquely appropriate for dissemination of views concerning the bargaining representative and the various options open to the employees. So long as the distribution is by employees to employees and so long as the in-plant solicitation is on nonworking time, banning of that solicitation might seriously dilute § 7 rights. For Congress declared in § 1 of the Act that it was the policy of the United States to protect 'the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing.' 29 U.S.C. § 151.
7
It is argued that the use of the bulletin board is a fair substitute. But as the Fifth Circuit said in the Mid-States case the bulletin board may be an adequate medium for 'preserving the status quo' and yet not give a union's adversaries 'equal access to and communication with their fellow employees.' 403 F.2d, at 705.
8
Moreover, a limitation of the right of in-plant distribution of literature to employees opposing the union does not give a fair balance to § 7 rights, as the Board ruled in the present case. For employees supporting the union have as secure § 7 rights as those in opposition. The Board's position, as noted, has not always been consistent. But its present ruling is, we think, quite consistent with § 7 rights of employees. It is the board's function to strike a balance among 'conflicting legitimate interests' which will 'effectuate national labor policy,' including those who support versus those who oppose the union. NLRB v. Truck Drivers Union, 353 U.S. 87, 96, 77 S.Ct. 643, 648, 1 L.Ed.2d 676. Moreover, as respects employers, the rights of solicitation of employees by employees concerning § 7 rights are not absolute. As we noted in Republic Aviation Corp. the Board may well conclude that considerations of production or discipline may make controls necessary. No such evidence existed here and the trial examiner so found. Accordingly, this is not the occasion to balance the availability of alternative channels of communication* against a legitimate employer business justification for barring or limiting in-plant communications.
9
Reversed.
10
Mr. Justice STEWART, with whom Mr. Justice POWELL and Mr. Justice REHNQUIST join, concurring in part and dissenting in part.
11
To the extent the Court holds that a union cannot contractually waive the right of disaffected employees to distribute in nonwork areas and during nonwork time literature advocating the displacement of the incumbent collective-bargaining representative, I am in complete agreement. This is the essence of the Board's decision in Gale Products, 142 N.L.R.B. 1246. But it seems to me wholly inconsistent with the letter and spirit of the National Labor Relations Act to relieve the union of its promise that its own self-serving literature will not be so distributed in the plant.
12
Although the union is deemed to represent all employees in the bargaining unit, both pro-union and anti-union, and may waive important § 7 rights in the course of collective bargaining, presumably in return for management concessions on other fronts, this authority cannot extend to rights with respect to which the union and the individual employees have essentially conflicting interests. The Board stated the point succinctly in its decision in General Motors Corp., 158 N.L.R.B. 1723, 1727:
13
'(T)he employees, by once selecting the union as their representative, do not forfeit their fundamental right to change their representative at appropriate times. When a union acts to abridge that right in the manner presented in this case, it is essentially benefiting the union qua union, to the detriment of the employees it represents.'
14
Any such attempted waiver of the rights of others is so clearly in the union's self-interest of perpetuating its status as the bargaining agent, and at odds with the interests of the disaffected employees, that 'the premise of fair representation' underlying contractual waivers of § 7 rights is wholly undermined. Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 280, 76 S.Ct. 349, 361, 100 L.Ed. 309.
15
Judicial nullification of contractual concessions, however, is contrary to what the Court has recognized as '(o)ne of (the) fundamental policies' of the National Labor Relations Act—'freedom of contract.' H. K. Porter Co. v. NLRB, 397 U.S. 99, 108, 90 S.Ct. 821, 826, 25 L.Ed.2d 146. 'The theory of the Act is that free opportunity for negotiation with accredited representatives of employees is likely to promote industrial peace and may bring about the adjustments and agreements which the Act in itself does not attempt to compel.' NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45, 57 S.Ct. 615, 628, 81 L.Ed. 893. Contractual waivers against a union's own interests are seldom if ever gratuitously granted in the give and take of the collective-bargaining process. In return, the union typically exacts some form of quid pro quo from the management negotiators. Since it is usually impossible to identify the consideration given in return for a particular union concession, the result of nullifying a union's agreement to waive the § 7 rights of its supporters will necessarily be to deprive management of the benefit of its bargain and to leave the union with a windfall. This sort of invalidation of bargained-for concessions does not promote stability in the collective-bargaining process and must certainly have a negative effect on labor-management relations. For this reason, the Board and the courts should not relieve the parties of the promises they have made unless a contractual provision violates a specific section of the Act or a clear underlying policy of federal labor law.
16
In Gale Products the Board correctly determined that the union could not waive the distribution rights of employees who sought to distribute literature advocating the ouster of the incumbent union; for the clear policy of federal labor law forbids either the union or the employer to freeze out another union or to entrench the incumbent union by infringing the § 7 rights of dissident employees. I see no justification, however, for the Board's extension of the Gale Products rule to prevent the union's waiver of the distribution rights of its supporters in the bargaining unit.*
17
The considerations that distinguish the waiver of supporters' distribution rights from the waiver of opponents' distribution rights were cogently stated by the Fifth Circuit in NLRB v. Mid-States Metal Products, 403 F.2d 702, 705.
18
'Where union and employee interests are one it can fairly be assumed that employee rights will not be surrendered except in return for bargained-for concessions from the employer of benefit to employees. But the rationale of allowing waiver by the union disappears where the subject matter waived goes to the heart of the right of employees to change their bargaining representative, or to have no bargaining representative, a right with respect to which the interests of the union and employees may be wholly adverse. Solicitation and distribution of literature on plant premises are important elements in giving full play to the right of employees to seek displacement of an incumbent union. We cannot presume that the union, in agreeing to bar such activities, does so as a bargain for securing other benefits for the employees and not from the self-interest it has in perpetuating itself as bargaining representative.
19
'A waiver of the right to solicit and distribute literature does not hamper the union as it does the union's adversaries. The union can communicate through the bulletin board, union meetings and the force of status as bargaining representative, enjoying an advantage in preserving the status quo. Its adversaries will not have equal access to and communication with their fellow employees.'
20
In nullifying the union's promise to waive the literature-distribution rights of its own supporters, the Board and today the Court are upsetting the delicate balance achieved in the give and take of negotiations and presenting the union with an undeserved windfall. This nullification, at the behest of the union that made the promise, can only contribute to future instability in collective bargaining between labor and management.
21
One can, of course, envision exceptional circumstances in which the union supporters' access to and communication with their fellow employees in the bargaining unit might be so restricted that it would be extremely difficult, in the absence of their § 7 distribution rights, for them to respond to the arguments made in literature distributed by their opponents. In such a case, the waiver of the supporters' rights might result in such a distortion of the labor political process as to prevent the balanced presentation of the issues to the employees that national labor policy seeks to promote. This concern was aptly expressed by the Board in its General Motors decision, 158 N.L.R.B., at 1726:
22
'(W)e recogniz(e) the salutary purpose of refusing to disturb concessions yielded by either party through the processes of collective bargaining even where such a concession may infringe upon rights guaranteed employees under Section 7 of the Act. . . . (T)he validity of a particular concession or waiver must depend upon whether the interference with the employees' statutory rights is so great as to override any legitimate reasons for upholding the waiver, or would unduly hamper the employees in exercising their basic rights under the Act.' (Internal quotations omitted.)
23
Thus, if in the absence of § 7 distribution rights the union supporters would be incapable of adequately presenting their position to the employees in a representation controversy, a strong argument could be made that the union's agreement was contrary to a basic policy of the National Labor Relations Act and that, despite the negative effect on the bargaining process, the union's promise could not be effective.
24
In this case, however, there is no suggestion of such exceptional circumstances that would incapacitate the union's supporters in any dispute regarding the union's continued status as the collective-bargaining agent. It is clear from the record that the union supporters have access to the company bulletin boards; that they may still solicit support, although not distribute literature, in nonwork areas during nonwork time; and that they may distribute literature, and have done so in the past, at the gates of the plant. Thus, it is evident that the union supporters would not be disabled by this provision of thecollective-bargaining agreement from maintaining their end of the political discourse that national labor policy seeks to foster.
25
I cannot agree to a general rule that allows the Board to nullify the union's promise, contained in a collective-bargaining agreement, that its supporters will not distribute literature in the plant. For this reason, I dissent from the judgment and the opinion of the Court insofar as they hold that the union could not validly waive the distribution rights of the employees who support it.
*
IUE, in a brief supporting the Board's position, states there are some 2,300 employees in the bargaining unit who live scattered over a two-state area covering more than 100 square miles. The plant is located in Greenville, Tennessee. Some workers live 30 miles distant in Johnson City, Tennessee, and others live in Morrison, North Carolina. It claims that handing out leaflets at the plant gate is impracticable as cars enter or exit four abreast at fast speeds. We mention these statements not to resolve a controversy, but to indicate at least a part of the range of any inquiry into the need for inplant solicitation if § 7 rights are to be protected.
*
The Board held, and I presume the Court agrees, that the union could waive any right that the employees might have to distribute union institutional literature. The only question in this case relates to the waivability of rights to distribute literature regarding the proposed selection, retention, or displacement of the collective-bargaining agent.
| 67
|
415 U.S. 308
94 S.Ct. 1105
39 L.Ed.2d 347
Joshaway DAVIS, Petitioner,v.State of ALASKA.
No. 72—5794.
Argued Dec. 12, 1973.
Decided Feb. 27, 1974.
Syllabus
Petitioner was convicted of grand larceny and burglary following a trial in which the trial court on motion of the prosecution issued a protective order prohibiting questioning Green, a key prosecution witness, concerning Green's adjudication as a juvenile delinquent relating to a burglary and his probation status at the time of the events as to which he was to testify. The trial court's order was based on state provisions protecting the anonymity of juvenile offenders. The Alaska Supreme Court affirmed. Held: Petitioner was denied his right of confrontation of witnesses under the Sixth and Fourteenth Amendments, Pp. 315 321.
(a) The defense was entitled to attempt to show that Green was biased because of his vulnerable status as a probationer and his concern that he might be a suspect in the burglary charged against petitioner, and limiting the cross-examination of Green precluded the defense from showing his possible bias. Pp. 315—318.
(b) Petitioner's right of confrontation is paramount to the State's policy of protecting juvenile offenders and any temporary embarrassment to Green by disclosure of his juvenile court record and probation status is outweighed by petitioner's right effectively to cross-examine a witness. Pp. 319—320.
499 P.2d 1025, reversed and remanded.
Robert H. Wagstaff, Anchorage, Alaska, for the petitioner.
Charles M. Merriner, Anchorage, Alaska, for the respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari in this case to consider whether the Confrontation Clause requires that a defendant in a criminal case be allowed to impeach the credibility of a prosecution witness by cross-examination directed at possible bias deriving from the witness' probationary status as juvenile delinquent when such an impeachment would conflict with a State's asserted interest in preserving the confidentiality of juvenile adjudications of delinquency.
2
(1)
3
When the Polar Bar in Anchorage closed in the early morning hours of February 16, 1970, well over a thousand dollars in cash and checks was in the bar's Mosler safe. About midday, February 16, it was discovered that the bar had been broken into and the safe, about two feet square and weighing several hundred pounds, had been removed from the premises.
4
Later that afternoon the Alaska State Troopers received word that a safe had been discovered about 26 miles outside Anchorage near the home of Jess Straight and his family. The safe, which was subsequently determined to be the one stolen from the Polar Bar, had been pried open and the contents removed. Richard Green, Jess Straight's stepson, told investigating troopers on the scene that at about noon on February 16 he had seen and spoken with two Negro men standing alongside a late-model metallic blue Chevrolet sedan near where the safe was later discovered. The next day Anchorage police investigators brought him to the police station where Green was given six photographs of adult Negro males. After examining the photographs for 30 seconds to a minute, Green identified the photograph of petitioner as that of one of the men he had encountered the day before and described to the police. Petitioner was arrested the next day, February 18. On February 19, Green picked petitioner out of a lineup of seven Negro males.
5
At trial, evidence was introduced to the effect that paint chips found in the trunk of petitioner's rented blue Chevrolet could have originated from the surface of the stolen safe. Fourther, the of the stolen safe. Further, the which were identified as safe insulation characteristic of that found in Mosler safes. The insulation found in the trunk matched that of the stolen safe.
6
Richard Green was a crucial witness for the prosecution. He testified at trial that while on an errand for his mother he confronted two men standing beside a late-model metallic blue Chevrolet, parked on a road near his family's house. The man standing at the rear of the car spoke to Green asking if Green lived nearby and if his father was home. Green offered the men help, but his offer was rejected. On his return from the errand Green again passed the two men and he saw the man with whom he had had the conversation standing at the rear of the car with 'something like a crowbar' in his hands. Green identified petitioner at the trial as the man with the 'crowbar.' The safe was discovered later that afternoon at the point, according to Green, where the Chevrolet had been parked.
7
Before testimony was taken at the trial of petitioner, the prosecutor moved for a protective order to prevent any reference to Green's juvenile record by the defense in the course of cross-examination. At the time of the trial and at the time of the events Green testified to, Green was on probation by order of a juvenile court after having been adjudicated a delinquent for burglarizing two cabins. Green was 16 years of age at the time of the Polar Bar burglary but had turned 17 prior to trial.
8
In opposing the protective order, petitioner's counsel made it clear that he would not introduce Green's juvenile adjudication as a general impeachment of Green's character as a truthful person but, rather, to show specifically that at the same time Green was assisting the police in identifying petitioner he was on probation for burglary. From this petitioner would seek to show—or at least argue—that Green acted out of fear or concern of possible jeopardy to his probation. Not only might Green have made a hasty and faulty identification of petitioner to shift suspicion away from himself as one who robbed the Polar Bar, but Green might have been subject to undue pressure from the police and made his identifications under fear of possible probation revocation. Green's record would be revealed only as necessary to probe Green for bias and prejudice and not generally to call Green's good character into question.
9
The trial court granted the motion for a protective order, relying on Alaska Rule of Children's Procedure 23,1 and Alaska Stat. § 47.10.080(g) (1971).2
10
Although prevented from revealing that Green had been on probation for the juvenile delinquency adjudication for burglary at the same time that he originally identified petitioner, counsel for petitioner did his best to expose Green's state of mind at the time Green discovered that a stolen safe had been discovered near his home. Green denied that he was upset or uncomfortable about the discovery of the safe. He claimed not to have been worried about any suspicions the police might have been expected to harbor against him, though Green did admit that it crossed his mind that the police might have thought he had something to do with the crime.
11
Defense counsel cross-examined Green in part as follows:
12
'Q. Were you upset at all by the fact that this safe was found on your property?
13
'A. No, sir.
14
'Q. Did you feel that they might in some way suspect you of this?
15
'A. No.
16
'Q. Did you feel uncomfortable about this though?
17
'A. No, not really.
18
'Q. The fact that a safe was found on your property?
19
'A. No.
20
'Q. Did you suspect for a moment that the police might somehow think that you were involved in this?
21
'A. I thought they might ask a few questions is all.
22
'Q. Did that thought ever enter your mind that you—that the police might think that you were somehow connected with this? 'A. No, it didn't really bother me, no.
23
'Q. Well, but . . ..
24
'A. I mean, you know, it didn't—it didn't come into my mind as worrying me, you know.
25
'Q. That really wasn't—wasn't my question, Mr. Green. Did you think that—not whether it worried you so much or not, but did you feel that there was a possibility that the police might somehow think that you had something to do with this, that they might have that in their mind, and that you . . ..
26
'A. That came across my mind, yes, sir.
27
'Q. That did cross your mind?
28
'A. Yes.
29
'Q. So as I understand it you went down to the—you drove in with the police in—in their car from mile 25, Glenn Highway down to the city police station?
30
'A. Yes, sir.
31
'Q. And then went into the investigators' room with Investigator Gray and Investigator Weaver?
32
'A. Yeah.
33
'Q. And they started asking you questions about—about the incident, is that correct?
34
'A. Yeah.
35
'Q. Had you ever been questioned like that before by any law enforcement officers?
36
'A. No.
37
'MR. RIPLEY: I'm going to object to this, Your Honor, it's a carry-on with rehash of the same thing. He's attempting to raise in the jury's mind . . ..
38
'THE COURT: I'll sustain the objection.'
39
Since defense counsel was prohibited from making inquiry as to the witness' being on probation under a juvenile court adjudication, Green's protestations of unconcern over possible police suspicion that he might have had a part in the Polar Bar burglary and his categorical denial of ever having been the subject of any similar law-enforcement interrogation went unchallenged. The tension between the right of confrontation and the State's policy of protecting the witness with a juvenile record is particularly evident in the final answer given by the witness. Since it is probable that Green underwent some questioning by police when he was arrested for the burglaries on which his juvenile adjudication of delinquency rested, the answer can be regarded as highly suspect at the very least. The witness was in effect asserting, under protection of the trial court's ruling, a right to give a questionably truthful answer to a cross-examiner pursuing a relevant line of inquiry; it is doubtful whether the bold 'No' answer would have been given by Green absent a belief that he was shielded from traditional cross-examination. It would be difficult to conceive of a situation more clearly illustrating the need for cross- examination. The remainder of the cross-examination was devoted to an attempt to prove that Green was making his identification at trial on the basis of what he remembered from his earlier identifications at the photographic display and lineup, and not on the basis of his February 16 confrontation with the two men on the road.
40
The Alaska Supreme Court affirmed petitioner's conviction,3 concluding that it did not have to resolve the potential conflict in this case between a defendant's right to a meaningful confrontation with adverse witnesses and the State's interest in protecting the anonymity of a juvenile offender since 'our reading of the trial transcript convinces us that counsel for the defendant was able adequately to question the youth in considerable detail concerning the possibility of bias or motive.' 499 P.2d 1025, 1036 (1972). Although the court admitted that Green's denials of any sense of anxiety or apprehension upon the safe's being found close to his home were possibly self-serving, 'the suggestion was nonetheless brought to the attention of the jury, and that body was afforded the opportunity to observe the demeanor of the youth and pass on his credibility.' Ibid. The court concluded that, in light of the indirect references permitted, there was no error.
41
Since we granted certiorari limited to the question of whether petitioner was denied his right under the Confrontation Clause to adequately cross-examine Green, 410 U.S. 925, 93 S.Ct. 1392, 35 L.Ed.2d 586 (1973), the essential question turns on the correctness of the Alaska court's evaluation of the 'adequacy' of the scope of cross-examination permitted. We disagree with that court's interpretation of the Confrontation Clause and we reverse.
42
(2)
43
The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution 'to be confronted with the witnesses against him.' This right is secured for defendants in state as well as federal criminal proceedings under Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Confrontation means more than being allowed to confront the witness physically. 'Our cases construing the (confrontation) clause hold that a primary interest secured by it is the right of cross-examination.' Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965). Professor Wigmore stated:
44
'The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. The opponent demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining immediate answers.' (Emphasis in original.) 5 J. Wigmore, Evidence § 1395, p. 123 (3d ed. 1940).
45
Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness' story to test the witness' perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness. One way of discrediting the witness is to introduce evidence of a prior criminal conviction of that witness. By so doing the cross-examiner intends to afford the jury a basis to infer that the witness' character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony. The introduction of evidence of a prior crime is thus a general attack on the credibility of the witness. A more particular attack on the witness' credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is 'always relevant as discrediting the witness and affecting the weight of his testimony.' 3A J. Wigmore, Evidence § 940, p. 775 (Chadbourn rev. 1970). We have recognized that the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of crossexamination. Greene v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377 (1959).4
46
In the instant case, defense counsel sought to show the existence of possible bias and projudice of Green, causing him to make a faulty initial identification of petitioner, which in turn could have affected his later in-court identification of petitioner.5
47
We cannot speculate as to whether the jury, as sole judge of the credibility of a witness, would have accepted this line of reasoning had counsel been permitted to fully present it. But we do conclude that the jurors were entitled to have the benefit of the defense theory before them so that they could make an informed judgment as to the weight to place on Green's testimony which provided 'a crucial link in the proof . . . of petitioner's act.' Douglas v. Alabama, 380 U.S., at 419, 85 S.Ct., at 1077. The accuracy and truthfulness of Green's testimony were key elements in the State's case against petitioner. The claim of bias which the defense sought to develop was admissible to afford a basis for an inference of undue pressure because of Green's vulnerable status as a probationer, cf. Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931),6 as well as of Green's possible concern that he might be a suspect in the investigation.
48
We cannot accept the Alaska Supreme Court's conclusion that the cross-examination that was permitted defense counsel was adequate to develop the issue of bias properly to the jury. While counsel was permitted to ask Green whether he was biased, counsel was unable to make a record from which to argue why Green might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial. On the basis of the limited cross-examination that was permitted, the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness or, as the prosecutor's objection put it, a 'rehash' of prior cross-examination. On these facts it seems clear to us that to make any such inquiry effective, defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. Petitioner was thus denied the right of effective cross-examination which "would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.' Brookhart v. Janis, 384 U.S. 1, 3, 86 S.Ct. 1245, 1246, 16 L.Ed.2d 314.' Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 750, 19 L.Ed.2d 956 (1968).
(3)
49
The claim is made that the State has an important interest in protecting the anonymity of juvenile offenders and that this interest outweighs any competing interest this petitioner might have in cross-examining Green about his being on probation. The State argues that exposure of a juvenile's record of delinquency would likely cause impairment of rehabilitative goals of the juvenile correctional procedures. This exposure, it is argued, might encourage the juvenile offender to commit further acts of delinquency, or cause the juvenile offender to lose employment opportunities or otherwise suffer unnecessarily for his youthful transgression.
50
We do not and need not challenge the State's interest as a matter of its own policy in the administration of criminal justice to seek to preserve the anonymity of a juvenile offender. Cf. In re Gault, 387 U.S. 1, 25, 87 S.Ct. 1428, 1442, 18 L.Ed.2d 527 (1967). Here, however, petitioner sought to introduce evidence of Green's probation for the purpose of suggesting that Green was biased and, therefore, that his testimony was either not to be believed in his identification of petitioner or at least very carefully considered in that light. Serious damage to the strength of the State's case would have been a real possibility had petitioner been allowed to pursue this line of inquiry. In this setting we conclude that the right of confrontation is paramount to the State's policy of protecting a juvenile offender. Whatever temporary embarrassment might result to Green or his family by disclosure of his juvenile record—if the prosecution insisted on using him to make its case—is outweighed by petitioner's right to probe into the influence of possible bias in the testimony of a crucial identification witness.
51
In Alford v. United States, supra, we upheld the right of defense counsel to impeach a witness by showing that because of the witness' incarceration in federal prison at the time of trial, the witness' testimony was biased as 'given under promise or expectation of immunity, or under the coercive effect of his detention by officers of the United States.' 282 U.S., at 693, 51 S.Ct., at 220. In response to the argument that the witness had a right to be protected from exposure of his criminal record, the Court stated:
52
'(N)o obligation is imposed on the court, such as that suggested below, to protect a witness from being discredited on cross-examination, short of an attempted invasion of his constitutional protection from self incrimination, properly invoked. There is a duty to protect him from questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate him.' Id., at 694, 51 S.Ct., at 220.
53
As in Alford, we conclude that the State's desire that Green fulfill his public duty to testify free from embarrassment and with his reputation unblemished must fall before the right of petitioner to seek out the truth in the process of defending himself.
54
The State's policy interest in protecting the confidentiality of a juvenile offender's record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness. The State could have protected Green from exposure of his juvenile adjudication in these circumstances by refraining from using him to make out its case; the State cannot, consistent with the right of confrontation, require the petitioner to bear the full burden of vindicating the State's interest in the secrecy of juvenile criminal records. The judgment affirming petitioner's convictions of burglary and grand larceny is reversed and the case is remanded for further proceedings not inconsistent with this opinion.
55
It is so ordered.
56
Reversed and remanded.
57
Mr. Justice STEWART, concurring.
58
The Court holds that, in the circumstances of this case, the Sixth and Fourteenth Amendments conferred the right to cross-examine a particular prosecution witness about his delinquency adjudication for burglary and his status as a probationer. Such cross-examination was necessary in this case in order 'to show the existence of possible bias and prejudice . . .,' ante, at 317. In joining the Court's opinion, I would emphasize that the Court neither holds nor suggests that the Constitution confers a right in every case to impeach the general credibility of a witness through cross-examination about his past delinquency adjudications or criminal convictions.
59
Mr. Justice WHITE, with whom Mr. Justice REHNQUIST joins, dissenting.
60
As I see it, there is no constitutional principle at stake here. This is nothing more than a typical instance of a trial court exercising its discretion to control or limit cross-examination, followed by a typical decision of a state appellate court refusing to disturb the judgment of the trial court and itself concluding that limiting cross-examination had done no substantial harm to the defense. Yet the Court insists on second-guessing the state courts and in effect inviting federal review of every ruling of a state trial judge who believes cross-examination has gone for enough. I would not undertake this task, if for no other reason than that I have little faith in our ability, in fact-bound cases and on a cold record, to improve on the judgment of trial judges and of the state appellate courts who agree with them. I would affirm the judgment.
1
Rule 23 provides:
'No adjudication, order, or disposition of a juvenile case shall be admissible in a court not acting in the exercise of juvenile jurisdiction except for use in a presentencing procedure in a criminal case where the superior court, in its discretion, determines that such use is appropriate.'
2
Section 47.10.080(g) provides in pertinent part:
'The commitment and placement of a child and evidence given in the court are not admissible as evidence against the minor in a subsequent case or proceedings in any other court . . ..'
3
In the same opinion the Alaska Supreme Court also affirmed petitioner's conviction, following a separate trial, for being a felon in possession of a concealable firearm. That conviction is not in issue before this Court.
4
In Greene we stated:
'Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. . . .' 360 U.S., at 496, 79 S.Ct., at 1413.
5
'(A) partiality of mind at some former time may be used as the basis of an argument to the same state at the time of testifying; though the ultimate object is to establish partiality at the time of testifying.' 3A J. Wigmore, Evidence § 940, p. 776 (Chadbourn rev. 1970). (Emphasis in original; footnotes omitted.)
6
Although Alford involved a federal criminal trial and we reversed because of abuse of discretion and prejudicial error, the constitutional dimension of our holding in Alford is not in doubt. In Smith v. Illinois, 390 U.S. 129, 132—133, 88 S.Ct. 748, 750 751, 19 L.Ed.2d 956 (1968), we relied, in part, on Alford to reverse a state criminal conviction on confrontation grounds.
| 01
|
415 U.S. 345
94 S.Ct. 1151
39 L.Ed.2d 383
FEDERAL POWER COMMISSION, Petitioner,v.NEW ENGLAND POWER COMPANY et al.
No. 72—1162.
Argued Dec. 3, 1973.
Decided March 4, 1974.
Syllabus
The Independent Offices Appropriation Act, 1952 (the Act), authorizes each federal agency to prescribe a fee, charge, or price for services provided by the agency 'to or for any person (including groups . . .),' determined to be fair and equitable consideration being taken of 'direct and indirect cost to the Government, value to the recipient, public policy or interest served, and other pertinent facts . . ..' Pursuant to the Act, the Federal Power Commission imposed an annual assessment against all jurisdictional electric utilities in proportion to their wholesale sales and interchange of electricity, and against all natural gas companies with operating revenues of $1,000,000 or more in proportion to their deliveries of natural gas in interstate commerce. On petitions for review, the Court of Appeals set aside these annual charges, holding that whole industries are not in the category of those who may be assessed under the Act, the thrust of which reaches only specific charges for specific services to specific individuals or companies. Held:
1. While the Act includes services rendered 'to or for any person (including groups . . .),' since the Act is to be construed to cover only 'fees' and not 'taxes,' National Cable Television Ass'n v. United States, 415 U.S. 336, 94 S.Ct. 1146, 39 L.Ed.2d 370, the 'fee' presupposes an application for the agency's services, whether by a single company or group of companies or the receipt of a specific beneficial service. P. 349.
2. The Act is to be construed as authorizing a reasonable charge to 'each identifiable recipient for a measurable unit or amount of Government service or property from which he derives a special benefit,' and as precluding a charge for services rendered 'when the identification of the ultimate beneficiary is obscure and the services can be primarily considered as benefitting broadly the general public.' Pp. 349—351.
151 U.S.App.D.C. 371, 467 F.2d 425, affirmed.
Keith A. Jones, Washington, D.C., for petitioner.
Stanley M. Morley and Thomas M. Debevoise, Washington, D.C., for respondents.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This case, companion to National Cable Television Ass'n v. United States, 415 U.S. 336, 94 S.Ct. 1146, 39 L.Ed.2d 370, raises another important problem of construction of the provisions of the Independent Offices Appropriation Act, 1952, Tit. 5, 65 Stat. 290, 31 U.S.C. § 483a. The Federal Power Commission established filing fees under the Natural Gas Act and under the Federal Power Act. These filing fees have not been challenged. What was challenged were annual assessments under both Acts, levied in an effort of the agency to recoup some of the remaining costs under the two Acts.
2
With respect to electric utilities, the Commission determines each year the costs of administering the Federal Power Act. The costs associated with the Commission's efforts to promote the coordination and reliability of nonjurisdictional electric systems are not included. The Commission also deducts from administration costs the costs associated with services rendered to electric systems not subject to the Commission's jurisdiction and the amount received during the year from filing fees. The remaining balance is assessed against jurisdictional utilities1 in proporation to their wholesale sales and interchange of electricity. In 1971 these companies had gross revenues of some $21 billion and net income of nearly $4 billion. The annual assessment challenged here involved 1973 and for all such electric companies was $5 million or 0.024% of gross revenue and 0.14% of net income.
3
As respects natural gas companies, the Commission determines each year the costs of administering the natural gas pipeline programs under the Natural Gas Act, 52 Stat. 821, 15 U.S.C. § 717 et seq. These costs, after deducting amounts received from filing fees, are assessed against all natural gas companies with annual operating revenues of $1,000,000 or more in proportion to their deliveries of natural gas in interstate commerce. In addition, all natural gas companies required to file an annual report on their total gas supply (18 CRF § 260.7) are assessed one-tenth of a mill for each thousand cubic feet of new reserves of natural gas certificated each year to support the cost of the producer certificate program.
4
The Commission in its report, 45 F.P.C. 440 and 964, said as respects both eletric utilities and natural gas companies that regulations have provided 'the foundation for the sound financial condition which public utilities and natural gas companies have achieved.' Id., at 445. It mentioned the 'industry-wide recognition of the benefits accruing from only one facet of the Commission's activities—the adoption of a uniform accounting system.' Id., at 445 n. 5. The Commission, while noting that its regulatory activities were beneficial to consumers, added that its actions
5
'have redounded to the benefit of both industries by creating the economic climate for greater usage of the services of the regulated companies which in turn have further strengthened their financial stability and their ability to sell debt and equity securities required for capital additions to meet ever-increasing demands.' Id., at 445.
6
As respects electric utilities it noted that its regime was 'system wide and beneficial' to the companies. Id., at 966. As respects natural gas pipelines it listed its activities that were beneficial to them:
7
'the issuance of temporary certificates to expedite deliveries, the elimination of indefinite price escalation provisions, and the control over the quality of natural gas to be delivered and the length of the period in which supplies may be delivered where advance payments are made by the pipelines.' Id., at 967.
8
On petitions for review the Court of Appeals set aside that portion of the Commission's order establishing annual charges, 151 U.S.App.D.C. 371, 467 F.2d 425. The case is here on a petition for certiorari, 411 U.S. 981, 93 S.Ct. 2267, 36 L.Ed.2d 957.
9
The Act in question, 31 U.S.C. § 483a authorizes the head of each federal agency to prescribe a 'fee, charge, or price' for any 'benefit, privilege, . . . license, permit, certificate, registration or similar thing of value . . . provided . . . by (the) Federal agency . . . for any person (including groups, . . . corporations . . .)' which he determines 'to be fair and equitable taking into consideration direct and indirect cost to the Government, value to the recipient, public policy or interest served, and other pertinent facts . . ..'
10
The Court of Appeals held that whole industries are not in the category of those who may be assessed, the thrust of the Act reaching only specific charges for specific services to specific individuals or companies. We agree with the Court of Appeals.
11
The report on the Act, H.R.Rep.No.384, 82d Cong., 1st Sess., 2, states that '(t)he Committee is concerned that the Government is not receiving full return from many of the services which it renders to special beneficiaries' (emphasis added). It is true that the Act includes services rendered 'to or for any person (including groups . . .).' But if we are to construe the Act to cover only 'fees' and not 'taxes'—as we held should be done in the National Cable Television case, ante, p. 1146—the 'fee' presupposes an application whether by a single company or by a group of companies. The Office of Management and Budget (then known as the Bureau of the Budget) issued a circular in 19592 construing the Act. That circular stated that a reasonable charge 'should be made to each identifiable recipient for a measurable unit or amount of Government service or property from which he derives a special benefit.'3 (Emphasis added.) The circular also states that no charge should be made for services rendered, 'when the identification of the ultimate beneficiary is obscure and the service can be primarily considered as benefitting broadly the general public.'4
12
We believe that is the proper construction of the Act. Though it greatly narrows the Act from the dimensions urged by the Commission, it keeps it within the parameters of the 'fee' system and away from the domain of 'taxes' toward which the Commission's 'economic climate' argument would lead. Some of the assessments made by the Commission under its formula would be on companies which had no proceedings before the Commission during the year in question. The 'identifiable recipient' of a unit of service from which 'he derives a special benefit,' to quote the Office of Management and Budget, does not describe members of an industry which have neither asked for nor received the Commission's services during the year in question. A blanket ruling by the Commission, say on accounting practices, may not be the result of an application. But each member of the industry which is required to adopt the new accounting system is an 'identifiable recipient' of the service and could be charged a fee, if the new system was indeed beneficial to the members of the industry. There may well be other variations of a like nature which would warrant the fixing of a 'fee' for services rendered. But what was done here is not within the scope of the Act. Hence the judgment of the Court of Appeals is affirmed.
13
Affirmed.
14
Mr. Justice BLACKMUN and Mr. Justice POWELL took no part in the decision of this case.
1
Part I of the Federal Power Act covering licenses to hydroelectric companies, see 16 U.S.C. § 797 et seq., is not involved in this litigation, only Parts II, 49 Stat. 847, 16 U.S.C. § 824 et seq., and III, 49 Stat. 854, 16 U.S.C. § 825 et seq. Moreover, the 'jurisdictional' aspect of a public utility's activities refers, inter alia, to the transmission of electric energy in interstate commerce and to the sale of electric energy at wholesale in interstate commerce as contained in § 201 of the Act, 49 Stat. 847, 16 U.S.C. § 824 et seq., the provision that filled the gap created by Public Utilities Comm'n v. Attleboro Steam & Electric Co., 273 U.S. 83, 47 S.Ct. 294, 71 L.Ed. 549. See United States v. Public Utilities Comm'n, 345 U.S. 295, 73 S.Ct. 706, 97 L.Ed. 1020.
2
Budget Circular No. A—25, Sept. 23, 1959.
3
The circular goes on to state that the services include agency action which 'provides special benefits . . . above and beyond those which accrue to the public at large . . .. For example, a special benefit will be considered to accrue and a charge should be imposed when a Government-rendered service:
'(a) Enables the beneficiary to obtain more immediate or substantial gains or values (which may or may not be measurable in monetary terms) than those which accrue to the general public (e.g., receiving a patent, crop insurance, or a license to carry on a specific business); or
'(b) Provides business stability or assures public confidence in the business activity of the beneficiary (e.g., certificates of necessity and convenience for airline routes, or safety inspections of craft); or
'(c) Is performed at the request of the recipient and is above and beyond the services regularly received by other members of the same industry or group, or of the general public (e.g., receiving a passport, visa, airman's certificate, or an inspection after regular duty hours).'
4
Since oral argument we have been advised by the Solicitor General that of all federal agencies 'having industry-wide regulatory authority' there are two, other than the Federal Power Commission and the Federal Communications Commission, which impose 'annual industry-wide fees analogous' to those in the instant case. The Solicitor General summarizes the actions of the other two federal agencies as follows:
'The fee schedule of the Atomic Energy Commission is set forth at 10 C.F.R. (ss) 170.21 and 170.31 and was last revised on October 29, 1973 (38 Fed.Reg. 30254—30255). Under that schedule, operators of nuclear power reactors are subject to a minimum annual fee of $20,000 and operators of other nuclear facilities are subject to annual fees ranging from $8,500 to $215,000. Holders of materials licenses are assessed annual fees of up to $27,000. The Commission estimates that approximately $7 million will be recovered from these annual fees in fiscal year 1974. The Commission's fee schedule, including annual fees, was first adopted in 1968.
'The Securities and Exchange Commission imposes an annual fee of $100 on each of the approximately 1100 investment advisers registered with it under the Investment Advisors Act of 1940, 15 U.S.C. (s) 80b—1 et seq. See 17 C.F.R. (s) 275.203—3(b). This fee was first adopted in 1972.'
This statement covers only fees imposed under Tit. 5, 31 U.S.C. § 483a, not those authorized, 'under more specific grants of statutory authority.'
| 78
|
415 U.S. 394
94 S.Ct. 1129
39 L.Ed.2d 415
TELEPROMPTER CORPORATION et al., Petitioners,v.COLUMBIA BROADCASTING SYSTEM, INC., et al. COLUMBIA BROADCASTING SYSTEM, INC., et al., Petitioners, v. TELEPROMPTER CORPORATION et al.
Nos. 72—1628 and 72—1633.
Argued Jan. 7, 1974.
Decided March 4, 1974.
Syllabus
Several creators and producers of copyrighted television programs brought this suit claiming that defendants had infringed their copyrights by intercepting broadcast transmissions of copyrighted material and rechanneling these programs through various community antenna television (CATV) systems to paying subscribers. The District Court dismissed the complaint on the ground that the cause of action was barred by this Court's decision in Fortnightly Corp. v. United Artists Television, 392 U.S. 390, 88 S.Ct. 2084, 20 L.Ed.2d 1176. On appeal, the Court of Appeals divided CATV systems into two categories for copyright purposes: (1) those where the broadcast signal was already 'in the community' served by the system, and could be received there either by a community antenna or by standard rooftop or other antennae belonging to the owners of television sets; and (2) those where the systems imported 'distant signals' from broadcasters so far away from the CATV community that the foregoing local facilities could not normally receive adequate signals. Holding that CATV reception and retransmission of non-'distant' signals do not constitute copyright infringement, but that reception and retransmission of 'distant' signals amount to a 'performance' and thus constitute copyright infringement, the court affirmed as to those systems in the first category, but reversed and remanded as to the remaining systems. Held:
1. The development and implementation, since the Fortnightly decision of new functions of CATV systems—program origination, sale of commercials, and interconnection with other CATV systems even though they may allow the systems to compete more effectively with the broadcasters for the television market, do not convert the entire CATV operation, regardless of distance from the broadcasting station, into a 'broadcast function,' thus subjecting the CATV operators to copyright infringement liability, but are extraneous to a determination of such liability, since in none of these functions is there any nexus with the CATV operators' reception and rechanneling of the broadcasters' copyrighted materials. Pp. 402—405.
2. The importation of 'distant' signals from one community into another does not constitute a 'performance' under the Copyright Act. Pp. 406—415.
(a) By importing signals that could not normally be received with current technology in the community it serves, a CATV system does not, for copyright purposes, alter the function it performs for its subscribers, as the reception and rechanneling of these signals for simultaneous viewing is essentially a viewer function, irrespective of the distance between the broadcasting station and the ultimate viewer. P. 408.
(b) Even in exercising its limited freedom to choose among various 'distant' broadcasting stations, a CATV operator cannot be viewed as 'selecting' broadcast signals, since when it chooses which broadcast signals to rechannel, its creative function is then extinguished and it thereafter 'simply carr(ies), without editing, whatever programs (it) receive(s),' Fortnightly Corp. v. United Artists Television, supra, 392 U.S. at 400, 88 S.Ct. at 2089. Nor does a CATV system importing 'distant' signals procure and propagate them to the public, since it is not engaged in converting the sights and sounds of an event or a program into electronic signals available to the public, the signals it receives and rechannels having already been 'released to the public' even though not normally available to the specific segment of the public served by the CATV system. P. 409—410.
(c) The fact that there have been shifts in current business and commercial relationships in the communications industry as a result of the CATV systems' importation of 'distant' signals, does not entail copyright infringement liability, since by extending the range of viewability of a broadcast program, the CATV systems do not interfere in any traditional sense with the copyright holders' means of extracting recompense for their creativity or labor from advertisers on the basis of all viewers who watch the particular program. Pp. 410—414.
5th Cir., 476 F.2d 338, affirmed in part, reversed in part, and remanded to District Court.
Robert C. Barnard, Washington, D.C., for petitioners in No. 72—1628 and for respondents in No. 72—1633.
Asa D. Sokolow and Seymour Graubard, New York City, for respondents in No. 72—1628 and petitioners in No. 72—1633.
Mr. Justice STEWART delivered the opinion of the Court.
1
The plaintiffs in this litigation, creators and producers of televised programs copyrighted under the provisions of the Copyright Act of 1909, as amended, 17 U.S.C. § 1 et seq., commenced suit in 1964 in the United States District Court for the Southern District of New York, claiming that the defendants had infringed their copyrights by intercepting broadcast transmissions of copyrighted material and rechanneling these programs through various community antenna television (CATV) systems to paying subscribers.1 The suit was initially stayed by agreement of the parties, pending this Court's decision in Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 88 S.Ct. 2084, 20 L.Ed.2d 1176. In that case, decided in 1968, we held that the reception and distribution of television broadcasts by the CATV systems there involved did not constitute a 'performance' within the meaning of the Copyright Act, and thus did not amount to copyright infringement.2 After that decision the plaintiffs in the present litigation filed supplemental pleadings in which they sought to distinguish the five CATV systems challenged here from those whose operations had been found not to constitute copyright infringement in Fortnightly3. The District Court subsequently dismissed the complaint on the ground that the plaintiffs' cause of action was barred by the Fortnightly decision. 355 F.Supp. 618. On appeal to the United States Court of Appeals for the Second Circuit, the judgment was affirmed in part and reversed in part, and the case was remanded to the District Court for further proceedings. 476 F.2d 338. Both the plaintiffs and the defendants petitioned for certiorari, and, because of the seemingly important questions of federal law involved, we granted both petitions. 414 U.S. 817, 94 S.Ct. 52, 38 L.Ed.2d 50.
2
* The complaint alleged that copyright infringements occurred on certain dates at each of five illustrative CATV systems located in Elmira, New York; Farmington, New Mexico; Rawlins, Wyoming; Great Falls, Montana; and New York City. The operations of these systems typically involved the reception of broadcast beams by means of special television antennae owned and operated by Teleprompter, transmission of these electronic signals by means of cable or a combination of cable and point-to-point microwave4 to the homes of subscribers, and the conversion of the electromagnetic signals into images and sounds by means of the subscribers' own television sets.5 In some cases the distance between the point of original transmission and the ultimate viewer was relatively great—in one instance more than 450 miles—and reception of the signals of those stations by means of an ordinary rooftop antenna, even an extremely high one, would have been impossible because of the curvature of the earth and other topographical factors. In others, the original broadcast was relatively close to the customers' receiving sets and could normally have been received by means of standard television equipment. Between these extremes were systems involving intermediate distances where the broadcast signals could have been received by the customers' own television antennae only intermittently, imperfectly, and sporadically.6
3
Among the various actual and potential CATV operations described at trial the Court of Appeals discerned, for copyright purposes, two distinct categories. One category included situations where the broadcast signal was already 'in the community' served by a CATV system, and could be received there either by standard rooftop or other antennae belonging to the owners of television sets or by a community antenna erected in or adjacent to the community. Such CATV systems, the court found, performed essentially the same function as the CATV systems in Fortnightly in that they 'no more than enhance the viewer's capacity to receive the broadcaster's signals,' 392 U.S., at 399, 88 S.Ct., at 2089. The second category included situations where the CATV systems imported 'distant' signals from broadcasters so far away from the CATV community that neither rooftop nor community antennae located in or near the locality could normally receive signals capable of providing acceptable images.
4
The Court of Appeals determined that '(w)hen a CATV system is performing this second function of distributing signals that are beyond the range of local antennas, . . . to this extent, it is functionally equivalent to a broadcaster and thus should be deemed to 'perform' the programming distributed to subscribers on these imported signals.' 476 F.2d, at 349. The Court of Appeals found that in two of the operations challenged in the complaint—those in Elmira and New York City—the signals received and rechanneled by the CATV systems were not 'distant' signals, and as to these claims the court affirmed the District Court's dismissal of the complaint. As to the three remaining systems, the case was remanded for further findings in order to apply the appellate court's test for determining whether or not the signals were 'distant.'7 In No. 72—1633 the plaintiffs ask this Court to reverse the determination of the Court of Appeals that CATV reception and retransmission of signals that are not 'distant' do not constitute copyright infringement. In No. 72 1628, the defendants ask us to reverse the appellate court's determination that reception and retransmission of 'distant' signals amount to a 'performance,' and thus constitute copyright infringement on the part of the CATV systems.
II
5
We turn first to the assertions of the petitioners in No. 72 1633 that irrespective of the distance from the broadcasting station, the reception and retransmission of its signal by a CATV system constitute a 'performance' of a copyrighted work. These petitioners contend that a number of significant developments in the technology and actual operations of CATV systems mandate a reassessment of the conclusion reached in Fortnightly that CATV systems act only as an extension of a television set's function of converting into images and sounds the signals made available by the broadcasters to the public. In Fortnightly this Court reviewed earlier cases in the federal courts and determined that while analogies to the functions of performer and viewer envisioned by the Congress in 1909—that of live or filmed performances watched by audiences—were necessarily imperfect, a simple line could be drawn: 'Broadcasters perform. Viewers do not perform.' 392 U.S., at 398, 88 S.Ct., at 2088 (footnotes omitted). Analysis of the function played by CATV systems and comparison with those of broadcasters and viewers convinced the Court that CATV systems fall 'on the viewer's side of the line.' Id., at 399, 88 S.Ct., at 2089 (footnote omitted).
6
'The function of CATV systems has little in common with the function of broadcasters. CATV systems do not in fact broadcast or rebroadcast. Broadcasters select the programs to be viewed; CATV systems simply carry, without editing, whatever programs they receive. Broadcasters procure programs and propagate them to the public; CATV systems receive programs that have been released to the public and carry them by private channels to additional viewers. We hold that CATV operators, like viewers and unlike broadcasters, do not perform the programs that they receive and carry.' Id., at 400—401, 88 S.Ct., at 2089—2090 (footnotes omitted).
7
The petitioners claim that certain basic changes in the operation of CATV systems that have occurred since Fortnightly bring the systems in question here over to the broadcasters' 'side of the line.' In particular, they emphasize three developments that have taken place in the few years since the Fortnightly decision. First, they point out that many CATV systems, including some of those challenged here, originate programs wholly independent of the programs that they receive off-the-air from broadcasters and rchannel to their subscribers.8 It is undisputed that such CATV systems 'perform' those programs which they produce and program on their own; but it is contended that, in addition, the engagement in such original programing converts the entire CATV operation into a 'broadcast function,' and thus a 'performance' under the Copyright Act. Second, these petitioners assert that Teleprompter, unlike the CATV operators sued in Fortnightly, sells advertising time to commercial interests wishing to sell goods or services in the localities served by its CATV systems. The sale of such commercials, they point out, was considered in the Fortnightly opinion as a function characteristically performed by broadcasters. Id., at 400, n. 28, 88 S.Ct., at 2089, citing Intermountain Broadcasting & Television Corp. v. Idaho Microwave, Inc., D.C., 196 F.Supp. 315, 325. Finally, they contend that by engaging in interconnection with other CATV systems—whereby one CATV system that originates a program sells the right to redistribute it to other CATV systems that carry it simultaneously to their own subscribers—the CATV operators have similarly transferred their functions into that of broadcasters, thus subjecting themselves to copyright infringement liability.9
8
The copyright significance of each of these functions—program origination, sale of commercials, and interconnection—suffers from the same logical flaw: in none of these operations is there any nexus with the defendants' reception and rechanneling of the broadcasters' copyrighted materials. As the Court of Appeals observed with respect to program origination, '(e)ven though the origination service and the reception service are sold as a package to the subscribers, they remain separate and different operations, and we cannot sensibly say that the system becomes a 'performer' of the broadcast programming when it offers both origination and reception services, but remains a nonperformer when it offers only the latter.' 476 F.2d, at 347. Similarly, none of the programs accompanying advertisements sold by CATV or carried via an interconnection arrangement among CATV systems involved material copyrighted by the petitioners.10
9
For these reasons we hold that the Court of Appeals was correct in determining that the development and implementation of these new functions, even though they may allow CATV systems to compete more effectively with the broadcasters for the television market, are simply extraneous to a determination of copyright infringement liability with respect to the reception and retransmission of broadcasters' programs.
III
10
In No. 72—1628 Teleprompter and its subsidiary, Conley Electronics Corp., seek a reversal of that portion of the Court of Appeals' judgment that determined that the importation of 'distant' signals from one community into another constitutes a 'performance' under the Copyright Act. In concluding that rechanneling of 'distant' signals constitute copyright infringement while a similar operation with respect to more nearby signals does not, the court relied in part on a description of CATV operations contained in this Court's opinion in United States v. Southwestern Cable Co., 392 U.S. 157, 88 S.Ct. 1994, 20 L.Ed.2d 1001, announced a week before the decision in Fortnightly:
11
'CATV systems perform either or both of two functions. First, they may supplement broadcasting by facilitating satisfactory reception of local stations in adjacent areas in which such reception would not otherwise be possible; and second, they may transmit to subscribers the signals of distant stations entirely beyond the range of local antennae.' Id., at 163, 88 S.Ct., at 1998.
12
The Court in Southwestern Cable, however, was faced with conflicting assertions concerning the jurisdiction of the Federal Communications Commission to regulate in the public interest the operations of CATV systems. Insofar as the language quoted had other than a purely descriptive purpose, it was related only to the issue of regulatory authority of the Commission. In that context it did not and could not purport to create any separation of functions with significance for copyright purposes.11
13
In the briefs and at oral argument various rationales for the distinction adopted by the Court of Appeals have been advanced. The first, on which the court itself relied, is the assertion that by importing signals from distant communities the CATV systems do considerably more than 'enhance the viewer's capacity to receive the broadcaster's signals,' Fortnightly, 392 U.S., at 399, 88 S.Ct., at 2089, and instead 'bring signals into the community that would not otherwise be receivable on an antenna, even a large community antenna, erected in that area.' 476 F.2d, at 349. In concluding that such importation transformed the CATV systems into performers, the Court of Appeals misconceived the thrust of this Court's opinion in Fortnightly.
14
In the Fortnightly case the Court of Appeals had concluded that a determination of whether an electronic function constituted a copyright 'performance' should depend on 'how much did the (CATV system) do to bring about the viewing and hearing of a copyrighted work.' 377 F.2d 872, 877. This quantitative approach was squarely rejected by this Court:
15
'(M)ere quantitative contribution cannot be the proper test to determine copyright liability in the context of television broadcasting. . . . Rather, resolution of the issue before us depends upon a determination of the function that CATV plays in the total process of television broadcasting and reception.' 392 U.S., at 397, 88 S.Ct., at 2088.
16
By importing signals that could not normally be received with current technology in the community it serves, a CATV system does not, for copyright purposes, alter the function it performs for its subscribers. When a television broadcaster transmits a program, it has made public for simultaneous viewing and hearing the contents of that program. The privilege of receiving the broadcast electronic signals and of converting them into the sights and sounds of the program inheres in all members of the public who have the means of doing so. The reception and rechanneling of these signals for simultaneous viewing is essentially a viewer function, irrespective of the distance between the broadcasting station and the ultimate viewer.
17
In Fortnightly the Court reasoned that '(i)f an individual erected an antenna on a hill, strung a cable to his house, and installed the necessary amplifying equipment, he would not be 'performing' the programs he received on his television set,' id., at 400, 88 S.Ct., at 2089, and concluded that '(t)he only difference in the case of CATV is that the antenna system is erected and owned not by its users but by an entrepreneur.' Ibid. In the case of importation of 'distant' signals, the function is essentially the same. While the ability or inclination of an individual to erect his own antenna might decrease with respect to distant signals because of the increased cost of bringing the signal to his home, his status as a 'nonperformer' would remain unchanged. Similarly, a CATV system does not lose its status as a nonbroadcaster, and thus a 'nonperformer' for copyright purposes, when the signals it carries are from distant rather than local sources.
18
It is further argued that when a CATV operator increases the number of broadcast signals that it may receive and redistribute, it exercises certain elements of choice and selection among alternative sources and that this exercise brings it within scope of the broadcaster function. It is pointed out that some of the CATV systems importing signals from relatively distant sources could with equal ease and cost have decided to import signals from other stations at no greater distance from the communities they serve. In some instances, the CATV system here involved 'leapfrogged' nearer broadcasting stations in order to receive and rechannel more distant programs.12 By choosing among the alternative broadcasting stations, it is said, a CATV system functions much like a network affiliate which chooses the mix of national and local program material it will broadcast.
19
The distinct functions played by broadcasters and CATV systems were described in Fortnightly in the following terms:
20
'Broadcasters select the programs to be viewed; CATV systems simply carry, without, editing, whatever programs they receive. Broadcasters procure programs and propagate them to the public; CATV systems receive programs that have been released to the public and carry them by private channels to additional viewers.' Id., at 400, 88 S.Ct., at 2089.
21
Even in exercising its limited freedom to choose among various broadcasting stations, a CATV operator simply cannot be viewed as 'selecting,' 'procuring,' or 'propagating' broadcast signals as those terms were used in Fortnightly. When a local broadcasting station selects a program to be broadcast at a certain time, it is exercising a creative choice among the many possible programs available from the national network with which it is affiliated, from copyright holders of new or rerun motion pictures, or from its own facilities to generate and produce entirely original program material. The alternatives are myriad, and the creative possibilities limited only by scope of imagination and financial considerations. An operator of a CATV system, however, makes a choice as to which broadcast signals to rechannel to its subscribers, and its creative function is then extinguished. Thereafter it 'simply carr(ies), without editing, whatever programs (it) receive(s).' Ibid. Moreover, a CATV system importing 'distant' signals does not procure programs and propagate them to the public, since it is not engaged in converting the sights and sounds of an event or a program into electronic signals available to the public. The electronic signals it receives and rechannels have already been 'released to the public' even though they may not be normally available to the specific segment of the public served by the CATV system.
22
Finally, it is contended that importation of 'distant' signals should entail copyright infringement liability because of the deleterious impact of such retransmission upon the economics and market structure of copyright licensing. When a copyright holder first licenses a copyrighted program to be shown on broadcast television, he typically cannot expect to recoup his entire investment from a single broadcast. Rather, after a program has had a 'first run' on the major broadcasting networks, it is often later syndicated to affiliates and independent stations for 'second run' propagation to secondary markets. The copyright holders argue that if CATV systems are allowed to import programs and rechannel them into secondary markets they will dilute the profitability of later syndications, since viewer appeal, as measured by various rating systems, diminishes with each successive showing in a given market. We are told that in order to ensure 'the general benefits derived by the public from the labors of authors,' Fox Film Corp. v. Doyal, 286 U.S. 123, 127, 52 S.Ct. 546, 547, 76 L.Ed. 1010, and "the incentive to further efforts for the same important objects," id., at 127—128, 52 S.Ct., at 547, citing Kendall v. Winsor, 21 How. 322, 328, 16 L.Ed. 165, current licensing relationships must be maintained.
23
In the television industry, however, the commercial relations between the copyright holders and the licensees on the one hand and the viewing public on the other are such that dilution or dislocation of markets does not have the direct economic or copyright significance that this argument ascribes to it. Unlike propagators of other copyrighted material, such as those who sell books, perform live dramatic productions, or project motion pictures to live audiences, holders of copyrights for television programs or their licensees are not paid directly by those who ultimately enjoy the publication of the material—that is, the television viewers—but by advertisers who use the drawing power of the copyrighted material to promote their goods and services. Such advertisers typically pay the broadcasters a fee for each transmission of an advertisement based on an estimate of the expected number and characteristics of the viewers who will watch the program. While, as members of the general public, the viewers indirectly pay for the privilege of viewing copyrighted material through increased prices for the goods and services of the advertisers, they are not involved in a direct economic relationship with the copyright holders or their licensees.13
24
By extending the range of viewability of a broadcast program, CATV systems thus do not interfere in any traditional sense with the copyright holders' means of extracting recompense for their creativity or labor. When a broadcaster transmits a program under license from the copyright holder he has no control over the segment of the population which may view the program—the broadcaster cannot beam the program exclusively to the young or to the old, only to women or only to men—but rather he gets paid by advertisers on the basis of all viewers who watch the program. The use of CATV does not significantly alter this situation. Instead of basing advertising fees on the number of viewers within the range of direct transmission plus those who may receive 'local signals' via a CATV system, broadcasters whose reception ranges have been extended by means of 'distant' signal CATV rechanneling will merely have a different and larger viewer market.14 From the point of view of the broadcasters, such market extension may mark a reallocation of the potential number of viewers each station may reach, a fact of no direct concern under the Copyright Act. From the point of view of the copyright holders, such market changes will mean that the compensation a broadcaster will be willing to pay for the use of copyrighted material will be calculated on the basis of the size of the direct broadcast market augmented by the size of the CATV market.15
25
These shifts in current business and commercial relationships, while of significance with respect to the organization and growth of the communications industry, simply cannot be controlled by means of litigation based on copyright legislation enacted more than half a century ago, when neither broadcast television nor CATV was yet conceived. Detailed regulation of these relationships, and any ultimate resolution of the many sensitive and important problems in this field, must be left to Congress.16
26
The judgment of the Court of Appeals is affirmed in part and reversed in part, and these cases are remanded to the District Court with directions to reinstate its judgment.
27
It is so ordered.
28
Affirmed in part and reversed in part and remanded with directions.
29
Mr. Justice BLACKMUN, dissenting in part.
30
I was not on the Court when Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 88 S.Ct. 2084, 20 L.Ed.2d 1176 (1968), was decided. Were that case presented for the first time today, I would be in full agreement with what Mr. Justice Fortas said in dissent. I would join his unanswered—and, for me, unanswerable—reliance on Mr. Justice Brandeis' unanimous opinion in Buck v. Jewell-LaSalle Realty Co., 283 U.S. 191, 51 S.Ct. 410, 75 L.Ed. 671 (1931). But Fortnightly has been decided, and today the Court adheres to the principles it enunciated and to the simplistic basis* on which it rests.
31
With Fortnightly on the books, I, like Mr. Justice DOUGLAS, would confine it 'to its precise facts and leave any extension or modification to the Congress.' Post, at 1144. The United States Court of Appeals for the Second Circuit decided this litigation as best it could with the difficulties inherent in, and flowing from, Fortnightly and the Copyright Act, and within such elbowroom as was left for it to consider the expanding technology of modern-day CATV. Judge Lumbard's opinion, 476 F.2d 338, presents an imaginative and well-reasoned solution without transgressing upon the restrictive parameters of Fortnightly. I am in agreement with that opinion and would therefore affirm the judgment.
32
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE concurs, dissenting.
33
The Court today makes an extraordinary excursion into the legislative field. In Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 88 S.Ct. 2084, 20 L.Ed.2d 1176, the lower courts had found infringement of the copyright, but this Court reversed, holding that the CATV systems in Fortnightly were merely a 'reception service,' and were 'on the viewer's side of the line,' id., at 399, 88 S.Ct., at 2089, and therefore did not infringe the Copyright Act. They functioned by cable, reaching into towns which could not rceive a TV signal due, say, to surrounding mountains, and expanded the reach of the TV signal beyond the confines of the area which a broadcaster's telecast reached.
34
Whatever one thinks of Fortnightly, we should not take the next step necessary to give immunity to the present CATV organizations. Unlike those involved in Fortnightly, the present CATV's are functionally equivalent to a regular broadcaster. TV waves travel in straight lines, thus reaching a limited area on the earth's curved surface. This scientific fact has created for regulatory purposes separate television markets.1 Those whose telecast covers one market or geographic area are, under Fortnightly, estopped from saying that one who through CATV reaches by cable remote hidden valleys in that area, infringes the broadcaster's copyright. But the CATV's in the present cases go hundreds of miles, erect receiving stations or towers that pick up the programs of distant broadcasters, and carry them by cable into a wholly different area.
35
In any realistic practical sense the importation of these remote programs into the new and different market is performing a broadcast function by the cable device. Respondents in No. 72—1628 exercised their copyright provileges and licensed performance of their works to particular broadcasters for telecast in the distant market. Petitioners in that case (hereafter petitioners) were not among those licensees. Yet they are granted use of the copyrighted material without payment of any fees.
36
The Copyright Act, 17 U.S.C. §§ 1(c) and (d), gives the owner of a copyright 'the exclusive right' to present the creation 'in public for profit' and to control the manner or method by which it is 'reproduced.' A CATV that builds an antenna to pick up telecasts in Area B and then transmits it by cable to Area A is reproducing the copyrighted work, not pursuant to a license from the owner of the copyright, but by theft. That is not '"encouragement to the production of literary (or artistic) works of lasting benefit to the world'" that we extolled in Mazer v. Stein, 347 U.S. 201, 219, 74 S.Ct. 460, 471, 98 L.Ed. 630. Today's decision is at war with what Mr. Chief Justice Hughes, speaking for the Court in Fox Film Corp. v. Doyal, 286 U.S. 123, 130, 52 S.Ct. 546, 548, 76 L.Ed. 1010, described as the aim of Congress:
37
'Copyright is a right exercised by the owner during the term at his pleasure and exclusively for his own profit and forms the basis for extensive and profitable business enterprises. The advantage to the public is gained merely from the carrying out of the general policy in making such grants and not from any direct interest which the Government has in the use of the property which is the subject of the grants.'
38
The CATV system involved in the present cases performs somewhat like a network-affiliated broadcast station which imports network programs originated in distant telecast centers by microwave, off-the-air cable, precisely as petitioners do here.2 Petitioners in picking up these distant signals are not managing a simple antenna reception service. They go hundreds of miles from the community they desire to serve, erect a receiving station and then select the programs from TV and radio stations in that distant area which they desire to distribute in their own distant market. If 'function' is the key test as Fortnightly says, then functionally speaking petitioners are broadcasters; and their acts of piracy are flagrant violations of the Copyright Act. The original broadcaster is the licensor of his copyright and it is by virtue of that license that, say, a Los Angeles station is enabled lawfully to make its broadcasts. Petitioners receive today a license-free importation of programs from the Los Angeles market into Farmington, New Mexico, a distant second market. Petitioners not only rebroadcast the pirated copyrighted programs, they themselves—unlike those in Fortnightly—originate programs and finance their original programs3 and their pirated programs by sales of time to advertisers. That is the way the owner of these copyrighted programs receives value for his copyrights. CATV does the same thing; but it makes its fortune through advertising rates based in part upon pirated copyrighted programs. The Court says this is 'a fact of no direct concern under the Copyright Act'; but the statement is itself the refutation of its truth. Rechanneling by CATV of the pirated programs robs the copyright owner of his chance for monetary rewards through advertising rates4 on rebroadcasts in the distant area and gives those monetary rewards to the group that has pirated the program.
39
We are advised by an amicus brief of the Motion Picture Association that films from TV telecasts are being imported by CATV into their own markets in competition with the same pictures licensed to TV stations in the area into which the CATV—a nonpaying pirate of the films—imports them. It would be difficult to imagine a more flagrant violation of the Copyright Act. Since the Copyright Act is our only guide to law and justice in this case, it is difficult to see why CATV systems are free of copyright license fees, when they import programs from distant stations and transmit them to their paying customers in a distant market. That result reads the Copyright Act out of existence for CATV. That may or may not be desirable public policy. But it is a legislative decision that not even a rampant judicial activism should entertain.
40
There is nothing in the Communications Act that qualifies, limits, modifies, or makes exception to the Copyright Act. 'Nothing in this chapter contained shall in any way abridge or alter the remedies now existing at common law or by statute, but provisions of this chapter are in addition to such remedies.' 47 U.S.C. § 414. Moreover, the Federal Communications Commission has realized that it can 'neither resolve, nor avoid' the problem under the Copyright Act, when it comes to CATV.5
41
On January 14, 1974, the Cabinet Committee on Cable Communications headed by Clay T. Whitehead made its Report to the President. That Report emphasizes the need for the free flow of information in a society that honors 'freedom of expression'; and it emphasizes that CATV is a means to that end and that CATV is so closely 'linked to . . . electronic data processing, telephone, television and radio broadcasting, the motion picture and music industries, and communications satellites,' id., at 14, as to require 'a consistent and coherent national policy.' Ibid. The Report rejects the regulatory framework of the Federal Communications Commission because it creates 'the constant danger of unwarranted governmental influence or control over what people see and hear on television broadcast programming,' id., at 20. The Report opts for a limitation of 'the number of channels over which the cable operator has control of program content and to require that the bulk of channels be leased to others.' Ibid.
42
The Report recognizes that 'copyright liability' is an important phase of the new regulatory program the Committee envisages, id., at 39. The pirating of programs sanctioned by today's decision is anathema to the philosophy of this Report:
43
'Both equity and the incentives necessary for the free and competitive supply of programs require a system in which program retailers using cable channels negotiate and pay for the right to use programs and other copyrighted information. Individual or industry-wide negotiations for a license, or right, to use copyrighted material are the rule in all the other media and should be the rule in the cable industry.
44
'As a matter of communications policy, rather than copyright policy, the program retailer who distributes television broadcast signals in addition to those provided by the cable operator should be subject to full copyright liability for such retransmissions. However, given the reasonable expectations created by current regulatory policy, the cable operator should be entitled to a non-negotiated, blanket license, conferred by statute, to cover his own retransmission of broadcast signals.' Ibid.
45
The Whitehead Commission Report has of course no technical, legal bearing on the issue before us. But it strongly indicates how important to legislation is the sanctity of the copyright and how opposed to ethical business systems is the pirating of copyrighted materials. The Court can reach the result it achieves today only by 'legislating' important features of the Copyright Act out of existence. As stated by THE CHIEF JUSTICE in United States v. Midwest Video Corp., 406 U.S. 649, 676, 92 S.Ct. 1860, 1874, 32 L.Ed.2d 390, '(t)he almost explosive development of CATV suggests the need of a comprehensive re-examination of the statutory scheme as it relates to this new development, so that the basic polices are considered by Congress and not left entirely to the Commission and the courts.'
46
That counsel means that if we do not override Fortnightly, we should limit it to its precise facts and leave any extension or modification to the Congress.
1
The exclusive rights of copyright owners are specified in § 1 of the Copyright Act:
'Any person entitled thereto, upon complying with the provisions of this title, shall have the exclusive right:
'(a) To print, reprint, publish, copy, and vend the copyrighted work;
'(b) To translate the copyrighted work into other languages or dialects, or make any other version thereof, if it be a literary work; to dramatize it if it be a nondramatic work; to convert it into a novel or other nondramatic work if it be a drama; to arrange or adapt it if it be a musical work; to complete, execute, and finish it if it be a model or design for a work of art;
'(c) To deliver, authorize the delivery of, read, or present the copyrighted work in public for profit if it be a lecture, sermon, address or similar production, or other nondramatic literary work; to make or procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, delivered, presented, produced, or reproduced; and to play or perform it in public for profit, and to exhibit, represent, produce, or reproduce it in any manner or by any method whatsoever. The damages for the infringement by broadcast of any work referred to in this subsection shall not exceed the sum of $100 where the infringing broadcaster shows that he was not aware that he was infringing and that such infringement could not have been reasonably foreseen; and
'(d) To perform or represent the copyrighted work publicly if it be a drama or, if it be a dramatic work and not reproduced in copies for sale, to vend any manuscript or any record whatsoever thereof; to make of to procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, performed, represented, produced, or reproduced; and to exhibit, perform, represent, produce, or reproduce it in any manner or by any method whatsoever; and
'(e) To perform the copyrighted work publicly for profit if it be a musical composition; and for the purpose of public performance for profit, and for the purposes set forth in subsection (a) hereof, to make any arrangement or setting of it or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced . . ..' 17 U.S.C. § 1.
2
Although the Copyright Act does not contain an explicit definition of infringement, it is settled that unauthorized use of copyrighted material inconsistent with the 'exclusive rights' enumerated in § 1, constitutes copyright infringement under federal law. See 1 M. Nimmer, Copyright § 100, p. 376 (1973). Use of copyrighted material not in conflict with a right secured by § 1, however, no matter how widespread, is not copyright infringement. 'The fundamental (is) that 'use' is not the same thing as 'infringement,' that use short of infringement is to be encouraged . . ..' B. Kaplan, An Unhurried View of Copyright 57 (1967).
It appears to be conceded that liability in this case depends entirely on whether the defendants did 'perform' the copyrighted works. Teleprompter has not contended in this Court that, if it did 'perform' the material, its performance was not 'in public' within the meaning of § 1(c) of the Act (nondramatic literary works) or 'publicly' under § 1(d) (dramatic works). Cf. Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 395 n. 13, 88 S.Ct. 2084, 2087, 20 L.Ed.2d 1176.
3
The plaintiffs' amended complaints also contained allegations of additional copyright infringements on various dates in 1969 and 1971.
4
The Court of Appeals in this case described the differences between point-to-point microwave transmission and broadcasting in the following terms:
'A microwave link involves the transmission of signals through the air. However, microwave transmission in itself is not broadcasting. A broadcast signal, according to 47 U.S.C. § 153(o), is transmitted by a broadcaster for '(reception) by the public.' In the case of microwave, the signal is focused and transmitted in a narrow beam aimed with precision at the receiving points. Thus, microwave transmission is point-to-point communication. The receiving antenna must be in the path of the signal beam. If the transmission must cover a considerable distance, the microwave signal is transmitted to the first receiving point from which it is retransmitted to another receiving point, and this process is repeated until the signal reaches the point from which it is distributed by cable to subscribers.' 476 F.2d 338, 343 n. 6.
The plaintiffs argued in the District Court and in the Court of Appeals that 'the use of microwave, in and of itself, is sufficient to make a CATV system functionally equivalent to a broadcaster and thus subject to copyright liability . . ..' Id., at 348—349. This contention was rejected by the Court of Appeals on the ground that microwave transmission 'is merely an alternative, more economical in some circumstances, to cable in transmitting a broadcast signal from one point in a CATV system to another,' id., at 349, and the argument has not been renewed in this Court.
5
For general descriptions of CATV systems and their operation, see United States v. Southwestern Cable Co., 392 U.S. 157, 88 S.Ct. 1994, 20 L.Ed.2d 1001; M. Seiden, An Economic Analysis of Community Antenna Television Systems and the Television Broadcasting Industry (1965); Note, Regulation of Community Antenna Television, 70 Col.L.Rev. 837 (1970); Note, The Wire Mire: The FCC and CATV, 79 Harv.L.Rev. 366 (1965).
6
In two of the cities involved in this suit signals not normally receivable by household sets because of distance or terrain could be received by rooftop antennae because of the use by the broadcasting stations of 'translators,' under license from the Federal Communications Commission, which rebroadcast a specific station's signals. See 476 F.2d, at 344 and n. 7.
7
The Court of Appeals acknowledged that a determination of what is a 'distant' signal was 'difficult,' and 'that a precise judicial definition of a distant signal is not possible.' 476 F.2d, at 350. FCC egulations at one time provided that for regulatory purposes a distant signal was one 'which is extended or received beyond the Grade B contour of that station.' 47 CFR § 74.1101(i) (1971) (removed in 37 Fed.Reg. 3278 (1972)). A Grade B contour was defined as a line along which good reception may be expected 90% of the time at 50% of the locations. United States v. Southwestern Cable Co., supra, 392 U.S., at 163 n. 16, 88 S.Ct., at 1998. The Court of Appeals recognized that 'this definition (is) unsuitable for copyright purposes because . . . any definition phrased in terms of what can be received in area homes using rooftop antennas would fly in the face of the mandate of Fortnightly.' 476 F.2d, at 350. The court found instead that 'it is easier to state what is not a distant signal than to state what is a distant signal. Accordingly, we have concluded that any signal capable of projecting, without relay or retransmittal, an acceptable image that a CATV system receives off-the-air during a substantial portion of the time by means of an antenna erected in or adjacent to the CATV community is not a distant signal.' Id., at 351 (footnote omitted).
8
Program origination initially consisted of simple arrangements on spare channels using automated cameras providing time, weather, news ticker, or stock ticker information, and aural systems with music or news announcements. The function has been expanded to include coverage of sports and other live events, news services, moving picture films, and specially created dramatic and nondramatic programs. See CATV-First Report and Order, 20 F.C.C.2d 201; United States v. Midwest Video Corp., 406 U.S. 649, 92 S.Ct. 1860, 32 L.Ed.2d 390.
9
The Court of Appeals limited its discussion of interconnection among CATV systems to two instances of live coverage of championship heavyweight boxing contests. While the respondents contend that additional examples of interconnection were presented in the trial testimony, they do not suggest that material copyrighted by anyone other than the CATV operators was carried by any such interconnection, and thus the exact number of such instances is of no significance.
10
While the technology apparently exists whereby a CATV system could retransmit to its subscribers broadcast programs taken off-the-air but substitute its own commercials for those appearing in the broadcast, none of the instances of claimed infringement involved such a process.
11
The FCC has consistently contended that it is without power to alter rights emanating from other sources, including the Copyright Act. In 1966 it indicated that its proposed rules regulating CATV operations would not 'affect in any way the pending copyright suits, involving as they do matters entirely beyond (the FCC's) jurisdiction.' Second Report and Order, Community Antenna Television Systems, 2 F.C.C.2d 725, 768. This position is consistent with the terms of the Communications Act of 1934, the source of the Commission's regulatory power, which provides, in part:
'Nothing in this chapter contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.' 47 U.S.C. § 414.
Thus, it is highly unlikely that the 'distant' signal definition adopted by the Commission or a differentiation of function based on such a definition was intended to or could have copyright significance. Indeed, as noted, the Court of Appeals in the present case found that the Commission's definition of a 'distant' signal was unsatisfactory for determining if a 'performance' under the Copyright Act had occurred. See n. 7, supra.
12
For example, it was represented in a brief before this Court that the Farmington, New Mexico, CATV system imported signals from a Los Angeles station even though 113 other stations were closer or equidistant, including a number which, unlike the Los Angeles station, were in the same time zone as the Farmington community.
13
Some commentators have suggested that if CATV systems must pay license fees for the privilege of retransmitting copyrighted broadcast programs, the CATV subscribers will in effect be paying twice for the provilege of seeing such programs: first through increased prices for the goods and services of the advertisers who pay for the television broadcasts and a second time in the increased cost of the CATV service. Note, CATV and Copyright Liability: On a Clear Day You Can See Forever, 52 Va.L.Rev. 1505, 1515 (1966); Note, CATV and Copyright Liability, 80 Harv.L.Rev. 1514, 1522—1523 (1967). See n. 15, infra.
14
Testimony and exhibits introduced in the District Court indicate that the major rating services cover in their compilations statistics concerning the entire number of viewers of a particular program, including those who receive the broadcast via 'distant' transmission over CATV systems. The weight given such statistics by advertisers who bid for broadcast time and pay the fees which support the broadcasting industry was not, however, established. See n. 15, infra.
15
It is contended that copyright holders will necessarily suffer a net loss from the dissemination of their copyrighted material if license-free use of 'distant' signal importation is permitted. It is said that importation of copyrighted material into a secondary market will result in a loss in the secondary market without increasing revenues from the extended primary market on a scale sufficient to compensate for that loss. The assumption is that local advertisers supporting 'first run' programs will be unlikely to pay significantly higher fees on the basis of additional viewers in a 'distant' market because such viewers will typically have no commercial interest in the goods and services sold by purely local advertisers. For discussion of the possible impact of CATV 'distant' signal importation on advertiser markets for broadcast television, see 52 Va.L.Rev., at 1513—1516; 80 Harv.L.Rev., at 1522—1525. The Court of Appeals noted that '(n)o evidence was presented in the court below to show that regional or local advertisers would be willing to pay greater fees because the sponsored program will be exhibited in some distant market, or that national advertisers would pay more for the relatively minor increase in audience size that CATV carriage would yield for a network program,' and concluded that '(i)ndeed, economics and common sense would impel one to an opposite conclusion.' 476 F.2d, at 342 n. 2. Thus, no specific findings of fact were made concerning the precise impact of 'distant' signal retransmission on the value of program copyrights. But such a showing would be of very little relevance to the copyright question we decide here. At issue in this case is the limited question of whether CATV transmission of 'distant' signals constitutes a 'performance' under the Copyright Act. While securing compensation to the holders of copyrights was an essential purpose of that Act, freezing existing economic arrangements for doing so was not. It has been suggested that the best theoretical approach to the problem might be '(a) rule which called for compensation to copyright holders only for the actual advertising time 'wasted' on local advertisers unwilling to pay for the increase in audience size brought about by the cable transmission,' Note, 87 Harv.L.Rev. 665, 675 n. 32 (1974). But such a rule would entail extended factfinding and a legislative, rather than a judicial, judgment. In any event, a determination of the best alternative structure for providing compensation to copyright holders, or a prediction of the possible evolution in the relationship between advertising markets and the television medium, is beyond the competence of this Court.
16
The pre-Fortnightly history of efforts to update the Copyright Act to deal with technological developments such as CATV was reviewed in the Fortnightly opinion, 392 U.S., at 396 n. 17, 88 S.Ct., at 2087. At that time legislative action to revise the copyright laws so as to resolve copyright problems posed by CATV was of such apparent imminence that the Solicitor General initially suggested to this Court that it defer judicial resolution of the Fortnightly case in order to allow a speedy completion of pending legislative proceedings. Those legislative activities, however, did not bear fruit, apparently because of the diversity and delicacy of the interests affected by the CATV problem. See 117 Cong.Rec. 2001 (1971) (remarks of Sen. McClellan). Further attempts at revision in the 91st Congress, S. 542, and the 92d Congress, S. 644, met with a similar lack of success. At present, Senate Hearings in the Subcommittee on Patents, Trademarks and Copyrights have been held on a bill that would amend the Copyright Act, S. 1361, but the bill has not yet been reported out of that subcommittee. A companion bill has been introduced in the House of Representatives, H.R. 8186, and referred to Judiciary Committee No. 3, but no hearings have yet been scheduled.
*
'Broadcasters perform. Viewers do not perform.' 392 U.S., at 398, 88 S.Ct., at 2088 (footnotes omitted).
1
The Communications Act of 1934 empowered the FCC to 'assign frequencies for each individual station,' 'determine the power which each station shall use,' '(d)etermine the location of . . . individual stations,' and '(h)ave authority to establish areas or zones to be served by any station.' 47 U.S.C. § 303(c), (d), and (h). Pursuant to these powers and others granted it by the Communications Act, the FCC has supervised the establishment and maintenance of a nationwide system of local radio and television broadcasting stations, each with primary responsibility to a particular community.
2
Farmington, New Mexico, into which petitioners pipe programs stolen from Los Angeles, is 600 miles away; and petitioners developed an intricate hookup 'via twenty-three steps over a roundabout, 1300-mile route to (establish the link).' See 355 F.Supp. 618, 622.
3
476 F.2d 338, 346—347; CATV—First Report and Order, 20 F.C.C.2d 201; United States v. Midwest Video Corp., 406 U.S. 649, 92 S.Ct. 1860, 32 L.Ed.2d 390. See also Cable Television Report and Order, 36 F.C.C.2d 143, 148, 290; Rules re Micro-wave Served CATV, 38 F.C.C. 683; Radio Signals, Importation by Cable Television, 36 F.C.C.2d 630.
4
We sustained the Commission's authority to require CATV to iriginate programs in a 5—4 decision in 1972. United States v. Midwest Video Corp., supra.
5
The Solicitor General in his memorandum in the Fortnightly case urged that the cable transmission of other stations' programs into distant markets be subject to copyright protection:
'(M)uch of the advertising which accompanies the performance of copyrighted works, such as motion pictures, is directed solely at potential viewers who are within the station's normal service area—'local' advertising and 'national spot' advertising both fall within that category. Such advertisers do not necessarily derive any significant commercial benefit from CATV carriage of the sponsored programs outside of the market ordinarily served by the particular station, and accordingly may be unwilling to pay additional amounts for such expanded coverage.' Memorandum for the United States as amicus curiae in No. 618, O.T.1967, p. 10.
| 78
|
415 U.S. 391
94 S.Ct. 1177
39 L.Ed.2d 412
Henry HERNANDEZ et al., Petitioners,v.VETERANS' ADMINISTRATION et al.
No. 72—700.
Argued Dec. 11, 1973.
Decided March 4, 1974.
Syllabus
Petitioners, who were denied educational benefits under the Veterans' Readjustment Benefits Act of 1966 because, as conscientious objectors exempt from the military service who performed alternative civilian service, they were ineligible for such benefits, brought actions challenging the constitutionality, on First and Fifth Amendment grounds, of the provisions of the Act making them ineligible. The District Court dismissed the actions on the grounds that jurisdiction was barred by 38 U.S.C. § 211(a) and petitioners' constitutional claims were insubstantial and without merit. The Court of Appeals affirmed on the basis of the jurisdictional bar. Held: Section 211(a) does not bar judicial consideration of constitutional challenges to veterans' benefits legislation. Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389. P. 393.
467 F.2d 479, vacated and remanded.
Lawrence L. Curtice, San Francisco Neighborhood Legal Assistance Foundation, San Francisco, Cal., and Jack R. Petranker, pro hac vice, by special leave of Court, for petitioners.
Gerald P. Norton, Washington, D.C., for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Petitioners, like the appellee and his class in Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389, are Class I O conscientious objectors who, upon completion of alternative civilian service pursuant to § 6(j) of the Military Selective Service Act, 50 U.S.C.App. § 456(j), and the governing regulations of the Selective Service System, 32 CFR, Part 1660, applied for educational benefits provided by the Veterans' Readjustment Benefits Act of 1966. The Veterans' Administration denied petitioners' application for the reasons upon which appellee Robison's request was denied, i.e., because a Class I—O conscientious objector who has performed alternative civilian service does not qualify under 38 U.S.C. § 1652(a)(1) as a 'veteran who . . . served on active duty' (defined in 38 U.S.C. § 101(21) as 'full time duty in the Armed Forces'), and is therefore not an 'eligible veteran' entitled under 38 U.S.C. § 1661(a) to veterans' educational benefits provided by the Veterans' Readjustment Benefits Act of 1966.
2
Alleging that those sections of the 1966 Act discriminate against conscientious objectors in violation of the Fifth Amendment, and infringe the Religion Clauses of the First Amendment, petitioners filed two actions seeking declaratory, injunctive, and mandamus relief and requesting the convening of a three-judge district court. The District Court consolidated the two cases and granted the Government's motion to dismiss on the grounds that 'plaintiffs' requests for affirmative relief are not within the jurisdiction of this Court due to the mandate of 38 U.S.C. § 211(a) . . . (and) the plaintiffs' challenge . . . based on alleged violations of the Fifth and First Amendments to the United States Constitution are (sic) insubstantial and without merit.' 339 F.Supp. 913, 916 (ND Cal.1972). Notwithstanding the District Court's dismissal of petitioners' constitutional claims on the ground of insubstantiality, the Court of Appeals, as we read that court's opinion, construed the order of dismissal as based solely upon the jurisdictional bar of § 211(a), and affirmed the District Court on that ground. 467 F.2d 479 (1972). We granted certiorari and set the case for oral argument with Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389, 411 U.S. 981, 93 S.Ct. 2267, 36 L.Ed.2d 957 (1973).
3
We have held today in Johnson v. Robison that § 211(a) does not bar judicial consideration of constitutional challenges to veterans' benefits legislation. Accordingly, the judgment of the Court of Appeals is vacated and the case remanded for further proceedings consistent with our opinion in Johnson v. Robison.
4
It is so ordered.
5
Judgment vacated and case remanded.
6
Mr. Justice DOUGLAS concurs in the result for the reasons stated in his dissenting opinion in Johnson v. Robison, 415 U.S., at 386, 94 S.Ct., at 1175.
| 12
|
415 U.S. 423
94 S.Ct. 1113
39 L.Ed.2d 435
GRANNY GOOSE FOODS, INC., et al., Petitioners,v.
BROTHERHOOD OF TEAMSTERS & AUTO TRUCK DRIVERS LOCAL NO. 70 OF ALAMEDA COUNTY, etc.
No. 72—1566.
Argued Jan. 8, 1974.
Decided March 4, 1974.
Syllabus
Petitioner employers brought suit in California state court alleging that respondent Union was engaging in a strike in breach of collective-bargaining agreements. The court issued a temporary restraining order on May 18, 1970. Two days later the case was removed to federal court, and on June 4 the District Court denied the Union's motion to dissolve the restraining order. Strike activity then stopped and the labor dispute remained dormant until the Union, after the petitioners had refused to bargain, resumed its strike on November 30, 1970. Two days later the District Court, on petitioners' motion, held the Union in criminal contempt for violating the restraining order. The Court of Appeals reversed on the ground that the order had expired long before November 30, 1970, reasoning that under both state law and Fed.Rule Civ.Proc. 65(b) the order expired no later than June 7, 1970, 20 days after its issuance, and rejecting petitioners' contention that the life of the order was indefinitely prolonged by 28 U.S.C. § 1450 'until dissolved or modified by the district court.' Held:
1. Whether state law or Rule 65(b) is controlling, the restraining order expired long before the date of the alleged contempt, since under the State Code of Civil Procedure a temporary restraining order is returnable no later than 15 days from its date, 20 days if good cause is shown, and must be dissolved unless the party obtaining it proceeds to submit its case for a preliminary injunction, and similarly, under Rule 65(b), such an order must expire by its own terms within 10 days after entry, 20 days if good cause is shown. Pp. 431—433.
2. Section 1450 was not intended to give state court injunctions greater effect after removal to federal court than they would have had if the case had remained in state court, and it should be construed in a manner consistent with the time limitations of Rule 65(b). Pp. 443—440.
(a) Once a case has been removed to federal court, federal law, including the Federal Rules of Civil Procedure, controls the future course of proceedings, notwithstanding state court orders issued prior to removal. The underlying purpose of § 1450 (to ensure that no lapse in a state court temporary restraining order will occur simply by removing the case to federal court) and the policies reflected in the time limitations of Rule 65(b) (stringent restrictions on the availability of ex parte restraining orders) can be accommodated by applying the rule that such a state court pre-removal order remains in force after removal no longer than it would have remained in effect under state law, but in no event longer than the Rule 65(b) time limitations, measured from the date of removal. Pp. 435—440.
(b) Accordingly, the order expired by its terms on May 30, 1970, under the 10-day limitation of Rule 65(b) applied from the date of removal; hence no order was in effect on November 30, 1970, and the Union violated no order when it resumed its strike at that time. P. 440.
3. The District Court's denial of the Union's motion to dissolve the restraining order did not effectively convert the order into a preliminary injunction of unlimited duration. Pp. 440 445.
(a) That the Union may have had the opportunity to be heard on the merits of the preliminary injunction when it moved to dissolve the restraining order is not the controlling factor, since under Rule 65(b) the burden was on petitioners to show that they were entitled to a preliminary injunction, not on the Union to show that they were not. Pp. 442—443.
(b) Where a court intends to supplant a temporary restraining order, which under Rule 65(b) expires by its own terms within 10 days of issuance, with a preliminary injunction of unlimited duration pending a final decision on the merits or further order of the court, it should issue an order clearly saying so, and where it has not done so, a party against whom a temporary restraining order has issued may reasonably assume that the order has expired within Rule 65(b)'s time limits. Here, since the only orders entered were a temporary restraining order and an order denying a motion to dissolve the temporary order, the Union had no reason to believe that a preliminary injunction of unlimited duration had been issued. Pp. 443—445.
472 F.2d 764, affirmed.
George J. Tichy, II, Spokane, Wash., for petitioners.
Duane B. Beeson, San Francisco, Col., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
This case concerns the interpretation of 28 U.S.C. § 1450,1 which provides in pertinent part: 'Whenever any action is removed from a State court to a district court of the United States . . . (a)ll injunctions, orders, and other proceedings had in such action prior to its removal shall remain in full force and effect until dissolved or modified by the district court.' The District Court held respondent Union in criminal contempt for violating a temporary restraining order issued by the California Superior Court on May 18, 1970, prior to the removal of the case from the Superior Court to the District Court. The Court of Appeals reversed, one judge dissenting, on the ground that the temporary restraining order had expired long before November 30, 1970, the date of the alleged contempt. 472 F.2d 764 (CA9 1973). The court reasoned that under both § 527 of the California Code of Civil Procedure and of Fed.Rule Civ.Proc. 65(b), the temporary restraining order must have expired no later than June 7, 1970, 20 days after its issuance. The court rejected petitioners' contention that the life of the order was indefinitely prolonged by § 1450 'until dissolved or modified by the district court,' holding that the purpose of that statute 'is to prevent a break in the force of an injunction or a restraining order that could otherwise occur when jurisdiction is being shifted,' 472 F.2d at 767, not to 'create a special breed of temporary restraining orders that survive beyond the life span imposed by the state law from which they spring and beyond the life that the district court could have granted them had the orders initiated from the federal court.' Id., at 766.
2
As this understanding of the statute was in conflict with decisions of two other Circuits interpreting § 1450 to preclude the automatic termination of state court temporary restraining orders,2 we granted certiorari, 414 U.S. 816, 94 S.Ct. 130, 38 L.Ed.2d 49 (1973). Finding ourselves in substantial agreement with the analysis of the Ninth Circuit in the present case, we affirm.
3
* On May 15, 1970, petitioners Granny Goose Foods, Inc., and Sunshine Biscuits, Inc., filed a complaint in the Superior Court of California for the county of Alameda alleging that respondent, a local Teamsters Union, and its officers and agents, were engaging in strike activity in breach of national and local collective-bargaining agreements recently negotiated by multiunion-multiemployer bargaining teams. Although the exact nature of the underlying labor dispute is unclear, its basic contours are as follows: The Union was unwilling to comply with certain changes introduced in the new contracts; it believed it was not legally bound by the new agreements because it had not been a part of the multiunion bargaining units that negotiated the contracts;3 and it wanted to negotiate separate contracts with petitioner employers.
4
The same day the complaint was filed, the Superior Court issued a temporary restraining order enjoining all existing strike activity and ordering the defendants to show cause on May 26, 1970, why a preliminary injunction should not issue during the pendency of the suit. An amended complaint adding petitioner Standard Brands, Inc., was filed on May 18, and a modified temporary restraining order was issued that same day adding a prohibition against strike activities directed toward that employer.
5
On May 19, 1970, after having been served with the May 15 restraining order but before the scheduled hearing on the order to show cause, the Union and the individual defendants removed the proceeding to the District Court on the ground that the action arose under § 301 of the Labor Management Relations Act, 1974, 61 Stat. 156, 29 U.S.C. § 185.4 On May 20, 1970 an amended removal petition was filed to take into account the modified temporary restraining order of May 18.
6
Simultaneously with the filing of the removal petition, the defendants filed a motion in the District Court to dissolve the temporary restraining order. The sole ground alleged in support of the motion was that the District Court lacked jurisdiction to maintain the restraining order under this Court's decision in Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440 (1962), where the Court held that notwithstanding § 301's grant of jurisdiction to federal courts over suits between employers and unions for breach of collective-bargaining agreements, § 4 of the Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C. § 104, barred federal courts from issuing an injunction against a strike allegedly in violation of a collective-bargaining agreement containing a no-strike clause.
7
The employers then filed a motion to remand the case to the Superior Court, alleging that the defendants had waived their right to removal by submitting to the jurisdiction of the state court. The Union's motion to dissolve and the employers' motion to remand came on for a hearing on May 27, 1970. The motion to remand was denied from the bench. With respect to the motion to dissolve, the employers brought to the attention of the District Court our grant of certiorari in Boys Markets, Inc. v. Retail Clerks Union, 396 U.S. 1000, 90 S.Ct. 572, 24 L.Ed.2d 492 (1970), which was interpreted as an indication that the Court would re-examine its holding in Sinclair. As Boys Markets had been argued here in April 1970, the District Court refrained from taking any action on the motion to dissolve until it received further guidance from this Court. On June 1, 1970, we handed down our decision in Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199, overruling Sinclair and holding that a district court could enjoin a strike in breach of a nostrike clause in a collective-bargaining agreement and order arbitration under the agreement. Three days later, on June 4, 1970, the District Court entered a brief order denying the motion to dissolve the state court temporary restraining order, citing Boys Markets.
8
Evidently picketing and strike activity stopped and the labor dispute remained dormant after June 4. The flame was rekindled, however, when on November 9, 1970, the Union sent the employers telegrams requesting bargaining to arrive at a collective-bargaining agreement and expressing the Union's continued belief that it was not bound by the national and local agreements negotiated by the multiunion-multiemployer groups. The employers answered that there was no need to bargain because, in their view, the Union was bound by the national and local agreements. The conflict remained unresolved, and on November 30, 1970, the Union commenced its strike activity once again.
9
The next day the employers moved the District Court to hold the Union, its agents, and officers in contempt of the modified temporary restraining order issued by the Superior Court on May 18. A hearing was held on the motion the following day. The Union's argument that the temporary restraining order had long since expired was rejected by the District Court on two grounds. First, the court concluded that its earlier action denying the motion to dissolve the temporary restraining order gave the order continuing force and effect. Second, the court found that § 1450 itself served to continue the restraining order in effect until affirmatively dissolved or modified by the court. Concluding after the hearing that the Union had willfully violated the restraining order, the District Court held it in criminal contempt and imposed a fine of $200,000.5
II
10
Leaving aside for the moment the question whether the order denying the motion to dissolve the temporary restraining order was effectively the grant of a preliminary injunction, it is clear that whether California law or Rule 65(b) is controlling, the temporary restraining order issued by the Superior Court expired long before the date of the alleged contempt. Section 527 of the California Code of Civil Procedure,6 under which the order was issued, provides that temporary restraining orders must be returnable no later than 15 days from the date of the order, 20 days if good cause is shown, and unless the party obtaining the order then proceeds to submit its case for a preliminary injunction, the temporary restraining order must be dissolved.7 Similarly, under Rule 65(b),8 temporary restraining orders must expire by their own terms within 10 days after entry, 20 days if good cause is shown.
11
Petitioners argue, however, that notwithstanding the time limitations of state law, § 1450 keeps all state court injunctions, including ex parte temporary restraining orders, in full force and effect after removal until affirmatively dissolved or modified by the district court. To the extent this reading of § 1450 is inconsistent with the time limitations of Rule 65(b), petitioners contend the statute must control.
12
In our view, however, § 1450 can and should be interpreted in a manner which fully serves its underlying purposes, yet at the same time places it in harmony with the important congressional policies reflected in the time limitations in Rule 65(b).
13
At the outset, we can find no basis for petitioners' argument that § 1450 was intended to turn ex parte state court temporary restraining orders of limited duration into federal court injunctions of unlimited duration. Section 1450 was simply designed to deal with the unique problem of a shift in jurisdiction in the middle of a case which arises whenever cases are removed from state to federal court. In this respect two basic purposes are served. Judicial economy is promoted by providing that proceedings had in state court shall have force and effect in federal court, so that pleadings filed in state court, for example, need not be duplicated in federal court.9 In addition, the statute ensures that interlocutory orders entered by the state court to protect various rights of the parties will not lapse upon removal. Thus attachments, sequestrations, bonds, undertakings, securities, injunctions, and other orders obtained in state court all remain effective after the case is removed to federal court.
14
But while Congress clearly intended to preserve the effectiveness of state court orders after removal, there is no basis for believing that § 1450 was designed to give injunctions or other orders greater effect after removal to federal court than they would have had if the case had remained in state court. After removal, the federal court 'takes the case up where the State court left it off.' Duncan v. Gegan, 101 U.S. 810, 812, 25 L.Ed. 875 (1880). The 'full force and effect' provided state court orders after removal of the case to federal court was not intended to be more than the force and effect the orders would have had in state court.10
15
More importantly, once a case has been removed to federal court, it is settled that federal rather than state law governs the future course of proceedings, notwithstanding state court orders issued prior to removal. Section 1450 implies as much by recognizing the district court's authority to dissolve or modify injunctions, orders, and all other proceedings had in state court prior to removal. This Court resolved this issue long ago in Ex parte Fisk, 113 U.S. 713, 5 S.Ct. 724, 28 L.Ed. 1117 (1885). There it was argued that an order to take the deposition of a witness issued by the state court prior to removal was binding in federal court and could not be reconsidered by the federal court, notwithstanding its inconsistency with certain federal statutes governing procedure in federal courts. The Court rejected this contention, and said that the predecessor of § 1450
16
'declares orders of the State court, in a case afterwards removed, to be in force until dissolved or modified by the Circuit Court. This fully recognizes the power of the latter court over such orders. And it was not intended to enact that an order made in the State court, which affected or might affect the mode of trial yet to be had, could change or modify the express directions of an act of Congress on that subject.
17
'The petitioner having removed his case into the Circuit Court has a right to have its further progress governed by the law of the latter court, and not by that of the court from which it was removed; and if one of the advantages of this removal was an escape from this examination, he has a right to that benefit if his case was rightfully removed.' Id., at 725—726, 5 S.Ct., at 729—730.
18
See also King v. Worthington, 104 U.S. 44, 26 L.Ed. 652 (1881); Freeman v. Bee Machine Co., 319 U.S. 448, 63 S.Ct. 1146, 87 L.Ed. 1509 (1943).
19
By the same token, respondent Union had a right to the protections of the time limitation in Rule 65(b) once the case was removed to the District Court. The Federal Rules of Civil Procedure, like other provisions of federal law, govern the mode of proceedings in federal court after removal. See Fed.Rule Civ.Proc. 81(c).11 In addition, we may note that although the durational limitations imposed on ex parte restraining orders are now codified in a federal rule, they had their origin in § 17 of the Clayton Act of 1914, 38 Stat. 737. As the House Report recommending its enactment emphasized, the durational and other limitations imposed on temporary restraining orders were thought necessary to cure a serious problem of 'ill-considered injunctions without notice.'12 The stringent restrictions imposed by § 17, and now by Rule 65,13 on the availability of ex parte temporary restraining orders reflect the fact that our entire jurisprudence runs counter to the notion of court action taken before reasonable notice and an opportunity to be heard has been granted both sides of a dispute. Ex parte temporary restraining orders are no doubt necessary in certain circumstances, cf. Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 180, 89 S.Ct. 347, 351, 21 L.Ed.2d 325 (1968), but under federal law they should be restricted to serving their underlying purpose of preserving the status quo and preventing irreparable harm just so long as is necessary to hold a hearing, and no longer.14
20
We can find no indication that Congress intended § 1450 as an exception to its broader, longstanding policy of restricting the duration of ex parte restraining orders. The underlying purpose of § 1450—ensuring that no lapse in a state court temporary restraining order will occur simply by removing the case to federal court—and the policies reflected in Rule 65(b) can easily be accommodated by applying the following rule: An ex parte temporary restraining order issued by a state court prior to removal remains in force after removal no longer than it would have remained in effect under state law, but in no event does the order remain in force longer than the time limitations imposed by Rule 65(b), measured from the date of removal.15
21
Applying our holding to the present case is simple. The temporary restraining order was issued by the Superior Court on May 18, 1970, and would have remained in effect in the state court no longer than 15 days, or until June 2. The case was removed to federal court on May 20, 1970. The temporary restraining order therefore expired on May 30, 1970, applying the 10-day limitation of Rule 65(b) from the date of removal. Accordingly, no order was in effect on November 30, 1970, and the Union violated no order when it resumed its strike at that time.
III
22
We now turn to petitioners' argument that, apart from the operation of § 1450, the District Court's denial of the Union's motion to dissolve the temporary restraining order effectively converted the order into a preliminary injunction of unlimited duration. The Court of Appeals rejected this argument out of hand, stating that '(t)he Union's unsuccessful effort to dissolve the order before it died a natural death did not convert the temporary restraining order into a preliminary injunction or estop it from relying on the death certificate.' 472 F.2d, at 767. We reach essentially the same conclusion.
23
As indicated earlier, once a case has been removed to federal court, its course is to be governed by federal law, including the Federal Rules of Civil Procedure. Rule 65(b) establishes a procedure whereby the party against whom a temporary restraining order has issued can move to dissolve or modify the injunction, upon short notice to the party who obtained the order. Situations may arise where the parties, at the time of the hearing on the motion to dissolve the restraining order, find themselves in a position to present their evidence and legal arguments for or against a preliminary injunction. In such circumstances, of course, the court can proceed with the hearing as if it were a hearing on an application for a preliminary injunction. At such hearing, as in any other hearing in which a preliminary injunction is sought, the party seeking the injunction would bear the burden of demonstrating the various factors justifying preliminary injunctive relief, such as the likelihood of irreparable injury to it if an injunction is denied and its likelihood of success on the merits.16
24
On the other hand, situations might arise where the parties are not prepared and do not intend at the hearing on the motion to dissolve or modify the temporary restraining order to present their cases for or against a preliminary injunction. In such circumstances, the appropriate procedure would be for the district court to deal with the issues raised in the motion to dissolve or modify the restraining order, but to postpone for a later hearing, still within the time limitations of Rule 65(b), the application for a preliminary injunction. See generally, C. Wright & A. Miller, Federal Practice & Procedure: Civil 2954, p. 523 (1973 ed.).
25
In the present case we think it plain that the hearing on the Union's motion to dissolve the restraining order cannot be considered to be a hearing on a preliminary injunction, and that the District Court's order denying the motion to dissolve cannot reasonably be construed as the grant of a preliminary injunction. There is no indication in the record that either party or the District Court itself treated the May 27 hearing as a hearing on an application for a preliminary injunction. The employers made no attempt at that time to present their case for a preliminary injunction. Likewise, the Union made no attempt at that time to present its defense that it was not bound by the new national and local agreements because it had made a timely withdrawal from the multiunion bargaining unit negotiating said contracts. See n. 3, supra. The court itself did not indicate that it was undertaking a hearing on a preliminary injunction. As far as we can tell, it never addressed itself at the hearing to the various equitable factors involved in considering a preliminary injunction, but only considered the employers' argument that the case should be remanded to the state court because the right to remove had been waived by the Union's appearing in the state proceeding and the Union's argument that the temporary restraining order should be dissolved for want of jurisdiction under the Sinclair holding.
26
We cannot accept petitioners' argument that the controlling factor is that the Union had the opportunity to be heard on the merits of the preliminary injunction when it moved in the District Court to dissolve the temporary restraining order. Rule 65(b) does not place upon the party against whom a temporary restraining order has issued the burden of coming forward and presenting its case against a preliminary injunction. To the contrary, the Rule provides that '(i)n case a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time . . . and when the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction and, if he does not do so, the court shall dissolve the temporary restraining order.' The burden was on the employers to show that they were entitled to a preliminary injunction, not on the Union to show that they were not.
27
Even were we to assume that the District Court had intended by its June 4 order to grant a preliminary injunction, its intention was not manifested in an appropriate form. Where a hearing on a preliminary injunction has been held after issuance of a temporary restraining order, and where the District Court decides to grant the preliminary injunction, the appropriate procedure is not simply to continue in effect the temporary restraining order, but rather to issue a preliminary injunction, accompanied by the necessary findings of fact and conclusions of law.17 As stated by the Second Circuit:
28
'The fact that notice is given and a hearing held cannot serve to extend indefinitely beyond the period limited by (Rule 65(b)) the time during which a temporary restraining order remains effective. The (Rule) contemplates that notice and hearing shall result in an appropriate adjudication, i.e., the issuance or denial of a preliminary injunction, not in extension of the temporary stay.' Pan American World Airways, Inc. v. Flight Engineers' Int'l Assn., 306 F.2d 840, 842 1962) (footnotes omitted).
29
See also Sims v. Greene, 160 F.2d 512 (CA3 1947).
30
As the fine imposed in this case exemplifies, serious penalties can befall those who are found to be in contempt of court injunctions. Accordingly, one basic principle built into Rule 65 is that those against whom an injunction is issued should receive fair and precisely drawn notice of what the injunction actually prohibits.18
31
'The judicial contempt power is a potent weapon. When it is founded upon a decree too vague to be understood, it can be a deadly one. Congress responded to that danger by requiring that a federal court frame its orders so that those who must obey them will know what the court intends to require and what it means to forbid. . . . The most fundamental postulates of our legal order forbid the imposition of a penalty for disobeying a command that defies comprehension.' International Longshoremen's Assn. v. Philadelphia Marine Trade Assn., 389 U.S. 64, 76, 88 S.Ct. 201, 208, 19 L.Ed.2d 236 (1967).
32
It would be inconsistent with this basic principle to countenance procedures whereby parties against whom an injunction is directed are left to guess about its intended duration. Rule 65(b) provides that temporary restraining orders expire by their own terms within 10 days of their issuance. Where a court intends to supplant such an order with a preliminary injunction of unlimited duration pending a final decision on the merits or further order of the court, it should issue an order clearly saying so. And where it has not done so, a party against whom a temporary restraining order has issued may reasonably assume that the order has expired within the time limits imposed by Rule 65(b). Here, since the only orders entered were a temporary restraining order of limited duration and an order denying a motion to dissolve the temporary order, the Union had no reason to believe that a preliminary injunction of unlimited duration had been issued.
33
Since neither § 1450 nor the District Court's denial of the Union's motion to dissolve the temporary restraining order effectively converted that order into a preliminary injunction, no order was in effect on November 30, 1970, over six months after the temporary restraining order was issued.19 There being no order to violate, the District Court erred in holding the Union in contempt, and the judgment of the Court of Appeals reversing the District Court's adjudication of contempt must be affirmed.
34
Judgment affirmed.
35
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice POWELL join, concurring in the judgment.
36
I agree with the Court that the judgment of the Court of Appeals for the Ninth Circuit in this case should be affirmed, since there was no injunctive order in effect at the time that respondent's allegedly contemptuous conduct occurred. But I do not join that portion of the Court's opinion which lays down a 'rule' for all cases involving 28 U.S.C. § 1450,1 the statute which all parties agree is controlling in the case before us. In my view, the announcement of this 'rule' is neither necessary to the decision of this case nor consistent with the provisions of the statute itself.
37
The Court persuasively demonstrates in its opinion that the temporary restraining order issued by the California Superior Court had expired by its own terms long before the alleged contempt occurred. And I see nothing in the language or legislative history of 28 U.S.C. § 1450, providing that '(a)ll injunctions, orders, and other proceedings had in such action prior to its removal shall remain in full force and effect until dissolved or modified by the district court,' which would indefinitely extend the Superior Court's restraining order beyond the time of its normal expiration under state law. Since the temporary restraining order, had the case remained in state court, concededly would have expired in early June, respondent's actions in November and December could not have constituted a contempt of that order.
38
The Court also persuasively demonstrates that none of the proceedings occurring after removal of the case to the United States District Court had the effect of converting the subsisting state court temporary restraining order into a preliminary injunction of indefinite duration. Those proceedings addressed markedly different issues and certainly did not give the state court order a new, independent federal existence.
39
Having said this much, the Court has disposed of the case before it. The opinion then goes on, however, to devise a 'rule' that
40
'(a)n ex parte temporary restraining order issued by a state court prior to removal remains in force after removal no longer than it would have remained in effect under state law, but in no event does the order remain in force longer than the time limitations imposed by Rule 65(b), measured from the date of removal.' Ante, at 439—440. (Footnote omitted.)
41
But the determination that mere removal of a case to a federal district court does not extend the duration of a previously issued state court order past its original termination date makes quite unnecessary to this case any further discussion about time limitations contained in Fed.Rules Civ.Proc. 65(b). More importantly, the second clause of the 'rule' devised by the Court seems quite contrary to the specific language of 28 U.S.C. § 1450.
42
The Court apparently bases this latter clause of the 'rule' upon the observation that 'respondent Union had a right to the protections of the time limitation in Rule 65(b) once the case was removed to the District Court.' While this premise probably has a good deal to recommend it as a matter of practicality or of common sense, the language of the statute gives no hint that rules of practice governing issuance of federal injunctions in the first instance were automatically to be incorporated in applying its terms. The statute says that the state court's temporary restraining order 'shall remain in full force and effect until dissolved or modified by the district court.' This Court's 'rule,' however, says that it shall not remain in full force and effect, even though not dissolved or modified by the District Court, if it would have a life beyond the time limitations imposed by Rule 65(b).
43
I think it likely that the interest in limiting the duration of temporary restraining orders which is exemplified in Rule 65(b) can be fully protected in cases removed to the district court by an application to modify or dissolve a state court restraining order which is incompatible with those terms.2 Such a procedure would be quite consistent with § 1450, which specifically contemplates dissolution or modification by the district court upon an appropriate showing, in a way that the 'rule' devised by the Court in this case is not. It is unlikely that many orders issued under rules of state procedure, primarily designed, after all, to provide suitable procedures for state courts rather than to frustrate federal procedural rules in removed actions, would by their terms remain in effect for a period of time far longer than that contemplated by the comparable Federal Rule of Civil Procedure. But in the rare case where such a condition obtains, it is surely not asking too much of a litigant in a removed case to comply with § 1450 and affirmatively move for appropriate modification of the state order.
44
Therefore, although I cannot subscribe to the rule which the Court fashions to govern cases of this type, I concur in its conclusion that respondent's activity in November and December 1970 did not violate any injunctive order which was in force at that time.3
1
Title 28 U.S.C. § 1450:
'Whenever any action is removed from a State court to a district court of the United States, any attachment or sequestration of the goods or estate of the defendant in such action in the State court shall hold the goods or estate to answer the final judgment or decree in the same manner as they would have been held to answer final judgment or decree had it been rendered by the State court.
'All bonds, undertakings, or security given by either party in such action prior to its removal shall remain valid and effectual notwithstanding such removal.
'All injunctions, orders, and other proceedings had in such action prior to its removal shall remain in full force and effect until dissolved or modified by the district court.'
2
See Appalachian Volunteers, Inc. v. Clark, 432 F.2d 530 (C,6 1970), cert. denied, 401 U.S. 939, 91 S.Ct. 936, 28 L.Ed.2d 219 (1971); Morning Telegraph v. Powers, 450 F.2d 97 (CA2 1971), cert. denied, 405 U.S. 954, 92 S.Ct. 1170, 31 L.Ed.2d 231 (1972). See also The Herald Co. v. Hopkins, 325 F.Supp. 1232 (NDNY 1971); Peabody Coal Co. v. Barnes, 308 F.Supp. 902 (ED Mo. 1969).
3
This dispute was also the subject of a proceeding before the National Labor Relations Board. See Airco Industrial Gases, 195 N.L.R.B. 676 (1972). From the findings of fact in that proceeding, it appears that since 1964 it has been the practice in the trucking industry for representatives of a group of the various Teamsters locals and a group of various trucking employers to negotiate national agreements and supplemental agreements covering local areas. Agreements covering the 1967—1970 period had expired on March 31, 1970. Negotiations between the negotiating committees of the multiunion and multiemployer groups toward a contract for the 1970—1973 period began in January 1970 and continued in February and April. On April 29, the Teamsters negotiating committee approved the national and various supplemental agreements and on April 30, two representatives from each of the Teamsters locals in the multiunion group approved the agreements. Some time thereafter, a nationwide referendum vote of all Teamsters members was conducted and it was determined that the employees had ratified the agreements.
'The Union claimed it was not bound by the new agreements because it had made a timely withdrawal from the multiunion-multiemployer bargaining unit in a letter of January 28, 1970, to various employers, informing them of the Union's intention to negotiate a separate agreement from the national and supplemental agreement. The Board ultimately determined that the Union's withdrawal was not timely because negotiations had begun on January 7, 1970, prior to the attempted withdrawal. We, of course, express no view on this issue.
4
In Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), we held that § 301(a) suits initially brought in state courts may be removed to the designated federal forum under the federal-question removal jurisdiction delineated in 28 U.S.C. § 1441.
5
Three-fourths of the fine was conditioned on the Union's failure to end the strike within 24 hours of the court's order, one-half on failure to end the strike within 48 hours, and one-fourth on failure to end the strike within 72 hours.
Although we do not rest our decision on this point, there seems to be much evidence in the record suggesting that even if the restraining order remained in effect and had been violated, the violation was not willful. A finding that the violation was willful obviously presupposes knowledge on the part of the Union that the order was still in effect. Whether or not the order in fact
remained in effect on November 30, the Union evidently believed it had expired. Prior to commencing its strike in November, the Union informed the employers through its attorney that it did 'not understand from the file that there is presently in effect any order which forbids Local 70 from bargaining with the employer, or from pressing its position that it has a right to bargain for a separate contract. A motion to dissolve a temporary restraining order against economic action was denied by the federal court, but that temporary restraining order has long since become ineffective by virtue of the statutory limitation on its duration, and there has been no application for a preliminary injunction.
'Accordingly, the federal court case is pending, but there are no outstanding orders which affect the assertion by Local 70 of rights which it claims. . . .' App. 67.
6
Section 527 (Supp.1974) provides:
'An injunction may be granted at any time before judgment upon a verified complaint, or upon affidavits if the complaint in the one case, or the affidavits in the other, show satisfactorily that sufficient grounds exist therefor. A copy of the complaint or of the affidavits, upon which the injunction was granted, must, if not previously served, be served therewith.
'No preliminary injunction shall be granted without notice to the opposite party; nor shall any temporary restraining order be granted without notice to the opposite party, unless it shall appear from facts shown by affidavit or by the verified complaint that great or irreparable injury would result to the applicant before the matter can be heard on notice. In case a temporary restraining order shall be granted without notice, in the contingency above specified, the matter shall be made returnable on an order requiring cause to be shown why the injunction should not be granted, on the earliest day
that the business of the court will admit of, but not later than 15 days or, if good cause appears to the court, 20 days from the date of such order. When the matter first comes up for hearing the party who obtained the temporary restraining order must be ready to proceed and must have served upon the opposite party at least two days prior to such hearing, a copy of the complaint and of all affidavits to be used in such application and a copy of his points and authorities in support of such application; if he be not ready, or if he shall fail to serve a copy of his complaint, affidavits and points and authorities, as herein required, the court shall dissolve the temporary restraining order. The defendant, however, shall be entitled, as of course, to one continuance for a reasonable period, if he desire it, to enable him to meet the application for the preliminary injunction. The defendant may, in response to such order to show cause, present affidavits relating to the granting of the preliminary injunction, and if such affidavits are served on the applicant at least two days prior to the hearing, the applicant shall not be entitled to any continuance on account thereof. On the day upon which such order is made returnable, such hearing shall take precedence of all other matters on the calendar of said day, except older matters of the same character, and matters to which special precedence may be given by law. When the cause is at issue it shall be set for trial at the earliest possible date and shall take precedence of all other cases, except older matters of the same character, and matters to which special precedence may be given by law.'
7
The time limitation of § 527 has been strictly construed by the California courts. See, e.g., Smith v. Superior Court, 64 Cal.App. 722, 222 P. 857 (1923); Sharpe v. Brotzman, 145 Cal.App.2d 354, 302 P.2d 668 (1956); Oksner v. Superior Court, 229 Cal.App.2d 672, 40 Cal.Rptr. 621 (1964); Agricultural Prorate Comm'n v. Superior Court, 30 Cal.App.2d 154, 85 P.2d 898 (1938).
Petitioners argue that the time limitation of § 527 is not applicable here because it is operative only with respect to orders
granted without notice to the adverse party. In the present case, petitioners indicate, telephonic notice was given to the Union's counsel on May 15, the day the employers first sought the restraining order, counsel was served with all documents prior to a hearing arranged that day, and counsel was present in the courtroom and presented argument on behalf of the Union at that hearing.
We think it clear from § 527, however, that this kind of informal notice and hearing does not convert the temporary restraining order into a preliminary injunction of unlimited duration under state law. Section 527 provides that when a case comes up for a hearing on a preliminary injunction, the party seeking the injunction 'must have served upon the opposite party at least two days prior to such hearing, a copy of the complaint and of all affidavits to be used in such application and a copy of his points and authorities in support of such application . . ..' (Emphasis added.) In providing that no preliminary injunction shall be granted without notice to the opposite party, we think the statute thus contemplates notice of at least two days, with a meaningful opportunity to prepare for the hearing, rather than the kind of informal, same-day notice that was given in this case.
This interpretation of state law is supported on the facts of this case. Even though the Superior Court held some sort of hearing, with Union counsel attending, before granting the temporary restraining order, the court obviously felt that the hearing was not a sufficient basis for ruling on the preliminary injunction. Accordingly, in the same order granting the temporary restraining order, the court set the case for a hearing on the application for a preliminary injunction within the 15-day limit imposed by § 527.
In any event, we need not rest our holding on this interpretation of state law, for even if this restraining order could have had unlimited duration under California law, it was subject to the time limitations of Rule 65(b) after the case was removed to federal court. See infra, at 437—440. Although by its terms Rule 65(b), like § 527, only limits the duration of restraining orders issued without notice, we think it applicable to the order in this case even though informal notice was given. The 1966 Amendments to Rule 65(b),
requiring the party seeking a temporary restraining order to certify to the court in writing the efforts, if any, which have been made to give either written or oral notice to the adverse party or his attorney, were adopted in recognition of the fact that informal notice and a hastily arranged hearing are to be preferred to no notice or hearing at all. See Advisory Committee's Note, 28 U.S.C.App. 7831, 39 F.R.D. 124—125. But this informal, same-day notice, desirable though it may be before a restraining order is issued, is no substitute for the more thorough notice requirements which must be satisfied to obtain a preliminary injunction of potentially unlimited duration. The notice required by Rule 65(a) before a preliminary injunction can issue implies a hearing in which the defendant is given a fair opportunity to oppose the application and to prepare for such opposition. Sims v. Greene, 161 F.2d 87 (CA3 1947). The same-day notice provided in this case before the temporary restraining order was issued does not suffice. See Bailey v. Transportation-Communication Employees Union, 45 F.R.D. 444 (ND Miss.1968). See also C. Wright & A. Miller, Federal Practice & Procedure: Civil § 2949, p. 468 (1973 ed.), reading into Rule 65(a) a five-day-notice requirement based on Fed.Rule Civ.Proc. 6(d).
8
Rule 65(b) provides:
'(b) Temporary Restraining Order; Notice; Hearing; Duration.
'A temporary restraining order may be granted without written or oral notice to the adverse party or his attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting his claim that notice should not be required. Every temporary restraining order granted without notice shall be indorsed with the date and hour of issuance; shall be filed forthwith in the clerk's office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed 10 days, as the court fixes, unless within the time so fixed the order,
for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. In case a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time and takes precedence of all matters except older matters of the same character; and when the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction and, if he does not do so, the court shall dissolve the temporary restraining order. On 2 days' notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.'
9
See, e.g., Madron v. Thomas, 38 F.R.D. 177 (ED Tenn.1965); Murphy v. E. I. du Pont De Nemours & Co., 26 F.Supp. 999 (WD Pa.1939); Borton v. Connecticut Gen. Life Ins. Co., 25 F.Supp. 579 (D.C.Neb.1938). Of course, repleading may be required by the district court in appropriate cases. See, e.g., Foust v. Baltimore & O.R. Co., 91 F.Supp. 817 (SD Ohio 1950); Shall Petroleum Corp. v. Stueve, 25 F.Supp. 879 (D.C.Minn.1938).
10
We note that § 1450 expressly provides that attachments or sequestrations effected by the state court prior to removal 'shall hold the goods or estate to answer the final judgment or decree in the same manner as they would have been held to answer final judgment or decree had it been rendered by the State court.' Petitioners argue that since post-removal treatment of an attachment effected in the state court was expressly made dependent on the provisions of state law, while no such express provision was made with respect to injunctions issued by the state court prior to removal, Congress must have intended that injunction orders not be controlled after removal by the durational limitations of state law.
As we view the matter, the express provision in § 1450 that state law governs attachments after removal is simply an additional statement of long-settled federal law providing that in all cases in federal court, whether or not removed from state court, state law is incorporated to determine the availability of prejudgment remedies for the seizure of person or property to secure satisfaction of the judgment ultimately entered. See Fed.Rule Civ.Proc. 64. Section 1450 makes it clear that this settled rule of federal law applies to removed cases as well. If anything, therefore, it supports our conclusion that the other procedural requirements of federal law, including the time limitations of Rule 65(b), must be applied to state court temporary restraining orders after the case has been removed to federal court. See infra, at 437—440.
11
See generally Wright & Miller, supra, n. 7, § 1024, at 108—110, and cases there cited.
12
See H.R.Rep. No. 627, 63d Cong., 2d Sess., 25 (1914).
13
Section 17 of the Clayton Act was codified as 28 U.S.C. § 381 (1940 ed.), and was repealed by the Judicial Code Revision Act of 1948, 62 Stat. 997, for the stated reason that it was covered by Rule 65. See H.R.Rep. No. 308, 80th Cong., 1st Sess., A236 (1947).
14
See, e.g., Pan American World Airways, Inc. v. Flight Engineers' Int'l Assn., 306 F.2d 840 (CA2 1962); Smotherman v. United States, 186 F.2d 676 (CA10 1950); Sims v. Greene, 161 F.2d 87 (CA3 1947). This basic purpose is implicit in Rule 65(b)'s requirement that after a temporary restraining order is granted without notice, 'the motion for a preliminary injunction shall be set down for hearing at the earliest possible time and takes precedence of all matters except older matters of the same character . . ..'
15
The following two illustrations should suffice to clarify this holding. Where the state court issues a temporary restraining order of 15 days' duration on Day 1 and the case is removed to federal court on Day 13, the order will expire on Day 15 in federal court just as it would have expired on Day 15 in state court. Where, however, a state court issues a temporary restraining order of 15 days' duration on Day 1 and the case is removed to the federal court on Day 2, the restraining order will expire on Day 12, applying the 10-day time limitation of Rule 65(b) measured from the date of removal. Of course, in either case, the district court could extend the restraining order for up to an additional 10 days, for good cause shown, under Rule 65(b).
16
See, e.g., Robert W. Stark, Jr., Inc. v. New York Stock Exchange, Inc., 466 F.2d 743 (CA2 1972); Crowther v. Seaborg, 415 F.2d 437 (CA10 1969); Garlock, Inc. v. United Seal, Inc., 404 F.2d 256 (CA6 1968).
17
Fed.Rule Civ.Proc. 52(a) provides that 'in granting or refusing interlocutory injunctions the court shall . . . set forth the findings of fact and conclusions of law which constitute the grounds of its action.' Where a temporary restraining order has been continued beyond the time limits permitted under Rule 65(b), and where the required findings of fact and conclusions of law have not been set forth, the order is invalid. See, e.g., National Mediation Bd. v. Air Line Pilots Assn., 116 U.S.App.D.C. 300, 323 F.2d 305 (1963); Sims v. Greene, 160 F.2d 512 (CA3 1947).
18
Rule 65(d) provides:
'Every order granting an injunction and every restraining order . . . shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained . . ..'
19
In view of our disposition of the case, we need not and do not reach respondent's argument that notwithstanding Boys Markets v. Retail Clerks Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), the temporary restraining order issued in this case should be governed by the 5-day limit of § 7 of the Norris-La Guardia Act, 29 U.S.C. § 107.
1
The relevant provision of 28 U.S.C. § 1450 reads:
All injunctions, orders, and other proceedings had in such action prior to its removal shall remain in full force and effect until dissolved or modified by the district court.'
2
Indeed, respondent's motion to dissolve the state court order because of the prohibitions contained in the Norris-LaGuardia Act, 29 U.S.C. § 104, was just such a motion. That motion was denied by the District Court, however, and respondent made no further effort to obtain a modification or dissolution of the state restraining order prior to its expiration.
3
I see no occasion for the Court's rather casual speculation, contained in n. 5 of its opinion, that the respondent's violation of the order, even were it effective at the time of its later conduct, may not have been 'willful.' The Court has concluded that the order was not effective at that later time, and it can serve no useful purpose to speculate about the sufficiency of the evidence with respect to violation of a defunct order.
| 89
|
415 U.S. 361
94 S.Ct. 1160
39 L.Ed.2d 389
Donald E. JOHNSON, Administrator of Veterans' Affairs, et al., Appellants,v.William Robert ROBISON, etc.
No. 72—1297.
Argued Dec. 11, 1973.
Decided March 4, 1974.
Syllabus
Appellee, who had been exempted from military service as a Class I—O conscientious objector but who performed required alternative civilian service, after being denied educational benefits under the Veterans' Readjustment Benefits Act of 1966, brought this class action for a declaratory judgment that the provisions of the Act making him and his class ineligible for such benefits violated the First Amendment's guarantee of religious freedom and the Fifth Amendment's guarantee of equal protection of the laws. After denying appellants' motion to dismiss for lack of jurisdiction because of 38 U.S.C. § 211(a), which prohibits judicial review of decisions of the Administrator of Veterans' Affairs on any question of law or fact under laws administered by the Veterans' Administration providing for veterans' benefits, the District Court rejected appellee's First Amendment claim but sustained the Fifth Amendment claim. Held:
1. Section 211(a) does not extend to actions challenging the constitutionality of veterans' benefits legislation but is aimed at prohibiting review only of those decisions of law or fact arising in the administration of a statute providing for veterans' benefits, and hence is inapplicable to this action, neither the text of the statute nor its legislative history showing a contrary intent. Pp. 366—374.
2. The challenged sections of the Act do not create an arbitrary classification in violation of appellee's right to equal protection of the laws. Pp. 374—383.
(a) The quantitative and qualitative distinctions between the disruption caused by military service and that caused by alternative civilian service—military service involving a six-year commitment and far greater loss of personal freedom, and alternative civilian service involving only a two-year obligation and no requirement to leave civilian life—form a rational basis for Congress' classification limiting educational benefits to military service veterans as a means of helping them to readjust to civilian life. Pp. 378 382.
(b) The statutory classification also bears a rational relationship to the Act's objective of making military service more attractive. P. 382.
3. The Act does not violate appellee's right of free exercise of religion. Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168. Pp. 383—386.
(a) The withholding of educational benefits to appellee and his class involves only an incidental burden, if any burden at all, upon their free exercise of religion. P. 385.
(b) Appellee and his class were not included as beneficiaries, not because of any legislative design to interfere with their free exercise of religion, but because to include them would not rationally promote the Act's purposes. P. 385.
(c) The Government's substantial interest in raising and supporting armies, Art. I, § 8, is of 'a kind and weight' clearly sufficient to sustain the challenged legislation. Pp. 385—386.
352 F.Supp. 848, reversed.
Gerald P. Norton, Washington, D.C., for appellants.
Michael David Rosenberg, for appellee.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
A draftee accorded Class I—O conscientious objector status and completing performance of required alternative civilian service1 does not qualify under 38 U.S.C. § 1652(a)(1) as a 'veteran who . . . served on active duty' (defined in 38 U.S.C. § 101(21) as 'full-time duty in the Armed Forces'), and is therefore not an 'eligible veteran' entitled under 38 U.S.C. § 1661(a) to veterans' educational benefits provided by the Veterans' Readjustment Benefits Act of 1966.2 Appellants, the Veterans' Administration and the Administrator of Veterans' Affairs, for that reason, denied the application for educational assistance of appellee Robison, a conscientious objector who filed his application after he satisfactorily completed two years of alternative civilian service at the Peter Bent Brigham Hospital, Boston. Robison thereafter commenced this class action3 in the United States District Court for the District of Massachusetts, seeking a declaratory judgment that 38 U.S.C. §§ 101(21), 1652(a)(1), and 1661(a), read together, violated the First Amendment's guarantee of religious freedom and the Fifth Amendment's guarantee of equal protection of the laws.4 Appellants moved to dismiss the action on the ground, among others, that the District Court lacked jurisdiction because of 38 U.S.C. § 211(a) which prohibits judicial review of decisions of the Administrator.5 The District Court denied the motion, and, on the merits, rejected appellee's First Amendment claim, but sustained the equal protection claim and entered a judgment declaring 'that 38 U.S.C. §§ 1652(a)(1) and 1661(a) defining 'eligible veteran' and providing for entitlement to educational assistance are unconstitutional and that 38 U.S.C. § 101(21) defining 'active duty' is unconstitutional with respect to chapter 34 of Title 38, United States Code, 38 U.S.C. §§ 1651 1697, conferring Veterans' Educational Assistance, for the reason that said sections deny plaintiff and members of his class due process of law in violation of the Fifth Amendment to the Constitution of the United States. . . .' 352 F.Supp. 848, 862 (1973).6 We postponed consideration of the question of jurisdiction in light of § 211(a) to the hearing on the merits, and set the case for oral argument with No. 72—700, Hernandez v. Veterans' Administration, 415 U.S. 391, 94 S.Ct. 1177, 39 L.Ed.2d 412. 411 U.S. 981, 93 S.Ct. 2267, 36 L.Ed.2d 957 (1973).7 We hold, in agreement with the District Court, that § 211(a) is inapplicable to this action and therefore that appellants' motion to dismiss for lack of jurisdiction of the subject matter was properly denied. On the merits, we agree that appellee's First Amendment claim is without merit but disagree that §§ 1652(a)(1), 1661(a), and 101(21) violate the Fifth Amendment and therefore reverse the judgment of the District Court.
2
* We consider first appellants' contention that § 211(a) bars federal courts from deciding the constitutionality of veterans' benefits legislation. Such a construction would, of course, raise serious questions concerning the constitutionality of § 211(a),8 and in such case 'it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the (constitutional) question(s) may be avoided.' United States v. Thirty-seven Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 1404, 28 L.Ed.2d 822 (1971).
3
Plainly, no explicit provision of § 211(a) bars judicial consideration of appellee's constitutional claims. That section provides that 'the decisions of the Administrator on any question of law or fact under any law administered by the Veterans' Administration providing benefits for veterans . . . shall be final and conclusive and no . . . court of the United States shall have power or jurisdiction to review any such decision . . ..' (Emphasis added.) The prohibitions would appear to be aimed at review only of those decisions of law or fact that arise in the administration by the Veterans' Administration of a statute providing benefits for veterans. A decision of law or fact 'under' a statute is made by the Administrator in the interpretation or application of a particular provision of the statute to a particular set of facts, Appellee's constitutional challenge is not to any such decision of the Administrator, but rather to a decision of Congress to create a statutory class entitled to benefits that does not include I—O conscientious objectors who performed alternative civilian service. Thus, as the District Court stated: 'The questions of law presented in these proceedings arise under the Constitution, not under the statute whose validity is challenged.' 352 F.Supp., at 853.
4
This construction is also supported by the administrative practice of the Veterans' Administration. 'When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration.' Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 61 (1965). The Board of Veterans' Appeals expressly disclaimed authority to decide constitutional questions in Appeal of Sly, C—27 593 725 (May 10, 1972). There the Board, denying a claim for educational assistance by a I—O conscientious objector, held that '(t)his decision does not reach the issue of the constitutionality of the pertinent laws as this matter is not within the jurisdiction of this Board.' Sly thus accepts and follows the principle that '(a)djudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies. See Public Utilities Comm'n v. United States, 355 U.S. 534, 539, (78 S.Ct. 446, 450, 2 L.Ed.2d 470) (1958); Engineers Public Service Co. v. SEC, 78 U.S.App.D.C. 199, 215—216, 138 F.2d 936, 952—953 (1943), dismissed as moot, 332 U.S. 788, (68 S.Ct. 96, 92 L.Ed. 370).' Oestereich v. Selective Service Board, 393 U.S. 233, 242, 89 S.Ct. 414, 419, 21 L.Ed.2d 402 (1968) (Harlan, J., concurring in result); see Jaffe, Judicial Review: Question of Law, 69 Harv.L.Rev. 239, 271—275 (1955).
5
Nor does the legislative history accompanying the 1970 amendment of § 211(a) demonstrate a congressional intention to bar judicial review even of constitutional questions. No-review clauses similar to § 211(a) have been a part of veterans' benefits legislation since 1933.9 While the legislative history accompanying these precursor no-review clauses is almost nonexistent,10 the Administrator, in a letter written in 1952 in connection with a revision of the clause under consideration by the Subcommittee of the House Committee on Veterans' Affairs, comprehensively explained the policies necessitating the no-review clause and identified two primary purposes: (1) to insure that veterans' benefits claims will not burden the courts and the Veterans' Administration with expensive and time-consuming litigation,11 and (2) to insure that the technical and complex determinations and applications of Veterans' Administration policy connected with veterans' benefits decisions will be adequately and uniformly made.12
6
The legislative history of the 1970 amendment indicates nothing more than a congressional intent to preserve these two primary purposes. Before amendment, the no-review clause made final 'the decisions of the Administrator on any question of law or fact concerning a claim for benefits or payments under (certain) law(s) administered by the Veterans' Administration' (emphasis added), 38 U.S.C. § 211(a) (1964 ed.), 71 Stat. 92. In a series of decisions, e.g., Wellman v. Whittier, 104 U.S.App.D.C. 6, 259 F.2d 163 (1958); Thompson v. Gleason, 115 U.S.App.D.C. 201, 317 F.2d 901 (1962); and Tracy v. Gleason, 126 U.S.App.D.C. 415, 379 F.2d 469 (1967), the Court of Appeals for the District of Columbia Circuit interpreted the term 'claim' as a limitation upon the reach of § 211(a), and as a consequence held that judicial review of actions by the Administrator subsequent to an original grant of benefits was not barred.
7
Congress perceived this judicial interpretation as a threat to the dual purposes of the no-review clause. First, the interpretation would lead to an inevitable increase in litigation with consequent burdens upon the courts and the Veterans' Administration. In its House Report, the Committee on Veterans' Affairs stated that '(s)ince the decision in the Tracy case—and as the result of that decision and the Wellman and Thompson decisions suits in constantly increasing numbers have been filed in the U.S. District Court for the District of Columbia by plaintiffs seeking a resumption of terminated benefits.' H.R.Rep.No.91—1166, p. 10 (1970), U.S.Code Cong. & Admin.News 1970, p. 3730. This same concern over the rising number of court cases was expressed by the Administrator in a letter to the Committee:
8
'The Wellman, Thompson, and Tracy decisions have not been followed in any of the other 10 Federal judicial circuits throughout the country.
9
Nevertheless, soon after the Tracy decision, suits in the nature of mandamus or for declaratory judgment commenced to be filed in the U.S. District Court for the District of Columbia in constantly increasing numbers by plaintiffs seeking resumption of terminated benefits. As of March 8, 1970, 353 suits of this type had been filed in the District of Columbia circuit.
10
'The scope of the Tracy decision and the decisions upon which it is based is so broad that it could well afford a basis for judicial review of millions of decisions terminating or reducing many types of benefits provided under laws administered by the Veterans' Administration. Such review might even extend to the decisions of predecessor agencies made many years ago.' Id., at 21, 24, U.S.Code Cong. & Admin.News 1970, p. 3740.
11
Second, Congress was concerned that the judicial interpretation of § 211(a) would involve the courts in day-to-day determination and interpretation of Veterans' Administration policy. The House Report states that the cases already filed in the courts in response to Wellman, Thompson, and Tracy
12
'involve a large variety of matters—a 1930's termination of a widow's pension payments under a statute then extant, because of her open and notorious adulterous cohabitation; invalid marriage to a veteran; severance of a veteran's service connection for disability compensation; reduction of such compensation because of lessened disability . . . (and) suits . . . brought by (Filipino) widows of World War II servicemen seeking restoration of death compensation or pension benefits terminated after the Administrator raised a presumption of their remarriage on the basis of evidence gathered through field examination. Notwithstanding the 1962 endorsement by the Congress of the Veterans' Administration's (sic) administrative presumption of remarriage rule, most of (the suits brought by Filipino widows) have resulted in judgments adverse to the Government.' Id., at 10, U.S.Code Cong. & Admin.News 1970, p. 3730.
13
The Administrator voiced similar concerns, stating that 'it seems obvious that suits similar to the several hundred already filed can—and undoubtedly will—subject nearly every aspect of our benefit determinations to judicial review, including rating decisions, related Veterans' Administration regulations, Administrator's decisions, and various adjudication procedures.' Letter to the Committee on Veterans' Affairs 23—24, U.S.Code Cong. & Admin.News 1970, p. 3742.
14
Thus, the 1970 amendment was enacted to overrule the interpretation of the Court of Appeals for the District of Columbia Circuit, and thereby restore vitality to the two primary purposes to be served by the no-review clause. Nothing whatever in the legislative history of the 1970 amendment, or predecessor no-review clauses, suggests any congressional intent to preclude judicial cognizance of constitutional challenges to veterans' benefits legislation. Such challenges obviously do not contravene the purposes of the no-review clause, for they cannot be expected to burden the courts by their volume, nor do they involve technical considerations of Veterans' Administration policy. We therefore conclude, in agreement with the District Court, that a construction of § 211(a) that does not extend the prohibitions of that section to actions challenging the constitutionality of laws providing benefits for veterans is not only 'fairly possible' but is the most reasonable construction, for neither the text nor the scant legislative history of § 211(a) provides the 'clear and convincing' evidence of congressional intent required by this Court before a statute will be construed to restrict access to judicial review. See Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967).
II
15
Turning to the merits, the District Court held that, by not including appellee and his class, the challenged sections of the Act create an arbitrary classification in violation of appellee's right to equal protection of the laws. In determining whether, in limiting the class of draftees entitled to benefits to those who serve their country on active duty in the Armed Forces, Congress denied equal protection of the laws to Selective Service registrants who perform alternative civilian service as conscientious objectors,13 our analysis of the classification proceeds on the basis that, although an individual's right to equal protection of the laws 'does not deny . . . the power to treat different classes of persons in different ways(;) . . . (it denies) the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification 'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.' Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (40 S.Ct. 560, 64 L.Ed. 989) (1920).' Reed v. Reed, 404 U.S. 71, 75—76, 92 S.Ct. 251, 253, 30 L.Ed.2d 225 (1971).14
16
Unlike many state and federal statutes that come before us, Congress in this statute has responsibly revealed its express legislative objectives in § 1651 of the Act and no other objective is claimed:
17
'The Congress of the United States hereby declares that the education program created by this chapter is for the purpose of (1) enhancing and making more attractive service in the Armed Forces of the United States, (2) extending the benefits of a higher education to qualified and deserving young persons who might not otherwise be able to afford such an education, (3) providing vocational readjustment and restoring lost educational opportunities to those service men and women whose careers have been interrupted or impeded by reason of active duty after January 31, 1955, and (4) aiding such persons in attaining the vocational and educational status which they might normally have aspired to and obtained had they not served their country.'
18
Legislation to further these objectives is plainly within Congress' Art. I, § 8, power 'to raise and support Armies.' Our task is therefore narrowed to the determination of whether there is some ground of difference having a fair and substantial relation to at least one of the stated purposes justifying the different treatment accorded veterans who served on active duty in the Armed Forces, and conscientious objectors who performed alternative civilian service.
19
The District Court reasoned that objectives (2), (3) and (4) of § 1651 are basically variations on a single theme reflecting a congressional purpose to 'eliminate the educational gaps between persons who served their country and those who did not.' 352 F.Supp., at 858. Therefore, '(t)he exclusion from eligibility of (appellee) and his class would be justified if they do not suffer the same disruption in educational careers as do military veterans, and thus are not similarly situated with respect to the statute's purpose. We believe . . . that the disruption is equal as between the two groups. Like military veterans, alternate servicemen have been exposed to the uncertainties caused by the draft law. They too were burdened at one time by an unsatisfied military obligation that adversely affected their employment potential; were forced, because of the draft law, to (forgo) immediately entering into vocational training or higher education; and were deprived, during the time they performed alternate service, of the opportunity to obtain educational objectives or pursue more rewarding civilian goals.' Id., at 858—859.
20
The error in this rationale is that it states too broadly the congressional objective reflected in (2), (3), and (4) of § 1651. The wording of those sections, in conjunction with the attendant legislative history, makes clear that Congress' purpose in enacting the Veterans' Readjustment Benefits Act of 1966 was not primarily to 'eliminate the educational gaps between persons who served their country and those who did not,' but rather to compensate for the disruption that military service causes to civilian lives. In other words, the aim of the Act was to assist those who served on active duty in the Armed Forces to 'readjust' to civilian life. Indeed, as the appellants argue, Brief for Appellants, p. 20 n. 18, 'the very name of the statute—the Veterans' Readjustment Benefits Act—emphasizes congressional concern with the veteran's need for assistance in readjusting to civilian life.'
21
Of course, merely labeling the class of beneficiaries under the Act as those having served on active duty in the Armed Services cannot rationalize a statutory discrimination against conscientious objectors who have performed alternative civilian service, if, in fact, the lives of the latter were equally disrupted and equally in need of readjustment. See Richardson v. Belcher, 404 U.S. 78, 83, 92 S.Ct. 254, 258, 30 L.Ed.2d 231 (1971). The District Court found that military veterans and alternative service performers share the characteristic during their respective service careers of 'inability to pursue the educational and economic objectives that persons not subject to the draft law could pursue.' 352 F.Supp., at 859. But this finding of similarity ignores that a common characteristic shared by beneficiaries and nonbeneficiaries alike, is not sufficient to invalidate a statute when other characteristics peculiar to only one group rationally explain the statute's different treatment of the two groups. Congress expressly recognized that significant differences exist between military service veterans and alternative service performers, particularly in respect of the Act's purpose to provide benefits to assist in readjusting to civilian life. These differences 'afford the basis for a different treatment within a constitutional framework,' McGinnis v. Royster, 410 U.S. 263, 271, 93 S.Ct. 1055, 1060, 35 L.Ed.2d 282 (1973).
22
First, the disruption caused by military service is quantitatively greater than that caused by alternative civilian service. A conscientious objector performing alternative service is obligated to work for two years. Service in the Armed Forces, on the other hand, involves a six-year commitment. While active duty may be limited to two years, the military veteran remains subject to an Active Reserve and then Standby Reserve obligation after release from active duty. This additional military service obligation was emphasized by Congress as a significant reason for providing veterans' readjustment benefits. A section entitled 'Compulsory Reserve requirements' of the Senate Report states: 'The hardships of cold war service are still further aggravated by the compulsory military Reserve obligation which the Government has imposed on all men who entered service after August 9, 1955. This obligation is, of course, in sharp contrast with the traditional military obligation which ends immediately upon discharge from active duty. More importantly, however, the Active Reserve obligation impedes the cold war veterans' full participation in civil life, which, in turn, again exposes them to unfair competition from their civilian contemporaries. The fact that veterans must discharge a post-Korean Reserve obligation involving drills and other military activities quite obviously enables their civilian contemporaries, by comparison, to make still more gains toward enjoyment of the fruits of our free enterprise society. . . . (F)or those men who wish to devote full time to their civil goals, the Reserve obligation constitutes a substantial supplementary burden.' S.Rep.No.269, 89th Cong., 1st Sess., 10 (1965).
23
Second, the disruptions suffered by military veterans and alternative service performers are qualitatively different. Military veterans suffer a far greater loss of personal freedom during their service careers. Uprooted from civilian life, the military veteran becomes part of the military establishment, subject to its discipline and potentially hazardous duty. Congress was acutely aware of the peculiar disabilities caused by military service, in consequence of which military servicemen have a special need for readjustment benefits. The Senate Report accompanying the Act states:
24
'Compulsory military service, because of its incompatibility with our traditions and national temperament, is not lightly imposed upon our citizenry. Only war, or the imminent threat of war from unfriendly powers, creates the conditions, which, by the values of our society, justify this extraordinary deviation from our free enterprise, individualistic way of life. When, as now, the need for large but limited forces conflicts with our sense of equity which expects equal national service from all, we are concerned to find that less than half of our young men will ever be compelled to serve a substantial period in the Military Establishment.
25
'Action to redress the inequities of this situation is ling overdue. Our post-Korean veterans are beset with problems almost identical with those to which the two previous GI bills were addressed. Like their fathers and elder brothers, post-Korean veterans lose time from their competitive civil lives directly because of military service. As a consequence, they lose valuable opportunities ranging from educational advantages to worthwhile job possibilities and potentially profitable business ventures. In addition, after completion of their military service they confront serious difficulties during the transition to civil life.
26
'The major part of the burden caused by these cold war conditions quite obviously falls upon those of our youths who are called to extended tours of active military service. It is they who must serve in the Armed Forces throughout troubled parts of the world, thereby subjecting themselves to the mental and physical hazards as well as the economic and family detriments which are peculiar to military service and which do not exist in normal civil life. It is they who, upon separation from service, find themselves far, far behind those in their age group whose lives have not been disrupted by military service.' S.Rep.No.269, 89th Cong., 1st Sess., 3, 6—7, 8 (1965) (emphasis added).
27
See also H.R.Rep.No.1258, 89th Cong., 2d Sess., 4 (1966), U.S.Code Cong. & Admin.News 1966, p. 1888.15 Congress' reliance upon these differences between military and civilian service is highlighted by the inclusion of Class I—A—O conscientious objectors, who serve in the military in noncombatant roles, within the class of beneficiaries entitled to educational benefits under the Act.16
28
These quantitative and qualitative distinctions, expressly recognized by Congress, form a rational basis for Congress' classification limiting educational benefits to military service veterans as a means of helping them readjust to civilian life; alternative service performers are not required to leave civilian life to perform their service.
29
The statutory classification also bears a rational relationship to objective (1) of § 1651, that of 'enhancing and making more attractive service in the Armed Forces of the United States.' By providing educational benefits to all military veterans who serve on active duty Congress expressed its judgment that such benefits would make military service more attractive to enlistees and draftees alike. Appellee concedes, Brief for Appellee 28, that this objective is rationally promoted by providing educational benefits to those who enlist. But, appellee argues, there is no rational basis for extending educational benefits to draftees who serve in the military and not to draftees who perform civilian alternative service, since neither group is induced by educational benefits to enlist. Therefore, appellee concludes, the Act's classification scheme does not afford equal protection because it fails to treat equally persons similarly circumstanced.
30
The two groups of draftees are, in fact, not similarly circumstanced. To be sure, a draftee, by definition, does not find educational benefits sufficient incentive to enlist. But, military service with educational benefits is obviously more attractive to a draftee than military service without educational benefits. Thus, the existence of educational benefits may help induce a registrant either to volunteer for the draft or not seek a lower Selective Service classification.17 Furthermore, once drafted, educational benefits may help make military service more palatable to a draftee and thus reduce a draftee's unwillingness to be a soldier. On the other hand, because a conscientious objector bases his refusal to serve in the Armed Forces upon deeply held religious beliefs, we will not assume that educational benefits will make military service more attractive to him. When, as in this case, the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not, we cannot say that the statute's classification of beneficiaries and nonbeneficiaries is invidiously discriminatory.18
III
31
Finally, appellee argues that the District Court erred in holding that 'the challenged exclusion does not abridge (appellee's) free exercise of his religion,' 352 F.Supp., at 860. He contends that the Act's denial of benefits to alternative service conscientious objectors interferes with his free exercise of religion by increasing the price he must pay for adherence to his religious beliefs. That contention must be rejected in light of our decision in Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971).
32
There, the petitioners, conscientious objectors to particular wars, argued that § 6(j) of the Military Selective Service Act of 1967, 50 U.S.C. App. § 456(j), which limits an exemption from military service to those who conscientiously object to 'participation in war in any form' (emphasis supplied), infringed their rights under the Free Exercise Clause by requiring them to abandon their religious beliefs and participate in what they deemed an unjust war or go to jail. We acknowledged that
33
'the Free Exercise Clause bars 'governmental regulation of religious beliefs as such,' Sherbert v. Verner, 374 U.S. 398, 402 (83 S.Ct. 1790, 1793, 10 L.Ed.2d 965) (1963), or interference with the dissemination of religious ideas. See Fowler v. Rhode Island, 345 U.S. 67 (73 S.Ct.526, 97 L.Ed. 828) (1953); Follett v. McCormick, 321 U.S. 573 (64 S.Ct. 717, 88 L.Ed. 938) (1944); Murdock v. Pennsylvania, 319 U.S. 105 (63 S.Ct. 870, 87 L.Ed. 1292) (1943). It prohibits misuse of secular governmental programs 'to impede the observance of one or all religions or . . . to discriminate invidiously between religions, . . . even though the burden may be characterized as being only indirect.' Braunfeld v. Brown, 366 U.S., (599), at 607 (81 S.Ct. 1144, at 1148, 6 L.Ed.2d 563) (opinion of Warren, C.J.). And even as to neutral prohibitory or regulatory laws having secular aims, the Free Exercise Clause may condemn certain applications clashing with imperatives of religion and conscience, when the burden on First Amendment values is not justifiable in terms of the Government's valid aims.' 401 U.S., at 462, 91 S.Ct. at 842.
34
We made clear, however, that '(o)ur cases do not at their farthest reach support the proposition that a stance of conscientious opposition relieves an objector from any colliding duty fixed by a democratic government.' '(Rather,) incidental burdens . . . (may be) strictly justified by substantial governmental interests . . ..' Id., at 461, 462, 91 S.Ct., at 842. Finding 'the Government's interest in procuring the manpower necessary for military purposes, pursuant to the (congressional) grant of power to Congress to raise and support armies (,) Art. I, § 8,' of a kind and weight sufficient to justify under the Free Exercise Clause the impact of the conscription laws on those who object to particular wars,' id., at 462, 461, 91 S.Ct., at 842, we held that § 6(j) did not violate the Free Exercise Clause.
35
The challenged legislation in the present case does not require appellee and his class to make any choice comparable to that required of the petitioners in Gillette. The withholding of educational benefits involves only an incidental burden upon appellee's free exercise of religion—if, indeed, any burden exists at all.19 As Part II, supra, demonstrates, the Act was enacted pursuant to Congress' Art. I, § 8, powers to advance the neutral, secular governmental interests of enhancing military service and aiding the readjustment of military personnel to civilian life. Appellee and his class were not included in the class of beneficiaries, not because of any legislative design to interfere with their free exercise of religion, but because to do so would not rationally promote the Act's purposes. Thus, in light of Gillette, the Government's substantial interest in raising and supporting armies, Art. I, § 8, is of 'a kind and weight' clearly sufficient to sustain the challenged legislation, for the burden upon appellee's free exercise of religion—the denial of the economic value of veterans' educational benefits under the Act—is not nearly of the same order or magnitude as the infringement upon free exercise of religion suffered by petitioners in Gillette. See also Wisconsin v. Yoder, 406 U.S. 205, 214, 92 S.Ct. 1526, 1532, 32 L.Ed.2d 15 (1972).
36
Reversed.
37
Mr. Justice DOUGLAS, dissenting.
38
In my dissent applicable to Braunfield v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563, I expressed the view that Pennsylvania's Sunday closing law was unconstitutional as applied to Sabbatarians, see 366 U.S., at 561, 575, 577, 81 S.Ct., at 1218, 1225, 1226. The State imposed a penalty on a Sabbatarian for keeping his shop open on the day which was the Sabbath of the Christian majority; and that seemed to me to exact an impermissible price for the free exercise of the Sabbatarian's religion. Indeed, in that case the Sabbatarian would be unable to continue in business if he could not stay open on Sunday and would lose his capital investment. See id., at 611, 81 S.Ct., at 1150.
39
In Girouard v. United States, 328 U.S. 61, 66 S.Ct. 826, 90 L.Ed. 1084, we held, in overruling United States v. Schwimmer, 279 U.S. 644, 49 S.Ct. 448, 73 L.Ed. 889, that the words of the oath prescribed by Congress for naturalization—'(will) support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic'—should not be read as requiring the bearing of arms, as there is room under our Constitution for the support and defense of the Nation in times of great peril by those whose religious scruples bar them from shouldering arms. We said: 'The effort of war is indivisible; and those whose religious scruples prevent them from killing are no less patriots than those whose special traits or handicaps result in their assignment to duties far behind the fighting front. Each is making the utmost contribution according to his capacity. The fact that his role may be limited by religious convictions rather than by physical characteristics has no necessary bearing on his attachment to his country or on his willingness to support and defend it to his utmost.' 328 U.S., at 64—65, 66 S.Ct., at 827.
40
Closer in point to the present problem is Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965, where a Seventh Day Adventist was denied unemployment benefits by the State because she would not work on Saturday, the Sabbath day of her faith. We held that that disqualification for unemployment benefits imposed an impermissible burden on the free exercise of her religion, saying: 'Here not only is it apparent that appellant's declared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to (forgo) that practice is unmistakable. The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship.' Id., at 404, 83 S.Ct., at 1794.
41
And we found no 'compelling' state interest to justify the State's infringement of one's religious liberty in that manner. Id., at 406—408, 83 S.Ct., at 1795—1796.
42
In Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15, we held that Wisconsin's compulsory school attendance law as applied to Amish children would gravely impair the free exercise of their religious beliefs.
43
The District Court in the present case said that the penalty which the present Act places on conscientious objectors is of a lesser 'order or magnitude'1 than that which has been upheld in past cases, imposed in the cases past maintained. 352 F.Supp. 848, 860.
44
That is true; yet the discrimination against a man with religious scruples seems apparent. The present Act derives from a House bill that had as its purpose solely an education program to 'help a veteran to follow the educational plan that he might have adopted had he never entered the Armed Forces.' H.R.Rep.No.1258, 89th Cong., 2d Sess., 5. U.S.Code Cong. & Admin.News 1966, p. 1890. Full benefits are available to occupants of safe desk jobs and the thousands of veterans who performed civilian type duties at home and for whom the rigors of the 'war' were far from 'totally disruptive,' to use the Government's phrase. The benefits are provided, though the draftee did not serve overseas but lived with his family in a civilian community and worked from nine until five as a file clerk on a military base or attended college courses in his off-duty hours. No condition of hazardous duty was attached to the educational assistance program. As Senator Yarborough said,2 the benefits would accrue even to those who never served overseas, because their 'educational progress and opportunity' '(have) been impaired in just as serious and damaging a fashion as if they had served on distant shores. Their educational needs are no less than those of their comrades who served abroad.'
45
But the line drawn in the Act is between Class I—O conscientious objectors who performed alternative civilian service and all other draftees. Such conscientious objectors get no educational benefits whatsoever. It is, indeed, demeaning to those who have religious scruples against shouldering arms to suggest, as the Government does, that those religious scruples must be susceptible of compromise before they will be protected. The urge to forgo religious scruples to gain a monetary advantage would certainly be a burden on the Free Exercise Clause in cases of those who were spiritually weak. But that was not the test in Sherbert or Girouard. We deal with people whose religious scruples are unwavering. Those who would die at the stake for their religious scruples may not constitutionally be penalized by the Government by the exaction of penalties because of their free exercise of religion. Where Government places a price on the free exercise of one's religious scruples it crosses the forbidden line.3 The issue of 'coercive effects,' to use another Government phrase, is irrelevant. Government, as I read the Constitution and the Bill of Rights, may not place a penalty on anyone for asserting his religious scruples. That is the nub of the present case and the reason why the judgment below should be affirmed.
1
Title 50 U.S.C. App. § 456(j) exempts from military service persons 'who, by reason of religious training and belief,' are opposed to participation in 'war in any form.'
32 CFR § 1622.14 (1971) directed local Selective Service Boards that
'(i)n Class I—O shall be placed every registrant who would have been classified in Class I—A but for the fact that he has been found, by reason of religious training and belief, to be conscientiously opposed to participation in war in any form and to be conscientiously opposed to participation in both combatant and noncombatant training and service in the armed forces.'
Further, § 456(j) and 32 CFR §§ 1660.1—.12 (1972) authorized local Selective Service Boards to order I—O conscientious objectors to perform alternative civilian service contributing to the maintenance of the national health, safety, or interest.
2
Title 38 U.S.C. § 101 provides, in pertinent part:
'(21) The term 'active duty' means—
'(A) full-time duty in the Armed Forces, other than active duty for training.'
Title 38 U.S.C. § 1652(a)(1) provides:
'The term 'eligible veteran' means any veteran who (A) served on active duty for a period of more than 180 days any part of which occurred after January 31, 1955, and who was discharged or released therefrom under conditions other than dishonorable or (B) was discharged or released from active duty after such date for a service-connected disability.'
Title 38 U.S.C. § 1661(a) provides:
'Except as provided in subsection (c) and in the second sentence of this subsection, each eligible veteran shall be entitled to educational assistance under this chapter . . . for a period of one and one-half months (or the equivalent thereof in part-time educational assistance) for each month or fraction thereof of his service on active duty after January 31, 1955. If an eligible veteran has served a period of 18 months or more on active duty after January 31, 1955, and has been released from such service under conditions that would satisfy his active duty obligation, he shall be entitled to educational assistance under this chapter for a period of 36 months (or the equivalent thereof in part-time educational assistance).'
The amount of money provided by the Act varies with the type of educational program pursued and the number of dependents a veteran has. For example, a veteran enrolled in a full-time college or graduate degree program with two dependents receives $298 per month. 38 U.S.C. § 1682(a), as amended by the Vietnam Era Veterans' Readjustment Assistance Act of 1972, § 102, 86 Stat. 1075.
3
In defining the class the District Court stated: 'The court also rules that certification of a class, pursuant to Fed.R.Civ.P. 23, is warranted, the class to include all those selective service registrants who have completed 180 days of 'alternate service' pursuant to 50 U.S.C. App. § 456(j), and who have either (1) satisfactorily completed two years of such service or (2) been released therefrom for medical or other reason after 180 days of such service.' 352 F.Supp. 848, 851.
4
Although 'the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is 'so unjustifiable as to be violative of due process." Schneider v. Rusk, 377 U.S. 163, 168, 84 S.Ct. 1187, 1190, 12 L.Ed.2d 218 (1964); see Frontiero v. Richardson, 411 U.S. 677, 680 n. 5, 93 S.Ct. 1764, 1767, 36 L.Ed.2d 583 (1973); Shapiro v. Thompson, 394 U.S. 618, 641—642, 89 S.Ct. 1322, 1335, 22 L.Ed.2d 600 (1969); Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). Thus, if a classification would be invalid under the Equal Protection Clause of the Fourteenth Amendment, it is also inconsistent with the due process requirement of the Fifth Amendment. See Richardson v. Belcher, 404 U.S. 78, 81, 92 S.Ct. 254, 257, 30 L.Ed.2d 231 (1971).
5
Title 38 U.S.C. § 211(a) provides:
'(a) On and after October 17, 1940, except as provided in sections 775, 784, and as to matters arising under chapter 37 of this title, the decisions of the Administrator on any question of law or fact under any law administered by the Veterans' Administration providing benefits for veterans and their dependents or survivors shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision by an action in the nature of mandamus or otherwise.'
6
A second paragraph of the judgment declares that appellee and members of his class, who have satisfactorily completed two years of alternative civilian service, or who, after completing 180 days of such service, have been released therefrom, are to be considered 'eligible' within § 1652(a)(1) to receive benefits to the same degree and extent as veterans of 'active duty'; and alternative service shall be considered 'active duty' within § 101(21) as applied only to c. 34 of Title 38. 352 F.Supp., at 862. In view of our result, this paragraph of the judgment is also reversed.
7
The District Court's jurisdiction was invoked by appellee pursuant to 28 U.S.C. §§ 1331, 1337, 1343, and 1361. Appellants appealed pursuant to the provision of 28 U.S.C. § 1252 which provides:
'Any party may appeal to the Supreme Court from an interlocutory or final judgment, decree or order of any court of the United States . . . holding an Act of Congress unconstitutional in any civil action, suit, or proceeding to which the United States or any of its agencies, or any officer or employee thereof, as such officer or employee, is a party.'
The appellants do not appeal the District Court's adverse ruling upon two alternative grounds for dismissal: that the complaint failed to state a claim upon which relief could be granted, and that the plaintiff failed to exhaust available administrative remedies.
8
Compare Ex parte McCardle, 7 Wall. 506, 19 L.Ed. 264 (1869); Sheldon v. Sill, 8 How. 441, 12 L.Ed. 1147 (1850), with Martin v. Hunter's Lessee, 1 Wheat. 304, 4 L.Ed. 97 (1816); St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 84, 56 S.Ct. 720, 740, 80 L.Ed. 1033 (1936) (Brandeis, J., concurring). See Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts An Exercise in Dialectic, 66 Harv.L.Rev. 1362 (1953).
9
Section 5 of the Economy Act of 1933, 48 Stat. 9, which created the present Veterans' Administration, provided:
'All decisions rendered by the Administrator of Veterans' Affairs under the provisions of this title . . . shall be final and conclusive on all questions of law and fact, and no other official or court of the United States shall have jurisdiction to review by mandamus or otherwise any such decision.' In 1940 the no-review statute was amended, § 11, 54 Stat. 1197, to expand its application:
'Notwithstanding any other provisions of law . . . the decisions of the Administrator of Veterans' Affairs on any question of law or fact concerning a claim for benefits or payments under this or any other Act administered by the Veterans' Administration shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decisions.' When veterans' benefits legislation was finally consolidated in the Veterans' Benefits Act of 1957, § 211, 71 Stat. 92, the no-review clause was left substantially unaltered:
'(D)ecisions of the Administrator on any question of law or fact concerning a claim for benefits or payments under any law . . . administered by the Veterans' Administration shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision.'
10
The only discussion of § 5 of the Economy Act of 1933 was in the Senate, where it was stated that § 5 'gives to the Veterans' Administration only such authority as the Administration now has.' 77 Cong.Rec. 254 (1933).
The 1940 Act received little more discussion. However, Senator George remarked of the no-review clause:
'(T)he bill only confirms what has been the accepted belief and conviction, that with respect to any pension, (or) gratuity, . . . there is no right of action in the courts. . . . It is not so much a limitation as a restatement of what is believed to be the law upon the question.' 86 Cong.Rec. 13383 (1940).
The House debate indicates that the no-review clause
'is desirable for the purpose of uniformity and to make clear what is believed to be the intention of Congress that the various laws shall be uniformly administered in accordance with the liberal policies governing the Veterans' Administration.' Id., at 13491.
The legislative history attending the 1957 amendment to the no-review clause is similarly uninstructive, indicating only that the change was one of consolidation. See H.R.Rep.No.279, 85th Cong., 1st Sess., 1 (1957); S.Rep.No.332, 85th Cong., 1st Sess., 1 (1957). See Davis, Veterans' Benefits, Judicial Review, and the Constitutional Problems of 'Positive' Government, 39 Ind.L.J. 181, 188—189 (1964); Comment, Judicial Review and the Governmental Recovery of Veterans' Benefits, 118 U.Pa.L.Rev. 288, 291—292 (1969).
11
'There is for consideration the added expense to the Government not only with respect to the added burden upon the courts, but the administrative expense of defending the suits.'
Hearing on H.R. 360, 478, 2442 and 6777 before a Subcommittee of the House Committee on Veterans' Affairs, 82d Cong., 2d Sess., 1963 (1952).
12
'In the adjudication of compensation and pension claims a wide variety of medical, legal, and other technical questions constantly arise which require the study of expert examiners of considerable training and experience, and which are not readily susceptible of judicial standardization. Among other questions to be determined in the adjudication of such claims are those involving length and character of service, origin of disabilities, complex rating schedules, a multiplicity of medical and physical phenomena for consideration intercurrently with such schedules, and the application of established norms to the peculiarities of the particular case. These matters have not been considered by the Congress or the courts appropriate for judicial determination but have been regarded as apt subjects for the purely administrative procedure. Due to the nature and complexity of the determinations to be made, it is inevitable that the decisions of the courts in such matters would lack uniformity. It cannot be expected that the decisions of the many courts would be based on the uniform application of principles as is now done by the Veterans' Administration through its system of coordination by the central office and by its centralized Board of Veterans' Appeals.'
Hearing, supra, n. 11, at 1962—1963.
13
In an effort to enhance the attractiveness of service in the Public Health Service and the National Oceanic and Atmospheric Administration, the Act also makes educational benefits available to commissioned officers in those services. 38 U.S.C. §§ 101(21), 1652(a)(3). Officers in those services are usually specialists in various fields of science and possess a high degree of technical expertise. See 42 CFR §§ 21.11, 21.25—.31, 21.41—.42 (1972); 33 U.S.C. §§ 883a—883b. Appellee does not argue that he and his class, and the officers of those services, are so similarly circumstanced that the different treatment the Act accords the two groups constitutes a denial of equal protection.
14
Appellee argues that the statutory classification should be subject to strict scrutiny and upheld only if a compelling governmental justification is demonstrated because (1) the challenged classification interferes with the fundamental constitutional right to the free exercise of religion, and (2) I—O conscientious objectors are a suspect class deserving special judicial protection. We find no merit in either contention. Unquestionably, the free exercise of religion is a fundamental constitutional right. However, since we hold in Part III, infra, that the Act does not violate appellee's right of free exercise of religion, we have no occasion to apply to the challenged classification a standard of scrutiny stricter than the traditional rational-basis test. With respect to appellee's second contention, we find the traditional indicia of suspectedness lacking in this case. The class does not possess an 'immutable characteristic determined solely by the accident of birth,' Frontiero v. Richardson, 411 U.S., at 686, 93 S.Ct., at 1770, nor is the class 'saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process,' San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 1298, 36 L.Ed.2d 16 (1973). As the District Court observed:
'Congress, which is under no obligation to carve out the conscientious objector exemption for military training, see United States v. Macintosh, 1931, 283 U.S. 605, 624, 51 S.Ct. 570, 75 L.Ed. 1302; Gillette v. United States, 1971, 401 U.S. 437, 457, 461 n. 23, 91 S.Ct. 828, 28 L.Ed.2d 168, has nevertheless done so. Perhaps this exemption from military training relects a congressional judgment that conscientious objectors simply could not be trained for duty; but it is equally plausible that the exemption reflects a congressional determination to respect individual conscience. See United States v. Macintosh, supra, 283 U.S. at 633, 51 S.Ct. 570 ((Hughes,) C.J., dissenting). Given the solicitous regard that Congress has manifested for conscientious objectors, it would seem presumptuous of a court to subject the educational benefits legislation to strict scrutiny on the basis of the 'suspect classification' theory, whose underlying rationale is that, where legislation affects discrete and insular minorities, the presumption of constitutionality fades because traditional political processes may have broken down.' 352 F.Supp., at 855.
15
Testimony and statements at a hearing on the proposed Veterans' Readjustment Benefits Act of 1966, before the Senate Subcommittee on Veterans' Affairs, reflect a consciousness of the special sacrifices made by veterans of military service. For example, Senator Yarborough, chairman of the subcommittee and author of the Act, remarked that '(t)he bill I have introduced provides an opportunity to demonstrate that we, as a nation, do recognize the extreme unique personal sacrifices extracted from our cold war veterans by their military service.' 'Their need is not based on the type of military duty they performed, but on the lack of opportunity to readjust back to civilian life after having been removed for 2 to 4 years.' Hearings on S. 9 before the Subcommittee on Veterans' Affairs of the Senate Committee on Labor and Public Welfare, 89th Cong., 1st Sess., 6, 8 (1965). In testimony before the subcommittee Senator Mondale stated that '(t)he previous GI bills were not designed to reward veterans for the battle risks they ran, but were designed to assist them in readjusting to civilian life and in catching up to those whose lives were not disrupted by military service. And that is what the cold war GI bill is intended to do.' Id., at 152.
16
Title 50 U.S.C. App. § 456(j) provides that I—A—O conscientious objectors may be inducted into the Armed Forces and assigned to noncombatant service. Thus, I—A—O conscientious objectors perform 'active duty' as defined in 38 U.S.C. § 101(21) and are therefore eligible under 38 U.S.C. §§ 1652(a)(1), 1661(a) to receive veterans' educational benefits.
17
The lower classifications are listed and defined in 32 CFR §§ 1622.1—1623.2 (1973).
18
Appellee also contends that the Act violates his Fifth Amendment due process rights because, '(t)he exclusion of I—O conscientious objectors from the vital assistance provided by the Act's educational program is the product of a vindictive and harsh policy' whose 'purpose is clearly to punish I—O conscientious objectors for adhering to their beliefs.' Brief for Appellee 20, 51. To be sure, if that were the purpose of the exclusion of I—O conscientious objectors from the benefits of the Act, the classification would be unconstitutional, '(f)or if the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.' United States Dept. of Agriculture v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 2826, 37 L.Ed.2d 782 (1973). However, we have not been cited to, nor has our own research discovered, a single reference in the legislative history of the Act to support appellee's claim. We therefore find appellee's claim wholly lacking in merit.
19
By enacting legislation exempting conscientious objectors from the well-recognized and peculiar rigors of military service, Congress has bestowed relative benefits upon conscientious objectors by permitting them to perform their alternative service obligation as civilians. Thus, Congress' decision to grant educational benefits to military servicemen might arguably be viewed as an attempt to equalize the burdens of military service and alternative civilian service, rather than an effort by Congress to place a relative burden upon a conscientious objector's free exercise of religion. See Clark, Guidelines for the Free Exercise Clause, 83 Harv.L.Rev. 327, 349 (1969).
1
'First, the denial is felt, not immediately, as in Sherbert, but at a point in time substantially removed from that when a prospective conscientious objector must consider whether to apply for an exemption from military service. Secondly, the denial does not produce a positive economic injury of the sort effected by a Sunday closing law or ineligibility for unemployment payments. Considering these factors, the court doubts that the denial tends to make a prospective alternate service performer choose between following and not following the dictates of his conscience.' 352 F.Supp. 848, 860.
2
Hearings on Legislation to Provide GI Benefits for Post-Korean Veterans before the House Committee on Veterans' Affairs, 89th Cong., 1st Sess., 2899.
3
Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168, is irrelevant to the present case. There we were concerned with whether the petitioners were validly excluded from classification as conscientious objectors. Here the question is whether the Government can penalize the exercise of conscience it concedes is valid and which exempts these draftees from military service. Moreover, in Gillette we relied upon the fact that the Government's classification was religiously neutral, id., at 451, 91 S.Ct., at 837, imposed only 'incidental burdens' on the exercise of conscience, and was 'strictly justified by substantial governmental interests that relate directly to the very impacts questioned,' id., at 462, 91 S.Ct., at 842. Here the classification is not neutral but excludes only those conceded by the Government to have religious-based objections to war; and thus the burden it imposes on religious beliefs is not 'incidental.' And here we have no governmental interest even approaching that found in Gillette—the danger that, because selective objection to war could not be administered fairly, our citizens would conclude that 'those who go to war are chosen unfairly or capriciously (resulting in) a mood of bitterness and cynicism (that) might corrode the . . . values of willing performance of a citizen's duties that are the very heart of free government.' Id., at 460, 91 S.Ct., at 841. The only governmental interest here is the financial one of denying this appellee and his class educational benefits. That in my view is an invidious discrimination and a penalty on those who assert their religious scruples against joining the Armed Services which shoulder arms.
| 12
|
415 U.S. 336
94 S.Ct. 1146
39 L.Ed.2d 370
NATIONAL CABLE TELEVISION ASSOCIATION, INC., Petitioner,v.UNITED STATES and Federal Communications Commission.
No. 72—948.
Argued Dec. 3, 1973.
Decided March 4, 1974.
Syllabus
The Independent Offices Appropriation Act, 1952 (hereafter the Act), authorizes each federal agency to prescribe by regulation such fee for the agency's services as is determined to be fair and equitable, taking into consideration the direct and indirect 'cost to the Government, value to the recipient, public policy or interet served, and other pertinent facts . . ..' Pursuant to the Act, the Federal Communications Commission (FCC), in revising fees imposed upon community antenna television (CATV) systems, first estimated its direct and indirect costs for CATV regulations, and then, while retaining filing fees, added an annual fee for each CATV system at the rate of 30¢ per subscriber, concluding that this fee would approximate the 'value to the recipient' used in the Act. The Court of Appeals, on a review obtained by petitioner, a CATV trade association, approved the FCC's action. Held:
1. The Act authorizes the imposition of a 'fee,' which connotes a 'benefit' of 'value to the recipient.' The latter phrase is the proper measure of the authorized charge, not the 'public policy or interest served' phraseology which, if read literally, would enable the agency to make assessments or tax levies whereby CATV's and other broadcasters would be paying not only for the benefits they received but, contrary to the Act's objectives, would also be paying for the protective services the FCC renders to the public. Pp. 340—343.
2. The FCC should reappraise the annual fee imposed upon the CATV's. It is not enough to figure the total cost (direct and indirect) to the FCC for operating a CATV supervision unit and then to contrive a formula reimbursing the FCC for that amount, since some of such costs certainly inured to the public's benefit and should not have been included in the fee imposed upon the CATV's. Pp. 343—344.
464 F.2d 1313, reversed and remanded.
Stuart F. Feldstein, Washington, D.C., for petitioner.
Edward R. Korman, New York City, for respondents.
Jr. Justice DOUGLAS delivered the opinion of the Court.
1
The Independent Offices Appropriation Act, 1952, Tit. 5, 65 Stat. 290, 31 U.S.C. § 483a, provides in relevant part: 'It is the sense of the Congress that any work, service . . . benefit, . . . license, . . . or similar thing of value or utility performed, furnished, provided, granted . . . by any Federal agency . . . to or for any person (including . . . corporations . . .) . . . shall be self-sustaining to the full extent possible, and the head of each Federal agency is authorized by regulation . . . to prescribe therefor . . . such fee, charge, or price, if any, as he shall determine . . . to be fair and equitable taking into consideration direct and indirect cost to the Government, value to the recipient, public policy or interest served, and other pertinent facts . . ..'1 Petitioner is a trade association representing community antenna television (CATV) systems which transmit TV programs by cable. The Federal Communications Commission is authorized to regulate these CATV outlets, as the Court held in United States v. Southwestern Cable Co., 392 U.S. 157, 88 S.Ct. 1994, 20 L.Ed.2d 1001. The power to regulate, though not in the form of granting licenses, extends to the promulgation of regulations requiring the compulsory origination of programs by CATV. United States v. Midwest Video Corp., 406 U.S. 649, 92 S.Ct. 1860, 32 L.Ed.2d 390. These CATV's, however, are not under the exclusive oversight of the Commission. Local governments and even some States provide permits or franchises to CATV's, including rights of way for the cables used. Some communities in return for their permits require the CATV to pay an annual percentage fee as a gross receipts tax.2
2
The Commission in 1964 established only nominal filing fees that produced revenues which approximated 25% of the Commission's annual appropriation. See 21 F.C.C.2d 502, 503. See also Aeronautical Radio, Inc. v. United States, 7 Cir., 335 F.2d 304. The Bureau of the Budget urged higher fee schedules; and so did the committees of the Congress. See H.R.Rep.No.91—316, pp. 7—8, and H.R.Conf.Rep.No.91—649, p. 6, where it was stated:
3
'The committee of conference is agreed that the fee structure for the Commission should be adjusted to fully support all its activities so the taxpayers will not be required to bear any part of the load in view of the profits regulated by this agency.' The Commission, after notice and hearing, revised existing fees for licensees and for the first time imposed fees upon CATV's. It first estimated its direct and indirect costs for CATV regulation which were $1,145,400 or 4.6% of its total budget request for that year. Filing fees were retained; and there was added an annual fee for each cable television system at the rate of 30 cents for each subscriber. The Commission, finding that subscription rates clustered at about $5 a month, concluded that the 30-cent fee would typically amount to only about one-half of 1% of a CATV system's gross revenues from subscription. The fees would produce, it said, $1,145,000 annually, and it concluded that the 30-cent fee would approximate the 'value to the recipient' used in the Act, 23 F.C.C.2d 880; 28 F.C.C.2d 139.
4
Petitioner obtained review of the decision in the Court of Appeals, which approved the Commission's action, 464 F.2d 1313. The case is here on a petition for certiorari which we granted, 411 U.S. 981, 93 S.Ct. 2267, 36 L.Ed.2d 957, because of an apparent conflict between the decision in this case and the decision in New England Power Co. v. FPC, 151 U.S.App.D.C. 371, 467 F.2d 425, of the Court of Appeals for the District of Columbia Circuit.
5
Taxation is a legislative function, and Congress, which is the sole organ for levying taxes,3 may act arbitrarily and disregard benefits bestowed by the Government on a taxpayer and go solely on ability to pay, based on property or income. A fee, however, is incident to a voluntary act, e.g., a request that a public agency permit an applicant to practice law or medicine or construct a house or run a broadcast station. The public agency performing those services normally may exact a fee for a grant which, presumably, bestows a benefit on the applicant, not shared by other members of society. It would be such a sharp break with our traditions to conclude that Congress had bestowed on a federal agency the taxing power that we read 31 U.S.C. § 483a narrowly as authorizing not a 'tax' but a 'fee.' A 'fee' connotes a 'benefit' and the Act by its use of the standard 'value to the recipient' carries that connotation. The addition of 'public policy or interest served, and other pertinent facts,' if read literally, carries an agency far from its customary orbit and puts it in search of revenue in the manner of an Appropriations Committee of the House.
6
The lawmaker may, in light of the 'public policy or interest served,' make the assessment heavy if the lawmaker wants to discourage the activity;4 or it may make the levy slight if a bounty is to be bestowed; or the lawmaker may make a substantial levy to keep entrepreneurs from exploiting a semipublic cause for their own personal aggrandizement. Such assessments are in the nature of 'taxes' which under our constitutional regime are traditionally levied by Congress.
7
There is no doubt that the main function of the Commission is to safeguard the public interest in the broadcasting activities of members of the industry. If assessments are made by the Commission against members of the industry which are sufficient to recoup costs to the Commission for its oversight, the CATV's and other broadcasters would be paying not only for benefits they received but for the protective services rendered the public by the Commission. The fixing of such assessments, it is argued, is the levying of taxes. The Court, speaking through Mr. Chief Justice Hughes said in Schechter Corp. v. United States, 295 U.S. 495, 529, 55 S.Ct. 837, 843, 79 L.Ed. 1570:
8
'The Constitution provides that 'All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.' Art. I, § 1. And the Congress is authorized 'To make all laws which shall be necessary and proper for carrying into execution' its general powers. Art. I, § 8, par. 18. The Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested.'
9
Congress, of course, does delegate powers to agencies, setting standards to guide their determination. Thus, in Hampton & Co. v. United States, 276 U.S. 394, 48 S.Ct. 348, 72 L.Ed. 624, Congress enacted a flexible tariff law which authorized the imposition of customs duties on articles imported which equaled the difference between the cost of producing them in a foreign country and of selling them here and the cost of producing and selling like or similar articles in the United States. Provision was made for the investigation and determination of these differences by the Tariff Commission which reported to the President who increased or decreased the duty accordingly. The Court in sustaining that system said: 'If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power.' Id., at 409, 48 S.Ct. at 352.
10
Whether the present Act meets the requirement of Schechter and Hampton is a question we do not reach. But the hurdles revealed in those decisions lead us to read the Act narrowly to avoid constitutional problems.
11
The phrase 'value to the recipient' is, we believe, the measure of the authorized fee. The words 'public policy or interest served, and other pertinent facts' would not seem relevant to the present case, whatever may be their ultimate reach. The backbone of CATV is individual enterprise and ingenuity, not governmental largesse. The regulatory regime placed by Congress and the courts over CATV was not designed to make entrepreneurs rich but to serve the public interest by 'mak(ing) available . . . to all the people of the United States a rapid, efficient, Nation-wide, and world-wide wire and radio communications service.' 48 Stat. 1064, as amended, 47 U.S.C. § 151.
12
While those who operate CATV's may receive special benefits, we cannot be sure that the Commission used the correct standard in setting the fee. It is not enough to figure the total cost (direct and indirect) to the Commission for operating a CATV unit of supervision and then to contrive a formula that reimburses the Commission for that amount. Certainly some of the costs inured to the benefit of the public, unless the entire regulatory scheme is a failure, which we refuse to assume. The philosophy of § 483a was stated by Congressman Sidney Yates of the House Committee on Appropriations. While he spoke of TV and radio broadcasters, what he said is germane to the CATV problem:
13
'I think it is only fair that in exchange for the franchise that the Government gives the broadcasting company and the protection which the Government affords to such broadcasting company to assure its freedom from interference in the operation of its broadcasting facilities in the particular point of the spectrum which it occupies, . . . it should pay some of the costs of the hearings. It is perfectly proper that the franchised company make a profit, and there has been much profit making. Such companies should assume a greater share of the costs, because regulation is necessary.' 97 Cong.Rec. 4809.
14
That congressional aim can be achieved within the framework of 'value to the recipient' as contrasted to the public policy or interest that is also served.
15
The result is that we reverse the Court of Appeals so that the case can be remanded to the Federal Communications Commission for further proceedings consistent with this opinion.
16
Reversed and remanded.
17
Mr. Justice BLACKMUN and Mr. Justice POWELL took no part in the decision of this case.
1
The Committee Report, H.R.Rep.No. 384, 82d Cong., 1st Sess., 2—3, makes the following comment on this measure:
'The Committee is concerned that the Government is not receiving full return from many of the services which it renders to special
beneficiaries. Many fees for such services are specifically fixed by law, and in some cases, it is specifically provided that no fees shall be charged. In other cases, however, no fees are charged even though the charging of fees is not prohibited; and in still others, fees are charged upon the basis of formulae prescribed in law, but the application of the formulae needs to be re-examined to bring the actual charges into line with present-day costs and other related considerations.
'It is understood that other committees of the Congress have interested themselves in this matter and that studies now are under way which may result in further legislation to require that adequate consideration be received for such services. However, such studies are necessarily time-consuming and the required legislation may not be enacted for a considerable period. Accordingly, the Committee has inserted language in the bill (Title V, page 60) which would authorize and encourage the charging or increasing of fees to the extent permitted under present basic laws, but which would in no way conflict with studies now under way to effect changes in such basic laws.
'It is estimated that in 1952 the Government will receive more than $300,000,000 in fees from sources of the type here under consideration. It seems entirely possible that many of these fees could be raised, and that fees could be charged for other services of similar types in cases where no charge is now made, to the extent that the Government might realize upwards of $50,000,000 additional revenue.
'The bill would provide authority for Government agencies to make charges for these services in cases where no charge is made at present, and to revise charges where present charges are too low, except in cases where the charge is specifically fixed by law or the law specifically provides that no charge shall be made. It is not the Committee's intention in including this provision to disturb existing practices with respect to charges for postal services, sales of power, or the interest on loans by the Government.'
2
The most recent CATV rules adopted by the Commission (37 Fed.Reg. 3280) require a CATV to receive a certificate of compliance from the Commission, 47 CFR § 76.11(b), and require it to obtain from the appropriate local government authority a certificate containing prescribed recitations and provisions. 47 CFR § 76.31. The new rules also limit the franchise fees that may be imposed on CATV's by the localities where they operate. 47 CFR § 76.31. Included in the new rules are restrictions on telephone companies on whose poles the CATV cable is usually strung. See 47 CFR §§ 63.54—63.57, 64.601—64.602. And see General Telephone Co. v. United States, 5 Cir., 449 F.2d 846, 851; Report of Jan. 14, 1974, Cabinet Committee on Cable Communications (known as the Whitehead Report).
3
By Art. I, § 8, cl. 1, of the Constitution it is the Congress that has the 'Power to lay and collect Taxes.'
4
Mr. Chief Justice Marshall is credited with the statement that 'the power to tax is the power to destroy,' to which Mr. Justice Holmes replied, 'The power to tax is not the power to destroy while this Court sits.' Panhandle Oil Co. v. Knox, 277 U.S. 218, 223, 48 S.Ct. 451, 453, 72 L.Ed. 857 (dissenting opinion).
| 89
|
415 U.S. 449
94 S.Ct. 1185
39 L.Ed.2d 501
Joseph DeMARCOv.UNITED STATES.
No. 73—5684.
March 18, 1974.
PER CURIAM.
1
At petitioner's trial, a Government witness who had been indicted with petitioner, testified that the Government had made no promises to him with respect to the disposition of his case. Petitioner was convicted and he appealed. Meanwhile, the witness had pleaded guilty to a lesser charge contained in a superseding indictment; and at the witness' sentencing hearing, the United States Attorney made certain statements that petitioner interpreted as proving that promises had been made to the witness prior to his testimony and that the witness had testified falsely at petitioner's trial. Without presenting the matter to the District Court, petitioner pressed the question in the Court of Appeals. That court accepted the tendered issue, examined the transcript of the hearing at which the witness was sentenced, considered the Government's response in the Court of Appeals and, although the prosecutor's remarks were deemed ambiguous and the question thought to be a 'close' one, concluded that no promises had been made to the witness prior to the witness' testimony at petitioner's trial.
2
Unquestionably, had there been a promise to the witness prior to his testimony, Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), would require reversal of petitioner's conviction. It is also clear that there was a plea bargain between the witness and the Government at some point, the question being whether it was made after or before petitioner's trial. This factual issue was dispositive of the case, and it would have been better practice not to resolve it in the Court of Appeals based only on the materials then before the court. The issue should have been remanded for initial disposition in the District Court after an evidentiary hearing.* We therefore grant the petition for certiorari and the motion to proceed in forma pauperis, vacate the judgment of the Court of Appeals, and remand the case to that court with instructions to remand the case to the District Court for further proceedings consistent with this opinion.
3
So ordered.
4
Certiorari granted; judgment of the Court of Appeals vacated; case remanded with instructions.
5
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE and Mr. Justice POWELL join, dissenting.
6
Petitioner was convicted in the District Court of trafficking in illegal narcotics in violation of the provisions of 21 U.S.C. § 174 (1964 ed.). The Court of Appeals summarily rejected petitioner's attacks on the sufficiency of the evidence to convict him, and dealt in detail only with the Giglio issue upon which this Court decides to vacate and remand for consideration by the District Court. As the Court notes, this was a 'factual issue,' ante, at 450, and raises no question whatever of general importance in the law. Commonly I would expect this petition to be denied for those reasons.
7
The Solicitor General, however, has filed a response in this Court which, though entitled 'Memorandum in Opposition,' incorporates in a footnote a backhanded invitation to the Court to follow the course which it has now taken. It is well established that this Court does not, or at least should not, respond in Pavlovian fashion to confessions of error by the Solicitor General. See, e.g., Young v. United States, 315 U.S. 257, 62 S.Ct. 510, 86 L.Ed. 832 (1942); Gibson v. United States, 329 U.S. 338, 344 n. 9, 67 S.Ct. 301, 304, 91 L.Ed. 331 (1946). I believe there could not be a plainer case than this one for the invocation of the doctrine of invited error. For whatever may be the proper allocation of factfinding responsibilities between the Court of Appeals and the District Court, petitioner deliberately chose to raise this largely factual issue for the first time in the Court of Appeals and to seek decision upon it there. That the Court of Appeals responded to the invitation is scarcely grounds for any claim of error here. I would deny certiorari.
*
The Government's response to the petition for certiorari agrees that factfinding is the basic responsibility of district courts, rather than appellate courts, and that the Court of Appeals should not have resolved in the first instance this factual dispute which had not been considered by the District Court. See, e.g., General Electric Credit Corp. v. Robbins, 414 F.2d 208, 211 (CA8 1969); Yanish v. Barber, 232 F.2d 939, 946—947 (CA9 1956). See also 5A J. Moore, Federal Practice 52.06(2) n. 1 (2d ed. 1974).
| 01
|
415 U.S. 452
94 S.Ct. 1209
39 L.Ed.2d 505
Richard Guy STEFFEL, Petitioner,v.John R. THOMPSON et al.
No. 72—5581.
Argued Nov. 13, 1973.
Decided March 19, 1974.
Syllabus
Petitioner, who had twice been warned to stop handbilling on an exterior sidewalk of a shopping center against American involvement in Vietnam and threatened with arrest by police if he failed to do so, and whose companion continued handbilling and was charged with violating the Georgia criminal trespass law, brought an action for injunctive and declaratory relief in the District Court, claiming that application to him of that law would violate his First and Fourteenth Amendment rights. The District Court dismissed the action, finding that 'no meaningful contention can be made that the state has (acted) or will . . . act in bad faith,' and therefore 'the rudiments of an active controversy between the parties . . . (are) lacking.' The Court of Appeals affirmed, being of the view that Younger v. Harris, 401 U.S., 37, 91 S.Ct. 746, 27 L.Ed.2d 669, made it clear that irreparable injury must be measured by bad-faith harassment and such a test must be applied to a request for injunctive relief against threatened, as well as pending, state court criminal prosecution; and that it followed from the reasoning of Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688, that the same test of bad-faith harassment is a prerequisite for declaratory relief with respect to a threatened prosecution. Held:
1. This case presents an 'actual controversy' under Art. III of the Constitution and the Federal Declaratory Judgment Act, the alleged threats of prosecution in the circumstances alleged not being 'imaginary or speculative' and it being unnecessary for petitioner to expose himself to actual arrest or prosecution to make his constitutional challenge. Whether the controversy remains substantial and continuing in the light of the effect of the recent reduction of the Nation's involvement in Vietnam on petitioner's desire to engage in the handbilling at the shopping center must be resolved by the District Court on remand. Pp. 485 460.
2. Federal declaratory relief is not precluded when a prosecution based upon an assertedly unconstitutional state statute has been threatened, but is not pending, even if a showing of bad-faith enforcement or other special circumstances has not been made. Pp. 460—473.
(a) When no state criminal proceeding is pending at the time the federal complaint is filed, considerations of equity, comity, and federalism on which Younger v. Harris, and Samuels v. Mackell, both supra, were based, have little vitality: federal intervention does not result in duplicative legal proceedings or disruption of the state criminal justice system; nor can federal intervention, in that circumstance, be interpreted as reflecting negatively upon the state courts' ability to enforce constitutional principles. Pp. 460—462.
(b) Even if the Court of Appeals correctly viewed injunctive relief as inappropriate (a question not reached here petitioner having abandoned his request for that remedy), the court erred in treating the requests for injunctive and declaratory relief as a single issue and in holding that a failure to demonstrate irreparable injury precluded the granting of declaratory relief. Congress plainly intended that a declaratory judgment be available as a milder alternative that the injunction to test the constitutionality of state criminal statutes. Pp. 462—473.
3. In determining whether it is appropriate to grant declaratory relief when no state criminal proceeding is pending, it is immaterial whether the attack is made on the constitutionality of a state criminal statute on its face or as applied. Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182, distinguished. Pp. 473—475.
459 F.2d 919, reversed and remanded.
Howard Moore, Jr., Atlanta, Ga., for petitioner.
Lawrence M. Cohen, Chicago, Ill., for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
When a state criminal proceeding under a disputed state criminal statute is pending against a federal plaintiff at the time his federal complaint is filed, Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), held, respectively, that, unless bad-faith enforcement or other special circumstances are demonstrated, principles of equity, comity, and federalism preclude issuance of a federal injunction restraining enforcement of the criminal statute and, in all but unusual circumstances, a declaratory judgment upon the constitutionality of the statute. This case presents the important question reserved in Samuels v. Mackell, id., at 73—74, 91 S.Ct., at 768—769, whether declaratory relief is precluded when a state prosecution has been threatened, but is not pending, and a showing of bad-faith enforcement or other special circumstances has not been made.
2
Petitioner, and others, filed a complaint in the District Court for the Northern District of Georgia, invoking the Civil Rights Act of 1871, 42 U.S.C. § 1983, and its jurisdictional implementation, 28 U.S.C. § 1343. The complaint requested a declaratory judgment pursuant to 28 U.S.C. §§ 2201—2202, that Ga.Code Ann. § 26—1503 (1972)1 was being applied in violation of petitioner's First and Fourteenth Amendment rights, and an injunction restraining respondents—the Solicitor of the Civil and Criminal Court of DeKalb County, the chief of the DeKalb County Police, the owner of the North DeKalb Shopping Center, and the manager of that shopping center—from enforcing the statute so as to interfere with petitioner's constitutionally protected activities.
3
The parties stipulated to the relevant facts: On October 8, 1970, while petitioner and other individuals were distributing handbills protesting American involvement in Vietnam on an exterior sidewalk of the North DeKalb Shopping Center, shopping center employees asked them to stop handbilling and leave.2 They declined to do so, and police officers were summoned. The officers told them that they would be arrested if they did not stop handbilling. The group then left to avoid arrest. Two days later petitioner and a companion returned to the shopping center and again began handbilling. The manager of the center called the police, and petitioner and his companion were once again told that failure to stop their handbilling would result in their arrests. Petitioner left to avoid arrest. His companion stayed, however, continued handbilling, and was arrested and subsequently arraigned on a charge of criminal trespass in violation of § 26—1503.3 Petitioner alleged in his complaint that, although he desired to return to the shopping center to distribute handbills, he had not done so because of his concern that he, too, would be arrested for violation of § 26—1503; the parties stipulated that, if petitioner returned and refused upon request to stop handbilling, a warrant would be sworn out and he might be arrested and charged with a violation of the Georgia statute.4
4
After hearing, the District Court denied all relief and dismissed the action, finding that 'no meaningful contention can be made that the state has (acted) or will in the future act in bad faith,' and therefore 'the rudiments of an active controversy between the parties . . . (are) lacking.' 334 F.Supp. 1386, 1389 1390 (1971). Petitioner appealed5 only from the denial of declaratory relief.6 The Court of Appeals for the Fifth Circuit, one judge concurring in the result, affirmed the District Court's judgment refusing declaratory relief.7 Becker v. Thompson, 459 F.2d 919 (1972). The court recognized that the holdings of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), were expressly limited to situations where state prosecutions were pending when the federal action commenced, but was of the view that Younger v. Harris 'made it clear beyond peradventure that irreparable injury must be measured by bad faith harassment and such test must be applied to a request for injunctive relief against threatened state court criminal prosecution' as well as against a pending prosecution; and, furthermore, since the opinion in Samuels v. Mackell reasoned that declaratory relief would normally disrupt the state criminal justice system in the manner of injunctive relief, it followed that 'the same test of bad faith harassment is prerequisite . . . for declaratory relief in a threatened prosecution.' 459 F.2d, at 922. A petition for rehearing en banc was denied, three judges dissenting. 463 F.2d 1338 (Cir. 1972).8
5
We granted certiorari, 410 U.S. 953, 93 S.Ct. 1424, 35 L.Ed.2d 686 (1973), and now reverse.
6
* At the threshold we must consider whether petitioner presents an 'actual controversy,' a requirement imposed by Art. III of the Constitution and the express terms of the Federal Declaratory Judgment act, 28 U.S.C. § 2201.9
7
Unlike three of the appellees in Younger v. Harris, 401 U.S., at 41, 91 S.Ct., at 749, petitioner has alleged threats of prosecution that cannot be characterized as 'imaginary or speculative,' id., at 42, 91 S.Ct., at 749. He has been twice warned to stop handbilling that he claims is constitutionally protected and has been told by the police that if he again handbills at the shopping center and disobeys a warning to stop he will likely be prosecuted. The prosecution of petitioner's handbilling companion is ample demonstration that petitioner's concern with arrest has not been 'chimerical,' Poe v. Ullman, 367 U.S. 497, 508, 81 S.Ct. 1752, 1758—1759, 6 L.Ed.2d 989 (1961). In these circumstances, it is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights. .see, e.g., Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968). Moreover, petitioner's challenge is to those specific provisions of state law which have provided the basis for threats of criminal prosecution against him. Cf. Boyle v. Landry, 401 U.S. 77, 81, 91 S.Ct., 758, 760, 27 L.Ed.2d 696 (1971); Watson v. Buck, 313 U.S. 387, 399—400, 61 S.Ct. 962, 85 L.Ed. 1416 (1941).
8
Nonetheless, there remains a question as to the continuing existence of a live and acute controversy that must be resolved on the remand we order today.10 In Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969), the appellee sought a declaratory judgment that a state criminal statute prohibiting the distribution of anonymous election-campaign literature was unconstitutional. The appellee's complaint had expressed a desire to distribute handbills during the forthcoming re-election campaign of a Congressman, but it was later learned that the Congressman had retired from the House of Representatives to become a New York Supreme Court Justice. In that circumstance, we found no extant controversy, since the record revealed that appellee's sole target of distribution had been the Congressman and there was no immediate prospect of the Congressman's again becoming a candidate for public office. Here, petitioner's complaint indicates that his handbilling activities were directed 'against the war in Vietnam and the United States, foreign policy in Southeast Asia.' Since we cannot ignore the recent developments reducing the Nation's involvement in that part of the world, it will be for the District Court on remand to determine if subsequent events have so altered petitioner's desire to engage in handbilling at the shopping center that it can no longer be said that this case presents 'a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.' Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941); see Zwickler v. Koota, 389 U.S. 241, 244 n. 3, 88 S.Ct. 391, 393, 19 L.Ed.2d 444 (1967).
II
9
We now turn to the question of whether the District Court and the Court of Appeals correctly found petitioner's request for declaratory relief inappropriate.
10
Sensitive to principles of equity, comity, and federalism, we recognized in Younger v. Harris, supra, that federal courts should ordinarily refrain from enjoining ongoing state criminal prosecutions. We were cognizant that a pending state proceeding, in all but unusual cases, would provide the federal plaintiff with the necessary vehicle for vindicating his constitutional rights, and, in that circumstance, the restraining of an ongoing prosecution would entail an unseemly failure to give effect to the principle that state courts have the solemn responsibility, equally with the federal courts 'to guard, enforce, and protect every right granted or secured by the constitution of the United States. . . .' Robb v. Connolly, 111 U.S. 624, 637, 4 S.Ct. 544, 551, 28 L.Ed. 542 (1884). In Samuels v. Mackell, supra, the Court also found that the same principles ordinarily would be flouted by issuance of a federal declaratory judgment when a state proceeding was pending, since the intrusive effect of declaratory relief 'will result in precisely the same interference with and disruption of state proceedings that the long-standing policy limiting injunctions was designed to avoid.' 401 U.S., at 72, 91 S.Ct., at 767.11 We therefore held in Samuels that, 'in cases where the state criminal prosecution was begun prior to the federal suit, the same equitable principles relevant to the propriety of an injunction must be taken into consideration by federal district courts in determining whether to issue a declaratory judgment. . . .' Id., at 73, 91 S.Ct., at 768.
11
Neither Younger nor Samuels, however, decided the question whether federal intervention might be permissible in the absence of a pending state prosecution. In Younger, the Court said:
12
'We express no view about the circumstances under which federal courts may act when there is no prosecution pending in state courts at the time the federal proceeding is begun.' 401 U.S., at 41, 91 S.Ct., at 749.
13
See also id., at 55, 91 S.Ct., at 757 (Stewart and Harlan, JJ., concurring); id., at 57, 91 S.Ct., at 756 (Brennan, White, and Marshall, JJ., concurring). Similarly, in Samuels v. Mackell, the Court stated:
14
'We, of course, express no views on the propriety of declaratory relief when no state proceeding is pending at the time the federal suit is begun.' 401 U.S., at 73—74, 91 S.Ct., at 768.
15
See also id., at 55, 91 S.Ct., at 757 (Stewart and Harlan, JJ., concurring); id., at 75—76, 91 S.Ct., at 756 (Brennan, White, and Marshall, JJ., concurring).
16
These reservations anticipated the Court's recognition that the relevant principles of equity, comity, and federalism 'have little force in the absence of a pending state proceeding.' Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 509, 92 S.Ct. 1749, 1757, 32 L.Ed.2d 257 (1972). When no state criminal proceeding is pending at the time the federal complaint is filed, federal intervention does not result in duplicative legal proceedings or disruption of the state criminal justice system; nor can federal intervention, in that circumstance, be interpreted as reflecting negatively upon the state court's ability to enforce constitutional principles. In addition, while a pending state prosecution provides the federal plaintiff with a concrete opportunity to vindicate his constitutional rights, a refusal on the part of the federal courts to intervene when no state proceeding is pending may place the hapless plaintiff between the Scylla of intentionally flouting state law and the Charybdis of forgoing what he believes to be constitutionally protected activity in order to avoid becoming enmeshed in a criminal proceeding. Cf. Dombrowski v. Pfister, 380 U.S. 479, 490, 85 S.Ct. 1116, 1123, 14 L.Ed.2d 22 (1965).
17
When no state proceeding is pending and thus considerations of equity, comity, and federalism have little vitality, the propriety of granting federal declaratory relief may properly be considered independently of a request for injunctive relief. Here, the Court of Appeals held that, because injunctive relief would not be appropriate since petitioner failed to demonstrate irreparable injury—a traditional prerequisite to injunctive relief, e.g., Dombrowski v. Pfister, supra—it followed that declaratory relief was also inappropriate. Even if the Court of Appeals correctly viewed injunctive relief as inappropriate—a question we need not reach today since petitioner has abandoned his request for that remedy, see n. 6 supra—12 the court erred in treating the requests for injunctive and declaratory relief as a single issue. '(W)hen no state prosecution is pending and the only question is whether declaratory relief is appropriate(,) . . . the congressional scheme that makes the federal courts the primary guardians of constitutional rights, and the express congressional authorization of declaratory relief, afforded because it is a less harsh and abrasive remedy than the injunction, become the factors of primary significance.' Perez v. Ledesma, 401 U.S. 82, 104, 91 S.Ct. 674, 686, 27 L.Ed.2d 701 (1971) (separate opinion of Brennan, J.).
18
The subject matter jurisdiction of the lower federal courts was greatly expanded in the wake of the Civil War. A pervasive sense of nationalism led to enactment of the Civil Rights Act of 1871, 17 Stat. 13, empowering the lower federal courts to determine the constitutionality of actions, taken by persons under color of state law, allegedly depriving other individuals of rights guaranteed by the Constitution and federal law, see 42 U.S.C. § 1983, 28 U.S.C. § 1343(3).13 Four years later, in the Judiciary Act of March 3, 1875, 18 Stat. 470, Congress conferred upon the lower federal courts, for but the second time in their nearly century-old history, general federalquestion jurisdiction subject only to a jurisdictional-amount requirement, see 28 U.S.C. § 1331.14 With this latter enactment, the lower federal courts 'ceased to be restricted tribunals of fair dealing between citizens of different states and became the primary and powerful reliances for vindicating every right given by the Constitution, the laws, and treaties of the United States.' F. Frankfurter & J. Landis, The Business of the Supreme Court 65 (1928) (emphasis added).15 These two statutes, together with the Court's decision in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)—holding that state officials who threaten to enforce an unconstitutional state statute may be enjoined by a federal court of equity and that a federal court may, in appropriate circumstances, enjoin future state criminal prosecutions under the unconstitutional Act have 'established the modern framework for federal protection of constitutional rights from state interference.' Perez v. Ledesma, supra, 401 U.S., at 107, 91 S.Ct., at 688 (separate opinion of Brennan, J.).
19
A 'storm of controversy' raged in the wake of Ex parte Young, focusing principally on the power of a single federal judge to grant ex parte interlocutory injunctions against the enforcement of state statutes, H. Hart & H. Wechsler, The Federal Courts and the Federal System 967 (2d ed. 1973); see generally Goldstein v. Cox, 396 U.S. 471, 90 S.Ct. 671, 24 L.Ed.2d 663 (1970); Hutcheson, A Case for Three Judges, 47 Harv.L.Rev. 795, 804—805 (1934). This uproar was only partially quelled by Congress' passage of legislation, 36 Stat. 557, requiring the convening of a three-judge district court16 before a preliminary injunction against enforcement of a state statute could issue, and providing for direct appeal to this Court from a decision granting or denying such relief.17 See 28 U.S.C. §§ 2281, 1253. From a State's viewpoint the granting of injunctive relief—even by these courts of special dignity—'rather clumsily' crippled state enforcement of its statutes pending further review, see H.R.Rep.No.288, 70th Cong., 1st Sess., 2 (1928); H.R.Rep.No.94, 94, 71st Cong., 2d Sess., 2 (1929); H.R.Rep.No.627, 72d Cong., 1st Sess., 2 (1932). Furthermore, plaintiffs were dissatisfied with this method of testing the constitutionality of state statutes, since it placed upon them the burden of demonstrating the traditional prerequisites to equitable relief—most importantly, irreparable injury. See, e.g., Fenner v. Boykin, 271 U.S. 240, 243, 46 S.Ct. 492, 493, 70 L.Ed. 927 (1926).
20
To dispel these difficulties, Congress in 1934 enacted the Declaratory Judgment Act, 28 U.S.C. §§ 2201—2202. That Congress plainly intended declaratory relief to act as an alternative to the strong medicine of the injunction and to be utilized to test the constitutionality of state criminal statutes in cases where injunctive relief would be unavailable is amply evidenced by the legislative history of the Act, traced in full detail in Perez v. Ledesma, supra, 401 U.S., at 111—115, 91 S.Ct., at 690—692 (separate opinion of Brennan, J.). The highlights of that history, particularly pertinent to our inquiry today, emphasize that:
21
'(I)n 1934, without expanding or reducing the subject matter jurisdiction of the federal courts, or in any way diminishing the continuing vitality of Ex parte Young with respect to federal injunctions, Congress empowered the federal courts to grant a new remedy, the declaratory judgment. . . .
'The express purpose of the Federal Declaratory Judgment
22
Act was to provide a milder alternative to the injunction remedy. . . . Of particular significance on the question before us, the Senate report (S.Rep.No.1005, 73d Cong., 2d Sess. (1934)) makes it even clearer that the declaratory judgment was designed to be available to test state criminal statutes in circumstances where an injunction would not be appropriate. . . .
23
'Much of the hostility to federal injunctions referred to in the Senate report was hostility to their use against state officials seeking to enforce state regulatory statutes carrying criminal sanctions; this was the strong feeling that produced the Three-Judge Court Act in 1910, the Johnson Act of 1934, 28 U.S.C. § 1342, and the Tax Injunction Act of 1937, 28 U.S.C. § 1341. The Federal Declaratory Judgment Act was intended to provide an alternative to injunctions against state officials, except where there was a federal policy against federal adjudication of the class of litigation altogether. . . . Moreover, the Senate report's clear implication that declaratory relief would have been appropriate in Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), and Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926), both cases involving federal adjudication of the constitutionality of a state statute carrying criminal penalties, and the report's quotation from Terrace v. Thompson, which also involved anticipatory federal adjudication of the constitutionality of a state criminal statute, make it plain that Congress anticipated that the declaratory judgment procedure would be used by the federal courts to test the constitutionality of state criminal statutes.' 401 U.S., at 111 112, 115, 91 S.Ct., at 690—692.18
24
It was this history that formed the backdrop to our decision in Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967), where a state criminal statute was attacked on grounds of unconstitutional overbreadth and no state prosecution was pending against the federal plaintiff. There, we found error in a three-judge district court's considering, as a single question, the propriety of granting injunctive and declaratory relief. Although we noted that injunctive relief might well be unavailable under principles of equity jurisprudence canvassed in Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943), we held that 'a federal district court has the duty to decide the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the propriety of the issuance of the injunction.' 389 U.S., at 254, 88 S.Ct., at 399. Only one year ago, we reaffirmed the Zwickler v. Koota holding in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). In those two cases, we declined to decide whether the District Courts had properly denied to the federal plaintiffs, against whom no prosecutions were pending, injunctive relief restraining enforcement of the Texas and Georgia criminal abortion statutes; instead, we affirmed the issuance of declaratory judgments of unconstitutionality, anticipating that these would be given effect by state authorities. We said:
25
'The Court has recognized that different considerations enter into a federal court's decision as to declaratory relief, on the one hand, and injunctive relief, on the other. Zwickler v. Koota, 389 U.S. 241, 252—255, 88 S.Ct. 391, 397—399, 19 L.Ed.2d 444 (1967); Drombrowski v. Pfister, 380 U.S. 479, 85 S.Ct., 1116, 14 L.Ed.2d 22 (1965).' Roe v. Wade, supra,, 410 U.S., at 166, 93 S.Ct., at 733 (emphasis added). See Doe v. Bolton, supra, 410 U.S., at 201, 93 S.Ct., at 752.
26
The 'different considerations' entering into a decision whether to grant declaratory relief have their origins in the preceding historical summary. First, as Congress recognized in 1934, a declaratory judgment will have a less intrusive effect on the administration of state criminal laws. As was observed in Perez v. Ledesma, 401 U.S., at 124—126, 91 S.Ct., at 696—697 (separate opinion of Brennan, J.):
27
'Of course, a favorable declaratory judgment may nevertheless be valuable to the plaintiff though it cannot make even an unconstitutional statute disappear. A state statute may be declared unconstitutional in toto—that is, incapable of having constitutional applications; or it may be declared unconstitutionally vague or overbroad—that is, incapable of being constitutionally applied to the full extent of its purport. In either case, a federal declaration of unconstitutionality reflects the opinion of the federal court that the statute cannot be fully enforced. If a declaration of total unconstitutionality is affirmed by this Court, it follows that this Court stands ready to reverse any conviction under the statute. If a declaration of partial unconstitutionality is affirmed by this Court, the implication is that this Court will overturn particular applications of the statute, but that if the statute is narrowly construed by the state courts it will not be incapable of constitutional applications. Accordingly, the declaration does not necessarily bar prosecutions under the statute, as a broad injunction would. Thus, where the highest court of a State has had an opportunity to give a statute regulating expression a narrowing or clarifying construction but has failed to do so, and later a federal court declares the statute unconstitutionally vague or overbroad, it may well be open to a state prosecutor, after the federal court decision, to bring a prosecution under the statute if he reasonably believes that the defendant's conduct is not constitutionally protected and that the state courts may give the statute a construction so as to yield a constitutionally valid conviction. Even where a declaration of unconstitutionality is not reviewed by this Court, the declaration may still be able to cut down the deterrent effect of an unconstitutional state statute. The persuasive force of the curt's opinion and judgment may lead state prosecutors, courts, and legislators to reconsider their respective responsibilities toward the statute. Enforcement policies or judicial construction may be changed, or the legislature may repeal the statute and start anew. Finally, the federal court judgment may have some res judicata effect, though this point is not free from difficulty and the governing rules remain to be developed with a view to the proper workings of a federal system. What is clear, however, is that even though a declaratory judgment has 'the force and effect of a final judgment,' 28 U.S.C. § 2201, it is a much milder form of relief than an injunction. Though it may be persuasive, it is not ultimately coercive; noncompliance with it may be inappropriate, but is not contempt.'19 (Footnote omitted.)
28
Second, engrafting upon the Declaratory Judgment Act a requirement that all of the traditional equitable prerequisites to the issuance of an injunction be satisfied before the issuance of a declaratory judgment is considered would defy Congress' intent to make declaratory relief available in cases where an injunction would be inappropriate.
29
'Were the law to be that a plaintiff could not obtain a declaratory judgment that a local ordinance was unconstitutional when no state prosecution is pending unless he could allege and prove circumstances justifying a federal injunction of an existing state prosecution, the Federal Declaratory Judgment Act would have been pro tanto repealed.' Wulp v. Corcoran, 454 F.2d 826, 832 (CA1 1972) (Coffin, J.).
30
See Perez v. Ledesma, 401 U.S., at 116, 91 S.Ct., at 692—693 (separate opinion of Brennan, J.).
31
Thus, the Court of Appeals was in error when it ruled that a failure to demonstrate irreparable injury—a traditional prerequisite to injunctive relief, having no equivalent in the law of declaratory judgments, see Aetna Life Ins. Co. v. Haworth, 300 U.S., 227, 241, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937); Nashville, C. & St. L.R. Co. v. Wallace, 288 U.S. 249, 264, 53 S.Ct. 345, 348—349, 77 L.Ed. 730 (1933) precluded the granting of declaratory relief.
32
The only occasions where this Court has disregarded these 'different considerations' and found that a preclusion of injunctive relief inevitably led to a denial of declaratory relief have been cases in which principles of federalism militated altogether against federal intervention in a class of adjudications. See Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407 (1943) (federal policy against interfering with the enforcement of state tax laws);20 Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971). In the instant case, principles of federalism not only do not preclude federal intervention, they compel it. Requiring the federal courts totally to step aside when no state criminal prosecution is pending against the federal plaintiff would turn federalism on its head. When federal claims are premised on 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3)—as they are here—we have not required exhaustion of state judicial or administrative remedies, recognizing the paramount role Congress has assigned to the federal courts to protect constitutional rights. See, e.g., McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). But exhaustion of state remedies is precisely what would be required if both federal injunctive and declaratory relief were unavailable in a case where no state prosecution had been commenced.
III
33
Respondents, however, relying principally upon our decision in Cameron v. Johnson, 390 U.S. 611, 88 S.Ct 1335, 20 L.Ed.2d 182 (1968), argue that, although it may be appropriate to issue a declaratory judgment when no state criminal proceeding is pending and the attack is upon the facial validity of a state criminal statute, such a step would be improper where, as here, the attack is merely upon the constitutionality of the statute as applied, since the State's interest in unencumbered enforcement of its laws outweighs the minimal federal interest in protecting the constitutional rights of only a single individual. We reject the argument.
34
In Cameron v. Johnson, the appellants sought a declaratory judgment that a Mississippi anti-picketing law was an overlybroad and vague regulation of protected expression and an injunction restraining pending prosecutions against them for violations of the statute. We agreed with the District Court that the statute was not overly broad or vague and that nothing in the record supported appellants' assertion that they were being prosecuted in bad faith. In that circumstance, we held that '(t)he mere possibility of erroneous application of the statute does not amount 'to the irreparable injury necessary to justify a disruption of orderly state proceedings.' . . . The issue of guilt or innocence is for the state court at the criminal trial; the State was not required to prove appellants guilty in the federal proceeding to escape the finding that the State had no expectation of securing valid convictions.' Id., at 621, 88 S.Ct., at 1341. Our holding in Cameron was thus that the state courts in which prosecutions were already pending would have to be given the first opportunity to correct any misapplication of the state criminal laws; Cameron is plainly not authority for the proposition that, in the absence of a pending state proceeding, a federal plaintiff may not seek a declaratory judgment that the state statute is being applied in violation of his constitutional rights.
35
Indeed, the Stat's concern with potential interference in the administration of its criminal laws is of lesser dimension when an attack is made upon the constitutionality of a state statute as applied. A declaratory judgment of a lower federal court that a state statute is invalid in toto—and therefore incapable of any valid application—or is overbroad or vague—and therefore no person can properly be convicted under the statute until it is given a narrowing or clarifying construction, see, e.g., United States v. Thirty-seven Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 1404 1405, 28 L.Ed.2d 822 (1971); Gooding v. Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972)—will likely have a more significant potential for disruption of state enforcement policies than a declaration specifying a limited number of impermissible applications of the statute. While the federal interest may be greater when a state statute is attacked on its face, since there exists the potential for eliminating any broadranging deterrent effect on would-be actors, see Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), we do not find this consideration controlling. The solitary individual who suffers a deprivation of his constitutional rights is no less deserving of redress than one who suffers together with others.21
36
We therefore hold that, regardless of whether injunctive relief may be appropriate, federal declaratory relief is not precluded when no state prosecution is pending and a federal plaintiff demonstrates a genuine threat of enforcement of a disputed state criminal statute, whether an attack is made on the constitutionality of the statute on its face or as applied.22 The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
37
It is so ordered.
38
Reversed and remanded.
39
Mr. Justice STEWART, with whom THE CHIEF JUSTICE joins, concurring.
40
While joining the opinion of the Court, I add a word by way of emphasis.
41
Our decision today must not be understood as authorizing the invocation of federal declaratory judgment jurisdiction by a person who thinks a state criminal law is unconstitutional, even if he genuinely feels 'chilled' in his freedom of action by the law's existence, and even if he honestly entertains the subjective belief that he may now or in the future be prosecuted under it.
42
As the Court stated in Younger v. Harris, 401 U.S. 37, 52, 91 S.Ct. 746, 754, 27 L.Ed.2d 669:
43
'The power and duty of the judiciary to declare laws unconstitutional is in the final analysis derived from its responsibility for resolving concrete disputes brought before the courts for decision . . ..'
44
See also Boyle v. Landry, 401 U.S. 77, 80—81, 91 S.Ct. 758, 759—760, 27 L.Ed.2d 696.
45
The petitioner in this case has succeeded in objectively showing that the threat of imminent arrest, corroborated by the actual arrest of his companion, has created an actual concrete controversy between himself and the agents of the State. He has, therefore, demonstrated 'a genuine threat of enforcement of a disputed state criminal statute . . ..'* Cases where such a 'genuine threat' can be demonstrated will, I think, be exceedingly rare.
46
Mr. Justice WHITE, concurring.
47
I offer the following few words in light of Mr. Justice REHNQUIST's concurrence in which he discusses the impact on a pending federal action of a later filed criminal prosecution against the federal plaintiff, whether a federal court may enjoin a state criminal prosecution under a statute the federal court has earlier declared unconstitutional at the suit of the defendant now being prosecuted, and the question whether that declaratory judgment is res judicata in such a later filed state criminal action.
48
It should be noted, first, that his views on these issues are neither expressly nor impliedly embraced by the Court's opinion filed today. Second, my own tentative views on these questions are somewhat contrary to my Brother's.
49
At this writing at least, I would anticipate that a final declaratory judgment entered by a federal court holding particular conduct of the federal plaintiff to be immune on federal constitutional grounds from prosecution under state law should be accorded res judicata effect in any later prosecution of that very conduct. There would also, I think, be additional circumstances in which the federal judgment should be considered as more than a mere precedent bearing on the issue before the state court.
50
Neither can I at this stage agree that the federal court, having rendered a declaratory judgment in favor of the plaintiff, could not enjoin a later state prosecution for conduct that the federal court has declared immune. The Declaratory Judgment Act itself provides that a 'declaration shall have the force and effect of a final judgment or decree,' 28 U.S.C. § 2201; eminent authority anticipated that declaratory judgments would be res judicata. E. Borchard, Declaratory Judgments 10—11 (2d ed. 1941); and there is every reason for not reducing declaratory judgments to mere advisory opinions. Toucey v. New York Life Insurance Co., 314 U.S. 118, 62 S.Ct. 139, 86 L.Ed. 100 (1941), once expressed the view that 28 U.S.C. § 2283 forbade injunctions against relitigation in state courts of federally decided issues, but the section was then amended to overrule that case, the consequence being that '(i)t is clear that the Toucey rule is gone, and that to protect or effectuate its judgment a federal court may enjoin relitigation in the state court.' C. Wright, Federal Courts 180 (2d ed. 1970). I see no more reason here to hold that the federal plaintiff must always rely solely on his plea of res judicata in the state courts. The statute provides for '(f)urther necessary or proper relief . . . against any adverse party whose rights have been determined by such judgment,' 28 U.S.C. § 2202, and it would not seem improper to enjoin local prosecutors who refuse to observe adverse federal judgments.
51
Finally, I would think that a federal suit challenging a state criminal statute on federal constitutional grounds could be sufficiently far along so that ordinary consideration of economy would warrant refusal to dismiss the federal case solely because a state prosecution has subsequently been filed and the federal question may be litigated there.
52
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE joins, concurring.
53
I concur in the opinion of the Court. Although my reading of the legislative history of the Declaratory Judgment Act of 1934 suggests that its primary purpose was to enable persons to obtain a definition of their rights before an actual injury had occurred, rather than to palliate any controversy arising from Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), Congress apparently was aware at the time it passed the Act that persons threatened with state criminal prosecutions might choose to forgo the offending conduct and instead seek a federal declaration of their rights. Use of the declaratory judgment procedure in the circumstances presented by this case seems consistent with that congressional expectation.
54
If this case were the Court's first opportunity to deal with this area of law, I would be content to let the matter rest there. But, as our cases abundantly illustrate, this area of law is in constant litigation, and it is an area through which our decisions have traced a path that may accurately be described as sinuous. Attempting to accommodate the principles of the new declaratory judgment procedure with other more established principles—in particular a proper regard for the relationship between the independent state and federal judiciary systems—this Court has acted both to advance and to limit the Act. Compare Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617 (1937), and Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967), with Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407 (1943), and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971). Because the opinion today may possibly be read by resourceful counsel as commencing a new and less restrictive curve in this path of adjudication, I feel it is important to emphasize what the opinion does and does not say.
55
To begin with, it seems appropriate to restate the obvious: the Court's decision today deals only with declaratory relief and with threatened prosecutions. The case provides no authority for the granting of any injunctive relief nor does it provide authority for the granting of any relief at all when prosecutions are pending. The Court quite properly leaves for another day whether the granting of a declaratory judgment by a federal court will have any subsequent res judicata effect or will perhaps support the issuance of a later federal injunction. But since possible resolutions of those issues would substantially undercut the principles of federalism reaffirmed in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and preserved by the decision today, I feel it appropriate to add a few remarks.
56
First, the legislative history of the Declaratory Judgment Act and the Court's opinion in this case both recognize that the declaratory judgment procedure is an alternative to pursuit of the arguably illegal activity.1 There is nothing in the Act's history to suggest that Congress intended to provide persons wishing to violate state laws with a federal shield behind which they could carry on their contemplated conduct. Thus I do not believe that a federal plaintiff in a declaratory judgment action can avoid, by the mere filing of a complaint, the principles so firmly expressed in Samuels, supra. The plaintiff who continues to violate a state statute after the filing of his federal complaint does so both at the risk of state prosecution and at the risk of dismissal of his federal lawsuit. For any arrest prior to resolution of the federal action would constitute a pending prosecution and bar declaratory relief under the principles of Samuels.
57
Second, I do not believe that today's decision can properly be raised to support the issuance of a federal injunction based upon a favorable declaratory judgment.2 The Court's description of declaratory relief as "a milder alternative to the injunction remedy," ante, at 467, having a 'less intrusive effect on the administration of state criminal laws' than an injunction, ante, at 469, indicates to me critical distinctions which make declaratory relief appropriate where injunctive relief would not be. It would all but totally obscure these important distinctions if a successful application for declaratory relief came to be regarded, not as the conclusion of a lawsuit, but as a giant step toward obtaining an injunction against a subsequent criminal prosecution. The availability of injunctive relief must be considered with an eye toward the important policies of federalism which this Court has often recognized.
58
If the rationale of cases such as Younger and Samuels turned in any way upon the relative ease with which a federal district court could reach a conclusion about the constitutionality of a challenged state statute, a preexisting judgment declaring the statute unconstitutional as applied to a particular plaintiff would, of course, be a factor favoring the issuance of an injunction as 'further relief' under the Declaratory Judgment Act. But, except for statutes that are "flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph . . .," Younger v. Harris, supra, at 53, 91 S.Ct., at 755, the rationale of those cases has no such basis. Their direction that federal courts not interfere with state prosecutions does not vary depending on the closeness of the constitutional issue or on the degree of confidence which the federal court possesses in the correctness of its conclusions on the constitutional point. Those decisions instead depend upon considerations relevant to the harmonious operation of separate federal and state court systems, with a special regard for the State's interest in enforcing its own criminal laws, considerations which are as relevant in guiding the action of a federal court which has previously issued a declaratory judgment as they are in guiding the action of one which has not. While the result may be that injunctive relief is not available as 'further relief' under the Declaratory Judgment Act in this particular class of cases whereas it would be in similar cases not involving considerations of federalism, this would be no more a pro tanto repeal of that provision of the Declaratory Judgment Act than was Younger a pro tanto repeal of the All Writs Act, 28 U.S.C. § 1651.
59
A declaratory judgment is simply a statement of rights, not a binding order supplemented by continuing sanctions. State authorities may choose to be guided by the judgment of a lower federal court, but they are not compelled to follow the decision by threat of contempt or other penalties. If the federal plaintiff pursues the conduct for which he was previously threatened with arrest and is in fact arrested, he may not return the controversy to federal court, although he may, of course, raise the federal declaratory judgment in the state court for whatever value it may prove to have.3 In any event, the defendant at that point is able to present his case for full consideration by a state court charged, as are the federal courts, to preserve the defendant's constitutional rights. Federal interference with this process would involve previsely the same concerns discussed in Younger and recited in the Court's opinion in this case.4
60
Third, attempts to circumvent Younger by claiming that enforcement of a statute declared unconstitutional by a federal court is per se evidence of bad faith should not find support in the Court's decision in this case. As the Court notes, quoting my Brother Brennan's separate opinion in Perez v. Ledesma, 401 U.S. 82, 125, 91 S.Ct. 674, 697, 27 L.Ed. 701:
61
'The persuasive force of the (federal) court's opinion and judgment may lead state prosecutors, courts, and legislators to reconsider their respective responsibilities toward the statute. Enforcement policies or judicial construction may be changed, or the legislature may repeal the statute and start anew.' (Emphasis added.)
62
This language clearly recognizes that continued belief in the constitutionality of the statute by state prosecutorial officials would not commonly be indicative of bad faith and that such allegations, in the absence of highly unusual circumstances, would not justify a federal court's departure from the general principles of restraint discussed in Younger.
63
If the declaratory judgment remains, as I think the Declaratory Judgment Act intended, a simple declaration of rights without more, it will not be used merely as a dramatic tactical maneuver on the part of any state defendant seeking extended delays. Not will it force state officials to try cases time after time, first in the federal courts and then in the state courts. I do not believe Congress desired such unnecessary, results, and I do not think that today's decision should be read to sanction them. Rather the Act, and the decision, stand for the sensible proposition that both a potential state defendant, threatened with prsecution but not charged, and the State itself, confronted by a possible violation of its criminal laws, may benefit from a procedure which provides for a declaration of rights without activation of the criminal process. If the federal court finds that the threatened prosecution would depend upon a statute it judges unconstitutional, the State may decide to forgo prosecution of similar conduct in the future, believing the judgment persuasive. Should the state prosecutors not find the decision persuasive enough to justify forbearance, the successful federal plaintiff will at least be able to bolster his allegations of unconstitutionality in the state trial with a decision of the federal district court in the immediate locality. The state courts may find the reasoning convincing even though the prosecutors did not. Finally, of course, the state legislature may decide, on the basis of the federal decision, that the statute would be better amended or repealed. All these possible avenues of relief would be reached voluntarily by the States and would be completely consistent with the concepts of federalism discussed above. Other more intrusive forms of relief should not be routinely available.
64
These considerations should prove highly significant in reaching future decisions based upon the decision rendered today. For the present it is enough to say, as the Court does, that petitioner, if he successfully establishes the existence of a continuing controversy on remand, may maintain an action for a declaratory judgment in the District Court.
1
This statute provides:
'(a) A person commits criminal trespass when he intentionally damages any property of another without his consent and the damage thereto is $100 or less, or knowingly and maliciously interferes with the possession or use of the property of another person without his consent.
'(b) A person commits criminal trespass when he knowingly and without authority:
'(1) Enters upon the land or premises of another person, or into any part of any vehicle, railroad car, aircraft, or watercraft of another person, for an unlawful purpose; or
'(2) Enters upon the land or premises of another person, or into any part of any vehicle, railroad car, aircraft, or watercraft of another person, after receiving, prior to such entry, notice from the owner or rightful occupant that such entry is forbidden; or
'(3) Remains upon the land or premises of another person, or within the vehicle, railroad car, aircraft, or watercraft of another person, after receiving notice from the owner or rightful occupant to depart.
'(c) A person convicted of criminal trespass shall be punished as for a misdemeanor.'
2
At a hearing in the District Court, petitioner testified that on another occasion, prior to June 1970, he had also been threatened with arrest for handbilling at the shopping center. At that time, the police had shown him the statute they intended to enforce, presumably § 26—1503. R. 140—141.
3
We were advised at oral argument that the trial of petitioner's companion, Sandra Lee Becker, has been stayed pending decision of this case. See Tr. of Oral Arg. 31.
4
At the District Court hearing, counsel for the police officers indicated that arrests in fact would be made if warrants sworn out by shopping center personnel were facially proper. R. 134.
5
The complaint was initially styled as a class action. Named as plaintiffs were petitioner, a minor suing through his father; Sandra Lee Becker, petitioner's handbilling companion against whom a prosecution was pending under the Georgia statute, see n. 3, supra, also a minor suing through her father; and the Atlanta Mobilization Committee. The complaint had also sought to enjoin plaintiff Becker's pending prosecution. Only petitioner appealed from the District Court's decision denying all relief.
6
Petitioner's notice of appeal challenged the denial of both injunctive and declaratory relief. However, in his appellate brief, he abandoned his appeal from denial of injunctive relief. Becker v. Thompson, 459 F.2d 919, 921 (CA5 1972).
7
Since the complaint had originally sought to enjoin enforcement of the state statute on grounds of unconstitutionality, a three-judge district court should have been convened. See 28 U.S.C. § 2281; Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973); Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 1296, 8 L.Ed.2d 794 (1962). A three-judge court is required even if the constitutional attack—as here—is upon the statute as applied, see Department of Employment v. United States, 385 U.S. 355, 87 S.Ct. 464, 17 L.Ed.2d 414 (1966); Query v. United States, 316 U.S. 486, 62 S.Ct. 1122, 86 L.Ed. 1616 (1942); Ex parte Bransford, 310 U.S. 354, 361, 60 S.Ct. 947, 951, 84 L.Ed. 1249 (1940); see generally Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1, 37—50 (1964); and is normally required even if the decision is to dismiss under Younger-Samuels principles, since an exercise of discretion will usually be necessary, see Jones v. Wade, 479 F.2d 1176, 1180 (CA5 1973); Abele v. Markle, 452 F.2d 1121, 1125 (CA2 1971); see generally Note, The Three-Judge District Court: Scope and Procedure Under Section 2281, 77 Harv.L.Rev. 299, 309 (1963). But since petitioner's request for injunctive relief was abandoned on appeal, see n. 6, supra, and only a request for declaratory relief remained, the Court of Appeals did not err in exercising jurisdiction over the appeal. Cf. Roe v. Wade, 410 U.S. 113, 123, 93 S.Ct. 705, 711—712, 35 L.Ed.2d 147 (1973); Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 1763, 26 L.Ed.2d 378 (1970); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 152—155, 83 S.Ct. 554, 559—561, 9 L.Ed.2d 644 (1963); Stratton v. St. Louis S.W.R. Co., 282 U.S. 10, 16, 51 S.Ct. 8, 10, 75 L.Ed. 135 (1930).
8
Other federal courts have entertained applications for injunctive and declaratory relief in the absence of a pending state prosecution. See, eG., Thomas v. Heffernan, 473 F.2d 478 (CA2 1973), aff'g 334 F.Supp. 1203 (D.C.Conn.1971) (three-judge court); Wulp v. Corcoran, 454 F.2d 826 (CA1 1972); Crossen v. Breckenridge, 446 F.2d 833 (CB6 1971); Lewis v. Kugler, 446 F.2d 1343 (CA3 1971); Anderson v. Vaughn, 327 F.Supp. 101 (D.C.Conn.1971) (three-judge court). Even the Court of Appeals for the Fifth Circuit has limited the scope of the instant decision by entertaining an action for declaratory and injunctive relief in the absence of a state prosecution when the federal suit attacked the facial validity of a state statute rather than the validity of the statute as applied. See Jones v. Wade, supra (Wisdom, J.).
9
Section 2201 provides:
'In a case of actual controversy within its jurisdiction, except with respect to Federal taxes, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.'
Section 2202 further provides:
'Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment.'
10
The rule in federal cases is that an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed. See, e.g., Roe v. Wade, 410 U.S., at 125, 93 S.Ct., at 713; SEC v. Medical Comm. for Human Rights, 404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972); United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950).
11
The Court noted that under 28 U.S.C. § 2202 a declaratory judgment might serve as the basis for issuance of a later injunction to give effect to the declaratory judgment, see n. 9, supra, and that a declaratory judgment might have a res judicate effect on the pending state proceeding. 401 U.S., at 72, 91 S.Ct., at 767—768.
12
We note that, in those cases where injunctive relief has been sought to restrain an imminent, but not yet pending, prosecution for past conduct, sufficient injury has not been found to warrant injunctive relief, see Beal v. Missouri Pacific R. Co., 312 U.S. 45, 61 S.Ct. 418, 85 L.Ed. 577 (1941); Spielman Motor Sales Co. v. Dodge, 295 U.S. 89, 55 S.Ct. 678, 79 L.Ed. 1322 (1935); Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927 (1926). There is some question, however, whether a showing of irreparable injury might be made in a case where, although no prosecution is pending or impending, an individual demonstrates that he will be required to forgo constitutionally protected activity in order to avoid arrest. Compare Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Hygrade Provision Co., Inc. v. Sherman, 266 U.S. 497, 45 S.Ct. 141, 69 L.Ed. 402 (1925); and Terrace v. Thompson, 263 U.S. 197, 214, 216, 44 S.Ct. 15, 18, 68 L.Ed. 255 (1923), with Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943); see generally Note, Implications of the Younger Cases for the Availability of Federal Equitable Relief When No State Prosecution is Pending, 72 Col.L.Rev. 874 (1972).
13
'Sensitiveness to 'states' rights', fear of rivalry with state courts and respect for state sentiment, were swept aside by the great impulse of national feeling born of the Civil War. Nationalism was triumphant; in national administration was sought its vindication. The new exertions of federal power were no longer trusted to the enforcement of state agencies.' F. Frankfurter & J. Landis, The Business of the Supreme Court 64 (1928).
14
In the last days of the John Adams administration, general federal-question jurisdiction had been granted to the federal courts by § 11 of the Midnight Judges Act, 2 Stat. 92 (1801). The Act was repealed only one year later by § 1 of the Act of Mar. 8, 1802, 2 Stat. 132.
15
The histories of the Civil Rights Act of 1871 and the Judiciary Act of 1875 are detailed in Zwickler v. Koota, 389 U.S. 241, 245—247, 88 S.Ct. 391, 393—395, 19 L.Ed.2d 444 (1967).
16
The three-judge-court procedure, with expedited review, was modeled after the Expediting Act, 32 Stat. 823, now 15 U.S.C. §§ 28—29; 49 U.S.C. §§ 44—45, requiring that for certain antitrust cases certified by the Attorney General to be of particular public importance a three-judge court be convened with direct appeal to the Supreme Court, as well as a 1906 Act, 34 Stat. 584, 592, applying the same procedure to suits brought to restrain, annul, or set aside orders of the Interstate Commerce Commission. See Hutcheson, A Case for Three Judges, 47 Harv.L.Rev. 795, 810 (1934).
17
The three-judge-court provision was amended in 1913 to apply also to interlocutory injunctions restraining enforcement of state administrative or commission orders. C. 160, 37 Stat. 1013. It was further amended in 1925 to extend the three-judge requirement and the direct-appeal provisions to the final hearing on a permanent injunction, thereby ending the anomalous situation in which a single judge, at the final hearing, could overrule the decision of three judges granting an interlocutory injunction. 43 Stat. 936, 938. When the statute was codified in 1948, it was made applicable to all actions seeking either a preliminary or permanent injunction, Goldstein v. Cox, 396 U.S. 471, 478 n. 3, 90 S.Ct. 671, 675, 24 L.Ed.2d 663 (1970). See generally H. Hart & H. Wechsler, The Federal Courts and the Federal System 967—968 (2d ed. 1973); C. Wright, Federal Courts § 50, pp. 188—189 (2d ed. 1970).
18
As Professor Borchard, a principal proponent and author of the Federal Declaratory Judgment Act, said in a written statement introduced at the hearings on the Act:
'It often happens that courts are unwilling to grant injunctions to restrain the enforcement of penal statutes or ordinances, and relegate the plaintiff to his option, either to violate the statute and take his chances in testing constitutionality on a criminal prosecution, or else to (forgo), in the fear of prosecution, the exercise of his claimed rights. Into this dilemma no civilized legal system operating under a constitution should force any person. The court, in effect, by refusing an injunction informs the prospective victim that the only way to determine whether the suspect is a mushroom or a toadstool, is to eat it. Assuming that the plaintiff has a vital interest in the enforcement of the challenged statute or ordinance, there is no reason why a declaratory judgment should not be issued, instead of compelling a violationof the statute as a condition precedent to challenging its constitutionality.' Hearings on H.R. 5623 before a Subcommittee of the Senate Committee on the Judiciary, 70th Cong., 1st Sess., 75—76 (1928). See E. Borchard, Declaratory Judgments x-xi (2d ed. 1941).
19
The pending prosecution of petitioner's handbilling companion does not affect petitioner's action for declaratory relief. In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), while the pending prosecution of Dr. Hallford under the Texas
20
In Great Lakes Co. v. Huffman, employers sought a declaration that a state unemployment compensation scheme imposing a tax upon them was unconstitutional as applied. Although not relying on the precise terms of 28 U.S.C. § 41(1) (1940 ed.), now 28 U.S.C. § 1341, which ousts the district courts of jurisdiction to 'enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State,' the Court, recognizing the unique effects of anticipatory adjudication on tax administration, held that declaratory relief should be withheld when the taxpayer was provided an opportunity to maintain a refund suit after payment of the disputed tax. 'In contrast, there is no statutory counterpart of 28 U.S.C. § 1341 applicable to intervention in state criminal prosecutions.' Perez v. Ledesma, 401 U.S. 82, 128, 91 S.Ct. 674, 699, 27 L.Ed.2d 701 (1971) (separate opinion of Brennan, J.).
21
Abstention, a question 'entirely separate from the question of granting declaratory or injunctive relief,' Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 509 n. 13, 92 S.Ct. 1749, 1756, 32 L.Ed.2d 257 (1972), might be more appropriate when a challenge is made to the state statute as applied, rather than upon its face, since the reach of an uncertain state statute might, in that circumstance, be more susceptible of a limiting or clarifying construction that would avoid the federal constitutional question. Cf. Zwickler v. Koota, 389 U.S., at 249 252, 254, 88 S.Ct., at 396—398, 399; Baggett v. Bullitt, 377 U.S. 360, 375—378, 84 S.Ct. 1316, 1324—1326, 12 L.Ed.2d 377 (1964).
22
Some two years after petitioner attempted to handbill at the shopping center, respondent Hudgens, the owner of the center, commenced an action in the Superior Court of Fulton County seeking a declaration of his rights concerning the center's rules against handbilling and related activities. We were advised at oral argument that the state action had been dismissed by the trial court but that an appeal is pending before the Georgia Supreme Court. Since we do not require petitioner first to seek vindication of his federal rights in a state declaratory judgment action, see Lake Carriers' Assn. v. MacMullan, supra, 406 U.S., at 510, 92 S.Ct., at 1757; Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), consideration of abstention by the District Court would be inappropriate unless the action commenced by respondent Hudgens could be shown to present a substantial and immediate possibility of obviating petitioner's federal claim by a decision on state law grounds. Cf. Askew v. Hargrave, 401 U.S. 476, 478, 91 S.Ct. 856, 857—858, 28 L.Ed.2d 196 (1971); Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970).
*
See Ante, at 475. Whether, in view of 'recent developments,' the controversy is a continuing one, will be for the District Court to determine on remand. See ante, at 460.
1
The report accompanying the Senate version of the bill stated:
'The procedure has been especially useful in avoiding the necessity, now so often present, of having to act at one's peril or to act on one's own interpretation of his rights, or abandon one's rights because of a fear of incurring damages. So now it is often necessary, in the absence of the declaratory judgment procedure, to violate or purport to violate a statute in order to obtain a judicial determination of its meaning or validity. . . . Persons now often have to act at their peril, a danger which could be frequently avoided by the ability to sue for a declaratory judgment as to their rights or duties.' S.Rep.No.1005, 73d Cong., 2d Sess., 2—3 (1934).
Petitioner in this case, of course, did cease his handbilling activities after the warning of arrest.
2
In Samuels v. Mackell, 401 U.S. 66, 72, 91 S.Ct. 764, 768, 27 L.Ed.2d 688 (1971), the Court expressed concern that a declaratory judgment issued while a state prosecution was pending 'might serve as the basis for a subsequent injunction against those proceedings . . ..'
The Court recognized that this chain of litigation would 'result in a clearly improper interference with the state proceedings.' Ibid. As discussed, infra, I believe that such improper interference would be present even though the declaratory judgment itself were issued prior to the time of the federal plaintiff's arrest.
3
The Court's opinion notes that the possible res judicata effect of a federal declaratory judgment in a subsequent state court prosecution is a question 'not free from difficulty." Ante, at 470. I express no opinion on that issue here. However, I do note that the federal decision would not be accorded the stare decisis effect in state court that it would have in a subsequent proceeding within the same federal jurisdiction. Although the state court would not be compelled to follow the federal holding, the opinion might, of course, be viewed as highly persuasive.
4
The Court's opinion says:
'Sensitive to principles of equity, comity, and federalism, we recognized in Younger v. Harris (401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971),) that federal courts should ordinarily refrain from enjoining ongoing state criminal prosecutions. We were cognizant that a pending state proceeding, in all but unusual cases, would provide the federal plaintiff with the necessary vehicle for vindicating his constitutional rights, and, in that circumstance, the restraining of an ongoing prosecution would entail an unseemly failure to give effect to the principle that state courts have the solemn responsibility, equally with the federal courts 'to guard, enforce, and protect every right granted or secured by the constitution of the United States . . ..' Robb v. Connolly, 111 U.S. 624, 637, 4 S.Ct. 544, 551, 28 L.Ed. 542 (1884).' Ante, at 460—461.
| 89
|
39 L.Ed.2d 530
94 S.Ct. 1186
415 U.S. 486
UNITED STATES, Appellant,v.GENERAL DYNAMICS CORPORATION et al.
No. 72—402.
Argued Dec. 5, 1973.
Decided March 19, 1974.
Syllabus
Material Service Corp., a deep-mining coal producer, and its successor, appellee General Dynamics Corp., acquired, through stock purchases, control of appellee United Electric Coal Companies, a strip-mining coal producer. The Government brought suit alleging that this acquisition violated § 7 of the Clayton Act. The District Court found no violation on the ground, inter alia, that the Government's evidence—consisting principally of past production statistics showing that within certain geographic markets the coal industry was concentrated among a small number of large producers, that this concentration was increasing, and that the acquisition here would materially enlarge the acquiring company's market share and thereby contribute to the concentration trend—did not support the Government's contention that the acquisition substantially lessened competition in the production and sale of coal in either or both of two specified geographic markets. This conclusion was primarily based on a determination that United Electric's coal reserves were so low that its potential to compete with other producers in the future was far weaker than the aggreatte was far weaker than the aggregate Government might otherwise have indicated, virtually all of United Electric's proved reserves being either depleted or already committed by long-term contracts with large customers so that its power to affect the price of coal was severely limited and steadily diminishing. Held:
1. While the Government's statistical showing might have been sufficient to support a finding of 'undue concentration' in the absence of other considerations, the District Court was justified in finding that other pertinent factors affecting the coal industry and appellees' business mandated a conclusion that no substantial lessening of competition occurred or was threatened by the acquisition. Ample evidence showed that United Electric does not have sufficient reserves, which are a key factor in measuring a coal producer's market strength, to make it a significant competitive force. Thus, in terms of probable future ability to compete, rather than in terms of past production on which the Government relied, the court was warranted in concluding that the merger did not violate § 7 of the Act. Pp. 494—504.
2. The District Court was justified in considering postacquisition evidence relating to changes in the patterns and structure of the coal industry and in United Electric's reserve situation, since (unlike evidence showing only that no lessening of competition has yet occurred) the demonstration of weak coal resources necessarily implied that United Electric was not merely disinclined but unable to compete effectively for future contracts, such evidence going directly to the question whether future lessening of competition was probable. Pp. 504—506.
3. United Electric's weak reserves position, rather than establishing a 'failing company' defense by showing that the company would have gone out of business but for the merger, went to the heart of the Government's statistical prima facie case and substantiated the District Court's conclusion that United Electric, even if it remained in the market, did not have sufficient reserves to compete effectively for long-term contracts, and therefore appellees' failure to meet the prerequisites of a failing-company defense did not detract from the validity of the District Court's analysis. Pp. 506—508.
4. Under the 'clearly erroneous' standard of Fed.Rule Civ.Proc. 52(a), which governs as fully on direct appeal to this Court as on review by a court of appeals, the District Court's findings and conclusions are supported by the evidence and are not clearly erroneous. P. 508.
5. The District Court found new strip reserves unavailable, and the mere possibility that United Electric could some day acquire expertise to mine deep reserves does not depreciate the validity of the conclusion that United Electric at the time of trial did not have the power to compete effectively for long-term contracts, nor does it give the production statistics relied on by the Government more significance than the District Court ascribed to them. Pp. 508—510.
D.C., 341 F.Supp. 534, affirmed.
Daniel M. Friedman, Washington, D.C., for appellant.
Reuben L. Hedlund, Chicago, Ill., for appellees.
Mr. Justice STEWART delivered the opinion of the Court.
1
On September 22, 1967, the Government commenced this suit in the United States District Court for the Northern District of Illinois, challenging as violative of § 7 of the Clayton Act, 38 Stat. 731, as amended, 15 U.S.C. § 18, the acquisition of the stock of United Electric Coal Companies by Material Service Corp. and its successor, General Dynamics Corp. After lengthy discovery proceedings, a trial was held from March 30 to April 22, 1970, and on April 13, 1972, the District Court issued an opinion and judgment finding no violation of the Clayton Act. 341 F.Supp. 534. The Government appealed directly to this Court pursuant to the Expediting Act, 15 U.S.C. § 29, and we noted probable jurisdiction. 409 U.S. 1058, 93 S.Ct. 553, 34 L.Ed.2d 510.
2
* At the time of the acquisition involved here, Material Service Corp. was a large midwest producer and supplier of building materials, concrete, limestone, and coal. All of its coal production was from deep-shaft mines operated by it or its affiliate, appellee Freeman Coal Mining Corp., and production from these operations amounted to 6.9 million tons of coal in 1959 and 8.4 million tons in 1967. In 1954, Material Service began to acquire the stock of United Electric Coal Companies. United Electric at all relevant times operated only strip or open-pit mines in Illinois and Kentucky; at the time of trial in 1970 a number of its mines had closed and its operations had been reduced to four mines in Illinois and none in Kentucky.1 In 1959, it produced 3.6 million tons of coal, and by 1967, it had increased this output to 5.7 million tons. Material Service's purchase of United Electric stock continued until 1959. At this point Material's holdings amounted to more than 34% of United Electric's outstanding shares and—all parties are now agreed on this point—Material had effective control of United Electric. The president of Freeman was elected chairman of United Electric's executive committee, and other changes in the corporate structure of United Electric were made at the behest of Material Service.
3
Some months after this takeover, Material Service was itself acquired by the appellee General Dynamics Corp. General Dynamics is a large diversified corporation, much of its revenues coming from sales of aircraft, communications, and marine products to Government agencies. The trial court found that its purchase of Material Service was part of a broad diversification program aimed at expanding General Dynamics into commercial, nondefense business. As a result of the purchase of Material Service, and through it, of Freeman and United Electric, General Dynamics became the Nation's fifth largest commercial coal producer. During the early 1960's General Dynamics increased its equity in United Electric by direct purchases of United Electric stock, and by 1966 it held or controlled 66.15% of United Electric's outstanding shares. In September 1966 the board of directors of General Dynamics authorized a tender offer to holders of the remaining United Electric stock. This offer was successful, and United Electric shortly thereafter became a wholly owned subsidiary of General Dynamics.
4
The thrust of the Government's complaint was that the acquisition of United Electric by Material Service in 1959 violated § 7 of the Clayton Act2 because the takeover substantially lessened competition in the production and sale of coal in either or both of two geographic markets. It contended that a relevant 'section of the country' within the meaning of § 7 was, alternatively, the State of Illinois or the Eastern Interior Coal Province Sales Area, the latter being one of four major coal distribution areas recognized by the coal industry and comprising Illinois and Indiana, and parts of Kentucky, Tennessee, Iowa, Minnesota, Wisconsin, and Missouri.3
5
At trial controversy focused on three basic issues: the propriety of coal as a 'line of commerce,' the definition of Illinois or the Eastern Interior Coal Province Sales Area as a relevant 'section of the country,' and the probability of a lessening of competition within these or any other product and geographic markets resulting from the acquisition. The District Court decided against the Government on each of these issues.
6
As to the relevant product market, the court found that coal faced strong and direct competition from other sources of energy such as oil, natural gas, nuclear energy, and geothermal power which created a cross-elasticity of demand among those various fuels. As a result, it concluded that coal, by itself, was not a permissible product market and that the 'energy market' was the sole 'line of commerce' in which anticompetitive effects could properly be canvassed.
7
Similarly, the District Court rejected the Government's proposed geographic markets on the ground that they were 'based essentially on past and present production statistics and do not relate to actual coal consumption patterns.' 341 F.Supp., at 556. The court found that a realistic geographic market should be defined in terms of transportation arteries and freight charges that determine the cost of delivered coal to purchasers and thus the competitive position of various coal producers. In particular, it found that freight rate districts, designated by the Interstate Commerce Commission for determining rail transportation rates, of which there were four in the area served by the appellee companies, were the prime determinants for the geographic competitive patterns among coal producers. In addition, the court concluded that two large and specialized coal consumption units were sufficiently differentiable in their coal use patterns to be included as relevant geographic areas.4 In lieu of the State of Illinois or the Eastern Interior Coal Province Sales Area, the court accordingly found the relevant geographic market to be 10 smaller areas, comprising the two unique consumers together with four utility sales areas and four nonutility sales areas based on the ICC freight rate districts.
8
Finally, and for purposes of this appeal most significantly, the District Court found that the evidence did not support the Government's contention that the 1959 acquisition of United Electric substantially lessened competition in any product or geographic market. This conclusion was based on four determinations made in the court's opinion, id., at 558—559. First, the court noted that while the number of coal producers in the Eastern Interior Coal Province declined from 144 to 39 during the period of 1957—1967, this reduction 'occurred not because small producers have been acquired by others, but as the inevitable result of the change in the nature of demand for coal.' Consequently, the court found, 'this litigation presents a very different situation from that in such cases as United States v. Philadelphia National Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963), and United States v. Von's Grocery Co., 384 U.S. 270, 86 S.Ct. 1478, 16 L.Ed.2d 555 (1966) where the Supreme Court was concerned with 'preventing even slight increases in concentration.' 374 U.S., at 365, n. 2, 83 S.Ct., at 1742.' 341 F.Supp., at 558. Second, the court noted that United Electric and Freeman were 'predominantly complementary in nature' since 'United Electric is a strip mining company with no experience in deep mining nor likelihood of acquiring it (and) Freeman is a deep mining company with no experience or expertise in strip mining.' Ibid. Third, the court found that if Commonwealth Edison, a large investor-owned public utility, were excluded, 'none of the sales by United Electric in the period 1965 to 1967, the years chosen by the Government for analysis, would have or could have been competitive with Freeman, had the two companies been independent,' because of relative distances from potential consumers and the resultant impact on relative competitive position. Ibid. Finally, the court found that United Electric's coal reserves were so low that its potential to compete with other coal producers in the future was far weaker than the aggregate production statistics relied on by the Government might otherwise have indicated. In particular, the court found that virtually all of United Electric's proved coal reserves were either depleted or already committed by longterm contracts with large customers, and that United Electric's power to affect the price of coal was thus severely limited and steadily diminishing. On the basis of these considerations, the court concluded: 'Under these circumstances, continuation of the affiliation between United Electric and Freeman is not adverse to competition, nor would divestiture benefit competition even were this court to accept the Government's unrealistic produce and geographic market definitions.' Id., at 560.
II
9
The Government sought to prove a violation of § 7 of the Clayton Act principally through statistics showing that within certain geographic markets the coal industry was concentrated among a small number of large producers; that this concentration was increasing; and that the acquisition of United Electric would materially enlarge the market share of the acquiring company and thereby contribute to the trend toward concentration.
10
The concentration of the coal market in Illinois and, alternatively, in the Eastern Interior Coal Province was demonstrated by a table of the shares of the largest two, four, and 10 coal-producing firms in each of these areas for both 1957 and 1967 that revealed the following:5
11
Eastern Interior
Coal Province Illinois
1957 1967 1957 1967
Top 2 firms .... 29.6 48.6 37.8 52.9
Top 4 firms .... 43.0 62.9 54.5 75.2
Top 10 firms ... 65.5 91.4 84.0 98.0
12
These statistics, the Government argued, showed not only that the coal industry was concentrated among a small number of leading producers, but that the trend had been toward increasing concentration.6 Furthermore, the undisputedfact that the number of coal-producing firms in Illinois decreased almost 73% during the period of 1957 to 1967 from 144 to 39 was claimed to be indicative of the same trend. The acquisition of United Electric by Material Service resulted in increased concentration of coal sales among the leading producers in the areas chosen by the Government, as shown by the following table:7
13
in the Illinois and Eastern Interior Coal Province coal markets by significant degrees:8
14
Province Illinois
Share Share
Rank (percent) Rank (percent)
1959
Freeman 2 7.6 2 15.1
United Electric 6 4.8 5 8.1
Combined 2 12.4 1 23.2
1967
Freeman 5 6.5 2 12.9
United Electric 9 4.4 6 8.9
Combined 2 10.9 2 21.8
15
In prior decisions involving horizontal mergers between competitors, this Court has found prima facie violations of § 7 of the Clayton Act from aggregate statistics of the sort relied on by the United States in this case. In Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 the Court reviewed the legislative history of the most recent amendments to the Act and found that '(t)he dominant theme pervading congressional consideration of the 1950 amendments was a fear of what was considered to be a rising tide of economic concentration in the American economy.' Id., at 315, 82 S.Ct., at 1518. A year later, in United States v. Philadelphia National Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915 the Court clarified the relevance of a statistical demonstration of concentration in a particular industry and of the effects thereupon of a merger or acquisition with the following language:
16
'This intense congressional concern with the trend toward concentration warrants dispensing, in certain cases, with elaborate proof of market structure, market behavior, or probable anticompetitive effects. Specifically, we think that a merger which produces a firm controlling an undue percentage share of the relevant market, and results in a significant increase in the concentration of firms in that market, is so inherently likely to lessen competition substantially that it must be enjoined in the absence of evidence clearly showing that the merger is not likely to have such anticompetitive effects.' Id., at 363, 83 S.Ct., at 1741.
17
See also United States v. Continental Can Co., 378 U.S. 441, 458, 84 S.Ct. 1738, 1747, 12 L.Ed.2d 953; United States v. Von's Grocery Co., 384 U.S., at 277, 86 S.Ct., at 1482; United States v. Pabst Brewing Co., 384 U.S. 546, 550—552, 86 S.Ct. 1665, 1668 1669, 16 L.Ed.2d 765.
18
The effect of adopting this approach to a determination of a 'substantial' lessening of competition is to allow the Government to rest its case on a showing of even small increases of market share or market concentration in those industries or markets where concentration is already great or has been recently increasing, since 'if concentration is already great, the importance of preventing even slight increases in concentration and so preserving the possibility of eventual deconcentration is correspondingly great.' United States v. Aluminum Co. of America, 377 U.S. 271, 279, 84 S.Ct. 1283, 1289, 12 L.Ed.2d 314 citing United States v. Philadelphia National Bank, supra, 374 U.S., at 365 n. 42, 83 S.Ct., at 1742.
19
While the statistical showing proffered by the Government in this case, the accuracy of which was not discredited by the District Court or contested by the appellees, would under this approach have sufficed to support a finding of 'undue concentration' in the absence of other considerations, the question before us is whether the District Court was justified in finding that other pertinent factors affecting the coal industry and the business of the appellees mandated a conclusion that no substantial lessening of competition occurred or was threatened by the acquisition of United Electric. We are satisfied that the court's ultimate finding was not in error.
20
In Brown Shoe v. United States, supra, we cautioned that statistics concerning market share and concentration, while of great significance, were not conclusive indicators of anticompetitive effects:
21
'Congress indicated plainly that a merger had to be functionally viewed, in the context of its particular industry.' 370 U.S., at 321—322, 82 S.Ct., at 1522.
22
'Statistics reflecting the shares of the market controlled by the industry leaders and the parties to the merger are, of course, the primary index of market power; but only a further examination of the particular market—its structure, history and probable future—can provide the appropriate setting for judging the probable anticompetitive effect of the merger.' Id., at 322 n. 38, 82 S.Ct., at 1522.
23
See also United States v. Continental Can Co., supra, 378 U.S., at 458, 84 S.Ct., at 1747. In this case, the District Court assessed the evidence of the 'structure, history and probable future' of the coal industry, and on the basis of this assessment found no substantial probability of anticompetitive effects from the merger.
24
Much of the District Court's opinion was devoted to a description of the changes that have affected the coal industry since World War II. On the basis of more than three weeks of testimony and a voluminous record, the court discerned a number of clear and significant developments in the industry. First, it found that coal had become increasingly less able to compete with other sources of energy in many segments of the energy market. Following the War the industry entirely lost its largest single purchaser of coal—the railroads and faced increasingly stiffer competition from oil and natural gas as sources of energy for industrial and residential uses. Because of these changes in consumption patterns, coal's share of the energy resources consumed in this country fell from 78.4% in 1920 to 21.4% in 1968. The court reviewed evidence attributing this decline not only to the changing relative economies of alternative fuels and to new distribution and consumption patterns, but also to more recent concern with the effect of coal use on the environment and consequent regulation of the extent and means of such coal consumption.
25
Second, the court found that to a growing extent since 1954, the electric utility industry has become the mainstay of coal consumption. While electric utilities consumed only 15.76% of the coal produced nationally in 1947, their share of total consumption increased every year thereafter, and in 1968 amounted to more than 59% of all the coal consumed throughout the Nation.9
26
Third, and most significantly, the court found that to an increasing degree, nearly all coal sold to utilities is transferred under long-term requirements contracts, under which coal producers promise to meet utilities' coal consumption requirements for a fixed period of time, and at predetermined prices. The court described the mutual benefits accruing to both producers and consumers of coal from such long-term contracts in the following terms:
27
'This major investment (in electric utility equipment) can be jeopardized by a disruption in the supply of coal. Utilities are, therefore, concerned with assuring the supply of coal to such a plant over its life. In addition, utilities desire to establish in advance, as closely as possible, what fuel costs will be for the life of the plant. For these reasons, utilities typically arrange long-term contracts for all or at least a major portion of the total fuel requirements for the life of the plant. . . .
28
'The long-term contractual commitments are not only required from the consumer's standpoint, but are also necessary from the viewpoint of the coal supplier. Such commitments may require the development of new mining capacity. . . . Coal producers have been reluctant to invest in new mining capacity in the absence of long-term contractual commitments for the major portion of the mine's capacity. Furthermore, such long-term contractual commitments are often required before financing for the development of new capacity can be obtained by the producer.' 341 F.Supp., at 543 (footnote omitted).
29
These developments in the patterns of coal distribution and consumption, the District Court found, have limited the amounts of coal immediately available for 'spot' purchases on the open market, since '(t)he growing practice by coal producers of expanding mine capacity only to meet long-term contractual commitments and the gradual disappearance of the small truck mines has tended to limit the production capacity available for spot sales.' Ibid.
30
Because of these fundamental changes in the structure of the market for coal, the District Court was justified in viewing the statistics relied on by the Government as insufficient to sustain its case. Evidence of past production does not, as a matter of logic, necessarily give a proper picture of a company's future ability to compete. In most situations, of course, the unstated assumption is that a company that has maintained a certain share of a market in the recent past will be in a position to do so in the immediate future. Thus, companies that have controlled sufficiently large shares of a concentrated market are barred from merger by § 7, not because of their past acts, but because their past performances imply an ability to continue to dominate with at least equal vigor. In markets involving groceries or beer, as in Von's Grocery, supra, and Pabst, supra, statistics involving annual sales naturally indicate the power of each company to compete in the future. Evidence of the amount of annual sales is relevant as a prediction of future competitive strength, since in most markets distribution systems and brand recognition are such significant factors that one may reasonably suppose that a company which has attracted a given number of sales will retain that competitive strength.
31
In the coal market, as analyzed by the District Court, however, statistical evidence of coal production was of considerably less significance. The bulk of the coal produced is delivered under long-term requirements contracts, and such sales thus do not represent the exercise of competitive power but rather the obligation to fulfill previously negotiated contracts at a previously fixed price. The focus of competition in a given time frame is not on the disposition of coal already produced but on the procurement of new long-term supply contracts. In this situation, a company's past ability to produce is of limited significance, since it is in a position to offer for sale neither its past production nor the bulk of the coal it is presently capable of producing, which is typically already committed under a long-term supply contract. A more significant indicator of a company's power effectively to compete with other companies lies in the state of a company's uncommitted reserves of recoverable coal. A company with relatively large supplies of coal which are not already under contract to a consumer will have a more important influence upon competition in the contemporaneous negotiation of supply contracts than a firm with small reserves, even though the latter may presently produce a greater tonnage of coal. In a market where the availability and price of coal are set by long-term contracts rather than immediate or short-term purchases and sales, reserves rather than past production are the best measure of a company's ability to compete.
32
The testimony and exhibits in the District Court revealed that United Electric's coal reserve prospects were 'unpromising.' 341 F.Supp., at 559. United's relative position of strength in reserves was considerably weaker than its past and current ability to produce. While United ranked fifth among Illinois coal producers in terms of annual production, it was 10th in reserve holdings, and controlled less than 1% of the reserves held by coal producers in Illinois, Indiana, and western Kentucky. Id., at 538. Many of the reserves held by United had already been depleted at the time of trial, forcing the closing of some of United's midwest mines.10 Even more significantly, the District Court found that of the 52,033,304 tons of currently mineable reserves in Illinois, Indiana, and Kentucky controlled by United, only four million tons had not already been committed under long-term contracts. United was found to be facing the future with relatively depleted resources at its disposal, and with the vast majority of those resources already committed under contracts allowing no further adjustment in price. In addition, the District Court found that 'United Electric has neither the possibility of acquiring more (reserves) nor the ability to develop deep coal reserves,' and thus was not in a position to increase its reserves to replace those already depleted or committed. Id., at 560.
33
Viewed in terms of present and future reserve prospects—and thus in terms of probable future ability to compete—rather than in terms of past production, the District Court held that United Electric was a far less significant factor in the coal market than the Government contended or the production statistics seemed to indicate. While the company had been and remained a 'highly profitable' and efficient producer of relatively large amounts of coal, its current and future power to compete for subsequent long-term contracts was severely limited by its scarce uncommitted resources.11 Irrespective of the company's size when viewed as a producer, its weakness as a competitor was properly analyzed by the District Court and fully substantiated that court's conclusion that its acquisition by Material Service would not 'substantially . . . lessen competition . . ..' The validity of this conclusion is not undermined, we think, by the three-faceted attack made upon it by the Government in this Court to which we now turn.
III
34
First, the Government urges that the court committed legal error by giving undue consideration to facts occurring after the effective acquisition in 1959.12 In FTC v. Consolidated Foods Corp., 380 U.S. 592, 598, 85 S.Ct. 1220, 1224, 14 L.Ed.2d 95, this Court stated that postacquisition evidence tending to diminish the probability or impact of anticompetitive effects might be considered in a § 7 case. See also United States v. E. I. duPont de Nemours & Co., 353 U.S. 586, 597 et seq., 602 et seq., 77 S.Ct. 872, 879 et seq., 882 et seq., 1 L.Ed.2d 1057. But in Consolidated Foods, supra, and in United States v. Continental Can Co., 378 U.S., at 463, 84 S.Ct., at 1750, the probative value of such evidence was found to be extremely limited, and judgments against the Government were in each instance reversed in part because 'too much weight' had been given to postacquisition events. The need for such a limitation is obvious. If a demonstration that no anticompetitive effects had occurred at the time of trial or of judgment constituted a permissible defense to a § 7 divestiture suit, violators could stave off such actions merely by refraining from aggressive or anticompetitive behavior when such a suit was threatened or pending.13
35
Furthermore, the fact that no concrete anticompetitive symptoms have occurred does not itself imply that competition has not already been affected, 'for once the two companies are united no one knows what the fate of the acquired company and its competitors would have been but for the merger.' FTC v. Consolidated Foods, supra, at 598, 85 S.Ct., at 1224. And, most significantly, § 7 deals in 'probabilities, not certainties,' Brown Shoe v. United States, 370 U.S., at 323, 82 S.Ct. at 1522, and the mere nonoccurrence of a substantial lessening of competition in the interval between acquisition and trial does not mean that no substantial lessening will develop thereafter; the essential question remains whether the probability of such future impact exists at the time of trial.
36
In this case, the District Court relied on evidence relating to changes in the patterns and structure of the coal industry and in United Electric's coal reserve situation after the time of acquisition in 1959. Such evidence could not reflect a positive decision on the part of the merged companies to deliberately but temporarily refrain from anticompetitive actions, nor could it reasonably be thought to reflect less active competition than that which might have occurred had there not been an acquisition in 1959. As the District Court convincingly found, the trend toward increased dependence on utilities as consumers of coal and toward the near-exclusive use of long-term contracts was the product of inevitable pressures on the coal industry in all parts of the country. And, unlike evidence showing only that no lessening of competition has yet occurred, the demonstration of weak coal resources necessarily and logically implied that United Electric was not merely disinclined but unable to compete effectively for future contracts. Such evidence went directly to the question of whether future lessening of competition was probable, and the District Court was fully justified in using it.
37
Second, the Government contends that reliance on depleted and committed resources is essentially a 'failing company' defense which must meet the strict limits placed on that defense by this Court's decisions in United States v. Third National Bank in Nashville, 390 U.S. 171, 88 S.Ct. 882, 19 L.Ed.2d 1015; Citizen Publishing Co. v. United States, 394 U.S. 131, 89 S.Ct. 927, 22 L.Ed.2d 148; and United States v. Greater Buffalo Press, Inc., 402 U.S. 549, 91 S.Ct. 1692, 29 L.Ed.2d 170. The failing-company doctrine, recognized as a valid defense to a § 7 suit in Brown Shoe, supra, 370 U.S., at 346, 82 S.Ct., at 1535, was first announced by this Court in International Shoe Co. v. FTC, 280 U.S. 291, 50 S.Ct. 89, 74 L.Ed. 431, and was preserved by explicit references in the legislative history of the modern amendments to § 7. H.R.Rep. No. 1191, 81st Cong., 1st Sess., 6 (1949); S.Rep. No. 1775, 81st Cong., 2d Sess., 7 (1950), U.S.Code Cong. Service, 1950, p. 4293. A company invoking the defense has the burden14 of showing that its 'resources (were) so depleted and the prospect of rehabilitation so remote that it faced the grave probability of a business failure . . .,' International Shoe, supra, at 302, 50 S.Ct., at 93, and further that it tried and failed to merge with a company other than the acquiring one, Citizen Publishing Co., supra, 394 U.S., at 138, 89 S.Ct., at 931; Greater Buffalo Press, supra, 402 U.S., at 555, 91 S.Ct., at 1696.
38
The Government asserts that United Electric was a healthy and thriving company at the time of the acquisition and could not be considered on the brink of failure, and also that the appellees have not shown that Material Service was the only available acquiring company. These considerations would be significant if the District Court had found no violation of § 7 by reason of United Electric's being a failing company, but the District Court's conclusion was not, as the Government suggests, identical with or even analogous to such a finding. The failing-company defense presupposes that the effect on competition and the 'loss to (the company's) stockholders and injury to the communities where its plants were operated,' International Shoe, supra 280 U.S., at 302, 50 S.Ct., at 93, will be less if a company continues to exist even as a party to a merger than if it disappears entirely from the market. It is, in a sense, a 'lesser of two evils' approach, in which the possible threat to competition resulting from an acquisition is deemed preferable to the adverse impact on competition and other losses if the company goes out of business.15 The appellees' demonstration of United's weak reserves position, however, proved an entirely different point. Rather than showing that United would have gone out of business but for the merger with Material Service, the finding of inadequate reserves went to the heart of the Government's statistical prima facie case based on production figures and substantiated the District Court's conclusion that United Electric, even if it remained in the market, did not have sufficient reserves to compete effectively for long-term contracts. The failing-company defense is simply inapposite to this finding and the failure of the appellees to meet the prerequisites of that doctrine did not detract from the validity of the court's analysis.
39
Finally, the Government contends that the factual underpinning of the District Court's opinion was not supported by the evidence contained in the record, and should be re-evaluated by this Court. The findings and conclusions of the District Court are, of course, governed by the 'clearly erroneous' standard of Fed.Rule Civ.Proc. 52(a) just as fully on direct appeal to this Court as when a civil case is being reviewed by a court of appeals. The record in this case contains thousands of pages of transcript and hundreds of exhibits. Little purpose would be served by discussing in detail each of the Government's specific factual contentions. Suffice it to say that we find the controlling findings and conclusions contained in the District Court's careful and lengthy opinion to be supported by the evidence in the record and not clearly erroneous.
40
One factual claim by the Government, however, goes to the heart of the reasoning of the District Court and thus is worthy of explicit note here. The Government asserts that the paucity of United Electric's coal reserves could not have the significance perceived by the District Court, since all companies engaged in extracting minerals at some point deplete their reserves and then acquire new reserves or the new technology required to extract more minerals from their existing holdings. United Electric, the Government suggests, could at any point either purchase new strip reserves or acquire the expertise to recover currently held deep reserves.
41
But the District Court specifically found new strip reserves not to be available: 'Evidence was presented at trial by experts, by state officials, by industry witnesses and by the Government itself indicating that economically mineable strip reserves that would permit United Electric to continue operations beyond the life of its present mines are not available. The Government failed to come forward with any evidence that such reserves are presently available.' 341 F.Supp., at 559. In addition, there was considerable testimony at trial, apparently credited by the District Court, indicating that United Electric and others had tried to find additional strip reserves not already held for coal production, and had been largely unable to do so.
42
Moreover, the hypothetical possibility that United Electric might in the future acquire the expertise to mine deep reserves proves nothing—or too much. As the Government pointed out in its brief and at oral argument, in recent years a number of companies with no prior experience in extracting coal have purchased coal reserves and entered the coal production business in order to diversity and complement their current operations. The mere possibility that United Electric, in common with all other companies with the inclination and the corporate treasury to do so, could some day expand into an essentially new line of business does not depreciate the validity of the conclusion that United Electric at the time of the trial did not have the power to compete on a significant scale for the procurement of future long-term contracts, nor does it vest in the production statistics relied on by the Government more significance than ascribed to them by the District Court.
IV
43
In addition to contending that the District Court erred in finding that the acquisition of United Electric would not substantially lessen competition, the Government urges us to review the court's determinations of the proper product and geographic markets. The Government suggests that while the 'energy market' might have been an appropriate 'line of commerce,' coal also had sufficient 'practical indicia' as a separate 'line of commerce' to qualify as an independent and consistent submarket. Cf. United States v. Continental Can Co., 378 U.S., at 456—457, 84 S.Ct., 1746—1747. It also suggests that irrespective of the validity of the criteria adopted by the District Court in selecting its 10 geographic markets, competition between United Electric and Material Service within the larger alternative geographic markets claimed by the Government establish those areas as a permissible 'section of the country' within the meaning of § 7.
44
While under normal circumstances a delineation of proper geographic and product markets is a necessary precondition to assessment of the probabilities of a substantial effect on competition within them, in this case we nevertheless affirm the District Court's judgment without reaching these questions. By determining that the amount and availability of usable reserves, and not the past annual production figures relied on by the Government, were the proper indicators of future ability to compete, the District Court wholly rejected the Government's prima facie case. Irrespective of the markets within which the acquiring and the acquired company might be viewed as competitors for purposes of this § 7 suit, the Government's statistical presentation simply did not establish that a substantial lessening of competition was likely to occur in any market. By concluding that 'divestiture (would not) benefit competition even were this court to accept the Government's unrealistic product and geographic market definitions,' 341 F.Supp., at 560, the District Court rendered superfluous its further determinations that the Government also erred in its choice of relevant markets. Since we agree with the District Court that the Government's reliance on production statistics in the context of this case was insufficient, it follows that the judgment before us may be affirmed without reaching the issues of geographic and product markets.
45
The judgment of the District Court is affirmed.
46
It is so ordered.
47
Judgment affirmed.
48
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN, Mr. Justice WHITE, and Mr. Justice MARSHALL concur, dissenting.
49
In this case the United States appeals from a District Court decision1 upholding the acquisition of stock in United Electric Coal Companies by Material Service Corp. and its successor, General Dynamics Corp., against a challenge that the acquisition violated § 7 of the Clayton Act, 15 U.S.C. § 18.2 The United States instituted this civil antitrust action on the claim that the acquisition may substantially lessen competition in the Illinois and Eastern Interior Coal Province (EICP) sales area coal markets. After trial on the merits the District Court rejected the Government's proposed product and geographic markets and dismissed the action, concluding that the Government had failed to show a substantial lessening of competition in the markets the court deemed relevant.
50
* The combination here challenged is the union of two major Illinois coal producers—Freeman Coal Mining Corp. and United Electric Coal Companies—under the ultimate corporate control of General Dynamics Corp. Material Service Corp. acquired all the stock of Freeman Coal in 1942 and began to acquire United Electric stock in 1954. By 1959, holdings in United reached 34%, and Material Service requested and received representation on United's board of directors. As a result, Freeman's president was elected chairman of United's executive committee. 'With the affiliation of Freeman and United Electric thus formalized in 1959, common control of the two coal companies was achieved.' 341 F.Supp. 534, 537 (1972).
51
General Dynamics acquired Material Service Corp. in 1959 and moved to solidify the union of Freeman and United by engaging in continued purchases of United's stock throughout the early 1960's. By 1966 it held nearly two-thirds of United's outstanding shares and a successful tender offer increased the holdings to over 90%. In early 1967 United became a wholly owned subsidiary of General Dynamics. With the 1959 union of Freeman and United Electric thus completed, the Government filed this action challenging the legality of the combination which produced in General Dynamics the Nation's fifth largest coal producer with total annual production of over 14 million tons.
II
52
Section 7 of the Clayton Act, the standard against which his combination must be tested, proscribes such combinations 'where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition . . ..'3 'Determination of the relevant market is a necessary predicate to a finding of a violation of the Clayton Act . . ..' United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 593, 77 S.Ct. 872, 877, 1 L.Ed.2d 1057 (1957). The court below concluded that 'the energy market is the appropriate line of commerce for testing the competitive effect of the United Electric-Freeman combination.' 341 F.Supp., at 555. The court rejected the Government's hypothesis of coal as a submarket for antitrust purposes as 'untenable,' finding that United States v. Continental Can Co., 378 U.S. 441, 84 S.Ct. 1738, 12 L.Ed.2d 953 (1964), 'compel(s) this court to conclude that since coal competes with gas, oil, uranium and other forms of energy, the relevant line of commerce must encompass interfuel competion.' 341 F.Supp., at 556.
53
I read Continental Can to import no such compulsion. That case involved the acquisition of the Nation's third largest producer of glass containers, Hazel-Atlas Glass Co., by Continental Can, the country's second largest producer of metal containers. The District Court found interindustry competition an insufficient predicate for finding a § 7 line of commerce embracing both cans and bottles. We reversed, finding that interindustry competition mandated 'treating as a relevant product market the combined glass and metal container industries and all end uses for which they compete.' 378 U.S., at 457, 84 S.Ct., at 1747 (emphasis added). But that interindustry market was only one of several lines of commerce in that case. Both parties conceded that 'the can industry and the glass container industry were relevant lines of commerce.' Id., at 447, 84 S.Ct., at 1742. Since § 7 proscribes acquisitions which may involve a substantial lessening of competition in any line of commerce, the absence of anticompetitive effects in either the bottle or can markets could not sustain the acquisition since there existed a market—the glass/metal container market given recognition in this Court—in which the prohibited effect was present.
54
The District Court here found an energy market in which the combination did not work the prohibited effect. Whatever the correctness of that finding, Continental Can teaches us that it is of no help to appellees if there exist other lines of commerce in which the effect is present. Any combination may involve myriad lines of commerce; the existence of an energy market is not inconsistent with and does not negate the existence of a narrower coal market for 'within this broad market, well-defined submarkets may exist which, in themselves, constitute product markets for antitrust purposes.' Brown Shoe Co. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 1524, 8 L.Ed.2d 510 (1962).
55
This principle found recognition in Continental Can where we recognized glass and metal containers 'to be two separate lines of commerce,' despite finding that competition between the lines 'necessarily implied one or more other lines of commerce embracing both industries.' 378 U.S., at 456—457, 84 S.Ct., at 1747 (emphasis added). It was also recognized in United States v. Aluminum Co. of America, 377 U.S. 271, 84 S.Ct. 1283, 12 L.Ed.2d 314 (1964), which involved the combination of an aluminum conductor manufacturer and a producer of both aluminum and copper conductor. The District Court there refused to treat aluminum conductor as a separate § 7 line of commerce because of the competition between aluminum and copper conductor. Though we found that competition sufficient to justify finding a single aluminum/copper conductor market, we reversed the District Court, holding that the interindustry competition did not preclude 'division (of that market) for purposes of § 7 into separate submarkets.' Id., at 275, 84 S.Ct., at 1286.4
56
Coal has both price advantages and operational disadvantages which combine to delineate within the energy market 'economically significant submarket(s).'5 The consumers for whom price is determinative mark out a submarket in which coal is the overwhelming choice; the boundaries of this submarket are strengthened by coal's virtual inability to compete in other significant sectors of the energy market. Energy-use technology in highway and air transportation necessitates the use of liquid fuels. The relative operational ease of dieselized power plants has worked to virtually foreclose coal from the rail transportation market.6 Despite their higher cost, gas and oil enjoy a competitive edge in the space-heating market because of simple consumer preference for these sources of energy over coal.7
57
The market for coal is therefore effectively limited to large industrial energy consumers such as electric utilities and certain manufacturers with the ability and economic incentive to consider coal as an energy source.8 The court below noted that the 'utility market has become the mainstay of coal production,' 341 F.Supp., at 539. Within this sector coal's economic advantage yields it an overwhelming share of the market. In each year from 1960 to 1967 (the period during which the Freeman-United Electric union solidified) coal accounted for over 90% of the B.t.u.'s consumed by steam electric utility plants in the EICP sales area; it also provided 74% of the B.t.u.'s consumed by cement plants in the same area and 94% of the B.t.u.'s consumed by such plants in Illinois.9
58
The coal market is therefore viewed by energy consumers as a separate economic entity confined to those users with the technological capability to allow the use of coal and the incentive for economy to mandate it. Within that market coal experiences little competition from other fuels since coal's delivered price per B.t.u. in the areas served by Freeman and United Electric is significantly lower than that for any other combustible fuel except interruptible natural gas which is available only on a seasonal basis.10 Central Illinois Light Co., for example, purchases coal at 27 cents per million B.t.u.'s, firm natural gas at 45 cents, and oil (for ignition purposes) at 70 cents.11 Since coal consumption facilities are unique and not readily adaptable to alternative energy sources, there is little interfuel price sensitivity. As the court in Kennecott Copper Corp. v. FTC, 467 F.2d 67, 79 (CA10 1972), stated in finding that '(t)he coal industry is a distinct submarket which has characteristics which are not shared by the other fuel industries,' coal prices 'are now, and promise to be in the future, subject to the peculiarities of the coal business (since) other fuels appear to have a limited effect.'
59
The competitive position of coal is thus not unlike that of aluminum conductor in United States v. Aluminum Co. of America, supra. Like coal, aluminum conductor had 'little consumer acceptance' for many purposes, but its substantial price advantage over other conductors gave it 'decisive advantages' in those areas of the market where price was 'the single, most important, practical factor.' 377 U.S., at 275—276, 84 S.Ct., at 1287. Despite the existence of some competition from other forms of conductor, those factors were sufficient to set aluminum conductor apart as an economically significant § 7 submarket. That precedent seems to be indistinguishable; and thus whatever the existence of a § 7 energy market, coal constitutes an economically significant submarket for § 7 purposes.12
III
60
In rejecting the Government's proposed geographic markets the court below adopted much narrower markets which, for the most part, followed ICC freight rate districts (FRD's).13 The justification was that, since ordinary rail rates are the same for all mines in any particular FRD and since transportation costs are the principal competitive factor in coal marketing, mines in one FRD cannot effectively compete for the same customers with mines in other FRD's. Since United Electric's mines are located in the Belleville and Fulton-Peoria FRD's and Freeman's mines are located in the Springfield and Southern Illinois FRD's, the combination of the two companies was found to present no risk of anticompetitive effects.
61
The error of the District Court in drawing the § 7 sections of the country 'so narrowly as to place appellees in different markets'14 is amply demonstrated by the overlapping distribution patterns of Freeman and United Electric. Though located in different FRD's and thus supposedly not competitive, they sold one-half their output to the same customers at the same facilities. Lack of competition between FRD's is further refuted by the existence of reciprocal selling patterns. For example, while United's Belleville FRD mine was selling 25% of its output to customers in the Southern Illinois FRD sales area, Freeman was selling 20% of its Southern Illinois FRD coal to Belleville sales area customers.
62
The inability of the lower court's narrow markets to "correspond to the commercial realities"15 of the distribution patterns displayed in the record is explained by the undue weight given ordinary rail rates. While transportation costs are significant, ordinary rail rates are not the single controlling element of transportation costs. First, not all rail shipments are governed by FRD rates; many of the most significant shipments are transported via 'unit trains' carrying only coal from a particular producer to a particular customer pursuant to a negotiated rate. Thus Freeman ships Southern Illinois FRD sales area customer to a Belleville FRD sales area customer at a cost lower than any Belleville FRD rate to that location. Second, not all coal transportation proceeds by rail. United transports most of its coal by barge, and in 1967 only one-half of all the coal sold in the five States which receive coal from Illinois was transported by all-rail shipments.
63
Normal rail rates are thus not so limiting as to eliminate substantial competition between FRD sales areas. Coal producers may constitute strong competitive factors in areas up to 500 miles from the nime. Thus in 1967 Freeman's Southern Illinois FRD Orient Mine shipped over 1.5 million tons of coal to customers 300 to 500 miles away. At the same time, United's Fidelity Mine, only 40 miles from to Orient, shipped more than one million tons, over half its total production, to equally distant locations. Both Freeman and United Electric have mines which are capable of supplying any point in the EICP sales area.
64
Further, even assuming the existence of FRD markets, I think the court below erred in rejecting the Government's proposed markets. As with product markets, § 7 does not necessitate an anticompetitive effect in any particular geographic market; its proscription reaches combinations which may substantially lessen competition in any section of the country. Thus, whatever the correctness of the District Court in finding FRD markets, the lack of anticompetitive effect in those markets is of no help to General Dynamics if competition may be lessened substantially in other geographic markets. And, as with product markets, the existence of FRD markets is not inconsistent with the existence of a myriad of other sometimes overlapping markets. Thus, in United States v. Pabst Brewing Co., 384 U.S. 546, 86 S.Ct. 1665, 16 L.Ed.2d 765 (1966), we found Wisconsin, the Wisconsin-Michigan-Illinois tristate area, and the entire United States all to be relevant § 7 sections of the country in which to assess anticompetitive impact.
65
While existing sales patterns show that transportation costs are not as restrictive as the District Court found, long-range transportation costs and the national distribution of coal deposits serve to divide the country into regionally significant coal markets. Both Freeman and United Electric are located in the EICP, consisting of Central and Southern Illinois, Southwestern Indiana, and Western Kentucky, and parts of other nearby areas. The region overlies a geologically united coal-bearing rock sequence which is estimated to contain 36% of the Nation's total coal resources. Because of the separation of the region from other major producing regions,16 EICP producers enjoy a substantial competitive edge with respect to sales in an area composed of Illinois, Indiana, Western Kentucky, parts of Tennessee, Eastern Iowa, Southeastern Minnesota, Southern Wisconsin, and extreme Eastern Missouri. In 1967, 82% of EICP coal was sold in this area. Freeman sold over 93% of its coal and United Electric sold over 97% of its coal in this area.
66
Within the EICP sales area, Illinois stands as an economically significant submarket. In 1967, 82% of the coal consumed in Illinois came from Illinois mines and 58% of the coal mined in the State was used there. Freeman sold 42% of its coal and United Electric sold 62% of its coal to Illinois consumers, more than either company sold in any other State. Since Illinois sales are dominated by Illinois producers and since all relevant Freeman and United Electric Mines are located in Illinois,17 the State constitutes a relevant and significant market for § 7 purposes. Although economic lines do not fall precisely along political boundaries, the Government is not required to delineate § 7 markets by 'metes and bounds.' United States v. Pabst Brewing, supra, at 549, 86 S.Ct., at 1667. In holding a four-county group a relevant geographic market in United States v. Philadelphia National Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963), we noted the artificiality of such political boundaries but held that 'such fuzziness would seem inherent in any attempt to delineate the relevant geographic market.' Id., at 360 n. 37, 83 S.Ct., at 1740. The State of Wisconsin was held a relevant market in Pabst Brewing, supra, and in United States v. El Paso Gas Co., 376 U.S. 651, 657, 84 S.Ct. 1044, 1047, 12 L.Ed.2d 12 (1964), we held that there could be 'no doubt that California is a 'section of the country' as that phrase is used in § 7.'
IV
67
While finding no violation of § 7 in the Freeman-United Electric combination, the District Court did not make clear the standard used in reaching that ultimate conclusion. The court did not mention what it thought to be the relevant market shares nor did it discuss the effect of the combination on industry concentration. The court merely found that Freeman and United Electric do not compete because they are located in different FRD geographic markets, and because they sell different types of coal. As already discussed, nearly all the mines of both companies are located in Southern Illinois, and as demonstrated by past distribution patterns, with an ability to compete effectively at distances up to 500 miles, their presence in different minute FRD's within Southern Illinois has simply not rendered them noncompetitive. The differences in the types of coal sold, moreover, are irrelevant. It is true, as the court below notes, that United Electric sells strip-mined coal while Freeman extracts deep reserves, but the fact that the companies sold half their output to common customers demonstrates that at least a significant portion of the consuming public is understandably unconcerned with the details of extraction. While it is also true that only Freeman sells metallurgical coal and a byproduct known as dust, this says nothing more than that the companies do not compete in metallurgical coal or dust; it does not relieve the court of the responsibility for evaluating the anticompetitive effects in nonmetallurgical coal production—production which accounts for 100% of United's and 92% of Freeman's business.18
68
The court further found that United Electric, standing alone, would not contribute meaningfully to further competition since virtually all its economically mineable strip reserves were committed under long-term contracts and it possessed neither the capability to obtain more strip reserves nor the expertise to develop its deep reserves. Although the doctrine was not invoked by name, this appears to be an application of the 'failing company' defense. See Citizen Publishing Co. v. United States, 394 U.S. 131, 89 S.Ct. 927, 22 L.Ed.2d 148 (1969). If it is, the court proceeded on an analysis made at the wrong time and failed to discuss the legal standards employed in finding the defense to be established. The finding that 48 of United's 52 million tons of strip reserves were committed related to the time of trial. But, since the rationale of the failing-company defense is the lack of anticompetitive consequence if one of the combining companies was about to disappear from the market at any rate, the viability of the 'failing company' must be assessed as of the time of the merger. United States v. Greater Buffalo Press, Inc., 402 U.S. 549, 555, 91 S.Ct. 1692, 1696, 29 L.Ed.2d 170 (1971); Citizen Publishing Co. v. United States, supra, 394 U.S., at 138, 89 S.Ct., at 931.
69
The Court urges that United's weak reserve position, rather than establishing a failing-company defense, 'went to the heart of the Government's statistical prima facie case based on production figures.' Under this view United's weak reserve position at the time of trial constitutes postacquisition evidence which diminishes the possibility of anticompetitive impact and thus directly affects the strength of time-of-acquisition findings. The problem with this analysis is that the District Court made no time-of-acquisition findings which such postacquisition evidence could affect. The majority concedes the obvious need for a limitation on the weight given post-acquisition evidence and notes that we have reversed cases where 'too much weight' has been given. Here the post-acquisition events were given all the weight because all the District Court's findings were made as of the time of the trial. While findings made as of the time of the merger could concededly be tempered to a limited degree by post-acquisition events, no such findings were ever made.
70
Many of the commitments here which reduced United's available reserves occurred after the acquisition; 21 million tons for example were committed in 1968. Similarly, though the District Court found further mineable strip reserves unavailable at the time of trial, there is no finding that they were unavailable in 1959 or 1967. To the contrary, the record demonstrates that other coal producers did acquire new strip reserves during the 1960's.19 United's 1959 viability is further supported by the fact that it possessed 27 million tons of deep reserves. While we do not know if all these reserves were economically mineable at the time of the acquisition, there was no finding that they would not become so in the near future with advances in tecnnology or changes in the price structure of the coal market.20 Further there was no contention or finding that further deep reserves were not available for acquisition.21 The District Court merely concluded that United had no 'ability to develop deep coal reserves.'22
71
While it is true that United is a stripmining company which has not extracted deep reserves since 1954, this does not mean that United would not develop deep-mining expertise if deep reserves were all it had left or that it could not sell the reserves to some company which poses less of a threat to increased concentration in the coal market than does Freeman. United Electric was not, as the Court suggests, merely one of many companies with the possible 'inclination and the corporate treasury' to allow expansion into 'an essentially new line of business.' United was a coal company with a thriving coal-marketing structure. At the time of the merger it had access to at least 27 million tons of deep reserves and it had operated a deep mine only five years previously. While deepcoal mining may have been an essentially new line of business for many, it was for United merely a matter of regaining the expertise it once had to extract reserves it already owned for sale in a market where it already had a good name.
V
72
Thus, from product and geographic markets to market-share and industry-concentration analysis to the failing-company defense, the findings below are based on legal standards which are either incorrect or not disclosed. While the court did gratuitously state that no § 7 violation would be found 'even were this court to accept the Government's unrealistic product and market definitions,' this conclusory statement is supported by no analysis sufficient to allow review in this Court. The majority notes that production figures are of limited significance because they include deliveries under long-term contracts entered into in prior years. It is true that uncommitted reserves or sales of previously uncommitted coal would be preferable indicia of competitive strength, but the District Court made no findings as to United's or Freeman's respective market shares at the time of the acquisition under either of these standards.23
73
On the basis of a record so devoid of findings based on correct legal standards, the judgment may not be affirmed except on a deep-seated judicial bias against § 7 of the Clayton Act. We should remand the case to the District Court with directions to assess the impact of the Freeman-United Electric combination on the Illinois and EICP sales area coal markets as of 1959.24 We should direct the court to make findings of respective market shares, and further to evaluate United Electric's viability as an independent producer or as the possible 'acquiree' of a company other than General Dynamics as of 1959, in light of the strict standards applicable to the failing-company defense. Since we abdicate our duty for responsible review and accept the mere conclusion that no § 7 violation is established on the basis of a record with none of these necessary findings, I dissent from the affirmance of the District Court's judgment.
1
United Electric also had coal-mining operations in Utah and other Western States. The Government has not contended, however, that these holdings are of any relevance in this case.
2
Section 7 of the Clayton Act reads in pertinent part as follows:
'No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no corporation subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.'
3
Testimony at trial indicated that the Eastern Interior Coal Province—the area of coal production upon which the Eastern Coal Province Sales Area was based—was originally named by United States Geological Survey maps of the coalfields in the United States and described one portion of a sequence of coal-bearing rock formations known geologically as the Pennsylvania System. The Sales Area of the Eastern Interior Coal Province was derived from the assumption, acknowledged in the trial court's opinion, that the high costs of transporting coal—which may amount to 40% of the price of delivered coal—will inevitably give producers of coal a clear competitive advantage in sales in the immediate areas of the mines.
4
The trial court found that Commonwealth Edison, a large private electric utility with generation facilities in many parts of Illinois, and the Metropolitan Chicago Interstate Air Quality Control Region constituted separate and unique geographic regions. Commonwealth Edison was found to have unique attributes because of the great size of its coal consumption requirements, its distinctive distribution patterns, and its extensive commitment to air pollution programs and the development of nuclear energy. The Chicago Control Region, a congressionally designated area consisting of six counties in Illinois and two in Indiana, was distinguished from other geographic markets because of the impact of existing and anticipated air pollution regulations which would create special problems in the competition for coal sales contracts. 341 F.Supp. 534, 557.
5
The figures for 1967 reflect the impact on market concentration of the acquisition involved here.
6
The figures demonstrating the degree of concentration in the two coal markets chosen by the Government were roughly comparable to those in United States v. Von's Grocery Co., 384 U.S. 270, 86 S.Ct. 1478, 16 L.Ed.2d 555, where the top four firms in the market controlled 24.4% of the sales, the top eight 40.9%, and the top 12 48.8%. See, id., at 281, 86 S.Ct., at 1484 (White, J., concurring). See also United States v. Pabst Brewing Co., 384 U.S. 546, 551, 86 S.Ct. 1665, 1668, 16 L.Ed.2d 765, where the top four producers of beer in Wisconsin were found to control 47.74% of the market, and the top 10 in the Nation and the local three-state area to control 45.06% and 58.93% respectively. The statistics in the present case appear to represent a less advanced state of concentration than those involved in United States v. Aluminum Co. of America, 377 U.S. 271, 279, 84 S.Ct. 1283, 1288, 12 L.Ed.2d 314, where the two largest firms held 50% of the market, and the top five and the top nine controlled, respectively, 76% and 95.7%; and in United States v. Philadelphia National Bank, 374 U.S. 321, 365, 83 S.Ct. 1715, 1742, 10 L.Ed.2d 915, where the two largest banks controlled 44% of the pre-merger market.
-------------------------------------------------------------------
---------------
1959 1967
---- ----
Share of Share of Share of Share of
top 2 top 2 top 2 top 2
but for given Percent but for given Percent
merger merger increase merger merger increase
-------------------------------------------------------------------
-------------------------------------------------------------------
----------------
Province ...... 33.1 37.9 14.5 45.0 48.6 8.0
Illinois ...... 36.6 44.3 22.4 44.0 52.9 20.2
-------------------------------------------------------------------
-------------------------------------------------------------------
----------------
Finally, the Government's statistics indicated that the acquisition increased the share of the merged company
7
The percentage increase in concentration asserted here was thus analogous to that found in Von's Grocery, supra, where the concentration among the top four, eight, and 12 firms was increased, respectively, by 18.0%, 7.6%, and 2.5% as a result of the merger invalidated there. In Philadelphia Bank, supra, the 34% increase in concentration in the two largest firms from 44% to 59% was found to be clearly significant, 374 U.S., at 365, 83 S.Ct., at 1742.
8
The 1959 Illinois figure of 23.2% was asserted by the Government to be comparable to the 23.94% share of the Wisconsin beer market found to be significant in Pabst, supra, and the 25% share controlled by the merged company in United States v. Continental Can Co., 378 U.S. 441, 461, 84 S.Ct. 1738, 1749, 12 L.Ed.2d 953. The Province figure of 12.4% was compared with the shares held by the merged companies in Von's Grocery (7.5%), and in the Pabst national (4.49%) and three-state (11.32%) markets.
9
In 1968, electric utilities accounted for 59.09% of United States coal consumption, coke plants 18.20%, cement mills 1.88%, other manufacturing (including steel and rolling mills) 17.70%, and retail and miscellaneous consumers 3.14%.
10
The District Court found that while United Electric held six mines operating in the midwest in 1948, ir had opened only three new ones since then and four had closed because of exhaustion of reserves. The court found that the evidence showed that reserves in two other mines would soon be depleted, and appellees inform us in their briefs that these events have already occurred.
11
As an example of the impact of depleted or committed reserves on a company's ability to compete for long-term contracts, the District Court noted that a number of requirements contracts signed by United Electric to supply coal to electric utilities were backed up by reserves belonging to Freeman and 'could not have been obtained without that guarantee' because of the utilities' fear that the contract obligation could not otherwise be fulfilled. 341 F.Supp., at 559 (emphasis in original).
12
The court's reliance on such facts and the absence of specific findings of fact concerning the competitive situation in 1959, at which point both sides now agree the acquisition took place, may have been engendered by the Government's apparent inconsistency in its position concerning the critical date. Certain of the appellees' proposed findings of fact concerning United Electric's resources in 1959 and its attempts to increase its depleted holdings were termed 'irrelevant' by the Government at the trial.
13
The mere nonoccurrence of anticompetitive effects from a merger would, of course, merely postpone rather than preclude a divestiture suit. This Court indicated in United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 597, 77 S.Ct. 872, 879, 1 L.Ed.2d 1057, that a merger may be attacked ab initio long after its culmination if effect on competition not apparent immediately after the merger subsequently appears, since § 7 was designed to arrest the creation of monopolies "in their incipiency" and "incipiency' . . . denotes not the time the stock was acquired, but any time when the acquisition threatens to ripen into a prohibited effect. . . .' See also FTC v. Consolidated Foods Corp., 380 U.S. 592, 598, 85 S.Ct. 1220, 1224, 14 L.Ed.2d 95. The scope this 'time of suit' concept gives to the Government in attacking mergers under § 7 is discussed in Orrick, The Clayton Act: Then and Now, 24 ABA Antitrust Section 44 (1964); Subcommittee on Section 7, The Backward Sweep Theory and the Oligopoly Problem, 32 ABA Antitrust L.J. 306 (1966). In the context of the present case, the 'time of suit' rule coupled with the limited weight given to post-merger evidence of no anticompetitive impact tends to give the Government a 'heads-I-win, tails-you-lose' advantage over a § 7 defendant: post-merger evidence showing a lessening of competition may constitute an 'incipiency' on which to base a divestiture suit, but evidence showing that such lessening has not, in fact, occurred cannot be accorded 'too much weight.'
14
In Citizen Publishing Co. v. United States, 394 U.S. 131, 138—139, 89 S.Ct. 927, 931, 22 L.Ed.2d 148 '(t)he burden of proving that the conditions of the failing company doctrine have been satisfied' was found to be 'on those who seek refuge under it.' (Footnote omitted.)
15
Alternative rationales for the failing-company defense are discussed in Bok, Section 7 of the Clayton Act and the Merging of Law and Economics, 74 Harv.L.Rev. 226, 339—347 (1960); Comment, 'Substantially to Lessen Competition . . .': Current Problems of Horizontal Mergers, 68 Yale L.J. 1627, 1662—1668 (1959).
1
341 F.Supp. 534 (1972).
2
Title 15 U.S.C. § 18 provides:
'No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no corporation subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.'
3
Supra, n. 2.
4
Similarly, in United States v. Philadelphia National Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963), we held commercial banking a § 7 line of commerce even though banks compete with other institutions with respect to some services such as the making of small loans.
5
See Brown Shoe Co. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 1523, 8 L.Ed.2d 510 (1962).
6
341 F.Supp., at 539.
7
Ibid.
8
The only other significant use for coal is metallurgical in nature. Metallurgical coal is used as a product in the manufacture of steel. The use of such coal as a product sets it off in a separate market from nonmetallurgical coal which is used as an energy source.
9
Although nuclear and geothermal power may draw some utility consumers from the coal market in the future, nuclear fuel is not consumable in existing fossil-fuel plants nor is nuclear fuel presently an alternative for nonutility coal consumers. Thus, whatever the future inroads of alternative fuels, there remains a significant class of energy consumers which looks ony to coal.
10
Interruptible gas is sold at a lower rate and is available only when it is not required by firm-rate customers which are supplied according to their needs and which always have priority.
11
Oil is used by some coal consumers for purposes to which coal is not suited such as starting up boilers or kilns.
12
Even the court below gave some recognition to coal as a separate market in its discussion of the relevant geographic markets. The geographic markets were delineated along 'the distributive patterns of . . . coal,' separating out those 'mines to which coal consumers can practicably turn for supplies.' 341 F.Supp., at 556 (emphasis added).
13
Freight rate districts are producing areas grouped for ICC rate-making purposes; all mines within each producing area are accorded the same rates to the same consuming destinations. See Ayrshire Collieries Corp. v. United States, 335 U.S. 573, 576, 69 S.Ct. 278, 280, 93 L.Ed. 243 (1949). The other markets accepted by the District Court are Commonwealth Edison and the Metropolitan Chicago Interstate Air Quality Control Region. Commonwealth Edison was found to be unique in light of its massive coal requirements, its purchasing patterns which are 'quite distinct from (those) followed by other consumers,' and its singularly extensive commitment to nuclear energy. The MCIAQC, consisting of six Northeastern Illinois counties and two Northwestern Indiana counties, was found unique because of its singular access, through water and rail arteries, to almost all FRD's in the Midwest.
14
See United States v. Philadelphia National Bank, 374 U.S., at 361, 83 S.Ct., at 1740.
15
See Brown Shoe Co. v. United States, 370 U.S., at 336, 82 S.Ct., at 1529.
16
The Nation's other major coal producing regions are: (1) the Eastern Coal Province of Western Pennsylvania, West Virginia, Eastern Kentucky, and parts of Ohio, Tennessee, and Alabama; (2) the Western Interior Coal Province comprised of Central Iowa, Northern and Western Missouri, and Eastern Oklahoma; and (3) scattered deposits in Montana, Wyoming, Colorado, and Utah. Jurisdictional Statement 5.
17
United Electric also controls some coal deposits in Colorado and Oklahoma which are not in issue in this case. 341 F.Supp., at 538 n. 8.
18
The lack of competition from United for a mere 8% of Freeman's business is simply irrelevant. In United States v. Aluminum Co. of America, 377 U.S. 271, 84 S.Ct. 1283, 12 L.Ed.2d 314 (1964), we struck down a combination which affected competition in the aluminum conductor market, and that result was not affected by the irrelevant fact that one of the companies, Rome Cable, also engaged in the production of copper conductor.
19
See Brief for United States 71.
20
Research into new methods of extraction or a rise in the price of coal could make reserves which are uneconomical to mine at any given time economically mineable in the future.
21
To the contrary, United Electric acquired substantial new deep reserves after the time of the acquisition since it now owns about 44 million tons of deep reserves and controls by location another 40 to 50 million tons. Reserves are controlled by location if, in order to be mined at all, they must be mined by those who control, by ownership, lease, or option, the contiguous reserves.
22
If that conclusion is to lend support to the combination on the ground that United 'standing alone, cannot contribute meaningfully to competition,' it must be made in light of the stringent standards applicable to the failing-company defense. In Citizen Publishing Co. v. United States, 394 U.S. 131, 138—139, 89 S.Ct. 927, 931, 22 L.Ed.2d 148 (1969), we said that the defense is one of 'narrow scope' and that the burden of proving the defense is 'on those who seek refuge under it.' We also stated that the prospects of continued independent existence must be 'dim or nonexistent' and that it must be established that the acquiring company is the only available purchaser. See also United States v. Greater Buffalo Press, Inc., 402 U.S. 549, 555—556, 91 S.Ct. 1692, 1696—1697, 29 L.Ed.2d 170 (1971), and United States v. Third National Bank in Nashville, 390 U.S. 171, 189, 88 S.Ct. 882, 893, 19 L.Ed.2d 1015 (1968).
23
The District Court did find that, as of 1968, Freeman controlled 6.5% of the total coal reserves dedicated to existing mines in the EICP. At the same time, United Electric controlled 2.5% of that total, but almost all of this was contractually committed. If market shares are to be determined by percentage of total reserves, what is necessary is a finding as to each company's 1959 share of uncommitted Illinois and EICP reserves including reserves which were economically mineable or which might have become so in the reasonably near future and further including an estimate as to uncontrolled reserves which might have been acquired by either company in the reasonably near future.
The District Court also found that, as of 1968, the two companies together accounted for 10.9% of the EICP coal production, and that this figure represented more than a 10% decrease from the combined production for 1959. Combined 1959 production by the companies was thus at least 12.1% of the EICP total. If market shares are to be determined by percentage of industry sales, this figure is in excess of percentages found illegal in markets with a trend toward concentration (see, e.g., United States v. Von's Grocery Co., 384 U.S. 270, 86 S.Ct. 1478, 16 L.Ed.2d 555 (1966) (7.5%), and United States v. Pabst Brewing Co., 384 U.S. 546, 86 S.Ct. 1665, 16 L.Ed.2d 765 (1966) (4.49%)), and the court below recognized an increase in concentration in the coal market. It might be argued, however, that, if market share is to be determined by sales, the production figures found by the court below are not the relevant ones for they include production which goes to meet obligations incurred in long-term contracts entered into in prior years. In terms of competition, if sales are the relevant criteria, what is needed is a finding of 'new' sales (sales of previously uncommitted coal) as a percentage of total industry new sales in Illinois and the EICP at the time of the acquisition.
24
Common control of the two companies was achieved in 1959 and the combination was completed in 1967; at oral argument both parties conceded that the merger 'took place' in 1959.
| 78
|
415 U.S. 697
94 S.Ct. 1228
39 L.Ed.2d 693
Terry Dean EATONv.CITY OF TULSA.
No. 73—5925.
March 25, 1974.
PER CURIAM.
1
In answering a question on cross-examination at his trial, in the Municipal Court of Tulsa, Oklahoma, for violating a municipal ordinance, petitioner referred to an alleged assailant as 'chicken shit.' In consequence he was prosecuted and convicted under an information that charged him with 'direct contempt,' in violation of another Tulsa ordinance, 'by his insolent behavior during open court and in the presence of (the judge), to wit: by using the language 'chicken-shit' . . ..' The Oklahoma Court of Criminal Appeals, in an unreported order and opinion, affirmed.
2
This single isolated usage of street vernacular, not directed at the judge or any officer of the court, cannot constitutionally support the conviction of criminal contempt. 'The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice.' Craig v. Harney, 331 U.S. 367, 376, 67 S.Ct. 1249, 1255, 91 L.Ed. 1546 (1947). In using the expletive in answering the question on cross-examination '(i)t is not charged that (petitioner) here disobeyed and valid court order, talked loudly, acted boisterously, or attempted to prevent the judge or any other officer of the court from carrying on his court duties.' Holt v. Virginia, 381 U.S. 131, 136, 85 S.Ct. 1375, 1377, 14 L.Ed.2d 290 (1965); see also In re Little, 404 U.S. 553, 92 S.Ct. 659, 30 L.Ed.2d 708 (1972). In the circumstances, the use of the expletive thus cannot be held to 'constitute an imminent . . . threat to the administration of justice.'
3
In affirming, however, the Court of Criminal Appeals rejected petitioner's contention that the conviction must be taken as resting solely on the use of the expletive. Rather, that court concluded from its examination of the trial record that, in addition to the use of the expletive, petitioner made 'discourteous responses' to the trial judge. The court therefore held that the conviction should be affirmed because '(c)oupling defendant's expletive with the discourteous responses, it is this Court's opinion there was sufficient evidence upon which the trial court could find defendant was in direct contempt of court.' (Emphasis supplied.)
4
However, the question is not upon what evidence the trial judge could find petitioner guilty but upon what evidence the trial judge did find petitioner guilty. There is no transcript of the contempt proceeding since the proceeding was not stenographically recorded. The trial judge did, however, enter a 'Judgment and Sentence,' and we read that document clearly to establish that the trial judge rested the conviction upon the use of the expletive only. For the single charge of 'insolent behavior' specified in the information was 'to wit: by using the language 'chicken-shit' . . .,' and the Judgment and Sentence, referring expressly to the information, records that petitioner was 'duly and legally tried and convicted of said offense' and, further, that 'the Court does now hereby adjudge and sentence the said defendant for the said offense by him committed.' (Emphasis supplied.) The Court of Criminal Appeals thus denied petitioner constitutional due process in sustaining the trial court by treating the conviction as a conviction upon a charge not made. Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948).*
5
The motion to proceed in forma pauperis and the petition for certiorari are granted, the judgment is reversed, and the case is remanded for further proceeding not inconsistent with this opinion.
6
It is so ordered.
7
Mr. Justice POWELL, concurring.
8
I concur in the Court's per curiam opinion. I write briefly only to make clear my understanding of the limited scope of its holding. Whether the language used by petitioner in a courtroom during trial justified exercise of the contempt power depended upon the facts. Under the circumstances here, the imposition of a contempt sanction against petitioner denied him due process of law.
9
The phrase 'chicken shit' was used by petitioner as a characterization of the person whom petitioner believed assaulted him. As noted in the Court's opinion, it was not directed at the trial judge or anyone officially connected with the trial court. But the controlling fact, in my view, and one that should be emphasized, is that petitioner received no prior warning or caution from the trial judge with respect to court etiquette. It may well be, in view of contemporary standards as to the use of vulgar and even profane language, that this particular petitioner had no reason to believe that this expletive would be offensive or in any way disruptive of proper courtroom decorum. Language likely to offend the sensibility of some listeners is now fairly commonplace in many social gatherings as well as in public performances.
10
I place a high premium on the importance of maintaining civility and good order in the courtroom. But before there is resort to the summary remedy of criminal contempt, the court at least owes the party concerned some sort of notice or warning. No doubt there are circumstances in which a courtroom outburst is so egregious as to justify a summary response by the judge without specific warning, but this is surely not such a case.
11
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE and Mr. Justice BLACKMUN join, dissenting.
12
The Court summarily reverses petitioner's conviction for contempt of court on the grounds that the expletive which petitioner used could not by itself constitute a contempt, and that the additional 'discourteous responses' petitioner made to the trial judge could not be properly considered by either the Municipal Court of Tulsa or the Oklahoma Court of Criminal Appeals which affirmed petitioner's conviction. I disagree with the Court as to each of these grounds.
13
* Even the Court appears to shy away from a flat rule, analogous to the hoary doctrine of the law of torts that every dog is entitled to one bite, to the effect that every witness is entitled to one free contumacious or other impermissible remark. The Court, quoting language from Holt v. Virginia, 381 U.S. 131, 136, 85 S.Ct. 1375, 1377, 14 L.Ed.2d 290 (1965), says that "(i)t is not charged that (petitioner) here . . . talked loudly, acted boisterously, or attempted to prevent the judge or any other officer of the court from carrying on his court duties." But we do not have any transcript of petitioner's trial for contempt, and we simply do not know whether the evidence in that trial may or may not have shown that petitioner 'talked loudly' or 'acted boisterously' in the course of his rather unusual colloquy with the judge. Respondent in its brief in opposition certainly makes no concession in petitioner's favor. If, as appears likely, neither party is in a position to furnish any judicially cognizable account of the petitioner's contempt trial, this hiatus in the record cannot be filled in by what amounts to no more than speculation in favor of petitioner's position:
14
'If the result of the adjudicatory process is not to be set at naught, it is not asking too much that the burden of showing essential unfairness be sustained by him who claims such injustice and seeks to have the result set aside, and that it be sustained not as a matter of speculation but as a demonstrable reality.' Adams v. United States ex rel. McCann, 317 U.S. 269, 281, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942).
15
See Stroble v. California, 343 U.S. 181, 198, 72 S.Ct. 599, 607, 96 L.Ed. 872 (1952).
II
16
Having assumed that the 'single expletive' uttered by petitioner could not by itself constitutionally constitute a contempt, the Court goes on to hold that the Court of Criminal Appeals' reliance on petitioner's discourteous additional remarks during the course of his colloquy with the trial court, amounted to 'treating the conviction as a conviction upon a charge not made,' in violation of Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948). While we do not have the transcript of the contempt trial, the record does show the colloquy which occurred between petitioner and the trial judge in the Municipal Court during petitioner's trial for an alleged violation of a Tulsa ordinance. During cross-examination in response to a question asked him by the assistant city prosecutor, the following exchange occurred (emphasis supplied):
17
'Q. What did you do?
18
'A. I sensed something from behind me and I turned maybe enough to look over my shoulder. At the time I turned and looked over my shoulder I could see this guy's face and shoulders coming at me; almost simultaneously he hit me and he knocked me over on my back a bench down. Luckily, somebody grabbed him and pulled him back, and I got up off of my back after being knocked down on my back, wrenched my elbow, got up to a vertical posture where I would have some kind of defensibility and moved up to where I had some square footing.
19
'Q. What's defensibility?
20
'A. I think that would be a place where you were able to get your feet to stand square so you would be half ready for some chicken shit that had jumped you from behind.
21
'THE COURT: Mr. Eaton, you will have until tomorrow morning to show me why you should not be held in direct contempt of this Court. I'm not going to put up with that kind of language in this Court.
22
'THE WITNESS: That's fine. I don't feel as though I need to put up with why I received this.
23
'THE COURT: Mr. Eaton, did you hear what I just said?
24
'THE WITNESS: Yes, sir.
25
'THE COURT: That kind of language you used in this Court, I will not put up with any more of that talk in this courtroom. That was not responsive to any type of question whatsoever and I'm not going to have profanity in this courtroom and you're going to be held in direct contempt of this Court unless you can show me by tomorrow morning, cause why you should not be.
26
'THE WITNESS: Fine. I'm not going to show you anything in the morning any more than I can show you now, but I think me being asked to speculate as to why someone would jump on me from behind is not within any kind of realm of prosecution—
27
'THE COURT: The Court will be in recess.'
28
On November 6, 1972, petitioner returned to the court in response to the judge's direction, and was at that time found guilty of direct contempt of court in violation of another Tulsa ordinance. Petitioner was fined $50 plus costs. Petitioner appealed his conviction to the Court of Criminal Appeals of Oklahoma. His principal contention in that court was that the use of the expletive 'chicken shit' was not directed at the trial judge, and also that the conviction for direct contempt was based solely on the use of the expletive, in violation of his First and Fourteenth Amendment rights.
29
The Court of Criminal Appeals affirmed the conviction in this language:
30
'Counsel submits in his brief the expletive used by defendant . . . does not constitute direct contempt per se. We find the expletive to not be the only comment in question. After studying the entire portion of the record above reproduced, we note that the record clearly manifests in its entirely discourteous responses to the trial court upon the trial court's observations made during the course of trial. In Champion v. State, Okl.Cr., 456 P.2d 571 (1969), this Court held such discourteous responses are sufficient to warrant a citation for contempt. Coupling defendant's expletive with the discourteous responses, it is this Court's opinion there was sufficient evidence upon which the trial court could find defendant was in direct contempt of court.'
31
Yet the Court reverses petitioner's conviction on its determination that the trial judge 'rested the conviction upon the use of the expletive only.' The Court reads the criminal information to charge solely the use of the expletive, and relies on the fact that the Judgment and Sentence refers specifically to the 'offense' charged in the information.
32
The Court's reading of the language of the information seems to me much too restrictive; the information charged that petitioner 'did . . . commit a contempt of court by his insolent behavior during open court and in the presence of Judge Thomas S. Crewson, to-wit: by using the language 'chicken-shit,' in the City of Tulsa Municipal Court . . ..' I am not prepared to say that this language would not put petitioner on notice that he was being charged with contempt of court by his course of conduct which began with the use of the expletive and ended with his discourteous remarks to the trial judge. In the absence of a transcript of the contempt proceedings, the Court is simply not in a position to know whether the trial judge based the contempt conviction solely on the use of the expletive, as the Court assumes, or whether the trial judge found petitioner guilty of contempt based on the course of conduct which began with the expletive and ended with the discourteous remarks.
33
The Oklahoma Court of Criminal Appeals apparently felt that the trial judge had considered the other remarks made by petitioner in finding him guilty of contempt.1 Presumably that court was aware of what the information charged and what the judgment and sentence said. The 'Judgment and Sentence' heavily relied upon by the Court for its reference to the '(said) offense' charged in the information is simply a preprinted standardized form in which the only thing to be filled in by the sentencing judge is the name of the defendant, the date of the judgment, the sentence imposed, and the ordinance the defendant is charged with violating.
34
Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948), was a very different case from the instant one. There the petitioners were tried under an information charging them only with a violation of a secution of a state statute making it an offense to promote an unlawful assemblage during a labor dispute. The trial court had instructed the jury on that section, and the jury had returned a conviction. On appeal to the Supreme Court of Arkansas, petitioners had contended that the section of the state statute violated the Constitution. Without passing on that question, the State Supreme Court sustained petitioners' convictions on the grounds that the information charged and the evidence showed that petitioners had violated an entirely different section of the same statute, which proscribed the distinct offense of using force and violence to prevent a person from engaging in a lawful vocation. This Court reversed, noting that the trial judge had, at the request of the prosecutor, read the former section to the jury and had instructed that the "offense . . . on trial in this case" is the "promoting, encouraging or aiding of such unlawful assemblage by concert of action among the defendants as is charged in the information here." Id., at 199, 68 S.Ct., at 516.
35
Here we have no basis to conclude with any degree of certainty that the petitioner's contempt conviction rests solely on the use of the expletive. Both Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969), and Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942), were cases where all of the relevant lower court proceedings were incorporated in the record before this Court, and ambiguity was present despite that fact.2 Here, however, there is no such ambiguity arising out of a full record; there is instead a total absence of any record of the trial which resulted in the conviction which the Court now reverses. I have no doubt that a majority of this Court would refuse to reverse petitioner's conviction in this case if it had a full record before it, and the record indicated that at the contempt hearing the trial judge had made it clear to petitioner that he was being charged with contempt based on the course of conduct beginning with his use of the expletive and ending with his discourteous remarks to the judge. Whatever the force of Street and Williams on their own facts, where ambiguity was present despite the fact that there was a full record available in this Court, I would not extend them to reach this case, where petitioner has failed to preserve a full record of what transpired below.
36
This Court each year reviews thousands of cases from the state courts, many of which, like this one, are characterized by less than perfect records. Reversal of state court judgments of conviction, especially in summary fashion, without argument, should be reserved for palpably clear cases of constitutional error. Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942); Stroble v. California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872 (1952). Since here the basis for the Court's reversal is its own highly speculative judgment as to essentially factual matters on a record which offers no more support for petitioner than it does for respondent, I dissent.
*
Assuming, arguendo, (1) that the information sufficiently charged petitioner for both use of the expletive and his allegedly 'discourteous responses,' and (2) that there was evidence of the latter offense, reversal is still required, since the record fails to 'negate the possibility,' Street v. New York, 394 U.S. 576, 588, 89 S.Ct. 1354, 1363, 22 L.Ed.2d 572 (1969), that the conviction was based solely or in part on the use of the expletive. '(W) hen a single-count . . . information charges the commission of a crime by virtue of the defendant's having done both a constitutionally protected act and one which may be unprotected, and a guilty verdict ensues without elucidation, there is an unacceptable danger that the trier of fact will have regarded the two acts as 'interwined' and have rested the conviction on both together.' Ibid. Cf. Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931); Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945); Bachellar v. Maryland, 397 U.S. 564, 90 S.Ct. 1312, 25 L.Ed.2d 570 (1970). And this principle is not limited, nor should it be, to cases in which the conviction may have been based on protected speech. See Williams v. North Carolina, 317 U.S. 287, 291—292, 63 S.Ct. 207, 209—210, 87 L.Ed. 279 (1942). Here, the 'Judgment and Sentence' not only does not dispel the possibility that petitioner's conviction was based solely or partially on the use of the expletive, but plainly supports the opposite conclusion.
1
There is no indication that petitioner was so unsophisticated or perhaps even so illiterate as to be unaware that his language was inappropriate for a courtroom. To the contrary, petitioner's statements in the courtroom, for example, 'I think me being asked to speculate as to why someone would jump on me from behind is not within any kind of realm of prosecution,' indicate that he was not a victim of his own lack of awareness of the demands of the situation.
2
In addition, since I conclude that petitioner herein could constitutionally be punished for the use of the expletive, cases such as Street and Williams are for me inapposite, since they dealt with situations where the Court felt that convictions may have been based on constitutionally impermissible elements in the charges or in the evidence.
| 01
|
415 U.S. 724
94 S.Ct. 1274
39 L.Ed.2d 714
Thomas Tone STORER et al., Appellants,v.Edmund G. BROWN, Jr., et al. Laurence H. FROMMHAGEN, Appellant, v. Edmund G. BROWN, Jr., et al.
Nos. 72—812, 72—6050.
Argued Nov. 5, 1973.
Decided March 26, 1974.
Rehearing Denied May 28, 1974.
See 417 U.S. 926, 94 S.Ct. 2635.
Syllabus
Section 6830(d) (Supp.1974) of the California Elections Code forbids ballot position to an independent candidate for elective public office if he had a registered affiliation with a qualified political party within one year prior to the immediately preceding primary election; § 6831 (1961) requires an independent candidate's nominating papers to be signed by voters not less in number than 5% nor more than 6% of the entire vote cast in the preceding general election; § 6833 (Supp.1974) requires all such signatures to be obtained during a 24-day period following the primary and ending 60 days prior to the general election; and § 6830(c) (Supp.1974) requires that none of such signatures be those of persons who voted at the primary. Appellants Storer and Frommhagen were disqualified under § 6830(d) (Supp.1974) for ballot status as independent candidates for Congress in the 1972 California elections because they were affiliated with a qualified party no more than six months prior to the primary. Appellants Hall and Tyner were disqualified for ballot status as independent candidates for President and Vice President in the same election for failure to meet petition requirements. Appellants brought actions challenging the constitutionality of the above provisions, claiming that their combined effect infringed on rights guaranteed by the First and Fourteenth Amendments. A three-judge District Court dismissed the complaints, concluding that the statutes served a sufficiently important state interest to sustain their constitutionality. Held:
1. Section 6830(d) (Supp.1974) is not unconstitutional, and appellants Storer and Frommhagen (who were affiliated with a qualified party no more than six months before the primary) were properly barred from the ballot as a result of its application. Pp. 728—737.
(a) The provision reflects a general state policy aimed at maintaining the integrity of the various routes to the ballot, and involves no discrimination against independents. Though an independent candidate must be clear of party affiliations for a year before the primary, a party candidate under § 6490 (Supp.1974) of the Code must not have been registered with another party for a year before he files his declaration, which must be done not less than 83 days and not more than 113 days prior to the primary. Pp. 733—734.
(b) The provision protects the direct primary process, which is an integral part of the entire election process by refusing to recognize independent candidates who do not make early plans to leave a party and take the alternative course to the ballot; works against independent candidacies prompted by short-range political goals, pique or personal quarrel; is a substantial barrier to a party fielding an 'independent' candidate to capture and bleed off votes in the general election that might well go to another party; and thus furthers the State's compelling interest in the stability of its political system, outweighing the interest the candidate and his supporters may have in making a late rather than an early decision to seek independent ballot status. Pp. 734—735.
2. Further proceedings should be had in the District Court to permit additional findings concerning the extent of the burden imposed on independent candidates for President and Vice President under California law, particularly with respect to whether § 6831 (1961) and § 6833 (Supp.1974) place an unconstitutional restriction on access by appellants Hall and Tyner to the ballot. Pp. 738—746.
(a) It should be determined whether the available pool of possible signers of the nominating papers is so diminished by the disqualification of those who voted in the primary that the 5% provision, which as applied here apparently imposes a 325,000-signature requirement, to be satisfied in 24 days, is unduly onerous. Pp. 739—740.
(b) While the District Court apparently took the view that California law disqualified anyone who voted in the primary from signing an independent's petition, whether or not the vote was confined to nonpartisan matters, it would be difficult on the record before this Court to ascertain any rational ground, let alone a compelling interest, for disqualifying nonpartisan primary voters. Pp. 741—742.
(c) Once the District Court ascertains the number of signatures required in the 24-day period, along with the total pool from which they may be drawn, the court then, in determining whether in the context of California politics a reasonably diligent independent candidate could be expected to satisfy the signature requirements or will only rarely succeed in securing ballot placement, should consider not only past experience, but also the relationship between the showing of support through a petition requirement and the percentage of the vote the State can reasonably expect of a candidate who achieves ballot status in the general election. Pp. 742—746.
Affirmed in part, vacated and remanded in part.
Paul N. Halvonik and Joseph Remcho, San Francisco, Cal., for appellants.
Clayton P. Roche, San Francisco, Cal., for appellees.
Mr. Justice WHITE delivered the opinion of the Court.
1
The California Elections Code forbids ballot position to an independent candidate for elective public office if he voted in the immediately preceding primary, § 6830(c) (Supp.1974),1 or if he had a registered affiliation with a qualified political party at any time within one year prior to the immediately preceding primary election. § 6830(d) (Supp.1974). The independent candidate must also file nomination papers signed by voters not less in number than 5% nor more than 6% of the entire vote cast in the preceding general election in the area for which the candidate seeks to run. § 6831 (1961). All of these signatures must be obtained during a 24-day period following the primary and ending 60 days prior to the general election, § 6833 (Supp.1974), and none of the signatures may be gathered from persons who vote at the primary election. § 6830(c) (Supp.1974). The constitutionality of these provisions is challenged here as infringing on rights guaranteed by the First and Fourteenth Amendments and as adding qualifications for the office of United States Congressman, contrary to Art. I, § 2, cl. 2, of the Constitution.
2
Prior to the 1972 elections, appellants Storer, Frommhagen, Hall, and Tyner, along with certain of their supporters, filed their actions2 to have the above sections of the Elections Code declared unconstitutional and their enforcement enjoined. Storer and Frommhagen each sought ballot status as an independent candidate for Congressman for his district.3 Both complained about the party disaffiliation requirement of § 6830(d) (Supp.1974) and asserted that the combined effects of the provisions were unconstitutional burdens on their First and Fourteenth Amendment rights. Hall and Tyner claimed the right to ballot position as independent candidates for President and Vice President of the United States. They were members of the Communist Party but that party had not qualified for ballot position in California. They, too, complained of the combined effect of the indicated sections of the Election Code on their ability to achieve ballot position.
3
A three-judge District Court concluded that the statutes served a sufficiently important state interest to sustain their constitutionality and dismissed the complaints. Two separate appeals were taken from the judgment. We noted probable jurisdiction and consolidated the cases for oral argument. 410 U.S. 965, 93 S.Ct. 1441, 35 L.Ed.2d 700 (1973).
4
* We affirm the judgment of the District Court insofar as it refused relief to Storer and Frommhagen with respect to the 1972 general election. Both men were registered Democrats until early 17 1972, Storer until January and Frommhagen until March of that year. This affiliation with a qualified political party within a year prior to the 1972 primary disqualified both men under § 6830(d) (Supp.1974); and in our view the State of California was not prohibited by the United States Constitution from enforcing that provision against these men.
5
In Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968), the Court held that although the citizens of a State are free to associate with one of the two major political parties, to participate in the nomination of their chosen party's candidates for public office and then to cast their ballots in the general election, the State must also provide feasible means for other political parties and other candidates to appear on the general election ballot. The Ohio law under examination in that case made no provision for independent candidates and the requirements for any but the two major parties qualifying for the ballot were so burdensome that it was 'virtually impossible' for other parties, new or old, to achieve ballot position for their candidates. Id., at 25, 89 S.Ct., at 7. Because these restrictions, which were challenged under the Equal Protection Clause, severely burdened the right to associate for political purposes and the right to vote effectively, the Court, borrowing from other cases, ruled that the discriminations against new parties and their candidates had to be justified by compelling state interests. The Court recognized the substantial state interest in encouraging compromise and political stability, in attempting to ensure that the election winner will represent a majority of the community and in providing the electorate with an understandable ballot and inferred that 'reasonable requirements for ballot position,' id., at 32, 89 S.Ct., at 11, would be acceptable. But these important interests were deemed insufficient to warrant burdens so severe as to confer an effective political monopoly on the two major parties. The First and Fourteenth Amendments, including the Equal Protection Clause of the latter, required as much.
6
In challenging § 6830(d) (Supp.1974) appellants rely on Williams v. Rhodes and assert that under that case and subsequent cases dealing with exclusionary voting and candidate qualifications, e.g., Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969), substantial burdens on the right to vote or to associate for political purposes are constitutionally suspect and invalid under the First and Fourteenth Amendments and under the Equal Protection Clause unless essential to serve a compelling state interest. These cases, however, do not necessarily condemn § 6830(d) (Supp.1974). It has never been suggested that the Williams-Kramer-Dunn rule automatically invalidates every substantial restriction on the right to vote or to associate. Nor could this be the case under our Constitution where the States are given the initial task of determining the qualifications of voters who will elect members of Congress. Art. I, § 2, cl. 1. Also Art. I, § 4, cl. 1, authorizes the States to prescribe '(t)he Times, Places and Manner of holding Elections for Senators and Representatives.' Moreover, as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes. In any event, the States have evolved comprehensive, and in many respects complex, election codes regulating in most substantial ways, with respect to both federal and state elections, the time, place, and manner of holding primary and general elections, the registration and qualifications of voters, and the selection and qualification of candidates.
7
It is very unlikely that all or even a large portion of the state election laws would fail to pass muster under our cases; and the rule fashioned by the Court to pass on constitutional challenges to specific provisions of election laws provides no litmus-paper test for separating those restrictions that are valid from those that are invidious under the Equal Protection Clause. The rule is not self-executing and is no substitute for the hard judgments that must be made. Decision in this context, as in others, is very much a 'matter of degree,' Dunn v. Blumstein, supra, 405 U.S., at 348, 92 S.Ct., at 1006, very much a matter of 'consider(ing) the facts and circumstances behind the law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification.' Williams v. Rhodes, supra, 393 U.S., at 30, 89 S.Ct., at 10; Dunn v. Blumstein, supra, 405 U.S., at 335, 92 S.Ct., at 999. What the result of this process will be in any specific case may be very difficult to predict with great assurance.
8
The judgment in Dunn v. Blumstein invalidated the Tennessee one-year residence requirement for voting but agreed that the State's interest was obviously sufficient to limit voting to residents, to require registration for voting, and to close the registration books at some point prior to the election, a deadline which every resident must meet if he is to cast his vote at the polls. Subsequently, three-judge district courts differed over the validity of a requirement that voters be registered for 50 days prior to election. This Court, although divided, sustained the provision. Burns v. Fortson, 410 U.S. 686, 93 S.Ct. 1209, 35 L.Ed.2d 633 (1973); Marston v. Lewis, 410 U.S. 679, 93 S.Ct. 1211, 35 L.Ed.2d 627 (1973).
9
Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973), is more relevant to the problem before us. That case dealt with a provision that to vote in a party primary the voter must have registered as a party member 30 days prior to the previous general election, a date eight months prior to the presidential primary and 11 months prior to the non-presidential primary. Those failing to meet this deadline, with some exceptions, were barred from voting at either primary. We sustained the provision as 'in no sense invidious or arbitrary,' because it was 'tied to (the) particularized legitimate purpose,' id., at 762, 93 S.Ct. at 1252, of preventing interparty raiding, a matter which bore on 'the integrity of the electoral process.' Id., at 761, 93 S.Ct., at 1251.
10
Later the Court struck down similar Illinois provisions aimed at the same evil, where the deadline for changing party registration was 23 months prior to the primary date. Kusper v. Pontikes, 414 U.S. 51, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973). One consequence was that a voter wishing to change parties could not vote in any primary that occurred during the waiting period. The Court did not retreat from Rosario or question the recognition in that case of the States' strong interest in maintaining the integrity of the political process by preventing interparty raiding. Although the 11-month requirement imposed in New York had been accepted as necessary for an effective remedy, the Court was unconvinced that the 23-month period established in Illinois was an essential instrument to counter the evil at which it was aimed.
11
Other variables must be considered where qualifications for candidates rather than for voters are at issue. In Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971), we upheld a requirement that independent candidates must demonstrate substantial support in the community by securing supporting signatures amounting to 5% of the total registered voters in the last election for filling the office sought by the candidate. The Court said:
12
'There is surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization's candidate on the ballot—the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the general election.' Id., at 442, 91 S.Ct., at 1976.
13
Subsequently, in Bullock v. Carter, 405 U.S., at 145, 92 S.Ct., at 857, a unanimous Court said:
14
'The Court has recognized that a State has a legitimate interest in regulating the number of candidates on the ballot. Jenness v. Fortson, 403 U.S., at 442, 91 S.Ct., at 1976; Williams v. Rhodes, 393 U.S., at 32, 89 S.Ct. 5, at 11. In so doing, the State understandably and properly seeks to prevent the clogging of its election machinery, avoid voter confusion, and assure that the winner is the choice of a majority, or at least a strong plurality, of those voting, without the expense and burden of runoff elections. Although we have no way of gauging the number of candidates who might enter primaries in Texas if access to the ballot were unimpeded by the large filing fees in question here, we are bound to respect the legitimate objectives of the State in avoiding overcrowded ballots. Moreover, a State has an interest, if not a duty, to protect the integrity of its political processes from frivolous or fraudulent candidacies. Jenness v. Fortson, 403 U.S., at 442, 91 S.Ct., at 1976.'
15
Against this pattern of decisions, we have no hesitation in sustaining § 6830(d) (Supp.1974). In California, the independent candidacy route to obtaining ballot position is but a part of the candidate-nominating process, an alternative to being nominated in one of the direct party primaries. The independent candidate need not stand for primary election but must qualify for the ballot by demonstrating substantial public support in another way. Otherwise, the qualifications required of the independent candidate are very similar to, or identical with, those imposed on party candidates. Section 6401 (Supp.1974) imposes a flat disqualification upon any candidate seeking to run in a party primary if he has been 'registered as affiliated with a political party other than that political party the nomination of which he seeks within 12 months immediately prior to the filing of the declaration.' Moreover, §§ 6402 and 6611 provide that a candidate who has been defeated in a party primary may not be nominated as an independent or be a candidate of any other party; and no person may file nomination papers for a party nomination and an independent nomination for the same office, or for more than one office at the same election.
16
The requirement that the independent candidate not have been affiliated with a political party for a year before the primary is expressive of a general state policy aimed at maintaining the integrity of the various routes to the ballot. It involves no discrimination against independents. Indeed, the independent candidate must be clear of political party affiliations for a year before the primary; the party candidate must not have been registered with another party for a year before he files his declaration, which must be done not less than 83 and not more than 113 days prior to the primary. § 6490 (Supp.1974).
17
In Rosario v. Rockefeller, there was an 11-month waiting period for voters who wanted to change parties. Here, a person terminating his affiliation with a political party must wait at least 12 months before he can become a candidate in another party's primary or an independent candidate for public office. The State's interests recognized in Rosario are very similar to those that undergird the California waiting period; and the extent of the restriction is not significantly different. It is true that a California candidate who desires to run for office as an independent must anticipate his candidacy substantially in advance of his election campaign, but the required foresight is little more than the possible 11 months examined in Rosario, and its direct impact is on the candidate, and not voters. In any event, neither Storer nor Frommhagen is in position to complain that the waiting period is one year, for each of them was affiliated with a qualified party no more than six months prior to the primary. As applied to them, § 6830(d) (Supp.1974) is valid.
18
After long experience, California came to the direct party primary as a desirable way of nominating candidates for public office. It has also carefully determined which public offices will be subject to partisan primaries and those that call for nonpartisan elections.4 Moreover, after long experience with permitting candidates to run in the primaries of more than one party, California forbade the cross-filing practice in 1959.5 A candidate in one party primary may not now run in that of another; if he loses in the primary, he may not run as an independent; and he must not have been associated with another political party for a year prior to the primary. See §§ 6401, 6611. The direct party primary in California is not merely an exercise or warm-up for the general election but an integral part of the entire election process,6 the initial stage in a two-stage process by which the people choose their public officers. If functions to winnow out and finally reject all but the chosen candidates. The State's general policy is to have contending forces within the party employ the primary campaign and primary election to finally settle their differences. The general election ballot is reserved for major struggles; it is not a forum for continuing intraparty feuds. The provision against defeated primary candidates running as independents effectuates this aim, the visible result being to prevent the losers from continuing the struggle and to limit the names on the ballot to those who have won the primaries and those independents who have properly qualified. The people, it is hoped, are presented with understandable choices and the winner in the general election with sufficient support to govern effectively.
19
Section 6830(d) (Supp.1974) carries very similar credentials. It protects the direct primary process by refusing to recognize independent candidates who do not make early plans to leave a party and take the alternative course to the ballot. It works against independent candidacies prompted by short-range political goals, pique, or personal quarrel. It is also a substantial barrier to a party fielding an 'independent' candidate to capture and bleed off votes in the general election that might well go to another party.
20
A State need not take the course California has, but California apparently believes with the Founding Fathers that splintered parties and unrestrained factionalism may do significant damage to the fabric of government. See The Federalist, No. 10 (Madison). It appears obvious to us that the one-year disaffiliation provision furthers the State's interest in the stability of its political system. We also consider that interest as not only permissible, but compelling and as outweighing the interest the candidate and his supporters may have in making a late rather than an early decision to seek independent ballot status. Nor do we have reason for concluding that the device California chose, § 6830(d) (Supp.1974), was not an essential part of its overall mechanism to achieve its acceptable goals. As we indicated in Rosario, the Constitution does not require the State to choose ineffectual means to achieve its aims. To conclude otherwise might sacrifice the political stability of the system of the State, with profound consequences for the entire citizenry, merely in the interest of particular candidates and their supporters having instantaneous access to the ballot.
21
We conclude that § 6830(d) (Supp.1974) is not unconstitutional, and Storer and Frommhagen were properly barred from the ballot as a result of its application.7 Cf. Lippitt v. Cipollone, 404 U.S. 1032, 92 S.Ct. 729, 30 L.Ed.2d 725 (1972). Having reached this result, there is no need to examine the constitutionality of the other provisions of the Elections Code as they operate singly or in combination as applied to these candidates. Even if these statutes were wholly or partly unconstitutional, Storer and Frommhagen were still properly barred from having their names placed on the 1972 ballot. Although Williams v. Rhodes, 393 U.S., at 34, 89 S.Ct., at 12, spoke in terms of assessing the 'totality' of the election laws as they affected constitutional rights, if a candidate is absolutely and validly barred from the ballot by one provision of the laws, he cannot challenge other provisions as applied to other candidates. The concept of 'totality' is applicable only in the sense that a number of facially valid provisions of election laws may operate in tandem to produce impermissible barriers to constitutional rights. The disaffiliation requirement does not change its character when combined with other provisions of the electoral code. It is an absolute bar to candidacy, and a valid one. The District Court need not have heard a challenge to these other provisions of the California Elections Code by one who did not satisfy the age requirement for becoming a member of Congress, and there was no more reason to consider them at the request of Storer and Frommhagen or at the request of voters who desire to support unqualified candidates.8
II
22
We come to different conclusions with respect to Hall and Tyner.9 As to these two men we vacate the judgment of the District Court and remand the case for further proceedings to determine whether the California election laws place an unconstitutional burden on their access to the ballot.
23
We start with the proposition that the requirements for an independent's attaining a place on the general election ballot can be unconstitutionally severe. Williams v. Rhodes, supra. We must, therefore, inquire as to the nature, extent, and likely impact of the California requirements.
24
Beyond the one-year party disaffiliation condition and the rule against voting in the primary, both of which Hall apparently satisfied, it was necessary for an independent candidate to file a petition signed by voters not less in number than 5% of the total votes cast in California at the last general election. This percentage, as such, does not appear to be excessive, see Jenness v. Fortson, supra, but to assess realistically whether the law imposes excessively burdensome requirements upon independent candidates it is necessary to know other critical facts which do not appear from the evidentiary record in this case.
25
It is necessary in the first instance to know the 'entire vote' in the last general election. Appellees suggest that 5% of that figure, whatever that is, is 325,000. Assuming this to be the correct total signature requirement, we also know that it must be satisfied within a period of 24 days between the primary and the general election. But we do not know the number of qualified voters from which the requirement must be satisfied within this period of time. California law disqualifies from signing the independent's petition all registered voters who voted in the primary. In theory, it could be that voting in the primary was so close to 100% of those registered, and new registrations since closing the books before primary day were so low, that eligible signers of an unaffiliated candidate's petition would number less than the total signatures required. This is unlikely, for it is usual that a substantial percentage of those eligible do not vote in the primary, and there were undoubtedly millions of voters qualified to vote in the 1972 primary. But it is not at all unlikely that the available pool of possible signers, after eliminating the total primary vote, will be substantially smaller than the total vote in the last general election and that it will require substantially more than 5% of the eligible pool to produce the necessary 325,000 signatures. This would be in excess, percentagewise, of anything the Court has approved to date as a precondition to an independent's securing a place on the ballot and in excess of the 5% which we said in Jenness was higher than the requirement imposed by most state election codes.10
26
We are quite sure, therefore, that further proceedings should be had in the District Court to permit further findings with respect to the extent of the burden imposed on independent candidates for President and Vice President under California law. Standing alone, gathering 325,000 signatures in 24 days would not appear to be an impossible burden. Signatures at the rate of 13,542 per day would be required, but 1,000 canvassers could perform the task if each gathered 14 signers a day. On its face, the statute would not appear to require an impractical undertaking for one who desires to be a candidate for President. But it is a substantial requirement; and if the additional likelihood is, as it seems to us to be, tht the total signatures required will amount to a substantially higher percentage of the available pool than the 5% stipulated in the statute, the constitutional claim asserted by Hall is not frivolous. Before the claim is finally dismissed, it should be determined whether the available pool is so diminished in size by the disqualification of those who voted in the primary that the 325,000-signature requirement, to be satisfied in 24 days, is too great a burden on the independent candidates for the offices of President and Vice President.
27
Because further proceedings are required, we must resolve certain issues that are in dispute in order that the ground rules for the additional fact-finding in the District Court will more clearly appear. First, we have no doubt about the validity of disqualifying from signing an independent candidate's petition all those registered voters who voted a partisan ballot in the primary, although they did not vote for the office sought by the independent. We have considered this matter at greater length in American Party of Texas v. White, 415 U.S. 767, 785—786, 94 S.Ct. 1296, 1308, 39 L.Ed.2d 744, and we merely repeat here that a State may confine each voter to one vote in one primary election, and that to maintain the integrity of the nominating process the State is warranted in limiting the voter to participating in but one of the two alternative procedures, the partisan or the nonpartisan, for nominating candidates for the general election ballot.
28
Second, the District Court apparently had little doubt that the California law disqualified anyone voting in the primary election, whether or not he confined his vote to nonpartisan offices and propositions.11 The State of California asserts this to be an erroneous interpretation of California law and claims that the District Court should have abstained to permit the California courts to address the question. In any event, the State does not attempt to justify disqualifying as signers of an independent's petition those who voted only a nonpartisan ballot at the primary, such as independent voters who themselves were disqualified from voting a partisan ballot. See § 311 (Supp.1974). With what we have before us, it would be difficult to ascertain any rational ground, let alone a compelling interest, for disqualifying nonpartisan voters at the primary from signing an independent candidate's petition, and we think the District Court should reconsider the matter in the light of tentative views expressed here. Under the controlling cases, the District Court may, if it is so advised, abstain and permit the California courts to construe the California statute. On the other hand, it may be that adding to the qualified pool of signers all those nonpartisan voters at the primary may make so little difference in the ultimate assessment of the overall burden of the signature requirement that the status of the nonpartisan voter is in fact an insignificant consideration not meriting abstention.12
29
Third, once the number of signatures required in the 24-day period is ascertained, along with the total pool from which they may be drawn, there will arise the inevitable question for judgment: in the context of California politics, could a reasonably diligent independent candidate be expected to satisfy the signature requirements, or will it be only rarely that the unaffiliated candidate will succeed in getting on the ballot? Past experience will be a helpful, if not always an unerring, guide: it will be one thing if independent candidates have qualified with some regularity and quite a different matter if they have not. We note here that the State mentions only one instance of an independent candidate's qualifying for any office under § 6430, but disclaims having made any comprehensive survey of the official records that would perhaps reveal the truth of the matter. One of the difficulties will be that the number of signatures required will vary with the total vote in the last election; the total disqualifying vote at the primary election and hence the size of the eligible pool of possible signers will also vary from election to election. Also to be considered is the relationship between the showing of support through a petition requirement and the percentage of the vote the State can reasonably expect of a candidate who achieves ballot status in the general election.
30
As a preliminary matter, it would appear that the State, having disqualified defeated candidates and recent defectors, has in large part achieved its major purpose of providing and protecting an effective direct primary system and must justify its independent signature requirements chiefly by its interest in having candidates demonstrate substantial support in the community so that the ballot, in turn, may be protected from frivolous candidacies and kept within limits understandable to the voter. If the required signatures approach 10% of the eligible pool of voters, is it necessary to serve the State's compelling interest in a manageable ballot to require that the task of signature gathering be crowded into 24 days?13 Of course, the petition period must end at a reasonable time before election day to permit nomination papers to be verified. Neither must California abandon its policy of confinding each voter to a single nominating act either voting in the partisan primary or a signature on an independent petition. But the question remains whether signature gathering must await conclusion of the primary. It would not appear untenable to permit solicitation of signatures to begin before primary day and finish afterwards. Those signing before the primary could either be definitely disqualified from a partisan vote in the primary election or have the privilege of canceling their petition signatures by the act of casting a ballot in the primary election. And if these alternatives are unacceptable, there would remain the question whether it is essential to demonstrate community support to gather signatures of substantially more than 5% of the group from which the independent is permitted to solicit support.14
31
Appellees insist, however, that the signature requirements for independent candidates are of no consequence because California has provided a valid way for new political parties to qualify for ballot position, an alternative that Hall could have pursued, but did not. Under § 6430, new political parties can be recognized and qualify their candidate for ballot position if 135 days before a primary election it appears that voters equal in number to at least 1% of the entire vote of the State at the last preceding gubernatorial election have declared to the county clerks their intention to affiliate with the new party, or if, by the same time, the new party files a petition with signatures equal in number to 10% of the last gubernatorial vote.15 It is argued that the 1% registration requirement is feasible, has recently been resorted to successfully by two new political parties now qualified for the California ballot, and goes as far as California constitutionally must go in providing an alternative to the direct party primary of the major parties.
32
It may be that the 1% registration requirement is a valid condition to extending ballot position to a new political party. Cf. American Party of Texas v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744. But the political party and the independent candidate approaches to political activity are entirely different and neither is a satisfactory substitute for the other. A new party organization contemplates a statewide, ongoing organization with distinctive political character. Its goal is typically to gain control of the machinery of state government by electing its candidates to public office. From the standpoint of a potential supporter, affiliation with the new party would mean giving up his ties with another party or sacrificing his own independent status, even though his possible interest in the new party centers around a particular candidate for a particular office. For the candidate himself, it would mean undertaking the serious responsibilities of qualified party status under California law, such as the conduct of a primary, holding party conventions, and the promulgation of party platforms. But more fundamentally, the candidate, who is by definition an independent and desires to remain one, must now consider himself a party man, surrendering his independent status. Must he necessarily choose the political party route if he wants to appear on the ballot in the general election? We think not.
33
In Williams v. Rhodes, the opportunity for political activity within either of two major political parties was seemingly available to all. But this Court held that to comply with the First and Fourteenth Amendments the State must provide a feasible opportunity for new political organizations and their candidates to appear on the ballot. No discernible state interest justified the burdensome and complicated regulations that in effect made impractical any alternative to the major parties. Similarly, here, we perceive no sufficient state interest in conditioning ballot position for an independent candidate on his forming a new political party as long as the State is free to assure itself that the candidate is a serious contender, truly independent, and with a satisfactory level of community support.16
34
Accordingly, we vacate the judgment in No. 72—812 insofar as it refused relief to Hall and Tyner and remand the case in this respect to the District Court for further proceedings consistent with this opinion. In all other respects, the judgment in No. 72 812 and No. 72—6050 is affirmed.
35
So ordered.
36
Affirmed in part, vacated and remanded in part.
APPENDIX TO OPINION OF THE COURT
California Elections Code
37
s 41. 'Nonpartisan office'
38
'Nonpartisan office' means an office for which no party may nominate a candidate. Judicial, school, county, and municipal offices are nonpartisan offices.
39
s 311 (Supp.1974). Declaration of political affiliation; voting at primary elections
40
At the time of registering and of transferring registration, each elector may declare the name of the political party with which he intends to affiliate at the ensuing primary election. The name of that political party shall be stated in the affidavit of registration and the index.
41
If the elector declines to state his political affiliation, he shall be registered as 'Nonpartisan' or 'Declines to state,' as he chooses. If the elector declines to state his political affiliation, he shall be informed that no person shall be entitled to vote the ballot of any political party at any primary election unless he has stated the name of the party with which he intends to affiliate at the time of registration. He shall not be permitted to vote the ballot of any party or for delegates to the convention of any party other than the party designated in his registration.
42
s 2500. General election
43
There shall be held throughout the State, on the first Tuesday after the first Monday of November in every even-numbered year, an election, to be known as the general election.
44
s 2501. Direct primary
45
For the nomination of all candidates to be voted for at the general election, a direct primary shall be held at the legally designated polling places in each precinct on the first Tuesday after the first Monday in the immediately preceding June.
46
s 2502. Primary elections
47
Any primary election other than the direct primary or presidential primary shall be held on Tuesday, three weeks next preceding the election for which the primary election is held.
48
s 6401 (Supp.1974). Party affiliation
49
No declaration of candidacy for a partisan office or for membership on a county central committee shall be filed, either by the candidate himself or by sponsors on his behalf, (1) unless at the time of presentation of the declaration and continuously for not less than three months immediately prior to that time, or for as long as he has been eligible to register to vote in the state, the candidate is shown by his affidavit of registration to be affiliated with the political party the nomination of which he seeks, and (2) the candidate has not been registered as affiliated with a political party other than that political party the nomination of which he seeks within 12 months immediately prior to the filing of the declaration.
50
The county clerk shall attach a certificate to the declaration of candidacy showing the date on which the candidate registered as intending to affiliate with the political party the nomination of which he seeks, and indicating that the candidate has not been affiliated with any other political party for the 12-month period immediately preceding the filing of the declaration.
51
s 6402. Independent nominees
52
This chapter does not prohibit the independent nomination of candidates under the provisions of Chapter 3 (commencing at Section 6800) of this division, subject to the following limitations:
53
(a) A candidate whose name has been on the ballot as a candidate of a party at the direct primary and who has been defeated for that party nomination is ineligible for nomination as an independent candidate. He is also ineligible as a candidate named by a party central committee to fill a vacancy on the ballot for a general election.
54
(b) No person may file nomination papers for a party nomination and an independent nomination for the same office, or for more than one office at the same election.
55
s 6430. Qualified parties
56
A party is qualified to participate in any primary election:
57
(a) If at the last preceding gubernatorial election there was polled for any one of its candidates who was the candidate of that party only for any office voted on throughout the State, at least 2 percent of the entire vote of the State; or
58
(b) If at the last preceding gubernatorial election there was polled for any one of its candidates who, upon the date of that election, as shown by the affidavits of registration of voters in the county of his residence, was affiliated with that party and was the joint candidate of that party and any other party for any office voted on throughout the State, at least 6 percent of the entire vote of the State; or
59
(c) If on or before the 135th day before any primary election, it appears to the Secretary of State, as a result of examining and totaling the statement of voters and their political affiliations transmitted to him by the county clerks, that voters equal in number to at least 1 percent of the entire vote of the State at the last preceding gubernatorial election have declared their intention to affiliate with that party; or (d) If on or before the 135th day before any primary election, there is filed with the Secretary of State a petition signed by voters, equal in number to at least 10 percent of the entire vote of the State at the last preceding gubernatorial election, declaring that they represent a proposed party, the name of which shall be stated in the petition, which proposed party those voters desire to have participate in that primary election. This petition shall be circulated, signed, verified and the signatures of the voters on it shall be certified to and transmitted to the Secretary of State by the county clerks substantially as provided for initiative petitions. Each page of the petition shall bear a caption in 18-point blackface type, which caption shall be the name of the proposed party followed by the words 'Petition to participate in the primary election.' No voters or organization of voters shall assume a party name or designation which is so similar to the name of an existing party as to mislead voters.
60
Whenever the registration of any party which qualified in the previous direct primary election falls below one-fifteenth of 1 percent of the total state registration, that party shall not be qualified to participate in the primary election but shall be deemed to have been abandoned by the voters, since the expense of printing ballots and holding a primary election would be an unjustifiable expense and burden to the State for so small a group. The Secretary of State shall immediately remove the name of the party from any list, notice, ballot, or other publication containing the names of the parties qualified to participate in the primary election.
61
s 6490 (Supp.1974). Declaration of candidacy
62
No candidate's name shall be printed on the ballot to be used at a direct primary unless a declaration of his candidacy is filed not less than 83 and not more than 113 days prior to the direct primary.
63
The declaration may be made by the candidate or by sponsors on his behalf.
64
When the declaration is made by sponsors the candidate's affidavit of acceptance shall be filed with the declaration.
65
s 6611. Unsuccessful candidate; ineligibility as candidate of another party
66
A candidate who fails to receive the highest number of votes for the nomination of the political party with which he was registered as affiliated on the date his declaration of candidacy or declaration of acceptance of nomination was filed with the county clerk cannot be the candidate of any other political party.
67
s 6803. Group of candidates for presidential electors; designation of presidential and vice presidential candidates
68
Whenever a group of candidates for presidential electors, equal in number to the number of presidential electors to which this State is entitled, files a nomination paper with the Secretary of State pursuant to this chapter, the nomination paper may contain the name of the candidate for President of the United States and the name of the candidate for Vice President of the United States for whom all of those candidates for presidential electors pledge themselves to vote.
69
s 6804. Printing of names on ballot
70
When a group of candidates for presidential electors designates the presidential and vice presidential candidates for whom all of the group pledge themselves to vote, the names of the presidential candidate and vice presidential candidate designated by that group shall be printed on the ballot.
71
s 6830 (Supp.1974). Contents
72
Each candidate or group of candidates shall file a nomination paper which shall contain:
73
(a) The name and residence address of each candidate, including the name of the county in which he resides.
74
(b) A designation of the office for which the candidate or group seeks nomination.
75
(c) A statement that the candidate and each signer of his nomination paper did not vote at the immediately preceding primary election at which a candidate was nominated for the office mentioned in the nomination paper. The statement required in this subdivision shall be omitted when no candidate was nominated for the office at the preceding primary election.
76
(d) A statement that the candidate is not, and was not at any time during the one year preceding the immediately preceding primary election at which a candidate was nominated for the office mentioned in the nomination paper, registered as affiliated with a political party qualified under the provisions of Section 6430. The statement required by this subdivision shall be omitted when no primary election was held to nominate candidates for the office to which the independent nomination paper is directed.
77
s 6831. Signatures required
78
Nomination papers shall be signed by voters of the area for which the candidate is to be nominated, not less in number than 5 percent nor more than 6 percent of the entire vote cast in the area at the preceding general election. Nomination papers for Representative in Congress, State Senator or Assemblyman, to be voted for at a special election to fill a vacancy, shall be signed by voters in the district not less in number than 500 or 1 percent of the entire vote cast in the area at the preceding general election, whichever is less, nor more than 1,000.
79
s 6833 (Supp.1974). Time for filing, circulation and signing; verification
80
Nomination papers required to be filed with the Secretary of State or with the county clerk shall be filed not more than 79 nor less than 54 days before the day of the election, but shall be prepared, circulated, signed, verified and left with the county clerk for examination, or for examination and filing, no earlier than 84 days before the election and no later than 5 p.m. 60 days before the election. If the total number of signatures submitted to a county clerk for an office entirely within that county does not equal the number of signatures needed to qualify and candidate, the county clerk shall declare the petition void and is not required to verify the signatures. If the district falls within two or more counties, the county clerk shall within two working day report in writing to the Secretary of State the total number of signatures filed. If the Secretary of State finds that the total number of signatures filed in the district or state is less than the minimum number required to qualify the candidate he shall within one working day notify in writing the counties involved that they need not verify the signatures.
81
s 10014. Ballots for voters at primary elections
82
At a primary election only a nonpartisan ballot shall be furnished to each voter who is not registered as intending to affiliate with any one of the political parties participating in the primary election; and to any voter registered as intending to affiliate with a political party participating in a primary election, there shall be furnished only a ballot of the political party with which he is registered as intending to affiliate.
83
s 10232. Inconveniently large ballots
84
If the election board of a county determines that due to the number of candidates and measures that must be printed on the general election ballot, the ballot will be larger than may be conveniently handled, the board may order nonpartisan offices and local measures omitted from the general election ballot and printed on a separate ballot in a form substantially the same as provided for the general election ballot. If the board so orders, each voter shall receive both ballots, and the procedure prescribed for the handling and canvassing of ballots shall be modified to the extent necessary to permit the use of two ballots by a voter. The board may, in such case, order the second ballot to be printed on paper of a different tint and assign to those ballots numbers higher than those assigned to the ballots containing partisan offices and statewide ballot measures.
85
s 10318. Inconveniently large ballots
86
If the election board of a county determines that due to the number of candidates and measures that must be printed on the direct primary ballot the ballot will be larger than may be conveniently handled, the board may provide that a nonpartisan ballot shall be given to each partisan voter, together with his partisan ballot, and that the material appearing under the heading 'Nonpartisan Offices' on partisan ballots, as well as the heading itself, shall be omitted from the partisan ballots. If the board so provides, the procedure prescribed for the handling and canvassing of ballots shall be modified to the extent necessary to permit the use of two ballots by partisan voters.
87
s 18600 (Supp.1974). Write-in votes
88
Any name written upon a ballot shall be counted, unless prohibited by Section 18603, for that name for the office under which it is written, if it is written in the blank space therefor, whether or not a cross ( ) is stamped or made with pen or pencil in the voting square after the name so written.
89
s 18601 (Supp.1974). Declaration required
90
Every person who desires to have his name as written on the ballots of an election counted for a particular office shall file a declaration stating that he is a write-in candidate for the nomination for or election to the particular office and giving the title of that office.
91
s 18602 (Supp.1974). Declaration; filing
92
The declaration required by Section 18601 shall be filed no later than the eighth day prior to the election to which it applies. It shall be filed with the clerks, registrar of voters, or district secretary responsible for the conduct of the election in which the candidate desires to have write-in votes of his name counted.
93
s 18603 (Supp.1974). Requirements for tabulation of write-in vote
94
No name written upon a ballot in any state, county, city, city and county, or district election shall be counted for an office or nomination unless
95
(a) A declaration has been filed pursuant to Sections 18601 and 18602 declaring a write-in candidacy for that particular person for that particular office or nomination and
96
(b) The fee required by Section 6555 is paid when the declaration of write-in candidacy is filed pursuant to Section 18602.
97
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL concur, dissenting.
98
The Court's opinion in these cases, and that in American Party of Texas v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744, hold—correctly in my view—that the test of the validity of state legislation regulating candidate access to the ballot is whether we can conclude that the legislation, strictly scrutinized, is necessary to further compelling state interests. See Ante, 736; American Party of Texas v. White, supra, 415 U.S., at 780, 94 S.Ct., at 1305; for, as we recognized in Williams v. Rhodes, 393 U.S. 23, 30, 39 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968), such state laws 'place burdens on two different, although overlapping, kinds of rights the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.' The right to vote derives from the right of association that is at the core of the First Amendment, protected from state infringement by the Fourteenth Amendment. NAACP v. Button, 371 U.S. 415, 430, 83 S.Ct. 328, 336, 9 L.Ed.2d 405 (1963); Bates v. Little Rock, 361 U.S. 516, 522—523, 80 S.Ct. 412, 416, 4 L.Ed.2d 480 (1960); NAACP v. Alabama, 357 U.S. 449, 460—461, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488 (1958). Indeed, the right to vote is 'a fundamental political right, because preservative of all rights,' Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 1071, 30 L.Ed. 220 (1886), and '(o)ther rights, even the most basic, are illusory if the right to vote is undermined,' Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 535, 11 L.Ed.2d 481 (1964). See also Reynolds v. Sims, 377 U.S. 533, 555, 84 ,S.Ct. 1362, 1378, 12 L.Ed.2d 506 (1964). Thus, when legislation burdens such a fundamental constitutional right, it is not enough that the legislative means rationally promote legitimate governmental ends. Rather,
99
'governmental action may withstand constitutional scrutiny only upon a clear showing that the burden imposed is necessary to protect a compelling and substantial governmental interest. Shapiro v. Thompson, 394 U.S. (618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600 (1969)); United States v. Jackson, 390 U.S. 570, 582—583, 88 S.Ct. 1209, 1216, 20 L.Ed.2d 138 (1968); Sherbert v. Verner, 374 U.S. 398, 406—409, 83 S.Ct. 1790, 1795, 1797, 10 L.Ed.2d 965 (1963). And once it be determined that a burden has been placed upon a constitutional right, the onus of demonstrating that no less intrusive means will adequately protect compelling state interests is upon the party seeking to justify the burden. See Speiser v. Randall, 357 U.S. 513, 525 526, 78 S.Ct. 1332, 1341, 2 L.Ed.2d 1460 (1958).' Oregon v. Mitchell, 400 U.S. 112, 238, 91 S.Ct. 260, 321, 27 L.Ed.2d 272 (1970) (separate opinion of BRENNAN, WHITE, and MARSHALL, JJ.
100
See also Dunn v. Blumstein, 405 U.S. 330, 336—337, 92 S.Ct. 995, 999, 31 L.Ed.2d 274 (1972); Kramer v. Union Free School District, 395 U.S. 621, 627, 89 S.Ct. 1886, 1889, 23 L.Ed.2d 583 (1969); Williams v. Rhodes, 393 U.S. 23, at 31, 89 S.Ct. 5, at 10, 21 L.Ed.2d 24.
101
I have joined the Court's opinion in American Party of Texas v. White, supra,1 because I agree that, although the conditions for access to the general election ballot imposed by Texas law burden constitutionally protected rights, nevertheless those laws 'are constitutionally valid measures, reasonably taken in pursuit of vital state objectives that cannot be served equally well in significantly less burdensome ways.' Supra, 415 U.S., at 781, 94 S.Ct., at 1306. I dissent, however, from the Court's holding in these cases that although the California party disaffiliation Rule, California Elections Code § 6830(d) (Supp.1974), also burdens constitutionally protected rights, California's compelling state interests 'cannot be served equally well in significantly less burdensome ways.'
102
* The California statute absolutely denies ballot position to independent candidates who, at any time within 12 months prior to the immediately preceding primary election, were registered as affiliated with a qualified political party. Intertwined with Cal. Elections Code §§ 2500, 2501 (1961), which require primary elections to be held five months before the general election, § 6830(d) (Supp.1974) plainly places a significant burden upon independent candidacy—and therefore effectively burdens as well the rights of potential supporters and voters to associate for political purposes and to vote, see Williams v. Rhodes, supra, 393 U.S., at 30, 89 S.Ct., at 9 (1968); Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 855, 31 L.Ed.2d 92 (1972)—because potential independent candidates, currently affiliated with a recognized party, are required to take affirmative action toward candidacy fully 17 months before the general election. Thus, such candidates must make that decision at a time when, as a matter of the realities of our political system, they cannot know either who will be the nominees of the major parties, or what the significant election issues may be. That is an impossible burden to shoulder. We recognized in Williams v. Rhodes, supra, 393 U.S., at 33, 89 S.Ct., at 11, that 'the principal policies of the major parties change to some extent from year to year, and . . . the identity of the likely major party nominees may not be known until shortly before the election . . ..' Today, not even the casual observer of American politics can fail to realize that often a wholly unanticipated event will in only a matter of months dramatically alter political fortunes and influence the voters' assessment of vital issues. By requiring potential independent candidates to anticipate, and crystallize their political responses to, these changes and events 17 months prior to the general election, § 6830(d) (Supp.1974) clearly is out of step with 'the potential fluidity of American political life,' Jenness v. Fortson, 403 U.S. 431, 439, 91 S.Ct. 1970, 1975, 29 L.Ed.2d 554 (1971), operating as it does to discourage independent candidacies and freeze the political status quo.
103
The cases of appellants Storer and Frommhagen pointedly illustrate how burdensome California's party disaffiliation rule can be. Both Storer and Frommhagen sought to run in their respective districts as independent candidates for Congress. The term of office for the United States House of Representatives, of course, is two years. Thus, § 6830(d) (Supp.1974) required Storer and Frommhagen to disaffiliate from their parties within seven months after the preceding congressional election. Few incumbent Congressmen, however, declare their intention to seek re-election seven months after election and only four months into their terms. Yet, despite the unavailability of this patently critical piece of information, Storer and Frommhagen were forced by § 6830(d) (Supp.1974) to evaluate their political opportunities and opt in or out of their parties 17 months before the next congressional election.
104
The Court acknowledges the burdens imposed by § 6830(d) (Supp.1974) upon fundamental personal liberties, see ante, at 734, but agrees with the State's assertion that the burdens are justified by the State's compelling interest in the stability of its political system, ante, at 736. Without § 6830(d) (Supp.1974), the argument runs, the party's primary system, an integral part of the election process, is capable of subversion by a candidate who first opts to participate in that method of ballot access, and later abandons the party and its candidate-selection process, taking with him his party supporters. Thus, in sustaining the validity of § 6830(d) (Supp.1974), the Court finds compelling the State's interests in preventing splintered parties and unrestricted factionalism and protecting the direct-primary system, ante, at 736.2
105
But the identification of these compelling state interests, which I accept, does not end the inquiry. There remains the necessity of determining whether these vital state objectives 'cannot be served equally well in significantly less burdensome ways.' Compelling state interests may not be pursued by
106
'means that unnecessarily burden or restrict constitutionally protected activity. Statutes affecting constitutional rights must be drawn with 'precision,' NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963); United States v. Robel, 389 U.S. 258, 265, 88 S.Ct. 419 ,424, 19 L.Ed.2d 508 (1967), and must be 'tailored' to serve their legitimate objectives. Shapiro v. Thompson (394 U.S. 618, 631, 89 S.Ct. 1322, 1329, 22 L.Ed.2d 600 (1969)). And if there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference. If it acts at all, it must choose 'less drastic means.' Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960).' Dunn v. Blumstein, 405 U.S. 330, 343, 92 S.Ct. 995, 1003, 31 L.Ed.2d 274 (1972).
107
While it is true that the Court purports to examine into 'less drastic means,' its analysis is wholly inadequate. The discussion is limited to these passing remarks, ante, at 736:
108
'Nor do we have reason for concluding that the device California chose, § 6830(d) (Supp.1974), was not an essential part of its overall mechanism to achieve its acceptable goals. As we indicated in Rosario, the Constitution does not require the State to choose ineffectual means to achieve its aims. To conclude otherwise might sacrifice the political stability of the system of the State, with profound consequences for the entire citizenry, merely in the interest of particular candidates and their supporters having instantaneous access to the ballot.'
109
Naturally, the Constitution does not require the State to choose ineffective means to achieve its aims. The State must demonstrate, however, that the means it has chosen are 'necessary.' Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331 (1969). See also American Party of Texas v. White, supra, 415 U.S., at 780—781, 94 S.Ct., at 1305.
110
I have searched in vain for even the slightest evidence in the records of these cases of any effort on the part of the State to demonstrate the absence of reasonably less burdensome means of achieving its objectives. This crucial failure cannot be remedied by the Court's conjecture that other means 'might sacrifice the political stability of the system of the State' (emphasis added). When state legislation burdens fundamental constitutional rights, as conceded here, we are not a liberty to speculate that the State might be able to demonstrate the absence of less burdensome means; the burden of affirmatively demonstrating this is upon the State. Dunn v. Blumstein, supra, 405 U.S. at 343, 92 S.Ct., at 1003; Shapiro v. Thompson, supra, 394 U.S., at 634, 89 S.Ct., at 1331; Sherbert v. Verner, 374 U.S. 398, 406—409, 83 S.Ct. 1790, 1795, 10 L.Ed.2d 965 (1963).
111
Moreover, less drastic means—which would not require the State to give appellants 'instantaneous access to the ballot'—seem plainly available to achieve California's objectives. First, requiring party disaffiliation 12 months before the primary elections is unreasonable on its face. There is no evidence that splintering and factionalism of political parties will result unless disaffiliation is effected that far in advance of the primaries. To the contrary, whatever threat may exist to party stability is more likely to surface only shortly before the primary, when the identities of the potential field of candidates and issues become known. See Williams v. Rhodes, 393 U.S., at 33, 89 S.Ct., at 11. Thus, the State's interests would be adequately served and the rights of the appellants less burdened if the date when disaffiliation must be affected were set significantly closer to the primaries. Second, the requirement of party disaffiliation could be limited to those independent candidates who actually run in a party primary. Section 6830(d) (Supp.1974) sweeps far too broadly in its application to potential independent candidates who though registered as affiliated with a recognized party, do not run for the party's nomination. Such an independent candidate plainly poses no threat of utilizing the party machinery to run in the primary, and then declaring independent candidacy, thereby splitting the party.
II
112
I also dissent from the Court's remand, in the case of appellants Hall and Tyner, of the question concerning the constitutionality of the petition requirements imposed upon independent candidates. Under the relevant statutes, Hall and Tyner, candidates for President and Vice President, were required to file signatures equal to 5% of the total vote cast in California's preceding general election. § 6831. However, the pool from which signatures could be drawn excluded all persons who had voted in the primary elections, including voters who had cast nonpartisan ballots. § 6830(c) (Supp.1974). Furthermore, circulation of the petitioners was not permitted until two months after the primaries, and the necessary signatures were required to be obtained during a 24-day period. § 6833 (Supp.1974). The Court avoids resolving the constitutionality of these election laws by remanding to the District Court for further proceedings. On remand, the District Court is directed to determine (1) the total vote cast in the last general election as a predicate to computation of the 5% of signatures required by the statutory provision, and (2) the size of the pool to which appellants were required to limit their efforts in obtaining signatures. The Court reasons that these findings are necessary to a determination 'whether the available pool is so diminished in size by the disqualification of those who voted in the primary that the 325,000-signature requirement, to be satisfied in 24 days, is too great a burden on the independent candidates for the offices of President and Vice President.' Ante, at 740.
113
If such a remand were directed in the cases of Storer and Frommhagen I could agree, for in those cases there is a complete absence of data necessary to facilitate determination of the actual percentage of available voters that appellants Storer and Frommhagen were required to secure. A remand in the case of Hall and Tyner, however, is unnecessary because the data upon which relevant findings must be based are already available to us. The data are cited by the Court, ante, at 742 n. 12 and at 744 n. 14. Evaluated in light of our decision in Jenness v. Fortson, supra, the data leave no room for doubt that California's statutory requirements are unconstitutionally burdensome as applied to Hall and Tyner. Official voting statistics published by the California Secretary of State indicate that 6,633,400 persons voted in the 1970 general election. See Secretary of State, Statement of Vote, General Election, November 7, 1972, p. 6. Appellants were required to secure signatures totaling 5% of that number, i.e., 331,670. The statistics also indicate the size of the total pool from which appellants were permitted to gather signatures. The total number of registered voters on September 14, 1972—the last day appellants were permitted to file nomination petitions—was 9,953,124. See Secretary of State, Report of Registration, September 1972, p. 8. Of that number, 6,460,220 registered voters could not sign petitions because they had voted in the 1972 primary elections. See Secretary of State, Statement of Vote, Consolidated Primary Election, June 6, 1972, pp. 3, 4—23. Thus, the total pool of registered voters available to appellants was reduced to approximately 3,492,904, of which the required 331,670 signatures was 9.5%.3
114
In my view, a percentage requirement even approaching the range of 9.5% serves no compelling state interest which cannot be served as well by less drastic means. To be sure, in Jenness we acknowledged that:
115
'There is surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization's candidate on the ballot—the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the general election.' 403 U.S., at 442, 91 S.Ct., at 1976.
116
We there upheld the constitutionality of Georgia's election laws requiring potential independent candidates to gather the signatures equal to 5% of the total eligible electorate at the last general election for the office in question. However, candidates were given a full six months to circulate petitions and no restrictions were placed upon the pool of registered voters from which signatures could be drawn. In that circumstance, we found that Georgia imposed no unduly burdensome restrictions upon the free circulation of nominating petitions. We noted:
117
'A voter may sign a petition even though he has signed others, and a voter who has signed the petition of a nonparty candidate is free thereafter to participate in a party primary. The signer of a petition is not required to state that he intends to vote for that candidate at the election. A person who has previously voted in a party primary is fully eligible to sign a petition, and so, on the other hand, is a person who was not even registered at the time of the previous election. No signature on a nominating petition need be notarized.' Id., at 438—439, 91 S.Ct., at 1974 (footnotes omitted).
118
Thus, although Georgia's 5% requirement was higher than that required by most States, the Court found it 'balanced by the fact that Georgia . . . imposed no arbitrary restrictions whatever upon the eligibility of any registered voter to sign as many nominating petitions as he wishes.' Id., at 442, 91 S.Ct., at 1976.
119
California seeks to justify its election laws by pointing to the same substantial interests we identified in Jenness, of insuring that candidates possess a modicum of support, and that voters are not confused by the length of the ballot. But in sharp contrast to the election laws we upheld in Jenness, California's statutory scheme greatly restricted the pool of registered voters from which appellants Hall and Tyner were permitted to draw signatures. The 5% requirement, in reality, forced them to secure the signatures of 9.5% of the voters permitted by law to sign nomination petitions. Moreover, unlike Georgia's six-month period for gathering signatures, the California election laws required appellants to meet that State's higher percentage requirement in only 25 days. Thus, even conceding the substantiality of its aims, the State has completely failed to demonstrate why means less drastic than its high percentage requirement and short circulation period—such as the statutory scheme enacted in Georgia—will not achieve its interests.
120
Accordingly, I would reverse the judgment of the District Court dismissing these actions, and remand for further proceedings consistent with this opinion.
1
The relevant provisions of the California Elections Code are printed in the appendix to this opinion.
2
Storer's action, No. 72—812, was filed first. Frommhagen was allowed to intervene. Hall and Tyner later filed suit. In its opinion the District Court noted that '(b)y appropriate orders and stipulations, although the cases were never consolidated, the parties to Hall will be bound by the rulings made in Storer which are common to both cases and any separate issues in Hall stand submitted without further briefing or oral argument. The view taken by the Court herein is such that there are no separate issues in Hall and the rulings expressed are dispositive of both cases.'
3
Storer sought to be a candidate from the Sixth Congressional District, Frommhagen from the Twelfth.
4
The California Elections Code § 41 provides that judicial, school, county, and municipal offices are nonpartisan offices for which no party may nominate a candidate.
5
See Gaylord, History of the California Election Laws 59, contained in West's Ann.Elec. Code (1961), preceding §§ 1—11499.
6
See In re McGee, 36 Cal.2d 592, 226 P.2d 1 (1951).
7
Moreover, we note that the independent candidate who cannot qualify for the ballot may nevertheless resort to the write-in alternative provided by California law, see §§ 18600 18603 (Supp.1974).
8
The 1972 election is long over, and no effective relief can be provided to the candidates or voters, but this case is not moot, since the issues properly presented, and their effects on independent candidacies, will persist as the California statutes are applied in future elections. This is, therefore, a case where the controversy is 'capable of repetition, yet evading review.' Rosario v. Rockefeller, 410 U.S. 752, 756 n. 5, 93 S.Ct. 1245, 1249 n. 5; Dunn v. Blumstein, 405 U.S. 330, 333 n. 2, 92 S.Ct. 995, 998 n. 2 (1972); Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969); Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). The 'capable of repetition, yet evading review' doctrine, in the context of election cases, is appropriate when there are 'as applied' challenges as well as in the more typical case involving only facial attacks. The construction of the statute, an understanding of its operation, and possible constitutional limits on its application, will have the effect of simplifying future challenges, thus increasing the likelihood that timely filed cases can be adjudicated before an election is held.
9
In California, presidential electors must meet candidacy requirements and file their nomination papers with the required signatures. §§ 6803, 6830. The State claims, therefore, that the electors, not Hall and Tyner, are the only persons with standing to raise the validity of the signature requirements. But it is Hall's and Tyner's names that go on the California ballot for consideration of the voters. § 6804. Without the necessary signatures this will not occur. It is apparent, contrary to the State's suggestion, that Hall and Tyner have ample standing to challenge the signature requirement.
Hereafter, in the text and notes, reference to Hall should be understood as referring also to Tyner.
10
See also Auerbach v. Mandel, 409 U.S. 808, 93 S.Ct. 55, 34 L.Ed.2d 69 (1972) (3%); Wood v. Putterman, 316 F.Supp. 646 (Ind.1970) (three-judge court), aff'd mem., 400 U.S. 859, 91 S.Ct. 104, 27 L.Ed.2d 99 (1970) (3%); and Beller v. Kirk, 328 F.Supp. 485 (S.D.Fla.1970) (three-judge court), aff'd mem. sub nom. Beller v. Askew, 403 U.S. 925, 91 S.Ct. 2248, 29 L.Ed.2d 705 (1971) (3%). We note that in Socialist Labor Party v. Rhodes, 318 F.Supp. 1262 (SD Ohio 1970) (three-judge court), the District Court struck down a 7% petition requirement. That issue became moot on appeal, Socialist Labor Party v. Gilligan, 406 U.S. 583, 585, 92 S.Ct. 1716, 1717, 32 L.Ed.2d 317 (1972).
11
Two ballots are authorized in California primaries, the one for partisan office and the other for nonpartisan offices and propositions. See §§ 10014, 10232, 10318. A voter may take only the nonpartisan ballot and refrain from voting on partisan candidates.
12
From the official published voting statistics published by the California Secretary of State, it would appear that the total vote in the 1972 primaries, seemingly the total number of persons voting, was 6,460,220, while the total vote for partisan presidential candidates was 5,880,845. Thus all but approximately 579,000 voted for a partisan candidate in the presidential primary and it is likely that many of the 579,000 not voting for President cast a partisan ballot for other candidates. But assuming that they did not, the maximum addition to the pool available to Hall would be 579,000, probably a relatively small difference in terms of the total number of eligible signers. See Secretary of State, Statement of Vote, State of California, Consolidated Primary Election, June 6, 1972, pp. 3, 4—23.
13
Appellees argue only that the independent candidate's canvassing for signatures should await the announcement of the primary winners and the promulgation of party platforms so that the voters eligible to sign, i.e., those not voting in the primary, will have a meaningful choice between the primary nominations and the independents. This does not appear to be a matter particularly relevant to signing petitions for ballot position, for the meaningful choice referred to by appellees will be finally presented at the general election.
14
It may help to put this case in proper context to hypothesize the scope of Hall's petition and signature burden under the California law by employing the election statistics available from official sources in California. Assuming that the 'entire vote' in the last general election was the total number of persons voting in the 1970 election, 6,633,400, 5% of that figure, or the total number of signatures required, is 331,670. See Secretary of State, Statement of Vote, General Election, November 7, 1972, p. 6. The total registration for the 1972 primary was 9,105,287. See 1972 Primary Vote, p. 3. Adding to this figure an estimate of the increase in registration since the primary date and subtracting the minimum partisan vote at the primary election, the available pool of possible signers, by this calculation, would be 4,072,279, see Secretary of State, Report of Registration, September 1972, p. 8, of which the required 331,670, signatures was 8.1%.
15
The 1% registration requirement contemplates independent voters registering as affiliated with the party. The 10%-signature requirement, on the other hand, need not involve signers changing their registration.
16
Appellants also contend that § 6830(d) (Supp.1974) purports to establish an additional qualification for office of Representative and is invalid under Art. I, § 2, cl. 2, of the Constitution. The argument is wholly without merit. Storer and Frommhagen would not have been disqualified had they been nominated at a party primary or by an adequately supported independent petition and then elected at the general election. The non-affiliation requirement no more establishes an additional requirement for the office of Representative than the requirement that the candidate win the primary to secure a place on the general ballot or otherwise demonsrate substantial community support.
1
Mr. Justice Douglas adheres to the views stated in his opinion dissenting in part in American Party of Texas v. White, supra, 415 U.S. 767, at 795, 94 S.Ct. 1296, at 1313.
2
The Court also opines that § 6830(d) (Supp.1974) may be 'a substantial barrier to a party fielding an 'independent' candidate to capture and bleed off votes in the general election that might well go to another party,' ante, at 735. But the State suggests no reliance upon this alleged interest and we are therefore not at liberty to turn our decision upon our conjecture that this might have been a state objective. In any event, the prospect of such a misuse seems more fanciful than real and, as we said in Williams v. Rhodes, 393 U.S. 23, 33, 89 S.Ct. 5, 12, 21 L.Ed.2d 24 (1968), '(n)o such remote danger can justify (an) immediate and crippling impact on . . . basic constitutional rights . . .'
3
The Court's computations, ante, at 744 n. 14, suggest that Hall and Tyner need only have collected signatures from 8.1% of the available voter pool. The Court's calculation assumes that the voter pool available to Hall and Tyner included approximately 579,000 persons who may have only voted in nonpartisan primaries. Section 6830(c) (Supp.1974) makes no such exception; the pool available for signatures is expressly limited to those voters who 'did not vote at the immediately preceding primary election . . ..' I agree with the Court, however, that exclusion of persons voting at nonpartisan primaries is not supported by a compelling state interest.
| 12
|
415 U.S. 528
94 S.Ct. 1372
39 L.Ed.2d 577
Cynthia HAGANS et al., Petitioners,v.Abe LAVINE, Commissioner of New York State Department of Social Services, et al.
No. 72—6476.
Argued Dec. 11, 1973.
Decided March 25, 1974.
Syllabus
Petitioners, recipients of public assistance under the federal-state Aid to Families with Dependent Children (AFDC) program, brought this action under 42 U.S.C. § 1983 and 28 U.S.C. § 2201 challenging a New York regulation permitting the State to recoup prior unscheduled payments for rent from subsequent grants under the AFDC program, on the ground that the regulation violated the Equal Protection Clause of the Fourteenth Amendment and conflicted with the Social Security Act and implementing regulations of the Department of Health, Education, and Welfare (HEW). Injunctive and declaratory relief was sought and jurisdiction was invoked under 28 U.S.C. §§ 1343(3) and (4). The District Court declared the recoupment regulation contrary to the Social Security Act and HEW regulations and enjoined its implementation or enforcement. The Court of Appeals reversed, holding that because petitioners had failed to present a substantial constitutional claim, the District Court lacked jurisdiction to entertain either the equal protection or the statutory claim. Held:
1. The District Court had jurisdiction under 28 U.S.C. § 1343(3). Pp. 534—543.
(a) Section 1343(3) conferred jurisdiction to entertain the constitutional claim if it was of sufficient substance to support federal jurisdiction, in which case, the District Court could hear as a matter of pendent jurisdiction the claim of conflict between federal and state law, without determining that the latter clim in its own right was encompassed within § 1343. P. 536.
(b) Within the accepted substantiality doctrine, petitioners' complaint alleged a constitutional claim sufficient to confer jurisdiction on the District Court to pass on the controversy, since (1) the complaint alleged a deprivation, under color of state law, of constitutional rights within the meaning of § 1343(3) and s 1983; (2) the equal protection issue was neither frivolous nor so insubstantial as to be beyond the District Court's jurisdiction, and the challenged regulation was not so clearly rational as to require no meaningful consideration; and (3) the cause of action alleged was not so patently without merit as to justify a dismissal for want of jurisdiction, Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939, whatever may be the ultimate resolution of the federal issues on the merits. Pp. 536—543.
2. Given a constitutional question over which the District Court had jurisdiction, it also had jurisdiction over the 'statutory' claim. The latter claim was to be decided first and could be decided by the single district judge, while the constitutional claim could be adjudicated only by a three-judge court and only if the statutory claim was previously rejected. Pp. 543—545.
3. State law claims pendent to federal constitutional claims conferring jurisdiction on a district court generally are not to be dismissed. Given advantages of economy and convenience and no unfairness to litigants, they are to be adjudicated, particularly where they may be dispositive and their decision would avoid adjudication of federal constitutional questions. There are special reasons to adjudicate the pendent claim where, as here, the claim, although called 'statutory,' is in reality a constitutional claim arising under the Supremacy Clause, since 'federal courts are particularly appropriate bodies for the application of pre-emption principles.' Mine Workers v. Gibbs, 383 U.S. 715, 729, 86 S.Ct. 1130, 1140—1141, 16 L.Ed.2d 218. Pp. 545 550.
471 F.2d 347, reversed and remanded.
Carl Jay Nathanson, Hempstead, N.Y., for petitioners.
Michael Colodner, Asst. Atty. Gen., N.Y. State Dept. of Law, New York City, for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
Petitioners, recipients of public assistance under the cooperative federal-state Aid to Families With Dependent Children (AFDC) program,1 brought this action in the District Court for themselves and their infant children and as representatives of other similarly situated AFDC recipients. Their suit challenged a provision of the New York Code of Rules and Regulations permitting the State to recoup prior unscheduled payments for rent from subsequent grants under the AFDC program.2 They alleged that the recoupment regulation violated the Equal Protection Clause of the Fourteenth Amendment and contravened the pertinent provisions of the Social Security Act governing AFDC and the regulations promulgated thereunder by the administering federal agency, the Department of Health, Education, and Welfare (HEW).3 The action sought injunctive and declaratory relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 2201, and jurisdiction was invoked under 28 U.S.C. §§ 1343(3) and (4). The District Court found that the equal protection claim was substantial and provided a basis for pendent jurisdiction to adjudicate the so-called 'statutory' claim—the alleged conflict between state and federal law. After hearing, the trial court declared the recoupment regulation contrary to the Social Security Act and HEW regulations and enjoined its implementation or enforcement. Following a remand,4 the Court of Appeals reversed, holding that because petitioners had failed to present a substantial constitutional claim, the District Court lacked jurisdiction to entertain either the equal protection or the statutory claim. 471 F.2d 347 (CA2 1973). The jurisdictional question being an important one, we granted certiorari, 412 U.S. 938, 93 S.Ct. 2784, 37 L.Ed.2d 396 (1973). For reasons set forth below, we hold that the District Court had jurisdiction under 28 U.S.C. § 1343(3) to consider petitioners' attack on the recoupment regulation.5
2
* Petitioners brought this action under 42 U.S.C. § 1983, which provides:
3
'Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.'
4
By its terms, § 1983 embraces petitioners' claims that the challenged regulation enforced by respondent state and county welfare officials deprives them of a right 'secured by the Constitution and laws,' viz., the equal protection of the laws. But the federal cause of action created by the section does not by itself confer jurisdiction upon the federal district courts to adjudicate these claims. Accordingly, petitioners relied principally upon 28 U.S.C. § 1343(3):
5
'The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
6
'(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States . . ..'
7
Concededly, § 1343 authorizes a civil action to 'redress the deprivation, under color of any State . . . regulation . . . of any right . . . secured by the Constitution of the United States.' Section 1343(3) therefore conferred jurisdiction upon the District Court to entertain the constitutional claim if it was of sufficient substance to support federal jurisdiction. If it was, it is also clear that the District Court could hear as a matter of pendent jurisdiction the claim of conflict between federal and state law, without determining that the latter claim in its own right was encompassed within § 1343. Rosado v. Wyman, 397 U.S. 397, 402—405, 90 S.Ct. 1207, at 1212—1214, 25 L.Ed.2d 442 (1970); see also N.Y. Dept. of Social Services v. Dublino, 413 U.S. 405, 412 n. 11, 93 S.Ct. 2507, 2512, 37 L.Ed.2d 688 (1973).
8
The Court of Appeals ruled that petitioners had not tendered a substantial constitutional claim and ordered dismissal of the entire action for want of subject matter jurisdiction. The principle applied by the Court of Appeals—that a 'substantial' question was necessary to support jurisdiction—was unexceptionable under prior cases. Over the years this Court has repeatedly held that the federal courts are without power to entertain claims otherwise within their jurisdiction if they are 'so attenuated and unsubstantial as to be absolutely devoid of merit,' Newburyport Water Co. v. Newburyport, 193 U.S. 561, 579, 24 S.Ct. 553, 557, 48 L.Ed. 795 (1904); 'wholly insubstantial,' Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 550—551, 7 L.Ed.2d 512 (1962); 'obviously frivolous,' Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, 30 S.Ct. 326, 327, 54 L.Ed. 482 (1910); 'plainly unsubstantial,' Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105, 53 S.Ct. 549, 550, 77 L.Ed. 1062 (1933); or 'no longer open to discussion,' McGilvra v. Ross, 215 U.S. 70, 80, 30 S.Ct. 27, 31, 54 L.Ed. 95 (1909). One of the principal decisions on the subject, Ex parte Poresky, 290 U.S. 30, 31—32, 54 S.Ct. 3, 4—5, 78 L.Ed. 152 (1933), held, first, that '(i)n the absence of diversity of citizenship, it is essential to jurisdiction that a substantial federal question should be presented'; second, that a three-judge court was not necessary to pass upon this initial question of jurisdiction; and third, that '(t)he question, may be plainly unsubstantial, either because it is 'obviously without merit' or because 'its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.' Levering & Garrigues Co. v. Morrin, supra; Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, 30 S.Ct. 326, 54 L.Ed. 482; McGilvra v. Ross, 215 U.S. 70, 80, 30 S.Ct. 27, 54 L.Ed. 95.'
9
Only recently this Court again reviewed this general question where it arose in the context of convening a three-judge court under 28 U.S.C. § 2281:
10
"Constitutional insubstantiality' for this purpose has been equated with such concepts as 'essentially fictitious,' Bailey v. Patterson, 369 U.S., at 33, 82 S.Ct., at 551, 'wholly insubstantial,' ibid.; 'obviously frivolous,' Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, 30 S.Ct. 326, 327, 54 L.Ed. 482 (1910); and 'obviously without merit,' Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 4—5, 78 L.Ed. 152 (1933). The limiting words 'wholly' and 'obviously' have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial for the purposes of 28 U.S.C. § 2281. A claim is insubstantial only if "its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy." Ex parte Poresky, supra, at 32, 54 S.Ct., at 4, quoting from Hannis Distilling Co. v. Baltimore, supra, 216 U.S., at 288, 30 S.Ct., at 327; see also Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 106, 53 S.Ct. 549, 550, 77 L.Ed. 1062 (1933); McGilvra v. Ross, 215 U.S. 70, 80, 30 S.Ct. 27, 31, 54 L.Ed. 95 (1909).' Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 858—859, 35 L.Ed.2d 36 (1973).
11
The substantiality doctrine as a statement of jurisdictional principles affecting the power of a federal court to adjudicate constitutional claims has been questioned, Bell v. Hood, 327 U.S. 678, 683, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946), and characterized as 'more ancient than analytically sound,' Rosado v. Wyman, supra, 397 U.S., at 404, 90 S.Ct., at 1214. But it remains the federal rule and needs no re-examination here, for we are convinced that within accepted doctrine petitioners' complaint alleged a constitutional claim sufficient to confer jurisdiction on the District Court to pass on the controversy.
12
Jurisdiction is essentially the authority conferred by Congress to decide a given type of case one way or the other. The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411—412, 57 L.Ed. 716 (1913). Here, § 1343(3) and § 1983 unquestionably authorized federal courts to entertain suits to redress the deprivation, under color of state law, of constitutional rights. It is also plain that the complaint formally alleged such a deprivation. The District Court's jurisdiction, a matter for threshold determination, turned on whether the question was too insubstantial for consideration.
13
In Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), AFDC recipients challenged the Maryland maximum grant regulation on equal protection grounds. We held that the issue should be resolved by inquiring whether the classification had a rational basis. Finding that it did, we sustained the regulation. But Dandridge evinced no intention to suspend the operation of the Equal Protection Clause in the field of social welfare law. State laws and regulations must still 'be rationally based and free from invidious discrimination.' Id., at 487, 90 S.Ct., at 1162. See Jefferson v. Hackney, 406 U.S. 535, 546, 92 S.Ct. 1724, 1731, 32 L.Ed.2d 285 (1972); Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 1234, 31 L.Ed.2d 569 (1972); cf. San Antonio School Independent District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973).
14
Judged by this standard, we cannot say that the equal protection issue tendered by the complaint was either frivolous or so insubstantial as to be beyond the jurisdiction of the District Court. We are unaware of any cases in this Court specifically dealing with this or any similar regulation and settling the matter one way or the other.6 Nor is it immediately obvious to us from the face of the complaint that recouping emergency rent payments from future welfare disbursements, which petitioners argue deprived needy children because of parental default, was so patently rational as to require no meaningful consideration.
15
The Court of Appeals rightly felt obliged to measure petitioners' complaint that the challenged regulation violated the Equal Protection Clause 'by discriminating irrationally and invidiously between different classes of recipients'7 against the standard prescribed by Dandridge. The Court of Appeals then reasoned that without the recoupment regulation, those who were subject to it would be preferred over those who had paid their full rent out of their normal monthly grant. The court further reasoned that the regulation provided an incentive for welfare recipients to properly manage their grants and not become delinquent in their rent.8 It concluded that the regulation was rationally based and that no substantial constitutional question within the jurisdiction of the District Court had been presented.
16
This reasoning with respect to the rationality of the regulation and its propriety under the Equal Protection Clause may ultimately prove correct, but it is not immediately obvious from the decided cases or so 'very plain'9 under the Equal Protection Clause. We think the admonition of Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), should be followed here:
17
'Jurisdiction . . . is not defeated as respondents seem to contend, by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover. For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy. If 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.' Id., at 682, 66 S.Ct., at 776. (Citations omitted).10
18
As was the case in Bell v. Hood, we cannot 'say that the cause of action alleged is so patently without merit as to justify, even under the qualifications noted, the court's dismissal for want of jurisdiction.' Id., at 683, 66 S.Ct., at 776. Nor can we say that petitioners' claim is 'so insubstantial, implausible, foreclosed by prior decisions of this Court or otherwise completely devoid of merit as not to involve a federal controversy within the jurisdiction of the District Court, whatever may be the ultimate resolution of the federal issues on the merits.' Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666—667, 94 S.Ct. 772, 777, 39 L.Ed.2d 73 (1974). (Citations omitted.)
II
19
Given a constitutional question over which the District Court had jurisdiction, it also had jurisdiction over the 'statutory' claim. See supra, at 536. The latter was to be decided first and the former not reached if the statutory claim was dispositive. California Human Resources Dept. v. Java, 402 U.S. 121, 124, 91 S.Ct. 1347, 1350, 28 L.Ed.2d 666 (1971); Dandridge v. Williams, 397 U.S., at 475—476, 90 S.Ct., at 1156—1157; Rosado v. Wyman, 397 U.S., at 402, 90 S.Ct., at 1212—1213; King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968). The constitutional claim could be adjudicated only be a three-judge court, but the statutory claim was within the jurisdiction of a single district judge. Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965); Rosado v. Wyman, supra, 397 U.S., at 403, 90 S.Ct., at 1213. Thus, the District Judge, sitting alone, moved directly to the statutory claim. His decision was appealed to the Court of Appeals, although had a three-judge court been convened, an injunction issued, and the statutory ground alone decided, the appeal would be only to this Court under 28 U.S.C. § 1253.
20
The procedure followed by the District Court—initial determination of substantiality and then adjudication of the 'statutory' claim without convening a three-judge court—may appear at odds with some of our prior decisions. See, e.g., Brotherhood of Locomotive Engineers v. Chicago, R.I. & P.R. Co., 382 U.S. 423, 86 S.Ct. 594, 15 L.Ed.2d 501 (1966); Florida Lime & Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73, 80 S.Ct. 568, 4 L.Ed.2d 568 (1960). But, we think it accurately reflects the recent evolution of three-judge-court jurisprudence, 'this Court's concern for efficient operation of the lower federal courts,' and 'the constrictive view of the three-judge (court) jurisdiction which this Court has traditionally taken.' Swift & Co. v. Wickham, supra, 382 U.S., at 128, 129, 86 S.Ct., at 268 (citations omitted). In Rosado v. Wyman, supra, 397 U.S., at 403, 90 S.Ct., at 1213, we suggested that
21
'(e)ven had the constitutional claim not been declared moot, the most appropriate course may well have been to remand to the single district judge for findings and the determination of the statutory claim rather than encumber the district court, at a time when district court calendars are overburdened, by consuming the time of three federal judges in a matter that was not required to be determined by a three-judge court. See Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965).'
22
It is true that the constitutional claim would warrant convening a three-judge court and that if a single judge rejects the statutory claim, a three-judge court must be called to consider the constitutional issue. Nevertheless, the coincidence of a constitutional and statutory claim should not automatically require a single-judge district court to defer to a three-judge panel, which, in view of what we have said in Rosado v. Wyman, supra, could then merely pass the statutory claim back to the single judge. See Kelly v. Illinois Bell Telephone Co., 325 F.2d 148, 151 (CA7 1963); Chicago, Duluth & Georgian Bay Transit Co. v. Nims, 252 F.2d 317, 319—320 (CA6 1958); Doe v. Lavine, 347 F.Supp. 357, 359—360 (S.D.N.Y.1972); cf. Bryant v. Carleson, 444 F.2d 353, 358—359 (CA9 1971). 'In fact, it would be grossly inefficient to send a three-judge court a claim which will only be sent immediately back. This inefficiency is especially apparent if the single judge's decision resolves the case, for there is then no need to convene the three-judge court.' Norton v. Richardson, 352 F.Supp. 596, 599 (D.C.Md.1972) (citations omitted). Section 2281 does not forbid this practice, and we are not inclined to read that statute 'in isolation with mutilating literalness . . ..' Florida Lime & Avocado Growers, Inc. v. Jacobsen, supra, 362 U.S., at 94, 80 S.Ct., at 581 (Frankfurter, J., dissenting).
III
23
Taking a jaundiced view of the constitutional claim, the dissenters would have the District Court dismiss the Supremacy Clause 'statutory' issue, convene a three-judge court, and reject the constitutional claim, all of this, apparently, as an exercise of the discretion which the District Court, under United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), is claimed to have over the pendent federal claim. But Gibbs was oriented to state law claims pendent to federal claims conferring jurisdiction on the District Court. Pendent jurisdiction over state claims was described as a doctrine of discretion not to be routinely exercised without considering the advantages of judicial economy, convenience, and fairness to litigants. For, '(n)eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law.' Id., at 726, 86 S.Ct., at 1139 (footnote omitted).11
24
In light of the dissent's treatment of Gibbs, several observations are appropriate. First, it is evident from Gibbs that pendent state law claims are not always, or even almost always, to be dismissed and not adjudicated. On the contrary, given advantages of economy and convenience and no unfairness to litigants, Gibbs contemplates adjudication of these claims.
25
Second, it would reasonably follow that other considerations may warrant adjudication rather than dismissal of pendent state claims. In Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753 (1909) the Court held that the state issues should be decided first and because these claims were dispositive, federal questions need not be reached:
26
'Where a case in this court can be decided without reference to questions arising under the Federal Constitution, that course is usually pursued and is not departed from without important reasons. In this case we think it much better to decide it with regard to the question of a local nature, involving the construction of the state statute and the authority therein given to the commission to make the order in question, rather than to unnecessarily decide the various constitutional questions appearing in the record.' Id., at 193, 29 S.Ct., at 455.
27
Siler is not an oddity. The Court has characteristically dealt first with possibly dispositive state law claims pendent to federal constitutional claims. See, e.g., Louisville & Nashville R. Co. v. Garrett, 231 U.S. 298, 303—304, 310, 34 S.Ct. 48, 50, 58 L.Ed. 229 (1913); Ohio Tax Cases, 232 U.S. 576, 586—587, 34 S.Ct. 372, 373—374, 58 L.Ed. 737 (1914); Greene v. Louisville & Interurban R. Co., 244 U.S. 499, 508—509, 37 S.Ct. 673, 677—678, 61 L.Ed. 1280 (1917); Louisville & Nashville R. Co. v. Greene, 244 U.S. 522, 527, 37 S.Ct. 683, 686, 61 L.Ed. 1291 (1917); Davis v. Wallace, 257 U.S. 478, 482, 485, 42 S.Ct. 164, 165, 166, 66 L.Ed. 325 (1922); Chicago G.W.R. Co. v. Kendall, 266 U.S. 94, 97—98, 45 S.Ct. 55, 56—57, 69 L.Ed. 183 (1924); Cincinnati v. Vester, 281 U.S. 439, 448—449, 50 S.Ct. 360, 363, 74 L.Ed. 950 (1930); Hillsborough v. Cromwell, 326 U.S. 620, 629, 66 S.Ct. 445, 451, 90 L.Ed. 358 (1946). The doctrine is not ironclad, see Sterling v. Constantin, 287 U.S. 378, 393—394, 396, 53 S.Ct. 190, 193—194, 195, 77 L.Ed. 375 (1932), but it is recurringly applied,12 and, at the very least, it presumes the advisability of deciding first the pendent, nonconstitutional issue.
28
Gibbs did not cite Siler or like cases, nor did it purport to change the ordinary rule that a federal court should not decide federal constitutional questions where a dispositive nonconstitutional ground is available. The dissent uncritically relies on Siler but ignores the preference stated in that case for deciding nonconstitutional claims even though they are pendent and, standing alone, are beyond the jurisdiction of the federal court.13
29
Third, the rationale of Gibbs centers upon considerations of comity and the desirability of having a reliable and final determination of the state claim by state courts having more familiarity with the controlling principles and the authority to render a final judgment. These considerations favoring state adjudication are wholly irrelevant where the pendent claim is federal but is itself beyond the jurisdiction of the District Court for failure to satisfy the amount in controversy. In such cases, the federal court's rendition of federal law will be at least as sure-footed and lasting as any judgment from the state courts.14
30
The most relavant cases for our purposes, of course, are those decisions such as King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968); Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970); and Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), where the jurisdictional claim arises under the Federal Constitution and the pendent claim, although denominated 'statutory,' is in reality a constitutional claim arising under the Supremacy Clause. In these cases the Court has characteristically dealt with the 'statutory' claim first 'because if the appellees' position on this question is correct, there is no occasion to reach the constitutional issues. Ashwander v. TVA, 297 U.S. 288, 346—347, 56 S.Ct. 466, 482 483, 80 L.Ed. 688 (Brandeis, J., concurring); Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000.' Dandridge v. Williams, supra, 397 U.S., at 475—476, 90 S.Ct., at 1157.
31
In none of these cases did the Court think that with jurisdiction fairly established, a federal court under Gibbs, must nevertheless decide the constitutional issue and avoid the statutory claim if, upon weighing the two claims, the statutory claim is strong and the constitutional claim weak. On the contrary, Mr. Justice Harlan, writing for the Court in Rosado v. Wyman, and with the principles of Gibbs well in mind, noted that the pendent statutory question was essentially one of federal policy and that the argument for the exercise of pendent jurisdiction was "particularly strong." 397 U.S., at 404, 90 S.Ct., at 1213. And Gibbs itself observed the 'special reason fof the exercise of pendent jurisdiction' where the Supremacy Clause is implicated: 'the federal courts are particularly appropriate bodies for the application of pre-emption principles.' 383 U.S., at 729, 86 S.Ct., at 1140.
32
The judgment of the Court of Appeals is reversed and the case remanded to that court for further proceedings consistent with this opinion.
33
So ordered.
34
Reversed and remanded.
35
Mr. Justice POWELL, with whom The CHIEF JUSTICE and Mr. Justice REHNQUIST joins, dissenting.
36
I join the dissenting opinion of Mr. Justice REHNQUIST because I believe he expresses the correct view of the appropriate result when a claim over which a district court has no independent jurisdiction is appended to a constitutional claim that has no hope of success on the merits. A wise exercise of discretion lies at the heart of the doctrine of pendent jurisdiction. E.g., Rosado v. Wyman, 397 U.S. 397, 403, 90 S.Ct. 1207, 1213, 25 L.Ed.2d 442 (1970); United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 727, 86 S.Ct. 1130, 1139—1140, 16 L.Ed.2d 218 (1966). Compelling a district court to decide an ancillary claim where the premise for its jurisdiction is a meritless constitutional claim does not impress me as an efficacious performance of a discretionary responsibility.
37
I write briefly to emphasize my view that the majority has misread the import of the Gibbs opinion, supra, particularly in the manner in which it links Gibbs to Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753 (1909), and like cases. Gibbs involved a state claim that arose out of the same transaction as the federal law claim that conferred federal jurisdiction. The majority apparently reads Gibbs and Siler together as mandating decision of the state law claim without regard to the frailty of the federal claim on which federal jurisdiction rests. See ante, at 547 549—550. In other words, the majority opinion appears to be saying that a federal constitutional claim as marginal as the one at issue here is capable of supporting pendent federal jurisdiction over a state claim and, indeed, that the state claim is to be decided to the exclusion of the federal issue. As I view it, that is a particularly erroneous interpretation of the pendent jurisdiction doctrine. That reading would broaden federal question jurisdiction to encompass matters of state law whenever an imaginative litigant can think up a federal claim, no matter how insubstantial, that is related to the transaction giving rise to the state claim.
38
This extension of Gibbs is quite unnecessary, since we are not confronted with a case where the pendent claim is a matter of state law. The Court's dictum could nevertheless prompt other courts to follow it. In view of this potential mischief, I repeat a quotation from Gibbs relied on by my Brother Rehnquist which indicates how far the Court has departed from the rationale of that 1966 precedent:
39
'(R)ecognition of a federal court's wide latitude to decide ancillary questions of state law does not imply that it must tolerate a litigant's effort to impose upon it what is in effect only a state law case.
40
Once it appears that a state claim constitutes the real body of a case, to which the federal claim is only an appendage, the state claim may fairly be dismissed.' 383 U.S., at 727, 86 S.Ct., at 1140.
41
The correct reading of Gibbs, as a matter of common sense and in light of deeply rooted notions of federalism, is that the federal claim must have more than a glimmer of merit and must continue to do so at least until substantial judicial resources have been committed to the lawsuit. If either of those conditions is not met, a district court has no business deciding issues of state law. District courts are not expositors of state law when jurisdiction is not based on diversity of citizenship.
42
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE and Mr. Justice POWELL join, dissenting.
43
The Court's decison in this case resolves a legal question and is necessarily and properly cast in legal terms. According to the Court, a federal district court, having acquired jurisdiction over a 'not wholly insubstantial' federal claim, has power to decide other related claims which lack an independent jurisdictional basis. Applying this analysis to the present case, the Court finds the equal protection claim pleaded by petitioners sufficient to satisfy this somewhat hazy definition of 'substantiality' and appears to approve the District Court's exercise of pendent jurisdiction over a claim alleging conflict between state and federal welfare regulations. But since we have been admonished that we may not shut our eyes as judges to what we know as men, the practical as well as the legal consequences of this decision should be squarely faced.
44
In the wake of King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968), and Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), the lower federal courts have been confronted by a massive influx of cases challenging state welfare regulations. The principal claim of plaintiffs in the typical case is that the state regulation conflicts with governing federal regulations and is invalid under the Supremacy Clause of the United States Constitution. This allegation presents a federal claim sufficient to satisfy the first jurisdictional requirement of 28 U.S.C. § 1331,1 the so-called 'federal question' jurisdictional statute, but many plaintiffs find the statute's second requirement, that the matter in controversy exceed the sum of $10,000, impossible to meet. Normally, therefore, these cases would be left, as Congress surely understood when it imposed this jurisdictional limitation, to state courts likewise charged with enforcing the United States Constitution.
45
To avoid this natural disposition, however, plaintiffs in these cases have turned to 28 U.S.C. § 1343, a more narrowly drawn federal jurisdictional statute requiring no minimum jurisdictional amount. The provision of 28 U.S.C. § 1343 relevant to this case reads:
46
'The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
47
'(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States . . ..' This Court, however, has never held, and does not hold now, that the Supremacy Clause of the Constitution itself provides a basis for jurisdiction under this section. The Court escapes the need for such a decision by granting the federal courts power to hear the Supremacy Clause claim under a theory of pendent jurisdiction. Finding that plaintiffs here have pleaded an equal protection claim sufficiently substantial to satisfy the requirements of 28 U.S.C. § 1343, the Court seems to suggest that consideration of the Supremacy Clause claim may follow as a matter of course. Since I do not believe that the equal protection claim was sufficient to establish jurisdiction under § 1343, or that the doctrine of pendent jurisdiction was appropriately invoked in this case, I dissent.
48
* The history of pendent jurisdiction in this Court is long and complex. Its roots go back to Osborn v. Bank of the United States, 9 Wheat. 738, 6 L.Ed. 204 (1824), where the Court said that the jurisdiction of the federal courts extended not only to federal issues themselves but also to nonfederal issues essential to the settlement of the federal claim. No subsequent decision has cast any doubt upon the wisdom of Mr. Chief Justice Marshall's exposition in that case, since a different result would have forced substantial federal cases into state courts for adjudication simply because they involved nonfederal issues as well as federal ones.2 The doctrine was expanded in Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753 (1909), where the Court upheld the power of a district court, having founded its jurisdiction upon federal constitutional claims, to by-pass the constitutional questions and to decide an issue of local law. The Court said that the lower court 'had the right to decide all the questions in the case, even though it decided the Federal questions adversely to the party raising them, or even if it omitted to decide them at all, but decided the case on local or state questions only.'3 But the Court at the same time cautioned: 'Of course, the Federal question must not be merely colorable or fraudulently set up for the mere purpose of endeavoring to give the court jurisdiction.'4
49
The Court returned to the question of pendent jurisdiction in Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933), and Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 53 S.Ct. 549, 77 L.Ed. 1062 (1933). The Court in both cases agreed that a substantial federal question was necessary to confer initial jurisdiction on the district court,5 a test that must be met whether or not pendent jurisdiction is involved, and then in Hurn further attempted to define the necessary relationship between the pendent claim and the claim conferring jurisdiction. According to the Court, a lower federal court could exercise pendent jurisdiction over a separate ground alleged in support of a single cause of action, but not over a separate cause of action itself.6
50
The Court's most recent extensive treatment of the subject occurred in United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Because Hurn had spoken in terms of 'causes of action,' a term which was superseded by the adoption of the Federal Rules of Civil Procedure, Gibbs redefined the necessary relation of the federal and nonfederal claims in more understandable terms. Restating the substantiality test in pretty much the language of the earlier cases, the Court then continued:
51
'The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.' Id., at 725, 86 S.Ct., at 1138 (footnote omitted) (emphasis in original).
52
This language served to clarify jurisdictional questions which had proved troublesome after Hurn v. Oursler. But, importantly, the decision then went on to emphasize that power to hear claims lacking an independent jurisdictional basis should not be exercised indiscriminately. The Court reiterated that 'pendent jurisdiction is a doctrine of discretion, not of plaintiff's right,' id., at 726, 86 S.Ct., at 1139, and urged that the district courts exercise caution not to abuse that discretion. For example, the Court suggested that
53
'if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.' Ibid. (footnote omitted).
54
Furthermore, the Court stressed that the relative importance of the claims should be considered:
55
'Similarly, if it appears that the state issues substantially predominate, whether in terms of proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice and left for resolution to state tribunals.' Id., at 726—727, 86 S.Ct., at 1139.
56
Although the Court's language in Gibbs necessarily discussed the relationship between federal and state claims, much of the opinion's rationale is applicable when pendent jurisdiction is sought over federal claims lacking an independent jurisdictional basis.7 Of course, a decision to deny pendent jurisdiction on the ground that state courts should consider questions of state law naturally involves issues relevant to the question of abstention, a consideration not especially applicable when the pendent claim primarily involves questions of federal law. But the presence of federal questions should not induce federal courts to expand their proper jurisdiction. As previously noted, Congress, by requiring a minimum dollar amount for federal question jurisdiction, made a legislative decision to leave certain claims to state courts. Considerations of convenience and judicial economy may justify hearing those claims when genuine federal business, as contrasted to weak claims intended merely to secure jurisdiction, is before the federal court, but these considerations should be subordinated to considerations of federalism when the claims without independent jurisdiction constitute 'the real body' of the case. In this situation the lower courts should remember that federalism embodies
57
'a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States.' Younger v. Harris, 401 U.S. 37, 44, 91 S.Ct. 746, 751, 27 L.Ed.2d 669 (1971).
58
The majority rejects this analysis, seemingly finding that state courts' greater familiarity with state law is the only reason for declining pendent jurisdiction under Gibbs. But Congress left to state courts not only those claims involving state law but also those claims involving federal law which it felt did not merit the time of federal courts. This Court now says that federal courts should hear those cases anyway since they can render 'at least as sure-footed' an interpretation of federal law and are "particularly appropriate bodies" to do so. This opinion, while it undoubtedly reflects the view of this Court, does not reflect with equal accuracy the purpose of Congress.
59
In Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), heavily relied upon by the Court to support its position, there was no intimation that the constitutional claim was a weak one pleaded for the purpose of securing federal jurisdiction over a stronger claim. Rather the constitutional claim proved moot. This Court plainly stated:
60
'Unlike insubstantiality, which is apparent at the outset, mootness, frequently a matter beyond the control of the parties, may not occur until after substantial time and energy have been expended looking toward the resolution of a dispute that plaintiffs were entitled to bring in a federal court.' Id., at 404, 90 S.Ct., at 1214.
61
Thus Rosado does not in any way settle the issue before the Court today. Its holding offers no aid in resolving the real and practical issues that the Court confronts in this case.
62
The Gibbs decision must be understood in its separate parts. First, the Court held that jurisdiction could not attach unless the claim for which jurisdiction was asserted met the requirement of substantiality and unless the pendent claim was sufficiently related to the jurisdictional claim to constitute a single case under the Constitution. Second, the Court admonished that this jurisdiction, even if found to exist, should be exercised judiciously. The relatively permissive standards applied to the issue of whether the Court could consider a pendent claim were not to guide the ultimate decision of whether the Court should consider the pendent claim. Only where 'considerations of judicial economy, convenience and fairness to litigants' were served and where the pendent claim did not predominate in scope or worth over the judicial claim, was the doctrine of pendent jurisdiction to be applied. 383 U.S., at 726, 86 S.Ct., at 1139. While I am convinced that the District Court lacked jurisdiction over an equal protection claim as thin as this one, even if I am wrong on that point it seems clear to me that its decision to exercise pendent jurisdiction over the Supremacy Clause claim was not based on the discretionary considerations outlined in Gibbs, supra.
II
63
The District Court simply found the equal protection claim in this case to be 'substantial' and proceeded without further discussion to the statutory claim. The Court of Appeals, reversing the determination of the District Court, found the claim to be insubstantial and therefore had no need to go further. This Court merely disagrees on the question of substantiality, reinstating the District Court's jurisdiction. Unfortunately, this process of analysis seems to me to be wrong both in its treatment of the jurisdictional question and in its failure to treat the discretionary aspects of pendent jurisdiction.
64
Whatever legal terminology is applied to the equal protection claim of the plaintiffs in this case, the one clear fact is that the claim is not very good. In brief, petitioners, who are recipients of public assistance under the Aid to Families with Dependent Children program, all received funds from New York, over and above their usual monthly grants, to prevent eviction from their places of lodging for nonpayment of rent. The State, pursuant to a provision of the New York Code of Rules and Regulations challenged in the District Court, sought to recover these unusual expenditures by making deductions over the next succeeding months from petitioners' normal monthly grants. In their complaint petitioners contended that the New York recoupment procedure deprived them of equal protection of the laws.8
65
One searches in vain, either in petitioners' brief or in the opinions of the District Court or this Court, for any reason why this claim meets even a minimal test of substantiality. It would seem extraordinary if, having paid petitioners more than their normal monthly entitlement in order to meet an emergency situation, the State had not sought to recoup the payments over a period of time. The District Court, finding the claim substantial, cited Bradford v. Juras, 331 F.Supp. 167 (Or. 1971), a decision by a three-judge district court which found jurisdiction on a similar constitutional claim and then decided the case on statutory grounds. In Bradford, however, the Court simply stated that it had jurisdiction under 28 U.S.C. § 1343(3) without further discussion.9
66
The opinion of this Court sheds no more light than did the opinion of the District Court. The Court simply states:
67
'This reasoning with respect to the rationality of the regulation and its propriety under the Equal Protection Clause may ultimately prove correct, but it is not immediately obvious from the decided cases or so 'very plain' under the Equal Protection Clause.' Ante, at 542.
68
But cases such as Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), have largely discredited attacks on legislative decisions about the apportionment of limited state welfare funds. At least where the Court has not found a penalty based on race or considerations such as interstate travel, the legislative judgment is upheld whenever a 'conceivable rational basis' exists. Although Dandridge did not 'suspend the operation of the Equal Protection Clause' in this area, it assuredly makes this particular claim a marginal one.10
69
I therefore cannot agree that the equal protection claim pleaded here was sufficient to confer jurisdiction on the District Court. Even assuming that the lower court may refer only to the pleadings in making its determination on the question of jurisdiction, the analysis need not be made, as the majority seems to imply, in a legal vacuum. To say that previous decisions have not foreclosed a question unless a prior case 'specifically deal(s)' with the same regulation neglects the second branch of the test enunciated in Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 53 S.Ct. 549, 77 L.Ed. 1062 (1933), and repeated in later cases, that a claim is insubstantial because 'obviously without merit.' Id., at 105, 53 S.Ct., at 550. Under today's rationale it appears sufficient for jurisdiction that a plaintiff is able to plead his claim with a straight face. But a district court should be able to dismiss for want of jurisdiction any claim that plainly carries no hope of success on the merits. This lack of promise in turn could be evident from recent decisions of this Court rejecting claims with a similar thesis or laying down rules which would clearly require dismissal on the merits.
70
Assuming, however, that the District Court here did have jurisdiction, it seems clear to me that under Gibbs the equal protection claim should not support the Supremacy Clause claim also asserted by petitioners. The test for exercising discretion must be a practical one, involving the type of judgments that a reasonable lawyer evaluating the respective strengths and weaknesses of his case, might undertake. In this case it is highly improbable that a lawyer familiar with this Court's cases would place much faith in the success of his equal protection claim. In fact, examination of the complaint itself shows that substantially more attention was paid to the Supremacy Clause claim than to the claims under the Fourteenth Amendment. At the very least, the District Court, before it chose to exercise pendent jurisdiction, should have made an identifiable determination that the Equal Protection Clause was not simply asserted for the purpose of giving the Court jurisdiction over the heart of the plaintiffs' case. To my mind this seems to be a classic case of the statutory tail wagging the constitutional dog.
III
71
Thus, even if the Court of Appeals may have erroneously resolved the question of jurisdiction, the result it reached was correct in terms of the wise exercise of jurisdiction. Whether the equal protection claim pleaded in this case meets the threshold of substantiality for jurisdiction in the federal courts, the claim surely should not convince a district court that its main purpose was anything other than to secure jurisdiction for the more promising Supremacy Clause claim. Presented with this situation, the District Court should have declined to exercise pendent jurisdiction over the Supremacy Clause claim and referred the equal protection claim to a three-judge court.11 Since its failure to do so seems to me an abuse of discretion under Gibbs, I dissent.
1
AFDC is one of several major categorical public assistance programs established by the Social Security Act of 1935, and as we described in King v. Smith, 392 U.S. 309, 316—317, 88 S.Ct. 2128, 2133, 20 L.Ed.2d 1118 (1968), it is founded on a scheme of cooperative federalism:
'It is financed largely by the Federal Government, on a matching fund basis, and is administered by the States. States are not required to participate in the program, but those which desire to take advantage of the substantial federal funds available for distribution to needy children are required to submit an AFDC plan for the approval of the Secretary of Health, Education, and Welfare (HEW). 49 Stat. 627, 1935, 42 U.S.C. §§ 601, 602, 603, and 604. See (U.S. Advisory Commission Report on Intergovernmental Relations, Statutory and Administrative Controls Associated with Federal Grants for Public Assistance 21—23 (1964)). The plan must conform with several requirements of the Social Security Act and with rules and regulations promulgated by HEW. 49 Stat. 627, as amended, 42 U.S.C. § 602 (1964 ed., Supp. H). See also HEW, Handbook of Public Assistance Administration, pt. IV, §§ 2200, 2300 . . ..'
See also Rosado v. Wyman, 397 U.S. 397, 407—409, 90 S.Ct. 1207, 1215—1216, 25 L.Ed.2d 442 (1970).
Under the Social Security Act, HEW withholds federal funds for implementation of a state AFDC plan until compliance with the Act and the Department's regulations. HEW may also terminate partially or entirely federal payments if 'in the administration of the (state) plan there is a failure to comply substantially with any provision required by section 602(a) of (the Act) to be included in the plan.' 42 U.S.C. § 604. See King v. Smith, supra, 392 U.S., at 317 n. 12, 88 S.Ct., at 2133; Rosado v. Wyman, supra, 397 U.S., at 420—422, 90 S.Ct., at 1221—1223.
2
The challenged regulation provides, in pertinent part:
'(g) Payment for services and supplies already received. Assistance grants shall be made to meet only current needs. Under the following specified circumstances payment for services or supplies already received is deemed a current need:
'(7) For a recipient of public assistance who is being evicted for nonpayment of rent for which a grant has been previously issued, an advance allowance may be provided to prevent such eviction or rehouse the family; and such advance shall be deducted from subsequent grants in equal amounts over not more than the next six months. When there is a rent advance for more than one month, or more than one rent advance in a 12 month period, subsequent grants for rent shall be provided as restricted payments in accordance with Part 381 of this Title.' 18 N.Y.C.R.R. § 352.7(g)(7).
As AFDC recipients, petitioners receive monthly grants calculated to provide 90% of their family needs for shelter, fuel, and other basic necessities. For one reason or another, each petitioner was unable to pay her rent, and faced with imminent eviction, she received emergency rent payments from the Nassau County Department of Social Services. Because the State characterized these payments as 'advances,' the amount of these disbursements was deducted or recouped from petitioners' subsequent monthly familial assistance grants pursuant to § 352.7(g)(7).
3
Petitioners alleged that the New York State recoupment regulation was contrary to the following provisions of the federal statute and regulations because it assumed, contrary to fact, that those funds, extended to a recipient to satisfy a current emergency rent need,
remain available as income for the family's need during the mandated six-month recoupment period.
Title 42 U.S.C. §§ 602(a)(7) and (a)(10) states in pertinent part:
'(a) A State plan for aid and services to needy families with children must . . . (7) except as may be otherwise provided in clause (8), provide that the (administering) State agency shall, in determining need, take into consideration any other income and resources of any child or relative claiming aid to families with dependent children, or any other individual (living in the same home as such child and relative) whose needs the State determines should be considered in determining the need of the child or relative claiming such aid, as well as any expenses reasonably attributable to the earning of any such income . . ..
'(10) provide, effective July 1, 1951, that all individuals wishing to make application for aid to families with dependent children shall have opportunity to do so, and that aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals . . ..'
45 CFR § 233.20(a)(3)(ii)(c):
'(a) Requirements for State Plans. A State Plan for OAA, AFDC, AB, APTD or AABD must, as specified below:
'(3) . . ..
'(ii) Provide that, in establishing financial eligibility and the amount of the assistance payment: . . . (c) only such net income as is actually available for current use on a regular basis will be considered, and only currently available resources will be considered . . ..'
4
On appeal from the District Court's entry of the injunction, the Court of Appeals without extended discussion found jurisdiction for the § 1983 action under 28 U.S.C. § 1343(3). Without passing on the merits of the District Court's findings and conclusions, the Court of Appeals, with one judge dissenting, ordered a remand to that court to determine whether the recoupment of prior advance rent payments from current grants is a 'reduction in grant' that would trigger the New York fair-hearing procedures under 18 N.Y.C.R.R. § 351.26. 462 F.2d 928 (CA2 1972).
On remand, the District Court allowed additional parties who had received fair hearings to intervene and file a complaint. At the invitation of the court, HEW filed an amicus curiae brief which concluded that 'the New York regulation does contravene federal requirements because it assumes for particular months the existence of income and resources which by definition are not currently available for such months.' Brief for Petitioners Appendix 2. The District Court once again held the recoupment regulation invalid as violative of the Social Security Act and HEW regulations and enjoined its enforcement and implementation.
5
In view of our disposition of this case, we do not reach the question whether, wholly aside from the pendent-jurisdiction rationale relied upon by the District Court, other valid grounds existed for sustaining its jurisdiction to entertain and decide the claim of conflict between federal and state law. It has been suggested, for example, that the conflict question is itself a constitutional matter within the meaning of § 1343(3). Connecticut Union of Welfare Employees v. White, 55 F.R.D. 481, 486 (D.C.Conn.1972). For purposes of interpreting and applying 28 U.S.C. § 2281, the three-judge-court provision, a claim of conflict between federal and state
law has been denominated a claim not requiring a three-judge court. Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965). But Swift itself recognized that a suit to have a state statute declared void and to secure the benefits of the federal statute with which the state law is allegedly in conflict cannot succeed without ultimate resort to the Federal Constitution—'to be sure, any determination that a state statute is void for obstructing a federal statute does rest on the Supremacy Clause of the Federal Constitution.' Id., at 125, 86 S.Ct., at 266. Moreover, when we have previously determined that state AFDC laws do not conform to the Social Security Act or HEW regulations, they have been invalidated under the Supremacy Clause. See Townsend v. Swank, 404 U.S. 282, 286, 92 S.Ct. 502, 505, 30 L.Ed.2d 448 (1971). It is therefore urged that the 'secured by the Constitution' language of § 1343(3) should not be construed to exclude Supremacy Clause issues. That question we leave for another day.
Petitioners contend that § 1983 authorizes suits to vindicate rights under the 'laws' of the United States as well as under the Constitution and that a suit brought under § 1983 to vindicate a statutory right under the Social Security Act, is a suit under an Act of Congress 'providing for the protection of civil rights, including the right to vote' within the meaning of § 1343(4). They further argue that in any event, § 1343(3) in particular, and § 1343 in general, should be construed to invest the district courts with jurisdiction to hear any suit authorized by § 1983. These issues we also do not reach. See Rosado v. Wyman, 397 U.S., at 405 n. 7, 90 S.Ct., at 1214; see also Herzer, Federal Jurisdiction Over Statutorily-Based Welfare Claims, 6 Harv.Civ.Rights Civ.Lib.L.Rev. 1, 16—18 (1970); Note, Federal Jurisdiction Over Challenges to State Welfare Programs, 72 Col.L.Rev. 1404, 1405 1435 (1972); Note, Federal Judicial Review of State Welfare Practices, 67 Col.L.Rev. 84, 109—115 (1967).
Several past decisions of this Court concerning challenges by federal categorical assistance recipients to state welfare regulations have either assumed that jurisdiction existed under § 1343 or so
stated without analysis. See, e.g., Carleson v. Remillard, 406 U.S. 598, 92 S.Ct. 1932, 32 L.Ed.2d 352 (1972); Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 1234, 31 L.Ed.2d 569 (1972); Townsend v. Swank, 404 U.S., at 284 n. 2, 92 S.Ct., at 504 n. 2; California Human Resources Dept. v. Java, 402 U.S. 121, 91 S.Ct. 1347, 28 L.Ed.2d 666 (1971); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. Ct. 1153, 25 L.Ed.2d 491 (1970); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); King v. Smith, 392 U.S., at 312 n. 3, 88 S.Ct., at 2130—2131; Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967). In none of these cases was the jurisdiction issue squarely raised as a contention in the petitions for certiorari, jurisdictional statements, or briefs filed in this Court. See Edelman v. Jordan, 415 U.S. 651, at 670—671, 94 S.Ct. 1347, at 1359—1360, 39 L.Ed.2d 662. Moreover, when questions of jurisdiction have been passed on in prior decisions sub silentio, this Court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us. United States v. More, 3 Cranch 159, 172, 2 L.Ed. 397 (1805); King Mfg. Co. v. Augusta, 277 U.S. 100, 134—135, n. 21, 48 S.Ct. 489, 501—502, 72 L.Ed. 801 (1928) (Brandeis, J., dissenting). We therefore approach the question of the District Court's jurisdiction to entertain this suit as an open one calling for a canvass of the relevant jurisdictional considerations. Florida Lime & Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73, 88, 80 S.Ct. 568, 577, 4 L.Ed.2d 568 (1960) (Frankfurter, J., dissenting).
6
Those district courts that have ruled on similarly drafted state recoupment provisions have found that they were not rationally related to the declared purposes of the AFDC program and were therefore invalid under the Social Security Act and HEW regulations. In Cooper v. Laupheimer, 316 F.Supp. 264 (ED Pa.1970), the District Court, after finding the equal protection claim substantial, invalidated a Pennsylvania regulation that recouped over a two-month period alleged overpayments from a family's assistance grants. The court found the regulation inconsistent with the Social Security Act for several reasons, including, inter alia, the punishment of the dependent child by depriving him of a substantial amount of his AFDC assistance because his mother either mistakenly or fraudulently obtained an extra payment months ago. '(T)he state cannot justify its (arbitrary) method of restitution by asserting that proper management of funds would produce such a
(cash) reserve. The state cannot permit a child to starve or be deprived of aid that he needs because of the mother's budgetary mismanagement. The Social Security Act specifies remedies for such a situation . . ..' Id., at 269.
In Bradford v. Juras, 331 F.Supp. 167 (Or.1971), the District Court found that it had subject-matter jurisdiction over the constitutional and statutory challenge to an Oregon regulation authorizing recoupment of overpayments from current assistance grants. Measuring the regulation against the goals of the AFDC program, the court invalidated it as inconsistent with federal law.
'The primary concern of Congress in establishing the AFDC program was the welfare and protection of the needy dependent child. 42 U.S.C. § 601; King v. Smith, 392 U.S. 309, 313, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968). This concern is thwarted when recoupment from current grants takes money from the child to penalize the misconduct of its parent.
'. . . The child-oriented policy of the AFDC program requires that children with equal needs be treated equally. The fact that a parent-recipient has acted wrongfully in the past by withholding information does not justify reducing the subsistence level of her children below that of other needy children.' 331 F.Supp., at 170.
In Holloway v. Parham, 340 F.Supp. 336 (ND Ga.1972), an equal protection and due process challenge to a Georgia statute mandating recoupment from future grants for past unlawful payments was deemed substantial enough to warrant the convening of a three-judge court. Addressing the pendent claim of inconsistency with the Social Security Act and HEW regulations, the court ruled that the law was valid because it required a prerecoupment determination that all or part of the overpayments are currently available to the parent and the children.
Although it did not explore the question in depth, the first Court of Appeals panel in this case that passed upon the injunction found jurisdiction in the District Court pursuant to 28 U.S.C. § 1343(3) on the authority of the Court's decision in Carter v. Stanton, 405 U.S. 669, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972). There we noted in a suit challenging a state welfare regulation that 'if the (federal district) court's characterization of the (Fourteenth Amendment) question presented as insubstantial was based on the face of the complaint, as it seems to have been, it was
error.' Id., at 671, 92 S.Ct., at 1234. The dissent did not question the majority's jurisdictional determination. 462 F.2d, at 930—931, 932.
7
App. 5.
8
'The regulation in question, 18 NYCRR § 352.7(g)(7), has a rational basis. Since the state has a limited amount of funds available to allocate to welfare recipients, the recoupment regulation is reasonably designed to ensure that there are sufficient funds availagle to all recipients on the level set by the state legislature. By receiving the advance payment plaintiffs have gotten more than the normal grant. Without the recoupment regulation, the plaintiffs would be in a preferred position over all the other welfare recipients who have paid their full rent out of the normal grant. The purposes of equal protection are served by treating all alike without granting special favor to those who have misappropriated their rent allowance. If there were no recoupment provision, there would be a disincentive for welfare recipients to manage their grants so as to have funds available to pay their rent each month. The recoupment provision encourages proper money management, an entirely acceptable, if incidental, purpose of the welfare legislation.
'No doubt there are other ways in which the state could accomplish the ends served by the use of the recoupment regulation. However it is not for us to evaluate the wisdom of the state's choice of means. If these means are rationally related to a proper end, as they are in this case, we have no power to go further.' 471 F.2d 347, 349—350.
9
Hart v. B. F. Keith Vaudeville Exchange, 262 U.S. 271, 274, 43 S.Ct. 540, 541, 67 L.Ed. 977 (1923).
10
Once a federal court has ascertained that a plaintiff's jurisdiction-conferring claims are not 'insubstantial on their face,' Brotherhood of Locomotive Engineers v. Chicago, R.I. & P.R. Co., 382 U.S. 423, 428, 86 S.Ct. 594, 596—597, 15 L.Ed.2d 501 (1966), 'no further consideration of the merits of the claim(s) is relevant to a determination of the court's jurisdiction of the subject matter.' Baker v. Carr, 369 U.S. 186, 199, 82 S.Ct. 691, 700, 7 L.Ed.2d 663 (1962).
11
The Court also cited with approval Chief Judge Magruder's concurrence in Strachman v. Palmer, 177 F.2d 427, 431 (CA1 1949), advising that "(f)ederal courts should not be overeager to hold on to the determination of issues that might be more appropriately left to settlement in state court litigation." 383 U.S., at 726 n. 15, 86 S.Ct., at 1139.
12
Numerous decisions of this Court have stated the general proposition endorsed in Siler—that a federal court properly vested with jurisdiction may pass on the state or local law question without deciding the federal constitutional issues—and have then proceeded to dispose of the case solely on the nonfederal ground. See, e.g., Hillsborough v. Cromwell, 326 U.S. 620, 629—630, 66 S.Ct. 445, 451, 90 L.Ed. 358 (1946); Waggoner Estate v. Wichita County, 273 U.S. 113, 116—119, 47 S.Ct. 271, 272—273, 71 L.Ed. 566 (1927); Chicago G.W.R. Co. v. Kendall, 266 U.S. 94, 45 S.Ct. 55, 69 L.Ed. 183 (1924); United Fuel Gas Co. v. Railroad Comm'n, 278 U.S. 300, 308, 49 S.Ct. 150, 152, 73 L.Ed. 390 (1929); Risty v. Chicago, R.I. & P.R. Co., 270 U.S. 378, 387, 46 S.Ct. 236, 240, 70 L.Ed. 641 (1926). These and other cases illustrate in practice the wisdom of the federal policy of avoiding constitutional adjudication where not absolutely essential to disposition of a case. Other decisions have addressed both the federal and state claims in a random fashion, see, e.g., Atlantic Coast Line R. Co. v. Doughton, 262 U.S. 413, 421—426, 43 S.Ct. 620, 623—625, 67 L.Ed. 1051 (1926); Southern R. Co. v. Watts, 260 U.S. 519, 525 531, 43 S.Ct. 192, 195—197, 67 L.Ed. 375 (1923); but they have generally denied relief on both the federal and nonfederal grounds asserted, the nonfederal claim not being dispositive. Doughton and Watts were both written by Mr. Justice Brandeis, who in his celebrated concurring opinion in Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936), relied upon Siler in summarizing the general rule that 'if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.'
13
The dissent also relies upon Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933), but Hurn expressly took account of one aspect of the rule stated in Siler: once a federal court acquires jurisdiction of a case by virtue of the federal questions involved, it may omit to decide the federal issues and decide the case on local or state questions alone. With unmistakable clarity, the Court reaffirmed Siler:
'The Siler and like cases announce the rule broadly, without qualification; and we perceive no sufficient reason for the exception suggested. It is stated in these decisions as a rule of general application, and we hold it to be such . . ..' Id., at 245, 53 S.Ct., at 589.
The dissent properly notes Hurn's warning that Siler does not 'permit a federal court to assume jurisdiction of a separate and distinct nonfederal cause of action . . ..' Ibid. However, the Siler rule certainly allows the trial court to adjudicate 'a case where two distinct grounds in support of a single cause of action are alleged, only one of which presents a federal question . . ..' Id., at 246, 53 S.Ct., at 589. (emphasis added). We can thus see that here, as in Hurn, '(t)he (complaint) alleges the violation of a single right (here the right to nondiscriminatory treatment as to receipt of public assistance).
And it is this violation which constitutes the cause of action. Indeed, the claims of (violation of equal protection and the Social Security Act) so precisely rest upon identical facts as to be little more than the equivalent of different epithets to characterize the same group of circumstances. The primary relief sought is an injunction to put an end to an essentially single wrong, however differently characterized, not to enjoin distinct wrongs constituting the basis for independent causes of action.' Id., at 246, 53 S.Ct., at 590.
See also Armstrong Paint & Varnish Works v. Nu-Enamel Corp., 305 U.S. 315, 324—325, 59 S.Ct. 191, 195—196, 83 L.Ed. 195 (1938).
14
In a closely analogous context, this Court has recognized the special capability of federal courts to adjudicate pendent federal claims. In Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959), an injured Spanish seaman filed suit in federal court claiming damages under the Jones Act and under the general maritime law of the United States for unseaworthiness of the ship, maintenance and cure, and negligence. Jurisdiction was invoked under the Jones Act (46 U.S.C. § 688) and under general federal-question (28 U.S.C. § 1331) and diversity (28 U.S.C. § 1332) jurisdiction. After expressing its view that petitioner alleged a Jones Act claim substantial enough to confer jurisdiction under that statute, the Court held that his general maritime law claims were not cognizable under 28 U.S.C. § 1331. By no means, however, was this the end of the inquiry.
'(T)he District Court may have jurisdiction of (petitioner's general maritime law claims) 'pendent' to its jurisdiction under the Jones Act. Of course the considerations which call for the exercise of pendent jurisdiction of a state claim related to a pending federal cause of action within the appropriate scope of the doctrine of Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148, are not the same when, as here, what is involved are related claims based on the federal maritime law. We perceive no barrier to the exercise of 'pendent jurisdiction' in the very limited circumstances before us.' 358 U.S., at 380—381, 79 S.Ct., at 484 (emphasis added).
1
The relevant provision of 28 U.S.C. § 1331 reads as follows:
'(a) The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum of value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.' The jurisdictional amount was raised from $3,000 to $10,000 in 1958.
2
'Under this construction, the judicial power of the Union extends effectively and beneficially to that most important class of cases, which depend on the character of the cause. On the opposite construction, the judicial power never can be extended to a whole case, as expressed by the constitution, but to those parts of cases only which present the particular question involving the construction of the constitution or the law. We say it never can be extended to the whole case, because, if the circumstance that other points are involved in it, shall disable Congress from authorizing the Courts of the Union to take jurisdiction of the original cause, it equally disables Congress from authorizing those Courts to take jurisdiction of the whole cause, on an appeal, and thus will be restricted to a single question in that cause; and words obviously intended to secure to those who claim rights under the constitution, laws, or treaties of the United States, a trial in the federal Courts, will be restricted to the insecure remedy of an appeal upon an insulated point, after it has received that shape which may be given to it by another tribunal, into which he is forced against his will.' Osborn v. Bank of the United States, 9 Wheat. 738, 822—823, 6 L.Ed. 204 (1824).
3
213 U.S., at 191, 29 S.Ct., at 455.
4
Id., at 191—192, 29 S.Ct., at 455. In Siler the Court specifically noted that the constitutional claim was not fraudulently pleaded to confer jurisdiction over the pendent claim.
The Court today, by its heavy emphasis on deciding state issues in preference to constitutional ones, ante, at 546—547, seems to imply that this doctrine should be controlling even when a constitutional claim is pleaded 'for the mere purpose of endeavoring to give the court jurisdiction.' I cannot agree. The numerous cases cited in the Court's opinion stand for the long-recognized and sensible policy that cases should be decided on nonconstitutional grounds were possible; but they do not stand for the proposition that claims which would be otherwise dismissed under the principles discussed in United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), should be heard simply to avoid the constitutional claim which conferred jurisdiction in the first place. See n. 11, infra. In such cases the competing and equally important policy of safeguarding the limited jurisdiction of the federal courts is entitled to more weight than the Court appears to give it.
5
The Court in Levering, supra, stated:
'Whether an objection that a bill or a complaint fails to state a case under a federal statute raises a question of jurisdiction or of merits is to be determined by the application of a well settled rule. If the bill or the complaint sets forth a substantial claim, a case is presented within the federal jurisdiction, however the court, upon consideration, may decide as to the legal sufficiency of the facts alleged to support the claim. But jurisdiction, as distinguished from merits, is wanting where the claim set forth in the pleading is plainly unsubstantial. The cases have stated the rule in a variety of ways, but all to that effect. . . . And the federal question averred may be plainly unsubstantial either because obviously without merit, or 'because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy." 289 U.S., at 105 106, 53 S.Ct., at 550.
6
Hurn v. Oursler, 289 U.S. 238, 245—246, 53 S.Ct. 586, 589, 77 L.Ed. 1148 (1933):
'But the rule does not go so far as to permit a federal court to assume jurisdiction of a separate and distinct nonfederal cause of action because it is joined in the same complaint with a federal cause of action. The distinction to be observed is between a case where two distinct grounds in support of a single cause of action are alleged, one only of which presents a federal question, and a case where two separate and distinct causes of action are alleged, one only of which is federal in character. In the former, where the federal question averred is not plainly wanting in substance, the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the case upon the nonfederal ground; in the latter it may not do so upon the nonfederal cause of action.' (Emphasis in original.)
7
The Court in United Mine Workers of America v. Gibbs, 383 U.S., at 727, 86 S.Ct., at 1139, also stated:
'(R)ecognition of a federal court's wide latitude to decide ancillary questions of state law does not imply that it must tolerate a litigant's effort to impose upon it what is in effect only a state law case. Once it appears that a state claim constitutes the real body of a case, to which the federal claim is only an appendage, the state claim may fairly be dismissed.'
I also see no reason why federal courts should be required to 'tolerate' efforts to impose upon them federal cases which Congress has chosen to leave to the state courts.
8
The portion of the petitioners' complaint setting forth their equal protection claim states in full:
'Said regulation irrationally and invidiously discriminates against plaintiff victims of eviction. No basis exists in law or fact, consistent with the purposes of the Social Security Act, for reducing the level of payments to plaintiffs who are then forced to live far below the subsistence levels provided to all other persons. Said regulation applies a wholly different standard in determining the grant levels of plaintiffs than the income resource and exemptions from levy standard, applicable to all other persons in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.'
9
331 F.Supp., at 168.
10
The Court in Dandridge stated:
'Conflicting claims of morality and intelligence are raised by opponents and proponents of almost every measure, certainly including the one before us. But the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court. The Constitution may impose certain procedural safeguards upon systems of welfare administration, Goldberg v. Kelly (397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970)). But the Constitution does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients. Cf. Steward Mach. Co. v. Davis, 301 U.S. 548, 584—585, 57 S.Ct. 883, 889—890, 81 L.Ed. 1279; Halvering v. Davis, 301 U.S. 619, 644, 57 S.Ct. 904, 909, 81 L.Ed. 1307.' 397 U.S., at 487, 90 S.Ct., at 1162.
11
Petitioners originally sought to convene a three-judge court to consider their constitutional claims but later withdrew that request. Pursuant to a stipulation between the parties, the case was then tried before a single judge on the issue of the claimed statutory conflict only. Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973), specifies that a three-judge court must be convened to hear constitutional questions within its jurisdiction if they are 'substantial.' It is true, of course, that federal courts commonly avoid deciding constitutional questions when alternative grounds for decision are available. See, e.g., Ashwander v. TVA, 297 U.S. 288, 346—347, 56 S.Ct. 466, 482—483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). But application of that principle to cases in which the constitutional claim is pleaded primarily to confer jurisdiction over a pendent claim would lead to circular reasoning. Under that theory a claim for which Congress provided no jurisdiction and which a single judge determined to be improperly brought into federal court would become a preferred ground for decision simply because the court wished to avoid the claim over which Congress granted jurisdiction in the first place. To turn to the pendent claim when pendent jurisdiction is properly assumed under Gibbs may be appropriate, but the presence of a constitutional claim which might therefore be avoided should not itself be an independent basis for hearing the pendent claim.
'In rare cases, of course, a three-judge court may disagree with the single judge's view that a constitutional claim lacks merit and resolve the constitutional issue in the plaintiff's favor. At that point, the plaintiff will have his relief, and the case need go no further. Concededly, a constitutional decision will have been rendered when a statutory decision might have been possible, but that cost, in the few cases where it is likely to arise, seems less expensive than the cost of allowing federal jurisdiction to be unnecessarily expanded.
| 12
|
415 U.S. 566
94 S.Ct. 1242
39 L.Ed.2d 605
Joseph SMITH, Sheriff of Worcester County, Appellant,v.Valarie GOGUEN.
No. 72—1254.
Argued Nov. 12—13, 1973.
Decided March 25, 1974.
Syllabus
Appellee, for wearing a small United States flag sewn to the seat of his trousers, was convicted of violating the provision of the Massachusetts flag-misuse statute that subjects to criminal liability anyone who 'publicly . . . treats contemptuously the flag of the United States . . ..' The Massachusetts Supreme Judicial Court affirmed. The District Court in appellee's habeas corpus action found the 'treats contemptuously' phrase of the statute unconstitutionally vague and overbroad. The Court of Appeals affirmed. Held:
1. The challenged statutory language, which had received no narrowing state court interpretation, is void for vagueness under the Due Process Clause of the Fourteenth Amendment, since by failing to draw reasonably clear lines between the kinds of nonceremonial treatment of the flag that are criminal and those that are not it does not provide adequate warning of forbidden conduct and sets forth a standard so indefinite that police, court, and jury are free to react to nothing more than their own preferences for treatment of the flag. Pp. 572—576, 578.
2. By challenging in state courts the vagueness of the 'treats contemptuously' phrase as applied to him, appellee preserved his due process claim for purposes of federal habeas corpus jurisdiction, Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438, since the challenged language is void for vagueness as applied to appellee or to anyone else. A 'hard-core' violator concept has little meaning with regard to the challenged language, because the phrase at issue is vague not in the sense of requiring a person to conform his conduct to an imprecise but comprehensible standard, but in the sense of not specifying any ascertainable standard of conduct at all. Pp. 576—578.
3. Even if, as appellant contends, the statute could be said to deal only with 'actual' flags of the United States, this would not resolve the central vagueness deficiency of failing to define contemptuous treatment. Pp. 578—579.
4. That other words of the desecration and contempt portion of the statute address more specific conduct (mutilation, trampling, and defacing of the flag) does not assist appellant, since appellee was tried solely under the 'treats contemptuously' phrase, and the highest state court in this case did not construe the challenged phrase as taking color from more specific accompanying language. Pp. 579—580.
5. Regardless of whether restriction by that court of the scope of the challenged phrase to intentional contempt may be held against appellee, such an interpretation nevertheless does not clarify what conduct constitutes contempt of the flag, whether intentional or inadvertent. P. 580.
471 F.2d 88, affirmed.
Charles E. Chase, Medford, Mass., for appellant.
Evan T. Lawson, Boston, Mass., for appellee.
Mr. Justice POWELL delivered the opinion of the Court.
1
The sheriff of Worcester County, Massachusetts, appeals from a judgment of the United States Court of Appeals for the First Circuit holding the contempt provision of the Massachusetts flag-misuse statute unconstitutionally vague and overbroad. 471 F.2d 88 (1972), aff'g, 343 F.Supp. 161 (D.C.Mass.). We noted porbable jurisdiction. 412 U.S. 905, 93 S.Ct. 2291, 36 L.Ed.2d 969 (1973). We affirm on the vagueness ground. We do not reach the correctness of the holding below on overbreadth or other First Amendment grounds.
2
* The slender record in this case reveals little more than that Goguen wore a small cloth version of the United States flag sewn to the seat of his trousers.1 The flag was approximately four by six inches and was displayed at the left rear of Goguen's blue jeans. On January 30, 1970, two police officers in Leominster, Massachusetts, saw Goguen bedecked in that fashion. The first officer encountered Goguen standing and talking with a group of persons on a public street. The group apparently was not engaged in any demonstration or other protest associated with Goguen's apparel.2 No disruption of traffic or breach of the peace occurred. When this officer approached Goguen to question him about the flag, the other persons present laughed. Some time later, the second officer observed Goguen in the same attire walking in the downtown business district of Leominster.
3
The following day the first officer swore out a complaint against Goguen under the contempt provision of the Massachusetts flag-misuse statute. The relevant part of the statute then read:
4
'Whoever publicly mutilates, tramples upon, defaces or treats contemptuously the flag of the United States . . ., whether such flag is public or private property . . ., shall be punished by a fine of not less than ten nor more than one hundred dollars or by imprisonment for not more than one year, or both. . . .'3
5
Despite the first six words of the statute, Goguen was not charged with any act of physical desecration.4 As permitted by the disjunctive structure of the portion of the statute dealing with desecration and contempt, the officer charged specifically and only that Goguen 'did publicly treat contemptuously the flag of the United States . . ..'5
6
After jury trial in the Worcester County Superior Court, Goguen was found guilty. The court imposed a sentence of six months in the Massachusetts House of Corrections. Goguen appealed to the Massachusetts Supreme Judicial Court, which affirmed. Commonwealth v. Goguen, Mass., 279 N.E.2d 666 (1972). That court rejected Goguen's vagueness argument with the comment that '(w)hatever the uncertainties in other circumstances, we see no vagueness in the statute as applied here.' Id., 279 N.E.2d at 667. The court cited no Massachusetts precedents interpreting the 'treats contemptuously' phrase of the statute.6
7
After Goguen began serving his sentence, he was granted bail and then ordered released on a writ of habeas corpus by the United States District Court for the District of Massachusetts. 343 F.Supp. 161. The District Court found the flag-contempt portion of the Massachusetts statute impermissibly vague uner the Due Process Clause of the Fourteenth Amendment as well as overbroad under the First Amendment. In upholding Goguen's void-for-vagueness contentions, the court concluded that the words 'treats contemptuously' did not provide a 'readily ascertainable standard of guilt.' Id., at 167. Especially in 'these days when flags are commonly displayed on hats, garments and vehicles . . .,' the words under which Goguen was convicted 'leave conjectural, in many instances, what conduct may subject the actor to criminal prosecution.' Ibid. The court also found that the statutory language at issue 'may be said to encourage arbitrary and erratic arrests and convictions.' Ibid.
8
The Court of Appeals, with one judge concurring, affirmed the District Court on both First Amendment and vagueness grounds. 471 F.2d 88. With regard to the latter ground, the Court of Appeals concluded that 'resolution of (Goguen's void-for-vagueness) challenge to the statute as applied to him necessarily adjudicates the statute's facial constitutionality . . ..' Id., at 94. Treating as-applied and on-the-face vagueness attacks as essentially indistinguishable in light of the imprecision of the statutory phrase at issue, id., at 92, 94, the court found that the language failed to provide adequate warning to anyone, contained insufficient guidelines for law enforcement officials, and set juries and courts at large. Id., at 94—96. Senior Circuit Judge Hamley, sitting by designation from the Ninth Circuit, concurred solely in the void-for-vagueness holding. Id., at 105. Judge Hamley saw no need to reach the 'far broader constitutional ground' of First Amendment overbreadth relied on by the majority, nothing the 'settled principle of appellate adjudication that constitutional questions are not to be dealt with unless this is necessary to dispose of the appeal.' Ibid.
II
9
We agree with the holdings of the District Court and the Court of Appeals on the due process doctrine of vagueness. The settled principles of that doctrine require no extensive restatement here.7 The doctrine incorporates notions of fair notice or warning.8 Moreover, it requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent 'arbitrary and discriminatory enforcement.'9 Where a statute's literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts.10 The statutory language at issue here, 'publicly . . . treats contemptuously the flag of the United States . . .,' has such scope, e.g., Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969) (verbal flag contempt), and at the relevant time was without the benefit of judicial clarification.11
10
Flag contempt statutes have been characterized as void for lack of notice on the theory that '(w)hat is contemptuous to one man may be a work of art to another.'12 Goguen's behavior can hardly be described as art. Immaturity or 'silly conduct'13 probably comes closer to the mark. But we see the force of the District Court's observation that the flag has become 'an object of youth fashion and high camp . . ..' 343 F.Supp., at 164. As both courts below noted, casual treatment of the flag in many contexts has become a widespread contemporary phenomenon. Id., at 164, 167; 471 F.2d, at 96. Flag wearing in a day of relaxed clothing styles may be simply for adornment or a ploy to attract attention. It and many other current, careless uses of the flag nevertheless constitute unceremonial treatment that many people may view as contemptuous. Yet in a time of widely varying attitudes and tastes for displaying something as ubiquitous as the United States flat or representations of it, it could hardly be the purpose of the Massachusetts Legislature to make criminal every informal use of the flag. The statutory language under which Goguen was charged, however, fails to draw reasonably clear lines between the kinds of nonceremonial treatment that are criminal and those that are not. Due process requires that all 'be informed as to what the State commands or forbids,' Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939), and that 'men of common intelligence' not be forced to guess at the meaning of the criminal law. Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). Given today's tendencies to treat the flag unceremoniously, those notice standards are not satisfied here.
11
We recognize that in a noncommercial context behavior as a general rule is not mapped out in advance on the basis of statutory language.14 In such cases, perhaps the most meaningful aspect of the vagueness doctrine is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement. It is in this regard that the statutory language under scrutiny has its most notable deficiencies.
12
In its terms, the language at issue is sufficiently unbounded to prohibit, as the District Court noted, 'any public deviation from formal flag etiquette . . ..' 343 F.Supp., at 167. Unchanged throughout its 70-year history,15 the 'treats contemptuously' phrase was also devoid of a narrowing state court interpretation at the relevant time in this case.16 We are without authority to cure that defect.17 Statutory language of such a standardless sweep allows policemen, prosecutors, and juries to pursue their personal predilections. Legislatures may not so abdicate their responsibilities for setting the standards of the criminal law. E.g., Papachristou v. City of Jacksonville, 405 U.S. 156, 165—169, 92 S.Ct. 839, 845—847, 31 L.Ed.2d 110 (1972). In Gregory v. City of Chicago, 394 U.S. 111, 120, 89 S.Ct. 946, 951, 22 L.Ed.2d 134 (1969), Mr. Justice Black, in a concurring opinion, voiced a concern, which we share, against entrusting lawmaking 'to the moment-to-moment judgment of the policeman on his beat.' The aptness of his admonition is evident from appellant's candid concession during oral argument before the Court of Appeals regarding state enforcement standards for that portion of the statute under which Goguen was convicted:
13
'(A)s counsel (for appellant) admitted, a war protestor who, while attending a rally at which it begins to rain, evidences his disrespect for the American flag by contemptuously covering himself with it in order to avoid getting wet, would be prosecuted under the Massachusetts statute. Yet a member of the American Legion who, caught in the same rainstorm while returning from an 'America—Love It or Leave It' rally, similarly uses the flag, but does so regrettably and without a contemptuous attitude, would not be prosecuted.' 471 F.2d, at 102 (emphasis in original).
14
Where inherently vague statutory language permits such selective law enforcement, there is a denial of due process.
III
15
Appellant's arguments that the 'treats contemptuously' phrase is not impermissibly vague, or at least should not be so held in this case, are unpersuasive. Appellant devotes a substantial portion of his opening brief, as he did his oral argument, to the contention that Goguen failed to preserve his present void-for-vagueness claim for the purposes of federal habeas corpus jurisdiction. Appellant concedes that the issue of 'vagueness as applied' is properly before the federal courts,18 but contends that Goguen's only arguable claim is that the statute is vague on its face. The latter claim, appellant insists, was not presented to the state courts with the requisite fair precision. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). This exhaustion-of-remedies argument is belatedly raised,19 and it fails to take the full measure of Goguen's efforts to mount a vagueness attack in the state courts.20 We do not deal with the point at length, however, for we find the relevant statutory language impermissibly vague as applied to Goguen. Without doubt the 'substance' of this claim was 'fairly presented' to the state courts under the exhaustion standards of Picard, supra, at 275, 278, 92 S.Ct., at 513.
16
Appellant's exhaustion-of-remedies argument is premised on the notion that Goguen's behavior rendered him a hard-core violator as to whom the statute was not vague, whatever its implications for those engaged in different conduct. To be sure, there are statutes that by their terms or as authoritatively construed apply without question to certain activities, but whose application to other behavior is uncertain. The hard-core violator concept makes some sense with regard to such statutes. The present statute, however, is not in that category. This criminal provision is vague 'not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.' Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214 (1971). Such a provision simply has no core. This absence of any ascertainable standard for inclusion and exclusion is precisely what offends the Due Process Clause. The deficiency is particularly objectionable in view of the unfettered latitude thereby accorded law enforcement officials and triers of fact. Until it is corrected either by amendment or judicial construction, it affects all who are prosecuted under the statutory language. In our opinion the defect exists in this case. The language at issue is void for vagueness as applied to Goguen because it subjected him to criminal liability under a standard so indefinite that police, court, and jury were free to react to nothing more than their own preferences for treatment of the flag.
17
Turning from the exhaustion point to the merits of the vagueness question presented, appellant argues that any notice difficulties are ameliorated by the narrow subject matter of the statute, viz., 'actual' flags of the United States.21 Appellant contends that this 'takes some of the vagueness away from the phrase, 'treats contemptuously . . .."22 Anyone who 'wants notice as to what conduct this statute proscribes . . ., immediately knows that it has something to do with flags and if he wants to stay clear of violating this statute, he just has to stay clear of doing something to the United States flag.'23 Apart ffrom the ambiguities presented by the concept of an 'actual' flag,24 we fail to see how this alleged particularity resolves the central vagueness question—the absence of any standard for defining contemptuous treatment.
18
Appellant's remaining arguments are equally unavailing. It is asserted that the first six words of the statute add specificity to the 'treats contemptuously' phrase, and that the Massachusetts Supreme Judicial Court customarily construes general language to take on color from more specific accompanying language. But it is conceded that Goguen was convicted under the general phrase alone, and that the highest state court did not rely on any general-to-specific principle of statutory interpretation in this case.25 Appellant further argues that the Supreme Judicial Court in Goguen's case has restricted the scope of the statute to intentional contempt.26 Aside from the problems presented by an appellate court's limiting construction in the very case in which a defendant has been tried under a previously unnarrowed statute,27 this holding still does not clarify what conduct constitutes contempt, whether intentional or inadvertent.
19
Finally, appellant argues that state law enforcement authorities have shown themselves ready to interpret this penal statute narrowly and that the statute, properly read, reaches only direct, immediate contemptuous acts that 'actually impinge upon the physical integrity of the flag . . ..'28 There is no support in the record for the former point.29 Similarly, nothing in the state court's opinion in this case or in any earlier opinion of that court sustains the latter. In any event, Goguen was charged only under the wholly open-ended language of publicly treating the flag 'contemptuously.' There was no allegation of physical desecration.
20
There are areas of human conduct where, by the nature of the problems presented, legislatures simply cannot establish standards with great precision. Control of the broad range of disorderly conduct that may inhibit a policeman in the performance of his official duties may be one such area, requiring as it does an on-the-spot assessment of the need to keep order. Cf. Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). But there is no comparable reason for committing broad discretion to law enforcement officials in the area of flag contempt. Indeed, because display of the flag is so common and takes so many forms, changing from one generation to another and often difficult to distinguish in principle, a legislature should define with some care the flag behavior it intends to outlaw. Certainly nothing prevents a legislature from defining with substantial specificity what constitutes forbidden treatment of United States flags.30 The statutory language at issue here fails to approach that goal and is void for vagueness.31 The judgment is affirmed.32
21
It is so ordered.
22
Affirmed.
23
Mr. Justice WHITE, concurring in the judgment.
24
It is a crime in Massachusetts if one mutilates, tramples, defaces or 'treats contemptuously' the flag of the United States. Appellee Goguen was convicted of treating the flag contemptuously, the evidence being that he wore a likeness of the flag on the seat of his pants. The Court holds this portion of the statute too vague to provide an ascertainable standard of guilt in any situation, including this one. Although I concur in the judgment of affirmance for other reasons, I cannot agree with this rationale.1
25
* It is self-evident that there is a whole range of conduct that anyone with at least a semblance of common sense would know is contemptuous conduct and that would be covered by the statute if directed at the flag. In these instances, there would be ample notice to the actor and no room for undue discretion by enforcement officers. There may be a variety of other conduct that might or might not be claimed contemptuous by the State, but unpredictability in those situations does not change the certainty in others.
26
I am also confident that the statute was not vague with respect to the conduct for which Goguen was arrested and convicted. It should not be beyond the reasonable comprehension of anyone who would conform his conduct to the law to realize that sewing a flag on the seat of his pants is contemptuous of the flag. The Supreme Judicial Court of Massachusetts, in affirming the conviction, stated that the 'jury could infer that the violation was intentional . . ..' If he thus intended the very act which the statute forbids, Goguen can hardly complain that he did not realize his acts were in violation of the statute. '(T)he requirement of a specific intent to do a prohibited act may avoid those consequences to the accused which may otherwise render a vague or indefinite statute invalid. . . . (W)here the punishment imposed is only for an act knowingly done with the purpose of doing that which the statute prohibits, the accused cannot be said to suffer from lack of warning or knowledge that the act which he does is a violation of law.' Screws v. United States, 325 U.S. 91, 101—102, 65 S.Ct. 1031, 1035, 89 L.Ed. 1495 (1945).
27
If it be argued that the statute in this case merely requires an intentional act, not a willful one in the sense of intending what the statute forbids, then it must be recalled that appellee's major argument is that wearing a flag patch on his trousers was conduct that 'clearly expressed an idea, albeit unpopular or unpatriotic, about the flag or about the country it symbolizes . . .. Goguen may have meant to show that he believed that America was a fit place only to sit on, or the proximity to that portion of his anatomy might have had more vulgar connotations. Nonetheless, the strong and forceful communication of ideas is unmistakable.' App. 13. Goguen was under no misapprehension as to what he was doing and as to whether he was showing contempt for the flag of the United States. As he acknowledges in his brief here, 'it was necessary for the jury to find that appellee conveyed a contemptuous attitude in order to convict him.' I cannot, therefore, agree that the Massachusetts statute is vague as to Goguen; and if not vague as to his conduct, it is irrelevant that it may be vague in other contexts with respect to other conduct. 'In determining the sufficiency of the notice a statute must of necessity be examined in the light of the conduct with which a defendant is charged.' United States v. National Dairy Products Corp., 372 U.S. 29, 33, 83 S.Ct. 594, 598, 9 L.Ed.2d 561 (1963). Statutes are not 'invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language.' Id., at 32, 83 S.Ct., at 597.
28
The unavoidable inquiry, therefore, becomes whether the 'treats contemptuously' provision of the statute, as applied in this case, is unconstitutional under the First Amendment. That Amendment, of course, applies to speech and not to conduct without substantial communicative intent and impact. Even though particular conduct may be expressive and is understood to be of this nature, it may be prohibited if necessary to further a nonspeech interest of the Government that is within the power of the Government to implement. United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).
29
There is no doubt in my mind that it is well within the powers of Congress to adopt and prescribe a national flag and to protect the integrity of that flag. Congress may provide for the general welfare, control interstate commerce, provide for the common defense, and exercise any powers necessary and proper for those ends. These powers, and the inherent attributes of sovereignty as well, surely encompass the designation and protection of a flag. It would be foolishness to suggest that the men who wrote the Constitution thought they were violating it when they specified a flag for the new Nation, Act of Jan. 13, 1794, 1 Stat. 341, c. 1, just as they had for the Union under the Articles of Confederation. 8 Journals of the Continental Congress 464 (June 14, 1777). It is a fact of history that flags have been associated with nations and with government at all levels, as well as with tribes and families. It is also a historical fact that flags, including ours, have played an important and useful role in human affairs. One need not explain fully a phenomenon to recognize its existence and in this case to concede that the flag is an important symbol of nationhood and unity, created by the Nation and endowed with certain attributes. Conceived in this light, I have no doubt about the validity of laws designating and describing the flag and regulating its use, display, and disposition. The United States has created its own flag, as it may. The flag is a national property, and the Nation may regulate those who would make, imitate, sell, possess, or use it.
30
I would not question those statutes which proscribe mutilation, defacement, or burning of the flag or which otherwise protect its physical integrity, without regard to whether such conduct might provoke violence. Neither would I find it beyond congressional power, or that of state legislatures, to forbid attaching to or putting on the flag any words, symbols, or advertisements.2 All of these objects, whatever their nature, are foreign to the flag, change its physical character, and interfere with its design and function. There would seem to be little question about the power of Congress to forbid the mutilation of the Lincoln Memorial or to prevent overlaying it with words or other objects. The flag is itself a monument, subject to similar protection.
II
31
I would affirm Goguen's conviction, therefore, had he been convicted for mutilating, trampling upon, or defacing the flag, or for using the flag as a billboard for commercial advertisements or other displays. The Massachusetts statute, however, does not stop with proscriptions against defacement or attaching foreign objects to the flag. It also makes it a crime if one 'treats contemptuously' the flag of the United States, and Goguen was convicted under this part of the statute. To violate the statute in this respect, it is not enough that one 'treat' the flag; he must also treat it 'contemptuously,' which, in ordinary understanding, is the expression of contempt for the flag. In the case before us, as has been noted, the jury must have found that Goguen not only wore the flag on the seat of his pants but also that the act—and hence Goguen himself—was contemptuous of the flag. To convict on this basis is to convict not to protect the physical integrity or to protect against acts interfering with the proper use of the flag, but to punish for communicating ideas about the flag unacceptable to the controlling majority in the legislature.3
32
Neither the United States nor any State may require any individual to salute or express favorable attitudes toward the flag. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). It is also clear under our cases that disrespectful or contemptuous spoken or written words about the flag may not be punished consistently with the First Amendment. Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969). Although neither written nor spoken, an act may be sufficiently communicative to invoke the protection of the First Amendment, Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), and may not be forbidden by law except when incidental to preventing unprotected conduct or unless the communication is itself among those that fall outside the protection of the First Amendment. In O'Brien, supra, the Court sustained a conviction for draft card burning, although admittedly the burning was itself expressive. There, destruction of draft cards, whether communicative or not, was found to be inimical to important governmental considerations. But the Court made clear that if the concern of the law was with the expression associated with the act, the result would be otherwise:
33
'The case at bar is therefore unlike one where the alleged governmental interest in regulating conduct arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful. In Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), for example, this Court struck down a statutory phrase which punished people who expressed their 'opposition to organized government' by displaying 'any flag, badge, banner, or device.' Since the statute there was aimed at suppressing communication it could not be sustained as a regulation of noncommunicative conduct.' 391 U.S., at 382, 88 S.Ct., at 1682.
34
It would be difficult, therefore, to believe that the conviction in O'Brien would have been sustained had the statute proscribed only contemptuous burning of draft cards.
35
Any conviction under the 'treats contemptuously' provision of the Massachusetts statute would suffer from the same infirmity. This is true of Goguen's conviction. And if it be said that the conviction does not violate the First and Fourteenth Amendments because Goguen communicated nothing at all by his conduct and did not intend to do so, there would then be no evidentiary basis whatsoever for convicting him of being 'contemptuous' of the flag. I concur in the Court's judgment.
36
Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE joins, dissenting.
37
I agree with Mr. Justice WHITE in his conclusion that the Massachusetts flag statute is not unconstitutionally vague. I disagree with his conclusion that the words 'treats contemptuously' are necessarily directed at protected speech and that Goguen's conviction for his immature antic therefore cannot withstand constitutional challenge.
38
I agree with Mr. Justice REHNQUIST when he concludes that the First Amendment affords no shield to Goguen's conduct. I reach that result, however, not on the ground that the Supreme Judicial Court of Massachusetts 'would read' the language of the Massachusetts statute to require that 'treats contemptuously' entails physical contact with the flag and the protection of its physical integrity, but on the ground that that court, by its unanimous rescript opinion, has in fact already done exactly that. The court's opinion states that Goguen 'was not prosecuted for being 'intellectually . . . diverse' or for 'speech,' as in Street v. New York, 394 U.S. 576, 593—594, 89 S.Ct. 1354, 22 L.Ed.2d 572 . . ..' Having rejected the vagueness challenge and concluded that Goguen was not punished for speech, the Massachusetts court, in upholding the conviction, has necessarily limited the scope of the statute to protecting the physical integrity of the flag. The requisite for 'treating contemptuously' was found and the court concluded that punishment was not for speech—a communicative element. I, therefore, must conclude that Goguen's punishment was constitutionally permissible for harming the physical integrity of the flag by wearing it affixed to the seat of his pants. I accept the Massachusetts court's opinion at what I regard as its face value.
39
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting.
40
I agree with the concurring opinion of my Brother WHITE insofar as he concludes that the Massachusetts law is not unconstitutionally vague, but I do not agree with him that the law under which appellee Goguen was convicted violates the First and Fourteenth Amendments. The issue of the application of the First Amendment to expressive conduct, or 'symbolic speech,' is undoubtedly a difficult one, and in cases dealing with the United States flag it has unfortunately been expounded only in dissents and concurrences. See Street v. New York, 394 U.S. 576, 594, 89 S.Ct. 1354, 1367, 22 L.Ed.2d 572 (1969) (Warren, C.J., dissenting); 609, 89 S.Ct., at 1374 (Black, J., dissenting); 610, 89 S.Ct., at 1375 (White, J., dissenting); 615, 89 S.Ct., at 1377 (Fortas, J., dissenting); and Cowgill v. California, 396 U.S. 371, 90 S.Ct. 613, 24 L.Ed.2d 590 (1970) (Harlan, J., concurring). Nonetheless, since I disagree with the Court's conclusion that the statute is unconstitutionally vague, I must, unlike the Court, address appellant's First Amendment contentions.
41
The question whether the State may regulate the display of the flag in the circumstances shown by this record appears to be an open one under our decisions. Halter v. Nebraska, 205 U.S. 34, 27 S.Ct. 419, 51 L.Ed. 696 (1907); Street v. New York, supra; Cowgill v. California, supra (Harlan, J., concurring); People v. Radich, 26 N.Y.2d 114, 308 N.Y.S.2d 846, 257 N.E.2d 30, aff'd by an equally divided Court, 401 U.S. 531, 91 S.Ct. 1217, 28 L.Ed.2d 287 (1971).
42
What the Court rightly describes as 'the slender record in this case,' ante, at 568 shows only that Goguen wore a small cloth version of the United States flag sewn to the seat of his blue jeans. When the first police officer questioned him, he was standing with a group of people on Main Street in Leominster, Massachusetts. The people with him were laughing. When the second police officer saw him, he was 'walking in the downtown business district of Leominster, wearing a short coat, casual type pants and a miniature American flag sewn on the left side of his pants.' Goguen did not testify, and there is nothing in the record before us to indicate what he was attempting to communicate by his conduct, or, indeed, whether he was attempting to communicate anything at all. The record before us does not even conclusively reveal whether Goguen sewed the flag on the pants himself, or whether the pants were manufactured complete with flag; his counsel here, however, who was also his trial counsel, stated in oral argument that of his own knowledge the pants were not manufactured with the flag on them. Finally, it does not appear whether appellee said anything during his journey through the streets of Leominster; his amended bill of exceptions to the Supreme Judicial Court of Massachusetts made no mention of any testimony indicating that he spoke at all.
43
Goguen was prosecuted under the Massachusetts statute set forth in the opinion of the Court, and has asserted here not only a claim of unconstitutional vagueness but a claim that the statute infringes his right under the First and Fourteenth Amendments.
44
* There is a good deal of doubt on this record that Goguen was trying to communicate any particular idea, and had he been convicted under a statute which simply prohibited improper display of the flag I would be satisfied to conclude that his conduct in wearing the flag on the seat of his pants did not come within even the outermost limits of that sort of 'expressive conduct' or 'symbolic speech' which is entitled to any First Amendment protection. But Goguen was convicted of treating the flag contemptuously by the act of wearing it where he did, and I have difficulty seeing how Goguen could be found by a jury to have treated the flag contemptuously by his act and still not to have expressed any idea at all. There are, therefore, in my opinion, at least marginal elements of 'symbolic speech' in Goguen's conduct as reflected by this record.
45
Many cases which could be said to involve conduct no less expressive than Goguen's, however, have never been thought to require analysis in First Amendment terms because of the presence of other factors. One who burns down the factory of a company whose products he dislikes can expect his First Amendment defense to a consequent arson prosecution to be given short shrift by the courts. The arson statute safeguards the government's substantial interest in preventing the destruction of property by means dangerous to human life, and an arsonist's motive is quite irrelevant. The same fate would doubtless await the First Amendment claim of one prosecuted for destruction of government property after he defaced a speed limit sign in order to protest the stated speed limit. Both the arsonist and the defacer of traffic signs have infringed on the property interests of others, whether of another individual or of the government. Yet Goguen, unlike either, has so far as this record shows infringed on the ordinary property rights of no one.
46
That Goguen owned the flag with which he adorned himself, however, is not dispositive of the First Amendment issue. Just as the government may not escape the reach of the First Amendment by asserting that it acts only in a proprietary capacity with respect to streets and parks to which it has title, Hague v. CIO, 307 U.S. 496, 514—516, 59 S.Ct. 954, 963—964, 83 L.Ed. 1423 (1939), a defendant such as Goguen may not escape the reach of the police power of the State of Massachusetts by asserting that his act affected only his own property. Indeed, there are so many well-established exceptions to the proposition that one may do what he likes with his own property that it cannot be said to have even the status of a general rule.
47
The very substantial authority of state and local governing bodies to regulate the use of land, and thereby to limit the uses available to the owner of the land, was established nearly a half century ago in Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). Land-use regulations in a residential zoning district typically do not merely exclude malodorous and unsightly rendering plants; they often also prohibit erection of buildings or monuments, including ones open to the public, which might itself in an aesthetic sense involve substantial elements of 'expressive conduct.' The performance of a play may well constitute expressive conduct or 'pure' speech, but a landowner may not for that reason insist on the right to construct and operate a theater in an area zoned for noncommercial uses. So long as the zoning laws do not, under the guise of neutrality, actually prohibit the expression of ideas because of their content, they have not been thought open to challenge under the First Amendment.
48
As may land, so may other kinds of property be subjected to close regulation and control. A person with an ownership interest in controlled drugs, or in firearms, cannot use them, sell them, and transfer them in whatever manner he pleases. The copyright laws, 17 U.S.C. § 1 et seq., limit what use the purchaser chaser of a copyrighted book may make of his acquisition. A company may be restricted in what it advertises on its billboards. Packer Corp. v. Utah, 285 U.S. 105, 52 S.Ct. 273, 76 L.Ed. 643 (1932).
49
The statute which Goguen violated, however, does not purport to protect the related interests of other property owners, neighbors, or indeed any competing ownership interest in the same property; the interest which it protects is that of the Government, and is not a traditional property interest.
50
Even in this, however, laws regulating use of the flag are by no means unique. A number of examples can be found of statutes enacted by Congress which protect only a peculiarly governmental interest in property otherwise privately owned. Title 18 U.S.C. § 504 prohibits the printing or publishing in actual size or in actual color of any United States postage or revenue stamp, or of any obligation or security of the United States. It likewise prohibits the importation of any plates for the purpose of such printing. Title 18 U.S.C § 331 prohibits the alteration of any Federal Reserve note or national bank note, and 18 U.S.C. § 333 prohibits the disfiguring or defacing of any national bank note or coin. Title 18 U.S.C. § 702 prohibits the wearing of a military uniform, any part of such uniform, or anything similar to a military uniform or part thereof without proper authorization. Title 18 U.S.C. § 704 prohibits the unauthorized wearing of service medals. It is not without significance that many of these statutes, though long on the books, have never been judicially construed or even challenged.
51
My Brother WHITE says, however, that whatever may be said of neutral statutes simply designed to protect a governmental interest in private property, which in the case of the flag may be characterized as an interest in preserving its physical integrity, the Massachusetts statute here is not neutral. It punishes only those who treat the flag contemptuously, imposing no penalty on those who 'treat' it otherwise, that is, those who impair its physical integrity in some other way.
II
52
Leaving aside for the moment the nature of the governmental interest in protecting the physical integrity of the flag, I cannot accept the conclusion that the Massachusetts statute must be invalidated for punishing only some conduct that impairs the flag's physical integrity. It is true, as the Court observes, that we do not have in so many words a 'narrowing construction' of the statute from the Supreme Judicial Court of Massachusetts. But the first of this Court's decisions cited in the short rescript opinion of the Supreme Judicial Court is Halter v. Nebraska, 205 U.S. 34, 27 S.Ct. 419, 51 L.Ed. 696 (1907), which upheld against constitutional attack a Nebraska statute which forbade the use of the United States flag for purposes of advertising. We also have the benefit of an opinion of the Attorney General of the Commonwealth of Massachusetts that the statute under which Goguen was prosecuted, being penal, "is not to be enlarged beyond its plain import, and as a general rule is strictly construed." Report of Atty.Gen., Pub.Doc. No. 12, pp. 192 193 (1968). With this guidance, and the further assistance of the content of the entire statutory prohibition, I think the Supreme Judicial Court would read the language 'whoever publicly mutilates, tramples upon, defaces, or treats contemptuously the flag of the United States . . .' as carrying the clear implication that the contemptuous treatment, like mutilation, trampling upon, or defacing, must involve some actual physical contact with the flag itself. Such a reading would exclude a merely derogatory gesture performed at a distance from the flag, as well as purely verbal disparagement of it.*
53
If the statute is thus limited to acts which affect the physical integrity of the flag, the question remains whether the State has sought only to punish those who impair the flag's physical integrity for the purpose of disparaging it as a symbol, while permitting impairment of its physical integrity by those who do not seek to disparage it as a symbol. If that were the case, holdings like Schacht v. United States, 398 U.S. 58, 90 S.Ct. 1555, 26 L.Ed.2d 44 (1970), suggest that such a law would abridge the right of free expression.
54
But Massachusetts metes out punishment to anyone who publicly mutilates, tramples, or defaces the flag, regardless of his motive or purpose. It also punishes the display of any 'words, figures, advertisements or designs' on the flag, or the use of a flag in a parade as a receptacle for depositing or collecting money. Likewise prohibited is the offering or selling of any article on which is engraved a representation of the United States flag.
55
The variety of these prohibitions demonstrates that Massachusetts has not merely prohibited impairment of the physical integrity of the flag by those who would cast contempt upon it, but equally by those who would seek to take advantage of its favorable image in order to facilitate any commercial purpose, or those who would seek to convey any message at all by means of imprinting words or designs on the flag. These prohibitions are broad enough that it can be fairly said that the Massachusetts statute is one essentially designed to preserve the physical integrity of the flag, and not merely to punish those who would infringe that integrity for the purpose of disparaging the flag as a symbol. While it is true that the statute does not appear to cover one who simply wears a flag, unless his conduct for other reasons falls within its prohibitions, the legislature is not required to address every related matter in an area with one statute. Katzenbach v. Morgan, 384 U.S. 641, 656—658, 86 S.Ct. 1717, 1726—1728, 16 L.Ed.2d 828 (1966). It may well be that the incidence of such conduct at the time the statute was enacted was not thought to warrant legislation in order to preserve the physical integrity of the flag.
56
In United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), the Court observed:
57
'We cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea.' Id., at 376, 88 S.Ct., at 1678.
58
Then, proceeding 'on the assumption that the alleged communicative element in O'Brien's conduct (was) sufficient to bring into play the First Amendment,' the Court held that a regulation of conduct was sufficiently justified
59
'if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.' Id., at 377, 88 S.Ct., at 1679.
60
While I have some doubt that the first enunciation of a group of tests such as those established in O'Brien sets them in concrete for all time, it does seem to me that the Massachusetts statute substantially complies with those tests. There can be no question that a statute such as the Massachusetts one here is 'within' the constitutional power of a State to enact. Since the statute by this reading punishes a variety of uses of the flag which would impair its physical integrity, without regard to presence or character of expressive conduct in connection with those uses, I think the governmental interest is unrelated to the suppression of free expression. The question of whether the governmental interest is 'substantial' is not easy to sever from the question of whether the restriction is 'no greater than is essential to the furtherance of that interest,' and I therefore treat those two aspects of the matter together. I believe that both of these tests are met, and that the governmental interest is sufficient to outweigh whatever collateral suppression of expressive conduct was involved in the actions of Goguen. In so concluding, I find myself in agreement not only with my Brother WHITE in this case, but with those members of the Court referred to earlier in this opinion who dissented from the Court's disposition in the case of Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969).
61
My Brother WHITE alludes to the early legislation both of the Continental Congress and of the Congress of the new Nation dealing with the flags, and observes: 'One need not explain fully a phenomenon to recognize its existence and in this case to concede that the flag is an important symbol of nationhood and unity, created by the Nation and endowed with certain attributes. Conceived in this light, I have no doubt about the validity of laws designating and describing the flag and regulating its use, display, and disposition.' I agree.
62
On September 17, 1787, as the last members of the Constitutional Convention were signing the instrument, James Madison in his 'Notes' describes the occurrence of the following incident:
63
'Whilst the last members were signing it Doctor Franklin looking towards the President's Chair, at the back of which a rising sun happened to be painted, observed to a few members near him, that Painters had found it difficult to distinguish in their art a rising from a setting sun. I have said he, often and often in the course of the Session, and the vicissitudes of my hopes and fears as to its issue, looked at that behind the President without being able to tell whether it was rising or setting: But now at length I have the happiness to know that it is a rising and not a setting sun.' 4 Writings of James Madison 482—483 (Hunt ed. 1903).
64
Writing for this Court more than one hundred years later, Mr. Justice Holmes made the familiar statement:
65
'(W)hen we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.' Missouri v. Holland, 252 U.S. 416, 433, 40 S.Ct. 382, 383, 64 L.Ed. 641 (1920).
66
From its earliest days, the art and literature of our country have assigned a special place to the flag of the United States. It figures prominently in at least one of Charles Willson Peale's portraits of George Washington, showing him as leader of the forces of the 13 Colonies during the Revolutionary War. No one who lived through the Second World War in this country can forget the impact of the photographs of the members of the United States Marine Corps raising the United States flag on the top of Mount Suribachi on the Island of Iwo Jima, which is now commemorated in a statue at the Iwo Jima Memorial adjoining Arlington National Cemetery.
67
Ralph Waldo Emerson, writing 50 years after the battles of Lexington and Concord, wrote:
68
'By the rude bridge that arched the flood
Their flag to April's breeze unfurled
Here once the embattled farmers stood
69
And fired the shot heard 'round the world.' Oliver Wendell Holmes, Senior, celebrated the flag that had flown on 'Old Ironsides' during the War of 1812, and John Greenleaf Whittier made Barbara Frietchie's devotion to the 'silken scarf' in the teeth of Stonewall Jackson's ominous threats the central theme of his familiar poem. John Philip Sousa's 'Stars and Stripes Forever' and George M. Cohan's 'It's a Grand Old Flag' are musical celebrations of the flag familiar to adults and children alike. Francis Scott Key's 'Star Spangled Banner' is the country's national anthem.
70
While most of the artistic evocations of the flag occur in the context of times of national struggle, and correspondingly greater dependence on the flag as a symbol of national unity, the importance of the flag is by no means limited to the field of hostilities. The United States flag flies over every federal courthouse in our Nation, and is prominently displayed in almost every federal, state, or local public building throughout the land. It is the one visible embodiment of the authority of the National Government, through which the laws of the Nation and the guarantees of the Constitution are enforced.
71
It is not empty rhetoric to say that the United States Constitution, even the First and Fourteenth Amendments under which Goguen seeks to upset his conviction, does not invariably in the world of practical affairs enforce itself. Going back no further than the memories of most of us presently alive, the United States flag was carried by federal troops summoned by the President to enforce decrees of federal courts in Little Rock, Arkansas, in 1957, and in Oxford, Mississippi, in 1962.
72
The significance of the flag, and the deep emotional feelings it arouses in a large part of out citizenry, cannot be fully expressed in the two dimensions of a lawyer's brief or of a judicial opinion. But if the Government may create private proprietary interests in written work and in musical and theatrical performances by virtue of copyright laws, I see no reason why it may not, for all of the reasons mentioned, create a similar governmental interest in the flag by prohibiting even those who have purchased the physical object from impairing its physical integrity. For what they have purchased is not merely cloth dyed red, white, and blue,. but also the one visible manifestation of two hundred years of nationhood—a history compiled by generations of our forebears and contributed to by streams of imigrants from the four corners of the globe, which has traveled a course since the time of this country's origin that could not have been 'foreseen . . . by the most gifted of its begetters.'
73
The permissible scope of government regulation of this unique physical object cannot be adequately dealt with in terms of the law of private property or by a highly abstract, scholastic interpretation of the First Amendment. Massachusetts has not prohibited Goguen from wearing a sign sewn to the seat of his pants expressing in words his low opinion of the flag, of the country, or anything else. It has prohibited him from wearing there a particular symbol of extraordinary significance and content, for which significance and content Goguen is in no wise responsible. The flag of the United States is not just another 'thing,' and it is not just another 'idea'; it is not primarily an idea at all.
74
Here Goguen was, so far as this record appears, quite free to express verbally whatever views it was he was seeking to express by wearing a flag sewn to his pants, on the streets of Leominster or in any of its parks or commons where free speech and assembly were customarily permitted. He was not compelled in any way to salute the flag, pledge allegiance to it, or make any affirmative gesture of support or respect for it such as would contravene West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). He was simply prohibited from impairing the physical integrity of a unique national symbol which has been given content by generations of his and our forebears, a symbol of which he had acquired a copy. I believe Massachusetts had a right to enact this prohibition.
1
The record consists solely of the amended bill of exceptions Goguen filed in the Massachusetts Supreme Judicial Court, the opposing briefs before that court, the complaint under which Goguen was prosecuted, and Goguen's federal habeas corpus petition. App. 1—36, 42—43. We do not have a trial transcript, although Goguen's amended bill of exceptions briefly summarizes some of the testimony given by witnesses for the prosecution at his state trial. Goguen did not take the stand. Thus we do not have of record his account of what transpired at the time of his arrest or of his purpose in wearing a flag on the seat of his trousers.
2
Tr. of Oral Arg. 5—6, 35—36.
3
Mass.Gen.Laws Ann., c. 264, § 5. Omitting several sentences protecting the ceremonial activities of certain veterans' groups, the statute read as follows at the time of Geguen's arrest and conviction:
§ 5. Flag; penalty for misuse
'Whoever publicly mutilates, tramples upon, defaces or treats contemptuously the flag of the United States or of Massachusetts, whether such flag is public or private property, or whoever displays such flag or any representation thereof upon which are words, figures, advertisements or designs, or whoever causes or permits such flag to be used in a parade as a receptacle for depositing or collecting money or any other article or thing, or whoever exposes to public view, manufactures, sells, exposes for sale, gives away or has in possession for sale or to give away or for use for any purpose, any article or substance, being an article of merchandise or a receptacle of merchandise or articles upon which is attached, through a wrapping or otherwise, engraved or printed in any manner, a representation of the United States flag, or whoever uses any representation of the arms or the great seal of the commonwealth for any advertising or commercial purpose, shall be punished by a fine of not less than ten nor more than one hundred dollars or by imprisonment for not more than one year, or both. Words, figures, advertisements or designs attached to, or directly or indirectly connected with, such flag or any representation thereof in such manner that such flag or its representation is used to attract attention to or advertise such words, figures, advertisements or designs, shall for the purposes of this section be deemed to be upon such flag.'
The statute is an amalgam of provisions dealing with flag desecration and contempt (the first 26 words) and with commercial misuse or other exploitation of flags of the State and National Governments. This case concerns only the 'treats contemptuously' phrase of the statute, which has apparently been in the statute since its enactment in 1899. 471 F.2d 88, 90, n. 2 (1972).
In 1971, subsequent to Goguen's prosecution, the desecration and contempt portion of the statute was amended twice. On March 8, 1971, the legislature, per Stats.1971, c. 74, modified the first sentence by inserting 'burns or otherwise' between the terms 'publicly' and 'mutilates,' and, in addition, by increasing the fine. Mass.Gen.Laws Ann., c. 264, § 5 (Supp.1973). On August 12, 1971, per Stats.1971, c. 655, the legislature appended a new sentence defining 'the . . . 'flag of the United States" phrase appearing in the first sentence: 'For the purposes of this section the term 'flag of the United States' shall mean any flag which has been designated by Act or Resolution of the Congress of the United States as the national emblem, whether or not such designation is currently in force.' Ibid. The 1971 amendments are relevant to this case only in the tangential sense that they indicate a recognition by the legislature of the need to tighten up this imprecise statute.
4
Perhaps this was because of the difficulty of the question whether Goguen's conduct constituted physical desecration of the flag. Cf. 471 F.2d, at 91 n. 4 ('(W)e are not so sure that sewing a flag to a background clearly affects 'physical integrity").
5
App. 4.
6
Appellant correctly conceded at oral argument that Goguen's case is the first recorded Massachusetts court reading of this language. Tr. of Oral Arg. 17—18. Indeed, with the exception of one case at the turn of the century involving one of the statute's commercial-misuse provisions, Commonwealth v. R. I. Sherman Mfg. Co., 189 Mass. 76, 75 N.E. 71 (1905), the entire statute has been essentially devoid of state court interpretation.
7
The elements of the void-for-vagueness doctrine have been developed in a large body of precedent from this Court. The cases are categorized in, e.g., Grayned v. City of Rockford, 408 U.S. 104, 108—109, 92 S.Ct. 2294, 2298—2299, 33 L.Ed.2d 222 (1972). See Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67 (1960).
8
E.g., Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972); Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939) ('No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids') (citations omitted); Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926) ('(A) statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law') (citations omitted).
9
E.g., Grayned, supra, 408 U.S., at 108, 92 S.Ct., at 2299; United States v. L. Cohen Grocery Co., 255 U.S. 81, 89, 41 S.Ct. 298, 300, 65 L.Ed. 516 (1921) ('(T)o attempt to enforce the section would be the exact equivalent of an effort to carry out a statute which in terms merely penalized and punished all acts detrimental to the public interest then unjust and unreasonable in the estimation of the court and jury'); United States v. Reese, 92 U.S. 214, 221, 23 L.Ed. 563 (1865) ('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').
10
E.g., Grayned, supra, at 109, 92 S.Ct., at 2299; Smith v. California, 361 U.S. 147, 151, 80 S.Ct. 215, 217, 4 L.Ed.2d 205 (1959). Compare the less stringent requirements of the modern vagueness cases dealing with purely economic regulation. E.g., United States v. National Dairy Products Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963) (Robinson-Patman Act).
11
See n. 6, supra.
12
Note, 66 Mich.L.Rev. 1040, 1056 (1968).
13
343 F.Supp. 161, 166.
14
Note, 109 U.Pa.L.Rev., supra, n. 7, at 82 n. 79.
15
See n. 3, supra.
16
See n. 6, supra. The contempt portion of the Massachusetts statute seems to have lain fallow for almost its entire history. Apparently there have been about a half dozen arrests under this part of the statute in recent years, but none has produced a reported decision. Tr. of Oral Arg. 28—29. In 1968, a teenager in Lynn, Massachusetts, was charged, apparently under the present statute, with desecrating the United States flag by sewing pieces of it into his trousers. New York Times, Sept. 1, 1968, p. 31, col. 1. The teenager was ordered by a state district court to prepare and deliver an essay on the flag. The court continued the case without a finding, depriving it of any precedential value.
17
E.g., United States v. Thirty-Seven Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 1405, 28 L.Ed.2d 822 (1971).
18
Reply Brief for Appellant 4.
19
Goguen filed his federal habeas corpus petition subsequent to Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). Yet it appears that appellant did not raise his present exhaustion-of-remedies argument before the District Court. That court commented specifically on this omission: 'No contention is now made that (Goguen) has not exhausted state remedies, nor that the constitutional issues presented here were not raised appropriately in state proceedings.' 343 F.Supp., at 164.
20
Goguen filed in State Superior Court an unsuccessful motion to dismiss the complaint in which he cited the Fourteenth Amendment and alleged that the statute under which he was charged was 'impermissibly vague and incapable of fair and reasonable interpretation by public officials.' App. 1. This motion was also before the Massachusetts Supreme Judicial Court, since it was incorporated in Goguen's amended bill of exceptions. Ibid. In addition, Goguen's brief before that court raised vagueness points and cited vagueness cases. Id., at 19, 26—27, citing Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939), and Parker v. Morgan, 322 F.Supp. 585 (WDNC 1971) (three-judge court) (North Carolina flag contempt statute void for vaguences and overbreadth). Appellant is correct in asserting that Goguen failed to compartmentalize in his state court brief the due process doctrine of vagueness and First Amendment concepts of overbreadth. See App. 19—24. But permitting a degree of leakage between those particular adjoining compartments is understandable. Cf. Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 871—875 (1970). The highest state court's opinion, which dealt separately with Goguen's First Amendment and vagueness claims, Commonwealth v. Goguen, Mass., 279 N.E.2d 666, 667 (1972), indicates that that court was well aware that Goguen raised both sets of arguments.
21
Brief for Appellant 17; Tr. of Oral Arg. 9.
22
Ibid.
23
Ibid.
24
At the time of Goguen's prosecution, the statute referred simply to 'the flag of the United States . . .,' without further definition. That raises the obvious question whether Goguen's miniature cloth flag constituted 'the flag of the United States . . ..' Goguen argued unsuccessfully before the state courts that the statute applied only to flags that met 'official standards' for proportions, such as relation of height to width and the size of stripes and the field of stars, and that the cloth he wore did not meet those standards. Tr. of Oral Arg. 11—12, 24—26; App. 2. There was no dispute that Goguen's adornment had the requisite number of stars and stripes and colors. Tr. of Oral Arg. 11—12. The Massachusetts Supreme Judicial Court found Goguen's cloth flag to be covered by the statute, noting that '(t)he statute does not require that the flag be 'official," Commonwealth v. Goguen, Mass., 279 N.E.2d, at 668. The lower federal courts did not address this holding, nor do we. We note only that the Massachusetts Legislature apparently sensed an ambiguity in this respect, because subsequent to Goguen's prosecution it amended the statute in an effort to define what it had meant by the 'flag of the United States.' See n. 3, supra.
25
Tr. of Oral Arg. 48.
26
The Massachusetts court commented simply that '(t)he jury could infer that the violation was intentional without reviewing any words of the defendant.' Commonwealth v. Goguen, supra, at 668. Thus, the court held that the jury could infer intent merely from Goguen's conduct. This is apparently also a holding that the jury must find contemptuous intent under the statute, although the requirement amounts to very little since it is so easily satisfied. The court's reference to verbal communication reflected Goguen's reliance on Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969).
27
E.g., Ashton v. Kentucky, 384 U.S. 195, 198, 86 S.Ct. 1407, 1409, 16 L.Ed.2d 469 (1966).
28
Brief for Appellant 22.
29
With regard to prosecutorial policies, appellant cites two published opinions of the Massachusetts Attorney General. 4 Op.Atty.Gen. 470—473 (1915) (reproduced in Brief for Appellant 30); Report of Atty.Gen., Pub.Doc. No. 12, p. 192 (1968) (reproduced in Jurisdictional Statement App. 53). Appellant concedes that neither deals with the contempt portion of the statute under which Goguen was convicted. Thus, they are not in point here. They provided guidance to no one on the relevant statutory language. Nevertheless, appellant is correct that they show a tendency on the part of the State Attorney General to read other portions of the statute narrowly. At the same time, they reflect the lack of precision recurring throughout the Massachusetts flag-misuse statute. The 1915 opinion noted that a literal reading of one portion of the statute, prohibiting exhibition of engravings of the flag on certain articles, would make it a criminal offense to display the flag itself 'in many of its cheaper and more common forms.' Brief for Appellant 31—32. The State Attorney General Concluded that this would be a 'manifest absurdity.' Id., at 32. The 1968 opinion advised that a flag representation painted on a door was not 'a flag of the United States' within the meaning of the statute. Jurisdictional Statement App. 53—55. A contrary interpretation would 'raise serious questions under the First and Fourteenth Amendments . . .,' given the requirement that behavior made criminal must be 'plainly prohibited by the language of the statute.' Id., at 54.
30
The federal flag desecration statute, for example, reflects a congressional purpose to do just that. In response to a warning by the United States Attorney General that to use such unbounded terms as 'defies' or 'casts contempt . . . either by word or act' is 'to risk invalidation' on vagueness grounds, S.Rep.No.1287, 90th Cong., 1st Sess., 5 (1968; H.R.Rep. No. 350, 90th Cong., 1st Sess., 7 (1967), the bill which became the federal statute was amended, 113 Cong.Rec. 16449, 16450 (1967), to reach only acts that physically damage the flag. The desecration provision of the statute, 18 U.S.C. § 700(a), declares:
'(a) Whoever knowingly casts contempt upon any flag of the United States by publicly mutilating, defacing, defiling, burning, or trampling upon it shall be fined not more than $1,000 or imprisoned for not more than one year, or both.'
The legislative history reveals a clear desire to reach only defined physical acts of desecration. 'The language of the bill prohibits intentional, willful, not accidental or inadvertent public physical acts of desecration of the flag.' H.R.R.ep.No.350, supra, at 3; S.Rep.No.1287, supra, at 3. The act has been so read by the lower federal courts, which have upheld it against vagueness challenges. United States v. Crosson, 462 F.2d 96 (CA9) cert. denied, 409 U.S. 1064, 93 S.Ct. 569, 34 L.Ed.2d 517 (1972); Joyce v. United States, 147 U.S.App.D.C. 128, 454 F.2d 971 (1971), cert. denied, 405 U.S. 969, 92 S.Ct. 1188, 31 L.Ed.2d 242 (1972). See Hoffman v. United States, 144 U.S.App.D.C. 156, 445 F.2d 226 (1971).
31
We are aware, of course, of the universal adoption of flag desecration or contempt statutes by the Federal and State governments. See n. 30, supra. The statutes of the 50 States are synopsized in Hearings on H.R. 271 et al., before Subcommittee No. 4 of the House Committee on the Judiciary, 90th Cong., 1st Sess., ser. 4, pp. 324—346 (1967). Most of the state statutes are patterned after the Uniform Flag Law of 1917, which in § 3 provides that
'No person shall publicly mutilate, deface, defile, defy, trample upon, or by word or act cast contempt upon any such flag, standard, color, ensign or shield.'
Compare 9B Uniform Laws Ann. 52—53 (1966), with Hearings on H.R. 271 et al., supra, at 321—346. Because it is stated in the disjunctive, this language, like that before us, makes possible criminal prosecution solely for casting contempt upon the flag. But the validity of statutes utilizing this language, insofar as the vagueness doctrine is concerned, will depend as much on their judicial construction and enforcement history as their literal terms.
32
We have not addressed Gogun's First Amendment arguments because, having found the challenged statutory language void for vagueness, there is no need to decide additional issues. Moreover, the skeletal record in this case, see n. 1, supra, affords a poor opportunity for the careful consideration merited by the importance of the First Amendment issues Goguen has raised.
1
There has been recurring litigation, with diverse results, over the validity of flag use and flag desecration statutes. Representative of the federal and state cases are the following: Thomas v. Heffernan, 473 F.2d 478 (CA2 1973); Long Island Vietnam Moratorium Committee v. Cahn, 437 F.2d 344 (CA2 (1970); United States v. Crosson, 462 F.2d 96 (CA9), cert. denied, 409 U.S. 1064, 93 S.Ct. 569, 34 L.Ed.2d 517 (1972); Joyce v. United States, 147 U.S.App.D.C. 128, 454 F.2d 971 (1971), cert. denied, 405 U.S. 969, 92 S.Ct. 1188, 31 L.Ed.2d 242 (1972); Deeds v. Beto, 353 F.Supp. 840 (ND Tex.1973); Oldroyd v. Kugler, 327 F.Supp. 176 (NJ 1970), rev'd, 461 F.2d 535 (CA3 1972), abstention on remand, 352 F.Supp. 27, aff'd, 412 U.S. 924, 93 S.Ct. 2753, 37 L.Ed.2d 153 (1973; Sutherland v. DeWulf, 323 F.Supp. 740 (SD Ill.1971); Parker v. Morgan, 322 F.Supp. 585 (WDNC 1971); Crosson v. Silver, 319 F.Supp. 1084 (D.C.Ariz.1970); Hodsdon v. Buckson, 310 F.Supp. 528 (Del. 1970), rev'd on other grounds sub nom. Hodsdon v. Stabler, 444 F.2d 533 (CA3 1971); United States v. Ferguson, 302 F.Supp. 1111 (ND Cal.1969); State v. Royal, 113 N.H. 224, 305 A.2d 676 (1973); State v. Zimmelman, 62 N.J. 279, 301 A.2d 129 (1973); State v. Spence, 81 Wash.2d 788, 506 P.2d 293, probable jurisdiction noted, 414 U.S. 815, 94 S.Ct. 61, 38 L.Ed.2d 48 (1973) (sub judice); City of Miami v. Wolfenberger, 265 So.2d 732 (Fla.Dist.Ct.App.1972); State v. Mitchell, 32 Ohio App.2d 16, 288 N.E.2d 216 (1972); State v. Liska, 32 Ohio App.2d 317, 291 N.E.2d 498 (1971); State v. Van Camp, 6 Conn. Cir. 609, 281 A.2d 584 (1971); State v. Waterman, 190 N.W.2d 809 (Iowa 1971); State v. Saulino, 29 Ohio Misc. 25, 277 N.E.2d 580 (1971); Deeds v. State, 474 S.W.2d 718 (Crim.App.Tex.1971); People v. Radich, 26 N.Y.2d 114, 308 N.Y.S.2d 846, 257 N.E.2d 30 (1970), aff'd by an equally divided court, 401 U.S. 531, 91 S.Ct. 1217, 28 L.Ed.2d 287, rehearing denied, 402 U.S. 989, 81 S.Ct. 1646, 29 L.Ed.2d 157 (1971); People v. Cowgill, 274 Cal.App.2d Supp. 923, 78 Cal.Rptr. 853 (1969), appeal dismissed, 396 U.S. 371, 90 S.Ct. 613, 24 L.Ed.2d 590 (1970); Hinton v. State, 223 Ga. 174, 154 S.E.2d 246 (1967), rev'd on other grounds sub nom. Anderson v. Georgia, 390 U.S. 206, 88 S.Ct. 902, 19 L.Ed.2d 1039 (1968).
2
For a treatment of statutes protective of the flag, see Rosenblatt, Flag Desecration Statutes: History and Analysis, 1972 Wash.U.L.Q. 193.
3
Massachusetts has not construed its statute to eliminate the communicative aspect of the proscribed conduct as a crucial element of the violation. In State v. Royal, 113 N.H. 224, 305 A.2d 676 (1973), the New Hampshire Supreme Court, noting among other things that the State has a valid interest in the physical integrity of the flag, rejected a facial attack on its flag desecration statute, which made it a crime to publicly mutilate, trample upon, defile, deface, or cast contempt upon the flag. The court construed the statute to be 'directed at acts upon the flag and not 'at the expression of and mere belief in particular ideas'.' Id., at 230, 305 A.2d, at 680. The proscription against casting contempt upon the flag was to be understood as a general prohibition of acts of the same nature as the previously forbidden acts of mutiliation and defacement, not as a proscription of the expression of ideas. Thus:
'Our statute is more narrowly drawn than some flag statutes. It deals only with the flag itself or any 'flag or ensign evidently purporting to be' the flag. State v. Cline, (113 N.H. 245), 305 A.2d 673, decided this date. Also, as we construe it, our statute prohibits only acts of multilation and defilement inflicted directly upon the flag itself and does not prohibit acts which are directed at the flag without touching it. The statute enumerates specific acts of flag desecration, namely 'mutilate, trample upon, defile, deface', all of which involve physical acts upon the flag. The general term 'cast contempt' follows these enumerated specific acts. We hold that the phrase 'or cast contempt by . . . acts' as used in RSA 573:4 is limited to physical abuse type of acts similar to those previously enumerated in the statute. 2 Sutherland, Statutory Construction § 4909 (3d rev. ed. Horack 1943); State v. Small, 99 N.H. 349, 111 A.2d 201 (1955); State v. N.H. Gas & Electric Co., 86 N.H. 16, 163 A. 724 (1932).' Id., at 227, 305 A.2d, at 679.
*
To the extent that counsel for appellant who argued the cause in the Court of Appeals may have intimated a broader construction in the colloquy in that court quoted in this Court's opinion, ante, at 575—576, I would attach little weight to it. We have previously said that we are 'loath to attach conclusive weight to the relatively spontaneous responses of counsel to equally spontaneous questioning from the Court during oral argument,' Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 170, 92 S.Ct. 1965, 1970, 32 L.Ed.2d 627 (1972), and if that be the case surely even less weight should be ascribed by us to a colloquy which took place in another court.
| 23
|
415 U.S. 651
94 S.Ct. 1347
39 L.Ed.2d 662
Joel EDELMAN, Director of Illinois Department of Public Aid, etc., Petitioner,v.John JORDAN et al.
No. 72—1410.
Argued Dec. 12, 1973.
Decided March 25, 1974.
Rehearing Denied May 13, 1974.
See 416 U.S. 1000, 94 S.Ct. 2414.
Syllabus
Respondent brought this class action for injunctive and declaratory relief against the Illinois officials administering the federal-state programs of Aid to the Aged, Blind, and Disabled (AABD), which are funded equally by the State and Federal Governments, contending that they were violating federal law and denying equal protection of the laws by following state regulations that did not comply with the federal time limits within which participating States had to process and make grants with respect to AABD applications. The District Court by a permanent injunction required compliance with the federal time limits and also ordered the state officials to release and remit AABD benefits wrongfully withheld to all persons found eligible who had applied therefor between July 1, 1968, the date of the federal regulations, and April 16, 1971, the date of the court's preliminary injunction. The Court of Appeals affirmed, rejecting the state officials' contentions that the Eleventh Amendment barred the award of the retroactive benefits and that the judgment of inconsistency between federal regulations and state provisions could be given only prospective effect. Held: The Eleventh Amendment of the Constitution bars that portion of the District Court's decree that ordered retroactive payment of benefits. Pp. 658—678.
(a) A suit by private parties seeking to impose a liability payable from public funds in the state treasury is foreclosed by the Amendment if the State does not consent to suit. Pp. 662—663.
(b) The Court of Appeals erred in holding that Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, which awarded only prospective relief, did not preclude the retroactive monetary award here on the ground that it was an 'equitable restitution,' since that award, though on its face directed against the state official individually, as a practical matter could be satisfied only from the general revenues of the State and was indistinguishable from an award of damages against the State. Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389, followed. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600; State Dept. of Health and Rehabilitation Services v. Zarate, 407 U.S. 918, 92 S.Ct. 2462, 32 L.Ed.2d 803; Sterrett v. Mothers' & Children's Rights Organization, 409 U.S. 809, 93 S.Ct. 68, 34 L.Ed.2d 70; Wyman v. Bowens, 397 U.S. 49, 90 S.Ct. 813, 25 L.Ed.2d 38, disapproved to extent that their holdings do not comport with the holding in the instant case on the Eleventh Amendment issue. Pp. 663—771.
(c) The State of Illinois did not waive its Eleventh Amendment immunity and consent to the bringing of respondent's suit by participating in the federal AABD program. Parden v. Terminal R. Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233, and Petty v. Tennessee-Missouri Bridge Comm'n., 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804, distinguished. Nor does the mere fact that a State participates in a program partially funded by the Federal Government manifest consent by the State to be sued in federal courts. Pp. 671—674.
(d) The Court of Appeals properly considered the Eleventh Amendment defense, which the state officials did not assert in the District Court, since that defense partakes of the nature of a jurisdictional bar. Ford Motor Co. v. Department of Treasury, supra. Pp. 677—678.
472 F.2d 985, 7 Cir., reversed and remanded.
Robert J. O'Rourke, Chicago, Ill., for petitioner.
Sheldon Roodman, Chicago, Ill., for respondents.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Respondent John Jordan filed a complaint in the United States District Court for the Northern District of Illinois, individually and as a representative of a class, seeking declaratory and injunctive relief against two former directors of the Illinois Department of Public Aid, the director of the Cook County Department of Public Aid, and the comptroller of Cook County. Respondent alleged that these state officials were administering the federal-state programs of Aid to the Aged, Blind, or Disabled (AABD) in a manner inconsistent with various federal regulations and with the Fourteenth Amendment to the Constitution.1
2
AABD is one of the categorical aid programs administered by the Illinois Department of Public Aid pursuant to the Illinois Public Aid Code, Ill.Rev.Stat., c. 23, §§ 3—1 through 3—12 (1973). Under the Social Security Act, the program is funded by the State and the Federal Governments. 42 U.S.C. §§ 1381—1385.2 The Department of Health, Education, and Welfare (HEW), which administers these payments for the Federal Government, issued regulations prescribing maximum permissible time standards within which States participating in the program had to process AABD applications. Those regulations, originally issued in 1968, required, at the time of the institution of this suit, that eligibility determinations must be made by the States within 30 days of receipt of applications for aid to the aged and blind, and within 45 days of receipt of applications for aid to the disabled. For those persons found eligible, the assistance check was required to be received by them within the applicable time period. 45 CFR § 206.10(a)(3).3
3
During the period in which the federal regulations went into effect, Illinois public aid officials were administering the benefits pursuant to their own regulations as provided in the Categorical Assistance Manual of the Illinois Department of Public Aid.4 Respondent's complaint charged that the Illinois defendants, operating under those regulations, were improperly authorizing grants to commence only with the month in which an application was approved and not including prior eligibility months for which an applicant was entitled to aid under federal law. The complaint also alleged that the Illinois defendants were not processing the applications within the applicable time requirements of the federal regulations; specifically, respondent alleged that his own application for disability benefits was not acted on by the Illinois Department of Public Aid for almost four months. Such actions of the Illinois officials were alleged to violate federal law and deny the equal protection of the laws. Respondent's prayer requested declaratory and injunctive relief, and specifically requested 'a permanent injunction enjoining the defendants to award to the entire class of plaintiffs all AABD benefits wrongfully withheld.'
4
In its judgment of March 15, 1972, the District Court declared § 4004 of the Illinois Manual to be invalid insofar as it was inconsistent with the federal regulations found in 45 CFR § 206.10(a)(3), and granted a permanent injunction requiring compliance with the federal time limits for processing and paying AABD applicants. The District Court, in paragraph 5 of its judgment, also ordered the state officials to 'release and remit AABD benefits wrongfully withheld to all applicants for AABD in the State of Illinois who applied between July 1, 1968 (the date of the federal regulations) and April 16, 197(1) (the date of the preliminary injunction issued by the District Court) and were determined eligible . . ..'5
5
On appeal to the United States Court of Appeals for the Seventh Circuit, the Illinois officials contended, inter alia, that the Eleventh Amendment barred the award of retroactive benefits, that the judgment of inconsistency between the federal regulations and the provisions of the Illinois Categorical Assistance Manual could be given prospective effect only, and that the federal regulations in question were inconsistent with the Social Security Act itself. The Court of Appeals rejected these contentions and affirmed the judgment of the District Court. Jordan v. Weaver, 472 F.2d 985 (7 Cir. 1973).6 Because of an apparent conflict on the Eleventh Amendment issue with the decision of the Court of Appeals for the Second Circuit in Rothstein v. Wyman, 467 F.2d 226 (1972), cert. denied, 411 U.S. 921, 93 S.Ct. 1552, 36 L.Ed.2d 315 (1973), we granted the petition for certiorari filed by petitioner Joel Edelman, who is the present Director of the Illinois Department of Public Aid, and successor to the former directors sued below. 412 U.S. 937, 93 S.Ct. 2776, 37 L.Ed.2d 398 (1973).
6
The petition for cetiorari raised the same contentions urged by the petitioner in the Court of Appeals.7 Because we believe the Court of Appeals erred in its disposition of the Eleventh Amendment claim, we reverse that portion of the Court of Appeals decision which affirmed the District Court's order that retroactive benefits be paid by the Illinois state officials.8
7
The historical basis of the Eleventh Amendment has been oft stated, and it represents one of the more dramatic examples of this Court's effort to derive meaning from the document given to the Nation by the Framers nearly 200 years ago. A leading historian of the Court tells us:
8
'The right of the Federal Judiciary to summon a State as defendant and to adjudicate its rights and liabilities had been the subject of deep apprehension and of active debate at the time of the adoption of the Constitution; but the existence of any such right had been disclaimed by many of the most eminent advocates of the new Federal Government, and it was largely owing to their successful dissipation of the fear of the existence of such Federal power that the Constitution was finally adopted.' 1 C. Warren, The Supreme Court in United States History 91 (rev.ed.1973).
9
Despite such disclaimers,9 the very first suit entered in this Court at its February Term in 1791 was brought against the State of Maryland by a firm of Dutch bankers as creditors. Vanstophorst v. Maryland, see 2 Dall. 401 and Warren, supra, at 91 n. 1. The subsequent year brought the institution of additional suits against other States, and caused considerable alarm and consternation in the country.
10
The issue was squarely presented to the Court in a suit brought at the August 1792 Term by two citizens of South Carolina, executors of a British creditor, against the State of Georgia. After a year's postponement for preparation on the part of the State of Georgia, the Court, after argument, rendered in February 1793, its short-lived decision in Chisholm v. Georgia, 2 Dall. 419. The decision in that case, that a State was liable to suit by a citizen of another State or of a foreign country, literally shocked the Nation. Sentiment for passage of a constitutional amendment to override the decision rapidly gained momentum, and five years after Chisholm the Eleventh Amendment was officially announced by President John Adams. Unchanged since then, the Amendment provides:
11
'The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.'
12
While the Amendment by its terms does not bar suits against a State by its own citizens, this Court has consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890); Duhne v. New Jersey, 251 U.S. 311, 40 S.Ct. 154, 64 L.Ed. 280 (1920); Great Northern Life Insurance Co. v. Read, 322 U.S. 47, 64 S.Ct. 873, 88 L.Ed. 1121 (1944); Parden v. Terminal R. Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964); Employees v. Department of Public Health and Welfare, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973). It is also well established that even though a State is not named a party to the action, the suit may nonetheless be barred by the Eleventh Amendment. In Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 ,S.Ct. 347, 89 L.Ed. 389 (1945), the Court said:
13
'(W)hen the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants.' Id., at 464, 65 S.Ct., at 350.
14
Thus the rule has evolved that a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment. Great Northern Life Insurance Co. v. Read, supra; Kennecott Copper Corp. v. State Tax Comm'n, 327 U.S. 573, 66 S.Ct. 745, 90 L.Ed. 862 (1946).
15
The Court of Appeals in this case, while recognizing that the Hans line of cases permitted the State to raise the Eleventh Amendment as a defense to suit by its own citizens, nevertheless concluded that the Amendment did not bar the award of retroactive payments of the statutory benefits found to have been wrongfully withheld. The Court of Appeals held that the above-cited cases, when read in light of this Court's landmark decision in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), do not preclude the grant of such a monetary award in the nature of equitable restitution.
16
Petitioner concedes that Ex parte Young, supra, is no bar to that part of the District Court's judgment that prospectively enjoined petitioner's predecessors from failing to process applications within the time limits established by the federal regulations. Petitioner argues, however, that Ex parte Young does not extend so far as to permit a suit which seeks the award of an accrued monetary liability which must be met from the general revenues of a State, absent consent or waiver by the State of its Eleventh Amendment immunity, and that therefore the award of retroactive benefits by the District Court was improper.
17
Ex parte Young was a watershed case in which this Court held that the Eleventh Amendment did not bar an action in the federal courts seeking to enjoin the Attorney General of Minnesota from enforcing a statute claimed to violate the Fourteenth Amendment of the United States Constitution. This holding has permitted the Civil War Amendments to the Constitution to serve as a sword, rather than merely as a shield, for those whom they were designed to protect. But the relief awarded in Ex parte Young was prospective only; the Attorney General of Minnesota was enjoined to conform his future conduct of that office to the requirement of the Fourteenth Amendment. Such relief is analogous to that awarded by the District Court in the prospective portion of its order under review in this case.
18
But the retroactive position of the District Court's order here, which requires the payment of a very substantial amount of money which that court held should have been paid, but was not, stands on quite a different footing. These funds will obviously not be paid out of the pocket of petitioner Edelman. Addressing himself to a similar situation in Rothstein v. Wyman, 467 F.2d 226 (C.A.2 1972), cert. denied, 411 U.S. 921, 93 S.Ct. 1552, 36 L.Ed.2d 315 (1973), Judge McGowan10 observed for the court:
19
'It is not pretended that these payments are to come from the personal resources of these appellants. Appellees expressly contemplate that they will, rather, involve substantial expenditures from the public funds of the state. . . .
20
'It is one thing to tell the Commissioner of Social Services that he must comply with the federal standards for the future if the state is to have the benefit of federal funds in the programs he administers. It is quite another thing to order the Commissioner to use state funds to make reparation for the past. The latter would appear to us to fall afoul of the Eleventh Amendment if that basic constitutional provision is to be conceived of as having any present force.' 467 F.2d, at 236—237 (footnotes omitted).
21
We agree with Judge McGowan's observations. The funds to satisfy the award in this case must inevitably come from the general revenues of the State of Illinois, and thus the award resembles far more closely the monetary award against the State itself, Ford Motor Co. v. Department of Treasury, supra, than it does the prospective injunctive relief awarded in Ex parte Young.
22
The Court of Appeals, in upholding the award in this case, held that it was permissible because it was in the form of 'equitable restitution' instead of damages, and therefore capable of being tailored in such a way as to minimize disruptions of the state program of categorical assistance. But we must judge the award actually made in this case, and not one which might have been differently tailored in a different case, and we must judge it in the context of the important constitutional principle embodied in the Eleventh Amendment.11
23
We do not read Ex parte Young or subsequent holdings of this Court to indicate that any form of relief may be awarded against a state officer, no matter how closely it may in practice resemble a money judgment payable out of the state treasury, so long as the relief may be labeled 'equitable' in nature. The Court's opinion in Ex parte Young hewed to no such line. Its citation of Hagood v. Southern, 117 U.S. 52, 6 S.Ct. 608, 29 L.Ed. 805 (1886), and In re Ayers, 123 U.S. 443, 8 S.Ct. 164, 31 L.Ed. 216 (1887), which were both actions against state officers for specific performance of a contract to which the State was a party, demonstrate that equitable relief may be barred by the Eleventh Amendment.
24
As in most areas of the law, the difference between the type of relief barred by the Eleventh Amendment and that permitted under Ex parte Young will not in many instances be that between day and night. The injunction issued in Ex parte Young was not totally without effect on the State's revenues, since the state law which the Attorney General was enjoined from enforcing provided substantial monetary penalties against railroads which did not conform to its provisions. Later cases from this Court have authorized equitable relief which has probably had greater impact on state treasuries than did that awarded in Ex parte Young. In Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), Arizona and Pennsylvania welfare officials were prohibited from denying welfare benefits to otherwise qualified recipients who were aliens. In Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), New York City welfare officials were enjoined from following New York State procedures which authorized the termination of benefits paid to welfare recipients without prior hearing.12 But the fiscal consequences to state treasuries in these cases were the necessary result of compliance with decrees which by their terms were prospective in nature. State officials, in order to shape their official conduct to the mandate of the Court's decrees, would more likely have to spend money from the state treasury than if they had been left free to pursue their previous course of conduct. Such an ancillary effect on the state treasury is a permissible and often an inevitable consequence of the principle announced in Ex parte Young, supra.
25
But that portion of the District Court's decree which petitioner challenges on Eleventh Amendment grounds goes much further than any of the cases cited. It requires payment of state funds, not as a necessary consequence of compliance in the future with a substantive federal-question determination, but as a form of compensation to those whose applications were processed on the slower time schedule at a time when petitioner was under no court-imposed obligation to conform to a different standard. While the Court of Appeals described this retroactive award of monetary relief as a form of 'equitable restitution,' it is in practical effect indistinguishable in many aspects from an award of damages against the State. It will to a virtual certainty be paid from state funds, and not from the pockets of the individual state officials who were the defendants in the action. It is measured in terms of a monetary loss resulting from a past breach of a legal duty on the part of the defendant state officials.
26
Were we to uphold this portion of the District Court's decree, we would be obligated to overrule the Court's holding in Ford Motor Co. v. Department of Treasury, supra. There a taxpayer, who had, under protest, paid taxes to the State of Indiana, sought a refund of those taxes from the Indiana state officials who were charged with their collection. The taxpayer claimed that the tax had been imposed in violation of the United States Constitution. The term 'equitable restitution' would seem even more applicable to the relief sought in that case, since the taxpayer had at one time had the money, and paid it over to the State pursuant to an allegedly unconstitutional tax exaction. Yet this Court had no hesitation in holding that the taxpayer's action was a suit against the State, and barred by the Eleventh Amendment. We reach a similar conclusion with respect to the retroactive portion of the relief awarded by the District Court in this case.
27
The Court of Appeals expressed the view that its conclusion on the Eleventh Amendment issue was supported by this Court's holding in Department of Employment v. United States, 385 U.S. 355, 87 S.Ct. 464, 17 L.Ed.2d 414 (1966). There the United States was held entitled to sue the Colorado Department of Employment in the United States District Court for refund of unemployment compensation taxes paid under protest by the American National Red Cross, an instrumentality of the United States. The discussion of the State's Eleventh Amendment claim is confined to the following sentence in the opinion:
28
'With respect to appellants' contention that the State of Colorado has not consented to suit in a federal forum even where the plaintiff is the United States, see Principality Monaco v. Mississippi, 292 U.S. 313, 54 S.Ct. 745, 78 L.Ed. 1282 (1934), and Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).' Id., at 358, 87 S.Ct., at 467.
29
Monaco v. Mississippi, 292 U.S. 313, 54 S.Ct. 745, 78 L.Ed. 1282 (1934), reaffirmed the principle that the Eleventh Amendment was no bar to a suit by the United States against a State. Id., at 329, 54 S.Ct., at 750. In view of Mr. Chief Justice Hughes' vigorous reaffirmation in Monaco of the principles of the Eleventh Amendment and sovereign immunity, we think it unlikely that the Court in Department of Employment v. United States, in citing Ex parte Young as well as Monaco, intended to foreshadow a departure from the rule to which we adhere today.
30
Three fairly recent District Court judgments requiring state directors of public aid to make the type of retroactive payment involved here have been summarily affirmed by this Court notwithstanding Eleventh Amendment contentions made by state officers who were appealing from the District Court judgment.13 Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), is the only instance in which the Eleventh Amendment objection to such retroactive relief was actually presented to this Court in a case which was orally argued. The three-judge District Court in that case had ordered the retractive payment of welfare benefits found by that court to have been unlawfully withheld because of residence requirements held violative of equal protection. 270 F.Supp. 331, 338 n. 5 (D.C.Conn.1967). This Court, while affirming the judgment, did not in its opinion refer to or substantively treat the Eleventh Amendment argument. Nor, of course, did the summary dispositions of the three District Court cases contain any substantive discussion of this or any other issues raised by the parties.
31
This case, therefore, is the first opportunity the Court has taken to fully explore and treat the Eleventh Amendment aspects of such relief in a written opinion. Shapiro v. Thompson and these three summary affirmances obviously are of precedential value in support of the contention that the Eleventh Amendment does not bar the relief awarded by the District Court in this case. Equally obviously, they are not of the same precedential value as would be an opinion of this Court treating the question on the merits. Since we deal with a constitutional question, we are less constrained by the principle of stare decisis than we are in other areas of the law.14 Having now had an opportunity to more fully consider the Eleventh Amendment issue after briefing and argument, we disapprove the Eleventh Amendment holdings of those cases to the extent that they are inconsistent with our holding today.
32
The Court of Appeals held in the alternative that even if the Eleventh Amendment be deemed a bar to the retroactive relief awarded respondent in this case, the State of Illinois had waived its Eleventh Amendment immunity and consented to the bringing of such a suit by participating in the federal AABD program. The Court of Appeals relied upon our holdings in Parden v. Terminal R. Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964), and Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959), and on the dissenting opinion of Judge Bright in Employees v. Department of Public Health and Welfare, 452 F.2d 820, 827 (C.A.8 1971). While the holding in the latter case was ultimately affirmed by this Court in 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973), we do not think that the answer to the waiver question turns on the distinction between Parden, supra, and Employees, supra. Both Parden and Employees involved a congressional enactment which by its terms authorized suit by designated plaintiffs against a general class of defendants which literally included States or state instrumentalities. Similarly, Petty v. Tennessee-Missouri Bridge Comm'n, supra, involved congressional approval, pursuant to the Compact Clause, of a compact between Tennessee and Missouri, which provided that each compacting State would have the power 'to contract, to sue, and be sued in its own name.' The question of waiver or consent under the Eleventh Amendment was found in those cases to turn on whether Congress had intended to abrogate the immunity in question, and whether the State by its participation in the program authorized by Congress had in effect consented to the abrogation of that immunity.
33
But in this case the threshold fact of congressional authorization to sue a class of defendants which literally includes States is wholly absent. Thus respondent is not only precluded from relying on this Court's holding in Employees, but on this Court's holdings in Parden and Petty as well.15
34
The Court of Appeals held that as a matter of federal law Illinois had 'constructively consented' to this suit by participating in the federal AABD program and agreeing to administer federal and state funds in compliance with federal law. Constructive consent is not a doctrine commonly associated with the surrender of constitutional rights, and we see no place for it here. In deciding whether a State has waived its constitutional protection under the Eleventh Amendment, we will find waiver only where stated 'by the most express language or by such overwhelming implications from the text as (will) leave no room for any other reasonable construction.' Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 464, 53 L.Ed. 742 (1909). We see no reason to retreat from the Court's statement in Great Northern Life Insurance Co. v. Read, 322 U.S., at 54, 64 S.Ct. 873, 877, 88 L.Ed. 1121 (footnote omitted):
35
'(W)hen we are dealing with the sovereign exemption from judicial interference in the vital field of financial administration a clear declaration of the state's intention to submit its fiscal problems to other courts than those of its own creation must be found.'
36
The mere fact that a State participates in a program through which the Federal Government provides assistance for the operation by the State of a system of public aid is not sufficient to establish consent on the part of the State to be sued in the federal courts. And while this Court has, in cases such as J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964), authorized suits by one private party against another in order to effectuate a statutory purpose, it has never done so in the context of the Eleventh Amendment and a state defendant. Since Employees, supra, where Congress had expressly authorized suits against a general class of defendants and the only thing left to implication was whether the described class of defendants included States, was decided adversely to the putative plaintiffs on the waiver question, surely this respondent must also fail on that issue. The only language in the Social Security Act which purported to provide a federal sanction against a State which did not comply with federal requirements for the distribution of federal monies was found in former 42 U.S.C. § 1384 (now replaced by substantially similar provisions in 42 U.S.C. § 804), which provided for termination of future allocations of federal funds when a participating State failed to conform with federal law.16 This provision by its terms did not authorize suit against anyone, and standing alone, fell far short of a waiver by a participating State of its Eleventh Amendment immunity.
37
Our Brother MARSHALL argues in dissent, and the Court of Appeals held, that although the Social Security Act itself does not create a private cause of action, the cause of action created by 42 U.S.C. § 1983, coupled with the enactment of the AABD program, and the issuance by HEW or regulations which require the States to make corrective payments after successful 'fair hearings' and provide for federal matching funds to satisfy federal court orders of retroactive payments, indicate that Congress intended a cause of action for public aid recipients such as respondent.17 It is, of course, true that Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), held that suits in federal court under § 1983 are proper to secure compliance with the provisions of the Social Security Act on the part of participating States.18 But it has not heretofore been suggested that § 1983 was intended to create a waiver of a State's Eleventh Amendment immunity merely because an action could be brought under that section against state officers, rather than against the State itself. Though a § 1983 action may be instituted by public aid recipients such as respondent, a federal court's remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief, Ex parte Young, supra, and may not include a retroactive award which requires the payment of funds from the state treasury, Ford Motor Co. v. Department of Treasury, supra.
38
Respondent urges that since the various Illinois officials sued in the District Court failed to raise the Eleventh Amendment as a defense to the relief sought by respondent, petitioner is therefore barred19 from raising the Eleventh Amendment defense in the Court of Appeals or in this Court. The Court of Appeals apparently felt the defense was properly presented, and dealt with it on the merits. We approve of this resolution, since it has been well settled since the decision in Ford Motor Co. v. Department of Treasury, supra, that the Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court:
39
'(The Attorney General of Indiana) appealed in the federal District Court and the Circuit Court of Appeals and defended the suit on the merits. The objection to petitioner's suit as a violation of the Eleventh Amendment was first made and argued by Indiana in this Court. This was in time, however. The Eleventh Amendment declares a policy and sets forth an explicit limitation on federal judicial power of such compelling force that this Court will consider the issue arising under this Amendment in this case even though urged for the first time in this Court.' 323 U.S., at 466—467, 65 S.Ct., at 352.
40
For the foregoing reasons we decide that the Court of Appeals was wrong in holding that the Eleventh Amendment did not constitute a bar to that portion of the District Court decree which ordered retroactive payment of benefits found to have been wrongfully withheld. The judgment of the Court of Appeals is therefore reversed and the cause remanded for further proceedings consistent with this opinion.
41
So ordered.
42
Reversed and remanded.
43
Mr. Justice DOUGLAS, dissenting.
44
Congress provided in 42 U.S.C. § 1983 that:
45
'Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.'
46
In this class action respondent sought to enforce against state aid officials of Illinois provisions of the Social Security Act, 42 U.S.C. §§ 1381—1385, known as the Aid to the Aged, Blind, or Disabled (AABD program).1 The complaint alleges violations of the Equal Protection Clause of the Fourteenth Amendment and also violations of the Social Security Act. Hence § 1983 is satisfied in haec verba, for a deprivation of 'rights' which are 'secured by the Constitution and laws' is alleged. The Court of Appeals, though ruling that the alleged constitutional violations had not occurred, sustained federal jurisdiction because federal 'rights' were violated. The main issue tendered us is whether that ruling of the Court of Appeals is consistent with the Eleventh Amendment.2
47
Once the federal court had jurisdiction over the case, the fact that it ruled adversely to the claimant on the constitutional claim did not deprive it of its pendent jurisdiction over the statutory claim. United States v. Georgia Pub.Serv. Comm'n, 371 U.S. 285, 287—288, 83 S.Ct. 397, 399, 9 L.Ed.2d 317.
48
In Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, a suit by stockholders of a railroad was brought in a federal court against state officials to enjoin the imposition of confiscatory rates on the railroad in violation of the Fourteenth Amendment. The Eleventh Amendment was interposed as a defense. The Court rejected the defense, saying that state officials with authority to enforce state laws 'who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court of equity from such action.' Id., at 156, 28 S.Ct., at 452. The Court went on to say that a state official seeking to enforce in the name of a State an unconstitutional act 'comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequence of his individual conduct. The state has no power to impart to him any immunity from responsibility to the supreme authority of the United States.' Id., at 159—160, 28 S.Ct., at 454.
49
As the complaint in the instant case alleges violations by officials of Illinois of the Equal Protections Clause of the Fourteenth Amendment, it seems that the case is governed by Ex parte Young so far as injunctive relief is concerned. The main thrust of the argument is that the instant case asks for relief which if granted would affect the treasury of the State.
50
Most welfare decisions by federal courts have a financial impact on the States. Under the existing federal-state cooperative system, a state desiring to participate, submits a 'state plan' to HEW for approval; once HEW approves the plan the State is locked into the cooperative scheme until it withdraws,3 all as described in King v. Smith, 392 U.S. 309, 316, 88 S.Ct. 2128, 2132, 20 L.Ed.2d 1118 et seq. The welfare cases coming here have involved ultimately the financial responsibility of the State to beneficiaries claiming they were deprived of federal rights. King v. Smith required payment to children even though their mother was cohabitating with a man who could not pass muster as a 'parent.' Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442, held that under this state-federal cooperative program a State could not reduce its standard of need in conflict with the federal standard. It is true that Rosado did not involve retroactive payments as are involved here. But the distinction is not relevant or material because the result in every welfare case coming here is to increase or reduce the financial responsibility of the participating State. In no case when the responsibility of the State is increased to meet the lawful demand of the beneficiary, is there any levy on state founds. Whether the decree is prospective only or requires payments for the weeks or months wrongfully skipped over by the state officials, the nature of the impact on the state treasury is precisely the same.
51
We have granted relief in other welfare cases which included retroactive assistance benefits or payments. In State Dept. of Health and Rehabilitative Services v. Zarate, 407 U.S. 918, 92 S.Ct. 2462, 32 L.Ed.2d 803, the sole issue presented to us4 was whether the Eleventh Amendment barred a judgment against state officers for retroactive welfare assistance benefits or payments. That had been ordered by the lower court and we summarily affirmed, only Mr. Justice White voting to note probable jurisdiction. We also summarily affirmed the judgment in Sterrett v. Mothers' & Children's Rights Organization, 409 U.S. 809, 93 S.Ct. 68, 34 L.Ed.2d 70, where one of the two questions5 was whether retroactive payment of benefits violated the Eleventh Amendment. In Wyman v. Bowens, 397 U.S. 49, 90 S.Ct. 813, 25 L.Ed.2d 38, we affirmed a judgment where payments were awarded in spite of the argument that the order was an incursion on the Eleventh Amendment.6 In Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600, we affirmed a judgment which ordered payment of benefits wrongfully withheld;7 and while we did not specifically refer to the point, the lower court had expressly rejected the Eleventh Amendment argument.8
52
In Gaither v. Sterrett, 346 F.Supp. 1095, 1099, whose judgment we affirmed,9 409 U.S. 1070, 93 S.Ct. 688, 34 L.Ed.2d 660, the court said:
53
'(T)his court would note that if defendants' position regarding the jurisdictional bar of the Eleventh Amendment is correct, a great number of federal district court judgments are void, and the Supreme Court has affirmed many of these void judgments.'
54
The Court of Appeals for the Seventh Circuit is in line with that view; the opposed view of the Court of Appeals for the Second Circuit in Rothstein v. Wyman, 467 F.2d 226, is out of harmony with the established law.
55
What is asked by the instant case is minor compared to the relief granted in Griffin v. School Board, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256. In that case we authorized entry of an order putting an end to a segregated school system. We held, inter alia, that 'the District Court may, if necessary to prevent further racial discrimination, require the Supervisors to exercise the power that is theirs to levy taxes to raise funds adequate to reopen, operate, and maintain without racial discrimination a public school system in Prince Edward County like that operated in other counties in Virginia.' Id., at 233, 84 S.Ct., at 1234. We so held against vigorous contentions of the state officials that the Eleventh Amendment protected the State; and in reply we cited Lincoln County v. Luning, 133 U.S. 529, 10 S.Ct. 363, 33 L.Ed. 766, and Kennecott Copper Corp. v. State Tax Comm'n, 327 U.S. 573, 579, 66 S.Ct. 745, 748, 90 L.Ed. 862, to support the proposition that 'actions against a county can be maintained in United States courts in order to vindicate federally guaranteed rights.' 377 U.S., at 233, 84 S.Ct., at 1234.
56
Griffin is sought to be distinguished on the ground that a 'county' is not the 'state' for purposes of the Eleventh Amendment. But constitutionally the county in Griffin was exercising state policy as are the counties here, because otherwise the claim of denial of equal protection would be of no avail.
57
Counties are citizens of their State for purposes of diversity of citizenship. Bullard v. City of Cisco, 290 U.S. 179, 54 S.Ct. 177, 78 L.Ed. 254; Moor v. County of Alameda, 411 U.S. 693, 718—719, 93 S.Ct. 1785, 1800, 36 L.Ed.2d 596. And they are not States for purposes of 28 U.S.C. § 1251(a) which gives this Court original and exclusive jurisdiction of: '(1) All controversies between two or more states. . . .' Illinois v. City of Milwaukee, 406 U.S. 91, 98, 92 S.Ct. 1385, 1390, 31 L.Ed.2d 712. But, being citizens of their State, suits against them by another State are in our original but not exclusive jurisdiction under 28 U.S.C. § 1251(b)(3). Ibid. Yet, as agencies of the State whether in carrying out educational policies or other they are the State, as Griffin held, for purposes of the Fourteenth Amendment. And Griffin, like the present case, dealt only with liability to citizens for state policy and state action.
58
Yet petitioner asserts that money damages may not be awarded against state offenses, as such a judgment will expend itself on the state treasury. But we are unable to say that Illinois on entering the federal-state welfare program waived its immunity to suit for injunctions but did not waive its immunity for compensatory awards which remedy its willful defaults of obligations undertaken when it joined the cooperative venture.10
59
It is said however, that the Eleventh Amendment is concerned, not with immunity of States from suit, but with the jurisdiction of the federal courts to entertain the suit. The Eleventh Amendment does not speak of 'jurisdiction'; it withholds the 'judicial power' of federal courts 'to any suit in law or equity . . . against one of the United States . . ..' If that 'judicial power,' or 'jurisdiction' if one prefers that concept, may not be exercised even in 'any suit in . . . equity' then Ex parte Young should be overruled. But there is none eager to take the step. Where a State has consented to join a federal-state cooperative project, it is realistic to conclude that the State has agreed to assume its obligations under that legislation. There is nothing in the Eleventh Amendment to suggest a difference between suits at law and suits in equity, for it treats the two without distinction. If common sense has any role to play in constitutional adjudication, once there is a waiver of immunity it must be true that it is complete so far as effective operation of the state-federal joint welfare program is concerned.
60
We have not always been unanimous in concluding when a State has waived its immunity. In Parden v. Terminal R. Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233, where Alabama was sued by some of its citizens for injuries suffered in the interstate operation of an Alabama railroad, the State defended on the grounds of the Eleventh Amendment. The Court held that Alabama was liable as a carrier under the Federal Employers' Liability Act, saying:
61
'Our conclusion is simply that Alabama, when it began operation of an interstate railroad approximately 20 years after enactment of the FELA, necessarily consented to such suit as was authorized by that Act,' Id., at 192, 84 S.Ct., at 1213.
The Court added:
62
'Our conclusion that this suit may be maintained is in accord with the common sense of this Nation's federalism. A State's immunity from suit by an individual without its consent has been fully recognized by the Eleventh Amendment and by subsequent decisions of this Court. But when a State leaves the sphere that is exclusively its own and enters into activities subject to congressional regulation, it subjects itself to that regulation as fully as if it were a private person or corporation.' Id., at 196, 84 S.Ct., at 1215.
63
As the Court of Appeals in the instant case concluded, Illinois by entering into the joint federal-state welfare plan just as surely '(left) the sphere that is exclusively its own.' Ibid.
64
It is argued that participation in the program of federal financial assistance is not sufficient to establish consent on the part of the State to be sued in federal courts. But it is not merely participation which supports a finding of Eleventh Amendment waiver, but participation in light of the existing state of the law as exhibited in such decisions as Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600, which affirmed judgments ordering retroactive payment of benefits. Today's holding that the Eleventh Amendment forbids court-ordered retroactive payments, as the Court recognizes, necessitates an express overruling of several of our recent decisions. But it was against the background of those decisions that Illinois continued its participation in the federal program, and it can hardly be claimed that such participation was in ignorance of the possibility of court-ordered retroactive payments. The decision to participate against that background of precedent can only be viewed as a waiver of immunity from such judgments.
65
I would affirm the judgment of the Court of Appeals.
66
Mr. Justice BRENNAN, dissenting.
67
This suit is brought by Illinois citizens against Illinois officials. In that circumstance, Illinois may not invoke the Eleventh Amendment, since that Amendment bars only federal court suits against States by citizens of other States. Rather, the question is whether Illinois may avail itself of the nonconstitutional but ancient doctrine of sovereign immunity as a bar to respondent's claim for retroactive AABD payments. In my view Illinois may not assert sovereign immunity for the reason I expressed in dissent in Employees v. Department of Public Health and Welfare, 411 U.S. 279, 298, 93 S.Ct. 1614, 1625, 36 L.Ed.2d 251 (1973): the States surrendered that immunity in Hamilton's words, 'in the plan of the Convention,' that formed the Union, at least insofar as the States granted Congress specifically enumerated powers. See id., at 319 n. 7, 93 S.Ct., at 1635; Parden v. Terminal R. Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964). Congressional authority to enact the Social Security Act, of which AABD is a part, former 42 U.S.C. §§ 1381—1385 (now replaced by similar provisions in 42 U.S.C. §§ 801—804 (1970 ed., Supp. II)), is to be found in Art. I, § 8, cl. 1, one of the enumerated powers granted Congress by the States in the Constitution. I remain of the opinion that 'because of its surrender, no immunity exists that can be the subject of a congressional declaration or a voluntary waiver,' 411 U.S., at 300, 93 S.Ct., at 1626, and thus have no occasion to inquire whether or not Congress authorized an action for AABD retroactive benefits, or whether or not Illinois voluntarily waived the immunity by its continued participation in the program against the background of precedents which sustained judgments ordering retroactive payments.
68
I would affirm the judgment of the Court of Appeals.
69
Mr. Justice MARSHALL, with whom Mr. Justice BLACKMUN joins, dissenting.
70
The Social Security Act's categorical assistance programs, including the Aid to the Aged, Blind, or Disabled (AADB) program involved here, are fundamentally different from most federal legislation. Unlike the Fair Labor Standards Act involved in last Term's decision in Employees v. Department of Public Health and Welfare, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973), or the Federal Employers' Liability Act at issue in Parden v. Terminal R. Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964), the Social Security Act does not impose federal standards and liability upon all who engage in certain regulated activities, including often-unwilling state agencies. Instead, the Act seeks to induce state participation in the federal welfare programs by offering federal matching funds in exchange for the State's voluntary assumption of the Act's requirements. I find this basic distinction crucial: it leads me to conclude that by participation in the programs, the States waive whatever immunity they might otherwise have from federal court orders requiring retroactive payment of welfare benefits.1
71
In its contacts with the Social Security Act's assistance programs in recent years, the Court has frequently described the Act as a 'scheme of cooperative federalism.' See, e.g., King v. Smith, 392 U.S. 309, 316, 88 S.Ct. 2128, 2133, 20 L.Ed.2d 1118 (1968); Jefferson v. Hackney, 406 U.S. 535, 542, 92 S.Ct. 1724, 1729, 32 L.Ed.2d 285 (1972). While this phrase captures a number of the unique characteristics of these programs, for present purposes it serves to emphasize that the States' decision to participate in the programs is a voluntary one. In deciding to participate, however, the States necessarily give up their freedom to operate assistance programs for the needy as they see fit, and bind themselves to conform their programs to the requirements of the federal statute and regulations. As the Court explained in King v. Smith, supra, 392 U.S., at 316—317, 88 S.Ct., at 2133 (citations omitted):
72
'States are not required to participate in the program, but those which desire to take advantage of the substantial federal funds available for distribution to needy children (or needy aged, blind or disabled) are required to submit an AFDC (or AABD) plan for the approval of the Secretary of Health, Education, and Welfare (HEW). The plan must conform with several requirements of the Social Security Act and with rules and regulations promulgated by HEW.'
73
So here, Illinois elected to participate in the AABD program, and received and expended substantial federal funds in the years at issue. It thereby obligated itself to comply with federal law, including the requirement of former 42 U.S.C. § 1382(a)(8) that 'such aid or assistance shall be furnished with reasonable promptness to all eligible individuals.' In Townsend v. Swank, 404 U.S. 282, 286, 92 S.Ct. 502, 505, 30 L.Ed.2d 448 (1971), we held that participating States must strictly comply with the requirement that aid be furnished 'to all eligible individuals,' and that the States have no power to impose additional eligibility requirements which exclude persons eligible for assistance under federal standards. Today's decision, ante, at 659—660 n. 8, properly emphasizes that participating States must also comply strictly with the 'reasonable promptness' requirement and the more detailed regulations adding content to it.
74
In agreeing to comply with the requirements of the Social Security Act and HEW regulations, I believe that Illinois has also agreed to subject itself to suit in the federal courts to enforce these obligations. I recognize, of course, that the Social Security Act does not itself provide for a cause of action to enforce its obligations. As the Court points out, the only sanction expressly provided in the Act for a participating State's failure to comply with federal requirements is the cutoff of federal funding by the Secretary of HEW. Former 42 U.S.C. § 1384 (now 42 U.S.C. § 804 (1970 ed., Supp. II)).
75
But a cause of action is clearly provided by 42 U.S.C. § 1983, which in terms authorizes suits to redress deprivations of rights secured by the 'laws' of the United States. And we have already rejected the argument that Congress intended the funding cutoff to be the sole remedy for noncompliance with federal requirements. In Rosado v. Wyman, 397 U.S. 397, 420—423, 90 S.Ct. 1207, 1221—1223, 25 L.Ed.2d 442 (1970), we held that suits in federal court under § 1983 were proper to enforce the provisions of the Social Security Act against participating States. Mr. Justice Harlan, writing for the Court, examined the legislative history and found 'not the slightest indication' that Congress intended to prohibit suits in federal court to enforce compliance with federal standards. Id., at 422, 90 S.Ct., at 1223.
76
I believe that Congress also intended the full panoply of traditional judicial remedies to be available to the federal courts in these § 1983 suits. There is surely no indication of any congressional intent to restrict the courts' equitable jurisdiction. Yet the Court has held that '(u)nless a statute in so many words, or by a necessary and inescapable inference, restricts the court's jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied.' Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086, 1089, 90 L.Ed. 1332 (1946). 'When Congress entrusts to an equity court the enforcement of prohibitions contained in a regulatory enactment, it must be taken to have acted cognizant of the historic power of equity to provide complete relief in light of the statutory purposes.' Mitchell v. DeMario Jewelry, 361 U.S. 288, 291—292, 80 S.Ct. 332, 335, 4 L.Ed.2d 323 (1960).
77
In particular, I am firmly convinced that Congress intended the restitution of wrongfully withheld assistance payments to be a remedy available to the federal courts in these suits. Benefits under the categorical assistance programs 'are a matter of statutory entitlement for persons qualified to receive them.' Goldberg v. Kelly, 397 U.S. 254, 262, 90 S.Ct. 1011, 1017, 25 L.Ed.2d 287 (1970). Retroactive payment of benefits secures for recipients this entitlement which was withheld in violation of federal law. Equally important, the courts' power to order retroactive payments is an essential remedy to insure future state compliance with federal requirements. See Porter v. Warner Holding Co., supra, 328 U.S., at 400, 66 S.Ct., at 1090. No other remedy can effectively deter States from the strong temptation to cut welfare budgets by circumventing the stringent requirements of federal law. The funding cutoff is a drastic sanction, one which HEW has proved unwilling or unable to employ to compel strict compliance with the Act and regulations. See Rosado v. Wyman, supra, 397 U.S., at 426, 90 S.Ct., at 1225 (Douglas, J., concurring). Moreover, the cutoff operates only prospectively; it in no way deters the States from even a flagrant violation of the Act's requirements for as long as HEW does not discover the violation and threaten to take such action.
78
Absent any remedy which may act with retroactive effect, state welfare officials have everything to gain and nothing to lose by failing to comply with the congressional mandate that assistance be paid with reasonable promptness to all eligible individuals. This is not idle speculation without basis in practical experience. In this very case, for example, Illinois officials have knowingly violated since 1968 federal regulations on the strength of an argument as to its invalidity which even the majority deems unworthy of discussion. Ante, at 659—660 n. 8. Without a retroactive-payment remedy, we are indeed faced with 'the spectre of a state, perhaps calculatingly, defying federal law and thereby depriving welfare recipients of the financial assistance Congress thought it was giving them.' Jordan v. Weaver, 472 F.2d 985, 995 (CA7 1972). Like the Court of Appeals, I cannot believe that Congress could possibly have intended any such result.
79
Such indicia of congressional intent as can be gleaned from the statute confirm that Congress intended to authorize retroactive payment of assistance benefits unlawfully withheld. Availability of such payments is implicit in the 'fair hearing' requirement, former 42 U.S.C. § 1382(a)(4), which permitted welfare recipients to challenge the denial of assistance. The regulations which require States to make corrective payments retroactively in the event of a successful fair hearing challenge, 45 CFR § 205.10(a)(18), merely confirm the obvious statutory intent. HEW regulations also authorize federal matching funds for retroactive assistance payments made pursuant to court order, 45 CFR §§ 205.10(b)(2), (b)(3). We should not lightly disregard this explicit recognition by the agency charged with administration of the statute that such a remedy was authorized by Congress. See Griggs v. Duke Power Co., 401 U.S. 424, 433—434, 91 S.Ct. 849, 854 855, 28 L.Ed.2d 158 (1971).
80
Illinois chose to participate in the AABD program with its eyes wide open. Drawn by the lure of federal funds, it voluntarily obligated itself to comply with the Social Security Act and HEW regulations, with full knowledge that Congress had authorized assistance recipients to go into federal court to enforce these obligations and to recover benefits wrongfully denied. Any doubts on this score must surely have been removed by our decisions in Rosado v. Wyman, supra, and Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), where we affirmed a district court retroactive payment order. I cannot avoid the conclusion that, by virtue of its knowing and voluntary decision to nevertheless participate in the program, the State necessarily consented to subject itself to these suits. I have no quarrel with the Court's view that waiver of constitutional rights should not lightly be inferred. But I simply cannot believe that the State could have entered into this essentially contractual agreement with the Federal Government without recognizing that it was subjecting itself to the full scope of the § 1983 remedy provided by Congress to enforce the terms of the agreement.
81
Of course, § 1983 suits are nominally brought against state officers, rather than the State itself, and do not ordinarily raise Eleventh Amendment problems in view of this Court's decision in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). But to the extent that the relief authorized by Congress in an action under § 1983 may be open to Eleventh Amendment objections,2 these objections are waived when the State agrees to comply with federal requirements enforceable in such an action. I do not find persuasive the Court's reliance in this case on the fact that 'congressional authorization to sue a class of defendants which literally includes States' is absent. Ante, at 672. While true, this fact is irrelevant here, for this is simply not a case 'literally' against the State. While the Court successfully knocks down the strawman it has thus set up, it never comes to grips with the undeniable fact that Congress has 'literally' authorized this suit within the terms of § 1983. Since there is every reason to believe that Congress intended the full panoply of judicial remedies to be available in § 1983 equitable actions to enforce the Social Security Act, I think the conclusion is inescapable that Congress authorized and the State consented to § 1983 actions in which the relief might otherwise be questioned on Eleventh Amendment grounds.
82
My conclusion that the State has waived its Eleventh Amendment objections to court-ordered retroactive assistance payments is fully consistent with last Term's decision in Employees v. Department of Public Health and Welfare, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973). As I emphasized in my concurring opinion, there was no voluntary action by the State in Employees which could reasonably be construed as evidencing its consent to suit in a federal forum.
83
'(T)he State was fully engaged in the operation of the affected hospitals and schools at the time of the 1966 amendments. To suggest that the State had the choice of either ceasing operation of these vital public services or 'consenting' to federal suit suffices, I believe, to demonstrate that the State had no true choice at all and thereby that the State did not voluntarily consent to the exercise of federal jurisdiction . . ..' Id., at 296, 93 S.Ct., at 1624.
84
A finding of waiver here is also consistent with the reasoning of the majority in Employees, which relied on a distinction between 'governmental' and 'proprietary' functions of state government. Id., at 284—285, 93 S.Ct., at 1617—1618. This distinction apparently recognizes that if sovereign immunity is to be at all meaningful, the Court must be reluctant to hold a State to have waived its immunity simply by acting in its sovereign capacity—i.e., by merely performing its 'governmental' functions. On the other hand, in launching a profitmaking enterprise, 'a State leaves the sphere that is exclusively its own,' Parden v. Terminal R. Co., 377 U.S., at 196, 84 S.Ct., at 1215, and a voluntary waiver of sovereign immunity can more easily be found. While conducting an assistance program for the needy is surely a 'governmental' function, the State here has done far more than operate its own program in its sovereign capacity. It has voluntarily subordinated its sovereignty in this matter to that of the Federal Government, and agreed to comply with the conditions imposed by Congress upon the expenditure of federal funds. In entering this federal-state cooperative program, the State again 'leaves the sphere that is exclusively its own,' and similarly may more readily be found to have voluntarily waived its immunity.
85
Indeed, this is the lesson to be drawn from this Court's decision in Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959), where the Court found that the States had waived the sovereign immunity of the Commission by joining in an interstate compact subject to the approval of Congress. The Court in Petty emphasized that it was 'called on to interpret not unilateral state action but the terms of a consensual agreement' between the States and Congress, id., at 279, 79 S.Ct., at 788, and held that the States who join such a consensual agreement, 'by accepting it and acting under it assume the conditions that Congress under the Constitution attached.' Id., at 281—282, 79 S.Ct., at 790. Although the congressional intent regarding the sue-and-be-sued clause was by no means certain, the Court held that the surrounding conditions made it clear that the States accepting it waived their sovereign immunity. Id., at 280, 79 S.Ct., at 789, especially since this interpretation was necessary to keep the compact 'a living interstate agreement which performs high functions in our federalism.' Id., at 279, 79 S.Ct., at 788.
86
I find the approach in Petty controlling here. As even the dissent in that case recognized, id., at 285, 79 S.Ct., at 792 (Frankfurter, J., dissenting), Congress undoubtedly has the power to insist upon a waiver of sovereign immunity as a condition of its consent to such a federal-state agreement. Since I am satisfied that Congress has in fact done so here, at least to the extent that the federal courts may do 'complete rather than truncated justice,' Porter v. Warner Holding Co., 328 U.S., at 398, 66 S.Ct., at 1089, in § 1983 actions authorized by Congress against state welfare authorities, I respectfully dissent.
1
In his complaint in the District Court, respondent claimed that the Illinois Department of Public Aid was not complying with federal regulations in its processing of public aid applications, and also that its refusal to process and allow respondent's claim for a period of four months, while processing and allowing the claims of those similarly situated, violated the Equal Protection Clause of the Fourteenth Amendment. Respondent asserted that the District Court could exercise jurisdiction over the cause by virtue of 28 U.S.C. §§ 1331 and 1343(3) and (4). Though not briefed by the parties before this Court, we think that under our decision in Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974), the equal protection claim cannot be said to be 'wholly insubstantial,' and that therefore the District Court was correct in exercising pendent jurisdiction over the statutory claim.
2
Effective January 1, 1974, this AABD program was replaced by a similar program. See 42 U.S.C. §§ 801—805 (1970 ed., Supp. II).
3
Title 45 CFR § 206.10(a)(3) (1973) provides in pertinent part:
'(a) State plan requirements. A State plan . . . shall provide that:
'(3) A decision shall be made promptly on applications, pursuant to reasonable State-established time standards not in excess of:
'(i) 45 days (for aid to aged and blind) . . .; and
'(ii) 60 days . . . (for aid to disabled). Under this requirement, the applicant is informed of the agency's time standard in acting on applications, which covers the time from date of application under the State plan to the date that the assistance check, or notification of denial of assistance or change of award, or the eligibility decision with respect to medical assistance, is mailed to the applicant or recipient. . . .' When originally issued in 1968 the regulations provided that the applications for aid to the aged and blind be processed within 30 days and that aid to the disabled be processed within 45 days of receipt. They also provided that the person determined to be eligible must receive his assistance check within the applicable time period. The amendment to 60 days for aid to the disabled occurred in 1971, as did the change to require mailing instead of receipt of the assistance check within the applicable time period; effective Oct. 15, 1973, the time for processing aged and blind applications became 45 days.
In addition, at the time of institution of the suit, 45 CFR § 206.10(a)(6) (1972) provided in pertinent part:
'(6) Entitlement will begin as specified in the State plan, which (i) for financial assistance must be no later than the date of authorization of payment . . ..'
4
The Illinois regulations, found in the Illinois Categorical Assistance Manual of the Illinois Department of Public Aid, provide in pertinent part:
'4004.1
'Except for (disability) cases which have a time standard of 45 days, the time standard for disposition of applications is 30 days from the date of application to the date the applicants are determined eligible and the effective date of their first assistance or are determined ineligible and receive a notice of denial of assistance. . . .
'8255. Initial Awards
'Initial awards may be new grants, reinstatements, or certain types of resumptions. They can be effective for the month in which Form FO—550 is signed but for no prior period except (under conditions not relevant to this case).
'8255. 1 New Grants
'A new grant is the first grant authorized after an application has been accepted in a case which has not previously received assistance under the same assistance program. It may be authorized for the month in which Form FO—550 is signed but not for any prior period unless it meets (exceptions not relevant to this case).'
5
Paragraph 5 of the District Court's judgment provided:
'That the defendant EDWARD T. WEAVER, Director, Illinois Department of Public Aid, his agents, including all of the County Departments of Public Aid in the State of Illinois, and employees, and all persons in active concert and participation with them, are hereby enjoined to release and remit AABD benefits wrongfully withheld to all applicants for AABD in the State of Illinois who applied between July 1, 1968 and April 16, 1972 (sic) (should read '1971'), and were determined eligible, as follows:
'(a) For those aged and blind applicants whose first full AABD check was not mailed within thirty days from the date of application, AABD assistance for the period beginning with the thirtieth day from the date of application to the date the applicant's entitlement to AABD became effective;
'(b)(i) For those disabled applicants who applied between July 1, 1968 and December 31, 1970, whose first full AABD check was not
mailed within forty-five days from the date of application, AABD assistance for the period beginning with the forty-fifth day from the date of application to the date the applicant's entitlement became effective;
'(ii) For those disabled applicants who applied between January 1, 1971 and April 16, 1971, whose first full AABD check was not mailed within sixty days from the date of application, AABD assistance for the period beginning with the sixtieth day from the date of application to the date the applicant's entitlement became effective.
'These AABD benefits shall be mailed to those persons currently receiving AABD within eight months with an explanatory letter, said letter having been first approved by plaintiffs' attorney. Any AABD benefits received pursuant to this paragraph shall not be deemed income or resources under Article III of the Illinois Public Aid Code.
'For those persons not presently receiving AABD:
'(a) A certified letter (return receipt requested), said letter having been first approved by plaintiffs' attorney, shall be sent to the last known address of the person, informing him in concise and easily understandable terms that he is entitled to a specified amount of AABD benefits wrongfully withheld, and that he may claim such amount by contacting the County Department of Public Aid at a specified address, within 45 days from the receipt of said letter.
'(b) If the County Department of Public Aid does not receive a claim for the AABD benefits within 45 days from the date of actual notice to the person, the right to said AABD benefits shall be forfeited and the file shall be closed. Persons who do not receive actual notice do not forfeit their rights to AABD benefits wrongfully withheld under this provision.'
Paragraph 6 of the District Court's judgment provided:
'Within 15 days from the date of this decree, defendant EDWARD T. WEAVER, Director, Illinois Department of Public Aid, shall submit to the court and the plaintiffs' attorney a detailed statement as to the method for effectuating the relief required by paragraph 5, supra, of this Decree. Any disputes between the parties as to whether the procedures and steps outlined by the
defendant WEAVER will fulfill the requirements of this Decree will be resolved by the Court.'
On July 19, 1973, the author of this opinion stayed until further order of this Court these two paragraphs of the District Court's judgment. 414 U.S. 1301, 94 S.Ct. 13, 38 L.Ed.2d 15.
6
Respondent appealed from the District Court's judgment insofar as it held him not entitled to receive benefits from the date of his applications (as opposed to the date of authorization of benefits as provided by the federal regulations) and insofar as it failed to award punitive damages. The Court of Appeals upheld the District Court's decision against respondent on those points and they are not at issue here. 472 F.2d 985, 997—999.
7
Citing Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), petitioner also contends in this Court that the Court of Appeals erred in refusing to give the District Court's judgment prospective effect only. Brief for Petitioner 37, incorporating arguments made in Pet. for Cert. 18—22. The Court of Appeals concluded that this ground was 'not presented to the district judge before the entry of judgment, so that it comes too late.' 472 F.2d, at 995. The Court of Appeals went on, however, to conclude that '(e)ven if the
ground had been timely presented, defendants' contention would be meritless.' Ibid. Noting that one of three tests established by our decision in Huson for determining the retroactivity of court decisions was that 'the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied . . . or (have decided) an issue of first impression whose resolution was not clearly foreshadowed . . .,' Chevron Oil Co. v. Huson, supra, 404 U.S., at 106, 92 S.Ct., at 355, the Court of Appeals found that the petitioner had not satisfied this test, since the 'federal time requirements for processing applications and paying eligible AABD applicants were made effective July 1, 1968, and defendants were well aware of these mandatory maximum permissible time standards.' 472 F.2d, at 996.
In light of our disposition of this case on the Eleventh Amendment issue we see no reason to address this contention.
8
Former Title 42 U.S.C. § 1382(a)(8) provided in pertinent part:
'(a) Contents.
'A State plan for aid to the aged, blind, or disabled, or for aid to the aged, blind, or disabled and medical assistance for the aged, must—
'(8) provide that all individuals wishing to make application for aid or assistance under the plan shall have opportunity to do so, and that such aid or assistance shall be furnished with reasonable promptness to all eligible individuals.'
HEW, pursuant to authority granted to it by 42 U.S.C. § 1302, has promulgated regulations, see n. 3, supra, which require that decisions be made promptly on applications within 45 days for the aged and blind and within 60 days for the disabled, and that initiation of payments to the eligible be made within the same periods. Petitioner renews in this Court the contention made in the Court of Appeals that these time limitations in the regulations are inconsistent with the statute and therefore an unlawful abuse of the rule-making authority. Brief for Petitioner 37, incorporating arguments made in Pet. for Cert. 22—28. Specifically, petitioner argues
that the 'establishment of arbitrary (forty-five) and sixty day maximums in the HEW regulations for determination of eligibility and initiation of payments without taking into consideration the efficient administration of the Act by the State agencies is in consistent with the 'reasonable promptness' requirement and must therefore be declared unlawful . . ..' Pet. for Cert. 23. The Court of Appeals rejected this contention, holding that 'these time requirements, binding on state welfare officials, are an appropriate interpretation of the Congressional mandate of 'reasonable promptness." 472 F.2d, at 996. We agree with the Court of Appeals.
9
While the debates of the Constitutional Convention themselves do not disclose a discussion of the question, the prevailing view at the time of the ratification of the Constitution was stated by various of the Framers in the writings and debates of the period. Examples of these views have been assembled by Mr. Chief Justice Hughes:
'. . . Madison, in the Virginia Convention, answering objections to the ratification of the Constitution, clearly stated his view as to the purpose and effect of the provision conferring jurisdiction over
controversies between States of the Union and foreign States. That purpose was suitably to provide for adjudication in such cases if consent should be given but not otherwise. Madison said: 'The next case provides for disputes between a foreign state and one of our states, should such a case ever arise; and between a citizen and a foreign citizen or subject. I do not conceive that any controversy can ever be decided, in these courts, between an American state and a foreign state, without the consent of the parties. If they consent, provision is here made.' 3 Elliot's Debates, 533.
'Marshall, in the same Convention, expressed a similar view. Replying to an objection as to the admissibility of a suit by a foreign state, Marshall said: 'He objects, in the next place, to its jurisdiction in controversies between a state and a foreign state. Suppose, says he, in such a suit, a foreign state is cast; will she be bound by the decision? If a foreign state brought a suit against the commonwealth of Virginia, would she not be barred from the claim if the federal judiciary thought it unjust? The previous consent of the parties is necessary; and, as the federal judiciary will decide, each party will acquiesce.' 3 Elliot's Debates, 557.
'Hamilton, in The Federalist, No. 81, made the following emphatic statement of the general principle of immunity: 'It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of State sovereignty were discussed in considering the article of taxation and need not be repeated here. A recurrence to the principles there established will satisfy us that there is no color to pretend that the State governments would by the adoption of that plan be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident it could not be done without waging war against the contracting State; and to ascribe to the federal courts by mere implication, and in destruction of a preexisting right of the State governments, a power which would involve such a consequence would be altogether forced and unwarrantable." Monaco v. Mississippi, 292 U.S. 313, 323—325, 54 S.Ct. 745, 748, 749, 78 L.Ed. 1282 (1934) (footnotes omitted).
10
Of the Court of Appeals for the District of Columbia Circuit, sitting by designation on the Court of Appeals for the Second Circuit.
11
It may be true, as stated by our Brother DOUGLAS in dissent, that '(m)ost welfare decisions by federal courts have a financial impact on the States.' Post, at 680—681. But we cannot agree that such a financial impact is the same where a federal court applies Ex parte Young to grant prospective declaratory and injunctive relief, as opposed to an order of retroactive payments as was made in the instant case. It is not necessarily true that '(w)hether the decree is prospective only or requires payments for the weeks or months wrongfully skipped over by the state officials, the nature of the impact on the state treasury is precisely the same.' Post, at 682. This argument neglects the fact that where the State has a definable allocation to be used in the payment of public aid benefits, and pursues a certain course of action such as the processing of applications within certain time periods as did Illinois here, the subsequent ordering by a federal court of retroactive payments to correct delays in such processing will invariably mean there is less money available for payments for the continuing obligations of the public aid system.
As stated by Judge McGowan in Rothstein v. Wyman, 467 F.2d 226, 235 (CA2 1972):
'The second federal policy which might arguably be furthered by retroactive payments is the fundamental goal of congressional welfare legislation—the satisfaction of the ascertained needs of impoverished persons. Federal standards are designed to ensure that those needs are equitably met; and there may perhaps be cases in which the prompt payment of funds wrongfully withheld will serve that end. As time goes by, however, retroactive payments become compensatory rather than remedial; the coincidence between previously ascertained and existing needs becomes less clear.'
12
The Court of Appeals considered the Court's decision in Griffin v. School Board, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964), to be of like import. But as may be seen from Griffin's citation of Lincoln County v. Luning, 133 U.S. 529, 10 S.Ct. 363, 33 L.Ed. 766 (1890), a county does not occupy the same position as a State for purposes of the Eleventh Amendment. See also Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). The fact that the county policies executed by the county officials in Griffin were subject to the commands of the Fourteenth Amendment, but the county was not able to invoke the protection of the Eleventh Amendment, is no more than a recognition of the long-established rule that while county action is generally state action for purposes of the Fourteenth Amendment, a county defendant is not necessarily a state defendant for purposes of the Eleventh Amendment.
13
Brief for Respondent 15—18. Decisions of this Court in which we summarily affirmed a decision of a lower federal court which ordered the payment of retroactive awards and in which the jurisdictional statement filed in this Court raised the Eleventh Amendment defense include: State Dept. of Health and Rehabilitative Services v. Zarate, 407 U.S. 918, 92 S.Ct. 2462, 32 L.Ed.2d 803 (1972), aff'g 347 F.Supp. 1004 (S.D.Fla.1971); Sterrett v. Mothers' and Children's Rights Organization, 409 U.S. 809, 93 S.Ct. 68, 34 L.Ed.2d 70 (1972), aff'g unreported order and judgment of District Court (ND Ind.1972) on remand from Carpenter v. Sterrett, 405 U.S. 971, 92 S.Ct. 1199, 31 L.Ed.2d 246 (1972); Gaddis v. Wyman, 304 F.Supp. 717 (S.D.N.Y.1969) (order at CCH Poverty Law Rep. 10,506 (1968—1971 Transfer Binder)), aff'd per curiam sub nom. Wyman v. Bowens, 397 U.S. 49, 90 S.Ct. 813, 25 L.Ed.2d 38 (1970).
14
In the words of Mr. Justice Brandeis: 'State decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. . . . This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. The Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function.' Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406—408, 52 S.Ct. 443, 447, 76 L.Ed. 815 (1932) (dissenting opinion) (footnotes omitted).
15
Respondent urges that the traditionally broad power of a federal court sitting as a court of equity to fashion appropriate remedies as are necessary to effect congressional purposes requires that the District Court's award of retroactive benefits be upheld. Respondent places principal reliance on our prior decisions in Porter v. Warner Holding Co., 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946), and Mitchell v. DeMario Jewelry, 361 U.S. 288, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960). Both cases dealt with the power of a federal court to grant equitable relief for violations of federal law; the decision in Mitchell indicated that a federal court could provided equitable relief 'complete . . . in light of the statutory purposes.' Id., at 292, 80 S.Ct., at 335. Since neither of these cases involved a suit against a State or a state official, it did not purport to decide the availability of equitable relief consistent with the Eleventh Amendment.
16
HEW sought passage of a bill in the 91st Congress, H.R. 16311, § 407(a), which would have given it authority to require retroactive payments to eligible persons denied such benefits. The bill failed to pass the House of Representatives. See H.R. 16311, The Family Assistance Act of 1970, Senate Committee on Finance, 91st Cong., 2d Sess., C169—170 (Comm. Print No. 5, 1970).
17
Title 45 CFR §§ 205.10(b)(2) and (3) provide: '(b) Federal financial participation. Federal financial participation is available for the following items:
'(2) Payments of assistance made to carry out hearing decisions, or to take corrective action after an appeal but prior to hearing, or to extend the benefit of a hearing decision or court order to others in the same situation as those directly affected by the decision or order. Such payments may be retroactive in accordance with applicable Federal policies on corrective payments.
'(3) Payments of assistance within the scope of Federally aided public assistance programs made in accordance with a court order.'
The Court of Appeals felt that § 1983, the enactment of the AABD program, and the issuance by HEW of the above regulation, indicated that Congress intended to include within the Social Security Act the remedy of 'effective judicial review' and 'the remedy of restoration of benefits withheld in violation of federal law.' 472 F.2d, at 994—995 and n. 15. But the adoption of regulations by HEW to permit the use of federal funds in the satisfaction of judicial awards is not determinative of the constitutional issues here presented.
18
Mr. Justice MARSHALL, and both the Court of Appeals and the respondent herein, refer to language in Rosado v. Wyman, 397 U.S., at 420, 90 S.Ct., at 1222, to the effect that Congress in legislating the Social Security Act has not 'closed the avenue of effective judicial review to those individuals most directly affected by the administration of its program.' The Court in Rosado was concerned with the compatibility of a provision of New York law which decreased benefits to some eligible public aid recipients and amendments to the federal act which required cost-of-living increases. The case did not purport to
decide the Eleventh Amendment issue we resolve today. In finding the New York law inconsistent with the federal law, Mr. Justice Harlan stated:
'New York is, of course, in no way prohibited from using only state funds according to whatever plan it chooses, providing it violates no provision of the Constitution. It follows, however, from our conclusion that New York's program is incompatible with § 402(a)(23), that petitioners are entitled to declaratory relief and an appropriate injunction by the District Court against the payment of federal monies according to the new schedules, should the State not develop a conforming plan within a reasonable period of time.
'We have considered an rejected the argument that a federal court is without power to review state welfare provisions or prohibit the use of federal funds by the States in view of the fact that Congress has lodged in the Department of HEW the power to cut off federal funds for noncompliance with statutory requirements. We are most reluctant to assume Congress has closed the avenue of effective judicial review to those individuals most directly affected by the administration of its program. . . . We adhere to King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968), which implicitly rejected the argument that the statutory provisions for HEW review of plans should be read to curtail judicial relief and held Alabama's 'substitute father' regulation to be inconsistent with the federal statute. While King did not advert specifically to the remedial problem, the unarticulated premise was that the State had alternative choices of assuming the additional cost of paying benefits to families with substitute fathers or not using federal funds to pay welfare benefits according to a plan that was inconsistent with federal requirements.' 397 U.S., at 420—421, 90 S.Ct., at 1222.
Respondent urges that this language is 'tantamount to a finding that Congress conditioned the participation of a state in the categorical assistance program on the forfeiture of immunity from suit in a federal forum . . . irrespective of the relief sought, (since) the intent of Congress remains constant.' Brief for Respondent 42—43. Petitioner contends that this language, coupled with the fact that the Court in Rosado remanded the case to the District
Court to 'afford New York an opportunity to revise its program . . . or, should New York choose (not to revise its program), issue its order restraining the further use of federal monies pursuant to the present statute,' 397 U.S., at 421—422, 90 S.Ct., at 1222, indicates that the Court felt that retroactive relief was not a permissible remedy. Brief for Petitioner 17—20. We do not regard Rosado as controlling either way since the Court was not faced with a district court judgment ordering retroactive payments or with a challenge based on the Eleventh Amendment.
19
Respondent urges that the State of Illinois has abolished its common-law sovereign immunity in its state courts, and appears to argue that suit in a federal court against the State may thus be maintained. Brief for Respondent 23. Petitioner contends that sovereign immunity has not been abolished in Illinois as to this type of case. Brief for Petitioner 31—36. Whether Illinois permits such a suit to be brought against the State in its own courts is not determinative of whether Illinois has relinquished its Eleventh Amendment immunity from suit in the federal courts. Chandler v. Dix, 194 U.S. 590, 591—592, 24 S.Ct. 766, 767, 48 L.Ed. 1129 (1904).
1
Effective January 1, 1974, this AABD program was replaced by a similar program. See 42 U.S.C. §§ 801—805 (1970 ed., Supp. II). The program in Illinois is administered by the Department of Public Aid. Ill.Rev.Stat., c. 23, §§ 3—1 to 3—12 (1973). The former program was funded in part by the State and in part by the Federal Government. 42 U.S.C. §§ 303, 304, 306, 1201—1204, 1206, 1351—1355, 1381—1385.
2
The Eleventh Amendment provides: 'The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.'
As the Court, speaking through Mr. Justice Brennan, said in Parden v. Terminal R. Co., 377 U.S. 184, 186, 84 S.Ct. 1207, 1209, 12 L.Ed.2d 233: 'Although the Eleventh Amendment is not in terms applicable here, since petitioners are citizens of Alabama, this Court has recognized that an unconsenting State is immune from federal-court suits brought by its own citizens as well as by citizens of another State. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842; Duhne v. New Jersey, 251 U.S. 311, 40 S.Ct. 154, 64 L.Ed. 280; Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 51, 64 S.Ct. 873, 875, 88 L.Ed. 1121; Fitts v. McGhee, 172 U.S. 516, 524, 19 S.Ct. 269, 272, 43 L.Ed. 535. See also Monaco v. Mississippi, 292 U.S. 313, 54 S.Ct. 745, 78 L.Ed. 1282.'
3
The Social Security Act states what a 'state plan' must provide. At the time this suit was brought, 42 U.S.C. § 1382(a) provided: 'A State plan for aid to the aged, blind, or disabled, or for aid to the aged, blind, or disabled and medical assistance for the aged, must . . ..
'(5) provide (A) such methods of administration . . . as are found by the Secretary to be necessary for the proper and efficient operation of the plan . . .;
'(8) provide that all individuals wishing to make application for aid or assistance under the plan shall have opportunity to do so, and that such aid or assistance shall be furnished with reasonable promptness to all eligible individuals;
'(13) include reasonable standards, consistent with the objectives of this subchapter, for determining eligibility for and the extent of aid or assistance under the plan.'
Nearly identical provisions are now found in 42 U.S.C. § 802(a) (1970 ed., Supp. II).
The Secretary of HEW issued mandatory federal time standard regulations. Handbook, Public Assistance Administration, pt. IV, §§ 2200(b)(3), 2300(b)(5); 45 CFR § 206.10(a)(3). Illinois adopted a 30-day standard for aged and blind applicants (Ill. Categ. Assistance Manual § 4004.1) as contrasted to HEW's 60-day period, § 2200, supra. It is that conflict which exposes the merits of the controversy.
4
The lower court's opinion is found in D.C., 347 F.Supp. 1004.
5
The jurisdictional statement had as its second question the following:
'Whether a federal court is precluded by the Eleventh Amendment to the United States Constitution from ordering a state agency to pay money from the state treasury and from further ordering the state agency to perform certain specified acts which would otherwise be in the discretion of the agency.'
6
The lower court's opinion is found in D.C., 304 F.Supp. 717. Retroactive payments were challenged in question 2 of the jurisdictional statement.
7
The lower court's opinion is found in D.C., 270 F.Supp. 331.
8
Id., at 338 n. 5. The award of money damages was alleged to be a violation of the Eleventh Amendment in Part V of the jurisdictional statement.
9
The jurisdictional statement in the Sterrett case explicitly urged that the decree below violated the Eleventh Amendment since it would expend itself on the public treasury—the second question in the jurisdictional statement.
10
We settled in Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442, the question whether the grant of authority under the Social Security Act to HEW to cut off federal funds for noncompliance with statutory requirements provides the exclusive procedure and remedy for violations of the Act. We said: 'We are most reluctant to assume Congress has closed the avenue of effective judicial review to those individuals most directly affected by the administration of its program.' Id., at 420, 90 S.Ct., at 1222.
1
In view of my conclusion on this issue, I find it unnecessary to consider whether the Court correctly treats this suit as one against the State, rather than as a suit against a state officer permissible under the rationale of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).
2
It should be noted that there has been no determination in this case that state action is unconstitutional under the Fourteenth Amendment. Thus, the Court necessarily does not decide whether the States' Eleventh Amendment sovereign immunity may have been limited by the later enactment of the Fourteenth Amendment to the extent that such a limitation is necessary to effectuate the purposes of that Amendment, an argument advanced by an amicus in this case. In view of my conclusion that any sovereign immunity which may exist has been waived, I also need not reach this issue.
| 12
|
415 U.S. 605
94 S.Ct. 1323
39 L.Ed.2d 630
MAYOR OF the CITY OF PHILADELPHIA, Petitioner,v.EDUCATIONAL EQUALITY LEAGUE et al.
No. 72—1264.
Argued Dec. 10, 1973.
Decided March 25, 1974.
Syllabus
The Mayor of Philadelphia is empowered by the city charter to appoint a Nominating Panel, which in turn submits to him nominees to fill vacancies on the School Board. The Panel consists of 13 members. The Mayor must appoint four members from the citizenry at large; each of the remaining nine must be the highest ranking officer of one of nine designated categories of citywide organizations. A new Panel is convened in every odd-numbered year. Respondents brought this action for declaratory and injunctive relief charging that Mayor Tate had violated the Equal Protection Clause of the Fourteenth Amendment by discriminating against Negroes in appointments to the 1971 Panel. Following hearings, the District Court found that respondents had failed to prove racial discrimination and dismissed their complaint. The Court of Appeals reversed, concluding that respondents had established an unrebutted prima facie case of unlawful exclusion of Negroes from consideration for service on the 1971 Panel. Although Tate was succeeded, while the case was sub judice, by Mayor Rizzo (as to whose Panel appointment practices the record is silent), the court directed the issuance of certain injunctive relief against Rizzo with regard to the 1973 Panel and future Panels. Held:
1. The Mayor's principal argument, that federal courts may not interfere with the discretionary appointment powers of an elected executive officer, is of greater importance than was accorded it by the Court of Appeals, but the argument need not be addressed here since the record is devoid of reliable proof of racial discrimination. Pp. 613—616.
2. The Court of Appeals' finding of racial discrimination rests on ambiguous testimony as to a statement in 1969 by then Mayor Tate with regard to the 1969 School Board, not the 1971 Panel; the unawareness of certain organizations on the part of a city official who did not have final authority over the challenged appointments; and percentage comparisons the District Court correctly rejected as meaningless in the context of this case. The Court of Appeals therefore erred in overturning the District Court's findings and conclusions. Pp. 616—621.
3. The Court of Appeals erred in ordering injunctive relief against Mayor Rizzo with regard to the 1973 Panel and future Panels since the record speaks solely to the appointment practices of Tate, his predecessor, who left office in 1972. Pp. 621—623.
4. The principal issue throughout this litigation has been whether Mayor Tate violated the Fourteenth Amendment. There is no basis for remanding the case to the District Court for resolution of peripheral state law issues under that court's pendent jurisdiction or, alternatively, for abstention so that the case may be tried anew in a state court. Pp. 623—629.
3 Cir., 472 F.2d 612, reversed.
John Mattioni, Philadelphia, Pa., for petitioner.
Edwin D. Wolf, Philadelphia, Pa., for respondents.
Mr. Justice POWELL delivered the opinion of the Court.
1
In 1965 the voters of Philadelphia approved a public education supplement to their city charter establishing the present structure of the Philadelphia Board of Education (the School Board or Board). The supplement, which appears as Art. XII of the city charter,1 vests in the Mayor a double appointment power with regard to the School Board. The Mayor appoints the nine members of the Board, but he is assisted in that task by another entity that he also appoints, the Educational Nominating Panel (the Nominating Panel or Panel). The function of the Panel is to seek out qualified candidates for service on the School Board by polling civic organizations and the citizenry at large, to interview those candidates, to deliberate on their qualifications, and to submit selected nominees to the Mayor. The Panel submits three nominees for every vacancy on the Board. In his discretion, the Mayor may request an additional three nominees per vacancy. The Mayor must then make appointments to the School Board from among the nominees submitted by the Panel.
2
The Nominating Panel consists of 13 members. Under the terms of the city charter, the Mayor appoints four members of the Panel from the citizenry at large. Each of the remaining members must be the highest ranking officer of one of nine categories of citywide organizations or institutions, such as a labor union council, a commerce organization, a public school parent-teacher association, a degree-granting institution of higher learning, and the like.2 Although the city charter describes with substantial specificity the nine categories of organizations or institutions whose leaders may serve on the Nominating Panel, the charter does not designate any particular organization or institution by name. Accordingly, it is possible for more than one such citywide entity to qualify under any given category.
3
The members of the Nominating Panel serve two-year terms. A new Panel is appointed and convened in every odd-numbered year, when, in the ordinary course, three vacancies occur on the School Board.3 Thus, since 1965 there have been five Panels. Mayor James J. H. Tate, whose term expired in 1972, appointed the 1965, 1967, 1969, and 1971 Panels. The present Mayor, Frank Rizzo, appointed the 1973 Panel.
4
Respondents include the Educational Equality League,4 the president of the League, another citizen of Philadelphia, and two students attending the city's public schools. Shortly after Mayor Tate's appointment of the 1971 Nominating Panel, respondents filed this suit as a class action in the United States District Court for the Eastern District of Pennsylvania, relying on 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3). The gravamen of their complaint, which named the Mayor of Philadelphia and the Nominating Panel as defendants, was that Mayor Tate had violated the Equal Protection Clause of the Fourteenth Amendment by discriminating against Negroes in his appointments to the 1971 Panel. Respondents sought an injunction barring the 1971 Panel from submitting nominees for the Board to the Mayor and a declaratory judgment that Mayor Tate had violated the Constitution. They also requested an order directing the Mayor to appoint a Nominating Panel 'fairly representative of the racial composition of the school community.'
5
Respondents did not challenge the racial composition of the School Board, which consisted of two Negroes and seven whites when respondents filed their complaint and which now consists of three Negroes and six whites.5 They did not allege that the 1971 Panel discriminated in its submission of School Board nominees to the Mayor.6 Such an attack would have been difficult to mount in any event. Of the nine nominees submitted to the Mayor by the 1971 Panel, four were Negroes and five were whites.7 Moreover, respondents did not dispute the validity of the qualifications set forth in the city charter with regard to the Nominating Panel. Finally, despite the prayer in their complaint for an order directing the appointment of a Panel 'fairly representative of the racial composition of the school community . . .,' respondents disclaimed any effort to impose a racial quota on the Mayor in his appointments to the Panel.8 Respondents sought solely to establish that the Mayor unconstitutionally excluded qualified Negroes from consideration for membership on the Nominating Panel and to remedy that alleged defect prospectively as well as retrospectively.9
6
Following two days of hearings, the District Court dismissed respondents' complaint. Educational Equality League v. Tate, 333 F.Supp. 1202 (ED Pa.1971). In its findings of fact, the court noted that approximately 34% of the population of Philadelphia and approximately 60% of the students attending the city's various schools were Negroes. Id., at 1202—1204. The court found the following racial composition of the Nominating Panels from 1965 to 1971: the 1965 Panel had 10 whites and three Negroes; the 1967 Panel had 11 whites and two Negroes; the 1969 Panel had 12 whites and one Negro; and the 1971 Panel had 11 whites and two Negroes.10 Id., at 1204. The court further found that 'several organizations reflecting the views and participation of the black community' could qualify as organizations whose highest ranking officers might serve on the Nominating Panel. Ibid. The court also found that Deputy Mayor Zecca, the person assigned by Mayor Tate to assist in selecting qualifying organizations and institutions, at the time of the hearing was unaware of the existence of many of these 'black organizations.' Ibid.
7
On the basis of its finding of fact, the District Court concluded that respondents had failed to prove that the 1971 Panel was appointed in violation of the Fourteenth Amendment. It held that differences between the percentage of Negroes in the city's population (34%) or in the student body of the public school system (60%) and the percentage of Negroes on the 1971 Nominating Panel (15%) had no significance. Id., at 1205—1207. In large part this was because the number of positions on the Panel was too small to provide a reliable sample; the addition or subtraction of a single Negro meant an 8% change in racial composition. Id., at 1206. The court also rejected as unreliable data submitted by respondents in an effort to show that Mayor Tate's appointments to various positions in the city government other than the Panel reflected a disproportionately low percentage of Negroes and a pattern of discrimination. Ibid. Moreover, the ocurt dismissed as inadmissible hearsay a 1969 newspaper account of an alleged statement by Mayor Tate that at that time he would appoint no more Negroes to the School Board. Ibid.
8
The Court of Appeals for the Third Circuit reversed. Educational Equality League v. Tate, 472 F.2d 612 (1973).11 Relying on statistical data about the Panel rejected by the District Court and going outside that court's findings of fact in other respects, the Court of Appeals concluded that respondents had established an unrebutted prima facie case of unlawful exclusion of Negroes from consideration for service on the 1971 Panel. Id., at 618. Moreover, although the Mayor's office had changed hands while the case was sub judice and although there was nothing in the record addressed to the appointment practices of the new Mayor with regard to the Nominating Panel, the Court of Appeals directed the issuance of extensive injunctive relief against the new Mayor. Id., at 619. In particular, the Court of Appeals ordered the District Court to undertake an ongoing supervision of the new Mayor's appointments to the 1973 Panel and future Panels. Ibid.12
9
We granted the Mayor's petition for certiorari. 411 U.S. 964, 93 S.Ct. 2149, 36 L.Ed.2d 684 (1973). We conclude that the Court of Appeals erred in overturning the District Court's findings and conclusions. We also hold that it erred in ordering prospective injunctive relief against the new Mayor in a case devoted exclusively to the personal appointment policies of his predecessor.
10
* The Mayor's principal contention is that judicial review of the discretionary appointments of an executive officer contravenes basic separation-of-powers principles. The Mayor cites cases concerning discretionary appointments in the Federal Executive Branch, such as Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), and Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926). He notes that Pennsylvania, like the Federal Government, has a tripartite governmental structure, and he argues that the principles shaping the appropriate scope of judicial review are the same at the state level as at the federal level.
11
Neither the District Court nor the Court of Appeals addressed this argument at length. The District Court expressed its 'reservations' about exerting control over 'an elected chief executive in the exercise of his discretionary appointive power . . .,' 333 F.Supp., at 1206, but that court based its dismissal of respondents' complaint on the absence of proof of discrimination. The Court of Appeals brushed aside the 'reservations' of the District Court, concluding that the Nominating Panel was not intended to operate as part of the Mayor's staff and thus that the appointments were not discretionary. 472 F.2d, at 617. And, although nine of the seats on the Panel are subject to restrictive qualifications embodied in the city charter, which are not challenged by respondents, the Court of Appeals proceeded as though this were a case where access to participation in a governmental or other entity or function is open to all citizens equally. Drawing by analogy from cases dealing with such incidents of citizenship as jury service and the right to nondiscrimination in employment, e.g., Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970), and Smith v. Yeager, 465 F.2d 272 (CA3), cert. denied, sub nom. New Jersey v. Smith, 409 U.S. 1076, 93 S.Ct. 685, 34 L.Ed.2d 665 (1972), the court declared that 'a prima facie case is established by a demonstration that blacks were under-represented (on the Panel) and that there was an opportunity for racial discrimination.' 472 F.2d, at 618.
12
We disagree with the Court of Appeals' conclusion that the appointments at issue are not discretionary. The court's view that the Panel is not a part of the staff of the mayor is not self-evident, as we understand the functions of the Panel. But in any event this is irrelevant to whether the Mayor's power to appoint the Panel is discretionary. Executive officers are often vested with discretionary appointment powers over officials who by no stretch of the imagination are members of the staff of the appointing officer. The appointment of judges is a familiar example. Likewise, the appointments to the Panel are discretionary by any reasonable measure. With regard to the four seats on the Panel devoted to the citizenry at large, the city charter holds the Mayor accountable only at the polls. And, although the charter narrows the Mayor's range of choice in filling the other nine seats, it remains true that the final selection of the membership of the Panel rests with the Mayor, subject always to the oversight of the voters.
13
It is also our view that the Court of Appeals did not assign appropriate weight to the constitutional considerations raised by the Mayor. To be sure, the Mayor's reliance on federal separation-of-powers precedents is in part misplaced, because this case, unlike those authorities, has nothing to do with the tripartite arrangement of the Federal Constitution.13 But, to the degree that the principles cited by the Mayor reflect concern that judicial oversight of discretionary appointments may interfere with the ability of an elected official to respond to the mandate of his constituency, they are in point. There are also delicate issues of federal-state relationships underlying this case. The federalism questions are made particularly complex by the interplay of the Equal Protection Clause of the Fourteenth Amendment, with its special regard for the status of the rights of minority groups and for the role of the Federal Government in protecting those rights. The difficulty of the issues at stake has been alluded to by the Court, without elaboration, as recently as in Carter v. Jury Comm'n of Greene County, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970). Carter concerned a state governor's alleged discriminatory exclusion of Negroes in his discretionary appointments to a county jury commission. The Court found on the record an absence of proof of discrimination, but it nevertheless recognized 'the problems that would be involved in a federal court's ordering the Governor of a State to exercise his discretion in a particular way . . ..' Id., at 338, 90 S.Ct. at 528.14
14
Were we to conclude that respondents had established racial discrimination in the selection process for the Panel, we would be compelled to address the 'problems' noted in Carter, supra, and raised by the Mayor. We need not go so far, however, because we find that this case founders on an absence of proof, even under the approach taken by the Court of Appeals.
II
15
The Court of Appeals bottomed its conclusion that the Fourteenth Amendment had been violated on three indicia, only one of which was based on a finding by the District Court. Whether taken singly or in combination, these factors provide no adequate basis for the court's conclusion that respondents had established a prima facie case of racial discrimination.
16
First, the Court of Appeals relied on an alleged statement by Mayor Tate in 1969 that in filling the vacancies then open on the School Board he would appoint no Negroes in addition to the two already on it. 472 F.2d, at 615—616. Respondents presented two items as evidence of this statement. During cross-examination of Deputy Mayor Zecca, counsel for respondents directed Mr. Zecca's attention to a 1969 newspaper article dealing with the alleged statement. Deputy Mayor Zecca denied the accuracy of the newspaper account;15 the District Court ruled that the newspaper account was inadmissible hearsay.16 The Court of Appeals made no mention of this newspaper account. Rather, although noting that the District Court had made no finding on the subject, the court focused on the testimony of one of respondents' witnesses that Mayor Tate had made the 1969 statement.17 The court apparently assumed the truth of the statement, for it declared that the testimony was made 'without contradiction or objection . . ..'18
17
In our view, the Court of Appeals' reliance on the alleged 1969 statement was misplaced. Assuming the admissibility and reliability of such double hearsay,19 we are unable to conclude that an ambiguous statement purportedly made in 1969 with regard to the racial composition of the then School Board proves anything with regard to the Mayor's motives two years later in appointing the 1971 Nominating Panel. The Court of Appeals noted that if the Mayor had in 1969 decided to exclude Negro nominees from appointment to the Board, 'an inference may be drawn that the Mayor in similar manner excluded blacks from consideration as members of the 1971 Panel.' 472 F.2d, at 616 n. 9. That inference is supposition. It cannot be viewed as probative of a future intent to discriminate on the basis of race with regard to a different governmental entity. Furthermore, it is refuted by the fact that the Mayor later appointed Negroes to the 1971 Panel and, for that matter, to the School Board itself.
18
Second, the Court of Appeals cited the District Court's finding that Deputy Mayor Zecca had been unaware of many 'black-oriented organizations' that could qualify under the categories of organizations and institutions set out in the city charter. Id., at 616. The court thought that, given Mr. Zecca's important position in the appointment process in 1971, his ignorance would 'support an inference that the selection process had a discriminatory effect.' Id., at n. 13. This is another speculative inference. Deputy Mayor Zecca did not make the appointments to the Panels. That task belonged to Mayor Tate. It is unlikely that an elected mayor would be ignorant of any viable citywide organization or institution, particularly if he had held office for a number of years. Thus Deputy Mayor Zecca's unfamiliarity with certain organizations may not be imputed automatically to the official holding the appointment power. Moreover, there has been no showing in this record that Mr. Zecca's unawareness of organizations or institutions was restricted to what the Court of Appeals referred to as 'black-oriented organizations.' Id., at 616. The Deputy Mayor may well have been equally uninformed of the existence of many other Philadelphia organizations and groups.
19
As a third indicator of the exclusion of Negroes, the Court of Appeals again went outside the District Court's findings. As noted earlier, the District Court rejected as unreliable, percentage comparisons of the racial composition of the Panel and of the population of Philadelphia. 333 F.Supp., at 1206, 1207. The Court of Appeals thought it unfortunate that 'the parties did not introduce the expert testimony of a statistician on whether the frequency of black appointments to the 13-member Panel fell outside the range to be expected were race not a factor . . .,' 472 F.2d, at 618, but nevertheless found the small proportion of Negroes on the Panel 'significant.' Ibid. This led the court to conclude that 'the small proportion of blacks on the Panel points toward the possibility of discrimination.' Ibid.
20
Statistical analyses have served and will continue to serve an important role as one indirect indicator of racial discrimination in access to service on governmental bodies, particularly where, as in the case of jury service, the duty to serve falls equally on all citizens. E.g., Carter v. Jury Comm'n of Greene County, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954); Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953). See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805, 93 S.Ct. 1817, 1825, 36 L.Ed.2d 668 (1973) (employment discrimination). But the simplistic percentage comparisons undertaken by the Court of Appeals lack real meaning in the context of this case. Respondents do not challenge the qualifications for service on the Panel set out in the charter, whereby nine of the 13 seats are restricted to the highest-ranking officers of designated categories of citywide organizations and institutions. Accordingly, this is not a case in which it can be assumed that all citizens are fungible for purposes of determining whether members of a particular class have been unlawfully excluded. At least with regard to nine seats on the Panel and assuming, arguendo, that percentage comparisons are meaningful in a case involving discretionary appointments, the relevant universe for comparison purposes consists of the highest ranking officers of the categories of organizations and institutions specified in the city charter, not the population at large. The Court of Appeals overlooked this distinction. Furthermore, the District Court's concern for the smallness of the sample presented by the 13-member Panel was also well founded. The Court of Appeals erred in failing to recognize the importance of this flaw in straight percentage comparisons.
21
In sum, the Court of Appeals' finding of racial discrimination rests on ambiguous testimony as to an alleged statement in 1969 by then Mayor Tate with regard to the 1969 School Board, not the 1971 Panel; the unawareness of certain organizations on the part of a city official who did not have final authority over or responsibility for the challenged appointments; and racial-composition percentage comparisons that we think were correctly rejected by the District Court as meaningless. In our view, this type of proof is too fragmentary and speculative to support a serious charge in a judicial proceeding.20
III
22
The Court of Appeals prefaced its discussion of appropriate relief by noting that it would be 'the district court's function to determine the precise nature of the relief to which (respondents) are entitled.' 472 F.2d, at 618. Nevertheless, the court held, in part, that the District Court 'should enjoin the present Mayor from discriminating in regard to the 1973 or future Panels and should require that before the 1973 Panel is selected, the Mayor or his staff submit to the court evidence that organizations in the black community . . . have received proper consideration.' Id., at 619. (Footnote omitted.)
23
Mayor Tate was succeeded by Mayor Rizzo on January 3, 1972. The Court of Appeals issued its opinion on January 11, 1973, Accordingly, the injunctive orders mandated by the court with regard to the 1973 and future Panels would have run against Mayor Rizzo, not Mayor Tate. As its sole reason for directing such relief against Mayor Rizzo, the Court of Appeals noted that Mr. Zecca continued as Deputy Mayor under the Rizzo administration. Id., at 619 n. 21. But petitioner alleges, and respondents do not deny, that under Mayor Rizzo's stewardship, Mr. Zecca no longer has any responsibility with regard to Panel appointments. Moreover, the entire case has been focused on the appointments made by Mayor Tate. Nothing in the record speaks to the appointment policies of Mayor Rizzo with regard to the Panel. Thus, the record does not support the premise that Mayor Rizzo's appointment record for the Panel will track that of his predecessor.
24
Where there have been prior pant of a state executive office but an patterns of discrimination by the occuintervening change in adminstration, the issuance of prospective coercive relief against the successor to the office must rest, at a minimum, on supplemental findings of fact indicating that the new officer will continue the practices of his predecessor. E.g., Spomer v. Littleton, 414 U.S. 514, 94 S.Ct. 685, 38 L.Ed.2d 694 (1974). The Court of Appeals did not have the benefit of such findings at the time it instructed the District Court to enter injunctive relief against Mayor Rizzo with regard to future Panels. The Court of Appeals therefore erred in its decision on remedies, as well as in concluding that respondents had established a violation of the Fourteenth Amendment.
IV
25
We turn, finally, to the dissent's argument that this case should be remanded to the District Court for resolution of state law issues under the court's pendent jurisdiction or, in the alternative, for abstention so that the case may be tried from scratch in state court. This approach ignores what the parties have briefed and argued before us, espouses on behalf of respondents state law claims of barely colorable relevance to the instant suit, and would produce a result inconsistent with a commonsense application of the pendent jurisdiction and abstention doctrines.
26
As the dissent concedes, post, at 642, its state law arguments were neither raised in the petition, argued in the briefs, nor articulated in oral argument before this Court. To address them would require us to disregard the admonition of Supreme Court Rule 23, Subd. 1(c) that '(o)nly the questions set forth in the petition of fairly comprised therein will be considered by the court.' See also, e.g., Mazer v. Stein, 347 U.S. 201 206 n. 5, 74 S.Ct. 460, 464, 465, 98 L.Ed. 630 (1954); National Licorice Co. v. NLRB, 309 U.S. 350, 357 n. 2, 60 S.Ct. 569, 574, 84 L.Ed. 799 (1940); General Talking Pictures Corp. v. Western Electric Co., 304 U.S. 175, 177—178, 58 S.Ct. 849, 850 851, 82 L.Ed. 1273 (1938). Moreover, the assertion that pendent jurisdiction is appropriate and that pendent state claims should be decided first presumes that the state claims have color and make it possible for the case to be 'decided without reference to questions arising under the Federal Constitution . . ..' Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 193, 29 S.Ct. 451, 455, 53 L.Ed. 753 (1909). That is not true here. In their complaint, respondents set out the following four points of state law and no others: that the 1971 Panel was convened on May 28, whereas the Charter required May 25; that the Mayor appointed the chairman of the Panel, although the Charter allegedly restricts that appointment responsibility to the Panel itself; that one of the Mayor's appointees was not the highest ranking officer of the organization he represented; and that the Mayor appointed certain city officials to the Panel, in alleged contravention of the Charter. A decision for respondents on all of these issues would not have approached resolving the case nor would it have provided a basis for granting the relief to which respondents laid claim. These state law claims were wholly tangential to the principal theme of respondents' lawsuit—an alleged violation of the Equal Protection Clause of the Fourteenth Amendment. It is hardly surprising that respondents have not pursued these claims at either stage of appellate review. In fact, respondents scarcely addressed them in the District Court.
27
At the opening of the evidentiary hearings, the District Court asked counsel for respondents to describe the basis of the suit. Counsel responded that 'the single issue in the case, as we have presented it, is whether there has been racial discrimination in violation of the Fourteenth Amendment in the composition of the Nominating Panel.' Tr., Aug. 25, 1971, p. 4. There could be no clearer statement that a litigant's case turns on federal, rather than state, law. And respondents presented their case, as they had drafted their complaint, essentially as an exposition of federal law. To ignore all of this and to compel the District Court now to decide nondispositive state law questions would require a unique reading of the pendent jurisdiction doctrine.
28
Despite the language of the complaint, respondents' counsel's characterization of the suit before the District Court, and the almost exclusively federal character of the record, the dissent attributes to respondents an independent state law argument that the charter requires 'a balanced racial composition on the Panel as a whole. . . .' (Emphasis added.) Post, at 683. In our view, this is a misreading of the record. Midway through the hearing, the District Court asked respondents whether they were asserting a claim under the language of the charter. Respondents' counsel replied in a manner that makes clear that he viewed the charter as merely supportive of the federal law claim and as a part only of a general 'picture' or 'image' of racial discrimination, not as an independent requirement of racial balance on the Panel as a whole.21
29
A reluctance by respondents to assert an independent claim that the charter requires racial balance on the whole Panel is not surprising if one focuses on the language of the charter itself. The only conceivably pertinent provision is § 12—206(c):
30
'In order to represent adequately the entire community, the four other members of the Educational Nominating Panel shall be appointed by the Mayor from the citizenry at large.' (Emphasis added.)
31
As should be immediately apparent, the emphasized phrase, on which the dissent relies and which it apparently views as a requirement of racial balance, speaks only to the four at-large seats. The phrase does not address the nine seats restricted to the head of designated categories of citywide organizations and thus plainly does not address the Panel 'as a whole.' Thus, assuming the language is capable of carrying the meaning that the dissent would import to it and overlooking the fact that respondents did not set it out as an independent ground in their complaint or elsewhere, the provision is simply incapable of resolving a lawsuit addressed at all 13 seats on the Panel. As the District Court noted, 'failing to appoint at-large members to adequately represent the entire community (is) not relevant in determining whether racial discrimination was involved with the appointments (to the Panel) . . ..' 333 F.Supp., at 1207.22
32
We also believe that the dissent's view of pendent jurisdiction as something akin to subject matter jurisdiction that may be raised sua sponte at any stage and that is capable of aborting prior federal court proceedings is a misreading of the law. 'It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff's right.' Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). See 6 C. Wright & A. Miller, Federal Practice and Procedure 813 (1971). To argue that the doctrine requires us to wipe out three levels of federal court litigation of a federal law issue on the off chance that a peripheral state law claim might have merit ignores the Court's recognition that the doctrine's 'justification lies in considerations of judicial economy, convenience and fairness to litigants . . ..' Gibbs, suppa, at 726, 86 S.Ct. at 1139.23
33
The dissent suggests in the alternative that the District Court be directed to abstain while the parties start this case all over again in state courts. This proposal comes nearly three years after the filing of the complaint and would produce delay attributable to abstention that the Court in recent years has sought to minimize. See, e.g., England v. Medical Examiners, 375 U.S. 411, 425—426, 84 S.Ct. 461, 470—471, 11 L.Ed.2d 440 (1964) (DOUGLAS, J., concurring). And abstention would be pointless since the state issues put forward by the dissent are plainly insufficient to merit such treatment. Moreover, the dissent's theme of the 'paramount concern of avoiding constitutional questions, where possible . . .' strikes a particularly jarring note in a civil rights case in which the plaintiffs asserted that 'the single issue . . . is whether there has been racial discrimination in violation of the Fourteenth Amendment . . ..' Although we have no occasion to decide the issue here, there is substantial authority for the proposition that abstention is not favored in an equal protection, civil rights case brought as was this one under 42 U.S.C. § 1983 and 28 U.S.C. § 1343.24
34
We are in general accord, of course, with the dissent's view of the importance of the constitutional decision-avoidance principles articulated by Mr. Justice Brandeis in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 345—348, 56 S.Ct. 466, 482—483, 80 L.Ed. 688 (1936). But those standards are susceptible of misuse.25 And we think that to commence relitigation of this case on an insubstantial state issue abandoned by the parties would be a serious abuse of the Ashwander standards. There simply is not 'present some other ground upon which the case may be disposed of.' Id., at 347, 56 S.Ct. at 483.
35
The judgment is reversed.
36
Judgment reversed.
APPENDIX TO OPINION OF THE COURT
Philadelphia Home Rule Charter
ARTICLE XII PUBLIC EDUCATION
CHAPTER 1 THE HOME RULE SCHOOL DISTRICT
37
Section 12—100. The Home Rule School District.
38
A separate and independent home rule school district is hereby established and created to be known as 'The School District of Philadelphia.'
39
Section 12—101. The New District to Take Over All Assets and Assume All Liabilities of the Predecessor School District.
The home rule school district shall
40
(a) succeed directly the now existing school district for all purposes, including, but not limited to, receipt of all grants, gifts, appropriations, subsidies or other payments;
41
(b) take over from the now existing school district all assets, property, real and personal, tangible and intangible, all easements and all evidences of ownership in part or in whole, and all records, and other evidences pertaining thereto; and
42
(c) assume all debt and other contractual obligations of the now existing school district, any long term debt to be issued, secured and retired in the manner now provided by law.
CHAPTER 2 THE BOARD OF EDUCATION
43
Section 12—200. The Board Created; Its Function.
44
There shall be a Board of Education of the School District of Philadelphia which shall be charged with the administration, management and operation of the home rule school district.
45
Section 12—201. Members of the Board; Method of Selection.
46
There shall be nine members of the Board of Education who shall be appointed by the Mayor from lists of names submitted to him by the Educational Nominating Panel . . ..
47
Section 12—202. Eligibility for Board Membership.
48
Members of the Board of Education shall be registered voters of the City. No person shall be eligible to be appointed . . . to more than two full six-year terms.
49
Section 12—203. Terms of Board Members.
50
The terms of members of the Board of Education shall begin on the first Monday in December and shall be six years except that (1) of the first members of the Board appointed . . ., three shall be appointed . . . for terms of two years, three for terms of four years, and three for terms of six years . . ..
51
Section 12—204. Removal of Members of the Board.
52
Members of the Board of Education may be removed as provided by law.
53
Section 12—205. Vacancies on the Board.
54
A vacancy in the office of member of the Board of Education shall be filled for the balance of the unexpired term in the same manner in which the member was selected who died or resigned. If a member of the Board is removed from office, the resulting vacancy shall be filled as provided by law.
55
Section 12—206. Educational Nominating Panel; Method of Selection.
56
(a) The Mayor shall appoint an Educational Nominating Panel consisting of thirteen (13) members. Members of the Panel shall be registered voters of the City and shall serve for terms of two years from the dates of their appointment.
57
(b) Nine members of the Educational Nominating Panel shall be the highest ranking officers of City-wide organizations or institutions which are, respectively:
58
(1) a labor union council or other organization of unions of workers and employes organized and operated for the benefit of such workers and employes,
59
(2) a council, chamber, or other organization established for the purpose of general improvement and benefit of commerce and industry,
60
(3) a public school parent-teachers association,
61
(4) a community organization of citizens established for the purpose of improvement of public education, (5) a federation, council, or other organization of non-partisan neighborhood or community associations,
62
(6) a league, association, or other organization established for the purpose of improvement of human and inter-group relations,
63
(7) a non-partisan commitee, league, council, or other organization established for the purpose of improvement of governmental, political, social, or economic conditions,
64
(8) a degree-granting institution of higher education whose principal educational facilities are located within Philadelphia, and
65
(9) a council, association, or other organization dedicated to community planning of health and welfare services or of the physical resources and environment of the City.
66
(c) In order to represent adequately the entire community, the four other members of the Educational Nominating Panel shall be appointed by the Mayor from the citizenry at large.
67
(d) In the event no organization as described in one of the clauses (1) through (9) of subsection (b) exists within the City, or in the event there is no such organization any one of whose officers is a registered voter of the City, the Mayor shall appoint the highest ranking officer who is a registered voter of the City from another organization or institution which qualifies under another clause of the subsection.
68
(e) A vacancy in the office of member of the Educational Nominating Panel shall be filled for the balance of the unexpired term in the same manner in which the member was selected who died, resigned, or was removed.
69
(f) The Educational Nominating Panel shall elect its own officers and adopt rules of procedure.
70
Section 12—207. The Educational Nominating Panel; Duties and procedure.
71
(a) The Mayor shall appoint and convene the Educational Nominating Panel (1) not later than May twenty-fifth of every odd-numbered year, and (2) whenever a vacancy occurs in the membership of the Board of Education.
72
(b) The Panel shall within forty (40) days submit to the Mayor three names of qualified persons for every place on the Board of Education which is to be filled. If the Mayor wishes an additional list of names, he shall so notify the Panel within twenty (20) days. Thereupon the Panel shall within thirty (30) days send to the Mayor an additional list of three qualified persons for each place to be filled. The Mayor shall within twenty (20) days make an appointment . . ..
73
(d) The Educational Nominating Panel shall invite business, civic, professional, labor, and other organizations, as well as individuals, situated or resident within the City to submit for consideration by the Panel the names of persons qualified to serve as members of the Board of Education.
74
(e) Nothing herein provided shall preclude the Panel from recommending and the Mayor from appointing or nominating persons who have previously served on any board of public education other than the Board of Education created by these charter provisions.
75
Mr. Justice WHITE, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, and with whom Mr. Justice DOUGLAS joins in Part II, dissenting.
76
* Although the majority describes the 'gravamen' of the respondents' complaint as grounded on the Equal Protection Clause of the Fourteenth Amendment, respondents equally contended that the racially discriminatory appointment of members to the Educational Nominating Panel violated 'the express provisions and intended purpose of the Educational Supplement' to the Philadelphia Home Rule Charter.1 The action sought injunctive and declaratory relief under 42 U.S.C. § 1983, and jurisdiction was invoked under 28 U.S.C. § 1343(3).
77
The District Court, after trial at which evidence was developed on both the constitutional and state claims, decided the constitutional claim adversely to the respondents. As to the state claim, the court stated:
78
'Further, plaintiffs would have us construe Section 12—206(c) of the Educational Supplement to hold that the phrase 'representative of the community' refers to racial balance. However, the interpretation of this statute would more properly be decided by the State courts, and we take no position thereto.'2 Educational Equality League v. Tate, 333 F.Supp. 1202, 1206—1207 (ED Pa.1971).
79
The Court of Appeals reversed on the constitutional ground, noting that '(i)n view of the result reached on plaintiffs' federal claims, the district court declined to exercise pendent jurisdiction over plaintiffs' claim that the Mayor had also violated state law—namely, various provisions of the Educational Supplement—in selecting Panel Members.' Educational Equality League v. Tate, 472 F.2d 612, 616 n. 15 (CA3 1973).
80
Although the court did not directly reach the state claim, it thought that the legislative history of the Educational Supplement 'serves as the background for the facts of which plaintiffs complain,' id., at 615, particularly the evidence that the chairman of the Educational Home Rule Charter Commission, which drafted the Educational Supplement, contemplated that the composition of the Panel would 'constitute a balanced representation or cross-section of the people of the entire community—all of the community's ethnic, racial, economic, or geographic element and segments.' Id., at 614—615.
81
There is no question in this case that the District Court had jurisdiction over this § 1983 action under § 1343(3), since the equal protection claim was clearly substantial. Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974). It is equally clear that if the pendent claim were a federal statutory one, the constitutional issue should not be reached if the statutory claim was dispositive. Id., at 543, 94 S.Ct. at 1382. The statement of this principle in Hagans, and the cases on which it relied, California Dept. of Human Resources Development v. Java, 402 U.S. 121, 124, 91 S.Ct. 1347, 1350, 28 L.Ed.2d 666 (1971); Dandridge v. Williams, 397 U.S. 471, 475—476, 90 S.Ct. 1153, 1156—1157, 25 L.Ed.2d 491 (1970); Rosado v. Wyman, 397 U.S. 397, 402, 90 S.Ct. 1207, 1212, 25 L.Ed.2d 442 (1970); King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968), are ultimately premised on what has come to be known as the rule of necessity, of avoiding resolution of controversies on constitutional grounds where possible. Ashwander v. TVA, 297 U.S. 288, 341, 56 S.Ct. 466, 480, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). Mr. Justice Brandeis stated the rule as follows:
82
'The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. . . . Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 191, 29 S.Ct. 451, 53 L.Ed. 753; Light v. United States, 220 U.S. 523, 538, 31 S.Ct. 485, 55 L.Ed. 570.' Id., at 347, 56 S.Ct. at 483.
83
In Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753 (1909), a state order regulating rates was attacked as unconstitutional, under the Fourteenth Amendment, on due process and equal protection grounds, as well as under Art. IV, § 4. The complaint also challenged the validity of the order under a state statute. The Circuit Court had invalidated the statute regulation on equal protection and due process grounds. This Court began by noting that there was no question of the federal court's jurisdiction by virtue of the federal questions. The Court, however, invalidated the regulation on state grounds, declaring this preferable to an unnecessary determination of federal constitutional questions:
84
'Where a case in this court can be decided without reference to questions arising under the Federal Constitution, that course is usually pursued and is not departed from without important reasons. In this case we think it much better to decide it with regard to the question of a local nature, involving the construction of the state statute and the authority therein given to the commission to make the order in question, rather than to unnecessarily decide the various constitutional questions appearing in the record.' 213 U.S., at 193, 29 S.Ct. at 455.
85
This course was taken despite the fact that the Court was without benefit of a construction of the statute by the highest state court of Kentucky. Id., at 194, 29 S.Ct. at 456. This method of adjudication 'avoids decision of constitutional questions where possible, and it permits one lawsuit, rather than two, to resolve the entire controversy.' C. Wright, Federal Courts 63 (2d ed. 1970). See H. Hart & H. Wechsler, The Federal Courts and the Federal System 922 (2d ed. 1973).
86
The policy of directly proceeding to a local law issue to avoid deciding a constitutional question, ruled upon in Siler, and which achieved doctrinal status in Ashwander, is 'well settled.' Hillsborough v. Cromwell, 326 U.S. 620, 629, 66 S.Ct. 445, 451, 90 L.Ed. 358 (1946). Since the District Court and Court of Appeals passed by the state law claim, and directly proceeded to the federal constitutional issue, I would vacate the judgment of the Court of Appeals and remand to the District Court for assessment of the state law claim.3
87
The basic relief sought by respondents was to bar the 1971 Panel appointed by Mayor Tate from submitting nominees for the Board to the Mayor, and an order directing the Mayor to appoint a Nominating Panel 'fairly representative of the racial composition of the school community.' This relief would be equally available as a remedy for violations by the Mayor of the Educational Supplement.
88
If the District Court had proceeded to the state law claim, it might have decided that it was without merit, or even perhaps frivolous, in which case it would, in any event, have been required to answer the constitutional question. Perhaps if this Court believed the state court claim were of a truly insubstantial nature, the suggestion for a remand might appear not to be worth the candle, and productive of unnecessary delay. I do not believe this to be the case, however.
89
The respondents' view of state law was that the Mayor, here with the assistance of Deputy Mayor Zecca, was required to compile a list of all organizations which qualified under the nine categories set up by the city charter, and from this group to select the chief executive officer of one of those organizations in each category with the view of achieving a balanced racial composition on the Panel as a whole. This view was supported by the fact that the chairman of the Educational Home Rule Charter Commission, which drafted the Supplement, stated that the composition of the Panel should constitute a balanced cross section of the entire community, on racial, as well as other grounds. Minutes from the meetings of the Charter Commission were relied upon to support this reading of the charter.
90
On the other hand, petitioner reads the charter quite differently. Deputy Mayor Zecca testified that the description of certain categories almost dictated which organization was to have representation on the Nominating Panel. Category one on the Nominating Panel required representation of 'a labor union council or other organization of unions of workers and employes organized and operated for the benefit of such workers and employees.' Mr. Toohey, the head of the AFL—CIO in Philadelphia, was appointed to the position. When Deputy Mayor Zecca was asked whether there was any other organization in Philadelphia which would fit this general category, he replied, 'I don't believe there is another organization that would fit that category to the extent that the AFL—CIO Council operates. This is the broadest possible group.' Tr., Aug. 25, 1971, p. 206. Zecca was then asked about the second category which provides for 'a council, chamber, or other organization established for the purpose of general improvement and benefit of commerce and industry.' The Mayor had appointed the Philadelphian who was the chief ranking officer of the Chamber of Commerce and Industry. When asked why that appointment was made, Zecca stated: 'Well the Chamber of Commerce—I think the wording of the Charter makes it almost implicit that it is referring to the Chamber of Commerce, referring to the use of the word 'chamber.' I think that these restraints, the framers of that Home Rule Supplement practically did everything but dictate exactly who they wanted to serve in those nine categories.' Id., at 207.
91
Respondents and petitioner thus squarely joined issue on the intent of the charter.4 Respondents thought any group fitting a given category should be put into a pool for that category, and then a particular group selected for each category with a view to achieving certain balances on the Panel as a whole. Evidently, the city's view was that the most representative group of the Philadelphia community in each category should be picked without regard to balancing the Panel as a whole. The balancing was already achieved through the diversity of types of organizations to be represented on the Panel. Of course, to the extent that any predominantly white group was more representative of the citizens of Philadelphia, as a whole, than any predominantly black group, this might work to minimize the number of blacks appointed to the Panel, assuming the chief executive officer of a group reflects its predominant racial composition. The resolution of this issue is far from clear, and should have been decided by the District Court without proceeding immediately to the constitutional claim.
92
The majority only comes to grips with the state law claim of racial discrimination in a footnote, stating: 'The statement by the chairman relied on by the dissent was coupled with the thought that one of the commission's principal purposes was to preserve the Mayor's accountability at the polls for his appointments. The commission apparently believed that the appropriate check on the Mayor's actions was the court of public opinion.' Ante, at 626—627, n. 22. Whether the charter intended to confine the discretion of the Mayor is a matter of state law not passed upon by the two federal courts which have reviewed this case. I see no need for this Court, which is far away from the controversy at hand, to decide the merits of the state law claim, on the basis of its own reading of the charter. The state law claim should be left, in the first instance, to the District Court.5
93
As the majority opinion indicates, one of the grounds relied upon by the Court of Appeals in finding racial discrimination in the appointment of the Panel, under the Fourteenth Amendment, was the fact that Zecca was unaware of many black organizations and institutions set out in the city charter. Wholly aside from whether the 'lack of awareness' might support an inference of racial discrimination, the Court of Appeals noted that Zecca thought that only particular organizations could qualify for appointment under various charter provisions. As I read his testimony, all Zecca claimed he had to know was that the Chamber of Commerce and the AFL—CIO were the most representative trade and labor groups in the city, which automatically dictated appointment of their representatives to the Panel. I take it that, under his view of the charter, it was not necessary to proceed further. If respondents' reading of the charter requirements were to prevail over that of petitioner's, a violation of the state law might well give rise to the relief requested.
94
Of course, the District Court on remand might decide that it should leave to the state courts resolution of the state law issue, and abstain. In such event, the proper course to follow would be to retain jurisdiction over the constitutional issue pending resolution of the state claim in another forum. The decision to abstain is by no means required and whether that course meets the test of 'special circumstances,' see Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 509, 92 S.Ct. 1749, 1756, 32 L.Ed.2d 257 (1972), is far from certain. I raise this possibility only for the purpose of stressing that even if abstention were to be deemed appropriate, a question on which I indicate no view, the District Court should still refrain from deciding the constitutional issue. The paramount concern of avoiding constitutional questions, where possible, persists. The Court has noted that application of the abstention doctrine inevitably gives rise to delay and expense, England v. Medical Examiners, 375 U.S. 411, 418, 84 S.Ct. 461, 466, 11 L.Ed.2d 440 (1964), but the policies underlying the Ashwander doctrine should prevail even at this late date in the litigation.
95
The bearing of the Ashwander doctrine was not raised by the parties to this litigation, either in the District Court, the Court of Appeals, or in this Court. However, this Court clearly has 'the power to notice a 'plain error' though it is not assigned or specified,' United Brotherhood of Carpenters and Joiners of America v. United States, 330 U.S. 395, 412, 67 S.Ct. 775, 784, 91 L.Ed. 973 (1947), and this holds true whether the error has or has not been briefed or argued in this Court. Silber v. United States, 370 U.S. 717, 82 S.Ct. 1287, 8 L.Ed.2d 798 (1962).
96
In Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129, 67 S.Ct. 231, 91 L.Ed. 128 (1946), the Court of Appeals had before it not only a constitutional question which it decided, but also a nonconstitutional question, which alone would have disposed of the appeal. The Court of Appeals ruled on the constitutional question, and it appears that at no time did any party urge that Court to rule on the statutory ground. This Court granted certiorari on the constitutional issue and heard argument at the October 1944 Term on the constitutional question. After the case had been set down for further argument in the 1945 Term, the United States, which was an intervenor in the action, pointed out that the case could be decided on statutory grounds, and moved to vacate the judgment of the Court of Appeals and to remand the case to it for determination of the statutory question. The Court adopted the suggestion of the United States, relying on Siler and stating:
97
'This Court has said repeatedly that it ought not pass on the constitutionality of an act of Congress unless such adjudication is unavoidable. This is true even though the question is properly presented by the record. If two questions are raised, one of non-constitutional and the other of constitutional nature, and a decision of the non-constitutional question would make unnecessary a decision of the constitutional question, the former will be decided.' Id., at 136, 67 S.Ct. at 234.
98
The presence of the nonconstitutional ground had not been raised below, or in this Court until after argument, but the Court observed:
99
'We agree that much time has been wasted by the earlier failure of the parties to indicate, or the Circuit Court of Appeals or this Court to see, the course which should have been followed. This, however, is no reason to continue now on the wrong course. The principle of avoiding constitutional questions is one which was conceived out of considerations of sound judicial administration. It is a traditional policy of our courts.' Id., at 142, 67 S.Ct. at 236.
II
100
Since the majority fails to accept my views on the matter of reaching the constitutional question, I feel compelled to express my thoughts on the merits of the claim of racial discrimination.
101
On the record in evidence before it, the Court of Appeals found that the 1971 Nominating Panel was discriminatorily chosen. Although the sufficiency of the evidence to support that conclusion is arguable, I would not substitute our own view of the facts and overturn the Court of Appeals' judgment in this respect. Negroes constituted 34% of the population, and 60% of the public school students were Negroes. The purpose of the ordinance establishing the Nominating Panel was to stimulate and invite participation by all groups in the community, including Negroes not other minorities. It is, therefore, especially significant, even from this distant vantage point, that despite the evident intent of the ordinance to have municipal authorities seek out city-wide associations and interest groups, the city official most responsible, short of the Mayor, for the composition of the Panel confessed ignorance of many of the organizations from which nominations to the Panel might have been made and which might have put forward meritorious suggestions for School Board membership. There was also highly probative evidence with respect to the Mayor's statement that he intended to appoint no more Negroes to the School Board. These facts, when seen through the eyes of judges familiar with the context in which they occurred, may have special significance that is lost on those with only the printed page before them. Sometimes a word, a gesture or an attitude tells a special story to those who are part of the surrounding milieu. This is one of those situations, amd I would not purport to reassess the facts and overturn the considered judgment of the Court of Appeals.
102
The Court complains that the testimony about the Mayor's statement concerning school membership for Negroes was inadmissible hearsay and was thus entitled to no credence. Ante, at 618 and n. 19. But nowhere in this record can one find a denial by Mayor Tate that he did not say what the testimony indicated. His declaration that he was not going to appoint any more Negroes to the School Board was a statement of future intention and as such was quite plainly admissible in evidence.
103
'(W)henever the intention is of itself a distinct and material fact in a chain of circumstances, it may be proved by contemporaneous oral or written declarations of the party.
104
'The existence of a particular intention in a certain person at a certain time being a material fact to be proved, evidence that he expressed that intention at that time is as direct evidence of the fact, as his own testimony that he then had that intention would be.' Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 295, 12 S.Ct. 909, 912, 36 L.Ed. 706 (1892).
As an eminent commentator has observed:
105
'(I)t is now clear that out-of-court statements which tend to prove a plan, design, or intention of the declarant are admissible, subject to the usual limitations as to remoteness in time and apparent sincerity common to all declarations of mental state, to prove that the plan, design, or intention of the declarant was carried out by the declarant.' C. McCormick, Evidence § 295, p. 697 (2d ed. 1972).
106
More importantly, the statement evidencing the Mayor's attitude toward Negroes and their appointment to the School Board was simply not hearsay. At the time that the challenged statement was assertedly made and when it was later related by the witness who saw the Mayor make it on television,6 Mayor Tate was still in office and a party to the lawsuit. The statement was an admission on his part, and as such it was not hearsay. This elementary proposition of evidence law has most recently been recognized by the draftsmen of the Proposed Rules of Evidence for the United States Courts and Magistrates. Rule 801(d)(2) expressly acknowledges that an admission by a party-opponent is not hearsay if the statement is offered against the party and was actually made by him in either his individual or representative capacity. The Advisory Committee's Note succinctly outlines the reasons justifying the rule:
107
'Admissions by a party-opponent are excluded from the category of hearsay on the theory that their admissibility in evidence is the result of the adversary system rather than satisfaction of the conditions of the hearsay rule. Strahorn, A Reconsideration of the Hearsay Rule and Admissions, 85 U.Pa.L.Rev. 484, 564 (1937); Morgan, Basic Problems of Evidence 265 (1962); 4 Wigmore § 1048. No guarantee of trustworthiness is required in the case on an admission. The freedom which admissions have enjoyed from technical demands of searching for an assurance of trustworthiness in some against-interest circumstance, and from the restrictive influences of the opinion rule and the rule ruquiring firsthand knowledge, when taken with the apparently prevalent satisfaction with the results, calls for generous treatment of this avenue to admissibility.'
108
The District Court, therefore, was in error in refusing to admit the Mayor's statement in evidence, and the Court of Appeals was correct in considering it and giving it the weight it deserved. Its conclusion was that the statement supported an inference that there was racial discrimination in the formation of the Nominating Panel. But this Court now says that the inference is not a strong one and is insufficient, along with the other evidence, to sustain the judgment. It is at precisely this point, however, that I would not profess superior insight as to the meaning of 'local' facts and override the judgment of the Court of Appeals with respect to the issue of discrimination.
109
My disagreement with the Court does not go beyond what I consider its improvident exercise of a factfinding role in this particular case. I do not question the long-established principle that this Court has a special responsibility, if not an affirmative duty, to ensure by independent review of the facts that the Constitution is not frittered away.
110
'This Court's duty is not limited to the elaboration of constitutional principles; we must also in proper cases review the evidence to make certain that those principles have been constitutionally applied.' New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 728, 11 L.Ed.2d 686 (1964).
111
Similarly,
112
'That the question is one of fact does not relieve us of the duty to determine whether in truth a federal right has been denied. . . . If this requires an examination of evidence, that examination must be made. Otherwise, review by this Court would fail of its purpose in safeguarding constitutional rights.' Norris v. Alabama, 294 U.S. 587, 589—590, 55 S.Ct. 579, 580, 79 L.Ed. 1074 (1935).
113
The constitutional obligation of this Court, therefore, is to scrutinize a record in a case raising federal constitutional questions with detachment and circumspection, and always with an eye toward the impact of factual determinations on the federal right asserted.
114
But this has never been thought to be a license to rummage through a record looking for shreds of evidence that will discredit the judgment under review and suggest a contrary conclusion. Quite assuredly, reasonable men can, will, and often should differ as to questions of fact as well as law. Likewise, the records in many cases coming to this Court contain complicated, interwoven questions of what have been designated as 'law and fact.' See H. Hart & H. Wechsler, supra, at 601—610. '(I)t is almost impossible(, however,) to conceive how this Court might continue to function effectively were we to resolve afresh the underlying factual disputes in all cases containing constitutional issues.' Time, Inc. v. Pape, 401 U.S. 279, 294, 91 S.Ct. 633, 641, 28 L.Ed.2d 45 (1971) (Harlan, J., dissenting).
115
In this case, two interrelated 'factual' questions are presented: did the Mayor make the statement evidencing his attitude toward appointing Negroes to the School Board and, if so, is the inference strong enough to support the judgment of the Court of Appeals? The District Court apparently assumed the statement was made, but ruled it inadmissible hearsay that the court should not consider. The Court of Appeals, however, accepted the making of the statement and reached the conclusion, based on the statement, that '(i)f the Mayor decided, prior to receiving nominees from the Panel to exclude black nominees from consideration, an inference may be drawn that the Mayor in similar manner excluded blacks from consideration as members of the 1971 Panel.' 472 F.2d, at 616 n. 9. The Court apparently disagrees with the unanimous Court of Appeals' assessment that the statement was ever made, but surely this is not the type of historical fact that should command this Court's attention, at least absent some unusually extraordinary or complicating factors. As for the second issue—whether the inference was strong enough to support the judgment of racial discrimination—I fail to see how we are better equipped for this determination than our counterparts on the Court of Appeals.
116
The District Court, having failed to consider the case with the Mayor's statement in evidence, provides no crutch for this Court. If the District Court's assessment of the presence of racial discrimination is deemed a critical factor, the proper course would be to remand the case to the District Court, rather than to reject, on its own motion, the weight given to that testimony by the Court of Appeals. In United States v. Matlock, 415 U.S. 164, 177, 94 S.Ct. 988, 996, 39 L.Ed.2d 242 (1974), where we determined that the District Court had erroneously excluded evidence as hearsay, we determined the evidence should be admitted, but remanded the case to the District Court to determine what weight should be given to the evidence. In the present posture of this case the Court is in no position to rely on any view of the relevant and admissible facts other than its own.
117
I am also unconvinced that we must reverse every ultimate factual conclusion of the courts of appears whenever we disagree with them or simply because we would not have arrived at the same conclusion had we been deciding the issue in the first instance. Where ample evidence supports the court of appeals' judgment and reasonable men could make different assessments of the facts, there is room for deferring to the court of appeals. This is especially true where its judgment rests on 'an intensely local appraisal' of the facts 'in the light of past and present reality . . ..' White v. Regester, 412 U.S. 755, 769—770, 93 S.Ct. 2332, 2341, 37 L.Ed.2d 314 (1973).
I must dissent.7
1
The relevant provisions of Art. XII of the Philadelphia Home Rule Charter are set forth as an appendix, infra, at p. 629.
2
Section 12—203(b) of Art. XII of the Philadelphia Home Rule Charter provides:
'Nine members of the Educational Nominating Panel shall be the highest ranking officers of City-wide organizations or institutions which are, respectively:
'(1) a labor union council or other organization of unions of workers and employes organized and operated for the benefit of such workers and employes,
'(2) a council, chamber, or other organization established for the purpose of general improvement and benefit of commerce and industry,
'(3) a public school parent-teachers association,
'(4) a community organization of citizens established for the purpose of improvement of public education,
'(5) a federation, council, or other organization of non-partisan neighborhood or community associations,
'(6) a league, association, or other organization established for the purpose of improvement of human and inter-group relations,
'(7) a non-partisan committee, league, council, or other organization established for the purpose of improvement of governmental, political, social, or economic conditions,
'(8) a degree-granting institution of higher education whose principal educational facilities are located within Philadelphia, and
'(9) a council, association, or other organization dedicated to community planning of health and welfare services or of the physical resources and environment of the City.'
3
The Mayor must also convene the Nominating Panel whenever a vacancy occurs on the School Board due to resignation, removal, or other unexpected event.
4
The Educational Equality League is a nonprofit corporation devoted to safeguarding the educational rights of all Philadelphia citizens regardless of race. It was founded in 1932 and presently has approximately nine hundred members.
5
Educational Equality League v. Tate, 333 F.Supp. 1202, 1204 (ED Pa.1971); Tr. of Oral Arg. 14. In their complaint respondents alleged that Mayor Tate had denied Negroes 'proper representation' on the School Board. But respondents have not pursued this contention at any stage of this suit.
6
Counsel for respondents commented at oral argument that respondents 'are not in any way attacking the actions of the panel.' Tr. of Oral Arg. 44. See id., at 24. This apparently means only that respondents do not contend that the 1971 Panel in fact excluded Negroes from consideration in recommending School Board nominees to the Mayor. It does not mean that respondents do not seek to undo what the Panel has done. Indeed, respondents have sought relief that would invalidate the nominations made by the Panel, on the theory that the Panel was selected in violation of the Constitution and that its actions, although not discriminatory, are voidable. See nn. 9, 12, infra.
7
Educational Equality League v. Tate, supra, at 1204.
8
Tr. of Oral Arg. 25. See Educational Equality League v. Tate, 472 F.2d 612, 616 (CA3 1973).
9
Although respondents' suit is addressed to the Nominating Panel, the relief they seek would have an impact on the School Board as well. In order to cure any taint deriving from the allegedly unlawful selection of the 1971 Panel, respondents take the view that the federal courts should remove from the Board all persons nominated by that Panel. Tr. of Oral Arg. 37, 43—44. Given the racial mix of the present Board, this would require the removal of Negroes as well as whites. Id., at 44.
10
Mayor Tate's appointments to the 1971 Panel initially consisted of 12 whites and one Negro. However, after Mayor Tate selected the president of a particular citywide organization but before the 1971 Panel convened, the leadership of the organization changed hands, and its white president was replaced by a Negro. The Mayor then reaffirmed his selection of that organization, which produced the 11-to-2 racial mix of the 1971 Panel.
11
The Court of Appeals held that the Nominating Panel is not a 'person' within the meaning of 42 U.S.C. § 1983, and it therefore affirmed the District Court's dismissal of the complaint as to the Panel. 472 F.2d, at 614 nn. 1 and 4. Respondents do not seek review of this holding, and we do not address it.
12
The Court of Appeals remanded to the District Court the question of whether those persons appointed to the School Board from among the nominees submitted by the 1971 Panel should be removed from office. Id., at 618 n. 20. In an unsuccessful petition for rehearing filed with the Court of Appeals, respondents requested the court to modify its opinion 'and specifically direct the District Court to use appropriate equitable remedies to assure that all members of the School Board who were appointed through the unconstitutional processes described in this case, be promptly replaced by persons appointed as a result of a nominating process which conforms to the requirements of the Fourteenth Amendment, these equitable remedies to take into account the necessity of having an operating school board at all times.'
13
This is not to say, of course, that the State of Pennsylvania may not pattern its government after the scheme set forth in the Federal Constitution or in any other way it sees fit. The Constitution does not impose on the States any particular plan for the distribution of governmental powers. See Sweezy v. New Hampshire, 354 U.S. 234, 256, 77 S.Ct. 1203, 1214, 1 L.Ed.2d 1311 (1957) (Frankfurter, J., concurring).
14
In a concurring opinion in Carter, Mr. Justice Black revealed that for him these 'problems,' as the Court put it, were conclusive. 'In my judgment the Constitution no more grants this Court the power to compel a governor to appoint or reject a certain individual or a member of any particular group than it grants this Court the power to compel the voters of a State to elect or defeat a particular person or a member of a particular group.' 396 U.S., at 341, 90 S.Ct. at 529. Mr. Justice Black's views have not, however, been adopted by the Court.
15
The interchange between counsel for respondents and Mr. Zecca concerning the 1969 statement, App. 91a—93a, was as follows:
'BY MR. WOLF:
'Q. Mr. Zecca, we were discussing earlier a statement by Mayor Tate in 1969 that he would not appoint any additional Negroes to the School Board and you said you didn't recall that statement.
'A. I said I don't think that he made such a statement.
'Q. Well, all right.
'May I show you a very bad copy of a page of the Philadelphia Inquirer, Saturday, May 3, 1969, and the article says he indicated, referring to the Mayor, he would not appoint another Negro to the Board because the Negro community has good representation in the two Negroes now serving on the Board.
'Do you recall that article?
'THE WITNESS: I don't recall the article specifically but it doesn't say he is not going to name another member.
'It said that he indicated that he wouldn't name another member; and this is, of course, the reporter's version of this, but the quote said the Negro community has good representation in the two Negroes now serving on the Board.
'They may have asked him whether he was going to appoint any more Negroes to the Board and he said the Negro community has good representation on the Board as it is; just like it has excellent representation right in this story.
'BY MR. WOLF:
'Q. You don't recall, however, this having happened?
'A. No.'
16
333 F.Supp., at 1206.
17
Under direct examination by respondents' counsel, the witness testified:
'At that time (in 1969) the Mayor made a public statement that he was not going to appoint any more Negroes to the Board because, in his feeling, they had adequate representation and that he was going to appoint someone from the nominees to the Board of Education.' App. 41a.
18
472 F.2d, at 616. The testimony was in fact contradicted by Deputy Mayor Zecca while under cross-examination by respondents' counsel. See n. 15, supra.
19
There is some question in the record whether respondents' witness' knowledge of the 1969 statement derived from the 1969 newspaper account that the District Court ruled inadmissible hearsay or from an independent source. At oral argument, counsel for respondents informed the Court that the witness giving the testimony had heard the statement on television, although counsel conceded that this had not been made clear in the record. Tr. of Oral Arg. 31. Whether the testimony reflected the newspaper account or a television report, it was nonetheless hearsay. The Court of Appeals made no effort to determine whether the testimony met any recognized exception to the general rule that hearsay is inadmissible.
The dissenting opinion, based in part on this single ambiguous piece of testimony, argues that this 'highly probative evidence' was not hearsay. Post, at 644. It may have been admissible for what it was worth as an exception to the hearsay rule, but hearsay it certainly was—and its probative value was so dubious that the District Court ignored it. Mayor Tate was not called as a witness by either side and accordingly did not testify. Thus, it is hardly surprising that 'nowhere in this record can one find a denial by Mayor Tate that he did not say what the testimony indicated.' Post, at 645.
20
We share the view expressed in the dissent that facts in a case like the instant one, 'when seen through the eyes of judges familiar with the context in which they occurred, may have special significance that is lost on those with only the printed page before them.' Post, at 644. That is one reason why we believe that the Court of Appeals, 'with only the printed page before (it) . . .,' erred in reversing the District Court. The judge most 'familiar with the context in which (the facts) occurred . . .' was obviously the District Judge, since he heard and viewed the testimony and other evidence presented. Nothing in our opinion should be seen as detracting from the salutary principle that great weight should be accorded findings of fact made by district courts in cases turning on peculiarly local conditions and circumstances. E.g., White v. Register, 412 U.S. 755 769—770, 93 S.Ct. 2332, 2341—2342, 37 L.Ed.2d 314 (1973).
21
The relevant interchange was as follows:
'THE COURT. Do I understand you to say that it is your interpretation of the wording of the charter in connection with the makeup of the panel that it should be representative of the community generally? Is that what you are saying?
'MR. WOLF. The language is 'represent adequately the entire community,' and what I want to try to make clear in the course of my presentation is that we are not going around looking for a hook to hang our case on.
'We expect to present to you a picture, and we think that each of these items will fit into the picture, and paint an image of racial discrimination.
'We think that one of the pieces that will be in that picture is the statutory context, which is that this committee, this panel, should represent adequately the entere community. We are not arguing that that means X number of whathaveyou; we are just saying that that is relevant.
'If it weren't there, maybe there would be a stronger argument to be made that you should not expect a large number of Blacks there, but it is supposed to represent adequately the entire community, and that means something. It doesn't mean anything exactly, but it means something. It points you in a direction to suggest that you should find—
'THE COURT. And this is one of the sticks in the bundle that I should weigh.
'MR. WOLF. That's right. You should find some Blacks on there under the statute.' Tr., Aug. 25, 1971, pp. 75—76.
22
The dissent also refers to a statement by the chairman of the commission that drafted the Panel with regard to a 'balanced cross section of the entire community . . ..' The statement by the chairman relied on by the dissent was coupled with the thought that one of the commission's principal purposes was to preserve the Mayor's accountability at the polls for his appointments. The commission apparently believed that the appropriate check on the Mayor's actions was the court of public opinion. Moreover, it is instructive to quote the chairman's statement. After noting that the Panel should serve as a substitute for public election of the School Board, the chairman said:
'It follows that the panel's composition should be so arranged in the charter that it can always constitute a balanced representation or cross-section of the people of the entire community—all of the community's ethnic, racial, economic, or geographic elements and segments.'
To convert that statement, as would the dissent, into nothing more than a mandate for racial balance between Negroes and whites is to disregard wholly what the chairman actually said.
23
Assuming, arguendo, that there is substance to the state claims perceived by the dissent, there would still be serious question about the appropriateness of pendent jurisdiction. The dissent concedes that 'the sufficiency of the evidence to support (respondents' federal case) is arguable . . ..' Post, at 644. The dissent is, therefore, urging avoidance by a district court of a federal claim in favor of state law matters in a case where the federal issue is dubious yet is the only basis for federal jurisdiction. This amounts to an argument that the state tail should wag the federal dog, e.g., H. Hart & H. Wechsler, The Federal Courts and the Federal System 925 (2d ed. 1973), and we do not view it as an efficacious application of the pendent jurisdiction doctrine. Alma Motor Co. v. Timken Co., 329 U.S. 129, 67 S.Ct. 231, 91 L.Ed. 128 (1946), on which the dissent relies in concluding that this case should be remanded for resolution of state issues, was a case in which the alternative ground for decision was a federal statute over which a district court would have jurisdiction without regard to the presence of federal constitutional issues. It plainly is not in point here. In the instant case, the alternative ground championed by the dissent is not by itself capable of conferring federal jurisdiction.
24
See, e.g., McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); Harrison v. NAACP, 360 U.S. 167, 180, 79 S.Ct. 1025, 1032, 3 L.Ed.2d 1152 (1959) (DOUGLAS, J., joined by WARREN, C.J., and BRENNAN, J, dissenting); ALI Study of the Division of Jurisdiction Between State and Federal Courts § 1371(g), commentary at 297 (1969).
25
See Gunther, The Subtle Vices of the 'Passive Virtues'—A Comment on Principle and Expediency in Judicial Review, 64 Col.L.Rev. 1, 16—17 (1964).
1
This was a 'short and plain statement of the claim,' and was a general assertion that there had been racially discriminatory appointments in violation of the Charter. As the Court stated in Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957), '(t)he Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.' A fair reading of the complaint shows that this general claim was supported by allegations of racial discrimination in the body of the complaint and that other violations of the Supplement were asserted '(i)n addition' to the allegations of racial discrimination.
2
As to another subsidiary state law point, the court stated:
'Similarly, while it is clear that the Mayor has not appointed the chief executive officer of the various organizations selected for representation on the Panel as required by the Educational Supplement, such violations have no bearing on the charges of racial discrimination and should also be decided by the State courts.'
3
This case raises entirely separate issues than were posed in Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), where a state claim was pendent to a federal statutory claim. Under such circumstances, the Ashwander doctrine is inapplicable, since there is no federal constitutional claim, and once having decided the federal claim, upon which jurisdiction is premised, the court must determine whether it is proper to resolve the pendent state claim as well.
4
The general claim of discrimination was not abandoned at trial. As the transcript shows, the statutory claim remained 'one of the pieces' in the 'picture' of racial discrimination. After evidence was taken, respondents continued to press this claim in their post-trial brief, which stated:
'The evidence presented clearly demonstrates that the entire scheme of appointments violated the central principle of the Panel as expressed by the framers of the Supplement. It is clear from the documents introduced by the defendant that the Panel method of selecting School Board members was adopted after great consideration of a number of alternatives. It is equally clear that the Commission intended that the Panel mechanism function as a substitute for or counterpart of popular election; it should therefore constitute a balanced representation of the people of the entire community.' The statement of counsel at the opening of the trial obviously did not fully reflect or anticipate the evidence at trial or the issues tendered and accepted by the District Court. That court, rather than deciding the state law issues as part of the constitutional claim, expressly left them for resolution in the state courts. The fact that a state law claim is presented with a constitutional argument does not remove the claim as an alternative ground of decision.
5
In arguing that the claim was insubstantial, the majority attacks a straw man. It assumes that the claim could only have been based on § 12—206(c) of the charter, which relates to the selection of at-large members of the Panel. But the claim advanced by respondents was that the framers of the charter intended that the nine organizational seats on the Panel, selected under § 12 206(b), when combined with the four atlarge selections, represent a racial cross section of the community.
6
Tr. of Oral Arg. 31.
7
I do agree with the Court that the remedy against the incumbent Mayor Rizzo was improvident. See Spomer v. Littleton, 414 U.S. 514, 94 S.Ct. 685, 38 L.Ed.2d 694 (1974).
| 12
|
415 U.S. 767
94 S.Ct. 1296
39 L.Ed.2d 744
AMERICAN PARTY OF TEXAS et al., Appellants,v.Mark WHITE, Jr., Secretary of State of Texas. Robert HAINSWORTH, Appellant, v. Mark WHITE, Jr., Secretary of State of Texas.
Nos. 72—887, 72—942.
Argued Nov. 5, 1973.
Decided March 26, 1974.
Rehearing Denied May 13, 1974.
See 416 U.S. 1000, 94 S.Ct. 2414.
Syllabus
Texas laws involved in this litigation provide four methods for nominating candidates in a general election: (1) candidates of parties whose gubernatorial choice polled more than 200,000 votes in the last general election are nominated by primary election only, and the nominees of these parties automatically appear on the ballot; (2) candidates whose parties poll less than 200,000 votes, but more than 2% of the total vote cast for governor in that election are nominated by primary election or nominating conventions; (3) if the foregoing procedures do not apply, precinct conventions can, pursuant to Tex. Election Code, Art. 13.45(2) (Supp.1973), nominate candidates if the party is able, by notarized signatures, to evidence support by at least 1% of the total gubernatorial vote at the last preceding general election or (by a process to be completed within 55 days after the general May primary election) can produce sufficient supplemental petitions with notarized signatures (not including voters who have already participated in any other party's primary election or nominating process) to make up a combined total of the 1%; and (4) under Arts. 13.50 and 13.51, an independent candidate, regardless of the office sought, can qualify by filing within the time prescribed a petition signed by a certain percentage of voters for governor at the last preceding general election in a specified locality, the percentages varying with the offices sought (in this case 3% in a congressional district and 5% in a State Representative's district). In no event, are more than 500 signatures required of a candidate for any 'district office.' No voter, participating in any other political party nominating process or signing a nominating petition for the same office, may sign an independent's petition. Appellants, minority political parties and their candidates and supporters, and unaffiliated candidates, brought actions in the District Court seeking declaratory and injunctive relief against the enforcement of the Texas election laws, which they claimed infringed their associational rights under the First and Fourteenth Amendments and were invidiously discriminatory. They also challenged the practice of printing on absentee ballots only the names of the two major political parties and the State's failure to require printing minority party and independent candidates' names on absentee ballots and the exclusion of minority parties from the benefits of the McKool-Stroud Primary Financing Law of 1972, which provided for public financing from state revenues for primary elections of political parties casting 200,000 or more votes in the last preceding general election for governor. The District Court upheld the constitutionality of the State's election scheme. Held:
1. Article 13.45(2), which does not freeze the status quo but affords minority parties a real and essentially equal opportunity for ballot qualification, does not contravene the First and Fourteenth Amendments and is in furtherance of a compelling state interest. Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714. Pp. 776—788.
(a) The Equal Protection Clause does not forbid the requirement that small parties proceed by convention rather than primary election. The convention process has not been shown here to be invidiously more burdensome than the primary election, followed by a runoff election where necessary. Pp. 781—782.
(b) So long as the larger parties must demonstrate major voter support at the last election, it is not invidious to require smaller parties (which need make no such demonstration) to establish their position otherwise; and the 1% requirement (which two of the appellant parties were able to meet) imposes no insurmountable obstacle on a small party. Pp. 782—784.
(c) The bar against a person's signing a supplemental petition who has voted in a primary election or participated in a party convention is not unconstitutional, since he may choose to vote or to sign a nominating petition, but not to do both. Nor is it invidious to disqualify those who have voted in a primary from signing petitions for another party seeking ballot position for its candidates for the same offices, where that party had access to the entire electorate and an opportunity to commit voters on primary day. Cf. Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1. Pp. 785—786.
(d) The 55-day period provides sufficient time for circulating supplemental petitions and is not unduly burdensome, nor is the notarization requirement. Pp. 786—787.
2. The percentage provisions in Arts. 13.50 and 13.51 with the 500-signature feature are not unduly burdensome. Requiring independent candidates to evidence a 'significant modicum of support' is not unconstitutional, and the record here is devoid of any proof to support the claims of appellant independent candidates (who relied solely on the minimal 500-vote-signature requirement) that these requirements were impermissibly onerous. Pp. 788—791.
3. The challenged McKool-Stroud provisions are not unconstitutional, since they were designed to compensate for primary election expenses to which the major parties alone are subject; and, as the District Court correctly found, 'the convention and petition procedure available for small and new parties carries with it none of the expensive election requirements burdening those parties required to conduct primaries.' Moreover, the State is not obliged to finance the efforts of every nascent political group seeking ballot placement, like appellant American Party, which failed to qualify for the general election ballot. Pp. 791—794.
4. The District Court erred in sustaining the exclusion of minority parties from the absentee ballot. No justification was offered by appellees for not giving absentee ballot placement to appellant Socialist Workers Party, which satisfied the statutory requirement for demonstrating the necessary community support needed to win general ballot position for its candidates. Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36; O'Brien v. Skinner, 414 U.S. 524, 94 S.Ct. 740, 38 L.Ed.2d 702. Pp. 794—795.
No. 72—942, affirmed; No. 72—887, 349 F.Supp. 1272, affirmed in part, vacated and remanded in part.
Gloria T. Svanas, Odessa, Tex., for appellants in No. 72—887.
Robert W. Hainsworth, Houston, Tex., for appellant in No. 72 942, pro se.
John L. Hill, Austin, Tex., for appellee.
Mr. Justice WHITE delivered the opinion of the Court.
1
These cases began when appellants, minority political parties and their candidates, qualified voters supporting the minority party candidates, and independent unaffiliated candidates, brought four separate actions in the United States District Court for the Western District of Texas against the Texas Secretary of State seeking declaratory and injunctive relief against the enforcement of various sections of the Texas Election Code.
2
The American Party of Texas sought ballot position at the general election in 1972 for a slate of candidates for various statewide and local officers, including governor and county commissioner.1 The New Party of Texas wanted ballot recognition for its candidates for the general election for governor, Congress, state representative and county sheriff. The Socialist Workers Party made similar claims with respect to its candidates for governor, lieutenant governor and United States Senator.2 Laurel Dunn, a nonpartisan candidate, attempted to run for the United States House of Representatives from the Eleventh Congressional District. In his action, he represented himself for other named independent candidates for state and local offices. Finally, Robert Hainsworth sought election as state representative from District No. 86.
3
In these actions, it was alleged that, by excluding appellants from the general election ballot, various provisions of the Texas Election Code infringed their First and Fourteenth Amendment right to associate for the advancement of political beliefs and invidiously discriminated against new and minority political parties, as well as independent candidates. Appellants sought to enjoin the enforcement of the challenged provisions in the forthcoming November 1972 general election. They also challenged the failure of the Texas law to require printing minority party and independent candidates on absentee ballots and the exclusion of minority parties from the benefits of the McKool-Stroud Primary Law of 1972. The individual cases involving the parties in No. 72—887 were consolidated, and a statutory three-judge District Court was convened. Following a trial, the District Court denied all relief after holding that, in their totality, the challenged provisions served a compelling state interest and did not suffocate the election process. Raza Unida Party v. Bullock, 349 F.Supp. 1272 (WD Tex.1972). Hainsworth, appellant in No. 72—942, was also subsequently denied relief on similar grounds. Two separate appeals were taken, and we noted probable jurisdiction. 410 U.S. 965, 93 S.Ct. 1442, 35 L.Ed.2d 700. We affirm the judgment of the District Court in No. 72—942, and in No. 72—887, except as the latter relates to the Socialist Workers Party and Texas' absentee ballot provisions.
4
* The State of Texas has established a detailed statutory scheme for regulating the conduct of political parties as it relates to qualifying for participation in the electoral process. Under the laws challenged in this case, four methods are provided for nominating candidates to the ballot for the general election.3
5
Candidates of political parties whose gubernatorial candidate polled more than 200,000 votes in the last general election may be nominated by primary election only, and the nominees of these parties automatically appear on the ballot. Tex.Election Code, Art. 13.02 (1967).4 Texas holds a statewide primary for these major parties on the first Saturday in May, with a runoff primary the first Saturday in June, should no candidate garner a majority. Art. 13.03 (1967).
6
Candidates of parties whose candidate polled less than 200,000 votes, but more than 2% of the total vote cast for governor in the last general election may be nominated and thereby qualify for the general election ballot by primary election or nominating conventions. Art. 13.45(1) (Supp.1973).5 The nominating conventions are held sequentially, with the precinct conventions on the same date as the statewide primaries for the major parties (the first Saturday in May), the county conventions on the following Saturday, and the state convention on the second Saturday in June. Art. 13.47 (Supp.1974); Art. 13.48 (1967).
7
Because their candidates polled less than 2% of the total gubernatorial vote in the preceding general election or they did not nominate a candidate for governor, the political parties in this litigation were required to pursue the third method for ballot qualification: precinct nominating conventions and if the required support was not evidenced at the conventions, the circulation of petitions for signatures. Art. 13.45(2) (Supp.1973).6
8
Finally, unaffiliated nonpartisan or independent candidates such as Dunn and Hainsworth could qualify by filing within a fixed period a written application or petition signed by a specified percentage of the vote cast for governor in the relevant electoral district in the last general election. Arts. 13.50, 13.51 (1967).7
II
9
We consider first the appeals of the political parties and their supporters. Article 13.45(2) (Supp.1973) of the Texas Election Code, the validity of which is at issue here, requires that the political parties to which it applies nominate candidates through the process of precinct, county, and state conventions. The party must also evidence support by persons numbering at least 1% of the total vote cast for governor at the last preceding general election. In 1972 this number was approximately 22,000 electors. Two opportunities are offered to satisfy the 1% signature requirement. At the statutorily mandated precinct nominating conventions, held on the first Saturday in May and the same day as the major party primary, the party must prepare a list of all participants, who must be qualified voters, along with other pertinent information. The list is to be forwarded to the Secretary of State within 20 days after the convention. If it reveals the necessary support and if the party has satisfied the other statutory requirements imposed upon all political parties, the Secretary of State will certify that the party is entitled to be placed on the general election ballot.
10
Should the party not obtain the requisite 1% convention participation, supplemental petitions may be circulated for signature. When these are signed by a sufficient number of qualified voters in addition to the convention lists to make a combined total of the requisite 1%, the party qualifies for the ballot. Approximately 55 days after the general primary election in May are allotted for the supplementation process. A voter who has already participated in any other party's primary election or nominating process is ineligible to sign the petition. Furthermore, each signatory must be administered and sign an oath that he is a qualified voter and has not participated in any other party's nominating or qualification proceedings. The oath must also be notarized.
11
The American Party of Texas was able to secure only 2,732 signatures at its precinct conventions in May 1972. By the deadline for filing the precinct lists and supplemental petitions, the total had risen to 7,828, far short of the over 22,000 required signatures. Brief for American Party of Texas 2—3.8 The Texas New Party apparently made no effort to comply with the 1% requirement.9 Two relatively small parties, however, which were also plaintiffs in this litigation, La Raza Unida Party and the Socialist Workers Party, complied with the qualification provisions of Art. 13.45(2) (Supp.1973) and were placed on the general election ballot.
12
The party appellants challenge various aspects of the Texas ballot qualification system as they interact with each other: the 1% support requirement with its precinct conventions and petition apparatus, the preprimary ban on petition circulation, the disqualification from signing of those voters participating in another party's nominating process, the 55-day limitation on securing signatures, and the notarization requirement.10 They assert that these preconditions for access to the general election ballot are impermissible burdens on rights secured by the First and Fourteenth Amendments and violate the Equal Protection Clause of the Fourteenth Amendment as invidious discriminations against new or small political parties.
13
We have concluded that these claims are without merit. We agree with the District Court that whether the qualifications for ballot position are viewed as substantial burdens on the right to associate or as discriminations against parties not polling 2% of the last election vote, their validity depends upon whether they are necessary to further compelling state interests, Storer v. Brown, 415 U.S., at 729—733, 94 S.Ct., at 1278—1281.11 But we also agree with the District Court that the foregoing limitations, whether considered alone or in combination, are constitutionally valid measures, reasonably taken in pursuit of vital state objectives that cannot be served equally well in significantly less burdensome ways.
14
It is too plain for argument, and it is not contested here, that the State may limit each political party to one candidate for each office on the ballot and may insist that intraparty competition be settled before the general election by primary election or by party convention. See Storer v. Brown, 415 U.S., at 733—736, 94 S.Ct., at 1280—1282. Neither can we take seriously the suggestion made here that the State has invidiously discriminated against the smaller parties by insisting that their nominations be by convention, rather than by primary election. We have considered the arguments presented, but we are wholly unpersuaded by the record before is that the convention process is invidiously more burdensome than the primary election, followed by a runoff election where necessary, particularly where the major party, in addition to the elections, must also hold its precinct, county, and state conventions to adopt and promulgate party platforms and to conduct other business.12 If claiming an equal protection violation, the appellants' burden was to demonstrate in the first instance a discrimination against them of some substance. 'Statutes create many classifications which do not deny equal protection; it is only 'invidious discrimination' which offends the Constitution.' Ferguson v. Skrupa, 372 U.S. 726, 732, 83 S.Ct. 1028, 1032, 10 L.Ed.2d 93 (1963) (footnote omitted). Appellants' burden is not satisfied by mere assertions that small parties must proceed by convention when major parties are permitted to choose their candidates by primary election. The procedures are different, but the Equal Protection Clause does not necessarily forbid the one in preference to the other.13
15
To obtain ballot position, the parties subject to Art. 13.45(2) (Supp.1973), as were these appellants, were also required to demonstrate support from electors equal in number to 1% of the vote for governor at the last general election. Appellants apparently question whether they must file any list of supporters where the major parties are required to file none. But we think that the State's admittedly vital interests14 are sufficiently implicated to insist that political parties appearing on the general ballot demonstrate a significant, measurable quantum of community support. So long as the larger parties must demonstrate major support among the electorate at the last election, whereas the smaller parties need not, the latter, without being invidiously treated, may be required to establish their position in some other manner. Of course, what is demanded may not be so excessive or impractical as to be in reality a mere device to always, or almost always, exclude parties with significant support from the ballot. The Constitution requires that access to the electorate be real, not 'merely theoretical.' Jenness v. Fortson, 403 U.S. 431, 439, 91 S.Ct. 1970, 1974 (1971).
16
The District Court recognized that any fixed percentage requirement is necessarily arbitrary, but we agree with it that the required measure of support—1% of the vote for governor at the last general election and in this instance 22,000 signatures—falls within the outer boundaries of support the State may require before according political parties ballot position.15 To demonstrate this degree of support does not appear either impossible or impractical, and we are unwilling to assume that the requirement imposes a substantially greater hardship on minority party access to the ballot.16 Two political parties which were plaintiffs in this very litigation qualified for the ballot under Act. 13.45(2) (Supp.1973) in the 1972 election. It is not, therefore, immediately obvious that the Article on its face or as it operates in practice, imposes insurmountable obstacles to fledgling political party efforts to generate support among the electorate and to evidence that support within the time allowed.
17
The aspiring party is free to campaign before the primary and to compete with the major parties for voter support on primary election and precinct convention day. Any voter, however registered, may attend the new party's precinct convention and be counted toward the necessary 1% level. Unlike the independent candidate under Texas law, see infra at 788, and his California counterpart, see Storer v. Brown, 415 U.S., at 738, 94 S.Ct., at 1283, a party qualifying under Art. 13.45(2) (Supp.1973) need not wait until the primary to crystallize its support among the voters. It is entitled to compete before the primary election and to count noses at its convention on primary day, just as the major parties and their candidates count their primary votes. Furthermore, should they fall short of the magic figure, they have another chance—they may make up the shortage and win ballot position by circulating petitions for signature for a period of 55 days beginning after the primary and ending 120 days prior to the general election.
18
It is true that at this juncture the pool of possible supporters is severely reduced, for anyone voting in the just-completed primary is no longer qualified to sign the petition requesting that the petitioning party and its nominees for public office be listed on the ballot. Appellants attack this restriction, but, as such, it is nothing more than a prohibition against any elector's casting more than one vote in the process of nominating candidates for a particular office. Electors may vote in only one party primary; and it is not apparent to us why the new or smaller party seeking voter support should be entitled to get signatures of those who have already voted in another nominating primary and have already demonstrated their preference for other candidates for the same office the petitioning party seeks to fill. We think the three-judge District Court in Jackson v. Ogilvie, 325 F.Supp. 864, 867 (ND Ill.), aff'd 403 U.S. 925, 91 S.Ct. 2247, 29 L.Ed.2d 705 (1971), aptly characterized the situation in upholding a state election law provision preventing a voter from both voting in the primary and signing an independent election petition:
19
'Thus, the state's scheme attempts to ensure that each qualified elector may in fact exercise the political franchise. He may exercise it either by vote or by signing a nominating petition. He cannot have it both ways.'17
20
We have previously held that to protect the integrity of party primary elections, States may establish waiting periods before voters themselves may be permitted to change their registration and participate in another party's primary. Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973). Cf. Kusper v. Pontikes, 414 U.S. 51, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973). Likewise, it seems to us that the State may determine that it is essential to the integrity of the nominating process to confine voters to supporting one party and its candidates in the course of the same nominating process. At least where, as here, the political parties had access to the entire electorate and an opportunity to commit voters on primary day, we see nothing invidious in disqualifying those who have voted at a party primary from signing petitions for another party seeking ballot position for its candidates for the same offices.
21
Neither do we consider that the 55 days is an unduly short time for circulating supplemental petitions. Given that time span, signatures would have to be obtained only at the rate of 400 per day to secure the entire 22,000, or four signatures per day for each 100 canvassers—only two each per day if half the 22,000 were obtained at the precinct conventions on primary day. A petition procedure may not always be a completely precise or satisfactory barometer of actual community support for a political party, but the Constitution has never required the States to do the impossible. Dunn v. Blumstein, 405 U.S. 330, 360, 92 S.Ct. 995, 1012 (1972). Hard work and sacrifice by dedicated volunteers are the lifeblood of any political organization. Constitutional adjudication and common sense are not at war with each other, and we are thus unimpressed with arguments that burdens like those imposed by Texas are too onerous, especially where two of the original party plaintiffs themselves satisfied these requirements.18
22
Finally, there remains another facet to the signature requirement. Article 13.45(2) (Supp.1973) provides that all signatures evidencing support for the party, whether originating at the precinct conventions or with supplemental petitions circulated after primary day, must be notarized. The parties object to this requirement, but make little or no effort to demonstrate its impracticability or that it is unusually burdensome. The District Court determined that it was not, indicating that one of the plaintiff political parties had conceded as much. The District Court also found no alternative if the State was to be able to enforce its laws to prevent voters from crossing over or from voting twice for the same office. On the record before us, we are in no position to disagree.
23
In sum, Texas 'in no way freezes the status quo, but implicitly recognizes the potential fluidity of American political life.' Jenness v. Fortson, 403 U.S., at 439, 91 S.Ct., at 1975. It affords minority political parties a real and essentially equal opportunity for ballot qualification. Neither the First and Fourteenth Amendments nor the Equal Protection Clause of the Fourteenth Amendment requires any more.
III
24
Appellants Dunn and Hainsworth challenged Arts. 13.50 and 13.51, which govern the eligibility of nonpartisan or independent candidates for general election ballot position. Regardless of the office sought, an independent candidate must file, within 30 days after the second or runoff primary election, a written petition signed by a specified number of qualified voters. The signatures required vary with the office sought. Dunn was required to obtain signatures equaling 3% of the 1970 vote for governor in the congressional district in which he desired to run; Hainsworth, a candidate for the State House of Representatives, needed 5% of the same vote in his locality. Article 13.50, however, states that in no event would candidates for any 'district office,' as Dunn and Hainsworth were,19 be required to file more that 500 signatures. The law also provides that a voter may not sign more than one petition for the same office and is barred from signing any petitions if he voted at either primary election of any party at which a nomination was made for that office. Each voter signing an independent candidate's petition must also subscribe to a notarized oath declaring his nonparticipation in any political party's nominating process. Art. 13.51.
25
Dunn and Hainsworth contend that the First and Fourteenth Amendments, including the Equal Protection Clause, forbid the State to impose unduly burdensome conditions on their opportunity to appear on the general election ballot. The principle is unexceptionable, cf. Storer v. Brown, 415 U.S., at 738, 739, 740, 746, 94 S.Ct., at 1283, 1284, 1286; but requiring independent candidates to evidence a 'significant modicum of support'20 is not unconstitutional. Demanding signatures equal in number to 3% or 5% of the vote in the last election is not invalid on its face, see Jenness v. Fortson, supra, and with a 500-signature limit in any event, the argument that the statute is unduly burdensome approaches the frivolous.
26
It is true that those who have voted in the party primaries are ineligible to sign an independent candidate's petition. In theory at least, the consequence of this restriction is that the pool of eligible signers of an independent candidate's petition, calculated by subtracting from all eligible voters in the 1972 primaries all those who voted in the primary and then adding new registrations since the closing of the registration books, could be reduced nearly to zero or to so few qualified electors that securing even 500 of them would be an impractical undertaking. But this likelihood seems remote, to say the least, particularly when it will be very likely that a substantial percentage, perhaps 25%, of the total registered voters will not turn out for the primary and will thus be eligible to sign petitions,21 along with all new registrants since the closing of the registration books prior to the primary. In any event, nothing in the record before us indicates what the total vote in the last election was in the districts at issue here, nothing showing what the primary vote would be or was in 1972, and nothing suggesting what the size of the pool of eligible signers might be. As the District Court noted, the independent candidates presented 'absolutely no factual basis in support of their claims' that Art. 13.50 imposed unduly burdensome requirements. 349 F.Supp., at 1284. Dunn and Hainsworth relied solely on the minimal 500-signature requirement. This was simply a failure of proof, and for that reason we must affirm the District Court's judgments with respect to these appellants.22
IV
27
In response to this Court's decision in Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972), invalidating the Texas filing-fee requirements, the state legislature enacted as a temporary measure the McKool-Stroud Primary Financing Law of 1972. Tex.Election Code, Art. 13.08c—1.23 The statute generally provided for public financing from state revenues for primary elections of only those political parties casting 200,000 or more votes for governor in the last preceding general election. On its face, therefore, the law precluded any payment of state funds to minor political parties to reimburse them for the costs incurred in conducting their nominating and ballot qualification processes.24 In all, over $3,000,000 was appropriated by the state legislature to the two major political parties to defray their expenses in connection with the 1972 primary elections. Brief for American Party of Texas 19—20, n. 41.
28
The District Court rejected all constitutional challenges to the law, noting that the statute was designed to compensate for primary election expenses and that '(t)he convention and petition procedure available for small or new parties carries with it none of the expensive election requirements burdening those parties required to conduct primaries,' 349 F.Supp., at 1285. The District Court also emphasized that in response to the State's argument in Bullock v. Carter that state financing of primary elections would necessitate defining those political parties entitled to financial aid and would invite new charges of discrimination, this Court pointed out that under Texas law only those parties whose gubernatorial candidates received more than 200,000 votes were required to conduct primaries and said '(w)e are not persuaded that Texas would be faced with an impossible task in distinguishing between political parties for the purpose of financing primaries.' 405 U.S., at 147, 92 S.Ct., at 858.25
29
We affirm the judgment of the District Court. All political parties who desire ballot position, including the major parties, must hold precinct, county, and state conventions. See, e.g., Tex.Election Code, Arts. 13.33, 13.34, 13.35, 13.38, 13.45, 13,45a, 13.47 (1967, Supp.1973, Supp.1974). The State reimburses political parties for none of the expenses in carrying out these procedures. New parties and those with less than 2% of the vote in the last election are permitted to nominate their candidates for office in the course of their convention proceedings. The major parties may not do so and must conduct separate primary elections. As we understand it, it is the expense of these primaries that the State defrays in whole or in part. As far as the record before us shows, none of these reimbursed primary expenses are incurred by minority parties not required to hold primaries. They must undergo expense, to be sure, in holding their conventions and accumulating the necessary signatures to qualify for the ballot, but we are not persuaded that the State's refusal to reimburse for these expenses is any discrimination at all against the smaller parties and if it is, that it is also a denial of the equal protection of the laws within the meaning of the Fourteenth Amendment. We are unconvinced, at least based upon the facts presently available, that this financing law is an 'exclusionary mechanism' which 'tends to deny some voters the opportunity to vote for a candidate of their choosing' or that it has 'a real and appreciable impact on the exercise of the franchise.' Bullock v. Carter, 405 U.S., at 144, 92 S.Ct., at 856.
30
We should also point out that the appellant American Party mounts the major challenge to the primary financing law. The party, however, failed to qualify for the general election ballot; and we cannot agree that the State, simply because it defrays the expenses of party primary elections, must also finance the efforts of every nascent political group seeking to organize itself and unsuccessfully attempting to win a place on the general election ballot.
V
31
Under Art. 5.05 (Supp.1974) otherwise qualified voters in Texas may vote absentee in a primary or general election by personal appearance at the county clerk's office or by mail. It is the State's practice, however, to print on the absentee ballot only the names of the two major, established political parties, the Democrats and the Republicans. Raza Unida Party v. Bullock, 349 F.Supp., at 1283—1284.
32
The District Court sustained the exclusion of minority parties from the absentee ballot, relying on the presumption of constitutionality of state laws, McDonald v. Board of Election Comm'rs, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969), and the rationality of not incurring the expense of printing absentee ballots for parties without substantial voter support. The Socialist Workers Party, however, satisfied the statutory requirement for demonstrating the necessary community support needed to win general ballot position for its candidates, and with respect to this appellant, the unavailability of the absentee ballot is obviously discriminatory. The State offered no justification for the difference in treatment in the District Court, did not brief the issue here, and had little to say in oral argument to justify the discrimination.
33
We have twice since McDonald v. Board of Election Comm'rs dealt with alleged discriminations in the availability of the absentee ballot, Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973); O'Brien v. Skinner, 414 U.S. 524, 94 S.Ct. 740, 38 L.Ed. 702 (1974). From the latter case, it is plain that permitting absentee voting by some classes of voters and denying the privilege to other classes of otherwise qualified voters in similar circumstances, without affording a comparable alternative means to vote, is an arbitrary discrimination violative of the Equal Protection Clause. Plainly, the District Court in this case employed an erroneous standard in judging the Texas absentee voting law as it was applied in this case. We therefore vacate the judgment of the District Court in No. 72—887 in this respect and remand the Socialist Workers Party case to the District Court for further consideration in light of Goosby v. Osser and O'Brien v. Skinner. In all other respects, that judgment is affirmed, as is the judgment in No. 72—942.
34
Affirmed in part, vacated and remanded in part.
35
Mr. Justice DOUGLAS, dissenting in part.
36
While I agree with the Court on the absentee ballot aspect of these cases, I dissent on the main issue. These cases involve appeals from the dismissal of actions seeking declaratory and injunctive relief against provisions of the Texas Election Code relating to minority parties and independent candidates. The District Court noted that:
37
'While the Supreme Court of the United States has delineated on the extreme end of the spectrum those combinations of restrictions which unconstitutionally impede the election process (Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968)), and those on the other end which do not (Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971)), this case presents a new combination which falls squarely in the middle.' Raza Unida Party v. Bullock, 349 F.Supp. 1272, 1275—1276 (W.D.Tex.1972).
38
The hurdles facing minority parties such as the American Party of Texas in seeking to place nominees on the ballot are set out and compared with those of Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, in my opinion dissenting from the denial of a temporary restraining order in American Party of Texas v. Bullock, 409 U.S. 803, 93 S.Ct. 25, 34 L.Ed.2d 63.1 I there noted that:
39
'We said in Jenness v. Fortson, supra, (403 U.S.) at 438 (91 S.Ct. at 1970), 'Georgia's election laws, unlike Ohio's, do not operate to freeze the status quo.' Texas, though not as severe as Ohio, works in that direction. It therefore seems to me, at least prima facie, to impose an invidious discrimination on the unorthodox political group.
40
'Perhaps full argument would dispel these doubts. But they are so strong that I would grant the requested stay . . ..' Id., at 806, 93 S.Ct., at 27.
41
Oral argument has failed to dispel the doubts. For the reasons stated in American Party of Texas v. Bullock, supra, I believe that the totality of the requirements imposed upon minority parties works an invidious and unconstitutional discrimination.
42
An analysis of the requirements imposed on independent candidates leads me to the same conclusion.2 Under the procedures reviewed in Jenness, independent candidates seeking a ballot position had six months to secure the signatures of 5% of the eligible electorate for the office in question. The percentage required in Texas ranges, according to the office, from 1% of the last statewide gubernatorial vote to 5% of the last local gubernatorial vote, and in any case no more than 50 signatures are required; the candidate, however, has only 30 days in which to gather them. In Jenness a voter could sign a candidate's petition even though he had already signed or would sign others. Here no voter may sign the application of more than one candidate. In Jenness a voter who signed the petition of an independent was free thereafter to participate in a party primary and a voter who previously voted in a party primary was fully eligible to sign a petition. Here independents are not even allowed to seek signatures until after the major party primaries, and no voter who has participated in a party primary is allowed to sign an independent candidate's application. In Jenness no signature on a nominating petition had to be notarized, but that is not the case here.
43
In Jenness we were able to say that Georgia 'has insulated not a single potential voter from the appeal of new political voices within its borders.' 403 U.S., at 442, 91 S.Ct., at 1976. In Texas, however, the independent, like the minority party, must 'draw (his) support from the ranks of those who (are) either unwilling or unable to vote in the primaries of the established parties.' American Party of Texas v. Bullock, 409 U.S., at 806, 93 S.Ct., at 27. As with minority parties, I do not believe that Texas may constitutionally leave independent candidates to 'be content with the left-overs to get on the ballot.' Ibid.
1
Although the November 1972 election has been completed and this Court may not grant retrospective relief that would affect the outcome, this case is not moot. See Rosario v. Rockefeller, 410 U.S. 752, 756 n. 5, 93 S.Ct. 1245, 1249, 36 L.Ed.2d 1 (1973); see also Storer v. Brown, 415 U.S. 724, at 737 n. 8, 94 S.Ct. 1274, at 1282, 39 L.Ed.2d 714.
2
The District Court dismissed the complaints of the Texas Socialist Workers Party and another minority party, La Raza Unida, insofar as they challenged Art. 13.45(2) (Supp.1973) of the Election Code, V.A.T.S., because they lacked standing in view of their later certification by appellee for a place on the general ballot. Raza Unida Party v. Bullock, 349 F.Supp. 1272, 1276 (W.D.Tex.1972) La Raza Unida has not appealed and the Socialist Workers Party, although an
appellant here, does not appear to challenge the District Court's judgment that it had no standing to challenge Art. 13.45(2). The District Court's dismissal, however, did not go beyond the attack on Art. 13.45(2). It does not appear that ballot qualification would affect the standing of the Socialist Workers Party to challenge the Texas Primary Financing Law or the denial of absentee voting privileges to it. Both issues were presented in the Jurisdictional Statement filed by the party and appear as minor themes in the Party's brief on the merits.
3
Texas also allows write-in votes in most elections, and they are counted. Tex.Election Code, Arts. 6.05, 6.06 (Supp.1974).
4
'On primary election day in 1952 and every two (2) years thereafter, candidates for Governor and for all other State offices to be chosen by vote of the entire State, and candidates for Congress and all district offices to be chosen by the vote of any district comprising more than one (1) county, to be nominated by each organized political party that cast two hundred thousand (200,000) votes or more for governor at the last general election, shall, together with all candidates for offices to be filled by the voters of a county, or of a portion of a county, be nominated in primary elections by the qualified voters of such party.' Tex.Election Code, Art. 13.02 (1967).
We describe the law as it existed in 1972. While these cases were pending in this Court, the Texas Legislature amended Art. 13.02 of the Election Code to the extent that the mandatory primary election requirement, and the resulting automatic general election ballot position, are now triggered only when an organized political party casts
20%, or more of the votes cast for governor at the last general election and not the previous 200,000 votes. At oral argument, counsel for appellants maintained that the Texas Legislature raised the automatic ballot qualification figure to 20% after the La Raza Unida Party gubernatorial candidate polled more than 2% of the total vote in the 1972 general election. Counsel further intimated that the law will be changed again should a minority party fulfill the new requirements. Tr. of Oral Arg. 7—8. Whatever their merits, we do not reach these contentions. The issues in this case revolve principally around the signature requirements for minority parties and independent candidates and are unaffected by the above amendment or by the amendment referred to in n. 5, infra.
5
'Any political party whose nominee for Governor in the last preceding general election received as many as two percent of the total votes cast for Governor and less than two hundred thousand votes, may nominate candidates for the general election by primary elections held in accordance with the rules provided in this code, for the primary elections of parties whose candidate for Governor received two hundred thousand or more votes at the last general election; or such party may nominate candidates for the general election by conventions as provided in (Arts. 13.47 and 13.48).' Tex.Election Code, Art. 13.45(1) (Supp.1973).
During the pendency of these cases in this Court, the Texas Legislature, in the same Act amending Art. 13.02, amended Art. 13.45(1). Starting in 1976, a political party whose nominee for governor in the last preceding general election received as many as 2% but less than 20% of the total votes cast for governor must nominate its candidates for the general election by conventions. For the 1974 elections, however, the amendment to Art. 13.45(1) provides that those political parties receiving between
2% and 20% of the 1972 gubernatorial vote will continue to have a choice between primary elections and conventions.
6
'Any political party whose nominee for governor received less than two percent of the total votes cast for governor in the last preceding general election, or any new party, or any previously existing party which did not have a nominee for governor in the last preceding general election, may also nominate candidates by conventions as provided in (Arts. 13.47 and 13.48), but in order to have the names of its nominees printed on the general election ballot there must be filed with the secretary of state, within 20 days after the date for holding the party's state convention, the list of participants in precinct conventions held by the party in accordance with (Arts. 13.45a and 13.47) of this code, signed and certified by the temporary chairman of each respective precinct convention, listing the names, addresses (including street address or post-office address), and registration certificate numbers of qualified voters attending such precinct conventions in an aggregate number of at least one percent of the total votes cast for governor at the last preceding general election; or if the number of qualified voters attending the precinct conventions is less than that number, there must be filed along with the precinct lists a petition requesting that the names of the party's nominees be printed on the general election ballot, signed by a sufficient number of additional qualified voters to make a combined total of at least one percent of the total votes cast for governor at the last general election. The address and registration certificate
number of each signer shall be shown on the petition. No person who, during that voting year, has voted at any primary election or participated in any convention of any other party shall be eligible to sign the petition. To each person who signs the petition there shall be administered the following oath, which shall be reduced to writing and attached to the petition: 'I know the contents of the foregoing petition, requesting that the names of the nominees of the _ _ Party be printed on the ballot for the next general election. I am a qualified voter at the next general election under the constitution and laws in force, and during the current voting year I have not voted in any primary election or participated in any convention held by any other political party.' The petition may be in multiple parts. One certificate of the officer administering the oath may be so made as to apply to all to whom it was administered. The petition may not be circulated for signatures until after the date set by (Art. 13.03) of this code for the general primary election. Any signatures obtained on or before that date are void. Any person who signs a petition after having voted in a primary election or participated in a convention of any other party during the same voting year is guilty of a misdemeanor and upon conviction shall be fined not less than $100 nor more than $500.
'The chairman of the state executive committee shall be responsible for forwarding the precinct lists and petition to the secretary of state.
'At the time the secretary of state makes his certifications to the county clerks as provided in (Art. 1.03) of this code, he shall also certify to the county clerks the names of parties subject to this subdivision which have complied with its requirements, and the county clerks shall not place on the ballot the names of any nominees of such a party which have been certified directly to them unless the secretary of state certifies that the party has complied with these requirements.' Tex.Election Code, Art. 13.45(2) (Supp.1973).
7
'The name of a nonpartisan or independent candidate may be printed on the official ballot in the column for independent can-
didates, after a written application signed by qualified voters addressed to the proper officer, as herein provided, and delivered to him within thirty days after the second primary election day, as follows:
'If for an office to be voted for throughout the state, the application shall be signed by one per cent of the entire vote of the state cast for Governor at the last preceding general election, and shall be addressed to the Secretary of State.
'If for a district office in a district composed of more than one county, the application shall be signed by three per cent of the entire vote cast for Governor in such district at the last preceding general election, and shall be addressed to the Secretary of State.
'If for a district office in a district composed of only one county or part of one county, the application shall be signed by five per cent of the entire vote cast for Governor in such district at the last preceding general election, and shall be addressed to the Secretary of State.
'If for a county office, the application shall be signed by five per cent of the entire vote cast for Governor in such county at the last preceding general election, and shall be addressed to the county judge.
'If for a precinct office, the application shall be signed by five per cent of the entire vote cast for Governor in such precinct at the last preceding general election, and shall be addressed to the county judge.
'Notwithstanding the foregoing provisions, the number of signatures required on an application for any district, county, or precinct office need not exceed five hundred.
'No application shall contain the name of more than one candidate. No person shall sign the application of more than one candidate for the same office; and if any person signs the application of more than one candidate for the same office, the signature shall be void as to all such applications. No person shall sign such application unless he is a qualified voter, and no person who has voted at either the general primary election or the runoff primary election of any party shall sign an application in favor of anyone for
an office for which a nomination was made at either such primary election.
'The application shall contain the following information with respect to each person signing it: his address and the number of his poll tax receipt or exemption certificate and the county of issuance; or if he is exempt from payment of a poll tax and not required to obtain an exemption certificate, the application shall so state.
'Any person signing the application of an independent candidate may withdraw and annul his signature by delivering to the candidate and to the officer with whom the application is filed (or is to be filed, if not then filed), his written request, signed and duly acknowledged by him, that his signature be cancelled and annulled. The request must be delivered before the application is acted on, and not later than the day preceding the last day for filing the application. Upon such withdrawal, the person shall be free to sign the application of another candidate for the same office.' Tex.Election Code, Art. 13.50 (1967).
'To every citizen who signs such application, there shall be administered the following oath, which shall be reduced to writing and attached to such application: 'I know the contents of the foregoing application; I have not participated in the general primary election or the runoff primary election of any party which has nominated, at either such election, a candidate for the office for which I desire _ _ (here insert the name of the candidate) to be a candidate; I am a qualified voter at the next general election under the Constitution and laws in force and have signed the above application of my own free will.' One certificate of the officer before whom the oath is taken may be so made as to apply to all to whom it was administered.' Art. 13.51 (1967).
8
Prior to the convening of the three-judge court, the single-judge District Court had temporarily restrained appellee from refusing to accept and file supplemental nominating petitions obtained by the American Party of Texas between the statutory
deadline for filing them, June 30, 1972, and September 1, 1972. During the additional court-ordered circulation period, the American Party of Texas garnered 17,678 additional signatures, bringing their total to over 25,000. Brief for American Party of Texas 5. In its final order, the three-judge District Court dissolved the restraining order and declared all signatures gathered during the extended period to be null and void. 349 F.Supp., at 1286. This Court denied a subsequent application for a temporary restraining order, 409 U.S. 803, 93 S.Ct. 25, 34 L.Ed.2d 63 (1972).
9
Tr. of Oral Arg. 24.
10
Appellants also challenged two aspects of the Texas Election Code unrelated to ballot qualification: exclusion from public financing for nomination and ballot qualification expenses and restrictions on the availability of absentee ballots. These provisions are discussed separately in Parts IV and V, infra.
The American Party and Texas New Party challenged in the District Court on equal protection and due process grounds the requirement of Art. 13.47a(1) (1967) that a person seeking nomination as a minority party candidate comply with Art. 13.12 and file a declaration to this effect approximately three months before the party primaries and conventions. The District Court upheld this provision, noting that it applied to all political parties. In this Court, only the Texas New Party has discussed this restriction. While this appellant seems to be arguing that this requirement, along with all others imposed upon minority political parties, makes its ballot
qualification more burdensome, we are unable to distinguish this contention from the party's overall attack on the Texas statutory scheme. As such, it must fail for the reasons discussed in Part II of the opinion. Moreover, appellant readily concedes that '(t)his requirement is identical to that imposed upon prospective candidates for a major party nomination by Art. 13.12.' Brief for Texas New Party 7. We do not understand appellant to be arguing that the State may impose no deadline for declaring one's candidacy. Nor do we read its brief on the merits as challenging the reasonableness of the three-month benchmark chosen by Texas. Under these circumstances, we affirm the judgment of the District Court on this point.
11
'The right to form a party for the advancement of political goals means little if a party can be kept off the election ballot and thus denied an equal opportunity to win votes. So also, the right to vote is heavily burdened if that vote may be cast only for one of two parties at a time when other parties are clamoring for a place on the ballot. In determining whether the State has power to place such unequal burdens on minority groups where rights of this kind are at stake, the decisions of this Court have consistently held that 'only a compelling state interest in the regulation of a subject within the State's constitutional power to regulate can justify limiting First Amendment freedoms.' NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340—341, 9 L.Ed.2d 405 (1963).' Williams v. Rhodes, 393 U.S. 23, 31, 89 S.Ct. 5, 11, 21 L.Ed.2d 24 (1968). See also Kusper v. Pontikes, 414 U.S. 51, at 56—59, 94 S.Ct. 303, at 307—308, 38 L.Ed.2d 260 (1973).
12
See, e.g., Tex.Election Code, Arts. 13.33, 13.34, 13.35, 13.37, 13.38 (1967, Supp.1973, Supp.1974).
13
'The fact is that there are obvious differences in kind between the needs and potentials of a political party with historically established broad support, on the one hand, and a new or small political organization on the other. (A State is not) guilty of invidious discrimination in recognizing these differences and providing different routes to the printed ballot. Sometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike, a truism well illustrated in Williams v. Rhodes, supra.' Jenness v. Fortson, 403 U.S. 431, 441—442, 91 S.Ct. 1970, 1976, 29 L.Ed.2d 554 (1971).
14
Appellants concede, as we think they must, that the objectives ostensibly sought by the State, viz., preservation of the integrity of the electoral process and regulating the number of candidates on the ballot to avoid undue voter confusion, are compelling. Brief for Texas New Party 18—19. See, e.g., Rosario v. Rockefeller, 410 U.S., at 761, 93 S.Ct., at 1251; Dunn v. Blumstein, 405 U.S. 330, 345, 92 S.Ct. 995, 1004, 31 L.Ed.2d 274 (1972); Bullock v. Carter, 405 U.S. 134, 145, 92 S.Ct. 849, 856 857, 31 L.Ed.2d 92 (1972); Williams v. Rhodes, 393 U.S., at 32, 89 S.Ct., at 11. As we said only recently in Jenness v. Fortson, supra, 403 U.S., at 442, 91 S.Ct., at 1976:
'There is surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization's candidate on the ballot—the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the general election.'
15
The District Court balanced this lenient 1% petition requirement against what it thought was a somewhat burdensome requirement of precinct, county, and state conventions and concluded that, as a whole, the system was valid. Actually, save the precinct nominating conventions, the party nominating convention process is unrelated to ballot qualification and corresponds more to the democratic management of the political party's internal affairs.
16
As we have already indicated, the nominees of the two major parties are automatically placed on the general election ballot, but this is only because these parties have recently demonstrated substantial voter appeal. Texas has chosen this reasonable way to measure public support for the more established political parties. We do not understand appellants to argue that the Democratic and Republican Parties in Texas must also be required to circulate petitions and garner the requisite 1% showing. We further doubt that appellants would care to be forced to conduct a primary election in every precinct in each of Texas' 254 counties. Cf. Jenness v. Fortson, supra, 403 U.S., at 441, 91 S.Ct., at 1975—1976. Moreover, the major parties, like their smaller or newer counterparts, must satisfy the same statutory qualifications as to declaration of candidacy, certifications of nominating process results, and the like. Texas has provided alternative routes to the ballot—statewide primaries and precinct conventions—and it is problematical at best which is more onerous in fact. It is sufficient to note that the system does not create or promote a substantial imbalance in the relative difficulty of each group to qualify for the ballot.
17
The parties have not brought to our attention any decision holding that as a constitutional matter, a State is obligated to allow a voter to vote in a party primary and sign a nominating petition. It is true that under the Georgia system in Jenness v. Fortson, supra, the State had apparently decided that its legitimate goals would not be compromised by allowing voters to sign a petition even though they have signed others and participated in a party primary. Nothing in that decision, however, can be read to impose upon the States the affirmative duty to allow voters to move freely from one to the other method of nominating candidates for the same public office. This reading becomes all the more evident in light of the fact that Jackson v. Ogilvie, 325 F.Supp. 864 (ND Ill.1971), was affirmed on the same day that Jenness was decided 403 U.S. 925, 91 S.Ct. 2247, 29 L.Ed.2d 705. Indeed, the federal court decisions with which we are familiar agree with Jackson v. Ogilvie and reflect the views we adopt here. See, e.g., Moore v. Board of Elections for the District of Columbia, 319 F.Supp. 407 (DC 1970); Wood v. Putterman, 316 F.Supp. 646 (Md.), aff'd, 400 U.S. 859, 91 S.Ct. 104, 27 L.Ed.2d 99 (1970); Socialist Workers Party v. Rockefeller, 314 F.Supp. 984 (SDNY), aff'd, 400 U.S. 806, 91 S.Ct. 65, 27 L.Ed.2d 38 (1970).
18
The 55-day period for petition circulation terminates 120 days before the general election. We agree with the District Court that some cut off period is necessary for the Secretary of State to verify the validity of signatures on the petitions, to print the ballots, and, if necessary, to litigate any challenges. We also believe that in view of the overall statutory scheme and particularly in light of the 'second chance' Texas affords smaller political parties to qualify by petition, the 120-day pre-election filing deadline is neither unreasonable nor unduly burdensome.
19
Tex.Election Code, Art. 14.01.
20
Jenness v. Fortson, 403 U.S., at 442, 91 S.Ct., at 1976; see supra, at 782.
21
This 25% approximation may actually be a conservative projection. Voting statistics compiled by the Office of Secretary of State indicate that 2,306,910 votes were cast for governor in the first 1972 Texas primaries of both parties and 2,036,770 in the runoff primary elections. As of January 31, 1972, the last date before the primaries on which aggregate statewide statistics are available, 3,872,462 voters had registered in Texas. Thus, without accounting for any increased registration by the time of the primaries, registered voter turnout ranged from approximately 60% to 53%, respectively. It is, of course, conceivable that some voters participating in the runoff primaries had not voted in the first primary, thereby raising to some figure higher than 60% those voters who were disqualified under Texas law from signing the nominating peti-
tions of independent candidates. We are nevertheless unwilling to assume based on the evidence before us that this would be such a high number of voters that independent candidates would be left with an insignificant pool of eligible voters to sign their petitions.
Comparative voting statistics on primary election participation in other States also suggest that the 25% estimate is modest. In California, for example, official figures reveal the following percentage of total registered voters at all party primaries for the past seven biennial elections:
1960 62.80%
1962 63.53%
1964 71.94%
1966 64.67%
1968 72.21%
1970 62.23%
1972 70.95%
California Secretary of State, Statement of Vote, Consolidated Primary Election, June 6, 1972, p. 3.
The 1972 Democratic Party presidential primaries in Florida and Massachusetts witnessed voter turnout of approximately 59% and 56%, respectively. 30 Congressional Quarterly 481, 862, 1655 (1972). The realistic prospect of a postprimary pool of much higher than 25% is even greater in light of the fact that Texas has traditionally trailed behind national voter participation averages by a sizable margin. C. McCleskey, The Government and Politics of Texas 38 (4th ed. 1972).
22
The independent candidates also challenged the notary provision of Art. 13.51. Nothing that we have been shown, however, convinces us that the notarial requirement for independent candidates is more suspect or burdensome than that imposed upon the political parties. See supra, at 787.
23
Since it was a temporary measure, this primary financing legislation has expired and it has been replaced by new legislation, the Primary Conduct and Financing Law of 1974. Tex.Election Code, Art. 13.08c—2 (Supp.1974). This scheme provides for a schedule of candidate filing fees for access to the general primary election ballot. The filing fee is waived should the primary candidate file a nominating petition signed by a designated number of voters. Those filing fees paid to the county chairman of a political party holding a primary election are used to pay the party's primary expenses. Any remaining costs are defrayed by the State in accordance with a voucher system substantially identical to that provided in the McKool-Stroud Primary Financing Law of 1972 challenged by appellants. The new legislation is also comparable to its predecessor insofar as only those political parties required to conduct primary elections, which under recent amendments to the Texas Election Code are only those parties polling 20% or more of the vote cast for governor in the last general election, see n. 4, supra, are eligible for state funding.
The recent amendments to the 1972 financing law have not mooted this controversy. If appellants were correct that they had been unconstitutionally deprived of public financing for their 1972 qualification and nomination expenses, they might be able to compel the State to reimburse them. Under these circumstances and in view of the special nature of election challenges in general and this short-term funding measure in particular, we proceed to evaluate appellants' claims on the merits.
24
The American Party has alleged that by virtue of the State's compulsory nominating and qualification procedures, it was forced to incur extraordinary costs, including the printing of 12,000 signature sheets, payment of at least 50% as a statutory notary fee for over 22,000 signatures, and expenditures for distributing, collecting, and filing petitions.
25
'Appellants strenuously urge that apportioning the cost among the candidates is the only feasible means for financing the primaries. They argue that if the State must finance the primaries, it will have to determine which political bodies are 'parties' so as to be entitled to state sponsorship for their nominating process, and that this will result in new claims of discrimination. Appellants seem to overlook the fact that a similar distinction is presently embodied in Texas law since only those political parties whose gubernatorial candidate received 200,000 or more votes in the last preceding general election are required to conduct primary elections. Moreover, the Court has recently upheld the validity of a state law distinguishing between political parties on the basis of success in prior elections. Jenness v. Fortson, supra. We are not persuaded that Texas would be faced with an impossible task in distinguishing between political parties for the purpose of financing primaries.' 405 U.S., at 147, 92 S.Ct., at 858 (footnote omitted).
1
As I there noted, minority parties whose gubernatorial candidate in the last election polled more than 2% of the total votes cast but less than 200,000 were allowed to select candidates through either primaries or nominating conventions. Tex.Election Code, Art. 13.45(1) (Supp.1972). The law has since been changed so that a minority party which fielded a gubernatorial candidate who polled more than 2% of the vote in the last election may not select candidates through primaries but must mominate through conventions unless the gubernatorial candidate polled more than 20% of the vote. Texas S.B.No.11, 63d Legislature, Regular Session, § 6 (1973), quoted in Supplemental Appendix to Brief for American Party of Tex. 14—15.
2
The requirements for independent candidates are set forth in Tex.Election Code, Art. 13.50 (1967):
'The name of a nonpartisan or independent candidate may be printed on the official ballot in the column for independent candidates, after a written application signed by qualified voters addressed to the proper officer, as herein provided, and delivered to him within thirty days after the second primary election day, as follows:
'If for an office to be voted for throughout the state, the application shall be signed by one per cent of the entire vote of the state cast for Governor at the last preceding general election, and shall be addressed to the Secretary of State.
'If for a district office in a district composed of more than one county, the application shall be signed by three per cent of the entire vote cast for Governor in such district at the last preceding general election, and shall be addressed to the Secretary of State.
'If for a district office in a district composed of only one county or part of one county, the application shall be signed by five per cent of the entire vote cast for Governor in such district at the last preceding general election, and shall be addressed to the Secretary of State.
'If for a county office, the application shall be signed by five per cent of the entire vote cast for Governor in such county at the last preceding general election, and shall be addressed to the county judge.
'If for a precinct office, the application shall be signed by five per cent of the entire vote cast for Governor in such precinct at the
last preceding general election, and shall be addressed to the county judge.
'Notwithstanding the foregoing provisions, the number of signatures required on an application for any district, county, or precinct office need not exceed five hundred.
'No application shall contain the name of more than one candidate. No person shall sign the application of more than one candidate for the same office; and if any person signs the application of more than one candidate for the same office, the signature shall be void as to all such applications. No person shall sign such application unless he is a qualified voter, and no person who has voted at either the general primary election or the runoff primary election of any party shall sign an application in favor of anyone for an office for which a nomination was made at either such primary election.
'The application shall contain the following information with respect to each person signing it: his address and the number of his poll tax receipt or exemption certificate and the county of issuance; or if he is exempt from payment of a poll tax and not required to obtain an exemption certificate, the application shall so state.
'Any person signing the application of an independent candidate may withdraw and annul his signature by delivering to the candidate and to the officer with whom the application is filed (or is to be filed, if not then filed), his written request, signed and duly acknowledged by him, that his signature be cancelled and annulled. The request must be delivered before the application is acted on, and not later than the day preceding the last day for filing the application. Upon such withdrawal, the person shall be free to sign the application of another candidate for the same office. Acts 1951, 52nd Leg., p. 1097, ch. 492, art. 227; as amended Acts 1963, 58th Leg., p. 1017, ch. 424, § 104.'
| 12
|
415 U.S. 814
94 S.Ct. 1262
39 L.Ed.2d 782
William C. HUDDLESTON, Petitioner,v.UNITED STATES.
No. 72-1076.
Argued Nov. 7, 1973.
Decided March 26, 1974.
Syllabus
Petitioner, a previously convicted felon, was convicted of violating 18 U.S.C. § 922(a)(6), a part of the Gun Control Act of 1968, by falsely stating, in connection with the redemption from a pawnbroker of three guns petitioner had pawned, that he had not been convicted of a crime punishable by imprisonment for more than a year. The pawnbroker was a federally licensed firearms dealer. The Court of Appeals affirmed. Section 922(a)(6) makes it an offense knowingly to make a false statement 'in connection with the acquisition . . . of any firearm . . . from a . . . licensed dealer' and 'intended or likely to deceive such . . . dealer . . . with respect to any fact material to the lawfulness of the sale or other disposition of such firearm . . ..' Held: Section 922(a)(6) applies to the redemption of a firearm from a pawnshop. Pp. 819-833.
(a) Petitioner's contention that the statute covers only a sale-like transaction is without merit, since 'acquisition' as used in § 922(a)(6) clearly includes any person, by definition, who 'comes into possession, control, or power of disposal' of a firearm. Moreover, the statutory terms 'acquisition' and 'sale or other disposition' are correlatives. It is reasonable to conclude that a pawnbroker might 'dispose' of a firearm through a redemptive transaction. Finally, Congress explicitly included pawnbrokers in the Gun Control Act, specifically mentioned pledge and pawn transactions involving firearms, and did not include them in the statutory exemptions. Pp. 819-823.
(b) That pawnshop firearms redemptions are covered by the challenged provision comports with the legislative history of Title IV of the Omnibus Crime Control and Safe Streets Act of 1968 and the Gun Control Act of 1968, which are aimed at controlling access to weapons by those whose possession thereof is contrary to the public interest, through a regulatory scheme focusing on the federally licensed firearms dealer. Pp. 824-829.
(c) Section 922(a)(6) contains no ambiguity warranting a narrow construction in petitioner's favor, and application of the statute to the pawn redemptions here raises no issue of constitutional dimension. Pp. 830-833.
472 F.2d 592, affirmed.
Harvey I. Saferstein, Los Angeles, Cal., for the petitioner.
Danny Julian Boggs, Bowling Green, Ky., for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This case presents the issue whether 18 U.S.C. § 922(a)(6),1 declaring that it is unlawful knowingly to make a false statement 'in connection with the acquisition . . . of any firearm . . . from a . . . licensed dealer,' covers the redemption of a firearm from a pawnshop.
2
* On October 6, 1971, petitioner, William C. Huddleston, Jr., pawned his wife's Winchester 30-30-caliber rifle for $25 at a pawnshop in Oxnard, California. On the following October 15 and on December 28, he pawned at the same shop two other firearms, a Russian 7.62-caliber rifle and a Remington .22-caliber rifle, belonging to his wife. For these he received loans of $10 and $15, respectively. The owner of the pawnshop was a federally licensed firearms dealer.
3
Some weeks later, on February 1, 1972, and on March 10, Huddleston redeemed the weapons. In connection with each of the redemptions, the pawnbroker required petitioner to complete Treasury Form 4473, entitled 'Firearms Transaction Record.' This is a form used in the enforcement of the gun control provision of Title IV of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. 90-351, 82 Stat. 225, as amended by the Gun Control Act of 1968, Pub.L. 90-618, 82 Stat. 1213, of which the above-cited 18 U.S.C. § 922(a)(6) is a part. Question 8b of the form is:
4
'Have you been convicted in any court of a crime punishable by imprisonment for a term exceeding one year? (Note: The actual sentence given by the judge does not matter—a yes answer is necessary if the judge could have given a sentence of more than one year.)'
5
The question is derived from the statutory prohibition against a dealer's selling or otherwise disposing of a firearm to any person who 'has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.' 18 U.S.C. § 922(d)(1).2 Petitioner answered 'no' to Question 8b on each of the three Forms 4473. He then affixed his signature to each form's certification that the answers were true and correct, that he understood that a person who answers any of the questions in the affirmative is prohibited by federal law from 'purchasing and/or possessing a firearm,' and that he also understood that the making of any false statement with respect to the transaction is a crime punishable as a felony.
6
In fact, Huddleston, six years earlier, had been convicted in a California state court for writing checks without sufficient funds, an offense punishable under California law by a maximum term of 14 years.3 This fact, if revealed to the pawnshop proprietor, would have precluded the proprietor from selling or otherwise disposing of any of the rifles to the petitioner because of the proscription in 18 U.S.C. § 922(d)(1).
7
Huddleston was charged in a three-count indictment with violating 18 U.S.C. §§ 922(a)(6) and 924(a).4 He moved to dismiss the indictment, in part on the ground that § 922(a)(6) was never intended to apply, and should not apply, to a pawnor's redemption of a weapon he had pawned. This motion was denied. Petitioner then pleaded not guilty and waived a jury trial.
8
The Government's evidence consisted primarily of the three Treasury Forms 4473 Huddleston had signed; the record of his earlier California felony conviction; and the pawnbroker's federal license. A Government agent also testified that petitioner, after being arrested and advised of his rights, made statements admitting that he had known, when filling out the forms, that he was a felon and that he had lied each time when he answered Question 8b in the negative.
9
Huddleston testified in his own defense. He stated that he did not knowingly make a false statement; that he did not read the form and simply answered 'no' upon prompting from the pawnbroker; and that he was unaware that his California conviction was punishable by a term exceeding one year.5
10
The District Judge found the petitioner guilty on all counts. He sentenced Huddleston to three concurrent three-year terms. The sentences were suspended, however, except for 20 days to be served on weekends. The United States Court of Appeals for the Ninth Circuit, by a divided vote, affirmed the conviction. 472 F.2d 592 (1973). The dissenting judge agreed that the statute was constitutional as applied, but concluded that what Huddleston did was to 'reacquire' the rifles, and that 'reacquire' is not necessarily included within the statute's term 'acquire.' Id., at 593. We granted certiorari, 411 U.S. 930, 93 S.Ct. 1898, 36 L.Ed.2d 389 (1973), to resolve an existing conflict among the circuits on the issue whether the prohibition against making false statements in connection with the acquisition of a firearm covers a firearm's redemption from a pawnshop.6
II
11
Petitioner's assault on the statute under which he was convicted is two pronged. First, it is argued that both the statute's language and its legislative history indicate that Congress did not intend a pawnshop redemption of a firearm to be an 'acquisition' covered by the statute. Second, it is said that even if Congress did intend a pawnshop redemption to be a covered 'acquisition,' the statute is so ambiguous that its construction is controlled by the maxim that ambiguity in a criminal statute is to be resolved in favor of the defendant.
12
We turn first to the language and structure of the Act. Reduced to a minimum, § 922(a)(6) relates to any false statement made 'in connection with the acquisition . . . of any firearm' from a licensed dealer and intended or likely to deceive the dealer 'with respect to any fact material to the lawfulness of the sale or other disposition of such firearm.'
13
Petitioner attaches great significance to the word 'acquisition.' He urges that it suggests only a sale-like transaction. Since Congress in § 922(a)(6) did not use words of transfer or delivery, as it did in other sections of the Act, he argues that 'acquisition' must have a narrower meaning than those terms. Moreover, since a pawn transaction is only a temporary bailment of personal property, with the pawnshop having merely a security interest in the pledged property, title or ownership is constant in the pawnor, and the pawnplus-redemption transaction is no more than an interruption in the pawnor's possession. The pawnor simply repossesses his own property, and he does not 'acquire' any new title or interest in the object pawned. At most, he 'reacquires' the object, and reacquisition, as the dissenting judge in the Court of Appeals noted, is not necessarily included in the statutory term 'acquisition.'
14
On its face, this argument might be said to have some force. A careful look at the statutory language and at complementary provisions of the Act, however, convinces us that the asserted ambiguity is contrived. Petitioner is mistaken in focusing solely on the term 'acquisition' and in enshrouding it with an extra-statutory 'legal title' or 'ownership' analysis. The word 'acquire' is defined to mean simply 'to come into possession, control, or power of disposal of.' Webster's New International Dictionary (3d ed., 1966, unabridged); United States v. Laisure, 460 F.2d 709, 712 n. 3 (CA5 1972). There is no intimation here that title or ownership would be necessary for possession, or control, or disposal power, and there is nothing else in the statute that justifies the imposition of that gloss. Moreover, a full reading of § 922(a)(6) clearly demonstrates that the false statements that are prohibited are those made with respect to the lawfulness of the sale 'or other disposition' of a firearm by a licensed dealer. The word 'acquisition,' therefore, cannot be considered apart from the phrase 'sale or other disposition.' As the Government suggests, and indeed as the petitioner implicitly reasoned at oral argument, Tr. of Oral Arg. 11, if the pawnbroker 'sells' or 'disposes' under § 922(a)(6), the transferee necessarily 'acquires.' These words, as used in the statute, are correlatives. The focus of our inquiry, therefore, should be to determine whether a 'sale or other disposition' of a firearm by a pawnbroker encompasses the redemption of the firearm by a pawnor.
15
Clearly, a redemption is not a 'sale' for the simple reason that a sale has definite connotations of ownership and title. Some 'other disposition' of a firearm, however, could easily encompass a pawnshop redemption. We believe that it does.
16
It is the dealer who sells or disposes of the firearm. The statute defines the dealer to be:
17
'(A) any person engaged in the business of selling firearms or ammunition at wholesale or retail, (B) any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms, or (C) any person who is a pawnbroker.' 18 U.S.C. § 921(a)(11) (emphasis supplied).
18
It defines a 'pawnbroker' as 'any person whose business or occupation includes the taking or receiving, by way of pledge or pawn, of any firearm or ammunition as security for the payment or repayment of money.' 18 U.S.C. § 921(a)(12) (emphasis supplied).
19
These definitions surely suggest that a 'sale or other disposition' of a firearm in a pawnshop is covered by the statute. This, of course, does not of itself resolve the question as to exactly what 'other disposition' by a pawnbroker is included. It should be apparent, however, that if Congress had intended to include only a pawnbroker's default sales of pledged or pawned goods, or his wholesale and retail sales of nonpawned goods, and to exclude the redemption of pawned articles, then the explicit inclusion of the pawnbroker in the definition of 'dealer' would serve no purpose, since part (A) of the definition, covering wholesale and retail sales, would otherwise reach all such sales. United States v. Rosen, 352 F.Supp. 727, 729 (D.C. Idaho 1973). At oral argument counsel suggested that the specific reference to a pawnbroker might have been intended to include 'disposition' by barter, swap, trade, or gift. Tr. of Oral Arg. 5-7. This interpretation strains belief. Trades or gifts are not peculiar to pawnbrokers. Wholesalers and retailers may indulge in such dispositions. There is nothing in the legislative history to indicate that this interpretation prompted the specific mention of a pawnbroker in part (C) of the definition. To the contrary, the committee reports indicate that part (C) 'specifically provides that a pawnbroker dealing in firearms shall be considered a dealer.' H.R.Rep.No.1577, 90th Cong., 2d Sess., (1968) (emphasis supplied). See also S.Rep.No.1501, 90th Cong., 2d Sess., 30 (1968), U.S.Code Cong. & Admin.News 1968, p. 4417.
20
We also cannot ignore the explicit reference to a firearm transaction 'by way of pledge or pawn' in the statutory definition of 'pawnbroker' in § 921(a)(12). Had Congress' desire been to exempt a transaction of this kind, it would have artfully worded the definition so as to exclude it. We are equally impressed by Congress' failure to exempt redemptive transactions from the prohibitions of the Act when it so carefully carved out exceptions for a dealer 'returning a firearm' and for an individual mailing a firearm to a dealer 'for the sole purpose of repair or customizing.' § 922(a)(2)(A). Petitioner contends that a redemptive transaction is no different from the return of a gun left for repair. His argument is that the pawned weapon is simply 'returned' to the individual who left it and represents a mere restoration to its original status. We believe, however, that it was not unreasonable for Congress to choose to view the pawn transaction as something more than the mere interruption in possession typical of repair. The fact that Congress thought it necessary specifically to exempt the repair transaction indicates that it otherwise would have been covered and, if this were so, clearly a pawn transaction likewise would be covered.
21
Other provisions of the Act also make it clear that the statute generally covers all transfers of firearms by dealers to recipients. Section 922(a)(1) makes it unlawful for any person, except a licensed importer, manufacturer, or dealer, to engage in the business of 'dealing' in firearms, or in the course of such business 'to ship, transport, or receive any firearm.' Section 922(b)(1) makes it unlawful for a dealer 'to sell or deliver' firearms of specified types to persons under 18 or 21 years of age. Section 922(b)(2) makes it unlawful for a dealer to 'sell or deliver' a weapon to a person in any State where 'at the place of sale, delivery or other disposition,' the transfer would violate local law. Section 922(d) makes it unlawful for a dealer 'to sell or otherwise dispose of' a firearm to a person under a felony indictment, a felon, a fugitive, a narcotic addict, or a mental defective. Section 923(g) requires that each licensed dealer maintain 'records of importation, production, shipment, receipt, sale, or other disposition, of firearms.'
22
In sum, the word 'acquisition,' as used in § 922(a)(6), is not ambiguous, but clearly includes any person, by definition, who 'come[s] into possession, control, or power of disposal' of a firearm. As noted above, 'acquisition' and 'sale or other disposition' are correlatives. It is reasonable to conclude that a pawnbroker might 'dispose' of a firearm through a redemptive transaction. And because Congress explicitly included pawnbrokers in the Act, explicitly mentioned pledge and pawn transactions involving firearms, and clearly failed to include them among the statutory exceptions, we are not at liberty to tamper with the obvious reach of the statute in proscribing the conduct in which the petitioner engaged.
III
23
The legislative history, too, supports this reading of the statute. This is apparent from the aims and purposes of the Act and from the method Congress adopted to achieve those objectives. When Congress enacted the provisions under which petitioner was convicted, it was concerned with the widespread traffic in firearms and with their general availability to those whose possession thereof was contrary to the public interest. Pub.L. 90-351, § 1201, 82 Stat. 236, as amended by Pub.L. 90-618, § 301(a)(1), 82 Stat. 1236, 18 U.S.C.App. § 1201. Congress determined that the ease with which firearms could be obtained contributed significantly to the prevalence of lawlessness and violent crime in the United States. S.Rep. No. 1097, 90th Cong., 2d Sess., 108 (1968) U.S.Code Cong. & Admin.News 1968, p. 2112. The principal purpose of the federal gun control legislation, therefore, was to crub crime by keeping 'firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency.' S.Rep. No. 1501, 90th Cong., 2d Sess., 22 (1968). U.S.Code Cong. & Admin.News 1968, p. 4410.
24
Title IV of the Omnibus Crime Control and Safe Streets Act of 1968 and the Gun Control Act of 1968 are thus aimed at restricting public access to firearms. Commerce in firearms is channeled through federally licensed importers, manufacturers, and dealers in an attempt to halt mail-order and interstate consumer traffic in these weapons. The principal agent of federal enforcement is the dealer. He is licensed, §§ 922(a)(1) and 923(a); he is required to keep records of 'sale . . . or other disposition,' § 923(g); and he is subject to a criminal penalty for disposing of a weapon contrary to the provisions of the Act, § 924.
25
Section 922(a)(6), the provision under which petitioner was convicted, was enacted as a means of providing adequate and truthful information about firearms transactions. Information drawn from records kept by dealers was a prime guarantee of the Act's effectiveness in keeping 'these lethal weapons out of the hands of criminals, drug addicts, mentally disordered persons, juveniles, and other persons whose possession of them is too high a price in danger to us all to allow.' 114 Cong.Rec. 13219 (1968) (remarks of Sen. Tydings). Thus, any false statement with respect to the eligibility of a person to obtain a firearm from a licensed dealer was made subject to a criminal penalty.
26
From this outline of the Act, it is apparent that the focus of the federal scheme is the federally licensed firearms dealer, at least insofar as the Act directly controls access to weapons by users. Firearms are channeled through dealers to eliminate the mail order and the generally widespread commerce in them, and to insure that, in the course of sales or other dispositions by these dealers, weapons could not be obtained by individuals whose possession of them would be contrary to the public interest. Thus, the conclusion we reached above with respect to the language and structure of the Act, that firearms redemptions in pawnshops are covered, is entirely consonant with the achievement of this congressional objective and method of enforcing the Act.
27
Moreover, as was said in United States v. Bramblett, 348 U.S. 503, 507, 75 S.Ct. 504, 507, 99 L.Ed. 594 (1955), 'There is no indication in either the committee reports or in the congressional debates that the scope of the statute was to be in any way restricted' (footnotes omitted). Indeed, the committee reports indicate that the proscription under § 922(d) on the sale or other disposition of a firearm to a felon 'goes to all types of sales or dispositions— over-the-counter as well as mail order.'7 S.Rep. No. 1097, 90th Cong., 2d Sess., 115 (1968). See S.Rep. No. 1501, 90th Cong., 2d Sess., 34 (1968), U.S.Code Cong. & Admin.News 1968, p. 4410. As far as the parties have informed us, and as far as our independent research has revealed, there is no discussion of the actual meaning of 'acquisition' or of 'sale or other disposition' in the legislative history. Previous legislation relating to the particular term 'other disposition' sheds some light, however, and prudence calls on us to look to it in ascertaining the legislative purpose. United States v. Katz, 271 U.S. 354, 357, 46 S.Ct. 513, 514, 70 L.Ed. 986 (1926). The term apparently had its origin in § 1(k) of the National Firearms Act, Pub.L. 474, 48 Stat. 1236 (1934). That Act set certain conditions on the 'transfer' of machine guns and other dangerous weapons. As defined by the Act, 'transfer' meant 'to sell, assign, pledge, lease, loan, give away, or otherwise dispose of.' The term 'otherwise dispose of' in that context was aimed at providing maximum coverage. The interpretation we adopt here accomplishes the same objective.8
28
There also can be no doubt of Congress' intention to deprive the juvenile, the mentally incompetent, the criminal, and the fugitive of the use of firearms. Senator Tydings stated:
29
'Title IV, the concealed weapons amendment, is a very limited, stripped-down, bare-minimum guntraffic control bill, primarily designed to reduce access to handguns for criminals, juveniles, and fugitives . . .. I can fairly say that this concealed weapons amendment does not significantly inconvenience hunters and sportsmen in any way. The people it does frustrate are the juveniles, felons, and fugitives who today can, with total anonymity and impunity, obtain guns by mail or by crossing into neighboring States with lax or no gun laws at all, regardless of the law of their own State.' 114 Cong.Rec. 13647 (1968).
30
Congressman Celler, the House Manager, stated:
31
'Mr. Chairman, none of us who support Federal firearms controls believe that any bill or any system of control can guarantee that society will be safe from firearms misuse. But we are convinced that a strengthened system can significantly contribute to reducting the danger of crime in the United States. No one can dispute the need to prevent drug addicts, mental incompetents, persons with a history of mental disturbances, and persons convicted of certain offenses, from buying, owning, or possessing firearms. This bill seeks to maximize the possibility of keeping firearms out of the hands of such persons.' Id., at Rec. 21784.
32
Congressman McCulloch, a senior member of the House Committee on the Judiciary, in referring specifically to § 922(a)(6), stated, '[The bill] makes it unlawful . . . [f]or any person, in connection with obtaining a firearm or ammunition from a licensee, to make a false representation material to such acquisition.' Id., at 21789.9 Given these statements of congressional purpose, it would be unwarranted to except pawnshop redemptions when, by virtue of the statutory language itself, such redemptions would be covered. Otherwise, every evil Congress hoped to cure would continue unabated.10
IV
33
Petitioner urges that the intention to include pawn redemptions is so ambiguous and uncertain that the statute should be narrowly construed in his favor. Reliance is placed upon the maxim that an 'ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.' Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971); United States v. Bass, 404 U.S. 336, 347, 92 S.Ct. 515, 522, 30 L.Ed.2d 488 (1971). This rule of narrow construction is rooted in the concern of the law for individual rights, and in the belief that fair warning should be accorded as to what conduct is criminal and punishable by deprivation of liberty or property. United States v. Wiltberger, 5 Wheat. 76, 95, 5 L.Ed. 37 (1820); United States v. Bass, supra, 404 U.S., at 348, 92 S.Ct., at 522-523. The rule is also the product of an awareness that legislators and not the courts should define criminal activity. Zeal in forwarding these laudable policies, however, must not be permitted to shadow the understanding that '[s]ound rules of statutory interpretation exist to discover and not to direct the Congressional will.' United States ex rel. Marcus v. Hess, 317 U.S. 537, 542, 63 S.Ct. 379, 383, 87 L.Ed. 443 (1943). Although penal laws are to be construed strictly, they 'ought not to be construed so strictly as to defeat the obvious intention of the legislature.' American Fur Co. v. United States, 2 Pet. 358, 367, 7 L.Ed. 450 (1829); United States v. Wiltberger, supra; United States v. Morris, 14 Pet. 464, 475, 10 L.Ed. 543 (1840); United States v. Lacher, 134 U.S. 624, 10 S.Ct. 625, 33 L.Ed. 1080 (1890); United States v. Bramblett, 348 U.S., at 510, 75 S.Ct. at 508; United States v. Bass, 404 U.S., at 351, 92 S.Ct., at 524.
34
We perceive no grievous ambiguity or uncertainty in the language and structure of the Act. The statute in question clearly proscribes petitioner's conduct and accorded him fair warning of the sanctions the law placed on that conduct. Huddleston was not short of notice that his actions were unlawful. The question he answered untruthfully was preceded by a warning in boldface type that 'an untruthful answer may subject you to criminal prosecution.' The question itself was forthright and direct, stating that it was concerned with conviction of a crime punishable by imprisonment for a term exceeding one year and that this meant the term which could have been imposed and not the sentence actually given. Finally, petitioner was required to certify by his signature that his answers were true and correct and that he understood that 'the making of any false oral or written statement . . . with respect to this transaction is a crime punishable as a felony.' This warning also was in boldface type. Clearly, petitioner had adequate notice and warning of the consequences of his action.
35
Our reading of the statute cannot be viewed as judicial usurpation of the legislative function. The statute's language reveals an unmistakable attempt to include pawnshop transactions, by pledge or pawn, among the transactions covered by the Act. And Congress unquestionably made it unlawful for dealers, including pawnbrokers, 'to sell or otherwise dispose of any firearm' to a convicted felon, a juvenile, a drug addict, or a mental defective. § 922(d). Under these circumstances we will not blindly incant the rule of lenity to 'destroy the spirit and force of the law which the legislature intended to [and did] enact.' American Tobacco Co. v. Werckmeister, 207 U.S. 284, 293, 28 S.Ct. 72, 75, 52 L.Ed.2d 208 (1907); United States v. Katz, 271 U.S., at 357, 46 S.Ct., at 514.11
V
36
The petitioner suggests, lastly, that the application of § 922(a)(6) to a pawn redemption would raise constitutional questions of some moment, and that these would not arise if the statute were narrowly construed. We fail to see the presence of issues of that import. There was no taking of Huddleston's property without just compensation. The rifles, in fact, were not his but his wife's. Moreover, Congress has determined that a convicted felon may not lawfully obtain weapons of that kind. Nor were petitioner's false answers in any way coerced. United States v. Knox, 396 U.S. 77, 79, 90 S.Ct. 363, 364-365, 24 L.Ed.2d 275 (1969); Bryson v. United States, 396 U.S. 64, 72, 90 S.Ct. 355, 360, 24 L.Ed.2d 264 (1969). Finally, no interstate commerce nexus need be demonstrated. Congress intended, and properly so, that §§ 922(a)(6) and (d)(1), in contrast to 18 U.S.C.App. § 1202(a)(1), see United States v. Bass, supra, were to reach transactions that are wholly intrastate, as the Court of Appeals correctly reasoned, 'on the theory that such transactions affect interstate commerce.' 472 F.2d, at 593. See also United States v. Menna, 451 F.2d 982, 984 (CA9 1971), cert. denied, 405 U.S. 963, 92 S.Ct. 1170, 31 L.Ed.2d 238 (1972), and United States v. O'Neill, 467 F.2d 1372, 1373-1374 (CA2 1972).
37
We affirm the judgment of the Court of Appeals.
38
It is so ordered.
39
Judgment affirmed.
40
Mr. Justice DOUGLAS, dissenting.
41
This case presents a minor version of the problem confronting the Court in Rosenberg v. United States, 346 U.S. 273, 73 S.Ct. 1152, 97 L.Ed. 1607. That case involved an ambiguity in a criminal law, an ambiguity that normally would be resolved in favor of life. A split Court in a tense period of American history unhappily resolved the ambiguity against life—a break with history which the conscience of our people will sometime rectify.
42
The present case is a minor species of the same genus. A person who took his gun to a pawnshop for a loan undoubtedly had 'acquired' the gun prior to that time. It is therefore odd to think of the 'acquisition' occurring when he redeemed his own gun from the pawnshop. I agree with the Court of Appeals for the Fifth Circuit, United States v. Laisure, 460 F.2d 709, that the ambiguity should be resolved in favor of the accused. That is what we have quite consistently done, except in Rosenberg, in the past. See United States v. Bass, 404 U.S. 336, 347-348, 92 S.Ct. 515, 522-523, 30 L.Ed.2d 488, and cases cited.*
1
'§ 922. Unlawful acts.
'(a) It shall be unlawful——
* * * * *
'(6) for any person in connection with the acquisition . . . of any firearm . . . from a . . . licensed dealer . . . knowingly to make any false or fictitious oral or written statement . . . intended or likely to deceive such . . . dealer . . . with respect to any fact material to the lawfulness of the sale or other disposition of such firearm . . . under the provisions of this chapter.'
2
'§ 922. Unlawful acts.
'(d) It shall be unlawful for any . . .
* * *
licensed dealer . . . to sell or otherwise dispose of any firearm . . . to any person knowing or having reasonable cause to believe that such person——
'(1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.'
3
Cal.Penal Code § 476a (1970). The California complaint against Huddleston was in six counts and contained an allegation that he had been convicted previously in the State of Iowa of an offense which, if committed in California, would have been a violation of § 476 of the California Penal Code. He was eventually sentenced on the check charge to 30 days in jail.
4
'§ 924. Penalties.
'(a) Whoever violates any provision of this chapter or knowingly makes any false statement or representation with respect to the information required by the provisions of this chapter to be kept in the records of a person licensed under this chapter, . . . shall be fined not more than $5,000, or imprisoned not more than five years, or both, and shall become eligible for parole as the Board of Parole shall determine.'
5
Huddleston at first testified that his California attorney and his probation officer there told him that when he completed his probation period and made restitution, 'it would go on record as a misdemeanor,' and that the attorney had told him he 'couldn't get over a year.' App. 37, 39. Upon inquiry by the court, he testified that when he was arraigned he thought he 'could get more than one year' and was so informed. Id., at 41.
6
In agreement with the Ninth Circuit's decision is United States v. Beebe, 467 F.2d 222 (CA10 1972). To the contrary is United States v. Laisure, 460 F.2d 709 (CA5 1972).
7
James V. Bennett, then Director of the Federal Bureau of Prisons, in Senate testimony offered a 'case study' vividly illustrating nonsale situations that would qualify as a firearms 'disposition' or 'acquisition.' One of his illustrations was the following:
'On September 26, 1958, a 20-year-old youth shot and seriously wounded a teller during the course of a bank robbery in St. Paul; only a week previously he had bought the revolver, a .357 Smith & Wesson, in a Minneapolis sporting goods store, pawned it the same day, and on the day of the robbery redeemed it with money obtained from check forgeries.'
Mr. Bennett concluded his testimony with the observation, 'No responsible and thoughtful citizen can, in my opinion, seriously object to measures which would discourage youngsters, the mentally ill, and criminals from coming into possession of handguns.' Hearings before the Subcommittee to Investigate Juvenile Delinquency of the Senate Committee on the Judiciary, 88th Cong., 1st Sess., pt. 14, pp. 3369, 3377 (1963).
8
Testimony by then Attorney General Ramsey Clark also supports the rejection of petitioner's suggestion that the language of the statute be given a restrictive meaning:
'Mr. Donohue. Do you not think, Mr. Attorney General, to attain the real objective and purpose of this bill, it should not only deal with the sale, but whoever sells or delivers?
'Mr. Clark. It covers delivery, too.'
'Mr. Donohue. Where?
'Mr. Clark. Well, generally through the bill when you talk about—well, it would be unlawful for any licensed importer to sell or deliver. Any licensed dealer to sell or deliver.
'Mr. Donohue. It is not restricted to just sale for consideration?
'Mr. Clark. No. The delivery, too.' Hearings on an Anti-Crime Program before Subcommittee No. 5 of the House Committee on the Judiciary, 90th Cong., 1st Sess., 260 (1967).
9
It should be apparent from these statements that Congress was not so much concerned with guaranteeing no interference with the ownership of weapons as it was in distinguishing between law-abiding citizens and those whose possession of weapons would be contrary to the public interest. Hunting, target practice, gun collecting, and the legitimate use of guns for individual protection are not proscribed by the Act. Ownership of a weapon, however, may be interfered with by seizure and forfeiture under the Act for any violation of its provisions. Section 924(d) incorporates the seizure and forfeiture provisions of the Internal Revenue Code when there is no violation of the provisions of the chapter or any rule or regulation thereunder. The Act itself thus contemplates interference with the ownership of weapons when those weapons fall into the hands of juveniles, criminals, drug addicts, and mental incompetents.
10
What few references there are to pawnbrokers in the debates indicate that Congress was definitely interested in curbing firearms traffic between pawnbrokers and convicted felons. Senator Tydings, a strong proponent of the bill which became the Act, expressed his concern when he compared the bill to a proposal that was offered as an alternative:
'[O]ne reading through the amendment for the first time would assume that pawnbrokers are covered by the critically important provisions of the affidavit-waiting period procedure. But, if a pawnbroker only receives secondhand weapons as security for the repayment of a loan and does not deal in new firearms, he is not transporting, shipping, or receiving a firearm in interstate or foreign commerce. Used weapons presumably will have come to rest in the hands of the borrower, and the transaction will be wholly intrastate. Such a pawnbroker would not need a Federal firearms license to conduct over-the-counter transactions in firearms. And, accordingly, he would not be a 'licensed dealer' required to comply with the affidavit-waiting period procedure for his over-the-counter sales in handguns. Now, if this analysis is correct, and I believe it is, this is no small omission. Surely the great bulk of criminally irresponsible purchasers of pistols and revolvers buy their weapons secondhand, and many of them from pawnshops. We all have seen the virtual arsenals displayed in the windows of pawnshop dealers in all of the major cities of the country. To say that we have effectively regulated traffic in firearms when we will not have touched the great bulk of these pawnbroker operations is a complete and utter hypocrisy.' 114 Cong.Rec. 13222 (1968).
See also Memorandum placed in the record by Senator Dodd. Id., at 13320. Senator Tydings made this further comparison:
'[I]t is obvious that many persons with criminal records purchase from pawnbrokers, and there are many occasions when the pawnbroker known the criminal background of the client. Under Amendment No. 708, many of these pawnbrokers will not be required to be licensed. They would not need to comply with the affidavit procedure. And even if they were licensed, there would be no prohibition on their selling firearms to known criminals. Under
title IV, on the other hand, all of these pawnbrokers would be required to be licensed—because all dealers and manufacturers must be licensed whether or not they ship, receive, or transport in commerce—and all of them would be under direct Federal sanction not to sell firearms to known criminals. I ask you, which bill is likely to be more effective?' Id., at 13223.
It must be conceded that these remarks refer to 'selling' firearms, but we do not credit this fact as significant for purposes of determining whether a pawnshop redemption is covered by the Act. The plain language of the statute as enacted prohibits a dealer from 'selling or disposing of' firearms to felons, and petitioner's counsel at oral argument intimated that a pawnbroker, under this language, could dispose of a firearm other than by sale and be covered by the Act. Tr. of Oral Arg. 4-5. References in the legislative debate, moreover, are replete with shorthand language and this is merely an instance of its use. Had the legislators been engaged in a colloquy on the actual meaning of 'sale or other disposition of,' we might be more receptive to the interpretation proffered by the petitioner.
We also note that the President of the Pawnbrokers' Association of the City of New York testified during congressional hearings that almost all firearm transactions by pawnshops are by pledge and redemption, and contended, therefore, that pawnbrokers should not be included as dealers under the Act. Hearings on a Federal Firearms Act before the Subcommittee to Investigate Juvenile Delinquency of the Senate Committee on the Judiciary, 90th Cong., 1st Sess., 1062-1065 (1967). Thus, informed of the fact that almost all firearms transactions by pawnbrokers were through pledge and redemption, and faced with the argument that pawnbrokers should not be considered as 'dealers,' Congress clearly chose to retain pawnbrokers as firearms dealers.
Finally, the language of the committee reports indicates that a 'sale or disposition' includes 'all types of sales or dispositions.' S.Rep. No. 1097, 90th Cong., 2d Sess., 115 (1968), U.S.Code Cong. & Admin.News 1968, p. 2112.
11
The decision today does not ignore the admonition of the Court in United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971), that '[i]n traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.' This statute did affect the federal balance and it did so intentionally. As Senator Tydings explained:
'This concealed weapons amendment does not violate any State's right to make its own gun laws. Quite the contrary, title IV provides the controls on interstate gun traffic which only the Federal Government can apply, and without which no State gun law is worth the paper it is written on. . . . Without such Federal assistance, any State gun law can be subverted by any child, fugitive, or felon who orders a gun by mail or buys one in a neighboring State which has law gun laws.' 114 Cong.Rec. 13647 (1968).
*
Civil cases cited by the Court, e. g. American Tobacco Co. v. Werckmeister, 207 U.S. 284, 293, 28 S.Ct. 72, 74-75, 52 L.Ed. 208, are wide of the mark. For application of a law that sends people to prison for years where Congress has not made it clear they should be there, United States v. Bass, supra, 404 U.S. at 346, 92 S.Ct., at 521-522, is only another device as lacking in due process as Caligula's practice of printing the laws in small print and placing them so high on a wall that the ordinary man did not receive fair warning.
'When taxes of this kind had been proclaimed, but not published in writing, inasmuch as many offenses were committed through ignorance of the letter of the law, he at last, on the urgent demand of the people, had the law posted up, but in a very narrow place and in excessively small letters, to prevent the making of a copy.' Suetonius, The Lives of the Twelve Caesars 192 (Modern Lib. ed. 1931).
| 01
|
415 U.S. 709
94 S.Ct. 1315
39 L.Ed.2d 702
Donald Paul LUBIN, etc., Petitioner,v.Leonard PANISH, Registrar-Recorder, County of Los Angeles.
No. 71—6852.
Argued Oct. 9, 1973.
Decided March 26, 1974.
Syllabus
Petitioner, an indigent, was denied nomination papers to file as a candidate for the position of County Supervisor in California because, although otherwise qualified, he was unable to pay the filing fee required of all candidates by a California statute. He brought this class action in California Superior Court for a writ of mandate against the Secretary of State and the County Registrar-Recorder, claiming that the statute, by requiring the filing fee but providing no other way of securing access to the ballot, deprived him and others similarly situated of the equal protection guaranteed by the Fourteenth Amendment and rights of expression and association guaranteed by the First and Fourteenth Amendments. The Superior Court denied the writ of mandate; the Court of Appeal and the California Supreme Court also denied writs. Held: Absent reasonable alternative means of ballot access, a State may not, consistent with constitutional standards, require from an indigent candidate filing fees that he cannot pay; denying a person the right to file as a candidate solely because of an inability to pay a fixed fee, without providing any alternative means, is not reasonably necessary to the accomplishment of the State's legitimate interest of maintaining the integrity of elections. Pp. 712—719.
Reversed and remanded.
Marguerite M. Buckley, Venice, Cal., for petitioner.
Edward H. Gaylord for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari to consider petitioner's claim that the California statute requiring payment of a filing fee of $701.60 in order to be placed on the ballot in the primary election for nomination to the position of County Supervisor, while providing no alternative means of access to the ballot, deprived him, as an indigent person unable to pay the fee, and others similarly situated, of the equal protection guaranteed by the Fourteenth Amendment and rights of expression and association guaranteed by the First Amendment.
2
The California Elections Code provides that forms required for nomination and election to congressional, state, and county offices are to be issued to candidates only upon prepayment of a nonrefundable filing fee. (Cal.Elections Code § 6551. Generally, the required fees are fixed at a percentage of the salary for the office sought. The fee for candidates for United States Senator, Governor, and other state offices and some county offices, is 2% of the annual salary. Candidates for Representative to Congress, State Senator or Assemblyman, or for judicial office or district attorney, must pay 1%. No filing fee is required of candidates in the presidential primary, or for offices which pay either no fixed salary or not more than $600 annually. §§ 6551, 6552, and 6554.
3
Under the California statutes in effect at the time this suit was commenced, the required candidate filing fees ranged from $192 for State Assembly, $425 for Congress, $701.60 for Los Angeles County Board of Supervisors, $850 for United States Senator, to $982 for Governor.
4
The California statute provides for the counting of write-in votes subject to certain conditions. § 18600 et seq. (Supp.1974.) Write-in votes are not counted, however, unless the person desiring to be a write-in candidate files a statement to that effect with the Registrar-Recorder at least eight days prior to the election, § 18602, and pays the requisite filing fee, § 18603. The latter section provides that '(n)o name written upon a ballot in any state, county, city, city and county, or district election shall be counted for an office or nomination unless . . . (t)he fee required by Section 6555 is paid when the declaration of write-in candidacy is filed . . ..' Thus, the contested filing fees must be satisfied even under the write-in nomination procedures.
5
Petitioner commenced this class action on February 17, 1972, by petitioning the Los Angeles Superior Court for a writ of mandate against the Secretary of State and the Los Angeles County Registrar-Recorder. The suit was filed on behalf of petitioner and all those similarly situated persons who were unable to pay the filing fees and who desired to be nominated for public office. In his complaint, petitioner maintained that he was a citizen and a voter and that he had sought nomination as a candidate for membership on the Board of Supervisors of Los Angeles County.1 Petitioner asserted that on February 15, 1972, he had appeared at the office of James S. Allison, then Registrar-Recorder of the County of Los Angeles, to apply for and secure all necessary nomination papers requisite to his proposed candidacy. Petitioner was denied the requested nomination papers orally and in writing solely because he was unable to pay the $701.60 filing fee required of all would-be candidates for the office of Board of Supervisors.
6
The Los Angeles Superior Court denied the requested writ of mandate on March 6, 1972. Petitioner alleged that he was a serious candidate, that he was indigent, and that he was unable to pay the $701.60 filing fee; no evidence was taken during the hearing. The Superior Court found the fees to be 'reasonable, as a matter of law.' Accordingly, the court made no attempt to determine whether the fees charged were necessary to the State's purpose, or whether the fees, in addition to deterring some frivolous candidates, also prohibited serious but indigent candidates from entering their names on the ballot. The Superior Court also rejected the argument that the State was required by Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972), to provide an alternative means of access to the ballot which did not discriminate on the basis of economic factors.
7
On March 9, 1972, a second petition for writ of mandate was denied by the Court of Appeal, Second District, and on March 22, 1972, after the deadline for filing nomination, papers had passed, the California Supreme Court denied petitioner's third application for a writ of mandate.
8
Historically, since the Progressive movement of the early 20th century, there has been a steady trend toward limiting the size of the ballot in order to 'concentrate the attention of the electorate on the selection of a much smaller number of officials and so afford to the voters the opportunity of exercising more discrimination in their use of the franchise.'2 This desire to limit the size of the ballot has been variously phrased as a desire to minimize voter confusion, Thomas v. Mims, 317 F.Supp. 179, 181 (S.D.Ala.1970), to limit the number of runoff elections, Spillers v. Slaughter, 325 F.Supp. 550, 553 (M.D.Fla.1971), to curb 'ballot flooding,' Jenness v. Little, 306 F.Supp. 925, 927 (N.D.Ga.1969), appeal dismissed sub nom. Matthews v. Little, 397 U.S. 94, 90 S.Ct. 820, 25 L.Ed.2d 81 (1970), and to prevent the overwhelming of voting machines—the modern counterpart of ballot flooding, Wetherington v. Adams, 309 F.Supp. 318, 321 (NDFla.1970). A majority of States have long required the payment of some form of filing fee,3 in part to limit the ballot and in part to have candidates pay some of the administrative costs.
9
In sharp contrast to this fear of an unduly lengthy ballot is an increasing pressure for broader access to the ballot. Thus, while progressive thought in the first half of the century was concerned with restricting the ballot to achieve voting rationality, recent decades brought an enlarged demand for an expansion of political opportunity. The Twenty-fifth Amendment, the Twenty-sixth Amendment, and the Voting Rights Act of 1965, 79 Stat. 437, 42 U.S.C. § 1973 et seq., reflect this shift in emphasis. There has also been a gradual enlargement of the Fourteenth Amendment's equal protection provision in the area of voting rights:
10
'It has been established in recent years that the Equal Protection Clause confers the substantive right to participate on an equal basis with other qualified voters whenever the State has adopted an electoral process for determining who will represent any segment of the State's population. See, e.g., Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506; Kramer v. Union School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583; Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 999, 31 L.Ed.2d 274.' San Antonio School District v.
11
Rodriguez, 411 U.S. 1, 59 n. 2, 93 S.Ct. 1278, 1310, 36 L.Ed.2d 16 (1973) (Stewart, J., concurring).
12
This principle flows naturally from our recognition that
13
'(l)egislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system.' Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1382 (1964) (Warren, C.J.).
14
The present case draws these two means of achieving an effective, representative political system into apparent conflict and presents the question of how to accommodate the desire for increased ballot access with the imperative of protecting the integrity of the electoral system from the recognized dangers of ballots listing so many candidates as to undermine the process of giving expression to the will of the majority. The petitioner stated on oath that he is without assets or income and cannot pay the $701.60 filing fee although he is otherwise legally eligible to be a candidate on the primary ballot. Since his affidavit of indigency states that he has no resources and earned no income whatever in 1972, it would appear that he would make the same claim whether the filing fee had been fixed at $1, $100, or $700. The State accepts this as true but defends the statutory fee as necessary to keep the ballot from being overwhelmed with frivolous or otherwise nonserious candidates, arguing that as to indigents the filing fee is not intended as a test of his pocketbook but the extent of his political support and hence the seriousness of his candidacy.
15
In Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972),4 we recognized that the State's interest in keeping its ballots within manageable, understandable limits is of the highest order. Id., at 144—145, 92 S.Ct. at 849, 856. The role of the primary election process in California is underscored by its importance as a component of the total electoral process and its special function to assure that fragmentation of voter choice is minimized. That function is served, not frustrated, by a procedure that tends to regulate the filing of frivolous candidates. A procedure inviting or permitting every citizen to present himself to the voters on the ballot without some means of measuring the seriousness of the candidate's desire and motivation would make rational voter choices more difficult because of the size of the ballot and hence would tend to impede the electoral process. That no device can be conjured to eliminate every frivolous candidacy does not undermine the state's effort to eliminate as many such as possible.
16
That 'laundry list' ballots discourage voter participation and confuse and frustrate those who do participate is too obvious to call for extended discussion. The means of testing the seriousness of a given candidacy may be open to debate; the fundamental importance of ballots of reasonable size limited to serious candidates with some prospects of public support is not. Rational results within the framework of our system are not likely to be reached if the ballot for a single office must list a dozen or more aspirants who are relatively unknown or have no prospects of success.
17
This legitimate state interest, however, must be achieved by a means that does not unfairly or unnecessarily burden either a minority party's or an individual candidate's equally important interest in the continued availability of political opportunity. The interests involved are not merely those of parties or individual candidates; the voters can assert their preferences only through candidates or parties or both and it is this broad interest that must be weighed in the balance. The right of a party or an individual to a place on a ballot is entitled to protection and is intertwined with the rights of voters.
18
'(T)he right to vote is heavily burdened if that vote may be cast only for one of two parties at a time when other parties are clamoring for a place on the ballot.' Williams v. Rhodes, 393 U.S. 23, 31, 89 S.Ct. 5, 11, 21 L.Ed.2d 24 (1968).
19
This must also mean that the right to vote is 'heavily burdened' if that vote may be cast only for one of two candidates in a primary election at a time when other candidates are clamoring for a place on the ballot. It is to be expected that a voter hopes to find on the ballot a candidate who comes near to reflecting his policy preferences on contemporary issues. This does not mean every voter can be assured that a candidate to his liking will be on the ballot, but the process of qualifying candidates for a place on the ballot may not constitutionally be measured solely in dollars.
20
In Bullock, supra, we expressly rejected the validity of filing fees as the sole means of determining a candidate's 'seriousness':
21
'To say that the filing fee requirement tends to limit the ballot to the more serious candidates is not enough. There may well be some rational relationship between a candidate's willingness to pay a filing fee and the seriousness with which he takes his candidacy, but the candidates in this case affirmatively alleged that they were unable, not simply unwilling, to pay the assessed fees, and there was no contrary evidence. It is uncontested that the filing fees excluded legitimate as well as frivolous candidates. . . . If the Texas fee requirement is intended to regulate the ballot by weeding out spurious candidates, it is extraordinarily ill-fitted to that goal; other means to protect those valid interests are available.' 405 U.S., at 145—146, 92 S.Ct. at 857. (Emphasis in original.) (Footnotes omitted.)
22
Filing fees, however large, do not, in and of themselves, test the genuineness of a candidacy or the extent of the voter support of an aspirant for public office. A large filing fee may serve the legitimate function of keeping ballots manageable but, standing alone, it is not a certain test of whether the candidacy is serious or spurious. A wealthy candidate with not the remotest chance of election may secure a place on the ballot by writing a check. Merchants and other entrepreneurs have been known to run for public office simply to make their names known to the public. We have also noted that prohibitive filing fees, such as those in Bullock, can effectively exclude serious candidates. Conversely, if the filing fee is more moderate, as here, impecunious but serious candidates may be prevented from running. Even in this day of high-budget political campaigns some candidates have demonstrated that direct contact with thousands of voters by 'walking tours' is a route to success. Whatever may be the political mood at any given time, our tradition has been one of hospitality toward all candidates without regard to their economic status.
23
The absence of any alternative means of gaining access to the ballot inevitably renders the California system exclusionary as to some aspirants. As we have noted, the payment of a fee is an absolute, not an alternative, condition, and failure to meet it is a disqualification from running for office. Thus, California has chosen to achieve the important and legitimate interest of maintaining the integrity of elections by means which can operate to exclude some potentially serious candidates from the ballot without providing them with any alternative means of coming before the voters. Selection of candidates solely on the basis of ability to pay a fixed fee without providing any alternative means is not reasonably necessary to the accomplishment of the State's legitimate election interests. Accordingly, we hold that in the absence of reasonable alternative means of ballot access, a State may not, consistent with constitutional standards, require from an indigent candidate filing fees he cannot pay.
24
In so holding, we note that there are obvious and well-known means of testing the 'seriousness' of a candidacy which do not measure the probability of attracting significant voter support solely by the neutral fact of payment of a filing fee. States may, for example, impose on minor political parties the precondition of demonstrating the existence of some reasonable quantum of voter support by requiring such parties to file petitions for a place on the ballot signed by a percentage of those who voted in a prior election. See American Party of Texas v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744. Similarly, a candidate who establishes that he cannot pay the filing fee required for a place on the primary ballot may be required to demonstrate the 'seriousness' of his candidacy by persuading a substantial number of voters to sign a petition in his behalf.5 The point, of course, is that ballot access must be genuinely open to all, subject to reasonable requirements. Jenness v. Fortson, 403 U.S. 431, 439, 91 S.Ct. 1970, 1974, 29 L.Ed.2d 554 (1971). California's present system has not met this standard.
25
Reversed and remanded for further consideration not inconsistent with this opinion.
26
It is so ordered.
27
Mr. Justice DOUGLAS, concurring.
28
While I join the Court's opinion I wish to add a few words, since in my view this case is clearly controlled by prior decisions applying the Equal Protection Clause to wealth discriminations. Since classifications based on wealth are 'traditionally disfavored,' Harper v. Virginia Bd. of Elections, 383 U.S. 663, 668, 86 S.Ct. 1079, 1082, 16 L.Ed.2d 169 (1966), the State's inability to show a compelling interest in conditioning the right to run for office on payment of fees cannot stand. Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972).
29
The Court first began looking closely at discrimination against the poor in the criminal area. In Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), we found that de facto denial of appeal rights by an Illinois statute requiring purchase of a transcript denied equal protection to indigent defendants since there 'can be no equal justice where the kind of trial a man gets depends on the amount of money he has.' Id., at 19, 76 S.Ct. at 591. In Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), we found that the State had drawn 'an unconstitutional line . . . between rich and poor' when it allowed an appellate court to decide an indigent's case on the merits although no counsel has been appointed to argue his case before the appellate court. Just recently we found that the State could not extend the prison term of an indigent for his failure to pay an assessed fine, since the length of confinement could not under the Equal Protection Clause be made to turn on one's ability to pay. Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, i6 L.Ed.2d 586 (1970); see Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971). But criminal procedure has not defined the boundaries within which wealth discriminations have been struck down. In Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), the majority found that the filing fee which denied the poor access to the courts for divorce was a denial of due process; Mr. Justice Brennan and I in concurrence preferred to rest the result on equal protection. And it was the Equal Protection Clause the majority relied on in Lindsey v. Normet, 405 U.S. 56, 79, 92 S.Ct. 862, 877, 31 L.Ed.2d 36 (1972), in finding that Oregon's double-bond requirement for appealing forcible entry and detainer actions discriminated against the poor: 'For them, as a practical matter, appeal is foreclosed, no matter how meritorious their case may be.'
30
Indeed, the Court has scrutinized wealth discrimination in a wide variety of areas. In Shapiro v. Thompson, 394 U.S. 618, 633, 89 S.Ct. 1322, 1330, 22 L.Ed.2d 600 (1969), we found that deterring indigents from migrating into the State was not a constitutionally permissible state objective. Closer to the case before us here was Turner v. Fouche, 396 U.S. 346, 362—364, 90 S.Ct. 532, 542, 24 L.Ed.2d 567 (1970), in which the Court found that Georgia could not constitutionally require ownership of land as a qualification for membership on a county board of education. See Kramer v. Union Free School Dist., 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Cipriano v. Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969). In Harper v. Virginia Bd. of Elections, supra, we found a state poll tax violative of equal protection because of the burden it placed on the poor's exercise of the franchise. And in Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972), we invalidated a Texas filing fee system virtually indistinguishable from that presented here.
31
What we do today thus involves no new principle, nor any novel application. '(A) man's mere property status, without more, cannot be used by a state to test, qualify, or limit his rights as a citizen of the United States.' Edwards v. California, 314 U.S. 160, 184, 62 S.Ct. 164, 172, 86 L.Ed. 119 (1941) (Jackson, J., concurring). Voting is clearly a fundamental right.* Harper v. Virginia Bd. of Elections, supra, at 667, 86 S.Ct. at 1079; Reynolds v. Sims, 377 U.S. 533, 561—562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506 (1964). But the right to vote would be empty if the State could arbitrarily deny the right to stand for election. California does not satisfy the Equal Protection Clause when it allows the poor to vote but effecitvely prevents them from voting for one of their own economic class. Such an election would be a sham, and we have held that the State must show a compelling interest before they can keep political minorities off the ballot. Williams v. Rhodes, 393 U.S. 23, 31, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968). The poor may be treated no differently.
32
Mr. Justice BLACKMUN, with whom Mr. Justice REHNQUIST joins, concurring in part.
33
For me, the difficulty with the California election system is the absence of a realistic alternative access to the ballot for the candidate whose indigency renders it impossible for him to pay the prescribed filing fee.
34
In addition to a proper petitioning process suggested by the Court in its opinion, ante, at 718, I would regard a write-in procedure, free of fee, as an acceptable alternative. Prior to 1968, California allowed this, and write-in votes were counted, although no prior fee had been paid. But the prior fee requirement for the write-in candidate was incorporated into the State's Elections Code in that year, Laws 1968, c. 79, § 3, and is now § 18603(b) of the Code. It is that addition, by amendment, that serves to deny the petitioner the equal protection guaranteed to him by the Fourteenth Amendment. Section 18603(b) appears to be severable. See Frost v. Corporation Comm'n, 278 U.S. 515, 525—526, 49 S.Ct. 235, 239, 73 L.Ed. 483 (1929); Truax v. Corrigan, 257 U.S. 312, 341—342, 42 S.Ct. 124, 133, 66 L.Ed. 254 (1921). The Code itself provides for severability. Cal.Elections Code § 48. That, however, is an issue for the California courts to deicde.
35
I would hold that the California election statutes are unconstitutional insofar as they presently deny access to the ballot. If § 18603(b) were to be stricken, the Code, as before, would permit write-in access with no prior fee. The presence of that alternative, although not perfect, surely provides the indigent would-be candidate with as much ease of access to the ballot as the alternative of obtaining a large number of petition signatures in a relatively short time. See Storer v. Brown, 415 U.S. 724, at 738—746, 94 S.Ct. 1274, 1283—1287, 39 L.Ed.2d 714. The Court seemingly would reject a write-in alternative while accepting many petition alternatives. In my view, a write-in procedure, such as California's before 1968, satisfies the demands of the Equal Protection Clause as well as most petitioning procedures. I, therefore, join the Court in reversing the order of the Supreme Court of California denying petitioner's petition for writ of mandate and in remanding the case for further proceedings.
1
The Board of Supervisors of Los Angeles County is the governing body for Los Angeles County, California. The term is four years, the annual salary $35,080.
2
H. Croly, Progressive Democracy 289 (1914).
3
See Comment, The Constitutionality of Qualifying Fees for Political Candidates, 120 U.Pa.L.Rev. 109 (1971), for a detailed description of each State's filing-fee requirements.
4
Bullock, of course, does not completely resolve the present attack upon the California election statutes because it involved filing fees that were so patently exclusionary as to violate traditional equal protection concepts. Cf. Rosario v. Rockefeller, 410 U.S. 752, 760, 93 S.Ct. 1245, 1249, 36 L.Ed.2d 1 (1973); James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972); Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966). Under attack in Bullock was a Texas statute that required candidates to pay a flat fee of $50 plus their pro rata share of the costs of the election in order to get on the primary ballot. Tex.Election Code, Art. 13.07a (Supp.1974). The assessment of costs involved sums as high as $8,900.
5
It is suggested that a write-in procedure, under § 18600 et seq., without a filing fee would be an adequate alternative to California's present filing-fee requirement. The realities of the electoral process, however, strongly suggest that 'access' via write-in votes falls far short of access in terms of having the name of the candidate on the ballot. It would allow an affluent candidate to put his name before the voters on the ballot by paying a filing fee while the indigent, relegated to the write-in provision, would be forced to rest his chances solely upon those voters who would remember his name and take the affirmative step of writing it on the ballot. That disparity would, itself, give rise to constitutional questions and, although we need not decide the issue, the intimation that a write-in provision without the filing fee required by § 18600 et seq. would constitute 'an acceptable alternative' appears dubious at best.
*
'No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.' Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 535, 11 L.Ed.2d 481 (1964).
Wesberry involved a federal election. Article I, § 2, of the Federal Constitution declares that Members of the House should be 'chosen every second Year by the People of the several States'; and the Seventeenth Amendment says that Senators shall be 'elected by the people.' But the right to vote in state elections is one of the rights historically 'retained by the people' by virtue of the Ninth Amendment as well as included in the penumbra of First Amendment rights. As Mr. Justice Brennan stated in Storer v. Brown, 415 U.S. 724, at 756, 94 S.Ct. 1274, at 1291, 39 L.Ed.2d 714, 'The right to vote derives from the right of association that is at the core of the First Amendment, protected from state infringement by the Fourteenth Amendment.' (Dissenting opinion.)
| 12
|
415 U.S. 800
94 S.Ct. 1234
39 L.Ed.2d 771
UNITED STATES, Petitioner,v.Eugene H. EDWARDS and William T. Livesay.
No. 73—88.
Argued Jan. 15, 1974.
Decided March 26, 1974.
Syllabus
Respondent Edwards was arrested shortly after 11 p.m. on May 31, 1970, and taken to jail. The next morning, a warrantless seizure was made of his clothing and over his objection at his later trial, which resulted in conviction, was used as evidence. The Court of Appeals reversed. Though conceding the legality of the arrest; that probable cause existed for believing that the clothing would reveal incriminating evidence; and that searches and seizures that could be made at the time of arrest may be legally conducted when the accused arrives at the place of detention, the court held that the warrantless seizure of Edwards' clothing 'after the administrative process and the mechanics of the arrest (had) come to a halt,' was unconstitutional. Held: the search and seizure of Edwards' clothing did not violate the Fourth Amendment. Pp. 802—809.
(a) At the time Edwards was placed in his cell, the normal processes incident to arrest and custody had not been completed, and the delay in seizing the clothing was not unreasonable, since at that late hour no substitute clothing was available, and when the next morning the police were able to supply substitute clothing and took Edwards' clothing for laboratory analysis, they did no more than they were entitled to do incident to the usual arrest and incarceration. Pp. 804—805.
(b) Once an accused has been lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of arrest may lawfully be searched and seized without a warrant even after a substantial time lapse between the arrest and later administrative processing, on the one hand, and the taking of the property for use as evidence, on the other. Pp. 806—808.
474 F.2d 1206, reversed.
Edward R. Korman, Washington, D.C., argued the cause for the United States. With him on the brief were Solicitor Gen. Robert H. Bork, Asst. Atty. Gen. Thomas W. Petersen and Jerome M. Feit, Washington, D.C.
Thomas R. Smith, Cincinnati, Ohio, for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
The question here is whether the Fourth Amendment should be extended to exclude from evidence certain clothing taken from respondent Edwards while he was in custody at the city jail approximately 10 hours after his arrest.
2
Shortly after 11 p.m. on May 31, 1970, respondent Edwards was lawfully arrested on the streets of Lebanon, Ohio, and charged with attempting to break into that city's Post Office.1 He was taken to the local jail and placed in a cell. Contemporaneously or shortly thereafter, investigation at the scene revealed that the attempted entry had been made through a wooden window which apparently had been pried up with a pry bar, leaving paint chips on the window sill and wire mesh screen. The next morning, trousers and a T-shirt were purchased for Edwards to substitute for the clothing which he had been wearing at the time of and since his arrest. His clothing was then taken from him and held as evidence. Examination of the clothing revealed paint chips matching the samples that had been taken from the window. This evidence and his clothing were received at trial over Edwards' objection that neither the clothing nor the results of its examination were admissible because the warrantless seizure of his clothing was invalid under the Fourth Amendment.
3
The Court of Appeals reversed. Expressly disagreeing with two other Courts of Appeals,2 it held that although the arrest was lawful and probable cause existed to believe that paint chips would be discovered on respondent's clothing, the warrantless seizure of the clothing carried out 'after the administrative process and the mechanics of the arrest have come to a halt' was nevertheless unconstitutional under the Fourth Amendment. 474 F.2d 1206, 1211 (CA6 1973). We granted certiorari, 414 U.S. 818, 94 S.Ct. 160, 38 L.Ed.2d 50, and now conclude that the Fourth Amendment should not be extended to invalidate the search and seizure in the circumstances of this case.
4
The prevailing rule under the Fourth Amendment that searches and seizures may not be made without a warrant is subject to various exceptions. One of them permits warrantless searches incident to custodial arrests, United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Chimel v. California, 395 U.S. 752, 755, 89 S.Ct. 2034, 2036, 23 L.Ed.2d 685 (1969); Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 344, 58 L.Ed. 652 (1914), and has traditionally been justified by the reasonableness of searching for weapons, instruments of escape, and evidence of crime when a person is taken into official custody and lawfully detained. United States v. Robinson, supra.3
5
It is also plain that searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention. If need be, Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960), settled this question. There the defendant was arrested at his hotel, but the belongings taken with him to the place of detention were searched there. In sustaining the search, the Court noted that a valid search of the property could have been made at the place of arrest and perceived little difference.
6
'when the accused decides to take the property with him, for the search of it to occur instead at the first place of detention when the accused arrives there, especially as the search of property carried by an accused to the place of detention has additional justifications, similar to those which justify a search of the person of one who is arrested.' Id., at 239, 80 S.Ct. at 697.
7
The courts of appeals have followed this same rule, holding that both the person and the property in his immediate possession may be searched at the station house after the arrest has occurred at another place and if evidence of crime is discovered, it may be seized and admitted in evidence.4 Nor is there any doubt that clothing or other belongings may be seized upon arrival of the accused at the place of detention and later subjected to laboratory analysis or that the test results are admissible at trial.5
8
Conceding all this, the Court of Appeals in this case nevertheless held that a warrant is required where the search occurs after the administrative mechanics of arrest have been completed and the prisoner is incarcerated. But even on these terms, it seems to us that the normal processes incident to arrest and custody had not been completed when Edwards was placed in his cell on the night of May 31. With or without probable cause, the authorities were entitled at that point not only to search Edwards' clothing but also to take it from him and keep it in official custody. There was testimony that this was the standard practice in this city.6 The police were also entitled to take from Edwards any evidence of the crime in his immediate possession, including his clothing. And the Court of Appeals acknowledged that contemporaneously with or shortly after the time Edwards went to his cell, the police had probable cause to believe that the articles of clothing he wore were themselves material evidence of the crime for which he had been arrested. 474 F.2d, at 1210. But it was late at night; no substitute clothing was then available for Edwards to wear, and it would certainly have been unreasonable for the police to have stripped respondent of his clothing and left him exposed in his cell throughout the night. Cf. United States v. Caruso, 358 F.2d 184, at 185—186 (CA2), cert. denied, 385 U.S. 862, 87 S.Ct. 116, 17 L.Ed.2d 88 (1966). When the substitutes were purchased the next morning, the clothing he had been wearing at the time of arrest was taken from him and subjected to laboratory analysis. This was no more than taking from respondent the effects in his immediate possession that constituted evidence of crime. This was and is a normal incident of a custodial arrest, and reasonable delay in effectuating it does not change the fact that Edwards was no more imposed upon than he could have been at the time and place of the arrest or immediately upon arrival at the place of detention. The police did no more on June 1 than they were entitled to do incident to the usual custodial arrest and incarceration.
9
Other closely related considerations sustain the examination of the clothing in this case. It must be remembered that on both May 31 and June 1 the police had lawful custody of Edwards and necessarily of the clothing he wore. When it became apparent that the articles of clothing were evidence of the crime for which Edwards was being held, the police were entitled to take, examine, and preserve them for use as evidence, just as they are normally permitted to seize evidence of crime when it is lawfully encountered. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) (plurality opinion); Zap v. United States, 328 U.S. 624, 66 S.Ct. 1277, 90 L.Ed. 1477 (1946), vacated on other grounds, 330 U.S. 800, 67 S.Ct. 857, 91 L.Ed. 1259 (1947). Surely, the clothes could have been brushed down and vacuumed while Edwards had them on in the cell, and it was similarly reasonable to take and examine them as the police did, particularly in view of the existence of probable cause linking the clothes to the crime. Indeed, it is difficult to perceive what is unreasonable about the police's examining and holding as evidence those personal effects of the accused that they already have in their lawful custody as the result of a lawful arrest.
10
In Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), an accused had been arrested for a narcotics offense and his automobile impounded preparatory to institution of forfeiture proceedings. The car was searched a week later without a warrant and evidence seized that was later introduced at the defendant's criminal trial. The warrantless search and seizure were sustained because they were 'closely related to the reason petitioner was arrested, the reason his car had been impounded, and the reason it was being retained. . . . It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it.' Id., at 61—62, 87 S.Ct., at 791. It was no answer to say that the police could have obtained a search warrant, for the Court held the test to be, not whether it was reasonable to procure a search warrant, but whether the search itself was reasonable, which it was. Id., at 62, 87 S.Ct., at 791. United States v. Caruso, supra, expresses similar views. There, defendant's clothes were not taken until six hours after his arrival at a place of detention. The Court of Appeals properly held that no warrant was required:
11
'He and his clothes were constantly in custody from the moment of his arrest, and the inspection of his clothes and the holding of them for use in evidence were, under the circumstances, reasonable and proper.' 358 F.2d, at 185 (citations omitted).
12
Caruso is typical of most cases in the courts of appeals that have long since concluded that once the accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing, on the one hand, and the taking of the property for use as evidence, on the other. This is true where the clothing or effects are immediately seized upon arrival at the jail, held under the defendant's name in the 'property room' of the jail, and at a later time searched and taken for use at the subsequent criminal trial.7 The result is the same where the property is not physically taken from the defendant until sometime after his incarceration.8
13
In upholding this search and seizure, we do not conclude that the Warrant Clause of the Fourth Amendment is never applicable to postarrest seizures of the effects of an arrestee.9 But we do think that the Court of Appeals for the First Circuit captured the essence of situations like this when it said in United States v. DeLeo, 422 F.2d 487, 493 (1970) (footnote omitted):
14
'While the legal arrest of a person should not destroy the privacy of his premises, it does—for at least a reasonable time and to a reasonable extent—take his own privacy out of the realm of protection from police interest in weapons, means of escape, and evidence.'
15
The judgment of the Court of Appeals is reversed.
16
So ordered.
17
Reversed.
18
Mr. Justice STEWART, with whom Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice MARSHALL join, dissenting.
19
The Court says that the question before us 'is whether the Fourth Amendment should be extended' to prohibit the warrantless seizure of Edwards' clothing. I think, on the contrary, that the real question in this case is whether the Fourth Amendment is to be ignored. For in my view the judgment of the Court of Appeals can be reversed only by disregarding established Fourth Amendment principles firmly embodied in many previous decisions of this Court.
20
As the Court has repeatedly emphasized in the past, 'the most basic constitutional rule in this area is that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions." Coolidge v. New Hampshire, 403 U.S. 443, 454—455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564; Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576. Since it is conceded here that the seizure of Edwards' clothing was not made pursuant to a warrant, the question becomes whether the Government has met its burden of showing that the circumstances of this seizure brought it within one of the 'jealously and carefully drawn'1 exceptions to the warrant requirement.
21
The Court finds a warrant unnecessary in this case because of the custodial arrest of the respondent. It is, of course, well settled that the Fourth Amendment permits a warrantless search or seizure incident to a constitutionally valid custodial arrest. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427; Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. But the mere fact of an arrest does not allow the police to engage in warrantless searches of unlimited geographic or temporal scope. Rather, the search must be spatially limited to the person of the arrestee and the area within his reach, Chimel v. California, supra, and must, as to time, be 'substantially contemporaneous with the arrest,' Stoner v. California, 376 U.S. 483, 486, 84 S.Ct. 889, 891, 11 L.Ed.2d 856; Preston v. United States, 376 U.S. 364, 367—368, 84 S.Ct. 881, 883—884, 11 L.Ed.2d 777.
22
Under the facts of this case, I am unable to agree with the Court's holding that the search was 'incident' to Edwards' custodial arrest. The search here occurred fully 10 hours after he was arrested, at a time when the administrative processing and mechanics of arrest had long since come to an end. His clothes were not seized as part of an 'inventory' of a prisoner's effects, nor were they taken pursuant to a routine exchange of civilian clothes for jail garb.2 And the considerations that typically justify a warrantless search incident to a lawful arrest were wholly absent here. As Mr. Justice Black stated for a unanimous Court in Preston v. United States, supra, at 367, 84 S.Ct., at 883:
23
'The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime—things which might easily happen where the weapon or evidence is on the accused's person or under his immediate control. But these justifications are absent where a search is remote in time or place from the arrest.'3
24
Accordingly, I see no justification for dispensing with the warrant requirement The police had ample time to seek a warrant, and no exigent circumstances were present to excuse their failure to do so. Unless the exceptions to the warrant requirement are to be 'enthroned into the rule,' United States v. Rabinowitz, 339 U.S. 56, 80, 70 S.Ct. 430, 441, 94 L.Ed. 653 (Frankfurter, J., dissenting), this is precisely the sort of situation where the Fourth Amendment requires a magistrate's prior approval for a search.
25
The Court says that the relevant question is 'not whether it was reasonable to procure a search warrant, but whether the search itself was reasonable.' Ante, at 807. Precisely such a view, however, was explicitly rejected in Chimel v. California, supra, at 764—765, 89 S.Ct., at 2041, where the Court characterized the argument as 'founded on little more than a subjective view regarding the acceptability of certain sorts of police conduct, and not on considerations relevant to Fourth Amendment interests.' As they were in Chimel, the words of Mr. Justice Frankfurter are again most relevant here:
26
'To say that the search must be reasonable is to require some criterion of reason. It is no guide at all either for a jury or for district judges or the police to say that an 'unreasonable search' is forbidden—that the search must be reasonable. What is the test of reason which makes a search reasonable? The test is the reason underlying and expressed by the Fourth Amendment: the history and the experience which it embodies and the safeguards afforded by it against the evils to which it was a response. There must be a warrant to permit search, barring only inherent limitations upon that requirement when there is a good excuse for not getting a search warrant . . ..' United States v. Rabinowitz, supra, at 83, 70 S.Ct., at 443 (dissenting opinion).
27
The intrusion here was hardly a shocking one, and it cannot be said that the police acted in bad faith. The Fourth Amendment, however, was not designed to apply only to situations where the intrusion is massive and the violation of privacy shockingly flagrant. Rather, as the Court's classic admonition in Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746 put the matter:
28
'It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty to courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.'
29
Because I believe that the Court today unjustifiably departs from well-settled constitutional principles, I respectfully dissent.
1
Edwards (hereafter also referred to as respondent) had an alleged confederate, William T. Livesay, who was corespondent in this case, but died after the petition for certiorari was granted. We therefore vacate the judgment as to him and remand the case to the District Court with directions to dismiss the indictment. Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971).
2
The Court stated that it could not agree with United States v. Williams, 416 F.2d 4 (CA5 1969), and United States v. Caruso, 358 F.2d 184 (CA2), cert. denied, 385 U.S. 862, 87 S.Ct. 116, 17 L.Ed.2d 88 (1966).
3
'A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable' search under that Amendment.' United States v. Robinson, supra, at 235, 94 S.Ct., at 477.
4
United States v. Manar, 454 F.2d 342 (CA7 1971); United States v. Gonzalez-Perez, 426 F.2d 1283 (CA5 1970); United States v. DeLeo, 422 F.2d 487 (CA1 1970); United States v. Williams, supra; United States v. Miles, 413 F.2d 34 (CA3 1969); Ray v. United States, 412 F.2d 1052 (CA9 1969); Westover v. United States, 394 F.2d 164 (CA9 1968); United States v. Frankenberry, 387 F.2d 337 (CA2 1967); Evalt v. United States, 382 F.2d 424 (CA9 1967); Malone v. Crouse, 380 F.2d 741 (CA10 1967); Cotton v. United States, 371 F.2d 385 (CA9 1967); Miller v. Eklund, 364 F.2d 976 (CA9 1966); Hancock v. Nelson, 363 F.2d 249 (CA1 1966); Golliher v. United States, 362 F.2d 594 (CA8 1966); Rodgers v. United States, 362 F.2d 358 nCA8), cert. denied, 385 U.S. 993, 87 S.Ct. 608, 17 L.Ed.2d 454 (1966); United States v. Caruso, supra; Whalem v. United States, 120 U.S.App.D.C. 331, 346 F.2d 812, cert. denied, 382 U.S. 862, 86 S.Ct. 124, 15 L.Ed.2d 100 (1965); Grillo v. United States, 336 F.2d 211 (CA1 1964), cert. denied sub nom. Gorin v. United States, 379 U.S. 971, 85 S.Ct. 669, 13 L.Ed.2d 563 (1965); Robinson v. United States, 109 U.S.App.D.C. 22, 283, F.2d 508 (1960); Baskerville v. United States, 227 F.2d 454 (CA10 1955).
5
See, e.g., United States v. Caruso, supra; United States v. Williams, supra; Golliher v. United States, supra; Whalem v. United States, supra; Robinson v. United States, supra; Evalt v. United States, supra; Hancock v. Nelson, supra.
6
App., 6. Historical evidence points to the established and routine custom of permitting a jailer to search the person who is being processed for confinement under his custody and control. See, e.g., T. Gardner & V. Manian, Principles and Cases of the Law of Arrest, Search, and Seizure 200 (1974); E. Fisher, Search and Seizure 71 (1970). While '(a) rule of practice must not be allowed . . . to prevail over a constitutional right,' Gouled v. United States, 255 U.S. 298, 313, 41 S.Ct. 261, 266, 65 L.Ed. 647 (1921), little doubt has ever been expressed about the validity or reasonableness of such searches incident to incarceration. T Taylor, Two Studies in Constitutional Interpretation 50 (1969).
7
See Evalt v. United States, 382 F.2d 424 (CA9 1967); Westover v. United States, 394 F.2d 164 (CA9 1968); Baskerville v. United States, 227 F.2d 454 (CA10 1955). In Baskerville, the effects were taken for safekeeping on December 23 but re-examined and taken as evidence on January 6. Brett v. United States, 412 F.2d 401 (CA5 1969), is contra. There the defendant's clothes were taken from him shortly after arrival at the jail, as was the custom, and held in the property room of the jail. Three days later the clothing was searched and incriminating evidence found. A divided panel of the Court of Appeals held the evidence inadmissible for want of a warrant authorizing the search.
8
Hancock v. Nelson, 363 F.2d 249 (CA1 1966); Malone v. Crouse, 380 F.2d 741 (CA10 1967); United States v. Caruso, 358 F.2d 184 (CA2 1966). In Hancock, the defendant was first taken into custody at 12:51 a.m. His clothes were taken at 2 p.m. on the same day, two hours after probable cause to do so eventuated.
9
Holding the Warrant Clause inapplicable in the circumstances present here does not leave law enforcement officials subject to no restraints. This type of police conduct 'must (still) be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures.' Terry v. Ohio, 392 U.S. 1, 20, 88 .s.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). But the Court of Appeals here conceded that probable cause existed for the search and seizure of respondent's clothing, and respondent complains only that a warrant should have been secured. We thus have no occasion to express a view concerning those circumstances surrounding custodial searches incident to incarceration which might 'violate the dictates of reason either because of their number or their manner of perpetration.' Charles v. United States, 278 F.2d 386, 389 (CA9), cert. denied, 364 U.S. 831, 81 S.Ct. 46, 5 L.Ed.2d 59 (1960). Cf. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952).
1
Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514.
2
The Government conceded at oral argument that the seizure of the respondent's clothing was not a matter of routine jail procedure, but was undertaken solely for the purpose of searching for the incriminating paint chips.
No contention is made that the warrantless seizure of the clothes was necessitated by the exigencies of maintaining discipline or security within the jail system. There is thus no occasion to consider the legitimacy of warrantless searches or seizures in a penal institution based upon that quite different rationale.
3
No claim is made that the police feared that Edwards either possessed a weapon or was planning to destroy the paint chips on his clothing. Indeed, the Government has not even suggested that he was aware of the presence of the paint chips on his clothing.
| 01
|
416 U.S. 1
94 S.Ct. 1536
39 L.Ed.2d 797
VILLAGE OF BELLE TERRE et al., Appellants,v.Bruce BORAAS et al.
No. 73—191.
Argued Feb. 19, 20, 1974.
Decided April 1, 1974.
Syllabus
A New York village ordinance restricted land use to one-family dwellings, defining the word 'family' to mean one or more persons related by blood, adoption, or marriage, or not more than two unrelated persons, living and cooking together as a single housekeeping unit and expressly excluding from the term lodging, boarding, fraternity, or multiple-dwelling houses. After the owners of a house in the village, who had leased it to six unrelated college students, were cited for violating the ordinance, this action was brought to have the ordinance declared unconstitutional as violative of equal protection and the rights of association, travel, and privacy. The District Court held the ordinance constitutional, and the Court of Appeals reversed. Held:
1. Economic and social legislation with respect to which the legislature has drawn lines in the exercise of its discretion, will be upheld if it is 'reasonable, not arbitrary,' and bears 'a rational relationship to a (permissible) state objective,' Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 and here the ordinance—which is not aimed at transients and involves no procedural disparity inflicted on some but not on others or deprivation of any 'fundamental' right—meets that constitutional standard and must be upheld as valid land-use legislation addressed to family needs. Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27. Pp. 7—9.
2. The fact that the named tenant appellees have vacated the house does not moot this case as the challenged ordinance continues to affect the value of the property. Pp. 9—10.
2 Cir., 476 F.2d 806, reversed.
Bernard E. Gegan, Brooklyn, N.Y., for appellants.
Lawrence G. Sager, New York City, for appellees.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Belle Terre is a village on Long Island's north shore of about 220 homes inhabited by 700 people. Its total land area is less than one square mile. It has restricted land use to one-family dwellings excluding lodging houses, boarding houses, fraternity houses, or multiple-dwelling houses. The word 'family' as used in the ordinance means, '(o)ne or more persons related by blood, adoption, or marriage, living and cooking together as a single housekeeping unit, exclusive of household servants. A number of persons but not exceeding two (2) living and cooking together as a single housekeeping unit through not related by blood, adoption, or marriage shall be deemed to constitute a family.'
2
Appellees, the Dickmans, are owners of a house in the village and leased it in December 1971 for a term of 18 months to Michael Truman. Later Bruce Boraas became a colessee. Then Anne Parish moved into the house along with three others. These six are students at nearby State University at Stony Brook and none is related to the other by blood, adoption, or marriage. When the village served the Dickmans with an 'Order to Remedy Violations' of the ordinance,1 the owners plus three tenants2 thereupon brought this action under 42 U.S.C. § 1983 for an injunction and a judgment declaring the ordinance unconstitutional. The District Court held the ordinance constitutional, 367 F.Supp. 136, and the Court of Appeals reversed, one judge dissenting. 2 Cir., 476 F.2d 806. The case is here by appeal, 28 U.S.C. § 1254(2); and we noted probable jurisdiction, 414 U.S. 907, 94 S.Ct. 234, 38 L.Ed.2d 145.
3
This case brings to this Court a different phase of local zoning regulations from those we have previously reviewed. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114,71 L.Ed. 303, involved a zoning ordinance classifying land use in a given area into six categories. The Dickmans' tracts fell under three classifications: U—2, which included two-family dwellings; U 3, which included apartments, hotels, churches, schools, private clubs, hospitals, city hall and the like; and U—6, which included sewage disposal plants, incinerators, scrap storage, cemeteries, oil and gas storage and so on. Heights of buildings were prescribed for each zone; also, the size of land areas required for each kind of use was specified. The land in litigation was vacant and being held for industrial development; and evidence was introduced showing that under the restricted-use ordinance the land would be greatly reduced in value. The claim was that the landowner was being deprived of liberty and property without due process within the meaning of the Fourteenth Amendment.
4
The Court sustained the zoning ordinance under the police power of the State, saying that the line 'which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions.' Id., at 387, 47 S.Ct., at 118. And the Court added: 'A nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard. If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.' Id., at 388, 47 S.Ct., at 118. The Court listed as considerations bearing on the constitutionality of zoning ordinances the danger of fire or collapse of buildings, the evils of overcrowding people, and the possibility that 'offensive trades, industries, and structures' might 'create nuisance' to residential sections. Ibid. But even those historic police power problems need not loom large or actually be existent in a given case. For the exclusion of 'all industrial establishments' does not mean that 'only offensive or dangerous industries will be excluded.' Ibid. That fact does not invalidate the ordinance; the Court held:
5
'The inclusion of a reasonable margin to insure effective enforcement, will not put upon a law, otherwise valid, the stamp of invalidity. Such laws may also find their justification in the fact that, in some fields, the bad fades into the good by such insensible degrees that the two are not capable of being readily distinguished and separated in terms of legislation.' Id., at 388—389, 47 S.Ct., at 118.
6
The main thrust of the case in the mind of the Court was in the exclusion of industries and apartments, and as respects that it commented on the desire to keep residential areas free of 'disturbing noises'; 'increased traffic'; the hazard of 'moving and parked automobiles'; the 'depriving children of the privilege of quiet and open spaces for play, enjoyed by those in more favored localities.' Id., at 394, 47 S.Ct., at 120. The ordinance was sanctioned because the validity of the legislative classification was 'fairly debatable' and therefore could not be said to be wholly arbitrary. Id., at 388, 47 S.Ct., at 118.
7
Our decision in Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27, sustained a land use project in the District of Columbia against a landowner's claim that the taking violated the Due Process Clause and the Just Compensation Clause of the Fifth Amendment. The essence of the argument against the law was, while taking property for ridding an area of slums was permissible, taking it 'merely to develop a better balanced, more attractive community' was not, id., at 31, 75 S.Ct., at 102. We refused to limit the concept of public welfare that may be enhanced by zoning regulations.3 We said:
8
'Miserable and disreputable housing conditions may do more than spread disease and crime and immorality. They may also suffocate the spirit by reducing the people who live there to the status of cattle. They may indeed make living an almost insufferable burden. They may also be an ugly sore, a blight on the community which robs it of charm, which makes it a place from which men turn. The misery of housing may despoil a community as an open sewer may ruin a river.
9
'We do not sit to determine whether a particular housing project is or is not desirable. The concept of the public welfare is broad and inclusive. . . . The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.' Id., at 32—33, 75 S.Ct., at 102.
10
If the ordinance segregated one area only for one race, it would immediately be suspect under the reasoning of Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149 where the Court invalidated a city ordinance barring a black from acquiring real property in a white residential area by reason of an 1866 Act of Congress, 14 Stat. 27, now 42 U.S.C. § 1982, and an 1870 Act, § 17, 16 Stat. 144, now 42 U.S.C. § 1981, both enforcing the Fourteenth Amendment. 245 U.S., at 78—82, 38 S.Ct. at 19—21. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189.
11
In Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 49 S.Ct. 50, 73 L.Ed. 210, Seattle had a zoning ordinance that permitted a "philanthropic home for children or for old people" in a particular district "when the written consent shall have been obtained of the owners of two-thirds of the property within four hundred (400) feet of the proposed building." Id., at 118, 49 S.Ct., at 50. The Court held that provision of the ordinance unconstitutional, saying that the existing owners could 'withhold consent for selfish reasons or arbitrarily and may subject the trustee (owner) to their will or caprice.' Id., at 122, 49 S.Ct., at 52. Unlike the billboard cases (e.g., Cusack Co. v. City of Chicago, 242 U.S. 526, 37 S.Ct. 190, 61 L.Ed. 472), the Court concluded that the Seattle ordinance was invalid since the proposed home for the aged poor was not shown by its maintenance and construction 'to work any injury, inconvenience or annoyance to the community, the district or any person.' 278 U.S., at 122, 49 S.Ct., at 52.
12
The present ordinance is challenged on several grounds: that it interferes with a person's right to travel; that it interferes with the right to migrate to and settle within a State; that it bars people who are uncongenial to the present residents; that it expresses the social preferences of the residents for groups that will be congenial to them; that social homogeneity is not a legitimate interest of government; that the restriction of those whom the neighbors do not like trenches on the newcomers' rights of privacy; that it is of no rightful concern to villagers whether the residents are married or unmarried; that the ordinance is antithetical to the Nation's experience, ideology, and self-perception as an open, egalitarian, and integrated society.4
13
We find none of these reasons in the record before us. It is not aimed at transients. Cf. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600. It involves no procedural disparity inflicted on some but not on others such as was presented by Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891. It involves no 'fundamental' right guaranteed by the Constitution, such as voting, Harper v. Virginia State Board, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169; the right of association, NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; the right of access to the courts, NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405; or any rights of privacy, cf. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510; Eisenstadt v. Baird, 405 U.S. 438, 453—454, 92 S.Ct. 1029, 1038—1039, 31 L.Ed.2d 349. We deal with economic and social legislation where legislatures have historically drawn lines which we respect against the charge of violation of the Equal Protection Clause if the law be "reasonable, not arbitrary" (quoting F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989) and bears 'a rational relationship to a (permissible) state objective.' Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225.
14
It is said, however, that if two unmarried people can constitute a 'family,' there is no reason why three or four may not. But every line drawn by a legislature leaves some out that might well have been included.5 That exercise of discretion, however, is a legislative, not a judicial, function.
15
It is said that the Belle Terre ordinance reeks with an animosity to unmarried couples who live together.6 There is no evidence so support it; and the provision of the ordinance bringing within the definition of a 'family' two unmarried people belies the charge.
16
The ordinance places no ban on other forms of association, for a 'family' may, so far as the ordinance is concerned, entertain whomever it likes.
17
The regimes of boarding houses, fraternity houses, and the like present urban problems. More people occupy a given space; more cars rather continuously pass by; more cars are parked; noise travels with crowds.
18
A quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land-use project addressed to family needs. This goal is a permissible one within Berman v. Parker, supra. The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.
19
The suggestion that the case may be moot need not detain us. A zoning ordinance usually has an impact on the value of the property which it regulates. But in spite of the fact that the precise impact of the ordinance sustained in Euclid on a given piece of property was not known, 272 U.S., at 397, 47 S.Ct., at 121, the Court, considering the matter a controversy in the realm of city planning, sustained the ordinance. Here we are a step closer to the impact of the ordinance on the value of the lessor's property. He has not only lost six tenants and acquired only two in their place; it is obvious that the scale of rental values rides on what we decide today. When Berman reached us it was not certain whether an entire tract would be taken or only the buildings on it and a scenic easement. 348 U.S., at 36, 75 S.Ct., at 104. But that did not make the case any the less a controversy in the constitutional sense. When Mr. Justice Holmes said for the Court in Block v. Hirsh, 256 U.S. 135, 155, 41 S.Ct. 458, 459, 65 L.Ed. 865, 'property rights may be cut down, and to that extent taken, without pay,' he stated the issue here. As is true in most zoning cases, the precise impact on value may, at the threshold of litigation over validity, not yet be known.
20
Reversed.
21
Mr. Justice BRENNAN, dissenting.
22
The constitutional challenge to the village ordinance is premised solely on alleged infringement of associational and other constitutional rights of tenants. But the named tenant appellees have quit the house, thus raising a serious question whether there now exists a cognizable 'case or controversy' that satisfies that indispensable requisite of Art. III of the Constitution. Existence of a case or controversy must, of course, appear at every stage of review, see, e.g., Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 712, 35 L.Ed.2d 147 (1973); Steffel v. Thompson, 415 U.S. 452, 459 n. 10, 94 S.Ct. 1209, 1216, 39 L.Ed.2d 505 (1974). In my view it does not appear at this stage of this case.
23
Plainly there is no case or controversy as to the named tenant appellees since, having moved out, they no longer have an interest, associational, economic or otherwise, to be vindicated by invalidation of the ordinance. Whether there is a cognizable case or controversy must therefore turn on whether the lessor appellees may attack the ordinance on the basis of the constitutional rights of their tenants.
24
The general 'weighty' rule of practice is 'that a litigant may only assert his own constitutional rights or immunities,' United States v. Raines, 362 U.S. 17, 22, 80 S.Ct. 519, 523, 4 L.Ed.2d 524 (1960). A pertinent exception, however, ordinarily limits a litigant to the assertion of the alleged denial of another's constitutional rights to situations in which there is: (1) evidence that as a direct consequence of the denial of constitutional rights of the others, the litigant faces substantial economic injury, Pierce v. Society of Sisters, 268 U.S. 510, 535—536, 45 S.Ct. 571, 573—574, 69 L.Ed. 1070 (1925); Barrows v. Jackson, 346 U.S. 249, 255—256, 73 S.Ct. 1031, 1034—1035, 97 L.Ed. 1586 (1953), or criminal prosecution, Griswold v. Connecticut, 381 U.S. 479, 481, 85 S.Ct. 1678, 1679, 14 L.Ed.2d 510 (1965); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), and (2) a showing that the litigant's and the others' interests intertwine and unless the litigant may assert the constitutional rights of the others, those rights cannot effectively be vindicated. Griswold v. Connecticut, supra; Eisenstadt v. Baird, supra; see also NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958).
25
In my view, lessor appellees do not, on the present record, satisfy either requirement of the exception. Their own brief negates any claim that they face economic loss. The brief states that 'there is nothing in the record to support the contention that in a middle class, suburban residential community like Belle Terre, traditional families are willing to pay more or less than students with limited means like the Appellees.' Brief for Appellees 54—55. And whether they face criminal prosecution for violations of the ordinance is at least unclear. The criminal summons served on them on July 19, 1972, was withdrawn because not preceded, as required by the village's procedure, by an order requiring discontinuance of violations within 48 hours. An order to discontinue violation was served thereafter on July 31, but was not followed by service of a criminal summons when the violation was not discontinued within 48 hours.*
26
The Court argues that, because a zoning ordinance 'has an impact on the value of the property which it regulates,' there is a cognizable case or controversy. But even if lessor appellees for that reason have a personal stake, and we were to concede that landlord and tenant interests intertwine in respect of the ordinance, I cannot see, on the present record, how it can be concluded that 'it would be difficult if not impossible,' Barrows v. Jackson, supra, 346 U.S., at 257, 73 S.Ct., at 1035, for present or prospective unrelated tenant groups of more than two to assert their own rights before the courts, since the departed tenant appellees had no difficulty in doing so. Thus, the second requirement of the exception would not presently appear to be satisfied. Accordingly it is irrelevant that the hose was let, as we are now informed, to other unrelated tenants on a month-to-month basis after the tenant appellees moved out. None of the new tenants has sought to intervene in this suit. Indeed, for all that appears, they too may have moved out and the house may be vacant.
27
I dissent and would vacate the judgment of the Court of Appeals and remand to the District Court for further proceedings. If the District Court determines that a cognizable case or controversy no longer exists, the complaint should be dismissed. Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969).
28
Mr. Justice MARSHALL, dissenting.
29
This case draws into question the constitutionality of a zoning ordinance of the incorporated village of Belle Terre, New York, which prohibits groups of more than two unrelated persons, as distinguished from groups consisting of any number of persons related by blood, adoption, or marriage, from occupying a residence within the confines of the township.1 Lessor-appellees, the two owners of a Belle Terre residence, and three unrelated student tenants challenged the ordinance on the ground that it establishes a classification between households of related and unrelated individuals, which deprives them of equal protection of the laws. In my view, the disputed classification burdens the students' fundamental rights of association and privacy guaranteed by the First and Fourteenth Amendments. Because the application of strict equal protection scrutiny is therefore required, I am at odds with my Brethren's conclusion that the ordinance may be sustained on a showing that it bears a rational relationship to the accomplishment of legitimate governmental objectives.
30
I am in full agreement with the majority that zoning is a complex and important function of the State. It may indeed be the most essential function performed by local government, for it is one of the primary means by which we protect that sometimes difficult to define concept of quality of life. I therefore continue to adhere to the principle of Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926), that deference should be given to governmental judgments concerning proper land-use allocation. That deference is a principle which has served this Court well and which is necessary for the continued development of effective zoning and land-use control mechanisms. Had the owners alone brought this suit alleging that the restrictive ordinance deprived them of their property or was an irrational legislative classification, I would agree that the ordinance would have to be sustained. Our role is not and should not be to sit as a zoning board of appeals.
31
I would also agree with the majority that local zoning authorities may properly act in furtherance of the objectives asserted to be served by the ordinance at issue here: restricting uncontrolled growth, solving traffic problems, keeping rental costs at a reasonable level, and making the community attractive to families. The police power which provides the justification for zoning is not narrowly confined. See Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954). And, it is appropriate that we afford zoning authorities considerable latitude in choosing the means by which to implement such purposes. But deference does not mean abdication. This Court has an obligation to ensure that zoning ordinances, even when adopted in furtherance of such legitimate aims, do not infringe upon fundamental constitutional rights.
32
When separate but equal was still accepted constitutional dogma, this Court struck down a racially restrictive zoning ordinance. Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149 (1917). I am sure the Court would not be hesitant to invalidate that ordinance today. The lower federal courts have considered procedural aspects of zoning,2 and acted to insure that land-use controls are not used as means of confining minorities and the poor to the ghettos of our central cities.3 These are limited but necessary intrusions on the discretion of zoning authorities. By the same token, I think it clear that the First Amendment provides some limitation on zoning laws. It is inconceivable to me that we would allow the exercise of the zoning power to burden First Amendment freedoms, as by ordinances that restrict occupancy to individuals adhering to particular religious, political, or scientific beliefs. Zoning officials properly concern themselves with the uses of land—with, for example, the number and kind of dwellings to be constructed in a certain neighborhood or the number of persons who can reside in those dwellings. But zoning authorities cannot validly consider who those persons are, what they believe, or how they choose to live, whether they are Negro or white, Catholic or Jew, Republican or Democrat, married or unmarried.
33
My disagreement with the Court today is based upon my view that the ordinance in this case unnecessarily burdens appellees' First Amendment freedom of association and their constitutionally guaranteed right to privacy. Our decisions establish that the First and Fourteenth Amendments protect the freedom to choose one's associates. NAACP v. Button, 371 U.S. 415, 430, 83 S.Ct. 328, 336, 9 L.Ed.2d 405 (1963). Constitutional protection is extended, not only to modes of association that are political in the usual sense, but also to those that pertain to the social and economic benefit of the members. Id., at 430—431, 83 S.Ct., at 336 337; Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964). See United Transportation Union v. State Bar of Michigan, 401 U.S. 576, 91 S.Ct. 1076, 28 L.Ed.2d 339 (1971); United Mine Workers of America, Dist. 12 v. Illinois State Bar Ass'n, 389 U.S. 217, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967). The selection of one's living companions involves similar choices as to the emotional, social, or economic benefits to be derived from alternative living arrangements.
34
The freedom of association is often inextricably entwined with the constitutionally guaranteed right of privacy. The right to 'establish a home' is an essential part of the liberty guaranteed by the Fourteenth Amendment. Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923); Griswold v. Connecticut, 381 U.S. 479, 495, 85 S.Ct. 1678, 1687, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring). And the Constitution secures to an individual a freedom 'to satisfy his intellectual and emotional needs in the privacy of his own home.' Stanley v. Georgia, 394 U.S. 557, 565, 89 S.Ct. 1243, 1248, 22 L.Ed.2d 542 (1969); see Paris Adult Theatre I v. Slaton, 413 U.S. 49, 66 67, 93 S.Ct. 2628, 2640—2641, 37 L.Ed.2d 446 (1973). Constitutionally protected privacy is, in Mr. Justice Brandeis' words, 'as against the Government, the right to be let alone . . . the right most valued by civilized man.' Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (dissenting opinion). The choice of household companions—of whether a person's 'intellectual and emotional needs' are best met by living with family, friends, professional associates, or others involves deeply personal considerations as to the kind and quality of intimate relationships within the home. That decision surely falls within the ambit of the right to privacy protected by the Constitution. See Roe v. Wade, 410 U.S. 113, 153, 93 S.Ct. 705, 727, 35 L.Ed.2d 147 (1973); Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349 (1972); Stanley v. Georgia, supra, 394 U.S., at 564—565, 89 S.Ct., at 1247—1248; Griswold v. Connecticut, supra, 381 U.S., at 483, 486, 85 S.Ct., at 1682; Olmstead v. United States, supra, 277 U.S., at 478, 48 S.Ct., at 572 (Brandeis, J., dissenting); Moreno v. Department of Agriculture, 345 F.Supp. 310, 315 (D.C.1972), aff'd, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973).
35
The instant ordinance discriminates on the basis of just such a personal lifestyle choice as to household companions. It permits any number of persons related by blood or marriage, be it two or twenty, to live in a single household, but it limits to two the number of unrelated persons bound by profession, love, friendship, religious or political affiliation, or mere economics who can occupy a single home. Belle Terre imposes upon those who deviate from the community norm in their choice of living companions significantly greater restrictions than are applied to residential groups who are related by blood or marriage, and compose the established order within the community.4 The village has, in effect, acted to fence out those individuals whose choice of lifestyle differs from that of its current residents.5
36
This is not a case where the Court is being asked to nullify a township's sincere efforts to maintain its residential character by preventing the operation of rooming houses, fraternity houses, or other commercial or high-density residential uses. Unquestionably, a town is free to restrict such uses. Moreover, as a general proposition, I see no constitutional infirmity in a town's limiting the density of use in residential areas by zoning regulations which do not discriminate on the basis of constitutionally suspect criteria.6 This ordinance, however, limits the density of occupancy of only those homes occupied by unrelated persons. It thus reaches beyond control of the use of land or the density of population, and undertakes to regulate the way people choose to associate with each other within the privacy of their own homes.
37
It is no answer to say, as does the majority that associational interests are not infringed because Belle Terre residents may entertain whomever they choose. Only last Term Mr. Justice Douglas indicated in concurrence that he saw the right of association protected by the First Amendment as involving far more than the right to entertain visitors. He found that right infringed by a restriction on food stamp assistance, penalizing households of 'unrelated persons.' As Mr. Justice Douglas there said, freedom of association encompasses the 'right to invite the stranger into one's home' not only for 'entertainment' but to join the household as well. United States Department of Agriculture v. Moreno, 413 U.S. 528, 538—545, 93 S.Ct. 2821, 2828—2831 (1973) (concurring opinion). I am still persuaded that the choice of those who will form one's household implicates constitutionally protected rights.
38
Because I believe that this zoning ordinance creates a classification which impinges upon fundamental personal rights, it can withstand constitutional scrutiny only upon a clear showing that the burden imposed is necessary to protect a compelling and substantial governmental interest, Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600 (1969). And, once it be determined that a burden has been placed upon a constitutional right, the onus of demonstrating that no less intrusive means will adequately protect the compelling state interest and that the challenged statute is sufficiently narrowly drawn, is upon the party seeking to justify the burden. See Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974); Speiser v. Randall, 357 U.S. 513, 525—526, 78 S.Ct. 1332, 1341—1342, 2 L.Ed.2d 1460 (1958).
39
A variety of justifications have been proffered in support of the village's ordinance. It is claimed that the ordinance controls population density, prevents noise, traffic and parking problems, and preserves the rent structure of the community and its attractiveness to families. As I noted earlier, these are all legitimate and substantial interests of government. But I think it clear that the means chosen to accomplish these purposes are both overinclusive and underinclusive, and that the asserted goals could be as effectively achieved by means of an ordinance that did not discriminate on the basis of constitutionally protected choices of lifestyle. The ordinance imposes no restriction whatsoever on the number of persons who may live in a house, as long as they are related by marital or sanguinary bonds—presumably no matter how distant their relationship. Nor does the ordinance restrict the number of income earners who may contribute to rent in such a household, or the number of automobiles that may be maintained by its occupants. In that sense the ordinance is underinclusive. On the other hand, the statute restricts the number of unrelated persons who may live in a home to no more than two. It would therefore prevent three unrelated people from occupying a dwelling even if among them they had but one income and no vehicles. While an extended family of a dozen or more might live in a small bungalow, three elderly and retired persons could not occupy the large manor house next door. Thus the statute is also grossly overinclusive to accomplish its intended purposes.
40
There are some 220 residences in Belle Terre occupied by about 700 persons. The density is therefore just above three per household. The village is justifiably concerned with density of population and the related problems of noise, traffic, and the like. It could deal with those problems by limiting each household to a specified number of adults, two or three perhaps, without limitation on the number of dependent children.7 The burden of such an ordinance would fall equally upon all segments of the community. It would surely be better tailored to the goals asserted by the village than the ordinance before us today, for it would more realistically restrict population density and growth and their attendant environmental costs. Various other statutory mechanisms also suggest themselves as solutions to Belle Terre's problems—rent control, limits on the number of vehicles per household, and so forth, but, of course, such schemes are matters of legislative judgment and not for this Court. Appellants also refer to the necessity of maintaining the family character of the village. There is not a shred of evidence in the record indicating that if Belle Terre permitted a limited number of unrelated persons to live together, the residential, familial character of the community would be fundamentally affected.
41
By limiting unrelated households to two persons while placing no limitation on households of related individuals, the village has embarked upon its commendable course in a constitutionally faulty vessel. Cf. Marshall v. United States, 414 U.S. 417, 94 S.Ct. 700, 38 L.Ed.2d 618 (1974) (dissenting opinion). I would find the challenged ordinance unconstitutional. But I would not ask the village to abandon its goal of providing quiet streets, little traffic, and a pleasant and reasonably priced environment in which families might raise their children. Rather, I would commend the village to continue to pursue those purposes but by means of more carefully drawn and even-handed legislation.
42
I respectfully dissent.
1
Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 is not involved here, as on August 2, 1972, when this federal suit was initiated, no state case had been started. The effect of the 'Order to Remedy Violations' was to subject the occupants to liability commencing August 3, 1972. During the litigation the lease expired and it was extended. Anne Parish moved out. Thereafter the other five students left and the owners now hold the home out for sale or rent, including to student groups.
2
Truman, Boraas, and Parish became appellees but not the other three.
3
Vermont has enacted comprehensive statewide land-use controls which direct local boards to develop plans ordering the uses of local land, inter alia, to 'create conditions favorable to transportation, health, safety, civic activities and educational and cultural opportunities, (and) reduce the wastes of financial and human resources which result from either excessive congestion or excessive scattering of population . . ..' Vt.Stat.Ann., Tit. 10, § 6042 (1973). Federal legislation has been proposed designed to assist States and localities in developing such broad objective land-use guidelines. See Senate Committee on Interior and Insular Affairs, Land Use Policy and Planning Assistance Act, S.Rep.No.93 197 (1973).
4
Many references in the development of this thesis are made to F. Turner, The Frontier in American History (1920), with emphasis on his theory that 'democracy (is) born of free land.' Id., at 32.
5
Mr. Justice Holmes made the point a half century ago.
'When a legal distinction is determined, as no one doubts that it may be, between night and day, childhood and maturity, or any other extremes, a point has to be fixed or a line has to be drawn, or gradually picked out by successive decisions, to mark where the change takes place. Looked at by itself without regard to the necessity behind it the line or point seems arbitrary. It might as well or nearly as well be a little more to one side or the other. But when it is seen that a line or point there must be, and that there is no mathematical or logical way of fixing it precisely, the decision of the legislature must be accepted unless we can say that it is very wide of any reasonable mark.' Louisville Gas & Electric Co. v. Coleman, 277 U.S. 32, 41, 48 S.Ct. 423, 426, 72 L.Ed. 770 (dissenting opinion).
6
Department of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782, is therefore inapt as there a household containing anyone unrelated to the rest was denied food stamps.
*
In these circumstances, I agree with the Court that no criminal action was 'pending' when this suit was brought and that therefore the District Court correctly declined to apply the principles of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).
1
The text of the ordinance is reprinted in part, ante, at 2.
2
See Citizens Ass'n of Georgetown v. Zoning Comm'n, 155 U.S.App.D.C. 233, 477 F.2d 402 (1973).
3
See Kennedy Park Homes Ass'n v. City of Lackawanna, 436 F.2d 108 (CA2 1970); Dailey v. City of Lawton, 425 F.2d 1037 (CA10 1970); cf. Gautreaux v. City of Chicago, 480 F.2d 210 (CA7 1973); Crow v. Brown, 457 F.2d 788 (CA5 (1972); Southern Alameda Spanish Speaking Organization v. Union City, 424 F.2d 291 (CA9 1970). See generally Sager, Tight Little Islands: Exclusionary Zoning, Equal Protection, and the Indigent, 21 Stan.L.Rev. 767 (1969); Note, Exclusionary Zoning and Equal Protection, 84 Harv.L.Rev. 1645 (1971); Note, The Responsibility of Local Zoning Authorities to Nonresident Indigents, 23 Stan.L.Rev. 774 (1971).
4
'Perhaps in an ideal world, planning and zoning would be done on a regional basis, so that a given community would have apartments, while an adjoining community would not. But as long as we allow zoning to be done community by community, it is intolerable to allow one municipality (or many municipalities) to close its doors at the expense of surrounding communities and the central city.' Appeal of Girsh, 437 Pa. 237, 245 n. 4, 263 A.2d 395, 399 n. 4 (1970).
5
See generally Note, On Privacy: Constitutional Protection for Personal Liberty, 48 N.Y.U.L.Rev. 670, 740—750 (1973).
6
See Palo Alto Tenants' Union v. Morgan, 487 F.2d 883 (C.A.9 1973).
7
By providing an exception for dependent children, the village would avoid any doubts that might otherwise be posed by the constitutional protection afforded the choice of whether to bear a child. See Molino v. Mayor & Council of Glassboro, 116 N.J.Super. 195, 281 A.2d 401 (1971); cf. Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974).
| 78
|
39 L.Ed.2d 812
94 S.Ct. 1494
416 U.S. 21
The CALIFORNIA BANKERS ASSOCIATION, Appellant,v.George P. SHULTZ, Secretary of the Treasury, et al. George P. SHULTZ, Secretary of the Treasury, et al., Appellants, v. The CALIFORNIA BANKERS ASSOCIATION et al. Fortney H. STARK, Jr., et al., Appellants, v. George P. SHULTZ et al.
Nos. 72—985, 72—1073 and 72—1196.
Argued Jan. 16, 1974.
Decided April 1, 1974.
Syllabus
The Bank Secrecy Act of 1970, which was enacted following extensive hearings concerning the unavailability of foreign and domestic bank records of customers thought to be engaged in illegal activities, authorizes the Secretary of the Treasury to prescribe by regulation certain bank recordkeeping and reporting requirements, the Act's penalties attaching only upon violation of the regulations thus prescribed. (Unless otherwise indicated, references below to the Act also include the accompanying regulations.) The Act is designed to obtain financial information having 'a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings.' Title I of the Act requires financial institutions to maintain records of their customers' identities, to make microfilm copies of checks and similar instruments, and to keep records of certain other items. Title II requires the reporting to the Federal Government of certain foreign and domestic financial transactions. Title II, § 231, requires reports of the transportation of currency and specified instruments exceeding $5,000 into or out of the country, exception being made, inter alia, for banks and security dealers. Section 241 requires individuals with bank accounts or other relationships with foreign banks to provide specified information on a tax return form. Section 221 delegates to the Secretary of the Treasury the authority to require reports of transactions 'if they involve the payment, receipt, or transfer of United States currency, or such other monetary instruments as the Secretary may specify . . .,' § 222 providing that he may require such reports from the domestic financial institution involved, the parties to the transaction, or both, and § 223 providing that he may designate financial institutions to receive the reports. Under the implementing regulations only financial institutions must file reports with the Internal Revenue Service (IRS), and then only where the transaction involves the deposit, withdrawal, exchange, or other payment of currency exceeding $10,000. The regulations provide that the Secretary may grant exemptions from the requirements of the regulations. Suits were brought by various plaintiffs challenging the constitutionality of the Act, principally on the ground that it violated the Fourth Amendment, because when the bank makes and keeps records under compulsion of the Secretary's regulations it acts as a Government agent and thereby engages in a 'seizure' of its customer's records. A three-judge District Court, though upholding the recordkeeping requirements of Title I of the Act and the foreign transaction reporting requirements of Title II, concluded that the domestic reporting provisions of Title II, §§ 221—223, contravened the Fourth Amendment, and enjoined their enforcement. Three separate appeals were taken. In No. 72—958, the California Bankers Association, a plaintiff below, asserts that Title I's recordkeeping provisions violate (1) due process, because there is no rational relationship between the Act's objectives and the required recordkeeping and because the Act is unduly burdensome, and (2) rights of privacy. In No. 72—1196, a bank plaintiff, certain plaintiff depositors, and the American Civil Liberties Union (ACLU) also a plaintiff, as a depositor in a bank subject to the recordkeeping requirements and as a representative of its bank customer members, attack both the Title I recordkeeping requirements and the Title II foreign financial transaction reporting requirements on Fourth Amendment grounds; on Fifth Amendment grounds, as violating the privilege against compulsory self-incrimination; and on First Amendment grounds, as violating free speech and free association rights. In No. 72—1073, the Secretary asserts that the District Court erred in holding Title II's domestic financial transaction reporting requirements facially invalid without considering the actual implementation of the statute by the regulations. Held:
1. Title I's recordkeeping requirements, which are a proper exercise of Congress' power to deal with the problem of crime in interstate and foreign commerce, do not deprive the bank plaintiffs of due process of law. Pp. 45—52.
(a) There is a sufficient nexus between the evil Congress sought to address and the recordkeeping procedure to meet the requirements of the Due Process Clause of the Fifth Amendment, and the fact that banks are not mere bystanders in transactions involving negotiable instruments but have a substantial stake in their availability and acceptance and are the most easily identifiable party to the instruments, makes it appropriate for the banks rather than others to do the recordkeeping. United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609; Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787. Pp. 45 49.
(b) The cost burdens on the banks of the recordkeeping requirements are not unreasonable. P. 50.
(c) The bank plaintiffs' claim that the recordkeeping requirements undermine the right of a depositor effectively to challenge an IRS third-party summons is premature, absent the issuance of such process involving a depositor's transactions. Pp. 51—52.
2. Title I's recordkeeping provisions do not violate the Fourth Amendment rights of either the bank or depositor plaintiffs, the mere maintenance by the bank of records without any requirement that they be disclosed to the Government (which can secure access only by existing legal process) constituting no illegal search and seizure. Pp. 52—54.
3. Title I's recordkeeping provisions do not violate the Fifth Amendment rights of either the bank or depositor plaintiffs. P. 55.
(a) The bank plaintiffs, being corporations, have no constitutional privilege against compulsory self-incrimination by virtue of the Fifth Amendment. Hale v. Henkel, 201 U.S. 43, 74—75, 26 S.Ct. 370, 378—379, 50 L.Ed. 652. P. 55.
(b) A depositor plaintiff incriminated by evidence produced by a third party sustains no violation of his own Fifth Amendment rights. Johnson v. United States, 228 U.S. 457, 458, 33 S.Ct. 572, 57 L.Ed. 919; Couch v. United States, 409 U.S. 322, 328, 93 S.Ct. 611, 615, 34 L.Ed.2d 548. P. 55.
4. The ACLU's claim that Title I's recordkeeping requirements violate its members' First Amendment rights since the challenged provisions could possibly be used to identify its members and contributors (cf. NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488), is premature, the Government having sought no such disclosure here. Pp. 55—57.
5. The reporting requirements in Title II applicable to foreign financial dealings, which single out transactions with the greatest potential for avoiding enforcement of federal laws and which involve substantial sums, do not abridge plaintiffs' Fourth Amendment rights and are well within Congress' powers to legislate with respect to foreign commerce. Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 285, 69 L.Ed. 543; Almeida-Sanchez v. United States, 413 U.S. 266, 272, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596. Pp. 59—63.
6. The regulations for the reporting by financial institutions of domestic financial transactions are reasonable and abridge no Fourth Amendment rights of such institutions, which are themselves parties to the transactions involved, since neither 'incorporated nor unincorporated associations (have) an unqualified right to conduct their affairs in secret.' United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S.Ct. 357, 368, 94 L.Ed. 401. Pp. 63—67.
7. The depositor plaintiffs, who do not allege engaging in the type of $10,000 domestic currency transaction requiring reporting, lack standing to challenge the domestic reporting regulations. It is therefore unnecessary to consider contentions made by the bank and depositor plaintiffs that the regulations are constitutionally defective because they do not require the financial institution to notify the customer that a report will be filed concerning the domestic currency transaction. Pp. 67—70.
8. The depositor plaintiffs who are parties in this litigation are premature in challenging the foreign and domestic reporting provisions under the Fifth Amendment. Pp. 72—75.
(a) Since those plaintiffs merely allege that they intend to engage in foreign currency transactions with foreign banks and make no additional allegation that any of the information required by the Secretary will tend to incriminate them, their challenge to the foreign reporting requirements cannot be considered at this time. Communist Party v. SACB, 367 U.S. 1, 105—110, 81 S.Ct. 1357, 1415—1418, 6 L.Ed.2d 625, followed; Albertson v. SACB, 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165, distinguished. Pp. 72—74.
(b) The depositor plaintiffs' challenge to the domestic reporting requirements are similarly premature, since there is no allegation that any depositor engaged in a $10,000 domestic transaction with a bank that the latter was required to report and no allegation that any bank report would contain information incriminating any depositor. Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889; Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906, and Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923, distinguished. P. 75.
9. The bank plaintiffs cannot vicariously assert Fifth Amendment claims on behalf of their depositors under the circumstances present here, since the depositors cannot assert those claims themselves at this time. See par. 8, supra. Pp. 71 72.
10. The contentions of the ACLU that the reporting requirements with respect to foreign and domestic transactions invade its First Amendment associational interests are too speculative and hypothetical to warrant consideration, in view of the fact that the ACLU alleged only that it maintains accounts at a San Francisco bank but not that it regularly engages in abnormally large domestic currency transactions, transports or receives monetary instruments from foreign commercial channels, or maintains foreign bank accounts. Pp. 75—76.
347 F.Supp. 1242, affirmed in part, reversed in part, and remanded.
John M. Anderson, San Francisco, Cal., for California Bankers Assn.
Charles C. Marson, San Francisco, Cal., for Fortney H. Stark, Jr., and others.
Lawrence G. Wallace, Washington, D.C., for George P. Shultz and others.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
These appeals present questions concerning the constitutionality of the socalled Bank Secrecy Act of 1970 (Act), and the implementing regulations promulgated thereunder by the Secretary of the Treasury. The Act, Pub.L. 91—508, 84 Stat. 1114, 12 U.S.C. §§ 1730d, 1829b, 1951—1959, and 31 U.S.C. §§ 1051—1062, 1081—1083, 1101—1105, 1121 1122, was enacted by Congress in 1970 following extensive hearings concerning the unavailability of foreign and domestic bank records of customers thought to be engaged in activities entailing criminal or civil liability. Under the Act, the Secretary of the Treasury is authorized to prescribe by regulation certain recordkeeping and reporting requirements for banks and other financial insituations in this country. Because it has a bearing on our treatment of some of the issues raised by the parties, we think it important to note that the Act's civil and criminal penalties attach only upon violation of regulations promulgated by the Secretary; if the Secretary were to do nothing, the Act itself would impose no penalties on anyone.
2
The express purpose of the Act is to require the maintenance of records, and the making of certain reports, which 'have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings.' 12 U.S.C. §§ 1829b(a)(2), 1951; 31 U.S.C. § 1051. Congress was apparently concerned with two major problems in connection with the enforcement of the regulatory, tax, and criminal laws of the United States.1
3
First, there was a need to insure that domestic banks and financial institutions continue to maintain adequate records of their financial transactions with their customers. Congress found that the recent growth of financial institutions in the United States had been paralleled by an increase in criminal activity which made use of these institutions. While many of the records which the Secretary by regulation ultimately required to be kept had been traditionally maintained by the voluntary action of many domestic financial institutions, Congress noted that in recent years some larger banks had abolished or limited the practice of photocopying checks, drafts, and similar instruments drawn on them and presented for payment. The absence of such records, whether through failure to make them in the first instance or through failure to retain them, was thought to seriously impair the ability of the Federal Government to enforce the myriad criminal, tax, and regulatory provisions of laws which Congress had enacted. At the same time, it was recognized by Congress that such required records would 'not be made automatically available for law enforcement purposes (but could) only be obtained through existing legal process.' H.R.Rep.No. 91—975, p. 10 (1970); see S.Rep.No. 91 1139, p. 5 (1970).
4
In addition, Congress felt that there were situations where the deposit and withdrawal of large amounts of currency or of monetary instruments which were the equivalent of currency should be actually reported to the Government. While reports of this nature had been required by previous regulations issued by the Treasury Department, it was felt that more precise and detailed reporting requirements were needed. The Secretary was therefore authorized to require the reporting of what may be described as large domestic financial transactions in currency or its equivalent.
5
Second, Congress was concerned about a serious and widespread use of foreign financial institutions, located in jurisdictions with strict laws of secrecy as to bank activity, for the purpose of violating or evading domestic criminal, tax, and regulatory enactments. The House Report on the bill, No. 91—975, supra, at 12—13, described the situation in these words:
6
'Considerable testimony was received by the Committee from the Justice Department, the United States Attorney for the Southern District of New York, the Treasury Department, the Internal Revenue Service, the Securities and Exchange Commission, the Defense Department and the Agency for International Development about serious and widespread use of foreign financial facilities located in secrecy jurisdictions for the purpose of violating American law. Secret foreign bank accounts and secret foreign financial institutions have permitted proliferation of 'white collar' crime; have served as the financial underpinning of organized criminal operations in the United States; have been utilized by Americans to evade income taxes, conceal assets illegally and purchase gold; have allowed Americans and others to avoid the law and regulations governing securities and exchanges; have served as essential ingredients in frauds including schemes to defraud the United States; have served as the ultimate depository of black market proceeds from Vietnam; have served as a source of questionable financing for conglomerate and other corporate stock acquisitions, mergers and takeovers; have covered conspiracies to steal from the U.S. defense and foreign aid funds; and have served as the cleansing agent for 'hot' or illegally obtained monies.
7
'The debilitating effects of the use of these secret institutions on Americans and the American economy are vast. It has been estimated that hundreds of millions in tax revenues have been lost. Unwarranted and unwanted credit is being pumped into our markets. There have been some cases of corporation directors, officers and employees who, through deceit and violation of law, enriched themselves or endangered the financial soundness of their companies to the detriment of their stockholders. Criminals engaged in illegal gambling, skimming, and narcotics traffic are operating their financial affairs with an impunity that approaches statutory exemption.
8
'When law enforcement personnel are confronted with the secret foreign bank account or the secret financial institution they are placed in an impossible position. In order to receive evidence and testimony regarding activities in the secrecy jurisdiction they must subject themselves to a time consuming and ofttimes fruitless foreign legal process. Even when procedural obstacles are overcome, the foreign jurisdictions rigidly enforce their secrecy laws against their own domestic institutions and employees.
9
'One of the most damaging effects of an American's use of secret foreign financial facilities is its undermining of the fairness of our tax laws. Secret foreign financial facilities, particularly in Switzerland, are available only to the wealthy. To open a secret Swiss account normally requires a substantial deposit, but such an account offers a convenient means of evading U.S. taxes. In these days when the citizens of this country are crying out for tax reform and relief, it is grossly unfair to leave the secret foreign bank account open as a convenient avenue of tax evasion. The former U. S. Attorney for the Southern District of New York has characterized the secret foreign bank account as the largest single tax loophole permitted by American law.' U.S.Code Cong. & Admin.News 1970, p. 4397.
10
While most of the recordkeeping requirements imposed by the Secretary under the Act merely require the banks to keep records which most of them had in the past voluntarily kept and retained, and while much of the required reporting of domestic transactions had been required by earlier Treasury regulations in effect for nearly 30 years,2 there is no denying the impressive sweep of the authority conferred upon the Secretary by the Bank Secrecy Act of 1970. While an Act conferring such broad authority over transactions such as these might well surprise or even shock those who lived in an earlier era, the latter did not live to see the time when bank accounts would join chocolate, cheese, and watches as a symbol of the Swiss economy. Nor did they live to see the heavy utilization of our domestic banking system by the minions of organized crime as well as by millions of legitimate businessmen. The challenges made here to the Bank Secrecy Act are directed not to any want of legislative authority in Congress to treat the subject, but instead to the Act's asserted violation of specific constitutional prohibitions.
11
* Title I of the Act, and the implementing regulations promulgated thereunder by the Secretary of the Treasury, require financial institutions to maintain records of the identities of their customers, to make microfilm copies of certain checks drawn on them, and to keep records of certain other items. Title II of the Act and its implementing regulations require reports of certain domestic and foreign currency transactions.
A. TITLE I—THE RECORDKEEPING REQUIREMENTS
12
Title I of the Act contains the general recordkeeping requirements for banks and other financial institutions, as provided by the Secretary by regulation. Section 101 of the Act, 12 U.S.C. § 1829b, applies by its terms only to federally insured banks. It contains congressional findings 'that adequate records maintained by insured banks have a high degree of usefulness in criminal, tax, and regulatory investigations and proceedings.' The major requirements of the section are that insured banks record the identities of persons having accounts with them and of persons having signature authority thereover, in such form as the Secretary may require. To the extent that the Secretary determines by regulation that such records would have the requisite 'high degree of usefulness,' the banks must make and maintain microfilm or other reproductions of each check, draft, or other instrument drawn on it and presented to it for payment, and must maintain a record of each check, draft, or other instrument received by it for deposit or collection, together with an identification of the party for whose account it is to be deposited or collected. Section 101 further authorizes the Secretary to require insured banks to maintain a record of the identity of all individuals who engage in transactions which are reportable by the bank under Title II of the Act, and authorizes the Secretary to prescribe the required retention period for such records. Section 102, 12 U.S.C. § 1730d, amends the National Housing Act to authorize the Secretary to apply similar recordkeeping requirements to institutions insured thereunder. Sections 122—123 of the Act, 12 U.S.C. §§ 1952—1953, authorize the Secretary to issue regulations applying similar recordkeeping requirements to additional domestic financial institutions.3
13
Although an initial draft of Title I, see H.R. 15073, 91st Cong., 1st Sess., would have compelled the Secretary to promulgate regulations requiring banks to maintain copies of all items received for collection or presented for payment, the Act as finally passed required the maintenance only of such records and microfilm copies as the Secretary determined to have a 'high degree of usefulness.'4 Upon passage of the Act, the Treasury Department established a task force which consulted with representatives from financial institutions, trade associations, and governmental agencies to determine the type of records which should be maintained. Whereas the original regulations promulgated by the Secretary had required the copying of all checks, the task force decided, and the regulations were accordingly amended, to require check copying only as to checks in excess of $100.5 The regulations also require the copying of only 'on us' checks: checks drawn on the bank or issued and payable by it. 31 CFR § 103.34(b)(3). The regulations exempt from the copying requirements certain 'on us' checks such as dividend, payroll, and employee benefit checks, provided they are drawn on an account expected to average at least one hundred checks per month.6 The regulations also require banks to maintain records of the identity and taxpayer identification number of each person maintaining a financial interest in each deposit or share account opened after June 30, 1972, and to microfilm various other financial documents. 31 CFR § 103.34.7 In addition, the Secretary's regulations require all financial institutions to maintain a microfilm or other copy of each extension of credit in an amount exceeding $5,000 except those secured by interest in real property, and to microfilm each advice, request, or instruction given or received regarding the transfer of funds, currency, or other money or credit in amounts exceeding $10,000 to a person, account, or place outside the United States. 31 CFR § 103.33.
14
Reiterating the stated intent of the Congress, see, e.g., H.R.Rep.No. 91—975, supra, at 10; S.Rep.No. 91—1139, supra, at 5, the regulations provide that inspection, review, or access to the records required by the Act to be maintained is governed by existing legal process. 31 CFR § 103.51.8 Finally, §§ 125—127 of the Act provide for civil and criminal penalties for willful violations of the recordkeeping requirements. 12 U.S.C. §§ 1955—1957.
15
B. TITLE II—FOREIGN FINANCIAL TRANSACTION REPORTING REQUIREMENTS
16
Chapter 3 of Title II of the Act and the regulations promulgated thereunder generally require persons to report the transportation of monetary instruments into or out of the United States, or receipts of such instruments in the United States from places outside the United States, if the transportation or receipt involves instruments of a value greater than $5,000. Chapter 4 of Title II of the Act and the implementing regulations generally require United States citizens, residents, and businessmen to file reports of their relationships with foreign financial institutions. The legislative history of the foreign-transaction reporting provisions indicates that the Congress was concerned with the circumvention of United States regulatory, tax, and criminal laws which United States citizens and residents were accomplishing through the medium of secret foreign bank transactions. S.Rep.No. 91—1139, supra, at 7; H.R.Rep.No. 91—975, supra, at 13.
17
Section 231 of the Act, 31 U.S.C. § 1101, requires anyone connected with the transaction to report, in the manner prescribed by the Secretary, the transportation into or out of the country of monetary instruments9 exceeding $5,000 on any one occasion. As provided by the Secretary's regulations, the report must include information as to the amount of the instrument, the date of receipt, the form of instrument, and the person from whom it was received. See 31 CFR §§ 103.23, 103.25.10 The regulations exempt various classes of persons from this reporting requirement, including banks, brokers or other dealers in securities, common carriers, and others engaged in the business of transporting currency for banks, 31 CFR § 103.23(c). Monetary instruments which are transported without the filing of a required report, or with a materially erroneous report, are subject to forfeiture under § 232 of the Act, 31 U.S.C. § 1102; a person who has failed to file the required report or who has filed a false report is subject to civil penalties under §§ 207 and 233, 31 U.S.C. §§ 1056 and 1103, as well as criminal penalties under § 209 and 210, 31 U.S.C. §§ 1058 and 1059.
18
Section 241 of the Act, 31 U.S.C. § 1121, authorizes the Secretary to prescribe regulations requiring residents and citizens of the United States, as well as nonresidents in the United States and doing business therein, to maintain records and file reports with respect to their transactions and relationships with foreign financial agencies. Pursuant to this authority, the regulations require each person subject to the jurisdiction of the United States to make a report on yearly tax returns of any 'financial interest in, or signature or other authority over, a bank, securities or other financial account in a foreign country.' 31 CFR § 103.24. Violations of the reporting requirement of § 241 as implemented by the regulations are also subject to civil and criminal penalties under § 207, 209, and 210 of the Act, 31 U.S.C. §§ 1056, 1058, and 1059.
19
C. TITLE II—DOMESTIC FINANCIAL TRANSACTION REPORTING REQUIREMENTS
20
In addition to the foreign transaction reporting requirements discussed above, Title II of the Act provides for certain reports of domestic transactions where such reports have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings. Prior to the enactment of the Act, financial institutions had been providing reports of their customers' large currency transactions pursuant to regulations promulgated by the Secretary of Treasury11 which had required reports of all currency transactions that, in the judgment of the institution, exceeded those 'commensurate with the customary conduct of the business, industry or profession of the person or organization concerned.'12 In passing the Act, Congress recognized that the use of financial institutions, both domestic and foreign, in furtherance of activities designed to evade the regulatory mechanisms of the United States, had markedly increased. H.R.Rep.No. 91—975, supra, at 10; S.Rep.No. 91 1139, supra, at 2—3. Congress recognized the importance of reports of large and unusual currency transactions in ferreting out criminal activity and desired to strengthen the statutory basis for requiring such reports. H.R.Rep.No. 91—975, supra, at 11—12. In particular, Congress intended to authorize more definite standards for determining what constitutes the type of unusual transaction that should be reported. S.Rep.No. 91—1139, supra, at 6.
21
Section 221 of the Act, 31 U.S.C. § 1081, therefore delegates to the Secretary the authority for specifying the currency transactions which should be reported, 'if they involve the payment, receipt, or transfer of United States currency, or such other monetary instruments as the Secretary may specify.' Section 222 of the Act, 31 U.S.C. § 1082, provides that the Secretary may require such reports from the domestic financial institution involved or the parties to the transactions or both.13 Section 223 of the Act, 31 U.S.C. § 1083, authorizes the Secretary to designate financial institutions to receive such reports.
22
In the implementing regulations promulgated under this authority, the Secretary has required only that financial institutions file certain reports with the Commissioner of Internal Revenue. The regulations require that a report be made for each deposit, withdrawal, exchange of currency,14 or other payment or transfer 'which involves a transaction in currency of more than $10,000.' 31 CFR § 103.22.15 The regulations exempt from the reporting requirement certain intrabank transactions and 'transactions with an established customer maintaining a deposit relationship (in amounts) commensurate with the customary conduct of the business, industry, or profession of the customer concerned.' Ibid.16 Provision is also made in the regulations whereby information obtained by the Secretary may in some instances and in confidence be available to other departments or agencies of the United States. 31 CFR § 103.43; see 31 U.S.C. § 1061.17 There is also provision made in the regulations whereby the Secretary may in his sole discretion make exceptions to or grant exemptions from the requirements of the regulation. 31 CFR § 103.45(a).18 Failure to file the required report or the filing of a false report subjects the banks to criminal and civil penalties. 31 U.S.C. §§ 1056, 1058, 1059.
II
23
This litigation began in June 1972 in the United States District Court for the Northern District of California. Various plaintiffs applied for a temporary restraining order prohibiting the defendants, including the Secretary of the Treasury and heads of other federal agencies, from enforcing the provisions of the Bank Secrecy Act, enacted by Congress on October 26, 1970, and thereafter implemented by the Treasury regulations. The plaintiffs below included several named individual bank customers, the Security National Bank, the California Bankers Association, and the American Civil Liberties Union (ACLU), suing on behalf of itself and its various bank customer members.
24
The plaintiffs' principal contention in the District Court was that the Act and the regulations were violative of the Fourth Amendment's guarantee against unreasonable search and seizure. The complaints also alleged that the Act violated the First, Fifth, Ninth, Tenth, and Fourteenth Amendments. The District Court issued a temporary restraining order enjoining the enforcement of the foreign and domestic reporting provisions of Title II of the Act, and requested the convening of a three-judge court pursuant to 28 U.S.C. § 2284 to entertain the myriad of constitutional challenges to the Act.
25
The three-judge District Court unanimously upheld the constitutionality of the recordkeeping requirements of Title I of the Act and the accompanying regulations, and the requirements of Title II of the Act and the regulations for reports concerning the import and export of currency and monetary instruments and relationships with foreign financial institutions. The District Court concluded, however, with one judge dissenting, that the domestic reporting provisions of §§ 221—223 of Title II of the Act, 31 U.S.C. §§ 1081—1083, were repugnant to the Fourth Amendment of the Constitution. 347 F.Supp. 1242 (1972). The court held that since the domestic reporting provisions of the Act permitted the Secretary of the Treasury to require detailed reports of virtually all domestic financial transactions, including those involving personal checks and drafts, and since the Act could conceivably be administered in such a manner as to compel disclosure of all details of a customer's financial affairsT he domestic reporting provisions must fall as facially violative of the Fourth Amendment. Their enforcement was enjoined.
26
Both the plaintiffs and the Government defendants filed timely notices of appeal from the portions of the District Court judgment adverse to them. We noted probable jurisdiction over three separate appeals from the decision below pursuant to 28 U.S.C. §§ 1252 and 1253. 414 U.S. 816, 94 S.Ct. 34, 38 L.Ed.2d 48 (1973):
27
No. 72—985. The appellant in this appeal is the California Bankers Association, an association of all state and national banks doing business in California. The Association challenges the constitutionality of the recordkeeping provisions of Title I, as implemented by the regulations, on two grounds. First, the Association contends that the Act violates the Due Process Clause of the Fifth Amendment because there is no rational relationship between the objectives of the Act and the recordkeeping required, and because the Act places an unreasonable burden on the Association's member banks. Second, the Association contends that the recordkeeping requirements of Title I violate the First Amendment right of privacy and anonymity of the member banks' customers.
28
No. 72—1196. This appeal was filed on behalf of a number of plaintiffs in the original suit in the District Court: on behalf of the Security National Bank, on behalf of the American Civil Liberties Union as a depositor in a bank subject to the recordkeeping requirements, and as a representative of its bank customer members, and on behalf of certain bank customers. The appeal first challenges the constitutionality of the recordkeeping requirements of Title I of the Act and the implementing regulations, as does the appeal in No. 72—985, supra. Second, the appeal challenges the constitutionality of the foreign financial transaction reporting requirements of Title II of the Act and the implementing regulations. These recordkeeping and foreign reporting requirements are challenged on three grounds: first, that the requirements constitute an unreasonable search and seizure in violation of the Fourth Amendment; second, that the requirements constitute a coerced creation and retention of documents in violation of the Fifth Amendment privilege against compulsory self-incrimination; and third, that the requirements violate the First Amendment rights of free speech and free association.
29
No. 72—1073. In this appeal, the Secretary of the Treasury, as appellant, challenges that portion of the District Court's order holding the domestic financial transaction reporting requirements of Title II to violate the Fourth Amendment. The Government contends that the District Court erred in holding these provisions of Title II to be unconstitutional on their face, without considering the actual implementation of the statute by the Treasury regulations. The Government urges that since only those who violate these regulations may incur civil or criminal penalties, it is the actual regulations issued by the Secretary of the Treasury, and not the broad authorizing language of the statute, which are to be tested against the standards of the Fourth Amendment; and that when so tested they are valid.
30
For convenience, we will refer throught the remainder of this opinion to the District Court plaintiffs as plaintiffs, since they are both appellants and appellees in the appeals filed in this Court.
III
31
We entertain serious doubt as to the standing of the plaintiff California Bankers Association to litigate the claims which it asserts here. Its complaint alleged that it is an unincorporated association consisting of 158 state and national banks doing busines in California. So far as appears from the complaint, the Association is not in any way engaged in the banking business, and is not even subject to the Secretary's regulations which it challenges. While the District Court found that the Association sued on behalf of its member banks, the Association's complaint contains no such allegation. The Association seeks to litigate, not only claims on behalf of its member banks, but also claims of injury to the depositors of its member banks. Since the Government has not questioned the standing of the Association to litigate the claims peculiar to banks, and more importantly since plaintiff Security National Bank has standing as an affected bank, and therefore determination of the Association's standing would in no way avoid resolution of any constitutional issues, we assume without deciding that the Association does have standing. See Doe v. Bolton, 410 U.S. 179, 189, 93 S.Ct. 739, 746, 35 L.Ed.2d 201 (1973); Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 1368, 31 L.Ed.2d 636 (1972); NAACP v. Button, 371 U.S. 415, 428, 83 S.Ct. 328, 335, 9 L.Ed.2d 405 (1963).
32
We proceed then to consider the initial contention of the bank plaintiffs that the recordkeeping requirements imposed by the Secretary's regulations under the authority of Title I deprive the banks of due process by imposing unreasonable burdens upon them, and by seeking to make the banks the agents of the Government in surveillance of its citizens. Such recordkeeping requirements are scarcely a novelty. The Internal Revenue Code, for example, contains a general authorization to the Secretary of the Treasury to prescribe by regulation records to be kept by both business and individual taxpayers, 26 U.S.C. § 6001, which has been implemented by the Secretary in various regulations.19 And this Court has been faced with numerous cases involving similar recordkeeping requirements. Similar requirements imposed on the countless businesses subject to the Emergency Price Control Act during the Second World War were upheld in Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948), the Court observing that there was 'a sufficient relation between the activity sought to be regulated and the public concern so that the government can constitutionally regulate or forbid the basic activity concerned, and can constitutionally require the keeping of particular records, subject to inspection . . ..' Id., at 32, 68 S.Ct., at 1392. In United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941), the Court held that employers subject to the Fair Labor Standards Act could be required to keep records of wages paid and hours worked:
33
'Since, as we have held, Congress may require production for interstate commerce to conform to (wage and hour) conditions, it may require the employer, as a means of enforcing the valid law, to keep a record showing whether he has in fact complied with it.' Id., at 125, 61 S.Ct., at 462.
34
We see no reason to reach a different result here. The plenary authority of Congress over both interstate and foreign commerce is not open to dispute, and that body was not limited to any one particular approach to effectuate its concern that negotiable instruments moving in the channels of that commerce were significantly aiding criminal enterprise. The Secretary of the Treasury, authorized by Congress, concluded that copying and retention of certain negotiable instruments by the bank upon which they were drawn would facilitate the detection and apprehension of participants in such criminal enterprises. Congress could have closed the channels of commerce entirely to negotiable instruments, had it thought that so drastic a solution were warranted; it could have made the transmission of the proceeds of any criminal activity by negotiable instruments in interstate or foreign commerce a separate criminal offense. Had it chosen to do the latter, under the precise authority of Darby or Shapiro, supra, it could have required that each individual engaging in the sending of negotiable instruments through the channels of commerce maintain a record of such action; the bank plaintiffs concede as much.20
35
The bank plaintiffs contend, however, that the Act does not have as its primary purpose regulation of the banks themselves, and therefore the requirement that the banks keep the records is an unreasonable burden on the banks. Shapiro and Darby, which involved legislation imposing recordkeeping requirements in aid of substantive regulation, are therefore said not to control. But provisions requiring reporting or recordkeeping by the paying institution, rather than the individual who receives the payment, are by no means unique. The Internal Revenue Code and its regulations, for example, contain provisions which require businesses to report income payments to third parties (26 U.S.C. § 6041(a)), employers to keep records of certain payments made to employees (Treas.Reg. § 31.6001 et seq.), corporations to report dividend payments made to third parties (26 U.S.C. § 6042), cooperatives to report patronage dividend payments (26 U.S.C. § 6044), brokers to report customers' gains and losses (26 U.S.C. § 6045), and banks to report payments of interest made to depositors (26 U.S.C. § 6049).
36
In Darby an identifiable class of employer was made subject to the Fair Labor Standards Act, and in Shapiro an identifiable class of business had been placed under the Price Control Act; in each of those instances, Congress found that the purpose of its regulation was adequately secured by requiring records to be kept by the persons subject to the substantive commands of the legislation. In this case, however, Congress determined that recordkeeping alone would suffice for its purposes, and that no correlative substantive legislation was required. Neither this fact, nor the fact that the principal congressional concern is with the activities of the banks' customers, rather than with the activities of the banks themselves, serves to invalidate the legislation on due process grounds.
37
The bank plaintiffs proceed from the premise that they are complete bystanders with respect to transactions involving drawers and drawees of their negotiable instruments. But such is hardly the case. A voluminous body of law has grown up defining the rights of the drawer, the payee, and the drawee bank with respect to various kinds of negotiable instruments. The recognition of such rights, both in the various States of this country and in other countries, is itself a part of the reason why the banking business has flourished and played so prominent a part in commercial transactions. The bank is a party to any negotiable instrument drawn upon it by a depositor, and upon acceptance or payment of an instrument incurs obligations to the payee. While it obviously is not privy to the background of a transaction in which a negotiable instrument is used, the existing wide acceptance and availability of negotiable instruments is of inestimable benefit to the banking industry as well as to commerce in general.
38
Banks are therefore not conscripted neutrals in transactions involving negotiable instruments, but parties to the instruments with a substantial stake in their continued availability and acceptance. Congress not illogically decided that if records of transactions of negotiable instruments were to be kept and maintained, in order to be available as evidence under customary legal process if the occasion warranted, the bank was the most easily identifiable party to the instrument and therefore should do the recordkeeping. We believe this conclusion is consistent with Darby and Shapiro, and that there is a sufficient connection between the evil Congress sought to address and the recordkeeping procedure it required to pass muster under the Due Process Clause of the Fifth Amendment.21
39
The bank plaintiffs somewhat halfheartedly argue, on the basis of the costs which they estimate will be incurred by the banking industry in complying with the Secretary's recordkeeping requirements, that this cost burden alone deprives them of due process of law. They cite no cases for this proposition, and it does not warrant extended treatment. In its complaint filed in the District Court, plaintiff Security National Bank asserted that it was an 'insured' national bank; to the extent that Congress has acted to require records on the part of banks insured by the Federal Deposit Insurance Corporation, or of financial institutions insured under the National Housing Act, Congress is simply imposing a condition on the spending of public funds. See, e.g., Steward Machine Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279 (1937); Helvering v. Davis, 301 U.S. 619, 57 S.Ct. 904, 81 L.Ed. 1307 (1937). Since there was no allegation in the complaints filed in the District Court, and since it is not contended here that any bank plaintiff is not covered by FDIC or Housing Act insurance, it is unnecessary to consider what questions would arise had Congress relied solely upon its power over interstate commerce to impose the recordkeeping requirements. The cost burdens imposed on the banks by the recordkeeping requirements are far from unreasonable, and we hold that such burdens do not deny the banks due process of law.22
40
The bank plaintiffs also contend that the recordkeeping requirements imposed by the Secretary pursuant to the Act undercut a depositor's right to effectively challenge a third-party summons issued by the Internal Revenue Service. See Reisman v. Caplin, 375 U.S. 440, 84 S.Ct. 508, 11 L.Ed.2d 459 (1964); Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971); Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973). Whatever wrong such a result might work on a depositor, it works no injury on his bank. It is true that in a limited class of cases this Court has permitted a party who suffered injury as a result of the operation of a law to assert his rights even though the sanction of the law was borne by another, Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), and conversely, the Court has allowed a party upon whom the sanction falls to rely on the wrong done to a third party in obtaining relief, Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972). Whether the bank might in other circumstances rely on an injury to its depositors, or whether, instead, this case is governed by the general rule that one has standing only to vindicate his own rights, e.g., Moose Lodge v. Irvis, 407 U.S. 163, 166, 92 S.Ct. 1965, 1968, 32 L.Ed.2d 627 (1972), need not now be decided, since, in any event, the claim is premature. Claims of depositors against the compulsion by lawful process of bank records involving the depositors' own transactions must wait until such process issues.
41
Certain of the plaintiffs below, appellants in No. 72—1196, including the American Civil Liberties Union, the Security National Bank, and various individual plaintiff depositors, argue that if 'the dominant purpose of the Bank Secrecy Act is the creation, preservation, and collection of evidence of crime . . . (i)t is against the standards applicable to the criminal law, then, that its constitutionality must be measured.' They contend that the recordkeeping requirements violate the provisions of the Fourth, Fifth, and First Amendments to the Constitution. At this point, we deal only with such constitutional challenges as they relate to the recordkeeping provisions of Title I of the Act.
42
We see nothing in the Act which violates the Fourth Amendment rights of any of these plaintiffs. Neither the provisions of Title I nor the implementing regulations require that any information contained in the records be disclosed to the Government; both the legislative history and the regulations make specific reference to the fact that access to the records is to be controlled by existing legal process.
43
Plaintiffs urge that when the bank makes and keeps records under the compulsion of the Secretary's regulations it acts as an agent of the Government, and thereby engages in a 'seizure' of the records of its customers. But all of the records which the Secretary requires to be kept pertain to transactions to which the bank was itself a party. See United States v. Biswell, 406 U.S. 311, 316, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972). The fact that a large number of banks voluntarily kept records of this sort before they were required to do so by regulation is an indication that the records were thought useful to the bank in the conduct of its own business, as well as in reflecting transactions of its customers. We decided long ago that an Internal Revenue summons directed to a third-party bank was not a violation of the Fourth Amendment rights of either the bank or the person under investigation by the taxing authorities. See First National Bank v. United States, 267 U.S. 576, 45 S.Ct. 231, 69 L.Ed. 796 (1925), aff'g 295 F. 142 (SD Ala.1924); Donaldson v. United States, supra, 400 U.S., at 522, 91 S.Ct., at 538. '(I)t is difficult to see how the summoning of a third party, and the records of a third party, can violate the rights of the taxpayer, even if a criminal prosecution is contemplated or in progress.' Id., at 537, 91 S.Ct., at 545 (Douglas, J., concurring).
44
Plaintiffs nevertheless contend that the broad authorization given by the Act to the Secretary to require the maintenance of records, coupled with the broad authority to require certain reports of financial transactions, amounts to the power to commit an unlawful search of the banks and the customers. This argument is based on the fact that 31 CFR § 103.45, as it existed when the District Court ruled in the case, permitted the Secretary to impose additional recordkeeping or reporting requirements by written order or authorization; this authority has now been deleted from the regulation;23 plaintiffs thus argue that the Secretary could order the immediate reporting of any records made or kept under the compulsion of the Act. We, of course, must examine the statute and the regulations as they now exist. Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 201, 24 L.Ed.2d 214 (1969) (per curiam); Thorpe v. Housing Authority, 393 U.S. 268, 281 n. 38, 89 S.Ct. 518, 526, 21 L.Ed.2d 474 (1969). Even if plaintiffs were correct in urging that we decide the case on the basis of the regulation as it existed at the time the District Court ruled, their contention would be without merit. Whatever the Secretary might have authorized under the regulation, he did not in fact require the reporting of any records made or kept under the compulsion of the Act. Indeed, since the legislative history of the Act clearly indicates that records which it authorized the Secretary to require were to be available only by normal legal process, it is doubtful that the Secretary would have the authority ascribed to him by plaintiffs even under the earlier form of the regulation. But in any event, whether or not he had the authority, he did not exercise it, and in fact none of the records were required to be reported. Since we hold that the mere maintenance of the records by the banks under the compulsion of the regulations invaded no Fourth Amendment right of any depositor, plaintiffs' attack on the recordkeeping requirements under that Amendment fails.24 That the bank in making the records required by the Secretary acts under the compulsion of the regulation is clear, but it is equally clear that in doing so it neither searches nor seizes records in which the depositor has a Fourth Amendment right.
45
Plaintiffs have briefed their contentions in such a way that we cannot be entirely certain whether their Fifth Amendment attack is directed only to the reporting provisions of the regulations, or to the recordkeeping provisions as well. To the extent that it is directed to the regulations requiring the banks to keep records, it is without merit. Incorporated banks, like other organizations, have no privilege against compulsory self-incrimination, e.g., Hale v. Henkel, 201 U.S. 43, 74—75, 26 S.Ct. 370, 378—379, 50 L.Ed. 652 (1906); Wilson v. United States, 221 U.S. 361, 382—384, 31 S.Ct. 538, 545—546, 55 L.Ed. 771 (1911); United States v. White, 322 U.S. 694, 699, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542 (1944). Since a party incriminated by evidence produced by a third party sustains no violation of his own Fifth Amendment rights, Johnson v. United States, 228 U.S. 457, 458, 33 S.Ct. 572, 57 L.Ed. 919 (1913); Couch v. United States, 409 U.S., at 328, 93 S.Ct., at 615, the depositor plaintiffs here present no meritorious Fifth Amendment challenge to the recordkeeping requirements.
46
Plaintiff ACLU makes an additional challenge to the recordkeeping requirements of Title I. It argues that those provisions, and the implementing regulations, violate its members' First Amendment rights, since the provisions could possibly be used to obtain the identities of its members and contributors through the examination of the organization's bank records. This Court has recognized that an organization may have standing to assert that constitutional rights of its members be protected from governmentally compelled disclosure of their membership in the organization, and that absent a countervailing governmental interest, such information may not be compelled. NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). See Pollard v. Roberts, 283 F.Supp. 248 (ED Ark.), aff'd per curiam, 393 U.S. 14, 89 S.Ct. 47, 21 L.Ed.2d 14 (1968).
47
Those cases, however, do not elicit a per se rule that would forbid such disclosure in a situation where the governmental interest would override the associational interest in maintaining such confidentiality. Each of them was litigated after a subpoena or summons had already been served for the records of the organization, and an action brought by the organization to prevent the actual disclosure of the records.25 No such disclosure has been sought by the Government here, and the ACLU's challenge is therefore premature. This Court, in the absence of a concrete fact situation in which competing associational and governmental interests can be weighed, is simply not in a position to determine whether an effort to compel disclosure of such records would or would not be barred by cases such as NAACP v. Alabama, supra.26 The threat to any First Amendment rights of the ACLU or its members from the mere existence of the records in the hands of the bank is a good deal more remote than the threat assertedly posed by the Army's system of compilation and distribution of information which we declined to adjudicate in Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972).
IV
48
We proceed now to address the constitutional challenges directed at the reporting requirements of the regulations authorized in Title II of the Act. Title II authorizes the Secretary to require reporting of two general categories of banking transactions: foreign and domestic. The District Court upheld the constitutionality of the foreign transaction reporting requirements of regulations issued under Title II; certain of the plaintiffs below, appellants in No. 72—1196, have appealed from the portion of the District Court's judgment, and here renew their contentions of constitutional infirmity in the foreign reporting regulations based upon the First, Fourth, and Fifth Amendments. The District Court invalidated the Act insofar as it authorized the Secretary to promulgate regulations requiring banks to report domestic transactions involving their customers, and the Government in No. 72—1073 appeals from that portion of the District Court's judgment.
49
As noted above, the regulations issued by the Secretary under the authority of Title II contain two essential reporting requirements with respect to foreign financial transactions. Chapter 3 of Title II of the Act, 31 U.S.C. §§ 1101—1105, and the corresponding regulation, 31 CFR § 103.23, require individuals to report transportation of monetary instruments into or out of the United States, or receipts of such instruments in the United States from places outside the United States, if the instrument transported or received has a value in excess of $5,000. Chapter 4 of Title II of the Act, 31 U.S.C. §§ 1121, 1122, and the corresponding regulation, 31 CFR § 103.24, generally require United States citizens, residents, and businessmen to file reports of their relationships with foreign financial institutions.
50
The domestic reporting provisions of the Act as implemented by the regulations, in contrast to the foreign reporting requirements, apply only to banks and financial institutions. In enacting the statute, Congress provided in § 221, 31 U.S.C. § 1081, that the Secretary might specify the types of currency transactions which should be reported:
51
'Transactions involving any domestic financial institution shall be reported to the Secretary at such time, in such manner, and in such detail as the Secretary may require if they involve the payment, receipt, or tansfer of United States currency, or such other monetary instruments as the Secretary may specify, in such amounts, denominations, or both, or under such circumstances, as the Secretary shall by regulation prescribe.'
52
Section 222 of the Act, 31 U.S.C. § 1082, authorizes the Secretary to require such reports from the domestic financial institution involved, from the parties to the transactions, or from both. In exercising his authority under these sections, the Secretary has promulgated regulations which require only that the financial institutions make the report to the Internal Revenue Service; he has not required any report from the individual parties to domestic financial transactions.27 The applicable regulation, 31 CFR § 103.22, requires the financial institution to 'file a report of each deposit, withdrawal, exchange of currency or other payment or transfer, by, through, or to such financial institution, which involves a transaction in currency of more than $10,000.' The regulation exempts several types of currency transactions from this reporting requirement, including transactions 'with an established customer maintaining a deposit relationship with the bank, in amounts which the bank may reasonably conclude do not exceed amounts commensurate with the customary conduct of the business, industry or profession of the customer concerned.' Ibid.
53
The District Court, in differentiating for constitutional purposes between the foreign reporting requirements and the domestic reporting requirements imposed by the Secretary, relied upon our opinion in United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972), for the proposition that Government surveillance in the area of foreign relations is in some instances subject to less constitutional restraint than would be similar activity in domestic affairs. Our analysis does not take us over this ground.
54
The plenary authority of Congress to regulate foreign commerce, and to delegate significant portions of this power to the Executive, is well established. C. & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 109, 68 S.Ct. 431, 435, 92 L.Ed. 568 (1948); Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 53 S.Ct. 350, 77 L.Ed. 796 (1933). Plaintiffs contend that in exercising that authority to require reporting of previously described foreign financial transactions, Congress and the Secretary have abridged their Fourth Amendment rights.
55
The familiar language of 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 . . ..' Since a statute requiring the filing and subsequent publication of a corporate tax return has been upheld against a Fourth Amendment challenge, Flint v. Stone Tracy Co., 220 U.S. 107, 174—176, 31 S.Ct. 342, 358—359, 55 L.Ed. 389 (1911), reporting requirements are by no means per se violations of the Fourth Amendment. Indeed, a contrary holding might well fly in the face of the settled sixty-year history of self-assessment of individual and corporate income taxes in the United States. This Court has on numerous occasions recognized the importance of the self-regulatory aspects of that system, and interests of the Congress in enforcing it:
56
'In assessing income taxes the Government relies primarily upon the disclosure by the taxpayer of the relevant facts. This disclosure it requires him of make in his annual return. To ensure full and honest disclosure, to discourage fraudulent attempts to evade the tax, Congress imposes sanctions. Such sanctions may confessedly be either criminal or civil.' Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917 (1938).
57
To the extent that the reporting requirements of the Act and the settled practices of the tax collection process are similar, this history must be overcome by those who argue that the reporting requirements are a violation of the Fourth Amendment. Plaintiffs contend, however, that Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), establishes the invalidity of the foreign reporting requirement under the Fourth Amendment, and that the particular requirements imposed are so indiscriminate in their nature that the regulations must be deemed to be the equivalent of a general warrant of the kind condemned as obnoxious to the Fourth Amendment in cases such as Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965). We do not think these cases would support plaintiffs even if their contentions were directed at the domestic reporting requirements; in light of the fact that the foreign reporting requirements deal with matters in foreign commerce, we think plaintiffs' reliance on the cases to challenge those requirements must fail.
58
Boyd v. United States, supra, is a case which has been the subject of repeated citation, discussion, and explanation since the time of its decision 88 years ago. In Communist Party v. SACB, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961), the Court described the Boyd holding as follows:
59
'The Boyd case involved a statute providing that in proceedings other than criminal arising under the revenue laws, the Government could secure an order of the court requiring the production by an opposing claimant or defendant of any documents under his control which, the Government asserted, might tend to prove any of the Government's allegations. If production were not made, the allegations were to be taken as confessed. On the Government's motion, the District Court had entered such an order, requiring the claimants in a forfeiture proceeding to produce a specified invoice. Although the claimants objected that the order was improper and the statute unconstitutional in coercing self-incriminatory disclosures and permitting unreasonable searches and seizures, they did, under protest, produce the invoice, which was, again over their constitutional objection, admitted into evidence. This Court held that on such a record a judgment for the United States could not stand, and that the statute was invalid as repugnant to the Fourth and Fifth Amendments.' Id., at 110, 81 S.Ct., at 1417.
60
But the Boyd Court recognized that the Fourth Amendment does not prohibit all requirements that information be made available to the Government:
61
'(T)he supervision authorized to be exercised by officers of the revenue over the manufacture or custody of excisable articles, and the entries thereof in books required by law to be kept for their inspection, are necessarily excepted out of the category of unreasonable searches and seizures.' 116 U.S., at 623—624, 6 S.Ct. at 528.
62
Stanford v. Texas, supra, involved a warrant issued by a state judge which described petitioner's home and authorized the search and seizure of 'books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party of Texas.' This Court found the warrant to be an unconstitutional general warrant, and invalidated the search and seizure conducted pursuant to it. Unlike the situation in Stanford, the Secretary's regulations do not authorize indiscriminate rummaging among the records of the plaintiffs, nor do the reports they require deal with literary material as in Stanford; the information sought is about commerce, not literature. The reports of foreign financial transactions required by the regulations must contain information as to a relatively limited group of financial transactions in foreign commerce, and are reasonably related to the statutory purpose of assisting in the enforcement of the laws of the United States.
63
Of primary importance, in addition, is the fact that the information required by the foreign reporting requirements pertains only to commercial transactions which take place across national boundaries. Mr. Chief Justice Taft, in his opinion for the Court in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), observed:
64
'Travellers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.' Id., at 154, 45 S.Ct., at 285.
65
This settled proposition has been reaffirmed as recently as last Term in Almeida-Sanchez v. United States, 413 U.S. 266, 272, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973). If reporting of income may be required as an aid to enforcement of the federal revenue statutes, and if those entering and leaving the country may be examined as to their belongings and effects, all without violating the Fourth Amendment, we see no reason to invalidate the Secretary's regulations here. The statutory authorization for the regulations was based upon a conclusion by Congress that international currency transactions and foreign financial institutions were being used by residents of the United States to circumvent the enforcement of the laws of the United States. The regulations are sufficiently tailored so as to single out transactions found to have the greatest potential for such circumvention and which involve substantial amounts of money. They are therefore reasonable in the light of that statutory purpose, and consistent with the Fourth Amendment.
66
B. FOURTH AMENDMENT CHALLENGE TO THE DOMESTIC REPORTING REQUIREMENTS
67
The District Court examined the domestic reporting requirements imposed on plaintiffs by looking to the broad authorization of the Act itself, without specific reference to the regulations promulgated under its authority. The District Court observed:
68
'(A)lthough to date the Secretary has required reporting only by the financial institutions and then only of currency transactions over $10,000, he is empowered by the Act, as indicated above, to require, if he so decides, reporting not only by the financial institution, but also by other parties to or participants in transactions with the institutions and, further, that the Secretary may require reports, not only of currency transactions but of any transaction involving any monetary instrument—and in any amount—large or small.' 347 F.Supp., at 1246.
69
The District Court went on to pose, as the question to be resolved, whether 'these provisions, broadly authorizing an executive agency of government to require financial institutions and parties (thereto) . . . to routinely report . . . the detail of almost every conceivable financial transaction . . . (are) such an invasion of a citizen's right of privacy as amounts to an unreasonable search within the meaning of the Fourth Amendment.' Ibid.
70
Since, as we have observed earlier in this opinion, the statute is not self-executing, and were the Secretary to take no action whatever under his authority there would be no possibility of criminal or civil sanctions being imposed on anyone, the District Court was wrong in framing the question in this manner. The question is not what sort of reporting requirements might have been imposed by the Secretary under the broad authority given him in the Act, but rather what sort of reporting requirements he did in fact impose under that authority.
71
'Even where some of the provisions of a comprehensive legislative enactment are ripe for adjudication, portions of the enactment not immediately involved are not thereby thrown open for a judicial determination of constitutionality. 'Passing upon the possible significance of the manifold provisions of a broad statute in advance of efforts to apply the separate provisions is analogous to rendering an advisory opinion upon a statute or a declaratory judgment upon a hypothetical case.' Watson v. Buck, 313 U.S. 387, 402, 61 S.Ct. 962, 967, 85 L.Ed. 1416.' Communist Party v. SACB, 367 U.S., at 71, 81 S.Ct., at 1397.
72
The question for decision, therefore, is whether the regulations relating to the reporting of domestic transactions, violations of which could subject those required to report to civil or criminal penalties, invade any Fourth Amendment right of those required to report. To that question we now turn.
73
The regulations issued by the Secretary require the reporting of domestic financial transactions only by financial institutions. United States v. Morton Salt Co., 338 U.S. 632, 70 S.Ct. 357, 94 L.Ed. 401 (1950), held that organizations engaged in commerce could be required by the Government to file reports dealing with particular phases of their activities. The language used by the Court in that case is instructive:
74
'It is unnecessary here to examine the question of whether a corporation is entitled to the protection of the Fourth Amendment. Cf. Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614. Although the 'right to be let alone—the most comprehensive of rights and the right most valued by civilized men,' Brandeis, J., dissenting in Olmstead v. United States, 277 U.S. 438, 471, at page 478, 48 S.Ct. 564, 570, 572, 72 L.Ed. 944, is not confined literally to searches and seizures as such, but extends as well to the orderly taking under compulsion of process, Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; Hale v. Henkel, 201 U.S. 43, 70, 26 S.Ct. 370, 377, 50 L.Ed. 652, neither incorporated nor unincorporated associations can plead an unqualified right to conduct their affairs in secret. Hale v. Henkel, supra; United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542.
75
'While they may and should have protection from unlawful demands made in the name of public investigation, cf. Federal Trade Comm'n v. American Tobacco Co., 264 U.S. 298, 44 S.Ct. 336, 68 L.Ed. 696, corporations can claim no equality with individuals in the enjoyment of a right to privacy. Cf. United States v. White, supra. They are endowed with public attributes. They have a collective impact upon society, from which they derive the privilege of acting as artificial entities. The Federal Government allows them the privilege of engaging in interstate commerce. Favors from government often carry with them an enhanced measure of regulation. (Citations omitted.) Even if one were to regard the request for information in this case as caused by nothing more than official curiosity, nevertheless law-enforcing agencies have a legitimate right to satisfy themselves that corporate behavior is consistent with the law and the public interest.' 338 U.S., at 651—652, 70 S.Ct., at 368.
76
We have no difficulty then in determining that the Secretary's requirements for the reporting of domestic financial transactions abridge no Fourth Amendment right of the banks themselves. The bank is not a mere stranger or bystander with respect to the transactions which it is required to record or report. The bank is itself a party to each of these transactions, earns portions of its income from conducting such transactions, and in the past may have kept records of similar transactions on a voluntary basis for its own purposes. See United States v. Biswell, 406 U.S., at 316, 92 S.Ct., at 1596. The regulations presently in effect governing the reporting of domestic currency transactions require information as to the personal and business identity of the person conducting the transaction and of the person or organization for whom it was conducted, as well as a summary description of the nature of the transaction. It is conceivable, and perhaps likely, that the bank might not of its own volition compile this amount of detail for its own purposes, and therefore to that extent the regulations put the bank in the position of seeking information from the customer in order to eventually report it to the Government. But as we have noted above, 'neither incorporated nor unincorporated associations can plead an unqualified right to conduct their affairs in secret.' United States v. Morton Salt Co., supra, 338 U.S., at 652, 70 S.Ct., at 368.
77
The regulations do not impose unreasonable reporting requirements on the banks. The regulations require the reporting of information with respect to abnormally large transactions in currency, much of which information the bank as a party to the transaction already possesses or would acquire in its own interest. To the extent that the regulations in connection with such transactions require the bank to obtain information from a customer simply because the Government wants it, the information is sufficiently described and limited in nature, and sufficiently related to a tenable congressional determination as to improper use of transactions of that type in interstate commerce, so as to withstand the Fourth Amendment challenge made by the bank plaintiffs. '(T)he inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant. 'The gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be unreasonable." United States v. Morton Salt Co., supra, at 652—653, 70 S.Ct., at 369; see Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 208, 66 S.Ct. 494, 505, 90 L.Ed. 614 (1946).
78
In addition to the Fourth Amendment challenge to the domestic reporting requirements made by the bank plaintiffs, we are faced with a similar challenge by the depositor plaintiffs, who contend that since the reports of domestic transactions which the bank is required to make will include transactions to which the depositors were parties, the requirement that the bank make a report of the transaction violates the Fourth Amendment rights of the depositor. The complaint filed in the District Court by the ACLU and the depositors contains no allegation by any of the individual depositors that they were engaged in the type of $10,000 domestic currency transaction which would necessitate that their bank report it to the Government. This is not a situation where there might have been a mere oversight in the specificity of the pleadings and where this Court could properly infer that participation in such a transaction was necessarily inferred from the fact that the individual plaintiffs allege that they are in fact 'depositors.' Such an inference can be made, for example, as to the recordkeeping provisions of Title I, which require the banks to keep various records of certain transactions by check; as our discussion of the challenges by the individual depositors to the recordkeeping provisions, supra, implicitly recognizes, the allegation that one is a depositor is sufficient to permit consideration of the challenges to the recordkeeping provisions, since any depositor would to some degree be affected by them. Here, however, we simply cannot assume that the mere fact that one is a depositor in a bank means that he has engaged or will engage in a transaction involving more than $10,000 in currency, which is the only type of domestic transaction which the Secretary's regulations require that the banks report. That being so, the depositor plaintiffs lack standing to challenge the domestic reporting regulations, since they do not show that their transactions are required to be reported.28
79
'Plaintiffs in the federal courts 'must allege some threatened or actual injury resulting from the putatively illegal action before a federal court may assume jurisdiction.' Linda R. S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973). There must be a 'personal stake in the outcome' such as to 'assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.' Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). . . . Abstract injury is not enough. It must be alleged that the plaintiff 'has sustained or is immediately in danger of sustaining some direct injury' as the result of the challenged statute or official conduct. Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1923). The injury or threat of injury must be both 'real and immediate,' not 'conjectural' or 'hypothetical.' Golden v. Zwickler, 394 U.S. 103, 109—110, 89 S.Ct. 956, 960, 22 L.Ed.2d 113 (1969); Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941); United Public Workers v. Mitchell, 330 U.S. 75, 89 91, 67 S.Ct. 556, 564—565, 91 L.Ed. 754 (1947).' O'Shea v. Littleton, 414 U.S. 488, 493—494, 94 S.Ct. 669, 695, 38 L.Ed.2d 674 (1974) (footnote omitted).
80
We therefore hold that the Fourth Amendment claims of the depositor plaintiffs may not be considered on the record before us. Nor do we think that the California Bankers Association or the Security National Bank can vicariously assert such Fourth Amendment claims on behalf of bank customers in general.
81
The regulations promulgated by the Secretary require that a report concerning a domestic currency transaction involving more than $10,000 be filed only by the financial institution which is a party to the transaction; the regulations do not require a report from the customer. 31 CFR § 103.22; see 31 U.S.C. § 1082. Both the bank and depositor plaintiffs here argue that the regulations are constitutionally defective because they do not require the financial institution to notify the customer that a report will be filed concerning the domestic currency transaction. Since we have held that the depositor plaintiffs have not made a sufficient showing of injury to make a constitutional challenge to the domestic reporting requirements, we do not address ourselves to the necessity of notice to those bank customers whose transactions must be reported. The fact that the regulations do not require the banks to notify the customer of the report violates no constitutional right of the banks, and the banks in any event are left free to adopt whatever customer notification procedures they desire.29 C. FIFTH AMENDMENT CHALLENGE TO THE FOREIGN AND DOMESTIC REPORTING REQUIREMENTS
82
The District Court rejected the depositor plaintiffs' claim that the foreign reporting requirements violated the depositors' Fifth Amendment privilege against compulsory self-incrimination, and found it unnecessary to consider the similarly based challenge to the domestic reporting requirements since the latter were found to be in violation of the Fourth Amendment. The appeal of the depositor plaintiffs in No. 72—1196 challenges the foreign reporting requirements under the Fifth Amendment, and their brief likewise challenges the domestic reporting requirements as violative of that Amendment. Since they are free to urge in this Court reasons for affirming the judgment of the District Court which may not have been relied upon by the District Court, we consider here the Fifth Amendment objections to both the foreign and the domestic reporting requirements.
83
As we noted above, the bank plaintiffs, being corporations, have no constitutional privilege against compulsory self-incrimination by virtue of the Fifth Amendment. Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906). Their brief urges that they may vicariously assert Fifth Amendment claims on behalf of their depositors. But since we hold infra that those depositor plaintiffs who are actually parties in this litigation are premature in asserting any Fifth Amendment claims, we do not believe that the banks under these circumstances have standing to assert Fifth Amendment claims on behalf of customers in general.
84
The individual depositor plaintiffs below made various allegations in the complaint and affidavits filed in the District Court. Plaintiff Stark alleged that he was, in addition to being president of plaintiff Security National Bank, a customer of and depositor in the bank. Plaintiff Marson alleged that he was a customer of and depositor in the Bank of America. Plaintiff Lieberman alleged that he had repeatedly in the recent past transported or shipped one or more monetary instruments exceeding $5,000 in value from the United States to places outside the United States, and expected to do likewise in the near future. Plaintiffs Lieberman, Harwood, Bruer, and Durell each alleged that they maintained a financial interest in and signature authority over one or more bank accounts in foreign countries. This, so far as we can assertain from the record, is the sum and substance of the depositors' allegations of fact upon which they seek to mount an attack on the reporting requirements of regulations as violative of the privilege against compulsory self-incrimination granted to each of them by the Fifth Amendment.
85
Considering first the challenge of the depositor plaintiffs to the foreign reporting requirements, we hold that such claims are premature. In United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037 (1927), this Court reviewed a judgment of the Court of Appeals for the Fourth Circuit, 15 F.2d 809 (1926), which had held that the Fifth Amendment protected the respondent from being punished for failure to file an income tax return. This Court reversed the decision below, stating:
86
'As the defendant's income was taxed, the statute of course required a return. See United States v. Sischo, 262 U.S. 165, 43 S.Ct. 511, 67 L.Ed. 925. In the decision that this was contrary to the Constitution we are of opinion that the protection of the Fifth Amendment was pressed too far. If the form of return provided called for answers that the defendant was privileged from making he could have raised the objection in the return, but could not on that account refuse to make any return at all. We are not called on to decide what, if anything, he might have withheld. Most of the items warranted no complaint. It would be an extreme if not an extravagant application of the Fifth Amendment to say that it authorized a man to refuse to state the amount of his income because it had been made in crime. But if the defendant desired to test that or any other point he should have tested it in the return so that it could be passed upon. He could not draw a conjuror's circle around the whole matter by his own declaration that to write any word upon the government blank would bring him into danger of the law.' 274 U.S., at 263—264, 47 S.Ct., at 607—608.
87
Here the depositor plaintiffs allege that they intend to engage in foreign currency transactions or dealings with foreign banks which the Secretary's regulations will require them to report, but they make no additional allegation that any of the information required by the Secretary will tend to incriminate them. It will be time enough for us to determine what, if any, relief from the reporting requirement they may obtain in a judicial proceeding when they have properly and specifically raised a claim of privilege with respect to particular items of information required by the Secretary, and the Secretary has overruled their claim of privilege. The posture of plaintiffs' Fifth Amendment rights here is strikingly similar to those asserted in Communist Party v. SACB, 367 U.S., at 105—110, 81 S.Ct., at 1415—1418. The Communist Party there sought to assert the Fifth Amendment claims of its officers as a defense to the registration requirement of the Subversive Activities Control Act, although the officers were not at that stage of the proceeding required by the Act to register, and had neither registered nor refused to register on the ground that registration might incriminate them. The Court said:
88
'If a claim of privilege is made, it may or may not be honored by the Attorney General. We cannot, on the basis of supposition that privilege will be claimed and not honored, proceed now to adjudicate the constitutionality under the Fifth Amendment of the registration provisions. Whatever proceeding may be taken after and if the privilege is claimed will provide an adequate forum for litigation of that issue.' Id., at 107, 81 S.Ct., at 1416.
89
Plaintiffs argue that cases such as Albertson v. SACB, 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965), have relaxed the requirements of earlier cases, but we do not find that contention supported by the language or holding of that case. There the Attorney General had petitioned for and obtained an order from the Subversive Activities Control Board compelling certain named members of the Communist Party to register their affiliation. In response to the Attorney General's petitions, both before the Board and in subsequent judicial proceedings, the Communist Party members had asserted the privilege against self-incrimination, and their claims had been rejected by the Attorney General. A previous decision of this Court had held that an affirmative answer to the inquiry as to membership in the Communist Party was an incriminating admission protected under the Fifth Amendment. Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170 (1950). The differences then between the posture of the depositor plaintiffs in this case and that of petitioner in Albertson v. SACB, supra, are evident.
90
We similarly think that the depositor plaintiffs' challenges to the domestic reporting requirements are premature. As we noted above, it is not apparent from the allegations of the complaints in these actions that any of the depositor plaintiffs would be engaged in $10,000 domestic transactions with the bank which the latter would be required to report under the Secretary's regulations pertaining to such domestic transactions. Not only is there no allegation that any depositor engaged in such transactions, but there is no allegation in the complaint that any report which such a bank was required to make would contain information incriminating any depositor. To what extent, if any, depositors may claim a privilege arising from the Fifth Amendment by reason of the obligation of the bank to report such a transaction may be left for resolution when the claim of privilege is properly asserted.
91
Depositor plaintiffs rely on Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968), and Haynes v. United States. 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968), as supporting the merits of their Fifth Amendment claim. In each of those cases, however, a claim of privilege was asserted as a defense to the requirement of reporting particular information required by the law under challenge, and those decisions therefore in no way militate against our conclusion that depositor plaintiffs' efforts to litigate the Fifth Amendment issue at this time are premature.
92
D. PLAINTIFF ACLU's FIRST AMENDMENT CHALLENGE TO THE FOREIGN AND DOMESTIC REPORTING REQUIREMENTS
93
The ACLU claims that the reporting requirements with respect to foreign and domestic transactions invade its associational interests protected by the First Amendment. We have earlier held a similar claim by this organization to be speculative and hypothetical when addressed to the recordkeeping requirements imposed by the Secretary. Supra, at 55 57. The requirement that particular transactions be reported to the Government, rather than that records of them be available through normal legal process, removes part of the speculative quality of the claim. But the only allegation found in the complaints with respect to the financial activities of the ACLU states that it maintains accounts at one of the San Francisco offices of the Wells Fargo Bank & Trust Company. There is no allegation that the ACLU engages with any regularity in abnormally large domestic currency transactions, transports or receives monetary instruments from channels of foreign commerce, or maintains accounts in financial institutions in foreign countries. Until there is some showing that the reporting requirements contained in the Secretary's regulations would require the reporting of information with respect to the organization's financial activities, no concrete controversy is presented to this Court for adjudication. O'Shea v. Littleton, 414 U.S., at 493—494, 94 S.Ct., at 675.
V
94
All of the bank and depositor plaintiffs have stressed in their presentations to the District Court and to this Court that the recordkeeping and reporting requirements of the Bank Secrecy Act are focused in large part on the acquisition of information to assist in the enforcement of the criminal laws. While, as we have noted, Congress seems to have been equally concerned with civil liability which might go undetected by reason of transactions of the type required to be recorded or reported, concern for the enforcement of the criminal law was undoubtedly prominant in the minds of the legislators who considered the Act. We do not think it is strange or irrational that Congress, having its attention called to what appeared to be serious and organized efforts to avoid detection of criminal activity, should have legislated to rectify the situation. We have no doubt that Congress, in the sphere of its legislative authority, may just as properly address itself to the effective enforcement of criminal laws which it has previously enacted as to the enactment of those laws in the first instance. In so doing, it is of course subject to the strictures of the Bill of Rights, and may not transgress those strictures.30 But the fact that a legislative enactment manifests a concern for the enforcement of the criminal law does not cast any generalized pall of constitutional suspicion over it. Having concluded that on the record in these appeals, plaintiffs have failed to state a claim for relief under the First, Fourth, and Fifth Amendments, and having concluded that the enactment in question was within the legislative authority of Congress, our inquiry is at an end.
95
On the appeal of the California Bankers Association in No. 72 985 from that portion of the judgment of the District Court upholding the recordkeeping requirements imposed by the Secretary pursuant to Title I, the judgment is affirmed. On the appeal of the bank and depositor plaintiffs in No. 72—1196 from that portion of the District Court's judgment upholding the recordkeeping requirements and regulations of Title I and the foreign reporting requirements imposed under the authority of Title II, the judgment is likewise affirmed. On the Government's appeal in No. 72—1073 from that portion of the District Court's judgment which held that the domestic reporting requirements imposed under Title II of the Act violated the Constitution, the judgment is reversed. The cause is remanded to the District Court for disposition consistent with this opinion.
96
So ordered.
97
Affirmed in part, reversed in part, and remanded.
98
Mr. Justice POWELL, with whom Mr. Justice BLACKMUN joins, concurring.
99
I join the Court's opinion, but add a word concerning the Act's domestic reporting requirements.
100
The Act confers broad authority on the Secretary to require reports of domestic monetary transactions from the financial institutions and parties involved. 31 U.S.C. §§ 1081 and 1082. The implementing regulations, however, require only that the financial institution 'file a report on each deposit, withdrawal, exchange of currency or other payment or transfer, by, through, or to such financial institution, which involves a transaction in currency of more than $10,000.' 31 CFR § 103.22 (italics added). As the Court properly recognizes, we must analyze plaintiffs' contentions in the context of the Act as narrowed by the regulations. Ante, at 64. From this perspective, I agree that the regulations do not constitute an impermissible infringement of any constitutional right.
101
A significant extension of the regulations' reporting requirements, however, would pose substantial and difficult constitutional questions for me. In their full reach, the reports apparently authorized by the open-ended language of the Act touch upon intimate areas of an individual's personal affairs. Financial transactions can reveal much about a person's activities, associations, and beliefs. At some point, governmental intrusion upon these areas would implicate legitimate expectations of privacy. Moreover, the potential for abuse is particularly acute where, as here, the legislative scheme permits access to this information without invocation of the judicial process. In such instances, the important responsibility for balancing societal and individual interests is left to unreviewed executive discretion, rather than the scrutiny of a neutral magistrate. United States v. United States District Court, 407 U.S. 297, 316—317, 92 S.Ct. 2125, 2136 2137, 32 L.Ed. 2d 752 (1972). As the issues are presently framed, however, I am in accord with the Court's disposition of the matter.
102
Mr. Justice DOUGLAS, dissenting.
103
* The Court expresses a doubt that the California Bankers Association has standing to litigate the claims it asserts. That doubt, however, should be dissipated by our decisions.
104
Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 1368, 31 L.Ed.2d 636, stated unequivocally that 'an organization whose members are injured may represent those members in a proceeding for judicial review.'
105
Appellants in No. 72—1196 are a national bank, a bank customer and depositor, a membership organization which is a customer of banks and receives money through banks for its members, a businessman who has engaged in and expects to engage in foreign financial transactions, and individuals having interests in or authority over foreign bank accounts. There can hardly be any doubt that these persons—at least the individuals and the membership organization—having standing. I think the same is true of the national bank in No. 72—1196 and the California Bankers Association in No. 72—985.
106
The claims the associations litigate in these cases are not only those of its members but also those of the depositors of those member banks. This will cost the banks, it is estimated, over $6 million a year. Certainly that is enough to give the banks standing. Moreover, they must spy on their customers. The Bank Secrecy Act requires banks to record and retain the details of their customers' financial lives. In Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, the Court upheld the right of a representative litigant, a parochial school, to have standing to raise questions pertaining to the rights of parents, guardians, and children. See Barrows v. Jackson, 346 U.S. 249, 257, 73 S.Ct. 1031, 1035, 97 L.Ed. 1586. In Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349, we upheld that the standing of a distributor of contraceptives to assert rights of unmarried persons, since they were denied 'a forum in which to assert their own rights.' Id., at 446, 92 S.Ct., at 1034. The question of standing has been variously described. But the 'gist' of the question, we said in Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct., 691, 703, 7 L.Ed.2d 663, was whether the party has 'such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues.' There is that 'concrete adverseness' here; and that doubtless is the reason the Solicitor General does not raise the question which the Court now stirs.
II
107
The Act has as its primary goal the enforcement of the criminal law.1 The recordkeeping requirements originated according to Congressman Patman, author of the measure, with the Department of Justice and the Internal Revenue Service in response to two problems: (1) 'A trend was developing in the larger banks away from their traditional practices of microfilming all checks drawn on them.' 116 Cong.Rec. 16953. (2) As respects the identification of depositors, '(a) typical example might involve a situation where a person with a criminal reputation holds an account but does not personally make deposits or withdrawals.' Ibid.
108
The purpose of the Act was to give the Secretary of the Treasury 'primary responsibility' under Title II 'to see to it that criminals do not take undue advantage of international trade and go undetected and unpunished.' Id., at 16954. He added 'I would be the first to admit that this legislation does not provide perfect crime prevention. However, it is felt that the legislation will substantially increase the risk of discovery of any criminal who undertakes to hide his activity behind foreign secrecy.' Id., at 16955.
109
The same purpose was reflected in the Senate. Senator Proxmire, the author of the Senate version of the bill, stated: '(T)he purpose of the bill is to provide law enforcement authorities with greater evidence of financial transactions in order to reduce the incidence of whitecollar crime.'2 Id., at 32627.
110
Customers have a constitutionally justifiable expectation of privacy in the documentary details of the financial transactions reflected in their bank accounts. That wall is not impregnable. Our Constitution provides the procedures whereby the confidentiality of one's financial affairs may be disclosed.
A.
111
First, as to the recordkeeping requirements,3 their announced purpose is that they will have 'a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings,' 12 U.S.C. §§ 1829b(a)(2), 1953(a). The duty of the bank or institution is to microfilm or otherwise copy every check, draft, or similar instrument drawn on it or presented to it for payment and to keep a record of each one 'received by it for deposit or collection,' 12 U.S.C. §§ 1829b(d)(1) and (2). The retention is for up to six years unless the Secretary determines that 'a longer period is necessary,' 12 U.S.C. § 1829b(g). The regulations4 issued by the Secretary show the depth and extent of the quicksand in which our financial institutions must now operate.5
112
It is estimated that a minimum of 20 billion checks—and perhaps 30 billion—will have to be photocopied and that the weight of these little pieces of paper will approximate 166 million pounds a year.6
113
It would be highly useful to governmental espionage to have like reports from all our bookstores, all our hardware and retail stores, all our drugstores. These records too might be 'useful' in criminal investigations.
114
One's reading habits furnish telltale clues to those who are bent on bending us to one point of view. What one buys at the hardware and retail stores may furnish clues to potential uses of wires, soap powders, and the like used by criminals. A mandatory recording of all telephone conversations would be better than the recording of checks under the Bank Secrecy Act, if Big Brother is to have his way. The records of checks—now available to the investigators—are highly useful. In a sense a person is defined by the checks he writes. By examining them the agents get to know his doctors, lawyers, creditors, political allies, social connections, religious affiliation, educational interests, the papers and magazines he reads, and so on ad infinitum. These are all tied to one's social security number; and now that we have the data banks, these other items will enrich that storehouse and make it possible for a bureaucrat—by pushing one button—to get in an instant the names of the 190 million Americans who are subversives or potential and likely candidates.
115
It is, I submit, sheer nonsense to agree with the Secretary that all bank records of every citizen 'have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings.' That is unadulterated nonsense unless we are to assume that every citizen is a crook, an assumption I cannot make.
116
Since the banking transactions of an individual give a fairly accurate account of his religion, ideology, opinions, and interests, a regulation impounding them and making them automatically available to all federal investigative agencies is a sledge-hammer approach to a problem that only a delicate scalpel can manage. Where fundamental personal rights are involved—as is true when as here the Government gets large access to one's beliefs, ideas, politics, religion, cultural concerns, and the like—the Act should be 'narrowly drawn' (Cantwell v. Connecticut, 310 U.S. 296, 307, 60 S.Ct. 900, 905, 84 L.Ed. 1213) to meet the precise evil.7 Bank accounts at times harbor criminal plans. But we only rush with the crowd when we vent on our banks and their customers the devastating and leveling requirements of the present Act. I am not yet ready to agree that America is so possessed with evil that we must level all constitutional barriers to give our civil authorities the tools to catch criminals.
117
Heretofore this Nation has confined compulsory recordkeeping to that required to monitor either (1) the recordkeeper, or (2) his business. Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 and United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609, are illustrative. Even then, as Mr. Justice Harlan writing for the Court said, they must be records that would 'customarily' be kept, have a 'public' rather than a private purpose, and arise out of an "essentially noncriminal and regulatory area of inquiry." Marchetti v. United States, supra, 390 U.S., at 57, 88 S.Ct., at 707.
118
Those requirements are in no way satisfied here, and yet there is saddled upon the banks of this Nation an estimated bill of over $6 million a year to spy on their customers.
B
119
Second, as to the reporting provisions of the Act, they require disclosure of two types of foreign financial transactions and relationships. One provision requires a report of transportation into or out of the country of monetary instruments exceeding $5,000.8 Another requires parties to any transaction or relationship with 'a foreign financial agency' to make such reports or make and keep such records as the Secretary may require.9 Civil10 and criminal11 penalties are sanctions behind these reporting provisions.
120
The Act also requires the Secretary to make the reported information concerning transactions 'available for a purpose consistent with the provisions of this chapter to any other department or agency of the Federal Government' upon request.12 And to overcome any claims of self-incrimination it requires the grant of use immunity.13
121
As respects domestic transactions the Secretary established two reporting requirements. (1) Routine reports are, with some exceptions, required concerning any transaction of more than $10,000 in currency from each financial institution involved.14 The signature of at least one principal party to the transaction is required.15 (2) The Secretary at the time of the trial reserved the right to grant exemptions from the requirements, impose additional recordkeeping or reporting requirements authorized by statute, or otherwise modify, the requirements of this part.16
122
We said in Katz v. United States, 389 U.S. 347, 351—352, 88 S.Ct. 507, 511, 19 L.Ed.2d 576: 'What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.' As stated in United States v. White, 401 U.S. 745, 752, 91 S.Ct. 1122, 1126, 28 L.Ed.2d 453, the question is 'what expectations of privacy' will be protected by the Fourth Amendment 'in the absence of a warrant.' A search and seizure conducted without a warrant is per se unreasonable, subject to 'jealously and carefully drawn' exceptions, Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514. One's bank accounts are within the 'expectations of privacy' category. For they mirror not only one's finances but his interests, his debts, his way of life, his family, and his civic commitments. There are administrative summonses for documents, cf. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930; See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943. But there is a requirement that their enforcement receive judicial scrutiny and a judicial order, United States v. United States District Court, 407 U.S. 297, 313—318, 92 S.Ct. 2125, 2134—2137, 32 L.Ed.2d 752. As we said in that case, 'The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. . . . But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech.' Id., at 317, 92 S.Ct., at 2136.
123
Suppose Congress passed a law requiring telephone companies to record and retain all telephone calls and make them available to any federal agency on request. Would we hesitate even a moment before striking it down? I think not, for we condemned in United States v. United States District Court 'the broad and unsuspected governmental incursions into conversational privacy which electronic surveillance entails.' Id., at 313, 92 S.Ct., at 2135.
124
A checking account, as I have said, may well record a citizen's activities, opinion, and beliefs as fully as transcripts of his telephone conversations.
125
The Fourth Amendment warrant requirements may be removed by constitutional amendment but they certainly cannot be replaced by the Secretary of the Treasury's finding that certain information will be highly useful in 'criminal, tax, or regulatory investigations or proceedings.' 12 U.S.C. § 1951(b).
126
We cannot avoid the question of the constitutionality of the reporting provisions of the Act and of the regulations by saying they have not yet been applied to a customer in any criminal case. Under the Act and regulations the reports go forward to the investigative or prosecuting agency on written request without notice to the customer. Delivery of the records without the requisite hearing of probable cause17 breaches the Fourth Amendment.
127
I also agree in substance with my Brother BRENNAN's view that the grant of authority by Congress to the Secretary of the Treasury is too broad to pass constitutional muster. This legislation is symptomatic of the slow eclipse of Congress by the mounting Executive power. The phenomenon is not brand new. It was reflected in Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570. United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508, is a more recent example. National Cable Television Assn. v. United States, 415 U.S. 336, 94 S.Ct. 1146, 39 L.Ed.2d 370, and FPC v. New England Power Co., 415 U.S. 345, 94 S.Ct. 1151, 39 L.Ed.2d 383, are even more recent. These omnibus grants of power allow the Executive Branch to make the law as it chooses in violation of the teachings of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153, as well as Schechter, that lawmaking is a congressional, not an Executive, function.
128
Mr. Justice BRENNAN, dissenting.
129
I concur in Parts I and II—A of Mr. Justice DOUGLAS' opinion. As to the Act's foreign and domestic reporting requirements, however, I see no need to address the independent constitutional objections the plaintiffs below attempt to raise. The reporting requirements are inseparable from—and in some cases considerably broader than—the recordkeeping requirements. Thus, since in my view the recordkeeping provisions unconstitutionally vest impermissibly broad authority in the Secretary of the Treasury, see United States v. Robel, 389 U.S. 258, 269, 88 S.Ct. 419, 426, 19 L.Ed.2d 508 (1967) (Brennan, J., concurring in result), the reporting provisions, too, are invalid.
130
The symbiotic nature of the recordkeeping and reporting requirements is clearly manifested in the expressions of congressional purpose found in 12 U.S.C. § 1951(b) and 31 U.S.C. § 1051, which lay down blanket commands that 'records' and 'reports' be required where they 'have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings.'
131
One example of this interdependence may be found in 12 U.S.C. §§ 1951—1953, which apply to 'any uninsured bank or uninsured institution,' terms which are themselves not defined in the Act. Section 1953 authorizes the Secretary to require the keeping of 'any records or evidence of any type' so long as he may require them of insured banks. Section 1952 authorizes him to require 'the making of appropriate reports by uninsured banks or uninsured institutions of any type with respect to their ownership, control, and managements and any changes therein.' As appears from the legislative history, these provisions work in tandem, permitting the Secretary to detect instances of the use of sham or illegal transactions in which the institutional party is merely an alter ego of the customer it purportedly services. See S.Rep.No.91—1139, p. 3 (1970); Hearings on Foreign Bank Secrecy and Bank Records (H.R. 15073) before the House Committee on Banking and Currency, 91st Cong., 1st and 2d Sess., 10—14 (1969—1970). Neither provision would usefully aid the detection of such practices without the other.
132
Not only are the reporting and recordkeeping requirements functionally inseparable, but the reporting requirements impose additional requirements, thus adding to the power of the Secretary to invade individual rights. For instance, the reporting provisions for all transactions involving domestic financial institutions, 31 U.S.C. § 1081, authorizes the Secretary to require reports at any time and in any manner and detail, of any transaction that involves the 'payment, receipt, or transfer of United States currency, or such other monetary instruments as the Secretary may specify.' Although the Secretary has by regulation limited the meaning of 'monetary instruments,' 31 CFR § 103.11, and invoked the section only where the transaction involves more than $10,000, see 31 CFR § 103.22, this in no way alters the fundamental vice of the statute.
133
That vice, see concurring opinion in United States v. Robel, supra, is the delegation of power to the Secretary in broad and indefinite terms under a statute that lays down criminal sanctions and potentially affects fundamental rights. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963); Cantwell v. Connecticut, 310 U.S. 296, 304—307, 60 S.Ct. 900, 903 905, 84 L.Ed. 1213 (1940). My view in Robel applies here:
134
'Formulation of policy is a legislature's primary responsibility, entrusted to it by the electorate, and to the extent Congress delegates authority under indefinite standards, this policy-making function is passed on to other agencies, often not answerable or responsive in the same degree to the people. '(S)tandards of permissible statutory vagueness are strict . . .' in protected areas. NAACP v. Button, 371 U.S., at 432, 83 S.Ct., at 337. 'Without explicit action by lawmakers, decisions of great constitutional import and effect would be relegated by default to administrators who, under our system of government, are not endowed with authority to decide them.' Greene v. McElroy, 360 U.S. 474, 507, 79 S.Ct. 1400, 1419, 3 L.Ed.2d 1377.' 389 U.S., at 276, 88 S.Ct., at 430.
135
In the case of the Bank Secrecy Act, also potentially involving First, Fourth, and Fifth Amendment rights of the vast majority of our citizenry, it exceeds Congress' constitutional power of delegation to empower the Secretary of the Treasury to require whatever reports and records he believes to be possessed of a 'high degree of usefulness' where the purpose is to further 'criminal, tax, or regulatory investigations or proceedings.'
136
Mr. Justice MARSHALL, dissenting.
137
Although I am in general agreement with the opinions of my Brothers DOUGLAS and BRENNAN, I believe it important to set forth what I view as the essential issue in these cases.
138
The purposes of the recordkeeping requirements of the Bank Secrecy Act are clear from the language of the legislation itself to require the maintenance of records which will later be available for examination by the Government in 'criminal, tax, or regulatory investigations or proceedings.' See 12 U.S.C. §§ 1829b(a)(2) and 1951(b). The maintenance of the records is thus but the initial step in a process whereby the Government seeks to acquire the private financial papers of the millions of individuals, businesses, and organizations that maintain accounts in banks and use negotiable instruments such as checks to carry out the financial side of their day-by-day transactions. In my view, this attempt to acquire private papers constitutes a search and seizure under the Fourth Amendment.
139
As this Court settled long ago in Boyd v. United States, 116 U.S. 616, 622, 6 S.Ct. 524, 528, 29 L.Ed. 746 (1886), 'a compulsory production of a man's private papers to establish a criminal charge against him . . . is within the scope of the fourth amendment to the constitution . . ..' The acquisition of records in this case, as we said of the order to produce an invoice in Boyd, may lack the 'aggravating incidents of actual search and seizure, such as forcible entry into a man's house and searching amongst his papers . . .,' Id., at 622, 6 S.Ct., at 527, but this cannot change its intrinsic character as a search and seizure. We do well to recall the admonishment in Boyd, id., at 635, 6 S.Ct., at 535:
140
'It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure.'
141
By compelling an otherwise unwilling bank to photocopy the checks of its customers, the Government has as much of a hand in seizing those checks as if it had forced a private person to break into the customer's home or office and photocopy the checks there. See Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520 (1927). Compare Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921), with Lustig v. United States, 338 U.S. 74, 78—79, 69 S.Ct. 1372, 1373 1374, 93 L.Ed. 1819 (Frankfurter, J.). See also, Corngold v. United States, 367 F.2d 1 (CA9 1966). Our Fourth Amendment jurisprudence should not be so wooden as to ignore the fact that through micro-filming and other techniques of this electronic age, illegal searches and seizures can take place without the brute force characteristic of the general warrants which raised the ire of the Founding Fathers. See Entick v. Carrington, 19 How.St.Tr. 1029 (1765); Stanford v. Texas, 379 U.S. 476, 483—484, 85 S.Ct. 506, 510—511, 13 L.Ed.2d 431 (1965). As we emphasized in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the absence of any physical seizure of tangible property does not foreclose Fourth Amendment inquiry. Id., at 352—353, 88 S.Ct., at 511—512. The Fourth Amendment 'governs not only the seizure of tangible items, but extends as well to the recording of oral statements . . ..' Id., at 353, 88 S.Ct., at 512. By the same logic, the Fourth Amendment should apply to the recording of checks mandated by the Act here. And such a massive and indiscriminate search and seizure, not only without a warrant but also without probable cause to believe that any evidence to be obtained is relevant to any investigation, is plainly inconsistent with the principles behind the Amendment. See Stanford v. Texas, supra, 379 U.S., at 485—486, 85 S.Ct., at 511—512; Katz v. United States, supra, 389 U.S., at 356—359, 88 S.Ct., at 514—515.
142
It is suggested that there is no seizure under the Fourth Amendment because the bank, which is required to create and maintain the record, is already a party to the transaction. See ante, at 52. Surely this is irrelevant to the question of whether a Government search or seizure is involved. The fact that one has disclosed private papers to the bank, for a limited purpose, within the context of a confidential customerbank relationship, does not mean that one has waived all right to the privacy of the papers. Like the user of the pay phone in Katz v. United States, who, having paid the toll, was 'entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world,' 389 U.S., at 352, 88 S.Ct., at 512, so the customer of a bank, having written or deposited a check, has a reasonable expectation that his check will be examined for bank purposes only—to credit, debit or balance his account—and not recorded and kept on file for several years by Government decree so that it can be available for Government scrutiny. See United States v. First Nat. Bank of Mobile, 67 F.Supp. 616 (SD Ala.1946).
143
The majority argues that any Fourth Amendment claim is premature, since the Act itself only affects the keeping of records and in no way changes the law regarding acquisition of the records by the Government. I cannot agree. This attempt to bifurcate the acquisition of information into two independent and unrelated steps is wholly unrealistic. As the Government itself concedes, 'banks have in the past voluntarily allowed law enforcement officials to inspect bank records without requiring the issuance of a summons.' Brief for Appellees in Nos. 72—985 and 72—1196, p. 38 n. 19. Indeed, the Chief of the Organized Crime and Racketeering Section of the Criminal Division of the Justice Department told a Senate Subcommittee in 1972 that access by the FBI to bank records without process occurs 'with some degree of frequency.' Hearings to amend the Bank Secrecy Act (S. 3814 and S. 3828) before the Subcommittee on Financial Institutions of the Senate Committee on Banking, Housing and Urban Affairs, 92d Cong., 2d Sess., 114—115 (1972).
144
The plain fact of the matter is that the Act's recordkeeping requirement feeds into a system of widespread informal access to bank records by Government agencies and law enforcement personnel. If these customers' Fourth Amendment claims cannot be raised now, they cannot be raised at all, for once recorded, their checks will be readily accessible, without judicial process and without any showing of probable cause, to any of the several agencies that presently have informal access to bank records.
145
The Government suggests that the Act does not in any way preclude banks from refusing to allow informal access and insisting on the issuance of legal process before turning over a customer's financial records. Such a refusal, however, even if accompanied by notice to the customer with an opportunity for him to assert his constitutional claims, comes too late, for the seizure has already taken place. By virtue of the Act's recordkeeping requirement, copies of the customer's checks are already in the bank's files and amenable to process. The seizure has already occurred, and all that remains is the transfer of the documents from the agent forced by the Government to accomplish the seizure to the Government itself. Indeed, it is ironic that although the majority deems the bank customers' Fourth Amendment claims premature, it also intimates that once the bank has made copies of a customer's checks, the customer no longer has standing to invoke his Fourth Amendment rights when a demand is made on the bank by the Government for the records. See ante, at 53. By accepting the Government's bifurcated approach to the recordkeeping requirement and the acquisition of the records, the majority engages in a hollow charade whereby Fourth Amendment claims are to be labeled premature until such time as they can be deemed too late.
146
Nor can I accept the majority's analysis of the First Amendment associational claims raised by the American Civil Liberties Union on behalf of its members who seek to preserve the anonymity of their financial support of the organization. The First Amendment gives organizations such as the ACLU the right to maintain in confidence the names of those who belong or contribute to the organization, absent a compelling governmental interest requiring disclosure. See NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). See also Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965); Gibson v. Florida Legislative Investigation Comm'n, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963); Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 81 S.Ct. 1333, 6 L.Ed.2d 301 (1961); Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960); Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960); United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770 (1953). It is certainly inconsistent with this long line of cases for the Government, absent any showing of need whatsoever, to require the bank with which the ACLU maintains an account to make and keep a microfilm record of all checks received by the ACLU and deposited to its account. The net result of this requirement, obviously, is an easily accessible list of all of the ACLU's contributors. And, given the widespread informal access to bank records by Government agencies, see supra, at 96—97, the existence of such a list surely will chill the exercise of First Amendment rights of association on the part of those who wish to have their contributions remain anonymous. The technique of examining bank accounts to investigate political organizations is, unfortunately, not rare. See, e.g., Pollard v. Roberts, 283 F.Supp. 248 (E.D.Ark.), aff'd per curiam, 393 U.S. 14, 89 S.Ct. 47, 21 L.Ed.2d 14 (1968); United States Servicemen's Fund v. Eastland, 159 U.S.App.D.C. 352, 488 F.2d 1252 (1973).
147
First Amendment freedoms are 'delicate and vulnerable' They need breathing space to survive. NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963). The threat of disclosure entailed in the existence of an easily accessible list of contributors may deter the exercise of First Amendment rights as potently as disclosure itself. Cf. ibid. See also United States Servicemen's Fund v. Eastland, supra, 159 U.S.App.D.C., at 365—368, 488 F.2d, at 1265—1268. More importantly, however slight may be the inhibition of First Amendment rights caused by the bank's maintenance of the list of contributors, the crucial factor is that the Government has shown no need, compelling or otherwise, for the maintenance of such records. Surely the fact that some may use negotiable instruments for illegal purposes cannot justify the Government's running roughshod over the First Amendment rights of the hundreds of lawful yet controversial organizations like the ACLU. Congress may well have been correct in concluding that law enforcement would be facilitated by the dragnet requirements of this Act. Those who wrote our Constitution, however, recognized more important values.
148
I respectfully dissent.
1
See generally S.Rep.No.91—1139 (1970); H.R.Rep.No.91—975 (1970), U.S.Code Cong. & Admin.News 1970, p. 4394; Hearings on Foreign Bank Secrecy and Bank Records (H.R. 15073) before the House Committee on Banking and Currency, 91st Cong., 1st and 2d Sess. (1969—1970); Hearings on Foreign Bank Secrecy (S. 3678 and H.R. 15073) before the Subcommittee on Financial Institutions of the Senate Committee on Banking and Currency, 91st Cong., 2d Sess. (1970).
2
See n. 11, infra.
3
Under § 123(b), 12 U.S.C. § 1953(b), the authority of the Secretary extends to any person engaging in the business of:
'(1) Issuing or redeeming checks, money orders, travelers' checks, or similar instruments, except as an incident to the conduct of its own nonfinancial business.
'(2) Transferring funds or credits domestically or internationally.
'(3) Operating a currency exchange or otherwise dealing in foreign currencies or credits.
'(4) Operating a credit card system.
'(5) Performing such similar, related, or substitute functions for any of the foregoing or for banking as may be specified by the Secretary in regulations.'
Section 122 of the Act, 12 U.S.C. § 1952, authorizes the Secretary to require reports with respect to the ownership, control, and management of uninsured domestic financial institutions.
4
See House Hearings, supra, n. 1, at 60—61, 80, 146, 162, 314, 316, 321, 333; S.Rep.No. 91—1139, supra, at 18—19 (Supplemental views).
5
For a summary of the task force study, see Hearings to amend the Bank Secrecy Act (S. 3814 and S. 3828) before the Subcommittee on Financial Institutions of the Senate Committee on Banking, Housing and Urban Affairs, 92d Cong., 2d Sess., 60—64 (1972). The Secretary initially issued regulations on April 5, 1972 implementing the provisions of the Act. See 31 CFR pt. 103 (37 Fed.Reg. 6912). The Treasury Department task force found that law enforcement would not be greatly impaired by limiting the check-copying requirement to checks in excess of $100. In Assistant Secretary of the Treasury estimated that this exclusion would eliminate 90% of all personal checks from the microfilming requirements. Senate Hearings on S. 3814, supra, at 42, 44, 57—58. The regulations were thus amended shortly after their promulgation to exclude the copying of checks drawn for $100 or less. 31 CFR § 103.34(b)(3), as amended, 37 Fed.Reg. 23114 (1972), 38 Fed.Reg. 2174 (1973), effective Jan. 17, 1973.
6
Exempted by 31 CFR § 103.34(b)(3) are dividend checks, payroll checks, employee benefit checks, insurance claim checks, medical benefit checks, checks drawn on governmental agency accounts, checks drawn by brokers or dealers in securities, checks drawn on fiduciary accounts, checks drawn on other financial institutions, and pension or annuity checks, provided they are drawn on an account expected to average at least one hundred checks per month.
7
Title 31 CFR § 103.34(b) requires that each bank retain either the original or a microfilm or other copy or reproduction of (1) documents granting signature authority over accounts; (2) statements or ledger cards showing transactions in each account; (3) each item involving more than $10,000 remitted or transferred to a person, account, or place outside the United States; (4) a record of each remittance or transaction of funds, currency, monetary instruments, checks, investment securities, or credit, of more than $10,000 to a person, account, or place outside the United States; (5) each check or draft in an amount exceeding $10,000 drawn on or issued by a foreign bank which the domestic bank has paid or presented to a nonbank drawee for payment; (6) each item of more than $10,000 received directly from a bank, broker, or dealer in foreign exchange outside the United States; (7) a record of each receipt of currency, monetary instruments, checks, or investment securities, and each transfer of funds or credit in amounts exceeding $10,000 received directly from a bank, broker, or dealer in foreign exchange outside the United States; (8) records needed to reconstruct a demand deposit account and to trace checks in excess of $100 deposited in such account.
Title 31 CFR § 103.35 requires brokers and dealers in securities to maintain similar information with respect to their brokerage accounts.
The prescribed retention period for all records under the regulations is five years, except for the records required for reconstructing a demand deposit account, which must be retained for only two years. 31 CFR § 103.36(c).
8
Title 31 CFR § 103.51 provides:
'Except as provided in §§ 103.34(a)(1) and 103.35(a)(1), and except for the purpose of assuring compliance with the recordkeeping and reporting requirements of this part, this part does not authorize the Secretary or any other person to inspect or review the records required to be maintained by subpart C of this part. Other inspection, review or access to such records is governed by other appliable law.'
This regulation became effective January 17, 1973. 37 Fed.Reg. 23114 (1972); 38 Fed.Reg. 2174 (1973).
9
'Monetary instrument' is defined by § 203(l) of the Act as 'coin and currency of the United States, and in addition, such foreign coin and currencies, and such types of travelers' checks, bearer negotiable instruments, bearer investment securities, bearer securities, and stock with title passing upon delivery, or the equivalent thereof, as the Secretary may by regulation specify for the purposes of the provision of this title to which the regulation relates.' 31 U.S.C. § 1052(l).
10
The form provided by the Treasury Department for the reporting of these transactions is Form 4790 (Report of International Transportation of Currency or Monetary Instruments). See Motion to Affirm on behalf of the United States in No 72—985, App. C, pp. 29—30. The report must identify the person required to file the report, his capacity, and the identity of persons for whom he acts, and must specify the amounts and types of monetary instruments, the method of transportation, and, if applicable, the name of the person from whom the shipment was received.
11
In issuing these regulations, the Secretary relied upon the authority of two statutory provisions: (1) the Trading with the Enemy Act, 40 Stat. 411, as amended by § 2, Act of Mar. 9, 1933, 48 Stat. 1, and by § 301, First War Powers Act, 1941, 55 Stat. 839, see 12 U.S.C. § 95a (1940 ed., Supp. V); and (2) § 251 of the Revised Statutes, 31 U.S.C. § 427.
12
The previous regulations promulgated by the Secretary, see 31 CFR § 102.1 (1949), 10 Fed.Reg. 6556, originally mentioned transactions involving $1,000 or more in denominations of $50 or more, or $10,000 or more in any denominations. In 1952, the former amount was raised to $2,500 in denominations of $100 or more. See 17 Fed.Reg. 1822, 2306. When these regulations were revised in 1959 to simplify the reporting form, the Secretary noted the great value of the reports to law enforcement. See Treasury Release No. A—590, Aug. 3, 1959, included in the Jurisdictional Statement for the United States in No. 72—1073, App. E, pp. 127—130.
13
The proper interpretation of this section is a source of dispute in these appeals. See n. 29, infra.
14
'Currency' is defined in the Secretary's regulations as the 'coin and currency of the United States or of any other country, which circulate in and are customarily used and accepted as money in the country in which issued. It includes U.S. silver certificates, U.S. notes and, Federal Reserve notes, but does not not include bank checks or other negotiable instruments not customarily accepted as money.' 31 CFR § 103.11.
15
The form prescribed by the Secretary, see 31 CFR § 103.25(a), for the reporting of the domestic currency transactions is Treasury Form 4789 (Currency Transaction Report). See Jurisdictional Statement for the United States in No. 72—1073, App. D, p. 121. Form 4789 requires information similar to that required by the previous Treasury reporting form, see n. 12, supra, including (1) the name, address, business or profession and social security number of the person conducting the transaction; (2) similar information as to the person or organization for whom it was conducted; (3) a summary description of the nature of the transaction, the type, amount, and denomination of the currency involved and a description of any check involved in the transaction; (4) the type of identification presented; and (5) the identity of the reporting financial institution.
The regulations also provide that the names of all customers whose currency transactions in excess of $10,000 are not reported on Form 4789 must be reported to the Secretary on demand. 31 CFR § 103.22.
16
Transactions with Federal Reserve Banks or Federal Home Loan Banks, or solely with or originated by financial institutions or foreign banks, are also excluded from these reporting requirements. 31 CFR § 103.22.
17
Section 212 of the Act, 31 U.S.C. § 1061, authorizes the Secretary to provide by regulation for the availability of information provided in the reports required by the Act to other departments and agencies of the Federal Government. Pursuant to this authority, the Secretary has promulgated 31 CFR § 103.43, which provides:
'The Secretary may make any information set forth in any report received pursuant to this part available to any other department or agency of the United States upon the request of the head of such department or agency, made in writing and stating the particular information desired, the criminal, tax or regulatory investigation or proceeding in connection with which the information is sought and the official need therefor. Any information made available under this section to other departments or agencies of the United States shall be received by them in confidence, and shall not be disclosed to any person except for official purposes relating to the investigation or proceeding in connection with which the information is sought.'
The last sentence of this regulation was added by an amendment, see 37 Fed.Reg. 23114 (1972); 38 Fed.Reg. 2174 (1973), effective Jan. 17, 1973.
18
Title 31 CFR § 103.45(a) provides:
'The Secretary, in his sole discretion, may by written order or authorization make exceptions to or grant exemptions from the requirements of this part. Such exceptions or exemptions may be conditional or unconditional, may apply to particular persons or to classes of persons, and may apply to particular transactions or classes of transactions. They shall, however, be applicable only as expressly stated in the order of authorization, and they shall be revocable in the sole discretion of the Secretary.'
When originally promulgated, this regulation additionally gave the Secretary the authority to 'impose additional recordkeeping or reporting requirements authorized by statute, or otheriwise modify, the requirements of' the Act. 37 Fed.Reg. 6915 (1972). The amendment to the present form became effective January 17, 1973. 37 Fed.Reg. 23114 (1972); 38 Fed.Reg. 2174 (1973).
19
See, e.g., Treas.Reg. § 1.368—3 (records to be kept by taxpayers who participate in tax-free exchanges in connection with a corporate reorganization); § 1.374—3 (records to be kept by a railroad corporation engaging in a tax-free exchange in connection with a railroad reorganization); § 1.857—6 (real estate investment trusts must keep records of stock ownership); § 1.964—3 (shareholders must keep records of their interest in a controlled foreign corporation); § 1,1101—4 (records to be kept by a stock or security holder who receives stock or securities or other property upon a distribution made by a qualified bank holding corporation); § 1.1247—5 (foreign investment company must keep records sufficient to verify what taxable income it may have); § 1.6001—1 (all persons liable to tax under subtitle A of the Internal Revenue Code shall keep records sufficient to establish gross income, deductions, and credits); § 31.6001 et seq. (requirements that various employers keep records of withholding under the Railroad Retirement Tax Act and the Federal Unemployment Tax Act); §§ 45.6001—2 to 45.6001—4 (records to be kept by manufacturers of butter and cheese); §§ 46.6001—2 (records to be kept by manufacturers of sugar); § 46.6001—4 (records to be kept by persons paying premiums on policies issued by foreign insurers). Treas.Reg. § 301.7207—1 provides for criminal penalties for willful delivery or disclosure to the Internal Revenue Service of a document known by the person disclosing it to be false as to any material matter.
20
Brief for Appellant California Bankers Association in No. 72—985, p. 25.
21
Congress had before it ample testimony that the requirement that banks reproduce checks and maintain other records would significantly aid in the enforcement of federal tax, regulatory, and criminal laws. See House Hearings, supra, n. 1, at 151, 322, 359; Senate Hearings, supra, n. 1, at 61—68, 175, 230, 250—255, 282. While a substantial portion of the checks drawn on banks in the United States may never be of any utility for law enforcement, tax or regulatory purposes, the regulations do limit the check-copying requirement to checks in excess of $100. 31 CFR §§ 103.34(b)(3) and (4). This $100 exception was added to the regulations since this litigation was instituted, see n. 5, supra; in reviewing the judgment of the District Court in this case, we look to the statute and the regulations as they now stand, not as they once did. Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 201, 24 L.Ed.2d 214 (1969) (per curiam); Thorpe v. Housing Authority, 393 U.S. 268, 281 n. 38, 89 S.Ct. 518, 526, 21 L.Ed.2d 474 (1969).
The California Bankers Association contends that the $100 exception is meaningless since microfilm cameras cannot discriminate between checks in different amounts. There was, however, testimony during the House Hearings that an additional step could be added to the check-handling procedures to sort out those checks not required to be copied, and that many banks have equipment that can sort checks on a dollar-amount basis. House Hearings, supra, n. 1, at 322, 359. In any event, it is clear that the Act and regulations do not require banks to microfilm all checks, which some banks have traditionally done, but instead leave the decision to the banks. Given the fact that the cost burden placed on the banks in implementing the recordkeeping requirements of the statute and regulations is also a reasonable one, see n. 22, infra, we do not think that the recordkeeping requirements are unreasonable.
22
The only figures in the record as to the cost burden placed on the banks by the recordkeeping requirements show that the Bank of America, one of the largest banks in the United States, with 997 branches, $29 billion in deposits, and a net income in excess of $178 million (Moody's Bank and Finance Manual 633—636 (1972)), expended $392,000 in 1971, including start-up costs, to comply with the microfilming requirements of Title I of the Act. Affidavit of William Ehler, App. 24—25.
The hearings before the House Committee on Banking and Currency indicated that the cost of making microfilm copies of checks ranged from 1 1/2 mills per check for small banks down to about 1/2 mill or less for large banks. See House Hearings, supra, n. 1, at 341, 354—356; H.Rep.No.91—975, supra, at 11. The House Report further indicates that the legislation was not expected to significantly increase the costs of the banks involved since it was found that many banks already followed the practice of maintaining the records contemplated by the legislation.
23
See n. 18, supra.
24
Chapter 4 of the Act, § 241, 31 U.S.C. § 1121, authorizes the Secretary to require by regulation the maintenance of records by persons who engage in any transaction or maintain a relationship, directly or indirectly, on behalf of themselves or others, with a foreign financial agency. The Secretary has, by regulation, required the maintenance of such records by persons having such financial interests and by domestic financial institutions which engage in monetary transactions outside the United States. 31 CFR §§ 103.32, 103.33. The Act also provides that production of such records shall be compelled only by 'a subpena or summons duly authorized and issued or as may otherwise be required by law.' 31 U.S.C. § 1121(b). Though it is not apparent from the various briefs filed in this Court by the plaintiffs below whether this particular recordkeeping requirement is challenged, our holding that a mere requirement that records be kept does not violate any constitutional right of the banks or of the depositors necessarily disposes of such a claim, since there is no indication at this point that there has been any attempt tocompel the there has been any attempt to compel the
25
The ACLU recognizes that these cases, and the other cases it cites involved situations in which a subpoena or summons had already issued. Brief for Appellant ACLU in No. 72—1196, p. 57. See Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965); Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963); Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 81 S.Ct. 1333, 6 L.Ed.2d 301 (1961); Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960); Bates v. Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960); NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770 (1953).
26
The ACLU contends that present injunctive relief is essential, since the banks might not notify it of the fact that their records have been subpoenaed, and might comply with the subpoena without giving the ACLU a chance to obtain judicial review. While noting that 'most banks formally prohibit' it (citing American Banker, May 12, 1972, p. 1, cols. 3—4), the ACLU also contends that the 'day-to-day practice of permitting 'informal' access to bank records is, unfortunately, widespread.' Brief for Appellant ACLU in No. 72—1196, p. 58.
The record contains no showing of any attempt by the Government, formal or informal, to compel the production of bank records containing information relating to the ACLU; we accordingly express no opinion whether notice would in such an instance be required by either the Act or the Constitution.
27
See n. 29, infra.
A. FOURTH AMENDMENT CHALLENGE TO THE FOREIGN REPORTING REQUIREMENTS
28
We hold here and in other parts of this opinion that certain of the plaintiffs did not make the requisite allegations in the District Court to give them standing to challenge the Act and the regulations issued pursuant to it. In so holding, we do not, of course, mean to imply that such claims would be meritorious if presented by a litigant who has standing.
29
Plaintiffs similarly contend that the Secretary's regulation requiring the reporting of domestic currency transactions only by the banks or financial institutions which are parties thereto, violates a specific requirement of the Act. Section 222 of the Act, 31 U.S.C. § 1082, provides in pertinent part:
'The report of any transaction required to be reported under this chapter shall be signed or otherwise made both by the domestic financial institution involved and by one or more of the other parties thereto or participants therein, as the Secretary may require.' Plaintiffs contend that this language requires the Secretary to require either a signature on the report by the individual customer in the currency transaction, or a report from that customer. Since the Secretary has only required a report from the financial institution, plaintiffs urge, in addition, that there will not be notice to the individual customer of the report made by the financial institution.
In rebuttal, the Government urged in order argument, Tr. of Oral Arg. 64—70, that not only does § 206 of the Act, 31 U.S.C. § 1055, give the Secretary broad authority to make exceptions to the requirements of the Act in promulgating the regulations, but that the House and Senate Reports on the bills considered by each house of the Congress, each of which contained a provision identical to the language of § 222, indicated that each chamber read that language differently. The Senate Committee believed that the language permitted the Secretary to require reports from the financial institution, the customer, or both, S.Rep.No. 91—1139, supra, at 15, while the House Committee felt that the language required reports to be filed by both the financial institution and the customer, H.R.Rep.No. 91—975, supra, at 22.
We similarly do not reach this claim as it relates to the depositor plaintiffs since they failed to allege sufficient injury below. Whatever the merits of such a contention vis-a -vis the depositors, the regulation clearly has no adverse effect on any constitutional right of the banks, since the statute indisputably authorizes the Secretary to require a report from the bank.
30
There have been recent hearings in Congress on various legislative proposals to amend the Bank Secrecy Act. Hearings to Amend the Bank Secrecy Act (S. 3814 and S. 3828) before the Subcommittee on Financial Institutions of the Senate Committee on Banking, Housing and Urban Affairs, 92d Cong., 2d Sess. (1972). See S. 3814 and S. 3828, 92d Cong., 2d Sess. (1972).
1
The House Report, No. 91—975, p. 10, states:
'Petty criminals, members of the underworld, those engaging in 'white collar' crime and income tax evaders use, in one way or another, financial institutions in carrying on their affairs.' U.S.Code Cong. & Admin.News 1970, p. 4395.
That was the reason for requiring the report of large domestic cash transactions. 'Criminals deal in money—cash or its equivalent. The deposit and withdrawal of large amounts of currency or
its equivalent (monetary instruments) under unusual circumstances may betray a criminal activity. The money in many of these transactions may represent anything from the proceeds of a lottery racket to money for the bribery of public officials.' Id., at 11, U.S.Code Cong. & Admin.News 1970, p. 4396.
A sponsor on the floor of the House stated: 'With respect to full financial recordkeeping, the problem can be simply stated; in the past decade, as organized crime and criminals have become more sophisticated, more and greater use has been made by criminal elements of our Nation's financial institutions. Law enforcement officials believe that an effective attack on organized crime requires the maintenance of adequate and appropriate records by financial institutions.' 116 Cong.Rec. 16950.
Congressman Patman, author of the bill, stated: 'This is really a bill which, if enacted into law, will be the longest step in the direction of stopping crime than any other we have had before this Congress in a long time.' Id., at 16951.
While it started with a different objective, it was changed to serve an additional purpose: 'We also discovered that secret foreign bank accounts were not the only criminal activities related to the banking field. The major law enforcement authority the Justice Department—of the U.S. Government called our attention to the urgent need for regulations which would make uniform and adequate the present recordkeeping practices, or lack of recordkeeping practices, by domestic banks and other financial institutions.' Id., at 16952.
2
The Senate Report, No. 91—1139, is replete with the same philosophy. See pp. 1, 5, 7, 8.
3
The Act authorizes the Secretary to issue regulations to carry out its purposes, 12 U.S.C. § 1829b(b). It empowers him to define institutions or persons affected, 12 U.S.C. §§ 1953(a), (b)(5), to make exceptions, exemptions, or other special arrangements, 12 U.S.C. §§ 1829(c), (f); to seek injunctions, 12 U.S.C. § 1954; and to assess and collect civil penalties, 12 U.S.C. § 1955.
4
Title 31 CFR § 103.34 at the time this litigation was commenced provided that banks shall:
'(a) . . . secure and maintain a record of the taxpayer identification number of the person maintaining the account; or in the case of an account of one or more individuals, such bank shall secure and maintain a record of the social security number of an individual having a financial interest in that account.
'(b) Each bank shall, in addition, retain either the original or a microfilm or other copy or reproduction of each of the following:
'(1) Each document granting signature authority over each deposit or share account;
'(2) Each statement, ledger card or other record on each deposit or share account, showing each transaction in, or with respect to, that account;
'(3) Each check, clean draft, or money order drawn on the bank or issued and payable by it, except those drawn on accounts which can be expected to have drawn on them an average of at least 100 checks per month over the calendar year or on each occasion on which such checks are issued, and which are (i) dividend checks, (ii) payroll checks, (iii) employee benefit checks, (iv) insurance claim checks, (v) medical benefit checks, (vi) checks drawn on governmental agency accounts, (vii) checks drawn by brokers or dealers in securities, (viii) checks drawn on fiduciary accounts, (ix) checks drawn on other financial institutions, or (x) pension or annuity checks;
'(4) Each item other than bank charges or periodic charges made pursuant to agreement with the customer, comprising a debit to a customer's deposit or share account, not required to be kept, and not specifically exempted, under subparagraph (b)(3) of this section;
'(5) Each item, including checks, drafts, or transfers of credit, of more than $10,000 remitted or transferred to a person, account or place outside the United States;
'(6) A record of each remittance or transfer of funds, or of currency, other monetary instruments, checks, investment securities, or credit, of more than $10,000 to a person, account or place outside the United States;
'(7) Each check or draft in an amount in excess of $10,000 drawn on or issued by a foreign bank, purchased, received for credit or collection, or otherwise acquired by the bank;
'(8) Each item, including checks, drafts or transfers of credit, of more than $10,000 received directly and not through a domestic financial institution, by letter, cable or any other means, from a person, account or place outside the United States;
'(9) A record of each receipt of currency, other monetary instruments, checks, or investment securities, and of each transfer of funds or credit, of more than $10,000 received on any one occasion directly and not through a domestic financial institution, from a person, account or place outside the United States; and
'(10) Records prepared or received by a bank in the ordinary course of business, which would be needed to reconstruct a demand deposit account and to trace a check deposited in such account through its domestic processing system or to supply a description of a deposited check. This subparagraph shall be applicable only with respect to demand deposits.' 37 Fed.Reg. 6914.
During this litigation the above provision was amended by the Secretary making it unnecessary to microfilm copies of checks 'drawn for $100 or less,' 31 CFR § 103.34(b)(3) (1973). Since banks must copy all checks it is hard to see how this new exemption is meaningful.
5
Like requirements are placed on brokers and dealers in securities, 31 CFR § 103.35.
6
Hearings on Foreign Bank Secrecy and Bank Records (H.R. 15073) before the House Committee on Banking and Currency, 91st Cong., 1st and 2d Sess., 320 (1969—1970).
7
And see Roe v. Wade, 410 U.S. 113, 155, 93 S.Ct. 705, 728, 35 L.Ed.2d 147; Police Dept. of Chicago v. Mosley, 408 U.S. 92, 101, 92 S.Ct. 2286, 2293, 33 L.Ed.2d 212; Gooding v. Wilson, 405 U.S. 518, 522, 92 S.Ct. 1103, 1106, 31 L.Ed.2d 408; Shuttlesworth v. Birmingham, 394 U.S. 147, 151, 89 935, 938, 22 L.Ed.2d 162; Cameron v. Johnson, 390 U.S. 611, 617, 88 S.Ct. 1335, 1338, 20 L.Ed.2d 182; Zwickler v. Koota, 389 U.S. 241, 250, 88 S.Ct. 391, 396, 19 L.Ed.2d 444; Whitehill v. Elkins, 389 U.S. 54, 62, 88 S.Ct. 184, 188, 19 L.Ed.2d 228; Ashton v. Kentucky, 384 U.S. 195, 201, 86 S.Ct. 1407, 1410, 16 L.Ed.2d 469; Elfbrandt v. Russell, 384 U.S. 11, 18, 86 S.Ct. 1238, 1241, 16 L.Ed.2d 321.
The same view is often expressed in concurring opinions. See Doe v. Bolton, 410 U.S. 179, 216, 93 S.Ct. 739, 760, 35 L.Ed.2d 201 (Douglas, J., concurring); Gregory v. Chicago, 394 U.S. 111, 119, 89 S.Ct. 946, 950, 22 L.Ed.2d 134 (Black, J., concurring); United States v. Robel, 389 U.S. 258, 270, 88 S.Ct. 419, 427, 19 L.Ed.2d 508 (Brennan, J., concurring in result).
8
31 U.S.C. § 1101.
9
31 U.S.C. § 1121. The Secretary requires reports in yearly tax returns of any 'financial interest in, or signature or other authority over, a bank, securities or other financial account in a foreign country,' 31 CFR § 103.24.
10
31 U.S.C. §§ 1056, 1102, 1103; 31 CFR §§ 103.47—103.48.
11
31 U.S.C. §§ 1058, 1059; 31 CFR § 103.49
12
31 U.S.C § 1061. The regulations read as follows:
'The Secretary may make any information set forth in any report received pursuant to this part available to any other department or agency of the United States upon the request of the head of such department or agency, made in writing and stating the particular information desired, the criminal, tax or regulatory investigation or proceeding in connection with which the information is sought and the official need therefor.' 31 CFR § 103.43.
13
31 U.S.C. § 1060. The Court in Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212, held that 'use immunity' satisfies the Self-Incrimination Clause of the Fifth Amendment. I disagreed then and persist in my view that it is 'transactional' immunity, not 'use' immunity, that is required to lift this constitutional protection. See id., at 462—467, 92 S.Ct., at 1665—1668 (dissenting opinion). But since 'use' immunity is 'the law' of the present Court—though I doubt if it can long survive—I do not write this dissent against the narrow immunity that is granted.
14
31 CFR § 103.22.
15
31 U.S.C. § 1082.
16
At that time 31 CFR § 103.45 read as follows: '(a) The Secretary, in his sole discretion, may be written order or authorization make exceptions to, grant exemptions from, impose additional recordkeeping or reporting requirements authorized by statute, or otherwise modify, the requirements of this part. Such exceptions, exemptions, requirements or modifications may be conditional or unconditional, may apply to particular persons or to classes of persons, and may apply to particular transactions or classes of transactions. They shall, however, be applicable only as expressly stated in the order or authorization, and they shall be revocable in the sole discretion of the Secretary.
'(b) The Secretary shall have authority to further define all terms used herein.'
Since then, the language 'impose additional recordkeeping or reporting requirements authorized by statute, or otherwise modify' has been deleted from § 103.45.
17
A criminal prosecution in this country for not reporting an overseas transaction is still a criminal prosecution under the Bill of Rights; and to these the Fourth Amendment has been applicable from the beginning. Cases of immigration officers stopping people at the border who are leaving or entering the country are obviously inapposite and certainly the Court cannot be serious in saying that the monetary value of the article being seized is relevant to whether the search and seizure without a warrant was constitutional. As said in Katz it is 'persons' not 'places' that the Fourth Amendment protects; and it would labor the point to engage in lengthy argument that 'things' as well as 'places' are not the object of the Fourth Amendment's concerns.
| 01
|
416 U.S. 100
94 S.Ct. 1626
40 L.Ed.2d 79
James S. MAHON, Trustee, and C.I.T. Corporationv.Curtis R. STOWERS et al.
No. 73—1131.
April 15, 1974.
[Syllabus from pages 100-101 intentionally omitted]
PER CURIAM.
1
This litigation arose out of the bankruptcy of Samuels & Co. a large meat packing concern with plants in various parts of Texas. Respondents had sold cattle to Samuels, for which they received checks in payment, but bankruptcy ensued before the checks had been paid by the drawee bank. With the consent of all parties the receiver and the trustee of the bankrupt estate continued to sell meat from the cattle that had been slaughtered and packaged by Samuels and held the proceeds of such sales subject to disposition by the referee. Respondents sought reclamation of the cattle which they had sold to Samuels, and asserted a concomitant right to the proceeds from sale of the packaged meat. C.I.T. Corporation, which held a perfected lien on the bankrupt's inventory and other property, and the trustee in bankruptcy opposed the respondents' claim.
2
The referee made findings of fact and conclusions of law which sustained the respondents' position. The District Court upheld the referee's findings of fact, but reversed the judgment on the grounds that under the applicable provisions of the Texas Business and Commercial Code the claims of the trustee and C.I.T. were superior to that of respondents. The Court of Appeals for the Fifth Circuit, however, agreed with the referee and reversed the District Court judgment because it read the Packers and Stockyards Act, 42 Stat. 159, 7 U.S.C. § 181 et seq., and certain regulations issued by the Secretary of Agriculture thereunder, as establishing the superiority of respondents' claim notwithstanding Texas law. We disagree with this reading of the applicable provisions of the Packers and Stockyards Act, and therefore grant certiorari and reverse the judgment of the Court of Appeals.
3
* The uncontested facts in this case are contained in the findings of the bankruptcy referee. The referee found that respondents, for a period of some ten days before Samuels filed a Chapter XI petition under the Bankruptcy Act, had been selling live cattle to Samuels for slaughter on a 'grade and yield' basis, and that this was a recognized custom and usage in the trade. Under this usage the contract price is left open at the time of delivery to the purchaser, who slaughters the livestock and allows the carcasses to chill for approximately 24 hours. At that time they are graded by the United States Department of Agriculture and the price is determined. The purchaser then gives the seller a check for the established amount. The referee further found that Samuels was subject to the regulations of the Packers and Stockyards Act, and that all of the livestock in question had been delivered to Samuels at its plant in Mount Pleasant, Texas, where it was slaughtered and then graded by the Department of Agriculture.
4
Until the livestock is actually graded and the yield determined, the sellers can identify their particular livestock, but once the carcasses are processed and the meat packaged, identification is no longer possible. When the petition for bankruptcy was filed in this case, none of the respondents was able to identify his own particular livestock, but the referee found that at least some of the carcasses sold by respondents were on Samuels' premises at that time. The referee also determined that no proceeds from sale of packaged meat could be identified as realized from carcasses delivered by respondents.
5
Examining the competing claims, the referee found that at all times material to the action C.I.T. was the holder of a duly perfected security interest in all livestock, animal carcasses, packaged and unpackaged meat, packing materials, and other inventory owned by Samuels or in which Samuels may have had an interest. At the time the bankruptcy petition was filed Samuels was indebted to C.I.T. in an amount in excess of $1,800,000. C.I.T. had been advancing large sums weekly to Samuels, and the bankruptcy was precipitated on May 23, 1969, when C.I.T., deeming itself to be insecure, refused to make a weekly advance of approximately $184,000 which Samuels needed to continue its operations. The referee found that C.I.T. 'knew or should have known' of the method by which Samuels bought livestock from respondents on a grade-and-yield basis. He further found that no respondent held a security agreement with Samuels, and that none had filed a financing statement reflecting the transactions with Samuels.
6
The referee reasoned from these facts that respondents and Samuels had intended to transact their sales business on a cash, rather than a credit, basis, and that title to the livestock 'did not pass from plaintiff to bankrupt until payment was made to plaintiff.' Therefore, he concluded, C.I.T.'s perfected lien could not attach to the livestock in Samuels' inventory until the checks issued in payment were subsequently honored. Any other decision would, he said, make the cattle sellers 'a species of involuntary creditor against their wishes and intent,' although they had complied with normal selling arrangements under the Packers and Stockyards Act. He found it unnecessary for the respondents to identify proceeds from the sale of specific carcasses which they had delivered, and placed the duty on C.I.T. to show that the funds to which it laid claim had not been received from the sale of carcasses furnished by respondents.
7
The District Court accepted the referee's findings of fact but reversed on the law. Turning to the provisions of the Texas Business and Commercial Code, which are largely counterparts of the Uniform Commercial Code, the court found that the respondents by their delivery of the cattle had retained only a security interest in those animals and the proceeds therefrom.1 It further found that the respondents had taken no action to perfect their security interest2 nor attempted to utilize any right of reclamation they might have had under Texas law.3 Delivery of the cattle to Samuels on this basis enabled it to transfer good title to a good-faith purchaser for value, a category of persons which included both C.I.T. and the trustee in bankruptcy.4 The District Court also found that respondents were unable to 'establish their right to possession by ownership . . . (by) identify(ing) positively the property sought to be reclaimed in either its original or substituted form.' The District Court was in turn reversed by a divided Court of Appeals for the Fifth Circuit. Although that court conceded that C.I.T. would have a superior right to the sales proceeds were the transaction governed solely by the provisions of the Texas Business and Commercial Code, it found that the Packers and Stockyards Act, 7 U.S.C. § 181 et seq., along with the regulations promulgated thereunder and the relevant usages of trade, made Samuels a trustee of the proceeds received from the sale of cattle delivered by respondents. The court stated:
8
'The reasoning of these cases and the impact of the Packers and Stockyards Act convinces this court that more than an unperfected security interest subject to reclamation is reserved for the cattle seller. Not by contract but by statute and regulation a packer lacks full dominion over the carcasses until the seller has been paid. Where the packer defaults by the issuance of a bad check (and destroys the identity of the security by processing the carcasses into fungible meat products), the seller is the beneficiary of a trust imposed by remedial statute.'5
9
The right of the cattle sellers to funds thus found to be specifically held in trust for their benefit was deemed superior to the general perfected lien of C.I.T. on the Samuels' inventory.
II
10
This Court has previously held that an ordinary debtor-creditor relationship requires more than the post-bankruptcy disappointment of the creditor to convert it into a trust relationship. See McKee v. Paradise, 299 U.S. 119, 57 S.Ct. 124, 81 L.Ed. 75 (1936). Examining a claim by employees that funds held for their general benefit by an employee association were funds held in trust, the Court in McKee stated:
11
'The bankrupt was a debtor which had failed to pay its debt. We know of no principle upon which that failure can be treated as a conversion of property held in trust. At no time throughout the whole period was there a trust fund or res. No fund was segregated or set up by special deposit or in any manner. When the wages became due, there was no such fund but only the general assets of the employer and its obligation to pay a debt. . . . The fact that the failure to pay the association was an acute disappointment and was expecially regrettable as the claimant was an association of employees, cannot avail to change the debtor into a trustee or enable the creditor to obtain a preference over other claims against a bankrupt estate.' Id., at 122—123, 57 S.Ct., at 125.
12
The Court therefore held that the employees were entitled to share in the bankrupt's assets only in the position of a general unsecured creditor.
13
Similarly, we believe that the Court of Appeals, in concluding that in this case a trust relationship existed between Samuels and respondents, placed more weight on the Packers and Stockyards Act, and corresponding regulations and practices, than they will properly bear. For although the Act does regulate methods of payment and record-keeping procedures for persons defined as 'packers' by the Act, we must remember that the 'chief evil' at which it was aimed was 'the monopoly of the packers, enabling them unduly and arbitrarily to lower prices to the shipper who sells, and unduly and arbitrarily to increase the price to the consumer who buys.' Stafford v. Wallace, 258 U.S. 495, 514—515, 42 S.Ct. 397, 401, 66 L.Ed. 735 (1922). We find no evidence in either the Act or the regulations that packers are to hold cattle or carcasses in trust until the sellers actually convert into cash the checks given them as payment for each sale.
14
We note at the outset that Samuels is subject to the Packers and Stockyards Act solely as a 'packer'6 rather than as a 'stockyard owner,'7 'market agency,'8 or 'dealer.'9 This difference is important, for the Act regulates packers in a different manner than it does those in the other enumerated categories. Thus, for example, the bonding requirements of 7 U.S.C. § 204 are not applicable to packers, nor does the Act give a private cause of action against packers, as it does against stockyards, market agencies, and dealers. 7 U.S.C. § 209. An implicit fiduciary obligation which would override state commercial law and establish a special priority in bankruptcy, such as the Court of Appeals found to exist here must therefore be extracted either from the specific sections relating to packers, or from the few general sections which are applicable to all categories of persons subject to the Act.
15
The specific provisions dealing with packers impose no such duty.10 The only section which might possibly be relevant to this question, 7 U.S.C. § 192, deals generally with unlawful practices of packers, placing heavy emphasis on practices which might be considered to be in restraint of trade. Enforcement of this section is the responsibility of the Secretary of Agriculture, who is given authority to hold hearings and enter binding orders. But there is no indication that, lurking within this intention to control deceptive and monopolistic practices in the packing industry, lies a further intention to guarantee persons who sell cattle to such packers a special favored position in regard to the packers' assets. Nor do the general provisions show such an intent.11 Those sections are primarily concerned with recordkeeping, allocation of responsibility between the Secretary of Agriculture and the Federal Trade Commission, and the authority of the Secretary of Agriculture to promulgate appropriate rules and regulations to carry out the provisions of the Act.
16
The Court of Appeals did not rest its decision upon the Act itself, however, but rather upon two regulations promulgated by the Secretary of Agriculture. The first regulation, 9 CFR § 201.43(b),12 requires that a packer 'before the close of the next business day following the purchase of livestock and the determination of the amount of the purchase price, transmit or deliver to the seller or his duly authorized agent the full amount of the purchase price, unless otherwise expressly agreed between the parties before the purchase of the livestock.' The second regulation, 9 CFR § 201.99,13 requires a packer 'purchasing livestock on a . . . carcass grade and weight basis' to 'maintain the identity of each seller's livestock and the carcasses therefrom' and, after determination of the purchase price, to deliver to the seller a 'true written account of such purchase' incorporating the pertinent terms. The Court of Appeals reasoned that these regulations, read in conjunction, were intended to provide cattle sellers with special protection when forced to deal on a carcass grade-and-weight basis. The protection fashioned by the Court of Appeals was to make a packer, such as Samuels, a trustee for the proceeds of any sale derived from cattle delivered under these provisions. We believe that that conclusion was erroneous.
17
We think that a fair reading of 9 CFR § 201.99 reveals its overriding concern that cattle sellers, having delivered their livestock into the hands of a purchasing packer prior to actual determination of the purchase price, receive a fair and accurate accounting of the proceeds of their sale. A seller operating without the benefit of such provisions clearly would face substantial risk that his livestock might be mingled with other livestock of lesser value and thereby become indistinguishable from livestock delivered by other sellers, or that he might become subject to arbitrary weighing practices on the part of the packers. Regulation 201.99 insures that the packers both observe principles of fair dealing in determining the proceeds of the sale and also maintain sufficient records so that the sellers and the Secretary of Agriculture can exercise proper supervision. But there is no indication in this record that Samuels failed to comply with the provisions of Regulation 201.99. Respondents complained, not that Samuels commingled their livestock, or failed to provide fair pricing, but rather that bankruptcy intervened before checks in the concededly proper amount cleared the bank on which they were drawn. And Regulation 201.99 simply does not address itself to this problem.
18
Regulation 201.43, though more to the point, likewise fails to support the imposition of a trust on Samuels. It requires packers, market agencies, and dealers purchasing livestock to make payment within one business day following the determination of the amount of the purchase price, but does not meet the question of whether a seller, failing to receive payment within that time, has a special claim against the defaulting payor. Respondents argue strongly that this regulation insures prompt payment, and that the failure to make prompt payment is a prohibited deceptive practice under the Act. While this contention may well be true, it does not necessarily support a conclusion that the regulation, designed to regulate payment procedures between a buyer and seller, was also intended to determine security rights between the sellers and third parties holding a valid claim on the packer's assets. Whatever might be the policy reasons for insuring that packers did not take unnecessary advantage of cattle sellers by holding funds for their own purposes, it is hard to see that those reasons would automatically require that such sellers stand on better footing than persons who have extended secured credit to a packer. And the regulation in no way suggests an intention to override established principles of state commercial law which might strike a different balance.
19
When the Secretary has desired to impose trust relationships by regulation, he has chosen language which clearly effectuates that purpose. Regulation 201.42, 9 CFR § 201.42, deals specifically with the subject of custodial accounts, and provides in subsection (a) that payments made to a market agency or licensee are to be considered trust funds until a payee custodial account has been paid in full. Subsection (b) requires that any market agency or licensee engaged in selling livestock 'on a commission or agency basis' establish a custodial account for the sales proceeds. Subsection (e) requires establishment of custodial accounts when market agencies or licensees representing buyers of livestock misuse funds entrusted to them for that purpose.
20
Had the Secretary deemed it lawful and desirable to require that packers or other persons purchasing livestock establish trust accounts on behalf of the sellers until payment was actually received, such a provision could easily have been included within these regulations. Its absence suggests the Secretary expected that cattle sellers, making sales to packers in the ordinary course of business, would assume the normal risks of insolvency which any seller in that situation assumes. Their interests, like that of similarly situated sellers, would depend for protection upon their taking of appropriate steps under the commercial law of the various States in which they did business.
21
The cases cited by the Court of Appeals to support its position require no different conclusion. The case most heavily relied on, Bowman v. United States Department of Agriculture, 363 F.2d 81 (CA5 1966), cited for the proposition that a packer's obligation to pay is that of a fiduciary, dealt not with packers at all, but rather with a person who was a stockyard owner, market agency, and dealer. The court in that case did discuss the duty of prompt payment by such a person, but the discussion occurred in the context of a discussion of the test for insolvency. The court there concluded that a definition of insolvency dealing with the relation of current assets and current liabilities was appropriate in this instance, since the ability to meet current obligations and to make prompt payment was necessary to effect the beneficial purposes of the Act. The only specific discussion of trustee relationships, however, occurs in a separate discussion on the matter of custodial bank accounts. As discussed above, this discussion would be relevant to the obligation of market agencies under Regulation 201.42 to maintain custodial accounts and to refrain from commingling their own funds with the funds of the persons for whom they act. The other cases cited by the Court of Appeals do not deal with packers,14 or deal with them in a totally different situation from that presented here.15 None of the cases holds or even intimates that packers hold livestock and carcasses as trustees until cash proceeds are realized by the sellers.
III
22
We hold that, on the undisputed facts of this case, nothing in the Packers and Stockyards Act or the regulations issued by the Secretary under the Act overrides the Texas Business and Commercial Code in determining the respective rights of the parties to the funds held by the trustee. We do note, however, that an isolated passage at the end of the Court of Appeals' opinion states that the 'Packers and Stockyards Act and Regulations 201.42 and 201.99 thereunder comprise a course of dealing and usage of trade known to both the bankrupt packer and C.I.T., which had financed it an extended period.' 483 F.2d 557, 563. While we hold that the Act and regulations do not ex proprio vigore override the provisions of Texas law determining priorities to the funds in question, we do not mean to say that a course of conduct mandated by the Act or regulations might not, just as any other course of conduct, be relevant or even dispositive under state law. The District Judge, herself a longtime Texas practitioner and then state court judge before taking the federal bench, determined otherwise here. To the extent that respondents in appealing to the Court of Appeals challenged that determination, it will of course be open for adjudication in the Court of Appeals on remand.
23
The petition for certiorari is granted, the judgment of the Court of Appeals is reversed, and the case is remanded for proceedings not inconsistent with this opinion.
24
It is so ordered.
1
Tex.Bus. & Com.Code §§ 1.201(37) and 2.401(a) (1968), V.T.C.A.
2
Id., § 9.312(c) (1968).
3
Id., § 2.702(b) (1968). The Court further noted that, in any event, the rights of C.I.T. and the bankruptcy trustee would not have been affected by a demand for reclamation under the Code. See § 2.702(c).
4
Id., § 2.403(a) (1968).
5
483 F.2d 557, 563.
6
See 7 U.S.C. § 191.
7
See id., § 201(a).
8
See id., § 201(c).
9
See id., § 201(d).
10
Id., §§ 191—195.
11
Id., §§ 221—229.
12
Title 9 CFR § 201.43(b) reads:
'(b) Purchasers to pay promptly for livestock. Each packer, market agency, or dealer purchasing livestock shall, before the close of the next business day following the purchase of livestock and the determination of the amount of the purchase price, transmit or deliver to the seller or his duly authorized agent the full amount of the purchase price, unless otherwise expressly agreed between the parties before the purchase of the livestock. Any such agreement shall be disclosed in the records of any market agency or dealer selling the livestock, and in the purchaser's records and on the accounts or other documents issued by the purchaser relating to the transaction. The provisions of this section shall not be construed to permit any transaction prohibited by § 201.61(a) relating 201.99 simply does not address itself on a commission basis.'
13
Title 9 CFR § 201.99 reads:
'(a) Each packer purchasing livestock on a carcass grade, carcass weight, or carcass grade and weight basis shall, prior to such pur-
chase, make known to the seller, or to his duly authorized agent, the details of the purchase contract. Such details shall include, when applicable, expected date and place of slaughter, carcass price, condemnation terms, description of the carcass trim, grading to be used, accounting, and any special conditions.
'(b) Each packer purchasing livestock on a carcass grade, carcass weight, or carcass grade and weight basis, shall maintain the identity of each seller's livestock and the carcasses therefrom and shall, after determination of the amount of the purchase price, transmit or deliver to the seller, or his duly authorized agent, a true written account of such purchase showing the number, weight, and price of the carcasses of each grade (identifying the grade) and of the ungraded carcasses, an explanation of any condemnations, and any other information affecting final accounting. Packers purchasing livestock on such a basis shall maintain sufficient records to substantiate the settlement of each transaction.
'(c) When livestock are purchased by a packer on a carcass weight or carcass grade and weight basis, purchase and settlement therefore shall be on the basis of carcass price. This paragraph does not apply to purchases of livestock by a packer on a guaranteed yield basis.
'(d) Settlement and final payment for livestock purchased by a packer on a carcass weight or carcass grade and weight basis shall be on actual (hot) carcass weights. The hooks, rollers, and gambrels or other similar equipment used at a packing establishment in connection with the weighing of carcasses of the same species of livestock shall be uniform in weight. The tare weight shall include only the weight of such equipment: Provided, however, That until July 1, 1968, these packers who shroud carcasses before weighing them may include in the tare weight the average weight of the shrouds and pins.
'(e) Settlement and final payment for livestock purchased by a packer on a USDA carcass grade shall be on an official (final not preliminary) grade. If settlement and final payment are based upon any grades other than official USDA grades, such other grades shall be set forth in detailed written specifications which shall be made available to the seller or his duly authorized agent. For
purposes of settlement and final payment for livestock purchased on a grade or grade and weight basis, carcasses shall be final graded before the close of the second business day following the day the livestock are slaughtered.'
14
Glover Livestock Comm'n Co. v. Hardin, 454 F.2d 109 (CA8 1972).
15
Bruhn's Freezer Meats of Chicago, Inc. v. United States Department of Agriculture, 438 F.2d 1332 (CA8 1971); Swift & Co. v. United States, 393 F.2d 247 (CA7 1968).
| 1112
|
416 U.S. 115
94 S.Ct. 1694
40 L.Ed.2d 1
SUPER TIRE ENGINEERING COMPANY et al., Petitioners,v.Lloyd W. McCORKLE et al.
No. 72—1554.
Argued Jan. 15, 1974.
Decided April 16, 1974.
Syllabus
Workers engaged in an economic strike in New Jersey are eligible for public assistance through state welfare programs. Petitioners, employers whose plants were struck, brought this suit for injunctive and declaratory relief against such eligibility, claiming that the regulations according benefits to striking workers were invalid because they interfered with the federal labor policy of free collective bargaining expressed in the Labor Management Relations Act and with other federal policy set forth in the Social Security Act. Before the case was tried, the labor dispute was settled and the strike ended. The District Court, rejecting the respondent union's contention that the case had been mooted, dismissed the complaint on the grounds that Congress was the appropriate forum for the claim and that the challenged laws did not violate the Supremacy Clause. The Court of Appeals remanded the case with instructions to vacate and dismiss for mootness. Held: To the extent that declaratory relief was sought, the case-or-controversy requirement of Art. III, § 2, and the Declaratory Judgment Act is completely satisfied. Pp. 121—127.
(a) Even though the case for an injunction dissolved with the settlement of the strike and the strikers' return to work, the petitioners and respondent state officials may still retain sufficient interests and injury to justify declaratory relief. Pp. 121—122.
(b) The challenged governmental action is not contingent upon executive discretion and has not ceased, but is a fixed and definite policy which, by its continuing presence, casts what may well be a substantial adverse effect on petitioners' interests. Oil Workers Unions v. Missouri, 361 U.S. 363, 80 S.Ct. 391, 4 L.Ed.2d 373; Harris v. Battle, 348 U.S. 803, 75 S.Ct. 34, 99 L.Ed. 634, distinguished. Pp. 122—125.
(c) If judicial review were conditioned on the existence of an economic strike, this case most certainly would be of the type presenting an issue 'capable of repetition, yet evading review,' Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310. It suffices that the litigant show an immediate and definite governmental action or policy that has adversely affected and continues to affect a present interest, since to require the presence of an active labor dispute would unduly tax the litigant by slighting claims of adverse injury from actual or immediately threatened governmental action, and since otherwise a state policy affecting a collective-bargaining arrangement but not involving a fine or other penalty could be only rarely adjudicated, and the purposes of the Declaratory Judgment Act would be frustrated. Pp. 125—127.
469 F.2d 911, reversed and remanded.
Lawrence M. Cohen, Lederer, Fox & Grove, Chicago, Ill., for petitioners.
Robert F. O'Brien, Tomar, Parks, Seliger, Simonoff & Adourian, Camden, N.J., and Stephen Skillman, Trenton, N.J., for respondents.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
In New Jersey, workers engaged in an economic strike are eligible for public assistance through state welfare programs. Employers whose plants were struck instituted this suit for injunctive and declaratory relief against such eligibility. Before the case was tried, the labor dispute was settled and the strike came to an end. The question presented is whether a 'case' or 'controversy' still exists, within the meaning of Art. III, § 2, of the Constitution, and of the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202.
2
* A collective-bargaining agreement between petitioners Super Tire Engineering Company and Supercap Corporation, affiliated New Jersey corporations,1 and Teamsters Local Union No. 676, the certified collective-bargaining representative for the two corporations' production and maintenance employees, expired on May 14, 1971. Because a new agreement had not as yet been reached, the employees promptly went out on strike. Some four weeks later, with the strike continuing, the two corporations, and their president and chief executive officer, filed the present suit in the United States District Court for the District of New Jersey against various New Jersey officials.2
3
The complaint alleged that many of the striking employees had received and would continue to receive public assistance through two New Jersey public welfare programs,3 pursuant to regulations issued and administered by the named defendants. The petitioners sought a declaration that these interpretive regulations,4 according benefits to striking workers, were null and void because they constituted an interference with the federal labor policy of free collective bargaining expressed in the Labor Management Relations Act, 1947, 29 U.S.C. § 141 et seq., and with other federal policy pronounced in provisions of the Social Security Act of 1935, viz., 42 U.S.C. §§ 602(a)(8)(C), 606(e)(1), and 607(b)(1)(B).5 The petitioners also sought injunctive relief against the New Jersey welfare administrators' making public funds available to labor union members engaged in the strike.
4
With their complaint, the petitioners filed a motion for a preliminary injunction. The supporting affidavit by the individual petitioner recited the expiration of the collective-bargaining agreement, the failure of the parties to reach a new agreement, the commencement and continuation of the strike, the application by many of the strikers for state welfare benefits, and their receipt of such benefits from the beginning of the strike to the date of the affidavit. The affiant further stated that the availability of these benefits interfered with and infringed upon free collective bargaining as guaranteed by Congress and 'hardened the resolve of the said strikers to remain out of work in support of their bargaining demands,' App. 32, and, in addition, that
5
'the current strike will undoubtedly be of longer duration than would have otherwise been the case; that the impact of the grant of welfare benefits and public assistance to the strikers involved has resulted in the State of New Jersey subsidizing one party to the current labor dispute; and that such subsidization by the State has resulted in upsetting the economic balance between employer and employees otherwise obtained in such a labor dispute.' Ibid.
6
At the hearing held on June 24 on the motion for preliminary injunction, the union, now a respondent here, was permitted to intervene. App. 37. Counsel for the union contended that 'this entire matter . . . has been mooted' because 'these employees voted to return to work and are scheduled to return to work tomorrow morning.'6 App. 39. The District Court, nonetheless, proceeded to the merits of the dispute and, on the basis of the holding in ITT Lamp Division v. Minter, 435 F.2d 989 (CA1 1970), cert. denied, 402 U.S. 933, 91 S.Ct. 1526, 28 L.Ed.2d 868 (1971), ruled that the appropriate forum for the petitioners' claim was the Congress, and that the New Jersey practice of according aid to striking workers was not violative of the Supremacy Clause of the Constitution. The court denied the motion for preliminary injunction and dismissed the complaint. App. 45—46. On appeal, the United States Court of Appeals for the Third Circuit, by a divided vote, did not reach the merits but remanded the case with instructions to vacate and dismiss for mootness. 469 F.2d 911, 922 (1972). We granted certiorari to consider the mootness issue. 414 U.S. 817, 94 S.Ct. 128, 38 L.Ed.2d 50 (1973).
II
7
The respondent union invites us to conclude that this controversy between the petitioners and the State became moot when the particular economic strike terminated upon the execution of the new collective-bargaining agreement and the return of the strikers to work in late June. That conclusion, however, is appropriate with respect to only one aspect of the lawsuit, that is, the request for injunctive relief made in the context of official state action during the pendency of the strike.
8
The petitioners here have sought, from the very beginning, declaratory relief as well as an injunction. Clearly, the District Court had 'the duty to decide the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the propriety of the issuance of the injunction.' Zwickler v. Koota, 389 U.S. 241, 254, 88 S.Ct. 391, 399, 19 L.Ed.2d 444 (1967); Roe v. Wade, 410 U.S. 113, 166, 93 S.Ct. 705, 733, 35 L.Ed.2d 147 (1973); Steffel v. Thompson, 415 U.S. 468—469, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). Thus, even though the case for an injunction dissolved with the subsequent settlement of the strike and the strikers' return to work, the parties to the principal controversy, that is, the corporate petitioners and the New Jersey officials, may still retain sufficient interests and injury as to justify the award of declaratory relief. The question is 'whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.' Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941). And since this case involves governmental action, we must ponder the broader consideration whether the short-term nature of that action makes the issues presented here 'capable of repetition, yet evading review,' so that petitioners are adversely affected by government 'without a chance of redress.' Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911).
9
A. We hold that the facts here provide full and complete satisfaction of the requirement of the Constitution's Art. III, § 2, and the Declaratory Judgment Act, that a case or controversy exist between the parties. Unlike the situations that prevailed in Oil Workers Unions v. Missouri, 361 U.S. 363, 80 S.Ct. 391, 4 L.Ed.2d 373 (1960), on which the Court of Appeals' majority chiefly relied, and in Harris v. Battle, 348 U.S. 803, 75 S.Ct. 34, 99 L.Ed. 634 (1954), the challenged governmental activity in the present case is not contingent, has not evaporated or disappeared, and, by its continuing and brooding presence, casts what may well be a substantial adverse effect on the interests of the petitioning parties.
10
In both Harris and Oil Workers a state statute authorized the Governor to take immediate possession of a public utility in the event of a strike or work stoppage that interfered with the public interest. The seizure was not automatic for every public utility labor dispute. It took effect only upon the exercise of the Governor's discretion. In each case the Court held the controversy to be moot because both the seizure and the strike had terminated prior to the time the case reached this Court. The governmental action challenged was the authority to seize the public utility, and it was clear that a seizure would not recur except in circumstances where (a) there was another strike or stoppage, and (b) in the judgment of the Governor, the public interest required it. The question was thus posed in a situation where the threat of governmental action was two steps removed from reality. This made the recurrence of a seizure so remote and speculative that there was no tangible prejudice to the existing interests of the parties and, therefore, there was a 'want of a subject matter' on which any judgment of this Court could operate. Oil Workers, 361 U.S., at 371, 80 S.Ct., at 396—397. This was particularly apparent in Oil Workers because, although the union had sought both declaratory and injunctive relief, the decision the Court was asked to review 'upheld only the validity of an injunction, an injunction that expired by its own terms more than three years ago.' Ibid.
11
The present case has a decidedly different posture. As in Harris and Oil Workers, the strike here was settled before the litigation reached this Court. But, unlike those cases, the challenged governmental action has not ceased. The New Jersey governmental action does not rest on the distant contingencies of another strike and the discretionary act of an official.7 Rather, New Jersey has declared positively that able-bodied striking workers who are engaged, individually and collectively in an economic dispute with their employer are eligible for economic benefits. This policy is fixed and definite. It is not contingent upon executive discretion.8 Employees know that if they go out on strike, public funds are available. The petitioners' claim is that this eligibility affects the collective-bargaining relationship, both in the context of a live labor dispute when a collective-bargaining agreement is in process of formulation, and in the ongoing collective relationship, so that the economic balance between labor and management, carefully formulated and preserved by Congress in the federal labor statutes, is altered by the State's beneficent policy toward strikers. It cannot be doubted that the availability of state welfare assistance for striking workers in New Jersey pervades every work stoppage, affects every existing collective-bargaining agreement, and is a factor lurking in the background of every incipient labor contract. The question, of course, is whether Congress, explicitly or implicitly, has ruled out such assistance in its calculus of laws regulating labor-management disputes. In this sense petitioners allege a colorable claim of injury from an extant and fixed policy directive of the State of New Jersey. That claim deserves a hearing.
12
The decision in Bus Employees v. Missouri, 374 U.S. 74, 83 S.Ct. 1657, 10 L.Ed.2d 763 (1963), is not to the contrary. In that case the Court adjudicated the merits of the same statutory scheme that had been challenged earlier in Oil Workers. It reached the merits even though the Governor had terminated the seizure of the public utility. His executive order, however, recited that the labor dispute 'remains unresolved.' The Court's rationale was that, since the labor dispute had not ended, '(t)here thus exists in the present case not merely the speculative possibility of invocation of the King-Thompson Act in some future labor dispute, but the presence of an existing unresolved dispute which continues subject to all the provisions of the Act. Cf. Southern Pac. Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 514—516, 31 S.Ct. 279, 283—284, 55 L.Ed. 310; United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303.' 374 U.S., at 78, 83 S.Ct., at 1660. The existence of the strike was important in that it rendered concrete the likelihood of state action prejudicial to the interests of the union. It was the remoteness of the threat of state action that convinced the Court in Oil Workers to hold that case moot. In the case now before us, the state action is not at all contingent. Under the petitioners' view of the case, it is immediately and directly injurious to the corporate petitioners' economic positions. Where such state action or its imminence adversely affects the status of private parties, the courts should be available to render appropriate relief and judgments affecting the parties' rights and interests.
13
B. If we were to condition our review on the existence of an economic strike, this case most certainly would be of the type presenting an issue 'capable of repetition, yet evading review.' Southern Pac. Terminal Co. v. ICC, 219 U.S., at 515, 31 S.Ct., at 283; Grinnell Corp. v. Hackett, 475 F.2d 449 (CA1), cert. denied, 414 U.S. 858, 94 S.Ct. 164, 38 L.Ed.2d 108 and 879, 94 S.Ct. 59, 38 L.Ed.2d 124 (1973); ITT Lamp Division v. Minter, 435 F.2d, at 991. To require the presence of an active and live labor dispute would tax the litigant too much by arbitrarily slighting claims of adverse injury from concrete governmental action (or the immediate threat thereof). It is sufficient, therefore, that the litigant show the existence of an immediate and definite governmental action or policy that has adversely affected and continues to affect a present interest. Otherwise, a state policy affecting a collective-bargaining arrangement, except one involving a fine or other penalty, could be adjudicated only rarely, and the purposes of the Declaratory Judgment Act would be frustrated.
14
Certainly, the pregnant appellants in Roe v. Wade, supra, and in Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), had long since outlasted their preganancies by the time their cases reached this Court. Yet we had no difficulty in rejecting suggestions of mootness. 410 U.S., at 125, 93 S.Ct., at 712—713 and 187, 93 S.Ct., at 745. Similar and consistent results were reached in Storer v. Brown, 415 U.S. 724, 737 n. 8, 94 S.Ct. 1274, 1282—1283, 39 L.Ed.2d 714 (1974); Rosario v. Rockefeller, 410 U.S. 752, 756 n. 5, 93 S.Ct. 1245, 1249, 36 L.Ed.2d 1 (1973); Dunn v. Blumstein, 405 U.S. 330, 333 n. 2, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); and Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494—1495, 23 L.Ed.2d 1 (1969), cases concerning various challenges to state election laws. The important ingredient in these cases was governmental action directly affecting, and continuing to affect, the behavior of citizens in our society.
15
The issues here are no different. Economic strikes are of comparatively short duration. There are exceptions, of course. See, for example, Local 833, UAW, etc. v. NLRB, 112 U.S.App.D.C. 107, 300 F.2d 699, cert. denied, sub nom. Kohler Co. v. Local 833, UAW, etc., 370 U.S. 911, 82 S.Ct. 1258, 8 L.Ed.2d 405 (1962). But the great majority of economic strikes do not last long enough for complete judicial review of the controversies they engender. U.S. Dept. of Labor, bureau of Labor Statistics, Analysis of Work Stoppages 1971, Table A—3, p. 16 (1973). A strike that lasts six weeks, as this one did, may seem long, but its termination, like pregnancy at nine months and elections spaced at yearlong or biennial intervals, should not preclude challenge to state policies that have had their impact and that continue in force, unabated and unreviewed. The judiciary must not close the door to the resolution of the important questions these concrete disputes present.
16
The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings on the merits of the controversy.
17
It is so ordered.
18
Reversed and remanded.
19
Mr. Justice STEWART, with whom THE CHIEF JUSTICE, Mr. Justice POWELL, and Mr. Justice REHNQUIST join, dissenting.
20
The Court today reverses the Court of Appeals and holds that this case is not moot, despite the fact that the underlying labor dispute that gave rise to the petitioners' claims ended even before the parties made their initial appearance in the District Court. I think this holding ignores the limitations placed upon the federal judiciary by Art. III of the Constitution and disregards the clear teachings of prior cases. Accordingly, I dissent.
21
This Court has repeatedly recognized that the inability of the federal judiciary 'to review moot cases derives from the requirement of Art. III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy.' Liner v. Jafco, Inc., 375 U.S. 301, 306 n. 3, 84 S.Ct. 391, 394 11 L.Ed.2d 347. See also North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413; Powell v. McCormack, 395 U.S. 486, 496 n. 7, 89 S.Ct. 1944, 1950, 23 L.Ed.2d 491; Sibron v. New York, 392 U.S. 40, 50 n. 8, 88 S.Ct. 1889, 1896, 20 L.Ed.2d 917. Since Art. III courts are precluded from issuing advisory opinions, Hayburn's Case, 2 Dall. 409, 1 L.Ed. 436; Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246, it necessarily follows that they are impotent 'to decide questions that cannot affect the rights of litigants in the case before them.' North Carolina v. Rice, supra, 404 U.S., at 246, 92 S.Ct., at 404; St. Pierre v. United States, 319 U.S. 41, 42, 63 S.Ct. 910, 911, 87 L.Ed. 1199.1
22
These broad constitutional principles, of course, provide no more than the starting point, since the decision as to whether any particular lawsuit is moot can be made only after analysis of the precise factual situation of the parties involved. But in my view our task in the present case is greatly simplified, for this Court has had several occasions within the past 20 years to apply the general principles of mootness to the specific facts of labor disputes closely analogous to the one at hand.
23
The first of these cases was Harris v. Battle, 348 U.S. 803, 75 S.Ct. 34, 99 L.Ed. 634, in which the issue was whether a Virginia statute that permitted the state Governor to order that 'possession' be taken of a transit company whose employees were on strike was in conflict with the National Labor Relations Act. The underlying labor dispute was settled and the seizure terminated before the case came to trial, but the trial court nevertheless proceeded to decide the merits of the controversy, finding the statute constitutional. After the Virginia Supreme Court refused review, an appeal was taken to this Court. In a brief per curiam opinion, this Court held that the case was moot and ordered the appeal dismissed.
24
In Oil Workers Unions v. Missouri, 361 U.S. 363, 80 S.Ct. 391, 4 L.Ed.2d 373, we had occasion to explicate the holding of Harris v. Battle in the context of a challenge to Missouri's King-Thompson Act, which allowed the Governor on behalf of the State to take possession of and operate a privately owned public utility affected by a work stoppage. In that case, the underlying strike and seizure had terminated while the case was on appeal to the Supreme Court of Missouri. Nonetheless, that court considered the merits of the lawsuit, holding the King-Thompson Act constitutional. We read Harris v. Battle as requiring that the case be held moot, since the termination of both the strike and the seizure left 'no 'actual matters in controversy essential to the decision of the particular case" then before us. 361 U.S., at 367, 80 S.Ct., at 394, quoting from United States v. Alaska S.S. Co., 253 U.S. 113, 116, 40 S.Ct. 448, 449, 64 L.Ed. 808.
25
The constitutionality of the King-Thompson Act was again at issue in Bus Employees v. Missouri, 374 U.S. 74, 83 S.Ct. 1657, 10 L.Ed.2d 763. The strike and seizure in that case were still in effect at the time of the decision of the Supreme Court of Missouri, but, after the appellants' jurisdictional statement was filed in this Court, the Governor of Missouri terminated the outstanding seizure order. Consequently, the appellees argued that the case had become moot, relying on Harris and Oil Workers. We rejected the contention, noting that in both those cases, the underlying labor dispute had been settled by the time the litigation reached this Court. In Bus Employees, by contrast, the strike was still unresolved, and the appellants were thus fully subject to the provisions of the King-Thompson Act. Hence, we concluded that Harris and Oil Workers did not control, and we proceeded to decide the merits of the case, holding the Missouri law to be in conflict with the National Labor Relations Act, and thus invalid under the Supremacy Clause.
26
I think it is clear that the facts of the case before us serve to bring it within the teaching of Harris and Oil Workers, and outside the ambit of Bus Employees. Here, as in Harris and Oil Workers, both the underlying work stoppage and the challenged governmental action—providing of welfare benefits to the petitioners' employees—had ceased long before review was sought in this Court. Any view that a federal court might express on the merits of the petitioners' Supremacy Clause claims would, therefore, amount to an advisory opinion, having no effect on any 'actual matters in controversy.' As we noted in Oil Workers, such an undertaking would ignore a 'basic limitation upon the duty and function of the Court, and . . . disregard principles of judicial administration long established and repeatedly followed.' 361 U.S., at 368, 80 S.Ct., at 394.
27
The Court offers essentially two arguments aimed at distinguishing this case from Harris and Oil Workers. First, it says that the very existence of the New Jersey welfare programs constitutes a continuing burden on the petitioners' ability to engage in collective bargaining with the respondent union. Secondly, the Court says that the underlying controversy here is 'capable of repetition, yet evading review,' and thus comes within the rule of Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct 279, 283, 55 L.Ed. 310.
28
Similar arguments, however, were considered and rejected in both Harris and Oil Workers. In each of those cases it was argued that the Southern Pacific doctrine prevented a finding of mootness, and it was also argued that the case was not moot because of the continuing threat of state seizure of public utilities in future labor disputes. The Court's summary dismissal of the Harris appeal necessarily rejected both of these contentions, and we explicitly adhered to that holding in Oil Workers:
29
'In (Harris) it was urged that the controversy was not moot because of the continuing threat of state seizure in future labor disputes. It was argued that the State's abandonment of alleged unconstitutional activity after its objective had been accomplished should not be permitted to forestall decision as the validity of the statute under which the State had purported to act. It was contended that the situation was akin to cases like Southern Pac. Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 514—516, 31 S.Ct. 279, 283—284, 55 L.Ed. 310. In finding that the controversy was moot, the Court necessarily rejected all these contentions. 348 U.S. 803, 75 S.Ct. 34, 99 L.Ed. 634. Upon the authority of that decision the same contentions must be rejected in the present case. See also Barker Co. v. Painters Union, 281 U.S. 462, 50 S.Ct. 356, 74 L.Ed. 967; Commercial Cable Co. v. Burleson, 250 U.S. 360, 39 S.Ct. 512, 63 L.Ed. 1030.' 361 U.S., at 368—369, 80 S.Ct., at 395 (footnotes omitted).
30
I find no reason to depart from this holding in the case before us. While it is not inconceivable that the petitioners' employees will once again strike and perhaps once again become eligible for future New Jersey welfare benefits, I find little to distinguish that hypothetical situation from the 'speculative possibility of invocation of the King-Thompson Act in some future labor dispute'2 that was present in Oil Workers. And, even if it could be assumed that the present controversy is 'capable of repetition' within the meaning of the Southern Pacific test, I am less than confident that the issues presented can truly be characterized as 'evading review.' If nothing else, the Bus Employees case teaches than even the most confident predictions about the future unreviewability of specific legal controversies are often proved inaccurate. Indeed, several courts of appeals have had the opportunity to consider the precise Supremacy Clause issues now raised by the petitioners in the context of ongoing labor disputes.3 Given that experience, I cannot conclude that it is permissible to resolve these important questions in a case where their resolution will have no direct effect on the parties to the litigation.
31
The argument that eligibility of strikers for future New Jersey welfare benefits might affect the 'ongoing' process of collective bargaining fares no better in the light of the Oil Workers decision. The continued existence of the King-Thompson Act in Oil Workers arguably had a most significant effect on the employees' collective-bargaining ability, since it threatended to deprive them of their principal economic weapon, the capacity to strike. Yet the Court found the continuing threat of seizure in future labor disputes to be insufficient to save the Oil Workers case from mootness. No different weight should be accorded to the petitioners' argument that the possibility of strikers receiving welfare benefits will make future work stoppages less onerous for their employees.4
32
In short, I think that this case is completely controlled by Harris and Oil Workers. The doctrine of mootness is already a difficult and complex one, and I think that the Court today muddies the waters further by straining unnecessarily to distinguish and limit some of the few clear precedents available to us.
33
For these reasons I would affirm the judgment of the Court of Appeals.
1
Super Tire Engineering Company is engaged in the business of truck tire sales and service and the manufacture and sale of industrial polyurethane tires and wheels. Supercap Corporation is engaged in the business of truck tire recapping and repairing.
2
The named defendants were Lloyd W. McCorkle, Commissioner of the Department of Institutions and Agencies of the State of New Jersey; Irving J. Engelman, Director of the Division of Public Welfare of the Department of Institutions and Agencies of the State of New Jersey; Fred L. Streng, Director of the Camden County, New Jersey, Welfare Board; and Juanita E. Dicks, Welfare Director of the Municipal Welfare Department of the City of Camden, New Jersey.
3
The General Public Assistance Law, N.J.Stat.Ann. § 44:8 107 et seq. (Supp.1973—1974), a state program, and the Assistance for Dependent Children Law (ADC), N.J.Stat.Ann. § 44:10—1 et seq., (Supp.1973—1974), a federal-state program created by § 402 of the Social Security Act, as amended, 42 U.S.C. § 602.
Effective June 30, 1971, New Jersey elected no longer to participate in the unemployed parent segment of the AFDC program, and enacted, in its place, the Assistance to Families of the Working Poor program. N.J.Stat.Ann. § 44:13—1 et seq. (Supp.1973 1974).
4
The Regulations (M.A. 1.006, revised Mar. 1957), issued by the New Jersey Department of Institutions and Agencies under the General Public Assistance Law, provided in pertinent part:
'A. Citation of Statute and Constitution
'Chapter 156, P.L.1947 R.S. 44:8-108) defines reimbursable public assistance as 'assistance rendered to needy persons not otherwise provided for under the laws of this State, where such persons are willing to work but are unable to secure employment due either to physical disability or inability to find employment.'
'The Constitution of New Jersey 1947, Article I, paragraph 19, guarantees that 'Persons in private employment shall have the right to organize and bargain collectively.'
'B. Interpretation and Policy
'It may be inferred from the quoted section of the statute that persons unwilling to work are ineligible for public assistance. However, for purposes of public administration, the phrase 'unwilling to work' must be defined as objectively as possible.
'. . . The Constitutional guarantee of the 'right to organize and bargain collectively' implies the right of the individual to participate in a bona fide labor dispute as between the employer and the collective bargaining unit by which the individual is represented. Moreover, a 'strike,' when lawfully authorized and conducted, is recognized as an inherent and lawful element of the process of bargaining collectively and of resolving labor disputes. Accordingly, when an individual is participating in a lawful 'strike,' he
may not be considered merely because of such participation, as refusing to work without just cause.
'C. Regulations
'Based on the foregoing statement of interpretation and policy, the following regulations are established:
'4. No individual shall be presumed to be unwilling to work, or to be wrongfully refusing to accept suitable employment, merely because he is participating in a lawful labor dispute.
'5. An individual who is participating in a lawful labor dispute, and who is needy, has the same right to apply for public assistance, for himself and his dependents, as any other individual who is needy.
'6. In the case of an applicant for public assistance who is participating in a lawful labor dispute, there shall be an investigation of need and other conditions of eligibility, and an evaluation of income and resources, in the same way and to the same extent as in all other cases. In such instances, 'strike benefits' or other payments available to the individual from the labor union or other source, shall be considered a resource and shall be determined and accounted for.'
The record is not clear as to the eligibility of strikers under New Jersey's newly enacted program of Assistance to Families of the Working Poor. Petitioners state that striking workers are eligible for benefits under that program. Brief for Petitioners 4 n. 1. The respondents concede this, as 'a matter of administrative application.' Tr. of Oral Arg. 46.
5
The complaint also alleged that the inclusion of striking workers in these programs was contrary to New Jersey law.
6
All the strikers returned to work by Monday, June 28, 1971, and normal operations at the corporate petitioners' plants were then resumed.
7
Although the threat of seizure in Oil Workers constituted a far more severe form of governmental action, going as it did to cripple any strike, the features of that action were inexorably contingent, serving to make it more remote and speculative.
8
It may not appropriately be argued that there is an element of discretion present here in the making of the determination of individual 'need' for welfare benefits. That determination has no measurable effect on the rights of the corporate petitioners. Instead, it is the basic eligibility for assistance that allegedly prejudices those petitioners' economic position.
1
See generally Diamond, Federal Jurisdiction to Decide Moot Cases, 94 U.Pa.L.Rev. 125; Note, Mootness on Appeal in the Supreme Court, 83 Harv.L.Rev. 1672; Note, Mootness and Ripeness: The Postman Always Rings Twice, 65 Col.L.Rev. 867; Note, Cases Moot on Appeal: A Limit on the Judicial Power, 103 U.Pa.L.Rev. 772.
2
Bus Employees v. Missouri, 374 U.S. 74, 78, 83 S.Ct. 1657, 1660, 10 L.Ed.2d 763.
3
In ITT Lamp Division v. Minter, 435 F.2d 989 (CA1), two cases were consolidated on appeal; one of them involved an ongoing strike. Similarly, the underlying labor dispute in Russo v. Kirby, 453 F.2d 548 (CA2), was still in effect at the time of the Court of Appeals' decision, although the appellate court did not reach the employers' Supremacy Clause arguments, since it found that the District Court lacked jurisdiction to hear the suit, which had been brought by strikers to compel the payment of welfare benefits.
4
The Court characterizes the governmental action challenged in Oil Workers and Harris as more 'remote' and 'contingent' than the New Jersey policy at hand. For mootness purposes, I think that this is a distinction without a difference. For one thing, New Jersey does not automatically extend welfare benefits to striking workers; it merely makes them eligible to receive such benefits, provided that they meet all other appropriate criteria. Thus, for the challenged governmental action here to recur, at least two things must happen: the respondent union must again call a strike, and the workers must satisfy the standards of need that may then be set forth in the New Jersey welfare statutes. If the threat of seizure in Oil Workers was viewed as 'contingent' in nature, no different conclusion can be reached here.
Moreover, as the Court concedes, ante, at 123 n. 7, the threat of seizure in Oil Workers involved 'a far more severe form' of governmental interference in the collective-bargaining process than does the New Jersey policy of making strikers eligible for welfare benefits, since invocation of the Missouri statute served to cripple any strike completely. Thus, even if the governmental action involved in Oil Workers is viewed as more 'contingent' than in the present case, I cannot understand how its effect on the collective-bargaining process can be characterized as less serious.
| 89
|
416 U.S. 134
94 S.Ct. 1633
40 L.Ed.2d 15
Alvin J. ARNETT, Director, Office of Economic Opportunity, et al., Appellants,v.Wayne KENNEDY, etc., et al.
No. 72—1118.
Argued Nov. 7, 1973.
Decided April 16, 1974.
Rehearing Denied June 17, 1974.
See 417 U.S. 977, 94 S.Ct. 3187.
Syllabus
Appellee, a nonprobationary employee in the competitive Civil Service, was dismissed from his position in the Office of Economic Opportunity (OEO) for allegedly having made recklessly false and defamatory statements about other OEO employees. Though previously advised of his right under OEO and Civil Service Commission (CSC) regulations to reply to the charges and that the material on which the dismissal notice was based was available for his inspection, he did not respond to the substance of the charges but brought this suit for injunctive and declaratory relief, contending that the standards and procedures established by and under the Lloyd-La Follette Act, 5 U.S.C. § 7501, for the removal of nonprobationary employees from the federal service unwarrantedly interfere with such employees' freedom of expression and deny them procedural due process. A three-judge District Court held that the Act and attendant regulations denied appellee due process because they failed to provide for a trial-type preremoval hearing before an impartial official and were unconstitutionally vague because they failed to furnish sufficiently precise guidelines as to what kind of speech might be made the basis for removal action. Section 7501 of the Act provides for removal of nonprobationary federal employees 'only for such cause as will promote the efficiency of the service' and prescribes that the employing agency must furnish the employee with written notice of the proposed removal action and a copy of the charges; given him a reasonable time for a written answer and supporting affidavits; and promptly furnish him with the agency's decision. The Act further provides, however, that '(e)xamination of witnesses, trial, or hearing is not required,' but is discretionary with the individual directing the removal. CSC and OEO regulations enlarge the statutory provisions by requiring 30 days' advance notice before removal and in other respects, and entitle the employee to a post-removal evidentiary trial-type hearing at the appeal stage. If the employee is reinstated on appeal, he receives full backpay. In addition to his First Amendment claims, appellee contends that, absent a full adversary hearing before removal he could not consistently with due process requirements be divested of his property interest or expectancy in employment or be deprived of his 'liberty' to refute the charges of dishonesty on which he asserts his dismissal was based. Held: The judgment is reversed and the case remanded. Pp. 148—171.
349 F.Supp. 863, reversed and remanded.
Mr. Justice REHNQUIST, joined by THE CHIEF JUSTICE and Mr. Justice STEWART, concluded that:
1
1. In conferring upon nonprobationary federal employees the right not to be discharged except for 'cause' and at the same time conditioning the grant of that right by procedural limitations, the Act did not create and the Due Process Clause does not require any additional expectancy of job retention. Cf. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548. Pp. 148—155.
2
2. The CSC and OEO post-termination hearing procedures adequately protect the liberty interest of federal employees, recognized in Roth, supra, in not being wrongfully stigmatized by untrue and unsupported administrative charges. Pp. 156—158.
3
3. The Act's standard of employment protection, which describes as explicitly as is feasible in view of the wide variety of factual situations where employees' statements might justify dismissal for 'cause' the conduct that is ground for removal, is not impermissibly vague or overbroad in regulating federal employees' speech. CSC v. Letter Carriers, 413 U.S. 548, 578—579, 93 S.Ct. 2880, 2897, 37 L.Ed.2d 796. Pp. 158—163.
4
Mr. Justice POWELL, joined by Mr. Justice BLACKMUN, while agreeing that 5 U.S.C. § 7501(a) is not unconstitutionally vague or overbroad, concluded with respect to the due process issue that appellee, as a nonprobationary federal employee who could be discharged only for 'cause,' had a legitimate claim of entitlement to a property interest under the Fifth Amendment and his employment could not be terminated without notice and a full evidentiary hearing. On the other hand, the Government as an employer must have discretion expeditiously to remove employees who hinder efficient operation. Since the procedures under the Act and regulations minimize the risk of error in the initial removal decision and provide for a post-removal evidentiary hearing with reinstatement and backpay should that decision be wrongful, a reasonable accommodation comporting with due process is provided between the competing interests of the employee and the Government as employer. Pp. 164—171.
5
Daniel M. Friedman, Washington, D.C., for appellants.
6
Charles Barnhill, Jr. Chicago, Ill., for appellees.
7
Mr. Justice REHNQUIST announced the judgment of the Court in an opinion in which THE CHIEF JUSTICE and Mr. Justice STEWART join.
8
Prior to the events leading to his discharge, appellee Wayne Kennedy1 was a nonprobationary federal employee in the competitive Civil Service. He was a field representative in the Chicago Regional Office of the Office of Economic Opportunity (OEO). In March 1972, he was removed from the federal service pursuant to the provisions of the Lloyd-La Follette Act, 5 U.S.C. § 7501, after Wendell Verduin, the Regional Director of the OEO, upheld written administrative charges made in the form of a 'Notification of Proposed Adverse Action' against appellee. The charges listed five events occurring in November and December 1971; the most serious of the charges was that appellee 'without any proof whatsoever and in reckless disregard of the actual facts' known to him or reasonably discoverable by him had publicly stated that Verduin and his administrative assistant had attempted to bribe a representative of a community action organization with which the OEO had dealings. The alleged bribe consisted of an offer of a $100,000 grant of OEO funds if the representative would sign a statement against appellee and another OEO employee.
9
Appellee was advised of his right under regulations promulgated by the Civil Service Commission and the OEO to reply to the charges orally and in writing, and to submit affidavits to Verduin. He was also advised that the material on which the notice was based was available for his inspection in the Regional Office, the that a copy of the material was attached to the notice of proposed adverse action.
10
Appellee did not respond to the substance of the charges against him, but instead asserted that the charges were unlawful because he had a right to a trial-type hearing before an impartial hearing officer before he could be removed from his employment, and because statements made by him were protected by the First Amendment to the United States Constitution.2 On March 20, 1972, Verduin notified appellee in writing that he would be removed from his position at the close of business on March 27, 1972. Appellee was also notified of his right to appeal Verduin's decision either to the OEO or to the Civil Service Commission.
11
Appellee then instituted this suit in the United States District Court for the Northern District of Illinois on behalf of himself and others similarly situated, seeking both injunctive and declaratory relief. In his amended complaint,3 appellee contended that the standards and procedures established by and under the Lloyd-La Follette Act for the removal of nonprobationary employees from the federal service unwarrantedly interfere with those employees' freedom of expression and deny them procedural due process of law. The three-judge District Court, convened pursuant to 28 U.S.C. §§ 2282 and 2284, granted summary judgment for appellee. 349 F.Supp. 863. The court held that the discharge procedures authorized by the Act and attendant Civil Service Commission and OEO regulations denied appellee due process of law because they failed to provide for a trial-type hearing before an impartial agency official prior to removal; the court also held the Act and implementing regulations unconstitutionally vague because they failed to furnish sufficiently precise guidelines as to what kind of speech may be made the basis of a removal action. The court ordered that appellee be reinstated in his former position with backpay, and that he be accorded a hearing prior to removal in any future removal proceedings. Appellants were also enjoined from further enforcement of the Lloyd-La Follette Act, and implementing rules, as 'construed to regulate the speech of competitive service employees.'4
12
* The numerous affidavits submitted to the District Court by both parties not unexpectedly portray two widely differing versions of the facts which gave rise to this lawsuit. Since the District Court granted summary judgment to appellee, it was required to resolve all genuine disputes as to any material facts in favor of appellants, and we therefore take as true for purposes of this opinion the material particulars of appellee's conduct which were set forth in the notification of proposed adverse action dated February 18, 1972. The District Court's holding necessarily embodies the legal conclusions that, even though all of these factual statements were true, the procedure which the Government proposed to follow in this case was constitutionally insufficient to accomplish appellee's discharge, and the standard by which his conduct was to be judged in the course of those procedures infringed his right of free speech protected by the First Amendment.
13
The statutory provisions which the District Court held invalid are found in 5 U.S.C. § 7501. Subsection (a) of that section provides that '(a)n individual in the competitive service may be removed or suspended without pay only for such cause as will promote the efficiency of the service.'
14
Subsection (b) establishes the administrative procedures by which an employee's rights under subsection (a) are to be determined, providing:
15
'(b) An individual in the competitive service whose removal or suspension without pay is sought is entitled to reasons in writing and to—
16
'(1) notice of the action sought and of any charges preferred against him;
17
'(2) a copy of the charges;
18
'(3) a reasonable time for filing a written answer to the charges, with affidavits; and
19
'(4) a written decision on the answer at the earliest practicable date.
20
'Examination of witnesses, trial, or hearing is not required but may be provided in the discretion of the individual directing the removal or suspension without pay. Copies of the charges, the notice of hearing, the answer, the reasons for and the order of removal or suspension without pay, and also the reasons for reduction in grade or pay, shall be made a part of the records of the employing agency, and, on request, shall be furnished to the individual affected and to the Civil Service Commission.'
21
This codification of the Lloyd-La Follette Act is now supplemented by the regulations of the Civil Service Commission, and, with respect to the OEO, by the regulations and instructions of that agency. Both the Commission and the OEO have by regulation given further specific content to the general removal standard in subsection (a) of the Act. The regulations of the Commission5 and the OEO,6 in nearly identical language, require that employees 'avoid any action . . . which might result in, or create the appearance of . . . (a) ffecting adversely the confidence of the public in the integrity of (OEO and) the Government,' and that employees not 'engage in criminal, infamous, dishonest, immoral, or notoriously disgraceful or other conduct prejudicial to the Government.' The OEO further provides by regulation that its Office of General Counsel is available to supply counseling on the interpretation of the laws and regulations relevant to the conduct of OEO employees.7
22
Both the Commission and the OEO also follow regulations enlarging the procedural protections accorded by the Act itself.8 The Commission's regulations provide, inter alia, that the employing agency must give 30 days' advance written notice to the employee prior to removal, and make available to him the material on which the notice is based.9 They also provide that the employee shall have an opportunity to appear before the official vested with authority to make the removal decision in order to answer the charges against him,10 that the employee must receive notice of an adverse decision on or before its effective date, and that the employee may appeal from an adverse decision.11 This appeal may be either to a reviewing authority within the employing agency,12 or directly to the Commission,13 and the employee is entitled to an evidentiary trial-type hearing at the appeal stage of the proceeding.14 The only trial-type hearing available within the OEO is, by virtue of its regulations and practice, typically held after actual removal;15 but if the employee is reinstated on appeal, he receives full backpay, less any amounts earned by him through other employment during that period.16
23
We must first decide whether these procedures established for the purpose of determining whether there is 'cause' under the Lloyd-La Follette Act for the dismissal of a federal employee comport with procedural due process, and then decide whether that standard of 'cause' for federal employee dismissals was within the constitutional power of Congress to adopt.
II
24
For almost the first century of our national existence, federal employment was regarded as an item of patronage, which could be granted, withheld, or withdrawn for whatever reasons might appeal to the respnsibile executive hiring officer. Following the Civil War, grass-roots sentiment for 'Civil Service reform' began to grow, and it was apparently brought to a head by the assassination of President James A. Garfield on July 2, 1881. Garfield, having then held officer only four months, was accosted in Washington's Union Station and shot by a dissatisfied office seeker who believed that the President had been instrumental in refusing his request for appointment as United States Consul in Paris. During the summer, while President Garfield lingered prior to his death in September, delegates from 13 Civil Service reform associations met and formed the National Civil Service Reform League. Responding to public demand for reform led by this organization, Congress in January 1883 enacted the Pendleton Act.17
25
While the Pendleton Act is regarded as the keystone in the present arch of Civil Service legislation, by present-day standards it was quite limited in its application. It dealt almost exclusively with entry into the federal service, and hardly at all with tenure, promotion, removal, veterans' preference, pensions, and other subjects addressed by subsequent Civil Service legislation. The Pendleton Act provided for the creation of a classified Civil Service, and required competitive examination for entry into that service. Its only provision with respect to separation was to prohibit removal for the failure of an employee in the classified service to contribute to a political fund or to render any political service.18
26
For 16 years following the effective date of the Pendleton Act, this last-memtioned provision of that Act appears to have been the only statutory or regulatory limitation on the right of the Government to discharge classified employees. In 1897, President William McKinley promulgated Civil Service Rule II,19 which provided that removal from the competitive classified service should not be made except for just cause and for reasons given in writing. While job tenure was thereby accorded protection, there were no administrative appeal rights for action taken in violation of this rule, and the courts declined to judicially enforce it. Thus matters stood with respect to governmental authority to remove federal employees until the enactment of the Lloyd-La Follette Act.
27
The Lloyd-La Follette Act was enacted as one section of the Post Office Department appropriation bill for the fiscal year 1913. That Act guaranteed the right of federal employees to communicate with members of Congress, and to join employee organizations. It also substantially enacted and enlarged upon Civil Service Rule II in the following language:
28
'(N)o person in the classified civil service of the United States shall be removed therefrom except for such cause as will promote the efficiency of said service and for reasons given in writing, and the person whose removal is sought shall have notice of the same and of any charges preferred against him, and be furnished with a copy thereof, and also be allowed a reasonable time for personally answering the same in writing; and affidavits in support thereof; but no examination of witnesses not any trial or hearing shall be required except in the discretion of the officer making the removal, and copies of charges, notice of hearing, answer, reasons for removal, and of the order of removal shall be made a part of the records of the proper department or office, as shall also the reasons for reduction in rank or compensation; and copies of the same shall be furnished to the person affected upon request, and the Civil Service Commission also shall, upon request, be furnished copies of the same. . . .'20
29
That Act, as now codified, 5 U.S.C. § 7501, together with the administrative regulations issued by the Civil Service Commission and the OEO, provided the statutory and administrative framework which the Government contends controlled the proceedings against appellee. The District Court, in its ruling on appellee's procedural contentions, in effect held that the Fifth Amendment to the United States Constitution prohibited Congress, in the Lloyd-La Follette Act, from granting protection against removal without cause and at the same time—indeed, in the same sentence specifying that the determination of cause should be without the full panoply of rights which attend a trial-type adversary hearing. We do not believe that the Constitution so limits Congress in the manner in which benefits may be extended to federal employees.
30
Appellee recognizes that our recent decisions in Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), are those most closely in point with respect to the procedural rights constitutionally guaranteed public employees in connection with their dismissal from employment. Appellee contends that he had a property interest or an expectancy of employment which could not be divested without first affording him a full adversary hearing.
In Board of Regents v. Roth, we said:
31
'Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.' 408 U.S. at 577, 92 S.Ct. at 2709.
32
Here appellee did have a statutory expectancy that he not be removed other than for 'such cause as will promote the efficiency of (the) service.' But the very section of the statute which granted him that right, a right which had previously existed only by virtue of administrative regulation, expressly provided also for the procedure by which 'cause' was to be determined, and expressly omitted the procedural guarantees which appellee insists are mandated by the Constitution. Only by bifurcating the very sentence of the Act of Congress which conferred upon appellee the right not to be removed save for cause could it be said that he had an expectancy of that substantive right without the procedural limitations which Congress attached to it. In the area of federal regulation of government employees, where in the absence of statutory limitation the governmental employer has had virtually uncontrolled latitude in decisions as to hiring and firing, Cafeteria and Restaurant Workers v. McElroy, 367 U.S. 886, 896—897, 81 S.Ct. 1743, 1749—1750, 6 L.Ed.2d 1230 (1961), we do not believe that a statutory enactment such as the Lloyd-La Follette Act may be parsed as discretely as appellee urges. Congress was obviously intent on according a measure of statutory job security to governmental employees which they had not previously enjoyed, but was likewise intent on excluding more elaborate procedural exquirements which it felt would make the operation of the new scheme unnecessarily burdensome in practice. Where the focus of legislation was thus strongly on the procedural mechanism for enforcing the substantive right which was simultaneously conferred, we decline to conclude that the substantive right may be viewed wholly apart from the procedure provided for its enforcement. The employee's statutorily defined right is not a guarantee against removal without cause in the abstract, but such a guarantee as enforced by the procedures which Congress has designated for the determination of cause.
33
The Court has previously viewed skeptically the action of a litigant in challenging the constitutionality of portions of a statute under which it has simultaneously claimed benefits. In Fahey v. Mallonee, 332 U.S. 245, 67 S.Ct. 1552, 91 L.Ed. 2030 (1947), it was observed:
34
'In the name and right of the Association it is now being asked that the Act under which it has its existence be struck down in important particulars, hardly severable from those provisions which grant its right to exist. . . . It would be intolerable that the Congress should endow an Association with the right to conduct a public banking business on certain limitations and that the Court at the behest of those who took advantage from the privilege should remove the limitations intended for public protection. It would be difficult to imagine a more appropriate situation in which to apply the doctrine that one who utilizes an Act to gain advantages of corporate existence is estopped from questioning the validity of its vital conditions.' Id., at 255—256, 67 S.Ct., at 1557.
35
'It is an elementary rule of constitutional law that one may not 'retain the benefits of an Act while attacking the constitutionality of one of its important conditions.' United States v. San Francisco, 310 U.S. 16, 29 (60 S.Ct. 749, 84 L.Ed. 1050). As formulated by Mr. Justice Brandeis, concurring in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348 (56 S.Ct. 466, 80 L.Ed. 688), 'The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits." Id., at 255, 67 S.Ct., at 1557.
36
This doctrine has unquestionably been applied unevenly in the past, and observed as often as not in the breach. We believe that at the very least it gives added weight to our conclusion that where the grant of a substantive right is inextricably intertwined with the limitations on the procedures which are to be employed in determining that right, a litigant in the position of appellee must take the bitter with the sweet.
37
To conclude otherwise would require us to hold that although Congress chose to enact what was essentially a legislative compromise, and with unmistakable clarity granted governmental employees security against being dismissed without 'cause,' but refused to accord them a full adversary hearing for the determination of 'cause,' it was constitutionally disabled from making such a choice. We would be holding that federal employees had been granted, as a result of the enactment of the Lloyd-La Follette Act, not merely that which Congress had given them in the first part of a sentence, but that which Congress had expressly withheld from them in the latter part of the same sentence. Neither the language of the Due Process Clause of the Fifth Amendment nor our cases construing it require any such hobbling restrictions on legislative authority in this area.
38
Appellees urge that the judgment of the District Court must be sustained on the authority of cases such as Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), and Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). Goldberg held that welfare recipients are entitled under the Due Process Clause of the Fifth and Fourteenth Amendments to an adversary hearing before their benefits are terminated. Fuentes v. Shevin held that a hearing was generally required before one could have his property seized under a writ of replevin. In Bell v. Burson the Court held that due process required a procedure for determining whether there was a reasonable possibility of a judgment against a driver as a result of an accident before his license and vehicle registration could be suspended for failure to post security under Georgia's uninsured motorist statute. And in Sniadach v. Family Finance Corp. a Wisconsin statute providing for prejudgment garnishment without notice to the debtor or prior hearing was struck down as violative of the principles of due process. These cases deal with areas of the law dissimilar to one another and dissimilar to the area of governmental employer-employee relationships with which we deal here. The types of 'liberty' and 'property' protected by the Due Process Clause vary widely, and what may be required under that Clause in dealing with one set of interests which it protects may not be required in dealing with another set of interests.
39
'The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.' Cafeteria and Restaurant Workers v. McElroy, 367 U.S., at 895, 81 S.Ct., at 1748.
40
Here the property interest which appellee had in his employment was itself conditioned by the procedural limitations which had accompanied the grant of that interest. The Government might, then, under our holdings deal with Government employees in Roth, supra, and Sindermann, supra, constitutionally deal with appellee's claims as it proposed to do here.21
41
Appellee also contends in this Court that because of the nature of the charges on which his dismissal was based, he was in effect accused of dishonesty, and that therefore a hearing was required before he could be deprived of this element of his 'liberty' protected by the Fifth Amendment against deprivation without due process. In Board of Regents v. Roth, 408 U.S., at 573, 92 S.Ct., at 2707, we said:
42
'The State, in declining to rehire the respondent, did not make any charge against him that might seriously damage his standing and associations in his community. It did not base the nonrenewal of his contract on a charge, for example, that he had been guilty of dishonesty, or immorality. . . . In such a case, due process would accord an opportunity to refute the charge before University officials.'22
43
The liberty here implicated by appellants' action is not the elemental freedom from external restraint such as was involved in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), but is instead a subspecies of the right of the individual 'to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.' Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 627, 67 L.Ed. 1042 (1923). But that liberty is not offended by dismissal from employment itself, but instead by dismissal based upon an unsupported charge which could wrongfully injure the reputation of an employee. Since the purpose of the hearing in such a case is to provide the person 'an opportunity to clear his name,' a hearing afforded by administrative appeal procedures after the actual dismissal is a sufficient compliance with the requirements of the Due Process Clause. Here appellee chose not to rely on his administrative appeal, which, if his factual contentions are correct, might well have vindicated his reputation and removed any wrongful stigma from his reputation.
44
Appellee urges that the delays in processing agency and Civil Service Commission appeals, amounting to more than three months in over 50% of agency appeals,23 mean that the available administrative appeals do not suffice to protect his liberty interest recognized in Roth. During the pendency of his administrative appeals, appellee asserts, a discharged employee suffers from both the stigma and the consequent disadvantage in obtaining a comparable job that result from dismissal for cause from Government employment. We assume that some delay attends vindication of an employee's reputation throughout the hearing procedures provided on appeal, and conclude that at least the delays cited here do not entail any separate deprivation of a liberty interest recognized in Roth.
III
45
Appellee also contends that the provisions of 5 U.S.C. § 7501(a), authorizing removal or suspension without pay 'for such cause as will promote the efficiency of the service,' are vague and overbroad. The District Court accepted this contention:
46
'Because employees faced with the standard of 'such cause as will promote the efficiency of the service' can only guess as to what utterances may cost them their jobs, there can be little question that they will be deterred from exercising their First Amendment rights to the fullest extent.' 349 F.Supp., at 866.
47
A certain anomaly attends appellee's substantive constitutional attack on the Lloyd-La Follette Act just as it does his attack on its procedural provisions. Prior to the enactment of this language in 1912, there was no such statutory inhibition on the authority of the Government to discharge a federal employee, and an employee could be discharged with or without cause for conduct which was not protected under the First Amendment. Yet under the District Court's holding, a federal employee after the enactment of the Lloyd-La Follette Act may not even be discharged for conduct which constitutes 'cause' for discharge and which is not protected by the First Amendment, because the guarantee of job security which Congress chose to accord employees is 'vague' and 'overbroad.'
48
We hold the standard of 'cause' set forth in the Lloyd-La Follette Act as a limitation on the Government's authority to discharge federal employees is constitutionally sufficient against the charges both of overbreadth and of vagueness. In Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 578—579, 93 S.Ct. 2880, 2897, 37 L.Ed.2d 796 (1973), we said:
49
'(T)here are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest. '(T)he general class of offense to which . . . (the provisions are) directed is plainly within (their) terms . . ., (and they) will not be struck down as vague, even though marginal cases could be put where doubts might arise.' United States v. Hariss, 347 U.S. 612, 618 (74 S.Ct. 808, 812, 98 L.Ed. 989) (1954).'
50
Congress sought to lay down an admittedly general standard, not for the purpose of defining criminal conduct, but in order to give myriad different federal employees performing widely disparate tasks a common standard of job protection. We do not believe that Congress was confined to the choice of enacting a detailed code of employee conduct, or else granting no job protection at all. As we said in Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972):
51
'The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.' Id., at 110, 92 S.Ct., at 1957.
52
Here the language 'such cause as will promote the efficiency of the service' was not written upon a clean slate in 1912, and it does not appear on a clean slate now. The Civil Service Commission has indicated that what might be said to be longstanding principles of employer-employee relationships, like those developed in the private sector, should be followed in interpreting the language used by Congress.24 Moreover, the OEO has provided by regulation that its Office of General Counsel is available to counsel employees who seek advice on the interpretation of the Act and its regulations.25 We found the similar procedure offered by the Civil Service Commission important in rejecting the respondents' vagueness contentions in Civil Service Commission v. National Association of Letter Carriers, 413 U.S., at 580, 93 S.Ct., at 2897.
53
The phrase 'such cause as will promote the efficiency of the service' as a standard of employee job protection is without doubt intended to authorize dismissal for speech as well as other conduct. Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968), makes it clear that in certain situations the discharge of a Government employee may be based on his speech without offending guarantees of the First Amendment:
54
'At the same time it cannot be gainsaid 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. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.'
55
Because of the infinite variety of factual situations in which public statements by Government employees might reasonably justify dismissal for 'cause,' we conclude that the Act describes, as explicitly as is required, the employee conduct which is ground for removal. The essential fairness of this broad and general removal standard, and the impracticability of greater specificity, were recognized by Judge Leventhal, writing for a panel of the United States Court of Appeals for the District of Columbia Circuit in Meehan v. Macy, 129 U.S.App.D.C. 217, 230, 392 F.2d 822, 835 (1968), modified, 138 U.S.App.D.C. 38, 425 F.2d 469, aff'd en banc, 138 U.S.App.D.C. 41, 425 F.2d 472 (1969):
56
'(I)t is not feasible or necessary for the Government to spell out in detail all that conduct which will result in retaliation. The most conscientious of codes that define prohibited conduct of employees includes 'catch-all' clauses prohibiting employee 'misconduct,' 'immorality,' or 'conduct unbecoming.' We think it is inherent in the employment relationship as a matter of common sense if not (of) common law that (a Government) employee . . . cannot reasonably assert a right to keep his job while at the same time he inveighs against his superiors in public with intemperate and defamatory (cartoons). . . . (Dismissal in such circumstances neither) comes as an unfair surprise (nor) is so unexpected . . . as to chill . . . freedom to engage in appropriate speech.'
57
Since Congress when it enacted the Lloyd-La Follette Act did so with the intention of conferring job protection rights on federal employees which they had not previously had, it obviously did not intend to authorize discharge under the Act's removal standard for speech which is constitutionally protected. The Act proscribes only that public speech which improperly damages and impairs the reputation and efficiency of the employing agency, and it thus imposes no greater controls on the behavior of federal employees than are necessary for the protection of the Government as an employer. Indeed the Act is not directed at speech as such, but at employee behavior, including speech, which is detrimental to the efficiency of the employing agency. We hold that the language 'such cause as will promote the efficiency of the service' in the Act excludes constitutionally protected speech, and that the statute is therefore not overbroad. Colten v. Kentucky, 407 U.S., at 111, 92 S.Ct., at 1957. We have observed previously that the Court has a duty to construe a federal statute to avoid constitutional questions where such a construction is reasonably possible. United States v. 12 200—ft. Reels of Film, 413 U.S. 123, 130 n. 7, 93 S.Ct. 2665, 2670, 37 L.Ed.2d 500 (1973); United States v. Thirty-seven photographs, 402 U.S. 363, 368—369, 91 S.Ct. 1400, 1404—1405, 28 L.Ed.2d 822 (1971).
58
We have no hesitation, as did the District Court, in saying that on the facts alleged in the administrative charges against appellee, the appropriate tribunal would infringe no constitutional right of appellee in concluding that there was 'cause' for his discharge. Pickering v. Board of Education, 391 U.S., at 569, 88 S.Ct., at 1735. Nor have we any doubt that satisfactory proof of these allegations could constitute 'such cause as will promote the efficiency of the service' within the terms of 5 U.S.C. § 7501(a). Appellee's contention then boils down to the assertion that although no constitutionally protected conduct of his own was the basis for his discharge on the Government's version of the facts, the statutory language in question must be declared inoperative, and a set of more particularized regulations substituted for it, because the generality of its language might result in marginal situations in which other persons seeking to engage in constitutionally protected conduct would be deterred from doing so. But we have held that Congress in establishing a standard of 'cause' for discharge did not intend to include within that term any constitutionally protected conduct. We think that our statement in Colten v. Kentucky, is a complete answer to appellee's contention:
59
'As we understand this case, appellant's own conduct was not immune under the First Amendment and neither is his conviction vulnerable on the ground that the statute threatens constitutionally protected conduct of others.' 407 U.S., at 111, 92 S.Ct., at 1958.
60
In sum, we hold that the Lloyd-La Follette Act, in at once conferring upon nonprobationary federal employees the right not to be discharged except for 'cause' and prescribing the procedural means by which that right was to be protected, did not create an expectancy of job retention in those employees requiring procedural protection under the Due Process Clause beyond that afforded here by the statute and related agency regulations. We also conclude that the post-termination hearing procedures provided by the Civil Service Commission and the OEO adequately protect those federal employees' liberty interest, recognized in Roth, supra, in not being wrongfully stigmatized by untrue and unsupported administrative charges. Finally, we hold that the standard of employment protection imposed by Congress in the Lloyd-La Follette Act, is not impermissibly vague or overbroad in its regulation of the speech of federal employees and therefore unconstitutional on its face. Accordingly, we reverse the decision of the District Court on both grounds on which it granted summary judgment and remand for further proceedings not inconsistent with this opinion.
61
Reversed and remanded.
62
Mr. Justice POWELL, with whom Mr. Justice BLACKMUN joins, concurring in part and concurring in the result in part.
63
For the reasons stated by Mr. Justice REHNQUIST, I agree that the provisions of 5 U.S.C. § 7501(a) are neither unconstitutionally vague nor overbroad. I also agree that appellee's discharge did not contravene the Fifth Amendment guarantee of procedural due process. Because I reach that conclusion on the basis of different reasoning, I state my views separately.
64
* The applicability of the constitutional guarantee of procedural due process depends in the first instance on the presence of a legitimate 'property' or 'liberty' interest within the meaning of the Fifth or Fourteenth Amendment. Governmental deprivation of such an interest must be accompanied by minimum procedural safeguards, including some form of notice and a hearing.1 The Court's decisions in Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), provide the proper framework for analysis of whether appellee's employment constituted a 'property' interest under the Fifth Amendment. In Roth, the Court stated:
65
'To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.
66
'Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.' 408 U.S., at 577, 92 S.Ct., at 2709.
67
The Court recognized that the 'wooden distinction' between 'rights' and 'privileges' was not determinative of the applicability of procedural due process and that a property interest may be created by statute as well as by contract. Id., at 571, 92 S.Ct., at 2706. In particular, the Court stated that a person may have a protected property interest in public employment if contractual or statutory provisions guarantee continued employment absent 'sufficient cause' for discharge. Id., at 576 578, 92 S.Ct., at 2708—2710.
68
In Sindermann, the Court again emphasized that a person may have a protected property interest in continued public employment. There, a state college teacher alleged that the college had established a de facto system of tenure and that he had obtained tenure under that system. The Court stated that proof of these allegations would establish the teacher's legitimate claim of entitlement to continued employment absent 'sufficient cause' for discharge. In these circumstances, the teacher would have a property interest safeguarded by due process, and deprivation of that interest would have to be accompanied by some form of notice and a hearing.
69
Application of these precedents to the instance case makes plain that appellee is entitled to invoke the constitutional guarantee of procedural due process. Appellee was a nonprobationary federal employee, and as such he could be discharged only for 'cause.' 5 U.S.C. § 7501(a). The federal statute guaranteeing appellee continued employment absent 'cause' for discharge conferred on him a legitimate claim of entitlement which constituted a 'property' interest under the Fifth Amendment. Thus termination of his employment requires notice and a hearing.
70
The plurality opinion evidently reasons that the nature of appellee's interest in continued federal employment is necessarily defined and limited by the statutory procedures for discharge and that the constitutional guarantee of procedural due process accords to appellee no procedural protections against arbitrary or erroneous discharge other than those expressly provided in the statute. The plurality would thus conclude that the statute governing federal employment determines not only the nature of appellee's property interest, but also the extent of the procedural protections to which he may lay claim. It seems to me that this approach is incompatible with the principles laid down in Roth and Sindermann. Indeed, it would lead directly to the conclusion that whatever the nature of an individual's statutorily created property interest, deprivation of that interest could be accomplished without notice or a hearing at any time. This view misconceives the origin of the right to procedural due process. That right is conferred, not by legislative grace, but by constitutional guarantee. While the legislature may elect not to confer a property interest in federal employment,2 it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards. As our cases have consistently recognized, the adequacy of statutory procedures for deprivation of a statutorily created property interest must be analyzed in constitutional terms. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970);3 Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Board of Regents of State Colleges v. Roth, supra; Perry v. Sindermann, supra.
II
71
Having determined that the constitutional guarantee of procedural due process applies to appellee's discharge from public employment, the question arises whether an evidentiary hearing, including the right to present favorable witnesses and to confront and examine adverse witnesses, must be accorded before removal. The resolution of this issue depends on a balancing process in which the Government's interest in expeditious removal of an unsatisfactory employee is weighed against the interest of the affected employee in continued public employment. Goldberg v. Kelly, supra, at 263—266, 90 S.Ct., at 1018—1020. As the Court stated in Cafeteria and Restaurant Workers Union Local 473, AFL CIO v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961), 'consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.'
72
In the present case, the Government's interest, and hence the public's interest, is the maintenance of employee efficiency and discipline. Such factors are essential if the Government is to perform its responsibilities effectively and economically. To this end, the Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs. This includes the prerogative to remove employees whose conduct hinders efficient operation and to do so with dispatch. Prolonged retention of a disruptive or otherwise unsatisfactory employee can adversely affect discipline and morale in the work place, foster disharmony, and ultimately impair the efficiency of an office or agency. Moreover, a requirement of a prior evidentiary hearing would impose additional administrative costs, create delay, and deter warranted discharges. Thus, the Government's interest in being able to act expeditiously to remove an unsatisfactory employee is substantial.4
73
Appellee's countervailing interest is the continuation of his public employment pending an evidentiary hearing. Since appellee would be reinstated and awarded backpay if he prevails on the merits of his claim, appellee's actual injury would consist of a temporary interruption of his income during the interim. To be sure, even a temporary interruption of income could constitute a serious loss in many instances. But the possible deprivation is considerably less severe than that involved in Goldberg, for example, where termination of welfare benefits to the recipient would have occurred in the face of 'brutal need.' 397 U.S., at 261, 90 S.Ct., at 1017. Indeed, as the Court stated in that case, 'the crucial factor in this context—a factor not present in the case of . . . the discharged government employee . . .—is that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits.' Id., at 264, 90 S.Ct., at 1018 (emphasis added). By contrast, a public employee may well have independent resources to overcome any temporary hardship, and he may be able to secure a job in the private sector. Alternatively, he will be eligible for welfare benefits.
74
Appellee also argues that the absence of a prior evidentiary hearing increases the possibility of wrongful removal and that delay in conducting a post-termination evidentiary hearing further aggravates his loss. The present statute and regulations, however, already respond to these concerns. The affected employee is provided with 30 days' advance written notice of the reasons for his proposed discharge and the materials on which the notice is based. He is accorded the right to respond to the charges both orally and in writing, including the submission of affidavits. Upon request, he is entitled to an opportunity to appear personally before the official having the authority to make or recommend the final decision. Although an evidentiary hearing is not held, the employee may make any representations he believes relevant to his case. After removal, the employee receives a full evidentiary hearing, and is awarded backpay if reinstated. See 5 CFR §§ 771.208 and 772.305; 5 U.S.C. § 5596. These procedures minimize the risk of error in the initial removal decision and provide for compensation for the affected employee should that decision eventually prove wrongful.5
75
On balance, I would conclude that a prior evidentiary hearing is not required and that the present statute and regulations comport with due process by providing a reasonable accommodation of the competing interests.6
76
Mr. Justice WHITE, concurring in part and dissenting in part.
77
The Lloyd-La Follette Act, 5 U.S.C. § 7501(a), provides that '(a)n individual in the competitive service may be removed or suspended without pay only for such cause as will promote the efficiency of the service.'1 The regulations of the Civil Service Commission and the Office of Economic Opportunity (OEO), at which appellee was employed, give content to 'cause' by specifying grounds for removal which include 'any action . . . which might result in . . . (a)ffecting adversely the confidence of the public in the integrity of (OEO and) the Government' and any 'criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct, or other conduct prejudicial to the Government.'2
78
Aside from specifying the standards for discharges, Congress has also established the procedural framework in which the discharge determinations are to be made. The employee is to receive 30 days' advance written notice of the action sought and of any charges preferred against him, a copy of the charges, and a reasonable time for filing a written answer to the charges. Before being terminated he may also make a personal appearance before an agency official, and implementing Civil Service Commission regulations provide that '(t)he right to answer personally includes the right to answer orally in person by being given a reasonable opportunity to make any representations which the employee believes might sway the final decision on his case, but does not include the right to a trial or a formal hearing with examination of witnesses.' The regulations further provide that the 'representative or representatives designated to hear the answer shall be persons who have authority either to make a final decision on the proposed adverse action or to recommend what final decision should be made.' The employee is entitled to notice of the agency's decision in writing, and the notice must inform the employee '(w)hich of the reasons in the notice of proposed adverse action have been found sustained and which have been found not sustained.'3 The employee may appeal from an adverse decision and is entitled to an evidentiary trial-type hearing at this stage.4 This later hearing affords the employee certain rights not available with OEO at the pretermination stage, particularly the taking of testimony under oath and the cross-examination of witnesses.
79
Appellee Kennedy was a nonprobationary federal employee in the competitive civil service and held the position of field representative in the Chicago Regional Office of OEO. As such, he was entitled to the protection of the statutes and regulations outlined above. On February 18, 1972, Kennedy received a 'Notification of Proposed Adverse Action' from the Regional Director of OEO, Wendell Verduin. The notice charged, among other things, that Kennedy had made slanderous statements about Verduin and another coworker charging them with bribing or attempting to bribe a potential OEO grantee and had thereby caused disharmony in his office by preventing its smooth functioning. Verduin then ruled on March 20, 1972, after Kennedy had filed a written answer objecting to the lack of certain procedures furnished at this pretermination hearing, but had declined to appear personally, that Kennedy be removed from his job with OEO, effective March 27, 1972.5
80
Kennedy then appealed directly to the Civil Service Commission and also instituted the present action. The first count of his complaint alleged that the discharge procedure of the Lloyd-La Follette Act, and the attendant Civil Service Commission regulations, deprived him of due process by failing to provide for a full hearing prior to termination. The second count alleged that he was discharged because of certain conversations, in violation of his rights under the First Amendment. The single judge who reviewed the complaint convened a three-judge court to hear the first count, and dismissed the second, without prejudice to refiling after the Civil Service Commission ruled on his appeal. It was the court's view that it should not act until the agency had the opportunity to review the rights of appellee's First Amemdnemtn claim.
81
After the convening of the three-judge court, appellee amended his complaint, then limited to the due process claim, to include a challenge to the Lloyd-La Follette Act on the grounds that it was vague and overbroad and violated the First Amendment.
82
The three-judge District Court, convened pursuant to 28 U.S.C. §§ 2282 and 2284, granted summary judgment for appellee. Kennedy v. Sanchez, D.C., 349 F.Supp. 863. It held that the discharge procedures violated due process because '(t)here was no provision .. . for the decision on removal or suspension to be made by an impartial agency official, or for Kennedy (by his own means) to present witnesses; or for his right to confront adverse witnesses.' Id., at 865. The court also held that § 7501 was unconstitutional on vagueness and overbreadth grounds. The Government was ordered to reinstate Kennedy to his former position with backpay and to conduct any future removal proceedings with a hearing consistent with its opinion. Appellants were also enjoined from further enforcement of the Lloyd-La Follette Act, and implementing regulations, as 'construed to regulate the speech of competitive service employees.' Id., at 866.
83
* In my view, three issues must be addressed in this case. First, does the Due Process Clause require that there be a full trial-type hearing at some time when a Federal Government employee in the competitive service is terminated? Secondly, if such be the case, must this hearing be held prior to the discharge of the employee, and, if so, was the process afforded in this case adequate? Third, and as an entirely separate matter, are the Lloyd-La Follette Act and its attendant regulations void for vagueness or overbreadth? I join the Court as to the third issue.
II
84
I differ basically with the plurality's view that 'where the grant of a substantive right is inextricably intertwined with the limitations on the procedures which are to be employed in determining that right, a litigant in the position of appellee must take the bitter with the sweet,' and that 'the property interest which appellee had in his employment was itself conditioned by the procedural limitations which ahd accompanied the grant of that interest.' Ante, at 153—154, 155. The rationale of this position quickly leads to the conclusion that even though the statute requires cause for discharge, the requisites of due process could equally have been satisfied had the law dispensed with any hearing at all, whether pre-termination or post-termination.
85
The past cases of this Court uniformly indicate that some kind of hearing is required at some time before a person is finally deprived of his property interests.6 The principles of due process 'come to us from the law of England . . . and their requirement was there designed to secure the subject against the arbitrary action of the crown and place him under the protection of the law.' Dent v. West Virginia, 129 U.S. 114, 123, 9 S.Ct. 231, 234, 32 L.Ed. 623 (1889). The 'right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society.' Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 647, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring).
86
This basic principle has unwaveringly been applied when private property has been taken by the State. A fundamental requirement of due process is 'the opportunity to be heard.' Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914). 'It is an opportunity which must be granted at a meaningful time and in a meaningful manner.' Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). Where the Court has rejected the need for a hearing prior to the initial 'taking,' a principal rationale has been that a hearing would be provided before the taking became final. See North American Cold Storage Co. v. Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 (1908) (seizure of food unfit for consumption); Central Union Trust Co. v. Garvan, 254 U.S. 554, 41 S.Ct. 214, 65 L.Ed. 403 (1921) (seizure of property under Trading with the Enemy Act); Corn Exchange Bank v. Coler, 280 U.S. 218, 50 S.Ct. 94, 74 L.Ed. 378 (1930) (seizure of assets of an absconding husband); Phillips v. Commissioner of Internal Revenue, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 1289 (1931) (collection of a tax); Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892 (1944) (setting of price regulations); Fahey v. Mallonee, 332 U.S. 245, 67 S.Ct. 1552, 91 L.Ed. 2030 (1947) (appointment of conservator of assets of savings and loan association); Ewing v. Mytinger & Casselberry, 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950) (seizure of misbranded articles in commerce). While these cases indicate that the particular interests involved might not have demanded a hearing immediately, they also reaffirm the principle that property may not be taken without a hearing at some time.
87
This principle has also been applied in situations where the State has licensed certain activities. Where the grant or denial of a license has been involved, and the 'right' to engage in business has been legitimately limited by the interest of the State in protecting its citizens from inexpert or unfit performance, the decision of the State to grant or deny a license has been subject to a hearing requirement. See, e.g., Dent v. West Virginia, supra (licensing of physicians); Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117, 46 S.Ct. 215, 70 L.Ed. 494 (1926) (licensing of accountant); Willner v. Committee on Character and Fitness, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963) (admission to the bar). The Court has put particular stress on the fact that the absence of a hearing would allow the State to be arbitrary in its grant or denial, and to make judgments on grounds other than the fitness of a particular person to pursue his chosen profession. In the context of admission to the bar, the Court has stated: 'Obviously an applicant could not be excluded merely because he was a Republican or a Negro or a member of a particular church. Even in applying permissible standards, officers of a State cannot exclude an applicant when there is no basis for their finding that he fails to meet these standards, or when their action is invidiously discriminatory.' Schware v. Board of Bar Examiners, 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957). The hearing requirement has equally been applied when the license was to be removed. In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968), or a licensee has been subject to state regulation, Ohio Bell Telephone Co. v. Public Utilities Comm'n of Ohio, 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093 (1937).
88
Similar principles prevail when the State affords its process and mechanism of dispute settlement, its law enforcement officers, and its courts, in aiding one person to take property from another. Where there is a 'taking' before a final determination of rights, as in some cases when the State seizes property, to protect one of the parties pendente lite, the Court has acted on the assumption that at some time a full hearing will be available, as when there is an attachment of property preliminary to resolution of the merits of a dispute, Ownbey v. Morgan, 256 U.S. 94, 41 S.Ct. 433, 65 L.Ed. 837 (1921); Coffin Brothers v. Bennett, 277 U.S. 29, 48 S.Ct. 422, 72 L.Ed. 768 (1928); McKay v. McInnes, 279 U.S. 820, 49 S.Ct. 344, 73 L.Ed. 975 (1929). The opportunity to defend one's property before it is finally taken is so basic that it hardly bears repeating. Adequate notice of the court proceeding must be furnished, Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), and there must be jurisdiction over the person, Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878).
89
Since there is a need for some kind of hearing before a person is finally deprived of his property, the argument in the instant case, and that adopted in the plurality opinion, is that there is something different about a final taking from an individual or property rights which have their origin in the public rather than the private sector of the economy, and, as applied here, that there is no need for any hearing at any time when the Government discharges a person from his job, even though good cause for the discharge is required.
90
In cases involving employment by the Government, the earliest cases of this Court have distinguished between two situations, where the entitlement to the job is conditioned 'at the pleasure' of the employer and where the job is to be held subject to certain requirements being met by the employee, as when discharge must be for 'cause.' The Court has stated: 'The inquiry is, therefore, whether there were any causes of removal prescribed by law . . .. If there were, then the rule would apply that where causes of removal are specified by Constitution or statute, as also where the term of office is for a fixed period, notice and hearing are essential. If there were not, the appointing power could remove at pleasure or for such cause as it deemed sufficient.' Reagan v. United States, 182 U.S. 419, 425, 21 S.Ct. 842, 845, 45 L.Ed. 1162 (1901); Shurtleff v. United States, 189 U.S. 311, 314, 23 S.Ct. 535, 536, 47 L.Ed. 828 (1903). The Court has thus made clear that Congress may limit the total discretion of the Executive in firing an employee, by providing that terminations be for cause, and only for cause, and, if it does so, notice and a hearing are 'essential.'
91
Where Executive discretion is not limited, there is no need for a hearing. In the latter event, where the statute has provided that employment was conditioned on "maintain(ing) the respect due to courts of justice and judicial officers," Ex parte Secombe, 19 How. 9, 14, 15 L.Ed. 565 (1857) (attorney and counsellor of court), or was subject to no conditions at all, Ex parte Hennen, 13 Pet. 225, 10 L.Ed. 138 (1839) (clerk of the court), no hearing is required. See also Crenshaw v. United States, 134 U.S. 99, 10 S.Ct. 431, 33 L.Ed. 825 (1890) (Navy officer could be removed at will); Parsons v. United States, 167 U.S. 324, 17 S.Ct. 880, 42 L.Ed. 185 (1897) (district attorney could be terminated by the President at his pleasure); Keim v. United States, 177 U.S. 290, 20 S.Ct. 574, 44 L.Ed. 774 (1900) (post office clerks removable at pleasure). To like effect is Cafeteria and Restaurant Workers v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961), where the Court held that no hearing need be provided to a cook employed by a private concessionaire of the Navy before the Government revoked her security clearance. The revocation of security clearances was within the 'unfettered control' of the Navy in order 'to manage the internal operation of an important federal military establishment.' Id., at 896, 81 S.Ct., at 1749. The Court there assumed that 'Rachel Brawner could not constitutionally have been excluded from the Gun Factory if the announced grounds for her exclusion had been patently arbitrary or discriminatory . . ..' Id., at 898, 81 S.Ct. at 1750.
92
Where the Congress has confined Executive discretion, notice and hearing have been required. In Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 952 L.Ed. 817 (1951), an organization was put on the Attorney General's list, as disloyal to the United States, without a hearing before the Attorney General. The Executive Order, as defined by implementing regulations, required the executive to make an 'appropriate determination' of disloyalty. It was apparent that members of organizations employed by the Government who belonged to an organization on the Attorney General's list would be in danger of losing their jobs. The Court held, assuming the facts as alleged by the complaints were true, that it would be arbitrary, and not consistent with an 'appropriate determination,' to deny a hearing on the matter to the affected organizations. As Mr. Justice Frankfurter observed in his concurring opinion, '(t)he heart of the matter is that democracy implies respect for the elementary rights of men, however suspect or unworthy; a democratic government must therefore practice fairness; and fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights.' Id., at 170, 71 S.Ct., at 647.
93
To some extent, McGrath, and like cases, see Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959), depended on statutory construction—the intent of Congress to require that procedural fairness be observed in making decisions on security clearances or status, which affected employment—but it is obvious that the constitutional requirements of fairness were a guiding hand to the Court's statutory interpretation. 'Where administrative action has raised serious constitutional problems, the Court has assumed that Congress or the President intended to afford those affected by the action the traditional safeguards of due process,' and it has been 'the Court's concern that traditional forms of fair procedure not be restricted by implication or without the most explicit action by the Nation's law-makers . . ..' Id., at 507—508, 79 S.Ct., at 1419.
94
The concern of the Court that fundamental fairness be observed when the State deals with its employees has not been limited to action which is discriminatory and infringes on constitutionally protected rights, as in Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952); Slochower v. Board of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956); Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). See also Connell v. Higginbotham, 403 U.S. 207, 91 S.Ct. 1772, 29 L.Ed.2d 418 (1971). It has been observed that 'constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or disciminatory.' Wieman v. Updegraff, supra, 344 u.S., at 192, 73 S.Ct., at 219; Slochower v. Board of Education, supra, 350 U.S., at 556, 76 S.Ct., at 640. (Emphasis added.) In Slochower, supra, New York law provided that a tenured employee taking the Fifth Amendment before a legislative committee inquiring into his official conduct could be fired. Quite apart from the Fifth Amendment 'penalty' assessed by the State, the Court was concerned with the arbitrariness of drawing a conclusion, without a hearing, that any employee who took the Fifth Amendment was guilty or unfit for employment. The Court stated:
95
'This is not to say that Slochower has a constitutional right to be an associated professor of German at Brooklyn College. The State has broad powers in the selection and discharge of its employees, and it may be that proper inquiry would show Slochower's continued employment to be inconsistent with a real interest of the State. But there has been no such inquiry here.' Id., at 559, 76 S.Ct., at 641.
96
The Court's decisions in Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), reiterate the notion that the Executive Branch cannot be arbitrary in depriving a person of his job, when the Legislative Branch has provided that a person cannot be fired except for cause, and, if anything, extend the principles beyond the facts of this case.
97
In Sindermann, a teacher who had held his position for a number of years but was not tenured under contract, alleged that he had de facto tenure under contract law due to 'the existence of rules or understandings' with the college which employed him, id., at 602, 92 S.Ct., at 2700. The Court held that if the professor could prove the existence of a property interest it would 'obligate college officials to grant a hearing at his request, where he could be informed of the grounds for his nonretention and challenge their sufficiency.' Id., at 603, 92 S.Ct., at 2700. In Roth, an assistant professor was hired for a fixed term of one academic year, and had no tenure. The Court held that the teacher had no property interest in the job, since the terms of employment allowed that his contract not be renewed. The critical consideration was that the terms 'did not provide for contract renewal absent 'sufficient cause." 408 U.S., at 578, 92 S.Ct., at 2709. The rights to continued employment were determined by state law. The Court took great pains, however, to point out that a tenured appointment, providing for entitlement to a job, absent cause, would be a far different case.
98
These cases only serve to emphasize that where there is a legitimate entitlement to a job, as when a person is given employment subject to his meeting certain specific conditions, due process requires, in order to insure against arbitrariness by the State in the adminstration of its law, that a person be given notice and a hearing before he is finally discharged. As the Court stated in Dismuke v. United States, 297 U.S. 167, 172, 56 S.Ct. 400, 403, 80 L.Ed. 561 (1936):
99
'If (the adminsitrative officer) is authorized to determine questions of fact his decision must be accepted unless he exceeds his authority . . . by failing to follow a procedure which satisfies elementary standards of fairness and reasonableness essential to the due conduct of the proceeding which Congress has authorized.'
100
To be sure, to determine the existence of the property interest, as for example, whether a teacher is tenured or not, one looks to the controlling law, in this case federal statutory law, the Lloyd-La Follette Act, which provides that a person can only be fired for cause. The fact that the origins of the property right are with the State makes no difference for the nature of the procedures required. While the State may define what is and what is not property, once having defined those rights the Constitution defines due process, and as I understand it six members of the Court are in agreement on this fundamental proposition.
101
I conclude, therefore, that as a matter of due process, a hearing must be held at some time before a competitive civil service employee may be finally terminated for misconduct. Here, the Constitution and the Lloyd-La Follette Act converge, because a full trial-type hearing is provided by statute before termination from the service becomes final, by way of appeal either through OEO, the Civil Service Commission, or both.7
102
A different case might be put, of course, if the termination were for reasons of pure inefficiency, assuming such a general reason could be given, in which case it would be at least arguable that a hearing would serve no useful purpose and that judgments of this kind are best left to the discretion of administrative officials. This is not such a case, however, since Kennedy was terminated on specific charges of misconduct.
III
103
The second question which must be addressed is whether a hearing of some sort must be held before any 'taking' of the employee's property interest in his job occurs, even if a full hearing is available before that taking becomes final. I must resolve this question because in my view a full hearing must be afforded at some juncture and the claim is that it must occur prior to termination. If the right to any hearing itself is a pure matter of property definition, as the plurality opinion suggests, then that question need not be faced, for any kind of hearing, or no hearing at all, would suffice. As I have suggested, the State may not dispense with the minimum procedures defined by due process, but different considerations come into play when deciding whether a pretermination hearing is required and, if it is, what kind of hearing must be had.
104
In passing upon claims to a hearing before preliminary but nonfinal deprivations, the usual rule of this Court has been that a full hearing at some time suffices. 'We have repeatedly held that no hearing at the preliminary stage is required by due process so long as the requisite hearing is held before the final administrative order becomes effective.' 'It is sufficient, where only property rights are concerned, that there is at some stage an opportunity for a hearing and a judicial determination.' Ewing v. Mytinger & Casselberry, 339 U.S., at 598—599, 70 S.Ct., at 872. See also Phillips v. Commissioner of Internal Revenue, 283 U.S. 589, 596—597, 51 S.Ct. 608, 611—612, 75 L.Ed. 1289 (1931); Scottish Union & National Insurance Co. v. Bowland, 196 U.S. 611, 631—632, 25 S.Ct. 345, 351—352, 49 L.Ed. 619 (1905); Springer v. United States, 102 U.S. 586, 593—594, 26 L.Ed. 253 (1881). This has seemingly been the rule whether the State was taking property from the person, as in the above-cited cases, or whether one person was taking it from another through the process of state courts. See Ownbey v. Morgan, 256 U.S. 94, 41 S.Ct. 433, 65 L.Ed. 837 (1921); Coffin Brothers v. Bennett, 277 U.S. 29, 48 S.Ct. 422, 72 L.Ed. 768 (1928); McKay v. McInnes, 279 U.S. 820, 49 S.Ct. 344, 73 L.Ed. 975 (1929).
105
In recent years, however, in a limited number of cases, the Court has held that a hearing must be furnished at the first stage of taking, even where a later hearing was provided. This has been true in the revocation of a state-granted license, Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), and in suits between private parties, where summary replevin procedures, Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), or garnishment procedures, Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), were attacked, and when the State has sought to terminate welfare benefits, Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).8
106
These conflicting lines of cases demonstrate, as the Court stated in Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S., at 895, 81 S.Ct., at 1748, that 'consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.' See also Hannah v. Larche, 363 U.S. 420, 440, 442, 80 S.Ct. 1502, 1513, 1514, 4 L.Ed.2d 1307 (1960); Goldberg v. Kelly, supra, 397 U.S., at 263, 90 S.Ct., at 1018. In assessing whether a prior hearing is required, the Court has looked to how the legitimate interests asserted by the party asserting the need for a hearing, and the party opposing it, would be furthered or hindered.
107
In many cases, where the claim to a pretermination hearing has been rejected, it appears that the legitimate interest of the party opposing the hearing might be defeated outright if such hearing were to be held.9 For example, when the Government or a private party lays claim to property there is often the danger that the person in possession of the property may alienate or waste it, and the Government or private party may be without recourse. Thus, the Court has held that there is no need for a prior hearing where the Government has taken preliminary custody of alleged enemy property before actual title to the property is determined, Central Union Trust Co. v. Garvan, 254 U.S. 554, 41 S.Ct. 214, 65 L.Ed. 403 (1921); Stoehr v. Wallace, 255 U.S. 239, 41 S.Ct. 293, 65 L.Ed. 604 (1921), or where a private creditor has sought to attach property of a debtor. See Ownbey v. Morgan, supra; Coffin Brothers v. Bennett, supra; McKay v. McInnes, supra. Of course, such summary action must be authorized in such a manner as to minimize the possibilities of a mistaken deprivation, by a public official in the case of administrative action, or a judge where the processes of the court are used. Fuentes v. Shevin, supra.
108
The danger that the purpose of the action may be defeated, or made exceedingly difficult, by requiring a prior hearing, is illustrated by North American Cold Storage Co. v. Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 (1908), where the Court sustained the constitutionality of an Illinois statute permitting health inspectors to enter cold-storage houses and 'forthwith seize, condemn and destroy' unfit food. The defendants in the action claimed that while it may be necessary to seize the food pending a hearing, surely destruction of that food could not be justified. Nenetheless, the Court observed:
109
'If a hearing were to be always necessary, even under the circumstances of this case, the question at once arises as to what is to be done with the food in the meantime. Is it to remain with the cold storage company, and, if so, under what security that it will not be removed? To be sure that it will not be removed during the time necessary for the hearing, which might frequently be indefinitely prolonged, some guard would probably have to be placed over the subject-matter of the investigation, which would involve expense, and might not even then prove effectual.' Id., at 320, 29 S.Ct., at 106.
110
Similar inabilities of the party claiming a right to a prior hearing, to make the moving party in the suit whole, have appeared where incompetence and malfeasance in the administration of a bank could precipitate a financial collapse in the community, which would go uncompensated, see Fahey v. Mallonee, 332 U.S., at 250, 67 S.Ct., at 1554, or where, in the absence of a jeopardy assessment by the Tax Commissioner, a taxpayer might waste or conceal his assets, see Phillips v. Commissioner of Internal Revenue, supra. In all such cases it is also significant that the party advancing the claim to a summary procedure stands ready to make whole the party who has been deprived of his property, if the initial taking proves to be wrongful, either by the credit of the public fisc or by posting a bond.
111
Of course, this principle cannot be applied with success to explain the Court's decisions in cases holding that a pretermination hearing is required; it is not true that the party entitled to the hearing stands ready to compensate the adversary for what may be the wrongful possession of the property in question during the pendency of the litigation. This is vividly illustrated in Goldberg v. Kelly where the Court observed that 'the benefits paid to ineligible recipients pending decision at the hearing probably cannot be recouped, since these recipients are likely to be judgment proof.' 397 U.S., at 266, 90 S.Ct., at 1019. However, other considerations have proved decisive, such as: the risk that the initial deprivation may be wrongful; the impact on the claimant to a hearing of not having the property while he waits for a full hearing; the interest of the party opposing the prior hearing and asserting the need for immediate possession in not alerting the current possessor to the lawsuit; and the risk of leaving the property in possession of the current possessor between the time notice is supplied and the time of the preliminary hearing.
112
In Goldberg and Sniadach, the Court observed that there was a substantial chance that the claimant to the property, be it the State or garnishor, would lose in the ultimate resolution of the controversy. In Goldberg, the Court took note of the 'welfare bureaucracy's difficulties in reaching correct decisions on eligibility.' 397 U.S., at 264 n. 12, 90 S.Ct., at 1019. Since the time of the decision in Goldberg, at least one study has shown that decisions to terminate benefits have been reversed with a fair degree of frequency.10 Concern was also expressed with the use of garnishment in a vast number of cases where the debt was fraudulent. Sniadach, 395 U.S., at 341, 89 S.Ct., at 1822. In Fuentes, although no such empirical evidence was available, the risk of wrongful deprivations was unnecessarily increased by allowing a clerk, rather than a judge, to pass on the creditor's claim for summary replevin. In Bell, the Court held unconstitutional a state statute requiring summary suspension of a driver's license of any uninsured motorist who was unable after an accident to post security for the amount of the damages claimed against him. The only hearing held by the State on the issue of suspension excluded any consideration of fault, the standard on which the validity would ultimately turn. Without some kind of probable-cause determination of fault, it was obvious that many suspensions would prove to be unwarranted.
113
As for the impact on the current property possessor of not having an early pretermination hearing, the Court has held that without possession of the property a person may be unable to exist at even a minimum standard of decency. In Goldberg, where the person would have lost the last source of support available, aside from charity, the Court observed that 'termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits. Since he lacks independent resources, his situation becomes immediately desperate.' 397 U.S., at 264, 90 S.Ct., at 1018. In fact, the magnitude of deprivation may be such as to prevent the welfare recipient from pursuing his right to a later full hearing. Ibid. In Sniadach, the seizure of an individual's wages could 'as a practical matter drive a wage-earning family to the wall.' 395 U.S., at 341 342, 89 S.Ct., at 1823 (footnote omitted). In Bell, the petitioner was a clergyman whose ministry required him to travel by car to cover three rural Georgia communities, and he was 'severely handicapped in the performance of his ministerial duties by a suspension of his licenses.' 402 U.S., at 537, 91 S.Ct., at 1588. The impact of deprivation increases, of course, the longer the time period between the initial deprivation and the opportunity to have a full hearing. In Goldberg, the Court noted that although pertinent New York regulations provided that a 'fair hearing' be held within 10 working days of the request, with decision within 12 working days thereafter, '(i)t was conceded in oral argument that these time limits are not in fact observed.' 397 U.S., at 260 n. 5, 90 S.Ct., at 1016. In Sniadach and Fuentes, there was no indication of the speed with which a court ruling on garnishment and possession would be rendered, and of course the ultimate issues on the merits in such cases must wait for a still later determination. In Bell, the issue of liability might not be determined until full trial proceedings in court.
114
The last factor to be weighed in the balance is the danger to the party claiming possession occasioned by alerting the current possessor to the lawsuit, and then leaving the property in his hands pending the holding of the preliminary hearing. In Goldberg and Sniadach, the property right seized was a flow of income, in one case from the Government, and in the other from the private employer, pending the preliminary hearing. The Government ran no special risk by supplying notice in advance of the cutoff, since the Government was in possession of the flow of income until it was turned over piecemeal to the welfare recipient. Further, though the Government could assert in the welfare case that it would incur an uncompensated loss, that risk would only be incurred from the time the last check is delivered until the pretermination hearing is held and the administrative agency certainly has the power to offer a speedy hearing before that time is reached. See Goldberg v. Kelly, supra, at 266, 90 S.Ct., at 1019. In Sniadach, while it was true that the inability to garnish wages could leave the creditor uncompensated, if the debtor proved judgment proof, this was a risk the creditor assumed at the outset by being unsecured. Further, notice to the debtor of the pendency of the lawsuit is not likely to increase the risk that the debtor will prove to be judgment proof, since the debtor is not likely to leave his job due to the pendency of the suit. Likewise, the risk to the creditor of the debtor's drawing on his wages between the time of notice and the availability of a court hearing on the claim in no way interferes with the creditor's claim to the future flow of earnings after the hearing has been held. The garnishor, therefore, asserts not only the right to take the debtor's wages, but to take them before the controversy has been resolved. In Bell, the risk to the State of supplying notice to the licensee and of leaving the person in possession of the license until the hearing, was not at issue, since the state statute provided for notice and a presuspension hearing. There were few costs attached to expanding the scope of that hearing to include a probable-cause determination of fault.
115
With the above principles in hand, is the tenured civil-service employee entitled to a pretermination hearing, such as that provided by the Lloyd-La Follette Act?
116
There would be a problem of uncompensated loss to the Government, if the employee were to draw wages without working for the period between notice of a discharge and a preliminary hearing. Yet, if the charge against the employee did not indicate that the employee should be excluded from the workplace pending this hearing, some work could be exacted by the Government in exchange for its payment of salary. One must also consider another type of cost to the Government if preseparation hearings were provided—the necessity of keeping a person on the scene who might injure the public interest through poor service or might create an uproar at the workplace. However, suspension with pay would obviate this problem.
117
On the employee's side of the ledger, there is the danger of mistaken termination. Discharge decisions, made ex parte, may be reversed after full hearing. One study reveals that in fiscal year 1970, in agencies where full pretermination hearings were routine, employees contesting removal were successful almost 20% of the time. Merrill, Procedures for Adverse Actions Against Federal Employees, 59 Va.L.Rev. 196, 204 n. 35 (1973).
118
The impact on the employee of being without a job pending a full hearing is likely to be considerable because '(m)ore than 75 percent of actions contested within employing agencies require longer to decide than the 60 days prescribed by (Civil Service) Commission regulations. Over 50 percent take more than three months, and five percent are in process for longer than a year.' Id., at 206. Of course, the discharged civil servant, deprived of his source of income, can seek employment in the private sector and so cut or minimize his losses, opportunities largely unavailable to the welfare recipient in Goldberg or the debtor in Sniadach. Nonetheless, the employee may not be able to get a satisfactory position in the private sector, particularly a tenured one, and his marketability may be under a cloud due to the circumstances of his dismissal. See Lefkowitz v. Turley, 414 U.S. 70, 83—84, 94 S.Ct. 316, 325, 38 L.Ed.2d 274 (1973). Cf. Board of Regents v. Roth, 408 U.S., at 574 n. 13, 92 S.Ct., at 2707. It should be stressed that if such employment is unavailable the Government may truly be pursuing a partially counter-productive policy by forcing the employee onto the welfare rolls.
119
Finally, by providing a pretermination hearing, the Government runs no risk through providing notice, since the employee cannot run away with his job, and can surely minimize its risk of uncompensated loss by eliminating the provision for personal appearances and setting early dates for filing written objections. Altogether different considerations as to notice might be applicable, if the employee would be likely to do damage to the Government if provided with such notice. See 5 CFR § 752.202(c)(2) (1972), providing that an agency may dispense with the 30-day notice requirement '(w)hen there is reasonable cause to believe an employee is guilty of a crime for which a sentence of imprisonment can be imposed.'
120
Perhaps partly on the basis of some of these constitutional considerations, Congress has provided for pretermination hearings. Certainly the debate on the Lloyd-La Follette Act indicates that constitutional considerations were present in the minds of Congressmen speaking in favor of the legislation.11 In any event, I conclude that the statute and regulations to the extent they require 30 days' advance notice and a right to make a written presentation satisfy minimum constitutional requirements.
IV
121
Appellee in this case not only asserts that he is entitled to a hearing at some time before his property interest is finally terminated, and to a pretermination hearing of some kind before his wages are provisionally cut off, which are currently provided to him, but also argues that he must be furnished certain procedures at this preliminary hearing not provided by Congress: an impartial hearing examiner, an opportunity to present witnesses, and the right to engage in cross-examination. In other words, his claim is not only to a pretermination hearing, but one in which full trial-type procedures are available.
A.
122
The facts in this case show that the Regional Director, Verduin, who charged appellee Kennedy with making slanderous statements about him as to an alleged bribe offer, also ruled in the preliminary hearing that Kennedy should be terminated.
123
The 'Notification of Proposed Adverse Action,' signed by Verduin, charged that appellee had 'made statements knowingly against officials of this agency which could harm or destroy their authority, official standing or reputation' and that appellee had engaged 'in a course of conduct intended to produce public notoriety and conclusions on the part of the public, without any proof whatsoever and in reckless disregard of the actual facts known to you (appellee), or reasonably discoverable by you (appellee), that officials of this agency had committed or attempted to commit acts of misfeasance, non-feasance and malfeasance.' Facts were marshaled to support the charges; that appellee had spoken at a union meeting 'to the effect that (Verduin and his assistant) had attempted to bribe Mr. James White Eagle Stewart by offering him a $100,000 grant of OEO funds if he would sign a statement against you (appellee) and another employee,' and that appellee had spoken of the bribe to a newspaper reporter and to a radio station.
124
After appellee had received this notice, he made no response to the merits of the charges, but instead wrote to Verduin requesting that he was entitled to certain procedural rights at the hearing, one of which was to have 'a genuinely impartial hearing officer,' thus furnishing Verduin with the opportunity to recuse himself and provide an alternative hearing examiner. This was not done.
125
In considering appellee's claim to have an impartial hearing examiner, we might start with a first principle: '(N)o man shall be a judge in his own cause.' Bonham's Case, 8 Co. 114a, 118a, 77 Eng.Rep. 646, 652 (1610). Verduin's reputation was certainly at stake in the charges brought against Kennedy. Indeed, the heart of the charge was that Kennedy had spoken of Verduin in reckless disregard of the truth. That Verduin almost seemed to be stating a libel complaint against Kennedy under New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed. 686 (1964), dramatizes the personal conflict which precipitated the proposed termination.
126
Our decisions have stressed, in situations analogous to the one faced here, that the right to an impartial decision-maker is required by due process. The Court has held that those with a substantial pecuniary interest in legal proceedings should not adjudicate these disputes. Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927); Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972). The Court has observed that disqualification because of interest has been extended with equal force to administrative adjudications. Gibson v. Berryhill, 411 U.S. 564, 579, 93 S.Ct. 1689, 1698, 36 L.Ed.2d 488 (1973).
127
In the context of contempt before a judge, where a judge trying a defendant is the object of 'efforts to denounce, insult, and slander the court,' and 'marked personal feelings were present on both sides,' the Court has held that criminal contempt proceedings should be held before a judge other than the one reviled by the contemnor. Mayberry v. Pennsylvania, 400 U.S. 455, 462, 464, 91 S.Ct. 499, 503, 504, 27 L.Ed.2d 532 (1971). See In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948); cf. In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955).
128
We have also stressed the need for impartiality in administrative proceedings, stating in Goldberg v. Kelly, supra, that an 'impartial decision maker is essential,' 397 U.S., at 271, 90 S.Ct., at 1022. (Citations omitted.) To the same effect was Morrissey v. Brewer, 408 U.S. 471, 485—486, 92 S.Ct. 2593, 2602 2603, 33 L.Ed.2d 484 (1972), involving revocation of parole. In both Goldberg and Morrissey, this requirement was held to apply to pretermination hearings.12
129
It may be true that any hearing without an impartial hearing officer will reflect the bias of the adjudicator. The interest of the Government in not so providing would appear slim. Given the pretermination hearing, it would seem in the Government's interest to avoid lengthy appeals occasioned by biased initial judgments, and it would be reasonable to expect more correct decisions at the initial stage at little cost if the hearing officer is impartial.
130
My view is a narrower one, however. Fairness and accuracy are not always threatened simply because the hearing examiner is the supervisor of an employee, or, as in this case, the Regional Director over many employees, including appellee. But here the hearing official was the object of slander that was the basis for the employee's proposed discharge. See Mayberry v. Pennsylvania, supra. In ruling that the employee was to be terminated, the hearing examiner's own reputation, as well as the efficiency of the service, was at stake; and although Mr. Verduin may have succeeded, in fact, in disassociating his own personal feelings from his decision as to the interests of OEO, the risk and the appearance that this was not the case were too great to tolerate. In such situations the official normally charged with the discharge decision need only recuse and transfer the file to a person qualified to make the initial decision. We need not hold that the Lloyd-La Follette Act is unconstitutional for its lack of provision for an impartial hearing examiner. Congress is silent on the matter. We would rather assume, because of the constitutional problems in not so providing, that, if faced with the question (at least on the facts of this case) Congress would have so provided. Volkswagenwerk Aktiengesellschaft v. FMC, 390 U.S. 261, 272, 88 S.Ct. 929, 935, 19 L.Ed.2d 1090 (1968). 'Where administrative action has raised serious constitutional problems, the Court has assumed that Congress or the President intended to afford those affected by the action the traditional safeguards of due process.' Greene v. McElroy, 360 U.S., at 507, 79 S.Ct., at 1419. (citations omitted).13
B
131
Appellee also claims a right to a full trial-type hearing at the pretermination stage, particularly asserting that he is denied due process, if not given the opportunity to present and cross-examine witnesses.
132
While fully realizing the value of a full trial-type hearing as a method for ultimate resolution of the facts, see id., 360 U.S., at 496—497, 79 S.Ct., at 1413—1414, the pretermination hearing is not held for the purpose of making such an ultimate determination. This is provided for through the appeal procedure where the employee is afforded the procedural rights he now seeks at an earlier stage of the proceedings. The function of the pretermination hearing is, and no more is required by due process, to make a probable-cause determination as to whether the charges brought against the employee are or are not true. Where the Court has held that pretermination hearings are required, in past decisions, it has spoken sparingly of the procedures to be required. Sniadach was silent on the matter, and Fuentes merely required something more than an ex parte proceeding before a court clerk. In Bell, the Court held that the hearing must involve a probable-cause determination as to the fault of the licensee, and 'need not take the form of a full adjudication of the question of liability,' realizing that '(a) procedural rule that may satisfy due process in one context may not necessarily satisfy due process in every case.' 402 U.S., at 540, 91 S.Ct., at 1590. Thus, 'procedural due process (was to) be satisfied by an inquiry limited to the determination whether there is a reasonable possibility of judgments in the amounts claimed being rendered against the licensee.' Ibid. We think the clear implication of Bell to be that 'full adjudication,' including presentation of witnesses and cross-examination, need not be provided in every case where a pretermination hearing of some kind is required by due process or provided by the statute.
133
In Goldberg v. Kelly, the Court struck a different note on procedures. Although stating that the only function of the pretermination hearing was 'to produce an initial determination of the welfare department's grounds for discontinuance of payments,' and seemingly adopting a probable-cause standard, the Court required cross-examination of witnesses relied upon by the department. The Court was careful to observe, however, that these procedural rules were 'tailored to the capacities and circumstances of those who are to be heard.' 397 U.S., at 267, 268 269, 90 S.Ct., at 1021. The decision to cut off AFDC welfare payments leaves the recipient literally without any means to survive or support a family. While this level of deprivation may not be insisted upon as a necessary condition for requiring some kind of pretermination hearing, it may well be decisive in requiring the Government to provide specific procedures at the pretermination stage. The greater the level of deprivation which may flow from a decision, the less one may tolerate the risk of a mistaken decision, cf. Morrissey v. Brewer, supra, and thus the Court in Goldberg, while maintaining that the pretermination hearing was in the nature of a probable-cause determination, was less willing to allow a margin of error as to probable cause. Rules of procedure are often shaped by the risk of making an erroneous determination. See In re Winship, 397 U.S. 358, 368, 90 S.Ct. 1068, 1074, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring). Indeed, all that was specifically not required in Goldberg was a complete record and a comprehensive opinion. 397 U.S., at 267, 90 S.Ct., at 1020.
134
In this case, the employee is not totally without prospect for some form of support during the period between the pretermination and final hearing on appeal, though it may not be equivalent in earnings or tenure to his prior competitive service position. Although the employee may not be entitled to unemployment compensation, see Christian v. New York Dept. of Labor, 414 U.S. 614, 94 S.Ct. 747, 39 L.Ed.2d 38 (1974), since he has been terminated for cause he may get some form of employment in the private sector, and, if necessary, may draw on the welfare system in the interim. Given this basic floor of need, which the system provides, we should not hold that procedural due process is so inflexible as to require the Court to hold that the procedural protections, of a written statement and oral presentation to an impartial hearing examiner provided by regulation, are insufficient. The Court stated in Richardson v. Wright, 405 U.S. 208, 92 S.Ct. 788, 31 L.Ed.2d 151 (1972), that new regulations of the Department of Health, Education, and Welfare, required that Social Security disability payments were not to be suspended in a pretermination hearing without 'notice of a proposed suspension and the reasons therefor, plus an opportunity to submit rebuttal evidence,' but could be without an oral presentation, since '(i)n the context of a comprehensive complex administrative program, the administrative process must have a reasonable opportunity to evolve procedures to meet needs as they arise.' Cf. Torres v. New York State Department of Labor, 333 F.Supp. 341 (SDNY 1971), aff'd, 405 U.S. 949, 92 S.Ct. 1185, 31 L.Ed.2d 228 (1972). Necessarily, to some extent, the Court must share with Congress, in an area where one is called upon to judge the efficacy of particular procedures, a role in defining constitutional requirements, and Congress explicitly left it to the discretion of the agency as to whether such procedures were required. I would not upset that judgment in this case.
135
In accord with these views, I would affirm the judgment of the three-judge court, ordering reinstatement and backpay, due to the failure to provide an impartial hearing officer at the pretermination hearing. I would reverse that part of the court's order enjoining the application of the statute on First Amendment vagueness and overbreadth grounds.
136
Mr. Justice DOUGLAS, dissenting.
137
The federal bureaucracy controls a vast conglomerate of people who walk more and more submissively to the dictates of their superiors. Our federal employees have lost many important political rights. CSC v. Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796, held that they could be barred from taking 'an active part in political management or in political campaigns,' a restriction that some of us thought to be unconstitutional, id., at 595 et seq., 93 S.Ct., at 2905 (Douglas, J., dissenting). Today's decision deprives them of other important First Amendment rights.
138
Heretofore, as my Brother MARSHALL has shown, we have insisted that before a vital stake of the individual in society is destroyed by government he be given a hearing on the merits of the government's claim. Among these personal and vital stakes are welfare benefits, Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287; the weekly wage of a worker, Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349; a person's driver's license, Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90; repossession of household goods, Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556; the position of a tenured professor in a state educational institution, Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548; revocation of parole, Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484.
139
There is more than employment and a job at issue in this case. The stake of the federal employee is not only in a livelihood, but in his right to speak guaranteed by the First Amendment. He is charged with having stated that his superior and the superior's assistant had attempted to bribe a representative of a community action organization with whom the agency (OEO) had dealings. He is charged with having stated that those men offered a bribe of $100,000 in OEO funds to that organization if its representative would sign a statement against appellee and another OEO employee. This statement in my view was on a subject in the public domain. We all know merely by living in Washington, D.C., the storms that have swept through that agency and its branches. It has dealt with inflammatory problems in the solution of which inflammatory utterances are often made. I realize that it is the tradition of the Court to 'balance' the right of free speech against other governmental interests and to sustain the First Amendment right only when the Court deems that in a given situation its importance outweighs competing interests. That was the approach in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811, where the Court deemed what a teacher said against the school board was more important than the board's sensibilities. The Court, however, reserved decision where the comments of an employee involved 'either discipline by immediate superiors or harmony among coworkers,' id., at 570, 88 S.Ct. at 1735. That is one reason why Mr. Justice Black and I concurred in the result citing, inter alia, our opinion in Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456. Mr. Justice Black said that the 'balancing' or 'weighing' doctrine 'plainly encourages and actually invites judges to choose for themselves between conflicting values, even where, as in the First Amendment, the Founders made a choice of values, one of which is a free press. Though the Constitution requires that judges swear to obey and enforce it, it is not altogether strange that all judges are not always dead set against constitutional interpretations that expand their powers, and that when power is once claimed by some, others are loath to give it up,' id., at 399—400, 87 S.Ct. at 548.
140
The fact that appellee in the present case inveighed against his superior is irrelevant. The matter on which he spoke was in the public domain. His speaking may well have aroused such animosity in his superior as to disqualify him from being in charge of disciplinary proceedings;1 and conceivably it could cause disharmony among workers. And these consequences are quite antagonistic to the image which agencies have built. Their dominant characteristic is the application of Peter's Inversion. See L. Peter & R. Hull, The Peter Principle 24—26 (Bantam ed. 1970). In a few words Peter's Inversion marks the incompetent cadre's interest in an employee's input, not his output.2
141
His input reflects his attitude toward the cadre, and toward his work. A pleasant manner, promotion of staff harmony, servility to the cadre, and promptness, civility, and submissiveness are what count. The result is a great leveling of employees. They hear the beat of only one drum and march to it. These days employers have psychological tests by which they can separate the ingenious, offbeat character who may make trouble from the more subservient type. It is, of course, none of a court's problem what the employment policies may be.3 But once an employee speaks out on a public issue and is punished for it, we have a justiciable issue. Appellee is in my view being penalized by the Federal Government for exercising his right to speak out. The excuse or pretense is an Act of Congress and an agency's regulations promulgated under it in the teeth of the First Amendment: 'Congress shall make no law . . . abridging the freedom of speech, or of the press . . ..' Losing one's job with the Federal Government because of one's discussion of an issue in the public domain is certainly an abridgment of speech.
142
Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN concur, dissenting.
143
I would affirm the judgment of the District Court, both in its holding that a tenured Government employee must be afforded an evidentiary hearing prior to a dismissal for cause and in its decision that 5 U.S.C. § 7501 is unconstitutionally vague and overbroad as a regulation of employees' speech.
144
* The first issue in this case is a relatively narrow one whether a federal employee in the competitive service, entitled by statute to serve in his job without fear of dismissal except for cause,1 must be given an evidentiary hearing before he is discharged. We are hardly writing on a clean slate in this area. In just the last five years, the Court has held that such a hearing must be afforded before wages can be garnished, Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); welfare benefits terminated, Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); a driver's license revoked, Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); consumer goods repossessed, Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); parole revoked, Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); or a tenured college professor fired by a public educational institution, Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).
145
In the Roth and Sindermann cases, Mr. Justice STEWART established the framework for analysis to determine in what circumstances the Due Process Clause demands a hearing. He observed that although due process is a flexible concept, it is not unlimited in application. 'The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property.' Roth, supra, 408 U.S. at 569, 92 S.Ct. at 2705. Thus the first issue to be decided is whether appellee had an interest in his tenured Government employment such that his discharge amounts to a deprivation of liberty or property.
146
The decisions of this Court have given constitutional recognition to the fact that in our complex modern society, wealth and property take many forms.2 We have said that property interests requiring constitutional protection 'extend well beyond actual ownership of real estate, chattels, or money.' Roth, supra, at 572, 92 S.Ct. at 2706. They extend as well to 'safeguard . . . the security of interests that a person has already acquired in specific benefits.' Id., at 576, 92 S.Ct., at 2708. The test for whether a protected interest has been infringed reflects this broad concept of 'property':
147
'To have a property interest in a benefit, a person . . . must . . . have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined.' Id., at 577, 92 S.Ct. at 2709.
148
Accordingly, in Goldberg v. Kelly, supra, the Court found that public assistance recipients had such a claim of entitlement to welfare benefits grounded in the statute defining eligibility. In Bell v. Burson, supra the Court held that a driver's license, once issued, becomes an important property interest because its 'continued possession may become essential in the pursuit of a livelihood.' 402 U.S., at 539, 91 S.Ct., at 1589. More to the point, in Roth the Court surveyed the constitutional restraints applicable in the area of public employment:
149
'(T)he Court has held that a public college professor dismissed from an office held under tenure provisions, Slochower v. Board of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692, and college professors and staff members dismissed during the terms of their contracts, Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216, have interests in continued employment that are safeguarded by due process.' 408 U.S., at 576—577, 92 S.Ct., at 2709.
150
See also Connell v. Higginbotham, 403 U.S. 207, 91 S.Ct. 1772, 29 L.Ed.2d 418 (1971). In Perry v. Sindermann, supra, we found a property interest in the implied tenure policy of a state university.
151
We have already determined that a legitimate claim of entitlement to continued employment absent 'sufficient cause' is a property interest requiring the protections of procedural due process.3 Thus, there can be little doubt that appellee's tenured Government employment, from which he could not legally be dismissed except for cause, must also be a 'property' interest for the purposes of the Fifth Amendment. The job security appellee enjoyed is clearly one of 'those claims upon which people rely in their daily lives.' Roth, supra, 408 U.S. at 577, 92 S.Ct. at 2709. And appellee's interest in continued public employment encompassed more than just the periodic accrual of wages. His dismissal also affects his valuable statutory entitlements to retirement credits and benefits, 5 U.S.C. §§ 8301, 8311—8322, 8331 8348; periodic salary increases, 5 U.S.C. § 5335; and life and health insurance, 5 U.S.C. §§ 8701—8716, 8901—8913 (1970 ed. and Supp. II).
152
We are in agreement that appellee does have a claim of entitlement to his Government job, absent proof of specified misconduct. Mr. JUSTICE REHNQUIST explains, however, that this claim is founded only in statute, and that the statute which guarantees tenure also provides that a hearing is not required before discharge. He concludes that 'the property interest which appellee had in his employment was itself conditioned by the procedural limitations which had accompanied the grant of that interest,' ante, at 155, wryly observing that 'a litigant in the position of appellee must take the bitter with the sweet,' ante, at 154.
153
Courts once considered procedural due process protections inapplicable to welfare on much the same theory—that 'in accepting charity, the appellant has consented to the provisions of the law under which charity is bestowed.'4 Obviously, this Court rejected that reasoning in Goldberg, supra, where we held that conditions under which public assistance was afforded, which did not include a pretermination hearing, were violative of due process.5 In Sindermann, supra, the Court held that the Constitution required a hearing before dismissal even where the implicit grant of tenure did not encompass the right to such a hearing. In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the Court held that although the limited grant of liberty afforded by parole was conditioned by statute on the possibility of revocation without a prior evidentiary hearing, such a hearing was constitutionally required. In Bell v. Burson, supra, the state statute under which drivers' licenses were issued provided for the suspension of an uninsured motorist's license without a prior hearing. The Court nonetheless held that a hearing was required before the suspension could be effected. In none of these cases did the Court consider a statutory procedure to be an inherent limitation on the statutorily created liberty or property interest.6 Rather, once such an interest was found, the Court determined whether greater procedural protections were required by the Due Process Clause than were accorded by the statute.
154
Applying that analysis here requires us to find that although appellee's property interest arose from statute, the deprivation of his claim of entitlement to continued employment would have to meet minimum standards of procedural due process regardless of the discharge procedures provided by the statute. Accordingly, a majority of the Court rejects Mr. Justice REHNQUIST's argument that because appellee's entitlement arose from statute, it could be conditioned on a statutory limitation of procedural due process protections, an approach which would render such protection inapplicable to the deprivation of any statutory benefit—any 'privilege' extended by Government—where a statute prescribed a termination procedure, no matter how arbitrary or unfair. It would amount to nothing less than a return, albeit in somewhat different verbal garb, to the thoroughly discredited distinction between rights and privileges which once seemed to govern the applicability of procedural due process.7
B
155
We have repeatedly observed that due process requires that a hearing be held 'at a meaningful time and in a meaningful manner,' Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965) but it remains for us to give content to that general principle in this case by balancing the Government's asserted interests against those of the discharged employee. Goldberg v. Kelly, 397 U.S., at 263, 90 S.Ct., at 1018; see Cafeteria and Restaurant Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961).
156
The interests of a public employee in a secure Government job are as weighty as other interests which we have found to require at least the rudimentary protection of an evidentiary hearing as a precondition to termination.
157
'This Court has often had occasion to note that the denial of public employment is a serious blow to any citizen. . . . Employment is one of the greatest, if not the greatest, benefits that governments offer in modern-day life.' Roth, 408 U.S., at 589, 92 S.Ct., at 2715 (Marshall, J., dissenting).
158
See Perry v. Sindermann, supra; Connell v. Higginbotham, 403 U.S. 207, 91 S.Ct. 1772, 29 L.Ed.2d 418 (1971); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Cramp v. Board of Public Instruction, 368 U.S. 278, 288, 82 S.Ct. 275, 281, 7 L.Ed.2d 285 (1961); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 185, 71 S.Ct. 624, 655, 95 L.Ed. 817 (1951) (Jackson, J., concurring); United States v. Lovett, 328 U.S. 303, 316—317, 66 S.Ct. 1073, 1079—1080, 90 L.Ed. 1252 (1946). The Court has recognized the vital importance of employment in related contexts. In Sniadach v. Family Finance Corp., the Court expressed its particular concern that 'garnishment (of wages) often meant the loss of a job,' 395 U.S., at 340, 89 S.Ct., at 1822, and in Bell v. Burson, supra, we relied heavily on the fact that a driver's license may be 'essential in the pursuit of a livelihood,' 402 U.S., at 539, 91 S.Ct., at 1589. In Greene v. McElroy, 360 U.S. 474, 508, 79 S.Ct. 1400, 1420, 3 L.Ed.2d 1377 (1959), the Court construed federal security clearance regulations to avoid the constitutional issues that would be presented if the petitioner were deprived 'of his job in a proceeding in which he was not afforded the safeguards of (procedural due process).' See id., at 506—507, 79 S.Ct., at 1418—1419; Willner v. Committee on Character, 373 U.S. 96, 103—104, 83 S.Ct. 1175, 1180—1181, 10 L.Ed.2d 224 (1963).
159
An exhaustive study by the United States Administrative Conference of the problem of agency dismissals led the author of the Conference's report to observe:
160
'One cannot escape the conclusion, however, that the government employee who is removed from his job loses something of tremendous value that in a market of declining demand for skills may not be replaceable.'8
And the report also observes:
161
'(O)ne must acknowledge what seems to be an accepted, if regrettable, fact of life: Removal from government employment for cause carries a stigma that is probably impossible to outlive. Agency personnel officers are generally prepared to concede . . . that it is difficult for the fired government worker to find employment in the private sector.'9
162
Dismissal from public employment for cause may also, therefore, implicate liberty interests in imposing on the discharged employee a stigma of incompetence or wrongdoing that forecloses 'his freedom to take advantage of other employment opportunities.' Roth, supra, 408 U.S., at 573, 92 S.Ct., at 2707; see Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971).
163
Given the importance of the interest at stake, the discharged employee should be afforded an opportunity to test the strength of the evidence of his misconduct by confronting and cross-examining adverse witnesses and by presenting witnesses in his own behalf, whenever there are substantial disputes in testimonial evidence. See Morrissey v. Brewer, 408 U.S., at 487, 92 S.Ct., at 2603. A dismissal for cause often involves disputed questions of fact raised by accusations of misconduct. Mistakes of identity, distortions caused by the failure of information sources, faulty perceptions or cloudy memories, as well as fabrications born of personal antagonisms are among the factors which may undermine the accuracy of the factual determinations upon which dismissals are based. The possibility of error is not insignificant. Almost a fourth of all appeals from adverse agency actions result in reversal.10
164
In our system of justice, the right of confrontation provides the crucible for testing the truth of accusations such as those leveled by appellee's superior and strenuously denied by appellee. 'In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.' Goldberg v. Kelly, 397 U.S., at 269, 90 S.Ct., at 1021 (citations omitted).11 The Goldberg Court's citation to a well-known passage from Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959), is equally applicable to a dismissal from public employment for cause as to a termination of welfare benefits.
165
"Certain principles have remained immutable in our jurisprudence. One of these is that where government action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination." Id., (at 496—497, 79 S.Ct., at 1413, quoted in Goldberg v. Kelly, supra, 397 U.S., at 270, 90 S.Ct., at 1021.
166
See also Chambers v. Mississippi, 410 U.S. 284, 295—298, 93 S.Ct. 1038, 1045—1047, 35 L.Ed.2d 297 (1973); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).
167
This case and Goldberg involve the termination of income, whether in salary or public assistance payments, upon which the recipient may depend for basic sustenance. A person should not be deprived of his livelihood 'in a proceeding in which he was not afforded the safeguards of confrontation and cross-examination.' Greene, supra, 360 U.S., at 508, 79 S.Ct., at 1420; see Jenkins v. McKeithen, 395 U.S. 411, 423—429, 89 S.Ct. 1843, 1849—1853, 23 L.Ed.2d 404 (1969); Willner v. Committee on Character, 373 U.S., at 103, 83 S.Ct., at 1180. The stakes are just too high and the possibility of misjudgment too great to allow dismissal without giving the tenured public employee an opportunity to contest its basis and produce evidence in rebuttal. See Goldberg, supra, 397 U.S., at 266, 90 S.Ct., at 1019.
168
It also seems clear that for the hearing to be meaningful, the hearing officer must be independent and unbiased and his decision be entitled to some weight. We addressed the importance of this element of due process in Goldberg, supra, where we found the requirements of due process were not met by the review of a welfare termination decision by the caseworker who was, in effect, also the complainant. 397 U.S., at 271, 90 S.Ct., at 1022. In Morrissey v. Brewer, supra, we held that an independent decisionmaker must determine whether reasonable grounds exist for parole revocation because an 'officer directly involved in making recommendations cannot always have complete objectivity in evaluating them.' 408 U.S., at 486, 92 S.Ct., at 2602. The need for an independent decisionmaker is particularly crucial in the public employment context, where the reason for the challenged dismissal may well be related to some personal antagonism between the employee and his superior, as appears to be the case here.12 See Pickering v. Board of Education, 391 U.S. 563, 578—579, Appendix n. 2, 88 S.Ct. 1731, 1739—1740, 20 L.Ed.2d 811 (1968).
C
169
A discharged federal worker in the competitive service is, in fact, guaranteed a full evidentiary hearing before an impartial decisionmaker whose report is entitled to considerable weight.13 But the timing of the hearing is discretionary with the employing agency, see 5 CFR § 771.208(a) (1972), and in many agencies, such as the OEO, the hearing comes long after the employee has been removed from the Government service and payroll. In a sense, then, the real issue is not whether appellee must be accorded an evidentiary hearing, but only whether that hearing should have been afforded before his discharge became effective. Although the nature of the hearing required by due process is determined by a balancing process, that hearing must be held at a meaningful time. Accordingly, the Court has embraced a general presumption that one who is constitutionally entitled to a hearing should be heard before the deprivation of his liberty or property takes place. Thus, in Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), the Court observed that the fact that 'the hearing . . . is not fixed in form does not affect its root requirement that an individual be given an opportunity for a hearing before he is deprived of any significant property interest, except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.' Id., at 378—379, 91 S.Ct. at 786. (Emphasis in original.) In Bell v. Burson, supra, we held that 'except in emergency situations . . . due process requires that when a State seeks to terminate an (important property) interest . . . it must afford 'notice and opportunity for hearing . . .' before the termination becomes effective.' 402 U.S., at 542, 91 S.Ct., at 1591 (emphasis in original) (footnote omitted). In Goldberg v. Kelly, supra, the Court found that an evidentiary hearing held after the termination of welfare benefits was inadequate to satisfy constitutional requirements.14
170
Even if we accept appellants' assertion that a subsequent hearing affords the discharged employee an opportunity to clear his name,15 the worker still has a significant interest in retaining his job pending a full hearing.16 Almost a fourth of all appeals from agency dismissals result in a finding that the termination was illegal.17 And, the delay from discharge to ultimate vindication at a hearing on appeal is far from insubstantial. More than 75% of adverse personnel actions take more than two months to process; over half take more than three months and a not insignificant number take more than a year.18 The longer the period between the discharge and the hearing, the more devastating will be the impact of the loss of employment.
171
During the period of delay, the employee is off the Government payroll. His ability to secure other employment to tide himself over may be significantly hindered by the outstanding charges against him.19 Even aside from the stigma that attends a dismissal for cause, few employers will be willing to hire and train a new employee knowing that he will return to a former Government position as soon as an appeal is successful.20 And in many States, including Illinois, where appellee resides, a worker discharged for cause is not even eligible for unemployment compensation.21
172
Many workers, particularly those at the bottom of the pay scale, will suffer severe and painful economic dislocations from even a temporary loss of wages. Few public employees earn more than enough to pay their expenses from month to month. See Sampson v. Murray, 415 U.S. 61, 97, 94 S.Ct. 937, 956, 39 L.Ed.2d 166 (1974) (Marshall, J., dissenting). Like many of us, they may be required to meet substantial fixed costs on a regular basis and lack substantial savings to meet those expenses while not receiving a salary. The loss of income for even a few weeks may well impair their ability to provide the essentials of life—to buy food, meet mortgage or rent payments, or procure medical services. Ricucci v. United States, 425 F.2d 1252, 1256—1257, 192 Ct.Cl. 1, 9—11, (1970) (Skelton, J., concurring). The plight of a discharged employee may not be far different from that of the welfare recipient in Goldberg who, 'pending resolution of a controversy . . . may (be) deprive(d) . . . of the very means by which to live while he waits.' 397 U.S., at 264, 90 S.Ct., at 1018. Appellee, although earning an annual salary of $16,000 before his dismissal, far above the mean salary for federal employees,22 was nonetheless driven to the brink of financial ruin while he waited. He had to borrow money to support his family, his debts went unpaid, his family lost the protection of his health insurance and, finally, he was forced to apply for public assistance. App. 128 et seq. In this context justice delayed may well be justice denied.
173
To argue that a dismissal from tenured Government employment is not a serious enough deprivation to require a prior hearing because the discharged employee may draw on the welfare system in the interim, is to exhibit a gross insensitivity to the plight of these employees. First, it assumes that the discharged employee will be eligible for welfare. Often welfare applicants must be all but stripped of their worldly goods before being admitted to the welfare roles, hence it is likely that the employee will suffer considerable hardship before becoming eligible. He may be required not only to exhaust his savings but also to convert many of his assets into cash for support before being able to fall back on public assistance. He may have to give up his home or cherished personal possessions in order to become eligible. The argument also assumes all but instant eligibility which is, sadly, far from likely even when all the employee's other sources of support have been depleted. Moreover, rightly or wrongly, many people consider welfare degrading and would decline public assistance even when eligible. Finally, the level of subsistence provided by welfare is minimal, certainly less than one is apt to expect from steady employment. The substitution of a meager welfare grant for a regular paycheck may bring with it painful and irremediable personal as well as financial dislocations. A child's education may be interrupted, a family's home lost, a person's relationship with his friends and even his family may be irrevocably affected. The costs of being forced, even temporarily, onto the welfare rolls because of a wrongful discharge from tenured Government employment cannot be so easily discounted.
174
Nor does the availability of backpay upon an ultimate finding that the dismissal was improper alleviate the compelling nature of the employee's plight. Cf. Sampson v. Murray, —- U.S. -, 94 Cf. Sampson v. Murray, 415 U.S., at 97, 94 S.Ct., at 956 (Marshall, J., dissenting). In Sniadach v. Family Finance Corp., supra, the Court recognized that the enployee had an interest in the enjoyment of his wages as they accrued and noted that even a temporary loss of salary could put a wage earner below the poverty level or 'drive a wage-earning family to the wall.' 395 U.S., at 341—342, 89 S.Ct., at 1823. Thus, we held that a wage earner is entitled to a hearing prior to the garnishment of his wages even though he would ultimately get his frozen earnings back when and if he prevailed in a suit on the merits. See also id., at 343, 89 S.Ct. at 1823 (Harlan, J., concurring). And, in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), the Court held that due process required a hearing before a seizure of property by writ of replevin, observing:
175
'If the right to notice and a hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented. At a later hearing, an individual's possessions can be returned to him if they were unfairly or mistakenly taken in the first place. Damages may even be awarded to him for wrongful deprivation. But no later hearing and no damage award can undo the fact that the arbitrary taking that was subject to the right of procedural due process had already occurred. 'This Court has not . . . embraced the general proposition that a wrong may be done if it can be undone." Id., at 81—82, 92 S.Ct., at 1994.
176
The Fuentes Court, applying these considerations, albeit in dicta, observed that, '(i)n cases involving deprivations of other interests, such as government employment, the Court similarly has required an unusually important governmental need to outweigh the right to a prior hearing.' Id., at 91 n. 23, 92 S.Ct., at 2000.
177
The Court has recognized a number of instances where a vital governmental interest may outweigh the right to a prior hearing, including the need to seize property to 'collect the internal revenue of the United States, to meet the needs of a national war effort, to protect against the economic disaster of a bank failure, and to protect the public from misbranded drugs and contaminated foods.' Id., at 92, 92 S.Ct., at 2000 (footnotes omitted).23 Such a vital interest is clearly lacking here.
178
The Government's asserted interests in not affording a predismissal hearing are twofold. First, appellants argue that the delay in holding the hearing makes the functioning of the agency more efficient. We rejected a similar rationale in Goldberg, 397 U.S., at 266, 90 S.Ct., at 1019, and observed in Fuentes, supra:
179
'A prior hearing always imposes some costs in time, effort, and expense, and it is often more efficient to dispense with the opportunity for such a hearing. But these rather ordinary costs cannot outweigh the constitutional right. . . . Procedural due process is not intended to promote efficiency or accommodate all possible interests: it is intended to protect the particular interests of the person whose possessions (or property) are about to be taken.
180
". . . (T)he Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones." 407 U.S., at 90—91, n. 22, 92 S.Ct., at 1999 (citations omitted).
181
Moreover, the Government's interest in efficiency in this case is entirely unconvincing. The applicable statute does not prohibit prior hearings but rather makes them discretionary with the agency. Nine federal agencies, including the FCC, NLRB, HUD, HEW, the Department of Justice, and the Civil Service Commission itself, regularly accord evidentiary hearings prior to the dismissal of a tenured employee.24 The Administrative Conference of the United States, on the basis of its exhaustive study of federal agency proceedings for the dismissal of employees in the competitive service, strongly recommended that evidentiary hearings be held prior to discharge.25
182
The Administrative Conference found that the evidence, although inconclusive, indicates that the agencies that provided pretermination hearings closed adverse action proceedings more quickly than those which did not hold an evidentiary hearing until after the dismissal had been effected. It also found that the delays in closing cases involving hearings are typically caused not by the length of the hearings—almost all are completed within a day—but rather by scheduling difficulties. And those agencies which take three months or more to hold post-termination hearings have little incentive to decide dismissal cases more promptly, since the employee has already been discharged and he bears most of the costs of delay. If the hearing were required before termination, agencies would have a far greater incentive to decide these cases expeditiously.26 Finally, providing an evidentiary hearing before the discharge might well obviate the practical and constitutional need for a full post-termination proceeding.27
183
The Government also argues that if a supervisor were unable to effect an immediate removal of a troublesome employee from his agency, the discipline and efficiency of the whole office might be disrupted. Under the prevailing practice, an agency may not dismiss an employee until 30 days after he has received notice of the charges against him and has had an opportunity to reply. Thus, fellow workers and supervisors must now function with the threatened employee in their midst for at least a month, and there seems little reason why a hearing could not be held during that 30-day period.28 If the employee actually threatens to disrupt the operation of the office, he could be put on administrative leave or temporarily assigned to a less sensitive position pending his hearing, as currently provided for by regulation. 5 CFR § 752.202(d).
184
The only pretermination proceeding accorded appellee was a 'right of reply,' see 5 CFR § 752.202(b), but the 'right of reply' falls far short of being the meaningful hearing which, in my view, is constitutionally required. As the author of the Administrative Conference Report observed:
185
'In most agencies . . . an employee's right to reply simply means that he may meet informally with a representative of the agency and advance oral representations that he hopes will sway the final decision. He has no right at this stage to present witnesses or to confront and cross-examine the agency's witnesses.'29 (Footnotes omitted.)
186
The agency official before whom the employee appears need not be the decisionmaker; he need only be able to recommend a decision. Moreover, the hearing examiner or the person responsible for the decision to discharge the employee may well be the complainant or his direct subordinate. In the case before us, for example, the decision as to whether appellee should be discharged was made by the OEO Regional Director whom appellee had accused of misconduct. The Regional Director assembled the evidence against appellee, proposed the dismissal, then decided it should be effected; he acted as complaining witness, prosecutor, and judge. The meaningless bureaucratic paper shuffling afforded appellee before his discharge would surely not alone satisfy the stringent demands of due process when such an important interest is at stake.
187
The decisions of this Court compel the conclusion that a worker with a claim of entitlement to public employment absent specified cause has a property interest protected by the Due Process Clause and therefore the right to an evidentiary hearing before an impartial decisionmaker prior to dismissal. Accordingly, I would affirm the decision of the court below that appellee had been discharged in violation of his procedural due process rights.
II
188
The court below also held that the provision of the Lloyd-La Follette Act which authorizes dismissal of tenured Government employees for 'such cause as will promote the efficiency of the service' is unconstitutionally vague and overbroad.30
189
There is no dispute that the phrase "such cause as will promote the efficiency of the service' as a standard of employee job protection is without doubt intended to authorize dismissal for speech,' ante, at 160. The majority finds this permissible because in Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968), we observed 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 the regulation of the speech of the citizenry in general.' But, the majority seems to have ignored the passage in Pickering that directly precedes the quoted material:
190
'(T)o suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, . . . proceeds on a premise that has been unequivocally rejected in numerous prior decisions of this Court. E.g., Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952); Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967).' 391 U.S., at 568, 88 S.Ct., at 1734.
191
The importance of Government employees' being assured of their right to freely comment on the conduct of Government, to inform the public of abuses of power and of the misconduct of their superiors, must be self-evident in these times. In Pickering, this Court specifically upheld the right of a public employee to criticize the conduct of his superiors. Id., at 573 574, 88 S.Ct. at 1737—1738. In fact, it appears that one of the primary purposes of the LloydLa Follette Act was to protect such criticism from official retribution. Senator La Follette gave the following example of an abuse sought to be cured by the bill:
192
'The cause for (the employee's) dismissal was that he gave publicity to the insanitary conditions existing in some part of the post-office building in Chicago where the clerks were required to perform their services . . .
193
(H)e furnished some facts to the press of Chicago, and the publication was made of the conditions. They were simply horrible . . .. The public health officers of Chicago, as soon as their attention was called to the conditions, condemned the situation as they found it; and yet this young man, one of the brightest fellows I have met, was removed from the service because, he had given publicity to these outrageous conditions.' 48 Cong.Rec. 10731 (1912).
194
The 'efficiency of the service' standard would appear to bring within its reach, as permissible grounds for dismissal, even truthful criticism of an agency that in any way tends to disrupt its operation. One can be sure, for example, that the young man's criticism in Senator La Follette's example disrupted the operation of the Chicago Post Office. It seems clear that the standard could be construed to punish such protected speech.
195
The majority purports to solve this potential overbreadth problem merely by announcing that the standard in the Act 'excludes protected speech.' Nonetheless, it leaves the statutory standard intact and offers no guidance other than general observation as to what conduct is or is not punishable.31 The Court's answer is no answer at all. To accept this response is functionally to eliminate overbreadth from the First Amendment lexicon. No statute can reach and punish constitutionally protected speech. The majority has not given the statute a limiting construction but merely repeated the obvious.
196
The majority misunderstands the overbreadth principle which concerns the potential deterrent effect on constitutionally protected speech of a statute that is overbroad or vague on its face. The focus of the doctrine is not on the individual actor before the court but on others who may forgo protected activity rather than run afoul of the statute's proscriptions. Hence, the Court has reversed convictions where the subject speech could have been punished under a more narrowly drawn statute because the statute as drawn purported to cover, and might deter others from engaging in, protected speech. The Court explained this vagueness-overbreadth relationship in Keyishian v. Board of Regents, 385 U.S., at 603—604, 87 S.Ct., at 684:
197
'We emphasize once again that '(p)recision of regulation must be the touchstone in an area so closely touching our most precious freedoms,' N.A.A.C.P. v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405; '(f) or standards of permissible statutory vagueness are strict in the area of free expression. . . . Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.' Id., at 432—433, 83 S.Ct. 328—338. . . . When one must guess what conduct or utterances may lose him his position, one necessarily will 'steer far wider of the unlawful zone . . ..' Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460. For '(t)he threat of sanctions may deter . . . almost as potently as the actual application of sanctions.' N.A.A.C.P. v. Button, supra, 371 U.S. at 433, 83 S.Ct. at 338. The danger of that chilling effect upon the exercise of vital First Amendment rights must be guarded against by sensitive tools which clearly inform (public employees) what is being proscribed.'
198
By the uncertainty of its scope, the standard here creates the very danger of a chilling effect that concerned the Court in Keyishian.32 Employees are likely to limit their behavior to that which is unquestionably safe, for 'the threat of dismissal from public employment is . . . a potent means of inhibiting speech.' Pickering, 391 U.S., at 574, 88 S.Ct., at 1737. The dismissal standard hangs over their heads like a sword of Damocles, threatening them with dismissal for any speech that might impair the 'efficiency of the service.' That this Court will ultimately vindicate an employee if his speech is constitutionally protected is of little consequence—for the value of a sword of Damocles is that it hangs—not that it drops. For every employee who risks his job by testing the limits of the statute, many more will choose the cautious path and not speak at all.
199
The District Court found that '(b)ecause employees faced with the standard of 'such cause as will promote the efficiency of the service' can only guess as to what utterances may cost them their jobs, there can be little question that they will be deterred from exercising their First Amendment rights to the fullest extent.' I agree with that characterization of the effect of the standard and would, therefore, uphold the conclusion of the District Court that the statute is unconstitutionally vague and overbroad.
200
I respectfully dissent.
1
'Appellee' refers to appellee Wayne Kennedy, the named plaintiff in the original complaint. The participation of the 18 other named plaintiffs, who were added in the amended complaint, see n. 3, infra, appears to have been little more than nominal. The amended complaint alleged that the added named plaintiffs' exercise of their rights of free speech were chilled because they feared that any off-duty public comments made by them would constitute grounds for discharge or punishment under the Lloyd-La Follette Act. Two conclusory affidavits supporting that bare allegation (one signed by one of the added named plaintiffs, the other by the remaining 17) were filed in connection with plaintiffs' motion for summary judgment or temporary injunctive relief.
2
Appellee's response to the 'Notification of Proposed Adverse Action,' made through counsel, set forth briefly his position that the charges against him were unlawful under the Fifth and First Amendments. One of the three sentences devoted to his First Amendment claim noted parenthetically that the 'conversations . . . with union members and the public' for which he was being punished were 'inaccurately set forth in the adverse action.' Appellee's response did not explain in what respects the charges against him were inaccurate, nor did it offer any alternative version of the events described in the charges.
3
Appellee's original complaint, filed March 27, 1972, contained two counts. In the first count appellee sought, on behalf of himself and others similarly situated, to enjoin his removal pending a full, trial-type hearing before an impartial hearing officer. In the second count appellee sought to enjoin his removal for the exercise of his rights of free speech. The single-judge court referred the constitutional question presented in the first count to a three-judge court, and dismissed the second count pending appellee's exhaustion of available administrative remedies before the Civil Service Commission. Appellee then amended the second count of his complaint to allege, on behalf of himself, 18 added named plaintiffs, see n. 1, supra, and others similarly situated, that the Lloyd-La Follette Act's removal standard was unconstitutionally vague and overbroad and violated the plaintiffs' First Amendment rights.
4
The court ordered appellee's reinstatement but deferred determination whether the suit was maintainable as a class action. Appellee's appeal to the Civil Service Commission was first delayed as a result of the pendency of this suit, then 'terminated' because of appellee's reinstatement following the decision of the District Court.
5
5 CFR §§ 735.201a, 735.209. Section 735.201a provides:
'An employee shall avoid any action, whether or not specifically prohibited by this subpart, which might result in, or create the appearance of:
'(a) Using public office for private gain;
'(b) Giving preferential treatment to any person;
'(c) Impeding Government efficiency or economy;
'(d) Losing complete independence or impartiality;
'(e) Making a Government decision outside official channels; or
'(f) Affecting adversely the confidence of and public in the integrity of the Government.'
Section 735.209 provides:
'An employee shall not engage in criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct, or other conduct prejudicial to the Government.'
6
45 CFR §§ 1015.735—1, 1015.735—24. Section 1015.735—1 provides:
'The purpose of this part is to guide OEO employees toward maintaining the high standard of integrity expected of all Government employees. It is intended to require that employees avoid any action which might result in, or create the appearance of:
'(a) Using public office for private gain;
'(b) Giving preferential treatment to any organization or person;
'(c) Impeding Government efficiency or economy;
'(d) Marking a Government decision outside official channels;
'(e) Losing complete independence or impartiality of action; or
'(f) Affecting adversely the confidence of the public in the integrity of OEO and the Government.'
Section 1015.735—24 provides:
'No employee shall engage in criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct or other conduct prejudicial to the Government.'
7
45 CFR § 1015.735—4. Section 1015.735—4 provides:
'The Office of General Counsel of OEO is available to advise on the interpretation of the provisions of this part and the other laws and regulations relevant to the conduct of OEO employees. The General Counsel is designated as OEO counselor for this purpose.'
8
The Civil Service Commission regulations governing procedures for adverse actions implement, in addition to the Lloyd-La Follette Act, the Veterans' Preference Act of 1944 and Executive Order No. 11491. The Veterans' Preference Act, Act of June 27, 1944, c. 287, 58 Stat. 387, imposed procedural requirements for processing adverse actions in action to those imposed by the Lloyd-La Follette Act. Those additional requirements include an opportunity for the employee to respond orally or in writing to the charges on which his dismissal is based; the Veterans' Preference Act also authorizes Civil Service Commission appeals from adverse agency decisions. See 5 U.S.C. § 7701. The Act itself applies only to veterans of military service, 5 U.S.C. §§ 2108, 7511, but Executive Order No. 11491, printed in note following 5 U.S.C. § 7301, extends the Act's protections to all nonpreference eligible employees in the classified service.
9
5 CFR § 752.202(a). Section 752.202(a) provides:
'(a) Notice of proposed adverse action. (1) Except as provided in paragraph (c) of this section, an employee against whom adverse action is sought is entitled to at least 30 full days' advance written notice stating any and all reasons, specifically and in detail, for the proposed action.
'(2) Subject to the provisions of subparagraph (3) of this paragraph, the material on which the notice is based and which is relied on to support the reasons in that notice, including statements of witnesses, documents, and investigative reports or extracts therefrom, shall be assembled and made available to the employee for his review. The notice shall inform the employee where he may review that material.
'(3) Material which cannot be disclosed to the employee, or to his designated physician under § 294.401 of this chapter, may not be used by an agency to support the reasons in the notice.'
10
5 CFR § 752.202(b). Section 752.202(b) provides:
'(b) Employee's answer. Except as provided in paragraph (c) of this section, an employee is entitled to a reasonable time for answering a notice of proposed adverse action and for furnishing affidavits in support of his answer. The time to be allowed depends on the facts and circumstances of the case, and shall be sufficient to afford the employee ample opportunity to review the material relied on by the agency to support the reasons in the notice and to prepare an answer and secure affidavits. The agency shall provide the employee a reasonable amount of official time for these purposes if he is otherwise in an active duty status. If the employee answers, the agency shall consider his answer in reaching its decision. The employee is entitled to answer personally, or in writing, or both personally and in writing. The right to answer personally includes the right to answer orally in person by being given a reasonable opportunity to make any representations which the employee believes might sway the final decision on his case, but does not include the right to a trial or formal hearing with examination of witnesses. When the employee requests an opportunity to answer personally, the agency shall make a representative or representatives available to hear his answer. The representative or representatives designated to hear the answer shall be persons who have authority either to make a final decision on the proposed adverse action or to recommend what final decision should be made.'
11
5 CFR § 752.202(f). Section 752.202(f) provides:
'(f) Notice of adverse decision. The employee is entitled to notice of the agency's decision at the earliest practicable date. The agency shall deliver the notice of decision to the employee at or before the time the action will be made effective. The notice shall be in writing, be dated, and inform the employee:
'(1) Which of the reasons in the notice of proposed adverse action have been found sustained and which have been found not sustained;
'(2) Of his right of appeal to the appropriate office of the Commission;
'(3) Of any right of appeal to the agency under Subpart B of Part 771 of this chapter, including the person with whom, or the office with which, such an appeal shall be filed;
'(4) Of the time limit for appealing as provided in § 752.204;
'(5) Of the restrictions on the use of appeal rights as provided in § 752.205; and
'(6) Where he may obtain information on how to pursue an appeal.'
12
5 CFR §§ 771.205, 771.208. Section 771.205 provides.
'An employee is entitled to appeal under the agency appeals system from the original decision. The agency shall accept and process a properly filed appeal in accordance with its appeals system.
Section 771.208 provides:
'(a) Entitlement. Except as provided in paragraph (b) of this section, an employee is entitled to a hearing on his appeal before an examiner. The employee is entitled to appear at the hearing personally or through or accompanied by his representative. The hearing may precede either the original decision or the appellate decision, at the agency's option. Only one hearing shall be held unless the agency determines that unusual circumstances require a second hearing.
'(b) Denial of hearing. The agency may deny an employee a hearing on his appeal only (1) when a hearing is impracticable by reason of unusual location or other extraordinary circumstance, or (2) when the employee failed to request a hearing offered before the original decision.
'(c) Notice. The agency shall notify an employee in writing before the original decision or before the appellate decision of (1) his right to a hearing, or (2) the reasons for the denial of a hearing.'
13
5 CFR § 752.203. Section 752.203 provides:
'An employee is entitled to appeal to the Commission from an adverse action covered by this subpart. The appeal shall be in writing and shall set forth the employee's reasons for contesting the adverse action, with such offer of proof and pertinent documents as he is about to submit.'
Appeals to both the discharging agency and the Commission from an original adverse action will not be processed concurrently, 5 CFR § 752.205(a), and a direct appeal to the Commission from an initial removal decision constitutes a waiver of appeal rights within the employing agency. 5 CFR § 752.205(b). However, if the employee first appeals within the employing agency, he is entitled, if necessary, to an appeal to the Commission. 5 CFR § 752.205(c).
14
5 CFR §§ 771.208, 771.210—771.212, 772.305(c). Sections 771.210—771.212 govern the conduct of hearings by the discharging agency. Those sections provide:
§ 771.210 Conduct of hearing.
'(a) The hearing is not open to the public or the press. Except as provided in paragraph (h) of this section, attendance at a hearing is limited to persons determined by the examiner to have a direct connection with the appeal.
'(b) The hearing is conducted so as to bring out pertinent facts, including the production of pertinent records.
'(c) Rules of evidence are not applied strictly, but the examiner shall exclude irrelevent or unduly repetitious testimony.
'(d) Decisions on the admissibility of evidence or testimony are made by the examiner.
'(e) Testimony is under oath or affirmation.
'(f) The examiner shall give the parties opportunity to cross-examine witnesses who appear and testify.
'(g) The examiner may exclude any person from the hearing for contumacious conduct or misbehavior that obstructs the hearing.
'(h) An agency may provide through a negotiated agreement with a labor organization holding exclusive recognition for the attendance at hearings under this subpart of an observer from that organization. When attendance is provided for, the agreement shall further provide that when the employee who requested the hearing objects to the attendance of an observer on grounds of privacy, the examiner shall determine the validity of the objection and make the decision on the question of attendance.
§ 771.211 Witnesses.
'(a) Both parties are entitled to produce witnesses.
'(b) The agency shall make its employees available as witnesses before an examiner when requested by the examiner after consideration of a request by the employee or the agency.
'(c) If the agency determines that it is not administratively practicable to comply with the request of the examiner, it shall notify him in writing of the reasons for that determination. If, in the examiner's judgment, compliance with his request is essential to a full and fair hearing, he may postpone the hearing until such time as the agency complies with his request.
'(d) Employees of the agency are in a duty status during the time they are made available as witnesses.
'(e) The agency shall assure witnesses freedom from restraint, interference, coercion, discrimination, or reprisal in presenting their testimony.
'§ 771.212 Record of hearing
'(a) The hearing shall be recorded and transcribed verbatim. All
documents submitted to and accepted by the examiner at the hearing shall be made a part of the record of the hearing. If the agency submits a document that is accepted, it shall furnish a copy of the document to the employee. If the employee submits a document that is accepted, he shall make the document available to the agency representative for reproduction.
'(b) The employee is entitled to be furnished a copy of the hearing record at or before the time he is furnished a copy of the report of the examiner.'
Section 772.305(c) governs the conduct of hearings before the Civil Service Commission. It provides:
'(c) Hearing procedures. (1) An appellant is entitled to appear at the hearing on his appeal personally or through or accompanied by his representative. The agency is also entitled to participate in the hearing. Both parties are entitled to produce witnesses. The Commission is not authorized to subpoena witnesses.
'(2) An agency shall make its employees available as witnesses at the hearing when (i) requested by the Commission after consideration of a request by the appellant or the agency and (ii) it is administratively practicable to comply with the request of the Commission. If the agency determines that it is not administratively practicable to comply with the request of the Commission, it shall submit to the Commission its written reasons for the declination. Employees of the agency shall be in a duty status during the time they are made available as witnesses. Employees of the agency shall be free from restraint, interference, coercion, discrimination, or reprisal in presenting their testimony.
'(3) Hearings are not open to the public or the press. Attendance at hearings is limited to persons determined by the Commission to have a direct connection with the appeal.
'(4) A representative of the Commission shall conduct the hearing and shall afford the parties opportunity to introduce evidence (including testimony and statements by the appellant, his representative, representatives of the agency, and witnesses), and to cross-examine witnesses. Testimony is under oath or affirmation. Rules of evidence are not applied strictly, but the representative
of the Commission shall exclude irrelevant or unduly repetitious testimony.
'(5) The office of the Commission having initial jurisdiction of the appeal shall determine how the hearing will be reported. When the hearing is reported verbatim, that office shall make the transcript a part of the record of the proceedings and shall furnish a copy of the transcript to each party. When the hearing is not reported verbatim, the representative of the Commission who conducts the hearing shall make a suitable summary of the pertinent portions of the testimony. When agreed to in writing by the parties, the summary constitutes the report of the hearing and is made a part of the record of the proceedings. Each party is entitled to be furnished a copy of the report of the hearing. If the representative of the Commission and the parties fail to agree on the summary, the parties are entitled to submit written exceptions to any parts of the summary which are made a part of the record of the proceedings for consideration in deciding the appeal.'
15
OEO Staff Instruction No. 771—2 (1971).
16
5 U.S.C. § 5596.
17
Act of Jan. 16, 1883, c. 27, 22 Stat. 403.
18
Id., § 2.
19
Fifteenth Report of the Civil Service Commission 70 (1897 1898). Rule II, § 8, provided: 'No removal shall be made from any position subject to competitive examination except for just cause and upon written charges filed with the head of the Department or other appointing officer, and of which the accused shall have full notice and an opportunity to make defense.'
20
Act of Aug. 24, 1912, c. 389, § 6, 37 Stat. 555.
21
Our Brother WHITE would hold that Verduin himself might not make the initial decision as to removal on behalf of the agency, because he was the victim of the alleged slander which was one of the bases for appellee's removal. Because of our holding with respect to appellee's property-type expectations under Roth and Sindermann, we do not reach this question in its constitutional dimension. But since our Brother WHITE suggests that he reaches that conclusion as a matter of statutory construction, albeit because of constitutional emanations, we state our reasons for disagreeing with his conclusion. We, of course, find no constitutional overtones lurking in the statutory issue, because of our holding as to the nature of appellee's property interest in his employment. The reference in the Lloyd-La Follette Act itself to the discretion 'of the officer making the removal' suggests rather strongly that he is likewise the
officer who will have brought the charges, and there is no indication that during the 60 years' practice under the Act it has ever been administratively construed to require the initial hearing on the discharge to be before any official other than the one making the charges. And while our Brother WHITE's statement of his conclusion suggests that it may be limited to facts similar to those presented here, post, at 199, we doubt that in practice it could be so confined. The decision of an employee's supervisor to dismiss an employee 'for such cause as will promote the efficiency of the service' will all but invariably involve a somewhat subjective judgment on the part of the supervisor that the employee's performance is not 'up to snuff.' Employer-employee disputes of this sort can scarcely avoid involving clashes of personalities, and while a charge that an employee has defamed a supervisor may generate a maximum of personal involvement on the part of the latter, a statement of more typical charges will necessarily engender some degree of personal involvement on the part of the supervisor.
Additional difficulties in applying our Brother WHITE's standard would surely be found if the official bringing the charges were himself the head of a department or an agency, for in that event none of his subordinates could be assumed to have a reasonable degree of detached neutrality, and the initial hearing would presumably have to be conducted by someone wholly outside of the department or agency. We do not believe that Congress, clearly indicating as it did in the Lloyd-La Follette Act its preference for relatively simple procedures, contemplated or required the complexities which would be injected into the Act by our Brother WHITE.
22
The Court's footnote there stated:
'The purpose of such notice and hearing is to provide the person an opportunity to clear his name. Once a person has cleared his name at a hearing, his employer, of course, may remain free to deny him future employment for other reasons.' 408 U.S., at 573 n. 12, 92 S.Ct., at 2707 n. 12.
23
See Merrill, Procedures for Adverse Actions Against Federal Employees, 59 Va.L.Rev. 196, 206 (1973).
24
The Federal Personnel Manual, Subchapter S3—1. a., states: 'Basically a 'cause' for disciplinary adverse action is a recognizable offense against the employer-employee relationship. Causes for adverse action run the entire gamut of offenses against the employer-employee relationship, including inadequate performance of duties and improper conduct on or off the job. . . .' Supp. 752—1, Adverse Action by Agencies, Feb. 1972.
25
See n. 7, supra.
1
As the Court stated in Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971), 'The formality and procedural requisities for (a due process) hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings.' In this case, we are concerned with an administrative hearing in the context of appellee's discharge from public employment.
2
No property interest would be conferred, for example, where the applicable statutory or contractual terms, either expressly or by implication, did not provide for continued employment absent 'cause.' See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 578, 92 S.Ct. 2701, 2709—2710, 33 L.Ed.2d 548 (1972).
3
In Goldberg, for example, the statutes and regulations defined both eligibility for welfare benefits and the procedures for termination of those benefits. The Court held that such benefits constituted a statutory entitlement for persons qualified to receive them and that the constitutional guarantee of procedural due process applied to termination of benefits. 397 U.S., at 261—263, 90 S.Ct., at 1016—1018.
4
My Brother MARSHALL rejects the Government's interest in efficiency as insignificant, citing Goldberg v. Kelly, 397 U.S. 254, 266, 90 S.Ct. 1011, 1019—1020, 25 L.Ed.2d 287 (1970), and Fuentes v. Shevin, 407 U.S. 67, 90—91, n. 22, 92 S.Ct. 1983, 1999, 32 L.Ed.2d 556 (1972). He also notes that nine federal agencies presently accord prior evidentiary hearings. Post, at 223, 224.
Neither Goldberg nor Fuentes involved the Government's substantial interest in maintaining the efficiency and discipline of its own employees. Moreover, the fact that some federal agencies may have decided to hold prior evidentiary hearings cannot mean that such a procedure is constitutionally mandated. The Federal Government's general practice to the contrary argues that efficiency is in fact thought to be adversely affected by prior evidentiary hearings.
Nor do I agree with my Brother WHITE's argument that suspension with pay would obviate any problem posed by prolonged retention of a disruptive or unsatisfactory employee. Aside from the additional financial burden which would be imposed on the Government, this procedure would undoubtedly inhibit warranted discharges and weaken significantly the deterrent effect of immediate removal. In addition, it would create a strong incentive for the suspended employee to attempt to delay final resolution of the issues surrounding his discharge.
5
My Brother WHITE argues that affirmance is required because the supervisory official who would have conducted the preremoval hearing was the 'object of slander that was the basis for the employee's proposed discharge.' Post, at 199. He would conclude that this violated the statutory requirement of an 'impartial decisionmaker.' I find no such requirement anywhere in the statute or the regulations. Nor do I believe that due process so mandates at the preremoval stage. In my view, the relevant fact is that an impartial decisionmaker is provided at the post-removal hearing where the employee's claims are finally resolved.
There are also significant practical considerations that argue against such a requirement. In most cases, the employee's supervisor is the official best informed about the 'cause' for termination. If disqualification is required on the ground that the responsible supervisor could not be wholly impartial, the removal procedure would become increasingly complex. In effect, a 'mini-trial' would be necessary to educate the impartial decisionmaker as to the basis for termination.
6
Appellee also argues that the failure to provide a prior evidentiary hearing deprived him of his 'liberty' interest in violation of the Fifth Amendment. For the reasons stated above, I find that the present statute comports with due process even with respect to appellee's liberty interest.
1
The full text of the Act's pertinent provisions provides:
'(a) An individual in the competitive service may be removed or suspended without pay only for such cause as will promote the efficiency of the service.
'(b) An individual in the competitive service whose removal or suspension without pay is sought is entitled to reasons in writing and to—
'(1) notice of the action sought and of any charges preferred against him;
'(2) a copy of the charges;
'(3) a reasonable time for filing a written answer to the charges, with affidavits; and
'(4) a written decision on the answer at the earliest practicable date.
'Examination of witnesses, trial, or hearing is not required but may be provided in the discretion of the individual directing the removal or suspension without pay. Copies of the charges, the notice of hearing, the answer, the reasons for and the order of removal or suspension without pay, and also the reasons for reduction in grade or pay, shall be made a part of the records of the employing agency, and on request, shall be furnished to the individual affected and to the Civil Service Commission.
'(c) This section applies to a preference eligible employee as defined by section 7511 of this title only if he so elects. This section does not apply to the suspension or removal of an employee under section 7532 of this title.' 5 U.S.C. § 7501.
2
The regulation of the Civil Service Commission as to 'Proscribed actions,' 5 CFR § 735.201a, provides:
'An employee shall avoid any action, whether or not specifically prohibited by this subpart, which might result in, or create the appearance of:
'(a) Using public office for private gain;
'(b) Giving preferential treatment to any person;
'(c) Impeding Government efficiency or economy;
'(d) Losing complete independence or impartiality;
'(e) Making a Government decision outside official channels; or
'(f) Affecting adversely the confidence of the public in the integrity of the Government.'
The regulations, 5 CFR § 735.209, also provided:
'An employee shall not engage in criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct, or other conduct prejudicial to the Government.'
3
The Civil Service Procedural Regulations, 5 CFR § 752.202, provide in relevant part:
'(a) Notice of proposed adverse action. (1) Except as provided in paragraph (c) of this section, an employee against whom adverse action is sought is entitled to at least 30 full days' advance written notice stating any and all reasons, specifically and in detail, for the proposed action.
'(2) Subject to the provisions of subparagraph (3) of this paragraph, the material on which the notice is based and which is relied on to support the reasons in that notice, including statements of witnesses, documents, and investigative reports or extracts therefrom, shall be assembled and made available to the employee for his review. The notice shall inform the employee where he may review that material.
'(3) Material which cannot be disclosed to the employee, or to his designated physician under § 294.401 of this chapter, may not be used by an agency to support the reasons in the notice.
'(b) Employee's answer. Except as provided in paragraph (c) of this section, an employee is entitled to a reasonable time for
answering a notice of proposed adverse action and for furnishing affidavits in support of his answer. The time to be allowed depends on the facts and circumstances of the case, and shall be sufficient to afford the employee ample opportunity to review the material relied on by the agency to support the reason in the notice and to prepare an answer and secure affidavits. The agency shall provide the employee a reasonable amount of official time for these purposes if he is otherwise in an active duty status. If the employee answers, the agency shall consider his answer in reaching its decision. The employee is entitled to answer personally, or in writing, or both personally and in writing. The right to answer personally includes the right to answer orally in person by being given a reasonable opportunity to make any representations which the employee believes might sway the final decision on his case, but does not include the right to a trial or formal hearing with examination of witnesses. When the employee requests an opportunity to answer personally, the agency shall make a representative or representatives available to hear his answer. The representative or representatives designated to hear the answer shall be persons who have authority either to make a final decision on the proposed adverse action or to recommend what final decision should be made.
'(f) Notice of adverse decision. The employee is entitled to notice of the agency's decision at the earliest practicable date. The agency shall deliver the notice of decision to the employee at or before the time the action will be made effective. The notice shall be in writing, be dated, and inform the employee:
'(1) Which of the reasons in the notice of proposed adverse action have been found sustained and which have been found not sustained. . ..'
4
The Veterans' Preference Act of 1944 authorizes Civil Service Commission appeals from adverse agency decisions. See 5 U.S.C. § 7701. The Act itself applies only to veterans of military service, 5 U.S.C. §§ 2108, 7511, but Executive Order No. 11491, printed in note following 5 U.S.C. § 7301, extends the Act's protections to all nonpreference eligible employees in the classified service.
5
Appellee's response stated:
'The charges and proceedings brought against Mr. Kennedy are invalid and, in fact, unlawful for the following two reasons among others:
'First, Mr. Kennedy is entitled to a fair and impartial hearing prior to any adverse action being taken against him. This means a proceeding where there is a genuinely impartial hearing officer, a proceeding where there is an opportunity to offer witnesses and confront and cross examine those furnishing evidence against him, a proceeding where he will have an opportunity to respond to all evidence offered against him, a proceeding where a written record is made of all evidence, testimony and argument, a proceeding where the decision will be based exclusively on the record, a proceeding where the decision will contain findings of fact and conclusions of law with regard to all controverted issues, together with an analysis indicating the manner in which the controversies were resolved.
'The present adverse action procedure fails in substantial ways to provide all of these rudimentary elements required for a due
process hearing. It therefore fails to meet the requirements of due process secured by the Fifth Amendment to the Constitution of the United States and is hence, invalid, null and void.
'Second, the charges brought against Mr. Kennedy are facially insufficient and illegal. As the adverse action makes clear, Mr. Kennedy is being punished for his conversations (inaccurately set forth in the adverse action) with union members and the public. Since the First Amendment protects such conversations these allegations are totally without merit.' App. 62.
6
My views as to the requirements of due process where property interests are at stake does not deal with the entirely separate matter and requirements of due process when a person is deprived of liberty.
7
Bailey v. Richardson, 86 U.S.App.D.C. 248, 182 F.2d 46 (1950), aff'd by an equally divided court, 341 U.S. 918, 71 S.Ct. 669, 95 L.Ed. 1352 (1951), is not controlling. 'The basis of this holding has been thoroughly undermined in the ensuing years' with the rejection of the 'right-privilege' distinction. Board of Regents v. Roth, 408 U.S. 564, 571 n. 9, 92 S.Ct. 2701, 2706, 33 L.Ed.2d 548 (1972).
8
Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), is not properly part of this quartet of cases, since no hearing was apparently ever provided to challenge the posting of one's name as an excessive drinker.
9
See generally Freedman, Summary Action by Administrative Agencies, 40 U.Chi.L.Rev. 1 (1972).
10
See Handler, Justice for the Welfare Recipient: Fair Hearings in AFDC—The Wisconsin Experience, 43 Soc.Serv.Rev. 12, 22 (1969).
11
Congressman Calder stated that the Act would 'give assurance and confidence to the employees that they will at least get a square deal and will not permit of supervisory or executive officers filing charges of one kind against an employee and having him removed from the service or reduced in salary on evidence submitted on matters entirely foreign to the original charges that the employee has answered in writing.' 48 Cong.Rec. 4654 (1912).
Congressman Konop stated:
'Any man in public service should have a right as a citizen to know why he is discharged from public duty, and as a citizen should certainly have a chance to be heard.' Id., at 5207.
12
In Pickering v. Board of Education, 391 U.S. 563, 579 n. 2, 88 S.Ct. 1731, 1740 n. 2, 20 L.Ed.2d 811 (1968), where the Court set aside a discharge by a Board of Education of a teacher for writing a letter to a newspaper attacking the Board, the trier of fact, the Board, was the same body that was the object of accusations in the letter. Although the Court did not rule on the due process question, since it was first raised here, it observed that 'we do not propose to blind ourselves to the obvious defects in the fact-finding process occasioned by the Board's multiple functioning vis-a -vis appellant,' citing Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), and In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955).
13
We further note that appellants suggest that 'the Act and regulations, fairly construed, require the determination of cause to be made without bias.' Brief for Appellants 24 n. 12.
1
A judge so reviled is normally not the one to sit in judgment in a criminal contempt proceeding. Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532. Cf. Goldberg v. Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 1022, 25 L.Ed.2d 287.
2
'The competence of an employee is determined not by outsiders but by his superior in the hierarchy. If the superior is still at a level of competence, he may evaluate his subordinates in terms of the performance of useful work—for example, the applying of medical services or information, the production of sausages or table legs or achieving whatever are the stated aims of the hierarchy. That is to say, he evaluates output.
'But if the superior has reached his level of incompetence, he will probably rate his subordinates in terms of institutional values; he will see competence as the bahavior that supports the rules, rituals and forms of the status quo. Promptness, neatness, courtesy to superiors, internal paperwork, will be highly regarded. In short, such an official evaluates input . . .
'In such instances, internal consistency is valued more highly than efficient service: this is Peter's Inversion. A professional automation may also be termed a 'Peter's Invert.' He has inverted the means-end relationship.' L. Peter & R. Hull, The Peter Principle 25 (Bantam ed. 1970).
3
Apart from discrimination based on race, Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158, or on other suspect classifications such as sex. See id., at 436, 91 S.Ct., at 856; 42 U.S.C. § 2000e—2; Frontiero v. Richardson, 411 U.S. 677, 682 et seq., 93 S.Ct. 1764, 1769, 36 L.Ed.2d 583.
1
5 U.S.C. § 7501(a).
2
One noted commentator has observed:
'Changes in the forms of wealth are not remarkable in themselves; the forms are constantly changing and differ in every culture. But today more and more of our wealth takes the form of rights or status rather than of tangible goods. An individual's profession or occupation is a prime example. To many others, a job with a particular employer is the principal form of wealth. A profession or job is frequently far more valuable than a house or bank account, for a new house can be bought, and a new bank account created, once a profession or job is secure.' Reich, The New Property, 73 Yale L.J. 733, 738 (1964).
'Society today is built around entitlement (and m)any of the most important of these entitlements now flow from government . . .. Such sources of security . . . are no longer regarded as luxuries or gratuities; to the recipients they are essentials, fully deserved, and in no sense a form of charity.' Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L.J. 1245, 1255 (1965).
3
Board of Regents v. Roth, 408 U.S. 564, 576—578, 92 S.Ct. 2701, 2708—2710, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 599—603, 92 S.Ct. 2694, 2698—2700, 33 L.Ed.2d 570 (1972).
4
Wilkie v. O'Connor, 261 App.Div. 373, 375, 25 N.Y.S.2d 617, 620 (1941).
5
The mechanism for welfare terminations is described in Goldberg v. Kelly, 397 U.S. 254, 258—260, 90 S.Ct. 1011, 1014 1016, 25 L.Ed.2d 287 (1970). In short, the procedure involved prior notice and an opportunity to respond in writing before termination as well as a full trial-type hearing before an independent state official after the termination had been effected. If the recipient prevailed at the later hearing he would be entitled to recover any funds wrongfully withheld.
6
Although Perry v. Sindermann, supra, did not involve a statutorily created interest, it is plainly analogous in that the de facto tenure program on which Sindermann's claim of entitlement was grounded did not explicitly include the right to a hearing.
7
In a leading case decided many years ago, the Court of Appeals for the District of Columbia Circuit held that procedural due process protections did not apply to Government employment because it was merely a privilege and not a right. Bailey v. Richardson, 86 U.S.App.D.C. 248, 182 F.2d 46 (1950), aff'd by an equally divided Court, 341 U.S. 918, 71 S.Ct. 669, 95 L.Ed. 1352 (1951). As we have previously observed, '(t)he basis of this holding has been thoroughly undermined in the ensuing years.' Board of Regents v. Roth, 408 U.S., at 571 n. 9, 92 S.Ct., at 2706. '(T)he Court has fully and finally rejected the wooden distinction between 'rights' and 'privileges' . . ..' Id., at 571, 92 S.Ct. at 2706. For example, the Court has found constitutional restraints applicable to disqualification for unemployment compensation, Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1709, 10 L.Ed.2d 965 (1963); denial of a tax exemption, Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958); termination of welfare benefits, Goldberg v. Kelly, supra; and dismissal from public employment, e.g., Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956).
8
Merrill, Report in Support of Recommendation 72—8, Procedures for Adverse Actions Against Federal Employees, in 2 Recommendations and Reports of the Administrative Conference of the United States 1007, 1015 (1972) (hereinafter Merrill).
9
Ibid. The report of the Administrative Conference seems to bear out my Brother Douglas' recent observation:
'Once there is a discharge from a . . . federal agency, dismissal may be a badge that bars the employee from other federal employment. The shadow of that discharge is cast over the area where private employment may be available.' Sampson v. Jurray, 415 U.S. 61, 95, 94 S.Ct. 937, 955, 39 L.Ed.2d 166 (1974) (dissenting).
10
Merrill 1014 n. 33.
11
This case presents no question as to the requirements of due process 'where there are no factual issues in dispute or where the application of the rule of law is not intertwined with factual issues.' Goldberg v. Kelly, 397 U.S., at 268 n. 15, 90 S.Ct., at 1020; see Mills v. Richardson, 464 F.2d 995, 1001 (CA2 1972); cf. FCC v. WJR, 337 U.S. 265, 275—277, 69 S.Ct. 1097, 1103—1104, 93 L.Ed. 1353 (1949); 1 K. Davis, Administrative Law Treatise 412 (1958).
12
See ante, at 137—138. Cf. T. Arnold, Fair Fights and Foul 151 (1965) (describing the potential abuse in a situation where the head of a department is the decisionmaker in a public employee discharge proceeding).
13
The discharged employee is entitled to a full trial-type proceeding before a single examiner who may not occupy a position directly or indirectly under the jurisdiction of the official who proposed the dismissal or who bears ultimate responsibility for that decision. The examiner's decision is afforded substantial weight; if it is rejected, the rejection must be accompanied by a full statement of reasons that is subject to review. Both the employee and the agency may produce, examine, and cross-examine witnesses under oath or affirmation, and documentary evidence may also be introduced. Rigorous trial formality is avoided and care taken not to place an uncounseled employee at a disadvantage. See Merrill 1038—1040; 5 CFR §§ 771.209—771.211 (1972).
14
The procedure in Goldberg also involved a pretermination right of reply and a full trial-type hearing after termination, see n. 5, supra, but the scheme was nonetheless found not to satisfy due process requirements and a full pretermination hearing was required. See O'Neil, Of Justice Delayed and Justice Denied; The Welfare Prior Hearing Cases, 1970 Sup.Ct.Rev. 161, 169.
15
See n. 9, supra, at n. 19, infra.
16
Both Mr. Justice REHNQUIST and Mr. Justice WHITE dismiss the need for a full prior hearing partially by reference to the Court's decision in Cafeteria and Restaurant Workers v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). That case is entirely inapposite. First, it involved not the dismissal for cause of a tenured civil service employee, but rather the withdrawal of the security clearance of the employee of a private contractor, which, in effect, barred the worker from her job in the commissary at a military base. The employer was prepared to employ the worker at another of his restaurants, so the withdrawal of her security clearance was not apt to cause the serious financial hardship that appellee's dismissal from public employment might entail. See Board of Regents v. Roth, 408 U.S., at 584—585, 92 S.Ct., at 2712—2713 (Douglas, J., dissenting). Moreover, the Court has since read Cafeteria Workers to be a case where the Government's 'exceptional' interest in national security justified an abridgment of the right to a hearing. Fuentes v. Shevin, 407 U.S. 67, 91 n. 23, 92 S.Ct. 1983, 1999, 32 L.Ed.2d 556 (1972); see Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971).
17
Merrill 1014 n. 33.
18
Id., at 1016.
19
My Brother REHNQUIST argues that the stigma imposed by dismissal is only temporary in that the discharged employee can clear his name at the post-hoc hearing, hence does not 'foreclose(d) his freedom to take advantage of other employment opportunities.' Board of Regents v. Roth, 408 U.S., at 573, 92 S.Ct., at 2707; see n. 9, supra. But the stigma of outstanding charges would nonetheless be borne by the employee in the interim period while he waits for his hearing and seeks alternative employment to tide himself over.
20
See, e.g., Hearings on Postal Labor Relations and Employee Morale before the Subcommittee on Postal Operations of the House Committee on Post Office and Civil Service, 91st Cong., 1st Sess. (1969); Kennedy, Adverse Actions in the Agencies—Words and Deeds—Postal Adverse Action Procedures, 19 Am.U.L.Rev. 398, 412 (1970).
21
See, e.g., Ill.Rev.Stat., c. 48, § 432 (1973); see Christian v. New York State Dept. of Labor, 414 U.S. 614, 94 S.Ct. 747, 39 L.Ed.2d 38 (1974).
22
See Mandate for Merit: 1972 Annual Report of the United States Civil Service Commission 64—65.
23
See, e.g., Central Union Trust Co. v. Garvan, 254 U.S. 554, 566, 41 S.Ct. 214, 215, 65 L.Ed. 403 (1921); Phillips v. Commissioner of Internal Revenue, 283 U.S. 589, 597, 51 S.Ct. 608, 611, 75 L.Ed. 1289 (1931); Ewing v. Mytinger & Casselberry, 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950).
24
Merrill 1056.
25
Recommendation 72—8, Adverse Actions Against Federal Employees, in 2 Recommendations and Reports of the Administrative Conference of the United States 73—75 (1972).
26
Merrill 1017, 1056—1057, 1060. Scheduling problems might be largely overcome by more skillful use of personnel. See Goldberg v. Kelly, 397 U.S., at 266, 90 S.Ct., at 1019.
27
As we observed id., 397 U.S., at 267 n. 14, 90 S.Ct., at 1020, due process does not, of course, require two hearings. Under current procedures, an employee is afforded one and sometimes two post-hoc evidentiary hearings (one before the agency and the other before the Civil Service Commission). See Merrill 1013, 1043. If an adequate review mechanism is maintained, a single pretermination hearing might obviate the need for these later proceedings.
28
See, e.g., U.S. Dept. of Justice, Adverse Action Hearings, Appeals and Grievance Policies and Regulations, c. 2 (Sept. 28, 1972); Recommendation 72—8, n. 25, supra, at B, 74. The notice requirement need not be any impediment to holding the hearing within the 30-day period. In Goldberg v. Kelly, supra, at 268, 90 S.Ct., at 1020, for example, the Court found a seven-day period between notice and termination hearing constitutionally permissible.
29
Merrill 1033.
30
Other cases in this area hardly provide substantial guidance as to what speech is or is not protected. See, e.g., Pickering v. Board of Education, 391 U.S. 563, 570 n. 3, 88 S.Ct. 1731, 1735, 20 L.Ed.2d 811 (1968). Nor do the extant regulations provide substantial guidance; they merely repeat the language of the statute and provide examples as unelucidating as the particular regulation relevant to this case which proscribed 'any action . . . which might result in, or create the appearance of . . . (c) (i)mpeding Government efficiency or economy . . . (or) (f) (a)ffecting adversely the confidence of the public in the integrity of the Government.' 5 CFR § 735.201a; see 45 CFR § 1015.735—1.
31
The Administrative Conference Report reserved particularly harsh criticism for the 'efficiency of the service' standard, terming it 'deficient both as a guide to agency management and as a warning to employees of the sorts of behavior that will get them in trouble,' warning that it is 'an invitation to arbitrary action by government agencies.' Merrill 1054; see id., at 1053.
32
Further refinement of the statutory 'efficiency of the service' standard, is not, as the majority implies, impossible. The Administrative Conference points out that the agencies and the Civil Service Commission 'have developed a large, still essentially secret body of law on the meaning of 'efficiency." Merrill 1054, Reference to this body of precedent might well serve as a basis for the amplification of the statutory standard. Relevant guidelines might, for example, distinguish between statements made in an official as opposed to a private capacity, see Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); between knowingly false statements and those which are reasonably believed to be true, see e.g., Pickering, supra, at 569, 88 S.Ct., at 1735; New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964); cf. Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964); Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971); and between statements which pertain to a legitimate subject of public comment and those which disclose confidential Government information, see Pickering, supra, 391 U.S., at 570 n. 3 and 571—572, 88 S.Ct., at 1735 n. 3 and 1736—1737; cf. Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967).
| 34
|
416 U.S. 232
94 S.Ct. 1683
40 L.Ed.2d 90
Sarah SCHEUER, Administratrix, etc., Petitioner,v.James RHODES et al. Arthur KRAUSE, Administrator of the Estate of Allison Krause, et al., Petitioners, v. James RHODES et al.
Nos. 72—914, 72—1318.
Argued Dec. 4, 1973.
Decided April 17, 1974.
Syllabus
Petitioners, the personal representatives of the estates of students who were killed on the campus of a state-controlled university, brought these damages actions under 42 U.S.C. § 1983 against the Governor, the Adjutant General of the Ohio National Guard, various other Guard officers and enlisted members, and the university president, charging that those officials, acting under color of state law, 'intentionally, recklessly, willfully and wantonly' caused an unnecessary Guard deployment on the campus and ordered the Guard members to perform allegedly illegal acts resulting in the students' deaths. The District Court dismissed the complaints for lack of jurisdiction without the filing of any answer and without any evidence other than the Governor's proclamations and brief affidavits of the Adjutant General and his assistant, holding that respondents were being sued in their official capacities and that the actions were therefore in effect against the State and barred by the Eleventh Amendment. The Court of Appeals affirmed on that ground and on the alternative ground that the common-law doctrine of executive immunity was absolute and barred action against respondent state officials. Held:
1. The Eleventh Amendment does not in some circumstances bar an action for damages against a state official charged with depriving a person of a federal right under color of state law, and the District Court acted prematurely and hence erroneously in dismissing the complaints as it did without affording petitioners any opportunity by subsequent proof to establish their claims. Pp. 235—238.
2. The immunity of officers of the executive branch of a state government for their acts is not absolute but qualified and of varying degree, depending upon the scope of discretion and responsibilities of the particular office and the circumstances existing at the time the challenged action was taken. Pp. 238—249.
471 F.2d 430, reversed and remanded.
Michael E. Geltner, New York City, for Sarah Scheuer.
Steven A. Sindell, Cleveland, Ohio, for Arthur Krause and others.
R. Brooke Alloway, Charles E. Brown, Columbus, Ohio, for respondents.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari1 in these cases to resolve whether the District Court correctly dismissed civil damage actions, brought under 42 U.S.C. § 1983, on the ground that these actions were, as a matter of law, against the State of Ohio, and hence barred by the Eleventh Amendment to the Constitution and, alternatively, that the actions were against state officials who were immune from liability for the acts alleged in the complaints. These cases arise out of the same period of alleged civil disorder on the campus of Kent State University in Ohio during May 1970 which was before us, in another context, in Gilligan v. Morgan, 413 U.S. 1, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973).
2
In these cases the personal representatives of the estates of three students who died in that episode seek damages against the Governor, the Adjutant General, and his assistant, various named and unnamed officers and enlisted members of the Ohio National Guard, and the president of Kent State University. The complaints in both cases allege a cause of action under the Civil Rights Act of 1871, 17 Stat. 13, now 42 U.S.C. § 1983. Petitioner Scheuer also alleges a cause of action under Ohio law on the theory of pendent jurisdiction. Petitioners Krause and Miller make a similar claim, asserting jurisdiction on the basis of diversity of citizenship.2
3
The District Court dismissed the complaints for lack of jurisdiction over the subject matter on the theory that these actions, although in form against the named individuals, were, in substance and effect, against the State of Ohio and thus barred by the Eleventh Amendment. The Court of Appeals affirmed the action of the District Court, agreeing that the suit was in legal effect one against the State of Ohio and, alternatively, that the common-law doctrine of executive immunity barred action against the state officials who are respondents here. 471 F.2d 430 (1972). We are confronted with the narrow threshold question whether the District Court properly dismissed the complaints. We hold that dismissal was inappropriate at this stage of the litigation and accordingly reverse the judgments and remand for further proceedings. We intimate no view on the merits of the allegations since there is no evidence before us at this stage.
4
* The complaints in these cases are not identical but their thrust is essentially the same. In essence, the defendants are alleged to have 'intentionally, recklessly, willfully and wantonly' caused an unnecessary deployment of the Ohio National Guard on the Kent State campus and, in the same manner, ordered the Guard members to perform allegedly illegal actions which resulted in the death of plaintiffs' decedents. Both complaints allege that the action was taken 'under color of state law' and that it deprived the decedents of their lives and rights without due process of law. Fairly read, the complaints allege that each of the named defendants, in undertaking such actions, acted either outside the scope of his respective office or, if within the scope, acted in an arbitrary manner, grossly abusing the lawful powers of office.
5
The complaints were dismissed by the District Court for lack of jurisdiction without the filing of an answer to any of the complaints. The only pertinent documentation3 before the court in addition to the complaints were two proclamations issued by the respondent Governor. The first proclamation ordered the Guard to duty to protect against violence arising from wildcat strikes in the trucking industry; the other recited an account of the conditions prevailing at Kent State University at that time. In dismissing these complaints for want of subject matter jurisdiction at that early stage, the District Court held, as we noted earlier, that the defendants were being sued in their official and representative capacities and that the actions were therefore in effect against the State of Ohio. The primary question presented is whether the District Court acted prematurely and hence erroneously in dismissing the complaints on the stated ground, thus precluding any opportunity for the plaintiffs by subsequent proof to establish a claim.
6
When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test. Moreover, it is well established that, in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.
7
'In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Conley v. Gibson, 355 U.S. 41, 45—46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957) (footnote omitted).
8
See also Gardner v. Toilet Goods Assn., 387 U.S. 167, 172, 87 S.Ct. 1526, 1529, 18 L.Ed.2d 704 (1967).
II
9
The Eleventh Amendment to the Constitution of the United States provides: 'The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State . . ..' It is well established that the Amendment bars suits not only against the State when it is the named party but also when it is the party in fact. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Poindexter v. Greenhow, 114 U.S. 270, 287, 5 S.Ct. 903, 912, 29 L.Ed. 185 (1885); Cunningham v. Macon & Brunswick R. Co., 109 U.S. 446, 3 S.Ct. 292, 27 L.Ed. 992 (1883). Its applicability 'is to be determined not by the mere names of the titular parties but by the essential nature and effect of the proceeding, as it appears from the entire record.' Ex parte New York, 256 U.S. 490, 500, 41 S.Ct. 588, 590, 65 L.Ed. 1057 (1921).
10
However, since Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), it has been settled that the Eleventh Amendment provides no shield for a state official confronted by a claim that he had deprived another of a federal right under the color of state law. Ex parte Young teaches that when a state officer acts under a state law in a manner violative of the Federal Constitution, he
11
'comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States.' Id., at 159—160, 28 S.Ct., at 454. (Emphasis supplied.)
12
Ex parte Young, like Sterling v. Constantin, 287 U.S. 378, 53 S.Ct. 190, 77 L.Ed. 375 (1932), involved a question of the federal courts' injunctive power, not, as here, a claim for monetary damages. While it is clear that the doctrine of Ex parte Young is of no aid to a plaintiff seeking damages from the public treasury, Edelman v. Jordan, supra; Kennecott Copper Corp. v. State Tax Comm'n, 327 U.S. 573, 66 S.Ct. 745, 90 L.Ed. 862 (1946); Ford Motor Co. v. Dept. of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945); Great Northern Life Insurance Co. v. Read, 322 U.S. 47, 64 S.Ct. 873, 88 L.Ed. 1121 (1944), damages against individual defendants are a permissible remedy in some circumstances notwithstanding the fact that they hold public office. Myers v. Anderson, 238 U.S. 368, 35 S.Ct. 932, 59 L.Ed. 1349 (1915). See generally Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). In some situations a damage remedy can be as effective a redress for the infringement of a constitutional right as injunctive relief might be in another.
13
Analyzing the complaints in light of these precedents, we see that petitioners allege facts that demonstrate they are seeking to impose individual and personal liability on the named defendants for what they claim—but have not yet established by proof—was a deprivation of federal rights by these defendants under color of state law. Whatever the plaintiffs may or may not be able to establish as to the merits of their allegations, their claims, as stated in the complaints, given the favorable reading required by the Federal Rules of Civil Procedure, are not barred by the Eleventh Amendment. Consequently, the District Court erred in dismissing the complaints for lack of jurisdiction.
III
14
The Court of Appeals relied upon the existence of an absolute 'executive immunity' as an alternative ground for sustaining the dismissal of the complaints by the District Court. If the immunity of a member of the executive branch is absolute and comprehensive as to all acts allegedly performed within the scope of official duty, the Court of Appeals was correct; if, on the other hand, the immunity is not absolute but rather one that is qualified or limited, an executive officer may or may not be subject to liability depending on all the circumstances that may be revealed by evidence. The concept of the immunity of government officers from personal liability springs from the same root considerations that generated the doctrine of sovereign immunity. While the latter doctrine—that the 'King can do no wrong'—did not protect all government officers from personal liability, the common law soon recognized the necessity of permitting officials to perform their official functions free from the threat of suits for personal liability.4 This official immunity apparently rested, in its genesis, on two mutually dependent rationales:5 (1) the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion; (2) the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good.
15
In this country, the development of the law of immunity for public officials has been the product of constitutional provision as well as legislative and judicial processes. The Federal Constitution grants absolute immunity to Members of both Houses of the Congress with respect to any speech, debate, vote, report, or action done in session. Art. I, § 6. See Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972); United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972); and Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1881). This provision was intended to secure for the Legislative Branch of the Government the freedom from executive and judicial encroachment which had been secured in England in the Bill of Rights of 1689 and carried to the original Colonies.6 In United States v. Johnson, 383 U.S. 169, 182, 86 S.Ct. 749, 756, 15 L.Ed.2d 681 (1966), Mr. Justice Harlan noted:
16
'There is little doubt that the instigation of criminal charges against critical or disfavored legislators by the executive in a judicial forum was the chief fear prompting the long struggle for parliamentary privilege in England and, in the context of the American system of separation of powers, is the predominate thrust of the Speech or Debate Clause.'
17
Immunity for the other two branches—long a creature of the common law—remained committed to the common law. See, e.g., Spalding v. Vilas, 161 U.S. 483, 498—499, 16 S.Ct. 631, 637, 40 L.Ed. 780 (1896).
18
Although the development of the general concept of immunity, and the mutations which the underlying rationale has undergone in its application to various positions are not matters of immediate concern here, it is important to note, even at the outset, that one policy consideration seems to pervade the analysis: the public interest requires decisions and action to enforce laws for the protection of the public. Mr. Justice Jackson expressed this general proposition succinctly, stating 'it is not a tort for government to govern.' Dalehite v. United States, 346 U.S. 15, 57, 73 S.Ct. 956, 979, 97 L.Ed. 1427 (1953) (dissenting opinion). Public officials, whether governors, mayors or police, legislators or judges, who fail to make decisions when they are needed or who do not act to implement decisions when they are made do not fully and faithfully perform the duties of their offices.7 Implicit in the idea that officials have some immunity absolute or qualified—for their acts, is a recognition that they may err. The concept of immunity assumes this and goes on to assume that it is better to risk some error and possible injury from such error than not to decide or act at all. In Barr v. Matteo, 360 U.S. 564, 572—573, 79 S.Ct. 1335, 1340, 3 L.Ed.2d 1434 (1959), the Court observed, in the somewhat parallel context of the privilege of public officers from defamation actions: 'The privilege is not a badge or emolument of exalted office, but an expression of a policy designed to aid in the effective functioning of government.' See also Spalding v. Vilas, 161 U.S., at 498—499, 16 S.Ct., at 637.
19
For present purposes we need determine only whether there is an absolute immunity, as the Court of Appeals determined, governing the specific allegations of the complaint against the chief executive officer of a State, the senior and subordinate officers and enlisted personnel of that State's National Guard, and the president of a state-controlled university. If the immunity is qualified, not absolute, the scope of that immunity will necessarily be related to facts as yet not established either by affidavits, admissions, or a trial record. Final resolution of this question must take into account the functions and responsibilities of these particular defendants in their capacities as officers of the state government, as well as the purposes of 42 U.S.C. § 1983. In neither of these inquiries do we write on a clean slate. It can hardly be argued, at this late date, that under no circumstances can the officers of state government be subject to liability under this statute. In Monroe v. Pape, supra, Mr. Justice Douglas, writing for the Court, held that the section in question was meant 'to give a remedy to parties deprived of constitutional rights, privileges and immunities by an official's abuse of his position.' Id., 365 U.S., at 172, 81 S.Ct., at 476. Through the Civil Rights statutes, Congress intended 'to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.' Id., at 171—172, 81 S.Ct., at 476.
20
Since the statute relied on thus included within its scope the "(m)isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law," id., at 184, 81 S.Ct., at 482 (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941)), government officials, as a class, could not be totally exempt, by virtue of some absolute immunity, from liability under its terms. Indeed, as the Court also indicated in Monroe v. Pape, supra, the legislative history indicates that there is no absolute immunity. Soon after Monroe v. Pape, Mr. Chief Justice Warren noted in Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), that the 'legislative record (of § 1983) gives no clear indication that Congress meant to abolish wholesale all common-law immunities,' Id., at 554, 87 S.Ct., at 1218. The Court had previously recognized that the Civil Rights Act of 1871 does not create civil liability for legislative acts by legislators 'in a field where legislators traditionally have power to act.' Tenney v. Brandhove, 341 U.S. 367, 379, 71 S.Ct. 783, 789, 95 L.Ed. 1019 (1951). Noting that '(t)he privilege of legislators to be free from arrest or civil process for what they do or say in legislative proceedings has taproots in the Parliamentary struggles of the Sixteenth and Seventeenth Centuries,' id., at 372, 71 S.Ct., at 786, the Court concluded that it was highly improbable that 'Congress—itself a staunch advocate of legislative freedom—would impinge on a tradition so well grounded in history and reason by covert inclusion in the general language . . .' of this statute. Id., at 376, 71 S.Ct., at 788.
21
In similar fashion, Pierson v. Ray, supra, examined the scope of judicial immunity under this statute. Noting that the record contained no 'proof or specific allegation,' 386 U.S., at 553, 87 S.Ct., at 1217, that the trial judge had 'played any role in these arrests and convictions other than to adjudge petitioners guilty when their cases came before his court,' ibid., the Court concluded that, had the Congress intended to abolish the common-law 'immunity of judges for acts within the judicial role,' id., at 554, 87 S.Ct., at 1218, it would have done so specifically. A judge's
22
'errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.' Ibid.
23
The Pierson Court was also confronted with whether immunity was available to that segment of the executive branch of a state government that is most frequently and intimately involved in day-to-day contacts with the citizenry and, hence, most frequently exposed to situations which can give rise to claims under § 1983 the local police officer. Mr. Chief Justice Warren, speaking for the Court noted that the police officers
24
'did not defend on the theory that they believed in good faith that it was constitutional to arrest the ministers solely for using the ('white only') waiting room. Rather, they claimed and attempted to prove that . . . (they arrested them) solely for the purpose of preventing violence. They testified, in contradiction to the ministers, that a crowd gathered and that imminent violence was likely. If the jury believed the testimony of the officers and disbelieved that of the ministers, and if the jury found that the officers reasonably believed in good faith that the arrest was constitutional, then a verdict for the officers would follow even though the arrest was in fact (without probable cause and) unconstitutional.' Id., at 557, 87 S.Ct., at 1219.
25
The Court noted that the 'common law has never granted police officers an absolute and unqualified immunity,' id., at 555, 87 S.Ct., at 1218, but that 'the prevailing view in this country (is that) a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved,' ibid.; the Court went on to observe that a 'policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.' Ibid. The Court then held that
26
'the defense of good faith and probable cause, which the Court of Appeals found available to the officers in the common-law action for false arrest and imprisonment, is also available to them in the action under § 1983.' Id., at 557, 87 S.Ct., at 1219.
27
When a court evaluates police conduct relating to an arrest its guideline is 'good faith and probable cause.' Ibid. In the case of higher officers of the executive branch, however, the inquiry is far more complex since the range of decisions and choices—whether the formulation of policy, of legislation, of budgets, or of day-to-day decisions—is virtually infinite. In common with police officers, however, officials with a broad range of duties and authority must often act swiftly and firmly at the risk that action deferred will be futile or constitute virtual abdication of office. Like legislators and judges, these officers are entitled to rely on traditional sources for the factual information on which they decide and act.8 When a condition of civil disorder in fact exists, there is obvious need for prompt action, and decisions must be made in reliance on factual information supplied by others. While both federal and state laws plainly contemplate the use of force when the necessity arises, the decision to invoke military power has traditionally been viewed with suspicion and skepticism since it often involves the temporary suspension of some of our most cherished rights government by elected civilian leaders, freedom of expression, of assembly, and of association. Decisions in such situations are more likely than not to arise in an atmosphere of confusion, ambiguity, and swiftly moving events and when, by the very existence of some degree of civil disorder, there is often no consensus as to the appropriate remedy. In short, since the options which a chief executive and his principal subordinates must consider are far broader and far more subtle than those made by officials with less responsibility, the range of discretion must be comparably broad. In a context other than a § 1983 suit, Mr. Justice Harlan articulated these considerations in Barr v. Matteo, supra:
28
'To be sure, the occasions upon which the acts of the head of an executive department will be protected by the privilege are doubtless far broader than in the case of an officer with less sweeping functions. But that is because the higher the post, the broader the range of responsibilities and duties, and the wider the scope of discretion, it entails. It is not the title of his office but the duties with which the particular officer sought to be made to respond in damages is entrusted—the relation of the act complained of to 'matters committed by law to his control or supervision,' Spalding v. Vilas, supra, 161 U.S., at 498, 16 S.Ct. at 637—which must provide the guide in delineating the scope of the rule which clothes the official acts of the executive officer with immunity from civil defamation suits.' 360 U.S., at 573—574, 79 S.Ct., at 1340—1341.
29
These considerations suggest that, in varying scope, a qualified immunity is available to officers of the executive branch of government, the variation being dependent upon the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based. It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good-faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct. Mr. Justice Holmes spoke of this, stating:
30
'No doubt there are cases where the expert on the spot may be called upon to justify his conduct later in court, notwithstanding the fact that he had sole command at the time and acted to the best of his knowledge. That is the position of the captain of a ship. But even in that case great weight is given to his determination and the matter is to be judged on the facts as they appeared then and not merely in the light of the event.' Moyer v. Peabody, 212 U.S. 78, 85, 29 S.Ct. 235, 237, 53 L.Ed. 410 (1909). (Citations omitted.)
31
Under the criteria developed by precedents of this Court, § 1983 would be drained of meaning were we to hold that the acts of a governor or other high executive officer have 'the quality of a supreme and unchangeable edict, overriding all conflicting rights of property and unreviewable through the judicial power of the federal government.' Sterling v. Constantin, 287 U.S., at 397, 53 S.Ct., at 195. In Sterling, Mr. Chief Justice Hughes put it in these terms:
32
'If this extreme position could be deemed to be well taken, it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases, the futility of which the State may at any time disclose by the simple process of transferring powers of legislation to the Governor to be exercised by him, beyond control, upon his assertion of necessity. Under our system of government, such a conclusion is obviously untenable. There is no such avenue of escape from the paramount authority of the Federal Constitution. When there is a substantial showing that the exertion of state power has overridden private rights secured by that Constitution, the subject is necessarily one for judicial inquiry in an appropriate proceeding directed against the individuals charged with the transgression.' Id., at 397—398, 53 S.Ct., at 195.
33
Gilligan v. Morgan, by no means indicates a contrary result. Indeed, there we specifically noted that we neither held nor implied 'that the conduct of the National Guard is always beyond judicial review or that there may not be accountability in a judicial forum for violations of law or for specific unlawful conduct by military personnel, whether by way of damages or injunctive relief.' 413 U.S., at 11—12, 93 S.Ct., at 2446 (Footnote omitted.) See generally Laird v. Tatum, 408 U.S. 1, 15 16, 92 S.Ct. 2318, 2326—2327, 33 L.Ed.2d 154 (1972); Duncan v. Kahanamoku, 327 U.S. 304, 66 S.Ct. 606, 90 L.Ed. 688 (1946).
IV
34
These cases, in their present posture, present no occasion for a definitive exploration of the scope of immunity available to state executive officials nor, because of the absence of a factual record, do they permit a determination as to the applicability of the foregoing principles to the respondents here. The District Court acted before answers were filed and without any evidence other than the copies of the proclamations issued by respondent Rhodes and brief affidavits of the Adjutant General and his assistant. In dismissing the complaints, the District Court and the Court of Appeals erroneously accepted as a fact the good faith of the Governor, and took judicial notice that 'mob rule existed at Kent State University.' There was no opportunity afforded petitioners to contest the facts assumed in that conclusion. There was no evidence before the courts from which such a finding of good faith could be properly made and, in the circumstances of these cases, such a dispositive conclusion could not be judicially noticed. We can readily grant that a declaration of emergency by the chief executive of a State is entitled to great weight but it is not conclusive. Sterling v. Constantin, supra.
35
The documents properly before the District Court at this early pleading stage specifically placed in issue whether the Governor and his subordinate officers were acting within the scope of their duties under the Constitution and laws of Ohio; whether they acted within the range of discretion permitted the holders of such office under Ohio law and whether they acted in good faith both in proclaiming an emergency and as to the actions taken to cope with the emergency so declared. Similarly, the complaints place directly in issue whether the lesser officers and enlisted personnel of the Guard acted in good-faith obedience to the orders of their superiors. Further proceedings, either by way of summary judgment or by trial on the merits are required. The complaining parties are entitled to be heard more fully than is possible on a motion to dismiss a complaint.
36
We intimate no evaluation whatever as to the merits of the petitioners' claims or as to whether it will be possible to support them by proof. We hold only that, on the allegations of their respective complaints, they were entitled to have them judicially resolved.
37
The judgments of the Court of Appeals are reversed and the cases are remanded for further proceedings consistent with this opinion.
38
It is so ordered.
39
Mr. Justice DOUGLAS took no part in the decision of these cases.
1
413 U.S. 919, 93 S.Ct. 3056, 37 L.Ed.2d 1040 (1973).
2
The Krause complaint states that the plaintiff is a citizen of Pennsylvania and expressly invokes federal diversity jurisdiction under 28 U.S.C. § 1332. The Miller complaint states that the plaintiff is a citizen of New York. While the complaint does not specifically refer to jurisdiction under 28 U.S.C. § 1332, it alleges facts which clearly support diversity jurisdiction App. in No. 72—1318, p. 85. See Fed.Rule Civ.Proc. 8(a)(1).
3
In the Krause case, the Adjutant General and his assistant also filed brief affidavits. These seem basically directed to the motion for a change of venue and, in any event, make no substantial contribution to the jurisdictional or immunity questions.
4
In England legislative immunity was secured after a long struggle, by the Bill of Rights of 1689: 'That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament,' 1 W. & M., Sess. 2, c. 2. See Stockdale v. Hansard, 9 Ad. & E. 1, 113—114, 112 Eng.Rep. 1112, 1155—1156 (Q.B.1839). The English experience, of course, guided the drafters of our 'Speech or Debate' Clause. See Tenney v. Brandhove, 341 U.S. 367, 372—375, 71 S.Ct. 783, 786—788, 95 L.Ed. 1019 (1951); United States v. Johnson, 383 U.S. 169, 177—178, 181, 86 S.Ct. 749, 753—754, 755 756, 15 L.Ed.2d 681 (1966); United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972).
In regard to judicial immunity, Holdsworth notes: 'In the case of courts of record . . . it was held, certainly as early as Edward III's reign, that a litigant could not go behind the record, in order to make a judge civilly or criminally liable for an abuse of his jurisdiction.' 6 W. Holdsworth, A History of English Law 235 (1927). The modern concept owes much to the elaboration and restatement of Coke and other judges of the sixteenth and early seventeenth centuries. Id., at 234 et seq. See Floyd v. Barker, 12 Co.Rep. 23, 77 Eng.Rep. 1305 (K.B.1607). The immunity of the Crown has traditionally been of a more limited nature. Officers of the Crown were at first insulated from responsibility since the King could claim the act as his own. This absolute insulation was gradually eroded. Statute of Westminster I, 3 Edw. 1, c. 24 (1275) (repealed); Statute of Westminster II, 13 Edw. 1, c. 13 (1285) (repealed). The development of liability, especially during the times of the Tudors and Stuarts, was slow; see, e.g., Public Officers Protection Act, 7 Jac. 1, c. 5 (1609) (repealed). With the accession of William and Mary, the liability of officers saw what Jaffe has termed 'a most remarkable and significant extension' in Ashby v. White, 1 Bro.P.C. 62, 1 Eng.Rep. 417 (H.L.1704), reversing 6 Mod. 45, 87 Eng.Rep. 808 (Q.B.1703). Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv.L.Rev. 1, 14 (1963); A. Dicey, The Law of the Constitution 193—194 (10th ed. 1959) (footnotes omitted). See generally Barr v. Gatteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). Good-faith performance of a discretionary duty has remained, it seems, a defense. See Jaffe, Suits Against Governments and Officers: Damage Actions, 77 Harv.L.Rev. 209, 216 (1963). See also Spalding v. Vilas, 161 U.S. 483, 493, 16 S.Ct. 631, 635, 40 L.Ed. 780 et seq. (1896).
5
Jaffe, Suits Against Governments and Officers: Damage Actions, 77 Harv.L.Rev., at 223.
6
Mr. Justice Frankfurter noted in Tenney v. Brandhove, 341 U.S., at 373, 71 S.Ct., at 786: 'The provision in the United States Constitution was a reflection of political principles already firmly established in the States. Three State Constitutions adopted before the Federal Constitution specifically protected the privilege.' See Coffin v. Coffin, 4 Mass. 1, 27 (1808). See also Kilbourn v. Thompson, 103 U.S. 168, 202, 26 L.Ed. 377 (1881).
7
For example, in Floyd v. Barker, supra, Coke emphasized that judges 'are only to make an account to God and the King' since a contrary rule 'would tend to the scandal and subversion of all justice. And those who are the most sincere, would not be free from continual calumniations . . ..' 12 Co.Rep., at 25, 77 Eng.Rep., at 1307. See also Yaselli v. Goff, 12 F.2d 396, 399 (CA2 1926), aff'd per curiam, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927). In Spalding v. Vilas, 161 U.S., at 498, 16 S.Ct., at 637, the Court noted:
'In exercising the functions of his office, the head of an Executive Department, keeping within the limits of his authority, should not be under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry in a civil suit for damages. It would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government, if he were subjected to any such restraint.'
8
In Spalding v. Vilas, 161 U.S., at 498, 16 S.Ct., at 637, the Court, after discussing the early principles of judicial immunity in the country, cf. Randall v. Brigham, 7 Wall. 523, 535, 19 L.Ed. 285 (1869), Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872), and Yates v. Lansing, 5 Johns, 282 (N.Y.1810), noted the similarity in the controlling policy considerations in the case of high-echelon executive officers and judges:
'We are of opinion that the same general considerations of public policy and convenience which demand for judges of courts of superior jurisdiction immunity from civil suits for damages arising from acts done by them in the course of the performance of their judicial functions, apply to a large extent to official communications made by heads of Executive Departments when engaged in the discharge of duties imposed upon them by law. The interests of the people require that due protection be accorded to them in respect of their official acts.'
| 78
|
416 U.S. 312
94 S.Ct. 1704.
40 L.Ed.2d 164
Marco DeFUNIS et al., Petitioners,v.Charles ODEGAARD, President of the University of Washington.
No. 73—235.
Argued Feb. 26, 1974.
Decided April 23, 1974.
Josef Diamond, Seattle, Wash., for petitioners.
Slade Gorton, Atty. Gen., for respondents.
[Amicus Curiae Information from pages 313-314 intentionally omitted]
PER CURIAM.
1
In 1971 the petitioner Marco DeFunis, Jr.,1 applied for admission as a first-year student at the University of Washington Law School, a state-operated institution. The size of the incoming first-year class was to be limited to 150 persons, and the Law School received some 1,600 applications for these 150 places. DeFunis was eventually notified that he had been denied admission. He thereupon commenced this suit in a Washington trial court, contending that the procedures and criteria employed by the Law School Admissions Committee invidiously discriminated against him on account of his race in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
2
DeFunis brought the suit on behalf of himself alone, and not as the representative of any class, against the various respondents, who are officers, faculty members, and members of the Board of Regents of the University of Washington. He asked the trial court to issue a mandatory injunction commanding the respondents to admit him as a member of the first-year class entering in September 1971, on the ground that the Law School admissions policy had resulted in the unconstitutional denial of his application for admission. The trial court agreed with his claim and granted the requested relief. DeFunis was, accordingly, admitted to the Law School and began his legal studies there in the fall of 1971. On appeal, the Washington Supreme Court reversed the judgment of the trial court and held that the Law School admissions policy did not violate the Constitution. By this time DeFunis was in his second year at the Law School.
3
He then petitioned this Court for a writ of certiorari, and Mr. Justice Douglas, as Circuit Justice, stayed the judgment of the Washington Supreme Court pending the 'final disposition of the case by this Court.' By virtue of this stay, DeFunis has remained in law school, and was in the first term of his third and final year when this Court first considered his certiorari petition in the fall of 1973. Because of our concern that DeFunis' third-year standing in the Law School might have rendered this case moot, we requested the parties to brief the question of mootness before we acted on the petition. In response, both sides contended that the case was not moot. The respondents indicated that, if the decision of the Washington Supreme Court were permitted to stand, the petitioner could complete the term for which he was then enrolled but would have to apply to the faculty for permission to continue in the school before he could register for another term.2
4
We granted the petition for certiorari on November 19, 1973. 414 U.S. 1038, 94 S.Ct. 538, 38 L.Ed.2d 329. The case was in due course orally argued on February 26, 1974.
5
In response to questions raised from the bench during the oral argument, counsel for the petitioner has informed the Court that DeFunis has now registered 'for his final quarter in law school.' Counsel for the respondents have made clear that the Law School will not in any way seek to abrogate this registration.3 In light of DeFunis' recent registration for the last quarter of his final law school year, and the Law School's assurance that his registration is fully effective, the insistent question again arises whether this case is not moot, and to that question we now turn.
6
The starting point for analysis is the familiar proposition that 'federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them.' North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971). The inability of the federal judiciary 'to review moot cases derives from the requirement of Art. III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy.' Liner v. Jafco, Inc., 375 U.S. 301, 306 n. 3, 84 S.Ct. 391, 394, 11 L.Ed.2d 347 (1964); see also Powell v. McCormack, 395 U.S. 486, 496 n. 7, 89 S.Ct. 1944, 1950, 23 L.Ed.2d 491 (1969); Sibron v. New York, 392 U.S. 40, 50 n. 8, 88 S.Ct. 1889, 1896, 20 L.Ed.2d 917 (1968). Although as a matter of Washington state law it appears that this case would be saved from mootness by 'the great public interest in the continuing issues raised by this appeal,' 82 Wash.2d 11, 23 n. 6, 507 P.2d 1169, 1177 n. 6 (1973), the fact remains that under Art. III '(e)ven in cases arising in the state courts, the question of mootness is a federal one which a federal court must resolve before it assumes jurisdiction.' North Carolina v. Rice, supra, 404 U.S., at 246, 92 S.Ct., at 404.
7
The respondents have represented that, without regard to the ultimate resolution of the issues in this case, DeFunis will remain a student in the Law School for the duration of any term in which he has already enrolled. Since he has now registered for his final term, it is evident that he will be given an opportunity to complete all academic and other requirements for graduation, and, if he does so, will receive his diploma regardless of any decision this Court might reach on the merits of this case. In short, all parties agree that DeFunis is now entitled to complete his legal studies at the University of Washington and to receive his degree from that institution. A determination by this Court of the legal issues tendered by the parties is no longer necessary to compel that result, and could not serve to prevent it. DeFunis did not cast his suit as a class action, and the only remedy he requested was an injunction commanding his admission to the Law School. He was not only accorded that remedy, but he now has also been irrevocably admitted to the final term of the final year of the Law School course. The controversy between the parties has thus clearly ceased to be 'definite and concrete' and no longer 'touch(es) the legal relations of parties having adverse legal interests.' Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240—241, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937).
8
It matters not that these circumstances partially stem from a policy decision on the part of the respondent Law School authorities. The respondents, through their counsel, the Attorney General of the State, have professionally represented that in no event will the status of DeFunis now be affected by any view this Court might express on the merits of this controversy. And it has been the settled practice of the Court, in contexts no less significant, fully to accept representations such as these as parameters for decision. See Gerende v. Election Board, 341 U.S. 56, 71 S.Ct. 565, 95 L.Ed. 745 (1951); Whitehill v. Elkins, 389 U.S. 54, 57—58, 88 S.Ct. 184, 185—186, 19 L.Ed.2d 228 (1967); Ehlert v. United States, 402 U.S. 99, 107, 91 S.Ct. 1319, 1324, 28 L.Ed.2d 625 (1971); cf. Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154, 162—163, 91 S.Ct. 720, 726—727, 27 L.Ed.2d 749 (1971).
9
There is a line of decisions in this Court standing for the proposition that the 'voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot.' United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953); United States v. Trans-Missouri Freight Assn., 166 U.S. 290, 308—310, 17 S.Ct. 540, 546—547, 41 L.Ed. 1007 (1897); Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 43, 65 S.Ct. 11, 14, 89 L.Ed. 29 (1944); Gray v. Sanders, 372 U.S. 368, 376, 83 S.Ct. 801, 806, 9 L.Ed.2d 821 (1963); United States v. Phosphate Export Assn., 393 U.S. 199, 202—203, 89 S.Ct. 361, 363 364, 21 L.Ed.2d 344 (1968). These decisions and the doctrine they reflect would be quite relevant if the question of mootness here had arisen by reason of a unilateral change in the admissions procedures of the Law School. For it was the admissions procedures that were the target of this litigation, and a voluntary cessation of the admissions practices complained of could make this case moot only if it could be said with assurance 'that 'there is no reasonable expectation that the wrong will be repeated." United States v. W. T. Grant Co., supra, 345 U.S., at 633, 73 S.Ct., at 897. Otherwise, '(t)he defendant is free to return to his old ways,' id., at 632, 73 S.Ct., at 897, and this fact would be enough to prevent mootness because of the 'public interest in having the legality of the practices settled.' Ibid. But mootness in the present case depends not at all upon a 'voluntary cessation' of the admissions practices that were the subject of this litigation. It depends, instead, upon the simple fact that DeFunis is now in the final quarter of the final year of his course of study, and the settled and unchallenged policy of the Law School to permit him to complete the term for which he is now enrolled.
10
It might also be suggested that this case presents a question that is 'capable of repetition, yet evading review,' Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911); Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 713, 35 L.Ed.2d 147 (1973), and is thus amenable to federal adjudication even though it might otherwise be considered moot. But DeFunis will never again be required to run the gantlet of the Law School's admission process, and so the question is certainly not 'capable of repetition' so far as he is concerned. Moreover, just because this particular case did not reach the Court until the eve of the petitioner's graduation from Law School, it hardly follows that the issue he raises will in the future evade review. If the admissions procedures of the Law School remain unchanged,4 there is no reason to suppose that a subsequent case attacking those procedures will not come with relative speed to this Court, now that the Supreme Court of Washington has spoken. This case, therefore, in no way presents the exceptional situation in which the Southern Pacific Terminal doctrine might permit a departure from '(t)he usual rule in federal cases . . . that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated.' Roe v. Wade, supra, at 125, 93 S.Ct., at 712; United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950).
11
Because the petitioner will complete his law school studies at the end of the term for which he has now registered regardless of any decision this Court might reach on the merits of this litigation, we conclude that the Court cannot, consistently with the limitations of Art. III of the Constitution, consider the substantive constitutional issues tendered by the parties.5 Accordingly, the judgment of the Supreme Court of Washington is vacated, and the cause is remanded for such proceedings as by that court may be deemed appropriate.
12
It is so ordered.
13
Vacated and remanded.
14
Mr. Justice DOUGLAS, dissenting.
15
I agree with Mr. Justice BRENNAN that this case is not moot, and because of the significance of the issues raised I think it is important to reach the merits.
16
* The University of Washington Law School received 1,601 applications for admission to its first-year class beginning in September 1971. There were spaces available for only about 150 students, but in order to enroll this number the school eventually offered admission to 275 applicants. All applicants were put into two groups, one of which was considered under the minority admissions program. Thirty-seven of those offered admission had indicated on an optional question on their application that their 'dominant' ethnic origin was either black, Chicano, American Indian, or Filipino, the four groups included in the minority admissions program. Answers to this optional question were apparently the sole basis upon which eligibility for the program was determined. Eighteen of these 37 actually enrolled in the Law School.
17
In general, the admissions process proceeded as follows: An index called the Predicted First Year Average (Average) was calculated for each applicant on the basis of a formula combining the applicant's score on the Law School Admission Test (LSAT) and his grades in his last two years in college.1 On the basis of its experience with previous years' applications, the Admissions Committee, consisting of faculty, administration, and students, concluded that the most outstanding applicants were those with averages above 77; the highest average of any applicant was 81. Applicants with averages above 77 were considered as their applications arrived by random distribution of their files to the members of the Committee who would read them and report their recommendations back to the Committee. As a result of the first three Committee meetings in February, March, and April 1971, 78 applicants from this group were admitted, although virtually no other applicants were offered admission this early.2 By the final conclusion of the admissions process in August 1971, 147 applicants with averages above 77 had been admitted, including all applicants with averages above 78, and 93 of 105 applicants with averages between 77 and 78.
18
Also beginning early in the admissions process was the culling out of applicants with averages below 74.5. These were reviewed by the Chairman of the Admissions Committee, who had the authority to reject them summarily without further consideration by the rest of the Committee. A small number of these applications were saved by the Chairman for Committee consideration on the basis of information in the file indicating greater promise than suggested by the Average. Finally during the early months the Committee accumulated the applications of those with averages between 74.5 and 77 to be considered at a later time when most of the applications had been received and thus could be compared with one another. Since DeFunis' average was 76.23, he was in this middle group.
19
Beginning in their May meeting the Committee considered this middle group of applicants, whose folders had been randomly distributed to Committee members for their recommendations to the Committee. Also considered at this time were remaining applicants with averages below 74.5 who had not been summarily rejected, and some of those with averages above 77 who had not been summarily admitted, but instead held for further consideration. Each Committee member would consider the applications competitively, following rough guidelines as to the proportion who could be offered admission. After the Committee had extended offers of admission to somewhat over 200 applicants, a waiting list was constructed in the same fashion, and was divided into four groups ranked by the Committee's assessment of their applications. DeFunis was on this waiting list, but was ranked in the lowest quarter. He was ultimately told in August 1971 that there would be no room for him.
20
Applicants who had indicated on their application forms that they were either black, Chicano, American Indian, or Filipino were treated differently in several respects. Whatever their Averages, none were given to the Committee Chairman for consideration of summary rejection, nor were they distributed randomly among Committee members for consideration along with the other applications. Instead, all applications of black students were assigned separately to two particular Committee members: a first-year black law student on the Committee, and a professor on the Committee who had worked the previous summer in a special program for disadvantaged college students considering application to the Law School.3 Applications from among the other three minority groups were assigned to an assistant dean who was on the Committee. The minority applications, while considered competitively with one another, were never directly compared to the remaining applications, either by the subcommittee or by the full Committee. As in the admissions process generally, the Committee sought to find 'within the minority category, those persons who we thought had the highest probability of succeeding in Law School.'4 In reviewing the minority applications, the Committee attached less weight to the Average 'in making a total judgmental evaluation as to the relative ability of the particular applicant to succeed in law school.' 82 Wash.2d 11, 21, 507 P.2d 1169, 1175. In its publicly distributed Guide to Applicants, the Committee explained that '(a)n applicant's racial or ethnic background was considered as one factor in our general attempt to convert formal credentials into realistic predictions.'5
21
Thirty-seven minority applicants were admitted under this procedure. Of these, 36 had Averages below DeFunis' 76.23, and 30 had Averages below 74.5, and thus would ordinarily have been summarily rejected by the Chairman. There were also 48 nonminority applicants admitted who had Averages below DeFunis. Twenty-three of these were returning veterans, see n. 2, supra, and 25 were others who presumably were admitted because of other factors in their applications that made them attractive candidates despite their relatively low Averages.
22
It is reasonable to conclude from the above facts that while other factors were considered by the Committee, and were on occasion crucial, the Average was for most applicants a heavily weighted factor, and was at the extremes virtually dispositive.6 A different balance was apparently struck, however, with regard to the minority applicants. Indeed, at oral argument, the respondents' counsel advised us that were the minority applicants considered under the same procedure as was generally used, none of those who eventually enrolled at the Law School would have been admitted.
23
The educational policy choices confronting a university admissions committee are not ordinarily a subject for judicial oversight; clearly it is not for us but for the law school to decide which tests to employ, how heavily to weigh recommendations from professors or undergraduate grades, and what level of achievement on the chosen criteria are sufficient to demonstrate that the candidate is qualified for admission. What places this case in a special category is the fact that the school did not choose one set of criteria but two, and then determined which to apply to a given applicant on the basis of his race. The Committee adopted this policy in order to achieve 'a reasonable representation' of minority groups in the Law School. 82 Wash.2d, at 20, 507 P.2d, at 1175. Although it may be speculated that the Committee sought to rectify what it perceived to be cultural or racial biases in the LSAT or in the candidates' undergraduate records, the record in this case is devoid of any evidence of such bias, and the school has not sought to justify its procedures on this basis.
24
Although testifying that '(w)e do not have a quota . . .' the Law School dean explained that '(w)e want a reasonable representation. We will go down to reach it if we can,' without 'taking people who are unqualified in an absolute sense . . ..' Statement of Facts 420. By 'unqualified in an absolute sense' the dean meant candidates who 'have no reasonable probable likelihood of having a chance of succeeding in the study of law . . ..' Ibid. But the dean conceded that in 'reaching,' the school does take 'some minority students who at least, viewed as a group, have a less such likelihood than the majority student group taken as a whole.' Id., at 423.
25
'Q. Of those who have made application to go to the law school, I am saying you are not taking the best qualified?
26
'A. In total?
27
'Q. In total.
28
'A. In using that definition, yes.' Id., at 423—424.
29
It thus appears that by the Committee's own assessment, it admitted minority students who, by the tests given, seemed less qualified than some white students who were not accepted, in order to achieve a 'reasonable representation.' In this regard it may be pointed out that for the year 1969—1970—two years before the class to which DeFunis was seeking admission—the Law School reported an enrollment of eight black students out of a total of 356.7 Defendants' Ex. 7. That percentage, approximately 2.2%, compares to a percentage of blacks in the population of Washington of approximately 2.1%.8
II
30
There was a time when law schools could follow the advice of Wigmore, who believed that 'the way to find out whether a boy has the makings of a competent lawyer is to see what he can do in a first year of law studies.' Wigmore, Juristic Psychopoyemetrology Or, How to Find Out Whether a Boy Has the Makings of a Lawyer, 24 Ill.L.Rev. 454, 463—464 (1929). In those days there were enough spaces to admit every applicant who met minimal credentials, and they all could be given the opportunity to prove themselves at law school. But by the 1920's many law schools found that they could not admit all minimally qualified applicants, and some selection process began.9 The pressure to use some kind of admissions test mounted, and a number of schools instituted them. One early precursor to the modern day LSAT was the Ferson-Stoddard Law Aptitude examination. Wigmore conducted his own study of that test with 50 student volunteers, and concluded that it 'had no substantial practical value.' Id., at 463. But his conclusions were not accepted, and the harried law schools still sought some kind of admissions test which would simplify the process of judging applicants, and in 1948 the LSAT was born. It has been with us ever since.10
31
The test purports to predict how successful the applicant will be in his first year of law school, and consists of a few hours' worth of multiple-choice questions. But the answers the student can give to a multiple-choice question are limited by the creativity and intelligence of the test-maker; the student with a better or more original understanding of the problem than the test-maker may realize that none of the alternative answers are any good, but there is no way for him to demonstrate his understanding. 'It is obvious from the nature of the tests that they do not give the candidate a significant opportunity to express himself. If he is subtle in his choice of answers it will go against him; and yet there is no other way for him to show any individuality. If he is strong-minded, nonconformist, unusual, original, or creative—as so many of the truly important people are he must stifle his impulses and conform as best he can to the norms that the multiple-choice testers set up in their unimaginative, scientific way. The more profoundly gifted the candidate is, the more his resentment will rise against the mental strait jacket into which the testers would force his mind.' B. Hoffmann, The Tyranny of Testing 91—92 (1962).
32
Those who make the tests and the law schools which use them point, of course, to the high correlations between the test scores and the grades at law school the first year. E.g., Winterbottom, Comments on 'A Study of the Criteria for Legal Education and Admission to the Bar,' An Article by Dr. Thomas M. Goolsby, Jr., 21 J.Legal Ed. 75 (1968). Certainly the tests do seem to do better than chance. But they do not have the value that their deceptively precise scoring system suggests. The proponents' own data show that, for example, most of those scoring in the bottom 20% on the test do better than that in law school—indeed six of every 100 of them will be in the top 20% of their law school class. Id., at 79. And no one knows how many of those who were not admitted because of their test scores would in fact have done well were they given the chance. There are many relevant factors, such as motivation, cultural backgrounds of specific minorities that the test cannot measure, and they inevitably must impair its value as a predictor.11 Of course, the law school that admits only those with the highest test scores finds that on the average they do much better, and thus the test is a convenient tool for the admissions committee. The price is paid by the able student who for unknown reasons did not achieve that high score—perhaps even the minority with a different cultural background. Some tests, at least in the past, have been aimed at eliminating Jews.
33
The school can safely conclude that the applicant with a score of 750 should be admitted before one with a score of 500. The problem is that in many cases the choice will be between 643 and 602 or 574 and 528. The numbers create an illusion of difference tending to overwhelm other factors. 'The wiser testers are well aware of the defects of the multiple-choice format and the danger of placing reliance on any one method of assessment to the exclusion of all others. What is distressing is how little their caveats have impressed the people who succumb to the propaganda of the testmakers and use these tests mechanically as though they were a valid substitute for judgment.' Hoffmann, supra, at 215.
34
Of course, the tests are not the only thing considered; here they were combined with the prelaw grades to produce a new number called the Average. The grades have their own problems; one school's A is another school's C. And even to the extent that this formula predicts law school grades, its value is limited. The law student with lower grades may in the long pull of a legal career surpass those at the top of the class. '(L)aw school admissions criteria have operated within a hermetically sealed system; it is now beginning to leak. The traditional combination of LSAT and GPA (undergraduate grade point average) may have provided acceptable predictors of likely performance in law school in the past. . . . (But) (t)here is no clear evidence that the LSAT and GPA provide particularly good evaluators of the intrinsic or enriched ability of an individual to perform as a law student or lawyer in a functioning society undergoing change. Nor is there any clear evidence that grades and other evaluators of law school performance, and the bar examination, are particularly good predictors of competence or success as a lawyer.' Rosen, Equalizing Access to Legal Education: Special Programs for Law Students Who Are Not Admissible by Traditional Criteria, 1970 U.Tol.L.Rev. 321, 332—333.
35
But, by whatever techniques, the law school must make choices. Neither party has challenged the validity of the Average employed here as an admissions tool, and therefore consideration of its possible deficiencies is not presented as an issue. The Law School presented no evidence to show that adjustments in the process employed were used in order validly to compare applicants of different races; instead, it chose to avoid making such comparisons. Finally, although the Committee did consider other information in the files of all applicants, the Law School has made no effort to show that it was because of these additional factors that it admitted minority applicants who would otherwise have been rejected. To the contrary, the school appears to have conceded that by its own assessment—taking all factors into account—it admitted minority applicants who would have been rejected had they been white. We have no choice but to evaluate the Law School's case as it has been made.
III
36
The Equal Protection Clause did not enact a requirement that law schools employ as the sole criterion for admissions a formula based upon the LSAT and undergraduate grades, nor does it prohibit law schools from evaluating an applicant's prior achievements in light of the barriers that he had to overcome. A black applicant who pulled himself out of the ghetto into a junior college may thereby demonstrate a level of motivation, perseverance, and ability that would lead a fairminded admissions committee to conclude that he shows more promise for law study than the son of a rich alumnus who achieved better grades at Harvard. That applicant would be offered admission not because he is black, but because as an individual he has shown he has the potential, while the Harvard man may have taken less advantage of the vastly superior opportunities offered him. Because of the weight of the prior handicaps, that black applicant may not realize his full potential in the first year of law school, or even in the full three years, but in the long pull of a legal career his achievements may for outstrip those of his classmates whose earlier records appeared superior by conventional criteria. There is currently no test available to the Admissions Committee that can predict such possibilities with assurance, but the Committee may nevertheless seek to gauge it as best it can, and weigh this factor in its decisions. Such a policy would not be limited to blacks, or Chicanos or Filipinos, or American Indians, although undoubtedly groups such as these may in practice be the principal beneficiaries of it. But a poor Appalachian white, or a second generation Chinese in San Francisco, or some other American whose lineage is so diverse as to defy ethnic labels, may demonstrate similar potential and thus be accorded favorable consideration by the Committee.
37
The difference between such a policy and the one presented by this case is that the Committee would be making decisions on the basis of individual attributes, rather than according a preference solely on the basis of race. To be sure, the racial preference here was not absolute—the Committee did not admit all applicants from the four favored groups. But it did accord all such applicants a preference by applying, to an extent not precisely ascertainable from the record, different standards by which to judge their applications, with the result that the Committee admitted minority applicants who, in the school's own judgment, were less promising than other applicants who were rejected. Furthermore, it is apparent that because the Admissions Committee compared minority applicants only with one another, it was necessary to reserve some proportion of the class for them, even if at the outset a precise number of places were not set aside.12 That proportion, apparently 15% to 20%, was chosen, because the school determined it to be 'reasonable,'13 although no explanation is provided as to how that number rather than some other was found appropriate. Without becoming embroiled in a semantic debate over whether this practice constitutes a 'quota,' it is clear that, given the limitation on the total number of applicants who could be accepted, this policy did reduce the total number of places for which DeFunis could compete—solely on account of his race. Thus, as the Washington Supreme Court concluded, whatever label one wishes to apply to it, 'the minority admissions policy is certainly not benign with respect to nonminority students who are displaced by it.' 82 Wash.2d, at 32, 507 P.2d, at 1182. A finding that the state school employed a racial classification in selecting its students subjects it to the strictest scrutiny under the Equal Protection Clause.
38
The consideration of race as a measure of an applicant's qualification normally introduces a capricious and irrelevant factor working an invidious discrimination, Anderson v. Martin, 375 U.S. 399, 402, 84 S.Ct. 454, 455, 11 L.Ed.2d 430; Loving v. Virginia, 388 U.S. 1, 10, 87 S.Ct. 1817, 1822, 18 L.Ed.2d 1010; Harper v. Virginia State Board of Elections, 383 U.S. 663, 668, 86 S.Ct. 1079, 1082, 16 L.Ed.2d 169. Once race is a starting point educators and courts are immediately embroiled in competing claims of different racial and ethnic groups that would make difficult, manageable standards consistent with the Equal Protection Clause. 'The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.' Loving, supra, 388 U.S. at 10, 87 S.Ct., at 1823. The Law School's admissions policy cannot be reconciled with that purpose, unless cultural standards of a diverse rather than a homogeneous society are taken into account. The reason is that professional persons, particularly lawyers, are not selected for life in a computerized society. The Indian who walks to the beat of Chief Seattle of the Muckleshoot Tribe in Washington14 has a different culture from examiners at law schools.
39
The key to the problem is the consideration of each application in a racially neutral way. Since the LSAT reflects questions touching on cultural backgrounds, the Admissions Committee acted properly in my view in setting minority applications apart for separate processing. These minorities have cultural backgrounds that are vastly different from the dominant Caucasian. Many Eskimos, American Indians, Filipinos, Chicanos, Asian Indians, Burmese, and Africans come from such disparate backgrounds that a test sensitively tuned for most applicants would be wide of the mark for many minorities.
40
The melting pot is not designed to homogenize people, making them uniform in consistency. The melting pot as I understand it is a figure of speech that depicts the wide diversities tolerated by the First Amendment under one flag. See 2 S. Morison & H. Commager, The Growth of the American Republic, c. VIII (4th ed. 1950). Minorities in our midst who are to serve actively in our public affairs should be chosen on talent and character alone, not on cultural orientation or leanings.
41
I do know, coming as I do from Indian country in Washington, that many of the young Indians know little about Adam Smith or Karl Marx but are deeply imbued with the spirit and philosophy of Chief Robert B. Jim of the Yakimas, Chief Seattle of the Muckleshoots, and Chief Joseph of the Nez Perce which offer competitive attitudes towards life, fellow man, and nature.15
42
I do not know the extent to which blacks in this country are imbued with ideas of African Socialism.16 Leopold Senghor and Se kou Toure , the most articulate of African leaders, have held that modern African political philosophy is not oriented either to Marxism or to capitalism.17 How far the reintroduction into educational curricula of ancient African art and history has reached the minds of young Afro-Americans I do not know. But at least as respects Indians, blacks, and Chicanos—as well as those from Asian cultures—I think a separate classification of these applicants is warranted, lest race be a subtle force in eliminating minority members because of cultural differences.
43
Insofar as LSAT's reflect the dimensions and orientation of the Organization Man they do a disservice to minorities. I personally know that admissions test were once used to eliminate Jews. How many other minorities they aim at I do not know. My reaction is that the presence of an LSAT is sufficient warrant for a school to put racial minorities into a separate class in order better to probe their capacities and potentials.
44
The merits of the present controversy cannot in my view be resolved on this record. A trial would involve the disclosure of hidden prejudices, if any, against certain minorities and the manner in which substitute measurements of one's talents and character were employed in the conventional tests. I could agree with the majority of the Washington Supreme Court only if, on the record, it could be said that the Law School's selection was raciallt neutral. The case, in my view, should be remanded for a new trial to consider, inter alia, whether the established LSAT's should be eliminated so far as racial minorities are concerned.
45
This does not mean that a separate LSAT must be designed for minority racial groups, although that might be a possibility. The reason for the separate treatment of minorities as a class is to make more certain that racial factors do not militate against an applicant or on his behalf.18
46
There is no constitutional right for any race to be preferred. The years of slavery did more than retard the progress of blacks. Even a greater wrong was done the whites by creating arrogance instead of humility and by encouraging the growth of the fiction of a superior race. There is no superior person by constitutional standards. A DeFunis who is white is entitled to no advantage by reason of that fact; nor is he subject to any disability, no matter what his race or color. Whatever his race, he had a constitutional right to have his application considered on its individual merits in a racially neutral manner.
47
The slate is not entirely clean. First, we have held that pro rata representation of the races is not required either on juries, see Cassell v. Texas, 339 U.S. 282, 286—287, 70 S.Ct. 629, 631 632, 94 L.Ed. 839 or in public schools, Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 24, 94 S.Ct. 1267, 1280, 28 L.Ed.2d 554. Moreover, in Hughes v. Superior Court, 339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985, we reviewed the contempt convictions of pickets who sought by their demonstration to force an employer to prefer Negroes to whites in his hiring of clerks, in order to ensure that 50% of the employees were Negro. In finding that California could constitutionally enjoin the picketing there involved we quoted from the opinion of the California Supreme Court, which noted that the pickets would "make the right to work for Lucky dependent not on fitness for the work nor on an equal right of all, regardless of race, to compete in an open market, but rather, on membership in a particular race. If petitioners were upheld in their demand then other races, white, yellow, brown and red, would have equal rights to demand discriminatory hiring on a racial basis." Id., at 463—464, 70 S.Ct., at 720. We then noted that
48
'(t)o deny to California the right to ban picketing in the circumstances of this case would mean that there could be no prohibition of the pressure of picketing to secure proportional employment on ancestral grounds of Hungarians in Cleveland, of Poles in Buffalo, of Germans in Milwaukee, of Portuguese in New Bedford, of Mexicans in San Antonio, of the numerous minority groups in New York, and so on through the whole gamut of racial and religious concentrations in various cities.' Id., at 464, 70 S.Ct., at 721.
49
The reservation of a proportion of the law school class for members of selected minority groups is fraught with similar dangers, for one must immediately determine which groups are to receive such favored treatment and which are to be excluded, the proportions of the class that are to be allocated to each, and even the criteria by which to determine whether an individual is a member of a favored group. There is no assurance that a common agreement can be reached, and first the schools, and then the courts, will be buffeted with the competing claims. The University of Washington included Filipinos, but excluded Chinese and Japanese; another school may limit its program to blacks, or to blacks and Chicanos. Once the Court sanctioned racial preferences such as these, it could not then wash its hands of the matter, leaving it entirely in the discretion of the school, for then we would have effectively overruled Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114, and allowed imposition of a 'zero' allocation.19 But what standard is the Court to apply when a rejected applicant to Japanese ancestry brings suit to require the University of Washington to extend the same privileges to his group? The Committee might conclude that the population of Washington is now 2% Japanese, and that Japanese also constitute 2% of the Bar, but that had they not been handicapped by a history of discrimination, Japanese would now constitute 5% of the Bar, or 20%. Or, alternatively, the Court could attempt to assess how grievously each group has suffered from discrimination, and allocate proportions accordingly; if that were the standard the current University of Washington policy would almost surely fall, for there is no Western State which can claim that it has always treated Japanese and Chinese in a fair and evenhanded manner. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255; Oyama v. California, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249. This Court has not sustained a racial classification since the wartime cases of Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194, and Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, involving curfews and relocations imposed upon Japanese-Americans.20
50
Nor obviously will the problem be solved if next year the Law School included only Japanese and Chinese, for then Norwegians and Swedes, Poles and Italians, Puerto Ricans and Hungarians, and all other groups which form this diverse Nation would have just complaints.
51
The key to the problem is consideration of such applications in a racially neutral way. Abolition of the LSAT would be a start. The invention of substitute tests might be made to get a measure of an applicant's cultural background, perception, ability to analyze, and his or her relation to groups. They are highly subjective, but unlike the LSAT they are not concealed, but in the open. A law school is not bound by any legal principle to admit students by mechanical criteria which are insensitive to the potential of such an applicant which may be realized in a more hospitable environment. It will be necessary under such an approach to put more effort into assessing each individual than is required when LSAT scores and undergraduate grades dominate the selection process. Interviews with the applicant and others who know him is a time-honored test. Some schools currently run summer programs in which potential students who likely would be bypassed under conventional admissions criteria are given the opportunity to try their hand at law courses,21 and certainly their performance in such programs could be weighed heavily. There is, moreover, no bar to considering an individual's prior achievements in light of the racial discrimination that barred his way, as a factor in attempting to assess his true potential for a successful legal career. Nor is there any bar to considering on an individual basis, rather than according to racial classifications, the likelihood that a particular candidate will more likely employ his legal skills to service communities that are not now adequately represented than will competing candidates. Not every student benefited by such an expanded admissions program would fall into one of the four racial groups involved here, but it is no drawback that other deserving applicants will also get an opportunity they would otherwise have been denied. Certainly such a program would substantially fulfill the Law School's interest in giving a more diverse group access to the legal profession. Such a program might be less convenient administratively than simply sorting students by race, but we have never held administrative convenience to justify racial discrimination.
52
The argument is that a 'compelling' state interest can easily justify the racial discrimination that is practiced here. To many, 'compelling' would give members of one race even more than pro rata representation. The public payrolls might then be deluged say with Chicanos because they are as a group the poorest of the poor and need work more than others, leaving desperately poor individual blacks and whites without employment. By the same token large quotas of blacks or browns could be added to the Bar, waiving examinations required of other groups, so that it would be better racially balanced.22 The State, however, may not proceeded by racial classification to force strict population equivalencies for every group in every occupation, overriding individual preferences. The Equal Protection Clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized. The purpose of the University of Washington cannot be to produce black lawyers for blacks, Polish lawyers for Poles, Jewish lawyers for Jews, Irish lawyers for Irish. It should be to produce good lawyers for Americans and not to place First Amendment barriers against anyone.23 That is the point at the heart of all our school desegregation cases, from Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, through Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554. A segregated admissions process creates suggestions of stigma and caste no less than a segregated classroom, and in the end it may produce that result despite its contrary intentions. One other assumption must be clearly disapproved; that blacks or browns cannot make it on their individual merit. That is a stamp of inferiority that a State is not permitted to place on any lawyer.
53
If discrimination based on race is constitutionally permissible when those who hold the reins can come up with 'compelling' reasons to justify it, then constitutional guarantees acquire an accordionlike quality. Speech is closely brigaded with action when it triggers a fight, Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031, as shouting 'fire' in a crowded theater triggers a riot. It may well be that racial strains, racial susceptibility to certain diseases, racial sensitiveness to environmental conditions that other races do not experience, may in an extreme situation justify differences in racial treatment that no fairminded person would call 'invidious' discrimination. Mental ability is not in that category. All races can compete fairly at all professional levels. So far as race is concerned, any state-sponsored preference to one race over another in that competition is in my view 'invidious' and violative of the Equal Protection Clause.
54
The problem tendered by this case is important and crucial to the operation of our constitutional system; and educators must be given leeway. It may well be that a whole congeries of applicants in the marginal group defy known methods of selection. Conceivably, an admissions committee might conclude that a selection by lot of, say, the last 20 seats is the only fair solution. Courts are not educators; their experties is limited; and our task ends with the inquiry whether judged by the main purpose of the Equal Protection Clause—the protection against racial discrimination24—there has been an 'invidious' discrimination.
55
We would have a different case if the suit were one to displace the applicant who was chosen in lieu of DeFunis. What the record would show concerning his potentials would have to be considered and weighed. The educational decision, provided proper guidelines were used, would reflect an expertise that courts should honor. The problem is not tendered here because the physical facilities were apparently adequate to take DeFunis in addition to the others. My view is only that I cannot say by the tests used and applied he was invidiously discriminated against because of his race.
56
I cannot conclude that the admissions procedure of the Law School of the University of Washington that excluded DeFunis is violative of the Equal Protection Clause of the Fourteenth Amendment. The judgment of the Washington Supreme Court should be vacated and the case remanded for a new trial.
APPENDIX TO OPINION OF DOUGLAS, J., DISSENTING
57
The following are excerpts from the Law School's current admissions policy, as provided to the Court by counsel for the respondents.
ADMISSIONS
58
A. Policy Statement Regarding Admission to Entering Classes of Juris Doctor Program—Adopted by the Law Faculty December 4, 1973.
59
§ 1. The objectives of the admissions program are to select and admit those applicants who have the best prospect of high quality academic work at the law school and, in the minority admissions program described below, the further objective there stated.
60
§ 2. In measuring academic potential the law school relies primarily on the undergraduate grade-point average and the performance on the Law School Admission Test (LSAT). The weighting of these two indicators is determined statistically by reference to past experience at this school. For most applicants the resulting applicant ranking is the most nearly accurate of all available measures of relative academic potential. In truly exceptional cases, i.e., those in which the numerical indicators clearly appear to be an inaccurate measure of academic potential, the admission decision indicated by them alone may be altered by a consideration of the factors listed below. The number of these truly exceptional cases in any particular year should fall somewhere from zero to approximately forty. These factors are used, however, only as an aid in assessing the applicant's academic potential in its totality, without undue emphasis or reliance upon one or a few and without an attempt to quantify in advance the strength of their application, singly or as a whole, in a particular case. They are:
61
a) the difficulty or ease of the undergraduate curriculum track pursued;
62
b) the demanding or non-demanding quality of the undergraduate school or department;
63
c) the attainment of an advanced degree, the nature thereof, and difficulty or ease of its attainment;
64
d) the applicant's pursuits subsequent to attainment of the undergraduate degree and the degree of success therein, as bearing on the applicant's academic potential;
65
e) the possibility that an applicant many years away from academic work may do less well on the LSAT than his or her counterpart presently or recently in academic work;
66
f) substantial change in mental or physical health that indicates prospect for either higher or lower quality of academic work;
67
g) substantial change in economic pressures or other circumstances that indicates prospect for either higher or lower quality of academic work;
68
h) exceptionally good or bad performance upon the writing test ingredient of the LSAT, if the current year's weighting of the numerical indicators does not otherwise take the writing score into account;
69
i) the quality and strength of recommendations bearing upon the applicant's academic potential;
70
j) objective indicators of motivation to succeed at the academic study of law;
71
k) variations in the level of academic achievement over time; and
72
l) any other indicators that serve the objective stated above.
73
§ 6. Because certain ethnic groups in our society have historically been limited in their access to the legal profession and because the resulting underrepresentation can affect the quality of legal services available to members of such groups, as well as limit their opportunity for full participation in the governance of our communities, the faculty recognizes a special obligation in its admissions policy to contribute to the solution of the problem.
74
Qualified minority applicants are therefore admitted under the minority admissions program in such number that the entering class will have a reasonable proportion of minority persons, in view of the obligation stated above and of the overall objective of the law school to provide legal education for qualified persons generally. For the purpose of determining the number to be specially admitted under the program, and not as a ceiling on minority admissions generally, the faculty currently believes that approximately 15 to 20 percent is such a reasonable proportion if there are sufficient qualified applicants available. Under the minority admissions program, admission is offered to those applicants who have a reasonable prospect of academic success at the law school, determined in each case by considering the numerical indicators along with the listed factors in Section 2, above, but without regard to the restriction upon number contained in that section.
75
No particular internal percentage or proportion among various minority groups in the entering class is specified; rather, the law school strives for a reasonable internal balance given the particular makeup of each year's applicant population.
76
As to some or all ethnic groups within the scope of the minority admissions program, it may be appropriate to give a preference in some degree to residents of the state; that determination is made each year in view of all the particulars of that year's situation, and the preference is given when necessary to meet some substantial local need for minority representation.
77
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS, Mr. Justice WHITE, and Mr. Justice MARSHALL concur, dissenting.
78
I respectfully dissent. Many weeks of the school term remain, and petitioner may not receive his degree despite respondents' assurances that petitioner will be allowed to complete this term's schooling regardless of our decision. Any number of unexpected events—illness, economic necessity, even academic failure—might prevent his graduation at the end of the term. Were that misfortune to befall, and were petitioner required to register for yet another term, the prospect that he would again face the hurdle of the admissions policy is real, not fanciful; for respondents warn that 'Mr. DeFunis would have to take some appropriate action to request continued admission for the remainder of his law school education, and some discretionary action by the University on such request would have to be taken.' Respondents' Memorandum on the Question of Mootness 3—4 (emphasis supplied). Thus, respondents' assurances have not dissipated the possibility that petitioner might once again have to run the gantlet of the University's allegedly unlawful admissions policy. The Court therefore proceeds on an erroneous premise in resting its mootness holding on a supposed inability to render any judgment that may affect one way or the other petitioner's completion of his law studies. For surely if we were to reverse the Washington Supreme Court, we could insure that, if for some reason petitioner did not graduate this spring, he would be entitled to re-enrollment at a later time on the same basis as others who have not faced the hurdle of the University's allegedly unlawful admissions policy.
79
In these circumstances, and because the University's position implies no concession that its admissions policy is unlawful, this controversy falls squarely within the Court's long line of decisions holding that the '(m)ere voluntary cessation of allegedly illegal conduct does not moot a case.' United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968); see Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963); United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 65 S.Ct. 11, 89 L.Ed. 29 (1944); FTC v. Goodyear Tire & Rubber Co., 304 U.S. 257, 58 S.Ct. 863, 82 L.Ed. 1326 (1938); United States v. Trans-Missouri Freight Assn., 166 U.S. 290, 17 S.Ct. 540, 41 L.Ed. 1007 (1897). Since respondents' voluntary representation to this Court is only that they will permit petitioner to complete this term's studies, respondents have not borne the 'heavy burden,' United States v. Concentrated Phosphate Export Assn., supra, 393 U.S., at 203, 89 S.Ct., at 364, of demonstrating that there was not even a 'mere possibility' that petitioner would once again be subject to the challenged admissions policy. United States v. W. T. Grant Co., supra, 345 U.S., at 633, 73 S.Ct., at 898. On the contrary, respondents have positioned themselves so as to be 'free to return to (their) old ways.' Id., at 632, 73 S.Ct., at 897.
80
I can thus find no justification for the Court's straining to rid itself of this dispute. While we must be vigilant to require that litigants maintain a personal stake in the outcome of a controversy to assure that 'the questions will be framed with the necessary specificity, that the issues will be contested with the necessity adverseness and that the litigation will be pursued with the necessary vigor to assure that the constitutional challenge will be made in a form traditionally thought to be capable of judicial resolution,' Flast v. Cohen, 392 U.S. 83, 106, 88 S.Ct. 1942, 1955, 20 L.Ed.2d 947 (1968), there is no want of an adversary contest in this case. Indeed, the Court concedes that, if petitioner has lost his stake in this controversy, he did so only when he registered for the spring term. But appellant took that action only after the case had been fully litigated in the state courts, briefs had been filed in this Court, and oral argument had been heard. The case is thus ripe for decision on a fully developed factual record with sharply defined and fully canvassed legal issues. Cf. Sibron v. New York, 392 U.S. 40, 57, 88 S.Ct. 1889, 1899, 20 L.Ed.2d 917 (1968).
81
Moreover, in endeavoring to dispose of this case as moot, the Court clearly disserves the public interest. The constitutional issues which are avoided today concern vast numbers of people, organizations, and colleges and universities, as evidenced by the filing of twenty-six amicus curiae briefs. Few constitutional questions in recent history have stirred as much debate, and they will not disappear. They must inevitably return to the federal courts and ultimately again to this Court. Cf. Richardson v. Wright, 405 U.S. 208, 212, 92 S.Ct. 788, 791, 31 L.Ed.2d 151 (1972) (dissenting opinion). Because avoidance of repetitious litigation serves the public interest, that inevitability counsels against mootness determinations, as here, not compelled by the record. Cf. United States v. W. T. Grant Co., supra, 345 U.S., at 632, 73 S.Ct., at 897; Parker v. Ellis, 362 U.S. 574, 594, 80 S.Ct. 909, 920, 4 L.Ed.2d 963 (1960) (dissenting opinion). Although the Court should, of course, avoid unnecessary decisions of constitutional questions, we should not transform principles of avoidance of constitutional decisions into devices for sidestepping resolution of difficult cases. Cf. Cohens v. Virginia, 6 Wheat. 264, 404—405, 5 L.Ed. 257 (1821) (Marshall, C.J.).
82
On what appears in this case, I would find that there is an extant controversy and decide the merits of the very important constitutional questions presented.
1
Also included as petitioners are DeFunis' parents and his wife. Hereafter, the singular form 'petitioner' is used.
2
By contrast, in their response to the petition for certiorari, the respondents had stated that DeFunis 'will complete his third year (of law school) and be awarded his J.D. degree at the end of the 1973—74 academic year regardless of the outcome of this appeal.'
3
In their memorandum on the question of mootness, counsel for the respondents unequivocally stated: 'If Mr. DeFunis registers for the spring quarter under the existing order of this court during the registration period from February 20, 1974, to March 1, 1974, that registration would not be canceled unilaterally by the university regardless of the outcome of this litigation.'
4
In response to an inquiry from the Court, counsel for the respondents has advised that some changes have been made in the admissions procedures 'for the applicants seeking admission to the University of Washington law school for the academic year commencing September, 1974.' The respondents' counsel states, however, that '(These) changes do not affect the policy challenged by the petitioners . . . in that . . . special consideration still is given to applicants from 'certain ethnic groups."
5
It is suggested in dissent that '(a)ny number of unexpected events—illness, economic necessity, even academic failure—might prevent his graduation at the end of the term.' Post, at 348. 'But such speculative contingencies afford no basis for our passing on the substantive issues (the petitioner) would have us decide,' Hall v. Beals, 396 U.S. 45, 49, 90 S.Ct. 200, 202, 24 L.Ed.2d 214 (1969), in the absence of 'evidence that this is a prospect of 'immediacy and reality." Golden v. Zwickler, 394 U.S. 103, 109, 89 S.Ct. 956, 960, 22 L.Ed.2d 113 (1969); Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941).
1
The grades are calculated on a conventional 4.0 scale, and the LSAT is scored on a scale ranging from 200 to 800. A Writing Test given on the same day as the LSAT and administered with it is also included in the formula; it is scorded on a scale of 20 to 80. The Admissions Committee combines these scores into the Average by calculating the sum of 51.3, 3.4751 the grade-point average, .0159 LSAT score, and .0456 the Writing Test score. App. 24. For a brief discussion of the use of the LSAT in combination with undergraduate grades to predict law school success, see Winterbottom, Comments on 'A Study of the Criteria for Legal Education and Admission to the Bar,' An Article by Dr. Thomas M. Goolsby, Jr., 21 J. Legal Ed. 75 (1968).
2
The only other substantial group admitted at this point were 19 'military' applicants. These were students who had previously been admitted to the school but who had either been unable to come, or forced to leave during their tenure, because of the draft. They were given preferential treatment upon reapplication after completing their military obligation. Since neither party has raised any issue concerning this group of applicants, the remaining consideration of the admissions procedure will not discuss them. Four minority applicants were also admitted at this time, although none apparently had scores above 77. App. 31. Their admission was presumably pursuant to the procedure for minority applicants described below.
3
This was a Council on Legal Education Opportunities program, federally funded by the Office of Economic Opportunity and sponsored by the American Bar Association, the Association of American Law Schools, the National Bar Association, and the Law School Admissions Council.
4
Testimony of the Chairman of the Admissions Committee, Statement of Facts 353.
5
The Guide to Applicants explained:
'We gauged the potential for outstanding performance in law school not only from the existence of high test scores and grade point averages, but also from careful analysis of recommendations, the quality of work in difficult analytical seminars, courses, and writing programs, the academic standards of the school attended by the applicant, the applicant's graduate work (if any), and the nature of the applicant's employment (if any), since graduation.
'An applicant's ability to make significant contributions to law school classes and the community at large was assessed from such factors as his extracurricular and community activities, employment, and general background.
'We gave no preference to, but did not discriminate against, either Washington residents or women in making our determinations. An applicant's racial or ethnic background was considered as one factor in our general attempt to convert formal credentials into realistic predictions.' 82 Wash.2d 11, 18—19, 507 P.2d 1169, 1174.
6
The respondents provided the following table in response to an interrogatory during the proceedings in the state court:
Predicted Number of
First Year Applications Number
Averages Received Accepted
81 1 1
80 2 2
79 11 11
78 42 42
77 105 93
76 169 53
75 210 22
App. 34.
7
Although there is apparently no evidence in point in the record, respondents suggest that at least some of these eight students were also admitted on a preferential basis. Brief for Respondents 40 n. 27.
8
United States Bureau of the Census, Census of Population: 1970, General Population Characteristics, Washington, Final Report PC(1)—B49, Table 18.
9
For a history of gradual acceptance among law schools of standardized tests as an admission tool, see Ramsey, Law School Admissions: Science, Art, or Hunch?, 12 J.Legal Ed. 503 (1960).
10
For a survey of the use of the LSAT by American law school as of 1965, see Lunneborg & Radford, the LSAT: A Survey of Actual Practice, 18 J. Legal Ed. 313 (1966).
11
Rock, Motivation, Moderators, and Test Bias, 1970 U.Tol.L.Rev. 527, 535.
12
At the outset the Committee may have chosen only a range, with the precise number to be determined later in the process as the total number of minority applicants, and some tentative assessment of their quality, could be determined. This appears to be the current articulated policy, see App. to this opinion § 6, and we are advised by the respondents that § 6 'represents a more formal statement of the policy which was in effect in 1971 . . . but does not represent any change in policy.' Letter to the Court dated March 19, 1974, p. 1. The fact that the Committee did not set a precise number in advance is obviously irrelevant to the legal analysis. Nor does it matter that there is some minimal level of achievement below which the Committee would not reach in order to achieve its stated goal as to the proportion of the class reserved for minority groups, so long as the Committee was willing, in order to achieve that goal, to admit minority applicants who, in the Committee's own judgment, were less qualified than other rejected applicants and who would not otherwise have been admitted.
13
See n. 12, supra, and App. to this opinion § 6.
14
Uncommon Controversy, Report Prepared for American Friends Service Committee 29—30 (1970).
15
See C. Fee, Chief Joseph, The Biography of a Great Indian (1936).
16
See F. Brockway, African Socialism (1963); African Socialism (W. Friedland & C. Rosberg ed. 1964).
17
See L. Senghor, On African Socialism (M. Cook ed. 1964).
18
We are not faced here with a situation where barriers are overtly or covertly put in the path of members of one racial group which are not required by others. There was also no showing that the purpose of the school's policy was to eliminate arbitrary and irrelevant barriers to entry by certain racial groups into the legal profession groups. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158. In Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554, we stated that as a matter of educational policy school authorities could, within their broad discretion, specify that each school within its district have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole, in order to disestablish a dual school system. But there is a crucial difference between the policy suggested in Swann and that under consideration here: the Swann policy would impinge on no person's constitutional rights, because no one would be excluded from a public school and no one has a right to attend a segregated public school.
19
Sweatt held that a State could not justify denying a black admission to its regular law school by creating a new law school for blacks. We held that the new law school did not meet the requirements of 'equality' set forth in Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256.
The student, we said, was entitled to 'legal education equivalent to that offered by the State to students of other races. Such education is not available to him in a separate law school as offered by the State.' 339 U.S., at 635, 70 S.Ct., at 851.
20
Those cases involved an exercise of the war power, a great leveler of other rights. Our Navy was sunk at Pearl Harbor and no one knew where the Japanese fleet was. We were advised on oral argument that if the Japanese landed troops on our west coast nothing could stop them west of the Rockies. The military judgment was that, to aid in the prospective defense of the west coast, the enclaves of Americans of Japanese ancestry should be moved inland, lest the invaders by donning civilian clothes would wreak even more serious havoc on our western ports. The decisions were extreme and went to the verge of wartime power; and they have been severely criticized. It is, however, easy in retrospect to denounce what was done, as there actually was no attempted Japanese invasion of our country. While our Joint Chiefs of Staff were worrying about Japanese soldiers landing on the west coast, they actually were landing in Burma and at Kota Bharu in Malaya. But those making plans for defense of the Nation had no such knowledge and were planning for the worst. Moreover, the day we decided Korematsu we also decided Ex parte Endo, 323 U.S. 283, 65 S.Ct. 208, 89 L.Ed. 243, holding that while evacuation of the Americans of Japanese ancestry was allowable under extreme war conditions, their detention after evacuation was not. We said:
'A citizen who is concededly loyal presents no problem of espionage or sabotage. Loyalty is a matter of the heart and mind not of race, creed, or color. He who is loyal is by definition not a spy or a saboteur. When the power to detain is derived from the power to protect the war effort against espionage and sabotage, detention which has no relationship to that objective is unauthorized.' Id., at 302, 65 S.Ct., at 218.
21
See n. 3, supra.
22
In Johnson v. Committee on Examinations, 407 U.S. 915, 92 S.Ct. 2439, 32 L.Ed.2d 690, we denied certiorari in a case presenting a similar issue. There the petitioner claimed that the bar examiners reconsidered the papers submitted by failing minority applicants whose scores were close to the cutoff point, with the result that some minority applicants were admitted to the Bar although they initially had examination scores lower than those of white applicants who failed.
As the Arizona Supreme Court denied Johnson admission summarily, in an original proceeding, there were no judicial findings either sustaining or rejecting his factual claims of racial bias, putting the case in an awkward posture for review here. Johnson subsequently brought a civil rights action in Federal District Court, seeking both damages and injunctive relief. The District Court dismissed the action and the Court of Appeals affirmed, holding that the lower federal courts did not have jurisdiction to review the decisions of the Arizona Supreme Court on admissions to the state Bar. Johnson then sought review here and we denied his motion for leave to file a petition for mandamus, prohibition and/or certiorari on February 19, 1974. Johnson v. Wilmer, 415 U.S. 911, 94 S.Ct. 1456, 39 L.Ed.2d 496. Thus in the entire history of the case no court had ever actually sustained Johnson's factual contentions concerning racial bias in the bar examiners' procedures. DeFunis thus appears to be the first case here squarely presenting the problem.
23
Underlying all cultural background tests are potential ideological issues that have plagued bar associations and the courts. In re Summers, 325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed. 1795, involved the denial of the practice of law to a man who could not conscientiously bear arms. The vote against him was five to four. Konigsberg v. State Bar, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810, followed, after remand, by Konigsberg v. State Bar, 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105, resulted in barring one from admission to a state bar because of his refusal to answer questions concerning Communist Party membership. He, too, was excluded five to four. The petitioner in Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796, was, however, admitted to practice even though he had about 10 years earlier been a member of the Communist Party. But In re Anastaplo, 366 U.S. 82, 81 S.Ct. 978, 6 L.Ed.2d 135, a five-to-four decision, barred a man from admission to a state bar not because he invoked the Fifth Amendment when asked about membership in the Communist Party, but because he asserted that the First and Fourteenth Amendments protected him from that inquiry. Baird v. State Bar of Arizona, 401 U.S. 1, 91 S.Ct. 702, 27 L.Ed.2d 639, held by a divided vote that a person could not be kept out of the state bar for refusing to answer whether he had ever been a member of the Communist Party; and see In re Stolar, 401 U.S. 23, 91 S.Ct. 713, 27 L.Ed.2d 657.
24
See Slaughter House Cases, 16 Wall. 36, 81, 21 L.Ed. 394.
| 12
|
416 U.S. 251
94 S.Ct. 1746
40 L.Ed.2d 120
Con F. SHEA, Etc., et al., petitioners,v.Ascension VIALPANDO, Etc.
No. 72—1513.
Argued Feb. 26, 1974.
Decided April 23, 1974.
Syllabus
Section 402(a)(7) of the Social Security Act requires state agencies in administering the Aid to Families with Dependent Children (AFDC) program to 'take into consideration . . . any expenses reasonably attributable to the earning of . . . income.' Such expenses are deducted from an AFDC applicant's income in determining eligibility for assistance. Colorado's AFDC regulations, which previously had permitted the deduction from income of all expenses reasonably attributable to employment, including transportation expenses, were amended in 1970 to subject work-related expenses (with certain exceptions) to a uniform allowance of $30 per month. This substantially reduced respondent's monthly deductions for work-related transportation expenses and the corresponding increase in her monthly net income made her ineligible for continued AFDC assistance. She then brought this action for injunctive and declaratory relief, claiming, inter alia, that Colorado's standardized work-expense allowance violated § 402(a)(7). The District Court granted summary judgment for respondent, and the Court of Appeals affirmed. Held: The Colorado regulation conflicts with § 402(a)(7) and is therefore invalid. Pp. 258—266.
(a) In light of the statute's legislative history and the normal meaning of the term 'any,' the language of § 402(a)(7) requiring the consideration of 'any' reasonable work expenses in determining eligibility for AFDC assistance is to be interpreted as a congressional directive that no limitation, apart from that of reasonableness, may be placed upon recognition of work-related expenses, and hence a fixed work-expense allowance that does not permit deductions for expenses exceeding that standard directly contravenes the language of the statute. P. 260.
(b) Standardized treatment of work-related expenses without provision for showing actual and reasonable expenses exceeding the standard amount threatens to defeat the purpose of the mandatory work-expense recognition provision of § 402(a)(7) of encouraging AFDC recipients to secure and retain employment, since by limiting work expenses to $30 per month the Colorado regulation results in a disincentive to seek or retain employment for all recipients whose reasonable work-related expenses exceed or would exceed that amount. Pp. 263—265.
(c) It is not the adoption of a standardized work-expense allowance per se that violates § 402(a)(7), but the fact that the standard is in effect a maximum or absolute limitation upon the recognition of such expenses. P. 265.
10 Cir., 475 F.2d 731, affirmed.
Douglas D. Doane and Charles B. Lennahan, Denver, Colo., for petitioners.
Tom W. Armour, San Francisco, Cal., for respondents.
Mr. Justice POWELL delivered the opinion of the Court.
1
In administering the Aid to Families with Dependent Children (AFDC) program of the Social Security Act of 1935, as amended (Act), 42 U.S.C. § 601 et seq., state agencies are required by § 402(a)(7) of the Act, 81 Stat. 881, 42 U.S.C. § 602(a)(7), to 'take into consideration . . . any expenses reasonably attributable to the earning of . . . income.' Such employment-related expenses are deducted from an AFDC applicant's income in the process of determining eligibility for assistance. We granted certiorari, 414 U.S. 999, 94 S. Ct. 351, 39 L.Ed.2d 235 (1973), to determine whether, in light of § 402(a)(7), a State may adopt a standardized allowance for expenses attributable to the earning of income which does not allow an applicant to deduct expenses that exceed the standard. We hold that it may not.
2
* The AFDC program is designed to provide financial assistance to needy dependent children and the parents or relatives who live with and care for them. A principal purpose of the program, as indicated by 42 U.S.C. § 601, is to help such parents and relatives 'to attain or retain capability for the maximum self-support and personal independence consistent with the maintenance of continuing parental care and protection . . ..' The program 'is based on a scheme of cooperative federalism,' King v. Smith, 392 U.S. 309, 316, 88 S.Ct. 2128, 2133, 20 L.Ed.2d 1118 (1968). It is financed in large measure by the Federal Government on a matching-fund basis, and participating States must submit AFDC plans in conformity with the Act and the regulations promulgated thereunder by the Department of Health, Education, and Welfare (HEW). The program is, however, administered by the States, which are given broad discretion in determining both the standard of need and the level of benefits. See Jefferson v. Hackney, 406 U.S. 535, 541, 92 S.Ct. 1724, 1729, 32 L.Ed.2d 285 (1972); Rosado v. Wyman, 397 U.S. 397, 408—409, 90 S.Ct. 1207, 1215—1216, 25 L.Ed.2d 442 (1970); Dandridge v. Williams, 397 U.S. 471, 478, 90 S.Ct. 1153, 1158, 25 L.Ed.2d 491 (1970); King v. Smith, supra, 392 U.S., at 318—319, 88 S.Ct., at 2133—2134.
3
Under HEW regulations all AFDC plans must specify a statewide standard of need, which is the amount deemed necessary by the State to maintain a hypothetical family at a subsistence level. Both eligibility for AFDC assistance and the amount of benefits to be granted an individual applicant are based on a comparison of the State's standard of need with the income and resources available to that applicant. 45 CFR § 233.20(a)(2)(i). The 'income and resources' attributable to an applicant, defined in 45 CFR §§ 233.20(a)(6) (iii—viii), consist generally of 'only such net income as is actually available for current use on a regular basis . . . and only currently available resources.' 45 CFR § 233.20(a)(3)(ii)(c). See also HEW, Simplified Methods for Consideration of Income and Resources (1965). In determining net income, any expenses reasonably attributable to the earning of income are deducted from gross income. 42 U.S.C. § 602(a)(7). If, taking into account these deductions and other deductions not at issue in the instant case, the net amount of 'earned income' is less than the predetermined statewide standard of need, the applicant is eligible for participation in the program and the amount of the assistance payments will be based upon that difference. 45 CFR §§ 233.20(a)(3) (ii)(a) and (c).
4
Prior to May 1970, Colorado's AFDC regulations permitted the deduction from income of all expenses reasonably attributable to employment, including but not limited to the actual cost of transportation, if 'essential to retain employment.'1 Child care expenses and mandatory payroll deductions were also treated as employment-related expenses, and all such expenses were computed on an individualized basis. In May 1970, this policy was changed by the establishment of a maximum transportation work-expense allowance of either $30 per month, if the use of a car was essential, or the actual expense of public transportation. Effective July 1, 1970, the Colorado work-expense allowance regulation was again amended to provide that in addition to mandatory payroll deductions and child care expenses:
5
'For employment expenses such as transportation, special clothing, union dues, special education or training costs, telephone, additional food or personal needs, etc., which are an obligation due to the employment, an allowance of $30 per month is made for such costs.'2
6
Thus, while Colorado continued to allow individualized treatment of mandatory payroll deductions and child care costs, all other work-related expenses were subjected to a uniform allowance of $30, even if an applicant could prove actual expenses in excess of that figure. The Regional Commissioner of the Social and Rehabilitation Service of HEW thereafter accepted the incorporation of this provision into Colorado's AFDC plan.3
7
When this suit was commenced in July 1970, Mrs. Vialpando was employed some eight miles from the small Colorado community in which she resided with her two-year-old daughter. Since no public transportation was available, respondent traveled to and from work each day in a used automobile she had purchased for that purpose. In making the requisite eligibility and assistance determinations under the Colorado AFDC program, Mrs. Vialpando had been permitted to deduct $47.30 in mileage costs and $63.81 in car payments4 from her monthly gross income. These deductions of approximately $110 per month, coupled with child care and mandatory payroll deductions, entitled her to an AFDC grant of $74 per month for herself and her daughter. The effect of the July 1970 amendment of the Colorado AFDC regulations was to reduce respondent's monthly deductions for transportation expenses related to employment from $110 to $30. The corresponding increase in her monthly net earned income rendered her ineligible for continued AFDC assistance.5
8
Respondent thereupon brought this class action in the United States District Court for the District of Colorado under 42 U.S.C. § 1983 and 28 U.S.C. §§ 1343(3) and (4). She sought the convening of a three-judge District Court, and requested injunctive relief and a declaratory judgment that the Colorado standardized work-expense allowance violated § 402(a)(7) of the Act and the Equal Protection Clause of the Fourteenth Amendment. Named as defendants were the Executive Director of the Colorado Department of Social Services and other state officers involved in administering Colorado's AFDC program. Upon stipulated facts and in reliance upon § 402(a)(7) of the Act, the District Court in an unreported order granted respondent's motion for summary judgment and enjoined enforcement of the challenged regulation.6 Finding the pendent federal statutory claim dispositive, the District Court properly did not reach the constitutional issue and properly did not convene a three-judge court. Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974).
9
The United States Court of Appeals for the Tenth Circuit affirmed. 475 F.2d 731 (1973). Relying on the language and the legislative history of § 402(a)(7) and on other provisions of the Act, the court interpreted the words 'any expenses' in § 402(a)(7) to mean 'all actual expenses,' and held that the standardized allowance did not meet this requirement. The court reasoned that the statute could be read to permit the use of a standardized allowance for employment expenses, but only where such an allowance was adequate to cover all actual expenses. We agree.
II
10
The Social Security Act of 1935, as originally enacted, 49 Stat. 620, did not expressly require that States allow AFDC beneficiaries to deduct from gross income expenses incurred in connection with the earning of income. The precursor to § 402(a)(7), which appeared in the 1939 amendments to the Act, 53 Stat. 1379, provided simply that
11
'the State agency shall, in determining need, take into consideration any other income and resources of any child claiming aid to dependent children.'
12
The Social Security Board, the federal entity then overseeing the categorical public assistance programs, soon recognized that under the predecessor of the AFDC program7 recipient families with working members incurred certain employment-related expenses that reduced available income but were not taken into account by the States in determining eligibility for AFDC assistance. In keeping with the Act's purpose of encouraging employment even when the income produced thereby did not eliminate entirely the need for public assistance, the Board recognized that a failure to consider work-related expenses could result in a disincentive to seek or retain employment. Accordingly, the States were permitted but not required to allow credit for work-related expenses in determining eligibility.8
13
As part of a general amendment of the Act in 1962, Pub.L. 87 543, 76 Stat. 185, Congress made mandatory the widespread but then optional practice of deducting employment expenses from total income in determining eligibility for assistance. Section 402(a)(7) of the Act as thus amended provided in relevant part:
14
'(T)he State agency shall, in determining need, take into consideration any other income and resources of any child or relative claiming aid to families with dependent children, as well as any expenses reasonably attributable to the earning of any such income. . . .' (Emphasis added.)
15
By its terms, § 402(a)(7) requires the consideration of 'any' reasonable work expenses in determining eligibility for AFDC assistance. In light of the evolution of the statute and the normal meaning of the term 'any,' we read this language as a congressional directive that no limitation, apart from that of reasonableness, may be placed upon the recognition of expenses attributable to the earning of income. Accordingly, a fixed work-expense allowance which does not permit deductions for expenses in excess of that standard is directly contrary to the language of the statute.
16
Petitioners, relying upon the 'take into consideration' phrase of § 402(a)(7), argue that the requirement of 'consideration' is satisfied by the use of a statistical average of the actual expenses of all AFDC participants in the State. But this argument ignores the fact that the phrase 'take into consideration' modifies 'income and resources . . . as well as any expenses reasonably attributable to the earning of any such income' (emphasis added). Thus, it seems inescapable that whatever treatment is accorded income must also be extended to expenses attributable to the earning of income. And, it has consistently been the practice to compute the income of an AFDC applicant on an individual basis.
17
From the inception of the Act, Congress has sought to ensure that AFDC assistance is provided only to needy families, and that the amount of assistance actually paid is based on the amount needed in the individual case after other income and resources are considered.9 Congress has been careful to ensure that all of the income and resources properly attributable to a particular applicant be taken into account, and this individualized approach has been reflected in the implementing regulations. For example, HEW's broad definition of 'earned income' as 'income in cash or in kind earned by a needy individual through the receipt of wages, salary, commissions, or profit from activities in which he is engaged as a self-employed individual or as an employee,' 45 CFR § 233.20(a)(6)(iii), and its more specific descriptions of commissioned, salaried, and self-employment derived income in 45 CFR §§ 233.20(a)(6)(iv—viii),10 demonstrate its view that the determination of need in each case is to be based upon an assessment of the particular individual's available income and resources. Moreover, individualized consideration of available income and resources is clearly contemplated by HEW regulations providing for the exclusion of such items as scholarship funds and loans, see 45 CFR §§ 233.20(a)(3)(ii—vii), and requiring that certain items such as food stamps be deducted, 45 CFR § 233.20(a)(4). Thus, if income and expenses related to the production of income are to be treated alike, as the terms of § 402(a)(7) appear to require, both must be considered on an individualized basis.11
18
The literal import of § 402(a)(7) is confirmed by the statute's legislative history. The congressional purpose in requiring the States to take into consideration employment expenses was clearly set forth in S.Rep.No.1589, 87th Cong., 2d Sess., 17—18 (1962), U.S.Code Cong. & Admin.News, pp. 1959, 1960, which explained:
19
'Under present law . . . States are permitted, but not required, to take into consideration the expenses an individual has in earning any income (this practice is not uniform in the country and in a substantial number of States full consideration of such expenses is not given). The committee believes that it is only reasonable for the States to take these expenses fully into account. Under existing law if these work expenses are not considered in determining need, they have the effect of providing a disincentive to working since that portion of the family budget spent for work expenses has the effect of reducing the amount available for food, clothing, and shelter. The bill has, therefore, added a provision in all assistance titles requiring the States to give consideration to any expenses reasonably attributable to the earning of income.' (Emphasis added.)
20
Virtually identical language appears in the House Report. See H.R.Rep.No.1414, 87th Cong., 2d Sess., 23 (1962).
21
Congress thus sought to encourage AFDC recipients to secure and retain employment by requiring the States to take into account fully any expenses attributable to the earning of income in determining eligibility for assistance. Such expenses reduce the level of actually available income, and if not deducted from gross income will not produce a corresponding increase in AFDC assistance. Failing to allow the deduction of reasonable expenses might well discourage the applicant from seeking or retaining employment whereby such expenses are incurred. Section 402(a)(7) was aimed at removing this disincentive. As then-Secretary of HEW Ribicoff explained the legislation in testimony before the Senate:
22
'(W)e are trying to do . . . everything we can to encourage people to get a job and work and we feel it is important to encourage the States. By having this provision, the State will take into account these expenses so people will get jobs. I believe that the State should give them an allowance for those items that are necessary for them to get the job.' Hearings on the Public Assistance Act of 1962 before the Senate Committee on Finance, 87th Cong., 2d Sess., 152 (1962).12
23
Standardized treatment of employment-related expenses without provision for demonstrating actual and reasonable expenses in excess of that standard amount, such as Colorado has adopted, threatens to defeat the goal Congress sought to achieve in adopting the mandatory work-expense recognition provisions of § 402(a)(7). By limiting employment expenses to $30 per month, the Colorado regulation results in a disincentive to seek or retain employment for all recipients whose reasonable work-related expenses exceed or would exceed that amount. Accordingly, the Colorado regulation conflicts with federal law and is therefore invalid.
24
It is, of course, not the adoption of a standardized work-expense allowance per se which we hold to be violative of § 402(a)(7) of the Act, but the fact that the standard used by Colorado is in effect a maximum or absolute limitation upon the recognition of such expenses. As the Court of Appeals correctly observed, a standard allowance would be permissible, and would substantially serve petitioners' interests in administrative efficiency, if it provided for individualized consideration of expenses in excess of the standard amount. See 475 F.2d, at 735. See also Anderson v. Graham, 492 F.2d 986 (CA8 1973); Adams v. Parham, Civ. No. 16041 (N.D.Ga. Apr. 14, 1972) (unpublished); and Campagnuolo v. White, Civ. No. 13968 (Conn. June 22, 1972) (unpublished). Such a standard allowance would comport fully with the statutory requirement that any reasonable work expenses be considered, and would allow individualized treatment where necessary.13
25
As the Court has previously observed, the AFDC program is an area in which Congress at times 'has voiced its wishes in muted strains and left it to the courts to discern the theme in the cacophony of political understanding.' Rosado v. Wyman, 397 U.S., at 412, 90 S.Ct., at 1218. But as to reasonable expenses attributable to the earning of income, Congress has spoken with firmness and clarity.
26
The judgment is affirmed.
27
It is so ordered.
1
Section 4313.13, vol. 4 Colorado Division of Public Welfare Staff Manual (effective March 1970), provided in part:
'Employment expenses which are deducted from the gross amount received by an employed recipient include, but are not restricted to:
'Transportation expenses:
'Public transportation to and from work is allowed at actual cost. When the recipient must use his own car as transportation to and from work, 5¢ a mile is allowed, plus parking fees if required. Purchase, repair, or upkeep of a vehicle, providing it is essential to retain employment and the plan therefore is approved by the county department.'
2
Section 4313.13, vol. 4, Colorado Division of Public Welfare Staff Manual (effective July 1970). The $30 standardized figure is an average based upon a statewide statistical survey of work expenses incurred by persons in the AFDC program in Colorado. It was calculated by examining the work expenses of every AFDC recipient in Colorado for the last month of each quarter of the year from March 1969 to March 1970. The expenses included transportation, union dues, uniforms and tools, telephone, and general items, but excluded the cost of child care. The statewide average varied from a low of $30.55 in June 1969 to a high of $36.93 in March 1970.
3
According to HEW, 20 States, including Colorado, presently employ a standard work-expense allowance in combination with actual child care expenses, and in some cases mandatory payroll deductions, and an additional 15 States use other systems of mandatory standard allowances for one or more major items of work expense. Brief for United States as Amicus Curiae 5. These standard allowances have often been the subject of litigation. A number have been held invalid. See Anderson v. Graham, 492 F.2d 986 (CA8 1973) (Nebraska $25 standard work-expense allowance); Connecticut State Dept. of Pub. Welfare v. HEW, 448 F.2d 209 (CA2 1971) (Connecticut regulation limiting the types of deductible work-related expenses); Adams v. Parham, Civil Action No. 16041 (N.D.Ga. Apr. 14, 1972) (unpublished) (Georgia $35 standard work-expense allowance); Campagnuolo v. White, Civil Action No. 13968 (Conn. June 22, 1972) (unpublished) (Connecticut $60 standard allowance for full-time employment expenses and $40 standard allowance for part-time employment expenses); Williford v. Laupheimer, 311 F.Supp. 720 (E.D.Pa.1969) (Pennsylvania $50 maximum allowance for work expenses); County of Alameda v. Carleson, 5 Cal.3d 730, 97 Cal.Rptr. 385, 488 P.2d 953 (1971), appeal dismissed, 406 U.S. 913, 92 S.Ct. 1762, 32 L.Ed.2d 112 (1972) (California work-expense regulation providing for standard deductions ranging from $6 to $25 per month). In X v. McCorkle, 333 F.Supp. 1109 (D.C.N.J.1970), modified on other grounds, sub nom. Engelman v. Amos, 404 U.S. 23, 92 S.Ct. 181, 30 L.Ed.2d 143 (1971), the court approved in dicta New Jersey's $50 standard work-expense allowance. In Conover v. Hall, Cal.App., 104 Cal.Rptr. 77 (1972), decision vacated pending appeal in California Supreme Court, the court upheld California's $50 standard allowance.
4
Colorado did not make it a statewide practice to allow AFDC recipients to deduct installment payments on the purchase of a car. Consistent with the reasonableness requirement of 42 U.S.C. § 602(a)(7), such determinations were, quite correctly, made on a case-by-case basis. As counsel for the State commented at oral argument: 'This was an individual decision in an individual case in El Paso County, Colorado. The same facts could have been presented to an eligibility technician in another part of Colorado, who would have made a decision . . . that the car was a personal expense, that a job was available closer to the home of the recipient or that she could use public transportation.' Tr. of Oral Arg. 33—34.
Respondent correctly concedes the State's responsibility for inquiring into whether claimed deductions are excessive or are truly attributable to the earning of income. Brief for Respondent 4. No doubt a State should scrutinize with particular care claimed expenses for automobiles or other items that in large measure are capital expenditures which will also be used for personal purposes unrelated to employment. Recognizing that States in administering AFDC programs must determine the reasonableness of work-related expenses does not, however, resolve the issue before us—whether States may ban all such expenses, no matter how reasonable and necessary, above a fixed cutoff figure.
5
Another effect of the change in the State's AFDC regulation was to terminate respondent's eligibility for participation in Colorado's medical assistance program under Title XIX of the Social Security Act, 42 U.S.C. § 1396a(a)(10).
6
While the case was pending in the District Court, respondent terminated her employment and again received an AFDC grant. Prior to the summary judgment hearing, she returned to work, again incurring work-related expenses substantially in excess of the $30 allowance. Although respondent continued to receive a grant despite her renewed employment, the amount was significantly lower than it would have been if she had been permitted to deduct work expenses in full.
7
The AFDC program was originally known as 'Aid to Dependent Children.' 49 Stat. 627. In 1962, the name of the program was changed to 'Aid and Services to Needy Families with Chlldren,' and the name of the assistance provided under the program changed to 'Aid to Families with Dependent Children.' Pub.L. 87—543, 76 Stat. 185, §§ 104(a)(1) and 104(a)(2).
8
Section 3140 of the HEW Handbook of Public Assistance Administration, Part IV (1957), thus provided in part:
'A State public assistance agency may establish a reasonable minimum money amount to represent the combined additional cost of three items—food, clothing, and personal incidentals—for all employed persons. The State plan may provide that other items of work expense will be allowed when there is a determination that such expenses do, in fact, exist in the individual case.'
See also Social Security Board, Bureau of Public Assistance, State Letter No. 4 (Apr. 30, 1942); HEW, State Letter No. 291 (Mar. 11, 1957) (indicating agency approval of such deductions).
9
See generally 42 U.S.C. § 601; H.R.Doc.No.81, 74th Cong., 1st Sess. (1935); H.R.Rep.No.615, 74th Cong., 1st Sess. (1935); S.Rep.No.628, 74th Cong., 1st Sess. (1935); E. Witte, The Development of the Social Security Act 163—164 (1962).
10
Title 45 CFR § 233.20(a)(6) provides in part:
'(iv) With reference to commissions, wages, or salary, the term 'earned income' means the total amount, irrespective of personal expenses, such as income-tax deductions, lunches, and transportation to and from work, and irrespective of expenses of employment which are not personal, such as the cost of tools, materials, special uniforms, or transportation to call on customers.
'(v) With respect to self-employment, the term 'earned income' means the total profit from business enterprise, farming, etc., resulting from a comparison of the gross income received with the 'business expenses,' i.e., total cost of the production of the income. Personal expenses, such as income-tax payments, lunches, and transportation to and from work, are not classified as business expenses.
'(vi) The definition shall exclude the following from 'earned income': Returns from capital investment with respect to which the individual is not himself actively engaged, as in a business (for example, under most circumstances, dividends and interest would be excluded from 'earned income'); benefits (not in the nature of wages, salary, or profit) accruing as compensation, or reward for service, or as compensation for lack of employment . . ..
'(vii) With regard to the degree of activity, earned income is income produced as a result of the performance of services by a recipient; in other words, income which the individual earns by his own efforts, including managerial responsibilities, would be properly classified as earned income, such as management of capital investment in real estate. Conversely, for example, in the instance of capital investment wherein the individual carries no specific responsibility, such as where rental properties are in the hands of rental agencies and the check is forwarded to the recipient, the income would not be classified as earned income.
'(viii) Reserves accumulated from earnings are given no different treatment than reserves accumulated from any other sources.'
11
Petitioners claim that HEW has permitted the use of standard work-expense allowances in recognition of the practical necessities of administration and that the Department's construction of its own regulations is entitled to great weight. See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969); Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). But the sound principle of according deference to administrative practice normally applies only where the relevant statutory language is unclear or susceptible of differing interpretations. See, e.g., Townsend v. Swank, 404 U.S. 282, 286, 92 S.Ct. 502, 505, 30 L.Ed.2d 448 (1971). In view of the literal requirements of § 402(a)(7), which accord with the federal policy underlying its enactment, we need not look to agency practice in this case. Moreover, HEW itself has not adhered to a uniform practice. Although in recent years HEW has construed § 402(a)(7) to permit standardization of some items, in 1964 it required that '(i)tems of work expenses must be allowed when there is a determination that such expenses do, in fact, exist in the individual case.' HEW, Handbook of Public Assistance Administration, Part IV, § 1340 (1964).
12
Our interpretation of § 402(a)(7) is also supported by the disinclination of the Congress to amend the section to permit the use of various standardized allowances. See H.R.16311, 91st Cong., 2d Sess., § 101 (1970); H.R.1, 92d Cong., 1st Sess., § 401 (1971). In explaining the latter bill, which would have replaced the present work-expense provision with an increase in the earned income disregard of § 402(a)(8)(A)(ii), the Committee on Ways and Means observed that it 'would eliminate the open-ended work expense exclusion . . ..' H.R.Rep.No. 92—231, p. 177 (1971). See also S.2311 and H.R.3153, 93d Cong., 1st Sess. (1973).
13
The Court's observation in Rosado v. Wyman, 397 U.S. 397, 419, 90 S.Ct. 1207, 1221, 25 L.Ed.2d 442 (1970), that '(w)e do not, of course, hold that New York may not, consistently with the federal statutes, consolidate items on the basis of statistical averages,' was in no sense intended as a blanket approval of the principle of averaging under AFDC programs without regard to what is being averaged. In that case, the Court found a New York statute fixing maximum AFDC allowances per family and eliminating a 'special grants' program, to be in contravention of § 402(a)(23) of the Act. In holding that New York could not completely eliminate such items from the standard of need, the Court noted that the State could, consistently with the statute, include them through the use of statistical averages. A statewide standard of need is, however, but an estimate by state welfare officials of the minimum financial requirements of a hypothetical family, and by its very nature is susceptible of computation through the use of statistical averages. Moreover, the discretion granted the States by Congress in determining need, see King v. Smith, 392 U.S. 309, 318 n. 14, 88 S.Ct. 2128, 2134, 20 L.Ed.2d 1118 (1968), contrasts sharply with the statutory requirement of § 402(a)(7) that any expenses reasonably attributable to the earnings of income be considered. In the face of that statutory command and the clear statement of congressional purpose, we must also reject petitioners' claims of administrative efficiency or convenience. See Rosado v. Wyman, supra, 397 U.S., at 417, 90 S.Ct., at 1220.
We also note that Colorado's use of a standard work expense allowance is not justified by its undisputed power to set the level of benefits under the AFDC program. See Rosado v. Wyman, supra; Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972). Although Colorado may adjust the percentage of need which it has agreed to pay all recipients through its power to determine AFDC funding, see King v. Smith, supra, it may not do so in a manner that violates a specific requirement of the Act. See Connecticut State Dept. of Pub. Welfare v. HEW, 448 F.2d 209 (CA2 1971).
| 12
|
416 U.S. 267
94 S.Ct. 1757
40 L.Ed.2d 134
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.BELL AEROSPACE COMPANY DIVISION OF TEXTRON INC.
No. 72—1598.
Argued Jan. 14, 1974.
Decided April 23, 1974.
Syllabus
On a petition by a labor union for a representation election, the National Labor Relations Board (NLRB) held that the buyers employed by respondent company constituted an appropriate collective-bargaining unit and directed an election. The NLRB stated that even though the buyers might be 'managerial employees' they were nevertheless covered by the National Labor Relations Act (NLRA) in the absence of any showing that union organization of the buyers would create a conflict of interest in labor relations. Subsequently the buyers voted for the union, and the NLRB certified it as their exclusive bargaining representative. The company refused to bargain, however, and was found guilty of an unfair labor practice and ordered to bargain. The Court of Appeals denied enforcement on the grounds that (1) it was not certain that the NLRB's decision rested on a factual determination that the buyers were not true 'managerial employees' rather than on a new, and in the court's view, erroneous holding that the NLRB was free to regard all managerial employees as covered by the Act unless their duties met the conflict-of-interest touchstone, and (2) in view of its previous contrary decisions, the NLRB was required to proceed by rulemaking rather than by adjudication in determining whether buyers are 'managerial employees.' Held:
1. Congress intended to exclude from the protections of the NLRA all employees properly classified as 'managerial,' not just those in positions susceptible to conflicts of interest in labor relations. This is unmistakably indicated by the NLRB's early decisions, the purpose and legislative history of the Taft-Hartley amendments to the NLRA in 1947, the NLRB's subsequent construction of the Act for more than two decades, and the decisions of the courts of appeals. Pp. 274—290.
2. The NLRB is not required to proceed by rulemaking, rather than by adjudication in determining whether buyers or some types of buyers are 'managerial employees.' Pp. 290—295.
(a) The NLRB is not precluded from announcing new principles in an adjudicative proceedings, and the choice between rulemaking and adjudication initially lies within the NLRB's discretion. SEC v. Chenery Corp., 332 U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 1995; NLRB v. Wyman-Gordon Co., 394 U.S. 759, 89 S.Ct. 1426, 22 L.Ed.2d 709. P. 294.
(b) In view of the large number of buyers employed in manufacturing. wholesale, and retail units, and the wide variety of buyers' duties, depending on the company or industry, any generalized standard would have no more than marginal utility, and the NLRB thus has reason to proceed with caution and develop its standards in a case-by-case manner with attention to the specific character of the buyers' authority and duties in each company. P. 294.
475 F.2d 485, affirmed in part, reversed in part, and remanded.
Norton J. Come, Washington, D.C., for petitioner.
Richard E. Moot, Buffalo, N.Y., for respondent.
Mr. Justice POWELL delivered the opinion of the Court.
1
This case presents two questions: first, whether the National Labor Relations Board properly determined that all 'managerial employees,' except those whose participation in a labor organization would create a conflict of interest with their job responsibilities, are covered by the National Labor Relations Act;1 and second, whether the Board must proceed by rulemaking rather than by adjudication in determining whether certain buyers are 'managerial employees.' We answer both questions in the negative.
2
* Respondent Bell Aerospace Co., Division of Textron, Inc. (company), operates a plant in Wheatfield, New York, where it is engaged in research and development in the design and fabrication of aerospace products. On July 30, 1970, Amalgamated Local No. 1286 of the United Automobile, Aerospace and Agricultural Implement Workers of America (union) petitioned the National Labor Relations Board (Board) for a representation election to determine whether the union would be certified as the bargaining representative of the 25 buyers in the purchasing and procurement department at the company's plant. The company opposed the petition on the ground that the buyers were 'managerial employees' and thus were not covered by the Act.
3
The relevant facts adduced at the representation hearing are as follows. The purchasing and procurement department receives requisition orders from other departments at the plant and is responsible for purchasing all of the company's needs from outside suppliers. Some items are standardized and may be purchased 'off the shelf' from various distributors and suppliers. Other items must be made to the company's specifications, and the requisition orders may be accompanied by detailed blueprints and other technical plans. Requisitions often designate a particular vendor, and in some instances the buyer must obtain approval before selecting a different one. Where no vendor is specified, the buyer is free to choose one.
4
Absent specific instructions to the contrary, buyers have full discretion, without any dollar limit, to select prospective vendors, draft invitations to bid, evaluate submitted bids, negotiate price and terms, and prepare purchase orders. Buyers execute all purchase orders up to $50,000. They may place or cancel orders of less than $5,000 on their own signature. On commitments in excess of $5,000, buyers must obtain the approval of a superior, with higher levels of approval required as the purchase cost increases. For the Minute Man missile project, which represents 70% of the company's sales, purchase decisions are made by a team of personnel from the engineering, quality assurance, finance, and manufacturing departments. The buyer serves as team chairman and signs the purchase order, but a representative from the pricing and negotiation department participates in working out the terms.
5
After the representation hearing, the Regional Director transferred the case to the Board. On May 20, 1971, the Board issued its decision holding that the company's buyers constituted an appropriate unit for purposes of collective bargaining and directing an election. 190 N.L.R.B. 431. Relying on its recent decision in North Arkansas Electric Cooperative, Inc., 185 N.L.R.B. 550 (1970), the Board first stated that even though the company's buyers might be 'managerial employees,'2 they were nevertheless covered by the Act and entitled to its protections. The Board then rejected the company's alternative contention that representation should be denied because the buyers' authority to commit the company's credit, select vendors, and negotiate purchase prices would create a potential conflict of interest between the buyers as union members and the company. In essence, the company argued that buyers would be more receptive to bids from union contractors and would also influence 'make or buy' decisions in favor of 'make,' thus creating additional work for sister unions in the plant. The Board thought, however, that any possible conflict was 'unsupported conjecture' since the buyers' 'discretion and latitude for independent action must take place within the confines of the general directions which the Employer has established' and that 'any possible temptation to allow sympathy for sister unions to influence such decisions could effectively be controlled by the Employer.' 190 N.L.R.B., at 431.
6
On June 16, 1971, a representation election was conducted in which 15 of the buyers voted for the union and nine against. On August 12, the Board certified the union as the exclusive bargaining representative for the company's buyers. That same day, however, the Court of Appeals for the Eighth Circuit denied enforcement of another Board order in NLRB v. North Arkansas Electric Cooperative, Inc., 446 F.2d 602, and held that 'managerial employees' were not covered by the Act and were therefore not entitled to its protections.3 Id., at 610.
7
Encouraged by the Eighth Circuit's decision, the company moved the Board for reconsideration of its earlier order. The Board denied the motion, 196 N.L.R.B. 827 (1972), stating that it disagreed with the Eighth Circuit and would adhere to its own decision in North Arkansas. In the Board's view, Congress intended to exclude from the Act only those 'managerial employees' associated with the 'formulation and implementation of labor relations policies.' Id., at 828. In each case, the 'fundamental touchstone' was 'whether the duties and responsibilities of any managerial employee or group of managerial employees do or do not include determinations which should be made free of any conflict of interest which could arise if the person involved was a participating member of a labor organization'. Ibid. Turning to the present case, the Board reiterated its prior finding that the company had not shown that union organization of its buyers would create a conflict of interest in labor relations.
8
The company stood by its contention that the buyers, as 'managerial employees,' were not covered by the Act and refused to bargain with the union. An unfair labor practice complaint resulted in a Board finding that the company had violated §§ 8(a)(5) and (1) of the Act, 29 U.S.C. §§ 158(a)(5) and (1), and an order compelling the company to bargain with the union. 197 N.L.R.B. 209 (1972). Subsequently, the company petitioned the United States Court of Appeals for the Second Circuit for review of the order and the Board cross-petitioned for enforcement.
9
The Court of Appeals denied enforcement. 475 F.2d 485 (1973). After reviewing the legislative history of the Taft-Hartley Act of 1947, 61 Stat. 136, and the Board's decisions in this area, the court concluded that Congress had intended to exclude all true 'managerial employees' from the protection of the Act. It explained that this 'exclusion embraced not only an employee 'so closely related to or aligned with management as to place the employee in a position of conflict of interest between his employer on the one hand and his fellow workers on the other' but also one who is 'formulating, determining and effectuating his employer's policies or has discretion, independent of an employer's established policy, in the performance of his duties,' Illinois State Journal-Register, Inc. v. NLRB, 412 F.2d 37, 41 (7 Cir. 1969).' 475 F.2d, at 494. The court added, however, that 'the Board would (not) be precluded, on proper proceedings, from determining that buyers, or some types of buyers, are not true 'managerial employees' and consequently come within the protection of § 8(a)(5) and (1).' Ibid.
10
Turning to the merits of the present case, the court acknowledged that there was substantial evidence that the company's buyers were not sufficiently high in the managerial hierarchy to constitute true 'managerial employees.' Nevertheless, the court denied enforcement for two reasons. First, it was not certain that the Board's decision rested on a factual determination that these buyers were not true 'managerial employees' rather than on 'its new, and in our view, erroneous holding that it was free to regard all managerial employees as covered by the Act unless their duties met' the conflict-of-interest touchstone. Id., at 494—495. Second, although the Board was not precluded from holding that buyers, or some types of buyers, were not 'managerial employees,' the court thought that, in view of the Board's long line of cases holding the contrary, it could not accomplish this change of position by adjudication. Rather, the Board should conduct a rule-making proceeding in conformity with § 6 of the Act, 29 U.S.C. § 156. The court therefore remanded the case to the Board for such a proceeding.
11
We granted the Board's petition for certiorari. 414 U.S. 816, 94 S.Ct. 47, 38 L.Ed.2d 49.
II
12
We begin with the question whether all 'managerial employees,' rather than just those in positions susceptible to conflicts of interest in labor relations, are excluded from the protections of the Act.4 The Board's early decisions, the legislative history of the Taft-Hartley Act of 1947, 61 Stat. 136, and subsequent Board and court decisions provide the necessary guidance for our inquiry. In examining these authorities, we draw on several established principles of statutory construction. In addition to the importance of legislative history, a court may accord great weight to the longstanding interpretation placed on a statute by an agency charged with its administration.5 This is especially so where Congress has re-enacted the statute without pertinent change.6 In these circumstances, congressional failure to revise or repeal the agency's interpretation is persuasive evidence that the interpretation is the one intended by Congress.7 We have also recognized that subsequent legislation declaring the intent of an earlier statute is entitled to significant weight.8 Application of these principles leads us to conclude, as did the Court of Appeals, that Congress intended to exclude from the protections of the Act all employees properly classified as 'managerial.'
13
The Wagner Act, 49 Stat. 449, did not expressly mention the term 'managerial employee.' After the Act's passage, however, the Board developed the concept of 'managerial employee' in a series of cases involving the appropriateness of bargaining units. The first cases established that 'managerial employees' were not to be included in a unit with rank-and-file employees. In Freiz & Sons, 47 N.L.R.B. 43, 47 (1943), for example, the Board excluded expediters from a proposed unit of production and maintenance workers because they were 'closely related to the management.' Similarly, in Spicer Mfg. Corp., 55 N.L.R.B. 1491, 1498 (1944), expediters were again excluded from a unit containing office, technical, clerical, and professional employees because 'the authority possessed by (the expediters) to exercise their discretion in making commitments on behalf of the Company stamps them as managerial.' This rationale was soon applied to buyers. See, e.g., Hudson Motor Car Co., 55 N.L.R.B. 509, 512 (1944); Vulcan Corp., 58 N.L.R.B. 733, 736 (1944); Barrett Division, Allied Chem. & Dye Corp., 65 N.L.R.B. 903, 905 (1946); Electric Controller & Mfg. Co., 69 N.L.R.B. 1242, 1245—1246 (1946). The Board summarized its policy on 'managerial employees' in Ford Motor Co., 66 N.L.R.B. 1317, 1322 (1946):
14
'We have customarily excluded from bargaining units of rank and file workers executive employees who are in a position to formulate, determine and effectuate management policies. These employees we have considered and still deem to be 'managerial,' in that they express and make operative the decisions of management.'
15
Whether the Board regarded all 'managerial employees' as entirely outside the protection of the Act, as well as inapproppriate for inclusion in a rank-and-file bargaining unit, is less certain. To be sure, at no time did the Board certify even a separate unit of 'managerial employees' or state that such was possible. The Board was cautious, however, in determining which employees were 'managerial.' For example, in Dravo Corp., 54 N.L.R.B. 1174, 1177 (1944), the Board excluded buyers and expediters from a unit of office and clerical employees, but reserved the question whether all such employees were to be considered 'managerial':
16
'This is not to say, however, that buyers and expediters are to be denied the right to self-organization and to collective bargaining under the Act. The precise relationship of the buyers and expediters to management here is not now being determined by us.'
17
During this period the Board's policy with respect to the related but narrower category of 'supervisory employees' manifested a progressive uncertainty. The Board first excluded supervisors from units of rank-and-file employees, e.g., Mueller Brass Co., 39 N.L.R.B. 167, 171 (1942), but in Union Collieries Coal Co., 41 N.L.R.B. 961, supplemental decision, 44 N.L.R.B. 165 (1942), it certified a separate unit composed of supervisors who were to be represented by an independent union. Shortly thereafter, in Godchaux Sugars, Inc., 44 N.L.R.B. 874 (1942), the Board approved a unit of supervisors whose union was affiliated with a union of rank-and-file employees. This trend was soon halted, however, by Maryland Drydock Co., 49 N.L.R.B. 733 (1943), where the Board held that supervisors, although literally 'employees' under the Act, could not be organized in any unit. And in Yale & Towne Mfg. Co., 60 N.L.R.B. 626, 628—629 (1945), the Board further held that timestudy men, whose "interests and functions" were "sufficiently akin to those of management," 'should neither be included in a unit with other employees, nor be established as a separate unit.'
18
Maryland Drydock, supra, was subsequently overruled in Packard Motor Car Co., 61 N.L.R.B. 4, 64 N.L.R.B. 1212 (1945), where the Board held that foremen could constitute an appropriate unit for collective bargaining The Board's position was upheld 5—4 by this Court in Packard Motor Car Co. v. NLRB, 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040 (1947). In view of the subsequent legislative reversal of the Packard decision, the dissenting opinion of Mr. Justice Douglas is especially pertinent. Id., at 493, 67 S.Ct. 789. He stated:
19
'The present decision . . . tends to obliterate the line between management and labor. It lends the sanctions of federal law to unionization at all levels of the industrial hierarchy. It tends to emphasize that the basic opposing forces in industry are not management and labor but the operating group on the one hand and the stockholder and bondholder group on the other. The industrial problem as so defined comes down to a contest over a fair division of the gross receipts of industry between these two groups. The struggle for control or power between management and labor becomes secondary to a growing unity in their common demands on ownership.
20
'I do not believe this is an exaggerated statement of the basic policy questions which underlie the present decision. For if foremen are 'employees' within the meaning of the National Labor Relations Act, so are vice-presidents, managers, assistant managers, superintendents, assistant superintendents—indeed, all who are on the payroll of the company, including the president; all who are commonly referred to as the management, with the exception of the directors. If a union of vice-presidents applied for recognition as a collective bargaining agency, I do not see how we could deny it and yet allow the present application. But once vice-presidents, managers, superintendents, foremen all are unionized, management and labor will become more of a solid phalanx than separate factions in warring camps.
21
'(I)f Congress, when it enacted the National Labor Relations Act, had in mind such a basic change in industrial philosophy, it would have left some clear and unmistakable trace of that purpose. But I find none.' Id., at 494—495, 67 S.Ct., at 794—795.
22
Mr. Justice Douglas also noted that the Wagner Act was intended to protect 'laborers' and 'workers' whose right to organize and bargain collectively had not been recognized by industry, resulting in strikes, strife, and unrest. By contrast, there was no similar history with respect to foremen, managers, superintendents, or vice presidents. Id., at 496—497, 67 S.Ct. 789. Furthermore, other legislation indicated that where Congress desired to include managerial or supervisory personnel in the category of employees, it did so expressly. See, e.g., Railway Labor Act of 1926, 44 Stat. 577, 45 U.S.C. § 151; Merchant Marine Act, 1936, as amended, 52 Stat. 953, 46 U.S.C. § 1101 et seq.; Social Security Act, § 1101, 49 Stat. 647.
B
23
The Packard decision was a major factor in bringing about the Taft-Hartley Act of 1947, 61 Stat. 136. The House bill, H.R. 3020, 80th Cong., 1st Sess. (1947),9 provided for the exclusion of 'supervisors,' a category broadly defined to include any individual who had authority to hire, transfer, promote, discharge, reward, or discipline other employees or effectively to recommend such action. It also excluded (i) those who had authority to determine or effectively recommend the amount of wages earned by other employees; (ii) those employed in labor relations, personnel, and employment departments, as well as police and time-study personnel; and (iii) confidential employees. The Senate version of the bill, S. 1126, 80th Cong., 1st Sess. (1947),10 also excluded supervisors, but defined that category more narrowly than the House version, distinguishing between 'straw bosses, leadmen, set-up men, and other minor supervisory employees, on the one hand, and the supervisor vested with such genuine management prerogatives as the right to hire or fire, discipline, or make effective recommendations with respect to such action.' S.Rep.No. 105, 80th Cong., 1st Sess., 4 (1947). It was the Senate's view that employees such as 'straw bosses,' who had only minor supervisory duties, should be included within the Act's protections.
24
Significantly, both the House Report and the Senate Report voiced concern over the Board's broad reading of the term 'employee' to include those clearly within the managerial hierarchy. Focusing on Mr. Justice Douglas' dissent in Packard, the Senate Report specifically mentioned that even vice presidents might be unionized under the Board's decision. Ibid. It also noted that unionization of supervisors had hurt productivity, increased the accident rate, upset the balance of power in collective bargaining, and tended to blur the line between management and labor. Id., at 4—5. The House Report echoed the concern for reduction of industrial output and noted that unionization of supervisors had deprived employers of the loyal representations to which they were entitled.11 And in criticizing the Board's expansive reading of the Act's definition of the term 'employees,' the House Report noted that '(w)hen Congress passed the Labor Act, we were concerned, as we said in its preamble, with the welfare of 'workers' and 'wage earners,' not of the boss.' H.R.Rep. No. 245, 80th Cong., 1st Sess., 13 (1947).
25
The Conference Committee adopted the Senate version of the bill. H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess., 35 (1947) U.S.Code Cong.Serv., 1947, pp. 1135, 1141. The House Managers' statement in explanation of the Conference Committee Report stated:
26
'The conference agreement, in the definition of 'supervisor,' limits such term to those individuals treated as supervisors under the Senate amendment. In the case of persons working in labor relations, personnel and employment departments, it was not thought necessary to make specific provision, as was done in the House bill, since the Board has treated, and presumably will continue to treat, such persons as outside the scope of the act. This is the prevailing Board practice with respect to such people as confidential secretaries as well, and it was not the intention of the conferees to alter this practice in any respect. The conference agreement does not treat time-study personnel or guards as supervisors, as did the House bill. Since, however, time-study employees may qualify as professional personnel, the special provisions of the Senate amendment . . . applicable with respect to professional employees will cover many of this category. In the case of guards, the conference agreement does not permit the certification of a labor organization as the bargaining representative of guards if it admits to membership, or is affiliated with any organization that admits to membership, employees other than guards.' Id., at 35—36, U.S.Code Cong. Serv. 1947, p. 1141.
27
The legislative history of the Taft-Hartley Act of 1947 may be summarized as follows. The House wanted to include certain persons within the definition of 'supervisors,' such as straw bosses, whom the Senate believed should be protected by the Act. As to these persons, the Senate's view prevailed. There were other persons, however, who both the House and the Senate believed were plainly outside the Act. The House wanted to make the exclusion of certain of these persons explicit. In the conference agreement, representatives from both the House and the Senate agreed that a specific provision was unnecessary since the Board had long regarded such persons as outside the Act. Among those mentioned as impliedly excluded were persons working in 'labor relations, personnel and employment departments,' and 'confidential employees.' But assuredly this did not exhaust the universe of such excluded persons. The legislative history strongly suggests that there also were other employees, much higher in the managerial structure, who were likewise regarded as so clearly outside the Act that no specific exclusionary provision was thought necessary. For example, in its discussion of confidential employees, the House Report noted that '(m)ost of the people who would qualify as 'confidential' employees are executives and are excluded from the act in any event.' H.R.Rep.No.245, p. 23 (emphasis added).12 We think the inference is plain that 'managerial employees' were paramount among this impliedly excluded group. The Court of Appeals in the instant case put the issue well:
28
'Congress recognized there were other persons so much more clearly 'managerial' that it was inconceivable that the Board would treat them as employees. Surely Congress could not have supposed that, while 'confidential secretaries' could not be organized, their bosses could be. In other words, Congress failed to enact the portion of Mr. Justice Douglas' Packard dissent relating to the organization of executives, not because it disagreed but because it deemed this unnecessary.' 475 F.2d, at 491—492.13 (Footnote omitted.)
C
29
Following the passage of the Taft-Hartley Act, the Board itself adhered to the view that 'managerial employees' were outside the Act. In Denver Dry Goods, 74 N.L.R.B. 1167, 1175 (1947), assistant buyers, who were required to set good sales records as examples to sales employees, to assist buyers in the selection of merchandise, and to assume the buyer's duties when the latter was not present, were excluded by the Board on the ground that 'the interests of these employees are more closely identified with those of management.' The Board reiterated this reading of the Act in Palace Laundry Dry Cleaning, 75 N.L.R.B. 320, 323 n. 4 (1947):
30
'The determination of 'managerial,' like the determination of 'supervisory,' is to some extent necessarily a matter of the degree of authority exercised. We have in the past, and before the passage of the recent amendments to the Act, recognized and defined as 'managerial' employees, executives who formulate and effectuate management policies by expressing and making operative decisions of their employer, and have excluded such managerial employees from bargaining units. We believe that the Act, as amended, contemplates the continuance of this practice.' (Citations omitted.)
31
Buyers and assistant buyers were again excluded in Denton's, Inc., 83 N.L.R.B. 35, 37 (1949), because their 'interests . . . are more closely identified with management . . ..' And in American Locomotive Co., 92 N.L.R.B. 115, 116—117 (1950), the Board held that buyers could neither be included in a unit of office and clerical employees nor placed in a separate unit, stating:
32
'The Employer maintains that the buyers are representatives of management. As it appears that the buyers are authorized to make substantial purchases for the Employer, we find that they are representatives of management, and as such may not be accorded bargaining rights under the Act.'
33
Buyers, who were authorized to bind the employer without prior approval, were also excluded from a unit in Curtiss-Wright Corp., 103 N.L.R.B. 458, 464 (1953), because 'they are representatives of management and as such may not be accorded bargaining rights under the Act.'
34
Finally, in Swift & Co., 115 N.L.R.B. 752, 753—754 (1956), the Board reaffirmed its long-held understanding of the scope of the Act. In refusing to approve a unit of procurement drivers who were found to be representative of management, the Board declared:
35
'It was the clear intent of Congress to exclude from the coverage of the Act all individuals allied with management. Such individuals cannot be deemed to be employees for the purposes of the Act. Accordingly, we reaffirm the Board's position that representatives of management may not be accorded bargaining rights under the Act . . ..' (Footnotes omitted.)
36
Until its decision in North Arkansas in 1970, the Board consistently followed this reading of the Act.14 It never certified any unit of 'managerial employees,' separate or otherwise, and repeatedly stated that it was Congress' intent that such employees not be accorded bargaining rights under the Act. And it was this reading which was permitted to stand when Congress again amended the Act in 1959. 73 Stat. 519.
37
The Board's exclusion of 'managerial employees' defined as those who 'formulate and effectuate management policies by expressing and making operative the decisions of their employer,'15 has also been approved by courts without exception. See, e.g., Westinghouse Electric Corp. v. NLRB, 424 F.2d 1151, 1158 (CA7), cert. denied, 400 U.S. 831, 91 S.Ct. 63, 27 L.Ed.2d 62 (1970); Illinois State Journal-Register, Inc. v. NLRB, 412 F.2d 37, 41 (CA7 1969); Continental Insurance Co. v. NLRB, 409 F.2d 727, 730 (CA2), cert. denied 396 U.S. 902, 90 S.Ct. 215, 24 L.Ed.2d 178 (1969); Retail Clerks International Assn. v. NLRB, 125 U.S.App.D.C. 63, 65—66, 366 F.2d 642, 644—645 (1966) (Burger, J.), cert. denied, 386 U.S. 1017, 87 S.Ct. 1373, 18 L.Ed.2d 455 (1967);16 International Ladies' Garment Workers' Union v. NLRB, 339 F.2d 116, 123 (CA2, 1964) (Marshall, J.).17 And in NLRB v. North Arkansas Electric Cooperative, Inc., 446 F.2d 602 (1971), the Eighth Circuit reviewed the history of the Act and specifically disapproved the Board's departure from its earlier position.
D
38
In sum, the Board's early decisions, the purpose and legislative history of the Taft-Hartley Act of 1947, the Board's subsequent and consistent construction of the Act for more than two decades, and the decisions of the courts of appeals all point unmistakably to the conclusion that 'managerial employees' are not covered by the Act.18 We agree with the Court of Appeals below that the Board 'is not now free' to read a new and more restrictive meaning into the Act. 475 F.2d, at 494.
39
In view of our conclusion, the case must be remanded to permit the Board to apply the proper legal standard in determining the status of these buyers.19 SEC v. Chenery Corp., 318 U.S. 80, 85, 63 S.Ct. 454, 458, 87 L.Ed. 626 (1943); FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 249, 92 S.Ct. 898, 907, 31 L.Ed.2d 170 (1972). We express no opinion as to whether these buyers fall within the category of 'managerial employees.'20
III
40
The Court of Appeals also held that, although the Board was not precluded from determining that buyers or some types of buyers were not 'managerial employees,' it could do so only by invoking its rulemaking procedures under § 6 of the Act, 29 U.S.C. § 156.21 We disagree.
41
At the outset, the precise nature of the present issue must be noted. The question is not whether the Board should have resorted to rulemaking, or in fact improperly promulgated a 'rule,' when in the context of the prior representation proceeding it held that the Act covers all 'managerial employees' except those meeting the new 'conflict of interest in labor relations' touchstone. Our conclusion that the Board applied the wrong legal standard makes consideration of that issue unnecessary. Rather, the present question is whether on remand the Board must invoke its rulemaking procedures if it determines, in light of our opinion, that these buyers are not 'managerial employees' under the Act. The Court of Appeals thought that rulemaking was required because any Board finding that the company's buyers are not 'managerial' would be contrary to its prior decisions22 and would presumably be in the nature of a general rule designed 'to fit all cases at all times.'
42
A similar issue was presented to this Court in its second decision in SEC v. Chenery Corp., 332 U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947) (Chenery II).23 There, the respondent corporation argued that in an adjudicative proceeding the Commission could not apply a general standard that it had formulated for the first time in that proceeding. Rather, the Commission was required to resort instead to its rulemaking procedures if it desired to promulgate a new standard that would govern future conduct. In rejecting this contention, the Court first noted that the Commission had a statutory duty to decide the issue at hand in light of the proper standards and that this duty remained 'regardless of whether those standards previously had been spelled out in a general rule or regulation.' Id., at 201, 67 S.Ct., at 1580. The Court continued:
43
'The function of filling in the interstices of the (Securities) Act should be performed, as much as possible, through this quasi-legislative promulgation of rules to be applied in the future. But any rigid requirement to that effect would make the administrative process inflexible and incapable of dealing with many of the specialized problems which arise. . . . Not every principle essential to the effective administration of a statute can or should be cast immediately into the mold of a general rule. Some principles must await their own development, while others must be adjusted to meet particular, unforeseeable situations. In performing its important functions in these respects, therefore, an administrative agency must be equipped to act either by general rule or by individual order. To insist upon one form of action to the exclusion of the other is to exalt form over necessity.
44
'In other words, problems may arise in a case which the administrative agency could not reasonably foresee, problems which must be solved despite the absence of a relevant general rule. Or the agency may not have had sufficient experience with a particular problem to warrant rigidifying its tentative judgment into a hard and fast rule. Or the problem may be so specialized and varying in nature as to be impossible of capture within the boundaries of a general rule. In those situations, the agency must retain power to deal with the problems on a case-to-case basis if the administrative process is to be effective. There is thus a very definite place for the case-by-case evolution of statutory standards.' Id., at 202—203, 67 S.Ct., at 1580 (Emphasis added.)
45
The Court concluded that 'the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency.' Id., at 203, 67 S.Ct., at 1580.
46
And in NLRB v. Wyman-Gordon Co., 394 U.S. 759, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969), the Court upheld a Board order enforcing an election list requirement first promulgated in an earlier adjudicative proceeding in Excelsior Underwear Inc., 156 N.L.R.B. 1236 (1966). The plurality opinion of Mr. Justice Fortas, joined by The Chief Justice, Mr. Justice Stewart, and Mr. Justice White, recognized that '(a)djudicated cases may and do . . . serve as vehicles for the formulation of agency policies, which are applied and announced therein,' and that such cases 'generally provide a guide to action that the agency may be expected to take in future cases.' NLRB v. Wyman-Gordon Co., supra, at 765—766, 89 S.Ct., at 1429. The concurring opinion of Mr. Justice Black, joined by Mr. Justice Brennan and Mr. Justice Marshall, also noted that the Board had both adjudicative and rule-making powers and that the choice between the two was 'within its informed discretion.' Id., at 772, 89 S.Ct. 1426.
47
The views expressed in Chenery II and Wyman-Gordon make plain that the Board is not precluded from announcing new principles in an adjudicative proceeding and that the choice between rulemaking and adjudication lies in the first instance within the Board's discretion. Although there may be situations where the Board's reliance on adjudication would amount to an abuse of discretion or a violation of the Act, nothing in the present case would justify such a conclusion. Indeed, there is ample indication that adjudication is especially appropriate in the instant context. As the Court of Appeals noted, '(t)here must be tens of thousands of manufacturing, wholesale and retail units which employ buyers, and hundreds of thousands of the latter.' 475 F.2d, at 496. Moreover, duties of buyers vary widely depending on the company or industry. It is doubtful whether any generalized standard could be framed which would have more than marginal utility. The Board thus has reason to proceed with caution, developing its standards in a case-by-case manner with attention to the specific character of the buyers' authority and duties in each company. The Board's judgment that adjudication best serves this purpose is entitled to great weight.
48
The possible reliance of industry on the Board's past decisions with respect to buyers does not require a different result. It has not been shown that the adverse consequences ensuing from such reliance are so substantial that the Board should be precluded from reconsidering the issue in an adjudicative proceeding. Furthermore, this is not a case in which some new liability is sought to be imposed on individuals for past actions which were taken in good-faith reliance on Board pronouncements, Nor are fines or damages involved here. In any event, concern about such consequences is largely speculative, for the Board has not yet finally determined whether these buyers are 'managerial.'
49
It is true, of course, that rulemaking would provide the Board with a forum for soliciting the informed views of those affected in industry and labor before embarking on a new course. But surely the Board has discretion to decide that the adjudicative procedures in this case may also produce the relevant information necessary to mature and fair consideration of the issues. Those most immediately affected, the buyers and the company in the particular case, are accorded a full opportunity to be heard before the Board makes its determination.
50
The judgment of the Court of Appeals is therefore affirmed in part and reversed in part, and the cause remanded to that court with directions to remand to the Board for further proceedings in conformity with this opinion.
51
Judgment of the Court of Appeals affirmed in part and reversed in part, and cause remanded.
52
It is so ordered.
53
Mr. Justice WHITE, with whom Mr. Justice BRENNAN, Mr. Justice STEWART, and Mr. Justice MARSHALL join, dissenting in part.
54
I concur in Part III of the Court's opinion insofar as it holds that the Board was not required to resort to rulemaking in deciding this case, but I dissent from its holding in Part II that managerial employees as a class are not 'employees' within the meaning of the National Labor Relations Act.
55
Section 7 of the Act, 29 U.S.C. § 157, provides that '(e)mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing . . ..' Section 8(a)(1), 29 U.S.C. § 158(a)(1), makes it an unfair labor practice to interfere with the rights guaranteed in § 7, and under § 8(a)(5), 29 U.S.C. § 158(a)(5), it is an unfair practice for the employer to refuse to bargain collectively with representatives of his 'employees.' For the purposes of the foregoing sections, the term 'employee' as defined in § 2(3) of the Act, means 'any employee' of the employer,
56
'but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act . . ..' 29 U.S.C. § 152(3).
57
The issue in this case is whether the term 'employee' excludes not only those specifically excluded by § 2 but also the broad category of 'managerial' employees, who, although literally 'employees' of the employer and not expressly excluded by § 2, are nevertheless not to be considered employees for the purposes of the Act because they make and implement managerial policies. The Court holds that no managerial employee is an employee for the purposes of the Act. I cannot agree with this conclusion.
58
The Act is very plain on its face—'any employee,' with specified exclusions, is entitled to the benefits of the Act. Each of the exclusions is a narrow and precisely defined class, and none of them mentions managerial employees. 'Supervisors' are excluded, but a precise definition of that class, mush narrower than the class of managerial employees, is provided in § 2(11):
59
'any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.' 29 U.S.C. § 152(11).
60
Without more, it could not be concluded that Congress meant to exclude a whole category of employees in addition to those expressly excepted in § 2(3). To infer that all managerial employees are not employees for purposes of the Act because a specified managerial subgroup, supervisors, was expressly excluded, is unwarranted, at least where Congress was careful to define precisely what employees were within the scope of the supervisory exclusion.
61
What is more, Congress in § 2(12), 29 U.S.C. § 152(12), has defined a special subclass of professional employees having special skills and duties 'involving the consistent exercise of discretion and judgment in' the performance of their work. These employees are obviously 'employees' for the purposes of the Act; and in § 9, 29 U.S.C. § 159, after investing the Board with the powers necessary to decide the units appropriate for collective bargaining, it is provided that the Board shall not hold any bargaining unit to be appropriate 'if such unit includes both professional employees and employees who are not professional employees unless a majority of such professional employees vote for inclusion in such unit.' It is apparent, it seems to me, that there are many professional employees who would qualify as managerial employees; yet the Act clearly treats them as employees for purposes of the Act and Congress assumed they would have full organizational and bargaining rights unless it was provided otherwise in accordance with congressional desires. Hence § 9(b).
62
Insofar as the face of the Act is concerned, and as compared with an across-the-board exclusion of 'managerial' employees, the present ruling of the Board, which excludes only those managerial employees whose work may involve them in a conflict of interest if they are permitted to bargain collectively, is a far narrower exclusion adhering much more closely to the rationale of the supervisory exclusion and to the apparent intent of Congress. The Court nevertheless not only holds that the term employee may be construed to exclude managerial employees but also that it must be so construed. No narrower exclusion, it is said, in addition to those expressly provided for, will satisfy the Act.
63
Although it would appear to be a difficult and questionable feat to rewrite the statute so substantially, the Court purports to find license for its result in the legislative history of the 1947 amendments to the Act, read in the light of previous and subsequent Board and court decisions. It is true that the exclusion of supervisors from the definition of employees first occurred in 1947, but, with all respect, I find no basis in the history of these amendments, read in the light of prior Board cases, for concluding that Congress intended to exclude all managerial employees, in addition to supervisors, from the benefits of the Act.
64
As I understand its decisions, the Board at no time prior to 1947 completely excluded the broad category of managerial employees from the class of employees protected by the Act. The Court concedes that the Board's cases during this period involved only the exclusion of managerial employees from bargaining units of rank-and-file workers. Some of the Board's statements may have been ambiguous, but no Board case held or had occasion to hold that managerial employees as a group would not be protected by the Act. As the Court acknowledges, the Board, in one decision excluding buyers and expediters from a unit of office and clerical employees, pointedly expressed the caveat that '(t) his is not to say, however, that buyers and expediters are to be denied the right to self-organization and to collective bargaining under the Act.' Dravo Corp., 54 N.L.R.B. 1174, 1177 (1944). In Hudson Motor Car Co., 55 N.L.R.B. 509, 512 (1944), where the Board excluded buyers from a bargaining unit of office and clerical employees, the reason given for the exclusion was 'that their duties are closely allied to management, differing materially from those of the other clerical employees.' And in Vulcan Corp., 58 N.L.R.B. 733, 736 (1944), the Board excluded a buyer from a production and maintenance employees' unit, not because a managerial employee could not be accorded bargaining rights, but '(b)ecause of the responsibility of his position and his peculiar relationship to management, and in view of the fact that his interests are apparently different from those of the production and maintenance employees.' This line of Board decisions addressed the question whether certain managerial employees had sufficient community of interest with rank-and-file employees to be included in the same bargaining unit with them, and the Board was exercising its power to designate appropriate bargaining units under § 9. It is clear that the Board at no time held managerial employees to be outside the scope of the Act during the period prior to the Taft-Hartley amendments.
65
The Board's position with respect to supervisors, as a class, vacillated during this time, the Board first excluding supervisors from rank-and-file units but recognizing units confined to supervisory employees, then refusing to recognize any bargaining units of supervisors and finally returning to its earlier rule. But even when the Board determined for a short period that supervisors should not be permitted to organize either with other employees or in separate units, it never went as far as to hold supervisors not to be 'employees' under the Act. This was the Court's understanding of the Board's position in Packard Motor Car Co. v. NLRB, 330 U.S. 485, 492 n. 3, 67 S.Ct. 789, 91 L.Ed. 1040 (1947), the very case which prompted the 80th Congress to go further than the Board had ever gone and exclude supervisors entirely from the category of employees accorded bargaining rights under the Act.1 In Maryland Drydock Co., 49 N.L.R.B. 733, 738, 740 (1943), the Board was 'no longer convinced that from the mere determination that a supervisor is an employee it follows that supervisors may constitute appropriate bargaining units' because 'the benefits which supervisory employees might achieve through being certified as collective-bargaining units would be outweighed not only by the dangers inherent in the commingling of management and employee functions, but also in its possible restrictive effect upon the organizational freedom of rank and file employees.' Shortly, thereafter, the Board, faced with a claim by the employer that foremen are not employees within the meaning of the Act, did not address this possible ground of decision but held instead that it was 'not persuaded that the factors militating against the establishment of units of supervisory employees, set forth in . . . the Maryland Drydock case, are obviated by the circumstance that the union seeking to represent such employees is an independent, unaffiliated union.' General Motors Corp., 51 N.L.R.B. 457, 460 (1943). Moreover, the Board held in Soss Mfg. Co., 56 N.L.R.B. 348 (1944), that while a bargaining unit of supervisory employees might not be appropriate, a supervisor, like other employees, was nonetheless protected against an unfair labor practice: 'We conclude that supervisors are 'employees' and that supervisory status does not by its own force remove an employee from the protection of Section 8(1) and (3)' of the Act. Id., at 353. Ultimately, in the Packard cases, 61 N.L.R.B. 4, 64 N.L.R.B. 1212 (1945), the Board reverted to its earlier rule that bargaining units of supervisors were entitled to recognition under the Act as long as they included no rank-and-file members.
66
When Congress undertook to amend the Act following this Court's decision in Packard upholding the Board's inclusion of supervisors as employees under the Act, it was acting in light of a renewed Board policy to permit supervisory employees to organize in separate units under the mantle of the Act's protection, an enduring Board policy not to exclude supervisors from the statutory definition of employees, and a further policy which excluded managerial employees from rank-and-file units but had never denied them the right to establish separate bargaining units or placed them outside the Act's definition of 'employee.' The amendments adopted by Congress in 1947 in light of this pattern of Board practice clearly intended to do away with the Packard decision approving the Board's authority to grant recognition to unions of supervisors. The House and the Senate both proposed to exclude supervisors from the individuals defined as employees for purposes of the Act. The Senate definition of 'supervisor' was limited to individuals with authority, in the employer's interest, to take or recommend action involving the employment of other employees, if the exercise of such authority required the use of independent judgment, S. 1126 § 2(11). But the proposed House definition would also have identified as excluded 'supervisors' (a) those who could determine or effectively recommend the wages to be paid other employees, (b) employees with responsibility in the area of labor relations, personnel, employment, police, or time-study matters, and (c) confidential employees, H.R. 3020 § 2(12). Neither of these proposals sought to exclude in express terms the entire category of 'managerial employees,' i.e., those who are in a position to formulate, determine, and effectuate management policies beyond the area of labor relations, whether by defining such persons as 'supervisors' or by proposing a separate exclusion for 'managerial employees.' Such a step could easily have been taken had Congress intended to exclude these individuals from the protection of the Act. But it was not, despite the fact that the Board had recently considered whether certain employees should be denied organizational rights, either because they were supervisory or, separately, because their job responsibilities involved the exercise of managerial discretion. See, e.g., Ford Motor Co., 66 N.L.R.B. 1317, 1322 (1946); Electric Controller & Mfg. Co., 69 N.L.R.B. 1242 (1946). One would expect that if Congress had intended to eliminate the Board's authority to accord bargaining rights to managerial employees, as well as supervisors, it would have said so, particularly as Board practice had treated these two categories separately and differently.
67
The Court would fill this gap by referring to the House Managers' statement accompanying the Conference Committee Report and explaining the adoption of the narrower Senate definition of excluded 'supervisors.' This report is indeed instructive, but it indicates even more clearly, in my opinion, that Congress did not contemplate the exclusion of managerial employees from the coverage of the Act:
68
'The conference agreement, in the definition of 'supervisor,' limits such term to those individuals treated as supervisors under the Senate amendment. In the case of persons working in labor relations, personnel and employment departments, it was not thought necessary to make specific provision, as was done in the House bill, since the Board has treated, and presumably will continue to treat, such persons as outside the scope of the act. This is the prevailing Board practice with respect to such people as confidential employees as well, and it was not the intention of the conferees to alter this practice in any respect. The conference agreement does not treat time-study personnel or guards as supervisors, as did the House bill. Since, however, time-study employees may qualify as professional personnel, the special provisions of the Senate amendment . . . applicable with respect to professional employees will cover many in this category. In the case of guards, the conference agreement does not permit the certification of a labor organization as the bargaining representative of guards if it admits to membership, or is affiliated with any organization that admits to membership, employees other than guards. The provision dealing with the certification of bargaining units for guards is dealt with in section 9(b) of the conference agreement . . ..' H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess., 35—36, (1947), U.S.Code Cong.Serv.1947, pp. 1135, 1141.
69
The Court emphasizes that the statutory language adopted in the 1947 amendments did not expressly exclude persons working in labor relations, personnel, or employment departments, or confidential employees, but that these were 'impliedly excluded' from the Act's coverage by dint of the House Managers' statements just quoted. From this premise, the Court proceeds to assume that other categories of employees, similarly not excluded under the express terms of the amended definition of 'employee,' were also impliedly excluded from the Act. In my view, there is no warrant for the assumption that groups of employees, which the statute, or express legislative statements do not address, are to be excluded from the Act; nor is there any legislative debate whatsoever which can reasonably be construed as expressing an authoritative intent to exclude managerial employees as a class.
70
The House Managers' statement accompanying the Conference Committee Report explains that the Act was not amended expressly to exclude labor relations and confidential employees from coverage under the Act, because it was already prevailing Board practice to exclude these employees. This was not an entirely accurate representation of Board practice, which seemed to hold only that such employees should not be included in rank-and-file bargaining units, and not necessarily that they would have no protections under the Act, see, e.g., Murray Ohio Mfg. Co., 61 N.L.R.B. 47 (1945); Ford Motor Co., 66 N.L.R.B. 1317 (1964), but even accepting the House Managers' statement as an authoritative direction that these workers were not to be considered employees within the meaning of § 2, it does not follow that other groups of employees, regarding whom no such explicit direction was set forth and whom the Board had not treated in such a manner, were also intended to be excluded. The statement implied that certain groups of employees were to be excluded, but it also noted that some time-study personnel could qualify as professional employees and could therefore organize in units which a majority of them approved, and that guards were not wholly excluded from the Act, but were restricted to units composed solely of other guards. § 9(b), 29 U.S.C. § 159(b). Given that Congress made specific provision for time-study and plant protection employees, who were to be entitled to bargaining rights, and that it expressed a desire to exclude only labor relations and confidential employees whom it thought the Board had previously held outside the Act, there is no reason to suppose from the further congressional silence that special provisions, whether of inclusion or exclusion, were intended with respect to other categories of employees. If it be argued that the absence of any express treatment of managerial employees by Congress was somehow intended to codify prior Board practice, then the unavoidable fact is that Board decisions had not held that managerial employees were unprotected by the Act. They had only been excluded from rank-and-file bargaining units. Moreover, there is no indication in the legislative history as to what Congress might have perceived the Board's rule to be with respect to managerial employees as a class.2
71
Nor is the Court's position much advanced by the few passing references in the House Report and in the floor debates, which the Court cites ante, at 283 and nn. 12 and 13, for the assumption that 'executives' would be excluded from the Act apart from whether they were confidential employees or not, and for the discussion of supervisors as representatives of management whom the amendments sought to exclude. In none of the cited passages was the category of 'managerial employees,' as the Board had defined it, ever addressed, and the focus of these remarks is clearly directed at the exclusion of supervisors as defined in the proposed amendments. Perhaps it was clear to Congress that a confidential secretary's superior would be excluded by the Act, but such an individual would either be a confidential employee himself, or a supervisor, or both. We are referred to nothing in the debates or other congressional materials where the category of managerial employees, as distinquished from the class of supervisory employees, a distinction the Board had previously drawn, is discussed.3
72
Finally, if we are to consider the 1947 amendments as intending to enact the views of the dissenting Justices in Packard, it should be noted that the dissent interpreted the National Labor Relations Act to 'put in the employer category all those who acted for management not only in formulating but also in executing its labor policies.' 330 U.S., at 496, 67 S.Ct., at 795. (Emphasis supplied.) See also id., at 500, 67 S.Ct. 789. Limiting the exclusion of managerial employees to those who are charged with the formulation or implementation of labor relations policies, as the Board has now done in the case before us, is entirely consistent with this view and with the purposes of the Act. As the Senate Report noted, its concern in changing the law with respect to supervisory employees, as construed by Packard, was that the balance of power in the collective-bargaining process had been upset by 'the successful efforts of labor organizations to invoke the Wagner Act for covering supervisory personnel, traditionally regarded as part of management, into organizations composed of or subservient to the unions of the very men they were hired to supervise.' S.Rep. No. 105, 80th Cong., 1st Sess., 3 (1947). See also H.R.Rep. No. 245, 80th Cong., 1st Sess., 13 (1947); 93 Cong.Rec. 3553. Where an employee may be deemed managerial because of the nature of his duties apart from supervision of other employees, however, there is no reason to suppose that union affiliation, at least in separate units, would raise the same labor relations concern.
73
Following the Taft-Hartley amendments in 1947, the Board continued to hold, as it had frequently held before, that buyers, and others with managerial interests, were to be excluded from bargaining units of other employees. Denver Dry Goods, 74 N.L.R.B. 1167 (1947); Palace Laundry Dry Cleaning, 75 N.L.R.B. 320 (1947); Denton's Inc., 83 N.L.R.B. 35, 37 (1949); Wise, Smith & Co., 83 N.L.R.B. 1019, 1021 n. 6 (1949); Westinghouse Electric Corp., 89 N.L.R.B. 8, 14 (1950). But in 1950, in American Locomotive Co., 92 N.L.R.B. 115, 117, the Board in rejecting the inclusion of buyers in an office and clerical employees unit or their placement in a separate bargaining unit, said that '(a)s it appears that the buyers are authorized to make substantial purchases for the Employer, we find that they are representatives of management, and as such may not be accorded bargaining rights under the Act.' Reliance for this statement was placed on the Wise, Smith & Co. and Westinghouse Electric cases which involved the appropriateness of placing the managerial employees in a particular bargaining unit. In Swift & Co., 115 N.L.R.B. 752 (1956), the Board held that a proposed unit of procurement drivers could not be accorded bargaining rights, even in a separate unit. There, the Board flatly asserted that it was 'the clear intent of Congress to exclude from the coverage of the Act all individuals allied with management.' Id. at 753—754. The sole support for this statement, which the Board has now repudiated, was a reference to the statutory definitions of 'employee' and 'employer' and to the Conference Committee Report's explanation of the term 'supervisors,' as quoted above and reprinted in the Congressional Record.
74
The Board thereafter continued to exclude managerial employees from bargaining units of other employees, occasionally citing Swift, e.g., Copeland Refrigeration Corp., 118 N.L.R.B. 1364, 1365 n. 2 (1957); AFL—CIO, 120 N.L.R.B. 969 (1958), but more frequently excluding managerial employees from particular units without citing that case or suggesting that the excluded workers were not protected employees. E.g., Mack Trucks, Inc., 116 N.L.R.B. 1576, 1577—1578 (1956); Diana Shop, 118 N.L.R.B. 743, 745 (1957). Federal Tel. & Radio Co., 120 N.L.R.B. 1652, 1654 (1958); Kearney & Trecker Corp., 121 N.L.R.B. 817, 822 (1958); Weaver Motors, 123 N.L.R.B. 209, 216 (1959); Eastern Camera & Photo Corp., 140 N.L.R.B. 569, 572 (1963).
75
Until the Board overruled Swift in North Arkansas Electric Cooperative, Inc., 185 N.L.R.B. 550 (1970), it had thus actually held only twice that managerial employees could not be afforded protection under the Act, and its support for the conclusion was without any persuasive appeal. It is true, of course, that the Board had not held to the contrary either, and that various courts of appeals interpreted and deferred to the Board's position as one of total exclusion of managerial employees from the scope of the Act, although in none of these cases was that conclusion necessary to the result reached. But the Board has now rejected this broad exclusion, and the question is whether the current view should be sustained. That the Board now refuses to follow its prior precedents is no reason to overturn it, for we have frequently sustained Board decisions overruling its prior interpretations of the Act. E.g. Golden State Bottling Co. v. NLRB, 414 U.S. 168, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973); Packard Motor Car Co. v. NLRB, 330 U.S. 485, 67 L.Ed. 789, 91 L.Ed. 1040 (1947). And the face of the Act and the events of 1947 demonstrate that the Board's present decision is a permissible construction of the statute.
76
Nor did Congress in 1959, when it again amended the statute, expressly or impliedly enact or approve the statutory interpretation announced in Swift & Co. The 1959 amendments dealt with secondary boycotts and picketing, and we are cited to nothing suggesting that the attention of Congress at that time was directed to or focused on the question whether managerial employees were covered or excluded in the statute. Congressional silence does not imply legislative approval of all Board rulings theretofore made. As the Court noted in Boys Markets, Inc. v. Retail Clerk's Union, 398 U.S. 235, 241—242, 90 S.Ct. 1583, 1587, 26 L.Ed.2d 199 (1970), which overruled Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440 (1962):
77
'Nor can we agree that conclusive weight should be accorded to the failure of Congress to respond to Sinclair on the theory that congressional silence should be interpreted as acceptance of the decision. The Court has cautioned that '(i)t is at best treacherous to find in congressional silence alone the adoption of a controlling rule of law.' Girouard v.
78
United States, 328 U.S. 61, 69, 66 S.Ct. 826, 830, 90 L.Ed. 1084 (1946). Therefore, in the absence of any persuasive circumstances evidencing a clear design that congressional inaction be taken as acceptance of Sinclair, the mere silence of Congress is not a sufficient reason for refusing to consider the decision.'
79
See also Commissioner of Internal Revenue v. Glenshaw Glass Co., 348 U.S. 426, 431, 75 S.Ct. 473, 476, 99 L.Ed. 483 (1955). Similarly, from the congressional silence in 1959 concerning Swift's exclusion of managerial employees from the protection of the Act, it should not be assumed that Congress intended to approve of Swift and foreclose the possibility of the Board's reconsidering Swift and overruling it on further and more examining reflection. NLRB v. Seven-Up Co., 344 U.S. 344, 350—352, 73 S.Ct. 287, 290—292, 97 L.Ed. 377 (1953).
80
The Board's decisions in this area have not established a cohesive and precise pattern of rulings. It is often difficult to tell whether an individual decision is based on the propriety of excluding certain employees from a particular bargaining unit or whether the worker under consideration is thought to be outside the scope of the Act. But this Court has consistently said that it will accept the Board's determination of whether a particular individual is an 'employee' under the Act if that determination 'has 'warrant in the record' and a reasonable basis in law,' NLRB v. Hearst Publications, Inc., 322 U.S. 111, 131, 64 S.Ct. 851, 861, 88 L.Ed. 1170 (1944); NLRB v. United Insurance Co., 390 U.S. 254, 260, 88 S.Ct. 988, 991, 19 L.Ed.2d 1083 (1968). There is no reason here to hamstring the Board and deny a broad category of employees those protections of the Act which neither the statutory language nor its legislative history requires, simply because the Board at one time interpreted the Act—erroneously it seems to me to exclude all managerial as well as supervisory employees.
81
I respectifully dissent.
1
As amended, 61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 151 et seq.
2
The opinion revealed that Board Member Jenkins did not view the company's buyers as exercising managerial functions and therefore considered them 'employees' under the Act to the same extent as production and maintenance employees. 190 N.L.R.B., at 431 n. 2. A majority of the Board, however, apparently accepted the company's contention that the buyers were managerial employees. Id., at 432 n. 3.
3
As mentioned, the Board had relied on its North Arkansas decision in the present case. The Eighth Circuit's earlier opinion concerning a related issue in the same case is reported at 412 F.2d 324 (1969).
4
Section 2(3) of the Act defines the term 'employee' as follows:
'The term 'employee' shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act, as amended from time to time, or by any other person who is not an employer as herein defined.' 29 U.S.C. § 152(3).
Supervisory employees are expressly excluded from the protections of the Act. That term is defined in § 2(11):
'The term 'supervisor' means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or respondibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.' 29 U.S.C. § 152(11).
5
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1801—1802, 23 L.Ed.2d 371 (1969); Zemel v. Rusk, 381 U.S. 1, 11—12, 85 S.Ct. 1271, 1278—1279, 14 L.Ed.2d 179 (1965); Udall v. Tallman, 380 U.S. 1, 16—18, 85 S.Ct. 792, 801—802, 13 L.Ed.2d 616 (1965); Norwegian Nitrogen Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796 (1933).
6
Zemel v. Rusk, supra, 381 U.S., at 11—12, 85 S.Ct., at 1278—1279; Commissioner of Internal Revenue v. Noel Estate, 380 U.S. 678, 682, 85 S.Ct. 1238, 1240, 14 L.Ed.2d 159 (1965); NLRB v. Gullett Gin Co., 340 U.S. 361, 365—366, 71 S.Ct. 337, 340—341, 95 L.Ed. 337 (1951); Helvering v. R. J. Reynolds Tobacco Co., 306 U.S. 110, 114—115, 59 S.Ct. 423, 425—426, 83 L.Ed. 536 (1939); Norwegian Nitrogen Co. v. United States, supra, 288 U.S., at 313, 53 S.Ct., at 357.
7
Zemel v. Rusk, supra, 381 U.S., at 11—12, 85 S.Ct., at 1278—1279; Costanzo v. Tillinghast, 287 U.S. 341, 345, 53 S.Ct. 152, 153, 77 L.Ed. 350 (1932); United States v. Midwest Oil Co., 236 U.S. 459, 472—473, 35 S.Ct. 309, 312—313, 59 L.Ed. 673 (1915).
8
Red Lion Broadcasting Co. v. FCC, supra, 395 U.S., at 380 381, 89 S.Ct., at 1801—1802; Federal Housing Administration v. Darlington, Inc., 358 U.S. 84, 90, 79 S.Ct. 141, 145, 3 L.Ed.2d 132 (1958).
9
Section 2(12) of the House bill defined the term 'supervisor' as follows:
'The term 'supervisor' means any individual—
'(A) who has authority, in the interest of the employer—
'(i) to hire, transfer, suspend, lay off, recall, promote, demote, discharge, assign, reward, or discipline any individuals employed by the employer, or to adjust their grievances, or to effectively recommend any such action; or
'(ii) to determine, or make effective recommendations with respect to, the amount of wages earned by any individuals employed by the employer, or to apply, or to make effective recommendations with respect to the application of, the factors upon the basis of which the wages of any individuals employed by the employer are determined, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the exercise of independent judgment;
'(B) who is employed in labor relations, personnel, employment, police, or time-study matters or in connection with claims matters of employees against employers, or who is employed to act in other respects for the employer in dealing with other individuals employed by the employer, or who is employed to secure and furnish to the employer information to be used by the employer in connection with any of the foregoing; or
'(C) who by the nature of his duties is given by the employer information that is of a confidential nature, and that is not available to the public, to competitors, or to employees generally, for use in the interest of the employer.'
10
Section 2(11) of the Senate bill contained the following definition of the term 'supervisor':
'The term 'supervisor' means any individual having authority, in the interest of the employer to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or to adjust their grievances, or effectively to recommend such action if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.'
11
The Report also makes evident that Congress was concerned with more than just the possibility of a conflict of interest in labor relations if supervisors were unionized:
'Supervisors are management people. They have distinguished themselves in their work. They have demonstrated their ability to take care of themselves without depending upon the pressure of collective action. No one forced them to become supervisors. They abandoned the 'collective security' of the rank and file voluntarily, because they believed the opportunities thus opened to them to be more valuable to them than such 'security.' It seems wrong, and it is wrong, to subject people of this kind, who have demonstrated their initiative, their ambition and their ability to get ahead, to the leveling processes of seniority, uniformity and standardization that the Supreme Court recognizes as being fundamental principles of unionism. (J. I. Case Co. v. National Labor Relations Board, 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762 (1944). It is wrong for the foremen, for it discourages the things in them that made them foremen in the first place. For the same reason, that it discourages those best qualified to get ahead, it is wrong for industry, and particularly for the future strength and productivity of our country.' H.R.Rep.No.245, 80th Cong., 1st Sess., 16—17 (1947).
12
The Report stated in reference to 'confidential employees':
'These are people who receive from their employers information that not only is confidential but also that is not available to the public, or to competitors, or to employees generally. Most of the
people who would qualify as 'confidential' employees are executives and are excluded from the act in any event.
'The Board, itself, normally excludes from bargaining units confidential clerks and secretaries to such people as these.' Ibid. (Emphasis added.)
In 1946 in Ford Motor Co., 66 N.L.R.B. 1317, 1322, the Board had narrowed its definition of 'confidential employees' to embrace only those who exercised "managerial' functions in the field of labor relations.' The discussion of 'confidential employees' in both the House and Conference Committee Reports, however, unmistakably refers to that term as defined in the House bill, which was not limited just to those in 'labor relations.' Thus, although Congress may have misconstrued recent Board practice, it clearly thought that the Act did not cover 'confidential employees' even under a broad definition of that term.
13
The dissenting opinion first asserts that the Act is 'very plain on its face' and covers all employees except those expressly excluded post, at 297, but later concedes that the 'Conference Committee implied that certain groups of employees were to be excluded.' Post, at 305. The dissent then argues that 'managerial employees' were not among those impliedly excluded because 'no such explicit direction was set forth.' Ibid. This overlooks the fact that, as in the case of 'confidential employees' and those working in 'labor relations, personnel and employment departments,' no explicit ex-
clusionary provision was necessary in 1947 because the Board had never approved the organization of 'managerial employees' in either a separate unit or as part of a rank-and-file unit. Indeed, every prior Board decision had resulted in the exclusion of such employees as 'managerial.'
Moreover, it cannot be denied that Congress thought that 'executives' were excluded from the Act, for the House Report so stated in express terms. See n. 12, supra. And the congressional debates, along with the Senate Report, evinced a concern over the possible extension of the Act to cover corporate vice presidents and other executives who were part of management. See, e.g., 93 Cong.Rec. 3443; 4136; 5014.
In addition, the dissent completely ignores the fundamental change in industrial philosophy which would be accomplished through unionization of 'managerial employees.' As Mr. Justice Douglas explained in his Packard dissent, the Wagner Act was designed to protect 'laborers' and 'workers,' not vice presidents and others clearly within the managerial hierarchy. Extension of the Act to cover true 'managerial employees' would indeed be revolutionary, for it would eviscerate the traditional distinction between labor and management. If Congress intended a result so drastic, it is not unreasonable to expect that it would have said so expressly.
The dissent also relies upon the specific inclusion of 'professional employees' within the Act to support its assertion that 'managerial employees' were to be similarly treated. Post, at 297—298. See 29 U.S.C. § 152(12). 'Professional employees,' however, are plainly not the same as 'managerial employees.' As the Conference Committee Report explained, the term 'professional employees' refers to 'such persons as legal, engineering, scientific and medical personnel together with their junior professional assistants.' H.R.Conf.Rep.No.510, 80th Cong., 1st Sess., at 36, U.S.Code Cong.Serv., 1947, p. 1141. In contrast to 'managerial employees,' they are not defined in terms of their authority 'to formulate, determine and effectuate management policies.' Ford Motor Co., 66 N.L.R.B., at 1322.
14
See, e.g., Eastern Camera & Photo Corp., 140 N.L.R.B. 569, 571 (1963); AFL—CIO, 120 N.L.R.B. 969, 973 (1958); General Tel. Co. of Ohio, 112 N.L.R.B. 1225, 1229 (1955).
The cases excluding buyers or those exercising buyers' functions from other units are legion. See, e.g., Ed's Foodland of Spring-field, Inc., 159 N.L.R.B. 1256, 1260 (1966); Albuquerque Div., ACF Ind., Inc., 145 N.L.R.B. 403, 414—415 (1963); Weaver Motors, 123 N.L.R.B. 209, 215—216 (1959); Kearney & Trecker Corp., 121 N.L.R.B. 817, 822 (1958); Temco Aircraft Corp., 121 N.L.R.B. 1085, 1089 (1958); Federal Tel. & Radio Co., 120 N.L.R.B. 1652, 1653—1654 (1958).
Surprisingly, the dissent maintains that the Board 'actually held only twice' that 'managerial employees' were not covered by the Act. Post, at 309. This is difficult to reconcile with the undisputed fact that until its decision in North Arkansas the Board has never even certified a separate unit of 'managerial employees' and had stated in case after case that mangerial employees were not to be accorded bargaining rights under the Act. E.g., Palace Laundry Dry Cleaning, 75 N.L.R.B. 320 (1947); American Locomotive Co., 92 N.L.R.B. 15 (1950); Curtiss-Wright Corp., 103 N.L.R.B. 458 (1953); swift & Co., 115 N.L.R.B. 752 (1956), and cases cited above.
15
Palace Laundry Dry Cleaning, supra, at 323 n. 4. See Ford Motor Co., 66 N.L.R.B., at 1322.
16
In Retail Clerks International Assn. v. NLRB, supra, Mr. Chief Justice (then Circuit Judge) Burger explained the Board's policy on 'managerial employees':
'The Board also excludes from the protections of the Act, as managerial employees, 'those who formulate, determine, and effectuate an employer's policies,' AFL—CIO, (120 N.L.R.B. 969, 973 (1958)), and those who have discretion in the performance of their jobs, but not if the discretion must conform to an employer's established policy, Eastern Camera and Photo Corp., 140 N.L.R.B. 569, 571 (1963) (store managers who could set prices are not managerial). The rationale for this Board policy, though unarticulated, seems to be the reasonable belief that Congress intended to ex-
clude from the protection of the Act those who comprised a part of 'management' or were allied with it on the theory that they were the one(s) from whom the workers needed protection.' 366 F.2d 642, 645. (Emphasis added.)
17
In International Ladies' Garment Workers' Union v. NLRB, supra, Mr. Justice (then Circuit Judge) Marshall explained that '(a)lthough the Act makes no special provision for 'managerial employees,' under a Board policy of long duration, this category of personnel has been excluded from the protection of the Act.' 339 F.2d 116, 123.
18
The contrary interpretation of the Act urged by the dissent would have far-reaching results. Although a shop foreman would be excluded from the Act, a wide range of executives would be included. A major company, for example, may have scores of executive officers who formulate and effectuate management policies, yet have no supervisory responsibility or identifiable conflict of interest in labor relations. If Congress intended the unionization of such executives, it most certainly would have made its design plain. See n. 13, supra.
19
The Board has had ample experience in defining the term 'managerial' in the manner which we think the Act contemplates. See, e.g., Eastern Camera & Photo Corp., supra, at 571. Of course, the specific job title of the employees involved is not in itself controlling. Rather, the question whether particular employees are 'managerial' must be answered in terms of the employees' actual job responsibilities, authority, and relationship to management.
20
To be sure, it would also be appropriate for the Board to exclude employees from a unit on the ground that their participation in a labor organization would create a conflict of interest with their job responsibilities. New England Telephone, 90 N.L.R.B. 639 (1950). See also Retail Clerks International Assn. v. NLRB, 125 U.S.App.D.C., at 65—66, 366 F.2d, at 644—645. In this respect, respondent has suggested that it was never afforded fair notice and an opportunity to introduce evidence relating specifically to the possibility of a conflict of interest in labor relations. Tr. of Oral Arg. 33—35, 43, 47. At the representation hearing, the hearing officer did not indicate that the conflict-of-interest standard was relevant, and respondent proceeded on the assumption that the only question was whether the buyers were 'managerial employees.' App. 8, 83.
The present record may well be adequate for purposes of this determination. However, if new and relevant information on this point is tendered on remand, the Board should consider reopening the record for purposes of its admission.
21
Section 6 provides:
'The Board shall have authority from time to time to make, amend, and rescind, in the manner prescribed by the Administrative Pro-
cedure Act, such rules and regulations as may be necessary to carry out the provisions of this subchapter.' 29 U.S.C. § 156.
The Administrative Procedure Act (APA) defines 'rule' as 'the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy. . . .' 5 U.S.C. § 551(4). The rulemaking requirements include publication in the Federal Register of notice of the proposed rulemaking and hearing; an opportunity for interested persons to participate; a statement of the basis and purpose of the proposed rule; and publication in the Federal Register of the rule as adopted.
The APA defines 'adjudication' as 'agency process for the formulation of an order,' and 'order' is defined as 'the whole or a part of a final disposition whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing.' 5 U.S.C. §§ 551(7), (6). Proceedings for 'the certification of worker representatives' are exempted from the Act's procedural requirements for an 'adjudication.' 5 U.S.C. §§ 554(a)(6), 556(a), 557(a).
Sections 9(c)(1) and (2) of the National Labor Relations Act (NLRB) empower the Board to investigate petitions involving questions of unit representation, to conduct hearings on such petitions, to direct representation elections, and to certify the results thereof. 29 U.S.C. §§ 159(c)(1) and (2). Board determinations on such representation questions would appear to constitute 'orders' within the meaning of the APA. See 5 U.S.C. § 551(6), (7).
The NLRA does not specify in what instances the Board must resort to rulemaking.
22
A number of Board decisions have excluded buyers from units of rank-and-file employees. See n. 14, supra. But American Locomotive Co. and Swift & Co. appear to be the only cases in which the Board has held that buyers are not entitled to organize in a separate unit.
23
Chenery II did not involve § 4 of the APA, 5 U.S.C. § 553, but is nevertheless analogous.
1
'The Board had held that supervisory employees may organize in an independent union, Union Collieries Coal Co., 41 N.L.R.B. 961, 44 N.L.R.B. 165; and in an affiliated union, Godchaux Sugars, Inc., 44 N.L.R.B. 874. Then it held that there was no unit appropriate to the organization of supervisory employees. Maryland Drydock Co., 49 N.L.R.B. 733; Boeing Aircraft Co., 51 N.L.R.B. 67; Murray Corp. of America, 51 N.L.R.B. 94; General Motors Corp., 51 N.L.R.B. 457. In this case, 61 N.L.R.B. 4, 64 N.L.R.B. 1212; in L. A. Young Spring & Wire Corp., 65 N.L.R.B. 298; Jones & Laughlin Steel Corp., 66 N.L.R.B. 386, 71 N.L.R.B. 1261; and in California Packing Corp., 66 N.L.R.B. 1461, the Board re-embraced its earlier conclusions with the same progressive boldness it had shown in the Union Collieries and Godchaux Sugars cases. In none of this series of cases did the Board hold that supervisors were not employees. See Soss Manufacturing Co., 56 N.L.R.B. 348.'
2
The majority argues that 'no explicit exclusionary provision was necessary in 1947 because the Board had never approved the organization of 'managerial employees' in either a separate unit or as part of a rank-and-file unit.' Ante, at 284 285 n. 13. It does not dispute, however, that the Board had never disapproved their organization either, and admits that the Board had stated in Dravo Corp., 54 N.L.R.B. 1174 (1944), that by excluding buyers from a clerical employees unit it did not mean to say they would be denied bargaining rights under the Act. The Board had not held managerial employees excluded prior to 1947, and Congress did not address itself to the class of 'managerial employees' by that term or by reference to the Board's definition. There is, therefore, no justification for excluding from the statutory designation of 'any employee' an entire class that the Board had not previously excluded and that Congress did not expressly deal with in its amendments to the Act or in the legislative materials surrounding their adoption. If Congress had intended to exclude managerial employees, it would have said something about them, since it took such great pains to discuss supervisors and labor relations, confidential, time-study, and plant protection employees.
3
The majority expresses concern that extending organizational and bargaining rights to managerial employees would permit the extension of the Act to vice presidents and other high level executives, thereby blurring the distinction between management and labor. The concern is overblown; for most, if not all, executives will obviously be 'super' supervisors, confidential employees, professionals or within the Board's definition of those employees whose organization would result in a conflict of interest with respect to the company's labor policies. If there are remaining executives outside these categories who should also be excluded, the Board should be told to exclude that particular group, rather than to exclude the managerial class that would reach not only vertically, but laterally, to deny 'hundreds of thousands,' 475 F.2d 485, 496, of buyers and other relatively low-level management employees the organizational benefits and other protections of the Act otherwise available to 'any employee.'
To argue, as the majority does, that had Congress intended to include managerial employees, it would have said so expressly, ignores the fact that the Act covers 'any employee' and that the burden properly falls on those who would exclude managerial employees to demonstrate that it was the intent of Congress to exclude this category it legislated directly to exclude supervisory employees.
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