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422 U.S. 151
95 S.Ct. 2040
45 L.Ed.2d 84
TWENTIETH CENTURY MUSIC CORPORATION et al., Petitioners,v.George AIKEN.
No. 74—452.
Argued April 21, 1975.
Decided June 17, 1975.
Syllabus
Petitioners' copyrighted songs were received on the radio in respondent's food shop from a local braodcasting station, which was licensed by the American Society of Composers, Authors and Publishers to perform the songs, but respondent had no such license. Petitioners then sued respondent for copyright infringement. The District Court granted awards, but the Court of Appeals reversed. Held: Respondent did not infringe upon petitioners' exclusive right, under the Copyright Act, '(t)o perform the copyrighted work publicly for profit,' since the radio receiption did not constitute a 'performance' of the copyrighted songs. Fortnightly Corp. v. United Artists, 392 U.S. 390, 88 S.Ct. 2084, 20 L.Ed.2d 1176; Teleprompter Corp. v. CBS, 415 U.S. 394, 94 S.Ct. 1129, 39 L.Ed.2d 415. To hold that respondent 'performed' the copyrighted works would obviously result in a wholly unenforceable regime of copyright law, and would also be highly inequitable, since (short of keeping his radio turned off) one in respondent's position would be unable to protect himself from infringement liability. Such a ruling, moreover would authorize the sale of an untold number of licenses for what is basically a single rendition of a copyrighted work, thus conflicting with the balanced purpose of the Copyright Act of assuring the composer an adequate return for the value of his composition while at the same time protecting the public from oppressive monopolies. Pp. 154-164.
3 Cir., 500 F.2d 127, affirmed.
Simon H. Rifkind, New York City, for petitioners.
Harold David Cohen, Washington, D.C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The question presented by this case is whether the reception of a radio broadcast of a copyrighted musical composition can constitute copyright infringement, when the copyright owner has licensed the broadcaster to perform the composition publicly for profit.
2
* The respondent George Aiken owns and operates a small fast-service food shop in downtown Pittsburgh, Pa., known as 'George Aiken's Chicken.' Some customers carry out the food they purchase, while others remain and eat at counters or booths. Usually the 'carry-out' customers are in the restaurant for less than five minutes, and those who eat there seldom remain longer than 10 or 15 minutes.
3
A radio with outlets to four speakers in the ceiling receives broadcasts of music and other normal radio programing at the restaurant. Aiken usually turns on the radio each morning at the start of business. Music, news, entertainment, and commercial advertising broadcast by radio stations are thus heard by Aiken, his employees, and his customers during the hours that the establishment is open for business.
4
On March 11, 1972, broadcasts of two copyrighted musical compositions were received on the radio from a local station while several customers were in Aiken's establisment. Petitioner Twentieth Century Music Corp. owns the copyright on one of these songs, 'The More I See You'; petitioner Mary Bourne the copyright on the other, 'Me and My Shadow.' Petitioners are members of the American Society of Composers, Authors and Publishers (ASCAP), an association that licenses the performing rights of its members to their copyrighted works. The station that broadcast the petitioners' songs was licensed by ASCAP to broadcast them.1 Aiken, however, did not hold a license from ASCAP.
5
The petitioners sued Aiken in the United States District Court for the Western District of Pennsylvania to recover for copyright infringement. Their complaint alleged that the radio reception in Aiken's restaurant of the licensed broadcasts infringed their exclusive rights to 'perform' their copyrighted works in public for profit. The District Judge agreed, and granted statutory monetary awards for each infringement. D.C., 356 F.Supp. 271. The United States Court of Appeals for the Third Circuit reversed that judgment, 500 F.2d 127, holding that the petitioners' claims against the respondent were foreclosed by this Court's decisions in Fortnightly Corp. v. United Artists, 392 U.S. 390, 88 S.Ct. 2084, 20 L.Ed.2d 1176, and Teleprompter Corp. v. CBS, 415 U.S. 394, 94 S.Ct. 1129, 39 L.Ed.2d 415. We granted certiorari. 419 U.S. 1067, 95 S.Ct. 654, 42 L.Ed.2d 663.
II
6
The Copyright Act of 1909, 35 Stat. 1075, as amended, 17 U.S.C. § 1 et seq.,2 gives to a copyright holder a monopoly limited to specified 'exclusive' rights in his copyrighted works.3 As the Court explained in Fortnightly Corp. v. United Artists, supra:
7
'The Copyright Act does not give a copyright holder control over all uses of his copyrighted work. Instead, § 1 of the Act enumerates several 'rights' that are made 'exclusive' to the holder of the copyright. If a person, without authorization from the copyright holder, puts a copyrighted work to a use within the scope of one of these 'exclusive rights,' he infringes the copyright. If he puts the work to a use not enumerated in § 1, he does not infringe.' 392 U.S., at 393—395, 88 S.Ct., at 2086.
8
Accordingly, if an unlicensed use of a copyrighted work does not conflict with an 'exclusive' right conferred by the statute, it is no infringement of the holder's rights. No license is required by the Copyright Act, for example, to sing a copyrighted lyric in the shower.4
9
The limited scope of the copyright holder's statutory monopoly, like the limited copyright duration required by the Constitution,5 reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.6
10
The immediate effect of our copyright law is to secure a fair return for an 'author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good. 'The sole interest of the United States and the primary object in conferring the monopoly,' this Court has said, 'lie in 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. See Kendall v. Winsor, 62 U.S. 322, 21 How. 322, 327—328, 16 L.Ed. 165; Grant v. Raymond, 31 U.S. 218, 6 Pet. 218, 241—242, 8 L.Ed. 376. When technological change has rendered its literal terms ambiguous, the Copyright Act must be construed in light of this basic purpose.7
11
The precise statutory issue in the present case is whether Aiken infringed upon the petitioners' exclusive right, under the Copyright Act of 1909, 17 U.S.C. § 1(e), '(t)o perform the copyrighted work publicly for profit.'8 We may assume that the radio reception of the musical compositions in Aiken's restaurant occurred 'publicly for profit.' See Herbert v. Shanley Co., 242 U.S. 591, 37 S.Ct. 232, 61 L.Ed. 511. The dispositive question, therefore, is whether this radio reception constituted a 'performance' of the copyrighted works.
12
When this statutory provision was enacted in 1909, its purpose was to prohibit unauthorized performances of copyrighted musical compositions in such public places as concert halls, theaters, restaurants, and cabarets. See H.R.Rep. No. 2222, 60th Cong., 2d Sess. (1909). An orchestra or individual instrumentalist or singer who performs a copyrighted musical composition in such a public place without a license is thus clearly an infringer under the statute. The entrepreneur who sponsors such a public performance for profit is also an infringer—direct or contributory. See generally 1 & 2 M. Nimmer, Copyright §§ 102, 134 (1974). But it was never contemplated that the members of the audience who heard the composition would themselves also be simultaneously 'performing,' and thus also guilty of infringement. This much is common ground.
13
With the advent of commercial radio, a broadcast musical composition could be heard instantaneously by an enormous audience of distant and separate persons operating their radio receiving sets to reconvert the broadcast to audible form.9 Although Congress did not revise the statutory language, copyright law was quick to adapt to prevent the exploitation of protected works through the new electronic technology. In short, it was soon established in the federal courts that the broadcast of a copyrighted musical composition by a commercial radio station was a public performance of that composition for profit—and thus an infringement of the copyright if not licensed. In one of the earliest cases to holding, the Court of Appeals for the Sixth Circuit said:
14
'While the fact that the radio was not developed at the time the Copyright Act . . . was enacted may raise some question as to whether it properly comes within the purview of the statute, it is not by that fact alone excluded from the statute. In other words, the statute may be applied to new situations not anticipated by Congress, if, fairly construed, such situations come within its intent and meaning. . . . While statutes should not be stretched to apply to new situations not fairly within their scope they should not be so narrowly construed as to permit their evasion because of changing habits due to new inventions and discoveries.
15
'A performance, in our judgment, is no less public because the listeners are unable to communicate with one another, or are not assembled within an inclosure, or gathered together in some open stadium or park or other public place. Nor can a performance, in our judgment, be deemed private because each listener may enjoy it alone in the privacy of his home. Radio broadcasting is intended to, and in fact does, reach a very much larger number of the public at the moment of the rendition than any other medium of performance. The artist is consciously addressing a great, though unseen and widely scattered, audience, and is therefore participating in a public performance.' Jerome H. Remick & Co. v. American Automobile Accessories Co., 6 Cir., 5 F.2d 411, 411—412.
16
See also M. Witmark & Sons v. L. Bamberger & Co., 291 F. 776 (NJ); Jerome H. Remick & Co. v. General Electric Co., 4 F.2d 160 (SDNY); Jerome H. Remick & Co. v. General Electric Co., 16 F.2d 829 (SDNY); Associated Music Publishers, Inc., v. Debs Memorial Radio Fund, 141 F.2d 852 (CA2). Cf. Chappell & Co., Ltd. v. Associated Radio Co. of Australia, Ltd., (1925) Vict.L.R. 350; Messager v. British Broadcasting Co., Ltd., (1927) 2 K.B. 543, rev'd on other grounds, (1928) 1 K.B. 660, aff'd (1929) A.C. 151. See generally Caldwell, The Broadcasting of Copyrighted Works, 1 J.Air L. 584 (1930); Note, 75 U.Pa.L.Rev. 549 (1927); Note, 39 Harv.L.Rev. 269 (1925).
17
If, by analogy to a live performance in a concert hall or cabaret, a radio station 'performs' a musical composition when it broadcasts it, the same analogy would seem to require the conclusion that those who listen to the broadcast through the use of radio receivers do not perform the composition. And that is exactly what the early federal cases held. 'Certainly those who listen do not perform, and therefore do not infringe.' Jerome H. Remick & Co. v. General Electric Co., supra, 16 F.2d, at 829. 'One who manually or by human agency merely actuates electrical instrumentalities, whereby inaudible elements that are omnipresent in the air are made audible to persons who are within hearing, does not 'perform' within the meaning of the Copyright Law.' Buck v. Debaum, 40 F.2d 734, 735 (S.D.Cal.1929).
18
Such was the state of the law when this Court in 1931 decided Buck v. jewell-LaSalle Realty Co., 283 U.S. 191, 51 S.Ct. 410, 75 L.Ed. 971. In that case the Court was called upon to answer the following question certified by the Court of Appeals for the Eighth Circuit: 'Do the acts of a hotel proprietor, in making available to his guests, through the instrumentality of a radio receiving set and loud speakers installed in his hotel and under his control and for the entertainment of his guests, the hearing of a copyrighted musical composition which has been broadcast from a radio transmitting station, constitute a performance of such composition within the meaning of 17 USC Sec. 1(e)?' The Court answered the certified question in the affirmative. In stating the facts of the case, however, the Court's opinion made clear that the broadcaster of the musical composition was not licensed to perform it, and at least twice in the course of its opinion the Court indicated that the answer to the certified question might have been different if the broadcast itself had been authorized by the copyright holder.10
19
We may assume for present purposes that the Jewel-LaSalle decision retains authoritative force in a factual situation like that in which it arose.11 But, as the Court of Appeals in this case perceived, this Court has in two recent decisions explicitly disavowed the view that the reception of an electronic broadcast can constitute a performance, when the broadcaster himself is licensed to perform the copyrighted material that he broadcasts. Fortnightly Corp. v. United Artists, 392 U.S. 390, 88 S.Ct. 2084, 20 L.Ed.2d 1176; Teleprompter Corp. v. CBS, 415 U.S. 394, 94 S.Ct. 1129, 39 L.Ed.2d 415.
20
The language of the Court's opinion in the Fortnightly case could hardly be more explicitly dispositive of the question now before us:
21
'The television broadcaster in one sense does less than the exhibitor of a motion picture or stage play; he supplies his audience not with visible images but only with electronic signals. The viewer conversely does more than a member of a theater audience; he provides the equipment to convert electronic signals into audible sound and visible images. Despite these deviations from the conventional situation contemplated by the framers of the Copyright Act, broadcasters have been judicially treated as exhibitors, and viewers as members of a theater audience. Broadcasters perform. Viewers do not perform. Thus, while both broadcaster and viewer play crucial roles in the total television process, a line is drawn between them. One is treated as active performer; the other, as passive beneficiary.' 392 U.S., at 398—399, 88 S.Ct., at 2088 (footnotes omitted).
22
The Fortnightly and Teleprompter cases, to be sure, involved television, not radio, and the copyrighted materials there in issue were literary and dramatic works, not musical compositions. But, as the Court of Appeals correctly observed: 'If Fortnightly, with its elaborate CATV plant and Teleprompter with its even more sophisticated and extended technological and programming facilities were not 'performing,' then logic dictates that no 'performance' resulted when the (respondent) merely activated his restaurant radio.' 500 F.2d, at 137.
23
To hold in this case that the respondent Aiken 'performed' the petitioners' copyrights works would thus require us to overrule two very recent decisions of this Court. But such a holding would more than offend the principles of stare decisis; it would result in a regime of copyright law that would be both wholly unenforceable and highly inequitable.
24
The practical unenforceability of a ruling that all of those in Aiken's position are copyright infringers is self-evident. One has only to consider the countless business establishments in this country with radio or television sets on their premises—bars, beauty shops, cafeterias, car washes, dentists' offices, and drivins—to realize the total futility of any evenhanded effort on the part of copyright holders to license even a substantial percentage of them.12
25
And a ruling that a radio listener 'performs' every broadcast that he receives would be highly inequitable for two distinct reasons. First, a person in Aiken's position would have no sure way of protecting himself from liability for copyright infringement except by keeping his radio set turned off. For even if he secured a license from ASCAP, he would have no way of either foreseeing or controlling the broadcast of compositions whose copyright was held by someone else.13 Secondly, to hold that all in Aiken's position 'performed' these musical compositions would be to authorize the sale of an untold number of licenses for what is basically a single public rendition of a copyrighted work. The exaction of such multiple tribute would go far beyond what is required for the economic protection of copyright owners,14 and would be wholly at odds with the balanced congressional purpose behind 17 U.S.C. § 1(e):
26
'The main object to be desired in expanding copyright protection accorded to music has been to give to the composer an adequate return for the value of his composition, and it has been a serious and a difficult task to combine the protection of the composer with the protection of the public, and to so frame an act that it would accomplish the double purpose of securing to the composer an adequate return for all use made of his composition and at the same time prevent the formation of oppressive monopolies, which might be founded upon the very rights granted to the composer for the purpose of protecting his interests.' H.R.Rep. No. 2222, 60th Cong., 2d Sess., 7 (1909).
27
For the reasons stated in this opinion, the judgment of the Court of Appeals is affirmed.
28
It is so ordered.
29
Affirmed.
30
Mr. Justice BLACKMUN, concurring in the result.
31
My discomfort, now decisionaly outdated to be sure, with the Court's opinion and judgment is threefold:
32
1. My first discomfort is factual. Respondent Aiken hardly was an innocent 'listener,' as the Court seems to characterize him throughout its opinion and particularly ante, at 162. In one sense, of course, he was a listener, for as he operated his small food shop and served his customers, he heard the broadcasts himself. Perhaps his work was made more enjoyable by the soothing and entertaining effects of the music. With this aspect I would have no difficulty.
33
But respondent Aiken installed four loudspeakers in his small shop. This, obviously, was not done for his personal use and contentment so that he might hear the broadcast, in any corner he might be, above the noise of commercial transactions. It was done for the entertainment and edification of his customers. It was part of what Mr. Aiken offered his trade, and it added, in his estimation, to the atmosphere and attraction of his establishment. Viewed in this light, respondent is something more than a mere listener and is not so simply to be categorized.
34
2. My second discomfort is precedential. Forty-four years ago, in a unanimous opinion written by Mr. Justice Brandeis, this Court held that a hotel proprietor's use of a radio receiving set and loudspeakers for the entertainment of hotel guests constituted a performance within the meaning of § 1 of the Copyright Act, 17 U.S.C. § 1. Buck v. Jewell-LaSalle Realty Co., 283 U.S. 191, 51 S.Ct. 410, 75 L.Ed. 971 (1931). For more than 35 years the rule in Jewell-LaSalle was a benchmark in copyright law and was the foundation of a significant portion of the rather elaborate licensing agreements that evolved with the developing media technology. Seven years ago the Court, by a 5—1 vote, and with three Justice not participating, held that a community antenna television (CATV) station that transmitted copyrighted works to home subscribers was not performing the works, within the meaning of § 1 of the Copyright Act. Fortnightly Corp. v. United Artists, 392 U.S. 390, 88 S.Ct. 2084, 20 L.Ed.2d 1176 (1968). The divided Court only briefly noted the relevance of Jewell-LaSalle and announced that that decision 'must be understood as limited to its own facts.' Id., at 396—397, n. 18, 88 S.Ct. at 2088. I have already indicated my disagreement with the reasoning of Fortnightly and my conviction that it, rather than Jewell-LaSalle, is the case that should be limited to its facts. Teleprompter Corp. v. CBS, 415 U.S. 394, 415, 94 S.Ct. 1129, 1141, 39 L.Ed.2d 415 (1974) (dissenting opinion.) I was there concerned about the Court's simplistic view of television's complications, a view perhaps encouraged by the obvious inadequacies of an ancient copyright Act for today's technology. A majority of the Court, however, felt otherwise and extended the simplistic analysis rejected in Jewell-LaSalle, but embraced in Fortnightly, to even more complex arrangements in the CATV industry. Teleprompter Corp. v. CBS supra.
35
I had hoped, secondarily, that the reasoning of Fortnightly and Teleprompter would be limited to CATV. At least in that context the two decisions had the arguably desirable effect of protecting an infant industry from a premature death. Today, however, the Court extends Fortnightly and Teleprompter into radio broadcasting, effectively overrules Jewell-LaSalle, and thereby abrogates more than 40 years of established business practices. I would limit the application of Teleprompter and Fortnightly to the peculiar industry that spawned them. Parenthetically, it is of interest to note that this is precisely the result that would be achieved by virtually all versions of proposed revisions of the Copyright Act. See, e.g., § 101 of S. 1361, 93d Cong., 2d See., which sought to amend, 17 U.S.C. § 110(5). See also §§ 48(5) and (6) of the British Copyright Act of 1956, 4 & 5 Eliz. 2, c. 74, which distinguishes between the use of a radio in a public place and 'the causing of a work or other subject-matter to be transmitted to subscribers to a diffusion service.'
36
Resolution of these difficult problems and the fashioning of a more modern statute are to be expected from the Congress. In any event, for now, the Court seems content to continue with its simplistic appraoch and to accompany it with a pragmatic reliance on the 'practical unenforceability,' ante, at 162, of the copyright law against persons such as George Aiken.
37
3. My third discomfort is tactical. I cannot understand why the Court is so reluctant to do directly what it obviously is doing indirectly, namely, to overrule Jewell-LaSalle. Of course, in my view, that decision was correct at the time it was decided, and I would regard it as good law today under the identical statute and with identical broadcasting. But, as I have noted, the Court in Fortnightly limited Jewell-LaSalle 'to its own facts,' and in Teleprompter ignored its existence completely by refusing even to cite it. This means, it seems to me, that the Court did not want to overrule it, but nevertheless did not agree with it and felt, hopefully, that perhaps it would not bother us anymore anyway. Today the Court does much the same thing again by extracting and discovering great significance in the fact that the broadcaster in Jewell-LaSalle was not licensed to perform the composition. I cannot join the Court's intimation, ante, at 160-surely stretched to the breaking point—that Mr. Justice Brandeis and the unanimous Court for which he spoke would have reached a contrary conclusion in Jewell-LaSalle in 1931 had that broadcaster been licensed. The Court dances around Jewell-LaSalle, as indeed it must, for it is potent opposing precedent for the present case and stands stalwart against respondent Aiken's position. I think we should be realistic and forthright and, if Jewell-LaSalle is in the way, overrule it.
38
Although I dissented in Teleprompter, that case and Fortnightly, before it, have been decided. With the Court insisting on adhering to the rationale of those cases, the result reached by the Court of Appeals and by this Court is compelled. Accepting the precedent of those cases, I concur in the result.
39
Mr. Chief Justice BURGER, with whom Mr. Justice DOUGLAS joins, dissenting.
40
In Fortnightly Corp. v. United Artists, 392 U.S. 390, 402, 88 S.Ct. 2084, 2091, 20 L.Ed.2d 1176 (1968), Mr. Justice Fortas observed that cases such as this call 'not for the judgment of Solomon but for the dexterity of Houdini.' There can be no really satisfactory solution to the problem presented here, until Congress acts in response to longstanding proposals. My primary purpose in writing is not merely to express disagreement with the Court but to underscore what has repeatedly been stated by others as to the need for legislative action. Radio today is certainly a more commonplace and universally understood technological innovation that CATV, for example, yet we are, basically, in essentially the same awkward situation as in the past when confronted with these problems. We must attempt to apply a statute designed for another era to a situation in which Congress has never affirmatively manifested its view concerning the competing policy considerations involved.
41
Yet, the issue presented can only be resolved appropriately by the Congress; perhaps it will find the result which the Court reaches today a practical and equitable resolution, or perhaps it will find this functional analysis'1 too simplistic an approach, cf. Teleprompter Corp. v. CBS, 415 U.S. 394, 415, 94 S.Ct. 1129, 1141, 39 L.Ed.2d 415 (1974) (Blackmun, J., dissenting), and opt for another solution.
42
The result reached by the Court is not compelled by the language of the statute; it is contrary to the applicable case law and, even assuming the correctness and relevance of the CATV cases, Fortnightly, supra, and Teleprompter, supra, it is not analytically dictated by those cases. In such a situation, I suggest, 'the fact that the Copyright Act was written in a different day, for different factual situations, should lead us to tread cautiously here. Our major object . . . should be to do as little damage as possible to traditional copyright principles and to business relationships, until the Congress legislates and relieves the embarrassment which we and the interested parties face.' Fortnightly, supra, 415 U.S., at 404, 88 S.Ct., at 2091 (Fortas, J., dissenting).
43
As the Court's opinion notes, nate, at 160, in Buck v. Jewell-LaSalle Realty Co., 283 U.S. 191, 51 S.Ct. 410, 75 L.Ed. 971 (1931), answering a precisely phrased certified question, the Court construed the Copyright Act in a manner which squarely conflicts with what is held today. Congress, despite many opportunities, has never legislatively overruled Buck, supra. It was not overruled in Fortnightly but treated 'as limited to its own facts.' 392 U.S., at 396—397, n. 18, 88 S.Ct., at 2087. Even assuming the correctness of this dubious process of limitation, see Fortnightly, supra, 392 U.S. at 405, 88 S.Ct. at 2092 (Fortas, J., dissenting); Teleprompter, supra, 415 U.S. at 415, 94 S.Ct. at 1141 (Blackmun, J., dissenting), Buck is squarely relevant here since the license at issue expressly negated any right on the part of the broadcaster to further license performances by those who commercially receive and distribute broadcast music. Moreover, even accepting, arguendo, the restrictive reading given to Buck by the Court today, and assuming the correctness of Fortnightly and Teleprompter in the CATV field, it is not at all clear that the analysis of these latter cases supports the result here.2 Respondent was more than a 'passive beneficiary.' Fortnightly, supra, 392 U.S. at 399, 88 S.Ct. at 2089. He took the transmission and used that transmission for commercial entertainment in his own profit enterprise, through a multispeaker audio system specifically designed for his business purposes.3 In short, this case does not call for what the Court describes as 'a ruling that a radio listener 'performs' every broadcast that he receives . . .,' ante, at 162. Here, respondent received the transmission and then put it to an independent commercial use. His conduct seems to me controlled by Buck's unequivocal holding that:
44
'One who hires an orchestra for a public performance for profit is not relieved from a charge of infringement merely because he does not select the particular program to be played. Similarly, when he tunes in on a broadcasting station, for his own commercial purposes, he necessarily assumes the risk that in so doing he may infringe the performing rights of another.' 283 U.S., at 198—199, 51 S.Ct. at 412.
45
See also Herbert v. Shanley Co., 242 U.S. 591, 37 S.Ct. 232, 61 L.Ed. 513 (1917).
46
In short, as Mr. Justice Douglas observed in the Teleprompter case: 'The Court can read the result it achieves today only by 'legislating' important features of the Copyright Act out of existence.' 415 U.S., at 421, 94 S.Ct. at 1145. In my view, we should bear in mind that '(o)ur ax, being a rule of law, must cut straight, sharp, and deep; and perhaps this is a situation that calls for the compromise of theory and for the architectural improvisation which only legislation can accomplish.' Fortnightly, supra, 392 U.S. at 408, 88 S.Ct. at 2093 (Fortas, J., dissenting).
1
For a discussion of ASCAP, see K—91, Inc. v. Gershwin Publishing Corp., 372 F.2d 1 (CA9).
ASCAP's license agreement with the Pittsburgh broadcasting station contained, as is customary, the following provision:
'Nothing herein contained shall be construed as authorizing LICENSEE (WKJF-FM) to grant to others any right to reproduce or perform publicly for profit by any means, method or process whatsoever, any of the musical compositions licensed hereunder or as authorizing any receiver of any radio broadcast to perform publicly or reproduce the same for profit, by any means, method or process whatsoever.'
2
The Constitution gives Congress the power: 'To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.' U.S.Const., Art. I, § 8, cl. 8. See, e.g., Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58, 4 S.Ct. 279, 281, 28 L.Ed. 349; Trade-Mark Cases, 100 U.S. 82, 94, 25 L.Ed. 550.
3
Title 17 U.S.C. § 1 provides in part:
'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 or 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 . . ..'
4
Cf. Wall v. Taylor, 11 Q.B.D. 102, 106—107 (1883) (Brett, M.R.): Singing for one's own gratification without intending thereby to represent anything, or to amuse any one else, would not, I think, be either a representation or performance, according to the ordinary meaning of those terms, nor would the fact of some other person being in the room at the time of such singing make it so . . ..'
5
See 1 M. Nimmer, Copyright § 5 (1974).
6
Lord Mansfield's statement of the problem almost 200 years ago in Sayre v. Moore, quoted in a footnote to Cary v. Longman, 1 East *358, 362 n. (b), 102 Eng.Rep. 138, 140 n. (b) (1801), bears repeating:
(W)e must take care to guard against two extremes equally prejudicial; the one, that men of ability, who have employed their time for the service of the community, may not be deprived of their just merits, and the reward of their ingenuity and labour; the other, that the world may not be deprived of improvements, nor the progress of the arts be retarded.'
7
In Fortnightly Corp. v. United Artists, 392 U.S. 390, 88 S.Ct. 2084, 20 L.Ed.2d 1176, the Court stated:
'(O)ur inquiry cannot be limited to ordinary meaning and legislative history, for this is a statute that was drafted long before the development of the electronic phenomena with which we deal here. In 1909 radio itself was in its infancy, and television had not been invented. We must read the statutory language of 60 years ago in the light of drastic technological change.' Id., at 395—396, 88 S.Ct. at 2087 (footnotes omitted).
8
See n. 3, supra.
9
Station KDKA, established in Pittsburgh in 1920, is said to have been the first commercial radio broadcasting station in the world. See Buck v. Jewell-LaSalle Realty Co., 283 U.S. 191, 196 n. 2, 51 S.Ct. 410, 411, 75 L.Ed. 971.
10
'(W)e have no occasion to determine under what circumstances a broadcaster will be held to be a performer, or the effect upon others of his paying license fee.' 283 U.S., at 198, 51 S.Ct., at 411 (emphasis added). See also id., at 199 n. 5, 51 S.Ct., at 412.
11
The decision in Jewell-LaSalle might be supported by a concept akin to that of contributory infringement, even though there was no relationship between the broadcaster and the hotel company and, therefore, technically no question of actual contributory infringement in that case. Id., at 197 n. 4, 51 S.Ct., at 411.
12
The Court of Appeals observed that ASCAP now has license agreements with some 5,150 business establishments in the whole country, 500 F.2d 127, 129, noting that these include 'firms which employ on premises sources for music such as tape recorders and live entertainment.' Id., at 129, n. 4. As a matter of so-called 'policy' or 'practice,' we are told, ASCAP has not even tried to exact licensing agreements from commercial establishments whose radios have only a single speaker.
13
This inequity, in the context of the decision in Buck v. Jewell-LaSalle Realty Co., 283 U.S. 191, 51 S.Ct. 410, 75 L.Ed. 971, was pointed out by Professor Zechariah Chafee, Jr., 30 years ago:
'A rule which is very hard for laymen to apply so as to keep clear of litigation was established by the La Salle Hotel case. The hotel was heavily liable if it rebroadcast unlicensed music, but how could it protect itself? Must it maintain a monitor always on the job to sit with a list before him pages long showing what pieces are licensed and turn off the master set the instant an unlicensed piece comes from the broadcasting station? The dilemma thus created by the Copyright Act was mitigated for a time by the machinery of ASCAP, which was a device entirely outside the statute. The hotel could obtain a blanket license from ASCAP and thus be pretty sure of safety about all the music which came through its master set. . . . (But if) any composer outside of ASCAP has his music broadcast, what is the hotel to do? Besides getting an ASCAP license, must the hotel bargain separately with every independent composer on the chance that his music may come through to the hotel patrons?
'Such divergences from the ideal . . . are likely to be corrected . . ..' Reflections on the Law of Copyright: I, 45 Col.L.Rev. 503, 528—529.
14
The petitioners have not demonstrated that they cannot receive from a broadcaster adequate royalties based upon the total size of the broadcaster's audience. On the contrary, the respondent points out that generally copyright holders can and do receive royalties in proportion to advertising revenues of licensed broadcasters, and a broadcaster's advertising revenues reflect the total number of its listeners, including those who listen to the broadcasts in public business establishments.
1
'Broadcasters perform. Viewers do not perform.' Fortnightly Corp. v. United Artists, 392 U.S. 390, 398, 88 S.Ct. 2084, 2088, 20 L.Ed.2d 1176 (1968) (footnotes omitted).
2
Recent congressional proposals have treated the present problem distinctly from CATV questions. See, e.g., S. 1361, 93d Cong., 2d Sess. (1974). See also British Copyright Act of 1956, §§ 48(5), (6), 4 & 5 Eliz. 2, c. 74.
3
Indeed, in its consideration of S. 1361, the Senate Committee on the Judiciary undertook to distinguish use of 'ordinary radios' from situations 'where broadcasts are transmitted to substantial audiences by means of loudspeakers covering a wide area.' S.Rep.No. 93—983, p. 130 (1974). The value of this distinction, without drawing a line on the number of outlets that would be exempt is at best dubious; this version leaves the obvious gap in the statute to be filled in by the courts.
| 78
|
422 U.S. 66
95 S.Ct. 2080.
45 L.Ed.2d 26
Stewart S. CORT et al., Petitioners,v.Richard A. ASH, etc.
No. 73—1908.
Argued March 18, 1975.
Decided June 17, 1975.
Syllabus
Respondent stockholder brought this action seeking damages in favor of petitioner Bethlehem Steel Corp., a Delaware corporation, and injunctive relief because of advertisements in connection with the 1972 Presidential election that petitioner corporate directors had authorized from general corporate funds in alleged violation of 18 U.S.C. § 610, which prohibits corporations from making contributions or expenditures in connection with specified federal elections. Respondent alleged jurisdiction under 28 U.S.C. § 1331 and sought to state a private claim for relief under 18 U.S.C. § 610, and also invoked pendent jurisdiction for an ultra vires claim under Delaware law. The District Court's denial of a preliminary injunction was upheld on appeal, following which respondent dropped the pendent claim rather than post security for expenses under state law before proceeding with that claim. The District Court then granted petitioners' motion for summary judgment. The Court of Appeals reversed, holding that the passage of the election had not mooted the case since damages were sought and that 'a private cause of action, whether brought by a citizen to secure injunctive relief or by a stockholder to secure injunctive or derivative damage relief (is) proper to remedy violation of § 610.' After the Court of Appeals decision Congress enacted the Federal Election Campaign Act Amendments of 1974 (hereinafter the Amendments), under which, inter alia, the Federal Election Commission can receive citizen complaints of statutory violations and where warranted request the Attorney General to seek injunctive action. Held:
1. The Amendments constitute an intervening law that relegates to the Commission's cognizance respondent's complaint as citizen or stockholder for injunctive relief against any alleged violations of § 610 in future elections, since this Court must examine this case according to the law existing at the time of its decision. United States v. Schooner Peggy, 1 Cranch 103, 110, 2 L.Ed. 49; Bradley v. Richmond School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476. Pp. 74-77.
2. Respondent stockholder's derivative suit with regard to the alleged 1972 violation cannot be implied under 18 U.S.C. § 610, and respondent's remedy, if any, must be under Delaware's corporation law. Pp. 77-85.
(a) Section 610 was primarily concerned, not with the internal relations between corporations and stockholders, but with corporations as a source of aggregated wealth and therefore of potential corrupting influence; thus this statute differs from other criminal statutes in which private causes of action have been inferred because of a clearly articulated federal right in the plaintiff, e.g., Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619, or a pervasive legislative scheme governing the relationship between the plaintiff class and the defendant class in a particular regard, e.g., J.I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423. Pp. 78-82.
1
(b) The legislative history of § 610 suggests no congressional intention to vest in corporate shareholders a federal right to damages for a violation of the statute. Pp. 82-84.
2
(c) A private remedy would not further the statutory purpose of dulling corporate influence on federal elections since any compelled repayment to the corporation might well not deter the initial violation. P. 84.
3
(d) The cause of action is one traditionally relegated to state law in an area of primarily state concern. In addition to the ultra vires claim urged by respondent the alleged misuse of corporate funds might, under the law of some States, give rise to a cause of action for breach of a fiduciary duty. Pp. 84-85.
4
496 F.2d 416, reversed.
5
Edwin P. Rome, Philadelphia, Pa., for petitioners; Jerome R. Richter, Richard P. McElroy, William H. Roberts, Philadelphia, Pa., and Curtis H. Barnette, New Haven, Conn., on the briefs.
6
David Berger, Philadelphia, Pa., for respondents; Cletus P. Lyman and Paul J. McMahon, Philadelphia, Pa., on the brief.
7
Solicitor Gen. Robert H. Bork, Acting Asst. Atty. Gen. John C. Keeney, and Jerome M. Feit, Washington, D.C., filed a brief for the United States as amicus curiae.
8
James F. Rill, Thomas F. Shannon, John Hardin Young, Milton A. Smith, and Lawrence B. Kraus, Washington, D.C., filed a brief for the Chamber of Commerce of the United States as amicus curiae.
9
Alan B. Morrison and Reuben B. Robertson III, Washington, D.C., filed a brief for Judith Bonderman and others as amici curiae.
10
Mr. Justice BRENNAN delivered the opinion of the Court.
11
There are other questions, but the principal issue presented for decision is whether a private cause of action for damages against corporate directors is to be implied in favor of a corporate stockholder under 18 U.S.C. § 610, a criminal statute prohibiting corporations from making 'a contribution or expenditure in connection with any election at which Presidential and Vice Presidential electors . . . are to be voted for.'1 We conclude that implication of such a federal cause of action is not suggested by the legislative context of § 610 or required to accomplish Congress' purposes in enacting the statute. We therefore have no occasion to address the questions whether § 610, properly construed, proscribes the expenditures alleged in this case, or whether the statute is unconstitutional as violative of the First Amendment or of the equal protection component of the Due Process Clause of the Fifth Amendment.
12
* In August and September 1972, and advertisement with the caption 'I say let's keep the campaign honest. Mobilize 'truth squads" appeared in various national publications, including Time, Newsweek, and U.S. News and World Report, and in 19 local newspapers in communities where Bethlehem Steel Corp. (Bethlehem), a Delaware corporation, has plants. Reprints of the advertisement, which consisted mainly of quotations from a speech by petitioner Stewart S. Cort, chairman of the board of directors of Bethlehem, were included with the September 11, 1972, quarterly dividend checks mailed to the stockholders of the corporation. The main text of the advertisement appealed to the electorate to 'encourage responsible, honest, and truthful campaigning.' It alleged that vigilance was needed because 'careless rhetoric and accusations . . . are being thrown around these days—their main target being the business community.' In italics, under a picture of Mr. Cort, the advertisement quoted 'the following statement made by a political candidate: 'The time has come for a tax system that says to big business-you must pay your fair share." It then printed Mr. Cort's rejoinder to this in his speech, including his opinion that to say 'large corporations (are) not carrying their fair share of the tax burden' is 'baloney.' The advertisement concluded with an offer to send, on request, copies of Mr. Cort's entire speech2 and a folder 'telling how to go about activating Truth Squads.'3 These publications could be obtained free from the Public Affairs Department of Bethlehem. It is stipulated that the entire costs of the advertisements and various mailings were paid from Bethlehem's general corporate funds. App. A29—A30; 350 F.Supp. 227, 229 (ED Pa.1972).
13
Respondent owns 50 shares of Bethlehem stock and was qualified to vote in the 1972 Presidential election. He filed this suit in the United States District Court for the Eastern District of Pennsylvania on September 28, 1972, on behalf of himself and derivatively, on behalf of Bethlehem. The complaint specified two separate and distinct bases for jurisdiction and relief. Count I alleged jurisdiction under 28 U.S.C. § 1331, and sought to state a private claim for relief under 18 U.S.C. § 610, which, as mentioned, in terms provides only for a criminal penalty. Court II invoked pendent jurisdiction for a claim under Delaware law, alleging that the corporate campaign expenditures were 'ultra vires, unlawful and (a) willful, wanton and gross breach of (defendants') duty owed to (Bethlehem).' Immediate injunctive relief against further corporate expenditures in connection with the 1972 Presidential election or any future campaign was sought, as well as compensatory and punitive damages in favor of the corporation.
14
The District Court denied a preliminary injunction on October 25, 1972. 350 F.Supp. 227. While the denial was supported on three grounds,4 it was upheld on appeal to the Court of Appeals for the Third Circuit only on the narrow ground that irreparable harm was not shown. 471 F.2d 811 (1973).5
15
After the affirmance on appeal, petitioners sought an order requiring respondent to post security for expenses as required by Pennsylvania law. The court declined to order such security with regard to the federal cause of action alleged in Count I, but did order respondent to post $135,000 before proceeding with the pendent claim under Count II. Rather than post security, respondent filed an amended complaint, which dropped Count II, the separate state cause of action, from the case.6
16
The District Court then granted petitioners' motion for summary judgment without opinion. The Court of Appeals reversed, 496 F.2d 416 (1974). The Court of Appeals held that, since the amended complaint sought damages for the corporation for violation of § 610, the controversy was not moot, although the election which occasioned it was past. The Court of Appeals held further that 'a private cause of action, whether brought by a citizen to secure injunctive relief or by a stockholder to secure injunctive or derivative damage relief (is) proper to remedy violation of § 610.' Id., at 424. We granted certiorari, 419 U.S. 992, 95 S.Ct. 302, 42 L.Ed.2d 264 (1974). We reverse.
II
17
We consider first the holding of the Court of Appeals that respondent has 'a private cause of action . . . (as) a citizen (or as a stockholder) to secure injunctive relief.' The 1972 Presidential election is history, and respondent as citizen or stockholder seeks injunctive relief only as to future elections. In that circumstance, a statute enacted after the decision of the Court of Appeals, the Federal Election Campaign Act Amendments of 1974, Pub.L. 93—443, 88 Stat. 1263 (Amendments) (amending the Federal Election Campaign Act of 1971, 86 Stat. 3), requires reversal of the holding of the Court of Appeals.
18
In terms, § 610 is only a criminal statute, providing a fine or imprisonment for its violation. At the time this suit was filed, there was no statutory provision for civil enforcement of § 610, whether by private parties or by a Government agency. But the Amendments created a Federal Election Commission, 2 U.S.C. § 437(c)(a)(1) (1970 ed., Supp. IV);7 established an administrative procedure for processing complaints of alleged violations of § 610 after January 1, 1975, 2 U.S.C. § 437g (1970 ed., Supp. IV), as amended, and § 410, note following 2 U.S.C. § 431 (1970 ed., Supp. IV); and provided that '(a)ny person who believes a violation . . . (of § 610) has occurred may file a complaint with the Commission.' 2 U.S.C. § 437g(a)(1)(A) (1970 ed., Supp. IV). The Commission must either investigate the complaint or refer the complaint to the Attorney General, 2 U.S.C. §§ 437g(a)(2)(A) and (B) (1970 ed., Supp. IV).8 If the Commission chooses to investigate the complaint, and after investigation determines that 'any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation' of § 610, the Commission may request the Attorney General to 'institute a civil action for relief, including a permanent or temporary injunction, restraining order, or any other appropriate order . . ..' 2 U.S.C. § 437g(a)(7) (1970 ed., Supp. IV). And 2 U.S.C. § 437c(b) (1970 ed., Supp. IV) expressly vests the Commission with 'primary jurisdiction' over any claimed violation of § 610 within its purview.9 Consequently, a complainant seeking as citizen or stockholder to enjoin alleged violations of § 610 in future elections must henceforth pursue the statutory remedy of a complaint to the Commission, and invoke its authority to request the Attorney General to seek the injunctive relief. H.R.Conf.Rep.No. 93—1438, p. 94 (1974). Thus, the Amendments constitute an intervening law that relegates to the Commission's cognizance respondent's complaint as citizen or stockholder for injunctive relief against any alleged violations of § 610 in future elections. In that circumstance, the holding of the Court of Appeals must be reversed, for our duty is to decide this case according to the law existing at the time of our decision.
19
The governing rule was announced by Mr. Chief Justice Marshall in United States v. Schooner Peggy, 1 Cranch 103, 110, 2 L.Ed. 49 (1801):
20
'It is in the general true that the province of an appellate court is only to enquire whether a judgment when rendered was erroneous or not. But if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional . . . I know of no court which can contest its obligation. . . . In such a case the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside.'
21
We most recently reaffirmed the principle of Schooner Peggy in Bradley v. Richmond School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974), where we said: 'We anchor our holding in this case on the principle that a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.' There is no 'statutory direction or legislative history to the contrary' in or respecting the Amendments, nor is there any possible 'manifest injustice' in requiring respondent to pursue with respect to alleged violations which have yet to occur the statutory remedy for injunctive relief created by the Amendments.
III
22
Our conclusion in Part II pretermits any occasion for addressing the question of respondent's standing as a citizen and voter to maintain this action, for respondent seeks damages only derivatively as stockholder. Therefore, we turn next to the holding of the Court of Appeals that 'a private cause of action . . . by a stockholder to secure . . . derivative damage relief (is) proper to remedy violation of § 610.' We hold that such relief is not available with regard to a 1972 violation under § 610 itself, but rather is available, if at all, under Delaware law governing corporations.10
23
In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the plaintiff 'one of the class for whose especial benefit the statute was enacted,' Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 484, 60 L.Ed. 874 (1916) (emphasis supplied)—that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? See, e.g., National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S. 453, 458, 460, 94 S.Ct. 690, 693, 694, 38 L.Ed.2d 646 (1974) (Amtrak). Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? See, e.g., Amtrak, supra; Securities Investor Protection Corp. v. Barbour, 421 U.S. 412, 423, 95 S.Ct. 1733, 1740, 44 L.Ed.2d 263 (1975); Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964). And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? See Wheeldin v. Wheeler, 373 U.S. 647, 652, 83 S.Ct. 1441, 1445, 10 L.Ed.2d 605 (1963); cf. J.I. Case Co. v. Borak, 377 U.S. 426, 434, 84 S.Ct. 1555, 1560, 12 L.Ed.2d 423 (1964); Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 394—395, 91 S.Ct. 1999, 2003—2004, 29 L.Ed.2d 619 (1971); id., at 400, 91 S.Ct., at 2006 (Harlan, J., concurring in judgment).
24
The dissenting judge in the Court of Appeals and petitioners here suggest that where a statute provides a penal remedy alone, it cannot be regarded as creating a right in any particular class of people. 'Every criminal statute is designed to protect some individual, public, or social interest. . . . To find an implied civil cause of action for the plaintiff in this case is to find an implied civil right of action for every individual, social, or public interest which might be invaded by violation of any criminal statute. To do this is to conclude that Congress intended to enact a civil code companion to the criminal code.' 496 F.2d, at 428—429 (Aldisert, J., dissenting). Cf. Nashville Milk Co. v. Carnation Co., 355 U.S. 373, 377, 78 S.Ct. 352, 354, 2 L.Ed.2d 340 (1958).
25
Clearly, provision of a criminal penalty does not necessarily preclude implication of a private cause of action for damages. Wyandotte Transportation Co. v. United States, 389 U.S. 191, 201 202, 88 S.Ct. 379, 385—386, 19 L.Ed.2d 407 (1967); see also J.I. Case Co. v. Borak, supra; Taxas & Pacific R. Co. v. Rigsby, supra. However, in Wyandotte, Borak, and Rigsby, there was at least a statutory basis for inferring that a civil cause of action of some sort lay in favor of someone.11 Here, there was nothing more than a bare criminal statute, with absolutely no indication that civil enforcement of any kind was available to anyone.
26
We need not, however, go so far as to say that in this circumstance a bare criminal statute can never be deemed sufficiently protective of some special group so as to give rise to a private cause of action by a member of that group. For the intent to protect corporate shareholders particularly was at best a subsidiary purpose of § 610, and the other relevant factors all either are not helpful or militate against implying a private cause of action.
27
First, § 610 is derived from the Act of January 26, 1907,12 which 'seems to have been motivated by two considerations. First, the necessity for destroying the influence over elections which corporations exercised through financial contribution. Second, the feeling that corporate officials had no moral right to use corporate funds for contribution to political parties without the consent of the stockholders.' United States v. CIO, 335 U.S. 106, 113, 68 S.Ct. 1349, 1353, 92 L.Ed. 1849 (1948). See 40 Cong.Rec. 96 (1905) (Annual Message of President Theodore Roosevelt). Respondent bases his derivative action on the second purpose, claiming that the intent to protect stockholders from use of their invested funds for political purposes demonstrates that the statute set up a federal right in shareholders not to have corporate funds used for this purpose.
28
However, the legislative history of the 1907 Act, recited at length in United States v. Auto Workers, 352 U.S. 567, 77 S.Ct. 529, 1 L.Ed.2d 563 (1957), demonstrates that the protection of ordinary stockholders was at best a secondary concern.13 Rather, the primary purpose of the 1907 Act, and of the 1925 Federal Corrupt Practices Act, 43 Stat. 1070, which reenacted the 1907 provision with some changes as § 313 of that Act, see United States v. Auto Workers, supra, at 577, 77 S.Ct., at 534, was to assure that federal elections are "free from the power of money," 352 U.S., at 574, 77 S.Ct., at 533, to eliminate "the apparent hold on political parties which business interests . . . seek and sometimes obtain by reason of liberal campaign contributions." Id., at 576, 77 S.Ct., at 534, quoting 65 Cong.Rec. 9507 (1924) (remarks of Sen. Robinson). See also 352 U.S., at 571—577, 77 S.Ct., at 531—534. Thus, the legislation was primarily concerned with corporations as a source of aggregated wealth and therefore of possible corrupting influence, and not directly with the internal relations between the corporations and their stockholders. In contrast, in those situations in which we have inferred a federal private cause of action not expressly provided, there has generally been a clearly articulated federal right in the plaintiff, e.g., Bivens v. Six Unknown Federal Narcotics Agents, supra, or a pervasive legislative scheme governing the relationship between the plaintiff class and the defendant class in a particular regard, e.g., J. I. Case Co. v. Borak, supra.
29
Second, there is no indication whatever in the legislative history of § 610 which suggests a congressional intention to vest in corporate shareholders a federal right to damages for violation of § 610. True, in situations in which it is clear that federal law has granted a class of persons certain rights, it is not necessary to show an intention to create a private cause of action, although an explicit purpose to deny such cause of action would be controlling.14 But where, as here, it is at least dubious whether Congress intended to vest in the plaintiff class rights broader than those provided by state regulation of corporations, the fact that there is no suggestion at all that § 610 may give rise to a suit for damages or, indeed, to any civil cause of action, reinforces the conclusion that the expectation, if any, was that the relationship between corporations and their stockholders would continue to be entrusted entirely to state law.
30
Third, while 'it is the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose,' J. I. Case Co. v. Borak, 377 U.S., at 433, 84 S.Ct., at 1560, in this instance the remedy sought would not aid the primary congressional goal. Recovery of derivative damages by the corporation for violation of § 610 would not cure the influence which the use of corporate funds in the first instance may have had on a federal election. Rather, such a remedy would only permit directors in effect to 'borrow' corporate funds for a time; the later compelled repayment might well not deter the initial violation and would certainly not decrease the impact of the use of such funds upon an election already past.
31
Fourth, and finally, for reasons already intimated, it is entirely appropriate in this instance to relegate respondent and others in his situation to whatever remedy is created by state law. In addition to the ultra vires action pressed here, see n. 6, supra, the use of corporate funds in violation of federal law may, under the law of some States, give rise to a cause of action for breach of fiduciary duty. See, e.g., Miller v. American Telephone & Telegraph Co., 507 F.2d 759 (CA3 1974). Corporations are creatures of state law, and investors commit their funds to corporate directors on the understanding that, except where federal law expressly requires certain responsibilities of directors with respect to stockholders, state law will govern the internal affairs of the corporation. If, for example, state law permits corporations to use corporate funds as contributions in state elections, see Miller, supra, at 763 n. 4, shareholders are on notice that their funds may be so used and have no recourse under any federal statute. We are necessarily reluctant to imply a federal right to recover funds used in violation of a federal statute where the laws governing the corporation may put a shareholder on notice that there may be no such recovery.
32
In Borak, supra, we said: '(If) the law of the State happened to attach no responsibility to the use of misleading proxy statements, the whole purpose of (§ 14(a) of the Securities Exchange Act of 1934) might be frustrated.' 377 U.S., at 434—435, 84 S.Ct., at 1561. Here, committing respondent to state-provided remedies would have no such effect. In Borak, the statute involved was clearly an intrusion of federal law into the internal affairs of corporations; to the extent that state law differed or impeded suit, the congressional intent could be compromised in statecreated causes of action. In this case, Congress was concerned, not with regulating corporations as such, but with dulling their impact upon federal elections. As we have seen, the existence or nonexistence of a derivative cause of action for damages would not aid or hinder this primary goal.
33
Because injunctive relief is not presently available in light of the Amendments, and because implication of a federal right of damages on behalf of a corporation under § 610 would intrude into an area traditionally committed to state law without aiding the main purpose of § 610, we reverse.
34
It is so ordered.
35
Reversed.
1
Title 18 U.S.C. § 610 (1970 ed. and Supp. III) provided in part as follows when this suit was filed:
'Contributions or expenditures by national banks, corporations or labor organizations.
'It is unlawful for any national bank, or any corporation organized by authority of any law of Congress, to make a contribution or expenditure in connection with any election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office, or for any corporation whatever, or any labor organization to make a contribution or expenditure in connection with any election at which Presidential and Vice Presidential electors or a Senator or Representative in, or a Delegate or Resident Commissioner to Congress are to be voted for, or in connection with any primary election or political convention or caucus held to select candidates for any of the foregoing offices, or for any candidate, political committee, or other person to accept or receive any contribution prohibited by this section.
'Every corporation or labor organization which makes any contribution or expenditure in violation of this section shall be fined not more than $5,000; and every officer or director of any corporation, or officer of any labor organization, who consents to any contribution
or expenditure by the corporation or labor organization, as the case may be, and any person who accepts or receives any conribution, in violation of this section, shall be fined not more than $1,000 or imprisoned not more than one year, or both; and if the violation was willful, shall be fined not more than $10,000 or imprisoned not more than two years, or both.
'As used in this section, the phrase 'contribution or expenditure' shall include any direct or indirect payment, distribution, loan, advance, deposit, or gift of money, or any services, or anything of value (except a loan of money by a national or State bank made in accordance with the applicable banking laws and regulations and in the ordinary course of business) to any candidate, campaign committee, or political party or organization, in connection with any election to any of the offices referred to in this section; but shall not include communications by a corporation to its stockholders and their families or by a labor organization to its members and their families on any subject; nonpartisan registration and get-out-the-vote campaigns by a corporation aimed at its stockholders and their families, or by a labor organization aimed at its members and their families; the establishment, administration, and solicitation of contributions to a separate segregated fund to be utilized for political purposes by a corporation or labor organization: Provided, That it shall be unlawful for such a fund to make a contribution or expenditure by utilizing money or anything of value secured by physical force, job discrimination, financial reprisals, or the threat of force, job discrimination, or financial reprisal; or by dues, fees, or other monies required as a condition of membership in a labor organization or as a condition of employment, or by monies obtained in any commercial transaction.'
Definitions of various terms in § 610 are included in 18 U.S.C. § 591 (1970 ed., Supp. III).
The Federal Election Campaign Act Amendments of 1974, Pub.L. 93—443, 88 Stat. 1263, §§ 101(e), 102, increased substantially the fines for violation of § 610 and changed many of the definitions in § 591 of the terms used in § 610.
2
The speech was a general defense of 'big business' and the current tax system. Although it named no political candidate or party, it was in large part devoted to refuting statements, which were quoted, by 'a prominent presidential candidate.' The complaint in this case alleged that the 'candidate' referred to was quite clearly the Democratic candidate for President at the time (George McGovern), App. A13. The speech concluded with the suggestion that listeners '(m)obilize 'truth squads"—organize to refute 'false or deceptive' statements and 'outrageous accusations.'
3
The folder was entitled: 'How you can help to keep the campaign honest.' It included suggestions for informing oneself about the election, using research tools, refuting 'a statement you know to be wrong,' and organizing friends and neighbors to do the same. Unlike the speech and advertisement, the folder contained no quotations from any political candidate, nor any discussion of issues.
4
First, the District Court held that the penal sanctions provided in § 610 are exclusive, and no private cause of action is to be implied. 350 F.Supp. at 231. Second, the District Court held that 'the purpose of the advertisement was not to influence the election of a specific candidate,' and therefore that 'the payment for the advertisement did not constitute an 'expenditure' within the meaning of . . . Section 610.' Id., at 231—232. Third, the court found that '(i)n failing to prove a likelihood of success on the merits, plaintiff has failed to prove that irreparable harm would result if an injunction is not granted.' Id., at 232.
5
In affirming, the Court of Appeals observed that while the District Court's opinion seemed to preclude respondent from any ultimate relief, the opinion addressed only a request for preliminary relief and therefore had to be considered only tentative, leaving respondent free to renew his contentions on final hearing. 471 F.2d, at 812.
6
Respondent seems to invite the Court, in effect, to reinstate Count II. We decline to do so. He argues, somewhat cryptically, that the order to post security 'was a nullity' since '(a) court
may not dismiss a theory of relief.' Brief for Respondent 11 and n. 2. But the District Court did not dismiss the pendent state-law claim; respondent deliberately dropped it from his amended complaint. Therefore, whatever the merits of the order for security as applied only to the pendent claim, see Sargent v. Genesco, Inc., D.C., 337 F.Supp. 1244 (MD Fla.1972); cf. Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), respondent has foreclosed himself from consideration of a state claim not now raised by his operative pleading. Wheeldin v. Wheeler, 373 U.S. 647, 652, 83 S.Ct. 1441, 1445, 10 L.Ed.2d 605 (1963). We do not think that the pendent state-law claim was preserved in these circumstances by the verbatim repetition in the amended complaint of a general allegation from the original complaint that petitioners' conduct was 'in violation of state and federal law.'
Therefore, there is not properly before us respondent's argument that the acts of a Delaware corporation violative of United States criminal statutes are ultra vires acts under Delaware corporation law, Del.Code.Ann. Ann. Tit. 8, § 101; 6 W. Fletcher, Cyclopedia Corporations 335 (1968 ed.), and that his ultra vires cause of action therefore 'arises under' federal law, that is § 610, within the meaning of 28 U.S.C. § 1331. He relies upon Smith v. Kansas City Title Co., 255 U.S. 180, 41 S.Ct. 243, 65 L.Ed. 577 (1921); see also Wheeldin v. Wheeler, supra, 373 U.S., at 659—660, 83 S.Ct., at 1443—1449 (Brennan, J., dissenting). Not only was Count II dropped from the case by respondent, and no argument addressed to it made by him in the District Court or the Court of Appeals, but he neither cross-petitioned nor raised the contention in his Opposition to the Petition for Certiorari. Moreover, this Court must necessarily depend upon the district courts and courts of appeals for initial determinations of questions of state law; indeed, our practice of deference to such determinations should generally render unnecessary review of their decisions in this respect. Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 462, 87 S.Ct. 1776, 1781, 18 L.Ed.2d 886 (1967); Ragan v. Merchants Transfer Co., 337 U.S. 530, 534, 69 S.Ct. 1233, 1235, 93 L.Ed. 1520 (1949). Obviously, then, we should not undertake to decide such questions, inherent in respondent's theory, in the first instance.
In sum, in this case 'we see no cause for deviating from our normal policy of not considering issues which have not been
presented to the Court of Appeals and which are not properly presented for review here.' Neely v. Eby Construction Co., 386 U.S. 317, 330, 87 S.Ct. 1072, 1081, 18 L.Ed.2d 75 (1967); cf. Wiener v. United States, 357 U.S. 349, 351 n., 78 S.Ct. 1275, 1277, 2 L.Ed.2d 1377 (1958).
7
A Federal Election Commission was included in the Senate-passed bill in 1971, but was eliminated in conference. See Berry & Goldman, Congress and Public Policy: A Study of the Federal Election Campaign Act of 1971, 10 Harv.J.Legis. 331, 343, 354 (1973); S.Conf.Rep. No. 92—580, pp. 34—35 (1971); H.R.Conf.Rep. No. 92—752, pp. 34—35 (1971). The Commission in the Senate version was given no explicit authority with regard to violations of § 610. See S. 382, § 308(b), as passed Aug. 5, 1971 (3 Leg.Hist. of Federal Election Campaign Act of 1971).
8
Other provisions of the Amendments which may have relevance to private parties' complaints of violations of § 610 include 2 U.S.C. § 437g(a)(9) (1970 ed., Supp. IV), providing for judicial review at the behest of '(a)ny party aggrieved' by any order granted in a civil action filed by the Attorney General, and 2 U.S.C. § 437h(a) (1970 ed., Supp. IV), permitting 'any individal eligible to vote in any election for the office of President of the United States' to file 'such actions . . . as may be appropriate to construe the constitutionality of . . . (§ 610).'
9
The parties disagree upon whether this reference to 'primary jurisdiction' suggests that a complainant, after filing a complaint with the Commission, may file a civil suit for injunctive relief if the Commission fails to cause one to be filed. They also dispute whether the exhaustion requirement applies to a suit for damages. Compare 120 Cong.Rec. 35134 (1974) (remarks of Mr. Hays) (suggesting that the statutory remedies are exclusive) with id., at 35132 (remarks of Mr. Brademas) ('individuals or organizations who may have complaints about possible violations (must) first exhaust their administrative remedies with the Commission . . .' (emphasis supplied)); see also H.R.Conf.Rep. No. 93—1438, p. 94 (1974). However, these issues are not here relevant; it suffices for the purposes of this case to hold that the statute requires that a private complainant desiring injunctive relief against alleged future violations of § 610 must at least exhaust his statutory remedy under the Amendments when and if such violations occur. We note that the question of the availability of a private cause of action by respondent for injunctive relief may not arise at all if the Attorney General seeks and obtains injunctive relief for any claimed violations by Bethlehem. Cf. Richardson v. Wright, 405 U.S. 208, 209, 92 S.Ct. 788, 789, 31 L.Ed.2d 151 (1972).
10
Although the considerations upon which we base our present decision have relevance to a similar determination under the Amendments, we imply no view whether the same result would obtain under the Amendments. See n. 9, supra, and n. 14, infra.
11
In Wyandotte, it was conceded that the United States had a civil in rem action against the ship obstructing navigation under § 19 of the Rivers and Harbors Act of 1899, and could retain the proceeds of the sale of the vessel and its cargo. 389 U.S., at 200 n. 12, 88 S.Ct., at 385. The only question was whether it also had other judicial remedies for violation of § 15 of the Act, aside from the criminal penalties provided in § 16.
In Borak, § 27 of the Securities Exchange Act of 1934 specifically granted jurisdiction to the district courts over civil actions to 'enforce any liability or duty created by this title or the rules and regulations thereunder,' and there seemed to be no dispute over the fact that at least a private suit for declaratory relief was authorized; the question was whether a derivative suit for rescission and damages was also available. 377 U.S., at 430—431, 84 S.Ct., at 1559. Further it was clear that the Securities and Exchange Commission could sue to enjoin violations of § 14(a) of the Act, the section involved in Borak. See § 21 of the Act, 15 U.S.C. § 78u.
Finally, in Rigsby, the Court noted that the statutes involved included language pertinent only to a private right of action for damages, although such a right of action was not expressly provided, thus rendering '(t)he inference of a private right of action . . . irresistible.' 241 U.S., at 40, 36 S.Ct., at 484. See also United States v. Republic Steel Corp., 362 U.S. 482, 491, 80 S.Ct. 884, 889, 4 L.Ed.2d 903 (1960).
12
The Act provided:
'(It) shall be unlawful for any national bank, or any corporation organized by authority of any laws of Congress, to make a money contribution in connection with any election to any political office. It shall also be unlawful for any corporation whatever to make a money contribution in connection with any election at which Presidential and Vice-Presidential electors or a Representative in Congress is to be voted for or any election by any State legislature of a United States Senator. . . .' 34 Stat. 864.
13
Section 610 was later expanded to include labor unions within its prohibition. The history of this expansion has been recounted before. United States v. CIO, 335 U.S. 106, 114—116, 68 S.Ct. 1349, 1353—1354, 92 L.Ed. 1849 (1948); United States v. Auto Workers, 352 U.S. 567, 578—584, 77 S.Ct. 529, 534—537, 1 L.Ed.2d 563 (1957); Pipefitters v. United States, 407 U.S. 385, 402—409, 92 S.Ct. 2247, 2258—2261, 33 L.Ed.2d 11 (1972). We note that Congress did show concern, in permanently expanding § 610 to unions, for protecting union members from use of their funds for political purposes. See United States v. CIO, supra, 335 U.S., at 135, 142, 68 S.Ct., at 1363, 1367 (Rutledge, J., concurring). This difference in emphasis may reflect a recognition that, while a stockholder acquires his stock voluntarily and is free to dispose of it, union membership and the payment of union dues is often involuntary because of union security and checkoff provisions. Cf. Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961). It is therefore arguable that the federal interest in the relationship between members and their unions is much greater than the parallel interest in the relationship between stockholders and state-created corporations. In fact, the permanent expansion of § 610 to include labor unions was part of comprehensive labor legislation, the Taft-Hartley Act of 1947, while the 1907 Act dealt with corporations only with regard to their impact on federal elections. We intimate no view whether our conclusion that § 610 did not give rise directly to a cause of action for damages in favor of stockholders in statecreated corporations necessarily would imply that union members, despite the much stronger federal interest in unions, are also relegated to state remedies.
14
Petitioners point out that the Federal Election Campaign Act of 1971 did create a private complaint procedure with regard to the disclosure provisions there enacted, § 308(d), 86 Stat. 18, and yet, while the Act, § 205, did amend § 610, it did not provide a parallel remedy for private parties for violations of § 610. Relying on Amtrak, 414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974), and T.I.M.E., Inc. v. United
States, 359 U.S. 464, 79 S.Ct. 904, 3 L.Ed.2d 952 (1959), they ask us to infer from the fact that some private remedy was provided with regard to Title III of the 1971 Act an intention to deny any such remedy with regard to the criminal statutes amended in Title II.
We find this excursion into extrapolation of legislative intent entirely unilluminating. In Amtrak, there was a private cause of action provided in favor of certain plaintiffs concerning the particular provision at issue. It was in this context that we referred to '(a) frequently stated principle of statutory construction . . . that when legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the statute to subsume other remedies.' 414 U.S., at 458, 94 S.Ct., at 693. In addition, there was specific support in the legislative history of the Amtrak Act for the proposition that the statutory remedies were to be exclusive. Id., at 458—461, 94 S.Ct., at 693—694.
In T.I.M.E., supra, the Court did rely in part upon the fact that a particular remedy was provided with regard to certain parts of the Interstate Commerce Act to infer that none was intended with regard to others. But again, there was specific support in the legislative history for this inference. 359 U.S., at 471—472, 477, and n. 18, 79 S.Ct., at 908—909, 912.
Here, there was, as far as the parties have been able to point out and as far as we have been able independently to determine, no discussion whatever in Congress concerning private enforcement of § 610. Further, while § 610 was amended in ways not pertinent here in 1971, it was, as we have seen, of much earlier origin, and it would be odd to infer from Congress' actions concerning the newly created provisions of Title III any intention regarding the enforcement of a long-existing statute.
Petitioners also suggest that the legislative history of the Amendments throw a 'cross-light,' Pipefitters v. United States, 407 U.S., at 427, 92 S.Ct.At 2270, upon Congress' understanding concerning private enforcement of § 610. Any such light cast is, in our view, exceedingly dim and of little help here.
| 23
|
422 U.S. 205
95 S.Ct. 2268
45 L.Ed.2d 125
Richard ERZNOZNIK, etc., Appellant,v.CITY OF JACKSONVILLE.
No. 73—1942.
Argued Feb. 26, 1975.
Decided June 23, 1975.
Syllabus
A Jacksonville, Fla., ordinance making it a public nuisance and a punishable offense for a drive-in movie theater to exhibit films containing nudity, when the screen is visible from a public street or place, held facially invalid as an infringement of First Amendment rights. Pp. 208-217.
(a) The ordinance by discriminating among movies solely on the basis of content has the effect of deterring drive-in theaters from showing movies containing any nudity, however innocent or even educational, and such censorship of the content of otherwise protected speech cannot be justified on the basis of the limited privacy interest of persons on the public streets, who if offended by viewing the movies can readily avert their eyes. Pp. 208-212.
(b) Nor can the ordinance be justified as an exercise of the city's police power for the protection of children against viewing the films. Even assuming that such is its purpose, the restriction is broader than permissible since it is not directed against sexually explicit nudity or otherwise limited. Pp. 212-214.
(c) Nor can the ordinance be justified as a traffic regulation. If this were its purpose, it would be invalid as a strikingly underinclusive legislative classification since it singles out movies containing nudity from all other movies that might distract a passing motorist. Pp. 214-215.
(d) The possibility of a narrowing construction of the ordinance appears remote, particularly where appellee city offered several distinct justifications for it in its broadest terms. Moreover, its deterrent effect on legitimate expression in the form of movies is both real and substantial. Pp. 215-217.
288 So.2d 260, reversed.
William H. Maness, Jacksonville, Fla., for appellant.
William Lee Allen, Jacksonville, Fla., for appellee.
Mr. Justice POWELL delivered the opinion of the Court.
1
This case presents a challenge to the facial validity of a Jacksonville, Fla., ordinance that prohibits showing films containing nudity by a drive-in movie theater when its screen is visible from a public street or place.
2
* Appellant, Richard Erznoznik, is the manager of the University Drive-In Theatre in Jacksonville. On March 13, 1972, he was charged with violating § 330.313 of the municipal code for exhibiting a motion picture, visible from public streets, in which 'female buttocks and bare breasts were shown.'1 The ordinance, adopted January 14, 1972, provides:
3
'330.313 Drive-In Theaters, Films Visible From Public Streets or Public Places. It shall be unlawful and it is hereby declared a public nuisance for any ticket seller, ticket taker, usher, motion picture projection machine operator, manager, owner, or any other person connected with or employed by any drive-in theater in the City to exhibit, or aid or assist in exhibiting, any motion picture, slide, or other exhibit in which the human male or female bare buttocks, human female bare breasts, or human bare public areas are shown, if such motion picture, slide, or other exhibit is visible from any public street or public place. Violation of this section shall be punishable as a Class C offense.'
4
Appellant, with the consent of the city prosecutor, successfully moved to stay his prosecution so that the validity of the ordinance could be tested in a separate declaratory action. In that action appellee, the city of Jacksonville, introduced evidence showing that the screen of appellant's theater is visible from two adjacent public streets and a nearby church parking lot. There was also testimony indicating that people had been observed watching films while sitting outside the theater in parked cars and in the grass.
5
The trial court upheld the ordinance as a legitimate exercise of the municipality's police power, and ruled that it did not infringe upon appellant's First Amendment rights. The District Court of Appeal, First District of Florida, affirmed, 288 So.2d 260 (1974), relying exclusively on Chemline, Inc. v. City of Grand Prairie, 364 F.2d 721 (CA5 1966), which had sustained a similar ordinance.2 The Florida Supreme Court denied certiorari, three judges dissenting. 294 So.2d 93 (1974). We noted probable jurisdiction,3 419 U.S. 822, 95 S.Ct. 37, 42 L.Ed.2d 46 (1974), and now reverse.
II
6
Appellee concedes that its ordinance sweeps far beyond the permissible restraints on obscenity, see Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and thus applies to films that are protected by the First Amendment. See Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952); Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974). Nevertheless, it maintains that any movie containing nudity which is visible from a public place may be suppressed as a nuisance. Several theories are advanced to justify this contention.
A.
7
Appellee's primary argument is that it may protect its citizens against unwilling exposure to materials that may be offensive. Jacksonville's ordinance, however, does not protect citizens from all movies that might offend; rather it singles out films containing nudity, presumably because the lawmakers considered them especially offensive to passersby.
8
This Court has considered analogous issues—pitting the First Amendment rights of speakers against the privacy rights of those who may be unwilling viewers or auditors—in a variety of contexts. See, e.g., Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949); Breard v. Alexandria, 341 U.S. 622, 641—645, 71 S.Ct. 920, 932—934, 95 L.Ed. 1233 (1951); Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974). See generally Haiman, Speech v. Privacy: Is There A Right Not To Be Spoken To?, 67 Nw.U.L.Rev. 153 (1972). Such cases demand delicate balancing because:
9
'In th(e) sphere of collision between claims of privacy and those of (free speech or) free press, the interests on both sides are plainly rooted in the traditions and significant concerns of our society.' Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491, 95 S.Ct. 1029, 1044, 43 L.Ed.2d 328 (1975).
10
Although each case ultimately must depend on its own specific facts, some general principles have emerged. A State or municipality may protect individual privacy by enacting reasonable time, place, and manner regulations applicable to all speech irrespective of content. See Kovacs v. Cooper, supra; Cox v. Louisiana, 379 U.S. 536, 554, 85 S.Ct. 453, 464, 13 L.Ed.2d 471 (1965); Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966). But when the government, acting as censor, undertakes selectively to shield the public from some kinds of speech on the ground that they are more offensive than others, the First Amendment strictly limits its power. See, e.g., Police Dept. of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972); Fowler v. Rhode Island, 345 U.S. 67, 73 S.Ct. 526, 97 L.Ed. 828 (1953); Kovacs v. Cooper, supra, 336 U.S., at 97, 69 S.Ct., at 458 (Jackson, J., concurring). Such selective restrictions have been upheld only when the speaker intrudes on the privacy of the home, see Rowan v. Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970),4 or the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure. See Lehman v. City of Shaker Heights, supra.5 As Mr. Justice Harlan cautioned:
11
'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. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections.' Cohen v. California, 403 U.S., at 21, 91 S.Ct., at 1786.
12
The plain, if at times disquieting, truth is that in our pluralistic society, constantly proliferating new and ingenious forms of expression, 'we are inescapably captive audiences fror many purposes.' Rowan v. Post Office Dept., supra, 397 U.S., at 736, 90 S.Ct., at 1490. Much that we encounter offends our esthetic, if not our political and moral, sensibilities. Nevertheless, the Constitution does not permit government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer. Rather, absent the narrow circumstances described above,6 the burden normally falls upon the viewer to 'avoid further bombardment of (his) sensibilities simply by averting (his) eyes.' Cohen v. California, supra, 403 U.S., at 21, 91 S.Ct., at 1786. See also Spence v. Washington, 418 U.S. 405, 412, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974).
13
The Jacksonville ordinance discriminates among movies solely on the basis of content.7 Its effect is to deter drive-in theaters from showing movies containing any nudity, however innocent or even educational.8 This discrimination cannot be justified as a means of preventing significant intrusions on privacy. The ordinance seeks only to keep these films from being seen from public streets and places where the offended viewer readily can avert his eyes. In short, the screen of a drive-in theater is not 'so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it.' Redrup v. New York, 386 U.S. 767, 769, 87 S.Ct. 1414, 1415, 18 L.Ed.2d 515 (1967). Thus, we conclude that the limited privacy interest of persons on the public streets cannot justify this censorship of otherwise protected speech on the basis of its content.9
B
14
Appellee also attempts to support the ordinance as an exercise of the city's undoubted police power to protect children. Appellee maintains that even though it cannot prohibit the display of films containing nudity to adults, the present ordinance is a reasonable means of protecting minors from this type of visual influence.
15
It is well settled that a State or municipality can adopt more stringent controls on communicative materials available to youths than on those available to adults. See, e.g., Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). Nevertheless, minors are entitled to a significant measure of First Amendment protection, see Tinker v. Des Moines School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them. See, e.g., Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968); Rabeck v. New York, 391 U.S. 462, 88 S.Ct. 1716, 20 L.Ed.2d 741 (1968).
16
In this case, assuming the ordinance is aimed at prohibiting youths from viewing the films, the restriction is broader than permissible. The ordinance is not directed against sexually explicit nudity, nor is it otherwise limited. Rather, it sweepingly forbids display of all films containing any uncovered buttocks or breasts, irrespective of context or pervasiveness. Thus it would bar a film containing a picture of a baby's buttocks, the nude body of a war victim, or scenes from a culture in which nudity is indigenous. The ordinance also might prohibit newsreel scenes of the opening of an art exhibit as well as shots of bathers on a beach. Clearly all nudity cannot be deemed obscene even as to minors. See Ginsberg v. New York, supra.10 Nor can such a broad restriction be justified by any other governmental interest pertaining to minors. Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them. In most circumstances,11 the values protected by the First Amendment are no less applicable when government seeks to control the flow of information to minors. See Tinker v. Des Moines School Dist., supra. Cf. West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). Thus, if Jacksonville's ordinance is intended to regulate expression accessible to minors it is overbroad in its proscription.12
C
17
At oral argument appellee, for the first time, sought to justify its ordinance as a traffic regulation. It claimed that nudity on a drive-in movie screen distracts passing motorists, thus slowing the flow of traffic and increasing the likelihood of accidents.
18
Nothing in the record or in the text of the ordinance suggests that it is aimed at traffic regulation. Indeed, the ordinance applies to movie screens visible from public places as well as public streets, thus indicating that it is not a traffic regulation. But even if this were the purpose of the ordinance, it nonetheless would be invalid. By singling out movies containing even the most fleeting and innocent glimpses of nudity the legislative classification is strikingly underinclusive. There is no reason to think that a wide variety of other scenes in the customary screen diet, ranging from soap opera to violence, would be any less distracting to the passing motorist.
19
This Court frequently has upheld underinclusive classifications on the sound theory that a legislature may deal with one part of a problem without addressing all of it. See, e.g., Williamson v. Lee Optical Co., 348 U.S. 483, 488—489, 75 S.Ct. 461, 464—465, 99 L.Ed. 563 (1955). This presumption of statutory validity, however, has less force when a classification turns on the subject matter of expression. '(A)bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.' Police Dept. of Chicago v. Mosley, 408 U.S., at 95, 92 S.Ct., at 2290. Thus, 'under the Equal Protection Clause, not to mention the First Amendment itself,' id., at 96, 92 S.Ct., at 2290 even a traffic regulation cannot discriminate on the basis of content unless there are clear reasons for the distinctions. See also Cox v. Louisiana, 379 U.S. 559, 581, 85 S.Ct. 466, 470 (opinion of Black, J.). Cf. Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).
20
Appellee offers no justification, nor are we aware of any, for distinguishing movies containing nudity from all other movies in a regulation designed to protect traffic. Absent such a justification, the ordinance cannot be salvaged by this rationale.13
III
21
Even though none of the reasons advanced by appellee will sustain the Jacksonville ordinance, it remains for us to decide whether the ordinance should be invalidated on its face. This Court has long recognized that a demonstrably overbroad statute or ordinance may deter the legitimate exercise of First Amendment rights. Nonetheless, when considering a facial challenge it is necessary to proceed with caution and restraint, as invalidation may result in unnecessary interference with a state regulatory program. In accommodating these competing interests the Court has held that a state statute should not be deemed facially invalid unless it is not readily subject to a narrowing construction by the state courts, see Dombrowski v. Pfister, 380 U.S. 479, 497, 85 S.Ct. 1116, 1126, 14 L.Ed.2d 22 (1965), and its deterrent effect on legitimate expression is both real and substantial. See Broadrick v. Oklahoma, 413 U.S. 601, 612 615, 93 S.Ct. 2908, 2915—2917 (1973). See generally Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844 (1970).
22
In the present case the possibility of a limiting construction appears remote. Appellee explicitly joined in this test of the facial validity of its ordinance by agreeing to stay appellant's prosecution.14 Moreover, the ordinance by its plain terms is not easily susceptible of a narrowing construction.15 Indeed, when the state courts were presented with this overbreadth challenge they made no effort to restrict its application. Compare Coates v. City of Cincinnati, 402 U.S. 611, 612—613, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214 (1971), and Brandenburg v. Ohio, 395 U.S. 444, 448—449, 89 S.Ct. 1827, 1830, 23 L.Ed.2d 430 (1969), with Cox v. New Hampshire, 312 U.S. 569, 575—576, 61 S.Ct. 762, 765, 85 L.Ed. 1049 (1941), and Chaplinsky v. New Hampshire, 315 U.S. 568, 572—573, 62 S.Ct. 766, 769—770, 86 L.Ed. 1031 (1942). In these circumstances, particularly where as here appellee offers several distinct justifications for the ordinance in its broadest terms, there is no reason to assume that the ordinance can or will be decisively narrowed. See Gooding v. Wilson, 405 U.S. 518, 520—527, 92 S.Ct. 1103, 1105—1108, 31 L.Ed.2d 408 (1972). Cf. Grayned v. City of Rockford, 408 U.S. 104, 111—112, 92 S.Ct. 2294, 2300, 33 L.Ed.2d 222 (1972); Time, Inc. v. Hill, 385 U.S. 374, 397, 87 S.Ct. 534, 546, 17 L.Ed.2d 456 (1967).
23
Moreover, the deterrent effect of this ordinance is both real and substantial. Since it applies specifically to all persons employed by or connected with drive-in theaters, the owners and operators of these theaters are faced with an unwelcome choice: to avoid prosecution of themselves and their employees they must either restrict their movie offerings or construct adequate protective fencing which may be extremely expensive or even physically impracticable.16 Cf. Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 513, 92 S.Ct. 1749, 1758, 32 L.Ed.2d 257 (1972) (Powell, J., dissenting).
IV
24
In concluding that this ordinance is invalid we do not deprecate the legitimate interests asserted by the city of Jacksonville. We hold only that the present ordinance does not satisfy the rigorous constitutional standards that apply when government attempts to regulate expression. Where First Amendment freedoms are at stake we have repeatedly emphasized that precision of drafting and clarity of purpose are essential. These prerequisites are absent here. Accordingly the judgment below is reversed.
25
Reversed.
26
Mr. Justice DOUGLAS, concurring.
27
I join wholeheartedly in the Court's view that the ordinance in issue here is fatally overinclusive in some respects and fatally underinclusive in others. I do not doubt that under proper circumstances, a narrowly drawn ordinance could be utilized within constitutional boundaries to protect the interests of captive audiences1 or to promote highway safety. In these days of heavy traffic, it is reasonable to attempt to remove all distractions that might increase accidents. These legitimate interests cannot, however, justify attempts to discriminate among movies on the basis of their content—a 'pure' movie is apt to be just as distracting to drivers as an 'impure' one, and to be just as intrusive upon the privacy of an unwilling but captive audience. Any ordinance which regulates movies on the basis of content, whether by an obscenity standard2 or by some other criterion, impermissibly intrudes upon the free speech rights guaranteed by the First and Fourteenth Amendments.
28
Mr. Chief Justice BURGER, with whom Mr. Justice REHNQUIST, joins, dissenting.
29
Although the Court pays lip service to the proposition that 'each case ultimately must depend on its own specific facts,' ante, at 209, it strikes down Jacksonville City Code § 330.313 by a mechanical application of 'general principles' distilled from cases having little to do with either this case or each other. Because I can accept neither that approach nor its result, I dissent.
30
The Court's analysis seems to begin and end with the sweeping proposition that, regardless of the circumstances, government may not regulate any form of 'communicative' activity on the basis of its content. Absent certain 'special circumstances,' we are told, the burden falls upon the public to ignore offensive materials rather than upon their purveyor to take steps to shield them from public view. In four short sentences without reasoned support, ante, at 211-212, the Court concludes that Jacksonville's ordinance does not pass muster under its tests, and therefore strikes it down.
31
None of the cases upon which the Court relies remotely implies that the Court ever intended to establish inexorable limitations upon state power in this area. Many cases upheld the regulation of communicative activity and did not purport to define the limits of the power to do so. E.g., Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974); Rowan v. Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970); Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951); Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949). Other cases relied upon by the Court were either expressly or impliedly decided upon equal protection grounds and, although recognizing that First Amendment interests were involved, turned upon 'the crucial question . . . whether there is an appropriate governmental interest suitably furthered by the differential treatment.' Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972). See also Fowler v. Rhode Island, 345 U.S. 67, 73 S.Ct. 526, 97 L.Ed. 828 (1953). Such a standard necessarily requires particularized review. Finally, yet other of the cases cited by the Court were decided on vagueness and overbreadth. E.g., Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). Again, application of these doctrines requires scrutiny of the specific statute and activity involved rather than reliance upon generalizations. See, e.g., id., at 544—558, 85 S.Ct., at 458—459.
32
In short, nothing in this Court's prior decisions justifies disregard of the admonition that 'the nature of the forum and the conflicting interests involved have remained important in determining the degree of protection afforded by the (First) Amendment to the speech in question.' Lehman v. City of Shaker Heights, supra, 418 U.S., at 302—303, 94 S.Ct., at 2718 (plurality opinion of Blackmun, J.). Rather, in applying this principle in contexts similar to the instant case, members of this Court have cautioned that every medium of communication 'is a law unto itself,' Kovacs v. Cooper, supra, 336 U.S., at 97, 69 S.Ct., at 458 (Jackson, J., concurring), and that the 'tyranny of absolutes' should not be relied upon 'to meet the problems generated by the need to accommodate the diverse interests affected by the motion pictures in compact modern communities.' Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 518, 72 S.Ct. 777, 788, 96 L.Ed. 1098 (1952) (Frankfurther, J., concurring).
33
A careful consideration of the diverse interests involved in this case illustrates, for me, the inadequacy of the Court's rigidly simplistic approach. In the first place, the conclusion that only a limited interest of persons on the public streets is at stake here can be supported only if one completely ignores the unique visual medium to which the Jacksonville ordinance is directed. Whatever validity the notion that passersby may protect their sensibilities by averting their eyes may have when applied to words printed on an individual's jacket, see Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), or a flag hung from a second-floor apartment window, see Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974), it distorts reality to apply that notion to the outsize screen of a drive-in movie theater. Such screens are invariably huge;1 indeed, photographs included in the record of this case show that the screen of petitioner's theater dominated the view from public places including nearby residences and adjacent highways. Moreover, when films are projected on such screens the combination of color and animation against a necessarily dark background is designed to, and results in, attracting and holding the attention of all observers. See Note, Motion Pictures and the First Amendment, 60 Yale L.J. 696, 707—708 (1951). Similar considerations led Mr. Justice Brandeis, writing for the Court in Packer Corp. v. Utah, 285 U.S. 105, 52 S.Ct. 273, 76 L.Ed. 643 (1932), to conclude that there is a public interest in regulating billboard displays which may not apply to other forms of advertising:
34
"Advertisements of this sort are constantly before the eyes of observers on the streets and in street cars to be seen without the exercise of choice or volition on their part. Other forms of advertising are ordinarily seen as a matter of choice on the part of the observer. The young people as well as the adults have the message of the billboard thrust upon them by all the arts and devices that skill can produce. In the case of newspapers and magazines, there must be some seeking by the one who is to see and read the advertisement. The radio can be turned off, but not so the billboard or street car placard. These distinctions clearly place this kind of advertisement in a position to be classified so that regulations or prohibitions may be imposed upon all within the class."
35
Id., at 110, 52 S.Ct., at 274.
36
So here, the screen of a drive-in movie theater is a unique type of eye-catching display that can be highly intrusive and distracting. Public authorities have a legitimate interest in regulating such displays under the police power; for example, even though traffic safety may not have been the only target of the ordinance in issue here, I think it not unreasonable for lawmakers to believe that public nudity on a giant screen, visible at night to hundreds of drivers of automobiles, may have a tendency to divert attention from their task and cause accidents.
37
No more defensible is the Court's conclusion that Jacksonville's ordinance is defective because it regulates only nudity. The significance of this fact is explained only in a footnote:
38
'Scenes of nudity in a movie, like pictures of nude persons in a book, must be considered as a part of the whole work . . . In this respect such nudity is distinguishable from the kind of public nudity traditionally subject to indecent-exposure laws.'
39
Ante, at 211 n. 7.
40
Both the analogy and the distinction are flawed. Unlike persons reading books, passersby cannot consider fragments of drive-in movies as a part of the 'whole work' for the simple reason that they see but do not hear the performance, cf. Note, supra, 60 Yale L.J., at 707, and n. 27; nor do drivers and passengers on nearby highways see the whole of the visual display. The communicative value of such fleeting exposure falls somewhere in the range of slight to nonexistent. Moreover, those persons who legitimately desire to consider the 'work as a whole' are not foreclosed from doing so. The record shows that the film from which appellant's prosecution arose was exhibited in several indoor theaters in the Jacksonville area. And the owner of a drive-in movie theater is not prevented from exhibiting nonobscene films involving nudity so long as he effectively shields the screen from public view. Thus, regardless of whether the ordinance involved here can be loosely described as regulating the content of a certain type of display, it is not a restriction of any 'message.' Cf. Police Dept. of Chicago v. Mosley, supra, 408 U.S., at 95—96, 92 S.Ct., at 2290; Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972). The First Amendment interests involved in this case are trivial at best.
41
On the other hand, assuming arguendo that there could be a play performed in a theater by nude actors involving genuine communication of ideas, the same conduct in a public park or street could be prosecuted under an ordinance prohibiting indecent exposure. This is so because the police power has long been interpreted to authorize the regulation of nudity in areas to which all members of the public have access, regardless of any incidental effect upon communication. A nudist colony, for example, cannot lawfully set up shop in Central Park or Lafayette Park, places established for the public generally. Cf. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 67, 93 S.Ct. 2628, 2640, 37 L.Ed.2d 446 (1973); Roth v. United States, 354 U.S. 476, 512, 77 S.Ct. 1304, 1323, 1 L.Ed.2d 1498 (1957) (Douglas, J., dissenting). Whether such regulation is justified as necessary to protect public mores or simply to insure the undistracted enjoyment of open areas by the greatest number of people—or for traffic safety its rationale applies a fortiori to giant displays which through technology are capable of revealing and emphasizing the most intimate details of human anatomy.
42
In sum, the Jacksonville ordinance involved in this case, although no model of draftsmanship, is narrowly drawn to regulate only certain unique public exhibitions of nudity; it would be absurd to suggest that it operates to suppress expression of ideas. By conveniently ignoring these facts and deciding the case on the basis of absolutes the Court adds nothing to First Amendment analysis and sacrifices legitimate state interests. I would affirm the judgment of the Florida Court of Appeals.2
43
Mr. Justice WHITE, dissenting.
44
The Court asserts that the State may shield the public from selected types of speech and allegedly expressive conduct, such as nudity, only when the speaker or actor invades the privacy of the home or where the degree of captivity of an unwilling listener is such that it is impractical for him to avoid the exposure by averting his eyes. The Court concludes 'that the limited privacy interest of persons on the public streets cannot justify this censorship of otherwise protected speech on the basis of its content.' Ante, at 212. If this broadside is to be taken literally, the State may not forbid 'expressive' nudity on the public streets, in the public parks, or any other public place since other persons in those places at that time have a 'limited privacy interest' and may merely look the other way.
45
I am not ready to take this step with the Court. Moreover, by the Court's own analysis, the step is an unnecessary one. If, as the Court holds in Part II—B of its opinion, the ordinance is unconstitutionally overbroad even as an exercise of the police power to protect children, it is fatally overbroad as to the population generally. Part II—A is surplusage. I therefore dissent.
1
The movie, 'Class of '74,' had been rated 'R' by the Motion Picture Association of America. An 'R' rating indicates that youths may be admitted only when accompanied by a parent or guardian. See generally Friedman, The Motion Picture Rating System of 1968: A Constitutional Analysis of Self-Regulation by the Film Industry, 73 Col.L.Rev. 185 (1973). Although there is nothing in the record regarding the content of the movie, the parties agree that it includes pictures of uncovered female breasts and buttocks.
2
The only other United States Court of Appeals to consider this question reached a contrary result. See Cinecom Theaters Midwest States, Inc. v. City of Fort Wayne, 473 F.2d 1297 (CA7 1973).
3
A local ordinance is deemed a state statute for purposes of invoking this Court's jurisdiction under 28 U.S.C. § 1257(2). See King Mfg. Co. v. City Council of Augusta, 277 U.S. 100, 48 S.Ct. 489, 72 L.Ed. 801 (1928).
4
Rowan involved a federal statute that permits a person receiving a 'pandering advertisement' which he believes to be 'erotically arousing or sexually provocative' to instruct the Postmaster General to inform the sender that such mail is not to be sent in the future. The Court upheld the statute, emphasizing that individual privacy is entitled to greater protection in the home than on the streets and noting that 'the right of every person 'to be let alone' must be placed in the scales with the right of others to communicate.' See 397 U.S., at 736—738, 90 S.Ct., at 1490.
5
In Lehman the Court sustained a municipality's policy of barring political advertisements while permitting nonpolitical advertisements on city buses. The issue was whether the city had created a 'public forum' and thereby obligated itself to accept all advertising. While concluding that no public forum had been established, both the plurality and concurring opinions recognized that the degree of captivity and the resultant intrusion on privacy is significantly greater for a passenger on a bus than for a person on the street. See 418 U.S. 298, 302—304, 94 S.Ct. 2714, 2716—2718, 41 L.Ed.2d 770 (opinion of Blackmun, J.), and id., at 306—308, 94 S.Ct., at 2718—2720 (Douglas, J., concurring). See also Public Utilities Comm'n v. Pollak, 343 U.S. 451, 467, 72 S.Ct. 813, 823, 96 L.Ed. 1068 (1952) (Douglas, J., dissenting).
6
It has also been suggested that government may proscribe, by a properly framed law, 'the willful use of scurrilous language calculated to offend the sensibilities of an unwilling audience.' Rosenfeld v. New Jersey, 408 U.S. 901, 905, 92 S.Ct. 2479, 2481, 33 L.Ed.2d 321 (1972) (Powell, J., dissenting). Cf. Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966). In such cases the speaker may seek to 'force public confrontation with the potentially offensive aspects of the work.' Id., at 470, 86 S.Ct., at 947. It may not be the content of the speech, as much as the deliberate 'verbal (or visual) assault,' Rosenfeld, supra, 408 U.S., at 906, 92 S.Ct., at 2481, that justifies proscription. See Redrup v. New York, 386 U.S. 767, 769, 87 S.Ct. 1414, 1415, 18 L.Ed.2d 515 (1967). In the present case, however, appellant is not trying to reach, much less shock, unwilling viewers. Appellant manages a commercial enterprise which depends for its success on paying customers, not on freeloading passersby. Presumably, where economically feasible, the screen of a drive-in theater will be shielded from those who do not pay.
7
Scenes of nudity in a movie, like pictures of nude persons in a book, must be considered as a part of the whole work. See Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419 (1973); Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972). In this respect such nudity is distinguishable from the kind of public nudity traditionally subject to indecent-exposure laws. See Roth v. United States, 354 U.S. 476, 512, 77 S.Ct. 1304, 1323, 1 L.Ed.2d 1498 (1957) (Douglas, J., dissenting) ('No one would suggest that the First Amendment permits nudity in public places'). Cf. United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).
THE CHIEF JUSTICE's dissent, in response to this point, states that '(u)nlike persons reading books, passersby cannot consider fragments of drive-in movies as a part of the 'whole work' for the simple reason that they see but do not hear the performance . . .. Post, at 222 (emphasis in original). At issue here, however, is not the viewing rights of unwilling viewers but rather the rights of those who operate drive-in theaters and the public that attends these establishments. The effect of the Jacksonville ordinance is to increase the cost of showing films containing nudity. See n. 8, infra. In certain circumstances theaters will avoid showing these movies rather than incur the additional costs. As a result persons who want to see such films at drive-ins will be unable to do so. It is in this regard that a motion picture must be considered as a whole, and not as isolated fragments or scenes of nudity.
8
Such a deterrent, although it might not result in total suppression of these movies, is a restraint on free expression. See Speiser v. Randall, 357 U.S. 513, 518—519, 78 S.Ct. 1332, 1338, 2 L.Ed.2d 1460 (1958). The record does not indicate how much it would cost to block public view of appellant's theater. Such costs generally will vary with circumstances. In one case the expense was estimated at approximately a quarter million dollars. See Olympic Drive-In Theatre, Inc. v. City of Pagedale, 441 S.W.2d 5, 8 (Mo. 1969).
9
We are not concerned in this case with a properly drawn zoning ordinance restricting the location of drive-in theaters or with a nondiscriminatory nuisance ordinance designed to protect the privacy of persons in their homes from the visual and audible intrusions of such theaters.
10
In Ginsberg the Court adopted a variation of the adult obscenity standards enunciated in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966) (plurality opinion). In Miller v. California, supra, we abandoned the Roth-Memoirs test for judging obscenity with respect to adults. We have not had occasion to decide what effect Miller will have on the Ginsberg formulation. It is clear, however, that under any test of obscenity as to minors not all nudity would be proscribed. Rather, to be obscene 'such expression must be, in some significant way, erotic.' Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 1785, 29 L.Ed.2d 284 (1971). See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 106—107, 93 S.Ct. 2628, 2659 2660, 37 L.Ed.2d 446 (1973) (Brennan, J., dissenting).
11
The First Amendment rights of minors are not 'co-extensive with those of adults.' Tinker v. Des Moines School Dist., 393 U.S. 503, 515, 89 S.Ct. 733, 741, 21 L.Ed.2d 731 (1969) (Stewart, J., concurring). '(A) State may permissibly determine that, at least in some precisely delineated areas, a child—like someone in a captive audience—is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees.' Ginsberg v. New York, 390 U.S. 629, 649—650, 88 S.Ct. 1274, 1285—1286, 20 L.Ed.2d 195 (1969) (Stewart, J., concurring). In assessing whether a minor has the requisite capacity for individual choice the age of the minor is a significant factor. See Rowan v. Post Office Dept., 397 U.S., at 741, 90 S.Ct., at 1492 (Brennan, J., concurring).
12
See Part III, infra.
13
This is not to say that a narrowly drawn nondiscriminatory traffic regulation requiring screening of drive-in movie theaters from the view of motorists would not be a reasonable exercise of police power. See Police Dept. of Chicago v. Mosley, 408 U.S. 92, 98, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972), and cases cited.
14
In this respect the present case arises in a posture that differs from most challenges to a statute or ordinance considered by this Court. Typically in such cases the issue arises in a context where the statute or ordinance has been applied to allegedly unprotected activity. Thus, we are able to consider the constitutionality of the statute 'as applied' as well as 'on its face.'
15
The only narrowing construction which occurs to us would be to limit the ordinance to movies that are obscene as to minors. Neither appellee nor the Florida courts have suggested such a limitation, perhaps because a rewriting of the ordinance would be necessary to reach that result.
16
In this case appellant himself is a theater manager. Hence the statute's deterrent effect acts upon him personally; he is not seeking to raise the hypothetical rights of others. See Breard v. Alexandria, 341 U.S. 622, 641, 71 S.Ct. 920, 932, 95 L.Ed. 1233 (1951).
1
See Lehman v. City of Shaker Heights, 418 U.S. 298, 305, 94 S.Ct. 2714, 2720, 41 L.Ed.2d 770 (1974) (Douglas, J., concurring in judgment); Public Utilities Comm'n v. Pollak, 343 U.S. 451, 467, 72 S.Ct. 813, 823, 96 L.Ed. 1068 (1952) (Douglas, J., dissenting).
2
I adhere to my view that any state or federal regulation of obscenity is prohibited by the Constitution. Roth v. United States, 354 U.S. 476, 508—514, 77 S.Ct. 1304, 1321—1324, 1 L.Ed.2d 1498 (1957) (dissenting); Miller v. California, 413 U.S. 15, 42 47, 93 S.Ct. 2607, 2624, 37 L.Ed.2d 419 (1973) (dissenting); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 70—73, 93 S.Ct. 2628, 2642, 37 L.Ed.2d 446 (1973) (dissenting).
1
For example, in a case similar to this one the screen measured 35 feet by 70 feet and stood 54 feet above the ground. Bloss v. Paris Township, 380 Mich. 466, 157 N.W.2d 260 (1968).
2
On my view of this case it is not necessary to deal with the issues discussed in Parts II—B, II—C, and III of the Court's opinion.
| 23
|
422 U.S. 184
95 S.Ct. 2240
45 L.Ed.2d 109
UNITED STATES, Petitioner,v.State of ALASKA.
No. 73—1888.
Argued April 16, 1975.
Decided June 23, 1975.
Rehearing Denied Oct. 6, 1975.
See 423 U.S. 885, 96 S.Ct. 159.
syllabus
Proof held insufficient to establish Cook Inlet as a historic bay, and hence the United States, as against Alaska, has paramount rights to the land beneath the waters of the lower, or seaward, portion of the inlet. Pp. 189-204.
(a) The sparse evidence as to Russia's exercise of authority over the lower inlet during the period of Russian sovereignty is insufficient to demonstrate the exercise of authority essential to the establishment of a historic bay. Pp. 190-192.
(b) Nor was the enforcement of fishing and wildlife regulations under various federal statutes and an Executive Order during the period of United States sovereignty over the Territory of Alaska sufficient in scope to establish historic title to Cook Inlet as inland waters, especially where it appears that the geographic scope of such enforcement efforts was determined primarily, if not exclusively, by the needs of effective management of the fish and game population involved, rather than as an intended assertion of territorial sovereignty to exclude all foreign vessels and navigation. Pp. 192-199.
(c) The mere failure of any foreign nation to protest the authority asserted by the United States during the territorial period is inadequate proof of the acquiescence essential to historic title. It must also be shown that the foreign governments knew or should have known of the authority being asserted, and here the routine enforcement of domestic fish and game regulations was insufficient to inform those governments of any claim of dominion. Pp. 199-200.
(d) The fact that Alaska during its statehood has enforced fishing regulations in the same way as the United States did during the territorial period is likewise insufficient to give rise to historic title to Cook Inlet as inland waters. Pp. 200-201.
(e) Nor is Alaska's arrest of two Japanese fishing vessels in the Shelikof Strait in 1962 adequate to establish historic title. That incident was an exercise of sovereignty, if at all, only over the waters of Shelikof Strait, and even if considered as an assertion of authority over the waters of Cook Inlet, the incident was not sufficiently unambiguous to serve as the basis of historic title: Alaska, as against the Japanese Government, claimed the waters as inland waters but the United States neither supported nor disavowed the State's position. And regardless of how the incident is viewed, it is impossible to conclude that Alaska's exercise of sovereignty was acquiesced in by the Japanese Government, which immediately protested the incident and has never acceded to Alaska's position. Pp. 201-203.
497 F.2d 1155, reversed and remanded.
A. Raymond Randolph, Jr., Washington, D.C., for petitioner.
Thomas M. Phillips, Houston, Tex., and Charles K. Cranston, Anchorage, Alaska, for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
The issue here is whether the body of water known as Cook Inlet is a historic bay.1 The inlet extends northeastward well over 150 miles into the Alaskan land mass, with Kenai Peninsula to the southeast and the Chigmit Mountains to the northwest. The city of Anchorage is near the head of the inlet. The upper, or inner portion, of the inlet is not in dispute, for that part is conceded to be inland waters subject to Alaska's sovereignty.
2
If the inlet is a historic bay, the State of Alaska possesses sovereignty over the land beneath the waters of the lower, or seaward, portion of the inlet. If the inlet is not a historic bay, the United States, as against the State, has paramount rights to the subsurface lands in question.
3
* In early 1967 the State of Alaska offered 2,500 acres of submerged lands in lower Cook Inlet for a competitive oil and gas lease sale. The tract in question is more than three geographical miles from the shore of the inlet and is seaward more than three miles from a line across the inlet at Kalgin Island, where the headlands are about 24 miles apart, as contrasted with 47 miles at the natural entrance at Cape Douglas. In the view of the United States, the Kalgin Island line marks the limit of the portion of the inlet that qualifies as inland waters. The United States, contending that the lower inlet constitutes high seas, brought suit in the United States District Court for the District of Alaska to quiet title and for injunctive relief against the State.2 Alaska defended on the ground that the inlet, in its entirety, was within the accepted definition of a 'historic bay' and thus constituted inland waters properly subject to state sovereignty. Alaska prevailed in the District Court. 352 F.Supp. 815 (1972). The United States Court of Appeals for the Ninth Circuit affirmed with a per curiam opinion. 497 F.2d 1155 (1974). We granted certiorari because of the importance of the litigation and because the case presented a substantial question concerning the proof necessary to establish a body of water as a historic bay. 419 U.S. 1045, 95 S.Ct. 616, 42 L.Ed.2d 639 (1974).
II
4
State sovereignty over submerged lands rests on the Submerged Lands Act of 1953, 67 Stat. 29 (1953), 43 U.S.C. §§ 1301—1315.3 By this Act, Congress effectively confirmed to the States the ownership of submerged lands within three miles of their coastlines.4 See United States v. Maine, 420 U.S. 515, 95 S.Ct. 1155, 43 L.Ed.2d 363 (1975). 'Coast line' was defined in terms not only of land but, as well, of 'the seaward limit of inland waters.'5 The term 'inland waters' was left undefined.
5
In United States v. California, 381 U.S. 139, 161—167, 85 S.Ct. 1401, 1414—1416, 14 L.Ed.2d 296 (1965), the Court concluded that the definitions provided in the Convention on the Territorial Sea and the Contiguous Zone, (1964) 2 U.S.T. 1606, T.I.A.S. No. 5639, should be adopted for purposes of the Submerged Lands Act. See also United States v. Louisiana (Louisiana Boundary Case), 394 U.S. 11, 35, 89 S.Ct. 773, 787, 22 L.Ed.2d 44 (1969). Under Art. 7 of the Convention,6 and particularly 5 and 6 thereof, a bay with natural entrance points separated by more than 24 miles is considered as inland water only if it is a 'historic' bay. Since the distance between the natural entrance points to Cook Inlet is greatly in excess of 24 miles, the parties agree that Alaska must demonstrate that the inlet is a historic bay in order successfully to claim sovereignty over its power waters and the land beneath those waters.7
6
The term 'historic bay' is not defined in the Convention. The Court, however, has stated that in order to establish that a body of water is a historic bay, a coastal nation must have 'traditionally asserted and maintained dominion with the acquiescence of foreign nations.' United States v. California, 381 U.S., at 172, 85 S.Ct., at 1419. Furthermore, the Court appears to have accepted the general view that at least three factors are significant in the determination of historic bay status: (1) the claiming nation must have exercised authority over the area; (2) that exercise must have been continuous; and (3) foreign states must have acquiesced in the exercise of authority. Louisiana Boundary Case, 394 U.S., at 75 and 23—24, n. 27, 89 S.Ct., at 808, and 781.8 These were the general guidelines for the District Court and for the Court of Appeals in the present case.
III
7
The District Court divided its findings on the exercise of authority over lower Cook Inlet into three time periods, namely, that of Russian sovereignty, that of United States sovereignty, and that of Alaskan statehood. We discuss these in turn.
A.
8
The evidence that Russia exercised authority over lower Cook Inlet as inland waters is understandably sparse. The District Court, nonetheless, concluded that 'Russia exercised sovereignty over the disputed area of Cook Inlet.'9 The court based this conclusion on three findings. First, by the early 1800's there were four Russian settlements on the shores of Cook Inlet. Second, about 1786, an attempt by an English vessel to enter the inlet drew a volley of cannon fire from a Russian furtrader in the vicinity of Port Graham. Third, in 1821, Tsar Alexander I issued a ukase that purported to exclude all foreign vessels from the waters within 100 miles of the Alaska coast. S.Exec.Doc.No. 106, 50th Cong., 2d Sess., 204—205 (1889).
9
We feel that none of these facts, as found by the District Court, demonstrate the exercise of authority essential to the establishment of a historic bay. The presence of early Russian settlements on the shores of Cook Inlet certainly demonstrates the existence of a claim to the land, but it gives little indication of the authority Russia may have exerted over the vast expanse of waters that constitutes the inlet. The incident of the fur trader's firing on an English vessel near Port Graham might be some evidence of a claim of sovereignty over the waters involved, but the act appears to be that of a private citizen rather than of a government official.10 In the absence of some evidence that the trader was acting with governmental authority, the incident is entitled to little legal significance. Moreover, under the then-common Cannon Shot Rule, the firing of cannon from shore was wholly consistent with the present position of the United States that the inland waters of Alaska near Port Graham are to be measured by the three-mile limit.11 Finally, the imperial ukase of 1821 is clearly inadequate as a demonstration of Russian authority over the waters of Cook Inlet because shortly after it had been issued the ukase was unequivocally withdrawn in the face of vigorous protests from the United States and England.12
B
10
In reviewing the period of United States sovereignty over the Territory of Alaska,13 the District Court found that there had been five separate instances in which the Federal Government had exercised authority over all the waters of Cook Inlet. Pet. for Cert. 26a—37a.
11
1. Revised Statutes § 1956 (1878). Soon after Alaska was ceded to the United States, Congress prohibited the killing of sea otter and other fur-bearing animals 'within the limits of said territory, or in the waters thereof.' Act of July 27, 1868, 15 Stat. 241, codified as Rev.Stat. § 1956 (1878). By itself, the statutory language does not indicate whether the waters of lower Cook Inlet were encompassed within the limits of Alaska 'territory, or in the waters thereof.' The District Court, however, found that in 1892 and 1893 five American vessels were boarded more than three miles from shore in the lower inlet by United States revenue officials investigating possible violations of § 1956.14 From these boardings the District Court concluded that the statutory prohibition was enforced throughout Cook Inlet.
12
2. The Alien Fishing Act of 1906. This Act, 34 Stat. 263, prohibited noncitizens of the United States from fishing by commercial methods 'in any of the waters of Alaska under the jurisdiction of the United States.' Once again, the bare language of the statute fails to reveal the extent to which the prohibition applied to the waters of lower Cook Inlet. There is no evidence in the record and no findings by the District Court of any instance in which the Alien Fishing Act was enforced in the waters of Cook Inlet.15
13
3. Executive Order No. 3752. In 1922 President Harding issued an Executive Order creating the Southwestern Alaska Fisheries Reservation. Exec. Order No. 3752 (Nov. 3, 1922); 2 App. 676. The Order subjected all commercial fishing within the reservation to substantial regulation. See Regulations for the Administration of the South-western Alaska Fisheries Reservation, Department of Commerce Circular No. 251, pp. 8—9 (9th ed., Jan. 9, 1923); 2 App. 678—679. The reservation was described in the Order by a series of straight baselines to encompass a substantial expanse of waters, and the regulations promulgated pursuant to the Order by Secretary of Commerce Hoover referred to and embraced 'all the shores and waters of Cook Inlet.'
14
4. The White Act. In 1924 Congress passed 'An Act For the protection of the fisheries of Alaska, and for other purposes,' otherwise known as the White Act. C. 272, 43 Stat. 464. This authorized the Secretary of Commerce to 'set apart and reserve fishing areas in any of the waters of Alaska over which the United States has jurisdiction.' Ibid. The Act subjected commercial fishing within the reserved waters to such regulations as the Secretary might issue. From that time until Alaska statehood, the regulations of the Secretary defined the waters set aside pursuant to the Act to include all the waters of Cook Inlet. The District Court found that there had been several instances of enforcement of fishing regulations against American vessels more than three miles from shore in lower Cook Inlet.
15
5. The Gharrett-Scudder line. In 1957 representatives of Canada and of the United States met to discuss the possibility of prohibiting citizens of the two countries from fishing with nets for salmon in international waters in the North Pacific. The delegates generally agreed that the line used by the United States for enforcing fishing regulations under the White Act and related statutes would be used to delimit 'offshore waters' for purposes of the joint salmon fishing limitations. Since the Canadian delegates felt that the description of the closing lines connecting headlands in the Alaska fishery regulations were not definitive, they requested a map showing the American line with greater precision. Two United States Bureau of Fisheries employees, John T. Gharrett and Henry Clay Scudder, prepared a chart of the Alaska coast with a line reflecting the boundaries in the then-current United States fishery regulations. This so-called Gharrett-Scudder line enclosed all the waters of Cook Inlet. Charts reflecting the line were transmitted to the Canadian delegates. It is undisputed that the exact location of the Gharrett-Scudder line was determined primarily with reference to the needs of fishery management.16 The maps were forwarded by the Bureau of Fisheries to the State Department for transmittal to the Canadian delegates with express disclaimers that the line was intended to bear any relationship to the territorial waters of the United States in a legal sense.
16
Based on the facts summarized above, the District Court concluded that the United States had exercised authority over the waters of lower Cook Inlet continuously from the Treaty of Cession in 1867 until Alaska statehood. The District Court, of course, was clearly correct insofar as it found that the United States had exercised jurisdiction over lower Cook Inlet during the territorial period for the purpose of fish and wildlife management. It is far from clear, however, that the District Court was correct in concluding that the fact of enforcement of fish and wildlife regulations was legally sufficient to demonstrate the type of authority that must be exercised to establish title to a historic bay.
17
In determining whether the enforcement of fish and wildlife management regulations in Cook Inlet was an exercise of authority sufficient to establish title to that body of water as a historic bay, it is necessary to recall the threefold division of the sea recognized in international law. As the Court stated in the Louisiana Boundary Case:
18
'Under generally accepted principles of international law, the navigable sea is divided into three zones, distinguished by the nature of the control which the contiguous nation can exercise over them. Nearest to the nation's shores are its inland, or internal waters. These are subject to the complete sovereignty of the nation, as much as if they were a part of its land territory, and the coastal nation has the privilege even to exclude foreign vessels altogether. Beyond the inland waters, and measured from their seaward edge, is a belt known as the marginal, or territorial sea. Within it the coastal nation may exercise extensive control but cannot deny the right of innocent passage to foreign nations. Outside the territorial sea are the high seas, which are international waters not subject to the dominion of any single nation.' 394 U.S., at 22—23, 89 S.Ct., at 780 (footnotes omitted).
19
We also recognized in the Louisiana Boundary Case that the exercise of authority necessary to establish historic title must be commensurate in scope with the nature of the title claimed. There the State of Louisiana argued that the exercise of jurisdiction over certain coastal waters for purposes of regulating navigation had given rise to historic title over the waters in question as inland waters. Since the navigation rules in question had allowed the innocent passage of foreign vessels, a characteristic of territorial seas rather than of inland waters, the Court concluded that the exercise of authority was not sufficient in scope to establish historic title over the area as inland waters. Id., at 24—26, 89 S.Ct., at 781—783.
20
As has been noted, and as the parties agree, Alaska, in order to prevail in this case, must establish historic title to Cook Inlet as inland waters. For this showing, the exercise of sovereignty must have been, historically, an assertion of power to exclude all foreign vessels and navigation. The enforcement of fish and wildlife regulations, as found and relied upon by the District Court, was patently insufficient in scope to establish historic title to Cook Inlet as inland waters.
21
Only one of the fishing regulations relied upon by the court, the Alien Fishing Act, treated foreign vessels any differently than it did American vessels. That Act, however, did not purport to apply beyond the three-mile limit in Cook Inlet. It simply applied to 'the waters of Alaska under the jurisdiction of the United States.' 34 Stat. 263. The meaning of that general statutory phrase, as applied to Cook Inlet, can only be surmised, since there was not a single instance of enforcement to suggest that the Act was applicable to foreign vessels in the waters beyond the three-mile limit in lower Cook Inlet. The remainder of the fish and wildlife regulations relied upon by the District Court clearly were enforced throughout lower Cook Inlet for at least much of the territorial period, but these regulations were not commensurate in scope with the claim of exclusive dominion essential to historic title over inland waters. Each afforded foreign vessels the same rights as were enjoyed by American ships. To be sure, there were instances of enforcement in the lower inlet, but in each case the vessels involved were American. These incidents prove very little, for the United States can and does enforce fish and wildlife regulations against its own nationals, even on the high seas. See, e.g., 38 Stat. 692, 16 U.S.C. § 781 (taking commercial sponges in the Gulf of Mexico or the Straits of Florida); 80 Stat. 1091, 16 U.S.C. § 1151 (taking fur seals in the North Pacific Ocean); 86 Stat. 1032, as amended, 16 U.S.C. § 1372 (1970 ed., Supp. III) (taking marine mammals on the high seas). See also Skiriotes v. Florida, 313 U.S. 69, 61 S.Ct. 924, 85 L.Ed. 1193 (1941).
22
Our conclusion that the fact of enforcement of game and fish regulations in Cook Inlet is inadequate, as a matter of law, to establish historic title to the inlet as inland waters is not based on mere technicality. The assertion of national jurisdiction over coastal waters for purposes of fisheries management frequently differs in geographic extent from the boundaries claimed as inland or even territorial waters. See, e.g., Presidential Proclamation No. 2668, 59 Stat. 885 (1945). This limited circumscription of the traditional freedom of fishing on the high seas is based, in part, on a recognition of the special interest that a coastal state has in the preservation of the living resources in the high seas adjacent to its territorial sea. Convention on Fishing and Conservation of the Living Resources of the High Seas, Art. 6, 1, (1966) 1 U.S.T. 138, 141, T.I.A.S. 5969.
23
Even a casual examination of the facts relied upon by the District Court in this case reveals that the geographic scope of the fish and wildlife enforcement efforts was determined primarily, if not exclusively, by the needs of effective management of the fish and game population involved. Thus, for example, the Gharrett-Scudder line, which the District Court considered 'a classic demonstration of the assertion by the United States government of its claim to sovereignty over the whole of Cook Inlet,' Pet. for Cert. 37a, was drawn almost solely with reference to the needs of the coastal salmon net fisheries and was never intended to depict the boundaries of the territorial waters of the United States. Indeed, the very method of drawing the fishery boundaries by use of straight baselines conflicted with this country's traditional policy of measuring its territorial waters by the sinuosity of the coast. See United States v. California, 381 U.S., at 167—169, 85 S.Ct., at 1416—1417.
24
Even if we could agree that the boundaries selected for purposes of enforcing fish and wildlife regulations coincided with an intended assertion of territorial sovereignty over Cook Inlet as inland waters, we still would disagree with the District Court's conclusion that historic title was established in the territorial period. The court found that the third essential element of historic title, acquiescence by foreign nations, was satisfied by the failure of any foreign nation to protest. Scholarly comment is divided over whether the mere absence of opposition suffices to establish title. See Jurisdical Regime of Historic Waters, Including Historic Bays, 2 Yearbook of the International Law Commission, 1962, pp. 1, 16—19 (U.N.Doc. A/CN.4/143). The Court previously has noted this division but has taken no position in the debate. See Louisiana Boundary Case, 394 U.S., at 23—24, n. 27, 89 S.Ct., at 781. In this case, we feel that something more than the mere failure to object must be shown. The failure of other countries to protest is meaningless unless it is shown that the governments of those countries knew or reasonably should have known of the authority being asserted. Many assertions of authority are such clear expressions of exclusive sovereignty that they cannot be mistaken by other governments. Other assertions of authority, however, may not be so clear. One scholar notes: 'Thus, the placing of lights or beacons may sometimes appear to be an act of sovereignty, while in other circumstances it may have no such significance.' Juridical Regime of Historic Waters, supra, at 14. We believe that the routine enforcement of domestic game and fish regulations in Cook Inlet in the territorial period failed to inform foreign governments of any claim of dominion. In the absence of any awareness on the part of foreign governments of a claimed territorial sovereignty over lower Cook Inlet, the failure of those governments to protest is inadequate proof of the acquiescence essential to historic title.
C
25
The District Court stressed two facts as evidence that Alaska had exercised sovereignty over all the waters of Cook Inlet in the recent period of Alaska statehood. First, the court found that since statehood Alaska had enforced fishing regulations in basically the same fashion as had the United States during the territorial period. Second, the court found that in 1962 Alaska had arrested two vessels of a Japanese fishing fleet in the Shelikof Strait. Since we have concluded that the general enforcement of fishing regulations by the United States in the territorial period was insufficient to demonstrate sovereignty over Cook Inlet as inland waters, we also must conclude that Alaska's following the same basic pattern of enforcement is insufficient to give rise to the historic title now claimed. The Shelikof Strait incident, however, deserves scrutiny because the seizure of a foreign vessel more than three miles from shore manifests an assertion of sovereignty to exclude foreign vessels altogether.
26
The facts of the incident, for the most part, are undisputed. In early 1962 a private commercial fishing enterprise in Japan, Eastern Pacific Fisheries Company, publicly announced its intention to send a fishing fleet into the waters of Cook Inlet and the Shelikof Strait. Alaska officials learned of the plan through newspaper accounts and requested action by the Federal Government to prevent entry of the fleet into the inlet and the strait. The Federal Government, although thus forewarned of the intrusion, significantly took no action. In March 1962, the mothership Banshu Maru 31 and five other vessels arrived at the Kodiak fishing grounds. On April 5, the six vessels sailed north of the Barren Islands into the lower portion of Cook Inlet. The vessels left the inlet the next day without incident and sailed southwest into the Shelikof Strait. The vessels fished in the strait for approximately 10 days undisturbed. Then, on April 15, Alaska law enforcement officials boarded two of the vessels in the Shelikof Strait. At the time at least one of the ships was more than three miles from shore. The officials arrested three of the fleet's captains and charged them with violating the state fishing regulations applicable to the strait. On April 19, Eastern Pacific Fisheries Company and the State of Alaska entered into an agreement whereby the State released the company's employees and ships in return for a promise from the company that it would not fish in the inlet or in the strait pending judicial resolution of the State's jurisdiction to enforce fishing regulations therein. 2 App. 1186—1188. The Japanese Government did not participate in, or approve of, the agreement between the company and Alaska. Instead, shortly after the agreement was executed, Japan formally protested to the United States Government. Our Government declined to take an official position on the matter pending completion of the judicial proceedings. Ultimately, the judicial proceedings were dismissed without reaching any conclusion on the extent of Alaskan jurisdiction over the strait. The Federal Government took no formal position on the issue after the dismissal of the proceedings.
27
To the extent that the Shelikof Strait incident reveals a determination on the part of Alaska to exclude all foreign vessels, it must be viewed, to be sure, as an exercise of authority over the waters in question as inland waters. Nevertheless, for several reasons, we find the incident inadequate to establish historic title to Cook Inlet as inland waters. First, the incident was an exercise of sovereignty, if at all, only over the waters of Shelikof Strait. The vessels were boarded in the strait, some 75 miles southwest from the nearest portion of the inlet. Although Alaska officials knew of the fleet's earlier entry into Cook Inlet, no action was taken to force the vessels to leave the inlet, and no charges were filed for the intrusion into those waters. Second, even if the events in Shelikof Strait could constitute an assertion of authority over the waters of Cook Inlet as well as those of the strait, we are not satisfied that the exercise of authority was sufficiently unambiguous to serve as the basis of historic title to inland waters. The adequacy of a claim to historic title, even in a dispute between a State and the United States, is measured primarily as an international, rather than a purely domestic, claim. See United States v. California, 381 U.S., at 168, 85 S.Ct., at 1417; Louisiana Boundary Case, 394 U.S., at 77, 89 S.Ct., at 809. Viewed from the standpoint of the Japanese Government, the import of the incident in the strait is far from clear. Alaska clearly claimed the waters in question as inland waters, but the United States neither supported nor disclaimed the State's position. Given the ambiguity of the Federal Government's position, we cannot agree that the assertion of sovereignty possessed the clarity essential to a claim of historic title over inland waters. Finally, regardless of how one views the Shelikof Strait incident, it is impossible to conclude that the exercise of sovereignty was acquiesced in by the Japanese Government. Japan immediately protested the incident and has never acceded to the position taken by Alaska. Admittedly, the Eastern Pacific Fisheries Company formally and tentatively agreed to respect the jurisdiction claimed by Alaska but, as we have already noted, the acts of a private citizen cannot be considered representative of a government's position in the absence of some official license or other governmental authority.
28
In sum, we hold that the District Court's conclusion that Cook Inlet is a historic bay was based on an erroneous assessment of the legal significance of the facts it had found.17 The judgment of the Court of Appeals, accordingly, is reversed and the case is remanded for further proceedings consistent with this opinion.
29
It is so ordered.
30
Reversed and remanded.
31
Mr. Justice DOUGLAS took no part in the consideration or decision of this case.
32
Mr. Justice STEWART and Mr. Justice REHNQUIST would affirm the judgment, believing that the findings of fact made by the District Court and adopted by the Court of Appeals were not clearly erroneous, and that both of those courts applied the correct legal criteria in ruling that Cook Inlet is a historic bay.
1
Cook Inlet is larger than Great Salt Lake and Lake Ontario. It is about the same size as Lake Erie. It dwarfs Chesapeake Bay, Delaware Bay, and Long Island Sound, all of which the United States has claimed as historic bays.
2
It would appear that the case qualifies, under Art. III, § 2, cl. 2, of the Constitution, for our original jurisdiction. United States v. West Virginia, 295 U.S. 463, 470, 55 S.Ct. 789, 791, 79 L.Ed. 1546 (1935). We are not enlightened as to why the United States chose not to bring an original action in this Court.
3
Section 6(m) of the Alaska Statehood Act of July 7, 1958, provides that the Submerged Lands Act 'shall be applicable to the State of Alaska and the said State shall have the same rights as do existing States thereunder.' 72 Stat. 343, note following 48 U.S.C. c. 2. Section 2 of the Act provides: 'The State of Alaska shall consist of all the territory, together with the territorial waters appurtenant thereto, now included in the Territory of Alaska.' 72 Stat. 339, note following 48 U.S.C. c. 2.
4
Section 3(a) of the Submerged Lands Act, 43 U.S.C. § 1311(a), provides:
'It is determined sand declared to be in the public interest that (1) title to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands and waters, and (2) the right and power to manage, administer, lease, develop, and use the said lands and natural resources all in accordance with applicable State law be, and they are, subject to the provisions hereof, recognized, confirmed, established, and vested in and assigned to the respective States . . ..'
Section 2(b), 43 U.S.C. § 1301(b), defines a State's boundaries:
'The term 'boundaries' includes the seaward boundaries of a State . . . as they existed at the time such State became a member of the Union . . . but in no event shall the term 'boundaries' or the term 'lands beneath navigable waters' be interpreted as extending from the coast line more than three geographical miles into the Atlantic Ocean or the Pacific Ocean . . ..'
5
Section 2(c) of the Act, 43 U.S.C. § 1301(c), reads:
'The term 'coast line' means the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters.'
6
The full text of Art. 7 is as follows:
'1. This article relates only to bays the coasts of which belong to a single State.
'2. For the purposes of these articles, a bay is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain landlocked waters and constitute more than a mere curvature of the coast. An indentation shall not, however, be regarded as a bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation.
'3. For the purpose of measurement, the area of an indentation is that lying between the low-water mark around the shore of the indentation and a line joining the low-water marks of its natural entrance points. Where, because of the presence of islands, an indentation has more than one mouth, the semi-circle shall be drawn on a line as long as the sum total of the lengths of the lines across the different mouths. Islands within an indentation shall be included as if they were part of the water areas of the indentation.
'4. If the distance between the low-water marks of the natural entrance points of a bay does not exceed twenty-four miles, a closing line may be drawn between these two low-water marks, and the waters enclosed thereby shall be considered as internal waters.
'5. Where the distance between the low-water marks of the natural entrance points of a bay exceeds twenty-four miles, a straight baseline of twenty-four miles shall be drawn within the bay in such a manner as to enclose the maximum area of water that is possible with a line of that length.
'6. The foregoing provisions shall not apply to so-called 'historic' bays, or in any case where the straight baseline system provided for in article 4 is applied.'
7
Brief for Respondent 1; Brief for United States 2, 32.
8
Some disagreement exists as to whether there must be formal acquiescence on the part of foreign states, or whether the mere absence of opposition is sufficient. United States v. Louisiana (Louisiana Boundary Case) 394 U.S. 11, 23—24, n. 27, 89 S.Ct. 773, 781, 22 L.Ed.2d 44 (1969).
9
Pet. for Cert. 25a. In addition to its reported opinion, 352 F.Supp. 815 (Alaska 1972), the District Court made detailed written findings and conclusions that are not published. These are reproduced in the Petition for Certiorari 21a—55a. The reported opinion of the District Court did not discuss the exercise of sovereignty prior to 1906, but the unreported findings indicate that the court relied on assertions of authority dating from Russian territorial times as well as the early American period.
10
As with many colonial enterprises of the day, the governance of Alaska in the Russian period, for the most part, was exercised through semiprivate corporations. See generally H. Chevigny, Russian America: The Great Alaskan Venture, 1741—1867 (1965). The most important of these corporations, the Russian-American Company, was chartered in 1799, several years after the incident near Port Graham. Id., at 75. The record and findings are silent on the relationship between the fur trader and the interests asserted. Thus, we have no occasion to consider whether the acts of a semi-private colonial corporation are to be given the same weight as the direct acts of a national government for purposes of establishing a claim to historic waters.
11
The Cannon Shot Rule was to the effect that a coastal state possessed sovereignty over the waters within range of cannon shot from its shore. Many modern scholars believe that the present 3-mile limit is derived from the traditional range of 18th century cannon. Kent, The Historical Origins of the Three-Mile Limit, 48 Am.J.Int'l L. 537 (1954); Walker, Territorial Waters: The Cannon Shot Rule, 22 Brit.Y.B.Int'l L. 210 (1945). The actual range of the cannon fired by the fur trader is, of course, now irrelevant. The significant fact is that the incident can be viewed as an assertion of jurisdiction only over those waters in Cook Inlet that were within range of common shot from shore.
12
For a discussion of the events surrounding the issuance and withdrawal of the ukase, see Chevigny, supra, n. 10, at 174 188.
13
By the Treaty of Cession in 1867 Russia ceded to the United States 'all the territory and dominion now possessed (by Russia) on the continent of America and in the adjacent islands.' 15 Stat. 539. The cession was effectively a quitclaim. It is undisputed that the United States thereby acquired whatever dominion Russia had possessed immediately prior to cession.
14
In June 1892 a United States revenue cutter, the Mohican, entered Cook Inlet to enforce Rev.Stat. § 1956. The Mohican arrested three American vessels in the lower inlet on charges of violating the statute. The prosecutions ultimately were dismissed on the ground that the vessels merely had been purchasing pelts from natives who were authorized by § 1956 to hunt sea otter for commercial sale. See The Kodiak, 53 F. 126 (Alaska 1892). In 1893 two other American vessels were stopped in the lower inlet by a revenue cutter. Since these vessels, like the Kodiak, were carrying only native hunting parties, they were allowed to proceed without further incident. The District Court made no findings about the enforcement of § 1956 after June 1893.
15
The District Court acknowledged that no foreign vessels had ever been arrested in Cook Inlet on charges of violating the Alien Fishing Act. The court sought to explain this fact on the ground that foreign vessels entered the inlet infrequently. The court relied on statements of certain former wildlife officials that 'they would have taken affirmative action' against foreign vessels if they had seen any in the inlet. 352 F.Supp., at 819 820. In the absence of any actual enforcement or official announcement of intentions to enforce the Alien Fishing Act in lower Cook Inlet, the private intentions of witnesses are largely irrelevant.
16
The testimony of John T. Gharrett, who was called as a witness by the State of Alaska, is indicative of the predominance of fish and wildlife concerns in the preparation of the Gharrett-Scudder line:
On direct examination:
'Q What was your role in the preparation of that line?
'A My role was to decide where the line goes.
'Q Did you have assistance from anyone?
'A Mr. Clay Scutter (sic).
'Q Has the line since been given any kind of name?
'A Oh, I don't know since. At the time we drew it, rather than to say 'a line beyond which we proposed,' et cetera, et cetera, we called it the Gharrett-Scutter (sic) line for short.
'Q In your preparation of the line what criteria did you use for placing the line on the chart?
'A We used two basis criteria: 1) we wanted to encompass within the line existing salmon net fisheries along the Coast of Alaska, and 2) we wanted in some areas to allow for a modest, perhaps, expansion of existing fisheries, salmon net fisheries.' 1 App. 292—293.
On cross-examination by counsel for the United States:
'Q Did the lines you drew enclose areas in which you knew foreigners had previously fished?
'A Yes.
'Q By drawing these lines did you intend to stop those fisheries?
'A No.
'Q Was the line you drew with Mr. Scutter (sic) intended to represent the outer limit of the territorial sea?
'A No.
'Q Was the line you drew with Mr. Scutter (sic) intended to represent the base line from which the territorial sea was to be measured?
'A No.
'Q Were the lines you drew with Mr. Scutter (sic) used for law enforcement purposes while you were in Alaska?
'A No.' 1 App. 294.
17
The United States has argued that historic title to Cook Inlet is defeated by several United States disclaimers of sovereignty over the waters of lower Cook Inlet. The Court previously has discussed the importance of governmental disclaimers in weighing claims to historic title in actions of this kind. Louisiana Boundary Case, 394 U.S., at 76—78, 89 S.Ct., at 808—809; United States v. California, 381 U.S. 139, 175, 85 S.Ct. 1401, 1421, 14 L.Ed.2d 296 (1965). The District Court rejected the disclaimers on the grounds that they were ill-advised and, perhaps, self-serving. 352 F.Supp., at 818—819. Inasmuch as we have concluded that none of the facts relied upon by the District Court suffice to establish historic title, we have no occasion to consider whether the disclaimers of the United States could have defeated otherwise sufficient facts.
| 910
|
422 U.S. 171
95 S.Ct. 2133
45 L.Ed.2d 99
UNITED STATES, Petitioner,v.William G. HALE.
No. 74—364.
Argued April 14, 1975.
Decided June 23, 1975.
Syllabus
Following respondent's arrest for robbery he was taken to the police station, where, advised of his right to remain silent, he made no response to an officer's inquiry as to the source of money found on his person. Respondent testified at his trial and, in an effort to impeach his alibi, the prosecutor caused respondent to admit on cross-examination that he had not offered the exculpatory information to the police at the time of his arrest. The trial court instructed the jury to disregard the colloquy but refused to declare a mistrial. Respondent was convicted. The Court of Appeals reversed, holding that inquiry into respondent's prior silence impermissibly prejudiced his defense as well as infringed upon his constitutional right to remain silent under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The Government, relying on Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 contends that since respondent chose to testify in his own behalf, it was permissible to impeach his credibility by proving that he had chosen to remain silent at the time of his arrest. Held: Respondent's silence during police interrogation lacked significant probative value and under these circumstances any reference to his silence carried with it an intolerably prejudicial impact. This Court, exercising its supervisory authority over the lower federal courts, therefore concludes that respondent is entitled to a new trial. Pp. 176-181.
(a) Under the circumstances of this case the failure of respondent, who had just been given the Miranda warnings, to respond during custodial interrogation to inquiry about the money can as easily connote reliance on the right to remain silent as to support an inference that his trial testimony was a later fabrication. Raffel v. United States, supra, distinguished. Pp. 176-177.
(b) Respondent's prior silence was not so clearly inconsistent with his trial testimony as to warrant admission into evidence of that silence as evidence of a prior inconsistent 'statement,' as is manifested by the facts that (1) respondent had repeatedly asserted innocence during the proceedings; (2) he was being questioned in secretive surroundings with no one but the police also present; and (3) as the target of eyewitness identification, he was clearly a 'potential defendant'. Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931, followed. Pp. 177-180.
(c) Admission of evidence of silence at the time of arrest has a significant potential for prejudice in that the jury may assign much more weight to the defendant's previous silence than is warranted. P. 180.
162 U.S.App.D.C., 305, 498 F.2d 1038, affirmed.
Andrew L. Frey, Washington, D.C., for petitioner.
Larry J. Ritchie, Washington, D.C., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Respondent was tried and convicted of robbery in the District Court for the District of Columbia.1 During cross-examination at trial the prosecutor asked respondent why he had not given the police his alibi when he was questioned shortly after his arrest. The trial court instructed the jury to disregard the colloquy but refused to declare a mistrial. The Court of Appeals for the District of Columbia Circuit reversed, holding that inquiry into respondent's prior silence impermissibly prejudiced his defense and infringed upon his right to remain silent under Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602, 1624, 16 L.Ed.2d 694 (1966). We granted certiorari, 419 U.S. 1045, 95 S.Ct. 616, 42 L.Ed.2d 639 because of a conflict among the Courts of Appeals over whether a defendant can be cross-examined about his silence during police interrogation,2 and because of the importance of this question to the administration of justice.
2
We find that the probative value of respondent's pretrial silence in this case was outweighed by the prejudicial impact of admitting it into evidence. Affirming the judgment on this ground, we have no occasion to reach the broader constitutional question that supplied an alternative basis for the decision below.
3
* On June 1, 1971, Lonnie Arrington reported to police that he had been attacked and robbed by a group of five men. Initially, he claimed that $65 had been stolen, but he later changed the amount to $96 after consulting with his wife. As the police were preparing to accompany Arrington through the neighborhood in search of the attackers, he observed two men and identified one of them as one of his assailants. When the police gave chase, the two men fled but one was immediately captured. The victim, identified respondent Hale as one of the robbers.
4
Respondent was then arrested, taken to the police station, and advised of his right to remain silent. He was searched and found to be in possession of $158 in cash. An officer then asked: 'Where did you get the money?' Hale made no response.
5
At trial respondent took the witness stand in his own defense. He acknowledged having met Arrington in a shoe store on the day in question. Hale stated that, after the meeting, he was approached by three men who inquired whether Arrington had any money, to which Hale replied he 'didn't know.' From there respondent claimed he went to a narcotics treatment center, where he remained until after the time of the robbery. According to his testimony he left the center with a friend who subsequently purchased narcotics. Shortly after the transaction they were approached by the police. Hale testified that he fled because he feared being found in the presence of a person carrying narcotics. He also insisted that his estranged wife had received her welfare check on that day and had given him approximately $150 to purchase some money orders for her as he had done on several prior occasions.
6
In an effort to impeach Hale's explanation of his possession of the money, the prosecutor caused Hale to admit on cross-examination that he had not offered the exculpatory information to the police at the time of his arrest:
7
'Q. Did you in any way indicate (to the police) where that money came from?
8
'A. No, I didn't.
9
'Q. Why not?
10
'A. I didn't feel that it was necessary at the time.' The Government takes the position that since the respondent chose to testify in his own behalf, it was permissible to impeach his credibility by proving that he had chosen to remain silent at the time of his arrest.3 For this proposition the Government relies heavily on this Court's decision in Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926).4 There, a second trial was required when the first jury failed to reach a verdict. In reliance on his privilege against compulsory self-incrimination, the accused declined to testify at his first trial. At the second trial, however, he took the stand in an effort to refute the testimony of a Government witness. Over objection, Raffel admitted that he had remained silent in the face of the same testimony at the earlier proceeding. Under these circumstances the Court concluded that Raffel's silence at the first trial was inconsistent with his testimony at the second, and that his silence could be used to impeach the credibility of his later representations. The Government argues that silence during police interrogation is similarly probative and should therefore be admissible for impeachment purposes.
11
We cannot agree. The assumption of inconsistency underlying Raffel is absent here. Rather, we find the circumstances of this case closely parallel to those in Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957), and we conclude that the principles of that decision compel affirmance here.
II
12
A basic rule of evidence provides that prior inconsistent statements may be used to impeach the credibility of a witness. As a preliminary matter, however, the court must be persuaded that the statements are indeed inconsistent. 3A J. Wigmore, Evidence § 1040 (J. Chadbourn rev. 1970) (hereafter Wigmore). If the Government fails to establish a threshold inconsistency between silence at the police station and later exculpatory testimony at trial, proof of silence lacks any significant probative value and must therefore be excluded.
13
In most circumstances silence is so ambiguous that it is of little probative force. For example, silence is commonly thought to lack probative value on the question of whether a person has expressed tacit agreement or disagreement with contemporaneous statements of others. See 4 Wigmore § 1071. Silence gains more probative weight where it persists in the face of accusation, since it is assumed in such circumstances that the accused would be more likely than not to dispute an untrue accusation. Failure to contest an assertion, however, is considered evidence of acquiescence only if it would have been natural under the circumstances to object to the assertion in question. 3A Wigmore § 1042. The Raffel Court found that the circumstances of the earlier confrontation naturally called for a reply. Accordingly, the Court held that evidence of the prior silence of the accused was admissible. But the situation of an arrestee is very different, for he is under no duty to speak and, as in this case, has ordinarily been advised by government authorities only moments earlier that he has a right to remain silent, and that anything he does say can and will be used against him in court.
14
At the time of arrest and during custodial interrogation, innocent and guilty alike—perhaps particularly the innocent—may find the situation so intimidating that they may choose to stand mute. A variety of reasons may influence that decision. In these often emotional and confusing circumstances, a suspect may not have heard or fully understood the question, or may have felt there was no need to reply. See Traynor, The Devils of Due Process in Criminal Detection, Detention, and Trial, 33 U.Chi.L.Rev. 657, 676 (1966). He may have maintained silence out of fear or unwillingness to incriminate another. Or the arrestee may simply react with silence in response to the hostile and perhaps unfamiliar atmosphere surrounding his detention. In sum, the inherent pressures of in-custody interrogation exceed those of questioning before a grand jury and compound the difficulty of identifying the reason for silence.5
15
Respondent, for example, had just been given the Miranda warnings and was particularly aware of his right to remain silent and the fact that anything he said could be used against him. Under these circumstances, his failure to offer an explanation during the custodial interrogation can as easily be taken to indicate reliance on the right to remain silent as to support an inference that the explanatory testimony was a later fabrication. There is simply nothing to indicate which interpretation is more probably correct.
III
16
Our analysis of the probative value of silence before police interrogators is similar to that employed in Grunewald v. United States, supra. In that case a witness before a grand jury investigating corruption in the Internal Revenue Service declined to answer a series of questions on the ground that the answers might tend to incriminate him. The witness, Max Halperin, was later indicted for conspiracy to defraud the United States. At trial he took the stand to testify in his own defense, and there responded to the same questions in a manner consistent with innocence. On cross-examination the prosecutor elicited, for purposes of impeachment, testimony concerning the defendant's earlier invocation of the Fifth Amendment on the same subject matter. The Court framed the issue of Halperin's prior silence as an evidentiary problem and concluded that the circumstances surrounding Halperin's appearance before the grand jury justified his reliance on the Fifth Amendment, imposed no mandate to speak, and presented valid reasons, other than culpability, for deferring comment. The Court ruled that Halperin's prior silence was not so clearly inconsistent with his later testimony as to justify admission of evidence of such silence as evidence of a prior inconsistent 'statement.'
17
In Grunewald the Court identified three factors relevant to determining whether silence was inconsistent with later exculpatory testimony: (1) repeated assertions of innocence before the grand jury; (2) the secretive nature of the tribunal in which the initial questioning occurred;6 and (3) the focus on petitioner as potential defendant at the time of the arrest, making it 'natural for him to fear that he was being asked questions for the very purpose of providing evidence against himself.' 353 U.S., at 423, 77 S.Ct., at 983.
18
Applying these factors here, it appears that this case is an even stronger one for exclusion of the evidence than Grunewald. First, the record reveals respondent's repeated assertions of innocence during the proceedings; there is nothing in the record of respondent's testimony inconsistent with his claim of innocence. Second, the forum in which the questioning of Hale took place was secretive and in addition lacked such minimal safeguards as the presence of public arbiters and a reporter, which were present in Grunewald. Even more than Halperin, respondent may well have been intimidated by the setting, or at the very least, he may have preferred to make any statements in more hospitable surroundings, in the presence of an attorney, or in open court. Third, Hale's status as a 'potential defendant' was even clearer than Halperin's since Hale had been the subject of eyewitness identification and had been arrested on suspicion of having committed the offense.
19
The Government nonetheless contends that respondent's silence at the time of his arrest is probative of the falsity of his explanation later proffered at trial because the incentive of immediate release and the opportunity for independent corroboration would have prompted an innocent suspect to explain away the incriminating circumstances. On the facts of this case, we cannot agree. Petitioner here had no reason to think that any explanation he might make would hasten his release. On the contrary, he had substantial indication that nothing he said would influence the police decision to retain him in custody. At the time of his arrest petitioner knew that the case against him was built on seemingly strong evidence—on an identification by the complainant, his flight at that time, and his possession of $158. In these circumstances he could not have expected the police to release him merely on the strength of his explanation. Hale's prior contacts with the police and his participation in a narcotics rehabilitation program further diminished the likelihood of his release, irrespective of what he might say. In light of the many alternative explanations for his pretrial silence, we do not think it sufficiently probative of an inconsistency with his in-court testimony to warrant admission of evidence thereof.
IV
20
Not only is evidence of silence at the time of arrest generally not very probative of a defendant's credibility, but it also has a significant potential for prejudice. The danger is that the jury is likely to assign much more weight to the defendant's previous silence than is warranted. And permitting the defendant to explain the reasons for his silence is unlikely to overcome the strong negative inference that the jury is likely to draw from the fact that the defendant remained silent at the time of his arrest.7
21
As we have stated before: 'When the risk of confusion is so great as to upset the balance of advantage, the evidence goes out.' Shepard v. United States, 290 U.S. 96, 104, 54 S.Ct. 22, 26, 78 L.Ed. 196 (1933). We now conclude that the respondent's silence during police interrogation lacked significant probative value and that any reference to his silence under such circumstances carried with it an intolerably prejudicial impact.
22
Accordingly, we hold that under the circumstances of this case it was prejudicial error for the trial court to permit cross-examination of respondent concerning his silence during police interrogation, and we conclude, in the exercise of our supervisory authority over the lower federal courts, that Hale is entitled to a new trial.
23
The judgment below is affirmed.
24
Judgment affirmed.
25
Mr. Justice BLACKMUN concurs in the result.
26
Mr. Chief Justice BURGER, concurring in the judgment.
27
I cannot escape the conclusion that this case is something of a tempest in a saucer, and the Court rightly avoids placing the result on constitutional grounds. A dubious aspect of the Court's opinion is to renew the dictum of Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957), see ante, at 178 and n. 6. There the Court casually elevated a fallacy into a general proposition in terms that the innocent 'are more likely to (remain silent) in secret proceedings . . . than in open court proceedings . . ..' To begin with, there is not a scintilla of empirical data to support the first generalization nor is it something generally accepted as validated by ordinary human experience. It is no more accurate than to say, for example, that the innocent rather than the guilty, are the first to protest their innocence. There is simply no basis for declaring a generalized probability one way or the other. Second, the Grunewald suggestion that people are more likely to speak out 'in open court proceedings . . .' has no basis in human experience. A confident, assured person will likely speak out in either place; a timid, insecure person may be more overwhelmed by the formality of 'open court proceedings' than by a police station. Moreover, if an accused is in 'open court,' there is a constitutional option to remain totally silent, but if an accused takes the stand all admissible questions must be answered. A nonparty witness has less option than the accused and must take the stand if called. We ought to be wary of casual generalizations that read well but 'do not wash.'
28
Mr. Justice DOUGLAS, concurring in the judgment.
29
I agree with the Court that the judgment below should be affirmed, but 'I do not, like the Court, rest my conclusion on the special circumstances of this case. I can think of no special circumstances that would justify use of a constitutional privilege to discredit or convict a person who asserts it.' Grunewald v. United States, 353 U.S. 391, 425, 77 S.Ct. 963, 984, 1 L.Ed.2d 931 (1957) (concurring opinion). My view of this case is therefore controlled by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). I do not accept the idea that Miranda loses its force in the context of impeaching the testimony of a witness. See Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). In my opinion Miranda should be given full effect.
30
I also believe, as does my Brother WHITE, that given the existence of Miranda due process is violated when the prosecution calls attention to the silence of the accused at the time of arrest.
31
Mr. Justice WHITE, concurring in the judgment.
32
I am no more enthusiastic about Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), now that I was when that decision was announced. But when a person under arrest is informed, as Miranda requires, that he may remain silent, that anything he says may be used against him, and that he may have an attorney if he wishes, it seems to me that it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony. Cf. Johnson v. United States, 318 U.S. 189, 196—199, 63 S.Ct. 549, 553—554, 87 L.Ed. 704 (1943). Surely Hale was not informed here that his silence, as well as his words, could be used against him at trial. Indeed, anyone would reasonably conclude from Miranda warnings that this would not be the case. I would affirm on this ground.
1
Respondent was tried in Federal District Court prior to the effective date for the transfer of jurisdiction over D.C.Code offenses under the District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub.L. 91—358, 84 Stat. 473.
2
Compare United States v. Semensohn, 421 F.2d 1206, 1209 (CA2 1970); United States v. Brinson, 411 F.2d 1057, 1060 (CA6 1969); Fowle v. United States, 410 F.2d 48 (CA9 1969); and Johnson v. Patterson, 475 F.2d 1066 (CA10), cert. denied, 414 U.S. 878, 94 S.Ct. 64, 38 L.Ed.2d 124 (1973), with United States ex rel. Burt v. New Jersey, 475 F.2d 234 (CA3), cert. denied, 414 U.S. 938, 94 S.Ct. 243, 38 L.Ed.2d 165 (1973); and United States v. Ramirez, 441 F.2d 950, 954 (CA5), cert. denied, 404 U.S. 869, 92 S.Ct. 91, 30 L.Ed.2d 113 (1971).
3
Immediately following the exchange, the court cautioned the jury that the questioning was improper and that they were to disregard it. The Court of Appeals held that the error was not cured by this instruction, and the Government does not contend in this Court that the error was harmless.
4
Since we do not reach the constitutional claim raised today, we need not decide whether the Raffel decision has survived Johnson v. United States, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704 (1943), and Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). See Grunewald v. United States, 353 U.S. 391, 425—426, 77 S.Ct. 963, 984—985, 1 L.Ed.2d 931 (1957) (Black, J., concurring).
5
See Kamisar, Kauper's 'Judicial Examination of the Accused' Forty Years Later—Some Comments on a Remarkable Article, 73 Mich.L.Rev. 15, 34 n. 70 (1974).
6
'Innocent men are more likely to (remain silent) in secret proceedings, where they testify without advice of counsel and without opportunity for cross-examination, than in open court proceedings, where cross-examination and judicially supervised procedure provide safeguards for the establishing of the whole, as against the possibility of merely partial, truth.' Grunewald v. United States, 353 U.S., at 422—423, 77 S.Ct. at 983.
7
We recognize that the question whether evidence is sufficiently inconsistent to be sent to the jury on the issue of credibility is ordinarily in the discretion of the trial court. 'But where such evidentiary matter has grave constitutional overtones . . . we feel justified in exercising this Court's supervisory control.' Grunewald v. United States, 353 U.S., at 423 424, 77 S.Ct. at 983.
| 01
|
422 U.S. 225
95 S.Ct. 2160
45 L.Ed.2d 141
UNITED STATES, Petitioner,v.Robert Lee NOBLES.
No. 74—634.
Argued April 23, 1975.
Decided June 23, 1975.
Syllabus
During respondent's federal criminal trial, which resulted in a conviction, defense counsel sought to impeach the credibility of key prosecution witnesses by testimony of a defense investigator regarding statements previously obtained from the witnesses by the investigator. When the investigator was called as a witness, the District Court stated that a copy of the investigator's report, inspected and edited by the court in camera so as to excise references to matters not relevant to such statements, would have to be submitted to the prosecution for inspection at the completion of the investigator's testimony. When defense counsel said he did not intend to produce the report, the court ruled that the investigator could not testify about his interviews with the witnesses. The Court of Appeals, considering such ruling to be reversible error, held that both the Fifth Amendment and Fed.Rule Crim.Proc. 16 prohibited the disclosure condition imposed. Held:
1. In a proper case, the prosecution, as well as the defense, can invoke the federal judiciary's inherent power to require production of previously recorded witness statements that facilitate full disclosure of all the relevant facts. Here the investigator's report might provide critical insight into the issues of credibility that the investigator's testimony would raise and hence was highly relevant to such issues. Pp. 230-232.
2. The Fifth Amendment privilege against compulsory self-incrimination, being personal to the defendant, does not extend to the testimony or statements of third parties called as witnesses at trial. In this instance the fact that the statements of third parties were elicited by a defense investigator on respondent's behalf does not convert them into respondent's personal communications, and requiring their production would in no sense compel respondent to be a witness against himself or extort communications from him. Pp. 233-234.
3. Rule 16, whose language and history both indicate that it addresses only pretrial discovery, imposes no constraint on the District Court's power to condition the impeachment testimony of respondent's witness on the production of the relevant portions of his report. The fact that the Rule incorporates the Jencks Act limitation shows no contrary intent and does not convert the Rule into a general limitation on the trial court's broad discretion as to evidentiary questions at trial. Pp. 234-236.
4. The qualified privilege derived from the attorney work-product doctrine is not available to prevent disclosure of the investigative report, since respondent, by electing to present the investigator as a witness, waived the privilege with respect to matters covered in his testimony. Pp. 236-240.
5. It was within the District Court's discretion to assure that the jury would hear the investigator's full testimony rather than a truncated portion favorable to respondent, and the court's ruling, contrary to respondent's contention, did not deprive him of the Sixth Amendment rights to compulsory process and cross-examination. That Amendment does not confer the right to present testimony free from the legitimate demands of the adversarial system and cannot be invoked as a justification for presenting what might have been a half-truth. Pp. 240-241.
501 F.2d 146, reversed.
Paul L. Friedman, Washington, D.C., for petitioner.
Nicholas R. Allis, Los Angeles, Cal., for respondent.
Mr. Justice POWELL delivered the opinion of the Court.
1
In a criminal trial, defense counsel sought to impeach the credibility of key prosecution witnesses by testimony of a defense investigator regarding statements previously obtained from the witnesses by the investigator. The question presented here is whether in these circumstances a federal trial court may compel the defense to reveal the relevant portions of the investigator's report for the prosecution's use in cross-examining him. The United States Court of Appeals for the Ninth Circuit concluded that it cannot. 501 F.2d 146. We granted certiorari, 419 U.S. 1120, 95 S.Ct. 801, 42 L.Ed.2d 819 (1975), and now reverse.
2
* Respondent was tried and convicted on charges arising from an armed robbery of a federally insured bank. The only significant evidence linking him to the crime was the identification testimony of two witnesses, a bank teller and a salesman who was in the bank during the robbery.1 Respondent offered an alibi but, as the Court of Appeals recognized, 501 F.2d, at 150, his strongest defense centered around attempts to discredit these eyewitnesses. Defense efforts to impeach them gave rise to the events that led to this decision.
3
In the course of preparing respondent's defense, an investigator for the defense interviewed both witnesses and preserved the essence of those conversations in a written report. When the witnesses testified for the prosecution, respondent's counsel relied on the report in conducting their cross-examination. Counsel asked the bank teller whether he recalled having told the investigator that he had seen only the back of the man he identified as respondent. The witness replied that he did not remember making such a statement. He was allowed, despite defense counsel's initial objection, to refresh his recollection by referring to a portion of the investigator's report. The prosecutor also was allowed to see briefly the relevant portion of the report.2 The witness thereafter testified that although the report indicated that he told the investigator he had seen only respondent's back, he in fact had seen more than that and continued to insist that respondent was the bank robber.
4
The other witness acknowledged on cross-examination that he too had spoken to the defense investigator. Respondent's counsel twice inquired whether he told the investigator that 'all blacks looked alike' to him, and in each instance the witness denied having made such a statement. The prosecution again sought inspection of the relevant portion of the investigator's report, and respondent's counsel again objected. The court declined to order disclosure at that time, but ruled that it would be required if the investigator testified as to the witnesses' alleged statements from the witness stand.3 The court further advised that it would examine the investigator's report in camera and would excise all reference to matters not relevant to the precise statements at issue.
5
After the prosecution completed its case, respondent called the investigator as a defense witness. The court reiterated that a copy of the report, inspected and edited in camera, would have to be submitted to Government counsel at the completion of the investigator's impeachment testimony. When respondent's counsel stated that he did not intend to produce the report, the court ruled that the investigator would not be allowed to testify about his interviews with the witnesses.4
6
The Court of Appeals for the Ninth Circuit while acknowledging that the trial court's ruling constituted a 'very limited and seemingly judicious restriction,' 501 F.2d, at 151, nevertheless considered it reversible error. Citing United States v. Wright, 160 U.S.App.D.C. 57, 68, 489 F.2d 1181, 1192 (1973), the court found that the Fifth Amendment prohibited the disclosure condition imposed in this case. The court further held that Fed.Rule Crim.Proc. 16, while framed exclusively in terms of pretrial discovery, precluded prosecutorial discovery at trial as well. 501 F.2d, at 157; accord, United States v. Wright, supra, at 66—67, 489 F.2d, at 1190—1191. In each respect, we think the court erred.
II
7
The dual aim of our criminal justice system is 'that guilt shall not escape or innocence suffer,' Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). To this end, we have placed our confidence in the adversary system, entrusting to it the primary responsibility for developing relevant facts on which a determination of guilt or innocence can be made. See United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974); Williams v. Florida, 399 U.S. 78, 82, 90 S.Ct. 1893, 1896, 26 L.Ed.2d 446 (1970); Elkins v. United States, 364 U.S. 206, 234, 80 S.Ct. 1437, 1454, 4 L.Ed.2d 1669 (1960) (Frankfurter, J., dissenting).
8
While the adversary system depends primarily on the parties for the presentation and exploration of relevant facts, the judiciary is not limited to the role of a reference or supervisor. Its compulsory processes stand available to require the presentation of evidence in court or before a grand jury. United States v. Nixon, supra; Kastigar v. United States, 406 U.S. 441, 443—444, 92 S.Ct. 1653, 1655—1656, 32 L.Ed.2d 212 (1972); Murphy v. Waterfront Comm'n, 378 U.S. 52, 93—94, 84 S.Ct. 1594, 1610 1611, 12 L.Ed.2d 678 (1964) (White, J., concurring). As we recently observed in United States v. Nixon, supra, 418 U.S., at 709, 94 S.Ct., at 3108:
9
'We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.'
10
Decisions of this Court repeatedly have recognized the federal judiciary's inherent power to require the prosecution to produce the previously recorded statements of its witnesses so that the defense may get the full benefit of cross-examination and the truth-finding process may be enhanced. See, e.g., Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957);5 Gordon v. United States, 344 U.S. 414, 73 S.Ct. 369, 97 L.Ed. 447 (1953); Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942); Palermo v. United States, 360 U.S. 343, 361, 79 S.Ct. 1217, 1229, 3 L.Ed.2d 1287 (1959) (Brennan, J., concurring in result). At issue here is whether, in a proper case, the prosecution can call upon that same power for production of witness statements that facilitate 'full disclosure of all the (relevant) facts.' United States v. Nixon, supra, 418 U.S., at 709, 94 S.Ct., at 3108.
11
In this case, the defense proposed to call its investigator to impeach the identification testimony of the prosecution's eyewitnesses. It was evident from cross-examination that the investigator would testify that each witness' recollection of the appearance of the individual identified as respondent was considerably less clear at an earlier time than it was at trial. It also appeared that the investigator and one witness differed even as to what the witness told him during the interview. The investigator's contemporaneous report might provide critical insight into the issues of credibility that the investigator's testimony would raise. It could assist the jury in determining the extent to which the investigator's testimony actually discredited the prosecution's witnesses. If, for example, the report failed to mention the purported statement of one witness that 'all blacks looked alike,' the jury might disregard the investigator's version altogether. On the other hand, if this statement appeared in the contemporaneously recorded report, it would tend strongly to corroborate the investigator's version of the interview and to diminish substantially the reliability of that witness' identification.6
12
It was therefore apparent to the trial judge that the investigator's report was highly relevant to the critical issue of credibility. In this context, production of the report might substantially enhance 'the search for truth,' Williams v. Florida, 399 U.S., at 82, 90 S.Ct., at 1896. We must determine whether compelling its production was precluded by some privilege available to the defense in the circumstances of this case.
III
A.
13
The Court of Appeals concluded that the Fifth Amendment renders criminal discovery 'basically a one-way street.' 501 F.2d at 154. Like many generalizations in constitutional law, this one is too broad. The relationship between the accused's Fifth Amendment rights and the prosecution's ability to discover materials at trial must be identified in a more discriminating manner.
14
The Fifth Amendment privilege against compulsory self-incrimination is an 'intimate and personal one,' which protects 'a private inner sanctum of individual feeling and thought and proscribes state intrusion to extract self-condemnation.' Couch v. United States, 409 U.S. 322, 327, 93 S.Ct. 611, 615, 34 L.Ed.2d 548 (1973); see also Bellis v. United States, 417 U.S. 85, 90—91, 94 S.Ct. 2179, 2184—2185, 40 L.Ed.2d 678 (1974); United States v. White, 322 U.S. 694, 698, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542 (1944). As we noted in Couch, supra, 409 U.S., at 328, 93 S.Ct., at 616, the 'privilege is a personal privilege: it adheres basically to the person, not to information that may incriminate him.'7
15
In this instance disclosure of the relevant portions of the defense investigator's report would not impinge on the fundamental values protected by the Fifth Amendment. The court's order was limited to statements allegedly made by third parties who were available as witnesses to both the prosecution and the defense. Respondent did not prepare the report, and there is no suggestion that the portions subject to the disclosure order reflected any information that he conveyed to the investigator. The fact that these statements of third parties were elicited by a defense investigator on respondent's behalf does not convert them into respondent's personal communications. Requiring their production from the investigator therefore would not in any sense compel respondent to be a witness against himself or extort communications from him.
16
We thus conclude that the Fifth Amendment privilege against compulsory self-incrimination, being personal to the defendant, does not extend to the testimony or statements of third parties called as witnesses at trial. The Court of Appeals' reliance on this constitutional guarantee as a bar to the disclosure here ordered was misplaced.
B
17
The Court of Appeals also held that Fed.Rule Crim.Proc. 16 deprived the trial court of the power to order disclosure of the relevant portions of the investigator's report.8 Acknowledging that the Rule appears to control pretrial discovery only, the court nonetheless determined that its reference to the Jencks Act, 18 U.S.C. § 3500, signaled an intention that Rule 16 should control trial practice as well. We do not agree.
18
Both the language and history of Rule 16 indicate that it addresses only pretrial discovery. Rule 16(f) requires that a motion for discovery be filed 'within 10 days after arraignment or . . . such reasonable later time as the court may permit,' and further commands that it include all relief sought by the movant. When this provision is viewed in light of the Advisory Committee's admonition that it is designed to encourage promptness in filing and to enable the district court to avoid unnecessary delay or multiplication of motions, see Advisory Committee's Notes on Rule 16, 18 U.S.C. App., p. 4494, the pretrial focus of the Rule becomes apparent. The Government's right of discovery arises only after the defendant has successfully sought discovery under subsection (a)(2) or (b) and is confined to matters 'which the defendant intends to produce at the trial.' Fed.Rule Crim.Proc. 16(c). This hardly suggests any intention that the Rule would limit the court's power to order production once trial has begun.9 Finally, he Advisory Committee's Notes emphasize its pretrial character. Those notes repeatedly characterize the Rule as a provision governing pretrial disclosure, never once suggesting that it was intended to constrict a district court's control over evidentiary questions arising at trial. 18 U.S.C. App., pp. 4493—4495.
19
The incorporation of the Jencks Act limitation on the pretrial right of discovery provided by Rule 16 does not express a contrary intent. It only restricts the defendant's right of pretrial discovery in a manner that reconciles that provision with the Jencks Act limitation on the trial court's discretion over evidentiary matters. It certainly does not convert Rule 16 into a general limitation on the trial court's broad discretion as to evidentiary questions at trial. Cf. Giles v. Maryland, 386 U.S. 66, 101, 87 S.Ct. 793, 810, 17 L.Ed.2d 737 (1967) (Fortas, J., concurring in judgment).10 We conclude, therefore, that Rule 16 imposes no constraint on the District Court's power to condition the impeachment testimony of respondent's witness on the production of the relevant portions of his investigative report. In extending the Rule into the trial context, the Court of Appeals erred.
IV
20
Respondent contends further that the work-product doctrine exempts the investigator's report from disclosure at trial. While we agree that this doctrine applies to criminal litigation as well as civil, we find its protection unavailable in this case.
21
The work-product doctrine, recognized by this Court of Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), reflects the strong 'public policy underlying the orderly prosecution and defense of legal claims.' Id., at 510, 67 S.Ct., at 393; see also id., at 514—515, 67 S.Ct., at 395—396 (Jackson, J., concurring). As the Court there observed:
22
'Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients' interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways—aptly though roughly telrmed by the Circuit Court of Appeals in this case as the 'Work product of the lawyer.' Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.' Id.8 at 510—511, 67 S.Ct., at 393.
23
the Court therefore recognized a qualified privilege for certain materials prepared by an attorney 'acting for his client in anticipation of litigation.' Id., at 508, 67 S.Ct., at 392.11 See generally 4 J. Moore, Federal Practice 26.63 (2d ed. 1974); E. Cleary, McCormick on Evidence 204—209 (2d ed. 1972); Note, Developments in the Law—Discovery, 74 Harv.L.Rev. 940, 1027—1046 (1961).
24
Although the work-product doctrine most frequently is asserted as a bar to discovery in civil litigation, its role in assuring the proper functioning of the criminal justice system is even more vital. The interests of society and the accused in obtaining a fair and accurate resolution of the question of guilt or innocence demand that adequate safeguards assure the thorough preparation and presentation of each side of the case.12
25
At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case. But the doctrine is an intensely practical one, grounded in the realities of litigation in our adversary system. One of those realities is that attorneys often must rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial. It is therefore necessary that the doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself.13 Moreover, the concerns reflected in the work-product doctrine do not disappear once trial has begun. Disclosure of an attorney's efforts at trial, as surely as disclosure during pretrial discovery, could disrupt the orderly development and presentation of his case. We need not, however, undertake here to delineate the scope of the doctrine at trial, for in this instance it is clear that the defense waived such right as may have existed to invoke its protections.
26
The privilege derived from the work-product doctrine is not absolute. Like other qualified privileges, it may be waived. Here respondent sought to adduce the testimony of the investigator and contrast his recollection of the contested statements with that of the prosecution's witnesses. Respondent, by electing to present the investigator as a witness, waived the privilege with respect to matters covered in his testimony.14 Respondent can no more advance the work-product doctrine to sustain a unilateral testimonial use of work-product materials than he could elect to testify in his own behalf and thereafter assert his Fifth Amendment privilege to resist cross-examination on matters reasonably related to those brought out in direct examination. See, e.g., McGautha v. California, 402 U.S. 183, 215, 91 S.Ct. 1454, 1471, 28 L.Ed.2d 711 (1971).15
V
27
Finally, our examination of the record persuades us that the District Court properly exercised its discretion in this instance. The court authorized no general 'fishing expedition' into the defense files or indeed even into the defense investigator's report. Cf. United States v. Wright, 160 U.S.App.D.C. 57, 489 F.2d 1181 (1973). Rather, its considered ruling was quite limited in scope, opening to prosecution scrutiny only the portion of the report that related to the testimony the investigator would offer to discredit the witnesses' identification testimony. The court further afforded respondent the maximum opportunity to assist in avoiding unwarranted disclosure or to exercise an informed choice to call for the investigator's testimony and thereby open his report to examination.
28
The court's preclusion sanction was an entirely proper method of assuring compliance with its order. Respondent's argument that this ruling deprived him of the Sixth Amendment rights to compulsory process and cross-examination misconceives the issue. The District Court did not bar the investigator's testimony. Cf. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967). It merely prevented respondent from presenting to the jury a partial view of the credibility issue by adducing the investigator's testimony and thereafter refusing to disclose the contemporaneous report that might offer further critical insights. The Sixth Amendment does not confer the right to present testimony free from the legitimate demands of the adversarial system; one cannot invoke the Sixth Amendment as a justification for presenting what might have been a half-truth. Deciding, as we do, that it was within the court's discretion to assure that the jury would hear the full testimony of the investigator rather that a truncated portion favorable to respondent, we think it would be artificial indeed to deprive the court of the power to effectuate that judgment. Nor do we find constitutional significance in the fact that the court in this instance was able to exclude the testimony in advance rather than receive it in evidence and thereafter charge the jury to disregard it when respondent's counsel refused, as he said he would, to produce the report.16
29
The judgment of the Court of Appeals for the Ninth Circuit is therefore reversed.
30
Judgment reversed.
31
Mr. Justice DOUGLAS took no part in the consideration or decision of this case.
32
Mr. Justice WHITE, with whom Mr. Justice REHNQUIST joins, concurring.
33
I concur in the judgment and in Parts II, III, and V of the opinion of the Court. I write only because of misgivings about the meaning of Part IV of the opinion. The Court appears to have held in Part IV of its opinion only that whatever protection the defense investigator's notes of his interviews with witnesses might otherwise have had, that protection would have been lost when the investigator testified about those interviews. With this I agree also. It seems to me more sensible, however, to decide what protection these notes had in the first place before reaching the 'waiver' issue. Accordingly, and because I do not believe that the work-product doctrine of Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), can be extended wholesale from its historic role as a limitation on the nonevidentiary material which may be the subject of pretrial discovery to an unprecedented role as a limitation on the trial judge's power to compel production of evidentiary matter at trial, I add the following.
34
* Up until now the work-product doctrine of Hickman v. Taylor, supra, has been viewed almost exclusively as a limitation on the ability of a party to obtain pretrial discovery. It has not been viewed as a 'limitation on the trial court's broad discretion as to evidentiary questions at trial.' Ante, at 236. The problem discussed in Hickman v. Taylor arose precisely because, in addition to accelerating the time when a party could obtain evidentiary matter from his adversary,1 the new Federal Rules of Civil Procedure greatly expanded the nature of the material subject to pretrial disclosure.2 Under the Rules, a party was, for the first time, entitled to know in advance his opponent's evidence and was entitled to obtain from his opponent nonprivileged 'information as to the existence or whereabouts of facts' relevant to a case even though the 'information' was not itself evidentiary. Hickman v. Taylor, supra, 329 U.S., at 501, 67 S.Ct., at 389. Utilizing these Rules, the plaintiff in Hickman v. Taylor sought discovery of statements obtained by defense counsel from witnesses to the events relevant to the lawsuit, not for evidentiary use but only 'to help prepare himself to examine witnesses and to make sure that he ha(d) overlooked nothing.' 329 U.S., at 513, 67 S.Ct., at 395 (emphasis added). In concluding that these statements should not be produced, the Court treated the matter entirely as one involving the plaintiff's entitlement to pretrial discovery under the new Federal Rules,3 and carefully limited its opinion accordingly. The relevant Rule in the Court's view, Rule 26, on its face required production of the witness statements unless they were privileged. Nonetheless, the Court expressly stated that the request for witness statements was to be denied 'not because the subject matter is privileged' (although noting that a work-product 'privilege' applies in England, 329 U.S., at 510, 67 S.Ct., at 393) as that concept was used in the Rules, but because the request 'falls outside the arena of discovery.' Id., at 510, 67 S.Ct., at 393 (emphasis added). The Court stated that it is essential that a lawyer work with a certain degree of privacy, and concluded that the effect of giving one lawyer's work (particularly his strategy, legal theories, and mental impressions) to another would have a 'demoralizing' effect on the legal profession. The Court then noted that witness statements might be admissible in evidence under some circumstances and might be usable to impeach or corroborate a witness. However, it concluded that in the case before it the plaintiff wanted the statements for preparation only and had shown no reason why he could not obtain everything he sought by doing his own work rather than utilizing that of his adversary.
35
The conclusion that the work product of a lawyer is not 'privileged' made it much more difficult for the Court to support its result. Nothing expressed in the Rule supported its result, and the Court was forced to explain its decision by stating:
36
'When Rule 26 and the other discovery rules were adopted, this Court and the members of the bar in general certainly did not believe or contemplate that all the files and mental processes of lawyers were thereby opened to the free scrutiny of their adversaries.' Id., at 514, 67 S.Ct., at 395. (Emphasis added.)
37
I am left with the firm conviction that the Court avoided the easier route to its decision for a reason. To have held an attorney's work product to be 'privileged' would have been to limit its use at trial as evidence in those cases in which the work product qualified as evidence, see Report of Proposed Amendments to Rules of Civil Procedure for the District Courts of the United States, 5 F.R.D. 433, 460 (1946), and, as Mr. Justice Jackson stated in his concurring opinion, a party is entitled to anything which is 'evidence in his case.' 329 U.S., at 515, 67 S.Ct., at 395.4
38
Since Hickman v. Taylor, supra, Congress, the cases, and the commentators have uniformly continued to view the 'work product' doctrine solely as a limitation on pretrial discovery and not as a qualified evidentiary privilege. In 1970, Congress became involved with the problem for the first time in the civil area. It did so solely by accepting a proposed amendment to Fed.Rule Civ.Proc. 26, which incorporated much of what the Court held in Hickman v. Taylor, supra, with respect to pretrial discovery. See Advisory Committee's explanatory statement, 28 U.S.C. App., p. 7778; 48 F.R.D. 487. In the criminal area, Congress has enacted 18 U.S.C. § 3500 and accepted Fed.Rule Crim.Proc. 16(c). The former prevents pretrial discovery of witness statements from the Government; the latter prevents pretrial discovery of witness statements from the defense. Neither limits the power of the trial court to order production as evidence of prior statements of witnesses who have testified at trial.5
39
With the exception of materials of the type discussed in Part II, infra, research has uncovered no application of the work-product rule in the lower courts since Hickman to prevent production of evidence—impeaching or otherwise—at trial;6 and there are several examples of cases rejecting such an approach.7
40
Similarly, the commentators have all treated the attorney work-product rule solely as a limitation on pretrial discover, e.g., 4 J. Moore, Federal Practice 26.63—26.64 (2d ed. 1974); 8 C. Wright & A. Miller, Federal Practice and Procedure § 2026 (1970); 2A W. Barron & A. Holtzoff, Federal Practice and Procedure § 652 (Wright ed. 1961), and some have expressly stated that it does not apply to evidentiary matter. F. James, Civil Procedure 211 n. 13 (1965); 4 J. Moore, Federal Practice 16.23(8.—4) (1963).
41
The reasons for largely confining the work-product rule to its role as a limitation on pretrial discovery are compelling. First of all, the injury to the fact-finding process is far greater where a rule keeps evidence from the factfinder than when it simply keeps advance disclosure of evidence from a party or keeps from him leads to evidence developed by his adversary and which he is just as well able to find by himself. In the main, where a party seeks to discover a statement made to an opposing party in order to prepare for trial, he can obtain the 'substantial equivalent . . . by other means,' Fed.Rule Civ.Proc. 26(b)(3), i.e., by interviewing the witness himself. A prior inconsistent statement in the Possession of his adversary, however, when sought for evidentiary purposes—i.e., to impeach the witness after he testifies—is for that purpose unique. By the same token, the danger perceived in Hickman that each party to a case will decline to prepare in the hopes of eventually using his adversary's preparation is absent when disclosure will take place only at trial. Indeed, it is very difficult to articulate a reason why statements on the same subject matter as a witness' testimony should not be turned over to an adversary after the witness has testified. The statement will either be consistent with the witness' testimony, in which case it will be useless and disclosure will be harmless; or it will be inconsistent and of unquestioned value to the jury. Any claim that disclosure of such a statement would lead the trial into collateral and confusing issues was rejected by this Court in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), and by Congress in the legislation which followed.
42
The strong negative implication in Hickman v. Taylor, supra, that the work-product rule does not apply to evidentiary requests at trial became a holding in Jencks v. United States, supra. There a defendant in a criminal case sought production by the Government at trial of prior statements made by its witnesses on the same subject matter as their testimony. The Government argued, inter alia, that production would violate the "legitimate interest that each party—including the Government—has in safeguarding the privacy of its files." 353 U.S., at 670, 77 S.Ct., at 1014. The Court held against the Government. The Court said that to deny disclosure of prior statements which might be used to impeach the witnesses was to 'deny the accused evidence relevant and material to his defense,' id., at 667, 77 S.Ct., at 1013 (emphasis added). Also rejected as unrealistic was any rule which would require the defendant to demonstrate the impeachment value of the prior statements before disclosure,8 and the Court held that entitlement to disclosure for use in cross-examination is 'established when the reports are shown to relate to the testimony of the witness.' Id., at 669, 77 S.Ct., at 1014. Thus, not only did the Court reject the notion that there was a 'work product' limitation on the trial judge's discretion to order production of evidentiary matter at trial, but it was affirmatively held that prior statements of a witness on the subject of his testimony are the kind of evidentiary matter to which an adversary is entitled.
43
Indeed, even in the pretrial discovery area in which the work-product rule does apply, work-product notions have been thought insufficient to prevent discovery of evidentiary and impeachment material. In Hickman v. Taylor, 329 U.S., at 511, 67 S.Ct., at 394, the Court stated:
44
'We do not mean to say that all written materials obtained or prepared by an adversary's counsel with an eye toward litigation are necessarily free from discovery in all cases. Where relevant and nonprivileged facts remain hidden in an attorney's file and where production of those facts is essential to the preparation of one's case, discovery may properly be had. Such written statements and documents might, under certain circumstances, be admissible in evidence or give clues as to the existence or location of relevant facts. Or they might be useful for purposes of impeachment or corroboration.' (Emphasis added.)
45
Mr. Justice Jackson, in concurring, was even more explicit on this point. See supra, at 245. Pursuant to this language, the lower courts have ordered evidence to be turned over pretrial even when it came into being as a result of the adversary's efforts in preparation for trial.9 A member of a defense team who witnesses an out-of-court statement of someone who later testifies at trial in a contradictory fashion becomes at that moment a witnesss to a relevant and admissible event, and the cases cited above would dictate disclosure of any reports he may have written about the event.10 Since prior statements are inadmissible hearsay until the witness testifies, there is no occasion for ordering reports of such statements produced as evidence pretrial. However, some courts have ordered witness statements produced pretrial in the likelihood that they will become impeachment evidence.11 Moreover, where access to witnesses or to their information is unequal, discovery of their statements is often granted solely to help a party prepare for trial regardless of any eventual evidentiary value of the out-of-court statements. See Proposed Amendments to the Federal Rules of Civil Procedure Relating to Discovery, 48 F.R.D., at 501.
46
Accordingly, it would appear that with one exception to be discussed below, the work-product notions of Hickman v. Taylor, supra, impose no restrictions on the trial judge's ordering production of evidentiary matter at trial; that these notions apply in only a very limited way, if at all, to a party's efforts to obtain evidence pretrial pursuant to available discovery devices; and that these notions supply only a qualified discovery immunity with respect to witness statements in any event.12
II
47
In one of its aspects, the rule of Hickman v. Taylor, supra, has application to evidentiary requests at trial. Both the majority and the concurring opinions in Hickman v. Taylor were at pains to distinguish between production of statements written by the witness and in the possession of the lawyer, and those statements which were made orally by the witness and written down by the lawyer. Production and use of oral statements written down by the lawyer would create a substantial risk that the lawyer would have to testify.13 The majority said that this would 'make the attorney much less an officer of the court and much more an ordinary witness.' 329 U.S. at 513, 67 S.Ct., at 394. Mr. Justice Jackson, in concurring, stated:
48
'Every lawyer dislikes to take the witness stand and will do so only for grave reasons. This is partly because is is not his role; he is almost invariably a poor witness. But he steps out of professional character to do it. He regrets it; the profession discourages it. But the practice advocated here is one which would force him to be a witness, not as to what he has seen or done but as to other witnesses' stories, and not because he wants to do so but in self-defense.' Id., at 517, 67 S.Ct., at 396.
49
The lower courts, too, have frowned on any practice under which an attorney who tries a case also testifies as a witness, and trial attorneys have been permitted to testify only in certain circumstances.14
50
The remarks of the Court in Hickman v. Taylor, supra, while made in the context of a request for pretrial discovery have application to the evidentiary use of lawyers' memoranda of witness interviews at trial. It is unnecessary, however, to decide in this case whether the policies against putting in issue the credibility of the lawyer who will sum up to the jury outweigh the jury's interest in obtaining all relevant information; and whether Jencks v. United States, supra, and 18 U.S.C. s 3500 are to be viewed as expressing a preference for disclosure of all facts.15 In this case, the creator of the memorandum was not the trial lawyer but an investigator16 and he was, in any event, to be called as a witness by the defense. Accordingly, I would reverse the judgment below because, quite apart from waiver, the work-product rule of Hickman v. Taylor, supra, has no application to the request at trial for evidentiary and impeachment material made in this case.
1
The only other evidence introduced against respondent was a statement made at the time of arrest in which he denied that he was Robert Nobles and subsequently stated that he knew that the FBI had been looking for him.
2
Counsel for the Government complained that the portion of the report produced at this time was illegible. The witness' testimony indicates, however, that he had no difficulty reading it.
3
The essence of the District Court's order was as follows:
'(If the investigator) is allowed to testify it would be necessary that those portions of (the) investigative report which contain the statements of the impeached witness will have to be turned over to the prosecution; nothing else in that report.
'If he testifies in any way about impeaching statements made by either of the two witnesses, then it is the Court's view that the government is entitled to look at his report and only those portions of that report which contain the alleged impeaching statements . . . of the witnesses.' App. 31.
4
Although the portion of the report containing the bank teller's alleged statement previously was revealed and marked for identification, it was not introduced into evidence. When the discussion of the investigator's testimony subsequently arose, counsel for the Government noted that he had only a limited opportunity to glance at the statement, and he then requested disclosure of that portion of the report as well as the statement purportedly made by the salesman.
As indicated above, the bank teller did not deny having made the statement recorded in the investigator's report. It is thus possible that the investigator's testimony on that point would not have constituted an impeachment of the statements of that witness within the contemplation of the court's order and would not have given rise to a duty of disclosure. Counsel did not pursue this point, however, and did not seek further clarification of the issue. Respondent does not, and in view of the failure to develop the issue at trial could not, urge this as a ground for reversal. Nor does respondent maintain that the initial disclosure of the bank teller's statement sufficed to satisfy the court's order. We therefore consider each of the two alleged statements in the report to be impeaching statements that would have been subject to disclosure if the investigator had testified about them.
5
The discretion recognized by the Court in Jencks subsequently was circumscribed by Congress in the so-called Jencks Act, 18 U.S.C. § 3500. See generally Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959).
6
Rule 612 of the new Federal Rules of Evidence entitles an adverse party to inspect a writing relied on to refresh the recollection of a witness while testifying. The Rule also authorizes disclosure of writings relied on to refresh recollection before testifying if the court deems it necessary in the interests of justice. The party obtaining the writing thereafter can use it in cross-examining the witness and can introduce into evidence those portions that relate to the witness' testimony. As the Federal Rules of Evidence were not in effect at the time of respondent's trial, we have no occasion to consider them or their applicability to the situation here presented.
7
'The purpose of the relevant part of the Fifth Amendment is to prevent compelled self-incrimination, not to protect private information. Testimony demanded of a witness may be very private indeed, but unless it is incriminating and protected by the Amendment or unless protected by one of the evidentiary privileges, it must be disclosed.' Maness v. Meyers, 419 U.S. 449, 473—474, 95 S.Ct. 584, 598, 42 L.Ed.2d 574 (1975) (White, J., concurring in result). Moreover, the constitutional guarantee protects only against forced individual disclosure of a 'testimonial or communicative nature,' Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908 (1966); see also United States v. Wade, 388 U.S. 218, 222, 87 S.Ct. 1926, 1929, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).
8
Rule 16(c), which establishes the Government's reciprocal right of pretrial discovery, excepts 'reports, memoranda, or other internal defense documents made by the defendant, or his attorneys or agents in connection with the investigation or defense of the case, or of statements made by the defendant, or by government or defense witnesses, or by prospective government or defense witnesses, to the defendant, his agents or attorneys.' That Rule therefore would not authorize pretrial discovery of the investigator's report. The proposed amendments to the Federal Rules of Criminal Procedure leave this subsection substantially unchanged. See Proposed Rule 16 of Criminal Procedure, 62 F.R.D. 271, 305—306 (1974).
9
Rule 16(g) imposes a duty to notify opposing counsel or the court of the additional materials previously requested or inspected that are subject to discovery or inspection under the Rule, and it contemplates that this obligation will continue during trial. The obligation under Rule 16(g) depends, however, on a previous request for or order of discovery. The fact that this provision may have some effect on the parties' conduct during trial does not convert the rule into a general limitation on the court's inherent power to control evidentiary matters.
10
We note also that the commentators who have considered Rule 16 have not suggested that it is directed to the court's control of evidentiary questions arising at trial. See, e.g., Nakell, Criminal Discovery for the Defense and the Prosecution—the Developing Constitutional Considerations, 50 N.C.L.Rev. 437, 494 514 (1972); Rezneck, The New Federal Rules of Criminal Procedure, 54 Geo.L.J. 1276, 1279, 1282 n. 19 (1966); Note, Prosecutorial Discovery Under Proposed Rule 16, 85 Harv.L.Rev. 994 (1972).
11
As the Court recognized in Hickman v. Taylor, 329 U.S., at 508, 67 S.Ct., at 392, the work-product doctrine is distinct from and broader than the attorney-client privilege.
12
A number of state and federal decisions have recognized the role of the work-product doctrine in the criminal law, and have applied its protections to the files of the prosecution and the accused alike. See e.g., Arizona v. Bowen, 104 Ariz. 138, 449 P.2d 603, cert. denied, 396 U.S. 912, 90 S.Ct. 229, 24 L.Ed.2d 188 (1969); State ex rel. Polley v. Superior Ct. of Santa Cruz County, 81 Ariz. 127, 302 P.2d 263 (1956); Peel v. Florida, 154 So.2d 910 (Fla.App.1963); In re Grand Jury Proceedings (Duffy v. United States), 473 F.2d 840 (CA8 1973); In re Terkeltoub, 256 F.Supp. 683 (SDNY 1966).
13
The sole issue in Hickman related to materials prepared by an attorney, and courts thereafter disagreed over whether the doctrine applied as well to materials prepared on his behalf. See Proposed Amendments to the Federal Rules of Civil Procedure Relating to Discovery, 48 F.R.D. 487, 501 (1970); 4 J. Moore, Federal Practice 26.63(8) (2d ed. 1974). Necessarily, it must. This view is reflected in the Federal Rules of Civil Procedure, see Rule 26(b)(3), and in Rule 16 of the Criminal Rules as well, see Rules 16(b) and (c); cf. E. Cleary, McCormick on Evidence 208 (2d ed. 1972).
14
What constitutes a waiver with respect to work-product materials depends, of course, upon the circumstances. Counsel necessarily makes use throughout trial of the notes, documents, and other internal materials prepared to present adequately his client's case, and often relies on them in examining witnesses. When so used, there normally is no waiver. But where, as here, counsel attempts to make a testimonial use of these materials the normal rules of evidence come into play with respect to cross-examination and production of documents.
15
We cannot accept respondent's contention that the disclosure order violated his Sixth Amendment right to effective assistance of counsel. This claim is predicated on the assumption that disclosure of a defense investigator's notes in this and similar cases will compromise counsel's ability to investigate and prepare the defense case thoroughly. Respondent maintains that even the limited disclosure required in this case will impair the relationship of trust and confidence between client and attorney and will inhibit other members of the 'defense team' from gathering information essential to the effective preparation of the case. See American Bar Association Project on Standards for Criminal Justice, The Defense Function § 3.1(a) (App.Draft 1971). The short answer is that the disclosure order resulted from respondent's voluntary election to make testimonial use of his investigator's report. Moreover, apart from this waiver, we think that the concern voiced by respondent fails to recognize the limited and conditional nature of the court's order.
16
Respondent additionally argues that certain statements by the prosecution and the District Court's exclusion of purported expert testimony justify reversal of the verdict, and that the Court of Appeals' decision should be affirmed on those grounds. The Court of Appeals rejected respondent's challenge to the exclusion of the testimony of the proffered expert, 501 F.2d, at 150—151. Respondent did not present this issue or the question involving the challenged prosecutorial statements to this Court in a cross-petition for certiorari. Without questioning our jurisdiction to consider these alternative grounds for affirmance of the decision below, cf. Langnes v. Green, 282 U.S. 531, 538, 51 S.Ct. 243, 246, 75 L.Ed. 520 (1931); Dandridge v. Williams, 397 U.S. 471, 475—476, n. 6, 90 S.Ct. 1153, 1156—1157, 25 L.Ed.2d 491 (1970); see generally Stern, When to Cross-Appeal or Cross-Petition—Certainty or Confusion?, 87 Harv.L.Rev. 763 (1974), we do not consider these contentions worthy of consideration. Each involves an issue that is committed to the trial court's discretion. In the absence of a strong suggestion of an abuse of that discretion or an indication that the issues are of sufficient general importance to justify the grant of certiorari we decline to entertain them.
1
Under criminal discovery rules the time factor is not as great as might otherwise appear. Federal Rule Crim.Proc. 16 permits discovery through the time of trial; and under Fed.Rule Crim.Proc. 17(c), evidentiary matter may be obtained pursuant to subpoena in advance of trial in the discretion of the trial judge.
2
Prior to the Federal Rules, requests for witness statements were granted or denied on the basis of whether they were evidence and nonprivileged. In the main, production was denied, either because witness statements were not evidence (they are inadmissible hearsay until and unless the witness testifies); because a party is not entitled to advance knowledge of his adversary's case; or because the statements were made by the client or his agent to his attorney and thus covered by the attorney-client privilege. 4 J. Moore, Federal Practice 26.63(3) (2d ed. 1974), and cases cited therein. The cases did not hold that witness statements were generally privileged, if they were evidentiary, and had no cause to decide whether a work-product notion should protect them from discovery, since they were nondiscoverable anyway under applicable discovery rules. But see Walker v. Struthers, 273 Ill. 387, 112 N.E. 961 (1916).
3
Mr. Justice Jackson's concurrence is even more express on this point. It states: 'The question is simply whether such demand is authorized by the rules relating to various aspects of 'discovery." 329 U.S., at 514, 67 S.Ct., at 395.
4
Mr. Justice Jackson also emphasized that the witness statements involved in Hickman v. Taylor were neither evidence nor privileged. Id., at 516, 67 S.Ct., at 396. Indeed, most of the material described by the Court as falling under the work-product umbrella does not qualify as evidence. A lawyer's mental impressions are almost never evidence and out-of-court statements of witnesses are generally inadmissible hearsay. Such statements become evidence only when the witness testifies at trial, and are then usually impeachment evidence only. This case, of course, involves a situation in which the relevant witness was to testify and thus presents the question—not involved in Hickman v. Taylor whether prior statements should be disclosed under the trial judge's power over evidentiary matters at trial.
5
In n. 13 of its opinion, the Court cites Fed.Rule Crim.Proc. 16(c), as containing the work-product rule. In n. 10, the Court correctly notes that Rule 16(c) is not 'directed to the court's control of evidentiary questions arising at trial.' It seems to me that this supplies a better ground for the Court's decision that 'waiver.'
6
The majority does cite one case, In re Terkeltoub, 256 F.Supp. 683 (SDNY 1966), in which the court referred to the work-product doctrine in preventing the Government from inquiring of a lawyer before the grand jury whether he had participated in suborning perjury of a prospective witness while preparing a criminal case for trial. In any event, a grand jury investigation is in some respects similar to pretrial discovery. Compare In re Grand Jury Proceedings (Duffy v. United States), 473 F.2d 840 (CA8 1973), with Schwimmer v. United States, 232 F.2d 855 (CA8), cert. denied, 352 U.S. 833, 77 S.Ct. 48, 1 L.Ed.2d 52 (1956). The proper scope of inquiry is as broad, and it can be used as a way of preparing for the later criminal trial. There is for example a split of authority on whether the work-product rule applies to IRS tax investigations. Compare United States v. McKay, 372 F.2d 174 (CA5 1967), with United States v. Brown, 478 F.2d 1038 (CA7 1973).
7
Shaw v. Wuttke, 28 Wis.2d 448, 454—456, 137 N.W.2d 649, 652—653 (1965); State ex rel. State Highway Comm'n v. Steinkraus, 76 N.M. 617, 620—621, 417 P.2d 431, 432—433 (1966); E.I. du Pont de Nemours & Co. v. Phillips Petroleum Co., 24 F.R.D. 416 (Del.1959); United States v. Matles, 154 F.Supp. 574 (EDNY 1957); United States v. Sun Oil Co., 16 F.R.D. 533 (ED Pa.1954); United States v. Gates, 35 F.R.D. 524 (Colo.1964).
8
The Court in Jencks quoted the language of Mr. Chief Justice Marshall in United State v. Burr, 25 Fed.Cas., No. 14,694, pp. 187, 191 (Va.1807):
"Now, if a paper be in possession of the opposite party, what statement of its contents or applicability can be expected from the person who claims its production, he not precisely knowing its contents?" 353 U.S., at 668 n. 12, 77 S.Ct., at 1013.
9
Cummings v. Bell Telephone Co. of Pennsylvania, 47 F.R.D. 373 (ED Pa.1968); Marks v. Gas Service Co., 168 F.Supp. 487 (WD Mo.1958); Maginnis v. Westinghouse Electric Corp., 207 F.Supp. 739 (ED La.1962); Julius Hyman & Co. v. American Motorists Ins. Co., 17 F.R.D. 386 (Colo.1955); Parrett v Ford Motor Co., 47 F.R.D. 22 (WD Mo.1968); Scuderi v. Boston Ins. Co., 34 F.R.D. 463, 468 (Del.1964) (each involving a situation in which a member of a litigation team witnessed an event or scene in the course of preparing a case for trial and the court ordered disclosure of his report of the event); Bourget v. Government Employees Ins. Co., 48 F.R.D. 29 (Conn.1969); McCullough Tool Co. v. Pan Geo Atlas Corp., 40 F.R.D. 490 (SD Tex.1966); O'Boyle v. Life Ins. Co. of North America, 299 F.Supp. 704 (WD Mo.1969). Cf. LaRocca v. State Farm Mutual Automobile Ins. Co., 47 F.R.D. 278 (WD Pa.1969), and Kennedy v. Senyo, 52 F.R.D. 34 (WD Pa.1971) (in each of which the preparation for trial was the subject of the suit); see also Natta v. Hogan, 392 F.2d 686, 693 (CA10 1968); F. James, Civil Procedure 211 (1965).
10
The holding in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), would put to rest any claim that such prior statement would be disclosable only if the adversary established its evidentiary value ahead of time by specific proof that it was inconsistent.
11
Vetter v. Lovett, 44 F.R.D. 465 (WD Tex.1968); McDonald v. Prowdley, 38 F.R.D. 1 (WD Mich.1965); Tannenbaum v. Walker, 16 F.R.D. 570 (ED Pa.1954); Fulton v. Swift, 43 F.R.D. 166 (Mont.1967); Republic Gear Co. v. Borg-Warner Corp., 381 F.2d 551, 557—558 (CA2 1967) (in camera inspection). Cf. Goosman v. A. Duie Pyle, Inc., 320 F.2d 45 (CA4 1963). For cases contra see 4 J. Moore, Federal Practice 1126.64(3) n. 14 (2d ed. 1974).
12
The majority states:
'Moreover, the concerns reflected in the work-product doctrine do not disappear once trial has begun. Disclosure of an attorney's efforts at trial, as surely as disclosure during pretrial discovery, could disrupt the orderly development and presentation of his case. We need not, however, undertake here to delineate the scope of the doctrine at trial, for in this instance it is clear that the defense waived such right as may have existed to invoke its protections.' Ante, at 239.
As noted above, the important question is not when the document in issue is created or even when it is to be produced. The important question is whether the document is sought for evidentiary or impeachment purposes or whether it is sought for preparation purposes only. Of course, a party should not be able to discover his opponent's legal memoranda or statements of witnesses not called whether his request is at trial or before trial. Insofar as such a request is made under the applicable discovery rules, it is within the rule of Hickman v. Taylor even though made at trial. Insofar as the request seeks to invoke the trial judge's discretion over evidentiary matters at trial, the rule of Hickman v. Taylor is unnecessary, since no one could ever suggest that legal memoranda or hearsay statements are evidence. If this is all the majority means by the above-quoted language, I agree.
13
If the witness does not acknowledge making an inconsistent statement to the lawyer—even though the lawyer recorded it—the cross-examiner may not offer the document in evidence without at least calling the lawyer as a witness to authenticate the document and otherwise testify to the prior statement.
14
United States v. Porter, 139 U.S.App.D.C. 19, 429 F.2d 203 (1970); United States v. Fiorillo, 376 F.2d 180 (CA2 1967); Gajewski v. United States, 321 F.2d 261 (CA8 1963), cert. den., 375 U.S. 968, 84 S.Ct. 486, 11 L.Ed.2d 416 (1964); United States v. Newman, 476 F.2d 733 (CA3 1973); Travelers Ins. Co. v. Dykes, 395 F.2d 747 (CA5 1968); United States v. Alu, 246 F.2d 29 (CA2 1957); United States v Chiarella, 184 F.2d 903, modified on rehearing, 187 F.2d 12 (CA2 1950), vacated as to one petitioner, 341 U.S. 946, 71 S.Ct. 1004, 95 L.Ed. 1370, cert. denied as to other petitioner sub nom. Stancin v. United States, 341 U.S. 956, 71 S.Ct. 1009, 95 L.Ed. 1377 (1951); United States v. Clancy, 276 F.2d 617 (CA7 1960), rev'd on other grounds, 365 U.S. 312, 81 S.Ct. 645, 5 L.Ed.2d 574 (1961).
15
The cases have held records of witness statements made by prosecutors to be disclosable under 18 U.S.C. § 3500, United States v. Hilbrich, 341 F.2d 555 (CA7), cert. den., 381 U.S. 941, 85 S.Ct. 1775, 14 L.Ed.2d 704, reh. den., 382 U.S. 874, 86 S.Ct. 14, 15 L.Ed.2d 117 (1965), and 384 U.S. 1028, 86 S.Ct. 1906, 16 L.Ed.2d 1047 (1966); United States v. Aviles, 315 F.2d 186 (CA2 1963); Saunders v. United States, 114 U.S.App.D.C. 345, 316 F.2d 346 (1963); United States v. Smaldone, 484 F.2d 311 (CA10 1973), cert. den., 415 U.S. 915, 94 S.Ct. 1411, 39 L.Ed.2d 469 (1974). Cf. Canaday v. United States, 354 F.2d 849 (CA8 1966). In State v. Bowen, 104 Ariz. 138, 449 P.2d 603 (1969), the court reached a contrary result under state law.
16
A conflict arose among lower federal courts over the question whether the work product of members of a litigation team other than the lawyer was protected from discovery by the rule of Hickman v. Taylor, supra. Ghent, Development, Since Hickman v. Taylor, of Attorney's 'Work Product' Doctrine, 35 A.L.R.3d 438—440 (§§ 7(a) and (b)) and 453—455 (§§ 15(a) and (b) (1971); Proposed Amendments to the Federal Rules of Civil Procedure Relating to Discovery, 48 F.R.D. 487, 501—502 (1970). With respect to discovery in civil cases under Fed.Rule Civ.Proc. 26, the conflict was resolved in the 1970 amendments by affording protection to documents by a party's 'representative,' whether a lawyear or not. Where the purpose of the rule protecting the work product is to remove the incentive a party might otherwise have to rely solely on his opponent's preparation, it is sensible to treat preparation by an attorney and an investigator alike. However, the policy against lawyers testifying applies only to the lawyer who tries the case.
| 01
|
422 U.S. 255
95 S.Ct. 2140.
45 L.Ed.2d 164
ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION, et al., Petitioners,v.Reuben B. ROBERTSON, III, et al.
No. 74—450.
Argued April 15, 1975.
Decided June 24, 1975.
Syllabus
Respondents requested the Federal Aviation Administration (FAA) to make available Systems Worthiness Analysis Program (SWAP) Reports which consist of the FAA's analyses of the operation and maintenance performance of commercial airlines. Section 1104 of the Federal Aviation Act of 1958 permits the FAA Administrator, upon receiving an objection to public disclosure of information in a report, to withhold disclosure when, in his judgment, it would adversely affect the objecting party's interest and is not required in the public's interest. The Administrator declined to make the reports available upon receiving an objection from the Air Transport Association, which claimed that confidentiality was necessary to the effectiveness of the program. Respondents sued in the District Court seeking, inter alia, the requested documents. The District Court held that the documents were 'as a matter of law, public and non-exempt' within the meaning of the Freedom of Information Act (FOIA). The Court of Appeals affirmed the judgment of the District Court 'insofar as appellants rely upon Exemption (3)' of the FOIA. Held: The SWAP Reports are exempt from public disclosure under Exemption 3 of the FOIA as being 'specifically exempted from disclosure by statute.' Pp. 261-267.
(a) Exemption 3 contains no 'built-in' standard as do some of the exemptions under the FOIA and the language is sufficiently ambiguous to require resort to the legislative history. That history reveals that Congress was 'aware of the necessity to deal expressly with inconsistent laws,' and, as indicated in its committee report, did not intend, in enacting the FOIA, to modify the numerous statutes 'which restrict public access to specific Government records.' Respondents can prevail only if the FOIA is read to repeal by implication all such statutes. To interpret 'specific' as used in such committee reference as meaning that Exemption 3 applies only to precisely named or described documents, would be asking Congress to perform an impossible task and would imply that Congress had undertaken to reassess every delegation of authority to withhold information that it had made before the passage of the FOIA in 1966, a task that the legislative history clearly shows it did not undertake. Pp. 261-266.
(b) The broad discretion vested by Congress in the FAA under § 1104 to withhold information from the publis is not necessarily inconsistent with Congress' intent in enacting the FOIA to replace the broad standard of the public disclosure section of the Administrative Procedure Act. Congress could appropriately conclude that the public interest in air transport safety was better served by guaranteeing confidentiality of information necessary to secure from the airlines the maximum amount of information relevant to safety, and Congress' wisdom in striking such a balance is not open to judicial scrutiny. Pp. 266-267.
162 U.S.App.D.C. 298, 498 F.2d 1031, reversed.
Daniel M. Friedman, Washington, D.C., for petitioners.
Alan B. Morrison, Washington, D.C., for respondents.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari1 in this case in order to determine whether Exemption 3 of the Freedom of Information Act, 5 U.S.C. § 552(b)(3),2 permits nondisclosure to respondents of certain reports in the files of the Federal Aviation Administration. This exemption provides that material need not be disclosed if 'specifically exempted from disclosure by statute.' The reports are known as Systems Worthiness Analysis Program (SWAP) Reports.3 They consist of analyses made by representatives of the FAA concerning the operation and maintenance performance of commercial airlines. Oversight and regulation of air travel safety is the responsibility of the FAA, § 601 of the Federal Aviation Act of 1958, 72 Stat. 775 as amended, 49 U.S.C. § 1421. The FAA claims the documents are protected from disclosure by virtue of § 1104 of the Federal Aviation Act of 1958, 49 U.S.C. § 1504.4
2
The facts of the case, in its present posture,5 are quite simple. During the summer of 1970, in connection with a study of airline safety being conducted by them, the respondents, associated with the Center for the Study of Responsive Law, requested that the FAA make available certain SWAP Reports. The FAA declined to produce the documents. In accordance with established procedures adopted by the FAA, the respondents then filed timely notice of administrative appeal in August 1970. Several months later, while this administrative appeal was pending, the Air Transport Association, on behalf of its airline members, requested that the FAA make no public disclosure of the SWAP Reports. The Association noted that, in a prior memorandum of its own staff, the FAA had pointed out that "(t)he SWAP Program requires a cooperative effort on both the part of the company and FAA if it is to work effectively," and argued that '(t)he present practice of non-public submissions, which includes even tentative findings and opinions as well as certain factual material, encourages a spirit of openness on the part of airline management which is vital to the promotion of aviation safety—the paramount consideration of airlines and government alike in this area.' In February 1971, the FAA formally denied respondents' request for the SWAP Reports. It took the position that the reports are exempt from public disclosure under 5 U.S.C. § 552(b)(3), the section at issue here. As previously noted, that section provides that such material need not be disclosed under the Freedom of Information Act when the material is specifically exempted from disclosure by statute. The FAA noted that § 1104 of the Federal Aviation Act of 1958 permits the Administrator to withhold information, public disclosure of which, in his judgment, would adversely affect the interests of the objecting party and is not required to be disclosed in the interest of the public. The FAA also based its denial of these data on the exemption for intra-agency memoranda (5 U.S.C. § 552(b)(5)), the exemption for investigatory files compiled for law enforcement purposes (§ 552(b)(7)), and, finally, the exemption for documentation containing trade secrets and commercial or financial information of a privileged or confidential nature (§ 552(b)(4)). The FAA's answer also explained its view of the need for confidentiality in SWAP Reports:
3
'The effectiveness of the in-depth analysis that is the essence of SWAP team investigation depends, to a great extent, upon the full, frank and open cooperation of the operator himself during the inspection period. His assurance by the FAA that the resulting recommendations are in the interest of safety and operational efficiency and will not be disclosed to the public are the major incentives impelling the operator to hide nothing and to grant free access to procedures, system of operation, facilities, personnel, as well as management and operational records in order to exhibit his normal course of operations to the SWAP inspectors.'
4
Respondents then sued in the District Court, seeking, inter alia, the requested documents. The District Court held that 'the documents sought by plaintiffs . . . are, as a matter of law, public and non-exempt within the meaning of 5 United States Code (s) 552, and plaintiffs are entitled to judgment . . . as a matter of law.'
5
A divided Court of Appeals affirmed the judgment of the District Court 'insofar as appellants rely upon Exemption (3),' but remanded the case for consideration of other exemptions which the FAA might wish to assert. 162 U.S.App.D.C. 298, 498 F.2d 1031 (1974). Examining first what it felt was the ordinary meaning of the language of Exemption 3, the Court of Appeals held that its language required the exempting statute relied on to specify or categorize the particular documents it authorizes to be withheld. Because § 1104 delegated 'broad discretionary authority' under a 'public interest' standard, it was held not within the scope of Exemption 3. The Court of Appeals distinguished this Court's decision in Environmental Protection Agency v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973), on the ground that the exemption involved in that case was construed to be a specific reference by Congress to a definite class of documents, namely those that must be kept secret "in the interest of the national defense or foreign policy," 162 U.S.App.D.C., at 300, 498 F.2d, at 1033. The Court of Appeals read the Act as providing a comprehensive guide to congressional intent. One of the Act's major purposes was seen as intending to eliminate what it characterized as vague phrases such as 'in the public interest' or 'for good cause' as a basis for withholding information. Under these circumstances, the court concluded that § 1104 cannot be considered a specific exemption by statute within the meaning of Exemption 3 of the Freedom of Information Act.
6
This case involves no constitutional claims, no issues regarding the nature or scope of 'executive privilege,' but simply the scope and meaning of one of the exemptions of the Freedom of Information Act, 5 U.S.C. § 552. Environmental Protection Agency v. Mink, supra, 410 U.S. at 94, 93 S.Ct. at 839 (Stewart, J., concurring). The Act has two aspects. In one, it seeks to open public records to greater public access; in the other, it seeks to preserve the confidentiality undeniably essential in certain areas of Government operations. It is axiomatic that all parts of an Act 'if at all possible, are to be given effect.' Weinberger v. Hynson, Wescott & Dunning, 412 U.S. 609, 633, 93 S.Ct. 2469, 2485, 37 L.Ed.2d 207 (1973). Accord, Kokoszka v. Belford, 417 U.S. 642, 650, 94 S.Ct. 2431, 2436, 41 L.Ed.2d 374 (1974).
7
We have construed the Freedom of Information Act, recently in NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975); Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 95 S.Ct. 1491, 44 L.Ed.2d 57 (1975); Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974); Environmental Protection Agency v. Mink, supra. In Mink, the Court set out the general nature and purpose of the Act, recognized, as did the Senate committee report, that it is not "an easy task to balance the opposing interests . . ." and "provid(e) a workable formula which encompasses, balances, and protects all interests . . .." Id., 410 U.S., at 80, 93 S.Ct., at 832, quoting from S.Rep. No. 813, 89th Cong., 1st Sess., 3 (1965). Nothing in the Act or its legislative history gives any intimation that all information in all agencies and in all circumstances is to be open to public inspection. Because it considered the public disclosure section of the Administrative Procedure Act, 60 Stat. 238, 5 U.S.C. § 1002 (1964 ed.), inadequate, Congress sought to permit access to certain kinds of official information which it thought had unnecessarily been withheld and, by the creation of nine explicitly exclusive exemptions, to provide a more workable and balanced formula that would make available information that ought to be public and, at the same time, protect certain information where confidentiality was necessary to protect legitimate governmental functions that would be impaired by disclosure. The exemptions provided by the Act, one of which we deal with here, represent the congressional judgment as to certain kinds of 'information that the Executive Branch must have the option to keep confidential, if it so chooses,' 410 U.S., at 80, 93 S.Ct., at 832. The language of Exemption 3 contains no 'built-in' standard as in the case of some of the other exemptions. The variety of constructions given its language by the Courts of Appeals,6 is ample evidence that the relevant portions of the exemption are unclear and ambiguous, compelling resort to the legislative history. See United States v. Donruss Co., 393 U.S. 297, 303, 89 S.Ct. 501, 504, 21 L.Ed.2d 495 (1968). Cf. United States v. Oregon, 366 U.S. 643, 648, 81 S.Ct. 1278, 1281, 6 L.Ed.2d 575 (1961).
8
That history must be read in light of the legislation in existence when the Act was passed; that history reveals 'clear evidence that Congress was aware of the necessity to deal expressly with inconsistent laws.' Regional Rail Reorganization Act Cases, 419 U.S. 102, 129, 95 S.Ct. 335, 351, 42 L.Ed.2d 320 (1974). Congress was aware, as it undertook a painstaking review, during several sessions, of the right of the public to information concerning the public business; it was aware that it was acting not only against the backdrop of the 1946 Administrative Procedure Act, supra, but also on the basis of a significant number of earlier congressional decisions that confidentiality was essential in certain departments and agencies in order to protect the public interest. No distinction seems to have been made on the basis of the standards articulated in the exempting statute or on the degree of discretion which it vested in a particular Government officer. When the continued vitality of these specialized exempting statutes was raised by the views of various agencies,7 the members of the committee consistently expressed the clear intention that these statutes would remain unaffected by the new Act. During the 1963 hearings, for example, Senator Long Chairman of the Senate Subcommittee stated: 'It should be made clear that this bill in no way limits statutes specifically written with the congressional intent of curtailing the flow of information as a supplement necessary to the proper functioning of certain agencies.'8 Indeed, some provisions9 of bills which were not enacted could well have been construed as repealing all earlier legislation,10 but such provisions were not included in the bill that was finally enacted. More specifically, when the Civil Aeronautics Board brought § 1104 to the attention of both the House and Senate hearings of 1965, and expressed the agency interpretation that the provision was encompassed within Exemption 3,11 no question was raised or challenge made to the agency view of the impact of that exemption. When the House Committee on Government Operations focused on Exemption 3, it took note that there are 'nearly 100 statutes or parts of statutes which restrict public access to specific Government records. These would not be modified by the public records provisions of S. 1160.' H.R.Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966). (Emphasis added.)
9
The respondents can prevail only if the Act is to be read as repealing by implication all existing statutes 'which restrict public access to specific Government records.' Ibid. The term 'specific' as there used cannot be read as meaning that the exemption applies only to documents specified, i.e., by naming them precisely or by describing the category in which they fall. To require this interpretation would be to ask of Congress a virtually impossible task. Such a construction would also imply that Congress had undertaken to reassess every delegation of authority to withhold information which it had made before the passage of this legislation—a task which the legislative history shows it clearly did not undertake.
10
Earlier this Term, Mr. Justice Brennan, speaking for the Court in the Regional Rail Reorganization Act Cases, supra, noted that 'repeals by implication are disfavored,' 419 U.S., at 133, 95 S.Ct., at 353, and that, when courts are confronted with statutes "capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective." Id., at 133—134, 95 S.Ct., at 353, quoting Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974). As we have noted, here, as in the Regional Rail Reorganization Act Cases, supra, there is 'clear evidence that Congress was aware of the necessity to deal expressly with inconsistent laws,' 419 U.S., at 129, 95 S.Ct., at 351. To spell out repeal by implication of a multitude of statutes enacted over a long period of time, each of which was separately weighed and considered by Congress to meet an identified need, would be a more unreasonable step by a court than to do so with respect to a single statute such as was involved in the Regional Rail Reorganization Act Cases, supra. Congress' response was to permit the numerous laws then extant allowing confidentiality to stand; it is not for us to override that legislative choice.
11
The discretion vested by Congress in the FAA, in both its nature and scope, is broad. There is not, however, any inevitable inconsistency between the general congressional intent to replace the broad standard of the former Administrative Procedure Act and its intent to preserve, for air transport regulation, a broad degree of discretion on what information is to be protected in the public interest in order to insure continuing access to the sources of sensitive information necessary to the regulation of air transport. Congress could not reasonably anticipate every situation in which the balance must tip in favor of nondisclosure as a means of insuring that the primary, or indeed sole, source of essential information would continue to volunteer information needed to develop and maintain safety standards. The public interest is served by assuring a free flow of relevant information to the regulatory authorities from the airlines. Congress could appropriately conclude that the public interest was better served by guaranteeing confidentiality in order to secure the maximum amount of information relevant to safety. The wisdom of the balance struck by Congress is not open to judicial scrutiny.
12
It was inescapable that some regulatory authorities be vested with broad, flexible discretion, the exercise of which was made subject to continuing scrutiny by Congress. Following passage of the Act, '(g)eneral oversight into the administration of the Freedom of Information Act (was) exercised by the (House) Foreign Operations and Government Information Subcommittee and the Senate Subcommittee on Administrative Practice and Procedure.' H.R. No. 92—1419, pp. 3—4 (1972). It is not insignificant that this overall scrutiny of the Act in 1972 brought no change in Exemption 3. Indeed, when Congress amended the Freedom of Information Act in 1974, it reaffirmed the continued vitality of this particular exemption, covering statutes vesting in the agencies wide authority. S.Conf.Rep. No. 93—1200 p. 12 (1974); H.R.Conf.Rep. No. 93—1380, p. 12 (1974).
13
Moreover, Congress amended the Act in 1974 to require that all agencies submit to each House, on an annual basis, 'the number of determinations made by such agency not to comply with requests for records . . . and the reasons for each such determination.' 88 Stat. 1564, 5 U.S.C. § 552(d)(1) (1970 ed., Supp. IV). In light of this continuing close scrutiny, we are bound to assume that Congress exercised an informed judgment as to the needs of the FAA and that it was persuaded as to the necessity, or at least of the practical compatibility, of both statutes.
14
Reversed.
15
Mr. Justice DOUGLAS and Mr. Justice BRENNAN dissent for the reasons given in Judge Fahy's opinion for the Court of Appeals, 162 U.S.App.D.C. 298, 498 F.2d 1031 (1974).
16
Mr. Justice STEWART, with whom Mr. Justice MARSHALL joins, concurring in the judgment.
17
Exemption 3 of the Freedom of Information Act, 5 U.S.C. § 552(b)(3), provides for nondisclosure of 'matters that are . . . specifically exempted from disclosure by statute.' Section 1104 of the Federal Aviation Act of 1958, 72 Stat. 797, 49 U.S.C. § 1504, specifically provides that when '(a)ny person' objects to the public disclosure of certain information, 'the Board or Administrator shall order such information withheld from public disclosure when, in their judgment, a disclosure of such information would adversely affect the interests of such person and is not required in the interest of the public.' The Court today rules that information may be withheld under § 1104 by reason of Exemption 3.
18
Legislation of unusually broad scope often reflects reconciliation of conflicting values and policies. On occasion, therefore, particular provisions of such legislation may seem at odds with its basic purpose. But when the statutory language is relatively clear and the legislative history casts no serious doubt, the only appropriate judicial course is to give effect to the evident legislative intent.
19
So it is here. The Freedom of Information Act was enacted in order to impose objective and easily applicable statutory disclosure standards in place of relatively amorphous standards such as the 'public interest,' behind which the most self-serving motives for nondisclosure of information could be concealed. EPA v. Mink, 410 U.S. 73, 79, 93 S.Ct. 827, 832, 35 L.Ed.2d 827 (1973); and see, e.g., S.Rep. No. 813, 89th Cong., 1st Sess., 3 (1965). But it seems equally clear that Congress intended to leave largely undisturbed existing statutes dealing with the disclosure of information by specific agencies. See, e.g., H.R.Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966).
20
Simply stated, the respondents' position is that to allow administrative discretion under a general 'public interest' standard to determine whether information shall be disclosed to the public is inconsistent with the general thrust of the Freedom of Information Act. For this Court to accept that position, it must accept its inevitable corollary: that by enacting the Freedom of Information Act, Congress intended to repeal, by implication alone, those statutes that make disclosure a matter of agency discretion.1 It simply is impossible fairly to discern any such intention on the part of Congress. There is no evidence of such an intention in either the statutory language or the legislative history, and there are strong intimations to the contrary. See ante, at 263-265.
21
Our role is to interpret statutory language, not to revise it. As matters now stand, when an agency asserts a right to withhold information based on a specific statute of the kind described in Exemption 3, the only question 'to be determined in a district court's de novo inquiry is the factual existence of such a statute, regardless of how unwise, self-protective, or inadvertent the enactment might be.'2 EPA v. Mink, supra, 410 U.S., at 95 n., 93 S.Ct., at 840 (STEWART, J., concurring).
22
On this basis, I concur in the judgment of the Court.
1
419 U.S. 1067, 95 S.Ct. 654, 42 L.Ed.2d 663 (1974).
2
The Act was amended in 1974, Pub.L. 93—502, 88 Stat. 1561, to read in pertinent part:
'(a) Each agency shall make available to the public information as follows:
'(3) Except with respect to the records made available under paragraphs (1) and (2) of this subsection, each agency, upon any request for records which (A) reasonably describes such records and (B) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.' 5 U.S.C. § 552(a)(3) (1970 ed., Supp. IV).
Exemption 3, which was not amended in 1974, is provided by 5 U.S.C. § 552(b) (3), which reads as follows:
'(b) This section does not apply to matters that are—
'(3) specifically exempted from disclosure by statute.'
Prior to the 1974 amendments, § 552(a)(3) read, in pertinent part: 'Except with respect to the records made available under paragraphs (1) and (2) of this subsection, each agency, on request for identifiable records made in accordance with published rules stating the time, place, fees to the extent authorized by statute, and procedure to be followed, shall make the records promptly available to any person. . . ..' 5 U.S.C. § 552(a)(3).
3
SWAP is set forth in the Federal Aviation Administration's Systems Worthiness Analysis Program Handbook, 8000.3B (reprinted Nov. 1970) (App. 44—111). A revised version of the SWAP Handbook is contained in FAA Order 8000.3C, Apr. 14, 1972. (With subsequent changes.) See also affidavit of FAA Administrator Shaffer, App. 40.
4
Section 1104 provides:
'Any person may make written objection to the public disclosure of information contained in any application, report, or document filed pursuant to the provisions of this chapter or of information obtained by the Board or the Administrator, pursuant to the provisions of this chapter, stating the grounds for such objection. Whenever such objection is made, the Board or Administrator shall order such information withheld from public disclosure when, in their judgment, a disclosure of such information would adversely affect the interests of such person and is not required in the interest of the public. The Board or Administrator shall be responsible for classified information in accordance with appropriate law: Provided, That nothing in this section shall authorize the withholding of information by the Board or Administrator from the duly authorized committees of the Congress.'
5
The respondents had also sought disclosure of Mechanical Reliability Reports, which are daily reports of mechanical malfunctions submitted to the FAA by the aircraft companies. On January 11, 1972, the Administrator determined that he would permit the disclosure of such documents received after April 18, 1972. The District Court's subsequent order in this case, on November 8, 1972, ordered disclosure of these documents received prior to that date. The Administrator has not contested this aspect of the District Court's order either on appeal to the Court of Appeals or in his petition for writ of certiorari to this Court.
6
In Evans v. Department of Transportation, 446 F.2d 821 (CA5 1971), the court held that 49 U.S.C. § 1504, the FAA statute in question here, was within the scope of Exemption 3. 446 F.2d, at 824. The same Court of Appeals, however, in an unpublished opinion, Serchuk v. Weinberger, affirmance reported at 493 F.2d 663 (1974), followed the Third Circuit in Stretch v. Weinberger, 495 F.2d 639 (1974), in holding that 53 Stat. 1398, as amended, 42 U.S.C. § 1306(a)—requiring the confidentiality of all material obtained by the Secretary of Health, Education, and Welfare 'except as the Secretary . . . may by regulations prescribe'—was not within the scope of Exemption 3 because it neither 'identifies some class or category of items that Congress considers appropriate for exemption,' 495 F.2d, at 640, nor at least 'sets out legislatively prescribed standards of guidelines that the Secretary must follow in determining what matter shall be exempted from disclosure.' Ibid. Accord, Schechter v. Weinberger, 165 U.S.App.D.C. 236, 238, 506 F.2d 1275, 1277 (1974) (MacKinnon, J., dissenting) (citing his prior dissenting opinion in the same case, 162 U.S.App.D.C. 282, 498 F.2d 1015 (1974)). In California v. Weinberger, 505 F.2d 767 (1974), the Ninth Circuit reached a contrary result in regard to 42 U.S.C. § 1306(a) on the ground that the general nondisclosure mandate constituted 'words of congressional exemption,' 505 F.2d, at 768, and thus the material was 'specifically exempted . . . by statute.' The Secretary merely had the authority 'to relax the absolute prohibition established by Congress.' Ibid. Cf. Sears v. Gottschalk, 502 F.2d 122 (CA4 1974), finding sufficient specificity in the term '(a)pplication for patents' of 35 U.S.C. § 122 and in Rules 14(a) and (b) of the Patent Office to satisfy even the objections of the Stretch court and to bring 35 U.S.C. § 122 within the scope of Exemption 3.
7
Note, Comments on Proposed Amendments to Section 3 of the Administrative Procedure Act: The Freedom of Information Bill, 40 Notre Dame Law. 417, 453 n. 254 (1965).
8
Hearings on S. 1666 before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 88th Cong., 1st Sess., 6 (1963) (statement of Senator Long, Chairman of the subcommittee and sponsor of § 1666, which was not changed, in pertinent part, in the final enactment). See also Hearings on H.R. 5012 et al. before a Subcommittee of the House Committee on Government Operations, 89th Cong., 1st Sess., 14 (1965) (statement of Rep. Moss, Subcommittee Chairman).
9
Id., at 3: 'All laws or parts of laws inconsistent with the amendment made by the first section of this Act are hereby repealed.'
10
Id., at 14, 20, 53.
11
Id., at 237. See also Hearings on S. 1160 et al. before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 89th Cong., 1st Sess., 366 (1965). The statute's predecessor (49 U.S.C. § 674) also was specifically listed on an exhibit of 'exempt statutes' submitted during the 1958 Hearing on S. 921 before the Committee on Constitutional Rights of the Senate Subcommittee on the Judiciary, 85th Cong., 2d Sess., pt. 2, pp. 985—987, 997. Subsequent lists specifically not claiming to be exhaustive—include similar statutes. See House Committee on Government Operations, Federal Statutes on the Availability of Information, 86th Cong., 2d Sess., 213, 209 (Comm.Print Mar. 1960), listing 26 U.S.C. § 6104(a) and 15 U.S.C. § 78x(b). See generally K. Davis, Administrative Law Treatise & 3A.18 (1970 Supp.).
1
A substantial number of statutes leave disclosure of various documents to the discretion of an administrative officer. Examples are 52 Stat. 1398, as amended, 42 U.S.C. § 1306(a), which prohibits disclosure of 'any . . . report . . . obtained at any time by the Secretary of Health, Education, and Welfare . . . except as the Secretary . . . may be regulations prescribe'; 35 U.S.C. § 122, which provides that information in patent application cannot be made public by the Patent Office 'unless necessary to carry out the provisions of any Act of Congress or in such special circumstances as may be determined by the Commissioner'; and 38 U.S.C. § 3301, which states that all files, records, and other papers pertaining to any claim under any law administered by the Veterans' Administration are not to be disclosed, except that '(t)he Administrator may release information . . . when in his judgment such release would serve a useful purpose.'
2
It should be noted, however, as the Solicitor General has pointed out, that under 49 U.S.C. § 1486, judicial review of an order of nondisclosure under 49 U.S.C. § 1104 is available in the courts of appeals.
| 45
|
422 U.S. 289
95 S.Ct. 2336.
45 L.Ed.2d 191
ABERDEEN AND ROCKFISH RAILROAD COMPANY et al., Appellants,v.STUDENTS CHALLENGING REGULATORY AGENCY PROCEDURES (S.C.R.A.P.) et al. UNITED STATES et al., Appellants, v. STUDENTS CHALLENGING REGULATORY AGENCY PROCEDURES (S.C.R.A.P.) et al.
Nos. 73—1966, 73—1971.
Argued March 26, 1975.
Decided June 24, 1975.
Syllabus
In December 1971, the Nation's railroads, citing sharply increasing costs and decreasing or negative profits, collectively proposed to file tariffs increasing their freight rates by a temporary surcharge across the board. The Interstate Commerce Commission (ICC), in the ensuing general revenue proceeding, finding that the railroads had a critical and immediate need for revenue, declined to exercise its power to suspend proposed rate increases, and the surcharge became effective in February 1972. The railroads shortly filed for larger, selective rate increases, but in April 1972 the ICC suspended the effectiveness of these increases pending its investigation of their lawfulness, the ICC the previous month having served a brief draft environmental impact statement on all parties to the investigation, discussing the environmental consequences of rate increases with respect to recyclables in general terms and concluding that there was no basis yet to believe that the environment would be substantially affected thereby. Thereafter, appellee SCRAP and other environmental groups filed suit alleging that the ICC had decided not to suspend the surcharge pending its investigation—which decision would have a substantial effect on the environment without preparing an environmental impact statement or considering environmental issues as required by the National Environmental Policy Act (NEPA); that the pre-existing rate structure discriminated against recyclables and in favor of virgin materials; and that the surcharge exacerbated this situation with the unfortunate consequence to the environment that use of recyclable materials would be inhibited and use of virgin materials encouraged. A three-judge District Court was convened under 28 U.S.C. § 2325 (now repealed), which required that an injunction restraining the enforcement, operation, or execution of an ICC order would not be granted unless the application therefor was heard and determined by a three-judge court, and relief was granted. On direct appeal, this Court reversed in United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (SCRAP I), holding that § 15(7) of the Interstate Commerce Act lodges in the ICC exclusive power to suspend rate increases pending final determination of their lawfulness. Meanwhile, in October 1972, after an oral hearing, the ICC issued a final report declining to declare the selective rate increases unlawful, terminating the previously entered suspension order, canceling the surcharge that had been subsumed in the selective increases, and ordering a ceiling on rate increases with respect to some but not all recyclables. The report stated that having given extensive consideration to environmental factors, the ICC would not file a separate, formal impact statement under the NEPA, and pointed out that the ICC had begun a separate investigation into the entire rate structure focusing on whether it interfered with the Government's environmental program. However, in November 1972, the ICC reopened its investigation into the lawfulness of selective rate increases to reconsider the environmental effects of the new rates on recyclables, such rates being suspended for an additional period with the railroads' consent. In March 1973 the ICC served an expanded draft impact statement, and in May 1973 issued a final impact statement, concluding that its order of October 1972 had been correct, and finally terminating its investigation without declaring any of the proposed rates unlawful except as previously provided in the October 1972 order. In May 1973, shortly before the increased rates on recyclables were to become effective, appellees SCRAP and Environmental Defense Fund (EDF) filed a motion for a preliminary injunction to restrain the implementation of increased rates on recyclables, and the three-judge court granted the motion. The railroads and the ICC appealed, and in June 1973, The Chief Justice stayed the order on the railroads' motion, and the full Court declined to vacate the stay, 413 U.S. 917, with the result that the increased rates on recyclables went into, and remain in, effect. In November 1973 this Court vacated the preliminary injunction and remanded the cases for reconsideration, 414 U.S. 1035, 94 S.Ct. 532, 38 L.Ed.2d 326. Meanwhile, appellees had filed motions for summary judgment in the three-judge court. Finding that the ICC had failed to comply with the NEPA, in that, inter alia, it failed to hold an oral hearing before adopting the final impact statement, having previously held such a hearing (presumptively an 'existing agency review process') before issuing its October 1972 order, and should have started over again after it decided to issue a final impact statement, that court set aside the ICC order terminating the general revenue proceeding without declaring the rate increases unlawful and ordered the ICC to reopen the proceeding, prepare a new impact statement under the NEPA, hold hearings, and reconsider, in light of the new statement, its determination to declare the rate increases on recyclables lawful. The railroads appealed, claming that the District Court had no jurisdiction over the case, and that the ICC had, in any event, fully complied with the NEPA, and the ICC and the United States appealed, claiming only that the ICC had so complied with the NEPA. Held:
1. This Court has jurisdiction over the appeals under 28 U.S.C. § 1253, which gives this Court jurisdiction to determine appeals from 'an order granting or denying . . . an . . . injunction in any civil action . . . required . . . to be heard and determined' by a three-judge district court, since the District Court's order, which not only declared that the ICC had failed to comply with the NEPA but also directed the ICC to perform certain acts, was an 'injunction' within the meaning of § 1253, and since, moreover, such order restrained 'the enforcement, operation or execution' of the ICC order within the meaning of 28 U.S.C. § 2325, and hence could have been issued only by a three-judge court. Pp. 306-309.
2. The District Court had jurisdiction to review the ICC's decision not to declare the increased rates unlawful, notwithstanding such decision was made in a general revenue proceeding. Pp. 310-319.
(a) There is no merit to the railroads' argument that the ICC's decision is just as much an interim decision as a decision not to suspend a particular rate pending investigation, and hence is unreviewable under SCRAP I, supra. Since the District Court did not enjoin collection of the rates so as to come within the rule barring courts from entering disruptive injunctions against collection of rates not finally declared unlawful by the ICC, the rule of SCRAP I is not applicable even if what the railroads say is true. P. 317.
(b) Nor is there any merit to the nailroads' argument (1) that, treating the District Court's decision as a review of whether the record supported the ICC's decision not to suspend the rates as to recyclables, the District Court reviewed an issue not yet decided finally by the ICC in violation of the principles of finality and exhaustion of remedies, and (2) that the District Court's conclusion that the rule against review of general revenue proceedings does not apply to NEPA cases is contrary to the decision in SCRAP I that the NEPA does not change pre-existing jurisdictional rules. Here the issue as to whether the ICC had adequately considered under the NEPA environmental factors in the general revenue proceeding, had already been finally decided by the ICC and the relief sought from and granted by the District Court could not have been obtained from the ICC in a subsequent proceeding under § 13 of the Interstate Commerce Act. While the interim nature of a general revenue proceeding may be relevant to the extent of the consideration of environmental factors required, its nature does not prevent review of the question, finally decided by the ICC, whether the environmental impact statement prepared for that proceeding is adequate. When agency consideration of environmental factors in connection with major 'federal action' is complete, notions of finality and exhaustion do not bar judicial review of the adequacy of such consideration, even though other aspects of the rate increase are not ripe for review. Pp. 317-319.
3. The District Court erred in deciding that the oral hearing that the ICC held prior to its October 1972 order was an 'existing agency review process' during which a final environmental impact statement should have been available. The NEPA provides that a formal impact statement 'shall accompany the proposal through the existing agency review processes,' and hence does not affect the time when the 'statement' must be prepared, but simply provides what must be done with the 'statement' once it is prepared. Under this provision the time at which the agency must prepare the final 'statement' is the time at which it makes a recommendation or report on a proposal for federal action. Here, until the October 1972 report, the ICC had made no proposal, and hence the earliest time at which the statute required a statement was the time of the October 1972 report—some time after the oral hearing. Pp. 319-321.
4. The District Court also erred in deciding that the ICC should have 'started over again' after it decided to propose a formal impact statement, even assuming that the ICC erred in failing to prepare a separate impact statement to accompany its October 1972 report or that the consideration given to environmental factors in that report was inadequate. To the extent that such decision is based on the court's belief that the March 1973 draft impact statement had to be considered at a hearing, it is incorrect, since it appears that the consultation with environmentally expert agencies required by the NEPA occurred from the outset, that environmental issues pervaded the hearings held, and that all draft impact statements were circulated before the hearings, thus indicating that procedurally the NEPA was thoroughly complied with to the time of the October 1972 report. And to the extent that such decision is based on the court's belief that the ICC did not in good faith reconsider its October 1972 order in light of the impact statement, it is without support in the record, since the ICC (as it in fact proceeded to do) was in as good a position to correct a statutory error by integrating environmental factors into its reopened investigation and into its May 1973 decision, as it would have been if the October 1972 report had never been written. Pp. 321-322.
5. The District Court further erred in concluding that the final environmental impact statement was deficient. Pp. 322-328.
(a) As in most general revenue proceedings, the 'action' taken by the ICC was in response to the railroads' claim of a financial crisis, and the inquiry was primarily into whether such a crisis—usually entitling the railroads to a general increase existed, leaving primarily to more appropriate future proceedings the task of answering challenges to rates on individual commodities or categories thereof, the latter question—usually involved in a general revenue proceeding only to a limited extent raising the most serious environmental issues, and the former question raising few such issues, none of which is claimed here to have been inadequately addressed in the impact statement. Pp. 322-324.
(b) There is no merit to the appellees' argument that the environmental consequences flowing from a facially neutral rate increase, which, when superimposed on an underlying rate structure, allegedly discriminates against recyclables, must be explored in an impact statement and can be explored only by analyzing the underlying rate structure; and that, moreover, the ICC has been tardy in complying with the NEPA, was required to analyze the underlying rate structure only once with a view toward environmental consequences, had plenty of time and cause to do so before its general revenue proceeding, and therefore should not have been permitted to terminate that proceeding without having done so. Such argument is not only contrary to the holding in United States v. Louisiana, 290 U.S. 70, 54 S.Ct. 28, 78 L.Ed. 181, giving the ICC wide discretion to decide what issues to address in a general revenue proceeding and to postpone comprehensive consideration of discrimination claims, but it also loses force in view of the fact that the ICC had already begun an investigation of the underlying rate structure before commencing its investigation in the general revenue proceeding and had started to consider environmental issues in the former investigation before the District Court's decision. Thus, even if the NEPA were read to require the ICC to address comprehensively the underlying rate structure at least once before approving a facially neutral general rate increase, no purpose could have been served by ordering it to explore the discrimination question in the general revenue proceeding when it was already doing so in a more appropriate proceeding. Pp. 324-325.
(c) The District Court's decision to deem the 'federal action' involved in the general revenue proceeding to include an implicit approval of the underlying rate structure was inaccurate and led it to an entirely unwarranted intrusion into an apparently sensible decision by the ICC to take such more limited 'action' in that proceeding and to undertake the larger action in a separate proceeding better suited to the task. P. 326.
(d) In view of the scope of the 'federal action' being taken by the ICC in the general revenue proceeding, the District Court was incorrect in holding that the final impact statement inadequately explored the underlying rate structure and the extent to which the use of recyclables will be affected by the rate structure. Pp. 326-328.
371 F.Supp. 1291, reversed.
Charles A. Horsky, Washington, D.C., for appellants Aberdeen and Rockfish Railroad Co. and others.
A. Raymond Randolph, Jr., Washington, D.C., for appellants United States and others.
John F. Hellegers, Washington, D.C., for appellees SCRAP and others.
Edward L. Merrigan, Washington, D.C., for appellee National Association of Recycling Industries, Inc.
E. Bruce Butler, Washington, D.C., for appellee Institute of Scrap Iron and Steel, Inc.
Mr. Justice WHITE delivered the opinion of the Court.
1
The Nation's railroads, the United States, and the Interstate Commerce Commission (ICC) appeal from the judgment of a three-judge federal court which set aside an ICC order terminating a general revenue proceeding without declaring unlawful certain rate increases filed by the Nation's railroads with the ICC. The order directed the ICC to reopen the proceeding, prepare a better environmental impact statement under § 102(2)(C) of the National Environmental Policy Act (NEPA), 83 Stat. 853, 42 U.S.C. § 4332(2)(C), hold hearings, and reconsider, in light of the new impact statement, its determination not to declare the rate increases applicable to recyclables1 unlawful.
2
The impact statement involved is that required by § 102(2) of NEPA, 42 U.S.C. § 4332(2), set out in the margin.2 The judgment was based on the three-judge court's view that the 150-printed-page impact statement prepared by the ICC in connection with the general revenue proceeding insufficiently considered certain environmental issues and thus failed to comply with the mandate of subsection (2)(C) of § 102 of NEPA; and that failure of the ICC to hold hearings after preparing a draft of the statement violated the command of the statute that the statement 'accompany the proposal through the existing agency review processes.' Because we believe that the District Court erred in several respects, we reverse.
3
* This lawsuit has a lengthy history, a brief summary of which is necessary to an understanding of the issues presented by this appeal. In December 1971, citing sharply increasing costs and decreasing or negative profits, substantially all of the Nation's railroads collectively proposed to file tariffs increasing their freight rates by 2.5% across the board. The 'surcharge' was stated to be temporary and was to be followed by a filing for larger, somewhat selective rate increases. Finding that the railroads had a critical and immediate need for revenue, the ICC declined to exercise its power to suspend proposed rate increases under 24 Stat. 384, as amended, 49 U.S.C. § 15(7), and the surcharge became effective on February 5, 1972. On March 17, 1972, the railroads filed their selective-increase proposal, which would result in an average increase across the board of 4.1% over the rates antedating the surcharge—these new selective increases to become effective on May 1, 1972. Meanwhile the ICC had directed the railroads to file an environmental impact statement with respect to the rate increases and to serve it on interested parties. This was done on January 3, 1972, and those served included appellee SCRAP. Numerous comments were received in response to this statement. On April 24, 1972, the ICC suspended the effectiveness of the selective increases for the maximum allowable seven-month period under 49 U.S.C. § 15(7), until November 30, 1972, pending its investigation, styled Ex parte 281, into their lawfulness. On March 6, 1972, the ICC served a brief draft environmental impact statement of its own on all parties to Ex parte 281, including appellees and the Council on Environmental Quality (CEQ), the Environmental Protection Agency (EPA), and the Department of Transportation. The statement discussed environmental consequences of rate increases with respect to recyclables in general terms and concluded that the ICC had no basis yet to believe that the environment would be substantially affected thereby.
4
Thereafter, while the selective rates were suspended but the surcharge was being collected, a group of law students—(SCRAP)—and other environmental groups filed the instant lawsuit alleging that the ICC had made a decision not to suspend the 2.5% surcharge pending its investigation—which decision would have a substantial effect on the environment—without preparing an environmental impact statement or considering environmental issues, as required by the NEPA. Appellees claimed that the pre-existing rate structure discriminated against recyclables and in favor of virgin materials, and that the across-the-board rate surcharge exacerbated this situation with the unfortunate consequence to the environment that use of recyclable materials would be inhibited and use of virgin materials encouraged. The complaint sought to compel the ICC to suspend the rate surcharge and to enjoin the railroads from collecting it.
5
A three-judge court was therefore convened under 28 U.S.C. § 2325, which has since been repealed. Relief was granted. On direct appeal under 28 U.S.C. § 1253, this Court reversed, holding that under the doctrine of Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52 (1963), 49 U.S.C. § 15(7), lodges in the ICC exclusive power to suspend rate increases pending final determination of their lawfulness. United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973) (SCRAP I).
6
Meanwhile, on October 4, 1972, the ICC issued a final report dated September 27, 1972, declining, in the main, to declare unlawful the selective rate increases, and terminating the suspension order previously entered. The surcharge was canceled, those increases having been subsumed in the selective increases. The report, which was prepared after extensive written responses to the draft environmental impact statement had been submitted by various Government and nongovernment agencies and after oral hearings had been held, covers 92 printed pages, 17 of which deal with the question whether the railroads were in need of additional revenue; 15 of which deal with general environmental consequences which might flow from the increases; and 36 of which deal with the environmental consequences to flow from specific increases in rates on specific recyclable materials.
7
The report noted that the 'principal issue' in a general revenue proceeding is whether the railroads are in need of additional revenue; and concluded that the railroads had demonstrated overwhelmingly that they were. It then stated that there were two possible adverse affects on the environment which might flow from failure to declare the increases unlawful. First, the increase in rail rates might divert traffic to trucks, which are allegedly heavier polluters than trains. Second, the increase in rates for recyclables might discourage their use resulting in increased solid waste—disposal of which creates environmental problems—and an accelerated depletion of the country's natural resources. The danger of diversion to truck traffic was considered insubstantial for several reasons, among which were the fact that truck rates had increased due to similar increases in costs and the fact that the rate increases sought by the railroads were permissive and would not be used with respect to commodities which would be diverted to trucks. Moreover, any danger of diversion was plainly outweighed by the fact that the railroads needed money and would eventually go out of business without the increases.3
8
With respect to recyclables, the report emphasized that time is of the essence in general revenue proceedings in light of the claim of need by the railroads for immediate revenue and that their entitlement to the overall increase usually follows from a showing of such need. The consideration of other factors is therefore necessarily abbreviated and their further analysis is postponed to specialized proceedings more appropriate for their in-depth consideration, such as proceedings incident to individual complaints filed under 49 U.S.C. § 13(1) asserting that a particular rate or group of rates, such as rates on recyclables, are unjust and unreasonable, too high in relation to other rates, or otherwise illegal under the applicable law. Indeed, the report pointed out that the ICC had itself begun Ex parte 270, a separate comprehensive investigation into the entire rate structure and was there focusing on the question whether the rate pattern interfered with the Government's environmental program. The report noted that there were limits on the extent to which the applicable provisions of the Interstate Commerce Act would permit special rates for recyclables or allow the ICC to require the railroads to subsidize their transportation. Applying standard ratemaking criteria, the report rejected, on the basis of the information then before it, the claim that the underlying rate structure discriminated against recyclables. It also concluded that the use of recyclables, particularly ferrous scrap, was not responsive to rate increases particularly when accompanied by similar rate increases applicable to competing virgin materials. The ICC ordered a 3% ceiling on increases with respect to some, but not all,4 recyclables, and concluded that there was no reason for finally determining in the context of a general revenue proceeding whether the rate structure, with or without the scheduled increases, was unjust and unreasonable or illegally discriminatory. The report also stated that having given extensive consideration to environmental factors, SCRAP I, 412 U.S., at 683, 93 S.Ct. at 2413—2414 n. 11, the ICC would not file a separate, formal environmental impact statement under § 102(2)(C) of the NEPA.
9
The report indicated that the increases on nonrecyclables would become effective on 15 days' notice from the railroads and that the increases on recyclables would become effective on 35 days' notice. The increased period for recyclables was set so that interested parties would have the opportunity to comment on the report. The ICC issued an order to that effect on October 4, 1972.
10
In response to comments which were filed by several parties, the ICC reopened Ex parte 281 on November 7, 1972, to reconsider the environmental effects of the new rates on recyclables in light of a fuller written consideration of these issues. The new rates on recyclables were suspended with the consent of the railroads for an additional seven months until June 10, 1973.
11
On March 13, 1973, the ICC served an expanded draft environmental impact statement. Comments were thereafter received from the EPA, the CEQ, the Department of Transportation, all of the appellees herein, and others. On May 1, 1973, the ICC issued a final impact statement covering 150 printed pages, with an additional 21-page bibliography. The main difference between the October 4, 1972, report and the impact statement was that the latter substantially expanded on the discussion of the underlying rate structure and the effect of rate increases on each of the recycling industries. With respect to the underlying rate structure, the conclusion, in the light of the then-available information and under the controlling ratemaking principles, was that it did not discriminate. The statement examined factors affecting the price of each recyclable commodity and factors other than price affecting the demand for such commodities. It was again concluded that freight rate increases affect such demand only negligibly. The ICC re-emphasized that in general revenue proceedings analysis might fall short of what might transpire in other kinds of proceedings under 49 U.S.C. § 13 or in the Commission's own Ex parte 270, to which attention was again called.5 The conclusion of the ICC was that its order of October 4 had been correct; Ex parte 281 was therefore finally terminated without declaring any of the proposed rates unlawful except as previously provided in the October 4 order.6
12
On May 30, 1973, 11 days before the increased rates on recyclables were to become effective, appellees SCRAP and EDF filed a motion—apparently in the context of their earlier filed complaint against the surcharge—for a preliminary injunction restraining the implementation of the freight rate increases with respect to recyclables. On June 7, 1973, the three-judge court entered an order temporarily enjoining the railroads from collecting the rates, declaring, without any explanation whatever, that such order would 'not substantially harm the railroads.'7 The railroads and the ICC filed appeals. On June 8, 1973, The Chief Justice stayed the order upon the railroads' motion. On June 25, 1973, the full Court declined to vacate the stay on motion by appellees SCRAP and EDF, 413 U.S. 917, 93 S.Ct. 3024, 37 L.Ed.2d 1039. The increases in recyclables were then placed into effect and continue in effect today. On November 19, 1973, this Court vacated the preliminary injunction and remanded the cases for reconsideration in light of Atchison, T. & S.F.R. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 93 S.Ct. 2367, 37 L.Ed.2d 350 (1973). 414 U.S. 1035, 94 S.Ct. 532, 38 L.Ed.2d 326.8
13
Meanwhile, appellees had filed motions for summary judgment before the three-judge court seeking (a) a declaration that the ICC's orders declining to declare the rate increases unlawful were themselves unlawful because the environmental impact statement was inadequate, and an order directing the ICC to reconsider its decision in light of a better impact statement; and (b) a permanent injunction restraining collection of the rate increases on recyclables by the railroads. Over a dissent, the District Court vacated the order of the ICC terminating Ex parte 281 without declaring the increases unlawful and ordered it to prepare a new impact statement, hold hearings on the statement, and reconsider its decision not to find the rates unlawful. It declined to enjoin collection of the rates in the interim.
14
The court first rejected the applicability of the line of lower-court cases, beginning with Algoma Coal & Coke Co. v. United States, 11 F.Supp. 487 (ED Va.1935), holding decisions of the ICC not to declare proposed increased rates unlawful in general revenue proceedings to be unreviewable. The court noted that this Court had divided evenly in 400 U.S. 73, 91 S.Ct. 259, 27 L.Ed.2d 212 (1970) in affirming, Atlantic City Electric Co. v. United States, 306 F.Supp. 338 (SDNY 1969), and Alabama Power Co. v. United States, 316 F.Supp. 337 (DC 1970), and that the rule against reviewability of general revenue proceedings was therefore of questionale vitality—especially where the issue presented for review is not the reasonableness of a particular rate but the general question whether the railroads' revenue needs justify environmental costs. However, the court rested its holding on the ground that this is a NEPA case. It said that unlike shippers, who may properly be made to exhaust their remedies under 49 U.S.C. §§ 13 and 15 by seeking refunds, environmental groups may not have such remedies. Moreover, environmental issues are better considered at a single general revenue proceeding than at countless individual § 13 proceedings and their resolution must be reviewed promptly in order to avoid irreparable damage to the environment. Environmental degradation occurring while a § 13 proceeding is pending is irreparable, unlike injury to shippers which can be cured by reparations.
15
The court then found that the ICC had failed to comply with NEPA in two respects. First, no oral hearing had been held after circulation of the second draft impact statement on March 13, 1973, and before the preparation of the final impact statement. The court conceded that NEPA does not require the holding of hearings which the agency does not otherwise hold; and that the ICC is not required to hold hearings in a general revenue proceeding, United States v. Florida East Coast R. Co., 410 U.S. 224, 93 S.Ct. 810, 35 L.Ed.2d 223 (1973). However, it ruled that since the ICC held an oral hearing before adopting its October 4, 1972 report, such a hearing was therefore presumptively an 'existing agency review process' and one should have been held before adopting the final environmental impact statement on May 1, 1973. Moreover, the ICC had simply reconsidered its October 4, 1972, decision in light of the impact statement, instead of starting all over again from the beginning. In order to start over again, it had to consider its impact statement at an oral hearing. Second, the court concluded that the report did not give 'good faith' consideration to environmental factors. The court viewed the tone of the impact statement as 'combative, defensive and advocatory'; it criticized the ICC for refusing to find in NEPA a congressional expression that it should invalidate rates otherwise just and reasonable on the ground that the rates would negatively affect the environment; and it criticized the ICC for refusing to change its analysis even after other Government agencies commented unfavorably on the statement. It held the statement deficient in two respects. First, it held that the statement did not sufficiently analyze the underlying rate structure and that the ICC had instead considered only the impact of the increase involved in Ex parte 281. Second, the ICC should have more extensively explored the quantitative response of recycling businesses to freight rates by conducting a 'rigorous price sensitivity study' and by analyzing whether industry would develop new technology to utilize secondary materials if encouraged to do so by lower transportation costs.
16
The court then vacated the orders of the ICC, which had terminated Ex parte 281 without declaring the rate increases unlawful, and ordered the ICC to prepare a new impact statement analyzing the underlying rate structure, the elasticity of demand for recyclables, and the probability of encouraging new technology in the use of scrap. It ordered the ICC to hold hearings after circulating the new impact statement and to fully consider anew in light of the new statement and the hearing whether the increased rates should be declared unlawful. The court declined to enjoin the collection of the rates, while claiming that it could have, and probably should have done so, notwithstanding Atchison, T & S.F.R. Co. v. Wichita Bd. of Trade, supra.9
17
The railroads appeal, claiming that the District Court had no jurisdiction over this case, and that the ICC had, in any event, fully complied with NEPA. The ICC and the United States appeal, claiming only that the ICC had fully complied with NEPA. We noted probable jurisdiction in both cases. 419 U.S. 822, 95 S.Ct. 38, 42 L.Ed.2d 46 (1974).
II
18
At the outset we face a challenge to our appellate jurisdiction. Under 28 U.S.C. § 2325, now repealed,10 a three-judge court was required to grant '(a)n interlocutory or permanent injunction restraining the enforcement, operation or execution, in whole or in part, of any order of the Interstate Commerce Commission.' Title 28 U.S.C. § 1253 gives us jurisdiction to determine appeals from 'an order granting or denying . . . an . . . injunction in and civil action . . . required . . . to be heard and determined by a district court of three judges.' All parties agree that the action below was a civil action required to be heard and determined by a three-judge court, for appellees sought an injunction restraining collection of the increased rates which the ICC had refused to declare unlawful.
19
The question under the statutory language is whether the order being appealed from is an 'injunction' within the meaning of that word as used in § 1253. Appellees claim that since the court below declined to restrain collection of the increased rates, its order was not an injunction but a declaratory judgment not appealable under § 1253, e.g., Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 1763, 26 L.Ed.2d 378 (1970); Gunn v. University Committee, 399 U.S. 383, 90 S.Ct. 2013, 26 L.Ed.2d 684 (1970). But the District Court's order not only declared that the ICC had failed to comply with NEPA, it also directed the ICC to perform certain acts. The order was plainly cast in injunctive terms. The order 'directs' the ICC to reopen Ex parte 281 and to conduct further proceedings which 'must' include preparation of an impact statement dealing with enumerated issues. In declining to restrain collection of the rates, the court said it was declining to grant 'to plaintiffs additional injunctive relief' (emphasis added). Were the order of the District Court left undisturbed, the ICC would hardly be free to decline to prepare a new impact statement or to conduct further proceedings. The order would have as coercive an effect on the ICC, its members, and its staff, as could any order of a district court in a proceeding to review an order of the ICC. This is enough to bring the order of the court below within the meaning of the word 'injunction,' as used in § 1253.11
20
It is also apparent that the District Court's injunction restrained 'the enforcement, operation or execution' of the order of the ICC within the meaning of § 2325 and could therefore have been issued only by a three-judge court. The ICC order of October 4, 1972, reaffirmed on May 1, 1973, declined to declare the general rate increase unlawful, or with minor exceptions to interfere with its collection. That order terminated Ex parte 281. The District Court, although it did not enjoin collection of the increased rates, emasculated the ICC order in major respects. Contrary to the order of the ICC, Ex parte 281 was to be reopened and further proceedings had with respect to the legalityn of the increased rates. Contrary to the ICC order, the environmental impact statement of the ICC was declared insufficient and a new statement ordered prepared. The District Court's order, as we have said, was in injunctive terms; and it is not tenable to assert that it did not interfere with the operative effect of the ICC order of May 1, 1973.12
III
21
The railroads, but not the United States or the ICC, argue that the District Court had no jurisdiction to review the decision of the ICC, made in a general revenue proceeding, not to declare the increased rates unlawful. The argument is supported by a long line of District Court decisions; see, e.g., Algoma Coal & Coke Co. v. United States, 11 F.Supp. 487 (ED Va.1935); Koppers Co. v. United States, 132 F.Supp. 159 (WD Pa.1955); Florida Citrus Comm'n v. United States, 144 F.Supp. 517 (ND Fla.1956), aff'd per curiam, 352 U.S. 1021, 77 S.Ct. 589, 1 L.Ed.2d 595 (1957); Atlantic City Electric Co. v. United States, 306 F.Supp. 338 (SDNY 1969), and Alabama Power Co. v. United States, 316 F.Supp. 337 (DC 1969), both aff'd by an equally divided Court, 400 U.S. 73, 91 S.Ct. 259, 27 L.Ed.2d 212 (1970); Electronic Industries Assn. v. United States, 310 F.Supp. 1286 (DC 1970), aff'd, 401 U.S. 967, 91 S.Ct. 1188, 28 L.Ed.2d 318 (1971); and its correctness in its application to this case turns in part on an understanding of just what a general revenue proceeding is.
22
* Under the Interstate Commerce Act, the initiative in setting rates remains with the railroads. See SCRAP I, 412 U.S., at 672, 93 S.Ct. at 2408. The ICC has the power, after exercise of this initiative by the railroads, and after an investigation, either upon its own initiative or upon complaint by an interested party, to declare a rate unlawful if it finds that the rate is unjust, unreasonable, preferential, discriminatory, or otherwise in violation of the Act. 49 U.S.C. §§ 13 and 15. The ICC, and only the ICC, SCRAP I, supra, also has the power to suspend a new rate for up to seven months pending its determination of lawfulness. 49 U.S.C. § 15(7).13 Where the increase initiated by a railroad relates only to a single commodity, and where the ICC conducts an investigation, the investigation will be a thorough inquiry into the justness and reasonableness of that particular rate. However, the reason for increasing a particular rate may be a reason, such as across-the-board cost increases, which dictates an increase in virtually all rates by a large number of railroads. In those cases, the railroads have, in the exercise of their initiative, proposed across-the-board increases applicable to all or nearly all of their rates. This Court in New England Divisions Case, 261 U.S. 184, 196—198, 43 S.Ct. 270, 275—276, (1923), recognizing the practical problems which the ICC faced in such a situation, permitted it to find the new rates lawful after taking proof relating not to any particular rate but to the reasonableness of the increases in general. In United States v. Louisiana, 290 U.S. 70, 76 78, 54 S.Ct. 28, 31—32, 78 L.Ed. 181 (1933), this Court approved of an ICC procedure whereby it permitted an across-the-board rate increase to become effective after investigation—by declining to declare it unlawful, and increasing previously set maxima where necessary—without a finding that each new rate was lawful and without itself prescribing any of the new rates.14 This Court, after pointing out the practical impossibility of inquiring into the reasonableness of each rate, stated:
23
'(I)n performing the duty broadly to increase carrier revenue, it is enough if the Commission, in the first instance, makes such inquiry and investigation as would enable it to say that the prescribed increases when applied to members of the group will generally not exceeding reasonable maximum.' Id., at 76—77, 54 S.Ct., at 32. (Emphasis added.)
The Court went on to say:
24
'The extent of this inquiry and the detail of investigation can not be marked by this Court with certainty. The size of the group dealt with, the nature of the traffic, the urgency of the relief demanded, these and other factors should condition the Commission's procedure in each case. But with proper procedure, the ultimate finding that the rates as generally applied are reasonable, supported by evidence and accompanied by suitable reservation of the rights of all interested parties to secure modification of any particular rate which, when challenged, is found to be unjust or unreasonable, complies with the statute. The requirement that increase of rates by Commission action is to be in the exercise of its power to prescribe reasonable rates is thus observed but in conformity to the administrative necessities which the proviso contemplates.' Id., at 77, 54 S.Ct., at 32.
25
Proceedings, such as that described in United States v. Louisiana, in which the ICC has been called upon to decide whether to prevent a substantially across-the-board rate increase, have become known as general revenue proceedings. The ICC's inquiry has tended to focus on whether the railroads are really in need of increased revenues and has tended to leave for individual rate or refund proceedings under 49 U.S.C. §§ 13 and 15 the problem of determining just which commodities on which runs should bear the increased burden, and to what extent. The ICC is careful to leave such refund claims open by including in the general revenue order a statement such as the one included here:
26
'Thus, we do not attempt to determine whether the particular rates which result from the increases are maximum reasonable rates, nor does the order constitute a prescription of rates within the meaning of the decision in Arizona Grocery Co. v. Atchison, T. & S.F. Ry. Co., 284 U.S. 370, 52 S.Ct. 183, 76 L.Ed. 348. If individual rates or groups of rates are believed to be unjust and unreasonable, a shipper or other interested persons has (sic) an administrative remedy available in sections 13 and 15 of the Interstate Commerce Act, 49 U.S.C. §§ 13 and 15.' Ex parte No. 281, Increased Freight Rates and Charges, 1972 (Environmental Matters), 346 I.C.C. 88, 103 (1973).
27
Of course, the ICC has the power in a general revenue proceeding to declare the new rates unlawful and disapprove the increase. It could also, if it chose declare some of the rates discriminatory, unreasonable, or otherwise unlawful; and it could itself affirmatively approve all or some of the rates as just and reasonable. But under the Louisiana case, the general rule has been that the ICC may confine its attention in general revenue proceedings almost entirely to the need for revenue and to any other factors that relate to the legality of the general increase as a whole; and it follows a fortiori that if attention is given to other issues, that attention may be of a limited nature.
28
The instant proceeding, in which substantially all of this country's railroads sought increases in substantially all of their rates based upon alleged cost increases which placed them in a financial crisis, plainly qualifies as a general revenue proceeding. Environmental issues aside, the ICC, true to form, devoted most of its investigation to the issue of the railroads' revenue needs, but did inquire to some extent into the reasonableness of the increases as applied to certain broad categroeis of charges.
29
In Algoma Coal & Coke Co. v. United States, 11 F.Supp. 487 (ED Va.1935), shippers of coal sought review in a three-judge court of the decision of the ICC in a general revenue proceeding not to declare the proposed increases unlawful insofar as they applied to coal. The claim was that the increased rates on coal were unjust and unreasonable. The court declined to set aside the rate increases. It pointed out that the ICC's order was permissive only—it simply declined to prevent the rate increases.15 It then stated that the ICC had not yet decided whether the increased rates on coal specifically were just and reasonable but had decided only that the railroad's revenue needs rendered the general increase reasonable; and that the plaintiff's had a procedure available to them—a complaint under § 13 seeking a refund and a declaration of unjustness or unreasonableness from the ICC—in which it could cause the ICC to decide whether the new coal rates were just and reasonable. As the ICC had not yet addressed the question presented by the plaintiffs to the court, the court declined to decide it.16 The court also held that the decision of the ICC was in essence one not to suspend the rate increases and that the courts had no power to suspend if the ICC did not do so. Board of Railroad Comm'rs v. Great Northern R. Co., 281 U.S. 412, 50 S.Ct. 391, 74 L.Ed. 936 (1930). See also SCRAP I, supra.
30
Since the Algoma decision, shippers seeking to undo, with respect to particular commodities, a decision by the ICC in a general revenue proceeding not to declare rate increases unlawful, have been uniformly unsuccessful. In those cases in which the shipper claimed only that the increase on a particular commodity was unjust or unreasonable—without addressing the question whether a general increase of some sort was justified—the courts have declined to rule on the issue posed for the reason that the ICC had not yet addressed it. Koppers Co. v. United States, 132 F.Supp. 159 (WD Pa.1955); Florida Citrus Comm'n v. United States, 144 F.Supp. 517 (ND Fla.1956); Electronic Industries Assn. v. United States, 310 F.Supp. 1286 (DC 1970). In those cases in which shippers have attacked the ICC's decision that rate increases in general were justified, the courts, going beyond the Algoma decision, have declined review on the ground that the shipper had not exhausted his administrative remedies under §§ 13 and 15. Atlantic City Electric Co. v. United States, 306 F.Supp. 338 (SDNY 1969), and Alabama Power Co. v. United States, 316 F.Supp. 337 (DC 1969), both aff'd by an equally divided Court, 400 U.S. 73, 91 S.Ct. 259, 27 L.Ed.2d 212 (1970).
B
31
The railroads claim that the decision of the court below violates the rule of the cases discussed above that decisions by the ICC in general revenue proceedings are unreviewable. First, the railroads argue that the decision in a general revenue proceeding not to declare rates unlawful is just as much an interim decision—since it does not finally decide the lawfulness of any particular rate—as is a decision not to suspend a particular rate pending investigation. See Algoma Coal & Coke Co. v. United States, supra. Therefore, review of that decision is squarely banned by the Court's holding in SCRAP I that the courts have no power to suspend, or to overturn the ICC's decision not to suspend, rates pending the ICC's final determination of their lawfulness. Second, treating the decision of the court below as though it were a substantive review of the ICC's order—addressed to the question whether the record supported the ICC's decision not to suspend the rates as to recyclables—the railroads contend that the court below reviewed an issue not yet decided finally by the ICC in violation of settled principles of finality and exhaustion of administrative remedies.17 More generally, the railroads attack the conclusion of the District Court that the rule against review of general revenue proceedings does not apply in 'NEPA cases' as being squarely contrary to this Court's decision in SCRAP I that NEPA does not effect a change in pre-existing jurisdictional rules. We disagree with each of these arguments.
32
The railroads' first argument fails because the court below did not enjoin collection of the rates. The rule of Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52 (1963), and SCRAP I is one barring courts from entering disruptive injunctions against collection of rates not finally declared lawful or unlawful by the ICC. No such injunction is involved here. Thus even if a decision not to declare rates unlawful in a general revenue proceeding is no more final for purposes of the rule of SCRAP I than a decision not to suspend an individual rate pending investigation, the rule of SCRAP I is not applicable here.
33
The railroads' second argument fails because, unlike the issue of the reasonableness of a particular rate, and arguably unlike the issue of the reasonableness of a general increase,18 the issue addressed by the court below had already been finally decided by the ICC and the relief sought from and granted by the court below could not have been obtained from the ICC in a subsequent § 13 proceeding. The issue decided by the District Court was whether under NEPA the ICC had given adequate consideration to environmental factors in the general revenue proceeding. When the ICC terminated the general revenue proceeding, the one thing which it must certainly have finally decided was that it need give no further consideration to environmental factors in that proceeding; and no relief of the type sought from the District Court—i.e., further consideration of environmental matters by the agency in that proceeding—could thereafter be obtained from the agency. Whatever issues would remain open at a § 13 proceeding, one which would not remain open no matter who filed the complaint—is whether or not sufficient consideration had been given to environmental factors at the general revenue proceeding. Of course, the ICC would give attention in the § 13 proceeding to whatever environmental factors it felt NEPA required at that proceeding.
34
Although the railroads claim that a general revenue proceeding is an interim proceeding—the final one being a § 13 proceeding at which particular rates are adjudicated just and reasonable—for ratemaking purposes, they do not claim that it has a similar status for NEPA purposes. All parties now agree that a general revenue proceeding is itself a 'major federal action,' independent of any later adjudication of the reasonableness of particular rates, requiring its own final environmental impact statement so long as the proceeding has a substantial effect on the environment. This conclusion is clearly correct. Thus, whatever consideration of environmental matters is necessary or proper at the general revenue proceeding is over and done with whem that proceeding terminates. The interim nature of a general revenue proceeding may be relevant to the question of the extent of the consideration of environmental factors required, but its nature does not prevent review of the question, finally decided by the ICC, whether the environmental impact statement prepared for that proceeding is adequate.
35
Our holding here is in no way inconsistent with our conclusion in SCRAP I that NEPA does not repeal by implication any other statute. We do not hold that NEPA supplies the courts with otherwise nonexistent power to prevent collection of rates; and we do not hold that NEPA permits review of the question of the justness of reasonableness of rate increases, either general or specific, at any earlier time than would otherwise have been permissible. NEPA does create a discrete procedural obligation on Government agencies to give written consideration of environmental issues in connection with certain major federal actions and a right of action in adversely affected parties to enforce that obligation. When agency or departmental consideration of environmental factors in connection with that 'federal action' is complete, notions of finality and exhaustion do not stand in the way of judicial review of the adequacy of such consideration, even though other aspects of the rate increase are not ripe for review.
IV
36
We agree with appellants that the District Court erred in deciding that the oral hearing which the ICC chose to hold prior to its October 4, 1972, order was an 'existing agency review process' during which a final draft environmental impact statement (i.e., the one circulated in March 1973) should have been available and that it also erred in deciding that the ICC should have 'started over again' after it decided to prepare a formal impact statement.
37
NEPA provides that 'such statement . . . shall accompany the proposal through the existing agency review processes' (emphasis added). This sentence does not, contrary to the District Court opinion, affect the time when the 'statement' must be prepared. It simply says what must be done with the 'statement' once it is prepared—it must accompany the 'proposal.' The 'statement' referred to is the one required to be included 'in every recommendation or report on proposals for . . . major Federal actions significantly affecting the quality of the human environment' and is apparently the final impact statement, for no other kind of statement is mentioned in the statute. Under this sentence of the statute, the time at which the agency must prepare the final 'statement' is the time at which it makes a recommendation or report on a proposal for federal action. Where an agency initiates federal action by publishing a proposal and then holding hearings on the porposal, the statute would appear to require an impact statement to be included in the proposal and to be considered at the hearing. Here, however, until the October 4, 1972, report, the ICC had made no proposal, recommendation, or report. The only proposal was the proposed new rates filed by the railroads.19 Thus, the earliest time at which the statute required a statement was the time of the ICC's report of October 4, 1972—some time after the oral hearing.20
38
The statute also requires that agencies consult with other environmentally expert agencies 'prior to making any detailed statement'; and CEQ guidelines provide:
39
'To the fullest extent possible, all . . . hearings (on proposed agency action) shall include consideration of the environmental aspects of the proposed action. . . . Agencies should make any draft environmental (impact) statements to be issued available to the public at least fifteen (15) days prior to the time of such hearings.' 40 CFR § 1500.7(d). (Emphasis added.)
40
Such consultation occurred here from the outset; environmental issues pervaded the hearings held—both oral and written; and all draft impact statements in existence were circulated before the hearings. Procedurally, NEPA was thus thoroughly complied with through October 4, 1972.
41
Assuming that the ICC erred in failing to prepare a separate formal environmental impact statement to accompany its October 4, 1972, report or that the consideration given to environmental factors in that report was inadequate, the ICC need not have 'started over again.' To the extent that the District Court's conclusion to the contrary is based on its belief that the draft statement of March 1973 had to be considered at a hearing, it is incorrect for the reasons stated above. To the extent that it is based on the District Court's belief that the ICC did not in good faith reconsider its October 4, 1973 order in light of the impact statement, the District Court's decision is without support in the record. The ICC was in as good a position to correct a statutory error by integrating environmental factors into its reopened Ex parte 281 and into its decision in May 1973, as it would have been if the October 4, 1972, report had never been written; this it proceeded to do and we perceive no basis for affirming the District Court's decision in this respect.
V
42
Emphasizing again the nonfinal and limited nature of the decision made by the ICC at a general revenue proceeding, the railroads and the ICC argue that the District Court erred in concluding that the environmental impact statement itself was deficient. They claim that throughout the general revenue proceeding the Commission gave environmental issues the 'hard look' which is required by NEPA, Natural Resources Defense Counsel, Inc. v. Morton, 148 U.S.App.D.C. 5, 16, 458 F.2d 827, 838 (1972), and that appellees and the court below simply disagreed with their decision not to prevent the increase on recyclables. They also emphasize the fact that they were giving continuing and more extensive attention to environmental consequences flowing from the rate structure in another proceeding, Ex parte 270, which was more appropriate to the task. We substantially agree with this position.
43
In order to decide what kind of an environmental impact statement need be prepared, it is necessary first to describe accurately the 'federal action' being taken. The action taken here was a decision—entirely nonfinal with respect to particular rates not to declare unlawful21 percentage increase which on its face applied equally to virgin and some recyclable materials and which on its face limited the increase permitted on other recyclables. As in most general revenue proceedings, the 'action' was taken in response to the railroads' claim of a financial crisis; and the inquiry, true to our decision in United States v. Louisiana, supra, was primarily into the question whether such a crisis—usually thought to entitle the railroads to the general increase—existed, leaving primarily to more appropriate future proceedings the task of answering challenges to rates on individual commodities or categories thereof.22 The point is that it is the latter question—usually involved in a general revenue proceeding only to a limited extent—which may raise the most serious environmental issues. The former question—the entitlement of the railroads to some kind of a general rate increase—raises few environmental issues and none which is claimed in this case to have been inadequately addressed in the impact statement.
44
The appellees insist that the decision not to prevent the facially neutral increases itself involves an impact on the environment when superimposed on an underlying rate structure which discriminates against recyclables.23 They claim that the underlying rate structure involved here does discriminate against recyclables with serious environmental consequences and that upon more extensive consideration of the issue, the ICC has in some part at least agreed with them and acted accordingly in subsequent general revenue proceedings.24 Accordingly, it is said, the environmental consequences flowing from a facially neutral increase must be explored in an impact statement and can only be explored by analyzing the underlying rate structure. They further argue with force and some support in the record that the ICC has been tardy in complying with NEPA, that the ICC was required to analyze the underlying rate structure only once with a view toward environmental consequences;25 that it had plenty of time and cause to do so before Ex parte 281; and that it should, therefore, not have been permitted to terminate Ex parte 281 without having done so. This argument, however, stumbles over the holding in United States v. Louisiana, supra, which gives the ICC wide discretion in deciding what issues to address in a general revenue proceeding and permits it to postpone comprehensive consideration of claims of discrimination. It loses virtually all of its force in light of the fact that the ICC had begun an investigation of the underlying rate structure in Ex parte 270 before commencing Ex parte 281 and had started devoting specific attention to environmental issues in that proceeding before the decision of the court below. Thus even if NEPA—in the face of United States v. Louisiana and the failure of the appellees to initiate a proceeding under § 13 challenging rates on recyclables were read to require the ICC to address comprehensively the underlying rate structure at least once before approval of a facially neutral general rate increase, no purpose could have been served by ordering it to thoroughly explore the question in the confined and inappropriate context of a railroad proposal for a general rate increase when it was already doing so in a more appropriate proceeding. The rate increases will remain effective in any event until such time as the ICC obtains sufficient information to declare the increase on some commodities lawful or unlawful.26
45
The decision of the lower court, therefore, to deem the 'federal action' involved in Ex parte 281 to include an implicit approval of the underlying rate structure was inaccurate and led it to an entirely unwarranted intrusion into an apparently sensible decision by the ICC to take much more limited 'action' in that proceeding and to undertake the larger action in a separate proceeding better suited to the task.27
46
Having defined the scope of the 'federal action' being taken in Ex parte 281, our decision of this case becomes easy. The lower court held that the environmental impact statement inadequately explored the underlying rate structure and the extent to which the use of recyclables will be affected by the rate structure. Whatever the result would have been if the ICC had been approving the entire rate structure in Ex parte 281,28 given the nature of the action taken by the ICC, the lower court was plainly incorrect.
47
A review of the record discloses that environmental issues pervaded the proceeding. In terms of time, paper, and effort on the part of the Commission, the railroads, other Government agencies, and the appellees, the environmental issues far outweighed the financial issue usually thought controlling at a general revenue proceeding. The various statements, formal and informal, expressly recognized what all agree are the important possible environmental consequences involved—increased solid waste disposal and accelerated depletion of natural resources. The statements implicitly recognized the common-sense proposition that decisions to increase rates on recyclables could deter their use. The reports explored at some length the degree to which rate changes would affect the use of several separate categories of recyclables, looking, inter alia, at past responses to rate changes and at various other factors affecting use of recyclables including technological aspects of the different recycling industries. Finally, the statements inquired, preliminarily, into the fairness of the underlying rate structure, concluding that on the basis of the information then available no discrimination could be found. Assuming that some rudimentary examination into the underlying rate structure and into the reasonableness of the new rates on particular recyclables was required, the consideration of environmental factors in connection therewith was more than adequate. Appellees' best argument is that the ICC has acquired more knowledge since Ex parte 281, and has changed its mind on a number of matters and acted accordingly. This, however, simply points up the limited nature of the decision made in Ex parte 281 and the absence of a need to reopen it.
48
Reversed.
49
Mr. Justice POWELL took no part in the consideration or decision of these cases.
50
Mr. Justice DOUGLAS, dissenting in part.
51
I agree with Parts I, II, and III of the Court's opinion that the cases are properly here and that the District Court had jurisdiction over appellees' complaint. On the merits, I would, however, affirm.
52
This litigation presents a history of foot dragging by the ICC, as other parties to proceedings before it, including other federal agencies, have attempted to prod it into compliance with the National Environmental Policy Act (NEPA). The 'final impact statement' that the Court holds adequate presents a me lange of statistics that purport to show that an increase on the transportation rates of recyclable materials will not have a significant adverse impact on the environment. The Commission's 'analysis' has been thoroughly discredited by the comments of other federal agencies, including not only the Environmental Protection Agency and the Council on Environmental Quality, whose principal concerns are environmental, but also the Department of Commerce and the General Services Administration. The Commission has responded to the adverse comments by papering over the defects they identify, rather than dealing with the substance of the deficiencies.
53
The environmental effects at stake are described in my opinion when the case was here before. United States v. SCRAP, 412 U.S. 669, 699—714, 93 S.Ct. 2405, 2422—2429, 37 L.Ed.2d 254 (1973). Appellees oppose increases on the rates for recyclables because increases in transportation costs will retard the use of recycled products and thereby contribute to further depletion of our natural resources. The Commission responded initially by asserting that an increase in transportation charges would have no effect upon the demand for scrap materials, and cited in support of this proposition statistics showing that during a multiyear period when freight rates were rising, prices of recyclables fluctuated widely and consumption generally increased. See Increased Freight Rates and Charges, 1972, 341 I.C.C. 288, 397—402 (1972). The fallacy of the Commission's argument was exposed by the Council on Environmental Quality, commenting on the price of and demand for ferrous metal scrap:
54
'(S)crap prices are determined by a number of factors operating simultaneously, among them are the aggregate demand for steel, the price and transportation costs of iron ore, the supply of scrap, as well as the transportation cost of scrap and other factors. It would be surprising indeed, if, in light of the number of factors constantly at work in the scrap market, a close and simple relationship existed between scrap price movements and freight rate changes.
55
'Nor does data which shows a constantly growing consumption of scrap despite rate increases prove that freight rate decisions are inconsequential. Growth might have been materially higher or lower had . . . rate decisions been different. What is needed in each instance is a multivariate analysis to isolate the effect of transportation costs on scrap prices and the quantity consumed.'1
56
Yet the Commission persisted in these assertions, and it failed to make the price sensitivity studies the Council recommended. See Ex parte No. 281, Increased Freight Rates and Charges, 1972, 346 I.C.C. 88, 145—149 (1973).
57
Appellees also argued to the Commission that the rate increases for recyclables exacerbated an existing discrimination against these materials in the rate structure. The Commission expressed doubt that any unjustified discrimination existed, arguing that any disparity was probably attributable to differing costs. But a Department of Transportation Study cited in the presentation made by the Environmental Protection Agency had concluded that ratios of revenue to cost were higher for certain recyclable commodities than for their virgin substitutes, causing the former to bear more than their 'share' of the cost of service. The Commission's own statistics supported this conclusion to some extent. Comparing the revenue-cost ratios for ferrous scrap and for iron ore, the Commission found that the scrap bore the lesser share of variable costs, but a greater share of all costs—fixed and variable—than did ore. Id., at 124. The Commission did not inquire further into this disparity.
58
The Court implicitly concedes the shortcomings of the Commission's analysis, relying, as the Commission did, on the prospect that the environmental issues would receive further study in Ex parte 270, a proceeding initiated to investigate the entire freight rate structure. But the NEPA commands an agency to consider environmental effects before it takes a 'major federal action,' not to relegate consideration to further proceedings after action is taken, particularly where there is no assurance that a prompt conclusion will be forthcoming. When the Commission terminated its proceedings in Ex parte 281, Ex parte 270 had been in progress for more than two years. The scope of the investigation had not been fully defined at that time, and the prospect of any prompt illumination of the environmental issues was certainly remote. The Commission took no particular steps to expedite completion of that phase of the investigation that would embrace the environmental issues controverted in Ex parte 281. Instead, the Commission was content to put aside these issues, offering a vague assurance that they would be taken up again in the course of what promised to be a protracted proceeding. Today, nearly two years later, we are not apprised of any conclusions as to environmental issues reached as a result of Ex parte 270; we do not even know whether a completion date is in sight. Meanwhile, environmental damage—irreversible damage—which appellees alleged with considerable supporting evidence may be continuing, with its magnitude unknown.
59
The NEPA is more than a technical statute of administrative procedure. It is a commitment to the preservation of our natural environment. The statute's language conveys the urgency of that task. The District Court acted responsibly when it refused to accept the Commission's representations that a complete treatment of the environmental issues was beyond its capability and therefore should not be required. One purpose of the NEPA was to force agencies to acquire expertise in environmental matters, even if attention to parochial matters in the past had not demanded this capability.2 The Court today excuses the Commission's performance. The District Court, following the spirit of the NEPA, told the Commission to do better. I would affirm its judgment.
1
The term recyclables will refer throughout this opinion to materials obtained from products which have already been put to one commercial use—for example, iron or steel obtained from a junked automobile.
2
'(A)ll agencies of the Federal Government shall—
'(A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the
environmental design arts in planning and in decisionmaking which may have an impact on man's environment;
'(B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality . . ., which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations;
'(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—
'(i) the environmental impact of the proposed action,
'(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
'(iii) alternatives to the proposed action,
'(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and
'(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
'Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes . . ..'
3
None of the appellees nor the court below fault the ICC's analysis of this problem. It has, therefore, dropped out of the case.
4
The increases with respect to ferrous scrap were not held down.
5
Following the form implied by the statute, the statement included separate sections for each of the questions set forth in 42 U.S.C. §§ 4332(2)(C)(i)—(v). The statement concluded that the ICC's action would have no long-term or irreversible effects. It also concluded that, as an alternative, Congress might choose to subsidize recyclables in ways which did not place the burden of subsidies on the railroads or shippers of virgin materials.
6
Commissioner Brown felt that the statement gave ample consideration to environmental matters but that the Commission should have decided, on the basis of the statement, to declare all increases on recyclables unlawful. Commissioner Deason also dissented.
7
Under the Interstate Commerce Act, increased rates which are suspended will never be collected for the period of the suspension. Increased rates which are collected are subject to refund if later determined to be unlawful. 49 U.S.C. §§ 15(7), 13.
8
In Wichita, the ICC had approved certain increased charges proposed by the railroad. Finding the reasons given by the ICC for its approval to be inadequate to explain a departure from a long-standing rule which would have invalidated the charges, the District Court vacated the ICC's order, remanded for further proceedings, and enjoined the collection of the increased charges pending such proceedings. Seven Justices of this Court voted to reverse the granting of the injunctive relief, four on the basis of equitable considerations related to the doctrine of primary jurisdiction and three on the ground that such relief is barred by the doctrine of Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52 (1963), see discussion, supra, at 298, absent a declaration of unlawfulness by the ICC.
9
In light of the fact that the court remanded to the ICC for further proceedings as to the lawfulness of the increase, injunctive relief was precluded by SCRAP I, which held that the district courts are without power to suspend rates pending a determination of lawfulness by the ICC.
10
After February 28, 1975, review of ICC orders other than orders for the payment of money or in connection with suits to enforce ICC orders will be by courts of appeals. Pub.L. 93—584, § 5, 88 Stat. 1917.
11
Appellees argue that the order of the court below is not an injunction because it is not enforceable by contempt. They cite nothing to support this claim and we reject it. The court ordered the ICC, inter alia, to prepare another impact statement. Were the ICC to refuse to do so, the court would have no way of enforcing its order other than contempt, and it could not permit its order to be ignored. Moreover, we have repeatedly exercised jurisdiction under § 1253 over appeals from orders, unlike the one entered in this case, not cast in injunctive language but which by their terms simply 'set aside' or declined to 'set aside' orders of the ICC. Chicago, M., St. P. & P.R. Co. v. United States, 366 U.S. 745, 746, 81 S.Ct. 1630, 1631, 6 L.Ed.2d 772 (1961); Ayrshire Collieries Corp. v. United States, 331 U.S. 132, 141, 67 S.Ct. 1168, 1173, 91 L.Ed. 1391 (1947); Electronic Industries Assn. v. United States, 310 F.Supp. 1286 (DC 1970), aff'd, 401 U.S. 967, 91 S.Ct. 1188, 28 L.Ed.2d 318 (1971). Indeed, in Electronic Industries, we requested separate briefs on the question whether there was a jurisdictional difference in ICC cases between 'injunctions' and orders 'setting aside' ICC determinations and concluded that we had jurisdiction over the appeal.
12
The soundness of this conclusion appears even more clearly from the legislative history of 28 U.S.C. § 2325. Before 1948, review of ICC orders was governed by the Urgent Deficiencies Appropriations Act of 1913. 38 Stat. 220. It provided in part:
'No interlocutory injunction suspending or restraining the enforcement, operation, or execution of, or setting aside, in while or in part, any order made or entered by the Interstate Commerce Commission shall be issued or granted by any district court of the United States, or by any judge thereof, or by any circuit judge acting as district judge, unless the application for the same shall be presented to a circuit or district judge, and shall be heard and determined by three judges, of whom at least one shall be a circuit judge, and unless a majority of said three judges shall concur in granting such application . . . and upon the final hearing of any suit brought to suspend or set aside, in whole or in part, any order of said commission the same requirement as to judges and the same procedure as to expedition and appeal shall apply.' (Emphasis added.)
As can be seen, the three-judge requirement applied to orders 'setting aside' an order of the ICC without in terms requiring as a prerequisite that the enforcement, operation, or execution of the order be restrained. In 1948, as part of the revision and codification of Title 28 and its enactment into positive law, the Urgent Deficiencies Appropriations Act was replaced by 28 U.S.C. §§ 2321—2325. The reviser's notes, which are authoritative in the construction of the 1948 revision, United States v. National City Lines, 337 U.S. 78, 81—82, 69 S.Ct. 955, 956, 957, 93 L.Ed. 1226 (1949); Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368, 376 n. 12, 69 S.Ct. 606, 611, 93 L.Ed. 741 (1949), state with respect to 28 U.S.C. § 2325, simply that it derives from 'title 28, U.S.C., 1940 ed., § 47 (Oct. 22, 1913, ch. 32, 38 Stat. 220),' which is the Urgent Deficiencies Appropriations Act. Under the long-standing principle of United States v. Ryder, 110 U.S. 729, 740, 4 S.Ct. 196, 201, 28 L.Ed. 308 (1884), it 'will not be inferred that the legislature, in revising and consolidating the laws, intended to change their policy, unless such intention be clearly expressed.' No such intent is expressed here, and in our view 28 U.S.C. § 2325 required three judges for entering all orders for which they were required under the Urgent Deficiencies Appropriations Act, which includes orders setting aside ICC orders. In other words, an order 'setting aside' an ICC order inevitably restrains its 'enforcement, operation or execution,' within the meaning of § 2325, now repealed.
At oral argument, SCRAP contended that under United States v. Griffin, 303 U.S. 226, 233, 58 S.Ct. 601, 604, 82 L.Ed. 764 (1938), the Urgent Deficiencies Appropriations Act did not permit review 'to set aside every kind of order issued by the Commission' and in particular did not permit review of an order such as the one set aside in this case which simply involved a refusal by the Commission to change the existing status. Id., at 234, 58 S.Ct. at 605. Insofar as it rested on the negative-order doctrine of Procter & Gamble Co. v. United States, 225 U.S. 282, 32 S.Ct. 761, 56 L.Ed. 1091 (1912), Griffin is no longer the law. United States v. Jones, 336 U.S. 641, 647, 69 S.Ct. 787, 791, 93 L.Ed. 938 (1949); Rochester Tel. Corp. v. United States, 307 U.S. 125, 145, 59 S.Ct. 754, 764, 83 L.Ed. 1147 (1939). Insofar as Griffin was based on the notion that the Urgent Deficiencies Appropriations Act does not apply to challenges to ICC orders entered under the Railway Mail Pay Act, which are in essence suits for money, see United States v. ICC, 337 U.S. 426, 442, 69 S.Ct. 1410, 1419, 93 L.Ed. 1451 (1949), against the United States, it has no application to this case.
13
Failure to suspend does not always do irreparable harm to shippers who pay the increased rates. Unless the ICC has previously exercised its ancillary power to set rates, or prescribe their maxima or minima, Arizona Grocery Co. v. Atchison, T. & S.F.R. Co., 284 U.S. 370, 52 S.Ct. 183, 76 L.Ed. 348 (1932), a shipper may always obtain a refund if he establishes that rates collected after refusal to suspend were unlawful. 49 U.S.C. § 13(1).
14
To prescribe the new rates would be to cut off refund claims by injured shippers. Arizona Grocery Co. v. Atchison, T. & S.F.R. Co., supra.
15
Insofar as the court's decision rested on the fact that the ICC's decision was a negative one, it is inconsistent with Rochester Tel Corp. v. United States, 307 U.S. 125, 59 S.Ct. 754, 83 L.Ed. 1147 (1939).
16
The court declined to term its holding, in this regard, jurisdictional. It also said that it would review a claim that the ICC's order in a general revenue proceeding deprived a plaintiff of an 'independent legal right.' 11 F.Supp., at 496. Moreover, the court did address on the merits the issue which the ICC did decide namely whether the evidence supported the need for a general rate increase. The ICC claims that courts do have jurisdiction to review its decision in this respect notwithstanding the plaintiff's failure previously to seek relief under § 13. We do not decide whether the ICC is correct. See n. 18, infra.
17
The railroads contend that environmental groups may file complaints under § 13 challenging the justness and reasonableness of rates or groups of rates. The court below tentatively ruled otherwise. In light of our disposition of the issue dealt with in this part, we need not decide which is correct.
18
The position of the ICC seems to be that its decision that a general rate increase is justified by reason of revenue need is a final decision ripe for immediate review and Algoma Coal & Coke Co. v. United States, supra, would seem to support it. The railroads claim that such a decision is unreviewable absent exhaustion of § 13 remedies and they are supported in this contention by the lower court decisions in Atlantic City Electric Co. v. United States, 306 F.Supp. 338 (SDNY 1969), and Alabama Power Co. v. United States, 316 F.Supp. 337 (DC 1969), both aff'd by an equally divided Court, 400 U.S. 73, 91 S.Ct. 259, 27 L.Ed.2d 212 (1970). We need not resolve this issue.
Part of NEPA provides that 'the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter,' 42 U.S.C. § 4332(1); and one of the policies of the chapter is to 'approach the maximum attainable recycling of depletable resources.' The District Court expressly declined to review the question whether the ICC ultimately 'gave insufficient weight to this environmental value' in reaching its conclusion that the general increase was justified. Therefore, this appeal does not involve reviewability of those substantive issues, including environmental issues, decided by the ICC at the general revenue proceeding.
19
The ICC did require the railroads to circulate a draft impact statement shortly after its proposal was made.
20
To the extent to which Calvert Cliffs' Co-ordinating Committee v. AEC, 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971); Greene County Planning Bd. v. FPC, 445 F.2d 412 (CA2), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972); and Harlem Valley Transportation Assn. v. Stafford, 500 F.2d 328 (CA2 1974), read the requirement that the statement accompany the proposal through the existing agency review processes differently, they would appear to conflict with the statute.
21
The decision which the ICC makes in a general revenue proceeding is by law far more confined than, for example, that of an agency deciding whether and where to build a new prison. E.g., Hanley v. Mitchell, 460 F.2d 640 (CA2), cert. denied sub nom. Hanly v. Kleindienst, 409 U.S. 990, 93 S.Ct. 313, 34 L.Ed.2d 256 (1972). The ICC is permitted to act against proposed rate increases, for more than a seven-month period, only if upon the basis of its investigation it can find that the rates are unlawful, i.e., unjust or unreasonable, or otherwise in violation of the Interstate Commerce Act. The ICC has concluded, and we agree, that the standards of the Act are broad enough to permit consideration of environmental factors, even at general revenue proceedings, Dayton-Goose Creek R. Co. v. United States, 263 U.S. 456, 480, 44 S.Ct. 169, 172, 68 L.Ed. 388 (1924); Ex parte 265 and Ex parte 267, Increased Freight Rates, 1970 and 1971, 339 I.C.C. 125 and 209 (1971). At the same time, standard ratemaking criteria limit the power of the ICC to force railroads to transport recyclable materials at deficit rates no matter how much the environment would be benefited thereby and no matter how much environmental injury would be caused by not doing so. Under present statutes, for example, the railroads could not be required to reduce rates on recyclables to zero.
22
Appellants have not argued that consideration of the lawfulness of particular rates on particular recyclables was in no way before the ICC in Ex parte 281. We assume for the purposes of this case, therefore, that the 'action' taken in Ex parte 281 included a decision not to declare rates on particular recyclables unlawful on the basis of the very limited inquiry appropriate to a general revenue proceeding.
23
A percentage increase increases a high rate a larger absolute amount that it does a low rate.
24
The Commission has concluded a thorough investigation, in Ex parte 270, of the underlying rate structure as it applies to ferrous scrap and the virgin ores with which it competes. In Ex parte 295, a subsequent general revenue proceeding, the Commission concluded on further investigation that the rates on waste paper and nonferrous metal scrap are high in comparison to the virgin materials with which they compete, and it refused to permit increases as to them. It also concluded that the environmental consequences of this situation are small. In Ex parte 310, the most recent general revenue proceeding, the ICC declined to permit increases on either ferrous or nonferrous scrap, citing general economic factors which had hurt those industries in particular.
25
See CEQ Guidelines, 40 CFR § 1500.6(d)(1).
26
The CEQ, on whose opposition to the impact statement appellees heavily rely, apparently recognizing the wisdom of exploring the underlying rate structure in a proceeding commenced expressly for that purpose, acquiesced in consideration of these issues in the context of Ex parte 270, provided only that the ICC suspend the increases on recyclables in the interim. The CEQ overlooked, however, the fact that the ICC was wholly without power to do this.
27
Apparently recognizing that the ICC's terminating of Ex parte 281 did not terminate its consideration of environmental issues relating to its rate structure and the consequent pointlessness of forcing the ICC to duplicate its efforts in the context of Ex parte 281, all of the appellees, except NARI, have filed suggestions of mootness. The case is not moot. The situation is not substantially different than it was at the time of the lower court's decision; and the ICC is under an order to prepare a new impact statement in Ex parte 281 and to hold hearings in Ex parte 281 and to write a final report in Ex parte 281 after the hearings. The ICC has not yet done so and claims that it should not be required to do so. NARI claims that it should be required to do so. We must decide who is right. However, we agree with the thrust of the suggestions of mootness that the relief granted below was not in the best interests of anyone.
28
A large portion of each of the briefs in these cases is devoted to the question of the proper scope of review by a court of the adequacy of the treatment of environmental issues in an impact statement. Compare, e.g., Lathan v. Brinegar, 506 F.2d 677 (CA9 1974), with City of New York v. United States, 344 F.Supp. 929 (EDNY 1972). However, we need not resolve this question since, in light of the 'action' taken, under any standard of review the ICC gave an adequately 'hard look' at environmental matters.
1
Attachment to letter from Russell E. Train, Chairman of Council on Environmental Quality, to ICC, Oct. 30, 1972. App. 572.
2
Section 102(2)(A) of the NEPA requires all agencies to 'utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man's environment.' 42 U.S.C. § 4332(2)(A). (Emphasis added.)
| 78
|
422 U.S. 332
95 S.Ct. 2281.
45 L.Ed.2d 223
Cecil HICKS, District Attorney of the County of Orange, State of California, et al., Appellants,v.Vincent MIRANDA, dba Walnut Properties, et al.
No. 74—156.
Argued March 24, 1975.
Decided June 24, 1975.
Syllabus
After the police, pursuant to four separate warrants, had seized four copies of an allegedly obscene film from appellees' theater, misdemeanor charges were filed in Municipal Court against two theater employees, and the California Superior Court ordered appellees to show cause why the film should not be declared obscene. Subsequently, the Superior Court declared the film obscene and ordered seized all copies that might be found at the theater. Rather than appealing from this order, appellees filed suit in Federal District Court against appellant police officers and prosecuting attorneys, seeking an injunction against enforcement of the California obscenity statute and for return of the seized copies of the film, and a judgment declaring the statute unconstitutional. A three-judge court was then convened to consider the constitutionality of the statute. Meanwhile, appellees were added as parties defendant in the Municipal Court criminal proceeding. Thereafter, the three-judge court declared the obscenity statute unconstitutional, ordered return to appellees of all seized copies of the film, and rejected appellants' claim that Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688, required dismissal of the case, holding that no criminal charges were pending against appellees in state court and that in any event the pattern of search warrants and seizures of the film showed bad faith and harassment on the authorities' part. The court then denied appellants' motions for rehearing and relief from the judgment, based, inter alia, on this Court's intervening dismissal 'for want of a substantial federal question' of the appeal in Miller v. California, 418 U.S. 915, 94 S.Ct. 3206, 41 L.Ed.2d 1158 (Miller II), from the California Superior Court's judgment sustaining the constitutionality of the California obscenity statute; reaffirmed its Younger v. Harris ruling; and, after concluding that it was not bound by the dismissal of Miller II, supra, adhered to its judgment that the obscenity statute was unconstitutional, although it amended its injunction so as to require appellants to seek return of three of the four copies of the film in the Municipal Court's possession. Held:
1. This Court has jurisdiction over the appeal under 28 U.S.C. § 1253, and the injunction, as well as the declaratory judgment, are properly before the Court. Pp. 342-348.
(a) Although the constitutional issues presented in Miller II and declared insubstantial by this Court, could not be considered substantial and decided otherwise by the District Court, Miller II did not require that the three-judge court be dissolved in the circumstances. Since appellees not only challenged the enforcement of the obscenity statute but also sought to enjoin enforcement of the search warrant statutes (necessarily on constitutional grounds) insofar as they might be applied to permit the multiple seizures of the film, and since Miller II had nothing to do with the issue of the validity of the multiple seizures, that issue remained in the case and the three-judge court should have remained in session to consider it. Pp. 343-346.
(b) The District Court's injunction, requiring appellants to seek return of three copies of the film in the Municipal Court's possession, plainly interfered with the pending criminal prosecution and with enforcement of the obscenity statute, and hence was an injunction reserved to a three-judge court under 28 U.S.C. § 2281. Pp. 347-348.
2. The District Court erred in reaching the merits of the case despite appellants' insistence that it be dismissed under Younger v. Harris and Samuels v. Mackell. Pp. 348-352.
(a) Where state criminal proceedings are begun against the federal plaintiffs after the federal complaint is filed but before any proceedings of substance on the merits have taken place in the federal court, the principles of Younger v. Harris should apply in full force. Here, appellees were charged in the state criminal proceedings prior to appellants' answering the federal case and prior to any proceedings before the three-judge court, and hence the federal complaint should have been dismissed on appellants' motion absent satisfactory proof of those extraordinary circumstances warranting one of the exceptions to the rule of Younger v. Harris and related cases. Pp. 348-350.
(b) Absent at least some effort by the District Court to impeach the prosecuting officials' entitlement to rely on repeated judicial authorization for seizures of the film, official bad faith and harassment were not made out, and the District Court erred in holding otherwise. Pp. 350-352.
D.C., 388 F.Supp. 350, reversed.
Oretta D. Sears, Fullerton, Cal., and Arlo E. Smith, San Francisco, Cal., for appellants.
Stanley Fleishman, Hollywood, Cal., and Sam Rosenwein, Studio City, Cal., for appellees.
Mr. Justice WHITE delivered the opinion of the Court.
1
This case poses issues under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), and related cases, as well as the preliminary question as to our jurisdiction of this direct appeal from a judgment of a three-judge District Court.
2
* On November 23 and 24, 1973, pursuant to four separate warrants issued seriatim, the police seized four copies of the film 'Deep Throat,' each of which had been shown at the Pussycat Theatre in Buena Park, Orange County, Cal.1 On November 26 an eight-count criminal misdemeanor charge was filed in the Orange County Municipal Court against two employees of the theater, each film seized being the subject matter of two counts in the complaint. Also on November 26, the Superior Court of Orange County ordered appellees2 to show cause why 'Deep Throat' should not be declared obscene, an immediate hearing being available to appellees, who appeared that day, objected on state-law grounds to the court's jurisdiction to conduct such a proceeding, purported to 'reserve' all federal questions, and refused further to participate. Thereupon, on November 27 the Superior Court held a hearing, viewed the film, took evidence, and then declared the movie to be obscene and ordered seized all copies of it that might be found at the theater. This judgment and order were not appealed by appellees.3
3
Instead, on November 29, they filed this suit in the District Court against appellants—four police officers of Buena Park and the District Attorney and Assistant District Attorney of Orange County. The complaint recited the seizures and the proceedings in the Superior Court, stated that the action was for an injunction against the enforcement of the California obscenity statute, and prayed for judgment declaring the obscenity statute unconstitutional, and for an injunction ordering the return of all copies of the film, but permitting one of the films to be duplicated before its return.
4
A temporary restraining order was requested and denied, the District Judge finding the proof of irreparable injury to be lacking and an insufficient likelihood of prevailing on the merits to warrant an injunction.4 He requested the convening of a three-judge court, however, to consider the constitutionality of the statute. Such a court was then designated on January 8, 1974.5
5
Service of the complaint was completed on January 14, 1974, and answers and motions to dismiss, as well as a motion for summary judgment, were filed by appellants. Appellees moved for a preliminary injunction.6 None of the motions was granted and no hearings held, all of the issues being ordered submitted on briefs and affidavits. The Attorney General of California also appeared and urged the District Court to follow People v. Enskat, 33 Cal.App.3d 900, 109 Cal.Rptr. 433 (1973), hearing denied Oct. 24, 1973), which, after Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) (Miller I), had upheld the California obscenity statute.
6
Meanwhile, on January 15, the criminal complaint pending in the Municipal Court had been amended by naming appellees7 as additional parties defendant and by adding four conspiracy counts, one relating to each of the seized films. Also, on motions of the defendants in that case, two of the films were ordered suppressed on the ground that the two search warrants for seizing 'Deep Throat' last issued, one on November 23 and the other on November 24, did not sufficiently allege that the films to be seized under those warrants differed from each other and from the films previously seized, the final two seizures being said to be invalid multiple seizures.8 Immediately after this order, which was later appealed and reversed, the defense and the prosecution stipulated that for purposes of the trial, which was expected to be forthcoming, the four prints of the film would be considered identical and only one copy would have to be proved at trial.9
7
On June 4, 1974, the three-judge court issued its judgment and opinion declaring the California obscenity statute to be unconstitutional for failure to satisfy the requirements of Miller I and ordering appellants to return to appellees all copies to 'Deep Throat' which had been seized as well as to refrain from making any additional seizures. Appellants' claim that 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), required dismissal of the case was rejected, the court holding that no criminal charges were pending in the state court against appellees and that in any event the pattern of search warrants and seizures demonstrated bad faith and harassment on the part of the authorities, all of which relieved the court from the strictures of Younger v. Harris, supra, and its related cases.
8
Appellants filed various motions for rehearing, to amend the judgment, and for relief from judgment, also later calling the court's attention to two developments they considered important: First, the dismissal on July 25, 1974, 'for want of a substantial federal question' of the appeal in Miller v. California, 418 U.S. 915, 94 S.Ct. 3206, 41 L.Ed.2d 1158 (Miller II), from a judgment of the Superior Court, Appellate Department, Orange County, California, sustaining the constitutionality of the very California obscenity statute which the District Court had declared unconstitutional; second, the reversal by the Superior Court, Appellate Department, of the suppression order which had been issued in the criminal case pending in the Municipal Court, the per curiam reversal citing Aday v. Superior Court, 55 Cal.2d 789, 13 Cal.Rptr. 415, 362 P.2d 47 (1961), and saying the 'requisite prompt adversary determination of obscenity under Heller v. New York . . . has been held.'10
9
On September 30, the three-judge court denied appellants' motions, reaffirmed its June 4 Younger v. Harris ruling and, after concluding it was not bound by the dismissed of Miller II, adhered to its judgment that the California statute was invalid under the Federal Constitution. In response to appellants' claim that they were without power to comply with the June 4 injunction, the films being in the possession of the Municipal Court, the court amended the injunctive portion of its order so as to read as follows:
10
'The defendants shall in good faith petition the Municipal Court of the North Orange County Judicial District to return to the plaintiffs three of the four film prints seized from the plaintiffs on November 23 and 24, 1973, in the City of Buena Park.'
11
Appeals were taken to this Court from both the judgment of June 4 and the amended judgment of September 30. We postponed further consideration of our jurisdiction to the consideration of the merits of the case. 419 U.S. 1018, 95 S.Ct. 491, 42 L.Ed.2d 291 (1974).11
II
12
We deal first with questions about our jurisdiction over this direct appeal under 28 U.S.C. § 1253.12 At the outset, this case was concededly a matter for a three-judge court. Appellees' complaint asserted as much and they do not now contend otherwise.13 Furthermore, on June 4 the District Court declared the California obscenity statute unconstitutional and ordered the return of all copies of the film that had been seized. Appellees do not claim that this order, which would have aborted the pending criminal prosecution, was not an injunction within the meaning of § 1253 and was not appealable here. The jurisdictional issues arise from events that occurred subsequent to Juen 4.
13
The first question emerges from our summary dismissal in Miller II. Appellants claimed in the District Court, and claim here, that Miller II was binding on the District Court and required that court to sustain the California obscenity statute and to dismiss the case. If appellants are correct in this position, the question arises whether Miller II removed the necessity for a three-judge court under the rule of Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962), in which event our appellate jurisdiction under 28 U.S.C. § 1253 would also evaporate.
14
We agree with appellants that the District Court was in error in holding that it would disregard the decision in Miller II. That case was an appeal from a decision by a state court upholding a state statute against federal constitutional attack. A federal constitutional issue was properly presented, it was within our appellate jurisdiction under 28 U.S.C. § 1257(2), and we had no discretion to refuse adjudication of the case on its merits as would have been true had the case been brought here under our certiorari jurisdiction. We are not obligated to grant the case plenary consideration, and we did not; but we were required to deal with its merits. We did so by concluding that the appeal should be dismissed because the constitutional challenge to the California statute was not a substantial one. The three-judge court was not free to disregard this pronouncement. As Mr. Justice Brennan once observed, '(v)otes to affirm summarily, and to dismiss for want of a substantial federal question, it hardly needs comment, are votes on the merits of a case . . .,' Ohio ex rel. Eaton v. Price, 360 U.S. 246, 247, 79 S.Ct. 978, 979, 3 L.Ed.2d 1200 (1959); cf. R. Stern & E. Gressman, Supreme Court Practice, 197 (4th ed. 1969) ('The Court is, however, deciding a case on the merits, when it dismisses for want of a substantial question . . .'); C. Wright, Law of Federal Courts 495 (2d ed. 1970) ('Summary disposition of an appeal, however, either by affirmance or by dismissal for want of a substantial federal question, is a disposition on the merits'). The District Court should have followed the Second Circuit's advice, first, in Port Authority Bondholders Protective Committee v. Port of New York Authority, 387 F.2d 259, 263 n. 3 (1967), that 'unless and until the Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that if the Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise'; and, later, in Doe v. Hodgson, 478 F.2d 537, 539, cert. denied, sub nom. Doe v. Brennan, 414 U.S. 1096, 94 S.Ct. 732, 38 L.Ed.2d 555 (1973), that the lower courts are bound by summary decisions by this Court "until such time as the Court informs (them) that (they) are not."
15
Although the constitutional issues which were presented in Miller II and which were declared to be insubstantial by this Court, could not be considered substantial and decided otherwise by the District Court, we cannot conclude that Miller II required that the three-judge court be dissolved in the circumstances of this case.14 Appellees, as plaintiffs in the District Court, not only challenged the enforcement of the obscenity statute but also sought to enjoin the enforcement of the California search warrant statutes, Penal Code §§ 1523—1542 (1970 ed. and Supp.1975), insofar as they might be applied, contrary to Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973), to permit the multiple seizures that occurred in this case. The application for a preliminary injunction made this aim of the suit quite express. The three-judge court in its June 4 decision declared the obscenity statute unconstitutional and ordered four copies of the film returned. Its constitutional conclusion was reaffirmed on September 30, despite Miller II, and its injunction was to some extent modified. Miller II, however, had nothing to do with the validity of multiple seizures as an issue wholly independent of the validity of the obscenity statutes. That issue—the validity, in light of Heller, of the challenged application of the search warrant statutes—remained in the case after the Miller II dismissal. Indeed, although the District Court based its injunctive order on the unconstitutionality of the obscenity statutes, the injunction also interfered with the enforcement of the California search warrant statutes, necessarily on constitutional grounds.15 With this question in the case, the three-judge court should have remained in session, as it did, and, as it also did, should have dealt with the Younger issue before reaching the merits of the constitutional issues presented. That issue, however, as we show in Part III, was not correctly decided.
B
16
Appellees contend (1) that under Gonzalez v. Automatic Employees Credit Union, 419 U.S. 90, 95 S.Ct. 289, 42 L.Ed.2d 249 (1974), and MTM, Inc. v. Baxley, 420 U.S. 799, 95 S.Ct. 1278, 43 L.Ed.2d 636 (1975), the only injunctions issued by properly convened three-judge courts that are directly appealable here are those that three-judge courts alone may issue and (2) that the injunction finally issued on September 30 was not one that is reserved to a three-judge court under 28 U.S.C. § 2281. Even if appellees' premise is correct, but see Philbrook v. Glodgett, 421 U.S. 707, 712—713, n. 8, 95 S.Ct. 1893, 1898, 44 L.Ed.2d 525 (1975), we cannot agree with the conclusion that the injunction entered here was not appealable. Not only was a state statute declared unconstitutional but also the injunctive order, as amended September 30, 1974, required appellants to seek the return of the three prints of 'Deep Throat' which were the subject of nine of the 12 counts of the amended criminal complaint still pending in the Municipal Court. Return of the copies would prohibit their use as evidence and would, furthermore, prevent their retention and probable destruction as contraband should the State prevail in the criminal case. Plainly, the order interfered with the pending criminal prosecution and with the enforcement of a state obscenity statute. In the circumstances here, the injunctive order, issued as it was by a federal court against state authorities, necessarily rested on federal constitutional grounds. Aside from its opinion that the California statute was unconstitutional, the District Court articulated no basis for assuming authority to order the return of the films and in effect to negate not only three of the four seizures under state search warrants, which the Appellate Department of the Superior Court had upheld, but also the proceedings in the Superior Court that had declared the film to be obscene and seizable.16 The District Court's June 4 opinion, we think, made its constitutional thesis express:
17
'The gravamen of the defendants' justification is, of course, that the property is contraband, both the evidence and the fruit of an illegal activity. Such a justification, however, dissipates in the face of a declaration by this court that the statute is invalid.'
18
We accordingly conclude that the September 30 injunction, as well as the declaratory judgment underlying it, is properly before the Court.
III
19
The District Court committed error in reaching the merits of this case despite the appellants' insistence that it be dismissed under 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). When they filed their federal complaint, no state criminal proceedings were pending against appellees by name; but two employees of the theater had been charged and four copies of 'Deep Throat' belonging to appellees had been seized, were being held, and had been declared to be obscene and seizable by the Superior Court. Appellees had a substantial stake in the state proceedings, so much so that they sought federal relief, demanding that the state statute be declared void and their films be returned to them. Obviously, their interests and those of their employees were intertwineds and, as we have pointed out, the federal action sought to interfere with the pending state prosecution. Absent a clear showing that appellees, whose lawyers also represented their employees, could not seek the return of their property in the state proceedings and see to it that their federal claims were presented there, the requirements of Younger v. Harris could not be avoided on the ground that no criminal prosecution was pending against appellees on the date the federal complaint was filed. The rule in Younger v. Harris is designed to 'permit state courts to try state cases free from interference by federal courts,' id., 401 U.S., at 43, 91 S.Ct., at 750, particularly where the party to the federal case may fully litigate his claim before the state court. Plainly, '(t)he same comity considerations apply,' Allee v. Medrano, 416 U.S. 802, 831, 94 S.Ct. 2191, 2208, 40 L.Ed.2d 566 (Burger, C. J., concurring), where the interference is sought by some, such as appellees, not parties to the state case.
20
What is more, on the day following the completion of service of the complaint, appellees were charged along with their employees in Municipal Court. Neither Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), nor any other case in this Court has held that for Younger v. Harris to apply, the state criminal proceedings must be pending on the day the federal case is filed. Indeed, the issue has been left open;17 and we now hold that where state criminal proceedings are begun against the federal plaintiffs after the federal complaint is filed but before any proceedings of substance on the merits have taken place in the federal court, the principles of Younger v. Harris should apply in full force. Here, appellees were charged on January 15, prior to answering the federal case and prior to any proceedings whatsoever before the three-judge court. Unless we are to trivialize the principles of Younger v. Harris, the federal complaint should have been dismissed on the appellants' motion absent satisfactory proof of those extraordinary circumstances calling into play one of the limited exceptions to the rule of Younger v. Harris and related cases.18
21
The District Court concluded that extraordinary circumstances had been shown in the form of official harassment and bad faith, but this was also error. The relevant findings of the District Court were vague and conclusory.19 There were references to the 'pattern of seizure' and to 'the evidence brought to light by the petition for rehearing'; and the unexplicated conclusion was then drawn that 'regardless of the nature of any judicial proceeding,' the police were bent on banishing 'Deep Throat' from Buena Park. Yet each step in the pattern of seizures condemned by the District Court was authorized by judicial warrant or order; and the District Court did not purport to invalidate any of the four warrants, in any way to question the propriety of the proceedings in the Superior Court,20 or even to mention the reversal of the suppression order in the Appellate Department of that court. Absent at least some effort by the District Court to impeach the entitlement of the prosecuting officials to rely on repeated judicial authorization for their conduct, we cannot agree that bad faith and harassment were made out. Indeed, such conclusion would not necessarily follow even if it were shown that the state courts were in error on some one or more issues of state or federal law.21
22
In the last analysis, it seems to us that the District Court's judgment rests almost entirely on its conclusion that the California obscenity statute was unconstitutional and unenforceable. But even assuming that the District Court was correct in its conclusion, the statute had not been so condemned in November 1973, and the District Court was not entitled to infer official bad faith merely because it—the District Court—disagreed with People v. Enskat. Otherwise, bad faith and harassment would be present in every case in which a state statute is ruled unconstitutional, and the rule of Younger v. Harris would be swallowed up by its exception. The District Court should have dismissed the complaint before it and we accordingly reverse its judgment.
23
So ordered.
24
Judgment reversed.
25
Mr. Chief Justice BURGER, concurring.
26
I join the opinion of the Court but I add a word about the composition of the three-judge District Court and the circumstances under which it was convened. Under 28 U.S.C. § 2284(1) the district judge to whom the application for relief is presented, and who notifies the chief judge of the need to convene the three-judge court, 'shall constitute one member of such court.' It is well settled that 'shall' means 'must,' cf. Merced Rosa v. Herrero, 423 F.2d 591, 593 n. 2 (CA1, 1970), yet the judge who called for the three-judge court here was not named to the panel. However, appellants made no timely objection to the composition of the court. Ante, at 338 n. 5. Obviously occasions can arise rendering it impossible for the district judge who initiates the convening of such a court under § 2284(1) to serve on the court, but, in light of the unqualified mandatory language of the statute, when that occurs there is an obligation to see to it that the record reveal, at the very least, a statement of the circumstances accounting for the substitution.
27
Mr. Justice STEWART, with whom Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice MARSHALL join, dissenting.
28
There are many aspects of the Court's opinion that seem to me open to serious challenge. This dissent, however, is directed only to Part III of the opinion, which holds that '(t)he District Court committed error in reaching the merits of this case despite the appellants' insistence that it be dismissed under Younger v. Harris . . . and Samuels v. Mackell. . . .'
29
In Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505, the Court unanimously held that the principles of equity, comity, and federalism embodied in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688, do not preclude a federal district court from entertaining an action to declare unconstitutional a state criminal statute when a state criminal prosecution is threatened but not pending at the time the federal complaint is filed. Today the Court holds that the Steffel decision is inoperative if a state criminal charge is filed at any point after the commencement of the federal action 'before any proceedings of substance on the merits have taken place in the federal court.' Ante, at 349. Any other rule, says the Court, would 'trivialize' the principles of Younger v. Harris. I think this ruling 'trivializes' Steffel, decided just last Term, and is inconsistent with those same principles of equity, comity, and federalism.1
30
There is, to be sure, something unseemly about having the applicability of the Younger doctrine turn solely on the outcome of a race to the courthouse. The rule the Court adopts today, however, does not eliminate that race; it merely permits the State to leave the mark later, run a shorter course, and arrive first at the finish line. This rule seems to me to result from a failure to evaluate the state and federal interests as of the time the state prosecution was commenced.
31
As of the time when its jurisdiction is invoked in a Steffel situation, a federal court is called upon to vindicate federal constitutional rights when no other remedy is available to the federal plaintiff. The Court has recognized that at this point in the proceedings no substantial state interests counsel the federal court to stay its hand. Thus, in Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257, we noted that 'considerations of equity practice and comity in our federal system . . . have little force in the absence of a pending state proceeding.' Id., at 509. And in Steffel, a unanimous Court explained the balance of interests this way:
32
'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 that he believes to be constitutionally protected activity in order to avoid becoming enmeshed in a criminal proceeding.' 415 U.S., at 462, 94 S.Ct., at 1217.
33
Consequently, we concluded that '(r)equiring the federal courts totally to step aside when no state criminal prosecution is pending against the federal plaintiff would turn federalism on its head.' Id., at 472, 94 S.Ct., at 1222. In such circumstances, 'the opportunity for adjudication of constitutional rights in a federal forum, as authorized by the Declaratory Judgment Act, becomes paramount.' Ellis v. Dyson, 421 U.S. 426, 432, 95 S.Ct. 1691, 1695, 44 L.Ed.2d 274. See also Huffman v. Pursue, Ltd., 420 U.S. 592, 602—603, 95 S.Ct. 1200, 1207, 43 L.Ed.2d 482.
34
The duty of the federal courts to adjudicate and vindicate federal constitutional rights is, of course, shared with state courts, but there can be no doubt that the federal courts are '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: A Study in the Federal Judicial System 65 (1927). The statute under which this action was brought, 42 U.S.C. § 1983, established in our law 'the role of the Federal Government as a guarantor of basic federal rights against state power.' Mitchum v. Foster, 407 U.S. 225, 239, 92 S.Ct. 2151, 2160, 32 L.Ed.2d 705. Indeed, '(t)he very purpose of § 1983 was to interpose the federal courts between the States and the people.' Id., at 242, 92 S.Ct., at 2162. See also Zwickler v. Koota, 389 U.S. 241, 245, 248, 88 S.Ct. 391, 393, 395, 19 L.Ed.2d 444; McNeese v. Board of Education, 373 U.S. 668, 84 S.Ct. 1433, 10 L.Ed.2d 622; Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492. And this central interest of a federal court as guarantor of constitutional rights is fully implicated from the moment its jurisdiction is invoked. How, then, does the subsequent filing of a state criminal charge change the situation from one in which the federal court's dismissal of the action under Younger principles 'would turn federalism on its head' to one in which failure to dismiss would 'trivialize' those same principles?
35
A State has a vital interest in the enforcement of its criminal law, and this Court has said time and again that it will sanction little federal interference with that important state function. E.g., Kugler v. Helfant, 421 U.S. 117, 95 S.Ct. 1524, 44 L.Ed.2d 15. But there is nothing in our decision in Steffel that requires a State to stay its hand during the pendency of the federal litigation. If, in the interest of efficiency, the State wishes to refrain from actively prosecution the criminal charge pending the outcome of the federal declaratory judgment suit, it may, of course, do so. But no decision of this Court requires it to make that choice.
36
The Court today, however, goes much further than simply recognizing the right of the State to proceed with the orderly administration of its criminal law; it ousts the federal courts from their historic role as the 'primary reliances' for vindicating constitutional freedoms. This is no less offensive to 'Our Federalism' than the federal injunction restraining pending state criminal proceedings condemned by Younger v. Harris. The concept of federalism requires 'sensitivity to the legitimate interests of both State and National Governments.' 401 U.S., at 44, 91 S.Ct., at 750 (emphasis added). Younger v. Harris and its companion cases reflect the principles that the federal judiciary must refrain from interfering with the legitimate functioning of state courts. But surely the converse is a principle no less valid.
37
The Court's new rule creates a reality which few state prosecutors can be expected to ignore. It is an open invitation to state officials to institute state proceedings in order to defeat federal jurisdiction.2 One need not impugn the motives of state officials to suppose that they would rather prosecute a criminal suit in state court than defend a civil case in a federal forum. Today's opinion virtually instructs state officials to answer federal complaints with state indictments. Today, the State must file a criminal charge to secure dismissal of the federal litigation; perhaps tomorrow an action 'akin to a criminal proceeding' will serve the purpose, see Huffman v. Pursue, Ltd., supra, 95 S.Ct. 1200, 43 L.Ed.2d 482; and the day may not be far off when any state civil action will do.
38
The doctrine of Younger v. Harris reflects an accommodation of competing interests. The rule announced today distorts that balance beyond recognition.
1
The first warrant was issued following a viewing of the film by an Orange County Municipal Court judge. The same judge also issued the other three warrants, the third one after a viewing of the version of the film then showing. The other two warrants were issued on affidavits of police officers who had witnessed exhibition of the film. Each of the warrant affidavits other than the first one indicated that the film to be seized was in some respects different from the first print seized.
In response to claims of bad faith which were later made against them, the four police officer appellants asserted that in October 1973, successive seizures of 'Deep Throat' had been made under warrant in Riverside County, Cal. The theater involved in those seizures sought federal relief, which was denied, the seizures being upheld despite challenge under Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973). It was after this decision, it was asserted that Buena Park authorities sought warrants for the seizure of 'Deep Throat' showing in that city.
2
The order ran against Vincent Miranda, dba Pussycat Theater, Walnut Properties, Inc., and theater employees. Actually, Miranda, who owned the land on which the theatre was located, did business as Walnut Properties, and Pussycat Theatre Hollywood was a California corporation of which Miranda was president and a stockholder. Nothing has been made by the parties of this confusion in identification.
3
The apparent basis for not pursuing appellate remedies is illuminated in the course of the following colloquy in this case between Judge Ferguson and appellees' counsel which occurred when appellees sought relief, described infra, at 340, against the subsequent actions of the Superior Court:
'THE COURT: Have you taken that order up to the California Court of Appeals?
'MR. BROWN: No, we have not.
'THE COURT: Why not?
'MR. BROWN: Because, your Honor, initially back in November when this first occurred, the day after the hearing we filed the Complaint in this action and one of the bases for relief alleged in the Complaint was the deprivation of the plaintiff's Constitutional rights by virtue of these proceedings and we alleged from the very beginning that those proceedings were violative of California law, clearly, and violative of our Constitutional rights and we asked this Court to give us relief from that specific proceeding. That was the inception of this action, as a matter of fact. Once was had invoked the jurisdiction of this Court properly we sought relief in this Court and we did not press the matter further in the California State Courts.
'THE COURT: Well, how can you go halfway and not go all the way?
'MR. BROWN: Your Honor, at the very first hearing in November we filed the documents with the Superior Court stating that we were reserving all questions of Federal Constitutional law pursuant to the England case. We knew that we may—we had in mind the trap that can be set a litigant in these circumstances. It was our intent from the beginning to allege Federal jurisdiction and to seek relief under the Civil Rights Act for these events and that is why at the very first time we appeared in the Orange County Superior Court we so indicated to the Court that that was the case.
'THE COURT: Yes, but you told me that August the 2nd you appeared before the Superior Court in Orange County and made some kind of a motion—
'MR. BROWN: But again, your Honor—
'THE COURT: Let me finish.
'—to set aside Judge McMillan's order with reference to seizures of these two films. He denied your request and my question to you is a simple one. When you go halfway why shouldn't you be required to go all the way?
'MR. BROWN: It was our purpose in the beginning not to litigate these claims in the State court.
'THE COURT: Well, don't you think that it is only fit and proper that the California courts should be permitted to eradicate any deficiencies that may occur in the lower courts?
'THE COURT: All right. Why don't you take it up before the California Supreme Court? That is my question to you.
'MR. BROWN: Because, your Honor, we could have done so but we also had the right to invoke Federal jurisdiction.
'THE COURT: I understand you have the right. That is not my question, as to the jurisdiction of this Court. My question to you is why haven't you given the California Appellate Courts the right and the forum to correct any deficiencies of the California lower courts that you say exist?
'MR. BROWN: Your Honor, this is a situation in which a litigant has a choice. If there is an unsettled question—
'THE COURT: All right. So your answer is you do not want to. Is that your answer?
'MR. BROWN: That's correct.
'THE COURT: All right.
'MR. BROWN: We did not want to do so because we did not consider the question of State law to be an unsettled question.
'THE COURT: All right.'
4
Judge Lydick, United States District Judge, to whom the case had been assigned following the initial disqualification of Judge Ferguson, made this ruling. His conclusion was that appellees had 'failed totally to make that showing of irreparable damage, lack of an adequate legal remedy and likelihood of prevailing on the merits needed to justify the issuance of a temporary restraining order which would require (the defendants) to disobey the orders of (the state) courts and would restrain the lawful enforcement of a State statute.'
5
Judge Ferguson, but not Judge Lydick, was designated to serve on the three-judge panel. The State of California insists that under 28 U.S.C § 2284, providing that '(t)he district judge to whom the application for injunction or other relief is presented shall constitute one member' of the three-judge court, Judge Lydick should have been one of the three members. We do not deem the requirement jurisdictional, however; and even though the order appointing the three-judge court called for early filing of any objections to the composition of the court, the issue was never presented to the District Court but is raised here for the first time, and in our view too late.
6
The motion sought an injunction against the enforcement of California Penal Code § 311 et seq. (1970 ed. and Supp.1975), as well as §§ 1523—1542 (1970 ed. and Supp.1975). Sections 1523—1542 constitute Chapter 3 of the Penal Code entitled 'Of Search Warrants.' The sections provide for the issuance, service, and return of search warrants.
7
Actually, the amended complaint named as defendants Vincent Miranda and Walnut Properties, Inc. See n. 2, supra. In referring to the amended criminal complaint, appellees speak of the amendment of the complaint to 'include' the names of the 'appellees.' Brief for Appellees 43.
8
The prosecution claimed that each film was different, filed affidavits to this effect, and asserted that the official policy was to seize only one copy of a film unless different versions were exhibited. The court limited its attention to the search warrant affidavits which it said did not expressly allege that the last two copies seized were different.
9
The prosecution later asserted that the stipulation did not provide for the return of the suppressed films or of any others. The films were not returned, the suppression order was appealed, and it was reversed. See infra, this page.
10
The showing of 'Deep Throat' had meanwhile been resumed by appellees. Soon after Miller II and the reversal of the suppression order, the Superior Court of Orange County reaffirmed its order of November 27, 1973, and directed additional seizures of 'Deep Throat.' Seizures under warrant were also made of the film 'The Devil in Miss Jones.' At a show-cause proceeding before Judge Ferguson sitting as a single judge, the judge declined to hold appellants in contempt for failing to return the copies of 'Deep Throat' covered by the June 4 judgment. His oral ruling was:
'THE COURT: You do not have to argue about that at all any more. Mr. Brown comes before the Court arguing that the contempt occurred because of the failure to turn over three of the films as a result of the November 1973 seizures. The defendants filed a motion to reconsider. An opinion is circulating now among the Three Judge Court with reference to that motion so it would be absurd for me to say that there was a contempt of court for failure to turn over those three films.
'THE COURT: . . .
'Now, with reference to the returning of three of the films, the Court cannot find that there was any contempt in that, either, primarily because that issue of returning the films had been taken under submission by the Three Judge Court and there was no specific order outstanding which required immediate compliance. So the Order to Show Cause with reference to contempt will be vacated.'
Judge Ferguson did, however, issue a preliminary injunction against further seizures of the two films. Title 28 U.S.C. §§ 2284(3) and (5) forbid a single judge to issue an interlocutory injunction in a three-judge-court case. The status of Judge Ferguson's preliminary injunction is not at issue here.
11
Because the amended judgment was entered in response to timely motions for rehearing and to amend the June 4 judgment, appellees insist that it is the amended judgment that is before the Court. Appellants filed notices of appeal from the June 4 judgment, despite their pending motions, and some contend that the District Court had no jurisdiction to enter the September 30 order. Some appellants also appealed from the September judgment, however, and we think the appellees have the better view of this issue. The amended judgment is before us.
12
Section 1253 provides:
'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.'
Section 2281 requires three-judge courts under certain circumstances:
'An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.'
13
Although only local officers were defendants, they were enforcing a statewide statute and are state officers for the purposes of § 1253. Spielman Motor Co. v. Dodge, 295 U.S. 89, 91 95, 55 S.Ct. 678, 679—681, 79 L.Ed. 1322 (1935).
14
Of course, Miller II would have been decisive here only if the issues in Miller II and the present case were sufficiently the same that Miller II was a controlling precedent. Thus, had the District Court considered itself bound by summary dismissals of appeals by this Court, its initial task would have been to ascertain what issues had been properly presented in Miller II and declared by this Court to be without substance. Ascertaining the reach and content of summary actions may itself present issues of real substance, and in circumstances where the constitutionality of a state statute is at stake, that undertaking itself may be one for a three-judge court. Whether that is the case here we need not decide.
15
In Aday v. Superior Court, 55 Cal.2d 789, 13 Cal.Rptr. 415, 362 P.2d 47 (1961), the California Supreme Court sustained use of a search warrant to effect a massive seizure of obscene books pending outcome of a criminal trial. The court rejected a First Amendment prior-restraint claim, referring to the obscene books as 'contraband' and noting that this Court had allowed interim relief to the States in obscenity cases in order to 'prevent frustration of judicial condemnation of obscene matter.' Later decisions of this Court, e.g., A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964), have undermined Aday insofar as it permits the State, absent a prior adversary hearing, to block the 'distribution or exhibition,' Heller v. New York, 413 U.S. 483, 492, 93 S.Ct. 2789, 2794, 37 L.Ed.2d 745 (1973), of films or books by seizing them in greater quantities than is necessary for use as evidence in a criminal case or other judicial proceedings. However, in reversing the Municipal Court's suppression order, see supra, at 340—341, we take the Superior Court's reference to Aday to mean that the November seizures effected by search warrant were valid under that case and under the state statute once a prompt adversary hearing to determine obscenity is held, which hearing in its view would remove any constitutional objection under Heller v. New York, supra, to retention of more than one copy of 'Deep Throat.' The District Court's injunction nevertheless required the return of three of the seized films. We do not, of course, pass upon the merits of the reversal of the suppression order or the views expressed therein.
16
The District Court noted that prosecution and defense counsel, following the suppression order in the Municipal Court, stipulated that the four copies would be deemed identical and only one copy need be proved. However, the prosecution denied any agreement to return the suppressed films, successfully appealed the suppression order, and asserted that the District Court's order interfered with the prosecution of its case. As we have said, the judgment of the District Court also interfered with the enforcement of the California search warrant statutes.
17
At least some Justices have thought so. Perez v. Ledesma, 401 U.S. 82, 117 n. 9, 91 S.Ct. 674, 693, 27 L.Ed.2d 701 (1971) (Brennan, J., joined by White and Marshall, JJ., concurring and dissenting). Also, Steffel v. Thompson, supra, did not decide whether an injunction, as well as a declaratory judgment, can be issued when no state prosecution is pending.
18
Appellees also argue that dismissal under Younger v. Harris was not required because People v. Enskat, 33 Cal.App.3d 900, 109 Cal.Rptr. 433 (1973), had settled the constitutional issue in the state courts with respect to the obscenity statute. But Younger v. Harris is not so easily avoided. State courts, like other courts, sometimes change their minds. Moreover, People v. Enskat was the decision of an intermediate appellate court of the State, and the Supreme Court of California could have again been asked to pass upon the constitutionality of the California statute. In any event, the way was open for appellees to present their federal issues to this Court in the event of adverse decision in the California courts.
19
The June 4 opinion stated:
'Finally, the objective facts set forth in the first part of this opinion clearly demonstrate bad faith and harassment which would justify federal intervention. Any editorializing of those facts would serve no purpose. It is sufficient to note that the pattern of seizures of the plaintiffs' cash receipts and films demonstrate(s) that the police were bent upon a course of action that, regardless of the nature of any judicial proceeding would effectively exorcise the movie 'Deep Throat' out of Buena Park.'
Also, in the supplemental opinion of September 30, 1974, the District Court stated: '(T)he evidence brought to light by the petition for rehearing only serves to strengthen the previous finding of bad faith and harassment,' observing only that no explanation had been offered for not instituting criminal proceedings against appellees until after the federal complaint was filed against them and that '(w)ithout such an explanation it is reasonable for the court to conclude that the institution of the criminal proceedings was in retaliation for the attempt by plaintiffs to have their constitutional rights judicially determined in this court.'
20
It has been noted that appellees did not appeal the Superior Court's order of November 27, 1973, declaring 'Deep Throat' obscene and ordering all copies of it seized. It may be that under Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), the failure of appellees to appeal the Superior Court order of November 27, 1973, would itself foreclose resort to federal court, absent extraordinary circumstances bringing the case within some exception to Younger v. Harris. Appellees now assert, seemingly contrary to their prior statement before Judge Ferguson, see n. 3, supra, that the November 27 order was not appealable. In view of our disposition of the case, we need not pursue the matter further.
21
We need not, and do not, ourselves decide or intimate any opinion as to whether the Superior Court proceedings were, as claimed by appellees, unauthorized under California law.
1
There is the additional difficulty that the precise meaning of the rule the Court today adopts is a good deal less than apparent. What are 'proceedings of substance on the merits'? Presumably, the proceedings must be both 'on the merits' and 'of substance.' Does this mean, then, that months of discovery activity would be insufficient, if no question on the merits is presented to the court during that time? What proceedings 'on the merits' are sufficient is also unclear. An application for a temporary restraining order or a preliminary injunction requires the court to make an assessment about the likelihood of success on the merits. Indeed, in this case, appellees filed an application for a temporary restraining order along with six supporting affidavits on November 29, 1973. Appellants responded on December 3, 1973, with six affidavits of their own as well as additional documents. On December 28, 1973, Judge Lydick denied the request for a temporary restraining order, in part because appellees 'have failed totally to make that showing of . . . likelihood of prevailing on the merits needed to justify the issuance of a temporary restraining order.' These proceedings the Court says implicitly, were not sufficient to satisfy the test it announces. Why that should be, even in terms of the Court's holding is a mystery.
2
The District Court found that the filing of the state criminal complaint, six weeks after the State had appeared to oppose the appellees' application for a temporary restraining order but only a day after service of the complaint was effected, 'would seem to supply added justification' for its finding of harassment. The court concluded 'that the institution of the criminal proceedings was in retaliation for the attempt by plaintiffs to have their constitutional rights judicially determined in this court.'
| 89
|
45 L.Ed.2d 177
95 S.Ct. 2150
422 U.S. 271
UNITED STATES, Appellant,v.AMERICAN BUILDING MAINTENANCE INDUSTRIES.
No. 73—1689.
Argued April 22, 1975.
Decided June 24, 1975.
Syllabus
The Government brought this civil antitrust action against appellee, one of the largest suppliers of janitorial services in the country, with 56 branches serving more than 500 communities in the United States and Canada, and providing about 10% of such service sales in Southern California, contending that appellee's acquisition of two Southern California janitorial service firms (the Benton companies), which supplied about 7% of such services in Southern California, violated § 7 of the Clayton Act. That section provides that '(n)o corporation engaged in commerce shall acquire . . . the stock or other share capital and no corporation subject to the jurisdiction of the Federal Trade Commission shall acquire . . . 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.' The Benton companies, some of whose customers engaged in interstate operations, performed all their services within California, locally recruited labor (which accounted for their major expenses) and locally purchased incidental equipment and supplies. The District Court granted appellee's motion for summary judgment, holding that there had been no § 7 violation. The Government contends that 'engaged in commerce' as used in § 7 encompasses corporations like the Benton companies engaged in intrastate activities that substantially affect interstate commerce, and that in any event the Benton companies' activities were sufficiently interstate to come within § 7. Held:
1. The phrase 'engaged in commerce' as used in § 7 of the Clayton Act means engaged in the flow of interstate commerce, and was not intended to reach all corporations engaged in activities subject to the federal commerce power; hence, the phrase does not encompass corporations engaged in intrastate activities substantially affecting interstate commerce, and § 7 can be applicable only when both the acquiring corporation and the acquired corporation are engaged in interstate commerce. Pp. 275-283.
(a) The jurisdictional requirements of § 7 cannot be satisfied merely by showing that allegedly anticompetitive acquisitions and activities affect commerce. Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 95 S.Ct. 392, 42 L.Ed.2d 378; FTC v. Bunte Bros., 312 U.S. 349, 61 S.Ct. 580, 85 L.Ed. 881. Pp. 276-277.
(b) The precise 'in commerce' language of § 7 is not coextensive with the reach of power under the Commerce Clause and is thus not to be equated with § 1 of the Sherman Act which reaches the impact of intrastate conduct on interstate commerce. Pp. 277-279.
(c) When Congress re-enacted § 7 in 1950 with the same 'engaged in commerce' limitation, the phrase had long since become a term of art, indicating a limited assertion of federal jurisdiction, and prior to that time Congress had frequently distinguished between activities 'in commerce' and broader activities 'affecting commerce.' Pp. 279-281.
(d) Limiting § 7 to its plain meaning comports with the enforcement policies that the FTC and the Justice Department have consistently pursued. Pp. 281-282.
1
2. Since the Benton companies did not participate directly in the sale, purchase, or distribution of goods or services in interstate commerce, they were not 'engaged in commerce' within the meaning of § 7. And neither supplying local services to corporations engaged in interstate commerce nor using locally bought supplies manufactured outside California sufficed to satisfy § 7's 'in commerce' requirement. Pp. 283-286.
2
401 F.Supp. 1005, affirmed.
3
Bruce B. Wilson, Dept. of Justice, Antitrust Div., Washington, D.C., for appellant.
4
Marcus Mattson, Los Angeles, Cal., for appellee.
5
Mr. Justice STEWART delivered the opinion of the Court.
6
The Government commenced this civil antitrust action in the United States District Court for the Central District of California, contending that the appellee, American Building Maintenance Industries, had violated § 7 of the Clayton Act, 38 Stat. 731, as amended, 15 U.S.C. § 18, by acquiring the stock of J. E. Benton Management Corp., and by merging Benton Maintenance Co. into one of the appellee's wholly owned subsidiaries. Following discovery proceedings and the submission of memoranda and affidavts by both parties, the District Court granted the appellee's motion for summary judgment, holding that there had been no violation of § 7 of the Clayton Act. The Government brought an appeal to this Court, and we noted probable jurisdiction. 419 U.S. 1104, 95 S.Ct. 773, 42 L.Ed.2d 799.1
7
* The appellee, American Building Maintenance Industries, is one of the largest suppliers of janitorial services in the country, with 56 branches serving more than 500 communities in the United States and Canada. It is also the single largest supplier of janitorial services in southern California (the area comprising Los Angeles, Orange, San Bernardino, Riverside, Santa Barbara, and Ventura Counties), providing approximately 10% of the sales of such services in that area.
8
Both of the acquired companies, J. E. Benton Management Corp. and Benton Maintenance Co., also supplied janitorial services in Southern California.2 Together their sales constituted approximately 7% of the total janitorial sales in the area. Although both Benton companies serviced customers engaged in interstate operations, all of their janitorial and maintenance contracts with those customers were performed entirely within California. Neither of the Benton companies advertised nationally, and their use of interstate communications facilities to conduct business was negligible.3
9
The major expense of providing janitorial services is the cost of the labor necessary to perform the work. The Benton companies recruited the unskilled workers needed to supply janitorial services entirely from the local labor market in Southern California. The incidental equipment and supplies utilized in providing those janitorial services, except in concededly insignificant amounts, were purchased from local distributors.4
10
It is unquestioned that the appellee, American Building Maintenance Industries, was and is actively engaged in interstate commerce. But on the basis of the above facts the District Court concluded that at the time of the challenged acquisition and merger neither Benton Management Corp. nor Benton Maintenance Co. was 'engaged in commerce' within the meaning of § 7 of the Clayton Act. Accordingly, the District Court held that there had been no violation of that law.
11
The Government's appeal raises two questions: First, does the phrase 'engaged in commerce' as used in § 7 of the Clayton Act encompass corporations engaged in intrastate activities that substantially affect interstate commerce? Second, if the language of § 7 requires proof of actual engagement in the flow of interstate commerce, were the Benton companies' activities sufficient to satisfy that standard?
II
12
Section 7 of the Clayton Act, 15 U.S.C. § 18, provides in pertinent part:
13
'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.'
14
Under the explicit reach of § 7, therefore, not only must the acquiring corporation be 'engaged in commerce,' but the corporation or corporations whose stock or assets are acquired must be 'engaged also in commerce.'5
15
The distinct 'in commerce' language of § 7, the Court observed earlier this Term, 'appears to denote only persons or activities within the flow of interstate commerce—the practical, economic continuity in the generation of goods and services for interstater markets and their transport and distribution to the consumer. If this is so, the jurisdictional requirements of (§ 7) cannot be satisfied merely by showing that allegedly anticompetitive acquisitions and activities affect commerce.' Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 195, 95 S.Ct. 392, 398, 42 L.Ed.2d 378. But even more unambiguous support for this construction of the narrow 'in commerce' language enacted by Congress in § 7 of the Clayton Act is to be found in an earlier decision of this Court, FTC v. Bunte Bros., 312 U.S. 349, 61 S.Ct. 580, 85 L.Ed. 881.
16
In Bunte Bros., the Court was required to determine the scope of § 5 of the Federal Trade Commission Act, 38 Stat. 719, as amended, 15 U.S.C. § 45, which authorized the Commission to proceed only against 'unfair methods of competition in commerce.' The Court squarely held that the Commission's § 5 jurisdiction was limited to unfair methods of competition occurring in the flow of interstate commerce. The contention that 'in commerce' should be read as if it meant 'affecting interstate commerce' was emphatically rejected: 'The construction of § 5 urged by the Commission would thus give a federal agency pervasive control over myriads of local businesses in matters heretofore traditionally left to local custom or local law. . . . An inroad upon local conditions and local standards of such far-reaching import as is involved here, ought to await a clearer mandate from Congress.' 312 U.S., at 354—355,6 61 S.Ct. at 583.
17
The phrase 'in commerce' does not, of course, necessarily have a uniform meaning whenever used by Congress. See, e.g., Kirschbaum Co. v. Walling, 316 U.S. 517, 520—521, 62 S.Ct. 1116, 1118, 86 L.Ed. 1638. But the Bunte Bros. construction of § 5 of the Federal Trade Commission Act is particularly relevant to a proper interpretation of the 'in commerce' language in § 7 of the Clayton Act since both sections were enacted by the 63d Congress, and both were designed to deal with closely related aspects of the same problem—the protection of free and fair competition in the Nation's marketplaces. See FTC v. Raladam Co., 283 U.S. 643, 647 648, 51 S.Ct. 587, 590, 75 L.Ed. 1324.
18
The Government argues, however, that despite its basic identity to § 5 of the Federal Trade Commission Act, the phrase 'engaged in commerce' in § 7 of the Clayton Act should be interpreted to mean engaged in any activity that is subject to the constitutional power of Congress over interstate commerce. The legislative history of the Clayton Act, the Government contends, demonstrates that the 'in commerce' language of § 7 was intended to be coextensive with the reach of congressional power under the Commerce Clause. Moreover, the argument continues, § 7 was designed to supplement the Sherman Act and to arrest the creation of trusts or monopolies in their incipiency, United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 589, 77 S.Ct. 872, 875, 1 L.Ed.2d 1057 and it would be anomalous, in light of this history and purpose, to hold that the Clayton Act's jurisdictional scope is more restricted than that of the Sherman Act.
19
It is certainly true that the Court has held that in the Sherman Act, 'Congress wanted to go to the utmost extent of its Constitutional power in restraining trust and monopoly agreements . . ..' United States v. South-Eastern Underwriters Assn., 322 U.S. 533, 558, 64 S.Ct. 1162, 1176, 88 L.Ed. 1440. Accordingly, the Sherman Act has been applied to local activities which, although not themselves within the flow of interstate commerce, substantially affect interstate commerce. See, e.g., Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 68 S.Ct. 996, 92 L.Ed.2d 1328; United States v. Employing Plasterers Assn., 347 U.S. 186, 74 S.Ct. 452, 98 L.Ed. 618. But the Government's argument that § 7 should likewise be read to reach intrastate corporations affecting interstate commerce is not persuasive.
20
Unlike § 7, with its precise 'in commerce' language, § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 1, prohibits every contract, combination, or conspiracy 'in restraint of trade or commerce among the several States . . ..' 'The jurisdictional reach of § 1 thus is keyed directly to effects on interstate markets and the interstate flow of goods.' Gulf Oil Corp. v. Copp Paving Co., 419 U.S., at 194, 95 S.Ct. at 398. No similar concern for the impact of intrastate conduct on interstate commerce is evident in § 7's 'engaged in commerce' requirements.
21
The Government's contention that it would be anomalous for Congress to have strengthened the antitrust laws by curing perceived deficiencies in the Sherman Act and at the same time to have limited the jurisdictional scope of those remedial provisions founders also on the express language of § 7. Thus, although the Sherman Act proscribes every contract, combination, or conspiracy in restraint of trade or commerce, whether entered into by a natural person, partnership, corporation, or other form of business organization, § 7 of the Clayton Act is explicitly limited to corporate acquisitions. Yet it surely could not be seriously argued that this 'anomaly' must be ignored, and § 7 extended to reach an allegedly anticompetitive acquisition of partnership assets.7 There is no more justification for concluding that the equally explicit 'in commerce' limitation on § 7's reach should be disregarded.
22
More importantly, whether or not Congress in enacting the Clayton Act in 1914 intended to exercise fully its power to regulate commerce, and whatever the understanding of the 63d Congress may have been as to the extent of its Commerce Clause power, the fact is that when § 7 was re-enacted in 1950, the phrase 'engaged in commerce' had long since become a term of art, indicating a limited assertion of federal jurisdiction. In Schechter Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570, for example, the Court had drawn a sharp distinction between activities in the flow of interstate commerce and intrastate activities that affect interstate commerce. Id., at 542—544, 55 S.Ct., at 848. Similarly, the Court's opinion in NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, two years later, had emphasized that congressional authority to regulate commerce was not limited to activities actually 'in commerce,' but extended as well to conduct that substantially affected interstate commerce. And the Bunte Bros. decision in 1941 had stressed the distinction between unfair methods of competition 'in commerce' and those that 'affected commerce,' in limiting the scope of the Commission's authority under the 'in commerce' language of § 5 of the Federal Trade Commission Act.
23
Congress, as well, in the years prior to 1950 had repeatedly acknowledged its recognition of the distinction between legislation limited to activities 'in commerce,' and an assertion of its full Commerce Clause power so as to cover all activity substantially affecting interstate commerce. Section 10(a) of the National Labor Relations Act, 49 Stat. 453, as amended, 29 U.S.C. § 160(a), for example, empowered the National Labor Relations Board to prevent any person from engaging in an unfair labor practice 'affecting commerce.' Section 2(7) of the Act, 49 Stat. 450, as amended, 29 U.S.C. § 152(7), in turn, defined 'affecting commerce' to mean 'in commerce, or burdening or obstructing commerce or the free flow of commerce . . ..' Similarly, the Bituminous Coal Act of 1937, c. 127, 50 Stat. 72, providing for the fixing of prices for bituminous coal, the proscription of unfair trade practices, and the establishment of marketing procedures, applied to sales and transactions 'in or directly affecting interstate commerce in bituminous coal.' 50 Stat. 76.
24
In marked contrast to the broad 'affecting commerce' jurisdictional language utilized in those statutes, however, Congress retained the narrower 'in commerce' formulation when it amended and re-enacted § 7 of the Clayton Act in 1950. The 1950 amendments were designed in large part to 'plug the loophole' that existed in § 7 as initially enacted in 1914, by expanding its coverage to include acquisitions of assets, as well as acquisitions of stock. In addition, other language in § 7 was amended to make plain the full reach of the section's prohibitions. See Brown Show Co. v. United States, 370 U.S. 294, 311—323, 82 S.Ct. 1502, 1516, 8 L.Ed.2d 510. Yet, despite the sweeping changes made to effectuate those purposes, and despite decisions of this Court, such as Bunte Bros., that had limited the reach of the phrase 'in commerce' in similar regulatory legislation, Congress preserved the requirement that both the acquiring and the acquired companies be 'engaged in commerce.'
25
This congressional action cannot be disregarded, as the Government would have it, as simply a result of congressional inattention, for Congress was fully aware in enacting the 1950 amendments that both the original and the newly amended versions of § 7 were limited to corporations 'engaged in commerce.' See, e.g., H.R.Rep.No.1191, 81st Cong., 1st Sess., 5—6. Rather, the decision to re-enact § 7 with the same 'in commerce' limitation can be rationally explained only in terms of a legislative intent, at least in 1950, not to apply the rather drastic prohibitions of § 7 of the Clayton Act to the full range of corporations potentially subject to the commerce power.
26
Finally, the Government's contention that a limitation of the scope of § 7 to its plain meaning would undermine the section's remedial purpose is belied by the past enforcement policy of the Federal Trade Commission and the Department of Justice—the two governmental agencies charged with enforcing the section's prohibitions. Clayton Act §§ 11, 15, 15 U.S.C. §§ 21(a), 25. The Federal Trade Commission has repeatedly held that § 7 applies only to an acquisition in which both the acquired and the acquiring companies are engaged directly in interstate commerce. E.g., Foremost Dairies, Inc., 60 F.T.C. 944, 1068—1069; Beatrice Foods Co., 67 F.T.C. 473, 730—731; Mississippi River Fuel Corp., 75 F.T.C. 813, 918. And while the Government explains that it has never taken a formal position that § 7 does not apply to intrastate firms affecting interstate commerce, it does concede that previous § 7 cases brought by the Department of Justice have invariably involved firms clearly engaged in the flow of interstate commerce.8 In light of this consistent enforcement practice, it is difficult to credit the argument that § 7's remedial purpose would be frustrated by construing literally § 7's twice-enacted 'in commerce' requirement.
27
In sum, neither the legislative history nor the remedial purpose of § 7 of the Clayton Act, as amended and re-enacted in 1950, supports an expansion of the scope of § 7 beyond that defined by its express language. Accordingly, we hold that the phrase 'engaged in commerce' as used in § 7 of the Clayton Act means engaged in the flow of interstate commerce, and was not intended to reach all corporations engaged in activities subject to the federal commerce power.
III
28
The Government alternatively argues that even if § 7 applies only to corporations engaged in the flow of interstate commerce, the Benton companies' activities at the time of the acquisition and merger placed them in that flow. To support this contention the Government relies primarily on the fact that the Benton companies performed a substantial portion of their janitorial services for enterprises which were themselves clearly engaged in selling products in interstate and international markets and in providing interstate communication facilities.9 But simply supplying localized services to a corporation engaged in interstate commerce does not satisfy the 'in commerce' requirement of § 7.
29
To be engaged 'in commerce' within the meaning of § 7, a corporation must itself be directly engaged in the production, distribution, or acquisition of goods or services in interstate commerce. See Gulf Oil Corp. v. Copp Paving Co., 419 U.S., at 195, 95 S.Ct. at 398. At the time of the acquisition and merger, however, the Benton companies were completely insulated from any direct participation in interstate markets or the interstate flow of goods or services. The firms' activities were limited to providing janitorial services within Southern California to corporations that made wholly independent pricing decisions concerning their own products. Consequently, whether or not their effect on interstate commerce was sufficiently substantial to come within the ambit of the constitutional power of Congress under the Commerce Clause, in providing janitorial services the Benton companies were not themselves 'engaged in commerce' within the meaning of § 7. Cf. Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S., at 227—235,10 68 S.Ct. at 1001.
30
Similarly, although the Benton companies used janitorial equipment and supplies manufactured in large part outside of California, they did not purchase them directly from suppliers located in other States. Cf. Foremost Dairies, Inc., 60 F.T.C., at 1068—1069. Rather, those products were purchased in intrastate transactions from local distributors. Once again, therefore, the Benton justice would be poorly served.' Id., participation in interstate commerce by the pricing and other marketing decisions of independent intermediaries. By the time the Benton companies purchased their janitorial supplies, the flow of commerce had ceased. See Schechter Corp. v. United States, 295 U.S., at 542 543,11 55 S.Ct. at 848.
31
In short, since the Benton companies did not participate directly in the sale, purchase, or distribution of goods or services in interstate commerce, they were not 'engaged in commerce' within the meaning of § 7 of the Clayton Act.12 The District Court, therefore, properly concluded that the acquisition and merger in this case were not within the coverage of § 7 of the Clayton Act.
32
The judgment of the District Court is affirmed.
33
Judgment affirmed.
34
Mr. Justice WHITE, concurring.
35
I concur in the judgment and in Parts I and II of the Court's opinion. I do not join Part III, for I doubt that the interposition of a California wholesaler or distributor between the Benton companies and out-of-state manufacturers of janitorial supplies necessarily requires that the Benton companies by found not to be 'in commerce' merely because they buy directly from out-of-state suppliers only a negligible amount of their supplies. For the purposes of § 7 of the Clayton Act, a remedial statute, the regular movement of goods from out-of-state manufacturer to local wholesaler and then to retailer or institutional consumer is at least arguably sufficient to place the latter in the stream of commerce, particularly where it appears that when the complaint was filed, cf. United States v. Penn-Olin Co., 378 U.S. 158, 168, 84 S.Ct. 1710, 1715, 12 L.Ed.2d 775 (1964), the 'local' distributor from which supplies were being purchased was a wholly owned subsidiary of the acquiring company, a national concern admittedly in commerce. In this case, however, the United States makes no such contention and appellee's motion for summary judgment was not opposed by the Government on that theory. It is therefore inappropriate to address the issue at this time; and on this record, I concur in the judgment that the Benton companies were not in commerce.
36
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN joins, dissenting.
37
For the reasons set forth in my dissenting opinion in Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 204— 207, 95 S.Ct. 392, 403, 42 L.Ed.2d 378 (1974), decided earlier this Term, I cannot agree that the 'in commerce' language of § 7 of the Clayton Act, 38 Stat. 731, as amended, 15 U.S.C. § 18, was intended to give that statute a narrower jurisdictional reach than the 'affecting commerce' standard which we have read into the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 1 et seq. On the record in this case, it is beyond question that the activities of the acquired firms have a substantial effect on interstate commerce. I would therefore reverse the summary judgment granted below and remand for further proceedings in the District Court.
38
Mr. Justice BLACKMUN, dissenting.
39
I believe that the scope of the Clayton Act should be held to extend to acquisitions and sales having a substantial effect on interstate commerce. I therefore dissent. For me, the reach of § 7 of the Clayton Act, 38 Stat. 731, as amended, 15 U.S.C. § 18, is as broad as that of the Sherman Act, and should not be given the narrow construction we properly have given, just this Term, to the Robinson-Patman Act. Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 95 S.Ct. 392, 42 L.Ed.2d 378 (1974).
40
For more than a quarter of a century the Court has held that the Sherman Act should be construed broadly to reach the full extent of the commerce power, and to proscribe those restraints that substantially affect interstate commerce. See, e.g., Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 234, 68 S.Ct. 996, 1005, 92 L.Ed. 1328 (1948); United States v. South-Eastern Underwriters Assn., 322 U.S. 533, 558, 64 S.Ct. 1162, 1176, 88 L.Ed. 1440 (1944). The Clayton Act was enacted to supplement the Sherman Act, and to 'arrest in its incipiency' any restraint or substantial lessening of competition. United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 589, 77 S.Ct. 872, 875, 1 L.Ed.2d 1057 (1957). To ascribe to Congress the intent to exercise less than its full commerce power in the Clayton Act, which has as its purpose the supplementation of the protections afforded by the Sherman Act, is both highly anomalous and, it seems to me, unwarranted. Section 7 should not be limited, as the Court limits it today, to corporations engaged in interstate commerce, but should be held to include those intrastate activities substantially affecting interstate commerce.
1
The Government appealed directly to this Court pursuant to § 2 of the Expediting Act, 32 Stat. 823, as amended, 15 U.S.C. § 29. The Government's notice of appeal was filed on February 7, 1974, before the effective date of the recent amendments to the Act. See Antitrust Procedures and Penalties Act, Pub.L. 93—528, § 7, 88 Stat. 1710.
2
At the time of the acquisition and merger, Jess E. Benton, Jr., owned all the stock of J. E. Benton Management Corp., and 85% of the stock of Benton Maintenance Co. In addition to supplying janitorial services, Benton Management conducted some real estate business and provided building management services entirely within the Southern California area. Benton Maintenance was engaged exclusively in providing janitorial services. The Government has made no claim that the nonjanitorial activities of Benton Management Corp. have any bearing on the issues presented by this case.
3
The District Court found that the Benton companies made only 10 out-of-state telephone calls related to business activities during the 18-month period prior to the challenged acquisition and merger. The charges for those calls were $19.78. During the same period the Benton companies sent or received only some 200 interstate letters, a number of which were either directed to or received from governmental agencies such as the Internal Revenue Service.
4
Although many of the janitorial supplies were manufactured outside of California, the District Court found that Benton's direct interstate purchases for the 16-month period prior to the challenged acquisition and merger amounted to a total of less than $140.
5
'Commerce,' as defined by § 1 of the Clayton Act, 15 U.S.C. § 12, means 'trade or commerce among the several States and with foreign nations . . ..' The phrase 'engaged in commerce' is not defined by the Act.
6
Congress recently acted to provide such a 'clearer mandate,' amending the Federal Trade Commission Act by replacing the phrase 'in commerce' with 'in or affecting commerce' in §§ 5, 6, and 12 of the Act. Magnuson-Moss Warranty—Federal Trade Commission Improvement Act, § 201, 88 Stat. 2193, 15 U.S.C. § 45 (1970 ed., Supp. IV). The amendments were specifically designed to expand the Commission's jurisdiction beyond the limits defined by Bunte Bros. and to make it coextensive with the constitutional power of Congress under the Commerce Clause. See H.R.Rep.No.93 1107, pp. 29—31 (1974); U.S.Code Cong. & Admin.News 1973, p. 7702.
7
The Federal Trade Commission has held that such acquisitions may be challenged under § 5 of the Federal Trade Commission Act, which forbids unfair methods of competition on the part of persons and partnerships, as well as corporations. Beatrice Foods Co., 67 F.T.C. 473, 724—727. It is, of course, well established that the Commission has broad power to apply § 5 to reach transactions which violate the standards of the Clayton Act, although technically not subject to the Act's prohibitions. See, e.g., FTC v. Brown Shoe Co., 384 U.S. 316, 320—321, 86 S.Ct. 1501, 1504, 16 L.Ed.2d 587; cf. FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 92 S.Ct. 898, 31 L.Ed.2d 170. We have no occasion in the case now before us to decide whether application of § 5 to assets acquisitions by or from noncorporate business entities constitutes an appropriate exercise of that power; nor need we consider whether the acquisition of the stock or assets of an intrastate corporation that affected interstate commerce could be challenged by the Commission under the recent jurisdictional amendments to § 5. See n. 6, supra. See generally Oppenheim, Guides to Harmonizing Section 5 of the Federal Trade Commission Act with the Sherman and Clayton Acts, 59 Mich.L.Rev. 821; Reeves, Toward a Coherent Antitrust Policy: The Role of Section 5 of the Federal Trade Commission Act in Price Discrimination Regulation, 16 B.C.Ind. & Com.L.Rev. 151, 167—171.
8
Despite this concession, the Government somewhat inconsistently argues that the present case does not in fact involve a substantial departure from the previous § 7 enforcement pattern. In the past, the Government asserts, the United States has challenged acquisitions of 'essentially local businesses that affected interstate commerce.' United States v. Von's Grocery Co., 384 U.S. 270, 86 S.Ct. 1478, 16 L.Ed.2d 555 is cited as an example of such a challenge. But the District Court in that case expressly found that both of the merging grocery chains directly participated in the flow of interstate commerce because each purchased more than 51% of its supplies from outside of California. See 233 F.Supp. 976, 978. And in United States v. County National Bank, D.C.Vt., 339 F.Supp. 85, the only other case cited by the Government to support its contention that the case now before us does not involve a departure from previous enforcement policy, the sole question was quite different from that here in issue—whether the 'Bennington area' was a 'section of the country' within the meaning of § 7 of the Clayton Act.
9
The Benton companies derived 80% to 90% of their revenues from performance of janitorial service contracts for the Los Angeles facilities of interstate and international corporations such as Mobil Oil Corp., Rockwell International Corp., Teledyne, Inc., and Pacific Telephone & Telegraph Co.
10
The Government notes that this Court has held that maintenance workers servicing buildings in which goods are produced for interstate markets are covered by Fair Labor Standards Act provisions applicable to employees engaged in the production of goods for commerce. See, e.g., Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; Martino v. Michigan Window Cleaning Co., 327 U.S. 173, 66 S.Ct. 379, 90 L.Ed. 603. In Kirschbaum the Court reasoned: 'Without light and heat and power the tenants could not engage, as they do, in the production of goods for interstate commerce. The maintenance of a safe, habitable building is indispensable to that activity.' 316 U.S., at 524, 62 S.Ct. at 1120. Similarly, the Government argues, in the present case the Benton janitorial services were so essential to the interstate operations of their customers that they, too, should be considered part of the flow of commerce.
The Fair Labor Standards Act, however, is not confined, as is § 7 of the Clayton Act, to activities that are actually 'in commerce.' At the time of the decisions relied upon by the Government, the Act provided that 'an employee shall be deemed to have been engaged in the production of goods (for interstate commerce) if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any process or occupation necessary to the production thereof . . ..' Fair Labor Standards Act of 1938, § 3(j), 52 Stat. 1061, as amended, 29 U.S.C. § 203(j) (1946 ed.) (emphasis added). Congress thus expressly intended to reach not only those employees who directly participated in the production of goods for interstate markets, but also those employees outside the flow of commerce but nonetheless necessary to it. Although Congress in 1950 could constitutionally have extended § 7 of the Clayton Act to reach comparable roughly termed by the Circuit Court supra, at 279-281.
11
The Government does not suggest that the purchase of janitorial equipment and supplies from local distributors placed the Benton companies in the flow of commerce, although it does argue that because of those purchases the firms had a substantial effect on interstate commerce—an issue not relevant in light of our construction of the reach of § 7 of the Clayton Act.
12
The Government contends that the sale of janitorial services 'necessarily' involves interstate communications, solicitations, and negotiations, and that such interstate activity should be viewed as part of the flow of interstate commerce. The merits of that argument need not be considered, however, since the record before the District Court does not support a finding that any of the Benton janitorial service contracts were obtained through interstate solicitation or negotiation.
| 78
|
422 U.S. 358
95 S.Ct. 2296
45 L.Ed.2d 245
CITY OF RICHMOND, VIRGINIA, Appellant,v.UNITED STATES et al.
No. 74—201.
Argued April 23, 1975.
Decided June 24, 1975.
Syllabus
In 1969 a Virginia court approved annexation by the city of Richmond, effective January 1, 1970, of an adjacent area in Chesterfield County, which reduced the proportion of Negroes in Richmond from 52% to 42%. The preannexation nine-man city council, which was elected at large, had three members who were endorsed by a Negro civic organization. In a postannexation at-large election in 1970, three of the nine members elected were also endorsed by that organization. Following this Court's holding in Perkins v. Matthews, 400 U.S. 378, 91 S.Ct. 431, 27 L.Ed.2d 476, that § 5 of the Voting Rights Act of 1965 (Act) reaches the extension of a city's boundaries through annexation, the city of Richmond unsuccessfully sought the Attorney General's approval of the Chesterfield County annexation. Meanwhile respondent Holt brought an action in federal court in Virginia challenging the annexation on constitutional grounds, and the District Court issued a decision, Holt v. City of Richmond, 334 F.Supp. 228 (Holt I), holding that the annexation had an illegal racial purpose, and ordered a new election. The Court of Appeals reversed. In the interim, Holt had brought another suit (Hotl II) in the District Court seeking to have the annexation invalidated under § 5 of the Act for lack of the approval required by the Act. As the result of the Holt II suit, which was stayed pending the outcome of the instant litigation, further city council elections have been enjoined and the 1970 council has remained in office. Having received no response from the Attorney General to a renewed approval request, the city brought this suit in the District Court for the District of Columbia, seeking approval of the annexation and relying on the Court of Appeals' decision in Holt I. Shortly thereafter, the District Court decided City of Petersburg v. United States, 354 F.Supp. 1021, aff'd, 410 U.S. 962, 93 S.Ct. 1441, 35 L.Ed.2d 698, invalidating another Virginia annexation plan where at-large council elections were the rule before and after annexation but indicating that approval could be obtained if 'modifications calculated to neutralize . . . any adverse effect upon the political participation of black voters are adopted, i.e., that the plaintiff shift from an at-large to a ward system of electing its city councilmen.' Richmond thereafter developed and the Attorney General approved a plan for nine wards, four with substantial black majorities, four with substantial white majorities, and the ninth with a 59% white, 41% black division. Following apposition by intervenors, the plan was referred to a Special Master, who concluded that the city had not met its burden of proving that the annexation's purpose was not to dilute the black vote, and that the ward plan did not cure the racially discriminatory purpose. Additionally, he concluded that the annexation's diluting effect had not been dissipated to the greatest extent possible, that no acceptable offsetting economic or administrative benefits had been shown, and that deannexation was the only acceptable remedy for the § 5 violations. Except for the deannexation recommendation, the District Court accepted the Special Master's findings and conclusions. The District Court concluded that '(i)f the proportion of blacks in the new citizenry from the annexed area is appreciably less than the proportion of blacks living within the city's old boundaries, and particularly if there is a history of racial bloc voting in the city, the voting power of black citizens as a class is diluted and thus abridged.' The matter of the remedy to be fashioned was left for resolution in the stillpending Holt II. Held:
1. An annexation reducing the relative political strength of the minority race in the enlarged city as compared with what it was before the annexation does not violate § 5 of the Act as long as the postannexation system fairly recognizes, as it does in this case, the minority's political potential. Pp. 367-372.
(a) Although Perkins v. Matthews, supra, held that boundary changes by annexation have a sufficient potential for racial voting discrimination to require § 5 approval procedures, this does not mean that every annexation effecting a percentage reduction in the Negro population is prohibited by § 5. Though annexation of an area with a white majority, combined with at-large councilmanic elections and racial voting create or enhance the power of the white majority to exclude Negroes totally from the city council, that consequence can be satisfactorily obviated if at-large elections are replaced by a ward system of choosing councilmen, affording Negroes representation reasonably equivalent to their political strength in the enlarged community. Though the black community, if there is racial bloc voting, will have fewer councilmen, a different city council and an enlarged city are involved in the annexation. Negroes, moreover, will not be underrepresented. Pp. 368-371.
(b) The plan here under review does not undervalue the postannexation black voting strength or have the effect of denying or abridging the right to vote within the meaning of § 5. Pp. 371-372.
2. Since § 5 forbids voting changes made for the purpose of denying the vote for racial reasons, further proceedings are necessary to update and reassess the evidence bearing upon the issue whether the city has sound, nondiscriminatory economic and administrative reasons for retaining the annexed area, it not being clear that the Special Master and the District Court adequately considered the evidence in deciding whether there are now justifiable reasons for the annexation that took place on January 1, 1970. Pp. 372-379.
376 F.Supp. 1344, vacated and remanded.
1
Lawrence G. Wallace, Washington, D.C., for appellee United States in support of the appellant.
2
Charles S. Rhyne, Washington, D.C., for appellant.
3
Armand Derfner, Washington, D.C., for appellees Crusade for Voters of Richmond and others.
4
W. H. C. Venable, Richmond, Va., for appellees Holt and others.
5
Mr. Justice WHITE delivered the opinion of the Court.
6
Under § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U.S.C. § 1973c,1 a State or subdivision thereof subject to the Act may not enforce any change in 'any voting qualification or prerequisite to voting' unless such change has either been approved by the Attorney General or that officer has failed to act within 60 days after submission to him, or unless in a suit brought by such State or subdivision the United States District Court for the District of Columbia has issued its declaratory judgment that such change 'does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color . . ..' Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971), held that § 5 reaches the extension of a city's boundaries through the process of annexation. Here, the city of Richmond annexed land formerly in Chesterfield County, and the issue is whether the city in its declaratory judgment action brought in the District Court for the District of Columbia has carried its burden of proof of demonstrating that the annexation had neither the purpose nor the effect of denying or abridging the right to vote of the Richmond Negro community on account of its race or color.
7
* The controlling Virginia statutes2 permit cities to annex only after obtaining a favorable judgment from a specially constituted three-judge annexation court. In 1962, the city sought judicial approval of two annexation ordinances, one seeking to annex approximately 150 square miles of Henrico County and the other approximately 51 square miles of Chesterfield County. The Henrico case, which was protracted, proceeded first. In 1965, the annexation court authorized the annexation of 16 square miles of Henrico County; but because of a $55 million financial obligation which, as it turned out, annexation would entail, the city council determined that the annexation was not in the city's best interest. The Henrico case was accordingly dismissed.
8
The city then proceeded with the Chesterfield case. In May 1969, a compromise line was approved by the city and Chesterfield County and incorporated in a decree of July 12, 1969,3 which awarded the city approximately 23 square miles of land adjacent to the city in Chesterfield County. The preannexation population of the city as of 1970 was 202,359, of which 104,207 or 52% were black citizens. The annexation of the city was therefore 249,621, of whom 1,557 were black and 45,705 were nonblack. The postannexation population of the city was therefore 249,621 of which 105,764 or 42% were Negroes. The annexation became effective on January 1, 1970, and the city has exercised jurisdiction over the area since that time.4
9
Before and immediately after annexation, the city had a nine-man council, which was elected at large. In 1968, three candidates endorsed by the Crusade for Voters of Richmond, a black civic organization, were elected to the council. In the postannexation, at-large election in 1970, three of the nine members elected had also received the endorsement of the Crusade.
10
On January 14, 1971, a divided Court in Perkins v. Matthews, supra, held that § 5 of the Voting Rights Act applied to city annexations. On January 28, 1971, the city of Richmond sought the Attorney General's approval of the Chesterfield annexation. On May 7, 1971, after requesting and receiving additional materials from the city, the Attorney General declined to approve the voting change, which he deemed the annexation to represent, saying that the annexation substantially increased the proportion of whites and decreased the proportion of blacks in the city and that the annexation 'inevitably tends to dilute the voting strength of black voters.' 1 App. 24. The Attorney General suggested, however, that '(y)ou may, of course, wish to consider means of accomplishing annexation which would avoid producing an impermissible adverse racial impact on voting, including such techniques as single-member districts.' Ibid. Following reversal by this Court of the District Court's judgment in Chavis v. Whitcomb, 305 F.Supp. 1364 (SD Ind.1969), rev'd, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971), a decision on which the Attorney General had relied in disapproving the Chesterfield annexation, the city's request for reconsideration was denied by the Attorney General on September 30, 1971, again with the suggestion that 'single-member, non-racially drawn councilmanic districts' would be 'one means of minimzing the racial effect of the annexation . . ..' 1 App. 32.
11
Meanwhile on February 4, 1971, respondent Curtis Holt brought an action (Holt I) in the United States District Court for the Eastern District of Virginia, asserting that the annexation denied Richmond Negroes their rights under the Fifteenth Amendment. In November 1971, the District Court ruled in that suit that the annexation had had an illegal racial purpose and ordered a new election of the city council, seven councilmen to be elected at large from the old city and two primarily from the annexed area. Holt v. City of Richmond, 334 F.Supp. 228. The Court of Appeals for the Fourth Circuit, sitting en banc, reversed on May 3, 1972, 4 Cir., 459 F.2d 1093, cert. denied, 408 U.S. 931, 92 S.Ct. 2510, 33 L.Ed.2d 343 (1972), holding that no Fifteenth Amendment rights were violated, that the city had valid reasons for seeking to annex in 1962, and that the record would support no finding that the 1969 annexation was not motivated by the same considerations.
12
On December 9, 1971, Holt began another suit (Holt II) in the Eastern District of Virginia, this time seeking to have the annexation declared invalid under § 5 of the Voting Rights Act for failure to have secured either the approval of the Attorney General or of the United States District Court for the District of Columbia. As the result of this litigation, which was stayed pending the outcome of the present suit, further city council elections have been enjoined and the council elected in 1970 has remained in office.
13
Upon denial of certiorari in Holt I, supra, the Attorney General was again asked to modify his disapproval of the annexation because of the Fourth Circuit's decision that no impermissible purpose had accompanied the annexation and that Fifteenth Amendment rights had not been violated. Receiving no response from the Attorney General, the city filed the present suit in the United State District Court for the District of Columbia on August 25, 1972, seeking approval of the annexation and relying on the Fourth Circuit's decision in Holt I. Respondent Holt and the Crusade for Voters intervened.
14
Shortly thereafter, City of Petersburg v. United States, 354 F.Supp. 1021 (1972), was decided by the United States District Court for the District of Columbia. There, the District Court held unvalid an annexation by a Virginia city, where at-large council elections were the rule both before and after the annexation, but indicated that approval could be had 'on the condition that modifications calculated to neutralize to the extent possible any adverse effect upon the political participation of black voters are adopted, i.e., that the plaintiff shift from an at-large to a ward system of electing its city councilmen.' Id., at 1031. We affirmed that judgment. 410 U.S. 962, 93 S.Ct. 1441, 35 L.Ed.2d 698 (1973).
15
Thereafter, Richmond developed and submitted to the Attorney General various plans for establishing councilmanic districts in the city. With some modification, to which the city council agreed, the Attorney General indicated approval of one of these plans. This was a nine-ward proposal under which four of the wards would have substantial black majorities, four wards substantial white majorities, and the ninth a racial division of approximately 59% white and 41% black. The city and the Attorney General submitted this plan to the district Court for the District of Columbia in the form of a consent judgment. The intervenors opposed it, and the District Court referred the case to a Special Master for hearings and recommendations.5 The Special Master submitted recommended findings of fact and conclusions of law. Based on the statements of various officials of the city and other events which he found to have taken place, the Master concluded that the city had not met its burden of proving that the annexation did not have the purpose of diluting the right of black persons to vote and that the ward plan did not cure the discriminatory racial purpose accompanying the annexation. In addition, he concluded that in any event the diluting effect of the annexation had not been dissipated to the greatest extent reasonably possible, that the city had not demonstrated any acceptable counterbalancing economic and administrative benefits, and that deannexation was the only acceptable remedy for the violations of § 5 which had been found.
16
The District Court, 376 F.Supp. 1344 (1974), essentially accepted the findings and conclusions of the Special Master except for his recommendation with respect to deannexation. Based on the Special Master's findings the District Court concluded that the city's '1970 changes in its election practices following upon the annexation were discriminatory in purpose and effect and thus violative of Section 5's substantive standards as well as the section's procedural command that prior approval be obtained from the Attorney General or this court.' Id., at 1352. The District Court went on to hold that the invidious racial purpose underlying the annexation had not been eliminated since no 'objectively verifiable, legitimate purpose for annexation' had been shown and since the ward plan does not effectively eliminate or sufficiently compensate for the dilution of the black voting power resulting from the annexation. Id., at 1353—1354. Furthermore, in fashioning the ward system the city had not, the court held, minimized the dilution of black voting power to the greatest possible extent, relying for this conclusion on another ward plan presented by intervenors which would have improved the chance that Negroes would control five out of the nine wards. The annexation could not be approved, therefore, because it also had the forbidden effect of denying the right to vote of the Negro community in Richmond.
17
The District Court, however, declined to order deannexation, and left the matter of the remedy to be fashioned in Holt II, still pending in the Eastern District of Virginia. We noted probable jurisdiction, 419 U.S. 1067, 95 S.Ct. 653, 42 L.Ed.2d 663 (1974).
II
18
We deal first with whether the annexation involved here had the effect of denying or abridging the right to vote within the contemplation of § 5 of the Voting Rights Act.
19
Perkins v. Matthews, supra, held that changes in city boundaries by annexation have sufficient potential for denying or abridging the right to vote on account of race or color that prior to becoming effective they must have the administrative or judicial approval required by § 5. But it would be difficult to conceive of any annexation that would not change a city's racial composition at least to some extent; and we did not hold in Perkins that every annexation effecting a reduction in the percentage of Negroes in the city's population is prohibited by § 5. We did not hold, as the District Court asserted, that '(i)f the proportion of blacks in the new citizenry from the annexed area is appreciably less than the proportion of blacks living within the city's old boundaries, and particularly if there is a history of racial bloc voting in the city, the voting power of black citizens as a class is diluted and thus abridged,' 376 F.Supp., at 1348 (footnote omitted), and that the annexation thus violates § 5 and cannot be approved.
20
In City of Petersburg v. United States, supra, the city sought a declaratory judgment that a proposed annexation satisfied the standards of § 5. Councilmen were elected at large; Negroes made up more than half the population, but less than half the voters; and the area to be annexed contained a heavy white majority. A three-judge District Court for the District of Columbia, although finding no evidence of a racially discriminatory purpose, held that in the context of at-large elections, the annexation would have the effect of denying the right to vote because it would create or perpetuate a white majority in the city and, positing racial voting which was found to be prevalent, it would enhance the power of the white majority totally to exclude Negroes from the city council. The court held, however, that a reduction of a racial group's relative political strength in the community does not always deny or abridge the right to vote within the meaning of § 5:
21
'If the view of the Diamond intervenors concerning what constitutes a denial or abridgment in annexation cases were to prevail, no court could ever approve any annexation in areas covered by the Voting Rights Act if there were a history of racial bloc-voting in local elections for any office and if the racial balance were to shift in even the smallest degree as a result of the annexation. It would not matter that the annexation was essential for the continued economic health of a municipality or that it was favored by citizens of all races; because if the demographic makeup of the surrounding areas were such that any annexation would produce a shift of majority strength from one race to another, a court would be required to disapprove it without even considering any other evidence, and the municipality would be effectively locked into its original boundaries. This Court cannot agree that this was the intent of Congress when it enacted the Voting Rights Act.' 354 F.Supp., at 1030 (footnote omitted).
22
The court went on to hold that the effect on the right to vote forbidden by § 5, which had been found to exist in the case, could be cured by a ward plan for electing councilmen in the enlarged city:
23
'The Court concludes then, that this annexation, insofar as it is a mere boundary change and not an expansion of an at-large system, is not the kind of discriminatory change which Congress sought to prevent; but it also concludes, in accordance with the Attorney General's findings, that this annexation can be approved only on the condition that modifications calculated to neutralize to the extent possible any adverse effect upon the political participation of black voters are adopted, i.e., that the plaintiff shift from an at-large to a ward system of electing its city councilmen.' Id., at 1031.
24
The judgment entered by the District Court in the Petersburg case, although refusing the declaratory judgment in the context of at-large elections, retained jurisdiction and directed that 'plaintiff prepare a plan for conducting its city council elections in accordance with the requirements of the Voting Rights Act as interpreted by this Court . . ..' Jurisdictional Statement in City of Petersburg v. United States, No. 72—865, O.T.1972, p. 25a. In its appeal, the city presented the question, among others, whether the District Court was correct in conditioning approval of the annexation upon the adoption of the plan to elect councilmen by wards. We affirmed the judgment without opinion. 410 U.S. 962, 93 S.Ct. 1441, 35 L.Ed.2d 698 (1973).
25
Petersbury was correctly decided. On the facts there presented, the annexation of an area with a white majority, combined with at-large councilmanic elections and racial voting, created or enhanced the power of the white majority to exclude Negroes totally from participation in the governing of the city through membership on the city council. We agreed, however, that that consequence would be satisfactorily obviated if at-large elections were replaced by a ward system of choosing councilmen. It is our view that a fairly designed ward plan in such circumstances would not only prevent the total exclusion of Negroes from membership on the council but would afford them representation reasonably equivalent to their political strength in the enlarged community.
26
We cannot accept the position that such a single-member ward system would nevertheless have the effect of denying or abridging the right to vote because Negroes would constitute a lesser proportion of the population after the annexation than before and, given racial bloc voting, would have fewer seats on the city council. If a city having a ward system for the election of a nine-man council annexes a largely white area, the wards are fairly redrawn, and as a result Negroes have only two rather than the four seats they had before, these facts alone do not demonstrate that the annexation has the effect of denying or abridging the right to vote. As long as the ward system fairly reflects the strength of the Negro community as it exists after the annexation, we cannot hold, without more specific legislative directions, that such an annexation is nevertheless barred by § 5. It is true that the black community, if there is racial bloc voting, will command fewer seats on the city council; and the annexation will have effected a deline in the Negroes' relative influence in the city. But a different city council and an enlarged city are involved after the annexation. Furthermore, Negro power in the new city is not undervalued, and Negroes will not be underrepresented on the council.
27
As long as this is true, we cannot hold that the effect of the annexation is to deny or abridge the right to vote. To hold otherwise would be either to forbid all such annexations or to require, as the price for approval of the annexation, that the black community be assigned the same proportion of council seats as before, hence perhaps permanently overrepresenting them and underrepresenting other elements in the community, including the nonblack citizens in the annexed area. We are unwilling to hold that Congress intended either consequence in enacting § 5.
28
We are also convinced that the annexation now before us, in the context of the ward system of election finally proposed by the city and then agreed to by the United States, does not have the effect prohibited by § 5. The findings on which this case was decided and is presented to us were that the postannexation population of the city was 42% Negro as compared with 52% prior to annexation. The nine-ward system finally submitted by the city included four wards each of which had a greater than a 64% black majority. Four wards were heavily white. The ninth had a black population of 40.9%. In our view, such a plan does not undervalue the black strength in the community after annexation; and we hold that the annexation in this context does not have the effect of denying or abridging the right to vote within the meaning of § 5. To the extent that the District Court rested on a different view, its judgment cannot stand.
III
29
The foregoing principles should govern the application of § 5 insofar as it forbids changes in voting procedures having the effect of denying or abridging the right to vote on the grounds of race or color. But the section also proscribes changes that are made with the purpose of denying the right to vote on such grounds. The District Court concluded that when the annexation eventually approved in 1969 took place, it was adopted by the city with a discriminatory racial purpose, the precise purpose prohibited by § 5, and that to purge itself of that purpose the city was required to prove two factors, neither of which had been successfully or satisfactorily shown: (1) that the city had some objectively verifiable, legitimate purpose for the annexation at the time of adopting the ward system of electing councilmen in 1973; and (2) that 'the ward plan not only reduced, but also effectively eliminated, the dilution of black voting power caused by the annexation . . ..' 376 F.Supp., at 1353 (footnote omitted). The Master's findings were accepted to the effect that there were no current, legitimate economic or administrative reasons warranting the annexation. As for the second requirement, the ward plan failed to afford Negroes the political potential comparable to that which they would have enjoyed without the annexation, because they would soon have had a majority of the voting population in the old city and would have controlled the council, and because, in any event, it was doubtful that their political power under the proposed ward system in the enlarged community was equivalent to their influence in the old city under an at-large election system.
30
The requirement that the city allocate to the Negro community in the larger city the voting power or the seats on the city council in excess of its proportion in the new community and thus permanently to underrepresent other elements in the community is fundamentally at odds with the position we have expressed earlier in this opinion, and we cannot approve treating the failure to satisfy it as evidence of any purpose proscribed by § 5.
31
Accepting the findings of the Master in the District Court that the annexation, as it went forward in 1969, was infected by the impermissible purpose of denying the right to vote based on race through perpetuating white majority power to exclude Negroes from office through at-large elections,6 we are nevertheless persuaded that if verifiable reasons are now demonstrable in support of the annexation, and the ward plan proposed is fairly designed, the city need do no more to satisfy the requirements of § 5. We are also convinced that if the annexation cannot be sustained on sound, nondiscriminatory grounds, it would be only in the most extraordinary circumstances that the annexation should be permitted on condition that the Negro community be permanently overrepresented in the governing councils of the enlarged city. We are very doubtful that those circumstances exist in this case; for, as far as this record is concerned, Chesterfield County was and still is quite ready to receive back the annexed area, to compensate the city for its capital improvements, and to resume governance of the area. It would also seem obvious that if there are no verifiable economic or administrative benefits from the annexation that would accrue to the city, its financial or other prospects would not be worsened by deannexation.
32
We need not determine this matter now, however; for if, as we have made clear, the controlling factor in this case is whether there are now objectively verifiable, legitimate reasons for the annexation, we agree with the United States that further proceedings are necessary to bring up to date and reassess the evidence bearing on the issue. We are not satisfied that the Special Master and the District Court gave adequate consideration to the evidence in this case in deciding whether there are now justifiable reasons for the annexation which took place on January 1, 1970. The special, three-judge court of the State of Virginia made the annexation award, giving great weight to the compromise agreement, but nevertheless finding that 'Richmond is entitled to some annexation in this case. . . . Obviously cities must in some manner be permitted to grow in territory and population or they will face disastrous economic and social problems.' 1 App. 42. The court went on to find that the annexation met all of the 'requirements of necessity and, most important of all, expediency,' id., at 47, expediency in the sense that it is "advantageous' and in furtherance of the policy of the State that 'urban areas should be under urban government and rural areas under county government." Id., at 44.
33
In Holt I, where the annexation was attacked under the Fifteenth Amendment as being a purposeful plan to deprive black citizens of their constitutional right to vote without discrimination on grounds of race, the Court of Appeals for the Fourth Circuit, en banc, concluded that the plaintiffs had not proved a purposeful design to annex in order to deprive Negro citizens of their political rights. The majority expressly held that there were legitimate grounds for annexing part of Chesterfield County in 1962 and that the proof was inadequate to show that these grounds had been replaced by impermissible racial purposes in 1969. The District Court had come to a contrary conclusion with respect to the 1969 annexation but, according to the Court of Appeals, had itself 'found that annexation rested upon such firm non-racial grounds that it was necessary, expedient and inevitable.'7 The two dissenting judges both were of the view that, absent an impermissible racial purpose, the annexation would have been legally acceptable even though the Negro proportion in the community was thereby diminished. One of the dissenters said: Since there is no reason to question that some annexation, at least as great in geographical scope, would have been decreed had the proceedings run their course and since, from my reading of the record, there could not have been an annexation of territory without an annexation of people and consequent dilution of the black vote, I approve of the district judge's fashioning relief solely by ordering a new election of council members under conditions where the black vote could not be diluted.' 459 F.2d, at 1111 (Winter, J., dissenting).
34
In the present case the District Court stated that it had no doubt that 'Richmond's leadership was motivated in 1962 by nondiscriminatory goals in filing its 1962 annexation suit,' 376 F.Supp., at 1354 n. 52, but went on to accept the Master's findings that the annexed area was a financial burden to the city and that there were no administrative or other advantages justifying the annexation. As for the contrary evidence in the record, the District Court asserted that '(t)hese evidentiary references to Holt were, of course, considered by the Master in making his findings,' and summarily concluded, without discussion, that the contrary evidence did not 'persuade us that the Master's findings are wrong, nor do they dissipate the evidence of illegal purpose which permeates this record.' Id., at 1354 (footnote omitted).8
35
In making his findings, however, it appears to us that the Special Master may have relied solely on the testimony of the county administrator of Chesterfield County who had opposed any annexation and was an obviously interested witness. At least there is no indication from the Special Master's findings or conclusions that he gave any attention to the contrary evidence in the record. The city now claims that the issues before the Special Master did not encompass the possible economic and administrative advantages of the annexation agreed upon in 1969. Given our responsibilities under § 5, we should be confident of the evidentiary record and the adequacy of the lower court's consideration of it. In this case, for the various reasons stated above, we have sufficient doubt that the record is complete and up to date with respect to whether there are now justifiable reasons for the city to retain the annexed area that we believe further proceedings with respect to this question are desirable.
IV
36
We have held that an annexation reducing the relative political strength of the minority race in the enlarged city as compared with what it was before the annexation is not a statutory violation as long as the post-annexation electoral system fairly recognizes the minority's political potential. If this is so, it may be asked how it could be forbidden by § 5 to have the purpose and intent of achieving only what is a perfectly legal result under that section and why we need remand for further proceedings with respect to purpose alone. The answer is plain, and we need not labor it. An official action, whether an annexation or otherwise, taken for the purpose of discriminating against Negroes on account of their race has no legitimacy at all under our Constitution or under the statute. Section 5 forbids voting changes taken with the purpose of denying the vote on the grounds of race or color. Congress surely has the power to prevent such gross racial slurs, the only point of which is 'to despoil colored citizens, and only colored citizens, of their theretofore enjoyed voting rights.' Gomillion v. Lightfoot, 364 U.S. 339, 347, 81 S.Ct. 125, 130, 5 L.Ed.2d 110 (1960). Annexations animated by such a purpose have no credentials whatsoevers for '(a)cts generally lawful may become unlawful when done to accomplish an unlawful end . . ..' Western Union Telegraph Co. v. Foster, 247 U.S. 105, 114, 38 S.Ct. 438, 439, 62 L.Ed. 1006 (1918); Gomillion v. Lightfoot, supra, 364 U.S., at 347, 81 S.Ct., at 130. An annexation proved to be of this kind and not proved to have a justifiable basis is forbidden by § 5, whatever its actual effect may have been or may be.
37
The judgment of the District Court is vacated and the case is remanded to that court for further proceedings consistent with this opinion.
38
So ordered.
39
Mr. Justice POWELL took no part in the consideration or decision of this case.
40
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join, dissenting.
41
The District Court, applying proper legal standards, found that the city of Richmond had failed to prove that its annexation of portions of Chesterfield County, Va., on January 1, 1970, had neither the purpose nor the effect of abridging or diluting the voting rights of Richmond's black citizens. I believe that that finding, far from being clearly erroneous, was amply supported by the record below, and that the District Court properly denied and declaratory judgment sought by Richmond. I therefore dissent.
42
* The Voting Rights Act of 19651 grew out of a long and sorry history of resistance to the Fifteenth Amendment's ringing proscription of racial discrimination in voting. That history, which we reviewed in the course of upholding the Act's constitutionality in South Carolina v. Katzenbach, 383 U.S. 301, 308—315, 86 S.Ct. 803, 808—812, 15 L.Ed.2d 769 (1966), showed a persistent and often ingenious use of tests and devices to disenfranchise black citizens.2 Congress, in response, banned or restricted the use of many of the more familiar discriminatory devices;3 but in addition, recognizing 'that some of the States covered by § 4(b) of the Act had resorted to the extraordinary stratagem of contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination . . . (and) that these States might try similar maneuvers in the future in order to evade the remedies for voting discrimination contained in the Act itself,'4 Congress enacted the broad prophylactic rule of § 5 of the Act, prohibiting covered States from implementing any new 'voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting' without first securing the approval of either the Attorney General or the United States District Court for the District of Columbia. In an effort to avoid the delays and uncertainties fostered by prior statutes, under which affected parties or the Attorney General had been forced to assume the initiative in challenging discriminatory voting practices, Congress placed the burden of proof in a § 5 proceeding squarely upon the acting State or municipality to show that its proposed change is free of a racially discriminatory purpose or effect.5 This burden is intended to be a substantial one for a State or locality with a history of past racial discrimination.6
43
In short, Congress, through the Voting Rights Act of 1965, imposed a stringent and comprehensive set of controls upon States falling within the Act's coverage. We have heretofore held that the language of § 5 was designed 'to give the Act the broadest possible scope,' and to require 'that all changes, no matter how small, be subjected to § 5 scrutiny,' Allen v. State Board of Elections, 393 U.S. 544, 567—568, 89 S.Ct. 817, 832—833, 22 L.Ed.2d 1 (1969); we have thus applied § 5 to legislative reapportionments, annexations, and any other state actions which may potentially abridge or dilute voting rights. Id., at 569—571, 89 S.Ct., at 833—835; Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973); Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971).
44
The frontline judicial responsibility for interpreting and applying the substantive standards of § 5 rests exclusively with the United States District Court for the District of Columbia,7 and the considerable experience which that court has acquired in dealing with § 5 cases enhances the respect to which its judgments are entitled on appellate review by virtue of that unique position. The District Court here recognized that it bears a 'heavy responsibility' under § 5, and that that 'responsibility is no less than to ensure realization of the Fifteenth Amendment's promise of equal participation in our electoral process.' 376 F.Supp., 1344, 1346—1347 (1974). In exercising our power of appellate review over that court's substantive § 5 determinations, we must be equally devoted to that same majestic promise.
II
45
In my view, the flagrantly discriminatory purpose with which Richmond hastily settled its Chesterfield County annexation suit in 1969 compelled the District Court to deny Richmond the declaratory judgment. The record is replete with statements by Richmond officials which prove beyond question that the predominant (if not the sole) motive and desire of the negotiators of the 1969 settlement was to acquire 44,000 additional white citizens for Richmond, in order to avert a transfer of political control to what was fast becoming a black-population majority.8 The District Court's findings on this point were quite explicit:
46
'Richmond's focus in the negotiations was upon the number of new white voters it could obtain by annexation; it expressed no interest in economic or geographic considerations such as tax revenues, vacant land, utilities, or schools. The mayor required assurances from Chesterfield County officials that at least 44,000 additional white citizens would be obtained by the City before he would agree upon settlement of the annexation suit. And the mayor and one of the city councilmen conditioned final acceptance of the settlement agreement on the annexation going into effect in sufficient time to make citizens in the annexed area eligible to vote in the City Council elections of 1970.'9
47
Against this background, the settlement represented a clear victory for Richmond's entrenched white political establishment: the city realized a net gain of 44,000 white citizens, its black population was reduced from 52% to 42% of the total population, and the predominantly white Richmond Forward organization retained its 6—3 majority on the city council.
48
Having succeeded in this patently discriminatory enterprise, Richmond now argues that it can purge the taint of its impermissible purpose by dredging up supposed objective justifications for the annexation and by replacing its practice of at-large councilmanic elections with a ward-voting system. The implications of the proposed ward-voting system are discussed in Part III, infra; meanwhile, I have grave difficulty with the idea that the taint of an illegal purpose can, under § 5, be dispelled by the sort of post hoc rationalization which the city now offers.
49
The court below noted that Richmond, in initiating annexation proceedings in 1962, was motivated 'by legitimate goals of urban expansion.' 376 F.Supp., at 1351. By 1969, however, those legitimate goals had been pushed into the background by the unseemly haste of the white political establishment to protect and solidify its position of power. The District Court's findings quoted above fully establish that the 1969 settlement of Richmond's annexation suit was negotiated in an atmosphere totally devoid of any concern for economic or administrative issues; the city's own Boundary Expansion Coordinator was not even consulted about the financial or geographical implications of the so-called Horner-Bagley line until several weeks after the line had been drawn.10 The contours of this particular annexation were shaped solely by racial and political considerations, and the inference is not merely reasonable but indeed compelled that the annexation line would have been significantly different had the racial motivation not been present.11
50
To hold that an annexation agreement reached under such circumstances can be validated by objective economic justifications offered many years after the fact, in my view, wholly negates the prophylactic purpose of § 5.12 The Court nevertheless, at the suggestion of the United States, remands for the taking of further evidence on the presence of any 'objectively verifiable, legitimate reasons for the annexation.' Even assuming, as the District Court did, that such reasons could now validate an originally illegal annexation, I cannot agree that a remand is necessary.
51
The District Court, adopting the findings of the Master whom it had appointed under Fed.Rule Civ.Proc. 53, squarely held that Richmond "has failed to establish any counterbalancing economic or administrative benefits of the annexation." 376 F.Supp., at 1353. The record before the Master, including the entire record in Holt v. City of Richmond, 334 F.Supp. 228 (ED Va.1971), rev'd 459 F.2d 1093 (CA4), cert. denied, 408 U.S. 931, 92 S.Ct. 2510, 33 L.Ed.2d 343 (1972), to which the parties stipulated,13 contained ample evidence on the economic and administrative consequences of the annexation. The Master and the District Court weighed this often conflicting evidence and found that Richmond had failed to carry its burden of proof by showing any legitimate purpose for the annexation as consummated in 1969.14
52
Federal Rule Civ.Proc. 52(a) compels us to accept that finding unless it can be called clearly erroneous. I find it impossible, on this record, to attach that label to the findings below, and indeed, the Court never goes so far as to do so. Nevertheless, in apparent disagreement with the manner in which conflicting evidence was weighed and resolved by the lower court, the Court remands for further evidentiary proceedings, perhaps in hopes that a re-evaluation of the evidence will produce a more acceptable result. This course of action is to me wholly inconsistent with the proper role of an appellate court operating under the strictures of Rule 52(a).
III
53
The second prong of any § 5 inquiry is whether the voting change under consideration will have the effect of denying or abridging the right to vote on account of race or color. In Perkins v. Matthews, supra, holding that § 5 applies to annexations, we said:
54
'Clearly, revision of boundary lines has an effect on voting in two ways: (1) by including certain voters within the city and leaving others outside, it determines who may vote in the municipal election and who may not; (2) it dilutes the weight of the votes of the voters to whom the franchise was limited before the annexation, and 'the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise.' Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 1378, 12 L.Ed.2d 506 (1964). Moreover, § 5 was designed to cover changes having a potential for racial discrimination in voting, and such potential inheres in a change in the composition of the electorate affected by an annexation.' 400 U.S., at 388-389, 91 S.Ct., at 437.
55
The guidelines of this discussion in Perkins were correctly applied by the District Court, which continued as follows:
56
'Perkins left implicit the obvious: If the proportion of blacks in the new citizenry from the annexed area is appreciably less than the proportion of blacks living within the city's old boundaries, and particularly if there is a history of racial bloc voting in the city, the voting power of black citizens as a class is diluted and thus abridged.' 376 F.Supp., at 1348 (footnote omitted).
57
Measured against these standards, the dilutive effect of Richmond's annexation is clear, both as a matter of semantics and as a matter of political realities. Blacks constituted 52% of the preannexation population and 44.8% of the preannexation voting-age population in Richmond, but now constitute only 42% of the postannexation population and only 37.3% of the postannexation voting-age population. I cannot agree that such a significant dilution of black voting strength can be remedied, for § 5 purposes, simply by allocating to blacks a reasonably proportionate share of voting power within the postannexation community.
58
The history of the Voting Rights Act, as set forth in Part I, supra, discloses the intent of Congress to impose a stringent system of controls upon changes in state voting practices in order to thwart even the most subtle attempts to dilute black voting rights. We have elsewhere described the Act as 'an unusual, and in some aspects a severe, procedure for insuring that States would not discriminate on the basis of race in the enforcement of their voting laws.'15 Congress was certainly aware of the hardships and inconvenience which § 5 and other portions of the Act could impose upon covered States and localities; but in passing the Act in its final form, Congress unmistakably declared that those hardships are outweighed by the need to ensure effective protection for black voting rights.
59
Today's decision seriously weakens the protection so emphatically accorded by the Act. Municipal politicians who are fearful of losing their political control to emerging black voting majorities are today placed on notice that their control can be made secure as long as they can find concentrations of white citizens into which to expand their municipal boundaries. Richmond's black population, having finally begun to approach an opportunity to elect responsive officials and to have a significant voice in the conduct of its municipal affairs, now finds its voting strength reduced by a plan which 'guarantees' four seats on the City Council but which makes the elusive fifth seat more remote than it was before. The Court would offer, as consolation, the fact that blacks will enjoy a fair share of the voting power available under a ward system operating within the boundaries of the postannexation community; but that same rationale would support a plan which added far greater concentrations of whites to the city and reduced black voting strength to the equivalent of three seats, two seats, or even fractions of a seat. The reliance upon postannexation fairness of representation is inconsistent with what I take to be the fundamental objective of § 5, namely, the protection of present levels of voting effectiveness for the black population.
60
It may be true, as the Court suggests, that this interpretation would effectively preclude some cities from undertaking desperately needed programs of expansion and annexation. Certainly there is nothing in § 5 which suggests that black voters could or should be given a disproportionately high share of the voting power in a postannexation community; where the racial composition of an annexed area is substantially different from that of the annexing area, it may well be impossible to protect preannexation black voting strength without invidiously diluting the voting strength of other racial groups in the community. I see no reason to assume that the 'demographics' of the situation are such that this would be an insuperable problem for all or even most cities covered by the Act; but in any event, if there is to be a 'municipal hardship' exception for annexations vis-a -vis § 5, that exception should originate with Congress and not with the courts.
61
At the very least, therefore, I would adopt the Petersburg standard relied upon by the District Court, namely, that the dilutive effect of an annexation of this sort can be cured only by a ward plan "calculated to neutralize to the extent possible any adverse effect upon the political participation of black voters." 376 F.Supp., at 1352.16 The Crusade for Voters of Richmond, intervenor in the court below, submitted several plans providing for a greater black representation in the so-called 'swing district' than that afforded by Richmond's own plan; the District Court, in light of these alternative submissions and in light of the fact that Richmond's ward plan had been drawn up without any reference to racial living patterns, concluded that Richmond's plan did not, 'to the extent possible,' minimize dilution of black voting power. Id., at 1356—1357. On that basis, I would affirm the finding that Richmond failed to establish the absence of a discriminatory effect prohibited by § 5.
IV
62
More than five years have elapsed since the last municipal elections were held in Richmond.17 Hopes which were lifted by the District Court decision over a year ago are today again dashed, as the case is remanded for what may prove to be several additional years of litigation; Richmond will continue to be governed, as it has been for the last five years, by a slate of councilmen elected in clear violation of § 5.18 The black population of Richmond may be justifiably suspicious of the 'protection' its voting rights are receiving when these rights can be suspended in limbo, and the people deprived of the right to select their local officials in an election meeting constitutional and statutory standards, for so many years. I would affirm the judgment below, and let the United States District Court for the Eastern District of Virginia set about the business of fashioning an appropriate remedy as expeditiously as possible.
1
Section 5, 42 U.S.C. § 1973c, provides:
'Whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the first sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the second sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1968, such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, except that neither the Attorney General's failure to object nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28 and any appeal shall lie to the Supreme Court.'
2
Va.Code Ann. § 15.1—1032 et seq. (1973 and Supp.1975).
3
A writ of error was refused by the Supreme Court of Appeals of Virginia. Deerbourne Civic & Recreation Ass'n v. City of Richmond, 210 Va. li—lii (1969), cert. denied, 397 U.S. 1038, 90 S.Ct. 1357, 25 L.Ed.2d 649 (1970).
4
A motion to stay the effective date of the annexation was denied separately by individual Justices of this Court.
5
The parties stipulated to the record in Holt I, and the Special Master referred in his decision to that record and to the three days of testimony which he heard. See 376 F.Supp. 1344, 1349 (DC 1974).
6
The city contends that the decision of the Court of Appeals in Holt I should be given estoppel effect in this case on the question of the purpose behind the annexation. In its view, the earlier decision as to purpose is binding on all the parties participating in the Holt I litigation, and although the United States and the Attorney General did not participate in that litigation, the city asserts that they are in agreement with the city's position in this case. The District Court rejected the city's argument by pointing to the fact that the burden of proof was not on the city in the Holt I pro-
ceedings although that burden is on Richmond in this case, and to the different legal bases of the two cases, with different authorities applicable in each. 376 F.Supp., at 1352 n. 43. Whatever the merits of the District Court's position on this collateral-estoppel issue, we find controlling the nonparticipation of the United States and the Attorney General in the Holt I case. The federal parties explicitly reject the estoppel argument of the city, Brief for the Federal Parties 16 17, n. 4, and, whatever support the United States presently gives to the city's annexation, it now recommends that the case be remanded to the District Court for the taking of further evidence and the making of further findings on the question of the city's purpose:
'We believe that the evidence in the record would support a finding that the City has objectively verifiable, legitimate reasons for retaining the annexed area. However, the parties at trial did not directly litigate that question. The parties, including the federal parties, concentrated on the extent to which the City's ward plan minimized the dilutive effects of the annexation, i.e., on the permissibility of the effect of the voting change under City of Petersburg, and not on the nondiscriminatory purposes that might justify retention of the annexed area. Thus the City did not develop and present all its evidence relating to such purposes, and the intervening defendants have not had a full opportunity to rebut such evidence.' Id., at 34—35.
Given this position of the United States, we conclude that Holt I should not be given estoppel effect in this case.
7
The Court of Appeals said in this respect, 459 F.2d 1093, 1097 (1972):
'In 1961 there were compelling reasons for annexation of portions of Chesterfield County. Negroes were then a minority in Richmond and no one was then thinking in terms of a possible cleavage between black and white voters. Race was not a factor in the decision to seek annexation. Indeed, the finding was that, without the settlement agreement, the annexation court would have awarded more territory, and a larger preponderance of white voters, to Richmond.
'The District Court recognized, however, that there was no racial motivation in the institution of the annexation proceeding or in its prosecution. If some members of Richmond's governing body had developed a sense of urgency because of the growing number of black voters and their supposed opposition to any annexation and the election of 'Richmond Forward' candidates, no such thoughts were believed to have infected the minds of the judges of the annexation court. In fact, the District Court found that annexation rested upon such firm nonracial grounds that it was necessary, expedient and inevitable.'
8
A study by the Urban Institute showing a 1971 fiscal year surplus from the annexed area was not part of the record, the District Court said, and 'could not in any case remove the doubts created by testimony at the hearing.' 376 F.Supp., at 1354 n. 51.
1
79 Stat. 437, as amended, 84 Stat. 314, 42 U.S.C. § 1973 et seq.
2
See also Beer v. United States, 374 F.Supp. 363, 377—378 (D.C.1974); H.R.Rep.No.439, 89th Cong., 1st Sess., 8—13 (1965), U.S.Code Cong. & Admin.News, 1965, P. 2437; S.Rep.No.162, pt. 3, 89th Cong., 1st Sess., 3—12 (1965), U.S.Code Cong. & Admin.News, 1965, p. 2508.
3
These devices included literacy tests, requirements of 'good moral character,' and voucher requirements, §§ 4(a)—(d), 42 U.S.C. §§ 1973b(a)—(d), as well as poll taxes, § 10, 42 U.S.C. § 1973h.
4
South Carolina v. Katzenbach, 383 U.S. 301, 335, 86 S.Ct. 803, 822, 15 L.Ed.2d 769 (1966).
5
Georgia v. United States, 411 U.S. 526, 538, 93 S.Ct. 1702, 1709, 36 L.Ed.2d 472 (1973).
6
City of Petersburg v. United States, 354 F.Supp. 1021, 1027 (D.C.1972), aff'd, 410 U.S. 962, 93 S.Ct. 1441, 35 L.Ed.2d 698 (1973)
7
We have consistently held that the substantive issue of discriminatory purpose or effect under § 5 can be litigated only in the District Court for the District of Columbia; the sole question open for consideration in any other district court is whether a state voting practice or requirement is of the sort required by § 5 to be submitted for prior approval. Perkins v. Matthews, 400 U.S. 379, 383—386, 91 S.Ct. 431, 434—436, 27 L.Ed.2d 476 (1971); Allen v. State Board of Elections, 393 U.S. 544, 555 559, 89 S.Ct. 817, 826—828, 22 L.Ed.2d 1 (1969); Connor v. Waller, 421 U.S. 656, 95 S.Ct. 2003, 44 L.Ed.2d 486 (1975).
8
376 F.Supp. 1344, 1349—1350 (D.c1974). The statements quoted in id., at 1349 n. 29, particularly those at then-Mayor Bagley, can hardly be described as subtle or indirect.
9
Id., at 1350 (footnotes omitted).
10
2 App. 352—354.
11
Several judges involved in a prior phase of this dispute have expressed a belief, founded upon the record, that Richmond would have secured far more favorable annexation terms had it not been prodded into a hasty settlement by the pendency of the 1970 elections. See Holt v. City of Richmond, 459 F.2d 1093, 1108 (CA4) (Winter, J., dissenting), cert. denied, 408 U.S. 931, 92 S.Ct. 2510, 33 L.Ed.2d 343 (1972); Holt v. City of Richmond, 334 F.Supp. 228, 236 (ED Va.1971), rev'd on other grounds, 459 F.2d 1093, supra.
12
Had this agreement been properly submitted for § 5 clearance in 1969, I cannot believe that the annexation would ever have been permitted to take place. But our holding in Perkins v. Matthews, supra, that annexations fall within the scope of § 5, came more than a year after the Richmond annexation took effect; by this quirk of timing, the annexation escaped preimplementation scrutiny entirely. The 1969 line thus remains in place, a grim reminder in its contours and in its very existence of the discriminatory purpose which gave it birth.
13
376 F.Supp., at 1349.
14
Much of the evidence in the record below appears to have dealt with Richmond's need for expansion and annexation in the abstract. Annexation in the abstract, however, is not at issue here; the critical question is whether the particular line drawn in 1969 had any contemporary justification in terms of objective factors such as Richmond's need for vacant land, an expanded tax base, and the like.
15
Allen v. State Board of Elections, 393 U.S., at 556, 89 S.Ct., at 827 (footnote omitted).
16
The original version of this standard appears in City of Petersburg v. United States, 354 F.Supp., at 1031.
17
The last councilmanic election was held on June 10, 1970. 1 App. 71; 376 F.Supp., at 1351.
18
The 1970 elections were conducted on an at-large basis in the postannexation community, a procedure inconsistent with even the narrowed Petersburg 'effect' test adopted by the Court today. Moreover since the elections occurred prior to our decision in Perkins, supra, there was no attempt to submit the annexation for prior approval. Section 5 is violated in both respects.
| 12
|
422 U.S. 395
95 S.Ct. 2330
45 L.Ed.2d 272
Peter PREISER, etc., et al., Petitioners,v.James NEWKIRK.
No. 74-107.
Argued Jan. 20, 1975.
Decided June 25, 1975.
Syllabus
After being transferred, without explanation or hearing, from a medium security to a maximum security prison in New York because of his involvement in a conflict among inmates concerning a petition for a prisoners' 'union' at the former prison, respondent brought suit under 28 U.S.C. §§ 1343(3) and (4) and 42 U.S.C. § 1983 against petitioner prison officials, seeking declaratory and injunctive relief. The District Court, granting relief in part, ruled that the transfer violated the Due Process Clause of the Fourteenth Amendment, because it was made without any explanation to respondent or opportunity to be heard. The Court of Appeals affirmed with some modification, holding, inter alia, that the suit was not mooted by the fact that respondent was returned to the medium security prison prior to the District Court's ruling. Respondent was later transferred to a minimum security prison and will soon be eligible for parole. Held: In light of respondent's return to the medium security prison and later transfer to a minimum security prison, the suit does not present a case or controversy as required by Art. III of the Constitution but is now moot and must be dismissed, since as to the original complaint there is now no reasonable expectation that the wrong will be repeated and the question presented does not fall within the category of harm capable of repetition, yet evading review. Pp. 401-403.
499 F.2d 1214, vacated and remanded.
Hillel J. Hoffman, New York City, for petitioners.
Daniel Pochoda, New York City, for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
Respondent Newkirk has been an inmate of the New York prison system since his conviction for murder in the second degree in 1962. He had initially been confined at the Ossining Correctional Facility and, subsequently, at the Attica Correctional Facility, the Green Haven Correctional Facility, and the Auburn Correctional Facility. These facilities were maximum security institutions1 at the time respondent was confined in them and are located in different parts of New York. In April 1971, nine years after his initial confinement, he was transferred to the Wallkill Correctional Facility, a medium security institution. The District Court and the Court of Appeals found, and it is not seriously disputed here, that the Wallkill facility is 'unique,' and has advantages over other correctional institutions in the New York system in that there are fewer restrictions and physical restraints as well as a more comprehensive rehabilitation program.
2
Early in 1972, a petition aimed at the formation of a prisoners' 'union' was circulated at Wallkill. This event produced some vociferous controversy among the prisoners. Tension among the inmates, according to the District Court, stemmed in part from the hostility of an existing prisoner representative committee toward the 'union' movement. The prison administration, however, did not forbid or actively discourage the circulation of the petition. The administrators did, however, monitor the level of unrest within the prison brought on by the clash of opinions on the petition. On June 2, 1972, there was a general meeting of the inmates at which the petition was discussed loudly by the contending factions; the meeting dispersed peacefully, however, without incidents of violence. Respondent did not attend this meeting, but he had previously signed a proposed 'union' constitution and, immediately prior to the meeting, had received a petition from a fellow inmate, signed it, and passed it along.
3
A report prepared by the assistant deputy superintendent identified Newkirk as one of the inmates who had been canvassing for the 'union' but did not charge him with any violation of regulations or misconduct. This report—including its naming of Newkirk—was apparently based on information other officers had given the assistant deputy superintendent. Newkirk was not afforded an opportunity to give his account. The following day, on June 6, 1972, the superintendent called the central office of the Department of Corrections and arranged for transfer of several inmates, including Newkirk, to other facilities within the state corrections system. The transfer of Newkirk was effected on June 8. He was summoned to the infirmary and informed that he was being transferred.
4
Newkirk was transferred to the Clinton Correctional Facility, a maximum security institution. The conditions for the general prison population at Clinton were substantially different from those at Wallkill. At Clinton, the cells are locked, access to the library and recreational facilities is more limited, and the rehabilitation programs are less extensive. Newkirk requested a truck-driving assignment when he arrived at Clinton and understood he was on a waiting list. He was then assigned to the residence of the superintendent of Clinton at the same wage he earned at Wallkill. Since Newkirk's family lived in New York City, 80 miles from Wallkill but 300 miles from Clinton, his transfer to Clinton made visits by his family more difficult.
5
Newkirk and three of the other four prisoners transferred from Wallkill brought suit in the United States District Court for the Southern District of New York, pursuant to 28 U.S.C. §§ 1343(3) and (4), and 42 U.S.C. § 1983, against the superintendent of Wallkill and the State Commissioner of Correctional Services. They requested a declaratory judgment that the transfers were in violation of the Constitution and laws of the United States and an injunction ordering their return to Wallkill, expunging all record of their transfer, and prohibiting future transfers without a hearing. The District Court denied a preliminary injunction but set the case for trial on an accelerated basis. Prior to the commencement of the trial, two of the plaintiffs were released and the complaint was dismissed insofar as it related to them. During the trial another plaintiff was released, and the action was dismissed as to him as well; subsequently Newkirk was returned to Wallkill. The superintendent of that institution also had a memorandum placed in respondent's file which explained the nature of the transfer, noted that the transfer was not for disciplinary reasons, and was not to have any bearing on eligibility for parole or the decisions of the time-allowance committee.
6
The District Court held that the transfer violated the Due Process Clause of the Fourteenth Amendment since it had been made without any explanation to Newkirk or opportunity to be heard. The court entered a declaratory judgment which required that Newkirk be given such an explanation and an opportunity to be heard in connection with any future transfer, and further declared that no adverse parole action could be taken against Newkirk or punishment administered because of the transfer. It held that Newkirk should be informed of the scope of permissible behavior at Wallkill and the circumstances which would warrant his transfer to another prison in the future. At the same time, however, the court refused the prayer for an injunction against future summary transfers because it was 'not persuaded that the threat of transfer is sufficiently great at this time . . .' Newkirk v. Butler, 364 F.Supp. 497, 504 (1973); the court concluded and that 'in the present posture of the case there is not a sufficiently delineated controversy to merit its adjudication,' id., at 500. Noting that 'an explanatory note has been included with the record of transfer, and that no action adverse to plaintiff, whether with reference to parole or discipline, will be based on this information . . .,' id., at 504, the court also denied a request that all record of the transfer be expunged from his file.
7
The Court of Appeals affirmed the judgment with some modification. 499 F.2d 1214 (CA2 1974). It held that, when a prisoner suffers a 'substantial loss' as a result of the transfer, 'he is entitled to the basic elements of rudimentary due process, i. e., notice and an opportunity to be heard,' id., at 1217, whether or not his transfer is part of a formal disciplinary proceeding and whether or not it has any adverse parole consequences. Noting that there were no formal disciplinary proceedings in this case, the Court of Appeals relied on the fact that the transfer changed Newkirk's living conditions, his job assignment, and training opportunities. However, although agreeing that advance publication of 'rules,' violation of which might result in transfer, 'would serve the salutary function of avoiding misunderstanding and resentment . . .,' id., at 1219, the Court of Appeals concluded that requiring prison officials to draw up such rules would place officials in 'an unnecessary straight jacket [sic].' Ibid. It, therefore, modified the judgment of the District Court to remove this requirement from its order. Although specifically noting that Newkirk had been returned to Wallkill from Clinton, the Court of Appeals held that the suit was not moot since '[e]ven after his return he remained subject to a new transfer at any time . . ..' Ibid. Furthermore, despite the District Court's reliance on the good-faith assurances of prison officials that the transfer would not have an adverse effect on Newkirk's parole possibility, the Court of Appeals concluded he was 'entitled to a judicial decree to that effect.' Ibid.
8
We granted petitioners' petition for writ of certiorari which presented the following question: 'Whether a prison inmate who is transferred within a state from a medium security institution to a maximum security institution, without the imposition of disciplinary punishment, is entitled under the Due Process Clause of the Fourteenth Amendment to notice of the reasons for the transfer and an opportunity to be heard'?2 In granting the petition, however, the Court directed that the parties brief and argue the question of mootness. 419 U.S. 894, 95 S.Ct. 172, 42 L.Ed.2d 138 (1974).
9
All of the developments since the original challenged transfer must be read in light of not only Newkirk's transfer to Wallkill but also his later transfer, after the decision of the Court of Appeals, to the Edgecombe Correctional Facility, a minimum security institution in New York City. Newkirk will be eligible for parole in July 1975.3
10
The exercise of judicial power under Art. III of the Constitution depends on the existence of a case or controversy. As the Court noted in North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971), a federal court has neither the power to render advisory opinions nor 'to decide questions that cannot affect the rights of litigants in the case before them.' Its judgments must resolve "a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." Ibid., quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937). As the Court noted last Term, in an opinion by Mr. Justice Brennan, Steffel v. Thompson, 415 U.S. 452, 459 n. 10, 94 S.Ct. 1209, 1216, 39 L.Ed.2d 505 (1974): '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. [113,] 125, 93 S.Ct. 705, 713, 35 L.Ed.2d 147 [(1973)]; 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
In Maryland Casualty Co. v. Pacific Co., 312 U.S. 270, 61 S.Ct. 510, 85 L.Ed. 826 (1941), this Court, noting the difficulty in fashioning a precise test of universal application for determining whether a request for declaratory relief had become moot, held that, basically, 'the question in each case 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.' Id., at 273, 61 S.Ct., at 512 (emphasis supplied). This is not a class action and Newkirk has not sought damages. As noted, supra, before the ruling of the District Court, Newkirk had been transferred back to Wallkill and had been there for 10 months. No adverse action was taken against him during that period. A notation had been made in his file expressly stating that the transfer 'should have no bearing in any future determinations made by the Board of Parole or the time allowance committee.' Newkirk has now been transferred, as noted above, to a minimum security facility in New York City. It is therefore clear that correction authorities harbor no animosity toward Newkirk. We have before us more than a '[m]ere voluntary cessation of allegedly illegal conduct,' United States v. Concentrated Phosphate Export Assn., Inc., 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968), where we would leave '[t]he defendant . . . free to return to his old ways.' United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). As to Newkirk's original complaint, there is now "no reasonable expectation that the wrong will be repeated," id., at 633, 73 S.Ct., at 897, quoting United States v. Aluminum Co. of America, 148 F.2d 416, 448 (CA2 1945).
12
Any subjective fear Newkirk might entertain of being again transferred, under circumstances similar to those alleged in the complaint, or of suffering adverse consequences as a result of the 1972 transfer, is indeed remote and speculative and hardly casts that 'continuing and brooding presence.' over him that concerned the Court in Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 122, 94 S.Ct. 1694, 1698, 40 L.Ed.2d 1 (1974). As the Court noted in United States v. SCRAP, 412 U.S. 669, 688-689, 93 S.Ct. 2405, 2416, 37 L.Ed.2d 254 (1973), 'pleadings must be something more than an ingenious academic exercise in the conceivable. A plaintiff must allege that he has been or will in fact be perceptibly harmed by the challenged agency action, not that he can imagine circumstances in which he could be affected by the agency's action.' Similarly, while there is always the possibility that New York authorities might disregard the specific record notation that the transfer should have no effect on good time or parole decisions in regard to Newkirk, 'such speculative contingencies afford no basis for our passing on the substantive issues [Newkirk] would have us decide . . .' Hall v. Beals, 396 U.S. 45, 49, 90 S.Ct. 200, 202, 24 L.Ed.2d 214 (1969). The record of events since the challenged transfer hardly bears out a genuine claim of an injury or possible injury 'of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.' Maryland Casualty Co., 312 U.S., at 273, 61 S.Ct., at 513. Newkirk, as noted above, will be eligible for parole within a matter of days. See supra at 401.
13
We conclude that the question presented does not fall within that category of harm '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). Accordingly, we vacate the judgment of the Court of Appeals and remand the case to that court with directions that the complaint be dismissed by the District Court. United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 106 (1950).
14
It is so ordered.
15
Vacated and remanded.
16
Mr. Justice DOUGLAS dissents from the holding of mootness and would affirm the judgment below.
17
Mr. Justice MARSHALL, concurring.
18
I join this opinion only because for some reason respondent did not file this case as a class action. As a result, the State of New York by releasing the other three named plaintiffs, transferring respondent back to Wallkill after the District Court action, and finally to a lesser correctional facility after the Court of Appeals acted, thereby made the case moot.
1
New York State has six correctional facilities that are designated as maximum security institutions: Attica, Auburn, Clinton, Green Haven, Ossining, and Great Meadow. Eight facilities, or portions thereof, are designated as medium security institutions: Adirondack, Bedford Hills, Coxsackie, Elmira, Eastern, Fishkill, Tappon, and Wallkill. Six others are designated minimum security institutions: Albion, Bayview, Edgecombe, Parkside, Rochester, and Taconic. There are also four minimum security correctional camps. See 7 NYCRR, pt. 100, §§ 100.1-100.94.
2
Pet. for Cert. 2. See this Court's Rule 23(1)(c).
3
Tr. of Oral Arg. 7, 22; Brief for Respondent 10.
| 89
|
422 U.S. 405
95 S.Ct. 2362.
45 L.Ed.2d 280
ALBEMARLE PAPER COMPANY et al., Petitioners,v.Joseph P. MOODY et al. HALIFAX LOCAL NO. 425, UNITED PAPERMAKERS AND PAPERWORKERS, AFL-CIO, Petitioner, v. Joseph P. MOODY et al.
Nos. 74—389, 74—428.
Argued April 14, 1975.
Decided June 25, 1975.
Syllabus
Respondents, a certified class of present and former Negro employees, brought this action against petitioners, their employer, Albemarle Paper Co., and the employees' union, seeking injunctive relief against 'any policy, practice, custom or usage' at the plant violative of Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, and after several years of discovery moved to add a class backpay demand. At the trial, the major issues were the plant's seniority system, its program of employment testing, and backpay. The District Court found that, following a reorganization under a new collective-bargaining agreement, the Negro employees had been "locked' in the lower paying job classifications,' and ordered petitioners to implement a system of plant wide seniority. The court refused, however, to order backpay for losses sustained by the plaintiff class under the discriminatory system, on the grounds that (1) Albemarle's breach of Title VII was found not to have been in 'bad faith,' and (2) respondents, who had initially disclaimed interest in backpay, had delayed making their backpay claim until five years after the complaint was filed, thereby prejudicing petitioners. The court also refused to enjoin or limit Albemarle's testing program, which respondents had contended had a disproportionate adverse impact on blacks and was not shown to be related to job performance, the court concluding that 'personnel tests administered at the plant have undergone validation studies and have been proven to be job related.' Respondents appealed on the backpay and preemployment tests issues. The Court of Appeals reversed the District Court's judgment. Held:
1. Given a finding of unlawful discrimination, backpay should be denied only for reasons that, if applied generally, would not frustrate the central statutory purposes manifested by Congress in enacting Title VII of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination. Pp. 413-422.
2. The absence of bad faith is not a sufficient reason for denying backpay, Title VII not being concerned with the employer's 'good intent or absence of discriminatory intent,' for 'Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation,' Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158. Pp. 422-423.
3. Whether respondents' tardiness and inconsistency in making their backpay demand were excusable and whether they actually prejudiced petitioners are matters that will be open to review by the Court of Appeals if the District Court, on remand, decides again to decline a backpay award. Pp. 423-425.
4. As is clear from Griggs, supra, and the Equal Employment Opportunity Commission's Guidelines for employers seeking to determine through professional validation studies whether employment tests are job related, such tests are impermissible unless shown, by professionally acceptable methods, to be 'predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.' Measured against that standard, Albemarle's validation study is materially defective in that (1) it would not, because of the odd patchwork of results from its application have 'validated' the two general ability tests used by Albemarle for all the skilled lines of progression for which the two tests are, apparently, now required; (2) it compared test scores with subjective supervisorial rankings, affording no means of knowing what job-performance criteria the supervisors were considering; (3) it focused mostly on job groups near the top of various lines of progression, but the fact that the best of those employees working near the top of a line of progression score well on a test does not necessarily mean that the test permissibly measures the qualifications of new workers entering lower level jobs; and (4) it dealt only with job-experienced, white workers, but the tests themselves are given to new job applicants, who are younger, largely inexperienced, and in many instances nonwhite. Pp. 425-435.
5. In view of the facts that during the appellate stages of this litigation Albemarle has apparently been amending its departmental organization and the use made of its tests; that issues of standards of proof for job relatedness and of evidentiary procedures involving validation tests have not until now been clarified; and that provisional use of tests pending new validation efforts may be authorized, the District Court on remand should initially fashion the necessary relief. Pp. 436.
474 F.2d 134, vacated and remanded.
1
Francis V. Lowden, Jr., Richmond, Va., for Albemarle Paper Co.
2
Warren Woods, Washington, D.C., for Halifax Local No. 425.
3
J. LeVonne Chambers, charlotte, N.C., for Joseph Moody and others.
4
James P. Turner, Atty., Dept. of Justice, Civil Rights Div., Washington, D.C., for the United States, as amicus curiae, by special leave of Court.
5
Mr. Justice STEWART delivered the opinion of the Court.
6
These consolidated cases raise two important questions under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended by the Equal Employment Opportunity Act of 1972, 86 Stat. 103, 42 U.S.C. § 2000e et seq. (1970 ed. and Supp. III): First: When employees or applicants for employment have lost the opportunity to earn wages because an employer has engaged in an unlawful discriminatory employment practice, what standards should a federal district court follow in deciding whether to award or deny backpay? Second: What must an employer show to establish that pre-employment tests racially discriminatory in effect, though not in intent, are sufficiently 'job related' to survive challenge under Title VII?
7
* The respondents—plaintiffs in the District Court—are a certified class of present and former Negro employees at a paper mill in Roanoke Rapids, N.C.; the petitioners—defendants in the District Court—are the plant's owner, the Albemarle Paper Co., and the plant employees' labor union, Halifax Local No. 425.1 In August 1966, after filing a complaint with the Equal Employment Opportunity Commission (EEOC), and receiving notice of their right to sue,2 the respondents brought a class action in the United States District Court for the Eastern District of North Carolina, asking permanent injunctive relief against 'any policy, practice, custom or usage' at the plant that violated Title VII. The respondents assured the court that the suit involved no claim for any monetary awards on a class basis, but in June 1970, after several years of discovery, the respondents moved to add a class demand for backpay. The court ruled that this issue would be considered at trial.
8
At the trial, in July and August 1971, the major issues were the plant's seniority system, its program of employment testing, and the question of backpay. In its opinion of November 9, 1971, the court found that the petitioners had 'strictly segregated' the plant's departmental 'lines of progression' prior to January 1, 1964, reserving the higher paying and more skilled lines for whites. The 'racial identifiability' of whole lines of progression persisted until 1968, when the lines were reorganized under a new collective-bargaining agreement. The court found, however, that this reorganization left Negro employees "locked' in the lower paying job classifications.' The formerly 'Negro' lines of progression had been merely tacked on to the bottom of the formerly 'white' lines, and promotions, demotions, and layoffs continued to be governed—where skills were 'relatively equal'—by a system of 'job seniority.' Because of the plant's previous history of overt segregation, only whites had seniority in the higher job categories. Accordingly, the court ordered the petitioners to implement a system of 'plantwide' seniority.
9
The court refused, however, to award backpay to the plaintiff class for losses suffered under the 'job seniority' program.3 The court explained:
10
'In the instant case there was no evidence of bad faith non-compliance with the Act. It appears that the company as early as 1964 began active recruitment of blacks for its Maintenance Apprentice Program. Certain lines of progression were merged on its own initiative, and as judicial decisions expanded the then existing interpretations of the Act, the defendants took steps to correct the abuses without delay. . . .
11
'In addition, an award of back pay is an equitable remedy. . . . The plaintiffs' claim for back pay was filed nearly five years after the institution of this action. It was not prayed for in the pleadings. Although neither party can be charged with deliberate dilatory tactics in bringing this cause to trial, it is apparent that the defendants would be substantially prejudiced by the granting of such affirmative relief. The defendants might have chosen to exercise unusual zeal in having this court determine their rights at an earlier date had they known that back pay would be at issue.'
12
The court also refused to enjoin or limit Albemarle's testing program. Albemarle had required applicants for employment in the skilled lines of progression to have a high school diploma and to pass two tests, the Revised Beta Examination, allegedly a measure of nonverbal intelligence, and the Wonderlic Personnel Test (available in alternative Forms A and B), allegedly a measure of verbal facility. After this Court's decision in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), and on the eve of trial, Albemarle engaged an industrial psychologist to study the 'job relatedness' of its testing program. His study compared the test scores of current employees with supervisorial judgments of their competence in ten job groupings selected from the middle or top of the plant's skilled lines of progression. The study showed a statistically significant correlation with supervisorial ratings in three job groupings for the Beta Test, in seven job groupings for either Form A or Form B of the Wonderlic Test, and in two job groupings for the required battery of both the Beta and the Wonderlic Tests.4 The respondents' experts challenged the reliability of these studies, but the court concluded:
13
'The personnel tests administered at the plant have undergone validation studies and have been proven to be job related. The defendants have carried the burden of proof in proving that these tests are 'necessary for the safe and efficient operation of the business' and are, therefore, permitted by the Act. However, the high school education requirement used in conjunction with the testing requirements is unlawful in that the personnel tests alone are adequate to measure the mental ability and reading skills required for the job classifications.'
14
The petitioners did not seek review of the court's judgment, but the respondents appealed the denial of a backpay award and the refusal to enjoin or limit Albemarle's use of pre-employment tests. A divided Court of Appeals for the Fourth Circuit reversed the judgment of the District Court, ruling that backpay should have been awarded and that use of the tests should have been enjoined, 474 F.2d 134 (1973). As for backpay, the Court of Appeals held that an award could properly be requested after the complaint was filed and that an award could not be denied merely because the employer had not acted in 'bad faith,' id., at 142:
15
'Because of the compensatory nature of a back pay award and the strong congressional policy embodied in Title VII, a district court must exercise its discretion as to back pay in the same manner it must exercise discretion as to attorney fees under Title II of the Civil Rights Act. . . . Thus, a plaintiff or a complaining class who is successful in obtaining an injunction under Title VII of the Act should ordinarily be awarded back pay unless special circumstances would render such an award unjust. Newman v. Piggie Park Enterprises, 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968).' (Footnote omitted.)
16
As for the pre-employment tests, the Court of Appeals held, id., 138, that it was error
17
'to approve a validation study done without job analysis, to allow Albemarle to require tests for 6 lines of progression where there has been no validation study at all, and to allow Albemarle to require a person to pass two tests for entrance into 7 lines of progression when only one of those tests was validated for that line of progression.'
18
In so holding the Court of Appeals 'gave great deference' to the 'Guidelines on Employee Selection Procedures,' 29 CFR pt. 1607, which the EEOC has issued 'as a workable set of standards for employers, unions and employment agencies in determining whether their selection procedures conform with the obligations contained in title VII . . .' 29 CFR § 1607.1(c).
19
We granted certiorari5 because of an evident Circuit conflict as to the standards governing awards of backpay6 and as to the showing required to establish the 'job relatedness' of pre-employment tests.7
II
20
Whether a particular member of the plaintiff class should have been awarded any backpay and, if so, how much, are questions not involved in this review. The equities of individual cases were never reached. Though at least some of the members of the plaintiff class obviously suffered a loss of wage opportunities on account of Albemarle's unlawfully discriminatory system of job seniority, the District Court decided that no backpay should be awarded to anyone in the class. The court declined to make such an award on two stated grounds: the lack of 'evidence of bad faith non-compliance with the Act,' and the fact that 'the defendants would be substantially prejudiced' by an award of backpay that was demanded contrary to an earlier representation and late in the progress of the litigation. Relying directly on Newman v. Piggie Park Enterprises, 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), the Court of Appeals reversed, holding that backpay could be denied only in 'special circumstances.' The petitioners argue that the Court of Appeals was in error—that a district court has virtually unfettered discretion to award or deny backpay, and that there was no abuse of that discretion here.8
21
Piggie Park Enterprises, supra, is not directly in point. The Court held there that attorneys' fees should 'ordinarily' be awarded—i.e., in all but 'special circumstances'—to plaintiffs successful in obtaining injunctions against discrimination in public accommodations, under Title II of the Civil Rights Act of 1964. While the Act appears to leave Title II fee awards to the district court's discretion, 42 U.S.C. § 2000a—3(b), the court determined that the great public interest in having injunctive actions brought could be vindicated only if successful plaintiffs, acting as 'private attorneys general,' were awarded attorneys' fees in all but very unusual circumstances. There is, of course, an equally strong public interest in having injunctive actions brought under Title VII, to eradicate discriminatory employment practices. But this interest can be vindicated by applying the Piggie Park standard to the attorneys' fees provision of Title VII, 42 U.S.C. § 2000e—5(k), see Northcross v. Memphis Board of Education, 412 U.S. 427, 428, 93 S.Ct. 2201, 2202, 37 L.Ed.2d 48 (1973). For guidance as to the granting and denial of backpay, one must, therefore, look elsewhere.
22
The petitioners contend that the statutory scheme provides no guidance, beyond indicating that backpay awards are within the district court's discretion. We disagree. It is true that backpay is not an automatic or mandatory remedy; like all other remedies under the Act, it is one which the courts 'may' invoke.9 The scheme implicitly recognizes that there may be cases calling for one remedy but not another, and—owing to the structure of the federal judiciary—these choices are, of course, left in the first instance to the district courts. However, such discretionary choices are not left to a court's 'inclination, but to its judgment; and its judgment is to be guided by sound legal principles.' United States v. Burr, 25 F.Cas. No.14,692d, pp. 30, 35 (CC Va.1807) (Marshall, C.J.). The power to award backpay was bestowed by Congress, as part of a complex legislative design directed at a historic evil of national proportions. A court must exercise this power 'in light of the large objectives of the Act,' Hecht Co. v. Bowles, 321 U.S. 321, 331, 64 S.Ct. 587, 592, 88 L.Ed. 754 (1944). That the court's discretion is equitable in nature, see Curtis v. Loether, 415 U.S. 189, 197, 94 S.Ct. 1005, 1010, 39 L.Ed.2d 260 (1974), hardly means that it is unfettered by meaningful standards or shielded from thorough appellate review. In Mitchell v. Robert DeMario Jewelry, 361 U.S. 288, 292, 80 S.Ct. 332, 335, 4 L.Ed.2d 323 (1960), this Court held, in the face of a silent statute, that district courts enjoyed the 'historic power of equity' to award lost wages to workmen unlawfully discriminated against under § 17 of the Fair Labor Standards Act of 1938, 52 Stat. 1069, as amended, 29 U.S.C. § 217 (1958 ed). The Court simultaneously noted that 'the statutory purposes (leave) little room for the exercise of discretion not to order reimbursement.' 361 U.S., at 296, 80 S.Ct. at 337.
23
It is true that '(e)quity eschews mechanical rules . . . (and) depends on flexibility.' Holmberg v. Armbrecht, 327 U.S. 392, 396, 66 S.Ct. 582, 584, 90 L.Ed. 743 (1946). But when Congress invokes the Chancellor's conscience to further transcendant legislative purposes, what is required is the principled application of standards consistent with those purposes and not 'equity (which) varies like the Chancellor's foot.'10 Important national goals would be frustrated by a regime of discretion that 'produce(d) different results for breaches of duty in situations that cannot be differentiated in policy.' Moragne v. States Marine Lines, 398 U.S. 375, 405, 90 S.Ct. 1772, 1790, 26 L.Ed.2d 339 (1970).
24
The District Court's decision must therefore be measured against the purposes which inform Title VII. As the Court observed in Griggs v. Duke Power Co., 401 U.S., at 429—430, 91 S.Ct., at 853, the primary objective was a prophylactic one:
25
'It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees.'
26
Backpay has an obvious connection with this purpose. If employers faced only the prospect of an injunctive order, they would have little incentive to shun practices of dubious legality. It is the reasonably certain prospect of a backpay award that 'provide(s) the spur or catalyst which causes employers and unions to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges of an unfortunate and ignominious page in this country's history.' United States v. N.L. Industries, Inc., 8 Cir., 479 F.2d at 354, 379 (CA8 1973).
27
It is also the purpose of Title VII to make persons whole for injuries suffered on account of unlawful employment discrimination. This is shown by the very fact that Congress took care to arm the courts with full equitable powers. For it is the historic purpose of equity to 'secur(e) complete justice,' Brown v. Swann, 10 Pet. 497, 503, 9 L.Ed. 508 (1836); see also Porter v. Warner Holding Co., 328 U.S. 395, 397—398, 66 S.Ct. 1086, 1088 1089, 90 L.Ed. 1332 (1946). '(W)here federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.' Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 777, 90 L.Ed. 939 (1946). Title VII deals with legal injuries of an economic character occasioned by racial or other antiminority discrimination. The terms 'complete justice' and 'necessary relief' have acquired a clear meaning in such circumstances. Where racial discrimination is concerned, 'the (district) court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.' Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 822, 13 L.Ed.2d 709 (1965). And where a legal injury is of an economic character,
28
'(t)he general rule is, that when a wrong has been done, and the law gives a remedy, the compensation shall be equal to the injury. The latter is the standard by which the former is to be measured. The injured party is to be placed, as near as may be, in the situation he would have occupied if the wrong had not been committed.' Wicker v. Hoppock, 6 Wall. 94, 99, 18 L.Ed. 752 (1867).
29
The 'make whole' purpose of Title VII is made evident by the legislative history. The backpay provision was expressly modeled on the backpay provision of the National Labor Relations Act.11 Under that Act, '(m)aking the workers whole for losses suffered on account of an unfair labor practice is part of the vindication of the public policy which the Board enforces.' Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 197, 61 S.Ct. 845, 854, 85 L.Ed. 1271 (1941). See also Nathanson v. NLRB, 344 U.S. 25, 27, 73 S.Ct. 80, 82, 97 L.Ed. 23; NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258, 263, 90 S.Ct. 417, 420, 24 L.Ed.2d 405 (1969). We may assume that Congress was aware that the Board, since its inception, has awarded backpay as a matter of course—not randomly or in the exercise of a standardless discretion, and not merely where employer violations are peculiarly deliberate, egregious, or inexcusable.12 Furthermore, in passing the Equal Employment Opportunity Act of 1972, Congress considered several bills to limit the judicial power to award backpay. These limiting efforts were rejected, and the backpay provision was re-enacted substantially in its original form.13 A Section-by-Section Analysis introduced by Senator Williams to accompany the Conference Committee Report on the 1972 Act strongly reaffirmed the 'make whole' purpose of Title VII:
30
'The provisions of this subsection are intended to give the courts wide discretion exercising their equitable powers to fashion the most complete relief possible. In dealing with the present section 706(g) the courts have stressed that the scope of relief under that section of the Act is intended to make the victims of unlawful discrimination whole, and that the attainment of this objective rests not only upon the elimination of the particular unlawful employment practice complained of, but also requires that persons aggrieved by the consequences and effects of the unlawful employment practice be, so far as possible, restored to a position where they would have been were it not for the unlawful discrimination.' 118 Cong.Rec. 7168 (1972).
31
As this makes clear, Congress' purpose in vesting a variety of 'discretionary' powers in the courts was not to limit appellate review of trial courts, or to invite inconsistency and caprice, but rather to make possible the 'fashion(ing) (of) the most complete relief possible.'
32
It follows that, given a finding of unlawful discrimination, backpay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.14 The courts of appeals must maintain a consistent and principled application of the backpay provision, consonant with the twin statutory objectives, while at the same time recognizing that the trial court will often have the keener appreciation of those facts and circumstances peculiar to particular cases.
33
The District Court's stated grounds for denying backpay in this case must be tested against these standards. The first ground was that Albemarle's breach of Title VII had not been in 'bad faith.'15 This is not a sufficient reason for denying backpay. Where an employer has shown bad faith—by maintaining a practice which he knew to be illegal or of highly questionable legality—he can make no claims whatsoever on the Chancellor's conscience. But, under Title VII, the mere absence of bad faith simply opens the door to equity; it does not depress the scales in the employer's favor. If backpay were awardable only upon a showing of bad faith, the remedy would become a punishment for moral turpitude, rather than a compensation for workers' injuries. This would read the 'make whole' purpose right out of Title VII, for a worker's injury is no less real simply because his employer did not inflict it in 'bad faith.'16 Title VII is not concerned with the employer's 'good intent or obsence of discriminatory intent' for 'Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.' Griggs v. Duke Power Co., 401 U.S., at 432, 91 S.Ct., at 854. See also Watson v. City of Memphis, 373 U.S. 526, 535, 83 S.Ct. 1314, 1319—1320, 10 L.Ed.2d 529 (1963); Wright v. Council of City of Emporia, 407 U.S. 451, 461—462, 92 S.Ct. 2196, 2202—2203, 33 L.Ed.2d 51 (1972).17 To condition the awarding of backpay on a showing of 'bad faith' would be to open an enormous chasm between injunctive and backpay relief under Title VII. There is nothing on the face of the statute or in its legislative history that justifies the creation of drastic and categorical distinctions between those two remedies.18
34
The District Court also grounded its denial of backpay on the fact that the respondents initially disclaimed any interest in backpay, first asserting their claim five years after the complaint was filed. The court concluded that the petitioners had been 'prejudiced' by this conduct. The Court of Appeals reversed on the ground 'that the broad aims of Title VII require that the issue of back pay be fully developed and determined even though it was not raised until the post-trial stage of litigation,' 474 F.2d, at 141.
35
It is true that Title VII contains no legal bar to raising backpay claims after the complaint for injunctive relief has been filed, or indeed after a trial on that complaint has been had.19 Furthermore, Fed.Rule Civ.Proc. 54(c) directs that
36
'every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.'
37
But a party may not be 'entitled' to relief if its conduct of the cause has improperly and substantially prejudiced the other party. The respondents here were not merely tardy, but also inconsistent, in demanding backpay. To deny backpay because a particular cause has been prosecuted in an eccentric fashion, prejudicial to the other party, does not offend the broad purposes of Title VII. This is not to say, however, that the District Court's ruling was necessarily correct. Whether the petitioners were in fact prejudiced, and whether the respondents' trial conduct was excusable, are questions that will be open to review by the Court of Appeals, if the District Court, on remand, decides again to decline to make any award of backpay.20 But the standard of review will be the familiar one of whether the District Court was 'clearly erroneous' in its factual findings and whether it 'abused' its traditional discretion to locate 'a just result' in light of the circumstances peculiar to the case, Langnes v. Green, 282 U.S. 531, 541, 51 S.Ct. 243, 247, 75 L.Ed. 520 (1931). On these issues of procedural regularity and prejudice, the 'broad aims of Title VII' provide no ready solution.
III
38
In Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), this Court unanimously held that Title VII forbids the use of employment tests that are discriminatory in effect unless the employer meets 'the burden of showing that any given requirement (has) . . . a manifest relationship to the employment in question.' Id., at 432, 91 S.Ct. at 854.21 This burden arises, of course, only after the complaining party or class has made out a prima facie case of discrimination, i.e. has shown that the tests in question select applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). If an employer does then meet the burden of proving that its tests are 'job related,' it remains open to the complaining party to show that other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer's legitimate interest in 'efficient and trustworthy workmanship.' Id., at 801, 93 S.Ct. at 1823. Such a showing would be evidence that the employer was using its tests merely as a 'pretext' for discrimination. Id., at 804—805, 93 S.Ct. at 1825—1826. In the present case, however, we are concerned only with the question whether Albemarle has shown its tests to be job related.
39
The concept of job relatedness takes on meaning from the facts of the Griggs case. A power company in North Carolina had reserved its skilled jobs for whites prior to 1965. Thereafter, the company allowed Negro workers to transfer to skilled jobs, but all transferees—white and Negro—were required to attain national median scores on two tests:
40
'(T)he Wonderlic Personnel Test, which purports to measure general intelligence, and the Bennett Mechanical Comprehension Test. Neither was directed or intended to measure the ability to learn to perform a particular job or category of jobs. . .
41
'. . . Both were adopted, as the Court of Appeals noted, without meaningful study of their relationship to job-performance ability. Rather, a vice president of the Company testified, the requirements were instituted on the Company's judgment that they generally would improve the overall quality of the work force.' 401 U.S., at 428—431, 91 S.Ct., at 852.
42
The Court took note of 'the inadequacy of broad and general testing devices as well as the infirmity of using diplomas or degrees as fixed measures of capability,' id., at 433, and concluded:
43
'Nothing in the Act precludes the use of testing or measuring procedures; obviously they are useful. What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance. . . . What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract.' Id., at 436, 91 S.Ct. at 856.
44
Like the employer in Griggs, Albemarle uses two general ability tests, the Beta Examination, to test nonverbal intelligence, and the Wonderlic Test (Forms A and B), the purported measure of general verbal facility which was also involved in the Griggs case. Applicants for hire into various skilled lines of progression at the plant are required to score 100 on the Beta Exam and 18 on one of the Wonderlic Test's two alternative forms.22
45
The question of job relatedness must be viewed in the context of the plant's operation and the history of the testing program. The plant, which now employes about 650 persons, converts raw wood into paper products. It is organized into a number of functional departments, each with one or more distinct lines of progression, the theory being that workers can move up the line as they acquire the necessary skills. The number and structure of the lines have varied greatly over time. For many years, certain lines were themselves more skilled and paid higher wages than others, and until 1964 these skilled lines were expressly reserved for white workers. In 1968, many of the unskilled 'Negro' lines were 'end-tailed' onto skilled 'white' lines, but it apparently remains true that at least the top jobs in certain lines require greater skills than the top jobs in other lines. In this sense, at least, it is still possible to speak of relatively skilled and relatively unskilled lines.
46
In the 1950's while the plant was being modernized with new and more sophisticated equipment, the Company introduced a high school diploma requirement for entry into the skilled lines. Though the Company soon concluded that this requirement did not improve the quality of the labor force, the requirement was continued until the District Court enjoined its use. In the late 1950's, the Company began using the Beta Examination and the Bennett Mechanical Comprehension Test (also involved in the Griggs case) to screen applicants for entry into the skilled lines. The Bennett Test was dropped several years later, but use of the Beta Test continued.23
47
The Company added the Wonderlic Tests in 1963, for the skilled lines, on the theory that a certain verbal intelligence was called for by the increasing sophistication of the plant's operations. The Company made no attempt to validate the test for job relatedness,24 and simply adopted the national 'norm' score of 18 as a cut-off point for new job applicants. After 1964, when it discontinued overt segregation in the lines of progression, the Company allowed Negro workers to transfer to the skilled lines if they could pass the Beta and Wonderlic Tests, but few succeeded in doing so. Incombents in the skilled lines, some of whom had been hired before adoption of the tests, were not required to pass them to retain their jobs or their promotion rights. The record shows that a number of white incumbents in high-ranking job groups could not pass the tests.25
48
Because departmental reorganization continued up to the point of trial, and has indeed continued since that point, the details of the testing program are less than clear from the record. The District Court found that, since 1963, the Beta and Wonderlic Tests have been used in 13 lines of progression, within eight departments. Albemarle contends that at present the tests are used in only eight lines of progression, within four departments.
49
Four months before this case went to trial, Albemarle engaged an expert in industrial psychology to 'validate' the job relatedness of its testing program. He spent a half day at the plant and devised a 'concurrent validation' study, which was conducted by plant officials, without his supervision. The expert then subjected the results to statistical analysis. The study dealt with 10 job groupings, selected from near the top of nine of the lines of progression.26 Jobs were grouped together solely by their proximity in the line of progression; no attempt was made to analyze jobs in terms of the particular skills they might require. All, or nearly all, employees in the selected groups participated in the study—105 employees in all, but only four Negroes. Within each job grouping the study compared the test scores of each employee with an independent 'ranking' of the employee, relative to each of his coworkers, made by two of the employee's supervisors. The supervisors, who did not know the test scores, were asked to
50
'determine which ones they felt irrespective of the job that they were actually doing, but in their respective jobs, did a better job than the person they were rating against . . ..'27
51
For each job grouping, the expert computed the 'Phi coefficient' of statistical correlation between the test scores and an average of the two supervisorial rankings. Consonant with professional conventions, the expert regarded as 'statistically significant' any correlation that could have occurred by chance only five times, or fewer in 100 trials.28 On the basis of these results, the District Court found that '(t)he personnel test administered at the plant have undergone validation studies and have been proven to be job related.' Like the Court of Appeals, we are constrained to disagree.
52
The EEOC has issued 'Guidelines' for employers seeking to determine, through professional validation studies, whether their employment tests are job related. 29 CFR pt. 1607. These Guidelines draw upon and make reference to professional standards of test validation established by the American Psychological Association.29 The EEOC Guidelines are not administrative regulations' promulgated pursuant to formal procedures established by the Congress. But, as this Court has heretofore noted, they do constitute '(t)he administrative interpretation of the Act by the enforcing agency,' and consequently they are 'entitled to great deference.' Griggs v. Duke Power Co., 401 U.S., at 433—434, 91 S.Ct., at 854. See also Espinoza v. Farah Mfg. Co., 414 U.S. 86, 94, 94 S.Ct. 334, 339, 38 L.Ed.2d 287 (1973).
53
The message of these Guidelines is the same as that of the Griggs case—that discriminatory tests are impermissible unless shown, by professionally acceptable methods, to be 'predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.' 29 CFR § 1607.4(c).
54
Measured against the Guidelines, Albemarle's validation study is materially defective in several respects:
55
(1) Even if it had been otherwise adequate, the study would not have 'validated' the Beta and Wonderlic test battery for all of the skilled lines of progression for which the two tests are, apparently, now required. The study showed significant correlations for the Beta Exam in only three of the eight lines. Though the Wonderlic Test's Form A and Form B are in theory identical and interchangeable measures of verbal facility, significant correlations for one form but not for the other were obtained in four job groupings. In two job groupings neither form showed a significant correlation. Within some of the lines of progression, one form was found acceptable for some job groupings but not for others. Even if the study were otherwise reliable, this odd patchwork of results would not entitle Albemarle to impose its testing program under the Guidelines. A test may be used in jobs other than those for which it has been professionally validated only if there are 'no significant differences' between the studied and unstudied jobs. 29 CFR § 1607.4(c)(2). The study in this case involved no analysis of the attributes of, or the particular skills needed in, the studied job groups. There is accordingly no basis for concluding that 'no significant differences' exist among the lines of progression, or among distinct job groupings within the studied lines of progression. Indeed, the study's checkered results appear to compel the opposite conclusion.
56
(2) The study compared test scores with subjective supervisorial rankings. While they allow the use of supervisorial rankings in test validation, the Guidelines quite plainly contemplate that the rankings will be elicited with far more care than was demonstrated here.30 Albemarle's supervisors were asked to rank employees by a 'standard' that was extremely vague and fatally open to divergent interpretations. As previously noted, each 'job grouping' contained a number of different jobs, and the supervisors were asked, in each grouping to
57
'determine which ones (employees) they felt irrespective of the job that they were actually doing, but in their respective jobs, did a better job than the person they were rating against . . ..'31
58
There is no way of knowing precisely what criteria of job performance the supervisors were considering, whether each of the supervisors was considering the same criteria or whether, indeed, any of the supervisors actually applied a focused and stable body of criteria of any kind.32 There is, in short, simply no way to determine whether the criteria actually considered were sufficiently related to the Company's legitimate interest in job-specific ability to justify a testing system with a racially discriminatory impact.
59
(3) The Company's study focused, in most cases, on job groups near the top of the various lines of progression. In Griggs v. Duke Power Co., supra, the Court left open 'the question whether testing requirements that take into account capability for the next succeeding position or related future promotion might be utilized upon a showing that such long-range requirements fulfill a genuine business need.' 401 U.S., at 432, 91 S.Ct., at 854. The Guidelines take a sensible approach to this issue, and we now endorse it:
60
'If job progression structures and seniority provisions are so established that new employees will probably, within a reasonable period of time and in a great majority of cases, progress to a higher level, it may be considered that candidates are being evaluated for jobs at that higher level. However, where job progression is not so nearly automatic, or the time span is such that higher level jobs or employees' potential may be expected to change in significant ways, it shall be considered that candidates are being evaluated for a job at or near the entry level.' 29 CFR § 1607.4(c)(1).
61
The fact that the best of those employees working near the top of a line of progression score well on a test does not necessarily mean that that test, or some particular cutoff score on the test, is a permissible measure of the minimal qualifications of new workers entering lower level jobs. In drawing any such conclusion, detailed consideration must be given to the normal speed of promotion, to the efficacy of on-the-job training in the scheme of promotion, and to the possible use of testing as a promotion device, rather than as a screen for entry into low-level jobs. The District Court made no findings on these issues. The issues take on special importance in a case, such as this one, where incumbent employees are permitted to work at even high-level jobs without passing the company's test battery. See 29 CFR § 1607.11.
62
(4) Albemarle's validation study dealt only with job-experienced, white workers; but the tests themselves are given to new job applicants, who are younger, largely inexperienced, and in many instances nonwhite. The APA Standards state that it is 'essential' that
63
'(t)he validity of a test should be determined on subjects who are at the age or in the same educational or vocational situation as the persons for whom the test is recommended in practice.' C 5.4.
64
The EEOC Guidelines likewise provide that '(d)ata must be generated and results separately reported for minority and nonminority groups wherever technically feasible.' 29 CFR § 1607.5(b)(5). In the present case, such 'differential validation' as to racial groups was very likely not 'feasible,' because years of discrimination at the plant have insured that nearly all of the upper level employees are white. But there has been no clear showing that differential validation was not feasible for lower level jobs. More importantly, the Guidelines provide:
65
'If it is not technically feasible to include minority employees in validation studies conducted on the present work force, the conduct of a validation study without minority candidates does not relieve any person of his subsequent obligation for validation when inclusion of minority candidates becomes technically feasible.' 29 CFR § 1607.5(b)(1).
66
'. . . (E)vidence of satisfactory validity based on other groups will be regarded as only provisional compliance with these guidelines pending separate validation of the test for the minority group in question.' 29 CFR § 1607.5(b) (5).
67
For all these reasons, we agree with the Court of Appeals that the District Court erred in concluding that Albemarle had proved the job relatendness of its testing program and that the respondents were consequently not entitled to equitable relief. The outright reversal by the Court of Appeals implied that an injunction should immediately issue against all use of testing at the plant. Because of the particular circumstances here, however, it appears that the more prudent course is to leave to the District Court the precise fashioning of the necessary relief in the first instance. During the appellate stages of this litigation, the plant has apparently been amending its departmental organization and the use made of its tests. The appropriate standard of proof for job relatedness has not been clarified until today. Similarly, the respondents have not until today been specifically apprised of their opportunity to present evidence that even validated tests might be a 'pretext' for discrimination in light of alternative selection procedures available to the Company. We also note that the Guidelines authorize provisional use of tests, pending new validation efforts, in certain very limited circumstances. 29 CFR § 1607.9. Whether such circumstances now obtain is a matter best decided, in the first instance, by the District Court. That court will be free to take such new evidence, and to exercise such control of the Company's use and validation of employee selection procedures, as are warranted by the circumstances and by the controlling law.
68
Accordingly, the judgment is vacated, and these cases are remanded to the District Court for proceedings consistent with this opinion.
69
It is so ordered.
70
Judgment vacated and cases remanded.
71
Mr. Justice POWELL took no part in the consideration or decision of these cases.
Page 437
72
APPENDIX TO OPINION OF THE COURT
CHART A
Results of Validation Study
Test
Job Group N Beta W-A W-B
1. Caustic Operator, Lime Kiln
Operator.................... 8 .25 1.00** .47
2. C. E. Recovery Operator,
C. E. Recovery 1st Helpers
& Evaporator Operators...... 12 .64** .32 .17
3. Wood Yard: Long Log
Operators, Log Stackers,
Small Equipment Operators
& Oilers.................... 14 .00 1.00** .72*
4. Technical Services: B Mill
Shift Testmen, Additive
men, General Lab.
Testmen, General Lab. asst.,
A Mill Testmen, Samplemen... - .50* .75** .64*
5. B Paper Mill: Machine
Tenders and Back Tenders.... 16 .00 .50** .34
6. B Paper Mill: Stock Room
Operator, Stock Room 1st
Helper....................... 8 -.50 .00 .00
7. B Paper Mill: 3rd Hands,
4th Hands & 5th Hands....... 21 .43 .81** .60**
8. Wood Yard: Chipper
Unloader, Chipper Operator,
No. 2 Chain Operator........ 6 .76* -.25 1.00**
9. Pulp Mill: Stock Room
Operator, Stock Room 1st
Helpers...................... 8 .50 .80* .76*
10. Power Plant: Power Plant
Operator, Power Plant 1st
Helper, Power Plant 2nd
Helper..................... 12 .34 .75** .66*
NOTE
73
The job groups are identified in Chart B. N indicates the number of employees tested. A single (double) asterisk indicates the "Phi" coefficient of correlation, shown on the chart, is statistically significant at a 95% (99%) level of confidence. The other coefficients are not statistically significant.
CHART B
74
[NOTE: MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE (GRAPHIC OR TABULAR MATERIAL)] [NOTE: MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE (GRAPHIC OR TABULAR MATERIAL)]
75
Mr. Justice MARSHALL, concurring.
76
I agree with the opinion of the Court. I write today to make the following observations about the proceedings in the District Court on remand relative to the backpay issue.
77
As the Court affirms, there is no legal bar to raising a claim for backpay under Title VII at any time in the proceedings, even 'indeed after a trial on (the) complaint (for injunctive relief) has been had.' Ante, at 2374. Furthermore, only the most unusual circumstances would constitute an equitable barrier to the award of make-whole relief where liability is otherwise established. The bar of laches, predicated on the prejudice to a defendant's case from the tardy entry of a prayer for compensation, should be particularly difficult to establish.
78
Backpay in Title VII cases is generally computed, with respect to each affected employee or group of employees, by determining the amount of compensation lost as a direct result of the employer's discriminatory decision not to hire or promote. In litigation such as this, where the plaintiff class is limited to present and former employees of petitioner company who were denied promotions into the more lucrative positions because of their race, there is no need to make additional findings and offsetting computations for wages earned in alternative employment during the relevant period.
79
The information needed in order to compute backpay for nonpromotion is contained in the personnel records and pay schedules normally maintained by an employer, some under compulsion of law. These data include the time at which an employee in the favored group was promoted over an otherwise more senior member of the disfavored class, and the wage differential that the promotion entailed. Rarely, if ever, could an employer plausibly invoke the doctrine of laches on the usual ground that the passage of time has put beyond reach evidence or testimony necessary to his case.
80
The prejudice on which the District Court relied here was, indeed, of a different and more speculative variety. The court made no findings of fact relevant to the subject, but found it 'apparent' that prejudice would accrue because '(t)he defendants might have chosen to exercise unusual zeal in having this court determine their rights at an earlier date had they known that back pay would be at issue.' 2 App. 498. This indulgent speculation is clearly not an adequate basis on which to deny the successful Title VII complainant compensatory backpay and surely even less of a reason for penalizing the members of the class that he represents.* In posing as an issue on remand '(w)hether the petitioners were in fact prejudiced,' ante, at 424 (emphasis added), the Court recognized as much.
81
Although on the record now before us I have no doubt that respondents' tardiness in asserting their claim to backpay was excusable in light of the uncertain state of the law during the first years of this litigation, I agree that the District Court should be the first to pass upon the issues as the Court has posed them. Doubtful though I remain about their ability to do so, petitioners are entitled at least to an opportunity to prove that respondents' delay prejudiced their defense so substantially as to make an award of compensatory relief oppressive.
82
Mr. Justice REHNQUIST, concurring.
83
I join the opinion of the Court. The manner in which 42 U.S.C. § 2000e—5(g) (1970 ed., Supp. III) is construed has important consequences not only as to the circumstances under which backpay may be awarded, but also as to the method by which any such award is to be determined.
84
To the extent that an award of backpay were to be analogized to an award of damages, such an award upon proper proof would follow virtually as a matter of course from a finding that an employer had unlawfully discriminated contrary to the provisions of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended by the Equal Employment Opportunity Act of 1972, 86 Stat. 103, 42 U.S.C. § 200e et seq. (1970 ed. and Supp. III). Plaintiffs would be entitled to the benefit of the rule enunciated in Bigelow v. RKO Radio Pictures, 327 U.S. 251, 265, 66 S.Ct. 574, 580, 90 L.Ed. 652 (1946):
85
"The constant tendency of the courts is to find some way in which damages can be awarded where a wrong has been done. Difficulty of ascertainment is no longer confused with right of recovery' for a proven invasion of the plaintiff's rights. Story Parchment Co. v. Patterson Co., (282 U.S. 555, 51 S.Ct. 248, 76 L.Ed. 544,) 565.'
86
But precisely to the extent that an award of backpay is thought to flow as a matter of course from a finding of wrongdoing, and thereby becomes virtually indistinguishable from an award for damages, the question (not raised by any of the parties, and therefore quite properly not discussed in the Court's opinion), of whether either side may demand a jury trial under the Seventh Amendment becomes critical. We said in Curtis v. Loether, 415 U.S. 189, 197, 94 S.Ct. 1005, 1010, 39 L.Ed.2d 260 (1974), in explaining the difference between the provision for damages under § 812 of the Civil Rights Act of 1968, 82 Stat. 88, 42 U.S.C. s 3612, and the authorization for the award of backpay which we treat here:
87
'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. . . . 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.' (Footnote omitted.)
88
In Curtis, supra, the Court further quoted the description of the Seventh Amendment in Mr. Justice Story's opinion for this Court in Parsons v. Bedford, 3 Pet. 433, 447, 7 L.Ed. 732 (1830), to the effect that:
89
'In a just sense, the amendment then may well be construed to embrace all suits which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights.'
90
To the extent, then, that the District Court retains substantial discretion as to whether or not to award backpay notwithstanding a finding of unlawful discrimination, the nature of the jurisdiction which the court exercises is equitable, and under our cases neither party may demand a jury trial. To the extent that discretion is replaced by awards which follow as a matter of course from a finding of wrongdoing, the action of the court in making such awards could not be fairly characterized as equitable in character, and would quite arguably be subject to the provisions of the Seventh Amendment.
91
Thus I believe that the broad latitude which the Court's opinion reposes in the district courts in the decision as to whether backpay shall be awarded is not only consistent with the statute, but is supported by policy considerations which would favor the more expeditious disposition which may be made of numerous claims on behalf of frequently large classes by a court sitting without a jury. As the Court states, ante, at 419, the backpay remedy provided by Title VII is modeled on the remedial provisions of the NLRA. This Court spoke to the breadth of the latter provision in Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 198, 61 S.Ct. 845, 854, 85 L.Ed. 1271 (1941), when it said:
92
'(W)e must avoid the rigidities of an either-or rule. The remedy of back pay, it must be remembered, is entrusted to the Board's discretion; it is not mechanically compelled by the Act. And in applying its authority over back pay orders, the Board has not used stereotyped formulas but has availed itself of the freedom given it by Congress to attain just results in diverse, complicated situations.'
93
I agree, nonetheless, with the Court that the District Court should not have denied backpay in this litigation simply on the ground that Albemarle's breach of Title VII had not been in 'bad faith.' Good faith is a necessary condition for obtaining equitable consideration, but in view of the narrower 'good faith' defense created by statute, 42 U.S.C. § 2000e—12(b), it is not for this Court to expand such a defense beyond those situations to which Congress had made it applicable. I do not read the Court's opinion to say, however, that the facts upon which the District Court based its conclusion, ante, at 422 n. 15, would not have supported a finding that the conduct of Albemarle was reasonable under the circumstances as well as being simply in good faith. Nor do I read the Court's opinion to say that such a combination of factors might not, in appropriate circumstances, be an adequate basis for denial of backpay. See Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002, 1006 (CA9 1972); United States v. Georgia Power Co., 474 F.2d 906, 922 (CA5 1973).
94
A cursory canvass of the decisions of the District Courts and Courts of Appeals which confront these problems much more often than we do suggests that the most frequently recurring problem in this area in the difficulty of ascertaining a sufficient causal connection between the employer's conduct properly found to have been in violation of the statute and an ascertainable amount of backpay lost by a particular claimant as a result of that conduct. United States v. St. Louis-S.F.R. Co., 464 F.2d 301, 311 (CA8 1972), cert. denied, 409 U.S. 1116, 93 S.Ct. 913, 34 L.Ed.2d 700 (1973). The Court of Appeals for the Eighth Circuit aptly described the difficulty of fashioning an award of backpay in the circumstances before it, and upheld the District Court's refusal to award backpay, in Norman v. Missouri P.R. Co., 497 F.2d 594, 597 (1974), cert. denied, 420 U.S. 908, 95 S.Ct. 826, 42 L.Ed.2d 837 (1975).
95
'No standard could determine the right to back pay itself nor the date from which to compute any right to back pay. Courts that have found back pay awards to be appropriate remedies in Title VII actions have generally recognized that such awards should be limited to actual damages . . ..'
96
As the Court recongizes, ante, at 424-425, another factor presented here which is relevant to the District Court's exercise of discretion is the possible detrimental reliance of petitioners on prior representations of respondents that they were not seeking classwide backpay. In 1966 respondents in replying to a motion for summary judgment expressly represented to the District Court that they had no interest in classwide backpay:
97
'It is important to understand the exact nature of the class relief being sought by plaintiffs. No money damages are sought for any member of the class not before the court . . ..
98
'. . . (T)he matter of specific individual relief for other class members is not before this Court.' 1 App. 13—14.
99
Five years later, respondents reversed their position and asserted a claim for classwide backpay. Petitioners have argued here and below that they reasonably relied to their detriment on respondents' statement in numerous ways including an interim sale of the mill at a price which did not take into account the ruinous liability with which the new owners are now faced, failure to investigate and prepare defenses to individual backpay claims which are now nine years old, and failure to speed resolution of this lawsuit. 474 F.2d 134, 146 n. 16 (CA4 1973). This conduct by the respondents presents factual and legal questions to be resolved in the first instance by the District Court, reviewable only on whether its factual findings are 'clearly erroneous' and whether its ultimate conclusion is an 'abuse of discretion' under all the circumstances of this case. Ante, at 424-425. In the same manner that the good faith of an employer may not be viewed in isolation as precluding backpay under any and all circumstances, the excusable nature of respondents' conduct, if found excusable will not necessarily preclude denial of a backpay award if petitioners are found to have substantially and justifiably relied on respondents' prior representations.
100
If the award of backpay is indeed governed by equitable considerations, and not simply a thinly disguised form of damages, factors such as these and others, which may argue in favor of or against the equities of either plaintiff or defendants, must be open for consideration by the District Court. It, like the NLRB, must avail itself 'of the freedom given it by Congress to attain just results in diverse, complicated situations.' Phelps Dodge Corp. v. NLRB, 313 U.S. at 198, 61 S.Ct. 854, 85 L.Ed. 1271.
101
Mr. Justice BLACKMUN, concurring in the judgment.
102
I concur in the judgment of the Court, but I do not agree with all that is said in the Court's opinion.
103
The statutory authority for making awards of backpay in Title VII cases is cast in language that emphasizes flexibility and discretion in fashioning an appropriate remedy:
104
'If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the 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.' 78 Stat. 261, as amended, 86 Stat. 107, 42 U.S.C. § 2000e—5(g) (1970 ed., Supp. III) (emphasis added).
105
Despite this statutory emphasis on discretion, the Court of Appeals in this case reasoned by analogy to Newman v. Piggie Park Enterprises, 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), that once a violation of Title VII had been established, '(back pay) should ordinarily by awarded . . . unless special circumstances would render such an award unjust.' 474 F.2d 134, 142 (CA4 1973). Today the Court rejects the 'special circumstances' test adopted by the Court of Appeals and holds that the power to award backpay is a discretionary power, the exercise of which must be measured against 'the purposes which inform Title VII.' Ante, at 415-417. With this much of the Court's opinion I agree. The Court goes on to suggest, however, that an employer's good faith is never a sufficient reason for refusing to award backpay. Ante, at 422-423. With this suggestion I do not agree. Instead, I believe that the employer's good faith may be a very relevant factor for a court to consider in exercising its discretionary power to fashion an appropriate affirmative action order. Thus, to take a not uncommon example, an employer charged with sex discrimination may defend on the ground that the challenged conduct was required by a State's 'female protective' labor statute. See, e.g., Kober v. Westinghouse Electric Corp., 480 F.2d 240 (CA3 1973); Manning v. General Motors, 466 F.2d 812 (CA6 1972), cert. denied, 410 U.S. 946, 93 S.Ct. 1366, 35 L.Ed.2d 613 (1973); Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002 (CA9 1972); LeBlanc v. Southern Bell Telephone & Telegraph Co., 460 F.2d 1228 (CA5), cert. denied, 409 U.S. 990, 93 S.Ct. 320, 34 L.Ed.2d 257 (1972). In such a case, the employer may be thrust onto the horns of a dilemma: either he must violate Title VII or he must violate a presumptively valid state law. Even though good-faith reliance on the state statute may not exonerate an employer from a finding that he has intentionally violated Title VII, see, e.g., Kober v. Westinghouse Electric Corp., supra; cf., ante, at 423 nn. 17—18, surely the employer's good-faith effort to comply with Title VII to the extent possible under state law is a relevant consideration in considering whether to award backpay. Although backpay in such a case would serve the statutory purpose of making the discriminatee whole, it would do so at the expense of an employer who had no alternative under state law and who derived no economic benefit from the challenged conduct.
106
I also agree with the decision of the Court to vacate the judgment of the Court of Appeals insofar as it appeared to require an injunction against all testing by Albemarle. I cannot join, however, in the Court's apparent view that absolute compliance with the EEOC Guidelines is a sine qua non of pre-employment test validation. The Guidelines, of course, deserve that deference normally due agency statements based on agency experience and expertise. Nevertheless, the Guidelines in question have never been subjected to the test of adversary comment. Nor are the theories on which the Guidelines are based beyond dispute. The simple truth is that pre-employment tests, like most attempts to predict the future, will never be completely accurate. We should bear in mind that pre-employment testing, so long as it is fairly related to the job skills or work characteristics desired, possesses the potential of being an effective weapon in protecting equal employment opportunity because it has a unique capacity to measure all applicants objectively on a standardized basis. I fear that a too-rigid application of the EEOC Guidelines will leave the employer little choice, save an impossibly expensive and complex validation study, but to engage in a subjective quota system of employment selection. This, of course, is far from the intent of Title VII.
107
Mr. Chief Justice BURGER, concurring in part and dissenting in part.
108
I agree with the Court's opinion insofar as it holds that the availability of backpay is a matter which Title VII commits to the sound equitable discretion of the trial court. I cannot agree with the Court's application of that principle in this case, or with its method of reviewing the District Court's findings regarding Albemarle's testing policy.
109
With respect to the backpay issue, it must be emphasized that Albemarle was not held liable for practicing overt racial discrimination. It is undisputed that it voluntarily discontinued such practices prior to the effective date of Title VII and that the statute does not—and could not-apply to acts occurring before its passage. The basis of Albemarle's liability was that its seniority system perpetuated the effects of past discrimination and, as the District Court pointed out, the law regarding an employer's obligation to cure such effects was unclear for a considerable period of time. Moreover, the District Court's finding that Albemarle did not act in bad faith was not simply a determination that it thought its seniority system was legal but, rather, a finding that both prior to and after the filing of this lawsuit it took steps to integrate minorities into its labor force and to promptly fulfill its obligations under the law as it developed.1
110
In light of this background, the Court's suggestion that the district Court 'conditioned' awards of backpay upon a showing of bad faith, ante, at 423, is incorrect. Moreover, the District Court's findings on this point cannot be disregarded as irrelevant. As the Court's opinion notes, one of Congress' major purposes in giving district courts discretion to award backpay in Title VII actions was to encourage employers and unions "to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges of an unfortunate and ignominious page in this country's history." Ante, at 418. By the same taken, if employers are to be assessed backpay even where they have attempted in good faith to conform to the law, they will have little incentive to eliminate marginal practices until bound by a court judgment. Plainly, then, the District Court's findings relate to 'reasons which, if applied generally, would not frustrate the central statutory purposes . . ..' Ante, at 421. Because respondents waited five years before changing their original position disclaiming backpay and belatedly seeking it, thus suggesting that a desire to be 'made whole' was not a major reason for their pursuit of this litigation, I cannot say that the District Court abused its discretion by denying that remedy.2
111
The Court's treatment of the testing issue is equally troubling. Its entire analysis is based upon a wooden application of EEOC Guidelines which, it says, are entitled to 'great deference' as an administrative interpretation of Title VII under Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). The Court's reliance upon Griggs is misplaced. There we were dealing with Guidelines which state that a test must be demonstrated to be job related before it can qualify for the exemption contained in § 703(h) of Title VII, 78 Stat. 257, 42 U.S.C. § 2000e—2(h), as a device not 'designed, intended or used to discriminate . . ..' Because this interpretation of specific statutory language was supported by both the Act and its legislative history, we observed that there was 'good reason to treat the guidelines as expressing the will of Congress.' 401 U.S., at 434, 91 S.Ct., at 855. See also Espinoza v. Farah Mfg. Co., 414 U.S. 86, 93—95, 94 S.Ct. 334, 339—340, 38 L.Ed.2d 287 (1973).
112
In contrast, the Guidelines upon which the Court now relies relate to methods for proving job relatedness; they interpret no section of Title VII and are nowhere referred to in its legislative history. Moreover, they are not federal regulations which have been submitted to public comment and scrutiny as required by the Administrative Procedure Act.3 Thus, slavish adherence to the EEOC Guidelines regarding test validation should not be required; those provisions are, as their title suggests, guides entitled to the same weight as other well-founded testimony by experts in the field of employment testing.
113
The District Court so considered the Guidelines in this case and resolved any conflicts in favor of Albemarle's experts. For example, with respect to the question whether validating tests for persons at or near the top of a line of progression 'is a permissible measure of the minimal qualifications of new workers,' ante, at 434, the District Court found:
114
'The group tested was typical of employees in the skilled lines of progression. They were selected from the top and middle of various lines. Professional studies have shown that when tests are validated in such a narrow range of competence, there is a greater chance that the test will validate even a broader range, that is, if job candidates as well as present employees are tested.' 2 App. 490—491.
115
Unless this Court is prepared to hold that this and similar factual findings are clearly erroneous, the District Court's conclusion that Albemarle had sustained its burden of showing that its tests were job related is entitled to affirmance, if we follow traditional standards of review. At the very least, the case should be remanded to the Court of Appeals with instructions that it reconsider the testing issue, giving the District Court's findings of fact the deference to which they are entitled.
116
-
1
The paper mill has changed hands during this litigation, but these changes are irrelevant to the issues considered in this opinion, and the employer interest will be referred to throughout as Albemarle or the Company. The labor union is involved in only the backpay aspect of this litigation.
2
The relevant procedures may be found at 42 U.S.C. § 2000e 5(f)(1) (1970 ed., Supp. III). See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973); Alexander v. Gardner-Denver Co., 415 U.S. 36, 44—45, 94 S.Ct. 1011, 1017—1018, 39 L.Ed.2d 147 (1974). See also n. 8, infra.
3
Under Title VII backpay liability exists only for practices occurring after the effective date of the Act, July 2, 1965, and accrues only from a date two years prior to the filing of a charge with the EEOC. See 42 U.S.C. § 2000e—5(g) (1970 ed., Supp. III). Thus no award was possible with regard to the plant's pre-1964 policy of 'strict segregation.'
4
See infra, at 429-430.
5
419 U.S. 1068, 95 S.Ct. 654, 42 L.Ed.2d 664 (1974). The Fourth Circuit initially granted a petition to rehear this case en banc. But that petition was ultimately denied, after this Court ruled, on a certified question, that 'senior circuit judges who are members of the originally assigned division hearing a case are not authorized by Congress to participate in the determination whether to rehear that case in banc.' 417 U.S. 622, 624, 94 S.Ct. 2513, 2514, 41 L.Ed.2d 358 (1974).
6
For example, compare Kober v. Westinghouse Electric Corp., 480 F.2d 240 (CA3 1973), with Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (CA5 1974), and Head v. Timken Roller Bearing Co., 486 F.2d 870 (CA6 1973).
7
For example, compare Pettway v. American Cast Iron Pipe Co., supra, with Castro v. Beecher, 459 F.2d 725 (CA1 1972).
8
The petitioners also contend that no backpay can be awarded to those unnamed parties in the plaintiff class who have not themselves filed charges with the EEOC. We reject this contention. The Courts of Appeals that have confronted the issue are unanimous in recognizing that backpay may be awarded on a class basis under Title VII without exhaustion of administrative procedures by the unnamed class members. See, e.g., Rosen v. Public Service Electric & Gas Co., 409 F.2d 775, 780 (CA3 1969), and 477 F.2d 90, 95—96 (CA3 1973); Robinson v. Lorillard Corp., 444 F.2d 791, 802 (CA4 1971); United States v. Georgia Power Co., 474 F.2d 906, 919—921 (CA5 1973); Head v. Timken Roller Bearing Co., supra, at 876; Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 719—721 (CA7 1969); United States v. N.L. Industries, Inc., 479 F.2d 354, 378—379 (CA8 1973). The Congress plainly ratified this construction of the Act in the course of enacting the Equal Employment Opportunity Act of 1972, Pub.L. 92—261, 86 Stat. 103. The House of Representatives passed a bill, H.R. 1746, 92d Cong., 1st Sess., that would have barred, in § 3(e), an award of backpay to any individual who 'neither filed a charge (with the EEOC) nor was named in a charge or amendment thereto.' But the Senate Committee on Labor and Public Welfare recommended, instead, the re-enactment of-the backpay provision without such a limitation, and cited with approval several cases holding that backpay was awardable to class members who had not personally filed, nor been named in, charges to the EEOC, S.Rep.No. 92—415, p. 27 (1971). See also 118 Cong.Rec. 4942 (1972). The Senate passed a bill without the House's limitation, id., at 4944, and the Conference Committee adopted the Senate position. A Section-by-Section Analysis of the Conference Committee's resolution notes that '(a) provision limiting class actions was contained in the House bill and specifically rejected by the Conference Committee,' id., at 7168, 7565. The Conference Committee bill was accepted by both Chambers. Id., at 7170, 7573.
9
Title 42 U.S.C. § 2000e—5(g) (1970 ed., Supp. III) provides:
'If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the 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 (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable. No order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, or national origin or in violation of section 2000e—3(a) of this title.'
10
Eldon, L.C., in Gee v. Pritchard, 2 Swans. *403, *414, 36 Eng.Rep. 670, 674 (1818).
11
Section 10(c) of the NLRA, 49 Stat. 454, as amended, 29 U.S.C. § 160(c), provides that when the Labor Board has found that a person has committed an 'unfair labor practice,' the Board 'shall issue' 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 subchapter.' The backpay provision of Title VII provides that when the court has found 'an unlawful employment practice,' it 'may enjoin' the 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 . . ..' 42 U.S.C. § 2000e 5(g) (1970 ed., Supp. III). The framers of Title VII stated that they were using the NLRA provision as a model. 110 Cong.Rec. 6549 (1964) (remarks of Sen. Humphrey); id., at 7214 (interpretative memorandum by Sens. Clark and Case). In early versions of the Title VII provision on remedies, it was stated that a court 'may' issue injunctions, but 'shall' order appropriate affirmative action. This anomaly was removed by Substitute Amendment No. 656, 110 Cong.Rec. 12814, 12819 (1964). The framers regarded this as merely a 'minor language change,' id., at 12723—12724 (remarks of Sen. Humphrey). We can find here no intent to back away from the NLRA model or to denigrate in any way the status of backpay relief.
12
'The finding of an unfair labor practice and discriminatory discharge is presumptive proof that some back pay is owed by the employer,' NLRB v. Mastro Plastics Corp., 354 F.2d 170, 178 (CA2 1965). While the backpay decision rests in the NLRB's discretion, and not with the courts, NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258, 263, 90 S.Ct. 417, 420, 24 L.Ed.2d 405 (1969), the Board has from its inception pursued 'a practically uniform policy with respect to these orders requiring affirmative action.' NLRB, First Annual Report 124 (1936).
'(I)n all but a few cases involving discriminatory discharges, discriminatory refusals to employ or reinstate, or discriminatory demotions in violation of section 8(3), the Board has ordered the employer to offer reinstatement to the employee discriminated against and to make whole such employee for any loss of pay that he has suffered by reason of the discrimination.' NLRB Annual Report, Second p. 148 (1937).
13
As to the unsuccessful effort to restrict class actions for backpay, see n. 8, supra. In addition, the Senate rejected an amendment which would have required a jury trial in Title VII cases involving backpay, 118 Cong.Rec. 4917, 4919—4920 (1972) (remarks of Sens. Ervin and Javits), and rejected a provision that would have limited backpay liability of a date two years prior to filing a complaint in court. Compare H.R. 1746, which passed the House, with the successful Conference Committee bill, analyzed at 118 Cong.Rec. 7168 (1972), which adopted a substantially more liberal limitation, i.e., a date two years prior to filing a charge with the EEOC. See 42 U.S.C. § 2000e—5(g) (1970 ed., Supp. III).
14
It is necessary, therefore, that if a district court does decline to award backpay, it carefully articulate its reasons.
15
The District Court thought that the breach of Title VII had not been in 'bad faith' because judicial decisions had only recently focused directly on the discriminatory impact of seniority systems. The court also noted that Albemarle had taken some steps to recruit black workers into one of its departments and to eliminate strict segregation through the 1968 departmental merger.
16
The backpay remedy of the NLRA on which the Title VII remedy was modeled, see n. 11, supra, is fully available even where the 'unfair labor practice' was committed in good faith. See, e.g., NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S., at 265, 90 S.Ct. 417, 421, 24 L.Ed.2d 405; American Machinery Corp. v. NLRB, 5 Cir., 424 F.2d 1321, 1328—1330 (CA5 1970); Laidlaw Corp. v. NLRB, 7 Cir., 414 F.2d 99, 107 (CA7 1969).
17
Title VII itself recognizes a complete, but very narrow, immunity for employer conduct shown to have been undertaken 'in good faith, in conformity with, and in reliance on any written interpretation or opinion of the (Equal Employment Opportunity) Commission.' 42 U.S.C. § 2000e—12(b). It is not for the courts to upset this legislative choice to recognize only a narrowly defined 'good faith' defense.
18
We note that some courts have denied backpay, and limited their judgments to declaratory relief, in cases where the employer discriminated on sexual grounds in reliance on state 'female protective' statutes that were inconsistent with Title VII. See, e.g., Kober v. Westinghouse Electric Corp., 3 Cir., 480 F.2d 240 (CA3 1973); LeBlanc v. Southern Bell Telephone & Telegraph Co., 5 Cir., 460 F.2d 1228 (CA5 1972); Manning v. General Motors Corp., 466 F.2d 812 (CA6 1972); Rosenfeld v. Southern Pacific Co., 9 Cir., 444 F.2d 1219 (CA9 1971). There is no occasion in this case to decide whether these decisions were correct. As to the effect of Title VII on state statutes inconsistent with it, see 42 U.S.C. § 2000e—7.
19
See Rosen v. Public Service Electric & Gas Co., 409 F.2d, at 780 n. 20; Robinson v. Lorillard Corp., 444 F.2d, at 802—803; United States v. Hayes International Corp., 5 Cir., 456 F.2d 112, 116, 121 (CA5 1972).
20
The District Court's stated grounds for denying backpay were, apparently, cumulative rather than independent. The District Court may, of course, reconsider its backpay determination in light of our ruling on the 'good faith' question.
21
In Griggs, the Court was construing 42 U.S.C. § 2000e 2(h), which provides in pertinent part that it shall not 'be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin.'
22
Albemarle has informed us that it has now reduced the cut-off score to 17 on the Wonderlic Test.
23
While the Company contends that the Bennett and Beta Tests were 'locally validated' when they were introduced, no record of this validation was made. Plant officials could recall only the barest outlines of the alleged validation. Job relatedness cannot be proved through vague and unsubstantiated hearsay.
24
As explained by the responsible plant official, the Wonderlic Test was chosen in rather casual fashion:
'I had had experience with using the Wonderlic befor, which is a short form Verbal Intelligence Test, and knew that it had, uh, probably more validation studies behind it than any other short form Verbal Intelligence Test. So, after consultation we decided to institute the Wonderlic, in addition to the Beta, in view of the fact that the mill had changed quite a bit and it had become exceedingly more complex in operation . . .. (W)e did not, uh, validate it, uh, locally, primarily, because of the, the expense of conducting such a validation, and there were some other considerations, such as, uh, we didn't know whether we would get the co-operation of the employees that we'd need to validate it against in taking the test, and we certainly have to have that, so, we used National Norms and on my suggestion after study of the Wonderlic and Norms had been established nationally for skilled jobs, we developed a, uh, cut-off score of eighteen (18).'
25
In the course of a 1971 validation effort, see supra, at 411 and infra, this page and 430, test scores were accumulated for 105 incumbent employees (101 of whom were white) working in relatively high-ranking jobs. Some of these employees apparently took the tests for the first time as part of this study. The Company's expert testified that the test cut-off scores originally used to screen these incumbents for employment or promotion 'couldn't have been . . . very high scores because some of these guys tested very low, as low as 8 in the Wonderlic test, and as low as 95 in the Beta. They couldn't have been using very high cut-off scores or they wouldn't have these low testing employees.'
26
See the charts appended to this opinion. It should be noted that testing is no longer required for some of the job groups listed.
27
This 'standard' for the ranking was described by the plant official who oversaw the conduct of the study.
28
The results of the study are displayed on Chart A in the Appendix to this opinion.
29
American Psychological Association, Standards for Educational and Psychological Tests and Manuals (1966) (hereafter APA Standards). A volume of the same title, containing modifications, was issued in 1974. The EEOC Guidelines refer to the APA Standards at 29 CFR § 1607.5(a). Very similar guidelines have been issued by the Secretary of Labor for the use of federal contractors. 41 CFR § 60—3.1 et seq.
30
The Guidelines provide, at 29 CFR §§ 1607.5(b)(3) and (4):
'(3) The work behaviors or other criteria of employee adequacy which the test is intended to predict or identify must be fully described; and, additionally, in the case of rating techniques, the appraisal form(s) and instructions to the rater(s) must be included as a part of the validation evidence. Such criteria may include measures other than actual work proficiency, such as training time, supervisory ratings, regularity of attendance and tenure. Whatever criteria are used they must represent major or critical work behaviors as revealed by careful job analyses.
'(4) In view of the possibility of bias inherent in subjective evaluations, supervisory rating techniques should be carefully developed, and the ratings should be closely examined for evidence of bias. In addition, minorities might obtain unfairly low performance criterion scores for reasons other than supervisor's prejudice, as when, as new employees, they have had less opportunity to learn job skills. The general point is that all criteria need to be examined to insure freedom from factors which would unfairly depress the scores of minority groups.'
31
See n. 27, supra.
32
It cannot escape notice that Albemarle's study was conducted by plant officials, without neutral, on-the-scene oversight, at a time when this litigation was about to come to trial. Studies so closely controlled by an interested party in litigation must be examined with great care.
*
Even the District Court's formulation, if founded upon proof that the defendants would have 'chosen to exercise unusual zeal,' would only justify a limitation on the award of backpay to reflect the earlier date at which the court would have awarded it; in no event would it support the denial of all backpay relief.
1
The District Court concluded that Albemarle was entirely justified in maintaining some type of seniority system which insured that its employees would have 'a certain degree of training and experience.' Its findings regarding the absence of bad faith were as follows:
'It appears that the company as early as 1964 began active recruitment of blacks for its Maintenance Apprentice Program. Certain lines of progression were merged on its own initiative, and as judicial decisions expanded the then existing interpretations of the Act, the defendants took steps to correct the abuses without delay.' 2 App. 498.
2
As the Court points out, ante, at 424 n. 20, the District Court's reasons for denying backpay were cumulative. It did not favor one policy of Title VII to the exclusion of all others, as I fear this Court is now doing.
3
Such comment would not be a mere formality in light of the fact that many of the EEOC Guidelines are not universally accepted. For example, the Guideline relating to 'differential validation,' upon which the Court relies in this case, ante, at 435, has been questioned by the American Psychological Association. See United States v. Georgia Power Co., 474 F.2d 906, 914 n. 8 (CA5 1973).
| 12
|
422 U.S. 531
95 S.Ct. 2313
45 L.Ed.2d 374
UNITED STATES, Petitioner,v.James Robert PELTIER.
No. 73—2000.
Argued Feb. 18, 1975.
Decided June 25, 1975.
Syllabus
This Court's decision in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596, which held that a warrantless automobile search, conducted about 25 air miles from the Mexican border by Border Patrol Agents acting without probable cause, contravened the Fourth Amendment, does not apply to Border Patrol searches like the one in this case, which, though concededly unconstitutional under Almeida-Sanchez standards, was conducted prior to June 21, 1973, the date of that decision. The policies underlying the exclusionary rule do not require retroactive application of Almeida-Sanchez where, as here, the agents were acting in reliance upon a federal statute supported by longstanding administrative regulations and continuous judicial approval. Pp. 535-542.
(9th Cir.) 500 F.2d 985, reversed.
William L. Patton, for petitioner.
Sandor W. Shapery, La Jolla, Cal., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Four months before this Court's decision in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), respondent was stopped in his automobile by a roving border patrol, and three plastic garbage bags containing 270 pounds of marihuana were found in the trunk of his car by Border Patrol Agents. On the basis of this evidence an indictment was returned charging him with a violation of 84, Stat. 1260, 21 U.S.C. § 841(a)(1). When respondent's motion to suppress the evidence was denied after a hearing, he stipulated in writing that he 'did knowingly and intentionally possess, with intent to distribute, the marijuana concealed in the 1962 Chevrolet which he was driving on February 28, 1973.'1 The District Court found respondent guilty and imposed sentence. On appeal from that judgment, the Court of Appeals for the Ninth Circuit, sitting en banc, reversed the judgment on the ground that the 'rule announced by the Supreme Court in Almeida-Sanchez v. United States . . . should be applied to similar cases pending on appeal on the date the Supreme Court's decision was announced.' 500 F.2d 985, 986 (1974) (footnote omitted).2 We granted the Government's petition for certiorari. 419 U.S. 993, 95 S.Ct. 302, 42 L.Ed.2d 265 (1974).
2
In Almeida-Sanchez, supra, this Court held that a warrantless automobile search, conducted approximately 25 air miles from the Mexican border by Border Patrol agents, acting without probable cause, was unconstitutional under the Fourth Amendment.3 In this case the Government conceded in the Court of Appeals that the search of respondent's automobile approximately 70 air miles from the Mexican border and the seizure of the marihuana were unconstitutional under the standard announced in Almeida-Sanchez, but it contended that that standard should not be applied to searches conducted prior to June 21, 1973, the date of the decision in Almeida-Sanchez. In an inquiry preliminary to balancing the interests for and against retroactive application, see Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967), the majority of the Court of Appeals first considered whether this Court had 'articulated a new doctrine' in Almeida-Sanchez, 500 F.2d, at 987. See, e.g., Chevron Oil Co. v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971); Milton v. Wainwright, 407 U.S. 371, 381—382, n. 2, 92 S.Ct. 2174, 2179—2180, 33 L.Ed.2d 1 (1972) (Stewart, J., dissenting). Concluding that Almeida-Sanchez overruled no prior decision of this Court and instead 'reaffirmed well-established Fourth Amendment standards' that did not 'disturb a long-accepted and relied-upon practice,' 500 F.2d, at 988, the Court of Appeals held:
3
'(Respondent) is entitled to the benefit of the rule announced in Almeida-Sanchez, not because of retroactivity but because of Fourth Amendment principles never deviated from by the Supreme Court.' Id., at 989.
4
The judgment of conviction was reversed, and the case was remanded to the District Court to suppress the evidence seized from respondent's automobile.
5
Although expressing some doubt about the applicability of the old law-new law test as a precondition to retroactivity analysis, id., at 990, the six dissenters joined issue with the majority over the proper interpretation of Almeida-Sanchez. The dissenters concluded that Almeida-Sanchez had announced a new constitutional rule because the decision overruled a consistent line of Courts of Appeals precedent and disrupted a long accepted and widely relied upon administrative practice. Border Patrol agents had conducted roving searches pursuant to congressional authorization, 66 Stat. 233, 8 U.S.C. § 1357(a)(3), and administrative regulation, 8 CFR § 287.1(a)(2) (1973), which had been continuously upheld until this Court's decision in Almeida-Sanchez. Since Almeida-Sanchez stated a new rule, the dissenters concluded that the applicability of that decision to pre-June 21, 1973, roving patrol vehicle searches should be determined by reference to the standards summarized in Stovall v. Denno, supra.4 For the reasons expressed in Part II of Judge Wallace's opinion in United States v. Bowen, 500 F.2d 960, 975—981 (CA9), cert. granted, 419 U.S. 824, 95 S.Ct. 40, 42 L.Ed.2d 47 (1974), the dissenters concluded that Almeida-Sanchez should be accorded prospective application.
6
Despite the conceded illegality of the search under the Almeida-Sanchez standard, the Government contends that the exclusionary rule should not be mechanically applied in the case now before us because the policies underlying the rule do not justify its retroactive application to pre-Almeida-Sanchez searches. We agree.
7
* Since 1965 this Court has repeatedly struggled with the question of whether rulings in criminal cases should be given retroactive effect. In those cases '(w)here the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials,' Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388 (1971), the doctrine has quite often been applied retroactively. It is indisputable, however, that in every case in which the Court has addressed the retroactivity problem in the context of the exclusionary rule, whereby concededly relevant evidence is excluded in order to enforce a constitutional guarantee that does not relate to the integrity of the factfinding process, the Court has concluded that any such new constitutional principle would be accorded only prospective application.5 Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Stovall v. Denno, supra; Fuller v. Alaska, 393 U.S. 80, 89 S.Ct. 61, 21 L.Ed.2d 212 (1968); Desist v. United States 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969); Jenkins v. Delaware, 395 U.S. 213, 89 S.Ct. 1677, 23 L.Ed.2d 253 (1969); Williams v. United States, supra; Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971).
8
We think that these cases tell us a great deal about the nature of the exclusionary rule, as well as something about the nature of retroactivity analysis. Decisions of this Court applying the exclusionary rule to unconstitutionally seized evidence have referred to '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), although the Court has relied principally upon the deterrent purpose served by the exclusionary rule. See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Lee v. Florida, 392 U.S. 378, 88 S.Ct. 2096, 20 L.Ed.2d 1166 (1968); See also United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974). And see also Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U.Chi.L.Rev. 665, 668 672 (1970).
9
When it came time to consider whether those decisions would be applied retroactively, however, the Court recognized that the introduction of evidence which had been seized by law enforcement officials in good-faith compliance with then-prevailing constitutional norms did not make the courts '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. Thus, while the 'imperative of judicial integrity' played a role in this Court's decision to overrule Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), see Mapp v. Ohio, supra, 367 U.S., at 659, 81 S.Ct. at 1693, the Mapp decision was not applied retroactively: 'Rather than being abhorrent at the time of seizure in this case, the use in state trials of illegally seized evidence had been specifically authorized by this Court in Wolf.' Linkletter v. Walker, supra, 381 U.S., at 638, 85 S.Ct., at 1742 (footnote omitted). Similarly, in Lee v. Florida, supra, this Court overruled Schwartz v. Texas, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231 (1952), and held that evidence seized in violation of § 605 of the Federal Communications Act of 1934, 48 Stat. 1103, 47 U.S.C. § 605, by state officers could not be introduced into evidence at state criminal trials:
10
'(T)he decision we reach today is not based upon language and doctrinal symmetry alone. It is buttressed as well by the 'imperative of judicial integrity.' Elkins v. United States, 364 U.S. 206, 222, (80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669). Under our Constitution no court, state or federal, may serve as an accomplice in the willful transgression of 'the Laws of the United States,' laws by which 'the Judges in every State (are) bound . . .." 392 U.S., at 385—386, 88 S.Ct. at 2101 (footnotes omitted).
11
But when it came time to consider the retroactivity of Lee, the Court held that it would not be applied retroactively, saying:
12
'Retroactive application of Lee would overturn every state conviction obtained in good-faith reliance on Schwartz. Since this result is not required by the principle upon which Lee was decided, or necessary to accomplish its purpose, we hold that the exclusionary rule is to be applied only to trials in which the evidence is sought to be introduced after the date of our decision in Lee.' Fuller v. Alaska, supra, 393 U.S., at 81, 89 S.Ct. at 62.
13
The teaching of these retroactivity cases is that if the law enforcement officers reasonably believed in good faith that evidence they had seized was admissible at trial, the 'imperative of judicial integrity' is not offended by the introduction into evidence of that material even if decisions subsequent to the search or seizure have broadened the exclusionary rule to encompass evidence seized in that manner. It would seem to follow a fortiori from the Linkletter and Fuller holdings that the 'imperative of judicial integrity' is also not offended if law enforcement officials reasonably believed in good faith that their conduct was in accordance with the law even if decisions subsequent to the search or seizure have held that conduct of the type engaged in by the law enforcement officials is not permitted by the Constitution. For, although the police in Linkletter and Fuller could not have been expected to foresee the application of the exclusionary rule to state criminal trials, they could reasonably have entertained no similar doubts as to the illegality of their conduct. See Wolf v. Colorado, 338 U.S., at 27, 69 S.Ct. at 1361; § 605 of the Federal Communications Act of 1934; cf. Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314 (1937).
14
This approach to the 'imperative of judicial integrity' does not differ markedly from the analysis the Court has utilized in determining whether the deterrence rationale undergirding the exclusionary rule would be furthered by retroactive application of new constitutional doctrines. See Linkletter v. Walker, supra, 381 U.S., at 636—637, 85 S.Ct., at 1741—1742; Fuller v. Alaska, supra, 393 U.S., at 81, 89 S.Ct., at 62; Desist v. United States, supra, 394 U.S., at 249—251, 89 S.Ct., at 1033—1035. In Desist, the Court explicitly recognized the interrelation between retroactivity rulings and the exclusionary rule: '(W)e simply decline to extend the court-made exclusionary rule to cases in which its deterrent purpose would not be served.' 394 U.S., at 254 n. 24, 89 S.Ct., at 1036.
15
This focus in the retroactivity cases on the purposes served by the exclusionary rule is also quite in harmony with the approach taken generally to the exclusionary rule. In United States v. Calandra, 414 U.S., at 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561, we said that the exclusionary 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.' It follows that 'the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.' Ibid. We likewise observed in Michigan v. Tucker, 417 U.S., at 447, 94 S.Ct. 2357, 2365, 41 L.Ed.2d 182:
16
'The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.'
17
The 'reliability and relevancy,' Linkletter, supra, 381 U.S., at 639, 85 S.Ct. at 1743, of the evidence found in the trunk of respondent's car is unquestioned. It was sufficiently damning on the issue of respondent's guilt or innocence that he stipulated in writing that in effect he had committed the offense charged. Whether or not the exclusionary rule should be applied to the roving border patrol search conducted in this case, then, depends on whether considerations of either judicial integrity or deterrence of Fourth Amendment violations are sufficiently weighty to require that the evidence obtained by the Border Patrol in this case be excluded.
II
18
The Border Patrol agents who stopped and searched respondent's automobile were acting pursuant to § 287(a)(3) of the Immigration and Nationality Act of 1952, 66 Stat. 233, 8 U.S.C. § 1357(a)(3).6 That provision, which carried forward statutory authorization dating back to 1946, 60 Stat. 865, 8 U.S.C. § 110 (1946 ed.),7 authorizes appropriately designated Immigration and Naturalization officers to search vehicles 'within a reasonable distance from any external boundary of the United States' without a warrant. Pursuant to this statutory authorization, regulations were promulgated fixing the 'reasonable distance,' as specified in § 287(a)(3), at '100 air miles from any external boundary of the United States,' 22 Fed.Reg. 9808 (1957), as amended, 29 Fed.Reg. 13244 (1964), 8 CFR § 287.1(a)(2) (1973).
19
Between 1952 and Almeida-Sanchez, roving Border Patrol searches under § 287(a) (3) were upheld repeatedly against constitutional attack.8 Dicta in many sother Fifth,9 Ninth,10 and Tenth Circuit11 decisions strongly suggested that the statute and the Border Patrol policy were acceptable means for policing the immigration laws. As Mr. Justice Powell observed in his concurring opinion in Almeida-Sanchez:
20
'Roving automobile searches in border regions for aliens . . . have been consistently approved by the judiciary. While the question is one of first impression in this Court, such searches uniformly have been sustained by the courts of appeals whose jurisdictions include those areas of the border between Mexico and the United States where the problem has been most severe.' 413 U.S., at 278, 93 S.Ct., at 2542.
21
It was in reliance upon a validly enacted statute, supported by longstanding administrative regulations and continuous judicial approval, that border patrol agents stopped and searched respondent's automobile. Since the parties acknowledge that Almeida-Sanchez was the first roving Border Patrol case to be decided by this Court, unless we are to hold that parties may not reasonably rely upon any legal pronouncement emanating from sources other than this Court, we cannot regard as blameworthy those parties who conform their conduct to the prevailing statutory or constitutional norm.12 Cf. Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971); Lemon v. Kurtzman, 411 U.S. 192, 93 S.Ct. 1463, 36 L.Ed.2d 151 (1973). If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment. Admittedly this uniform treatment of roving border patrol searches by the federal judiciary was overturned by this Court's decision in Almeida-Sanchez. But in light of this history and of what we perceive to be the purpose of the exclusionary rule, we conclude that nothing in the Fourth Amendment, or in the exclusionary rule fashioned to implement it, requires that the evidence here be suppressed, even if we assume that respondent's Fourth Amendment rights were violated by the search of his car.13
22
The judgment of the Court of Appeals is therefore
23
Reversed.
24
Mr. Justice STEWART dissents from the opinion and judgment of the Court for the reasons set out in Part I of the dissenting opinion of Mr. Justice BRENNAN, post, at 544—549.
25
Mr. Justice DOUGLAS, dissenting.
26
I agree with my Brother BRENNAN that Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), reaffirmed of traditional Fourth Amendment principles and that the purposes of the exclusionary rule compel exclusion of the unconstitutionally seized evidence in this case. I adhere to my view that a constitutional rule made retroactive in one case must be applied retroactively in all. See my dissent in Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975), and cases cited. It is largely a matter of chance that we held the Border Patrol to the command of the Fourth Amendment in Almeida-Sanchez rather than in the case of this defendant. Equal justice does not permit a defendant's fate to depend upon such a fortuity. The judgment below should be affirmed.
27
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting.
28
* Until today the question of the prospective application of a decision of this Court was not deemed to be presented unless the decision 'constitute(d) a sharp break in the line of earlier authority or an avulsive change which caused the current of the law thereafter to flow between new banks.' Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 499, 88 S.Ct. 2224, 2234, 20 L.Ed.2d 1231 (1968).1 Measured by that test, our decision in Almerida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), presents no question of prospectivity, and the Court errs in even addressing the question. For both the Court's opinion and the concurring opinion of Mr. Justice Powell in Almeida-Sanchez plainly applied familiar principles of constitutional adjudication announced 50 years ago in Carroll v. United States, 267 U.S. 132, 153—154, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925), and merely construed 66 Stat. 233, 8 U.S.C. § 1357(a)(3), so as to render it constitutionally consistent with that decision. 413 U.S., at 272; id., at 275, and n. 1, 93 S.Ct. 2539, at 2541 (Powell, J., concurring).
29
The Court states, however, that the Border Patrol agents searched Peltier 'in reliance upon a validly enacted statute, supported by longstanding administrative regulations and continuous judicial approval . . ..' Ante, at 541. With all respect, any such reliance would be misplaced. First, the Court repeats the error of my Brother White in his dissent in Almeida-Sanchez in finding express congressional and administrative approval for random roving patrol searches. 413 U.S., at 291, 292—293, 296. The statute, 8 U.S.C. § 1357(a), only authorizes searches of vehicles 'without warrant . . . within a reasonable distance from any external boundary'; nothing in the statute expressly dispenses with the necessity for showing probable cause. The regulation, 8 CFR § 287.1(a)(2) (1973), merely defined 'a reasonable distance' as 'within 100 air miles'; it, too, does not purport to exempt the Border Patrol from observing the probable-cause requirement.2
30
Second, the Court states that '(b)etween 1952 and Almeida-Sanchez, roving Border Patrol searches under § 287(a)(3) were upheld repeatedly against constitutional attack.' Ante, at 2319. But the first decision of the Court of Appeals for the Ninth Circuit squarely in point, United States v. Miranda, 426 F.2d 283, was decided in 1970, and the second, United States v. AlmeidaSanchez, 452 F.2d 459, was decided over strong dissent in 1971 and was pending on certiorari in this Court when Peltier was searched. 406 U.S. 944, 92 S.Ct. 2050, 32 L.Ed.2d 331 (1972). The first decision of the Court of Appeals for the Tenth Circuit approving alien searches by roving patrols without either probable cause or any suspicious conduct was in 1969. Roa-Rodriquez v. United States (10th Cir.), 410 F.2d 1206. And the Court of Appeals for the Fifth Circuit, unlike the Ninth and Tenth Circuits, always required at least a 'reasonable suspicion' that a car might contain aliens as the basis of a valid search under 8 U.S.C. § 1357(a)(3). United States v. Wright, 476 F.2d 1027, 1030, and n. 2 (1973), and cases cited.
31
In addition, the rule of Miranda, supra, was a patent anomaly in the Courts of Appeals which sanctioned roving patrol searches without a showing even of suspicious circumstances. The Court of Appeals for the Ninth Circuit, for example, held consistently that probable cause must be shown to validate a search for contraband except in a border search or its functional equivalent, see, e.g., Cervantes v. United States, 263 F.2d 800, 803 (1959); Fumagalli v. United States, 429 F.2d 1011 (1970),3 and this despite a statutory authorization to search for contraband at least as broad as § 1357(a) (3).Y14 Stat. 178, 19 U.S.C § 482.4 Moreover, the Courts of Appeals require some measure of cause to suspect violation of law in interrogations and arrest authorized by other subsections of 8 U.S.C. § 1357(a). See Au Yi Law v. INS, 144 U.S.App.D.C. 147, 445 F.2d 217 (1971); Yam Sang Kwai v. INS, 133 U.S.App.D.C. 369, 411 F.2d 683 (1969).
32
Given this history, it becomes quite clear why the Court has found it necessary to discard the 'sharp break' test to reach the prospectivity question in this case. For the approval by Courts of Appeals of this law enforcement practice was short-lived, less than unanimous, irreconcilable with other rulings of the same courts, and contrary to the explicit doctrine of this Court in Carroll, supra, as reaffirmed in Brinegar v. United States, 338 U.S. 160, 164, 69 S.Ct. 1302, 1305, 93 L.Ed. 1879 (1949), and other cases. If a case in this Court merely reaffirming longstanding precedent can ever constitute the 'avulsive change (in) the current of the law' required before we even address the issue of prospectivity, Hanover Shoe, 392 U.S., at 499, 88 S.Ct., at 2234, 20 L.Ed.2d 1231, surely Almeida-Sanchez was not such a case.5
33
This case is a good illustration of the dangers of addressing prospectivity where the 'sharp break' standard is not met. As this Court has recognized, applying a decision only prospectively,6 can entail inequity to others whose cases are here on direct review but are held pending decision of the case selected for decision. Stovall v. Denno, 388 U.S. 293, 301, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). Although I continue to believe that denial of the benefits of the decision in such cases is a tolerable anomaly in cases in which defendants were accorded all constitutional rights then announced by this Court, it becomes intolerable, and a travesty of justice, when the Court does no more than reaffirm and apply long-established constitutional principles to correct an aberration created by the courts of appeals.
34
More fundamentally, applying a decision of this Court prospectively when the decision is not a 'sharp break in the web of the law,' Milton v. Wainwright, 407 U.S. 371, 381 n. 2, 92 S.Ct. at 2180 (1972) (Stewart, J., dissenting), encourages in those responsible for law enforcement a parsimonious approach to enforcement of constitutional rights. 'One need not be a rigid partisan of Blackstone to recognize that many, though not all, of this Court's constitutional decisions are grounded upon fundamental principles whose content does not change dramatically from year to year . . ..' Desist v. United States, 394 U.S. 244, 263, 89 S.Ct. at 1041 (1969) (Harlan, J., dissenting). To apply our opinions prospectively except in 'sharp break' cases 'add(s) this Court's approval to those who honor the Constitution's mandate only where acceptable to them or compelled by the precise and inescapable specifics of a decision of this Court. . . . History does not embrace the years needed for us to hold, millimeter by millimeter, that such and such a penetration of individual rights is an infringement of the Constitution's guarantees. The vitality of our Constitution depends upon conceptual faithfulness and not merely decisional obedience. Certainly, this Court should not encourage police or other courts to disregard the plain purport of our decisions and to adopt a let's-wait-until-it's-decided approach.' Id., at 277, 89 S.Ct. at 1052. (Fortas, J., dissenting).7
II
35
Nevertheless, the Court substitutes, at least as respects the availability of the exclusionary rule in cases involving searches invalid under the Fourth Amendment, a presumption against the availability of decisions of this Court except prospectively. The substitution discards not only the 'sharp break' determinant but also the equally established principle that prospectivity 'is not automatically determined by the provision of the Constitution on which the dictate is based. . . . (W)e must determine retroactivity 'in each case' by looking to the peculiar traits of the specific 'rule in question." Johnson v. New Jersey, 384 U.S. 719, 728, 86 S.Ct. 1772, 1778, 16 L.Ed.2d 882 (1966).8 Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the seminal prospectivity decision, held only that 'the Court may in the interest of justice make (a) rule prospective . . . where the exigencies of the situation require such an application.' Id., at 628, 85 S.Ct. at 1737 (emphasis added). Today the Court stands the Linkletter holding on its head by creating a class of cases in which nonretroactivity is the rule and not, as heretofore, the exception.
36
The Court's stated reason for this remarkable departure from settled principles is 'the policies underlying the (exclusionary) rule.' Ante, at 534-535. But the policies identified by the Court as underlying that rule in Fourth Amendment cases are distorted out of all resemblance to the understanding of purposes that has heretofore prevailed. I said in my dissent in United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), that that decision left me 'with the uneasy feeling that . . . a majority of my colleagues have positioned themselves to . . . abandon altogether the exclusionary rule in search-and-seizure cases.' Id., at 365, 94 S.Ct. at 628. My uneasiness approaches conviction after today's treatment of the rule.
III
37
The Court's opinion depends upon an entirely new understanding of the exclusionary rule in Fourth Amendment cases, one which, if the vague contours outlined today are filled in as I fear they will be, forecasts the complete demise of the exclusionary rule as fashioned by this Court in over 61 years of Fourth Amendment jurisprudence. See Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914).9 An analysis of the Court's unsuccessfully veiled reformulation demonstrates that its apparent rush to discard 61 years of constitutional development has produced a formula difficult to comprehend and, on any understanding of its meaning, impossible to justify.
38
The Court signals its new approach in these words: 'If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.' Ante, at 542. True, the Court does not state in so many words that this formulation of the exclusionary rule is to be applied beyond the present retroactivity context. But the proposition is stated generally and, particularly in view of the concomitant expansion of prospectivity announced today, Part I, supra, I have no confidence that the new formulation is to be confined to putative retroactivity cases. Rather, I suspect that when a suitable opportunity arises, today's revision of the exclusionary rule will be pronounced applicable to all search-and-seizure cases. I therefore register my strong disagreement now.
39
The new formulation obviously removes the very foundation of the exclusionary rule as it has been expressed in countless decisions. Until now the rule in federal criminal cases decided on direct review10 has been that suppression is necessarily the sanction to be applied when it is determined that the evidence was in fact illegally acquired.11 The revision unveiled today suggests that instead of that single inquiry, district judges may also have to probe the subjective knowledge of the official who orders the search, and the inferences from existing law that official should have drawn.12 The decision whether or not to order suppression would then turn upon whether, based on that expanded inquiry, suppression would comport with either the deterrence rationale of the exclusionary rule or 'the imperative of judicial integrity.'13
40
On this reasoning, Almeida-Sanchez itself was wrongly decided. For if the Border Patrolmen who searched Peltier could not have known that they were acting unconstitutionally, and thus could not have been deterred from the search by the possibility of the exclusion of the evidence from the trial, obviously the Border Patrolmen who searched Almeida-Sanchez several years earlier had no reason to be any more percipient. If application of the exclusionary rule depends upon a showing that the particular officials who conducted or authorized a particular search knew or should have known that they were violating a specific, established constitutional right, the reversal of Almeida-Sanchez' conviction was plainly error.
41
Other defects of today's new formulation are also patent. First, this new doctrine could stop dead in its tracks judicial development of Fourth Amendment rights. For if evidence is to be admitted in criminal trials in the absence of clear precedent declaring the search in question unconstitutional, the first duty of a court will be to deny the accused's motion to suppress if he cannot cite a case invalidating a search or seizure on identical facts.14 Yet, even its opponents concede that the great service of the exclusionary rule has been its usefulness in forcing judges to enlighten our understanding of Fourth Amendment guarantees. 'It is . . . 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) (hereafter Oaks). See also Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 429—430 (1974) (hereafter Amsterdam). While distinguished authority has suggested that an effective affirmative remedy could equally serve that function, see Oaks, supra, and Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 420—423, 91 S.Ct. 1999, 2016—2018, 29 L.Ed.2d 619 (1971) (Burger, C.J., dissenting), no equally effective alternative has yet been devised.
42
Second, contrary to the Court's assumption, the exclusionary rule does not depend in its deterrence rationale on the punishment of individual law enforcement officials.15 Indeed, one general fallacy in the reasoning of critics of the exclusionary rule is the belief that the rule is meant to deter official wrongdoers by punishment or threat of punishment. It is also the fallacy of the Court's attempt today to outline a revision in the exclusionary rule.
43
Deterrence can operate in several ways. The simplest is special or specific deterrence—punishing an individual so that he will not repeat the same behavior. But '(t)he exclusionary rule is not aimed at special deterrence since it does not impose any direct punishment on a law enforcement official who has broken the rule . . .. The exclusionary rule is aimed at affecting the wider audience of all law enforcement officials and society at large. It is meant to discourage violations by individuals who have never experienced any sanction for them.' Oaks 709—710.16
44
Thus, the exclusionary rule, focused upon general, not specific, deterrence, depends not upon threatening a sanction for lack of compoliance but upon removing an inducement to violate Fourth Amendment rights. Elikins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960), clearly explained that the exclusionary rule's 'purpose is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.' (Emphasis added.) 'A criminal court system functioning without an exclusionary rule . . . is the equivalent of a government purchasing agent paying premium prices for evidence branded with the stamp of unconstitutionality. . . . If (the Government) receives the products of (illegal) searches and seizures . . . and uses them as the means of convicting people whom the officer conceives it to be his job to get convicted, it is not merely tolerating but inducing unconstitutional searches and seizures.' Amsterdam 431—432.17 (Emphasis supplied.)
45
We therefore might consider, in this light, what may have influenced the officials who authorized roving searches without probable cause under the supposed authority of 8 U.S.C. § 1357(a)(3) and 8 CFR § 287.1(a)(2) (1973).18 The statute is at best ambiguous as to whether probable cause is required, though quite explicit that a warrant is not.19 The officials could therefore read the statute in one of two ways. They could read it not to require probable cause, regard as irrelevant Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), requiring probable cause, though no warrant, before stopping and searching a moving automobile unless the search is at the border, and command their subordinates to stop at random any car within 100 miles of the border and search for illegal aliens. Or they could conclude that because the statute is silent about probable cause, and because Carroll seems to require it, they should instruct their subordinates to stop moving vehicles away from the border only if there is some good reason to believe that they contain illegal aliens. Obviously, today's decision is a wide-open invitation to pursue the former course, because if this Court later decides that the officers guessed wrong in a particular case, one conviction will perhaps be lost, but many will have been gained, see supra, at 549, 554. The concept of the exclusionary rule until today, however, was designed to discourage officials from invariably opting for the choice that compromises Fourth Amendment rights, even though that rule has not worked perfectly as it did not in this case. 'The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.' Weeks, 232 U.S., at 393, 34 S.Ct. at 344 (emphasis supplied).
46
Aside from this most fundamental error, solid practical reasons militate forcefully in favor of rejection of today's suggested road to revision of the exclusionary rule. This Court has already ready rejected a case-by-case approach to the exclusionary rule. After Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), had held the Fourth Amendment applicable to the States without also requiring the States to follow the exclusionary rule of Weeks, Irvine v. California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561 (1954), presented the opportunity of compelling the States to apply Weeks in especially egregious situations such as Irvine's. The Court rejected the opportunity because 'a distinction of the kind urged would leave the rule so indefinite that no state court could know what it should rule in order to keep its processes on solid constitutional ground.' Id., at 134, 74 S.Ct. at 384 (opinion of Jackson, J.). See also id., at 138, 74 S.Ct. at 386. (Clark, J., concurring).
47
Today's formulation extended to all search-and-seizure cases would inevitably introduce the same uncertainty, by adding a new layer of factfinding in deciding motions to suppress in the already heavily burdened federal courts. The district courts would have to determine, and the appellate courts to review, subjective states of mind of numerous people, see n. 18, supra, and reasonable objective extrapolations of existing law, on each of the thousands of suppression motions presented each year.20 Nice questions will have to be faced, such as whether to exclude evidence obtained in a search which officers believed to be unconstitutional but which in fact was not, and whether to exclude evidence obtained in a search in fact unconstitutional and believed to be unconstitutional, but which the ordinary, reasonable police officer might well have believed was constitutional. One criticism of the present formulation of the exclusionary rule is that it may deflect the inquiry in a criminal trial from the guilt of the defendant to the culpability of the police. The formulation suggested today would vastly exacerbate this possibility, heavily burden the lower courts, and worst of all, erode irretrievably the efficacy of the exclusion principle.21 Indeed, 'no (federal) court could know what it should rule in order to keep its processes on solid constitutional ground.' 347 U.S., at 134, 74 S.Ct., at 384. Because of the superficial and summary way that the Court treats the question the formulation will, I am certain, be unsatisfactory even to those convinced, as I am not, that the exclusionary rule must be drastically overhauled.22
48
If a majority of my colleagues are determined to discard the exclusionary rule in Fourth Amendment cases, they should forthrightly do so, and be done with it. This business of slow strangulation of the rule, with no opportunity afforded parties most concerned to be heard, would be indefensible in any circumstances. But to attempt covertly the erosion of an important principle over 61 years in the making as applied in federal courts clearly demeans the adjudicatory function, and the institutional integrity of this Court.
1
App. 28. The stipulation provided that it 'would not (have been) entered into had the (respondent's) motion to suppress in the case been granted.' Ibid.
2
The Fifth Circuit had reached a contrary conclusion in United States v. Miller, 492 F.2d 37 (1974).
3
The Court acknowledged the 'power of the Federal Government to exclude aliens from the country' and the constitutionality of 'routine inspections and searches of individuals or conveyances seeking to cross our borders.' 413 U.S., at 272, 93 S.Ct. 2535, 2539. While searches of this sort could be conducted 'not only at the border itself, but at its functional equivalents as well,' ibid., the Court concluded that the search at issue in the case 'was of a wholly different sort.' Id., at 273, 93 S.Ct. at 2539.
4
388 U.S., at 297, 87 S.Ct. 1967, 1970: 'The criteria guiding resolution of the question (of retroactivity) implicate (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.'
5
By the time Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), was decided, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), had already been applied to three cases pending on direct review at the time Mapp was decided. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963); Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). Those cases were decided without discussion of retroactivity principles, and they have not been interpreted as establishing any retroactivity limitation of general applicability. See Linkletter, supra, 381 U.S., at 622, 85 S.Ct. at 1733; Johnson v. New Jersey, 384 U.S. 719, 732, 86 S.Ct. 1772, 1780, 16 L.Ed.2d 882 (1966); Desist v. United States, 394 U.S. 244, 252—253, 89 S.Ct. 1030, 1035—1036, 22 L.Ed.2d 248 (1969).
6
Title 8 U.S.C. § 1357(a)(3):
'Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant—
'within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle, and within a distance of twenty-five miles from any such external boundary to have access to private lands, but not dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States.'
7
'Any employee of the Immigration and Naturalization Service authorized so to do under regulations prescribed by the Commissioner of Immigration and Naturalization with the approval of the Attorney General, shall have power without warrant . . . to board and search for aliens any vessel within the territorial waters of the United States, railway car, aircraft, conveyance, or vehicle, within a reasonable distance from any external boundary of the United States.'
8
United States v. Thompson, 475 F.2d 1359 (CA5 1973); Kelly v. United States, 197 F.2d 162 (CA5 1952); Roa-Rodriquez v. United States, 410 F.2d 1206 (CA10 1969); United States v. Miranda, 426 F.2d 283 (CA9 1970); United States v. Almeida-Sanchez, 452 F.2d 459 (CA9 1971), rev'd, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). In support of these holdings, the Courts of Appeals have relied upon cases sustaining searches and seizures at fixed checkpoints maintained within 100 air miles of the border. See nn. 9, 10, and 11, infra. Whether fixed-checkpoint searches and seizures are constitutional notwithstanding our decision in Almeida-Sanchez is before us in United States v. Ortiz, No. 73 2050, cert. granted, 419 U.S. 824, 95 S.Ct. 40, 42 L.Ed.2d 47 (1974); United States v. Bowen, 500 F.2d 960 (CA9), cert. granted, 419 U.S. 824, 95 S.Ct. 40, 42 L.Ed.2d 47 (1974).
9
Haerr v. United States, 240 F.2d 533 (1957); Ramirez v. United States, 263 F.2d 385 (1959); United States v. De Leon, 462 F.2d 170 (1972), cert. denied, 414 U.S. 853, 94 S.Ct. 76, 38 L.Ed.2d 102 (1973).
10
Fernandez v. United States, 321 F.2d 283 (1963); Barba-Reyes v. United States, 387 F.2d 91 (1967); United States v. Avey, 428 F.2d 1159, cert. denied, 400 U.S. 903, 91 S.Ct. 140, 27 L.Ed.2d 139 (1970); Fumagalli v. United States, 429 F.2d 1011 (1970); Mienke v. United States, 452 F.2d 1076 (1971); United States v. Foerster, 455 F.2d 981 (1972), vacated and remanded, 413 U.S. 915, 93 S.Ct. 3039, 37 L.Ed.2d 103 (1973).
11
United States v. McCormick, 468 F.2d 68 (1972), cert. denied, 410 U.S. 927, 93 S.Ct. 1361, 35 L.Ed.2d 588 (1973); United States v. Anderson, 468 F.2d 1280 (1972).
12
Mr. Justice BRENNAN's dissent also suggests that we were wrong to reverse the judgment affirming Almeida-Sanchez' conviction if we uphold the judgment of conviction against Peltier. But where it has been determined, as in a case such as Linkletter, that an earlier holding such as Mapp is not to be applied retroactively, it has not been questioned that Mapp was entitled to the benefit of the rule enunciated in her case. See Stovall v. Denno, 388 U.S., at 300—301, 87 S.Ct. 1967, at 1971 1972. Nor did the Government in Almeida-Sanchez urge upon us any considerations of exclusionary rule policy independent of the merits of the Fourth Amendment question which we decided adversely to the Government.
13
In its haste to extrapolate today's decision, that dissent argues that this decision will both 'stop dead in its tracks judicial development of Fourth Amendment rights' since 'the first duty of a court will be to deny the accused's motion to suppress if he cannot cite a case invalidating a search or seizure on identical facts' and add 'a new layer of factfinding in deciding motions to suppress in the already heavily burdened federal courts.' Post, at 554, 560. Whether today's decision will reduce the responsibilities of district courts, as the dissent first suggests, or whether that burden will be increased, as the dissent also suggests, it surely will not fulfill both of these contradictory prophecies. A fact not open to doubt is that the district courts are presently required, in hearing motions to suppress evidence, to spend substantial time addressing issues that do not go to a criminal defendant's guilt or innocence. In this case, for example, the transcript of the suppression hearing takes almost three times as many pages in the Appendix as is taken by the transcript of respondent's trial. App. 5—36.
1
This requirement has been variously stated. See, e.g., Desist v. United States, 394 U.S. 244, 248, 89 S.Ct. 1030, 1032 1033, 22 L.Ed.2d 248 (1969) ('a clear break with the past'); Milton v. Wainwright, 407 U.S. 371, 381 n. 2, 92 S.Ct. 2174, 2180, 33 L.Ed.2d 1 (1972) (Stewart, J., dissenting) ('a sharp break in the web of the law'); Chevron Oil Co. v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971) ('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 by deciding an issue of first impression whose resolution was not clearly foreshadowed . . .').
2
Nor is there anything in the legislative history of § 1357(a) which suggests that Congress intended to authorize the Border Patrol to stop any car in motion within 100 miles of a border. See H.R.Rep.No. 186, 79th Cong., 1st Sess., 2 (1945); S.Rep.No. 632, 79th Cong., 1st Sess., 2 (1945). See also United States v. Almeida-Sanchez, 452 F.2d 459, 465 (CA9 1971) (Browning, J., dissenting): 'The more reasonable interpretation of a statute of this sort is not that it defines a constitutional standard of reasonableness for searches by the government agents to whom it applies, but rather that it delegates authority to be exercised by those agents in accordance with constitutional limitations. . . . The statute authorizes the officers to conduct such searches—and a search within the statute's terms is not illegal as beyond the officer's statutory authority. But a search within the literal language of the (statute) is nonetheless barred if it violates the Fourth Amendment. See, e.g., Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886).'
3
In Cervantes, the court said: 'The government . . . appears to accept appellant's proposition that the reasonableness of a search made of an automobile on the highway and its driver depends upon a showing of probable cause. . . . That this is the proper test of the reasonableness of such a search, see Carroll v. United States, supra, 267 U.S., at pages 155—156 . . ..' 263 F.2d, at 803, and n. 4. Despite this general language, Cervantes was later summarily distinguished as applying only to searches for contraband, and not to searches for aliens. Fumagalli v. United States, 429 F.2d, at 1013. No attempt was ever made to explain how a search for aliens could be distinguished under Carroll from a search for contraband. See United States v. Almeida-Sanchez, 452 F.2d, at 464 (Browning, J., dissenting).
4
Title 19 U.S.C. § 482 provides in pertinent part: 'Any of the officers or persons authorized to board or search vessels may stop, search, and examine, as well without as within their respective districts, any vehicle, . . . or person, on which or whom he or they shall suspect there is merchandise which is subject to duty, or shall have been introduced into the United States in any manner contrary to law . . ..'
'In order to avoid conflict between this statute and the Fourth Amendment, the statutory language has been restricted by the courts to 'border searches." United States v. Weil, 432 F.2d 1320, 1323 (CA9 1970).
5
Most cases where the Court has ordained prospective application of a new rule of criminal procedure have involved decisions which explicitly overruled a previous decision of this Court. See Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), involving the retroactivity of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), which had overruled Wolf v.
Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949); Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971), involving the retroactivity of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), which overruled United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950), and Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); Fuller v. Alaska, 393 U.S. 80, 89 S.Ct. 61, 21 L.Ed.2d 212 (1968) (per curiam), involving the retroactivity of Lee v. Florida, 392 U.S. 378, 88 S.Ct. 2096, 20 L.Ed.2d 1166 (1968), which overruled Schwartz v. Texas, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231 (1952); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969), involving the retroactivity of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), which specifically rejected Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942), and Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928); Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966), involving the retroactivity of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), which overruled Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908); Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975), involving the retroactivity of Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), which specifically disapproved Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961).
In other instances, the practice recently disapproved had, at least arguably, been sanctioned previously by this Court. See 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Gosa 86 S.Ct. 1772, 16 L.Ed. 882 (1966); Gosa v. Mayden, 413 U.S. 665, 673, 93 S.Ct. 2926, 2932, 37 L.Ed.2d 873 (1973) (opinion of Blackmun, J.; Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972).
Finally, in another group of cases, the rule applied prospectively was merely a prophylactic one, designed by this Court to protect underlying rights already announced and applicable retroactively. See Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969) (per curiam); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Michigan v. Payne, 412 U.S. 47, 93 S.Ct. 1966, 36 L.Ed.2d 736 (1973).
6
Of course, we have always given the benefit of a criminal procedure decision to the defendant in whose case the principle was announced. See Stovall v. Denno, supra, 388 U.S., at 301, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199.
7
I continue to believe that Mr. Justice Harlan and Mr. Justice Fortas were in error in Desist itself, because Katz v. United States, did overrule clear past precedent of this Court. But I think that the prophecy of horros by the dissenters in Desist has, with the Court's opinion today, come true.
8
See also Michigan v. Tucker, 417 U.S. 433, 453 n. 26, 94 S.Ct. 2357, 2368, 41 L.Ed.2d 182 (1974): 'Under the framework of the analysis established in Linkletter, supra, and in subsequent cases, it would seem indispensable to understand the basis for a constitutional holding of the Court in order to later determine whether that holding should be retroactive.'
9
The exclusionary rule in federal cases has roots that antedate even Weeks. Twenty-eight years before that decision, in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), the Court held that the admission into evidence of papers acquired by the Government in violation of the Fourth Amendment was unconstitutional. Id., at 638, 6 S.Ct. at 536.
10
I emphasize that this is a federal criminal case, and that the exclusionary rule issue comes to us on direct review. Thus, neither Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), applying the Fourth Amendment exclusionary rule to the States, nor Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969), permitting Fourth Amendment exclusionary rule issues to be raised for the first time in collateral proceedings, is here involved. While abandonment of both Mapp and Kaufman has at times been advocated, no Justice has intimated that Weeks should also be overruled, at least in the absence of suitable and efficacious substitute remedies. See, on Mapp, Coolidge v. New Hampshire, 403 U.S. 443, 490, 91 S.Ct. 2022, 2050, 29 L.Ed.2d 564 (1971) (Harlan, J., concurring); id., at 492, 91 S.Ct. at 2051 (Burger, C.J., dissenting in part and concurring in part); id., at 493, 91 S.Ct. at 2051 (Black, J., concurring and dissenting); id., at 510, 91 S.Ct. at 2060. (statement of Blackmun, J.); on Kaufman, see Schneckloth v. Bustamonte, 412 U.S. 218, 250, 93 S.Ct. 2041, 2059, 36 L.Ed.2d 854 (1973) (Powell, J., joined by Burger, C.J., and Rehnquist, J., concurring); see also, Id., at 249, 93 S.Ct. at 2059 (Blackmun, J., concurring). But see, on Weeks, Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 420—421, 91 S.Ct. 1999, 2016—2017, 29 L.Ed.2d 619 (1971) (Burger, C.J., dissenting); Schneckloth, supra, 412 U.S. at 267 268, n. 25, 93 S.Ct. at 2068 (Powell, J., concurring).
11
Wolf v. Colorado, 338 U.S. 25, 28, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782 (1949), summarized Weeks as follows: 'In Weeks v. United States, supra, this Court held that in a federal prosecution the Fourth Amendment barred the use of evidence secured through an Illegal search and seizure.' (Emphasis added.) Elkins v. United States, 364 U.S. 206, 212—213, 80 S.Ct. 1437, 1441, 4 L.Ed.2d 1669 (1960), again confirmed the Weeks rule, '(e)vidence which had been seized by federal officers in violation of the Fourth Amendment (can)not be used in a federal criminal prosecution' (emphasis added), and expanded it to cover 'evidence obtained by state officers during a search which, if conducted by federal officers would have violated the defendant's immunity from unreasonable searches and seizures under the Fourth Amendment,' id., at 223, 80 S.Ct. at 1447 (emphasis added); see also id., at 222, 80 S.Ct. at 1446. Similarly, Ker v. California, 374 U.S. 23, 30, 83 S.Ct. 1623, 1628, 10 L.Ed.2d 726 (1963), stated that the exclusionary rule 'forbids the Federal Government to convict a man of crime by using testimony or papers obtained from him by unreasonable searches and seizures as defined in the Fourth Amendment' (emphasis supplied); see also id., at 34, 83 S.Ct. at 1630. Thus, the test whether evidence should be suppressed in federal court has always been solely whether the Fourth Amendment prohibition against 'unreasonable' searches and seizures was violated, nothing more and nothing less. See also, e.g., Alderman v. United States, 394 U.S. 165, 176, 89 S.Ct. 961, 968, 22 L.Ed.2d 176 (1969); United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974).
12
To be sure, the very vagueness of the intimated reformulation as articulated today leaves unclear exactly what showing demonstrates that a law enforcement officer 'may properly be charged with knowledge, that the search was unconstitutional.' In this case, for example, could the Border Patrol, a national organization, have been charged with knowledge of the unconstitutionality of an Almeida-Sanchez type search if the courts of appeals were in clear conflict on whether probable cause was required?
13
It is gratifying that the Court at least verbally restores to exclusionary-rule analysis this consideration, which for me is the core value served by the exclusionary rule. See Harris v. New York, 401 U.S. 222, 231—232, 91 S.Ct. 643, 648—649, 28 L.Ed.2d 1 (1971) (Brennan, J., dissenting); United States v. Calandra, supra, 414 U.S. 338, at 355, 94 S.Ct. 613, 624, 38 L.Ed.2d 561 (Brennan, J., dissenting). But the Court's treatment of this factor is wholly unsatisfactory. See id., at 359—360, 94 S.Ct. at 625—626 (Brennan, J., dissenting). I need discuss the question no further, however, since the Court merges the 'imperative of judicial integrity' into its deterrence rationale, ante, at 538, and then ignores the imperative when it applies its new theory to the facts of this case, see Part II of the Court's opinion. Rather, I show in the text that, on the Court's own deterrence rationale alone, today's suggested reformulation would be a disaster.
14
Angelet v. Fay, 381 U.S. 654, 85 S.Ct. 1750, 14 L.Ed.2d 623 (1965), declined to decide whether Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), would bar federal agents from testifying in a state court concerning illegally obtained evidence, because Mapp was held in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) to be nonretroactive. Somewhat similarly, Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974), refused to decide whether Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), applies to exclude the testimony of a witness discovered as a result of a statement given after incomplete Miranda warnings, because the interrogation in Tucker occurred before Miranda. See also Michigan v. Payne, 412 U.S., at 49—50, n. 3, 93 S.Ct. 1966, 1967—1968, 36 L.Ed.2d 736. Thus, there is clear precedent for avoiding decision of a constitutional issue raised by police behavior when in any event the evidence was admissible in the particular case at bar.
15
Critics of the exclusionary rule emphasize that in actual operation law enforcement officials are rarely reprimanded, discharged, or otherwise disciplined when evidence is excluded at trial for search-and-seizure violations. While this fact, to the extent it is true, may limit the efficacy of the exclusionary rule, it does not, for the reasons stated in the text, prove it useless. Suggestions are emerging for tailoring the exclusionary rule to the adoption and enforcement of regulations and training procedures concerning searches and seizures by law enforcement agencies. Amsterdam 409 et seq.; Kaplan, The Limits of the Exclusionary Rule, 26 Stan.L.Rev. 1027, 1050 et seq. (1974). Today's approach, rather than advancing this goal, would diminish the incentive for law enforcement agencies to train and supervise subordinate officers. See id., at 1044. At any rate, to the extent law enforcement agencies do visit upon individual employees consequences for conducting searches and seizures which are later held illegal, the agencies can be expected to take account of the degree of departure from existing norms as elucidated in court decisions. Thus, there is no need for the courts to adjust the exclusionary rule in order to assure fairness to individual officials or to promote decisiveness.
16
See also Amsterdam, 431:
'The common focus on the concept of 'deterrence' in the debate over the exclusionary rule can be quite misleading. It suggests that the police have a Good-given inclination to commit unconstitutional searches and seizures unless they are 'deterred' from that behavior. Once this assumption is indulged, it is easy enough to criticize the rule excluding unconstitutionally obtained evidence on the ground that it 'does not apply any direct sanction to the individual officer whose illegal conduct results in the exclusion,' and so cannot 'deter' him. But no one, to my knowledge, has ever urged that the exclusionary rule is supportable on this principle of 'deterrence.' It is not supposed to 'deter' in the fashion of the law of larceny, for example, by threatening punishment to him who steals a television set—a theory of deterrence, by the way, whose lack of empirical justification makes the exclusionary rule look as solid by comparison as the law of gravity.'
17
See also Oaks 711:
"The act is branded as reprehensible by authorized organs of society,' Andenaes states, 'and this official branding of the conduct may influence attitudes quite apart from the fear of sanctions.' The existence and imposition of a sanction reinforces the rule and underlines the importance of observing it. The principle is directly applicable to the exclusionary rule. The salient defect in the rule of Wolf v. Colorado was the difficulty of persuading anyone that the guarantees of the fourth amendment were seriously intended and important when there was no sanction whatever for their violation. As a visible expression of social disapproval for the violation of these guarantees, the exclusionary rule makes the guarantees of the fourth amendment credible. Its example teaches the importance attached to observing them.'
18
I assume that the Court's statement that 'the purpose of the exclusionary rule is to deter unlawful police conduct,' ante, at 542, does not imply that deterrence can work only at the level of the individual officers on the scene, nor suggest that under its approach only the knowledge, real or constructive, of the official conducting the search is relevant. Fourth Amendment violations become more, not less, reprehensible when they are the product of Government policy rather than an individual policeman's errors of judgment. See Alderman v. United States, 394 U.S., at 203, 89 S.Ct. 961, 982, 22 L.Ed.2d 176 (Fortas, J., concurring in part and dissenting in part).
'(T)he Fourth Amendment was intended to secure the citizen in person and property against unlawful invasion of the sanctity of his home by officers acting under legislative or judicial sanction. This protection is equally extended to the action of the Government and officers of the law acting under it. . . .' Weeks v. United States, 232 U.S. 383, 394, 34 S.Ct. 341, 345, 58 L.Ed. 652 (1914). (Emphasis supplied.)
Obviously, any rule intended to prevent Fourth Amendment violations must operate not only upon individual law enforcement officers but also upon those who set policy for them and approve their actions. Otherwise, for example, evidence derived from any search under a warrant could be admissible, because the searching policeman, having had a warrant approved by the designated judicial officer, had every reason to believe the warrant valid. Certainly, the Court can intend no such result, and would have lower courts inquire into the frame of mind, actual and constructive, of all officials whose actions were relevant to the search.
19
See supra, at 545, and n. 2.
20
In addition, adding 'one more factfinding operation, and an especially difficult one to administer, to those already required of (the) lower judiciary' could add a factor of discretion to the operation of the exclusionary rule impossible for the appellate courts effectively to control. Kaplan, supra, n. 15, at 1045.
21
Indeed, Congress in recent years has declined to take steps somewhat similar to those now proposed. See Canon, Is the Exclusionary Rule in Failing Health? Some New Data and a Plea Against a Precipitous Conclusion, 62 Ky.L.J. 681, 694—696 (1974).
22
For example, the modification of the exclusionary rule most discussed recently has been that in the ALI Model Code of Pre-Arraignment Procedure § 290.2(2) (Prop.Off. Draft No. 1, 1972). See Bivens, 403 U.S., at 424, 91 S.Ct. at 2018. (Appendix to opinion of Burger, C.J., dissenting); Canon, supra, n. 21, at 694—696. While the ALI proposal raises many of the same questions I have outlined above, it differs substantially from the Court's proposed approach, since it takes into account many factors besides '(c) the extent to which the violation was willful.'
| 01
|
422 U.S. 490
95 S.Ct. 2197.
45 L.Ed.2d 343
Robert WARTH, etc., et al., Petitioners,v.Ira SELDIN et al.
No. 73—2024.
Argued March 17, 1975.
Decided June 25, 1975.
Syllabus
This action for declaratory and injunctive relief and damages was brought by certain of the petitioners against respondent town of Penfield (a suburb of Rochester, N.Y.), and respondent members of Penfield's Zoning, Planning, and Town Boards, claiming that the town's zoning ordinance, by its terms and as enforced, effectively excluded persons of low and moderate income from living in the town, in violation of petitioners' constitutional rights and of 42 U.S.C. §§ 1981, 1982, and 1983. Petitioners consist of both the original plaintiffs—(1) Metro-Act of Rochester, a not-for-profit corporation among whose purposes is fostering action to alleviate the housing shortage for low- and moderate-income persons in the Rochester area; (2) several individual Rochester taxpayers; and (3) several Rochester area residents with low or moderate incomes who are also members of minority racial or ethnic groups—and Rochester Home Builders Association (Home Builders), embracing a number of residential construction firms in the Rochester area, which unsuccessfully sought to intervene as a party-plaintiff, and the Housing Council in the Monroe County Area (Housing Council), a not-for-profit corporation consisting of a number of organization interested in housing problems, which was unsuccessfully sought to be added as a party-plaintiff. The District Court dismissed the complaint on the ground, inter alia, that petitioners lacked standing to prosecute the action, and the Court of Appeals affirmed. Held: Whether the rules of standing are considered as aspects of the constitutional requirement that a plaintiff must make out a 'case or controversy' within the meaning of Art. III, or, apart from such requirement, as prudential limitations on the courts' role in resolving disputes involving 'generalized grievances' or third parties' legal rights or interests, none of the petitioners has met the threshold requirement of such rules that to have standing a complainant must clearly allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers. Pp. 498-518.
(a) As to petitioner Rochester residents who assert standing as persons of low or moderate income and, coincidentally, as members of minority racial or ethnic groups, the facts alleged fail to support an actionable causal relationship between Penfield's zoning practices and these petitioners' alleged injury. A plaintiff who seeks to challenge exclusionary zoning practices must allege specific, concrete facts demonstrating that such practices harm him, and that he personally would benefit in a tangible way from the court's intervention. Here, these petitioners rely on little more than the remote possibility, unsubstantiated by allegations of fact, that their situation might have been better had respondents acted otherwise, and might improve were the court to afford relief. Pp. 502-508.
(b) With respect to petitioners who assert standing on the basis of their status as Rochester taxpayers, claiming that they are suffering economic injury through increased taxes resulting from Penfield's zoning practices having forced Rochester to provide more taxabated low- or moderate-cost housing than it otherwise would have done, the line of causation between Penfield's actions and such injury is not apparent. But even assuming that these petitioners could establish that the zoning practices harm them, the basis of their claim is that the practices violate the constitutional and statutory rights of third parties—persons of low and moderate income who allegedly are excluded from Penfield. Hence, their claim falls squarely within the prudential standing rule that normally bars litigants from asserting the rights or legal interests of others in order to obtain relief from injury to themselves. Pp. 508-510.
(c) Petitioner Metro-Act's claims to standing as a Rochester taxpayer and on behalf of its members who are Rochester taxpayers or persons of low or moderate income, are precluded for the reasons applying to the denial of standing to the individual petitioner Rochester taxpayers and persons of low and moderate income. In addition, with respect to Metro-Act's claim to standing because 9% of its membership is composed of Penfield residents, prudential considerations strongly counsel against according such residents or Metro-Act standing, where the complaint is that they have been harmed indirectly by the exclusion of others, thus attempting, in the absence of a showing of any exception allowing such a claim, to raise the putative rights of third parties. Trafficante v. Metro-politan Life Ins., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415, distinguished. Pp. 512-514 (d) Petitioner Home Builders, which alleges no monetary injury to itself, has no standing to claim damages on behalf of its members, since whatever injury may have been suffered is peculiar to the individual member concerned, thus requiring individualized proof of both the fact and extent of injury and individual awards. Nor does Home Builders have standing to claim prospective relief, absent any allegation of facts sufficient to show the existence of any injury to members of sufficient immediacy and ripeness to warrant judicial intervention. Pp. 514-516.
(e) Petitioner Housing Council has no standing, where the complaint and record do not indicate that any of its members, with one exception, has made any effort involving Penfield, has taken any steps toward building there, or had any dealings with respondents. With respect to the one exception, this petitioner averred no basis for inferring that an earlier controversy between it and respondents remained a live, concrete dispute. Pp. 516-517.
495 F.2d 1187, affirmed.
Emmelyn Logan-Baldwin, Rochester, N.Y., for petitioners.
James M. Hartman, Rochester, N.Y., for respondents.
Mr. Justice POWELL delivered the opinion of the Court.
1
Petitioners, various organizations and individuals resident in the Rochester, N.Y., metropolitan area, brought this action in the District Court for the Western District of New York against the town of Penfield, an incorporated municipality adjacent to Rochester, and against members of Penfield's Zoning, Planning and Town Boards. Petitioners claimed that the town's zoning ordinance, by its terms and as enforced by the defendant board members, respondents here, effectively excluded persons of low and moderate income from living in the town, in contravention of petitioners' First, Ninth, and Fourteenth Amendment rights and in violation of 42 U.S.C. §§ 1981, 1982, and 1983. The District Court dismissed the complaint and denied a motion to add petitioner Housing Council in the Monroe County Area, Inc., as party-plaintiff and also a motion by petitioner Rochester Home Builders Association, Inc., for leave to intervene as party-plaintiff. The Court of Appeals for the Second Circuit affirmed, holding that none of the plaintiffs, and neither Housing Council nor Home Builders Association, had standing to prosecute the action. 495 F.2d 1187 (1974). We granted the petition for certiorari. 419 U.S. 823, 95 S.Ct. 40, 42 L.Ed.2d 47 (1974). For reasons that differ in certain respects from those upon which the Courtof Appeals relied, we affirm.
2
* Petitioners Metro-Act of Rochester, Inc., and eight individual plaintiffs, on behalf of themselves and all persons similarly situated,1 filed this action on January 24, 1972, averring jurisdiction in the District Court under 28 U.S.C. §§ 1331 and 1343. The complaint identified Metro-Act as a not-for-profit New York corporation, the purposes of which are 'to alert ordinary citizens to problems of social concern; . . . to inquire into the reasons for the critical housing shortage for low and moderate income persons in the Rochester area and to urge action on the part of citizens to alleviate the general housing shortage for low and moderate income persons.'2 Plaintiffs Vinkey, Reichert, Warth, and Harris were described as residents of the city of Rochester, all of whom owned real property in and paid property taxes to that city.3 Plaintiff Ortiz, 'a citizen of Spanish/Puerto Rican extraction,' App. 7, also owned real property in and paid taxes to Rochester. Ortiz, however, resided in Wayland, N.Y., some 42 miles from Penfield where he was employed.4 The complaint described plaintiffs Broadnax, Reyes, and Sinkler as residents of Rochester and 'persons fitting within the classification of low and moderate income as hereinafter defined. . . .'5 Ibid. Although the complaint does not expressly so state, the record shows that Broadnax, Reyes, and Sinkler are members of ethnic or racial minority groups: Reyes is of Puerto Rican ancestry; Broadnax and Sinkler are Negroes.
3
Petitioners' complaint alleged that Penfield's zoning ordinance, adopted in 1962, has the purpose and effect of excluding person of low and moderate income from residing in the town. In particular, the ordinance allocates 98% of the town's vacant land to single-family detached housing, and allegedly by imposing unreasonable requirements relating to lot size, setback, floor area, and habitable space, the ordinance increases the cost of single-family detached housing beyond the means of persons of low and moderate income. Moreover, according to petitioners, only 0.3% of the land available for residential construction is allocated to multifamily structures (apartments, townhouses, and the like), and even on this limited space, housing for low and moderate income persons is not economically feasible because of low density and other requirements. Petitioners also alleged that 'in furtherance of a policy of exclusionary zoning,' id., at 22, the defendant members of Penfield's Town, Zoning, and Planning Boards had acted in an arbitrary and discriminatory manner: they had delayed action on proposals for low- and moderate-cost housing for inordinate periods of time; denied such proposals for arbitrary and insubstantial reasons; refused to grant necessary variances and permits, or to allow tax abatements; failed to provide necessary support services for low- and moderate-cost housing projects; and had amended the ordinance to make approval of such projects virtually impossible.
4
In sum, petitioners alleged that, in violation of their 'rights, privileges and immunities secured by the Constitution and laws of the United States,' id., at 17, the town and its officials had made 'practically and economically impossible the construction of sufficient numbers of low and moderate income . . . housing in the Town of Penfield to satisfy the minimum housing requirements of both the Town of Penfield and the metropolitan Rochester area . . ..'6 Petitioners alleged, moreover, that by precluding low- and moderate-cost housing, the town's zoning practices also had the effect of excluding persons of minority racial and ethnic groups, since most such persons have only low or moderate incomes.
5
Petitioners further alleged certain harm to themselves. The Rochester property owners and taxpayers—Vinkey, Reichert, Warth, Harris, and Ortiz—claimed that because of Penfield's exclusionary practices, the city of Rochester had been forced to impose higher tax rates on them and other similarly situated than would otherwise have been necessary. The low- and moderate-income, minority plaintiffs—Ortiz, Broadnax, Reyes, and Sinkler—claimed that Penfield's zoning practices had prevented them from acquiring, by lease or purchase, residential property in the town, and thus had forced them and their families to reside in less attractive environments. To relieve these various harms, petitioners asked the District Court to declare the Penfield ordinance unconstitutional, to enjoin the defendants from enforcing the ordinance, to order the defendants to enact and administer a new ordinance designed to alleviate the effects of their past actions, and to award $750,000 in actual and exemplary damages.
6
On May 2, 1972, petitioner Rochester Home Builders Association, an association of firms engaged in residential construction in the Rochester metropolitan area, moved the District Court for leave to intervene as a party-plaintiff. In essence, Home Builders' intervenor complaint repeated the allegations of exclusionary zoning practices made by the original plaintiffs. It claimed that these practices arbitrarily and capriciously had prevented its member firms from building low- and moderate-cost housing in Penfield, and thereby had deprived them of potential profits. Home Builders prayed for equitable relief identical in substance to that requested by the original plaintiffs, and also for $750,000 in damages.7 On June 7, 1972, Metro-Act and the other original plaintiffs moved to join petitioner Housing Council in the Monroe County Area, Inc., as a party plaintiff. Housing Council is a not-for-profit New York corporation, its membership comprising some 71 public and private organizations interested in housing problems. An affidavit accompanying the motion stated that 17 of Housing Council's member groups were or hoped to be involved in the development of low- and moderate-cost housing, and that one of its members—the Penfield Better Homes Corp.—'is and has been actively attempting to develop moderate income housing' in Penfield, 'but has been stymied by its inability to secure the necessary approvals . . ..'8
7
Upon consideration of the complaints and of extensive supportive materials submitted by petitioners, the District Court held that the original plaintiffs, Home Builders, and Housing Council lacked standing to prosecute the action, that the original complaint failed to state a claim upon which relief could be granted, that the suit should not proceed as a class action, and that, in the exercise of discretion, Home Builders should not be permitted to intervene. The court accordingly denied the motion to add Housing Council as a party-plaintiff, denied Home Builders' motion to intervene, and dismissed the complaint. The Court of Appeals affirmed, reaching only the standing questions.
II
8
We address first the principles of standing relevant to the claims asserted by the several categories of petitioners in this case. In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues. This inquiry involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise. E.g., Barrows v. Jackson, 346 U.S. 249, 255—256, 73 S.Ct. 1031, 1034—1035, 97 L.Ed. 1586 (1953). In both dimensions it is founded in concern about the proper—and properly limited—role of the courts in a democratic society. See Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 221—227, 94 S.Ct. 2925, 2932—2935, 41 L.Ed.2d 706 (1974); United States v. Richardson, 418 U.S. 166, 188—197, 94 S.Ct. 2940, 2952—2956, 41 L.Ed.2d 678 (1974) (Powell, J., concurring).
9
In its constitutional dimension, standing imports justiciability: whether the plaintiff has made out a 'case or controversy' between himself and the defendant within the meaning of Art. III. This is the threshold question in every federal case, determining the power of the court to entertain the suit. As an aspect of justiciability, the standing question is whether the plaintiff has 'alleged such a personal stake in the outcome of the controversy' as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962).9 The Art. III judicial power exists only to redress or otherwise to protect against injury to the complaining party, even though the court's judgment may benefit others collaterally. A federal court's jurisdiction therefore can be invoked only when the plaintiff himself has suffered 'some threatened or actual injury resulting from the putatively illegal action . . ..' Linda R.S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973). See Data Processing Service v. Camp, 397 U.S. 150, 151—154, 90 S.Ct., 827, 829—830, 25 L.Ed.2d 184 (1970).10
10
Apart from this minimum constitutional mandate, this Court has recognized other limits on the class of persons who may invoke the courts' decisional and remedial powers. First, the Court has held that when the asserted harm is a 'generalized grievance' shared in substantially equal measure by all or a large class of citizens, that harm alone normally does not warrant exercise of jurisdiction. E.g., Schlesinger v. Reservists to Stop the War, supra; United States v. Richardson, supra; Ex parte Le vitt, 302 U.S. 633, 634, 58 S.Ct. 1, 82 L.Ed. 493 (1937), Second, even when the plaintiff has alleged injury sufficient to meet the 'case or controversy' requirement, this Court has held that the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties. E.g., Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603 (1943). See United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960); Barrows v. Jackson, supra. Without such limitations—closely related to Art. III concerns but essentially matters of judicial self-governance the courts would be called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights. See, e.g., Schlesinger v. Reservists to Stop the War, 418 U.S., at 222, 94 S.Ct., at 2932.11
11
Although standing in no way depends on the merits of the plaintiff's contention that particular conduct is illegal, e.g., Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968), it often turns on the nature and source of the claim asserted. The actual or threatened injury required by Art. III may exist solely by virtue of 'statutes creating legal rights, the invasion of which creates standing . . ..' See Linda R.S. v. Richard D., supra, 410 U.S., at 617 n. 3, 93 S.Ct., at 1148; Sierra Club v. Morton, 405 U.S. 727, 732, 92 S.Ct. 1361, 1364, 31 L.Ed.2d 636 (1972). Moreover, the source of the plaintiff's claim to relief assumes critical importance with respect to the prudential rules of standing that, apart from Art. III's minimum requirements, serve to limit the role of the courts in resolving public disputes. Essentially, the standing question in such cases is whether the constitutional or statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff's position a right to judicial relief.12 In some circumstances, countervailing considerations may outweigh the concerns underlying the usual reluctance to exert judicial power when the plaintiff's claim to relief rests on the legal rights of third parties. See United States v. Raines, 362 U.S., at 22—23, 80 S.Ct., at 523—524. In such instances, the Court has found, in effect, that the constitutional or statutory provision in question implies a right of action in the plaintiff. See Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237, 90 S.Ct. 400, 404, 24 L.Ed.2d 386 (1969). See generally Part IV, infra. Moreover, Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules. Of course, Art. III's requirement remains: the plaintiff still must allege a distinct and palpable injury to himself, even if it is an injury shared by a large class of other possible litigants. E.g., United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). But so long as this requirement is satisfied, persons to whom Congress has granted a right of action, either expressly or by clear implication, may have standing to seek relief on the basis of the legal rights and interests of others, and, indeed, may invoke the general public interest in support of their claim. E.g., Sierra Club v. Morton, supra, 405 U.S., at 737, 92 S.Ct., at 1367; FCC v. Sanders Radio Station, 309 U.S. 470, 477, 60 S.Ct. 693, 698, 84 L.Ed. 869 (1940).
12
One further preliminary matter requires discussion. For purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party. E.g., Jenkins v. McKeithen, 395 U.S. 411, 421—422, 89 S.Ct. 1843, 1848—1849, 23 L.Ed.2d 404 (1969). At the same time, it is within the trial court's power to allow or to require the plaintiff to supply, by amendment to the complaint or by affidavits, further particularized allegations of fact deemed supportive of plaintiff's standing. If, after this opportunity, the plaintiff's standing does not adequately appear from all materials of record, the complaint must be dismissed.
III
13
With these general considerations in mind, we turn first to the claims of petitioners Ortiz, Reyes, Sinkler, and Broadnax, each of whom asserts standing as a person of low or moderate income and, coincidentally, as a member of a minority racial or ethnic group. We must assume, taking the allegations of the complaint as true, that Penfield's zoning ordinance and the pattern of enforcement by respondent officials have had the purpose and effect of excluding persons of low and moderate income, many of whom are members of racial or ethnic minority groups. We also assume, for purposes here, that such intentional exclusionary practices, if proved in a proper case, would be adjudged violative of the constitutional and statutory rights of the persons excluded.
14
But the fact that these petitioners share attributes common to persons who may have been excluded from residence in the town is an insufficient predicate for the conclusion that petitioners themselves have been excluded, or that the respondents' assertedly illegal actions have violated their rights. Petitioners must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent. Unless these petitioners can thus demonstrate the requisite case or controversy between themselves personally and respondents, 'none may seek relief on behalf of himself or any other member of the class.' O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974). See, e.g., Bailey v. Patterson, 369 U.S. 31, 32—33, 82 S.Ct. 549, 550—551, 7 L.Ed.2d 512 (1962).
15
In their complaint, petitioners Ortiz, Reyes, Sinkler, and Broadnax alleged in conclusory terms that they are among the persons excluded by respondents' actions.13 None of them has ever resided in Penfield; each claims at least implicitly that he desires, or has desired, to do so. Each asserts, moreover, that he made some effort, at some time, to locate housing in Penfield that was at once within his means and adequate for his family's needs. Each claims that his efforts proved fruitless.14 We may assume, as petitioners allege, that respondents' actions have contributed, perhaps substantially, to the cost of housing in Penfield. But there remains the question whether petitioners' inability to locate suitable housing in Penfield reasonably can be said to have resulted, in any concretely demonstrable way, from respondents' alleged constitutional and statutory infractions. Petitioners must allege facts from which it reasonably could be inferred that, absent the respondents' restrictive zoning practices, there is a substantial probability that they would have been able to purchase or lease in Penfield and that, if the court affords the relief requested, the asserted inability of petitioners will be removed. Linda R.S. v. Richard D., supra.
16
We find the record devoid of the necessary allegations. As the Court of Appeals noted, none of these petitioners has a present interest in any Penfield property; none is himself subject to the ordinance's strictures; and none has even been denied a variance or permit by respondent officials. 495 F.2d, at 1191. Instead, petitioners claim that respondents' enforcement of the ordinance against third parties—developers, builders, and the like has had the consequence of precluding the construction of housing suitable to their needs at prices they might be able to afford. The fact that the harm to petitioners may have resulted indirectly does not in itself preclude standing. When a governmental prohibition or restriction imposed on one party causes specific harm to a third party, harm that a constitutional provision or statute was intended to prevent, the indirectness of the injury does not necessarily deprive the person harmed of standing to vindicate his rights. E.g., Roe v. Wade, 410 U.S. 113, 124, 93 S.Ct. 705, 712, 35 L.Ed.2d 147 (1973). But it may make it substantially more difficult to meet the minimum requirement of Art. III: to establish that, in fact, the asserted injury was the consequence of the defendants' actions, or that prospective relief will remove the harm.
17
Here, by their own admission, realization of petitioners' desire to live in Penfield always has depended on the efforts and willingness of third parties to build low- and moderate-cost housing. The record specifically refers to only two such efforts: that of Penfield Better Homes Corp., in late 1969, to obtain the rezoning of certain land in Penfield to allow the construction of subsidized cooperative townhouses that could be purchased by persons of moderate income; and a similar effort by O'Brien Homes, Inc., in late 1971.15 But the record is devoid of any indication that these projects, or other like projects, would have satisfied petitioners' needs at prices they could afford, or that, were the court to remove the obstructions attributable to respondents, such relief would benefit petitioners. Indeed, petitioners' descriptions of their individual financial situations and housing needs suggest precisely the contrary—that their inability to reside in Penfield is the consequence of the economics of the area housing market, rather than of respondents' assertedly illegal acts.16 In short, the facts alleged fail to support an actionable causal relationship between Penfield's zoning practices and petitioners' asserted injury.
18
In support of their position, petitioners refer to several decisions in the District Courts and Courts of Appeals, acknowledging standing in low-income, minority-group plaintiffs to challenge exclusionary zoning practices.17 In those cases, however, the plaintiffs challenged zoning restrictions as applied to particular projects that would supply housing within their means, and of which they were intended residents. The plaintiffs thus were able to demonstrate that unless relief from assertedly illegal actions was forthcoming, their immediate and personal interests would be harmed. Petitioners here assert no like circumstances. Instead, they rely on little more than the remote possibility, unsubstantiated by allegations of fact, that their situation might have been better had respondents acted otherwise, and might improve were the court to afford relief.
19
We hold only that a plaintiff who seeks to challenge exclusionary zoning practices must allege specific, concrete facts demonstrating that the challenged practices harm him, and that he personally would benefit in a tangible way from the court's intervention.18 Absent the necessary allegations of demonstrable, particularized injury, there can be no confidence of 'a real need to exercise the power of judicial review' or that relief can be framed 'no (broader) than required by the precise facts to which the court's ruling would be applied.' Schlesinger v. Reservists to Stop the War, 418 U.S., at 221—222, 94 S.Ct., at 2932.
IV
20
The petitioners who assert standing on the basis of their status as taxpayers of the city of Rochester present a different set of problems. These 'taxpayer-petitioners' claim that they are suffering economic injury consequent to Penfield's allegedly discriminatory and exclusionary zoning practices. Their argument, in brief, is that Penfield's persistent refusal to allow or to facilitate construction of low- and moderate-cost housing forces the city of Rochester to provide more such housing than it otherwise would do; that to provide such housing, Rochester must allow certain tax abatements; and that as the amount of tax-abated property increases, Rochester taxpayers are forced to assume an increased tax burden in order to finance essential public services.
21
'Of course, pleadings must be something more than an ingenious academic exercise in the conceivable.' United States v. SCRAP, 412 U.S., at 688, 93 S.Ct. 2405, 2416, 37 L.Ed.2d 254. We think the complaint of the taxpayer-petitioners is little more than such an exercise. Apart from the conjectural nature of the asserted injury, the line of causation between Penfield's actions and such injury is not apparent from the complaint. Whatever may occur in Penfield, the injury complained of—increases in taxation results only from decisions made by the appropriate Rochester authorities, who are not parties to this case.
22
But even if we assume that the taxpayer-petitioners could establish that Penfield's zoning practices harm them,19 their complaint nonetheless was properly dismissed. Petitioners do not, even if they could, assert any personal right under the Constitution or any statute to be free of action by a neighboring municipality that may have some incidental adverse effect on Rochester. On the contrary, the only basis of the taxpayer-petitioners' claim is that Penfield's zoning ordinance and practices violate the constitutional and statutory rights of third parties, namely, persons of low and moderate income who are said to be excluded from Penfield. In short the claim of these petitioners falls squarely within the prudential standing rule that normally bars litigants from asserting the rights or legal interests of others in order to obtain relief from injury to themselves. As we have observed above, this rule of judicial self-governance is subject to exceptions, the most prominent of which is that Congress may remove it by statute. Here, however, no statute expressly or by clear implication grants a right of action, and thus standing to seek relief, to persons in petitioners' position. In several cases, this Court has allowed standing to litigate the rights of third parties when enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties' rights. See, e.g., Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 745, 35 L.Ed.2d 205 (1973); Griswold v. Connecticut, 381 U.S. 479, 481, 85 S.Ct. 1678, 1680, 14 L.Ed.2d 510 (1965); Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953). But the taxpayer-petitioners are not themselves subject to Penfield's zoning practices. Nor do they allege that the challenged zoning ordinance and practices preclude or otherwise adversely affect a relationship existing between them and the persons whose rights assertedly are violated. E.g., Sullivan v. Little Hunting Park, Inc., 396 U.S., at 237, 90 S.Ct. 400, 404, 24 L.Ed.2d 386; NAACP v. Alabama, 357 U.S. 449, 458—460, 78 S.Ct. 1163, 1169—1171, 2 L.Ed.2d 1488 (1958); Pierce v. Society of Sisters, 368 U.S., at 534—536, 45 S.Ct. 571, 573—574, 69 L.Ed. 1070. No relationship, other than an incidental congruity of interest, is alleged to exist between the Rochester taxpayers and persons who have been precluded from living in Penfield. Nor do the taxpayer-petitioners show that their prosecution of the suit is necessary to insure protection of the rights asserted, as there is no indication that persons who in fact have been excluded from Penfield are disabled from asserting their own right in a proper case.20 In sum, we discern no justification for recognizing in the Rochester taxpayers a right of action on the asserted claim.
V
23
We turn next to the standing problems presented by the petitioner associations—Metro-Act of Rochester, Inc., one of the original plaintiffs; Housing Council in the Monroe County Area, Inc., which the original plaintiffs sought to join as a party-plaintiff; and Rochester Home Builders Association, Inc., which moved in the District Court for leave to intervene as plaintiff. There is no question that an association may have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy. Moreover, in attempting to secure relief from injury to itself the association may assert the rights of its members, at least so long as the challenged infractions adversely affect its members' associational ties. E.g., NAACP v. Alabama, supra, 357 U.S., at 458—460, 78 S.Ct. 1163, 1169—1171, 2 L.Ed.2d 1488; Anti-Fascist Committee v. McGrath, 341 U.S. 123, 183—187, 71 S.Ct. 624, 654—657, 95 L.Ed. 817 (1951) (Jackson J., concurring). With the limited exception of Metro-Act, however, none of the associational petitioners here has asserted injury to itself.
24
Even in the absence of injury to itself, an association may have standing solely as the representative of its members. E.g., National Motor Freight Assn. v. United States, 372 U.S. 246, 83 S.Ct. 688, 9 L.Ed.2d 709 (1963). The possibility of such representational standing, however, does not eliminate or attenuate the constitutional requirement of a case or controversy. See Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit. Id., at 734—741, 92 S.Ct., at 1365—1369. So long as this can be established, and so long as the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause, the association may be an appropriate representative of its members, entitled to invoke the court's jurisdiction.
25
* Petitioner Metro-Act's claims to standing on its own behalf as a Rochester taxpayer, and on behalf of its members who are Rochester taxpayers or persons of low or moderate income, are precluded by our holdings in Parts III and IV, supra, as to the individual petitioners, and require no further discussion. Metro-Act also alleges, however, that 9% of its membership is composed of present residents of Penfield. It claims that, as a result of the persistent pattern of exclusionary zoning practiced by respondents and the consequent exclusion of persons of low and moderate income, those of its members who are Penfield residents are deprived of the benefits of living in a racially and ethnically integrated community. Referring to our decision in Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972), Metro-Act argues that such deprivation is a sufficiently palpable injury to satisfy the Art. III case-or-controversy requirement, and that it has standing as the representative of its members to seek redress.
26
We agree with the Court of Appeals that Trafficante is not controlling here. In that case, two residents of an apartment complex alleged that the owner had discriminated against rental applicants on the basis of race, in violation of § 804 of the Civil Rights Act of 1968, 82 Stat. 83, 42 U.S.C. § 3604. They claimed that, as a result of such discrimination, 'they had been injured in that (1) they had lost the social benefits of living in an integrated community; (2) they had missed business and professional advantages which would have accrued if they had lived with members of minority groups; (3) they had suffered embarrassment and economic damage in social, business, and professional activities from being 'stigmatized' as residents of a 'white ghetto." 409 U.S., at 208, 93 S.Ct., at 366. In light of the clear congressional purpose in enacting the 1968 Act, and the broad definition of 'person aggrieved' in § 810(a), 42 U.S.C. § 3610(a), we held that petitioners, as 'person(s) who claim(ed) to have been injured by a discriminatory housing practice,' had standing to litigate violations of the Act. We concluded that Congress had given residents of housing facilities covered by the statute an actionable right to be free from the adverse consequences to them of racially discriminatory practices directed at and immediately harmful to others. 409 U.S., at 212, 93 S.Ct., at 368.
27
Metro-Act does not assert on behalf of its members any right of action under the 1968 Civil Rights Act, nor can the complaint fairly be read to make out any such claim.21 In this, we think, lies the critical distinction between Trafficante and the situation here. As we have observed above, Congress may create a statutory right or entitlement the alleged deprivation of which can confer standing to sue even where the plaintiff would have suffered no judicially cognizable injury in the absence of statute. Linda R.S. v. Richard D., 410 U.S., at 617 n. 3, 93 S.Ct., at 1148, citing Trafficante v. Metropolitan Life Ins. Co., supra, 409 U.S., at 212, 93 S.Ct., at 368. (White, J., concurring). No such statute is applicable here.
28
Even if we assume, arguendo, that apart from any statutorily created right the asserted harm to Metro-Act's Penfield members is sufficiently direct and personal to satisfy the case-or-controversy requirement of Art. III, prudential considerations strongly counsel against according them or Metro-Act standing to prosecute this action. We do not understand Metro-Act to argue that Penfield residents themselves have been denied any constitutional rights, affording them a cause of action under 42 U.S.C. § 1983. Instead, their complaint is that they have been harmed indirectly by the exclusion of others. This is an attempt to raise putative rights of third parties, and none of the exceptions that allow such claims is present here.22 In these circumstances, we conclude that it is inappropriate to allow Metro-Act to invoke the judicial process.
B
29
Petitioner Home Builders, in its intervenor-complaint, asserted standing to represent its member firms engaged in the development and construction of residential housing in the Rochester area, including Penfield. Home Builders alleged that the Penfield zoning restrictions, together with refusals by the town officials to grant variances and permits for the construction of low- and moderate-cost housing, had deprived some of its members of 'substantial business opportunities and profits.' App. 156. Home Builders claimed damages of $750,000 and also joined in the original plaintiffs' prayer for declaratory and injunctive relief.
30
As noted above, to justify any relief the association must show that it has suffered harm, or that one or more of its members are injured. E.g., Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). Bt, apart from this, whether an association has standing to invoke the court's remedial powers on behalf of its members depends in substantial measure on the nature of the relief sought. If in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured. Indeed, in all cases in which we have expressly recognized standing in associations to represent their members, the relief sought has been of this kind. E.g., National Motor Freight Assn. v. United States, 372 U.S. 246, 83 S.Ct. 688, 9 L.Ed.2d 709 (1963). See Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). Cf. Fed.Rule Civ.Proc. 23(b)(2).
31
The present case, however, differs significantly as here an association seeks relief in damages for alleged injuries to its members. Home Builders alleges no monetary injury to itself, nor any assignment of the damages claims of its members. No award therefore can be made to the association as such. Moreover, in the circumstances of this case, the damages claims are not common to the entire membership, nor shared by all in equal degree. To the contrary, whatever injury may have been suffered is peculiar to the individual member concerned, and both the fact and extent of injury would require individualized proof. Thus, to obtain relief in damages, each member of Home Builders who claims injury as a result of respondents' practices myst be a party to the suit, and Home Builders has no standing to claim damages on his behalf.
32
Home Builders' prayer for prospective relief fails for a different reason. It can have standing as the representative of its members only if it has alleged facts sufficient to make out a case or controversy had the members themselves brought suit. No such allegations were made. The complaint refers to no specific project of any of its members that is currently precluded either by the ordinance or by respondents' action in enforcing it. There is no averment that any member has applied to respondents for a building permit or a variance with respect to any current project. Indeed, there is no indication that respondents have delayed or thwarted any project currently proposed by Home Builders' members, or that any of its members has taken advantage of the remedial processes available under the ordinance. In short, insofar as the complaint seeks prospective relief, Home Builders has failed to show the existence of any injury to its members of sufficient immediacy and ripeness to warrant judicial intervention. See, e.g., United Public Workers v. Mitchell, 330 U.S. 75, 86—91, 67 S.Ct. 556, 562—565, 91 L.Ed. 754 (1947); Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941).
33
A like problem is presented with respect to petitioner Housing Council. The affidavit accompanying the motion to join it as plaintiff states that the Council includes in its membership 'at lease seventeen' groups that have been, are, or will be involved in the development of low- and moderate-cost housing. But with one exception, the complaint does not suggest that any of these groups has focused its efforts on Penfield or has any specific plan to do so. Again with the same exception, neither the complaint nor any materials of record indicate that any member of Housing Council has taken any step toward building housing in Penfield, or has had dealings of any nature with respondents. The exception is the Penfield Better Homes Corp. As we have observed above, it applied to respondents in late 1969 for a zoning variance to allow construction of a housing project designed for persons of moderate income. The affidavit in support of the motion to join Housing Council refers specifically to this effort, the supporting materials detail at some length the circumstances surrounding the rejection of Better Homes' application. It is therefore possible that in 1969, or within a reasonable time thereafter, Better Homes itself and possibly Housing Council as its representative would have had standing to seek review of respondents' action. The complaint, however, does not allege that the Penfield Better Homes project remained viable in 1972 when this complaint was filed, or that respondents' actions continued to block a then-current construction project.23 In short, neither the complaint nor the record supplies any basis from which to infer that the controversy between respondents and Better Homes, however vigorous it may once have been, remained a live, concrete dispute when this complaint was filed.
VI
34
The rules of standing, whether as aspects of the Art. III case-or-controversy requirement or as reflections of prudential considerations defining and limiting the role of the courts, are threshold determinants of the propriety of judicial intervention. It is the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers. We agree with the District Court and the Court of Appeals that none of the petitioners here has met this threshold requirement. Accordingly, the judgment of the Court of Appeals is
35
Affirmed.
36
Mr. Justice DOUGLAS, dissenting.
37
With all respect, I think that the Court reads the complaint and the record with antagonistic eyes. There are in the background of this case continuing strong tides of opinion touching on very sensitive matters, some of which involve race, some class distinctions based on wealth.
38
A clean, safe, and well-heated home is not enough for some people. Some want to live where the neighbors are congenial and have social and political outlooks similar to their own. This problem of sharing areas of the community is akin to that when one wants to control the kind of person who shares his own abode. Metro-Act of Rochester, Inc., and the Housing Council in the Monroe County Area, Inc.—two of the associations which bring this suit—do in my opinion represent the communal feeling of the actual residents and have standing.
39
The associations here are in a position not unlike that confronted by the Court in NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). Their protest against the creation of this segregated community expresses the desire of their members to live in a desegregated community—a desire which gives standing to sue under the Civil Rights Act of 1968 as we held in Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972). Those who voice these views here seek to rely on other Civil Rights Acts and on the Constitution, but they too should have standing, by virtue of the dignity of their claim, to have the case decided on the merits.
40
Standing has become a barrier to access to the federal courts, must as 'the political question' was in earlier decades. The mounting caseload of federal courts is well known. But cases such as this one reflect festering sores in our society; and the American dream teaches that if one reaches high enough and persists there is a forum where justice is dispensed. I would lower the technical barriers and let the courts serve that ancient need. They can in time be curbed by legislative or constitutional restraints if an emergency arises.
41
We are today far from facing an emergency. For in all frankness, no Justice of this Court need work more than four days a week to carry his burden. I have found it a comfortable burden carried even in my months of hospitalization.
42
As Mr. Justice BRENNAN makes clear in his dissent, the alleged purpose of the ordinance under attack was to preclude low- and moderate-income people and nonwhites from living in Penfield. The zoning power is claimed to have been used here to foist an un-American community model on the people of this area. I would let the case go to trial and have all the facts brought out. Indeed, it would be better practice to decide the question of standing only when the merits have been developed.
43
I would reverse the Court of Appeals.
44
Mr. Justice BRENNAN, with whom Mr. Justice WHITE and Mr. Justice MARSHALL join, dissenting.
45
In this case, a wide range of plaintiffs, alleging various kinds of injuries, claimed to have been affected by the Penfield zoning ordinance, on its face and as applied, and by other practices of the defendant officials of Penfield. Alleging that as a result of these laws and practices low- and moderate-income and minority people have been excluded from Penfield, and that this exclusion is unconstitutional, plaintiffs sought injunctive, declaratory, and monetary relief. The Court today, in an opinion that purports to be a 'standing' opinion but that actually, I believe, has overtones of outmoded notions of pleading and of justiciability, refuses to find that any of the variously situated plaintiffs can clear numerous hurdles, some constructed here for the first time, necessary to establish 'standing.' While the Court gives lip service to the principle, oft repeated in recent years,1 that 'standing in no way depends on the merits of the plaintiff's contention that particular conduct is illegal,' ante, at 500, in fact the opinion, which tosses out of court almost every conceivable kind of plaintiff who could be injured by the activity claimed to be unconstitutional, can be explained only by an indefensible hostility to the claim on the merits. I can appreciate the Court's reluctance luctance to adjudicate the complex and difficult legal questions involved in determining the constitutionality of practices which assertedly limit residence in a particular municipality to those who are white and relatively well off, and I also understand that the merits of this case could involve grave sociological and political ramifications. But courts cannot refuse to hear a case on the merits merely because they would prefer not to, and it is quite clear, when the record is viewed with dispassion, that at least three of the groups of plaintiffs have made allegations, and supported them with affidavits and documentary evidence, sufficient to survive a motion to dismiss for lack of standing.2
46
* Before considering the three groups I believe clearly to have standing—the low-income, minority plaintiffs, Rochester Home Builders Association, Inc., and the Housing Council in the Monroe County Area, Inc.—it will be helpful to review the picture painted by the allegations as a whole, in order better to comprehend the interwoven interests of the various plaintiffs. Indeed, one glaring defect of the Court's opinion is that it views each set of plaintiffs as if it were prosecuting a separate lawsuit, refusing to recognize that the interests are intertwined, and that the standing of any one group must take into account its position vis-a -vis the others. For example, the Court says that the low-income minority plaintiffs have not alleged facts sufficient to show that but for the exclusionary practices claimed, they would be able to reside in Penfield. The Court then intimates that such a causal relationship could be shown only if 'the initial focus (is) on a particular project.' Ante, at 508 n. 18. Later, the Court objects to the ability of the Housing Council to prosecute the suit on behalf of its member, Penfield Better Homes Corp., despite the fact that Better Homes had displayed an interest in a particular project, because that project was no longer live. Thus, we must suppose that even if the low-income plaintiffs had alleged a desire to live in the Better Homes project, that allegation would be insufficient because it appears that that particular project might never be built. The rights of low-income minority plaintiffs who desire to live in a locality, then, seem to turn on the willingness of a third party to litigate the legality of preclusion of a particular project, despite the fact that the third party may have no economic incentive to incur the costs of litigation with regard to one project, and despite the fact that the low-income minority plaintiffs' interest is not to live in a particular project but to live somewhere in the town in a dwelling they can afford.
47
Accepting, as we must, the various allegations and affidavits as true, the following picture emerges: The Penfield zoning ordinance, by virtue of regulations concerning 'lot area, set backs, . . . population density, density of use, units per acre, floor area, sewer requirements, traffic flow, ingress and egress(, and) street location,' makes 'practically and economically impossible the construction of sufficient numbers of low and moderate income' housing. App. 25. The purpose of this ordinance was to preclude low-and moderate-income people and nonwhites from living in Penfield, id., at 15, and, particularly because of refusals to grant zoning variances and building permits and by using special permit procedures and other devices, id., at 17, the defendants succeeded in keeping 'low and moderate income persons . . . and non-white persons . . . from residing within . . . Penfield.' Id., at 18.
48
As a result of these practices, various of the plaintiffs were affected in different ways. For example, plaintiffs Ortiz, Reyes, Sinkler, and Broadnax, persons of low or moderate income and members of minority groups, alleged that 'as a result' of respondents' exclusionary scheme, at 18, 21, 23—24, 26, 29 (emphasis supplied), they could not live in Penfield, although they desired and attempted to do so, and consequently incurred greater commuting costs, lived in substandard housing, and had fewer services for their families and poorer schools for their children than if they had lived in Penfield. Members of the Rochester Home Builders Association were prevented from constructing homes for low- and moderate-income people in Penfield, id., at 153, harming them economically. And Penfield Better Homes, a member of the Housing Council, was frustrated in its attempt to build moderate-income housing, id., at 174.
49
Thus, the portrait which emerges from the allegations and affidavits is one of total, purposeful, intransigent exclusion of certain classes of people from the town, pursuant to a conscious scheme never deviated from. Because of this scheme, those interested in building homes for the excluded groups were faced with insurmountable difficulties, and those of the excluded groups seeking homes in the locality quickly learned that their attempts were futile. Yet, the Court turns the very success of the allegedly unconstitutional scheme into a barrier to a lawsuit seeking its invalidation. In effect, the Court tells the lowincome minority and building company plaintiffs they will not be permitted to prove what they have alleged—that they could and would build and live in the town if changes were made in the zoning ordinance and its application—because they have not succeeded in breaching, before the suit was filed, the very barriers which are the subject of the suit.
II
Low-income and Minority Plaintiffs
50
As recounted above, plaintiffs Ortiz, Broadnax, Reyes, and Sinkler alleged that 'as a result' of respondents' exclusionary practices, they were unable, despite attempts, to find the housing they desired in Penfield, and consequently have incurred high commuting expenses, received poorer municipal services,3 and, in some instances, have been relegated to live in substandard housing.4 The Court does not, as it could not, suggest that the injuries, if proved, would be insufficient to give petitioners the requisite 'personal stake in the outcome of the controversy as to assure the concrete adverseness which sharpens the presentation of issues,' Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962); Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968). Rather, it is abundantly clear that the harm alleged satisfies the 'injury in fact, economic or otherwise,' Data Processing Service v. Camp, 397 U.S. 150, 152, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970), requirement which is prerequisite to standing in federal court. The harms claimed consisting of out-of-pocket losses as well as denial of specifically enumerated services available in Penfield but not in these petitioners' present communities, see nn. 3 and 4, supra—are obviously more palpable and concrete than those held sufficient to sustain standing in other cases. See United States v. SCRAP, 412 U.S. 669, 686, 93 S.Ct. 2405, 2415, 37 L.Ed.2d 254 (1973); Sierra Club v. Morton, 405 U.S. 727, 735 n. 8, 738, and n. 13, 92 S.Ct. 1361, 1366, 1368, 31 L.Ed.2d 636 (1972). Cf. Data Processing, supra, 397 U.S., at 154, 90 S.Ct., at 830.
51
Instead, the Court insists that these petitioners' allegations are insufficient to show that the harms suffered were caused by respondents' allegedly unconstitutional practices, because 'their inability to reside in Penfield (may be) the consequence of the economics of the area housing market, rather than of respondents' assertedly illegal acts.' Ante, at 2209.
52
True, this Court has held that to maintain standing, a plaintiff must not only allege an injury but must also assert a "direct' relationship between the alleged injury and the claim sought to be adjudicated,' Linda R.S. v. Richard D., 410 U.S. 614, 618, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536 (1973)—that is '(t) he party who invokes (judicial) power must be able to show . . . that he has sustained or is immediately in danger of sustaining some direct injury as the result of (a statute's) enforcement.' Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078, (1923) (emphasis supplied); Linda R.S., supra, 410 U.S., at 618, 93 S.Ct., at 1149. But, as the allegations recited above show, these petitioners have alleged precisely what our cases require—that because of the exclusionary practices of respondents, they cannot live in Penfield and have suffered harm.5
53
Thus, the Court's real holding is not that these petitioners have not alleged an injury resulting from respondents' action, but that they are not to be allowed to prove one, because 'realization of petitioners' desire to live in Penfield always has depended on the offorts and willingness of third parties to build low- and moderate-cost housing,' ante, at 505, and 'the record is devoid of any indication that . . . (any) projects, would have satisfied petitioners' needs at prices they could afford.' Ante, at 506.
54
Certainly, this is not the sort of demonstration that can or should be required of petitioners at this preliminary stage. In SCRAP, supra, a similar challenge was made: it was claimed that the allegations were vague, 412 U.S., at 689 n. 15, 93 S.Ct., at 2417, and that the causation theory asserted was untrue, id., at 689, 93 S.Ct., at 2417. We said: 'If * * * these allegations were in fact untrue, then the appellants should have moved for summary judgment on the standing issue and demonstrated to the District Court that the allegations were sham and raised no genuine issue of fact. We cannot say . . . that the appellees could not prove their allegations which, if proved, would place them sequarely among those persons injured in fact.' Id., at 689—690, 93 S.Ct., at 2417.6 See also Jenkins v. McKeithen, 395 U.S. 411, 421—422, 89 S.Ct. 1843, 1848—1849, 23 L.Ed.2d 404 (1969).
55
Here, the very fact that, as the Court stresses, these petitioner's claim rests in part upon proving the intentions and capabilities of third parties to build in Penfield suitable housing which they can afford, coupled with the exclusionary character of the claim on the merits, makes it particularly inappropriate to assume that these petitioners' lack of specificity reflects a fatal weakness in their theory of causation.7 Obviously they cannot be expected, prior to discover and trial, to know the future plans of building companies, the precise details of the housing market in Penfield, or everything which has transpired in 15 years of application of the Penfield zoning ordinance, including every housing plan suggested and refused. To require them to allege such facts is to require them to prove their case on paper in order to get into court at all, reverting to the form of fact pleading long abjured in the federal courts. This Court has not required such unachievable specificity in standing cases in the past, see SCRAP, supra, and Jenkins, supra, and the fact that it does so now can only be explained by an indefensible determination by the Court to close the doors of the federal courts to claims of this kind. Understandably, today's decision will be read as revealing hostility to breaking down even unconstitutional zoning barriers that frustrate the deep human yearning of low-income and minority groups for decent housing they can afford in decent surroundings, see nn. 3 and 4, supra.
III
Associations Including Building Concerns
56
Two of the petitioners are organizations among whose members are building concerns. Both of these organizations, Home Builders and Housing Council, alleged that these concerns have attempted to build in Penfield low- and moderate-income housing, but have been stymied by the zoning ordinance and refusal to grant individual relief therefrom.
57
Specifically, Home Builders, a trade association of concerns engaged in constructing and maintaining residential housing in the Rochester area, alleged that '(d)uring the past 15 years, over 80% of the private housing units constructed in the Town of Penfield have been constructed by (its) members.' App. 147. Because of respondents' refusal to grant relief from Penfield's restrictive housing statutes, members of Home Builders could not proceed with planned low- and moderate-income housing projects, id., at 157, and thereby lost profits. Id., at 156.
58
Housing Council numbers among its members at least 17 groups involved in the development and construction of low- and middle-income housing. In particular, one member, Penfield Better Homes, 'is and has been actively attempting to develop moderate income housing in . . . Penfield.' (emphasis supplied), id., at 174, but has been unable to secure the necessary approvals. Ibid.
59
The Court finds that these two organizations lack standing to seek prospective relief for basically the same reasons: none of their members is, as far as the allegations show, currently involved in developing a particular project. Thus, Home Builders, has 'failed to show the existence of any injury to its members of sufficient immediacy and ripeness to warrant judicial intervention,' ante, at 516 (emphasis supplied), while 'the controversy between respondents and Better Homes, however vigorous it may once have been, (has not) remained a live, concrete dispute.' Ante, at 517.
60
Again, the Court ignores the thrust of the complaints and asks petitioners to allege the impossible. According to the allegations, the building concerns' experience in the past with Penfield officials has shown any plans for low- and moderate-income housing to be futile for, again according to the allegations, the respondents are engaged in a purposeful, conscious scheme to exclude such housing. Particularly with regard to a low- or moderate-income project, the cost of litigating, with respect to any particular project, the legality of a refusal to approve it may well be prohibitive. And the merits of the exclusion of this or that project is not at the heart of the complaint; the claim is that respondents will not approve any project which will provide residences for low- and moderate-income people.
61
When this sort of pattern-and-practice claim is at the heart of the controversy, allegations of past injury, which members of both of these organizations have clearly made, and of a future intent, if the barriers are cleared, again to develop suitable housing for Penfield, should be more than sufficient. The past experiences, if proved at trial, will give credibility and substance to the claim of interest in future building activity in Penfield. These parties, if their allegations are proved, certainly have the requisite personal stake in the outcome of this controversy, and the Court's conclusion otherwise is only a conclusion that this controversy may not be litigated in a federal court.
62
I would reverse the judgment of the Court of Appeals.
1
Plaintiffs claimed to represent, pursuant to Fed.Rule Civ.Proc. 23(b)(2), classes constituting 'all taxpayers of the City of Rochester, all low and moderate income persons residing in the City of Rochester, all black and/or Puerto Rican/Spanish citizens residing in the City of Rochester and all persons employed but excluded from living in the Town of Penfield who are affected or may in the future be affected by the defendants' policies and practices. . . .' App. 9.
2
Id., at 8—9.
3
Plaintiff Harris further described in the complaint as 'a negro person who is denied certain rights by virtue of her race. . . .' App. 5. We find no indication in the record that Harris had either the desire or intent to live in Penfield was suitable housing to become available. Indeed, petitioners now appear to claim standing for Harris only on the ground that she is a taxpayer of Rochester. See Brief for Petitioners 9, 12.
4
According to Ortiz' affidavit, submitted in answer to respondents' motion to dismiss, he was employed in Penfield from 1966 to May 1972. App. 366—367.
5
In fact, however, the complaint nowhere defines the term 'low and moderate income' beyond the parenthetical phrase 'without the capital requirements to purchase real estate.' E.g., id., at 18. In addition to the inadequacy of this definition, the record discloses wide variations in the income, housing needs, and money available for housing among the various 'low and moderate income' plaintiffs. See Part III, infra.
6
App. 25—26.
7
Home Builders also asked the District Court to enjoin the defendants from carrying out threatened retaliation against its members if Home Builders joined this litigation.
8
Id., at 174.
9
See P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart & Wechsler's The Federal Courts and the Federal System 156 (2d ed. 1973).
10
The standing question thus bears close affinity to questions of ripeness—whether the harm asserted has matured sufficiently to warrant judicial intervention—and of mootness-whether the occasion for judicial intervention persists. E.g., Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972); Hall v. Beals, 396 U.S. 45, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969). See Committee Anti-Fascist v. McGrath, 341 U.S. 123, 154—156, 71 S.Ct. 624, 639—640, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring).
11
Cf. Scott, Standing in the Supreme Court—A Functional Analysis, 86 Harv.L.Rev. 645 (1973).
12
A similar standing issue arises when the litigant asserts the rights of third parties defensively, as a bar to judgment against him. E.g., Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953); McGowan v. Maryland, 366 U.S. 420, 429 430, 81 S.Ct. 1101, 1106—1107, 6 L.Ed.2d 393 (1961). In such circumstances, there is no Art. III standing problem; but the prudential question is governed by considerations closely related to the question whether a person in the litigant's position would have a right of action on the claim. See Part IV, infra.
13
Petitioner Ortiz also alleged that as a result of such exclusion he had to incur substantial communting expenses between his residence and his former place of employment in Penfield; and, in supporting affidavits, each petitioner recites at some length the disadvantages of his or her present housing situation and how that situation might be improved were residence in Penfield possible. For purposes of standing, however, it is the exclusion itself that is of critical importance, since exclusion alone would violate the asserted rights quite apart from any objective or subjective disadvantage that may flow from it.
14
In his affidavit submitted in opposition to respondents' motion to dismiss, petitioner Ortiz stated:
'Since my job at that time and continuing until May of 1972 was in the Town of Penfield, I initiated inquiries about renting and/or buying a home in the Town of Penfield. However, because of my income being low or moderate, I found that there were no apartment units large enough to house my family of wife and seven children, nor were there apartment units that were available reasonably priced so that I could even afford to rent the largest apartment unit. I have been reading ads in the Rochester metropolitan newspapers since coming to Rochester in 1966 and during that time and to the present time, I have not located either rental housing or housing to buy in Penfield.' App. 37.
Petitioner Reyes averred that, for some time before locating and purchasing their present residence in Rochester, she and her husband had searched for a suitable residence in suburban communities: '(O)ur investigation for housing included the Rochester bedroom communities of Webster, Irondequoit, Penfield and Perinton. Our search of a period of two years led us to no possible purchase in any of these towns.' Id., at 428. Petitioner Sinkler stated that she had 'searched for alternate housing in the Rochester metropolitan area,' including the Town of Penfield, and has found that 'a black person has no choice of housing . . ..' In particular, 'there are no apartments available in the town of Penfield which a person of my income level can afford.' Id., at 452—453. Petitioner Broadnax said only that she had 'bought newspapers and read ads and walked to look for apartments until I found the place where I now reside. I found that there was virtually no choice of housing in the Rochester area.' Id., at 407.
15
Penfield Better Homes contemplated a series of one- to three-bedroom units and hoped to sell them—at that time—to persons who earned from $5,000 to $8,000 per year. The Penfield Planning Board denied the necessary variance on September 9, 1969, because of incompatibility with the surrounding neighborhood, projected traffic congestion, and problems of severe soil erosion during construction. Id., at 629—633, 849—859, 883—884. O'Brien Homes, Inc., projected 51 buildings, each containing four family units, designed for single people and small families, and capable of being purchased by persons 'of low income and accumulated funds' and 'of moderate income with limited funds for down payment . . ..' Id., at 634. The variance for this project was denied by the Planning Board on October 12, 1971; a revision of the proposal was reconsidered by the Planning Board in April 1972, and, from all indications of record, apparently remains under consideration. The record also indicates the existence of several proposals for 'planned unit developments'; but we are not told whether these projects would allow sale at prices that persons of low or moderate income are likely to be able to afford. There is, more importantly, not the slightest suggestion that they would be adequate, and of sufficiently low cost, to meet these petitioners' needs.
16
Ortiz states in his affidavit that he is now purchasing and resides in a six-bedroom dwelling in Wayland, N.Y.; and that he owns and receives rental income from a house in Rochester. He is concerned with finding a house or apartment large enough for himself, his wife, and seven children, but states that he can afford to spend a maximum of $120 per month for housing. Id., at 370. Broadnax seeks a four-bedroom house or apartment for herself and six children, and can spend a maximum of about $120 per month for housing. Id., at 417—418. Sinkler also states that she can spend $120 per month for housing for herself and two children. Id., at 452—453. Thus, at least in the cases of Ortiz and Broadnax, it is doubtful that their stated needs could have been satisfied by the small housing units contemplated in the only moderate-cost projects specifically described in the record. Moreover, there is no indication that any of the petitioners had the resources necessary to acquire the housing available in the projects. The matter is left entirely obscure. The income and housing budget figures supplied in petitioners' affidavits are presumably for the year 1972. The vague description of the proposed O'Brien development strongly suggests that the units, even if adequate for their needs, would have bee beyond the means at least of Sinkler and Broadnax. See n. 15, supra. The Penfield Better Homes projected price figures were for 1969, and must be assumed—even if subsidies might still be available—to have increased substantially by 1972, when the complaint was filed. Petitioner Reyes presents a special case: she states that her family has an income of over $14,000 per year, that she can afford $231 per month for housing, and that, in the past and apparently now, she wants to purchase a residence. As noted above, see n. 5, supra, the term 'low and moderate income' is nowhere defined in the complaint; but Penfield Better Homes defined the term as between $5,000 and $8,000 per year. See n. 15, supra. Since that project was to be subsidized, presumably petitioner Reyes would have been ineligible. There is no indication that in nonsubsidized projects, removal of the challenged zoning restrictions—in 1972 would have reduced the price on new single-family residences to a level that petitioner Reyes thought she could afford.
17
See, e.g., Park View Heights Corp. v. City of Black Jack, 467 F.2d 1208 (CA8 1972); Crow v. Brown, 457 F.2d 788 (CA5 1972), aff'g 332 F.Supp. 382 (ND Ga.1971); Kennedy Park Homes Assn., v. City of Lackawanna, 436 F.2d 108 (CA2 1970), cert. denied, 401 U.S. 1010, 91 S.Ct. 1256, 28 L.Ed.2d 546 (1971); Dailey v. City of Lawton, 425 F.2d 1037 (CA10 1970). Cf. United Farmworkers of Florida Housing Project, Inc. v. City of Delray Beach, 493 F.2d 799 (CA5 1974).
18
This is not to say that the plaintiff who challenges a zoning ordinance or zoning practices must have a present contractual interest in a particular project. A particularized personal interest may be shown in various ways, which we need not undertake to identify in the abstract. But usually the initial focus should be on a particular project. See, e.g., cases cited in n. 17, supra We also note that zoning laws and their provisions, long considered essential to effective urban planning, are peculiarly within the province of state and local legislative authorities. They are, of course, subject to judicial review in a proper case. But citizens dissatisfied with provisions of such laws need not overlook the availability of the normal democratic process.
19
Cf. United States v. SCRAP, 412 U.S. 669, 688—690, 93 S.Ct. 2405, 2416—2417, 37 L.Ed.2d 254 (1973). But see Roe v. Wade, 410 U.S. 113, 127—129, 93 S.Ct. 705, 714—715, 35 L.Ed.2d 147 (1973).
20
See generally Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale L.J. 599 (1962). Cf. Bigelow v. Virginia, 421 U.S. 809, 815—817, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975).
21
The amicus brief of the Lawyers' Committee for Civil Rights under Law argues, to the contrary, that petitioners' allegations do state colorable claims under the 1968 Act, and that Metro-Act's Penfield members are 'person(s) aggrieved' within the meaning of § 810(a). It is significant, we think, that petitioners nowhere adopt this argument. As we read the complaint, petitioners have not alleged that respondents 'refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, . . . or national origin,' or that they 'discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, . . . or national origin,' 42 U.S.C. § 3604(a) and (b) (emphasis added). Instead, the gravamen of the complaint is that the challenged zoning practices have the purpose and effect of excluding persons of low and moderate income from residing in the town, and that this in turn has the consequence of excluding members of racial or ethnic minority groups. This reading of the complaint is confirmed by petitioners' brief in this Court. Brief for Petitioners 41. We intimate no view as to whether, had the complaint alleged purposeful racial or ethnic discrimination, Metro-Act would have stated a claim under § 804. See Park View Heights Corp. v. City of Black Jack, 467 F.2d 1208 (CA8 1972).
22
Metro-Act does not allege that a contractual or other relationship protected under §§ 1981 and 1982 existed between its Penfield members and any particular person excluded from residing in the town, nor that any such relationship was either punished or disrupted by respondents. See Sullivan v. Little Hunting Park, 396 U.S. 229, 237, 90 S.Ct. 400, 404, 24 L.Ed.2d 386 (1969).
23
If it had been averred that the zoning ordinance or respondents were unlawfully blocking a pending construction project, there would be a further question as to whether Penfield Better Homes had employed available administrative remedies, and whether it should be required to do so before a federal court can intervene.
1
Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968); Data Processing Service v. Camp, 397 U.S. 150, 153, 158, 90 S.Ct. 827, 830, 832, 25 L.Ed.2d 184 (1970); Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 225 n. 15, 94 S.Ct. 2925, 2934, 41 L.Ed.2d 706 (1974). See Barlow v. Collins, 397 U.S. 159, 176, 90 S.Ct. 832, 843, 25 L.Ed.2d 192 (1970) (Opinion of Brennan, J.).
2
Because at least three groups of plaintiffs have, in my view, alleged standing sufficient to require this lawsuit to proceed to discovery and trial, I do not deal in this dissent with the standing of the remaining petitioners.
3
Specifically, petitioner Ortiz claims, among other things, that the Penfield schools offer a much broader curriculum, including vocational education, than the school his children attend, as well as special tutoring and counseling programs not available to his children. Penfield also provides a comprehensive recreational program, while his community offers very little, and a full-time, comprehensive public library, while his community has only limited library services. App. 377—400.
Petitioner Broadnax claimed that if she lived in Penfield, there would be playgrounds for her children, effective police protection, and adequate garbage disposal, all of which are lacking in her present community. Id., at 419. As a result, her children are not safe and there are mice, rats, and roaches in her house. Id., at 416—417, 419.
Petitioner Reyes stated, similarly, that she is currently living with inadequate police protection, id., at 426, and sending her children to inferior schools, id., at 433.
Finally, petitioner Sinkler also said that in her current home, police protection is inadequate, id., at 443, there are no play areas for children, id., at 449, and the schools are totally inadequate. Id., at 454.
These are only summaries of the affidavits, which are quite specific in detailing the inadequacies of petitioners' current communities and the injuries suffered thereby as well as, in Ortiz' affidavit, the services provided by Penfield which would alleviate many of these problems.
4
Petitioner Broadnax said that because of the poor choice of housing available at her income, she was forced to rent an apartment which has 'many leaks in the roof, bad wiring, roach infestation, rat and mice infestation, crumbling house foundation, broken front door, broken hot water heater, etc.' Id., at 410. As a result, aside from the ordinary dangers such conditions obviously present, one son's asthma condition has been exacerbated. Id., at 413.
Petitioner Sinkler stated that, again because only housing in Rochester central city is available to moderate-income, minority people, she is living in a seventh-floor apartment with exposed radiator pipes, no elevator, and no screens, and violence, theft, and sexual attacks are frequent. Id., at 441—446.
Once again, the above are short summaries of long, detailed accounts of the harms suffered.
5
This case is quite different from Linda R.S. v. Richard D. In Linda R.S., the problem was that even if everything alleged were proved, it was still quite possible that petitioner's husband would not be prosecuted for nonsupport, or that, if prosecuted, he would still not contribute to his children's support. Nothing which could be proved at trial could possibly show otherwise. Here, if these petitioners prove what they have alleged, they will have shown that respondents' actions did cause their injury.
6
There is some suggestion made in the briefs that, by virtue of the inclusion in the record of affidavits and documents, the motion to dismiss was, under Fed.Rule Civ.Proc. 12(b), converted into a Rule 56 motion for summary judgment. In terms, the portion of Rule 12(b) concerning conversion to a Rule 56 motion applies only to a motion to dismiss for failure to state a cause of action, and not to a motion to dismiss for other reasons. At any rate, respondents filed no counter-affidavits proper under Rule 56(e), so, that even if Rule 56 were applied, respondents have not at this stage disproved the allegations.
7
The Court, glancing at the projects mentioned in the record which might have been built but for the exclusionary practices alleged, concludes that petitioners Ortiz and Broadnax earned too little to afford suitable housing in them, and that petitioner Reyes earned to much. Ante, at 506-507, n. 16. As the Court implicitly acknowledges, petitioner Sinkler at least may well have been able to live in the Better Homes Project. Further, there appears in the record as it stands a report of the Penfield Housing Task Force on Moderate Income Housing, App. 487—581, prepared for the Pen-
field Town Board itself, which defines 'moderate income families as families having incomes between $5,500 and $11,000 per year, depending on the size of the family,' id., at 492, and moderate-income housing as housing 'priced below $20,000 or (carrying) a rental price of less than $150 a month,' id., at 493. See also, with respect to 'low income,' id., at 527. Thus, while the Court might not know what was meant by 'low' and 'moderate' income housing, ante, at 494-495, n. 5, and 506-507, n. 16, respondents clearly did. The petitioners here under discussion fell within the Board's own definition of moderate-income families, except for petitioner Reyes, who alleges that she could afford a house for $20,000 but not more. App. 428. And the Task Force Report does set out, id., at 503—516, changes in the zoning ordinance and its application which could result in housing which moderate-income people could afford, even to the extent of setting out a budget provided by a builder for a house costing $18,900, id., at 507. The causation theory which the Court finds improbable, then, was adopted by a task force of the Town Board itself. Of course, we do not know at this stage whether the particular named plaintiffs would certainly have benefited from the changes recommended by the task force, but at least there is a good chance that, after discovery and trial, they could show they would.
| 89
|
422 U.S. 454
95 S.Ct. 2178
45 L.Ed.2d 319
James R. MUNIZ et al., Petitioners,v.Roy O. HOFFMAN, Director, Region 20, National Labor Relations Board.
No. 73—1924.
Argued March 24, 1975.
Decided June 25, 1975.
Syllabus
After their request for a jury trial was denied, petitioners, a labor union officer and the union, were adjudged guilty of criminal contempt for violating temporary injunctions issued by the District Court pursuant to § 10(l) of the National Labor Relations Act (NLRA) against picketing of an employer pending the National Labor Relations Board's final disposition of the employer's unfair labor practice charge against such picketing. The District Court suspended sentencing of the officer and placed him on probation, but imposed a $10,000 fine on the union. On appeal the Court of Appeals rejected petitioners' claims that they had a statutory right to a jury trial under 18 U.S.C. § 3692, which provides for jury trial in contempt cases arising under any federal law governing the issuance of injunctions 'in any case' growing out of a labor dispute, and that they also had a right to a jury trial under the Constitution (the latter question being limited in this Court to whether the union had such a constitutional right). Held:
1. Petitioners are not entitled to a jury trial under 18 U.S.C. § 3692. Pp. 458-474.
(a) It is clear from § 10(l) of the NLRA, as added by the Labor Management Relations Act (LMRA), and related sections, particularly § 10(h)(which provides that the courts' jurisdiction to grant temporary injunctive relief or to enforce or set aside an NLRB unfair practice order shall not be limited by the Norris-LaGuardia Act), and from the legislative history of such sections, that Congress not only intended to exempt injunctions authorized by the NLRA and the LMRA from the Norris-LaGuardia Act's limitations, including original § 11 of the latter Act (now repealed) requiring jury trials in contempt actions arising out of that Act, but also intended that civil and criminal contempt proceedings enforcing those injunctions were not to afford contemnors the right to a jury trial. By providing for labor Act injunctions outside the Norris-LaGuardia Act's framework, Congress necessarily contemplated that there would be no right to a jury trial in such contempt proceedings. Pp. 458-467.
(b) Absent an express provision or any indication in the Reviser's Note to 18 U.S.C. § 3692 that a substantive change in the law was contemplated, no intention on Congress' part to change its original intention that there be no jury trials in contempt proceedings arising out of NLRA injunctions, is shown by the fact that § 11 of the Norris-LaGuardia Act was repealed and replaced by § 3692 as part of the 1948 revision of the Criminal Code. Just as § 3692 may not be read apart from other relevant provisions of the labor law, that section likewise may not be read isolated from its legislative history and the revision process from which it emerged, all of which place definite limitations on this Court's latitude in construing it. Pp. 467-474.
2. Nor does petitioner union have a right to a jury trial under Art. III, § 2, of the Constitution, and the Sixth Amendment. Despite 18 U.S.C. § 1(3), which defines petty offenses as those crimes 'the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $500, or both,' a contempt need not be considered a serious crime under all circumstances where the punishment is a fine of more than $500, unaccompanied by imprisonment. Here, where it appears that petitioner union collects dues from some 13,000 persons, the $10,000 fine imposed was not of such magnitude that the union was deprived of whatever right to a jury trial it might have under the Sixth Amendment. Pp. 475-477.
9 Cir., 492 F.2d 929, affirmed.
Victor J. Van Bourg, San Francisco, Cal., for petitioners.
Sol. Gen., Robert H. Bork, for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
The issues in this case are whether a labor union or an individual, when charged with criminal contempt for violating an injunction issued pursuant to § 10(l) of the Labor Management Relations Act, as added, 61 Stat. 149, and as amended, 29 U.S.C. § 160(l), has a right to a jury trial under 18 U.S.C. § 3692, and whether the union has a right to a jury trial under the Constitution when charged with such a violation and a fine of as much as $10,000 is to be imposed.
2
* Early in 1970, Local 21 of the San Francisco Typographical Union commenced picketing a publishing plant of a daily newspaper in San Rafael, Cal. Shortly thereafter, the newspaper filed an unfair labor practice charge against this union activity, and the Regional Director of the National Labor Relations Board, in response to that filing, petitioned the District Court pursuant to § 10(l) for a temporary injunction against those activities pending final disposition of the charge by the Board. The District Court, after a hearing, granted the requested relief and, more than two months later, granted a second petition for a temporary injunction filed by the Regional Director in response to other union activities related to the original dispute. On June 24, 1970, Local 21 and certain of its officials were found to be in civil contempt of the latter injunction. After the entry of this contempt order, the tempo of illegal activities in violation of both injunctions increased, with other locals, including Local 70, participating. Various unions and their officers, including petitioners, were subsequently ordered to show cause why they should not be held in civil and criminal contempt of the injunctions. After proceedings in the criminal contempt case had been severed from the civil contempt proceedings, petitioners demanded a jury trial in the criminal case; this request was denied and petitioners were adjudged guilty of criminal contempt after appropriate proceedings. The District Court suspended the sentencing of petitioner Muniz and placed him on probation for one year; the court imposed a fine on petitioner Local 70 which, for purposes of this case, was $10,000.1 On appeal of that judgment to the Court of Appeals, petitioners argued, inter alia, that they had a statutory right to a jury trial of any disputed issues of fact, relying on 18 U.S.C. § 3692;2 petitioners also argued that they had a right to a jury trial under Art. III, § 2, of the Constitution, and the Sixth Amendment. The Court of Appeals rejected these and other claims made by petitioners, 492 F.2d 929 (CA9 1974), who then petitioned this Court for a writ of certiorari. The writ was granted, 419 U.S. 992, 95 S.Ct. 302, 42 L.Ed.2d 264 (1974), limited to the questions whether petitioners had a statutory right to a jury trial and whether petitioner Local 70 had a constitutional right to jury trial in this case.
II
3
The petitioners' claim to jury trial under § 3692 is simply stated: that section provides for jury trial in contempt cases arising under any federal law governing the issuance of injunctions in any case growing out of a labor dispute; here, the injunction issued under § 10(l) arose out of a labor dispute in the most classic sense and hence contempt proceedings were subject to § 3692's requirement for jury trial. Were we to consider only the language of § 3692, we might be hard pressed to disagree. But it is not unusual that exceptions to the applicability of a statute's otherwise all-inclusive language are not contained in the enactment itself but are found in another statute dealing with particular situations to which the first statute might otherwise apply.3 Tidewater Oil Co. v. United States, 409 U.S. 151, 93 S.Ct. 408, 34 L.Ed.2d 375 (1972); MacEvoy Co. v. United States, ex rel. Tomkins Co., 322 U.S. 102, 64 S.Ct. 890, 88 L.Ed. 1163 (1944). The Norris-LaGuardia Act, 47 Stat. 70, as amended, 29 U.S.C. § 101 et seq., for example, categorically withdraws jurisdiction from the United States courts to issue any injunctions against certain conduct arising out of labor disputes and permits other injunctions in labor disputes only if certain procedural formalities are satisfied. It contains no exceptions with respect to injunctions in those labor disputes dealt with by the Wagner Act, passed in 1935, or by the Taft-Hartley Act passed in 1947. Yet those Acts expressly or impliedly, Boys Markets, Inc. v . Retail Clerk's Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), authorized various kinds of injunctions in labor dispute cases and expressly or impliedly exempted those injunctions from the jurisdictional and procedural limitations of Norris-LaGuardia to the extent necessary to effectuate the provisions of those Acts.
4
The crucial issue is whether in enacting the Wagner and Taft-Hartley Acts, Congress not only intended to exempt the injunctions they authorized from Norris-LaGuardia's limitations, but also intended that civil and criminal contempt proceedings enforcing those injunctions were not to afford contemnors the right to a jury trial. Surely, if § 10(l) of Taft-Hartley had expressly provided that contempt proceedings arising from the injunctions which the section authorized would not be subject to jury trial requirements, it would be as difficult to argue that § 3692 nevertheless requires a jury trial as it would be to insist that Norris-LaGuardia bars the issuance of any injunctions in the first place. Section 10(l), of course, does not so provide; we think it reasonably clear from that and related sections and from their legislative history that this result is precisely what Congress intended.
5
The Wagner Act made employers subject to court orders enforcing Board cease-and-desist orders. Those orders, or many of them, were of the kind Norris-LaGuardia, on its face, prohibited; but § 10(h) of the Wagner Act provided that in 'granting appropriate temporary relief or a restraining order, or . . . enforcing . . . or setting aside . . . an order of the Board, . . . the jurisdiction of courts sitting in equity shall not be limited by' 29 U.S.C. §§ 101—115. In 1947, in passing the Taft-Hartley Act as part of the Labor Management Relations Act, Congress provided for unfair labor practice proceedings against unions; and § 10(j) gave jurisdiction to the courts to issue injunctions in unfair labor practice proceedings, whether against unions or management, pending final disposition by the Board. Section 10(l) made special provision for interim injunctions 'notwithstanding any other provision of law' in particular kinds of unfair labor practice proceedings against unions. Section 10(h) was retained in its original form.
6
No party in this case suggests that the injunctions authorized by Congress in 1935 and 1947 were subject to the jurisdictional and procedural limitations of Norris-LaGuardia. Neither can it be seriously argued that, at the time of enactment of the Wagner and Taft-Hartley Acts, civil or criminal contempt charges arising from violations of injunctions authorized by those statutes were to be tried to a jury. The historic rule at the time was that, absent contrary provision by rule or statute, jury trial was not required in the case of either civil or criminal contempt. See Green v. United States, 356 U.S. 165, 183, 189, 78 S.Ct. 632, 643, 646, 2 L.Ed.2d 672 (1958). Section 11 of Norris-LaGuardia, 29 U.S.C. § 111 (1946 ed.),4 required jury trials in contempt actions arising out of labor disputes. But § 11 was among those sections which § 10(h) expressly provided would not limit the power of federal courts to enforce Board orders. Moreover, § 11 was limited by its own terms and by judicial decision to cases 'arising under' the Norris-LaGuardia Act. United States v. Mine Workers, 330 U.S. 258, 298, 67 S.Ct. 677, 698, 91 L.Ed. 884 (1947). Injunctions issued pursuant to either the Wagner Act or Taft-Hartley Act were not issued 'under,' but in spite of Norris-LaGuardia;5 and contempt actions charging violations of those injunctions were not 'cases arising under' Norris-LaGuardia. Section 11 of Norris-LaGuardia was thus on its face inapplicable to injunctions authorized by the Wagner and Taft-Hatley Acts; petitioners do not contend otherwise. They say: 'From the effective date of Taft-Hartley in late summer, 1947, until June 28, 1948, the effective date of the new § 3692, an alleged contemnor of a Taft-Hartley injunction would probably have been denied the jury trial guaranteed by § 11 of Norris-LaGuardia, because the injunction would not have been one arising under Norris-LaGuardia itself.' Brief for Petitioners 41.
7
It would be difficult to contend otherwise. It seems beyond doubt that since 1935 it had been understood that the injunctions and enforcement orders referred to in § 10(h) were not subject to the jury requirements of § 11 of Norris-LaGuardia. When Congress subjected labor unions to unfair labor practice proceedings in 1947, and in §§ 10(j) and 10(l) provided for interim injunctive relief from the courts pending Board decision in unfair labor practice cases, it was equally plain that § 11 by its own terms would not apply to contempt cases arising out of these injunctions. By providing for labor Act injunctions outside the framework of Norris-LaGuardia, Congress necessarily contemplated that there would be no right to jury trial in contempt cases.
8
That this was the congressional understanding is revealed by the legislative history of the Labor Management Relations Act.6 The House Managers' statement in explanation of the House Conference Report on Taft-Hartley stated:
9
'Sections 10(g), (h), and (i) of the present act, concerning the effect upon the Board's orders of enforcement and review proceedings, making inapplicable the provisions of the Norris-LaGuardia Act in proceedings before the courts, were unchanged either by the House bill or by the Senate amendment, and are carried into the conference agreement.' H.R.Conf.Ref. No. 510, 80th Cong., 1st Sess., 57 (1947), U.S.Code Cong.Serv. 1947, p. 1163 (emphasis added).7
10
Such also was the understanding of Senator Ball, unchallenged on this point by his colleagues on the floor of the Senate during the debate on Taft-Hartley. Senator Ball stated:
11
'(T)he . . . Norris-LaGuardia Act is completely suspended . . . in the current National Labor Relations Act whenever the Board goes into court to obtain an enforcement order for one of its decisions. Organized labor did not object to the suspension of the Norris-LaGuardia Act in that case, I suppose presumably because under the present act the only ones to whom it could apply are employers. Organized labor was perfectly willing to have the Norris-LaGuardia Act completely wiped off the books when it came to enforcing Board orders in labor disputes against employers.' 93 Cong.Rec. 4835 (1947).
12
This statement was made in the context of Senator Ball's explanation of his proposed amendment to § 10(l) as reported out of committee. That section provided generally that the Board would be required, under certain circumstances, to seek injunctive relief in the federal courts against secondary boycotts and jurisdictional strikes 'notwithstanding any other provision of law . . ..' Senator Ball's proposed amendment would have had two effects; first, it would have permitted private parties, in addition to the Board, to seek injunctive relief against the identical practices directly in the District Court; and, second, the amendment would have left in effect for such proceedings the provisions of §§ 11 and 12 of the Norris-LaGuardia Act, giving defendants in such proceedings the right to a jury trial. As Senator Ball stated:
13
'(W)hen the regional attorney of the NLRB seeks an injunction (pursuant to § 10(l) as reported) the Norris-LaGuardia Act is completely suspended. . . . We do not go quite that far in our amendment. We simply provide that the Norris-LaGuardia Act shall not apply, with certain exceptions. We leave in effect the provisions of sections 11 and 12. Those are the sections which give an individual charged with contempt of court the right to a jury trial.' 93 Cong.Rec. 4834 (1947).
14
The Ball amendment was defeated, and private injunctive actions were not authorized. But the provisions for Board injunctions were retained and the necessity for them explained in the Senate Report:
15
'Time is usually of the essence in these matters, and consequently the relatively slow procedure of Board hearing and order, followed many months later by an enforcing decree of the circuit court of appeals, falls short of achieving the desired objectives—the prompt elimination of the obstructions to the free flow of commerce and encouragement of the practice and procedure of free and private collective bargaining. Hence we have provided that the Board, acting in the public interest and not in vindication of purely private rights, may seek injunctive relief in the case of all types of unfair labor practices and that it shall also seek such relief in the case of strikes and boycotts defined as unfair labor practices.' S.Rep. No. 105, 80th Cong., 1st Sess., 8 (1947) (emphasis added).
III
16
It is argued, however, that whatever the intention of Congress might have been with respect to jury trial in contempt actions arising out of Taft-Hartley injunctions, all this was changed when § 11 was repealed and replaced by 18 U.S.C. § 3692 as part of the 1948 revision of the Criminal Code, in the course of which some sections formerly in Title 18 were revised and some related provisions in other titles were recodified in Title 18. The new § 3692, it is insisted, required jury trials for contempt charges arising out of any injunctive order issued under the Labor Management Relations Act if a labor dispute of any kind was involved. Thenceforward, it is claimed, contempt proceedings for violations by unions or employers of enforcement orders issued by courts of appeals or of injunctions issued under § 10(j) or § 10(l) must provide the alleged contemnor a jury trial.
17
This argument is unpersuasive. Not a word was said in connection with recodifying § 11 as § 3692 of the Criminal Code that would suggest any such important change in the settled intention of Congress, when it enacted the Wagner and Taft-Hartley Acts, that there would be no jury trials in contempt proceedings arising out of labor Act injunctions. Injunctions authorized by the Labor Management Relations Act were limited to those sought by the Board, 'acting in the public interest and not in vindication of purely private rights.' S.Rep. No. 105, 80th Cong., 1st Sess., 8 (1947). We cannot accept the proposition that Congress, without expressly so providing, intended in § 3692 to change the rules for enforcing injunctions which the Labor Management Relations Act authorized the Labor Board, an agency of the United States, to seek in a United States court. Cf. United States v. Mine Workers, 330 U.S., at 269—276, 67 S.Ct., at 684—688.8
18
Just as § 3692 may not be read apart from other relevant provisions of the labor law, that section likewise may not be read isolated from its legislative history and the revision process from which it emerged, all of which place definite limitations on the latitude we have in construing it. The revision of the Criminal Code was, as petitioners suggest, a massive undertaking, but, as the Senate Report on that legislation made clear, '(t)he original intent of Congress is preserved.' S.Rep. No. 1620, 80th Cong., 2d Sess., 1 (1948). Nor is it arguable that there was any intent in the House to work a change in the understood applicability of § 11 in enacting § 3692. The House Report stated that '(r)evision, as distinguished from codification, meant the substitution of plain language for awkward terms, reconciliation of conflicting laws, omission of superseded sections, and consolidation of similar provisions.' H.R.Rep. No. 304, 80th Cong., 1st Sess., 2 (1947). Revisions in the law were carefully explained9 in a series of Reviser's Notes printed in the House Report. Id., at A1 et seq. But the Riviser's Note to § 3692 indicates no change of substance in the law:
19
'Based on section 111 of title 29, U.S.C., 1940 ed., Labor (Mar. 23, 1932, ch. 90, § 11, 47 Stat. 72).
20
'The phrase 'or the District of Columbia arising under the laws of the United States governing the issuance of injunctions or restraining orders in any case involving or growing out of a labor dispute' was inserted and the reference to specific sections of the Norris-LaGuardia Act (sections 101—115 of title 29, U.S.C., 1940 ed.) were eliminated.' H.R.Rep. No. 304, supra, at A176; 18 U.S.C., pp. 4442—4443.
21
It has long been a 'familiar rule that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of its makers.' Holy Trinity Church v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 512, 36 L.Ed. 226 (1892). Whatever may be said with regard to the application of this rule in other contexts, this Court has stated unequivocally that the principle embedded in the rule 'has particular application in the construction of labor legislation . . ..' National Woodwork Mfrs. Assn. v. NRLB, 386 U.S. 612, 619, 87 S.Ct. 1250, 1255, 18 L.Ed.2d 357 (1967). Moreover, we are construing a statute of Congress which, like its predecessor, created an exception to the historic rule that there was no right to a jury trial in contempt proceedings. To read a substantial change in accepted practice into a revision of the Criminal Code without any support in the legislative history of that revision is insupportable. As this Court said in United States v. Ryder, 110 U.S. 729, 740, 4 S.Ct. 196, 201, 28 L.Ed. 308 (1884): 'It will not be inferred that the legislature, in revising and consolidating the laws, intended to change their policy, unless such an intention be clearly expressed.'
22
The general rule announced in Ryder was applied by this Court in Fourco Glass Co. v. Transmirra Corp., 353 U.S. 222, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957). In that case, the question was whether venue in patent infringement actions was to be governed by 28 U.S.C. § 1400(b), a discrete provision dealing with venue in patent infringement actions, or 28 U.S.C. § 1391(c), a general provision, dealing with venue in actions brought against corporations. Both of these provisions underwent some change in wording in the 1948 revision of the Judicial Code.10 The respondents in that case, arguing in favor of the applicability of the general venue provision, § 1391(c), took the position that the plain language of § 1391(c) was 'clear and unambiguous and that its terms include all actions . . ..' 353 U.S., at 228, 77 S.Ct., at 791. This Court, stating that the respondents' argument 'merely points up the question and does nothing to answer it,' ibid., determined that the general provision, § 1391(c), had to be read in a fashion consistent with the more particular provision, § 1400(b). The respondents contended, however, that the predecessor of § 1400(b), which this Court had held to govern venue irrespective of a general revenue provision, Stonite Products Co. v. Melvin Lloyd Co., 315 U.S. 561, 62 S.Ct. 780, 86 L.Ed. 1026 (1942), had undergone a substantive change during the revision of the Judicial Code in 1948 which effectively reversed the result dictated by Stonite.
23
The Court rejected this argument in terms acutely relevant to this case. '(N) o changes of law or policy,' the Court said, 'are to be presumed from changes of language in the revision unless an intent to make such changes is clearly expressed.' 353 U.S., at 227, 77 S.Ct., at 790. Furthermore, a change in the language of a statute itself was not enough to establish an intent to effect a substantive change, for 'every change made in the text is explained in detail in the Revisers' Notes,' id., at 226, 77 S.Ct., at 790, and the Notes failed to express any substantive change. The Court relied on the Senate and House Reports on the 1948 revision to support this position, id., at 226 nn. 6 and 7, 77 S.Ct., at 790; the language quoted by the Court from the House Report is virtually identical to that which appears in the House Report of the 1948 revision of the Criminal Code, see n. 9, supra. In view of the express disavowals in the House and Senate Reports on the revisions of both the Criminal Code, see supra, 468-469, and the Judicial Code, see n. 10, supra, it would seem difficult at best to argue that a change in the substantive law could nevertheless be effected by a change in the language of a statute without any indication in the Revisers' Note of that change. It is not tenable to argue that the Revisers' Note to § 3692, although it explained in detail what words were deleted from and added to what had been § 11 of the Norris-LaGuardia Act, simply did not bother to explain at all, much less in detail, that an admittedly substantial right was being conferred on potential contemnors that had been rejected in the defeat of the Ball amendment the previous year and that, historically, contemnors had never enjoyed.11
24
In Tidewater Oil Co. v. United States, 409 U.S. 151, 93 S.Ct. 408, 34 L.Ed.2d 375 (1972), the Court applied the rule that revisions contained in the 1948 Judicial Code should be construed by reference to the Reviser's Notes. The question was whether a change in the language of 28 U.S.C. § 1292(a)(1), made in the 1948 revision of the Judicial Code, had modified a longstanding policy under § 2 of the Expediting Act of 1903, 32 Stat. 823, as amended, 15 U.S.C. § 29, providing generally that this Court should have exclusive appellate jurisdiction over civil antitrust actions brought by the Government. Section 1292(a)(1), as revised, was susceptible of two constructions, one of which would have resulted in a change in that policy. After emphasizing that 'the function of the Revisers of the 1948 Code was generally limited to that of consolidation and codification,' we invoked the 'well-established principle governing the interpretation of provisions altered in the 1948 revision . . . that 'no change is to be presumed unless clearly expressed." 409 U.S., at 162, 93 S.Ct., at 415, quoting Fourco Glass Co. v. Transmirra Corp., 353 U.S., at 228, 77 S.Ct., at 791. After going to the committee reports, the Court went to the Reviser's Notes and, in the Note to § 1292(a)(1), found no affirmative indication of a substantive change. On this basis, the Court refused to give § 1292(a)(1) as revised the 'plausible' construction urged by respondents there.
25
In this case, involving the 1948 revision of the Criminal Code, the House and Senate Reports caution repeatedly against reading substantive changes into the revision, and the Reviser's Note to § 3692 gives absolutely no indication that a substantive change in the law was contemplated. In these circumstances, our cases and the canon of statutory construction which Congress expected would be applied to the revisions of both the Criminal and Judicial Codes, require us to conclude, along with all the lower federal courts having considered this question since 1948, save one, that § 3692 does not provide for trial by jury in contempt proceedings brought to enforce an injunction issued at the behest of the Board in a labor dispute arising under the Labor Management Relations Act.12
IV
26
We also agree with the Court of Appeals that the union petitioner had no right to a jury trial under Art. III, § 2, and the Sixth Amendment. Green v. United States, 356 U.S. 165, 78 S.Ct. 632, 2 L.Ed.2d 672 (1958), reaffirmed the historic rule that state and federal courts have the constitutional power to punish any criminal contempt without a jury trial. United States v. Barnett, 376 U.S. 681, 84 S.Ct. 984, 12 L.Ed.2d 23 (1964), and Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966), presaged a change in this rule. The constitutional doctrine which emerged from later decisions such as Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968); Frank v. United States, 395 U.S. 147, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969); Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970); Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974), and Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974), may be capsuled as follows: (1) Like other minor crimes, 'petty' contempts may be tried without a jury, but contemnors in serious contempt cases in the federal system have a Sixth Amendment right to a jury trial; (2) criminal contempt, in and of itself and without regard to the punishment imposed, is not a serious offense absent legislative declaration to the contrary; (3) lacking legislative authorization of more serious punishment, a sentence of as much as six months in prison, plus normal periods of probation, may be imposed without a jury trial; (4) but imprisonment for longer than six months is constitutionally impermissible unless the contemnor has been given the opportunity for a jury trial.
27
This Court has as yet not addressed the question whether and in what circumstances, if at all, the imposition of a fine for criminal contempt, unaccompanied by imprisonment, may require a jury trial if demanded by the defendant. This case presents the question whether a fine of $10,000 against an unincorporated labor union found guilty of criminal contempt may be imposed after denying the union's claim that it was entitled to a jury trial under the Sixth Amendment. Local 70 insists that where a fine of this magnitude is imposed, a contempt cannot be considered a petty offense within the meaning of 18 U.S.C. § 1(3), and that its demand for a jury trial was therefore erroneously denied.
28
We cannot agree. In determining the boundary between petty and serious contempts for pourposes of applying the Sixth Amendment's jury trial guarantee, and in holding that a punishment of more than six months in prison could not be ordered without making a jury trial available to the defendant, the Court has referred to the relevant rules and practices followed by the federal and state regimes, including the definition of petty offenses under 18 U.S.C. § 1(3). Under that section, petty offenses are defined as those crimes 'the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $500, or both.' But in referring to that definition, the Court accorded it no talismanic significance; and we cannot accept the proposition that a contempt must be considered a serious crime under all circumstances where the punishment is a fine of more than $500, unaccompanied by imprisonment. It is one thing to hold that deprivation of an individual's liberty beyond a six-month term should not be imposed without the protections of a jury trial, but it is quite another to suggest that, regardless of the circumstances, a jury is required where any fine greater than $500 is contemplated. From the standpoint of determining the seriousness of the risk and the extent of the possible deprivation faced by a contemnor, imprisonment and fines are intrinsically different. It is not difficult to grasp the proposition that six months in jail is a serious matter for any individual, but it is not tenable to argue that the possibility of a $501 fine would be considered a serious risk to a large corporation or labor union. Indeed, although we do not reach or decide the issue tendered by the respondent—that there is no constitutional right to a jury trial in any criminal contempt case where only a fine is imposed on a corporation or labor union. Brief for Respondent 36—we cannot say that the fine of $10,000 imposed on Local 70 in this case was a deprivation of such magnitude that a jury should have been interposed to guard against bias or mistake. This union, the respondent suggests, collects dues from some 13,000 persons; and although the fine is not insubstantial, it is not of such magnitude that the union was deprived of whatever right to jury trial it might have under the Sixth Amendment. We thus affirm the judgment of the Court of Appeals.
29
Affirmed.
30
Mr. Justice DOUGLAS, dissenting.
31
* I believe that petitioners are entitled to trial by jury under 18 U.S.C. § 3692, which provides that, with certain exceptions not here material:
32
'In all cases of contempt arising under the laws of the United States governing the issuance of injunctions or restraining orders in any case involving or gowing out of a labor dispute, the accused shall enjoy the right to a speedy and public trial by an impartial jury . . ..'
33
In enacting this language in 1948, Congress reaffirmed the purpose originally expressed in § 11 of the Norris-LaGuardia Act, 47 Stat. 72, 29 U.S.C. § 111 (1946 ed.). That Act was intended to shield the organized labor movement from the intervention of a federal judiciary perceived by some as hostile to labor. The Act severely constrained the power of a federal court to issue an injunction against any person 'participating or interested in a labor dispute.' Section 11 provided for trial by jury in 'all cases arising under this Act in which a person shall be charged with contempt.' In the context of the case now before us, I view this section as affording, at the very least, a jury trial in any criminal contempt proceeding involving an alleged violation of an injunction issued against a participant in a 'labor dispute.' Any such injunction issued by a federal court was one 'arising under' the Act, for it could have been issued only in accordance with the Act's prescriptions.1 The evident congressional intent was to provide for the interposition of a jury when disobedience of such an injunction was alleged.2
34
For the reasons stated by Mr. Justice STEWART, post, at 485-486, I am persuaded that §§ 10(h) and 10(l) of the National Labor Relations Act made inapplicable only the anti-injunction provisions of the Norris-LaGuardia Act and did not disturb § 11. The broad mandate of § 11, to afford trial by jury in a contempt proceeding involving an injunction issued in a labor dispute, was thus continued in § 3692.3 See Green v. United States, 356 U.S. 165, 217, 78 S.Ct. 632, 660, 2 L.Ed.2d 672 (1958) (black, J., dissenting).
II
35
I would reverse the judgment against Local 70 on constitutional grounds.4 Article III, § 2, of the Constitution provides that '(t)he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury . . ..' And the Sixth Amendment provides in pertinent part:
36
'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . ..' (Emphasis added.)
37
The Court fails to give effect to this language when it declares that a $10,000 fine is not 'of such magnitude that a jury should have been interposed to guard against bias or mistake.' Ante, at 477. I have previously protested this Court's refusal to recognize a right to jury trial in cases where it deems an offense to be 'petty.'5 But even the 'petty offense' exception cannot justify today's result, for it is impossible fairly to characterize either the offense or its penalty as 'petty.'6 Disobedience of an injunction obtained by the Board is hardly a transgression trivial by its nature; and the imposition of a $10,000 fine is not a matter most locals would take lightly. In any event, the Constitution deprives us of the power to grant or whthhold trial by jury depending upon our assessment of the substantiality of the penalty. To the argument that the Framers could not have intended to provide trial by jury in cases involving only 'small' fines and imprisonment, the response of Justices McReynolds and Butler in District of Columbia v. Clawans, 300 U.S. 617, 633—634, 57 S.Ct. 660, 666, 81 L.Ed. 843 (1937) (separate opinion), is apt:
38
'In a suit at common law to recover above $20, a jury trial is assured. And to us, it seems improbable that while providing for this protection in such a trifling matter the framers of the Constitution intended that it might be denied where imprisonment for a considerable time or liability for fifteen times $20 confronts the accused.'
39
I would follow the clear command of Art. III and the Sixth Amendment and reverse the judgment as to Local 70.
40
Mr. Justice STEWART, with whom Mr. Justice MARSHALL and Mr. Justice POWELL join, dissenting.
41
In 1948 Congress repealed § 11 of the Norris-LaGuardia Act, 47 Stat. 72, 29 U.S.C. § 111 (1946 ed.), which provided a right to a jury trial in cases of contempt arising under that Act, and added § 3692 to Title 18 of the United States Code, broadly guaranteeing a jury trial '(i)n all cases of contempt arising under the laws of the United States governing the issuance of injunctions or restraining orders in any case involving or growing out of a labor dispute.' I cannot agree with the Court's conclusion that this congressional action was without any significance and that § 3692 does not apply to any contempt proceedings involving injunctions that may be issued pursuant to the National Labor Relations Act, 49 Stat. 449, as amended, 29 U.S.C. § 151 et seq. Accordingly, I would reverse the judgment before us.
42
The contempt proceedings in the present case arose out of a dispute between Local 21 of the International Typographical Union and the San Rafael Independent Journal. Local 21 represents the Independent Journal's composing room employees. Following expiration of the old collective-bargaining agreement between Local 21 and the Independent Journal, negotiations for a new agreement reached an impasse. As a result, Local 21 instituted strike action against the Independent Journal. See San Francisco Typographical Union No. 21, 188 N.L.R.B. 673, enforced, 465 F.2d 53 (CA9). The primary strike escalated into illegal secondary boycott activity, in which four other unions, including the petitioner Local 70, participated. The National Labor Relations Board, through its Regional Director, obtained an injunction pursuant to § 10(l) of the National Labor Relations Act, as added, 61 Stat. 149, and as amended, 29 U.S.C. § 160(l), to bring a halt to that secondary activity. When the proscribed secondary conduct continued, apparently in willful disobedience of the § 10(l) injunction, criminal contempt, proceedings were instituted. See ante, at 2180.
43
Section 3692 unambiguously guarantees a right to a jury trial in such criminal contempt proceedings. The section provides in pertinent part:
44
'In all cases of contempt arising under the laws of the United States governing the issuance of injunctions or restraining orders in any case involving or growing out of a labor dispute, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the contempt shall have been committed.'
45
Section 3692 thus expressly applies to more than just those cases of contempt arising under the Norris-LaGuardia Act. By its own terms the section encompasses all cases of contempt arising under any of the several laws of the United States governing the issuance of injunctions in cases of a 'labor dispute.' Section 10(l) of the National Labor Relations Act, which authorized the injunction issued by the District Court, is, in the context of this case, most assuredly one of those laws.
46
Section 10(l) requires the Board's regional official to petition the appropriate district court for injunctive relief pending final Board adjudication when he has 'reasonable cause' to believe that a labor organization or its agents have engaged in certain specified unfair labor practices.1 Although not all unfair labor practices potentially subject to § 10(l) injunctions need arise out of a 'labor dispute,' both the primary strike and the secondary activity in this case concerned the 'terms or conditions of employment' of Local 21 members. Thus, the injunction and subsequent contempt proceedings clearly involved a 'labor dispute' as that term is defined in the Norris-LaGuardia Act and the National Labor Relations Act.2 Accordingly, § 10(l) is here a law governing the issuance of an injunction in a case growing out of a labor dispute, and the criminal contempt proceedings against the petitioners clearly come within the explicit reach of § 3692.3
47
There is nothing in the rather meager legislative history of § 3692 to indicate that, despite the comprehensive language of the section, Congress intended that it was to apply only to injunctions covered by the Norris-LaGuardia Act. The revisers did not say that § 3692 was intended to be merely a recodification of § 11 of the Norris-LaGuardia Act.4 Rather, the revisers said that the section was 'based on' § 11 and then noted without additional comment the change in language from reference to specific sections of Norris-LaGuardia to the more inclusive 'laws of the United States . . ..' H.R.Rep. No. 304, 80th Cong., 1st Sess., A176. In contrast, although the recodification of 18 U.S.C. § 402, dealing with contempts constituting crimes, was also 'based on' prior law, the revisers specifically noted that '(i)n transferring these sections to this title and in consolidating them numerous changes of phraseology were necessary which do not, however, change their meaning or substance.' H.R.Rep. No. 304, supra, at A30; 18 U.S.C. p. 4192. The brief legislative history of § 3692 is, accordingly, completely consistent with the plain meaning of the words of that section.
48
Nothing in § 10(l), or in any other provision of the National Labor Relations Act, requires that § 3692 be given any different meaning in cases involving injunctions issued pursuant to the Act. To be sure, § 10(l) provides that, upon the filing of a Board petition for a temporary injunction, 'the district court shall have jurisdiction to grant such injunctive relief or temporary restraining order as it deems just and proper, notwithstanding any other provision of law . . ..' But requiring a jury trial prior to finding a union or union member in criminal contempt for violation of a § 10(l) injunction is entirely compatible with that provision. Although such a reading of § 3692 provides procedural protection to the alleged contemnor, it in no way limits the jurisdiction of the district court to grant an injunction at the request of the Board.
49
Similarly, § 10(h) does not indicate a congressional intent to eliminate the jury trial requirement for criminal contempts arising from disobedience of injunctions issued pursuant to the National Labor Relations Act.5 That section provides in part that '(w)hen granting appropriate temporary relief or a restraining order, . . . the jurisdiction of courts sitting in equity shall not be limited by the Act entitled 'An Act to amend the Judicial Code and to define and limit the jurisdiction of courts sitting in equity, and for other purposes,' approved March 23, 1932 (U.S.C., Supp. VII, title 29, secs. 101 115).' Although § 10(h) thus cites parenthetically all the sections of the Norris-LaGuardia Act, including § 11's jury trial provision, which was codified at 29 U.S.C. § 111, it does so solely as an additional means of identifying the Act. Substantively § 10(h), like § 10(l) provides only that the jurisdiction of equity courts shall not be limited by the Norris-LaGuardia Act. But Norris-LaGuardia, as its title indicates, was enacted to limit jurisdiction 'and for other purposes.' Section 11, upon which § 3692 was based, was not concerned with jurisdiction; it provided procedural protections to alleged contemnors, one of the Act's 'other purposes.'
50
In contrast, when Congress provided for the issuance of injunctions during national emergencies as part of the Taft-Hartley Act, 29 U.S.C. §§ 176—180, it did not merely state that the jurisdiction of district courts under those circumstances is not limited by Norris-LaGuardia. Rather, it provided simply and broadly that all of the provisions of that Act are inapplicable. 29 U.S.C. § 178(b).6
51
If, contrary to the above discussion, there is any ambiguity about § 3692, it should nonetheless be read as extending a right to a jury trial in the criminal contempt proceedings now before us under the firmly established canon of statutory construction mandating that any ambiguity concerning criminal statutes is to be resolved in favor of the accused. See, e.g., United States v. Bass, 404 U.S. 336, 347, 92 S.Ct. 515, 522, 30 L.Ed.2d 488; Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493; Smith v. United States, 360 U.S. 1, 9, 79 S.Ct. 991, 996, 3 L.Ed.2d 1041. On the other hand, there is no sound policy argument for limiting the scope of § 3692. A guarantee of the right to a jury trial in cases of criminal contempt for violation of injunctions issued pursuant to § 10(l) does not restrict the ability of the Board's regional official to seek, or the power of the District Court to grant, temporary injunctive relief to bring an immediate halt to secondary boycotts and recognitional picketing pending adjudication of unfair labor practice charges before the Board. Nor does it interfere with the authority of the District Court to insure prompt compliance with its injunction through the use of coercive civil contempt sanctions.7 Indeed, construing § 3692 as it is written, so as to include this kind of an injunction issued pursuant to the National Labor Relations Act, would not even affect the power of the court to impose criminal contempt sanctions. It would only require that prior to imposition of criminal punishment for violation of a court order the necessary facts must be found by an impartial jury, rather than by the judge whose order has been violated.8
52
In sum, the plain language of § 3692 and the absence of any meaningful contradictory legislative history, together with the established method of construing criminal statutes, require that § 3692 be interpreted to include a right to a jury trial in criminal contempt proceedings for violation of § 10(l) injunctions. Accordingly, I would reverse the judgment of the Court of Appeals.
1
A fine of $25,000 was imposed initially, but $15,000 of that fine was subsequently remitted by the District Court based on Local 70's obedience of the injunctions subsequent to the adjudication of contempt.
2
Title 18 U.S.C. § 3692 reads in pertinent part as follows:
'In all cases of contempt arising under the laws of the United States governing the issuance of injunctions or restraining orders in any case involving or growing out of a labor dispute, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the contempt shall have been committed.'
3
Although stating broadly at the outset that '(b)y its own terms (§ 3692) encompasses all cases of contempt arising under any of the several laws of the United States governing the issuance of injunctions in cases of a 'labor dispute," dissenting opinion of Mr. Justice STEWART, post, at 482, that dissent seems to imply that § 3692, after all, does not reach all cases of contempt in labor dispute injunctions. That dissent appears to say that § 3692 provides the right to jury trials only in cases involving criminal, as opposed to civil, contempt. This is so, it is suggested, because that section guarantees the right to 'the accused,' the inference being that one charged with civil contempt is not one properly denominated as an 'accused.' Post, at 487-488, n. 7. But the phrase 'the accused' was taken verbatim from § 11 of the Norris-LaGuardia Act, 47 Stat. 72, 29 U.S.C. § 111 (1946 ed.), and the legislative history of § 11 leaves little room to doubt that when Congress enacted § 11, it
intended that section to be applicable to both criminal and civil contempt proceedings. That history establishes that § 11 was a compromise between the Senate version of the bill, which provided for a jury trial in all contempt cases, and the House version of the bill, which provided for jury trials in all criminal contempt cases arising under the Norris-LaGuardia Act. The compromise, as explained to the House, gave the right to a jury trial in all contempts, civil or criminal, in cases arising under the Act. 75 Cong.Rec. 6336—6337 (1932). In the Senate, Senator Norris himself explained the compromise as follows:
'As the House passed the bill it did not apply to all contempt cases under the act. As the Senate passed it, it applied to all cases, either under the act or otherwise. As the House passed it, it applied only to criminal contempt. As the Senate passed it, it applied to all contempts. The compromise was to confine it to all cases under the act and to eliminate the word 'criminal,' but the cases must arise under this act.' Id., at 6450. And, Senator Norris continued:
'Under the compromise made, the language of the Senate was agreed to, so that now anyone charged with any kind of a contempt arising under any of the provisions of this act will be entitled to a jury trial in the contempt proceedings.' Id., at 6453.
Certainly when Congress used the phrase 'the accused' in § 11, it did not mean to limit that phrase to describing only those accused of criminal contempt.
The dissent of Mr. Justice STEWART also suggests that this limited reading of § 3692 is 'consistent' with the placing of that provision, based on § 11 of Norris-LaGuardia, into Title 18 in 1948. If there is any consistency in this suggestion, it is in that dissent's consistent position that Congress in 1948, without expressing any intention whatsoever to do so, made substantial changes in the right to jury trial—including outright repeal of whatever statutory right there was to jury trial in civil contempt cases arising out of labor disputes, thereby reversing itself on an issue that had been thoroughly considered and decided some 16 years before in Norris-LaGuardia.
In arguing that § 3692 may not reach civil contempt cases, Mr. Justice STEWART also relies on implications which he finds in § 10(l)
of the LMRA that § 3692, despite its language, has no application in those cases. As is clear from this opinion, infra, at 463-467, we too rely on § 10(l), as well as other provisions, in suggesting that certain contempt cases are not reached by § 3692.
There is also a suggestion in the dissent of Mr. Justice STEWART that one charged with contempt of an injunction issued during a national emergency, 29 U.S.C. §§ 176—180, would not have the right to a jury trial notwithstanding § 3692. Apparently this is so because 29 U.S.C. § 178(b), § 208 of the Taft-Hartley Act, 'provided simply and broadly that all the provisions of that (Norris-LaGuardia) Act are inapplicable.' Post, at 486. But the language Congress used in § 178(b), 'the provisions of sections 101 to 115 of this title, shall not be applicable,' is remarkably similar to the language used in the Conference Report of the Taft-Hartley Act of convey the congressional understanding of § 10(h) of the Wagner Act which it was re-enacting in Taft-Hartley; 'making inapplicable the provisions of the Norris-LaGuardia Act in proceedings before the courts . . ..' H.R.Conf.Rep.No.510, 80th Cong., 1st Sess., 57 (1947), U.S.Code Cong.Serv.1947, p. 1163. See n. 6, infra.
Mr. Justice STEWART's position with respect to the applicability of § 3692 in proceedings brought in the Court of Appeals to enforce Board orders directed against employers is even less clear, but it would seem to be the inescapable conclusion under the dissent's analysis that, at least in criminal contempts of such orders, the courts of appeals would be required to empanel juries, a result that would certainly represent a novel procedure, see United States v. Barnett, 376 U.S. 681, 690—691, and n. 7, 84 S.Ct. 984, 989—990, 12 L.Ed.2d 23 (1964).
On the other hand, if Mr. Justice STEWART would limit § 3692 to apply only to disobedience of those injunctions newly authorized by the Taft-Hartley Act in 1947, that section, despite its language, would not apply to injunctions issued by the courts of appeals in enforcement actions against employers (it would be otherwise where unions or employees are involved) for the reason that the provisions of the Wagner Act included in the LMRA have the effect of exempting those situations from the reach of § 3692. Very similar reasons furnish sound ground for the inapplicability of § 3692 to contempt cases arising out of any of the injunctions authorized by the Taft-Hartley Act.
4
Section 11 of the Norris-LaGuardia Act, 29 U.S.C. § 111 (1946 ed. read, in pertinent part, as follows:
'In all cases arising under sections 101—115 of this title in which a person shall be charged with contempt in a court of the United States (as herein defined), the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the contempt shall have been committed.'
5
The position of Mr. Justice DOUGLAS, dissenting, post, at 478-479, that injunctions issued pursuant to the Wagner and Taft-Hartley Acts are or would have been 'arising under' the Norris-LaGuardia Act, and therefore subject to § 11 prior to 1948, is contrary to the understanding of the Congresses that passed the Wagner Act, n. 6, infra, and the Taft-Hartley Act, post, at 464-467, and of every court to have considered this question, see cases cited n. 12, infra.
6
The only legislative history of the Wagner Act addressing this question was the statement of a witness, apparently made in reference to the original version of § 10(h), § 304(a) of S. 2926, which was uncontradicted by any prior or subsequent history:
'The whole theory of enforcement of these orders is through contempt proceedings . . .. (T)he order of the labor board is made an order of the Federal court, subject to being punished by contempt. Now, in the Norris-LaGuardia Act, there has been considerable change of the ordinary procedure on contempt. I won't go into detail, but simply state that in a great majority of instances punishment, where the employees are the defendants, must be by trial by jury. This is, of course, not permissible in any case under the Wagner bill.' Hearings on S. 2926 before the Senate Committee on Education and Labor, 73d Cong., 2d Sess., 505 (1934).
7
The dissents suggest that the word 'jurisdiction' as used in both § 10(h) and § 10(l) is to be read in the technical sense and that the reference to all the provisions of Norris-LaGuardia in § 10(h) was merely 'an additional means of identifying' the Norris-LaGuardia Act. Post, at 486. Yet the language quoted in the text from the House Managers' statement supports only the position that Congress, in re-enacting § 10(h) in 1947, understood that section as 'making inapplicable the provisions of the Norris-LaGuardia Act,' not 'making inapplicable the jurisdictional provisions of the Norris-LaGuardia Act' as the dissents would have it. Support for the position that § 10(h) was understood by Congress in 1947 to make inapplicable all the provisions of Norris-LaGuardia comes not only from the House Managers' statement but also from a memorandum introduced into the Congressional Record a decade later by Representative Celler, who concluded that 'the clear and unequivocal wording of section 10(h) . . . clearly indicates a waiver of all the provisions of the Norris-LaGuardia Act, including the provisions for a jury trial, in cases where the Government was a party to the original action.' 103 Cong.Rec. 8685 (1957). Representative Celler was the chairman of a House subcommittee which had previously held hearings on the 1948 revision of the Criminal Code including § 3692. The dissents offer nothing from the legislative history that should lead us to reject the clear meaning of the House Managers' statement with respect to the congressional understanding of § 10(h).
8
Petitioners' contention that § 3692 was Congress' response to the Court's decision in United States v. Mine Workers, supra, is particularly insupportable in light of the fact that the Reviser's Note, as set forth infra, at 469, was taken verbatim from the prior Reviser's Note to § 3692 that was reported to the House on February 15, 1945, more than two years prior to this Court's decision in Mine Workers and more than three years prior to the 1948 revision of the Criminal Code. The bill reported to the House in 1945, H.R. 2200, was adopted by the House on July 16, 1946, again prior to the decision in United Mine Workers and prior to February 5, 1947, when the House Committee on Education and Labor began hearings on labor legislation which eventually led to the introduction of the Taft-Hartly bill in the House on April 10, 1947. The identical version of the Criminal Code passed the House for the final time on May 12, 1947, almost two months prior to the House's acceptance of the conference version of Taft-Hartley.
There could be no argument that the change in wording in § 3692 was intended to reach criminal contempt proceedings for violation of those Board injunctions newly authorized in 1947, for the House of Representatives passed § 3692 for the first time more than six months before hearings even commenced in the House to consider the Taft-Hartley legislation, and passed it for the second and final time, unchanged, almost two months before the House accepted the conference version of Taft-Hartley.
9
The House Report states that '(t)he reviser's notes . . . explain in detail every change made in text.' H.R.Rep.No.304, 80th Cong., 1st Sess., 9 (1947).
10
The Court's analysis in Fourco Glass Co. v. Transmirra Corp., 353 U.S. 222, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957), is particularly relevant to our inquiry in this case because of the parallel courses followed by the revisions of the Criminal and Judicial Codes. The revision to the Criminal Code was prepared by a staff of experts drawn from various sources and, after this staff completed its work on that revision, the same staff turned its attention to the revision of the Judicial Code. The only hearings held in the House on either of the revisions were held jointly by a subcommittee of the House Committee on the Judiciary. Hearings on Revision of Titles 18 and 28 of the United States Code, before Subcommittee No. 1 of the House Committee on the Judiciary, 80th Cong., 1st Sess. (1947). The House Reports issued subsequent to those hearings parallel one another in many respects, including almost identical statements respecting the purpose and scope of the two revisions. Compare H.R.Rep.No.304, 80th Cong., 1st Sess., 2 (1947), quoted in the text, supra at 469, with H.R.Rep.No.308, 80th Cong., 1st Sess., 2 (1947):
'Revision, as distinguished from codification, required the substitution of plain language for awkward terms, reconciliation of conflicting laws, repeal of superseded sections, and consolidation of related provisions.'
The Senate Reports on the two revisions likewise expressed the intention of presserving the original meaning of the statutes undergoing revision. Compare S.Rep.No.1620, 80th Cong., 2d Sess., 1 (1948), quoted in the text, supra, at 469, with S.Rep.No.1559, 80th Cong., 2d Sess., 2 (1948) ('great care has been exercised to make no changes in the existing law which would not meet with substantially unanimous approval'). Testimony in the House joint hearings confirms that the methods and intent of the revisers themselves were the same with respect to both revisions. Hearings, supra, at 6.
11
This point was clearly made by the Law Revision Counsel to the House subcommittee which held joint hearings on the revisions to the Judicial and Criminal Codes:
'There is one thing that I would like to point out . . . and that is the rule of statutory construction.
'In the work of revision, principally codification, as we have
done here, keeping revision to a minimum, I believe the rule of statutory construction is that a mere change of wording will not effect a change in meaning unless a clear intent to change the meaning is evidenced.
'To find out the intent, I think the courts would go to the report of the committee on the bills and these reports are most comprehensive. We have incorporated in them . . . notes to each section of the bills, both the criminal code and the judicial code.
'It is clearly indicated in each of those revisers' notes whether any change was intended so that merely because we have changed the language—we have changed the language to get a uniform style, to avoid awkward expression, to state a thing more concisely and succinctly—but a mere change in language will not be interpreted as an intent to change the law unless there is some other clear evidence of an intent to change the law.' Hearings on Revision of Titles 18 and 28 of the United States Code before Subcommittee No. 1 of the House Committee on the Judiciary, 80th Cong., 1st Sess., 40 (1947) (emphasis added).
This statement is particularly persuasive in view of the fact that its maker, Mr. Zinn, had served as Counsel to the Committee on Revision of the Laws for the previous eight years; the House Report on the revision of the Criminal Code pointed out that Mr. Zinn had, for that Committee, 'exercised close and constant supervision' over the work of the revisers who prepared the revision. H.R.Rep.No.304, 80th Cong., 1st Sess., 3 (1947). The nature of the revision process itself requires the courts, including this Court, to give particular force to the many express disavowals in the House and Senate Reports of any intent to effect substantive changes in the law.
12
Madden v. Grain Elevator, Flour & Feed Mill Workers, 334 F.2d 1014 (CA7 1964), cert. denied, 379 U.S. 967, 85 S.Ct. 661, 13 L.Ed.2d 560 (1965) (§ 10(l) proceeding); Schauffler v. Local 1291, International Longshoremen's Assn., 189 F.Supp. 737 (ED Pa.1960), rev'd on other grounds 292
F.2d 182 (CA3 1961) (§ 10(l) proceeding). See United States v. Robinson, 449 F.2d 925 (CA9 1971) (suit for injunctive relief brought by the United States against employees of a federal agency); Brotherhood of Locomotive Firemen & Enginemen v. Bangor & Aroostook R. Co., 127 U.S.App.D.C 23, 380 F.2d 570, cert. denied, 389 U.S. 327, 88 S.Ct. 437, 19 L.Ed.2d 560 (1967) (proceeding under Railway Labor Act, 45 U.S.C. § 151 et seq.); NLRB v. Red Arrow Freight Lines, 193 F.2d 979 (CA5 1952) (proceeding brought for violation of § 7 of the Wagner Act, as amended by the Taft-Hartley Act, now 29 U.S.C. § 157); In re Winn-Dixie Stores, Inc., 386 F.2d 309 (CA5 1967) (proceedings for violation of § 7 of the Wagner Act, as amended by the Taft-Hartley Act, now 29 U.S.C. § 157); Mitchell v. Barbee Lumber Co., 35 F.R.D. 544 (SD Miss.1964) (proceedings brought for violation of order issued for violation of Fair Labor Standards Act, 29 U.S.C. § 201 et seq.); In re Piccinini, 35 F.R.D. 548 (WD Pa.1964) (proceedings brought for violation of consent decree involving Fair Labor Standards Act, 29 U.S.C. § 201 et seq.). The only decision to the contrary, In re Union Nacional de Trabajadores, 502 F.2d 113 (CA1 1974), was decided without express reference to any of the pertinent legislative history of the Wagner and Taft-Hartley Acts; the panel of the Court of Appeals was itself divided over the correct result, see id., at 121—122 (Campbell, J., dissenting).
1
As initially enacted by the Senate, § 11 contained no 'arising under' language and would have applied in all criminal contempt proceedings, whether or not involving an injunction issued in a labor dispute. See S.Rep.No.163, 72d Cong., 1st Sess., 23 (1932); 75 Cong.Rec. 4510—4511, 4757—4761 (1932). The 'arising under' language was added by the House-Senate conferees to restrict the scope of § 11 to labor disputes. See id., at 6336 6337, 6450.
2
This construction is consistent with the remark in United States v. Mine Workers, 330 U.S. 258, 298, 67 S.Ct. 677, 698, 91 L.Ed. 884 (1947), that '§ 11 is not operative here, for it applies only to cases 'arising under this Act', and we have already held that the restriction upon injunctions imposed by the Act do (sic) not govern this case.' As the entire sentence makes clear, § 11 was 'not operative' because the Court had found that the underlying dispute between the Government and the Mine Workers was not the kind of 'labor dispute' to which the Norris-LaGuardia Act had been addressed. See 330 U.S., at 274—280, 67 S.Ct., at 686 690. See also id., at 328—330, 67 S.Ct., at 712—714 (Black and Douglas, JJ., concurring and dissenting).
3
We deal here with criminal contempt proceedings. Whether § 3692 affords trial by jury in civil contempt proceedings is a question not presented here and on which, accordingly, I express no opinion.
4
Petitioner Muniz apparently decided not to raise the constitutional issue in this Court; our grant of certiorari on the issue thus extended only to Local 70. 419 U.S. 992, 95 S.Ct. 302, 42 L.Ed.2d 264 (1974).
5
E.g., Baldwin v. New York, 399 U.S. 66, 74—76, 90 S.Ct. 1886, 1891—1892, 26 L.Ed.2d 437 (1970) (Black, J., joined by Douglas, J., concurring in judgment); Frank v. United States, 395 U.S. 147, 159—160, 89 S.Ct. 1503, 1510—1511, 23 L.Ed.2d 162 (1969) (Black, J., joined by Douglas, J., dissenting). See also Johnson v. Nebraska, 419 U.S. 949, 95 S.Ct. 212, 42 L.Ed.2d 169 (1974) (Douglas, J., dissenting from denial of certiorari).
6
As noted in my dissenting opinion in Cheff v. Schnackenberg, 384 U.S. 373, 386—391, 86 S.Ct. 1523, 1527—1530, 16 L.Ed.2d 629 (1966) the 'petty offense' doctrine began as an effort to identify offenses that were by their nature 'petty,' and the punishment prescribed or imposed was one factor to be considered in characterizing the offense. Under the Court's current formulation, the penalty is of controlling significance. See Codispoti v. Pennsylvania, 418 U.S. 506, 512, 94 S.Ct. 2687, 2691, 41 L.Ed.2d 912 (1974).
1
Section 10(l), as enacted in 1947, 61 Stat. 149, provided that whenever the Board's regional official has 'reasonable cause' to believe the truth of a charge of illegal secondary boycotting or minority picketing, the official 'shall,' on behalf of the Board, petition a district court for appropriate injunctive relief pending final Board adjudication. Once reasonable cause is found, a Board petition for temporary relief under § 10(l) is mandatory. See S.Rep.No.105, 80th Cong., 1st Sess., 8, 27. Congress in 1959 added charges of illegal hot cargo agreements and recognitional picketing to the mandatory injunction provision of § 10(l), 73 Stat. 544.
2
'Labor dispute' as defined for the purpose of § 11 of the Norris-LaGuardia Act, upon which § 3692 was based, included 'any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee.' 47 Stat. 73. Section 2(9) of the National Labor Relations Act, 29 U.S.C. § 152(9), defines 'labor dispute' in virtually identical language.
3
While the respondent concedes that unfair labor practices often arise out of a 'labor dispute,' he argues that the National Labor Relations Act is not essentially a law 'governing the issuance of injunctions or restraining orders' in cases 'involving or growing out of a labor dispute.' Although it may be true that not all provisions of the Act authorizing restraining orders are properly classified as such laws, it is clear that Congress concluded that at least some provisions were. Otherwise, there would have been no reason for Congress to have specifically exempted the jurisdiction of courts 'sitting in equity' under § 10 of the Act from the limitations of Norris-LaGuardia, which apply only in cases involving requests for injunctive relief growing out of a labor dispute. See In re Union Nacional de Trabajadores, 502 F.2d 113, 118 (CA1).
4
Any such intention would be inconsistent with the decision to repeal § 11 and to replace it with a broadly worded provision in the title of the United States Code dealing generally with 'Crimes and Criminal Procedure.'
5
It may be questioned whether § 10(h) has any relevance at all to the issue before us. As enacted in 1935, § 10(h) was concerned solely with the jurisdiction of the courts of appeals (and district courts 'if all the . . . courts of appeals to which application may be made are in vacation,' § 10(e)) to modify and enforce Board orders following an administrative hearing and entry of findings by the Board. Section 10(h) was retained without significant change at the time of the 1947 Taft-Hartley amendments to the National Labor Relations Act: 'Sections 10(g), (h), and (i) of the present act, concerning the effect upon the Board's orders of enforcement and review proceedings, making inapplicable the provisions of the Norris-LaGuardia Act in proceedings before the courts, were unchanged either by the House bill or by the Senate amendment, and are carried into the conference agreement.' H.R.Conf.Rep.No.510, 80th Cong., 1st Sess. (House Managers' statement), 57, U.S.Code Cong.Serv.1947, p. 1163. The section would thus seem at the most to be of limited relevance in determining congressional intent concerning the procedures to be used in district courts issuing and enforcing § 10(l) injunctions prior to final adjudication of unfair labor practice charges by the Board.
6
The principal piece of legislative history offered as evidence of an affirmative congressional intent to free from the requirements of Norris-LaGuardia criminal contempt proceedings for violations of a § 10(l) injunction is a statement by Senator Ball made during debate over the Senator's proposed amendment to that section. See 93 Cong.Rec. 4834. Particularly in view of the complete absence of any support for Senator Ball's expansive interpretation of § 10(l) in the committee and conference reports, see, e.g., S.Rep.No.105, 80th Cong., 1st Sess. (House Managers' statement), 8, 27; H.R.Conf.Rep.No.510, 80th Cong., 1st Sess. (House Managers' statement), 57, that individual expression of opinion is without significant weight in the interpretation of the statute. McCaughn v. Hershey Chocolate Co., 283 U.S. 488, 493—494, 51 S.Ct. 510, 512, 75 L.Ed. 1183; Lapina v. Williams, 232 U.S. 78, 90, 34 S.Ct. 196, 199, 58 L.Ed. 515.
7
On its face § 3692, which guarantees to 'the accused' the right to a speedy and public trial, by an impartial jury, in language identical to the Sixth Amendment's guarantee of a jury trial in criminal cases, appears to be limited to trials for criminal contempt. That construction is also consistent with the decision of Congress to place the provision in Title 18, dealing with crimes and criminal procedure. Moreover, while it is clear that a trial for criminal contempt is an independent proceeding and 'no part of the original cause,' Michaelson v. United States ex rel. Chicago, St. P., M. & O.R. Co., 266 U.S. 42, 64, 45 S.Ct. 18, 19, 69 L.Ed. 162, civil contempt proceedings to insure compliance with an injunction are extensions of the original equitable cause of action. See id., at 64—65, 45 S.Ct., at 19—20. It is therefore arguable that § 10(l)'s explicit statement that the 'jurisdiction' of the district courts shall not be affected by 'any other provision of law' renders inapplicable any otherwise relevant statutory requirement of a jury trial for civil contempts. See In re Union Nacional de Trabajadores, 502 F.2d, at 119—121.
8
Although injunctive relief under §§ 10(j) and (l) is sought by the Board acting on behalf of the public rather than to vindicate private economic interests, this fact has little significance in considering the policy justifications for requiring a jury trial in criminal contempt proceedings. Regardless of whether the Board or an employer has sought the injunction, in the absence of a jury trial the judge who granted the order will be given complete authority to impose criminal punishment if he finds that his injunction has been deliberately disobeyed. The existence of this unbridled power in district court judges prior to 1932 was one of the principal factors leading to enactment of the Norris-LaGuardia Act, and in particular passage of the § 11 jury trial requirement. See generally, A. Cox & D. Bok, Cases and Materials on Labor Law 75—76 (7th ed.). Accordingly, the accommodation of § 10(l) and § 3692 'which will give the fullest possible effect to the central purposes of both (statutes),' Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 216, 82 S.Ct. 1328, 1340, 8 L.Ed.2d 440 (Brennan, J., dissenting), is to recognize the Board's power to seek temporary injunctive relief under § 10(l) without regard to the limitations of Norris-LaGuardia, and to permit the issuing court to coerce obedience through civil contempt proceedings. But when the court deems it necessary to impose after-the-fact punishment through criminal contempt proceedings, § 3692 must be read to mean what it says—the accused contemnor has the right to a jury trial. See In re Union Nacional de Trabajadores, supra, 502 F.2d, at 121.
| 01
|
45 L.Ed.2d 435
95 S.Ct. 2501
422 U.S. 617
IVAN ALLEN COMPANY, Petitioner,v.UNITED STATES.
No. 74—22.
Argued April 14 and 15, 1975.
Decided June 26, 1975.
Syllabus
In determining the applicability of § 533(a) of the Internal Revenue Code of 1954—which provides a rebuttable presumption that a corporation that has accumulated earnings 'beyond the reasonable needs of the business' did so with 'the purpose to avoid the income tax with respect to shareholders'—listed and readily marketable securities owned by the corporation and purchased out of its earnings and profits, are to be taken into account, not at their cost to the corporation, but at their net liquidation value. Pp. 624-635.
493 F.2d 426, affirmed.
Kirk McAlpin, Atlanta, Ga., for petitioner.
Scott P. Crampton, Washington, D.C., for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
Sections 531—537, inclusive, of the Internal Revenue Code of 1954, as amended, 26 U.S.C. §§ 531—537, constitute Part I of subchapter G of the Income Tax Subtitle. These sections subject most corporations to an 'accumulated earnings tax.' Section 5311 imposes the tax upon the 'accumulated taxable income' of every corporation that, as § 532(a) states,2 is 'formed or availed of for the purpose of avoiding the income tax with respect to its shareholders . . . by permitting earnings and profits to accumulate instead of being divided or distributed.' And § 533(a)3 provides that 'the fact that the earnings and profits . . . are permitted to accumulate beyond the reasonable needs of the business shall be determinative of the purpose to avoid the income tax with respect to shareholders, unless the corporation by the preponderance of the evidence shall prove to the contrary.'4
2
The issue here is whether, in determining the application of § 533(a), listed and readily marketable securities owned by the corporation and purchased out of its earnings and profits, are to be taken into account at their cost to the corporation or at their net liquidation value, that is, fair market value less the expenses of, and taxes resulting from, their conversion into cash.
3
* The pertinent facts are admitted by the pleadings or are stipulated:
4
The petitioner, Ivan Allen Company (the taxpayer), is a Georgia corporation incorporated in 1902 and actively engaged in the business of selling office furniture, equipment, and supplies in the metropolitan Atlanta area. It files its federal income tax returns on the accrual basis and for the fiscal year ended June 30.
5
For its fiscal years 1965 and 1966, the taxpayer paid in due course the federal corporation income taxes shown on its returns as filed. Taxable income so reported was $341,045.82 for 1965 and $629,512.19 for 1966. App. 59, 84. During fiscal 1965 the taxpayer paid dividends consisting of cash in the amount of $48,945.30 and 870 shares of Xerox Corporation common that had been carried on its books at a cost of $6,564.34. During fiscal 1966 the taxpayer paid cash dividends of $50,267.49; it also declared a 10% stock dividend. Id., at 56. The dividends paid were substantially less than taxable income less federal income taxes for those years.
6
Throughout fiscal 1965 and 1966, the taxpayer owned various listed and unlisted marketable securities. Prominent among these were listed shares of common stock and listed convertible debentures of Xerox Corporation that, in prior years, had been purchased out of earnings and profits. Specifically, on June 30, 1965, the corporation owned 11,140 shares of Xerox common, with a cost of.$116,701 and a then fair market value of $1,573,525, and $30,600 Xerox convertible debentures, with a cost to it of $30,625 and a then fair market value of $48,424. On June 30, 1966, the corporation owned 10,090 shares of Xerox common, with a cost of $102,479 and a then fair market value of $2,479,617, and the same $30,600 convertible debentures, with their cost of $30,625 and a then fair market value of $69,768. Id., at 55.
7
According to its returns as filed, the taxpayer's undistributed earnings as of June 30, 1965, and June 30, 1966, were $2,200,184.77 and $2,360,146.52, respectively. Id., at 70, 91. The taxpayer points out that the marketable portfolio assets represented an investment, as measured by cost, of less than 7% of its undistributed earnings and of less than 5% of its total assets. Brief for Petitioner 4.
8
It is also apparent, however, that the Xerox debentures and common shares had proved to be an extraordinarily profitable investment, although, of course, because these securities continued to be retained, the gains thereon were unrealized for federal income tax purposes. The debentures had increased in fair market value more than 50% over cost by the end of June 1965, and more than 100% over cost one year later; the common shares had increased in fair market value more than 13 times their cost by June 30, 1965, and more than 24 times their cost by June 30, 1966.
9
Throughout fiscal 1965 and 1966 the taxpayer's two major shareholders, Ivan Allen, Sr., and Ivan Allen, Jr., respectively owned 31.20% and 45.46% of the taxpayer's outstanding voting stock. App. 78, 104.
10
Following an examination of the taxpayer's federal income tax returns for fiscal 1965 and 1966, the Commissioner of Internal Revenue determined that the taxpayer had permitted its earnings and profits for each of those years to accumulate beyond the reasonable and reasonably anticipated needs of its business, and that one of the purposes of the accumulation for each year was to avoid income tax with respect to its shareholders. Based upon this determination, the Commissioner assessed against the corporation accumulated earnings taxes of $77,383.98 and $73,131.87 for 1965 and 1966, respectively.
11
The taxpayer paid these taxes and thereafter timely filed claims for refund. The claims were not allowed, and the taxpayer then instituted this refund suit in the United States District Court for the Northern District of Georgia.
12
It is agreed that the taxpayer had reasonable business needs for operating capital amounting to $1,198,309 and $1,455,222 at the close of fiscal 1965 and fiscal 1966, respectively. Id., at 56. It is stipulated, in particular, that if the taxpayer's marketable securities are to be taken into account at cost, its net liquid assets (current assets less current liabilities), at the end of each of those taxable years, and fully available for use in its business, were then exactly equal to its reasonable business needs for operating capital, that is, the above-stated figures of $1,198,309 and $1,455,222. It would follow, accordingly, that the earnings and profits of the two taxable years had not been permitted to accumulate beyond the taxpayer's reasonable and reasonably anticipated business needs, within the meaning of § 533(a), App. 57, and no accumulated earnings taxes were incurred. It is still further stipulated, however, that if the taxpayer's marketable securities are to be taken into account at fair market value (less the cost of converting them into cash), as to the ends of those fiscal years,5 the taxpayer's net liquid assets would then be $2,235,029 and $3,152,009, respectively. Id., at 56. From this it would follow that the earnings and profits of the two taxable years had been permitted to accumulate beyond the taxpayer's reasonable and reasonably anticipated business needs. Then, if those accumulations had been for 'the purpose of avoiding the income tax with respect to its shareholders,' under § 532(a), accumulated earnings taxes would be incurred.
13
The issue, therefore, is clear and precise: whether, for purposes of applying § 533(a), the taxpayer's readily marketable securities should be taken into account at cost, as the taxpayer contends, or at net liquidation value, as the Government petitioner-taxpayer. 349 F.Supp. 1075
14
The District Court held that the taxpayer's readily marketable securities were to be taken into account at cost. Accordingly, it entered judgment for the petitioner-taxpayer. 349 F.Supp. 1075 (1972). The court observed:
15
'Corporate taxpayers should not be penalized for wise investments; they should be allowed to maximize their capital gains tax advantages in accordance with internal business policies and stock market conditions rather than being forced to sell securities which may have a high value on an arbitrarily selected date merely because the unrealized fair market value of the securities on that date would trigger the accumulated earnings tax.' Id., at 1077. (Footnote omitted.)
16
The United States Court of Appeals for the Fifth Circuit reversed. 493 F.2d 426 (1974). It observed:
17
'(T)he securities involved in the case at bar are of such a highly liquid character as to be readily available for business needs that might arise. Thus the appreciated value of these securities should be taken into account when determining whether the corporation has accumulated profits in excess of reasonable business needs.
18
'This decision does not force the corporation to liquidate these securities at any time when a sale would be financially unwise, but only compels the corporation to comply with the proscriptions of the Code and refrain from accumulating excessive earnings and profits.' Id., at 428.
19
The case was remanded, as the parties had agreed, App. 57—58, 'for the additional factual determination (under § 532(a)) of whether one purpose for the accumulation was to avoid income tax on behalf of the shareholders.' 493 F.2d, at 428.
20
Because this conclusion was claimed by the taxpayer to conflict in principle with American Trading & Production Corp. v. United States, 362 F.Supp. 801 (Md.1972), aff'd without published opinion, 474 F.2d 1341 (CA4 1973),6 and because of the importance of the issue in the administration of the accumulated earnings tax, we granted certiorari. 419 U.S. 1067, 95 S.Ct. 653, 42 L.Ed.2d 663 (1974).
II
21
Under our system of income taxation, corporate earnings are subject to tax at two levels. First, there is the tax imposed upon the income of the corporation. Second, when the corporation, by way of a dividend, distributes its earnings to its shareholders, the distribution is subject to the tax imposed upon the income of the shareholders. Because of the disparity between the corporate tax rates and the higher gradations of the rates on individuals,7 a corporation may be utilized to reduce significantly its shareholders' overall tax liability by accumulating earnings beyond the reasonable needs of the business. Without some method to force the distribution of unneeded corporate earnings, a controlling shareholder would be able to postpone the full impact of income taxes on his share of the corporation's earnings in excess of its needs. See B. Bittker & J. Eustice, Federal Income Taxation of Corporations and Shareholders 8.01 (3d ed 1971); B. Wolfman, Federal Income Taxation of Business Enterprise 864 (1971).
22
In order to foreclose this possibility of using the corporation as a means of avoiding the income tax on dividends to the shareholders, every Revenue Act since the adoption of the Sixteenth Amendment in 1913 has imposed a tax upon unnecessary accumulations of corporate earnings effected for the purpose of insulating shareholders.8
23
The Court has acknowledged the obvious purpose of the accumulation provisions of the successive Acts:
24
'As the theory of the revenue acts has been to tax corporate profits to the corporation, and their receipt only when distributed to the stockholders, the purpose of the legislation is to compel the company to distribute any profits not needed for the conduct of its business so that, when so distributed, individual stockholders will become liable not only for normal but for surtax on the dividends received.' Helvering v. Chicago Stock Yards Co., 318 U.S. 693, 699, 63 S.Ct. 843, 846, 87 L.Ed. 1086 (1943).
25
This was reaffirmed in United States v. Donruss Co., 393 U.S. 297, 303, 89 S.Ct. 501, 504, 21 L.Ed.2d 495 (1969).
26
It is to be noted that the focus and impositions of the accumulated earnings tax are upon 'accumulated taxable income,' § 531. This is defined in § 535(a) to mean the corporation's 'taxable income,' as adjusted. The adjustments consist of the various items described in § 535(b), including federal income tax, the deduction for dividends paid, defined in § 561, and the accumulated earnings credit defined in § 535(c). The adjustments prescribed by §§ 535(a) and (b) are designed generally to assure that a corporation's 'accumulated taxable income' reflects more accurately than 'taxable income' the amount actually available to the corporation for business purposes. This explains the deductions for dividends paid and for federal income taxes; neither of these enters into the computation of taxable income. Obviously, dividends paid and federal income taxes deplete corporate resources and must be recognized if the corporation's economic condition is to be properly perceived. Conversely, § 535(b)(3) disallows, for example, the deduction, available to a corporation for income tax purposes under § 243, on account of dividends received; dividends received are freely available for use in the corporation's business.
27
The purport of the accumulated earnings tax structure established by §§ 531—537, therefore, is to determine the corporation's true economic condition before its liability for tax upon 'accumulated taxable income' is determined. The tax, although a penalty and therefore to be strictly construed, Commissioner v. Acker, 361 U.S. 87, 91, 80 S.Ct. 144, 147, 4 L.Ed.2d 127 (1959), is directed at economic reality.
28
It is important to emphasize that we are concerned here with a tax on 'accumulated taxable income,' § 531, and that the tax attaches only when a corporation has permitted 'earnings and profits to accumulate instead of being divided or distributed,' § 532(a). What is essential is that there be 'income' and 'earnings and profits.' This at once eliminates, from the measure of the tax itself, any unrealized appreciation in the value of the taxpayer's portfolio securities over cost, for any such unrealized appreciation does not enter into the computation of the corporation's 'income' and 'earnings and profits.'
29
The corporation's readily marketable portfolio securities and their unrealized appreciation, nonetheless, are of profound importance in making the entirely discrete determination whether the corporation has permitted what, concededly, are earnings and profits to accumulate beyond its reasonable business needs. If the securities, as here, are readily available as liquid assets, then the recognized earnings and profits that have been accumulated may well have been unnecessarily accumulated, so far as the reasonable needs of the business are concerned. On the other hand, if those portfolio securities are not liquid and are not readily available for the needs of the business, the accumulation of earnings and profits may be viewed in a different light. Upon this analysis, not only is such accumulation as has taken place important, but the liquidity otherwise available to the corporation is highly significant. In any event—and we repeat—the tax is directed at the accumulated taxable income and at earnings and profits. The tax itself is not directed at the unrealized appreciation of the liquid assets in the securities portfolio. The latter becomes important only in measuring reasonableness of accumulation of the earnings and profits that otherwise independently exist. What we look at, then, in order to determine its reasonableness or unreasonableness, in the light of the needs of the business, is any failure on the part of the corporation to distribute the earnings and profits it has.
30
Accumulation beyond the reasonable needs of the business, by the language of § 533(a), is 'determinative of the purpose' to avoid tax with respect to shareholders unless the corporation proves the contrary by a preponderance of the evidence. The burden of proof, thus, is on the taxpayer. A rebuttable presumption is statutorily imposed. To be sure, we deal here, in a sense, with a state of mind. But it has been said that the statute, without the support of the presumption, would 'be practically unenforceable . . ..' United Business Corp. v. Commissioner, 62 F.2d 754, 755 (CA2), cert. denied, 290 U.S. 635, 54 S.Ct. 53, 78 L.Ed. 552 (1933). What is required, then, is a comparison of accumulated earnings and profits with 'the reasonable needs of the business.' Business needs are critical. And need, plainly, to use mathematical terminology, is a function of a corporation's liquidity, that is, the amount of idle current assets at its disposal. The question, therefore, is not how much capital of all sorts, but how much in the way of quick or liquid assets, it is reasonable to keep on hand for the business. United Block Co. v. Helvering, 123 F.2d 704, 705 (CA2 1941), cert. denied, 315 U.S. 812, 62 S.Ct. 797, 86 L.Ed. 1211 (1942); Smoot Sand & Gravel Corp. v. Commissioner, 274 F.2d 495, 501 (CA4), cert. denied, 362 U.S. 976, 80 S.Ct. 1061, 4 L.Ed.2d 1011 (1960) (liquid assets provide 'a strong indication' of the purpose of the accumulation); Electric Regulator Corp. v. Commissioner, 336 F.2d 339, 344 (CA2 1964); Novelart Mfg. Co. v. Commissioner, 52 T.C. 794, 806 (1969), aff'd, 434 F.2d 1011 (CA6 1970), cert. denied, 403 U.S. 918, 91 S.Ct. 2229, 29 L.Ed.2d 695 (1971); John P. Scripps Newspapers v. Commissioner, 44 T.C. 453, 467 (1965).9
31
The taxpayer itself recognizes, and accepts, the liquidity concept as a basic factor, for it 'has agreed that the full amount of its realized earnings invested in its liquid assets—their cost should be taken into account in determining the applicability of Section 533(a).' Brief for Petitioner 15. It concedes that if this were not so, 'the tax could be avoided by any form of investment of earnings and profits.' Reply Brief for Petitioner 5. But the taxpayer would stop at the point of cost and, when it does so, is compelled to compare earnings and profits—not the amount of readily available liquid assets, net—with reasonable business needs.
32
We disagree with the taxpayer and conclude that cost is not the stopping point; that the application of the accumulated earnings tax, in a given case, may well depend on whether the corporation has available readily marketable portfolio securities; and that the proper measure of those securities, for purposes of the tax, is their net realizable value. Cost of the marketable securities on the assets side of the corporation's balance sheet would appear to be largely an irrelevant gauge of the taxpayer's true financial condition.10 Certainly, a lender would not evaluate a potential borrower's marketable securities at cost. Realistic financial condition is the focus of the lender's inquiry. It also must be the focus of the Commissioner's inquiry in determining the applicability of the accumulated earnings tax.11
33
This taxpayer's securities, being liquid and readily marketable, clearly were available for the business needs of the corporation, and their fair market value, net, was such that, according to the stipulation, the taxpayer's undistributed earnings and profits for the two fiscal years in question were permitted to accumulate beyond the reasonable and reasonably anticipated needs of the business.
III
34
Bearing directly upon the issue before us is Helvering v. National Grocery Co., 304 U.S. 282, 58 S.Ct. 932, 82 L.Ed. 1346 (1938). There the fact situation was the reverse of the present case inasmuch as that taxpayer corporation had unrealized losses in the value of marketable securities it was continuing to hold. After the Court upheld the accumulated earnings tax against constitutional attack, id., at 286—290, 58 S.Ct., at 934—936, it observed: 'Depreciation in any of the assets is evidence to be considered by the Commissioner and the Board (of Tax Appeals) in determining the issue of fact whether the accumulation of profits was in excess of the reasonable needs of the business.' Id., at 291, 58 S.Ct., at 937. It went on to hold, however, that such depreciation 'does not, as matter of law, preclude a finding that the accumulation of the year's profits was in excess of the reasonable needs of the business.' Ibid. Indeed, the Court held that the evidence supported the Board's finding that the accumulation of surplus by the taxpayer was to enable its sole shareholder to escape surtaxes. It focused on bonds and stocks held by the corporation, described them as in no way related to the business, and concluded that 'there was no need of accumulating any part of the year's earnings for the purpose of financing the business.' Id., at 291 292, 58 S.Ct., at 937. That language forecloses the present taxpayer's case.
35
The precedent of National Grocery has been applied in accumulated earnings tax cases, with courts taking into account the fair market value of liquid, appreciated securities. Battelstein Investment Co. v. United States, 442 F.2d 87, 89 (CA5 1971); Cheyenne Newspapers, Inc. v. Commissioner, 494 F.2d 429, 434—435 (CA10 1974); Henry Van Hummell, Inc. v. Commissioner, 23 T.C.M. 1765, 1779 (1964), aff'd, 364 F.2d 746 (CA10 1966), cert. denied, 386 U.S. 956, 87 S.Ct. 1019, 18 L.Ed.2d 102 (1967); Golconda Mining Corp. v. Commissioner, 58 T.C. 139, supplemental opinion, 58 T.C. 736, 737—739 (1972), rev'd on other grounds, 507 F.2d 594 (CA9 1974); Ready Paving & Constr. Co. v. Commissioner, 61 T.C. 826, 840—841 (1974). But see Harry A. Koch Co. v. Vinal, 228 F.Supp. 782, 784 (Neb. 1964).
36
American Trading & Production Corp. v. United States, 362 F.Supp. 801 (Md. 1972), aff'd without published opinion, 474 F.2d 1341 (CA4 1973), which the taxpayer continues to assert is in conflict with the present case, deserves mention. The taxpayer there had accumulated earnings and profits of something less than $10 million. Its anticipated business needs were about $12 million. But it owned stocks, primarily oil shares, having a total cost of $5,593,319 and an aggregate current market value in excess of $100 million. The District Court excluded these stocks in making its determination whether earnings had accumulated in excess of reasonable business needs. It did so on several grounds: that the shares constituted 'original capital,' a term the court used in the sense that the stocks 'were properly held and retained as an integral part of its business and were utilized . . . as a base for borrowings for the needs of other parts of (the taxpayer's) business,' 362 F.Supp., at 810; that the statute was not intended to require the conversion of assets of that kind into cash in order to meet business needs, even though that capital 'has explosively increased in value,' Id., 362 F.Supp., at 808; and that 'there was substantial evidence' that the stocks 'were not readily saleable,' id., 362 F.Supp., at 809.
37
Whatever may be the merit or demerit of the other grounds asserted by the District Court in American Trading—and we express no view thereon—we are satisfied that the court's determination as to the absence of ready salability, under all the circumstances, provides a sufficient point of distinction of that case from this one, so that it provides meager, if any, contrary precedent of substance to our conclusion here.
IV
38
The arguments advanced by the taxpayer do not persuade us:
39
1. The taxpayer, of course, quite correctly insists that unrealized appreciation of portfolio securities does not enter into the determination of 'earnings and profits,' within the meaning of § 533(a). As noted above, we agree. The Government does not contend otherwise. It does not follow, however, that unrealized appreciation is never to be taken into account for purposes of the accumulated earnings tax.
40
As has been pointed out, the tax is imposed only upon accumulated taxable income, and this is defined to mean taxable income as adjusted by factors that have been described. The question is not whether unrealized appreciation enters into the determination of earnings and profits, which it does not, but whether the accumulated taxable income, in the determination of which earnings and profits have entered, justifiably may be retained rather than distributed as dividends. The tax focuses, therefore, on current income and its retention or distribution. If the corporation has freely available liquid assets in excess of its reasonable business needs, then accumulation of taxable income may be unreasonable and the tax may attach. Utilizable availability of the portfolio assets is measured realistically only at net realizable value. The fact that this value is not included in earnings and profits does not foreclose its being considered in determining whether the corporation is subject to the accumulated earnings tax.
41
2. We see nothing in the 'realization of income' concept of Eisner v. Macomber, 252 U.S. 189, 40 S.Ct. 189, 64 L.Ed. 521 (1920), that has significance for the issue presently under consideration. There the Court held that a dividend of common shares issued by a corporation having only common outstanding was not includable in the shareholder's gross income for income tax purposes. The decision may have prompted the shift, noted above and effected by the Revenue Act of 1921, of the incidence of the accumulated earnings tax from the shareholders to the corporation. The case also emphasizes the realization of income with respect to a tax on the shareholder. We note again, however, that the accumulated earnings tax is not on unrealized appreciation of the portfolio securities. It rests upon, and only upon, the corporation's current taxable income adjusted to constitute 'accumulated taxable income.'
42
3. The taxpayer also argues that the effect of the Court of Appeals decision is to force the taxpayer to convert its appreciated assets in order to meet its business needs. It suggests that management should be entitled to finance business needs without resorting to unrealized appreciation. The argument, plainly, goes too far. On the taxpayer's own theory that marketable securities may be taken into account at their cost, a situation easily may be imagined where some conversion into cash becomes necessary, if the corporation is to avoid the accumulated earnings tax.
43
That our decision does not interfere with corporate management's exercise of sound business judgment, and that it does not amount to a dictation to management as to when appreciated assets are to be liquidated, was aptly answered by the Court of Appeals:
44
'This decision does not force the corporation to liquidate these securities at any time when a sale would be financially unwise, but only compels the corporation to comply with the proscriptions of the Code and refrain from accumulating excessive earnings and profits. That taxpayer, as a consequence of its own sound judgment in making profitable investments, must sell, exchange or distribute to the shareholders assets in order to avoid an excessive accumulation of earnings and thus comply with the Code's requirements is no justification for precluding its application.' 493 F.2d, at 428.
45
We might add that the existence of the Code's provisions for the accumulated earnings tax, of course, will affect management's decision. So, too, does the very existence of the corporate income tax itself. In this respect, the one is no more offensive than the other. Astute management in these tax-conscious days is not that helpless, and shrinkage, upon liquidation, of one-fourth of the appreciation hardly equates with loss. Such business decision as is necessitated was expressly intended by the Congress. All that is required is the disgorging, at the most, of the taxable year's 'accumulated taxable income.'
46
4. It is no answer to suggest that our decision here may conflict with standard accounting practice. The Court has not hesitated to apply congressional policy underlying a revenue statute even when it does conflict with an established accounting practice. See, e.g., Schlude v. Commissioner, 372 U.S. 128, 83 S.Ct. 601, 9 L.Ed.2d 633 (1963); American Automobile Assn. v. United States, 367 U.S. 687, 692—694, 81 S.Ct. 1727, 1729—1730, 6 L.Ed.2d 1109 (1961). It is of some interest that the taxpayer itself, for the tax years under consideration, reflected the market value as well as the cost of its marketable securities on its balance sheets. App. 112, 118. This appears to be in line with presently accepted practice. See R. Kester, Advanced Accounting 117—118, 122—124 (4th ed. 1946).
47
The judgment of the Court of Appeals is affirmed.
48
It is so ordered.
49
Affirmed.
50
Mr. Justice POWELL, with whom Mr. Justice DOUGLAS and Mr. Justice STEWART join, dissenting.
51
The Court's decision departs significantly from the relevant statutory language, creates a rule of additional tax liability that places business management in a perilous position, and vests in the Internal Revenue Service an inappropriate degree of discretion in administering a punitive statute. I therefore dissent.
52
* Petitioner, a corporation with 34 stockholders, is engaged in selling office supplies and equipment. In the late 1950's, because petitioner was a retail outlet for equipment of the Xerox Corp., it invested $147,000 of its earnings and profits in securities of Xerox. The market value of that investment increased substantially over the years, and by the end of petitioner's 1965 and 1966 tax years the unrealized market appreciation1 of those securities approximated $1,475,000 and $2,416,000 respectively.2 For the purpose of determining the applicability of the additional penalty tax liability under 26 U.S.C. § 531, the Commissioner valued these securities at their year-end market price. He thereupon assessed the tax here at issue.
53
The question is one of statutory construction: In determining whether a corporation has accumulated earnings and profits in excess of reasonable business needs within the meaning of 26 U.S.C. § 533(a), are assets purchased with earnings and profits to be valued at the amount invested in them—their cost—or at their market price,3 which reflects both cost and unrealized appreciation? The question has not heretofore been decided by this Court and has been considered infrequently by other federal courts.
II
54
I address first the statutory language, which in my view is controlling. Section 531 imposes a tax '(i)n addition to other taxes imposed by this chapter . . . on the accumulated taxable income . . . of every corporation' identified by § 532. Section 532 makes the § 531 tax applicable to every corporation 'formed or availed of for the purpose of avoiding the income tax with respect to its shareholders . . . by permitting earnings and profits to accumulate instead of being divided or distributed.' If 'the earnings and profits of a corporation are permitted to accumulate' beyond its reasonable needs, § 533 establishes a rebuttable presumption that the corporation is one 'formed or availed of for the purpose of avoiding the income tax' and that it is therefore liable for the § 531 tax.
55
The central element of this statutory scheme is the unreasonable accumulation of earnings and profits beyond the corporation's reasonable needs. It is stipulated in this case that there is no unreasonable accumulation and no additional tax unless the unrealized appreciation of the Xerox securities is added to petitioner's actual accumulated earnings and profits (i.e., to its earned surplus account).4 Under normal concepts of tax law and accounting the Government's position is therefore untenable on its face. Unrealized appreciation of assets is not considered in computing ordinary corporate or individual taxable income. Indeed, sound accounting practice requires that assets be recorded and carried at cost,5 and this requirement is enforced with respect to filings with the Securities and Exchange Commission (SEC). Similarly, if assets of a corporation are distributed to shareholders 'in kind,' the company is credited for a dividend payment only on the basis of the cost of those assets, not their appreciated value.
56
In view of this unanimity of law and practice, what theory is devised by the Government and the Court today as justification for a different rule for this penalty tax? I look to the Court's opinion for the answer. It is conceded that 'unrealized appreciation does not enter into the computation of the corporation's . . . (Accumulated) 'earnings and profits." Ante, at 627. Nevertheless, the Court holds that such appreciation 'becomes important' and must be taken into account 'in measuring (the) reasonableness' of such accumulation. Ante, at 628. In short, the Court construes the statute to mean that although unrealized appreciation is not includable in computing earnings and profits, it is includable in determining whether earnings and profits have been accumulated unreasonably.
57
The statute provides no basis whatever for this distinction. According to its own terms, selected with full knowledge of accepted tax and accounting principles, the penalty tax applies only if there is an unreasonable accumulation of Earnings and profits; the statute contains no reference to the addition of unrealized appreciation to the accumulated earnings and profits which constitute the only basis for imposing the tax. Nor does the history or purpose of the statute support the 'add on' of an unrealized increment of value conceded by the Court to be neither earnings nor profits. By authorizing this 'add on,' the Court's decision effectively converts the tax on excessive accumulation of earnings and profits to a tax on the retention of certain assets that appreciate in value. Although current accumulated taxable income remains the measure of the tax, its application in many cases will be controlled simply by the existence of unrealized appreciation in the value of these assets.
58
The purpose of the statute, as the Court states, is 'to force the distribution of unneeded corporate earnings.' Ante, at 624. Such a distribution is accomplished by the payment of dividends, which normally are declared and paid only out of current earnings or earned surplus, determined in accordance with sound accounting practice. Absent authorization in a statute or corporate charter, corporate directors who pay dividends from unrealized appreciation risk personal liability at the suit of stockholders or injured creditors.6
III
59
The plan language of the Code resolves this case for me. But even if the statute could be thought ambiguous on the point, the tax is, as the Court concedes, a 'penalty and therefore (must) be strictly construed . . ..' Ante, at 627. See Commissioner v. Acker, 361 U.S. 87, 91, 80 S.Ct. 144, 147, 4 L.Ed.2d 127 (1959). This means, at a minimum, that doubts and ambiguities must be resolved in favor of a fair and equitable construction that is as free from the hazards of uncertainty as the statutory language and purpose will allow. It seems to me that the Court's opinion ignores the meaning of this canon of construction. Rather than construe the statute narrowly, today's decision extends the presumptive reach of this tax beyond the language of the Code and creates a number of perplexing uncertainties.
60
Businesses normally are conducted, and management decisions made, on the basis of financial information that is maintained in accordance with sound accounting practice. The most elementary principle of accounting practice is that assets are recorded at cost. This is true with respect to the computation of earnings and profits, payment of ordinary corporate taxes, determination of dividend policy, and reporting to stockholders, the SEC, and other regulatory agencies. Corporate books and records are audited only on that basis. Whatever may be said for the Court's view of the 'unreality' of adhering to the principles of sound accounting practice, ante, at 629-630, those principles are the best system yet devised for guiding management, informing shareholders, and determining tax liability. They have the not inconsiderable virtues of consistency, regularity, and certainty—virtues that also assure fairness and reasonable predictability in the Commissioner's administration of this penalty tax.
61
The Court today abandons accounting principles confirmed by the wisdom of business experience and announces a new rule with far-reaching consequences. In my view, this rule will create uncertainty and open wide possibilities for unfairness.
A.
62
Both taxpayers and the Government know what is meant by 'cost basis,' and a corporation's earned surplus account, which reflects accumulated earnings and profits from which dividends normally are paid, is an established accounting fact. There is no comparable certainty or dependability in the rule devised by the Court:
63
'Cost of the marketable securities on the assets side of the corporation's balance sheet would appear to be largely an irrelevant gauge of the taxpayer's true financial condition . . .. Realistic financial condition is the focus . . . of the Commissioner's inquiry in determining the applicability of the accumulated earnings tax.' Ante, at 629-630 (emphasis added).
64
In this case, involving marketable securities, the computation of the true value for purposes of the tax appears at first blush to present no serious problem of uncertainty. The Court simply equates market price at the end of the tax year with true value, and adds the resulting excess over cost to the book value of the securities. Apart from the questionable assumption that market quotations represent the true value of a retained common stock, the Court's new formulation poses perplexing definitional questions for management.
65
An initial uncertainty results from the Court's ambiguous use of the term 'securities.' As defined in the Securities Act of 1933 and the Securities Exchange Act of 1934, the term is quite comprehensive.7 Even so, its meaning is not always self-evident, as can be seen by examining some of the extensive litigation on this question. See, e.g., 1050 Tenants Corp. v. Jakobson, 503 F.2d 1375 (CA2 1974); SEC v. Glenn W. Turner Enterprises, Inc., 474 F.2d 476 (CA9), cert. denied, 414 U.S. 821, 94 S.Ct. 117, 38 L.Ed.2d 53 (1973); Lehigh Valley Trust Co. v. Central National Bank of Jacksonville, 409 F.2d 989 (CA5 1969).
66
In addition, uncertainties will arise in ascertaining whether the asset is sufficiently 'readily marketable' to satisfy the Court's test. The Court attaches significance to whether the security is 'listed' on a stock exchange. It is indeed true that the great majority of common stocks listed on the New York Stock Exchange are readily marketable, unless the number of shares to be sold is too large for the market to absorb. The same cannot be said, however, of all bonds listed on that Exchange. Moreover, there are other exchanges on which securities are listed and traded: the American Stock Exchange, over the counter, and scores of local exchanges. While many securities traded on these exchanges may be 'readily marketable,' perhaps the majority could not fairly be so characterized. In countless situations corporate management will be unable to determine, short of attemption to sell the security, whether it is 'readily marketable' or not.
B
67
The uncertainty engendered by today's opinion will not be limited to its undifferentiated treatment of marketable securities. A more fundamental question arising from the rationale of the Court's decision is whether the test of 'true' or 'realistic' financial condition will be applied to other assets. Nothing in the relevant statutory provisions suggests a distinction between securities and other assets, or even between assets with varying degrees of marketability. The Court nevertheless appears to read into the statutes a distinction based on 'liquidity,' at various points referring interchangeably to 'readily marketable securities,' 'current assets,' and 'quick or liquid assets.' Ante, at 622, 628. Although the Court's holding is limited in this case to readily marketable securities, see ante, at 629n. 9, its rationale is not so easily contained.
68
The Court states categorically that the 'focus' of the Commissioner's inquiry, in determining the application of this tax, must be on what it calls true or realistic financial condition. Ante, at 629-630. In view of this postulation, and the absence of any distinction in the statute among types of assets, is the Commissioner now free to include in his computation the unrealized appreciation of all corporate assets? Once cost basis is abandoned, and 'realistic' value becomes the standard, the uncertainties confronting prudent management in many cases will be profoundly disquieting. To be sure, read narrowly, the Court's decision applies only to readily marketable securities, with emphasis on 'liquidity.' But this is another relative term, depending on the nature of the asset and the uncertainties of market conditions at the time.
69
The potential sweep of the Court's decision is forecast by the response of Government counsel to questions about unrealized appreciation on real estate. At one point counsel stated that real estate would not be sufficiently liquid to be includable at market value in the tax calculation, Tr. of Oral Arg., at 36, but he later qualified this statement by suggesting that land might be includable if it could be established that it was readily marketable, Id., at 42.8
70
The types of assets in which corporations lawfully may invest earnings and profits embrace the total range of property interests. They include, to name only a few examples, unimproved real estate within the anticipated growth pattern of a major urban area, improved real estate, unlisted securities of growth corporations that have not 'gone public,' undivided interests in oil or mining ventures, and even objects of art. At various times and depending upon conditions, any of these assets may be viewed as—and in fact may be—readily marketable and therefore 'liquid.' The unrealized appreciation of such assets may well bear upon the realistic financial condition of a corporation, however it is defined. In light of these economic facts, the sweep of today's decision presents problems both for corporate taxpayers and the Government.9
C
71
I further think that the Court's decision to attach significant tax consequences to the market price of a volatile stock at a particular point in time will lead to unfairness in the application of the accumulated earnings tax. The Court's net liquidation formulation seems to assume, and nothing in the opinion dispels this assumption, that readily marketable assets are to be valued as of the end of the tax year in question. Moreover, the Court apparently would treat all marketable securities the same for the purpose of this valuation. No distinction is drawn or even suggested among the wide variety of securities that are held as corporate assets.
72
The market price of a short-term Treasury note, at most only fractionally different from its cost basis, would represent its value under any test. But few financial analysts or economists would say that the market quotation of a common stock at any particular time necessarily reflects its 'true' or 'realistic' value unless the stock is sold at that price.10 Over a sufficiently long term, the market price of a common stock will reflect, and vary with, the fundamental strength of the issuing corporation's balance sheet, its earnings record, and its future earnings prospects. But a variety of other factors also affect market price, producing wide swings that do not necessarily correspond to those economic facts. These factors include current conditions of supply and demand in the stock market, immediate confidence in the market in general and in the overall state of the economy, international stability or instability, notions of what is fashionable to buy at a particular time, and a variety of other intangibles. The extent to which the market prices of common stocks fluctuate, often without regard to any concept of 'real' value, is illustrated by the tables in the Appendices to this opinion.
73
Bearing in mind the actual variations in the price of Xerox stock, can it be said that its market price at any given time fairly represents its true or realistic value for the purpose of determining whether earnings and profits have been accumulated unreasonably? The negative answer to this question is indicated, at least for me, by the following hypothetical example. In 1965, one of the tax years at issue in this case, the highest price at which Xerox sold was $71 and the lowest was $31. If two competing corporations each owned 10,000 shares of Xerox stock purchased prior to 1965 at the identical price of $31 per share, and Corporation A's tax year ended on the day that Xerox hit $71, while Corporation B's tax year ended on the day it hit $31, Corporation A would have had an unrealized appreciation of $400,000, whereas Corporation B would have had none.
74
By departing from the cost-basis standard of sound accounting practice, and compelling reliance on an isolated market price of a retained common stock, the Court itself departs from its avowed goal of 'economic reality.' Ante, at 627. An average price range at which the stock might have been sold over a relatively long period might produce a more equitable result in some cases. It would not, however, alleviate the basic problem inherent in the Court's formulation. The taxpayer still could be penalized for having failed to consider, in planning future business needs, the highly ephemeral 'value' of unrealized appreciation on common stock. The effect of today's decision is to hold business management accountable for unrealized appreciation as if it were cash in hand, probably forcing corporate management in many cases to liquidate securities that otherwise it would have elected to retain.11 Management decisions during the course of a year, including decisions whether and when to pay dividends and in what amounts, cannot be made intelligently on the basis of an asset so volatile that it may depreciate in market value as much as 8% in a single day and 61% in a year. Uncertainty of this magnitude could only be avoided by liquidation of assets that have appreciated in value. I find nothing in the language or purpose of this tax that justifies such detrimental interference with sound corporate management.
IV
75
The Court places major reliance on Helvering v. National Grocery Co., 304 U.S. 282, 58 S.Ct. 932, 82 L.Ed. 1346 (1938), finding that that opinion 'forecloses the present taxpayer's case.' Ante, at 631. I respectfully suggest that the Court's interpretation of National Grocery will not withstand close scrutiny of the facts or its actual holding.12
76
National Grocery, its stock owned by a sole shareholder, was organized in 1908 with an authorized capital of $5,000; its business prospered over the years, so that by January 31, 1931 (the taxable year there at issue), its earned surplus was $7,939,000. These earnings notwithstanding, National Grocery's 'only dividends . . . ever paid . . . up to January 31, 1931, were a dividend of $25,000 in 1917, and a dividend of a like amount in 1918.' National Grocery Co. v. Commissioner, 35 B.T.A. 163, 164 (1936). The corporation's net profits for the four fiscal years preceding fiscal year 1931, all of which were retained rather than distributed, averaged in excess of $800,000 annually. National Grocery earned some $864,000 during the tax year in question, none of which was distributed as a dividend. Addressing the taxpayer's attempt to offset the depreciation of some of its assets, the Court noted:
77
'Depreciation in any of the assets is evidence to be considered by the Commissioner and the Board in determining the issue of fact whether the accumulation of profits was in excess of the reasonable needs of the business. But obviously depreciation in the market value of securities which the corporation continues to hold does not, as matter of law, preclude a finding that the accumulation of the year's profits was in excess of the reasonable needs of the business.' 304 U.S., at 291, 58 S.Ct., at 937.
78
When National Grocery is read in light of the facts and issues there presented—as it must be in order to understand the Court's passing statement—it is readily apparent that the holding in that case does not govern the issue here. The central issue there was the definition of 'gains and profits': specifically, whether 'gains,' a term replaced in the present statute by 'earnings,' qualified the meaning of 'profits.' The Court apparently felt justified in devoting little attention to the issue, for it was plain in light of the huge accumulation of earnings over time that the taxpayer would be liable even if it were allowed to offset the asserted depreciation. Finally, it is significant that National Grocery's 'accumulation of earnings' was computed on the basis of book value or cost. Indeed, all of the relevant figures were so computed, including the $7,393,000 surplus that had been accumulated over time.
79
I therefore find no justification for the view that National Grocery forecloses consideration of the question here presented. Moreover, even if I could agree with the Court's interpretation of that case, I would refuse to follow a rationale so plainly at odds with the statutory language and so conductive to uncertainty and unfairness.
V
80
The uncertainties that Court has now read into this penal statute correspondingly vest in the Internal Revenue Service an inappropriate latitude in its administration. In light of today's decision, the Commissioner will have wide and virtually uncontrolled discretion in deciding which corporations will be subject to additional taxation, or at least in deciding which will be required to rebut the presumption that earnings were accumulated to evade shareholder tax liability. Until today's decision, management, in trying to anticipate what a Commissioner would deem an unreasonable accumulation, at least could rely on the corporation's earned surplus account as establishing its accumulated earnings and profits. Now this dependable benchmark has become an 'irrelevant gauge' of a corporation's 'true financial condition,' and in many cases management can only speculate about the Commissioner's future determination of values nowhere reflected in the corporation's books. As commentators have noted, see B. Bittker & J. Eustice, Federal Income Taxation of Corporations and Shareholders 8.01 p. 8—4 (3d ed. 1971), the decision to impose the accumulated earnings tax inevitably involves 'a hindsight verdict on management's business judgment.' The Court's decision does not impose identifiable standards on the Commissioner's exercise of this extraordinary 'hindsight' authority, but leaves it open-ended. It is unlikely, to say the least, that Congress intended to leave small and medium-sized businesses—those most often the target of this tax—exposed to this degree of administrative discretion in the imposition of a potentially heavy penalty tax.
81
[Appendices start on page 653.]
82
APPENDIX A—1 TO OPINION OF POWELL, J., DISSENTING
83
The volatility and transient character of market prices of a common stock are illustrated by the following tables*
84
TABLE I
XEROX CORP. COMMON
STOCK**
% Change
High Low High to Low
Fluctuations in a single
day:
June 14, 1965............. 48.25 45 - 6.7
May 16, 1975................ 87 78.50 - 9.8
Fluctuations in a single
month:
November 1965.............. 66.50 57.50 -13.6
August 1974................. 98 74.25 -24.2
Fluctuations in a single
year:
1965........................ 71 31 -56.3
1974............ 127 49 -61.4
85
APPENDIX A—2 TO OPINION OF POWELL, J., DISSENTING
86
TABLE II
SELECTED STOCK RANGES DURING 1965*
Percent Percent
Change Change Change
Open to High to Open to
Name of Company High Low Close Close Low Close
Chrysler Corp. 62 1/4 41 5/8 53 3/8 - 7 5/8 -33.1% - 12.5%
Fairchild Camera 165 1/4 27 1/4 150 1/2 +123 -83.5% +447.3%
Financial Federation 37 1/4 19 5/8 23 7/8 - 13 1/8 -47.3% - 35.5%
General Dynamics 68 1/4 35 56 3/4 + 21 3/4 -48.7% + 62.1%
W. T. Grant 62 1/4 35 7/8 62 1/4 + 25 3/4 -42.4% + 70.5%
Grolier, Inc 60 1/2 37 55 3/4 -- -38.8% --
Gulf & Western Ind 102 31 1/8 92 7/8 + 61 1/8 -69.5% +192.5%
KLM Airlines 81 7/8 19 3/4 79 + 59 -75.9% +295.0%
Ling Tempco Vaught 58 17 1/4 48 1/4 + 30 3/4 -70.3% +175.7%
Pan American Airways 55 5/8 25 1/4 51 1/8 + 22 5/8 -54.6% + 79.4%
Pennsylvania Railroad 65 35 1/8 64 3/8 + 25 3/4 -46.0% + 66.7%
Polaroid Corp 130 44 1/4 116 5/8 + 70 3/4 -66.0% +154.2%
RCA Corp 50 1/2 31 47 1/4 + 13 3/8 -38.6% + 39.5%
United Airlines 118 5/8 58 5/8 104 3/4 + 45 1/2 -50.6% + 76.8%
White Consolidated
Ind 49 1/2 17 3/8 48 3/4 + 30 3/4 -64.9% +170.8%
Xerox Corp 215 94 7/8 202 +103 3/8 -55.9% +104.8%
87
APPENDIX A—3 TO OPINION OF POWELL, J., DISSENTING
88
TABLE III
SELECTED STOCK RANGES DURING 1974*>
Percent Percent
Change Change Change
Open to High to Open to
Name of Company High Low Close Close Low Close
ACF Industries........... 61 1/4 28 3/4 33 -24 7/8 -53.0% -43.0%
Addressograph-Multigraph 11 3/4 3 3 3/8 - 6 1/2 -74.5% -65.8%
Citizens & Southern Realty 31 3/4 2 2 5/8 -26 3/4 -93.7% -91.1%
Chrysler Corp............. 20 1/8 7 7 1/4 - 8 3/8 -65.2% -53.6%
Coca Cola Co............. 127 3/4 44 5/8 53 -73 1/2 -65.1% -58.1%
Combustion Engineering... 106 1/4 21 5/8 26 1/4 -78 3/4 -79.6% -75.05
Consolidated Edison...... 21 1/2 6 7 1/2 -11 1/4 -72.1% -60.0%
Continental Illinois Corp 59 1/4 23 1/4 26 5/8 -25 1/4 -60.8% -48.7%
Cousins Mortgage......... 23 3/4 1 1/8 1 3/8 -18 7/8 -95.3% -93.2%
E. I. duPont............... 179 84 1/2 92 1/4 -66 3/4 -52.8% -42.0%
Eastman Kodak............ 117 1/2 57 5/8 62 7/8 -53 1/8 -51.0% -45.8%
Fidelity Mtge. Invest.... 10 1/4 9/16 15/16 -5 15/16 -94.5% -86.4%
Foster Wheeler........... 64 1/2 13 15 1/8 -45 -79.8% -74.8%
Holly Sugar................ 39 12 1/8 26 1/4 +13 3/4 -68.9% +110.0%
Honeywell, Inc.. 86 1/4 17 1/2 21 -49 1/8 -79.7% - 70.1%
Page 657
89
Percent Percent
Change Change Change
Open to High to Open to
Name of Company High Low Close Close Low Close
Moore McCormack Resources 34 1/4 12 3/8 28 1/2 +15 3/4 -63.9% +123.5%
RCA Corp.................. 21 1/2 9 1/4 10 3/4 - 7 3/4 -57.0% - 41.9%
Stone & Webster........... 89 7/8 31 1/2 33 3/8 -56 -65.0% - 62.7%
Tri South Mtge. Investors 27 1/4 2 2 3/4 -21 1/8 -92.7% - 88.5%
Union Camp Corp............ 63 37 1/4 38 7/8 -20 3/8 -40.9% - 34.4%
Union Carbide............... 46 31 3/4 41 3/8 + 7 1/4 -31.0% + 21.3%
Xerox Corp................ 127 1/8 49 51 1/2 -71 1/4 -61.5% - 58.0%
Great Western United...... 31 1/4 3 1/8 24 1/4 +20 3/4 -90.0% +592.9%
Great American Mortgages 32 1 1 1/8 -28 7/8 -98.8% - 96.3%
RANGE IN AVERAGES
12/31/73 High Low 12/31/74
Dow Jones Industrial Average 850.86 891.66 577.6 616.24
Percent Change High to Low 35.2%
Standard & Poor's 500 Index..... 97.55 99.80 62.28 68.24
Percent Change High toLow...... -37.6%
90
APPENDIX A—4 TO OPINION OF POWELL, J., DISSENTING
TABLE IV
WALL STREET JOURNAL
Friday, May 16, 1975, p. 33
91
Daily Percentage Leaders On N. Y. Stock Exchange
92
NEW YORK—The following list shows the stocks that have gone up the most and down the most based on percent of change on the New York Stock Exchange regardless of volume for Thursday.
93
Net and percentage changes are the difference between the previous closing price and yesterdat's last price.
94
UPS
Name Sales (hds) High Low Last Net Pct.
1 Welbilt Cp. 56 1 1/4 1 1 1/4 + 1/4 Up 25.0
2 Int T&T pfF. 1 68 68 68 + 8 Up 13.3
3 IDS Rlty Tr. 293 5 3/8 4 7/8 5 3/8 + 5/8 Up 13.2
4 Centrn Data 811 19 1/2 17 3/8 18 5/8 1 3/4 Up 10.4
5 Texfi Ind. 13 5 3/8 5 1/4 5 3/8 + 1/2 Up 10.3
6 Heler Int pf. 2 121 1/4 121 1/4 121 1/4 + 11 1/4 Up 10.2
7 CCI Corp. 9 1 1/2 1 1/2 1 1/2 + 1/8 Up 9.1
8 Royal Ind. 150 4 7/8 4 1/2 4 5/8 + 3/8 Up 8.8
9 Readg Co. 58 3 1/4 3 1/8 3 1/8 + 1/4 Up 8.7
10 Rockower 50 9 5/8 8 3/4 9 1/2 + 3/4 Up 8.6
DOWNS
Name Sales (hds) High Low Last Net Pct.
1 Falstaff 178 4 3 3/8 3 3/8 - 7/8 Off 20.6
2 SeabCst Lin. 2825 24 3/8 22 5/8 23 3/4 - 4 5/8 Off 16.3
3 Emp 4.75pf. z100 4 1/4 4 1/4 4 1/4 - 5/8 Off 12.8
4 Bulova Wat. 77 8 1/2 7 1/2 7 1/2 - 1 Off 11.8
5 Leh Vallnd. 32 1 1/4 1 1/8 1 1/8 - 1/8 Off 10.0
6 Adams Drg. 116 3 7/8 3 1/2 3 1/2 - 3/8 Off 9.7
7 Benguet B. 226 2 3/4 2 1/2 2 1/2 - 1/4 Off 9.1
8 ChaseMTr. 325 4 1/8 3 3/4 3 3/4 - 3/8 Off 9.1
9 Plan Resrch. 212 4 3/8 3 7/8 3 7/8 - 3/8 Off 8.8
10 Xerox Cp. 3350 87 78 1/2 78 5/8 - 7 5/8 Off 8.8
1
'§ 531. Imposition of accumulated earnings tax.
'In addition to other taxes imposed by this chapter, there is hereby imposed for each taxable year on the accumulated taxable income (as defined in section 535) of every corporation described in section 532, an accumulated earnings tax equal to the sum of—
'(1) 27 1/2 percent of the accumulated taxable income not in excess of $100,000, plus
'(2) 38 1/2 percent of the accumulated taxable income in excess of $100,000.'
2
'§ 532. Corporations subject to accumulated earnings tax.
'(a) General rule.
'The accumulated earnings tax imposed by section 531 shall apply to every corporation (other than those described in subsection (b)) formed or availed of for the purpose of avoiding the income tax with respect to its shareholders or the shareholders of any other corporation, by permitting earnings and profits to accumulate instead of being divided or distributed.'
3
'§ 533. Evidence of purpose to avoid income tax.
'(a) Unreasonable accumulation determinative of purpose.—
'For purposes of section 532, the fact that the earnings and profits of a corporation are permitted to accumulate beyond the reasonable needs of the business shall be determinative of the purpose to avoid the income tax with respect to shareholders, unless the corporation by the preponderance of the evidence shall prove to the contrary.'
4
In a proceeding before the United States Tax Court, § 534 allows the taxpayer to shift the burden of proof to the Commissioner of Internal Revenue. Section 535 defines 'accumulated taxable income' to mean the corporation's taxable income adjusted as specified; a credit is given for 'such part of the earnings and profits for the taxable year as are retained for the reasonable needs of the business,' with a minimum 'lifetime' credit of $100,000 ($150,000 for taxable years beginning after December 31, 1974, Pub.L. 94—12, § 304, 89 Stat. 45, 26 U.S.C. § 535(c)(2) (1970 ed., Supp. V). Finally, § 537 provides that the term 'reasonable needs of the business' includes 'the reasonably anticipated needs of the business.'
5
It is stipulated that the cost of converting the taxpayer's marketable securities into cash would have been the sum of a maximum of 6% of the fair market value of the securities (payable as a brokerage commission) and a maximum of 25% of such amount of the fair market value as exceeds the sum of the brokerage commission and the cost of the securities (payable as capital gains taxes). App. 55.
6
American Trading and Production Corporation, pursuant to our Rule 42, was granted permission to file a brief as amicus curiae in the present case. It asserts that no conflict exists between the decisions in this case and in its own case.
7
The income tax rates for a corporation are 22% of the first $25,000 of taxable income and 48% of the excess over $25,000. § 11 of the 1954 Code, 26 U.S.C. § 11. The graduated rates for an individual taxpayer range from 14% to 70%. § 1, 26 U.S.C. § 1.
8
The accumulated earnings tax originated in § II A, Subdivision 2, of the Tariff Act of October 3, 1913, 38 Stat. 166. This imposed a tax on the shareholders of a corporation 'formed or fraudulently availed of for the purpose of preventing the imposition of such tax through the medium of permitting such gains and profits to accumulate instead of being divided or distributed.' Accumulations 'beyond the reasonable needs of the business shall be prima facie evidence of a fraudulent purpose to escape such tax.' Id., at 167. The same provision appeared as § 3 of the Revenue Act of 1916, 39 Stat. 758, and again as § 220 of the Revenue Act of 1918, 40 Stat. 1072 (1919), except that in the 1918 Act the word 'fraudulently' was deleted. This change was effected inasmuch as the Senate felt that the former phraseology 'has proved to be of little value, because it was necessary to its application that intended fraud on the revenue be established in each case.' S.Rep.No.617, 65th Cong., 3d Sess., 5 (1918).
This pattern of tax on the shareholders was changed with the Revenue Act of 1921, § 220, 42 Stat. 247. The incidence of the tax was shifted from the shareholders to the corporation itself. Judge Learned Hand opined that the change was due to doubts 'as to the validity of taxing income which the taxpayers had never received, and in 1921 it was thought safer to tax the company itself.' United Business Corp. v. Commissioner, 62 F.2d 754, 756 (CA2), cert. denied, 290 U.S. 635, 54 S.Ct. 53, 78 L.Ed. 552 (1933).
Although the statutory language has varied somewhat from time to time, the income tax law, since the change effected by the Revenue Act of 1921, consistently has imposed the tax on the corporation, rather than upon the shareholders. Revenue Act of 1924, § 220, 43 Stat. 277; Revenue Act of 1926, § 220, 44 Stat. 34; Revenue Act of 1928, § 104, 45 Stat. 814; Revenue Act of 1932, § 104, 47 Stat. 195; Revenue Act of 1934, § 102, 48 Stat. 702; Revenue Act of 1936, § 102, 49 Stat. 1676; Revenue Act of 1938, § 102, 52 Stat. 483; Internal Revenue Code of 1939, § 102.
9
In this case we are concerned only with readily marketable securities. We express no view with respect to items of a different kind, such as inventory or accounts receivable.
10
'The tax should be administered with its purpose in mind at all times, i.e., to prevent accumulations of income by the corporation for the purpose of avoiding the income tax ordinarily incident to the shareholders. It is not intended to serve as an obstacle to sound profit-oriented corporate management. The ultimate goal must be to administer the tax fairly, in light of the total economic reality of the corporation. Valuing liquid assets at cost invariably produces a poor and inaccurate picture of the corporate financial position. Adjusted fair market value may have shortcomings of its own, but it does, undeniably, come much closer to furthering the intent of the accumulated earnings tax.' Note, Accumulated Earnings Tax: Should Marketable Securities be Valued at Cost or at Fair Market Value in Determining the Reasonableness of Further Accumulations of Income?, 40 Brooklyn L.Rev. 192, 209—210 (1973).
11
We see little force in any observation that our emphasis on liquid assets means that a corporate taxpayer may avoid the accumulated earnings tax by merely investing in nonliquid assets. If such a step, in a given case, amounted to willful evasion of the accumulated earnings tax, it would be subject to criminal penalties. See, e.g., § 7201 of the 1954 Code 26 U.S.C. § 7201.
1
Unrealized appreciation is the difference between the cost basis of a retained asset and its market or appraised value, where the latter exceeds cost.
2
The cost basis for petitioner's Xerox securities for the 1966 tax year was some $14,000 less than for 1965, apparently reflecting the payment as a dividend of 870 shares of Xerox stock in 1965. The 'appreciation' figures used herein come from Petitioner's Brief and vary somewhat from the figures used by the Government, but the differences are insignificant in the context of this case. Rounded figures are used throughout this opinion.
3
The Court refers to net liquidation value, which reflects the asset's current market price less the costs and expenses attendant to its liquidation. The Court thus seeks to identify the sum that would be made available by a hypothetical sale of the asset in question, although nothing in the statute requires such a liquidation. For the purpose of discussion, I will refer simply to market value or market price.
4
There may be some ambiguity in the critical language stating the Court's theory of the case, ante, at 626, as to whether it intends the term 'accumulated' to refer only to earnings and profits accumulated in the tax year in question or to all accumulated and undistributed earnings as shown by the corporation's earned surplus account. I assume the Court refers to the latter, as the statutory lanugage and purpose contemplate consideration of the total accumulation in determining whether the retention of earnings and profits of a given year has been in excess of the amount justified by reasonable business needs.
5
It is not unusual, of course, for a corporation also to show parenthetically on its balance sheet, or in a footnote thereto, the market price of assets when that figure can be ascertained readily. But unrealized appreciated value, whether based on market price or an appraisal of the asset, is normally not included in the sum of a corporation's assets or in its surplus account on the liability side of its balance sheet.
6
See 11 W. Fletcher, Cyclopedia of the Law of Private Corporations §§ 5329, 5329.1, 5335, 5335.1 (1971). Some States have statutes expressly prohibiting recognition of unrealized appreciation as a source upon which a corporation can rely in determining the amount of a dividend that legally can be paid. E.g., Cal.Corp. Code §§ 1502, 1505 (1955); Ind.Ann.Stat. § 23—1—2 15(a) (1972). Other States have statutes allowing limited recognition of unrealized appreciation. E.g., Minn.Stat. § 301.22(1) (1974) (a corporation may take into account appreciation of 'securities having a readily ascertainable market value'; otherwise, unrealized appreciation may not be counted in computing earnings available for dividends); Ohio Rev.Code Ann. § 1701.33(A) (Supp. 1974) (allows only share dividends to be paid from unrealized appreciation). The decisional law of States lacking precise statutory guidance generally prohibits reliance on unrealized appreciation. 11 W. Fletcher, supra, at § 5335.1; H. Henn, Handbook of the Law of Corporations and Other Business Enterprises § 320, pp. 652—653 (1970).
Georgia's law follows the Model Business Corporation Act, allowing payment of cash or property dividends only out of earned surplus or current earnings. Ga.Code Ann. § 22—511(a)(1) (1970); Model Bus.Corp. Act § 45(a). Share dividends may be paid out of capital surplus on certain conditions, Ga. Code Ann. § 22 511(a)(4); Model Bus.Corp. Act § 45(d), and stricter conditions govern the declaration of cash or property dividends out of capital surplus. Ga.Code Ann. § 22—512; Model Bus. Corp. Act § 46. Commentators have suggested that under the Model Act a corporation could revalue its assets, creating capital surplus out of the unrealized appreciation, and then pay dividends out of the capital surplus, but that course of action is considered quite risky for the directors. Bugge, Unrealized Appreciation as a Source of Shareholder Distributions Under the Wisconsin Business Corporation Law, 1964 Wis.L.Rev. 292, 300—304, 312—313; Hackney, The Financial Provisions of the Model Business Corporation Act, 70 Harv.L.Rev. 1357, 1377—1381 (1957). Under Georgia law, Ga.Code Ann. § 22 715(c), as under the Model Act § 48, a director is not liable for an illegal dividend distribution if in computing the amount available for dividends he considers the corporate assets at their 'book value.'
7
Among other things, the term 'security' includes stocks, bonds, debentures, certificates of interest or participation in profitsharing agreements, collateral trust certificates, investment contracts, voting-trust certificates, fractional undivided interests in oil, gas, or other mineral rights, or 'in general, any interest or instrument commonly known as a 'security . . .." 48 Stat. 74, as amended, 15 U.S.C. § 77b(1); 48 Stat. 882, as amended, 15 U.S.C. § 78c(10). See United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 95 S.Ct. 2051, 44 L.Ed.2d 621 (1975).
8
The following hypothetical example suggests the difficulty of application of today's decision. If petitioner had invested the same $147,000 of earnings in southern pine timberlands, and if by the end of the tax years in question the unrealized appreciation in value of these lands was precisely the same $1,475,000 and $2,416,000, respectively, as was the appreciation of the Xerox stock here at issue, would the Commissioner have been entitled to take that unrealized appreciation into account? In many instances, well-situated timberlands have appreciated in value as much as or more than most marketable securities. Such lands are not carried on corporate balance sheets as current assets, and yet experience indicates that growing timber and timberlands are often highly marketable.
9
I hardly think that the Court's brandishment of the threat of criminal liability for willful tax evasion through investment in a particular type of asset, see ante, at 630 n. 11, will suffice to deter future investment decisions made with the intention of avoiding the pitfalls of this decision. I cannot agree with the Court's suggestion that this motivation would convert an otherwise legitimate investment choice into a criminal offense. Corporate management considers the potential tax implications of countless business decisions and might reasonably be expected to assess the possible impact of a choice between investing in nonliquid or liquid assets on its potential future liability for the accumulated earnings tax.
'The fact that the incidences of income taxation may have been taken into account by arranging matters one way rather than another so long as the way chosen was the way the law allows, does not make a transaction something else than it truly is . . ..' Commissioner v. Wodehouse, 337 U.S. 369, 410, 69 S.Ct. 1120, 1139, 93 L.Ed. 1419 (1949) (Frankfurter, J., dissenting).
This is especially true where questions of criminal liability are involved.
10
The following swings in the value of Xerox stock illustrate the point: on May 16, 1975, the high was 87 and the low 78 1/2. If petitioner continued to own 10,000 shares, its potentially available source of funds would have shrunk by $85,000 in a single day. In the month of August 1974, Xerox varied in market price from 98 to a low of 74 1/4, a 24.2% swing. Again, assuming a holding of 10,000 shares, the owner would have suffered paper 'losses' in that one month of approximately $237,500, or about one-fourth of market value. Considering the entire calendar year of 1965, Xerox sold as high as 71 and as low as 31, a variation on the down side of 55.9% and on the up side of 120%. In dollars, a person who bought 10,000 shares of Xerox in 1965 at its lowest and sold at the highest price would have enjoyed a pretax profit of $400,000. But in 1974, in which the high was 127 and the low 49, a taxpayer whose Xerox stock was assessed on the day of the market's peak, and who continued to own it, would find himself at the later date having 'lost' 61% of what this Court deems the 'realisticc or 'true' value of the investment. See Appendix A—1, infra.
11
The wide gyrations in value of some of the equity securities listed in the Appendices to this opinion illustrate the point. For example, on May 16, 1975, the common stock of the Falstaff Corp. fell 20.6% in a single day. The Court's opinion assumes that corporate management should plan to satisfy future business needs from the unrealized appreciation in value of such securities at a given point in time. The instability of market prices of common stocks suggests that this assumption is unsound.
12
The basic facts of National Grocery are not fully revealed in this Court's opinion, but must be obtained from the opinions of the Board of Tax Appeals, 35 B.T.A. 163 (1936), the Court of Appeals for the Third Circuit, 92 F.2d 931 (1937), and the briefs filed in this Court by the parties. In addition to those set forth above, the following are relevant: the decline in market value of the taxpayer's listed securities in the fiscal year aggregated $943,500; the $2,000,000 shrinkage figure mentioned by this Court included, in addition, the taxpayer's attempted elimination of $1,068,000 cost value of bank stocks claimed to be wholly unmarketable. Brief for Respondent in No. 723, O.T.1937, pp. 34—35. In addition, as appears from the opinion of the Court of Appeals, National Grocery also claimed 'that (its) merchandise shrank in value well on to a quarter million dollars, and the real estate declined in value $125,000.' 92 F.2d at 933. All of this alleged depreciation and shrinkage was claimed to have occurred in the taxable year, and was sought to be offset against net earnings for that year.
*
Except as noted, all data in this Appendix were taken from published New York Stock Exchange quotations. The information presented here is selective and presented for illustrative purposes.
**All xerox quotations take into account the 1965 three-for-one split.
*
Source—New York Times—Monday, January 17,1966—for stock ranges only.
**Prices have been adjusted for additional shares received as a result of stock splits.
*
Source—Richmond Times-Dispatch, Sunday, Jan. 5, 1975, pp. E-6, E-7—for stock ranges only.
| 1112
|
422 U.S. 563
95 S.Ct. 2486
45 L.Ed.2d 396
J. B. O'CONNOR, Petitioner,v.Kenneth DONALDSON.
No. 74—8.
Argued Jan. 15, 1975.
Decided June 26, 1975.
Syllabus
Respondent, who was confined almost 15 years 'for care, maintenance, and treatment' as a mental patient in a Florida state hospital, brought this action for damages under 42 U.S.C. § 1983 against petitioner, the hospital's superintendent, and other staff members, alleging that they had intentionally and maliciously deprived him of his constitutional right to liberty. The evidence showed that respondent, whose frequent requests for release had been rejected by petitioner notwithstanding undertakings by responsible persons to care for him if necessary, was dangerous neither to himself nor others, and, if mentally ill, had not received treatment. Petitioner's principal defense was that he had acted in good faith, since state law, which he believed valid, had authorized indefinite custodial confinement of the 'sick,' even if they were not treated and their release would not be harmful, and that petitioner was therefore immune from any liability for monetary damages. The jury found for respondent and awarded compensatory and punitive damages against petitioner and a codefendant. The Court of Appeals, on broad Fourteenth Amendment grounds, affirmed the District Court's ensuing judgment entered on the verdict. Held:
1. A State cannot constitutionally confine, without more, a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends, and since the jury found, upon ample evidence, that petitioner did so confine respondent, it properly concluded that petitioner had violated respondent's right to liberty. Pp. 573-576.
2. Since the Court of Appeals did not consider whether the trial judge erred in refusing to give an instruction requested by petitioner concerning his claimed reliance on state law as authorization for respondent's continued confinement, and since neither court below had the benefit of this Court's decision in Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214, on the scope of a state official's qualified immunity under 42 U.S.C. § 1983, the case is vacated and remanded for consideration of petitioner's liability vel non for monetary damages for violating respondent's constitutional right. Pp. 576-577.
493 F.2d 507, vacated and remanded.
Raymond W. Gearey, Jr., Tallahassee, Fla., for petitioner, pro hac vice, by special leave of Court.
Bruce J. Ennis, New York City, for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The respondent, Kenneth Donaldson, was civilly committed to confinement as a mental patient in the Florida State Hospital at Chattachoochee in January 1957. He was kept in custody there against his will for nearly 15 years. The petitioner, Dr. J. B. O'Connor, was the hospital's superintendent during most of this period. Throughout his confinement Donaldson repeatedly, but unsuccessfully, demanded his release, claiming that he was dangerous to no one, that he was not mentally ill, and that, at any rate, the hospital was not providing treatment for his supposed illness. Finally, in February 1971, Donaldson brought this lawsuit under 42 U.S.C. § 1983, in the United States District Court for the Northern District of Florida, alleging that O'Connor, and other members of the hospital staff named as defendants, had intentionally and maliciously deprived him of his constitutional right to liberty.1 After a fourday trial, the jury returned a verdict assessing both compensatory and punitive damages against O'Connor and a codefendant. The Court of Appeals for the Fifth Circuit affirmed the judgment, 493 F.2d 507. We granted O'Connor's petition for certiorari, 419 U.S. 894, 95 S.Ct. 171, 42 L.Ed.,2d 138 because of the important constitutional questions seemingly presented.
2
* Donaldson's commitment was initiated by his father, who thought that his son was suffering from 'delusions.' After hearings before a county judge of Pinellas County, Fla., Donaldson was found to be suffering from 'paranoid schizophrenia' and was committed for 'care, maintenance, and treatment' pursuant to Florida statutory provisions that have since been repealed.2 The state law was less than clear in specifying the grounds necessary for commitment, and the record is scanty as to Donaldson's condition at the time of the judicial hearing. These matters are, however, irrelevant, for this case involves no challenge to the initial commitment, but is focused, instead, upon the nearly 15 years of confinement that followed.
3
The evidence at the trial showed that the hospital staff had the power to release a patient, not dangerous to himself or others, even if he remained mentally ill and had been lawfully committed.3 Despite many requests, O'Connor refused to allow that power to be exercised in Donaldson's case. At the trial, O'Connor indicated that he had believed that Donaldson would have been unable to make a 'successful adjustment outside the institution,' but could not recall the basis for that conclusion. O'Connor retired as superintendent shortly before this suit was filed. A few months thereafter, and before the trial, Donaldson secured his release and a judicial restoration of competency, with the support of the hospital staff.
4
The testimony at the trial demonstrated, without contradiction, that Donaldson had posed no danger to others during his long confinement, or indeed at any point in his life. O'Connor himself conceded that he had no personal or secondhand knowledge that Donaldson had ever committed a dangerous act. There was no evidence that Donaldson had ever been suicidal or been thought likely to inflict injury upon himself. One of O'Connor's codefendants acknowledged that Donaldson could have earned his own living outside the hospital. He had done so for some 14 years before his commitment, and immediately upon his release he secured a responsible job in hotel administration.
5
Furthermore, Donaldson's frequent requests for release had been supported by responsible persons willing to provide him any care he might need on release. In 1963, for example, a representative of Helping Hands, Inc., a halfway house for mental patients, wrote O'Connor asking him to release Donaldson to its care. The request was accompanied by a supporting letter from the Minneapolis Clinic of Psychiatry and Neurology, which a codefendant conceded was a 'good clinic.' O'Connor rejected the offer, replying that Donaldson could be released only to his parents. That rule was apparently of O'Connor's own making. At the time, Donaldson was 55 years old, and, as O'Connor knew, Donaldson's parents were too elderly and infirm to take responsibility for him. Moreover, in his continuing correspondence with Donaldson's parents, O'Connor never informed them of the Helping Hands offer. In addition, on four separate occasions between 1964 and 1968, John Lembcke, a college classmate of Donaldson's and a longtime family friend, asked O'Connor to release Donaldson to his care. On each occasion O'Connor refused. The record shows that Lembcke was a serious and responsible person, who was willing and able to assume responsibility for Donaldson's welfare.
6
The evidence showed that Donaldson's confinement was a simple regime of enforced custodial care, not a program designed to alleviate or cure his supposed illness. Numerous witnesses, including one of O'Connor's codefendants, testified that Donaldson had received nothing but custodial care while at the hospital. O'Connor described Donaldson's treatment as 'milieu therapy.' But witnesses from the hospital staff conceded that, in the context of this case, 'milieu therapy' was a euphemism for confinement in the 'milieu' of a mental hospital.4 For substantial periods, Donaldson was simply kept in a large room that housed 60 patients, many of whom were under criminal commitment. Donaldson's requests for ground privileges, occupational training, and an opportunity to discuss his case with O'Connor or other staff members were repeatedly denied.
7
At the trial, O'Connor's principal defense was that he had acted in good faith and was therefore immune from any liability for monetary damages. His position, in short, was that state law, which he had believed valid, had authorized indefinite custodial confinement of the 'sick,' even if they were not given treatment and their release could harm no one.5
8
The trial judge instructed the members of the jury that they should find that O'Connor had violated Donaldson's constitutional right to liberty if they found that he had
9
'confined (Donaldson) against his will, knowing that he was not mentally ill or dangerous or knowing that if mentally ill he was not receiving treatment for his alleged mental illness.
10
'Now, the purpose of involuntary hospitalization is treatment and not mere custodial care or punishment if a patient is not a danger to himself or others. Without such treatment there is no justification from a constitutional stand-point for continued confinement unless you should also find that (Donaldson) was dangerous to either himself or others.'6
11
The trial judge further instructed the jury that O'Connor was immune from damages if he
12
'reasonably believed in good faith that detention of (Donaldson) was proper for the length of time he was so confined . . ..
13
'However, mere good intentions which do not give rise to a reasonable belief that detention is lawfully required cannot justify (Donaldson's) confinement in the Florida State Hospital.'
14
The jury returned a verdict for Donaldson against O'Connor and a codefendant, and awarded damages of $38,500, including $10,000 in punitive damages.7
15
The Court of Appeals affirmed the judgment of the District Court in a broad opinion dealing with 'the farreaching question whether the Fourteenth Amendment guarantees a right to treatment to persons involuntarily civilly committed to state mental hospitals.' 493 F.2d, at 509. The appellate court held that when, as in Donaldson's case, the rationale for confinement is that the patient is in need of treatment, the Constitution requires that minimally adequate treatment in fact be provided. Id., at 521. The court further expressed the view that, regardless of the grounds for involuntary civil commitment, a person confined against his will at a state mental institution has 'a constitutional right to receive such individual treatment as will give him a reasonable opportunity to be cured or to improve his mental condition.' Id., at 520. Conversely, the court's opinion implied that it is constitutionally permissible for a State to confine a mentally ill person against his will in order to treat his illness, regardless of whether his illness renders him dangerous to himself or others. See id., at 522—527.
II
16
We have concluded that the difficult issues of constitutional law dealt with by the Court of Appeals are not presented by this case in its present posture. Specifically, there is no reason now to decide whether mentally ill persons dangerous to themselves or to others have a right to treatment upon compulsory confinement by the State, or whether the State may compulsorily confine a non-dangerous, mentally ill individual for the purpose of treatment. As we view it, this case raises a single, relatively simple, but nonetheless important question concerning every man's constitutional right to liberty.
17
The jury found that Donaldson was neither dangerous to himself nor dangerous to others, and also found that, if mentally ill, Donaldson had not received treatment.8 That verdict, based on abundant evidence, makes the issue before the Court a narrow one. We need not decide whether, when, or by what procedures, a mentally ill person may be confined by the State on any of the grounds which, under contemporary statutes, are generally advanced to justify involuntary confinement of such a person—to prevent injury to the public, to ensure his own survival or safety,9 or to alleviate or cure his illness. See Jackson v. Indiana, 406 U.S. 715, 736—737, 92 S.Ct. 1845, 1857 1858, 32 L.Ed.2d 435; Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 1052, 31 L.Ed.2d 394. For the jury found that none of the above grounds for continued confinement was present in Donaldson's case.10
18
Given the jury's findings, what was left as justification for keeping Donaldson in continued confinement? The fact that state law may have authorized confinement of the harmless mentally ill does not itself establish a constitutionally adequate purpose for the confinement. See Jackson v. Indiana, supra, 406 U.S., at 720 723, 92 S.Ct., at 1849—1851; McNeil v. Director, Patuxent Institution, 407 U.S. 245, 248—250, 92 S.Ct. 2083, 2086—2087, 37 L.Ed.2d 719. Nor is it enough that Donaldson's original confinement was founded upon a constitutionally adequate basis, if in fact it was, because even if his involuntary confinement was initially permissible, it could not constitutionally continue after that basis no longer existed. Jackson v. Indiana, supra, 406 U.S., at 738, 92 S.Ct., at 1858; McNeil v. Director, Patuxent Institution, supra.
19
A finding of 'mental illness' alone cannot justify a State's locking a person up against his will and keeping him indefinitely in simple custodial confinement. Assuming that that term can be given a reasonably precise content and that the 'mentally ill' can be identified with reasonable accuracy, there is still no constitutional basis for confining such persons involuntarily if they are dangerous to no one and can live safely in freedom.
20
May the State confine the mentally ill merely to ensure them a living standard superior to that they enjoy in the private community? That the State has a proper interest in providing care and assistance to the unfortunate goes without saying. But the mere presence of mental illness does not disqualify a person from preferring his home to the comforts of an institution. Moreover, while the State may arguably confine a person to save him from harm, incarceration is rarely if ever a necessary condition for raising the living standards of those capable of surviving safely in freedom, on their own or with the help of family or friends. See Shelton v. Tucker, 364 U.S. 479, 488—490, 81 S.Ct. 247, 252 253, 5 L.Ed.2d 231.
21
May the State fence in the harmless mentally ill solely to save its citizens from exposure to those whose ways are different? One might as well ask if the State, to avoid public unease, could incarcerate all who are physically unattractive or socially eccentric. Mere public intolerance or animosity cannot constitutionally justify the deprivation of a person's physical liberty. See, e.g., Cohen v. California, 403 U.S. 15, 24—26, 91 S.Ct. 1780, 1787—1789, 29 L.Ed.2d 284; Coates v. City of Cincinnati, 402 U.S. 611, 615, 91 S.Ct. 1686, 1689, 29 L.Ed.2d 214; Street v. New York, 394 U.S. 576, 592, 89 S.Ct. 1354, 1365 1366, 22 L.Ed.2d 572; cf. U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 2825—2826, 37 L.Ed.2d 782.
22
In short, a State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends. Since the jury found, upon ample evidence, that O'Connor, as an agent of the State, knowingly did so confine Donaldson, it properly concluded that O'Connor violated Donaldson's constitutional right to freedom.
III
23
O'Connor contends that in any event he should not be held personally liable for monetary damages because his decisions were made in 'good faith.' Specifically, O'Connor argues that he was acting pursuant to state law which, he believed, authorized confinement of the mentally ill even when their release would not compromise their safety or constitute a danger to others, and that he could not reasonably have been expected to know that the state law as he understood it was constitutionally invalid. A proposed instruction to this effect was rejected by the District Court.11
24
The District Court did instruct the jury, without objection, that monetary damages could not be assessed against O'Connor if he had believed reasonably and in good faith that Donaldson's continued confinement was 'proper,' and that punitive damages could be awarded only if O'Connor had acted 'maliciously or wantonly or oppressively.' The Court of Appeals approved those instructions. But that court did not consider whether it was error for the trial judge to refuse the additional instruction concerning O'Connor's claimed reliance on state law as authorization for Donaldson's continued confinement. Further, neither the District Court nor the Court of Appeals acted with the benefit of this Court's most recent decision on the scope of the qualified immunity possessed by state officials under 42 U.S.C. § 1983. Wood a Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214.
25
Under that decision, the relevant question for the jury is whether O'Connor 'knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of (Donaldson), or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to (Donaldson).' Id., at 322, 95 S.Ct. at 1001. See also Scheuer v. Rhodes, 416 U.S. 232, 247—248, 94 S.Ct. 1683, 1692, 40 L.Ed.2d 90; Wood v. Strickland, supra, 420 U.S., at 330, 95 S.Ct., at 1005 (opinion of Powell, J.). For purposes of this question, an official has, of course, no duty to anticipate unforeseeable constitutional developments. Wood v. Strickland, supra, at 322, 95 S.Ct., at 1004.
26
Accordingly, we vacate the judgment of the Court of Appeals and remand the case to enable that court to consider, in light of Wood v. Strickland, whether the District Judge's failure to instruct with regard to the effect of O'Connor's claimed reliance on state law rendered inadequate the instructions as to O'Connor's liability for compensatory and punitive damages.12
27
It is so ordered.
28
Vacated and remanded.
29
Mr. Chief Justice BURGER, concurring.
30
Although I join the Court's opinion and judgment in this case, it seems to me that several factors merit more emphasis than it gives them. I therefore add the following remarks.
31
* With respect to the remand to the Court of Appeals on the issue of official immunity from liability for monetary damages,1 it seems to me not entirely irrelevant that there was substantial evidence that Donaldson consistently refused treatment that was offered to him, claiming that he was not mentally ill and needed no treatment.2 The Court appropriately takes notice of the uncertainties of psychiatric diagnosis and therapy, and the reported cases are replete with evidence of the divergence of medical opinion in this vexing area. E.g., Greenwood v. United States, 350 U.S. 366, 375, 76 S.Ct. 410, 415, 100 L.Ed. 412 (1956). See also Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). Nonetheless, one of the few areas of agreement among behavioral specialists is that an uncooperative patient cannot benefit from therapy and that the first step in effective treatment is acknowledgment by the patient that he is suffering from an abnormal condition. See e.g., Katz, The Right to Treatment—An Enchanting Legal Fiction? 36 U.Chi.L.Rev. 755, 768—769 (1969). Donaldson's adamant refusal to do so should be taken into account in considering petitioner's good-faith defense.
32
Perhaps more important to the issue of immunity is a factor referred to only obliquely in the Court's opinion. On numerous occasions during the period of his confinement Donaldson unsuccessfully sought release in the Florida courts; indeed, the last of these proceedings was terminated only a few months prior to the bringing of this action. See 234 So.2d 114 (1969), cert. denied, 400 U.S. 869, 91 S.Ct. 104, 27 L.Ed.2d 109 (1970). Whatever the reasons for the state courts' repeated denials of relief, and regardless of whether they correctly resolved the issue tendered to them, petitioner and the other members of the medical staff at Florida State Hospital would surely have been justified in considering each such judicial decision as an approval of continued confinement and an independent intervening reason for continuing Donaldson's custody. Thus, this fact is inescapably related to the issue of immunity and must be considered by the Court of Appeals on remand and, if a new trial on this issue is ordered, by the District Court.3
II
33
As the Court points out, ante, at 570 n. 6,-the District Court instructed the jury in part that 'a person who is involuntarily civilly committed to a mental hospital does have a constitutional right to receive such treatment as will give him a realistic opportunity to be cured,' (emphasis added), and the Court of Appeals unequivocally approved this phrase, standing alone, as a correct statement of the law. 493 F.2d 507, 520 (CA5 1974). The Court's opinion plainly gives no approval to that holding and makes clear that it binds neither the parties to this case nor the courts of the Fifth Circuit. See ante, at 577-578, n. 12. Moreover, in light of its importance for future litigation in this area, it should be emphasized that the Court of Appeals' analysis has no basis in the decisions of this Court.
A.
34
There can be no doubt that involuntary commitment to a mental hospital, like involuntary confinement of an individual for any reason, is a deprivation of liberty which the State cannot accomplish without due process of law. Specht v. Patterson, 386 U.S. 605, 608, 87 S.Ct. 1209, 1211, 18 L.Ed.2d 326 (1967). Cf. In re Gault, 387 U.S. 1, 12—13, 87 S.Ct. 1428, 1435—1436, 18 L.Ed.2d 527 (1967). Commitment must be justified on the basis of a legitimate state interest, and the reasons for committing a particular individual must be established in an appropriate proceeding. Equally important, confinement must cease when those reasons no longer exist. See McNeil v. Director, Patuxent Institution, 407 U.S. 245, 249—250, 92 S.Ct. 2083, 2086—2087, 32 L.Ed.2d 719 (1972); Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435 (1972).
35
The Court of Appeals purported to be applying these principles in developing the first of its theories supporting a constitutional right to treatment. It first identified what it perceived to be the traditional bases for civil commitment physical dangerousness to oneself or others, or a need for treatment—and stated:
36
'(W)here, as in Donaldson's case, the rationale for confinement is the 'parens patriae' rationale that the patient is in need of treatment, the due process clause requires that minimally adequate treatment be in fact provided. . . . 'To deprive any citizen of his or her liberty upon the altruistic theory that the confinement is for humane therapeutic reasons and then fail to provide adequate treatment violates the very fundamentals of due process." 493 F.2d, at 521.
37
The Court of Appeals did not explain its conclusion that the rationale for respondent's commitment was that he needed treatment. The Florida statutes in effect during the period of his confinement did not require that a person who had been adjudicated incompetent and ordered committed either be provided with psychiatric treatment or released, and there was no such condition in respondent's order of commitment. Cf. Rouse v. Cameron, 125 U.S.App.D.C. 366, 373 F.2d 451 (1967). More important, the instructions which the Court of Appeals read as establishing an absolute constitutional right to treatment did not require the jury to make any findings regarding the specific reasons for respondent's confinement or to focus upon any rights he may have had under state law. Thus, the premise of the Court of Appeals' first theory must have been that, at least with respect to persons who are not physically dangerous, a State has no power to confine the mentally ill except for the purpose of providing them with treatment.
38
That proposition is surely not descriptive of the power traditionally exercised by the States in this area. Historically, and for a considerable period of time, subsidized custodial care in private foster homes or boarding houses was the most benign form of care provided incompetent or mentally ill persons for whom the States assumed responsibility. Until well into the 19th century the vast majority of such persons were simply restrained in poorhouses, almshouses, or jails. See A. Deutsch, The Mentally Ill in America 38—54, 114—131 (2d ed. 1949). The few States that established institutions for the mentally ill during this early period were concerned primarily with providing a more humane place of confinement and only secondarily with 'curing' the persons sent there. See id., at 98—113.
39
As the trend toward state care of the mentally ill expanded, eventually leading to the present statutory schemes for protecting such persons, the dual functions of institutionalization continued to be recognized. While one of the goals of this movement was to provide medical treatment to those who could benefit from it, it was acknowledged that this could not be done in all cases and that there was a large range of mental illness for which no known 'cure' existed. In time, providing places for the custodial confinement of the so-called 'dependent insane' again emerged as the major goal of the States' programs in this area and remained so well into this century. See id., at 228—271; D. Rothman, The Discovery of the Asylum 264—295 (1971).
40
In short, the idea that States may not confine the mentally ill except for the purpose of providing them with treatment is of very recent origin,4 and there is no historical basis for imposing such a limitation on state power. Analysis of the sources of the civil commitment power likewise lends no support to that notion. There can be little doubt that in the exercise of its police power a State may confine individuals solely to protect society from the dangers of significant antisocial acts or communicable disease. Cf. Minnesota ex rel. Pearson v. Probate Court of Ramsey County, 309 U.S. 270, 60 S.Ct. 523, 84 L.Ed. 744 (1940); Jacobson v. Massachusetts, 197 U.S. 11, 25—29, 25 S.Ct. 358, 360—362, 49 L.Ed. 643 (1905). Additionally, the States are vested with the historic parens patriae power, including the duty to protect 'persons under legal disabilities to act for themselves.' Hawaii v. Standard Oil Co., 405 U.S. 251, 257, 92 S.Ct. 885, 888, 31 L.Ed.2d 184 (1972). See also Mormon Church v. United States, 136 U.S. 1, 56—58, 10 S.Ct. 792, 807—808, 34 L.Ed. 481 (1890). The classic example of this role is when a State undertakes to act as "the general guardian of all infants, idiots, and lunatics." Hawaii v. Standard Oil Co., supra, 405 U.S., at 257, 92 S.Ct., at 888, quoting 3 W. Blackstone, Commentaries *47.
41
Of course, an inevitable consequence of exercising the parens patriae power is that the ward's personal freedom will be substantially restrained, whether a guardian is appointed to control his property, he is placed in the custody of a private third party, or committed to an institution. Thus, however the power is implemented, due process requires that it not be invoked indiscriminately. At a minimum, a particular scheme for protection of the mentally ill must rest upon a legislative determination that it is compatible with the best interests of the affected class and that its members are unable to act for themselves. Cf. Mormon Church v. United States, supra. Moreover, the use of alternative forms of protection may be motivated by different considerations, and the justifications for one may not be invoked to rationalize another. Cf. Jackson v. Indiana, 406 U.S., at 737 738, 92 S.Ct., at 1857—1858. See also American Bar Foundation, The Mentally Disabled and the Law 254—255 (S. Brakel & R. Rock ed. 1971).
42
However, the existence of some due process limitations on the parens patriae power does not justify the further conclusion that it may be exercised to confine a mentally ill person only if the purpose of the confinement is treatment. Despite many recent advances in medical knowledge, it remains a stubborn fact that there are many forms of mental illness which are not understood, some which are untreatable in the sense that no effective therapy has yet been discovered for them, and that rates of 'cure' are generally low. See Schwitzgebel, The Right to Effective Mental Treatment, 62 Calif.L.Rev. 936, 941—948 (1974). There can be little responsible debate regarding 'the uncertainty of diagnosis in this field and the tentativeness of professional judgment.' Greenwood v. United States, 350 U.S., at 375, 76 S.Ct., at 415. See also Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Calif.L.Rev. 693, 697—719 (1974).5 Similarly, as previously observed, it is universally recognized as fundamental to effective therapy that the patient acknowledge his illness and cooperate with those attempting to give treatment; yet the failure of a large proportion of mentally ill persons to do so is a common phenomenon. See Katz, supra, 36 U.Chi.L.Rev., at 768—769. It may be that some persons in either of these categories,6 and there may be others, are unable to function in society and will suffer real harm to themselves unless provided with care in a sheltered environment. See, e.g., Lake v. Cameron, 124 U.S.App.D.C. 264, 270—271, 364 F.2d 657, 663—664 (1966) (dissenting opinion). At the very least, I am not able to say that a state legislature is powerless to make that kind of judgment. See Greenwood v. United States, supra.
B
43
Alternatively, it has been argued that a Fourteenth Amendment right to treatment for involuntarily confined mental patients derives from the fact that many of the safeguards of the criminal process are not present in civil commitment. The Court of Appeals described this theory as follows:
44
'(A) due process right to treatment is based on the principle that when the three central limitations on the government's power to detain—that detention be in retribution for a specific offense; that it be limited to a fixed term; and that it be permitted after a proceeding where the fundamental procedural safeguards are observed—are absent, there must be a quid pro quo extended by the government to justify confinement. And the quid pro quo most commonly recognized is the provision of rehabilitative treatment.' 493 F.2d, at 522.
45
To the extent that this theory may be read to permit a State to confine an individual simply because it is willing to provide treatment, regardless of the subject's ability to function in society, it raises the gravest of constitutional problems, and I have no doubt the Court of Appeals would agree on this score. As a justification for a constitutional right to such treatment, the quid pro quo theory suffers from equally serious defects. this ground. E.g., Developments in the Law—Civil discussion that due process is not an inflexible concept. Rather, its requirements are determined in particular instances by identifying and accommodating the interests of the individual and society. See, e.g., Morrissey v. Brewer, 408 U.S. 471, 480—484, 92 S.Ct. 2593, 2599—2602, 33 L.Ed.2d 484 (1972); McNeil v. Director, Patuxent Institution, 407 U.S., at 249—250, 92 S.Ct., at 2086—2087; McKeiver v. Pennsylvania, 403 U.S. 528, 545—555, 91 S.Ct. 1976, 1986—1991, 29 L.Ed.2d 647 (1971) (plurality opinion). Where claims that the State is acting in the best interests of an individual are said to justify reduced procedural and substantive safeguards, this Court's decisions require that they be 'candidly appraised.' In re Gault, 387 U.S., at 21, 27—29, 87 S.Ct., at 1440, 1443—1445. However, in so doing judges are not free to read their private notions of public policy or public health into the Constitution. Olsen v. Nebraska ex rel. Western Reference & Bond Ass'n, 313 U.S. 236, 246—247, 61 S.Ct. 862, 865—866, 85 L.Ed. 1305 (1941).
46
The quid pro quo theory is a sharp departure from, and cannot coexist with, due process principles. As an initial matter, the theory presupposes that essentially the same interests are involved in every situation where a State seeks to confine an individual; that assumption, however, is incorrect. It is elementary that the justification for the criminal process and the unique deprivation of liberty which it can impose requires that it be invoked only for commission of a specific offense prohibited by legislative enactment. See Powell v. Texas, 392 U.S. 514, 541—544, 88 S.Ct. 2145, 2158—2160, 20 L.Ed.2d 1254 (1968) (opinion of Black, J.).7 But it would be incongruous, for example, to apply the same limitation when quarantine is imposed by the State to protect the public from a highly communicable disease. See Jacobson v. Massachusetts, 197 U.S., at 29—30, 25 S.Ct., at 362 363.
47
A more troublesome feature of the quid pro quo theory is that it would elevate a concern for essentially procedural safeguards into a new substantive constitutional right.8 Rather than inquiring whether strict standards of proof or periodic redetermination of a patient's condition are required in civil confinement, the theory accepts the absence of such safeguards but insists that the State provide benefits which, in the view of a court, are adequate 'compensation' for confinement. In light of the wide divergence of medical opinion regarding the diagnosis of and proper therapy for mental abnormalities, that prospect is especially troubling in this area and cannot be squared with the principle that 'courts may not substitute for the judgments of legislators their own understanding of the public welfare, but must instead concern themselves with the validity under the Constitution of the methods which the legislature has selected.' In re Gault, 387 U.S., at 71, 87 S.Ct., at 1466 (Harlan, J., concurring and dissenting). Of course, questions regarding the adequacy of procedure and the power of a State to continue particular confinements are ultimately for the courts, aided by expert opinion to the extent that is found helpful. But I am not persuaded that we should abandon the traditional limitations on the scope of judicial review.
C
48
In sum, I cannot accept the reasoning of the Court of Appeals and can discern no basis for equating an involuntarily committed mental patient's unquestioned constitutional right not to be confined without due process of law with a constitutional right to treatment.9 Given the present state of medical knowledge regarding abnormal human behavior and its treatment, few things would be more fraught with peril than to irrevocably condition a State's power to protect the mentally ill upon the providing of 'such treatment as will give (them) a realistic opportunity to be cured.' Nor can I accept the theory that a State may lawfully confine an individual thought to need treatment and justify that deprivation of liberty solely by providing some treatment. Our concepts of due process would not tolerate such a 'trade-off.' Because the Court of Appeals' analysis could be read as authorizing those results, it should not be followed.
1
Donaldson's original complaint was filed as a class action on behalf of himself and all of his fellow patients in an entire department of the Florida State Hospital at Chattahoochee. In addition to a damages claim, Donaldson's complaint also asked for habeas corpus relief ordering his release, as well as the release of all members of the class. Donaldson further sought declaratory and injunctive relief requiring the hospital to provide adequate psychiatric treatment.
After Donaldson's release and after the District Court dismissed the action as a class suit, Donaldson filed an amended complaint, repeating his claim for compensatory and punitive damages. Although the amended complaint retained the prayer for declaratory and injunctive relief, that request was eliminated from the case prior to trial. See 493 F.2d 507, 512—513.
2
The judicial commitment proceedings were pursuant to § 394.22(11) of the State Public Health Code, which provided:
'Whenever any person who has been adjudged mentally incompetent requires confinement or restraint to prevent self-injury or violence to others, the said judge shall direct that such person be forthwith delivered to a superintendent of a Florida state hospital, for the mentally ill, after admission has been authorized under regulations approved by the board of commissioners of state institutions, for care, maintenance, and treatment, as provided in sections 394.09, 394.24, 394.25, 394.26 and 394.27, or make such other disposition of him as he may be permitted by law . . ..' Fla.Laws 1955—1956 Extra. Sess., c. 31403, § 1, p. 62.
Donaldson had been adjudged 'incompetent' several days earlier under § 394.22(1), which provided for such a finding as to any person who was
'incompetent by reason of mental illness, sickness, drunkenness, excessive use of drugs, insanity, or other mental or physical condition, so that he is incapable of caring for himself or managing his property, or is likely to dissipate or lose his property or become the victim of designing persons, or inflict harm on himself or others . . ..' Fla.Gen.Laws 1955, c. 29909, § 3, p. 831.
It would appear that § 394.22(11)(a) contemplated that involuntary commitment would be imposed only on those 'incompetent' persons who 'require(d) confinement or restraint to prevent self-injury or violence to others.' But this is not certain, for § 394.22(11)(c) provided that the judge could adjudicate the person a 'harmless incompetent' and release him to a guardian upon a finding that he did 'not require confinement or restraint to prevent self-injury or violence to others and that treatment in the Florida State Hospital is unnecessary or would be without benefit to such person . . ..' Fla.Gen.Laws 1955, c. 29909, § 3, p. 835 (emphasis added). In this regard, it is noteworthy that Donaldson's 'Order for Delivery of Mentally Incompetent' to the Floida State Hospital provided that he required 'confinement or restraint to prevent self-injury or violence to others, or to insure proper treatment.' (Emphasis added.) At any rate, the Florida commitment statute provided no judicial procedure whereby one still incompetent could secure his release on the ground that he was no longer dangerous to himself or others.
Whether the Florida statute provided a 'right to treatment' for involuntarily committed patients is also open to dispute. Under § 394.22(11)(a), commitment 'to prevent self-injury or violence to others' was 'for care, maintenance, and treatment.' Recently Florida has totally revamped its civil commitment law and now provides a statutory right to receive individual medical treatment. Fla.Stat.Ann. § 394.459 (1973).
3
The sole statutory procedure for release required a judicial reinstatement of a patient's 'mental competency.' Public Health Code §§ 394.22(15) and (16), Fla.Gen.Laws 1955, c. 29909, § 3, pp. 838—841. But this procedure could be initiated by the hospital staff. Indeed, it was at the staff's initiative that Donaldson was finally restored to competency, and liberty, almost immediately after O'Connor retired from the superintendency.
In addition, witnesses testified that the hospital had always had its own procedure for releasing patients—for 'trial visits,' 'home visits,' 'furloughs,' or 'out of state discharges'—even though the patients had not been judicially restored to competency. Those conditional releases often became permanent, and the hospital merely closed its books on the patient. O'Connor did not deny at trial that he had the power to release patients; he conceded that it was his 'duty' as superintendent of the hospital 'to determine whether that patient having once reached the hospital was in such condition as to request that he be considered for release from the hospital.'
4
There was some evidence that Donaldson, who is a Christian Scientist, on occasion refused to take medication. The trial judge instructed the jury not to award damages for any period of confinement during which Donaldson had declined treatment.
5
At the close of Donaldson's case in chief, O'Connor moved for a directed verdict on the ground that state law at the time of Donaldson's confinement authorized institutionalization of the mentally ill even if they posed no danger to themselves or others. This motion was denied. At the close of all the evidence, O'Connor asked that the jury be instructed that 'if defendants acted pursuant to a statute which was not declared unconstitutional at the time, they cannot be held accountable for such action.' The District Court declined to give this requested instruction.
6
The District Court defined treatment as follows:
'You are instructed that a person who is involuntarily civilly committed to a mental hospital does have a constitutional right to receive such treatment as will give him a realistic opportunity to be cured or to improve his mental condition.' (Emphasis added.) O'Connor argues that this statement suggests that a mental patient has a right to treatment even if confined by reason of dangerousness to himself or others. But this is to take the above paragraph out of context, for it is bracketed by paragraphs making clear the trial
judge's theory that treatment is constitutionally required only if mental illness alone, rather than danger to self or others, is the reason for confinement. If O'Connor had thought the instructions ambiguous on this point, he could have objected to them and requested a clarification. He did not do so. We accordingly have no occasion here to decide whether persons committed on grounds of dangerousness enjoy a 'right to treatment.'
In pertinent part, the instructions read as follows:
'The Plaintiff claims in brief that throughout the period of his hospitalization he was not mentally ill or dangerous to himself or others, and claims further that if he was mentally ill, or if Defendants believed he was mentally ill, Defendants withheld from him the treatment necessary to improve his mental condition.
'The Defendants claim, in brief, that Plaintiff's detention was legal and proper, or if his detention was not legal and proper, it was the result of mistake, without malicious intent.
'In order to prove his claim under the Civil Rights Act, the burden is upon the Plaintiff in this case to establish by a preponderance of the evidence in this case the following facts:
'That the Defendants confined Plaintiff against his will, knowing that he was not mentally ill or dangerous or knowing that if mentally ill he was not receiving treatment for his alleged mental illness.
'(T)hat the Defendants' acts and conduct deprived the Plaintiff of his Federal Constitutional right not to be denied or deprived of his liberty without due process of law as that phrase is defined and explained in these instructions . . ..
'You are instructed that a person who is involuntarily civilly committed to a mental hospital does have a constitutional right to receive such treatment as will give him a realistic opportunity to be cured or to improve his mental condition.
'Now, the purpose of involuntary hospitalization is treatment and not mere custodial care or punishment if a patient is not a danger to himself or others. Without such treatment there is no justifica-
tion from a constitutional stand-point for continued confinement unless you should also find that the Plaintiff was dangerous either to himself or others.'
7
The trial judge had instructed that punitive damages should be awarded only if 'the act or omission of the Defendant or Defendants which proximately caused injury to the Plaintiff was maliciously or wantonly or oppressively done.'
8
Given the jury instructions, see n. 6 supra, it is possible that the jury went so far as to find that O'Connor knew not only that Donaldson was harmless to himself and others but also that he was not mentally ill at all. If it so found, the jury was permitted by the instructions to rule against O'Connor regardless of the nature of the 'treatment' provided. If we were to construe the jury's verdict in that fashion, there would remain no substantial issue in this case: That a wholly sane and innocent person has a constitutional right not to be physically confined by the State when his freedom will pose a danger neither to himself nor to others cannot be seriously doubted.
9
The judge's instructions used the phrase 'dangerous to himself.' Of course, even if there is no foreseeable risk of self-injury or suicide, a person is literally 'dangerous to himself' if for physical or other reasons he is helpless to avoid the hazards of freedom either through his own efforts or with the aid of willing family members or friends. While it might be argued that the judge's instructions could have been more detailed on this point, O'Connor raised no objection to them, presumably because the evidence clearly showed that Donaldson was not 'dangerous to himself' however broadly that phrase might be defined.
10
O'Connor argues that, despite the jury's verdict, the Court must assume that Donaldson was receiving treatment sufficient to justify his confinement, because the adequacy of treatment is a 'nonjusticiable' question that must be left to the discretion of the psychiatric profession. That argument is unpersuasive. Where 'treatment' is the sole asserted ground for depriving a person of liberty, it is plainly unacceptable to suggest that the courts are powerless to determine whether the asserted ground is present. See Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435. Neither party objected to the jury instruction defining treatment. There is, accordingly, no occasion in this case to decide whether the provision of treatment, standing alone, can ever constitutionally justify involuntary confinement or, if it can, how much or what kind of treatment would suffice for that purpose. In its present posture this case involves not involuntary treatment but simply involuntary custodial confinement.
11
See n. 5, supra. During his years of confinement, Donaldson unsuccessfully petitioned the state and federal courts for release from the Florida State Hospital on a number of occasions. None of these claims was ever resolved on its merits, and no evidentiary hearings were ever held. O'Connor has not contended that he relied on these unsuccessful court actions as an independent intervening reason for continuing Donaldson's confinement, and no instructions on this score were requested.
12
Upon remand, the Court of Appeals is to consider only the question whether O'Connor is to be held liable for monetary damages for violating Donaldson's constitutional right to liberty. The jury found, on substantial evidence and under adequate instructions, that O'Connor deprived Donaldson, who was dangerous neither to himself nor to others and was provided no treatment, of the constitutional right to liberty. Cf. n. 8, supra. That finding needs no further consideration. If the Court of Appeals holds that a remand to the District Court is necessary, the only issue to be determined in that court will be whether O'Connor is immune from liability for monetary damages.
Of necessity our decision vacating the judgment of the Court of Appeals deprives that court's opinion of precedential effect, leaving this Court's opinion and judgment as the sole law of the case. See United States v. Munsingwear, 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36.
1
I have difficulty understanding how the issue of immunity can be resolved on this record and hence it is very likely a new trial on this issue may be required; if that is the case I would hope these sensitive and important issues would have the benefit of more effective presentation and articulation on behalf of petitioner.
2
The Court's reference to 'milieu therapy,' ante, at 569, may be construed as disparaging that concept. True, it is capable of being used simply to cloak official indifference, but the reality is that some mental abnormalities respond to no known treatment. Also, some mental patients respond, as do persons suffering from a variety of physiological ailments, to what is loosely called 'milieu treatment,' i.e., keeping them comfortable, well nourished, and in a protected environment. It is not for us to say in the baffling field of psychiatry that 'milieu therapy' is always a pretense.
3
That petitioner's counsel failed to raise this issue is not a reason why it should not be considered with respect to immunity in light of the Court's holding that the defense was preserved for appellate review.
4
See Editorial, A New Right, 46 A.B.A.J. 516 (1960).
5
Indeed, there is considerable debate concerning the threshold questions of what constitutes 'mental disease' and 'treatment.' See Szasz, The Right to Health, 57 Geo.L.J. 734 (1969).
6
Indeed, respondent may have shared both of these characteristics. His illness, paranoid schizophrenia, is notoriously unsusceptible to treatment, see Livermore, Malmquist, & Meehl, On the Justifications for Civil Commitment, 117 U.Pa.L.Rev. 75, 93, and n. 52 (1968), and the reports of the Florida State Hospital staff which were introduced into evidence expressed the view that he was unwilling to acknowledge his illness and was generally uncooperative.
7
This is not to imply that I accept all of the Court of Appeals' conclusions regarding the limitations upon the States' power to detain persons who commit crimes. For example, the notion that confinement must be 'for a fixed term' is difficult to square with the widespread practice of indeterminate sentencing, at least where the upper limit is a life sentence.
8
Even advocates of a right to treatment have criticized the quid pro quo theory on this ground. E.G., Developments in the Law Civil Commitment of the Mentally Ill, 87 Harv.L.Rev. 1190, 1325 n. 39 (1974).
9
It should be pointed out that several issues which the Court has touched upon in other contexts are not involved here. As the Court's opinion makes plain, this is not a case of a person's seeking release because he has been confined 'without ever obtaining a judicial determination that such confinement is warranted.' McNeil v. Director, Patuxent Institution, 407 U.S. 245, 249, 92 S.Ct. 2083, 2086, 32 L.Ed.2d 719 (972). Although respondent's amended complaint alleged that his 1956 hearing before the Pinellas County Court was procedurally defective and ignored various factors relating to the necessity for commitment, the persons to whom those allegations applied were either not served with process or dismissed by the District Court prior to trial. Respondent has not sought review of the latter rulings, and this case does not involve the rights of a person in an initial competency or commitment proceeding. Cf. Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435 (1972); Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967); Minnesota ex rel. Pearson v. Probate Court of Ramsey County, 309 U.S. 270, 60 S.Ct. 523, 84 L.Ed. 744 (1940).
Further, it was not alleged that respondent was singled out for discriminatory treatment by the staff of Florida State Hospital or that patients at that institution were denied privileges generally available to other persons under commitment in Florida. Thus, the question whether different bases for commitment justify differences in conditions of confinement is not involved in this litigation. Cf. Jackson v. Indiana, supra 406 U.S., at 723—730, 92 S.Ct., at 1850—1854; Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966).
'Finally, there was no evidence whatever that respondent was abused or mistreated at Florida State Hospital or that the failure to provide him with treatment aggravated his condition. There was testimony regarding the general quality of life at the hospital, but the jury was not asked to consider whether respondent's confinement was in effect 'punishment' for being mentally ill. The record provides no basis for concluding, therefore, that respondent was denied rights secured by the Eighth and Fourteenth Amendments. Cf. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962).
| 34
|
422 U.S. 749
95 S.Ct. 2457.
45 L.Ed.2d 522
Caspar WEINBERGER, Secretary of Health, Education, and Welfare, et al., Appellants,v.Concetta SALFI et al.
No. 74—214.
Argued March 19, 1975.
Decided June 26, 1975.
Syllabus
After her husband of less than six months died, appellee widow filed applications for mother's Social Security insurance benefits for herself and child's insurance benefits for her daughter by a previous marriage, but the Social Security Administration (SSA), both initially and on reconsideration at the regional level, denied the applications on the basis of the duration-of-relationship requirements of the Social Security Act (Act), 42 U.S.C. §§ 416(c) (5) and (e)(2) (1970 ed. and Supp. III), which define 'widow' and 'child' so as to exclude surviving wives and stepchildren who had their respective relationships to a deceased wage earner for less than nine months prior to his death. Appellees widow and child, seeking declaratory and injunctive relief, then brought a class action in Federal District Court on behalf of all widows and stepchildren denied benefits because of the nine-month requirements. A three-judge court, after concluding that it had federal-question jurisdiction under 28 U.S.C. § 1331, held that the nine-month requirements constituted constitutionally invalid 'irrebuttable presumptions,' and accordingly enjoined appellants Department of Health, Education, and Welfare (HEW), its Secretary, and the SSA and various of its officials from denying benefits on the basis of those requirements. Held:
1. The District Court did not have federal-question jurisdiction under 28 U.S.C. § 1331, because such jurisdiction is barred by the third sentence of 42 U.S.C. § 405(h), which provides that no action against the United States, the HEW Secretary, or any officer or employee thereof shall be brought under, inter alia, 28 U.S.C. § 1331 to recover on any claim arising under Title II of the Act, which covers old-age, survivors', and disability insurance benefits. Pp. 756-762.
(a) That § 405(h)'s third sentence, contrary to the District Court's view, does not merely codify the doctrine of exhaustion of remedies, is plain from its sweeping language; and, moreover, to construe it so narrowly would render it superfluous in view of § 405(h)'s first two sentences, which provide that the Secretary's findings and decision after a hearing shall be binding upon all parties to the hearing and shall not be reviewed except as provided in § 405(g), which, inter alia, requires administrative exhaustion. Pp. 756-759.
(b) There is no merit to appellees' argument that because their action arises under the Constitution and not under the Act, it is not barred by § 405(h), since, although their claim does arise under the Constitution, it also arises under the Act, which furnishes both the standing and substantive basis for the constitutional claim. Pp. 760-761.
(c) Section 405(h)'s third sentence extends to any 'action' seeking 'to recover on any (Social Security) claim'—irrespective of whether resort to judicial processes is necessitated by discretionary decisions of the Secretary or by his nondiscretionary application of allegedly unconstitutional statutory restrictions—and, although not precluding constitutional challenges, simply requires that they be brought under jurisdictional grants contained in the Act, and thus in conformity with the same standards that apply to nonconstitutional claims arising under the Act. Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389, distinguished. Pp. 761-762.
2. The District Court had no jurisdiction over the unnamed members of the class under 42 U.S.C. § 405(g), which provides that '(a)ny individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action,' since the complaint as to such class members is deficient in that it contains no allegations that they have even filed an application for benefits with the Secretary, much less that he has rendered any decision, final or otherwise, review of which is sought. P. 763-764.
3. The District Court had jurisdiction over the named appellees under § 405(g). While the allegations of the complaint with regard to exhaustion of remedies fall short of meeting § 405(g)'s literal requirements that there shall have been a 'final decision of the Secretary made after a hearing' and of satisfying the Secretary's regulations specifying that the finality required for judicial review be achieved only after the further steps of a hearing before an administrative judge and possibly consideration by the Appeals Council, nevertheless the Secretary by not challenging the sufficiency of such allegations has apparently determined that for purposes of this action the reconsideration determination is 'final.' Under the Act's administrative scheme, the Secretary may make such a determination, because the term 'final decision' is left undefined by the Act and its meaning is to be fleshed out by the Secretary's regulations, 42 U.S.C. § 405(a), and because no judicial or administrative interest would be served by further administrative proceedings once the Secretary concluded that a matter is beyond his jurisdiction to determine, and that the claim is neither otherwise invalid nor cognizable under a different section of the Act. Similar considerations control with regard to the requirement that the Secretary's decision be made 'after a hearing,' since under such circumstances a hearing would be futile and wasteful and since, moreover, the Secretary may award benefits without requiring a hearing. Pp. 764-767.
4. The nine-month duration-of-relationship requirements of §§ 416(c)(5) and (e)(2) are not unconstitutional. Pp. 767-785.
(a) A statutory classification in the area of social welfare such as the Social Security program is constitutional if it is rationally based and free from invidious discrimination. Pp. 768-770.
(b) A noncontractual claim to receive funds from the public treasury enjoys no constitutionally protected status, although of course there may not be invidious discrimination among such claimants. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551; Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52, distinguished. The benefits here are available upon compliance with an objective criterion, one that the Legislature considered to bear a sufficiently close nexus with underlying policy objectives as to be used as the test, for eligibility. Appellees are free to present evidence that they meet the specified requirements, failing which, their only constitutional claim is that the test they cannot meet is not so rationally related to a legitimate legislative objective that it can be used to deprive them of benefits available to those who do satisfy that test, Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63, distinguished. Pp. 770-773.
(c) The duration-of-relationship test meets the constitutional standard that Congress, its concern having been reasonably aroused by the possibility of an abuse—the use of sham marriages to secure Social Security benefits—which it legitimately desired to avoid, could rationally have concluded that a particular limitation or qualification would protect against its occurrence and that the expense and other difficulties of individual determinations justified the inherent imprecision of an objective, easily administered prophylactic rule. Pp. 773-780.
(d) Neither the fact that § 416(c)(5) excludes some wives who married with no anticipation of shortly becoming widows nor the fact that the requirement does not filter out every such claimant, if a wage earner lives longer than anticipated or has an illness that can be recognized as terminal more than nine months prior to death, necessarily renders the statutory scheme unconstitutional. While it is possible to debate the wisdom of excluding legitimate claimants in order to discourage sham relationships, and of relying on a rule that may not exclude some obviously sham arrangements, Congress could rationally choose to adopt such a course. Pp. 781-783.
D.C., 373 F.Supp. 961, reversed.
Harriet S. Shapiro, Washington, D.C., for appellants.
Don B. Kates, Jr., San Francisco, Cal., for appellees.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Appellants, the Department of Health, Education, and Welfare, its Secretary, the Social Security Administration and various of its officials, appeal from a decision of the United States District Court for the Northern District of California invalidating duration-of-relationship Social Security eligibility requirements for surviving wives and stepchildren of deceased wage earners. 373 F.Supp. 961 (1974).
2
That court concluded that it had jurisdiction of the action by virtue of 28 U.S.C. § 1331, and eventually certified the case as a class action. On the merits, it concluded that the nine-month requirements of §§ 216(c)(5) and (e) (2) of the Social Security Act, 49 Stat. 620, as added, 64 Stat. 510, and as amended, 42 U.S.C. §§ 416(c)(5) and (e)(2) (1970 ed. and Supp. III), constituted 'irrebutable presumptions' which were constitutionally invalid under the authority of Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973); and Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). We hold that the District Court did not have jurisdiction of this action under 28 U.S.C. § 1331, and that while it had jurisdiction of the claims of the named appellees under the provisions of 42 U.S.C. § 405(g), it had no jurisdiction over the claims asserted on behalf of unnamed class members. We further decide that the District Court was wrong on the merits of the constitutional question tendered by the named appellees.
3
* Appellee Salfi married the deceased wage earner, Londo L. Salfi, on May 27, 1972. Despite his alleged apparent good health at the time of the marriage, he suffered a heart attack less than a month later, and died on November 21, 1972, less than six months after the marriage. Appellee Salfi filed applications for mother's insurance benefits for herself and child's insurance benefits for her daughter by a previous marriage, appellee Doreen Kalnins.1 These applications were denied by the Social Security Administration, both initially and on reconsideration at the regional level, solely on the basis of the duration-of-relationship requirements of § 416(c)(5) and (e)(2), which define 'widow' and 'child.' The definitions exclude surviving wives and stepchildren who had their respective relationships to a deceased wage earner for less than nine months prior to his death.2
4
The named appellees then filed this action, principally relying on 28 U.S.C. § 1331 for jurisdiction. They sought to represent the class of 'all widows and stepchildren of deceased wage earners who are denied widow's (sic) or children's insurance benefits because the wage earner died within nine months of his marriage to the applicant or (in case of a stepchild) the applicant's mother.' App. 8. They alleged at least partial exhaustion of remedies with regard to their personal claims, but made no similar allegations with regard to other class members. They sought declaratory relief against the challenged statute, and injunctive relief restraining appellants from denying mother's and child's benefits on the basis of the statute. In addition to attorneys' fees and costs, they also sought 'damages or sums due and owing equivalent to the amount of benefits to which plaintiffs became entitled as of the date of said entitlement.' Id., at 13.
5
A three-judge District Court heard the case on cross-months for summary judgment, and granted substantially all of the relief prayed for by appellees. The District Court rendered a declaratory judgment holding the challenged statute to be unconstitutional, certified a class consisting of 'all otherwise eligible surviving spouses and stepchildren . . . heretofore disqualified from receipt of . . . benefits by operation' of the duration-of-relationship requirements, enjoined appellants from denying benefits on the basis of those requirements, and ordered them to provide such benefits 'from the time of original entitlement.' 373 F.Supp., at 966. We noted probable jurisdiction of the appeal from that judgment. 419 U.S. 992, 95 S.Ct. 301, 42 L.Ed.2d 264 (1974).
6
In addition to their basic contention that the duration-of-relationship requirements pass constitutional muster, appellants present several contentions bearing on the scope of the monetary relief awarded by the District Court. They contend that the award is barred by sovereign immunity insofar as it consists of retroactive benefits, that regardless of sovereign immunity invalidation of the duration-of-relationship requirements should be given prospective effect only, and that the District Court did not properly handle certain class-action issues. Because we conclude that the duration-of-relationship requirements are constitutional, we have no occasion to reach the retroactivity and class-action issues. We are confronted, however, by a serious question as to whether the District Court had jurisdiction over this suit.
II
7
The third sentence of 42 U.S.C. § 405(h) provides in part:
8
'No action against the United States, the Secretary, or any officer or employee thereof shall be brought under (§ 1331 et seq.) of Title 28 to recover on any caim arising under (Title II of the Social Security Act).'3
9
On its face, this provision bars district court federal-question jurisdiction over suits, such as this one, which seek to recover Social Security benefits. Yet it was § 1331 jurisdiction which appellees successfully invoked in the District Court. That court considered this provision, but concluded that it was inapplicable because it amounted to no more than a codification of the doctrine of exhaustion of administrative remedies. The District Court's readig of § 405(h) was, we think, entirely too narrow.
10
That the third sentence of § 405(h) is more than a codified requirement of administrative exhaustion is plain from its own language, which is sweeping and direct and which states that no action shall be brought under § 1331, not merely that only those actions shall be brought in which administrative remedies have been exhausted. Moreover, if the third sentence is construed to be nothing more than a requirement of administrative exhaustion, it would be superfluous. This is because the first two sentences of § 405(h), which appear in the margin,4 assure that administrative exhaustion will be required. Specifically, they prevent review of decisions of the Secretary save as provided in the Act, which provision is made in § 405(g).5 The latter section prescribes typical requirements for review of matters before an administrative agency, including administrative exhaustion.6 Thus the District Court's treatment of the third sentence of § 405(h) not only ignored that sentence's plain language, but also relegated it to a function which is already performed by other statutory provisions.
11
A somewhat more substantial argument that the third sentence of § 405(h) does not deprive the District Court of federal-question jurisdiction relies on the fact that it only affects actions to recover on 'any claim arising under (Title II)' of the Social Security Act.7 The argument is that the present action arises under the Constitution and not under Title II. It would, of course, be fruitless to contend that appellees' claim is one which does not arise under the Constitution, since their constitutional arguments are critical to their complaint. But it is just as fruitless to argue that this action does not also arise under the Social Security Act. For not only is it Social Security benefits which appellees seek to recover, but it is the Social Security Act which provides both the standing and the substantive basis for the presentation of their constitutional contentions. Appellees sought, and the District Court granted, a judgment directing the Secretary to pay Social Security benefits. To contend that such an action does not arise under the Act whose benefits are sought is to ignore both the language and the substance of the complaint and judgment. This being so, the third sentence of § 405(h) precludes resort to federal-question jurisdiction for the adjudication of appellees' constitutional contentions.
12
It has also been argued that Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974), supports the proposition that appellees are not seeking to recover on a claim arising under Title II. In that case we considered 38 U.S.C. § 211(a), which provides:
13
'(T)he decisions of the (Veterans') 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 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.'
14
We were required to resolve whether this language preclude an attack on the constitutionality of a statutory limitation. We concluded that it did not, basically because such a limitation was not a 'decision' of the Administrator 'on any question of law or fact'; indeed, the 'decision' had been made by Congress, not the Administrator, and the issue was one which the Administrator considered to be beyond his jurisdiction. 415 U.S., at 367—368, 94 S.Ct. at 1166. Thus the question sought to be litigated was simply not within § 211(a)' § express language, and there was accordingly no basis for concluding that Congress sought to preclude review of the constitutionality of veterans' legislation.
15
The language of § 405(h) is quite different. Its reach is not limited to decisions of the Secretary on issues of law or fact. Rather, it extends to any 'action' seeking 'to recover on any (Social Security) claim'—irrespective of whether resort to judicial processes is necessitated by discretionary decisions of the Secretary or by his nondiscretionary application of allegedly unconstitutional statutory restrictions.
16
There is another reason why Johnson v. Robinson is inapposite. It was expressly based, at least in part, on the fact that if § 211(a) reached constitutional challenges to statutory limitations, then absolutely no judicial consideration of the issue would be available. Not only would such a restriction have been extraordinary, such that 'clear and convincing' evidence would be required before we would ascribe such intent to Congress, 415 U.S., at 373, 94 S.Ct. at 1169, but it would have raised a serious constitutional question of the validity of the statute as so construed. Id., at 366—367, 94 S.Ct. at 1165—1166. In the present case, as will be discussed below, the Social Security Act itself provides jurisdiction for constitutional challenges to its provisions. Thus the plain words of the third sentence of § 405(h) do not preclude constitutional challenges. They simply require that they be brought under jurisdictional grants contained in the Act, and thus in conformity with the same standards which are applicable to nonconstitutional claims arising under the Act. The result is not only of unquestionable constitutionality, but it is also manifestly reasonable, since it assures the Secretary the opportunity prior to constitutional litigation to ascertain, for example, that the particular claims involved are neither invalid for other reasons nor allowable under other provisions of the Social Security Act.
17
As has been stated, the Social Security Act itself provides for district court review of the Secretary's determinations. Title 42 U.S.C. § 405(g) provides that '(a)ny individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision . . ..' See n. 5, supra. The question with which we must now deal is whether this provision could serve as a jurisdictional basis for the District Court's consideration of the present case. We conclude that it provided jurisdiction only as to the named appellees and not as to the unnamed members of the class.8
18
Section 405(g) specifies the following requirements for judicial review: (1) a final decision of the Secretary made after a hearing; (2) commencement of a civil action within 60 days after the mailing of notice of such decision (or within such further time as the Secretary may allow); and (3) filing of the action in an appropriate district court, in general that of the plaintiff's residence or principal place of business. The second and third of these requirements specify, respectively, a statute of limitations and appropriate venue. As such, they are waivable by the parties, and not having been timely raised below, see Fed.Rules Civ.Proc. 8(c), 12(h)(1), need not be considered here. We interpret the first requirement, however, to be central to the requisite grant of subject-matter jurisdiction—the statute empowers district courts to review a particular type of decision by the Secretary, that type being those which are 'final' and 'made after a hearing.'
19
In the present case, the complaint seeks review of the denial of benefits based on the plain wording of a statute which is alleged to be unconstitutional. That a denial on such grounds, which are beyond the power of the Secretary to affect, is nonetheless a decision of the Secretary for these purposes has been heretofore established. Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). As to class members, however, the complaint is deficient in that it contains no allegations that they have even filed an application with the Secretary, much less that he has rendered any decision, final or otherwise, review of which is sought. The class thus cannot satisfy the requirements for jurisdiction under 42 U.S.C. § 405(g). Other sources of jurisdiction being foreclosed by § 405(h), the District Court was without jurisdiction over so much of the complaint as concerns the class, and it should have entered by appropriate order of dismissal.
20
The jurisdictional issue with respect to the named appellees is somewhat more difficult. In a paragraph entitled 'Exhaustion of Remedies,' the complaint alleges that they fully presented their claims for benefits 'to their district Social Security Office and, upon denial, to the Regional Office for reconsideration.' It further alleges that they have no dispute with the Regional Office's findings of fact or applications of statutory law, and that the only issue is a matter of constitutional law which is beyond the Secretary's competence. On their face these allegations with regard to exhaustion fall short of meeting the literal requirement of § 405(g) that there shall have been a 'final decision of the Secretary made after a hearing.' They also fall short of satisfying the Secretary's regulations, which specify that the finality required for judicial review is achieved only after the further steps of a hearing before an administrative law judge and, possibly, consideration by the Appeals Council. See 20 CFR §§ 404.916, 404.940, 404.951 (1974).
21
We have previously recognized that the doctrine of administrative exhaustion should be applied with a regard for the particular administrative scheme at issue. Parisi v. Davidson, 405 U.S. 34, 92 S.Ct. 815, 31 L.Ed.2d 17 (1972); McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969). Exhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review. See, e.g., id., at 193—194, 89 S.Ct. at 1662—1663. Plainly these purposes have been served once the Secretary has satisfied himself that the only issue is the constitutionality of a statutory requirement, a matter which is beyond his jurisdiction to determine, and that the claim is neither otherwise invalid nor cognizable under a different section of the Act. Once a benefit applicant has presented his or her claim at a sufficiently high level of review to satisfy the Secretary's administrative needs, further exhaustion would not merely be futile for the applicant, but would also be a commitment of administrative resources unsupported by any administrative or judicial interest.
22
The present case, of course, is significantly different from McKart in that a 'final decision' is a statutorily specified jurisdictional prerequisite. The requirement is, therefore, as we have previously noted, something more than simply a codification of the judicially developed doctrine of exhaustion, and may not be dispensed with merely by a judicial conclusion of futility such as that made by the District Court here. But it is equally true that the requirement of a 'final decision' contained in § 405(g) is not precisely analogous to the more classical jurisdictional requirements contained in such sections of Title 28 as 1331 and 1332. The term 'final decision' is not only left undefined by the Act, but its meaning is left to the Secretary to flesh out by regulation.9 Section 405(l) accords the Secretary complete authority to delegate his statutory duties to officers and employees of the Department of Health, Education, and Welfare. The statutory scheme is thus one in which the Secretary may specify such requirements for exhaustion as he deems serve his own interests in effective and efficient administration. While a court may not substitute its conclusion as to futility for the contrary conclusion of the Secretary, we believe it would be inconsistent with the congressional scheme to bar the Secretary from determining in particular cases that full exhaustion of internal review procedures in not necessary for a decision to be 'final' within the language of § 405(g).
23
Much the same may be said about the statutory requirement that the Secretary's decision be made 'after a hearing.' Not only would a hearing be futile and wasteful, once the Secretary has determined that the only issue to be resolved is a matter of constitutional law concededly beyond his competence to decide, but the Secretary may, of course, award benefits without requiring a hearing. We do not understand the statute to prevent him from similarly determining in favor of the applicant, without a hearing, all issues with regard to eligibility save for one as to which he considers a hearing to be useless.
24
In the present case the Secretary does not raise any challenge to the sufficiency of the allegations of exhaustion in appellees' complaint. We interpret this to be a determination by him that for the purposes of this litigation the reconsideration determination is 'final.' The named appellees thus satisfy the requirements for § 405(g) judicial review, and we proceed to the merits of their claim.10
III
25
The District Court relied on congressional history for the proposition that the duration-of-relationship requirement was intended to prevent the use of sham marriages to secure Social Security payments. As such, concluded the court, 'the requirement constitutes a presumption that marriages like Mrs. Salfi's, which did not precede the wage earner's death by at least nine months, were entered into for the purpose of securing Social Security benefits.' 373 F.Supp., at 965. The presumption was, moreover, conclusive, because applicants were not afforded an opportunity to disprove the presence of the illicit purpose. The court held that under our decisions in Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973); and Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), the requirement was unconstitutional, because it presumed a fact which was not necessarily or universally true.
26
Our ultimate conclusion is that the District Court was wrong in holding the duration-of-relationship requirement unconstitutional. Because we are aware that our various holdings in related cases do not all sound precisely the same note, we will explain ourselves at some length.
27
The standard for testing the validity of Congress' Social Security classification was clearly stated in Flemming v. Nestor, 363 U.S., at 611, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435:
28
'Particularly when we deal with a withholding of a noncontractual benefit under a social welfare program such as (Social Security), we must recognize that the Due Process Clause can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification.'
29
In Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971), a portion of the Social Security Act which required an otherwise entitled disability claimant to be subjected to an 'offset' by reason of his simultaneous receipt of state workmen's compensation benefits was attacked as being violative of the Due Process Clause of the Fifth Amendment. The claimant in that case asserted that the provision was arbitrary in that it required offsetting of a state workmen's compensation payment, but not of a similar payment made by a private disability insurer. The Court said:
30
'If the goals sought are legitimate, and the classification adopted is rationally related to the achievement of those goals, then the action of Congress is not so arbitrary as to violate the Due Process Clause of the Fifth Amendment.' 404 U.S., at 84, 92 S.Ct. at 258.
31
Two terms earlier the Court had decided the case of Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), in which it rejected a claim that Maryland welfare legislation violated the Equal Protection Clause of the Fourteenth Amendment. The Court had said:
32
'In the area of economics and social welfare, a State does not violate the
33
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. 'The problems of government are practical ones and may justify, if they do not require, rough accommodations—illogical, it may be, and unscientific.' Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69—70, 33 S.Ct. 441, 443, 57 L.Ed. 730. . . .
34
'To be sure, the cases cited, and many others enunciating this fundamental standard under the Equal Protection Clause, have in the main involved state regulation of business or industry. The administration of public welfare assistance, by contrast, involves the most basic economic needs of impoverished human beings. We recognize the dramatically real factual difference between the cited cases and this one, but we can find no basis for applying a different constitutional standard. . . . It is a standard that has consistently been applied to state legislation restricting the availability of employment opportunities. Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163; Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552, 67 S.Ct. 910, 91 L.Ed. 1093. See also Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435. And it is a standard that is true to the principle 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 485—486, 90 S.Ct., at 1161—1162.
35
The relation between the equal protection analysis of Dandridge and the Fifth Amendment due process analysis of Flemming v. Nestor and Richardson v. Belcher was described in the latter case in this language:
36
'A statutory classification in the area of social welfare is consistent with the Equal Protection Clause of the Fourteenth Amendment if it is 'rationally based and free from invidious discrimination.' Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 1162, 25 L.Ed.2d 491. While the present case, involving as it does a federal statute, does not directly implicate the Fourteenth Amendment's Equal Protection Clause, a classification that meets the test articulated in Dandridge is perforce consistent with the due process requirement of the Fifth Amendment. Cf. Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884.' 404 U.S., at 81, 92 S.Ct., at 257.
37
These cases quite plainly lay down the governing principle for disposing of constitutional challenges to classifications in this type of social welfare legislation. The District Court, however, chose to rely on Cleveland Board of Education v. LaFleur, supra; Vlandis v. Kline, supra; and Stanley v. Illinois, supra. It characterized this recent group of cases as dealing with 'the appropriateness of conclusive evidentiary presumptions.' 373 F.Supp., at 965.
38
Stanley v. Illinois held that it was a denial of the equal protection guaranteed by the Fourth Amendment for a State to deny a hearing on parental fitness to an unwed father when such a hearing was granted to all other parents whose custody of their children was challenged. This Court referred to the fact that the 'rights to conceive and to raise one's children have been deemed 'essential.' Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923), 'basic civil rights of man,' Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942), and '(r)ights far more precious . . . than property rights,' May v. Anderson, 345 U.S. 528, 533, 73 S.Ct. 840, 843, 97 L.Ed. 1221 (1953).' 405 U.S., at 651, 92 S.Ct. at 1212.
39
In Vlandis v. Kline, a statutory definition of 'residents' for purposes of fixing tuition to be paid by students in a state university system was held invalid. The Court held that where Connecticut purported to be concerned with residency, it might not at the same time deny to one seeking to meet its test of residency the opportunity to show factors clearly bearing on that issue. 412 U.S. at 452, 93 S.Ct. at 2236.
40
In LaFleur the Court held invalid, on the authority of Stanley and Vlandis, school board regulations requiring pregnant school teachers to take unpaid maternity leave commencing four to five months before the expected birth. The Court stated its longstanding recognition '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,' 414 U.S., at 639—640, 94 S.Ct. at 796, and that 'overly restrictive maternity leave regulations can constitute a heavy burden on the exercise of these protected freedoms.' Id., at 640, 94 S.Ct. at 796.
41
We hold that these cases are not controlling on the issue before us now. Unlike the claims involved in Stanley and LaFleur, a noncontractual claim to receive funds from the public treasury enjoys no constitutionally protected status, Dandridge v. Williams, supra, though of course Congress may not invidiously discriminate among such claimants on the basis of a 'bare congressional desire to harm a politically unpopular group.' United States Dept. of Agriculture v. Moreno, 413 U.S 528, 534, 93 S.Ct. 2821, 2826, 37 L.Ed.2d 782 (1973), or on the basis of criteria which bear no rational relation to a legitimate legislative goal. Jimenez v. Weinberger, 417 U.S. 628, 636, 94 S.Ct. 2496, 2501, 41 L.Ed.2d 363 (1974); United States Dept. of Agriculture v. Murry, 413 U.S. 508, 513—514, 93 S.Ct. 2832, 2835, 37 L.Ed.2d 767 (1973). Unlike the statutory scheme in Vlandis, 412 U.S., at 449, 93 S.Ct. at 2235, the Social Security Act does not purport to speak in terms of the bona fides of the parties to a marriage, but then make plainly relevant evidence of such bona fides inadmissible. As in Starns v. Malkerson, 326 F.Supp. 234 (Minn.1970), summarily aff'd, 401 U.S. 985, 91 S.Ct. 1231, 28 L.Ed.2d 527 (1971), the benefits here are available upon compliance with an objective criterion, one which the Legislature considered to bear a sufficiently close nexus with underlying policy objectives to be used as the test for eligibility. Like the plaintiffs in Starns, appellees are completely free to present evidence that they meet the specified requirements; failing in this effort, their only constitutional claim is that the test they cannot meet is not so rationally related to a legitimate legislative objective that it can be used to deprive them of benefits available to those who do satisfy that test.
42
We think that the District Court's extension of the holdings of Stanley, Vlandis, and LaFleur to the eligibility requirement in issue here would turn the doctrine of those cases into a virtual engine of destruction for countless legislative judgments which have heretofore been thought wholly consistent with the Fifth and Fourteenth Amendments to the Constitution. For example, the very section of Title 42 which authorizes an action such as this, § 405(g), requires that a claim be filed within 60 days after administrative remedies are exhausted. It is indisputable that this requirement places people who file their claims more than 60 days after exhaustion in a different 'class' from people who file their claims within the time limit. If we were to follow the District Court's analysis, we would first try to ascertain the congressional 'purpose' behind the provision, and probably would conclude that it was to prevent stale claims from being asserted in court. We would then turn to the questions of whether such a flat cutoff provision was necessary to protect the Secretary from stale claims, whether it would be possible to make individualized determinations as to any prejudice suffered by the Secretary as the result of an untimely filing, and whether or not an individualized hearing on that issue should be required in each case. This would represent a degree of judicial involvement in the legislative function which we have eschewed except in the most unusual circumstances, and which is quite unlike the judicial role mandated by Dandridge, Belcher, and Nestor, as well as by a host of cases arising from legislative efforts to regulate private business enterprises.
43
In Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955), the Court dealt with a claim that the Equal Protection Clause of the Fourteenth Amendment was violated by an Oklahoma statute which subjected opticians to a system of detailed regulation, but which exempted sellers of ready-to-wear glasses. In sustaining the statute the Court said:
44
'The problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think.' Id., at 489, 75 S.Ct. at 465.
45
More recently, in Mourning v. Family Publications Service, Inc., 411 U.S. 356, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973), the Court sustained the constitutionality of a regulation promulgated under the Truth in Lending Act which made the Act's disclosure provisions applicable whenever credit is offered to a consumer "for which either a finance charge is or may be imposed or which pursuant to an agreement, is or may be payable in more than four installments." Id., at 362, 93 S.Ct. at 1657. The regulation was challenged because it was said to conclusively presume that payments made under an agreement providing for more than four instalments necessarily included a finance charge, when in fact that might not be the case. The Court rejected the constitutional challenge in this language:
46
'The rule was intended as a prophylactic measure; it does not presume that all creditors who are within its ambit assess finance charges, but, rather, imposes a disclosure requirement on all members of a defined class in order to discourage evasion by a substantial portion of that class.' Id., at 377, 93 S.Ct. at 1664.
47
If the Fifth and Fourteenth Amendments permit this latitude to legislative decisions regulating the private sector of the economy, they surely allow no less latitude in prescribing the conditions upon which funds shall be dispensed from the public treasury. Dandridge v. Williams, supra. With these principles in mind, we turn to consider the statutory provisions which the District Court held invalid.
48
Title 42 U.S.C. § 402 (1970 ed. and Supp. III) is the basic congressional enactment defining eligibility for old-age and survivors insurance benefit payments, and is divided into 23 lettered subsections. Subsection (g) is entitled 'Mother's insurance benefits,' and primarily governs the claim of appellee Salfi. Subsection (d) governs eligibility for child's insurance benefits, and is the provision under which appellee Kalnins makes her claim. These subsections, along with others in § 402, specify the types of social risks for which protection is provided by what is basically a statutory insurance policy.
49
A different insurance system, but similarly defined by statute and operated by a governmental entity, was the subject of our consideration in Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974), and our disposition of that case is instructive. We reversed the judgment of a District Court which had held that a California state disability insurance program was invalid insofar as it failed to provide benefits for disabilities associated with normal pregnancy. In our opinion we said:
50
'The District Court suggested that moderate alterations in what it regarded as 'variables' of the disability insurance program could be made to accommodate the substantial expense required to include normal pregnancy within the program's protection. The same can be said, however, with respect to the other expensive class of disabilities that are excluded from coverage—short-term disabilities. If the Equal Protection Clause were thought to compel disability payments for normal pregnancy, it is hard to perceive why it would not also compel payments for short-term disabilities suffered by participating employees.
51
'It is evident that a totally comprehensive program would be substantially more costly than the present program and would inevitably require state subsidy, a higher rate of employee contribution, a lower scale of benefits for those suffering insured disabilities, or some combination of these measures. There is nothing in the Constitution, however, that requires the State to subordinate or compromise its legitimate interests solely to create a more comprehensive social insurance program than it already has.' Id., at 495—496, 94 S.Ct. at 2491.
52
The present case is somewhat different, since the Secretary principally defends the duration-of-relationship requirement, not as a reasonable legislative decision to exclude a particular type of risk from coverage, but instead as a method of assuring that payments are made only upon the occurrence of events the risk of which is covered by the insurance program.11 Commercial insurance policies have traditionally relied upon fixed, prophylactic rules to protect against abuses which could expand liability beyond the risks which are within the general concept of its coverage. For example, life insurance policies often cover deaths by suicide, but not those suicides which were contemplated when the policy was purchased. Frequently the method chosen to contain liability within these conceptual bounds is a strict rule that deaths by suicide are covered if, and only if, they occur some fixed period of time after the policy is issued. See e.g., 9 G. Couch, Cyclopedia of Insurance Law § 40.50 (2d ed. 1962). While such a limitation doubtless proves in particular cases to be 'under-inclusive' or 'over-inclusive,' in light of its presumed purpose, it is nonetheless a widely accepted response to legitimate interests in administrative economy and certainty of coverage for those who meet its terms. When the Government chooses to follow this tradition in its own social insurance programs, it does not come up against a constitutional stone wall. Rather, it may rely on such rules so long as they comport with the standards of legislative reasonableness enunciated in cases like Dandridge v. Williams and Richardson v. Belcher.
53
Under those standards, the question raised is not whether a statutory provision precisely filters out those, and only those, who are in the factual position which generated the congressional concern reflected in the statute. Such a rule would ban all prophylactic provisions, and would be directly contrary to our holding in Mourning, supra. Nor is the question whether the provision filters out a substantial part of the class which caused congressional concern, or whether it filters out more members of the class than nonmembers. The question is whether Congress, its concern having been reasonably aroused by the possibility of an abuse which it legitimately desired to avoid, could rationally have concluded both that a particular limitation or qualification would protect against its occurrence, and that the expense and other difficulties of individual determinations justified the inherent imprecision of a prophylactic rule. We conclude that the duration-of-relationship test meets this constitutional standard.
54
The danger of persons entering a marriage relationship not to enjoy its traditional benefits, but instead to enable one spouse to claim benefits upon the anticipated early death of the wage earner, has been recognized from the very beginning of the Social Security program. While no early legislative history addresses itself specifically to the duration-of-relationship requirement for mother's and child's benefits, there were discussions of the analogous requirement for receipt of wife's benefits under § 402(b). See 42 U.S.C. § 416(b) (1970 ed., Supp. IV), defining 'wife.' Dr. A. J. Altmeyer, Chairman of the Social Security Board, noted that a five-year requirement 'should be strict enough to prevent marriage in anticipation of the larger benefit payments.' Hearings on Social Security before the House Committee on Ways and Means, 76th Cong., 1st Sess., vol. 3, p. 2297 (1939). Similarly, the Advisory Council on Social Security stated:
55
'The requirement that the wives' allowance be payable only where marital status existed prior to the husband's attainment of age 60 is intended to serve as protection against abuse of the plan through the contracting of marriages solely for the purpose of acquiring enhanced benefits. If the marriage takes place at least 5 years before any old-age benefits can be paid, a reasonable assumption exists that it was contracted in good faith.' Id., vol. 1, p. 31.
56
The Advisory Council also stated, with regard to § 402(e) widow's benefits which, like mother's benefits, depend on the § 416(c) definition of 'widow':
57
'As in the case of wives' allowances, it is believed desirable to protect the provisions for widows' benefits against abuse by the requirement of a minimum period of marital status.' Id., at 32.
58
Similar concerns were reflected in the House and Senate Reports on the 1946 amendment which reduced to three years the required duration of a marriage for the purposes of an eligible 'wife.' It was stated:
59
'The original provision was intended to prevent exploitation of the fund by claims for benefits from persons who married beneficiaries solely to get wife's benefits. Experience has shown that the requirement is unnecessarily restrictive for this purpose and that, in a number of cases, a wife is permanently barred from benefits even though the marriage was entered into many years before the wage earner became a beneficiary. The amendment, taken with the provision in section 202(b) that the wife be living with her husband in order to be eligible for benefits, should be sufficient protection for the trust fund and will remedy situations which now seem inequitable. Few persons are likely to marry because of the prospect of receiving a modest insurance benefit which will not be payable until after 3 years.' H.R.Rep.No.2526, 79th Cong., 2d Sess., 25; S.Rep.No.1862, 79th Cong., 2d Sess., 33, U.S.Code Cong. Serv., 1946, p. 1510.
60
Later amendments to the Act have been accompanied by discussions of the duration-of-relationship requirements contained in the definitions of 'widow' and 'child.' Like the early history of analogous requirements, they reflect congressional concern with the possibility of relationships entered for the purpose of obtaining benefits. In 1967, when the durational period was reduced from one year to nine months, the House Report stated:
61
'Your committee's bill would reduce the duration-of-relationship requirements for widows, widowers, and stepchildren of deceased workers from 1 year to 9 months. The present law contains a 1-year duration-of-relationship requirement which was adopted as a safeguard against the payment of benefits where a relationship was entered into in order to secure benefit rights. While the present requirements have generally worked out satisfactorily, situations have been called to the committee's attention in which benefits were not payable because the required relationship had existed for somewhat less than 1 year. Although some duration-of-relationship requirement is appropriate, a less stringent requirement would be adequate.' H.R.Rep.No.544, 90th Cong., 1st Sess., 56.
62
When in 1972 Congress added the provisions of 42 U.S.C. § 416(k)(2) (1970 ed., Supp. III) (eliminating the ninemonth requirement with respect to remarriages of persons who had previously been married for more than nine months), the House Report observed: 'This duration-of-relationship requirement is included in the law as a general precaution against the payment of benefits where the marriage was undertaken to secure benefit rights.' H.R.Rep.No. 92—231, p. 55 (1971); U.S.Code Cong. & Admin.News 1972, p. 5042.
63
Undoubtedly the concerns reflected in this congressional material are legitimate, involving as they do the integrity of both the Social Security Trust Fund and the marriage relationship. It is also undoubtedly true that the duration-of-relationship requirement operates to lessen the likelihood of abuse through sham relationships entered in contemplation of imminent death. We also think that Congress could rationally have concluded that any imprecision from which it might suffer was justified by its ease and certainty of operation.
64
We note initially that the requirement is effective only within a somewhat narrow range of situations lacking certain characteristics which might reasonably be thought to establish the genuineness of a marital relationship which involves children (and thus the potential for mother's and child's benefits). Even though a surviving wife has not been married for a period of nine months immediately prior to her husband's death, she is nonetheless within the definition of 'widow' if she meets one of the other disjunctive requirements of § 416(c). If she is the mother of her late husband's son or daughter; if she legally adopted his son or daughter while she was married to him and while such son or daughter was under the age of 18; if he legally adopted her son or daughter under the same circumstances; or if during their marriage, however short, they legally adopted a child under the age of 18—in any of these circumstances the surviving wife may claim widow's ormother's benefits even though she has not been married to her husband for a full nine months.12 The common denominator of these disjunctive requirements appears to us to be the assumption of responsibilities normally associated with marriage, and we think that Congress has treated them as alternative indicia of the fact that the marriage was entered into for a reason other than the desire to shortly acquire benefits. The marriages in which the widow must depend on qualifying under the nine-month requirement are those in which none of these other objective evidences of the assumption of marital responsibilities are present.
65
Even so, § 416(c)(5) undoubtedly excludes some surviving wives who married with no anticipation of shortly becoming widows, and it may be that appellee Salfi is among them. It likewise may be true that the requirement does not filter out every such claimant, if a wage earner lingers longer than anticipated, or in the case of illnesses which can be recognized as terminal more than nine months prior to death. But neither of these facts necessarily renders the statutory scheme unconstitutional.
66
While it is possible to debate the wisdom of excluding legitimate claimants in order to discourage sham relationships, and of relying on a rule which may not exclude some obviously sham arrangements, we think it clear that Congress could rationally choose to adopt such a course. Large numbers of people are eligible for these programs and are potentially subject to inquiry as to the validity of their relationships to wage earners. These people include not only the classes which appellees represent,13 but also claimants in other programs for which the Social Security Act imposes duration-of-relationship requirements.14 Not only does the prophylactic approach thus obviate the necessity for large numbers of individualized determinations, but it also protects large numbers of claimants who satisfy the rule from the uncertainties and delays of administrative inquiry into the circumstances of their marriages. Nor is it at all clear that individual determinations could effectively filter out sham arrangements, since neither marital intent, life expectancy, nor knowledge of terminal illness has been shown by appellees to be reliable determinable.15 Finally, the very possibility of prevailing at a hearing could reasonably be expected to encourage sham relationships.
67
The administrative difficulties of individual eligibility determinations are without doubt matters which Congress may consider when determining whether to rely on rules which sweep more broadly than the evils with which they seek to deal. In this sense, the duration-of-relationship requirement represents not merely a substantive policy determination that benefits should be awarded only on the basis of genuine marital relationships, but also a substantive policy determination that limited resources would not be well spent in making individual determinations. It is an expression of Congress' policy choice that the Social Security system, and its millions of beneficiaries, would be best served by a prophylactic rule which bars claims arising from the bulk of sham marriages which are actually entered, which discourages such marriages from ever taking place, and which is also objective and easily administered.
68
The Constitution does not preclude such policy choices as a price for conducting programs for the distribution of social insurance benefits. Cf. Geduldig v. Aiello, 417 U.S. at 496, 94 S.Ct. at 2491—2492. Unlike criminal prosecutions, or the custody proceedings at issue in Stanley v. Illinois, such programs do not involve affirmative Government action which seriously curtails important liberties cognizable under the Constitution. There is thus no basis for our requiring individualized determinations when Congress can rationally conclude not only that generalized rules are appropriate to its purposes and concerns, but also that the difficulties of individual determinations outweigh the marginal increments in the precise effectuation of congressional concern which they might be expected to produce.
69
The judgment of the District Court is reversed.
70
Reversed.
71
Mr. Justice DOUGLAS, dissenting.
72
I agree with Mr. Justice BRENNAN that because there is clearly jurisdiction of the Court's extended discussion of the subject is unwarranted.
73
On the merits, I believe that the main problem with these legislatively created presumptions is that they frequently invade the right to a jury trial. See Tot v. United States, 319 U.S. 463, 473, 63 S.Ct. 1241, 1247, 87 L.Ed. 1519 (1943) (Black, J., concurring). The present law was designed to bar payment of certain Social Security benefits when the purpose of the marriage was to obtain such benefits. Whether this was the aim of a particular marriage is a question of fact, to be decided by the jury in an appropriate case. I therefore would vacate and remand the case to give Mrs. Salfi the right to show that her marriage did not offend the statutory scheme, that it was not a sham.
74
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting.
75
The District Court did not err, in my view, either in holding that it had jurisdiction by virtue of 28 U.S.C. § 1331, or in holding that the nine-month requirements of 42 U.S.C. § 416(c)(5) and (e)(2) (1970 ed. and Supp. III) are constitutionally invalid.
76
* Jurisdiction
77
The jurisdictional issue to which the Court devotes 10 pages, only to conclude that there is indeed jurisdiction over the merits of this case both here and in the District Court, was not raised in this Court by the parties before us nor argued, except most peripherally,1 in the briefs or at oral argument. The question involves complicated questions of legislative intent and a statutory provision, 42 U.S.C. § 405(h), which has baffled district court's and courts of appeals for years in this and other contexts.2 Of course, this Court is always obliged to inquire into its own jurisdiction, when there is a substantial question about whether jurisdiction is proper either in the lower courts or in this Court. But since here there is, according to the Court, jurisdiction over the cause of action in any event,3 I would have thought it the wiser course merely to note that there was jurisdiction in the District Court either under 28 U.S.C. § 1331 or under 42 U.S.C. § 405(g), leaving the resolution of the question of which is applicable to a case in which the decision is of some consequence, and in which the parties have, either of their own volition or upon request of the Court, briefed and argued the issue.4 Surely, the Court does not intend to adopt a new policy of always on its own canvassing, with a full discussion, all jurisdictional issues lurking behind every case, whether or not the issue has any impact at all on the resolution of the case.
78
Because the Court nonetheless treats the question fully, I am obliged to do so as well. For, at least insofar as my own research and consideration, unaided by the help ordinarily offered by adversary consideration, is adequate, I am convinced that the Court is quite wrong about the intended reach of § 405(h), and that its construction attributes to Congress a purpose both contrary to all established notions of administrative exhaustion and absolutely without support in the clear language or legislative history of the statute. Further, today's decision is in square conflict with Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974). And finally, even if § 405(g) is the exclusive route for adjudicating actions seeking payment of a claim, I do not see how it can apply to the declaratory and injunctive aspects of this suit.
A.
79
The Court rejects the District Court's conclusion that § 405(h) is no more than a codified requirement of administrative exhaustion on the basis of the third sentence of the section, which it characterizes as 'sweeping and direct and (stating) that no action shall be brought under § 1331, not merely that only those actions shall be brought in which administrative remedies have been exhausted.' Ante, at 757. But the sentence does not say that no action of any kind shall be brought under § 1331, or other general grants of jurisdiction, which may result in entitling someone to benefits under Title II of the Act; it says merely that no action shall be brought under § 1331 et seq. 'to recover on any claim arising under (Title II).' (Emphasis added.) This action, I believe, does not 'arise under' Title II in the manner intended by § 405(h), and it is, at least in part, not an action to 'recover' on a claim. See Parts B and C, infra.
80
Section 405(h), I believe, only bans, except under § 405(g), suits which arise under Title II in the sense that they require the application of the statute to a set of facts, and which seek nothing more than a determination of eligibility claimed to arise under the Act. Thus, I basically agree with the District Court that § 405(h), including its last sentence, merely codifies the usual requirements of administrative exhaustion. The last sentence, in particular, provides that a plaintiff cannot avoid § 405(g) and the first two sentences of § 405(h) by bringing an action under .a general grant of jurisdiction claiming that the Social Security Act itself provides him certain rights. Rather, on such a claim a plaintiff must exhaust administrative remedies, and the District Court is limited to review of the Secretary's decision, in the manner prescribed by § 405(g).
81
The Court suggests that this reading of § 405(h) makes the last sentence redundant. But this is the reading which the Social Security Board itself gave to the provision soon after it went into effect. In a document prepared for and approved by the Board in January 1940 as an outline of the procedures to be followed under the newly enacted Social Security Act Amendments of 1939,5 the interaction between §§ 405(g) and (h) is described as follows:
82
'The judicial review section of the act, section (405(g)), provides for civil suits against the Social Security Board in the United States District Courts. These may be filed by parties to hearings before the Board who are dissatisfied with final decisions of the Board. The review of the Board's actions in these suits will consist of a review of the Board's records in these cases. Thus, on the one hand, the Board is protected against the possibility of reversals of its decisions in separate actions filed for the purpose. . . . Actions of this kind are specifically excluded by section (405(h)). On the other hand, judicial review on the basis of the Board's records in the cases makes it necessary that the record in each case be in the best possible state so as to avoid difficulties if a challenge in court occurs.' Federal Security Agency, Social Security Board, Basic Provisions Adopted by the Social Security Board for the Hearing and Review of Old-Age and Survivors Insurance Claims With a Discussion of Certain Administrative Problems and Legal Consideration (1940), in Attorney General's Committee on Administrative Procedure, Administrative Procedures in Government Agencies, S.Doc.No.10, 77th Cong., 1st Sess., pt. 3, p. 39 (1941).
83
Since the last sentence of § 405(h) is the only part of the section which 'specifically exclude(s)' any 'action,' the italicized portion obviously refers to that sentence.
84
Thus, the agency responsible for the enforcement of Title II adopted a construction of the statute which gave the last sentence the very meaning which the Court now rejects as 'superfluous' and 'already performed by other statutory provisions.' Ante, at 757, 759, and n. 6. As explained in the margin,6 the sentence is not superfluous, and the Board obviously did not regard it as such. Administrative interpretations by agencies of statutes which they administer are ordinarily entitled to great weight, see, e.g., Johnson v. Robison, 415 U.S., at 367—368, 94 S.Ct. at 1166; Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). And in this instance, the contemporary Social Security Board was intimately involved in the formulation of the 1939 amendments,7 and thus must be presumed to have had insight into the legislative intent.8
85
Indeed, to adopt the Court's view of the last sentence of § 405(h) is, as far as I can determine, to assume that it was inserted precisely to cover the situation here—a suit attacking the constitutionality of a section of Title II and seeking to establish eligibility despite the provisions of the statute. Yet, the Court is able to point to no evidence at all that Congress was concerned with this kind of lawsuit when it formulated these sections, and I have not been able to find any either.
86
Without any clear evidence, indeed without any evidence, the Court should not attribute to Congress an intention to filter through § 405(g) this sort of constitutional attack. 'Adjudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies.' Oestereich v. Selective Service Bd., 393 U.S. 233, 242, 89 S.Ct. 414, 419, 21 L.Ed.2d 402 (1968) (Harlan, J., concurring in result); Johnson v. Robison, 415 U.S., at 368, 94 S.Ct. 1160, 1166, 39 L.Ed.2d 389.9 See 3 K. Davis, Administrative Law Treatise § 20.04 (1958). Thus, in a case such as this one, in which no facts are in dispute and no other sections of the Act are possibly applicable, 'the only question of exhaustion was whether to require exhaustion of nonexistent administrative remedies.' Id., at 78. See Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 773, 67 S.Ct. 1493, 1503, 91 L.Ed. 1796 (1947). To assume, with no basis in the legislative history or in the clear words of the statute, that Congress intended to require exhaustion in this kind of case, is to impute to Congress a requirement of futile exhaustion, in which the only issues in the case are not discussed, in which the actual issues are in no way clarified, in which no factual findings are made, and in which there is no agency expertise to apply. I see no basis for imputing such an odd intent, especially since, as discussed below, I believe that clear import of the wording of the statute is to the contrary.
B
87
I think it quite clear that a claim 'arising under' Title II is one which alleges that the Title grants someone certain rights. This claim does not 'arise under' the Title because, if the statute itself were applied, Mrs. Salfi would certainly lose. Instead, this case 'arises under' the Constitution and seeks to hold invalid the result which would be reached under the statute itself. Johnson v. Robison, supra, as well as cases construing the meaning of 'arising under' in other jurisdictional statutes,10 dictate this result.
88
In Johnson, construing the language which appears ante, at 761, we said, 415 U.S., at 367, 94 S.Ct. at 1166:
89
'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 . . .. Thus, . . . '(t)he questions of law presented in these proceedings arise under the Constitution, not under the statute whose validity is challenged." (Citation omitted.)
90
The Court, ante, at 761-762, suggests that this interpretation turned on the precise wording of the statute construed in Johnson, specifically on the words 'decisions . . . on any question of law or fact.' First, as the quotation above shows, Johnson in fact concentrated not upon what constitutes a 'decision' of the administrator but upon what is a decision 'under' a statute. But more significantly, the statute construed in Johnson had, between 1957 and 1970, read in part:
91
'(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 . . ..' 38 U.S.C. § 211(a) (1964 ed., Supp. V) (emphasis added).
92
See Johnson, 415 U.S., at 368—369, 9 S.Ct. at 1166, n. 9. The italicized language is obviously quite similar to that used in § 405(h). The Court's opinion in Johnson made clear that the holding that the section does not apply to constitutional attacks on veterans' benefits legislation encompasses all prior versions of the section, and that the 'claim for benefits' language in no way affected this construction of the statute.11
93
Aside from Johnson, our cases concerning the meaning of 'arising under' in the jurisdictional statutes affirm that this claim arises under the Constitution and not under the Social Security Act. We have consistently held that a controversy regarding title to land does not 'arise under' federal law '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). See Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 676, 94 S.Ct. 772, 782, 39 L.Ed.2d 73, and n. 11 (1974). Rather, 'a suit to enforce a right which takes its origin in the laws of the United States is not necessarily one arising under the . . . laws of the United States.' Shoshone Mining Co. v. Rutter, 177 U.S. 505, 507, 20 S.Ct. 726, (1900); Oneida Indian Nation, supra, 414 U.S., at 683, 94 S.Ct., at 785 (Rehnquist, J., concurring). Unless the dispute requires, for its resolution, a decision concerning federal law, the case does not arise under federal law even, if, but for a federal statute, there would be no right at all. Shulthis v. McDougal, supra, 225 U.S., at 569, 32 S.Ct., at 706; Oneida Indian Nation, supra, 414 U.S., at 677, 94 S.Ct., at 782.
94
Thus, 'arising under' is a term of art in jurisdictional statutes referring, at least in part, to the body of law necessary to consider in order to determine the rights in question. Here, there is no dispute about the application of the Social Security Act; the only controversy concerns whether the Constitution permits the result which the Social Security Act would require. Therefore, this case does not concern a 'claim arising under' Title II, and is not precluded by the last sentence of § 405(h) from consideration under 28 U.S.C. § 1331.
C
95
Not only does this case not concern a 'claim arising under' Title II, but it is, at least in part, not an 'action . . . to recover on any claim.' (Emphasis added.) A three-judge District Court dealt with the 'recover on (a) claim' aspect of § 405(h) in Gainville v. Richardson, 319 F.Supp. 16, 18 (D.C.Mass. 1970).12 Judge Wyzanski wrote concerning the effect of the last sentence of § 405(h):
96
'In the present action, while plaintiff does, perhaps improperly, seek damages, his complaint also has prayers for a declaratory judgment that § 203(f)(3) of the Social Security Act, 42 U.S.C. § 403(f)(3) is unconstitutional, and for an injunction restraining defendant from applying that section. If he were to be successful with respect to those prayers, plaintiff would not, in the language of the statute, 'recover on any claim' for benefits. For recovery of benefits he would still need to resort to the administrative process. The only effect of a declaratory judgment or injunction by this court would be to preclude the Secretary from making the challenged deduction.' 319 F.Supp., at 18.
97
This holding seems eminently sensible to me. The legislative history and administrative interpretation of § 405(h), supra, at 790-792, and n. 8, reveal no basis for supposing that the section was to apply to suits which did not request immediate payment of a claim as part of the relief. To construe the statute to cover all actions which may later, after administrative consideration, result in eligibility under Title II is to mutilate the statutory language.
98
The holding in Gainville, supra, applies squarely to this case. The complaint sought declaratory and injunctive relief with respect to both the named plaintiffs and the class, as well as retroactive benefits. App., at 12—13. The injunction sought was either an order to provide benefits or 'an opportunity for a hearing on the genuineness of their status, (for) plaintiffs and all those similarly situated.' Id., at 13. Thus, even if § 405(h) precludes granting retroactive benefits except under § 405(g), it would not, under the rationale of Gainville, supra, preclude granting any declaratory and injunctive relief to the class, since the relief requested would not necessarily be tantamount to recovery on a claim. Indeed, the appellants seem to have conceded as much in this case, since it argued here that § 405(g) and (h) were preclusive only with regard to retroactive benefits, see n. 1, supra.
99
The Court concludes that there was jurisdiction over the claim for retroactive benefits for the named plaintiffs under § 405(g). (But see Part D, infra.) Under the Gainville rationale, there would be jurisdiction under § 1331 over the claims for class declaratory and injunctive relief. And if there was jurisdiction under one jurisdictional statute or another for each part of the action, surely there was jurisdiction over the whole.13
D
100
Finally, even if I could agree, and I do not, that § 405(g) is the exclusive route for consideration of this kind of case, I would dissent from the Court's treatment of the exhaustion requirement of § 405(g), ante, at 764-767. The Court admits, ante, at 765, that the purposes of administrative exhaustion 'have been served once the Secretary has satisfied himself that the only issue is the constitutionality of a statutory requirement, a matter which is beyond his jurisdiction to determine, and that the claim is neither otherwise invalid nor cognizable under a different section of the Act.' Nonetheless, the Court construes the statute so as to permit 'the Secretary (to) specify such requirements for exhaustion as he deems serve his own interests in effective and efficient administration. . . . (A) court may not substitute its conclusion as to futility for the contrary conclusion of the Secretary.' ante, at 766 (Emphasis supplied.)
101
If, as the Court holds, the finality and hearing requirements of § 405(g) are not jurisdictional,14 ibid., then I fail to see why it is left to the Secretary to determine when the point of futility is reached, a power to be exercised, apparently, with regard only to the Secretary's needs and without taking account of the claimants' interest in not exhausting futile remedies,15 and in obtaining promptly benefits which have been unconstitutionally denied. Further, the Court leaves the way open for a lawless application of this power, since the Secretary can evidently, once the case is in court, assert or not assert the full exhaustion requirements of § 405(g), as he pleases.
102
Moreover, and significantly, it flagrantly distorts the record in this case to say that the Secretary waived the exhaustion requirements of § 405(g), recognizing their futility. True, the Secretary does not here claim a lack of jurisdiction for failure to exhaust on the individual claim, see n. 1, supra. But he did, in the District Court, move to dismiss the entire action for lack of subjectmatter jurisdiction. See Notice and Motion to Dismiss or for Summary Judgment, at Record 114—117. The Secretary said, referring to § 405(g) and (h):
103
'From the above provisions, it is clear that the only civil action permitted to an individual on any claim arising under Title II of the Act is an action to review the 'final decision of the Secretary made after a hearing . . ..' The complaint, however, does not allege jurisdiction under section (405(g)) . . .. Moreover, there has been no 'final decision' by the Secretary on the matters herein complained of . . . and plaintiffs have not exhausted their administrative remedies. The exhaustion of any available administrative remedies is a condition precedent to the plaintiffs (sic) bringing this action against the defendants, and the issue is one of subject matter jurisdiction.' Defendants' Memorandum in Opposition to the Plaintiffs' Motion for Preliminary Injunction, at Record 65. (First emphasis added.)
104
In the face of this statement, the Court's conclusion that the Secretary determined 'that for the purposes of this litigation the reconsideration determination is 'final," ante, at 767, is patently indefensible.
II
105
The merits of this case can be dealt with very briefly. For it is, I believe, apparent on the face of the Court's opinion that today's holding is flatly contrary to several recent decisions, specifically Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973); United States Dept. of Agriculture v. Murry, 413 U.S. 508, 93 S.Ct. 2832, 37 L.Ed.2d 767 (1973); and Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974).
106
In Vlandis, we said, 412 U.S., at 446, 93 S.Ct., at 2233: '(P)ermanent irrebuttable presumptions have long been disfavored under the Due Process (Clause) of the . . . Fourteenth (Amendment).' The Court today distinguishes Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), and Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974), two cases which struck down conclusive presumptions, because both dealt with protected rights, while this case deals with 'a noncontractual claim to receive funds from the public treasury (which) enjoys no constitutionally protected status.' Ante, at 772. But Vlandis also dealt with a Government benefit program—the provision of an education at public expense. Since the Court cannot dispose of Vlandis as it does Stanley and LaFleur, it attempts to wish away Vlandis by noting that 'where Connecticut purported to be concerned with residency, it might not at the same time deny to one seeking to meet its test of residency the opportunity to show factors clearly bearing on that issue.' Ante, at 2470.
107
Yet, the Connecticut statute in Vlandis did not set 'residency,' undefined, as the criteria of eligibility; it defined residency in certain ways. The definitions of 'resident' were precisely parallel to the statute here, which defines 'widow' and 'child' in part by the number of months of marriage, 42 U.S.C. §§ 416(c) and (e) (1970 ed. and Supp. III).
108
Similarly, Murry, supra, and Jimenez, supra, both dealt with conclusive presumptions contained in statutes setting out criteria for eligibility for Government benefits. The Court distinguishes them as cases in which the 'criteria . . . bear no rational relation to a legitimate legislative goal.' Ante, at 2470. But if the presumptions in Murry and Jimenez were irrational, the presumption in this case is even more irrational. We have been presented with no evidence at all that the problem of collusive marriages is one which exists at all. Indeed, the very fact that Congress has continually moved back the amount of time required to avoid the irrebuttable presumption, ante, at 2473—2474, suggests that it found, for each time period set, that it was depriving deserving people of benefits without alleviating any real problem of collusion. There is no reason to believe that the nine-month period is any more likely to discard a high proportion of collusive marriages than the five-year, three-year, or one-year periods employed earlier.
109
The Court says: 'The administrative difficulties of individual eligibility determinations are without doubt matters which Congress may consider when determining whether to rely on rules which sweep more broadly than the evils with which they seek to deal.' Ante, at 2476. But, as we said in Stanley v. Illinois, supra:
110
'(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.' 405 U.S., at 656, 92 S.Ct. at 1215.
111
This is not to say, nor has the Court ever held, that all statutory provisions based on assumptions about underlying facts are per se unconstitutional unless individual hearings are provided. But in this case, as in the others in which we have stricken down conclusive presumptions, it is possible to specify those factors which, if proved in a hearing, would disprove a rebuttable presumption. See, e.g., Vlandis, supra, 412 U.S., at 452, 93 S.Ct., at 2236. For example, persuasive evidence of good health at the time of marriage would be sufficient, I should think, to disprove that the marriage was collusive. Also, in this case, as in Stanley, 405 U.S., at 655, 92 S.Ct. at 1214—1215, and LaFleur, 414 U.S., at 643, 94 S.Ct. at 798, the presumption, insofar as it precludes people as to whom the presumed fact is untrue from so proving, runs counter to the general legislative policy—here, providing true widows and children with survivors' benefits. And finally, the presumption here, like that in Vlandis, Murry, and Jimenez, involves a measure of social opprobrium; the assumption is that the individual has purposely undertaken to evade legitimate requirements. When these factors are present, I believe that the Government's interests in efficiency must be surrendered to the individual's interest in proving that the facts presumed are not true as to him.
112
I would affirm the judgment of the District Court.
1
Title 42 U.S.C. § 402(g)(1) (1970 ed. and Supp. III) provides for benefits for the 'widow' of an insured wage earner, regardless of her age, if she has in her care a 'child' of such wage earner who is entitled to child's insurance benefits. Title 42 U.S.C. § 402(d) (1970 ed. and Supp.) provides for benefits for the 'child' of a deceased insured wage earner who was dependent upon him at his death.
2
Title 42 U.S.C. § 416(c) (1970 ed., Supp. IV) provides in full:
'(c) The term 'widow' (except when used in section 402(i) of this title) means the surviving wife of an individual, but only if (1) she is the mother of his son or daughter, (2) she legally adopted his son or daughter while she was married to him and while such son or daughter was under the age of eighteen, (3) he legally adopted her son or daughter while she was married to him and while such son or daughter was under the age of eighteen, (4) she was married to him at the time both of them legally adopted a child under the age of eighteen, (5) she was married to him for a period of not less than nine months immediately prior to the day on which he died, or (6) in the month prior to the month of her marriage to him (A) she was entitled to, or on application therefor and attainment of age 62 in such prior month would have been entitled to, benefits under subsection (b), (e), or (h) of section 402 of this title, (B) she had attained age eighteen and was entitled to, or on application therefor would have been entitled to, benefits under subsection (d) of such section (subject, however, to section 402(s) of this title), or (C) she was entitled to, or upon application therefor and attainment of the required age (if any) would have been entitled to, a widow's, child's (after attainment of age 18), or parent's insurance annuity under section 231a of Title 45.'
It is undisputed that appellee Salfi cannot qualify as a 'widow' by satisfying condition (1), (2), (3), (4), or (6).
Title 42 U.S.C. § 416(e) (1970 ed., Supp. III) provides in part:
'(e) Child.
'The term 'child' means (1) the child or legally adopted child of an individual, (2) a stepchild who has been such stepchild for not less than one year immediately proceding the day on which application for child's insurance benefits is filed or (if the insured individual is deceased) not less than nine months immediately preceding the day on which such individual died . . ..'
Prior to 1967, the required duration of relationship was a full year. The reduction to nine months was accomplished in Pub.L. 90—248, §§ 156(a) and (b), 81 Stat. 866.
3
The literal wording of this section bars actions under 28 U.S.C. § 41. At the time § 405(h) was enacted, and prior to the 1948 recodification of Title 28, § 41 contained all of that title's grants of jurisdiction to United States district courts, save for several special-purpose jurisdictional grants of no relevance to the constitutionality of Social Security statutes.
4
'Title 42 U.S.C. § 405(h) provides in full: 'Finality of Secretary's decision.
'The findings and decisions of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under section 41 of Title 28 to recover on any claim arising under this subchapter.'
5
'Title 42 U.S.C. § 405(g) provides:
'Judicial review.
'Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of
such decision or within such further time as the Secretary may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has his principal place of business, or, if he does not reside or have his principal place of business within any such judicial district, in the United States District Court for the District of Columbia. As part of his answer the Secretary shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause of a rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive, and where a claim has been denied by the Secretary or a decision is rendered under subsection (b) of this section which is adverse to an individual who was a party to the hearing before the Secretary, because of failure of the claimant or such individual to submit proof in conformity with any regulation prescribed under subsection (a) of this section, the court shall review only the question of conformity with such regulations and the validity of such regulations. The court shall, on motion of the Secretary made before he files his answer, remand the case to the Secretary for further action by the Secretary, and may, at any time, on good cause shown, order additional evidence to be taken before the Secretary, and the Secretary shall, after the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm his findings of fact or its decision, or both, and shall file with the court any such additional and modified findings of fact and decision, and a transcript of the additional record and testimony upon which his action in modifying or affirming was based. Such additional or modified findings of fact and decision shall be reviewable only to the extent provided for review of the original findings of fact and decision. The judgment of the court shall be final except that it shall be subject to review in the same manner as a judgment in other civil actions. Any action instituted in accordance with this subsection shall survive not-
withstanding any change in the person occupying the office of Secretary or any vacancy in such office.'
6
Nor can it be argued that the third sentence of § 405(h) simply serves to prevent a bypass of the § 405(g) requirements by filing a district court complaint alleging entitlement prior to applying for benefits through administrative channels. The entitlement sections of the Act specify the filing of an application as a prerequisite to entitlement, so a court could not in any event award benefits absent an application. See 42 U.S.C. §§ 402(a)—(h) (1970 ed. and Supp. III). See also § 420(j)(1). Once the application is filed, it is either approved, in which event any suit for benefits would be mooted, or it is denied. Even if the denial is nonfinal, it is still a 'decision of the Secretary' which, by virtue of the second sentence of § 405(h), may not be reviewed save pursuant to § 405(g).
Our Brother BRENNAN relies heavily, post, at 790-792, on a passage from a Senate document entitled 'Monograph of the Attorney General's Committee on Administrative Procedure.' S.Doc.No.10, 77th Cong., 1st Sess., pt. 3, p. 39 (1941). The basis monograph itself is described as 'embodying the results of the investigations made by the staff of said committee relative to the (administrative) practices and procedures of' several agencies of the Government. Id. at II. Following the text of the monograph is the 'Appendix,' which in turn is described in a 'Foreword' as follows: 'This statement, developed from a report by the Bureau of Old-Age and Survivors Insurance making certain recommendations for the Board's consideration, describes the essential features of a hearing and review system which has been authorized by the Board and which is designed to meet both the statutory requirements and the social purposes of the old-age and survivors insurance program. It has been developed during several months under the leadership of Ralph F. Fuchs, professor of law, Washington University, St. Louis, Mo., a consultant of this Bureau, by whom the Bureau's report, in the main, was written.' Id., at 34. After the 'Foreword' follows a three-part report in somewhat smaller type, the second of which parts is entitled 'Considerations Affecting the Hearing and Review System.' Within this second part, appears the language which Mr. Justice BRENNAN's dissent characterizes as 'the reading which the Social
Security Board itself gave to the provision soon after it went into effect.' Post, at 790.
We have some doubts that the report of a consultant can be properly characterized as incorporating the 'reading which the Social Security Board itself gave' to this provision. Even if the report as a whole is stated to have been 'approved' by the Board, there is no indication that such approval extents beyond the report's broad-brush conceptualization of 'the essential features of a hearing and review system.' In any event, we do not agree that an administrative agency's general discussion of a statute, occurring after its passage, and in a context which does not require it to focus closely on the operative impact of a particular provision, is either an important indicator of congressional intent, as the dissent suggests, post, at 792, or an authoritative source for the proposition that a provision serves a particular function. Finally, even if the report is an accurate reading of the Act, its significance goes only to whether the third sentence of § 405(h) serves a function in addition to that which we believe it serves; the possibility that the District Court's interpretation renders the third sentence only largely superfluous rather than totally so is not sufficient to disturb our analysis of the role of that sentence in this case.
7
Title II contains the old-age, survivors, and disability insurance rpograms codified at 42 U.S.C. § 401 et seq.
8
Since § 405(g) is the basis for district court jurisdiction, there is some question as to whether it had authority to enjoin the operation of the duration-of-relationship requirements. Section 405(g) accords authority to affirm, modify, or reverse a decision of the Secretary. It contains no suggestion that a reviewing court is empowered to enter an injunctive decree whose operation reaches beyond the particular applicants before the court. In view of our dispositions of the class-action and constitutional issues in this case, the only significance of this problem goes to our own jurisdiction. If a § 405(g) court is not empowered to enjoin the operation of a federal statute, then a three-judge District Court was not required to hear this case, 28 U.S.C. § 2282, and we are without jurisdiction under 28 U.S.C. § 1253. However, whether or not the three-judge court was properly convened, that court did hold a federal statute unconstitutional in a civil action to which a federal agency and officers are parties. We thus have direct appellate jurisdiction under 28 U.S.C. § 1252. McLucas v. DeChamplain, 421 U.S. 21, 31—32, 95 S.Ct. 1365, 1372, 43 L.Ed.2d 699 (1975).
9
Title 42 U.S.C. § 405(a):
'The Secretary shall have full power and authority to make rules and regulations and to establish procedures, not inconsistent with the provisions of this subchapter, which are necessary or appropriate to carry out such provisions, and shall adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits hereunder.'
10
Section 405(g) jurisdiction in Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975), was similarly present. In that case the Secretary stipulated that exhaustion would have been futile, and he did not make any contentions that Wiesenfeld had not complied with the requirements of § 405(g). Id., at 641 n. 8.
11
The Secretary also briefly argues that the duration-of-relationship requirement rationally serves the interest in providing benefits only for persons who are likely to have become dependent upon the wage earner. Brief for Appellants 11—12. In view of our conclusion with regard to his principal argument, we need not consider this justification.
12
Similarly, the natural or adopted child of a deceased wage earner need not meet the nine-month requirement. See 42 U.S.C. § 416(e)(1) (1970 ed., Supp. III).
13
According to the Social Security Administration, in calendar 1973 there were 125,000 applicants for mother's benefits, 1,313,000 for child's benefits, and 403,000 for widow's/widower's benefits. While these figures include large numbers of persons who qualify on bases other than the duration of their relationship with a wage earner, they also doubtlessly exclude persons who did not even apply because of the durational restriction, or who were thereby dissuaded from entering the relationship. A feel for the magnitude of the potential for case-by-case determinations can also be developed by reference to the Social Security Administration's estimate that judgment for the class which the named appellees sought to represent would involve payments of $30 million, assuming retroactivity to 1967. This figure does not reflect payments in behalf of persons who met the objective none-month requirement, or who could not meet it and therefore either never applied or never entered the relationship.
14
See 42 U.S.C. § 416(b), (f), and (g), defining 'wife,' 'husband,' and 'widower.' These various definitions impose duration-of-relationship requirements with regard to 'wife's' benefits, 42 U.S.C. § 402(b) (1970 ed. and Supp. III) 'husband's' benefits, 42 U.S.C. § 402(c), and 'widower's' benefits, 42 U.S.C. § 402(f) (1970 ed. and Supp. III). In addition, 'widow's' benefits, 42 U.S.C. § 402(e) (1970 ed. and Supp. III), are available only to those women who satisfy § 416(c)'s definition of 'widow.' 'Parent's' benefits, 42 U.S.C. § 402(h), are also subject to an objective eligibility requirement which is similar to a duration-of-relationship requirement. Under § 402(h)(3), stepparents and adoptive parents may receive benefits with respect to a deceased child who was providing at least half of their support, but only if the marriage or adoption creating their relationship occurred prior to the child's 16th birthday.
15
Appellees do not contend that marital intent or life expectancy can be reliably determined. They argue, however, that because a marriage could not be entered in contemplation of imminent death unless the wage earner's 'terminal illness' was known, the inquiry need go no farther than the issue of whether the parties to the marriage knew of such an illness. They claim that applicants could demonstrate the state of their knowledge by physicians' affidavits or documentary medical evidence. These contentions are not, however, supported by any factual rebuttals of the variety of difficulties which Congress was entitled to expect to be encountered. See McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961).
For example, all evidence of 'knowledge of terminal illness' would ordinarily be under the control of applicants, which suggests that they should bear the burden of proof. But this burden could be convincingly carried only with respect to wage earners who happened to have had physical examinations shortly before their weddings; on the other hand, awarding benefits where the wage earner had not had an examination, and no medical evidence was available, would encourage participants in sham arrangements to conceal their own adverse medical evidence. Even when adequate medical evidence was available there could easily be difficulties in determining whether a wage earner's physical condition amounted to a 'terminal illness'; if that concept were restricted to conditions which were virtually certain to result in an early death, benefits would probably be too broadly available, since certainty of imminent death rather than a mere high probability of it is not a prerequisite to a sham relationship; yet inquiries into the degree of likelihood of death could become very complex indeed.
Additional problems with appellees' proposed test arise because it, like the duration-of-relationship requirement, is not precisely related to the objective of denying benefits which are sought on the basis of sham relationships. In the first place, it presumably would be necessary to limit the requirement of terminal illness inquiries to instances in which death occurred within a specified period after marriage. It would also appear to be necessary to set an outside limit on the length of the period within which death was expected that would disqualify applicants (after all, and paraphrasing Lord Keynes, in the long run we are all expected to die). Yet there will
always be persons on one side of such lines who are seriously disadvantaged vis-a -vis persons on the other side. More basically, appellees' test would clearly exclude persons who knew of a wage earner's imminent death, but who entered their marriages for reasons entirely unrelated to Social Security benefits, such as to fulfill the promises of a longstanding engagement. Thus appellees' proposed test would be subject to exactly the same constitutional attacks which they direct towards the test on which Congress chose to rely.
Appellees point out that 42 U.S.C. § 416(k) (1970 ed., Supp. III) provides for limited exceptions to the duration-of-relationship requirement, unless the Secretary determines that at the time of the marriage the wage earner 'could not have reasonably been expected to live for nine months.' They argue that this represents Congress' recognition that case-by-case consideration would not impose an inordinate administrative burden. The argument is without merit. Section 416(k) expresses Congress' willingness to accept case-by-case inquiries with regard to limited classes which bear particular indices of genuineness (the section is applicable in cases of accidental death, death in the line of military duty, and remarriages of persons previously married for more nine months). This says nothing about the feasibility of making such inquiries in other circumstances, much less the rationality of choosing not to do so.
1
The appellants in their jurisdictional statement raised as one of the questions presented '(w)hether sovereign immunity bars this (suit) insofar as it seeks retroactive social security benefits.' Jurisdictional Statement 2 (emphasis added). Their argument was that no retroactive benefits were available to the class, because 28 U.S.C. § 1331 does not waive sovereign immunity, because 42 U.S.C. § 405(h) bars a suit seeking retroactive benefits except under § 405(g), and because the exhaustion requirements of § 405(g) were not met. Brief for Appellants 16—18. See also Tr. of Oral Arg. 7—8:
'Question: . . . (I)s the United States satisfied there was jurisdiction in the district court here?
'Mrs. Shapiro: We are not satisfied that there was jurisdiction to the extent that it . . . identified a class and required retroactive payments to all members of the class.' (Emphasis added.)
Thus, the appellants never claimed here that the District Court was without jurisdiction over the merits of this case, for they conceded, apparently, jurisdiction to grant declaratory and injunctive relief.
2
See, e.g., on the effect of §§ 405(g) and (h) on cases seeking to invalidate as unconstitutional a provision of Title II of the Social Security Act, Bartley v. Finch, 311 F.Supp. 876 (ED Ky.1970), summarily aff'd on the merits sub nom. Bartley v. Richardson, 404 U.S. 980, 92 S.Ct. 442, 30 L.Ed.2d 364 (1971); Gainville v. Richardson, 319 F.Supp. 16 (Mass.1970); Griffin v. Richardson, 346 F.Supp. 1226 (D.C.Md.), summarily aff'd, 409 U.S. 1069, 93 S.Ct. 689, 34 L.Ed.2d 660 (1972); Diaz v. Weinberger, 361 F.Supp. 1 (SD Fla.1973); Wiesenfeld v. Weinberger, 367 F.Supp. 981 (NJ 1973), aff'd, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975); Kohr v. Weinberger, 378 F.Supp. 1299 (ED Pa.1974) (appeal docketed, No. 74—5538).
Bartley v. Finch, supra, was the only one of these cases holding that § 405(g) is the exclusive means of determining the constitutionality of a provision of the Social Security Act, and that there was, because of non-compliance with § 405(g), no jurisdiction. The District Court then went on to decide the merits. This Court's affirmance was explicitly on the merits, and thus must be taken to have held that there was jurisdiction even though § 405(g) was not complied with.
Other courts have grappled with § 405(g) and (h) in other contexts. See, e.g., Filice v. Celebrezze, 319 F.2d 443 (CA9 1963); compare Cappadora v. Celebrezze, 356 F.2d 1 (CA2 1966), with Stuckey v. Weinberger, 488 F.2d 904 (CA9 1973) (en banc). In Cappadora, supra, Judge Friendly, in considering the application of § 405(g) and (h) to review of a decision not to reopen a claim of statutory qualification, cautioned against overly literal interpretation of the sections. 356 F.2d, at 4—5.
3
If the Court had determined to affirm on the merits, then the question actually raised by the appellants—whether there is jurisdiction to award retroactive benefits despite noncompliance with § 405(g)—may have been fairly before us, and may have entailed canvassing the jurisdictional questions the Court today discusses. But since the Court reverses on the merits, the source of the District Court's jurisdiction is immaterial and, particularly, it is irrelevant whether or not there was jurisdiction over the class complaint. The Court's decision on the latter question, ante, at 764, can only be characterized as dictum.
4
In Norton v. Weinberger, appeal docketed, No. 74—6212, the District Court did not declare the contested portion of Title II of the Social Security Act unconstitutional, and we therefore lack jurisdiction under 28 U.S.C. § 1252. Thus, if § 405(g) is the exclusive route for determination of constitutional attacks on Title II, and if, as the Court suggests, ante, at 763 n. 8, there is a question regarding the power of a court to grant an injunction under § 405(g), we could be without jurisdiction under 28 U.S.C. § 1253 in Norton because the three-judge court, without power to enjoin the statute, was improperly convened under 28 U.S.C. § 2282. Thus, Norton, unlike this case, would be the appropriate vehicle for determination of the jurisdictional question decided today.
5
Sections 405(g) and (h) were part of these amendments. See Social Security Act Amendments of 1938, Tit. II, § 201, 53 Stat. 1362. Before that, the Social Security Act contained no explicit provisions concerning judicial review. See H.R.Rep.No. 728, 76th Cong., 1st Sess., 43 (1939).
6
The Court argues, ante, at 759 n. 6, that if the third sentence of § 405(h) merely forbids a bypass of § 405(g) via a separate action not framed as a review of the Secretary's decision, it is superfluous because an application is a prerequisite to entitlement and '(o)nce the application is filed, it is either approved . . . or it is denied,' resulting in a decision of the Secretary which, under the second sentence of § 405(h), cannot be reviewed 'save pursuant to § 405(g).' This analysis is faulty in several respects. First, without the last sentence of § 405(h), an applicant might first file an application and then, before it is acted upon at all, file a suit for benefits under Title II. Second, it is not true that all entitlement to benefits hinge upon filing an application. In some instances, a person already receiving one type of benefits need not file a new application in order to receive another category of benefits. See, e.g.,
42 U.S.C. §§ 402(e)(1)(C)(ii) and (f)(1)(C) (1970 ed., Supp. III); § 402(g)(1)(D). Finally, even if an application has been filed and a decision made upon it, the applicant might try to file a suit seeking not review of the administrative record but a de novo determination of eligibility. This would raise the question whether the second sentence of § 405(g) should be read only to prescribe the way in which the administrative record 'shall be reviewed'; the third sentence makes clear, however, that no action except review of the administrative record is available for suits claiming eligibility under the statute.
7
See Report of the Social Security Board, Proposed Changes in the Social Security Act, H.R.Doc.No.110, 76th Cong., 1st Sess. (1939); Hearings on Social Security before the House Committee on Ways and Means, 76th Cong., 1st Sess., vols. 1, 3, pp. 45—69, 2163 2433 (1939) (testimony of Dr. Altmeyer, Chairman of the Social Security Board).
8
Other indices of legislative intent and administrative interpretation, although sparse, also suggest that § 405(g) and (h) were intended and interpreted as nothing more than a codification of ordinary administrative exhaustion requirements, applicable to cases presenting questions of fact and of interpretation of the statute. The 1939 Report of the Social Security Board, see n. 7, supra, suggested that the amendments include a '(p)rovision that findings of fact and decisions of the Board in the allowance of claims shall be final and conclusive. Such a provision would follow the precedent of the World War Veterans' Act and of other legislation with respect to agencies similar to the Board which handle a large number of small claims.' Id., at 13. At the hearings on the amendments, Dr. Altmeyer explained this recommendation as 'follow(ing) the
precedent laid down in . . . other acts, where there is a volume of small claims, and where a review of the findings of fact would lead to . . . duplicate administration of the law.' Hearings, n. 7, supra, vol. 3, p. 2288. (Emphasis added.) Thus, at their inception the exhaustion provisions which became § 405(g) and (h) were clearly intended to apply only to run-of-the-mill claims under the statutory provisions, in which factual determinations would be paramount.
The House of Representatives Report says of § 405(g): 'The provisions of this subsection are similar to those made for the review of decisions of many administrative bodies.' H.R.Rep.No.728, 76th Cong., 1st Sess., 43 (1939). The Report describes § 405(h) basically in its own words. .id., at 43—44. There is no indication that the latter section was intended in any way to alter the intent indicated by the quoted sentence—to legislate only ordinary administrative exhaustion requirements.
Finally, a statement inserted by Mr. Mitchell, Commissioner of Social Security, into the record of the 1959 Hearings on the Administration of the Social Security Disability Insurance Program before the Subcommittee on the Administration of the Social Security Laws of the House Committee on Ways and Means, 86th Cong., 1st Sess., 977 (1960), again reflects the view that § 405(g) and (h) together merely reiterate, even if a bit redundantly, that 'the jurisdiction of a court to review a determination of the Secretary is limited to a review of the record made before the Secretary. This is made amply clear by the second and third sentences of § (405(g)) and by the provisions of (§ 405(h)). . . . The court has no power to hold a hearing and determine the merits of the claim because the statute makes it clear that the determination of claims is solely a function of the Secretary.'
9
At least twice, claimants who attempted to exhaust pursuant to § 405(g) on a constitutional attack on Title II have been met with an administrative holding that constitutional claims are beyond the competence of the administrative agency. See In re Ephram Nestor, Referee's Decision, Jan. 31, 1958, at Tr. 9, Flemming v. Nestor, O.T. 1959, No. 54; In re Lillian Daniels, Administrative Law Judge's Decision, Nov. 14, 1973, cited in Appellees' Motion to Affirm and/or Dismiss 21 n. 34. This administrative determination of the agency's jurisdiction is due great deference. Johnson v. Robison, 415 U.S. 361, 367—368, 94 S.Ct. 1160, 1166, 39 L.Ed.2d 389 (1974).
10
The last sentence of § 405(h), upon which the Court relies so heavily, refers expressly to old § 41 of Title 28, now 28 U.S.C. § 1331 et seq. Thus, it is appropriate to assume that 'arising under' is used in § 405(h) in the same sense as it is used in the general jurisdictional statutes.
11
Johnson discusses at length the reasons why the 'concerning a claim for benefits or payments' language was eliminated. Id., at 371—373, 94 S.Ct., at 1167. These reasons had nothing to do with the problem of constitutional attacks presented in Johnson and presented here. The Court concluded: 'Nothing whatever in the legislative history of the 1970 amendment, or predecessor noreview clauses, suggests any congressional intent to preclude judicial cognizance of constitutional challenges to veterans' benefits legislation.' 415 U.S., at 373, 94 S.Ct. at 1168. (Emphasis added.)
12
This Court, 409 U.S. 1069, 93 S.Ct. 689, 34 L.Ed.2d 660 (1972), summarily affirmed Griffin v. Richardson, 346 F.Supp. 1226, 1230 (D.C.Md.), which expressed basically the same view, albeit somewhat less clearly.
13
Although this case was argued here as if the District Court granted retroactive benefits to the class, I am not sure this is so. The injunction issued ordered the Secretary 'to provide benefits, from the time of original entitlement, to plaintiffs and the class they represent, provided said plaintiffs and class are otherwise fully eligible to receive said benefits.' 373 F.Supp. 961, 966 (N.D.Cal.1974). (Emphasis added.)
As the Court points out, ante, at 759 n. 6, in most instances, see n. 6, supra, a person is not 'eligible' for benefits until he files an application. Further, the order obviously contemplates administrative proceedings in order to determine whether 'such persons are otherwise fully eligible.' Finally, if exhaustion of § 405(g) is indeed, as the Court holds, always a prerequisite to eligibility, then a person would not be 'otherwise fully eligible' unless and until he exhausts § 405(g). Thus, I believe that the order can be read not to mandate retroactive benefits but only to require that claims of the class members be treated as if the nine-month marriage requirement did not exist. Such an order does not constitute recovery on a claim and, in my view, was proper under 28 U.S.C. § 1331.
14
The Court has to ignore plain language of the statute in order to avoid the absurd result of requiring full exhaustion on all claims such as this one, even after the point of futility is reached. The statute says that judicial review can be had only 'after a hearing.' § 405(g), and it is apparent that the hearing contemplated is a full, evidentiary hearing, see § 405(b). Rather than avoiding the statutory language by holding that the Secretary can nonetheless dispense with a hearing, the Court would do better to recognize that the patent inapplicability of the statutory language to this kind of case suggests that the statute was never intended to apply at all to constitutional attacks beyond the Secretary's competence.
15
Indeed, in some cases similar to this one, administrative exhaustion is functionally impossible. For example, in Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975), the applicant was ineligible for benefits because he was a man, a fact obviously apparent as soon as he appeared at the Social Security office. Not surprisingly, he was refused an opportunity even to file an application for benefits. Id., at 640 n. 6, 95 S.Ct., at 1229. This case is slightly different, since Mrs. Salfi was precluded not by the obvious fact of her sex, but by a fact which presumably did not appear until she filled out the application—that she had not been married long enough. Yet, the Court suggests that we had jurisdiction in Wiesenfeld only because of a stipulation that exhaustion would have been futile. Ante, at 767 n. 10. Does this intimate that the Secretary could have refused to waive exhaustion and thereby have eliminated § 405(g) jurisdiction, even though Wiesenfeld could not possibly have complied with the statute without wrestling an application from the clerk and somehow forcing him to file it?
| 12
|
422 U.S. 590
95 S.Ct. 2254
45 L.Ed.2d 416
Richard BROWN, Petitioner,v.State of ILLINOIS.
No. 73—6650.
Argued March 18, 1975.
Decided June 26, 1975.
Syllabus
Petitioner, who had been arrested without probable cause and without a warrant, and under circumstances indicating that the arrest was investigatory, made two in-custody inculpatory statements after he had been given the warnings prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Thereafter indicted for murder, petitioner filed a pretrial motion to suppress the statements. The motion was overruled and the statements were used in the trial, which resulted in petitioner's conviction. The State Supreme Court, though recognizing the unlawfulness of petitioner's arrest, held that the statements were admissible on the ground that the giving of the Miranda warnings served to break the causal connection between the illegal arrest and the giving of the statements, and petitioner's act in making the statements was 'sufficiently an act of free will to purge the primary taint of the unlawful invasion.' Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407, 416, 9 L.Ed.2d 441. Held:
1. The Illinois courts erred in adopting a per se rule that Miranda warnings in and of themselves broke the causal chain so that any subsequent statement, even one induced by the continuing effects of unconstitutional custody, was admissible so long as, in the traditional sense, it was voluntary and not coerced in violation of the Fifth and Fourteenth Amendments. When the exclusionary rule is used to effectuate the Fourth Amendment, it serves interests and policies that are distinct from those it serves under the Fifth, being directed at all unlawful searches and seizures, and not merely those that happen to produce incriminating material or testimony as fruits. Thus, even if the statements in this case were found to be voluntary under the Fifth Amendment, the Fourth Amendment issue remains. Wong Sun requires not merely that a statement meet the Fifth Amendment voluntariness standard but that it be 'sufficiently an act of free will to purge the primary taint' in light of the distinct policies and interests of the Fourth Amendment. Pp. 600-603.
2. The question whether a confession is voluntary under Wong Sun must be answered on the facts of each case. Though the Miranda warnings are an important factor in resolving the issue, other factors must be considered; and the burden of showing admissibility of in-custody statements of persons who have been illegally arrested rests on the prosecutor. Pp. 603-604.
3. The State failed to sustain its burden in this case of showing that petitioner's statements were admissible under Wong Sun. Pp. 604-605.
56 Ill.2d 312, 307 N.E.2d 356, reversed and remanded.
Robert P. Isaacson, Lincolnwood, Ill., for petitioner, pro hac vice, by special leave of Court.
Jayne A. Carr, Oak Park, Ill., for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This case lies at the crossroads of the Fourth and the Fifth Amendments. Petitioner was arrested without probable cause and without a warrant. He was given, in full, the warnings prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Thereafter, while in custody, he made two inculpatory statements. The issue is whether evidence of those statements was properly admitted, or should have been excluded, in petitioner's subsequent trial for murder in state court. Expressed another way, the issue is whether the statements were to be excluded as the fruit of the illegal arrest, or were admissible because the giving of the Miranda warnings sufficiently attenuated the taint of the arrest. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The Fourth Amendment, of course, has been held to be applicable to the states through the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
2
* As petitioner Richard Brown was climbing the last of the stairs leading to the rear entrance of his Chicago apartment in the early evening of May 13, 1968, he happened to glance at the window near the door. He saw, pointed at him through the window, a revolver held by a stranger who was inside the apartment. The man said: 'Don't move, you are under arrest.' App. 42. Another man, also with a gun, came up behind Brown and repeated the statement that he was under arrest. It was about 7:45 p.m. The two men turned out to be Detectives William Nolan and William Lenz of the Chicago police force. It is not clear from the record exactly when they advised Brown of their identity, but it is not disputed that they broke into his apartment, searched it, and then arrested Brown, all without probable cause and without any warrant, when he arrived. They later testified that they made the arrest for the purpose of questioning Brown as part of their investigation of the murder of a man named Roger Corpus.
3
Corpus was murdered one week earlier, on May 6, with a .38-caliber revolver in his Chicago West Side second-floor apartment. Shortly thereafter, Detective Lenz obtained petitioners' name, among others, from Corpus' brother. Petitioner and the others were identified as acquaintances of the victim, not as suspects.1
4
On the day of petitione's arrest, Detectives Lenz and Nolan, armed with a photograph of Brown, and another officer arrived at petitioner's apartment about 5 p.m. App. 77, 78. While the third officer covered the front entrance downstairs, the two detectives broke into Brown's apartment and searched it. Id., at 86. Lenz then positioned himself near the rear door and watched through the adjacent window which opened onto the back porch. Nolan sat near the front door. He described the situation at the later suppression hearing:
5
'After we were there for a while, Detective Lenz told me that somebody was coming up the back stairs. I walked out the front door through the hall and around the corner, and I stayed there behind a door leading on the the back porch. At this time I heard Detective Lenz say, 'Don't move, you are under arrest.' I looked out. I saw Mr. Brown backing away from the window. I walked up behind him, I told him he is under arrest, come back inside the apartment with us.' Id., at 42.
6
As both officers held him at gunpoint, the three entered the apartment. Brown was ordered to stand against the wall and was searched. No weapon was found. Id., at 93. He was asked his name. When he denied being Richard Brown, Detective Lenz showed him the photograph, informed him that he was under arrest for the murder of Roger Corpus, id., at 16, handcuffed him, id., at 93, and escorted him to the squad car.
7
The two detectives took petitioner to the Maxwell Street police station. During the 20-minute drive Nolan again asked Brown, who then was sitting with him in the back seat of the car, whether his name was Richard Brown and whether he owned a 1966 Oldsmobile. Brown alternately evaded these questions or answered them falsely. Tr. 74. Upon arrival at the station house Brown was placed in the second-floor central interrogation room. The room was bare, except for a table and four chairs. He was left alone, apparently without handcuffs, for some minutes while the officers obtained the file on the Corpus homicide. They returned with the file, sat down at the table, one across from Brown and the other to his left, and spread the file on the table in front of him. App. 19.
8
The officers warned Brown of his rights under Miranda.2 Ibid. They then informed him that they knew of an incident that had occurred in a poolroom on May 5, when Brown, angry at having been cheated at dice, fired a shot from a revolver into the ceiling. Brown answered: 'Oh, you know about that.' Id., at 20. Lenz informed him that a bullet had been obtained from the ceiling of the poolroom and had been taken to the crime laboratory to be compared with bullets taken from Corpus' body.3 Ibid. Brown responded: 'Oh, you know that, too.' Id., at 20—21. At this point it was about 8:45 p.m.—Lenz asked Brown whether he wanted to talk about the Corpus homicide. Petitioner answered that he did. For the next 20 to 25 minutes Brown answered questions put to him by Nolan, as Lenz typed. Id., at 21—23.
9
This questioning produced a two-page statement in which Brown acknowledged that he and a man named Jimmy Claggett visited Corpus on the evening of May 5; that the three for some time sat drinking and smoking marihuana; that Claggett ordered him at gunpoint to bind Corpus' hands and feet with cord from the headphone of a stereo set; and that Claggett, using a .38-caliber revolver sold to him by Brown, shot Corpus three times through a pillow. The statement was signed by Brown. Id., at 9, 38.
10
About 9:30 p.m. the two detectives and Brown left the station house to look for Claggett in an area of Chicago Brown knew him to frequent. They made a tour of that area but did not locate their quarry. They then went to police headequarters where they endeavored, without success, to obtain a photograph of Claggett. They resumed their search—it was now about 11 p.m.—and they finally observed Claggett crossing at an intersection. Lenz and Nolan arrested him. All four, the two detectives and the two arrested men, returned to the Maxwell Street station about 12:15 a.m. Id., at 39.
11
Brown was again placed in the interrogation room. He was given coffee and was left alone, for the most part, until 2 a.m. when Assistant State's Attorney Crilly arrived.
12
Crilly, too, informed Brown of his Miranda rights. After a half hour's conversation, a court reporter appeared. Once again the Miranda warnings were given: 'I read him the card.' Id., at 30. Crilly told him that he 'was sure he would be charged with murder.' Id., at 32. Brown gave a second statement, providing a factual account of the murder substantially in accord with his first statement, but containing factual inaccuracies with respect to his personal background.4 When the statement was completed, at about 3 a.m., Brown refused to sign it. Id., at 57. An hour later he made a phone call to his mother. At 9:30 that morning, about 14 hours after his arrest, he was taken before a magistrate.
13
On June 20 Brown and Claggett were jointly indicated by a Cook County grand jury for Corpus' murder. Prior to trial, petitioner moved to suppress the two statements he had made. He alleged that his arrest and detention had been illegal and that the statements were taken from him in violation of his constitutional rights. After a hearing, the motion was denied. R. 46.
14
The case proceeded to trial. The State introduced evidence of both statements. Detective Nolan testified as to the contents of the first. App. 89—92, but the writing itself was not placed in evidence. The second statement was introduced and was read to the jury in full. Tr. 509—528. Brown was 23 at the time of the trial. Id., at 543.
15
The jury found petitioner guilty of murder. R. 80. He was sentenced to imprisonment for not less than 15 years nor more than 30 years. Id., at 83.
16
On appeal, the Supreme Court of Illinois affirmed the judgment of conviction. 56 Ill.2d 312, 307 N.E.2d 356 (1974). The court refused to accept the State's argument that Brown's arrest was lawful. 'Upon review of the record, we conclude that the testimony fails to show that at the time of his apprehension there was probable cause for defendant's arrest, (and) that his arrest was, therefore, unlawful.' Id., at 315, 307 N.E. 2d at 357. But it went on to hold in two significant and unembellished sentences:
17
'(W)e conclude that the giving of the Miranda warnings, in the first instance by the police officer and in the second by the assistant State's Attorney, served to break the causal connection between the illegal arrest and the giving of the statements, and that defendant's act in making the statements was 'sufficiently an act of free will to purge the primary taint of the unlawful invasion.' (Wong Sun v. United States, 371 U.S. 471, at 486, 83 S.Ct. at 416, 9 L.Ed.2d 441.) We hold, therefore, that the circuit court did not err in admitting the statements into evidence.' Id., at 317, 307 N.E.2d, at 358.
18
Aside from its reliance upon the presence of the Miranda warnings, no specific aspect of the record or of the circumstances was cited by the court in support of its conclusion. The court, in other words, appears to have held that the Miranda warnings in and of themselves broke the causal chain so that any subsequent statement, even one induced by the continuing effects of unconstitutional custody, was admissible so long as, in the traditional sense, it was voluntary and not coerced in violation of the Fifth and Fourteenth Amendments.
19
Because of our concern about the implication of our holding in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), to the facts of Brown's case, we granted certiorari. 419 U.S. 894, 95 S.Ct. 172, 42 L.Ed.2d 138 (1974).
II
20
In Wong Sun, the Court pronounced the principles to be applied where the issue is whether statements and other evidence obtained after an illegal arrest or search should be excluded. In that case, federal agents elicited an oral statement from defendant Toy after forcing entry at 6 a.m. into his laundry, at the back of which he had his living quarters. The agents had followed Toy down the hall to the bedroom and there had placed him under arrest. The Court of Appeals found that there was no probable cause for the arrest. This Court concluded that that finding was 'amply justified by the facts clearly shown on this record.' 371 U.S., at 479, 83 S.Ct., at 413. Toy's statement, which bore upon his participation in the sale of narcotics, led the agents to question another person, Johnny Yee, who actually possessed narcotics. Yee stated that heroin had been brought to him earlier by Toy and another Chinese known to him only as 'Sea Dog.' Under questioning, Toy said that 'Sea Dog' was Wong Sun. Toy led agents to a multifamily dwelling where, he said, Wong Sun lived. Gaining admittance to the building through a bell and buzzer, the agents claimbed the stairs and entered the apartment. One went into the back room and brought Wong Sun out in handcuffs. After arraignment, Wong Sun was released on his own recognizance. Several days later, he returned voluntarily to give an unsigned confession.
21
This Court ruled that Toy's declarations and the contraband taken from Yee were the fruits of the agents' illegal action and should not have been admitted as evidence against Toy. Id., at 484 488, 83 S.Ct., at 416. It held that the statement did not result from "an intervening independent act of a free will," and that it was not 'sufficiently an act of free will to purge the primary taint of the unlawful invasion' Id., at 486, 83 S.Ct., at 416. With respect to Wong Sun's confession, however, the Court held that in the light of his lawful arraignment and release on his own recognizance, and of his return voluntarily several days later to make the statement, the connection between his unlawful arrest and the statement 'had 'become so attenuated as to dissipute the taint.' Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307.' Id., at 491, 83 S.Ct., at 419. The Court said:
22
'We need not hold that all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' Maguire, Evidence of Guilt, 221 (1959).' Id., at 487 488, 83 S.Ct., at 417.
23
The exclusionary rule thus was applied in Wong Sun primarily to protect Fourth Amendment rights. Protection of the Fifth Amendment right against self-incrimination was not the Court's paramount concern there. To the extent that the question whether Toy's statement was voluntary was considered, it was only to judge whether it 'was sufficiently an act of free will to purge the primary taint of the unlawful invasion. Id., at 486, 83 S.Ct., at 416 (emphasis added).
24
The Court in Wong Sun, as is customary, emphasized that application of the exclusionary rule on Toy's behalf protected Fourth Amendment guarantees in two respects: 'in terms of deterring lawless conduct by federal officers,' and by 'closing the doors of the federal courts to any use of evidence unconstitutionally obtained.' Ibid. These considerations of deterrence and of judicial integrity, by now, have become rather commonplace in the Court's cases. See, e.g., United States v. Peltier, 442 U.S. 531, 535—538, 95 S.Ct. 2313, 2316—2318, 45 L.Ed.2d 374; United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974); Terry v. Ohio, 392 U.S. 1, 12—13, 28—29, 88 S.Ct. 1868, 1875, 20 L.Ed.2d 889 (1968). '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). But '(d)espite 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.' United States v. Calandra, 414 U.S., at 348, 94 S.Ct. at 620. See also Michigan v. Tucker, 417 U.S. 433, 446—447, 94 S.Ct. 2357, 2360, 41 L.Ed.2d 182 (1974).5
III
25
The Illinois courts refrained from resolving the question, as apt here as it was in Wong Sun, whether Brown's statements were obtained by exploitation of the illegality of his arrest. They assumed that the Miranda warnings, by themselves, assured that the statements (verbal acts, as contrasted with physical evidence) were of sufficient free will as to purge the primary taint of the unlawful arrest. Wong Sun, of course, preceded Miranda.
26
This Court has described the Miranda warnings as a 'prophylactic rule,' Michigan v. Payne, 412 U.S. 47, 53, 93 S.Ct. 1966, 1969, 36 L.Ed.2d 736 (1973), and as a 'procedural safeguard,' Miranda v. Arizona, 384 U.S., at 457, 478, 86 S.Ct. at 1629, employed to protect Fifth Amendment rights against 'the compulsion inherent in custodial surroundings.' Id., at 458, 86 S.Ct. at 1619. The function of the warnings relates to the Fifth Amendment's guarantee against coerced self-incrimination, and the exclusion of a statement made in the absence of the warnings, it is said, serves to deter the taking of an incriminating statement without first informing the individual of his Fith Amendment rights.
27
Although, almost 90 years ago, the Court observed that the Fifth Amendment is in 'intimate relation' with the Fourth, Boyd v. United States, 116 U.S. 616, 633, 6 S.Ct. 524, 533, 29 L.Ed. 746 (1886), the Miranda warnings thus far have not been regarded as a means either of remedying or deterring violations of Fourth Amendment rights. Frequently, as here, rights under the two Amendments may appear to coalesce since 'the 'unreasonable searches and seizures' condemned in the Fourth Amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the Fifth Amendment.' Ibid.; see Mapp v. Ohio, 367 U.S., at 646 n. 5, 81 S.Ct. at 1687. The exclusionary rule, however, when utilized to effectuate the Fourth Amendment, serves interests and policies that are distinct from those it serves under the Fifth. It is directed at all unlawful searches and seizures, and not merely those that happen to produce incriminating material or testimony as fruits. In short, exclusion of a confession made without Miranda warnings might be regarded as necessary to effectuate the Fifth Amendment, but it would not be sufficient fully to protect the Fourth. Miranda warnings, and the exclusion of a confession made without them, do not alone sufficiently deter a Fourth Amendment violation.6
28
Thus, even if the statements in this case were found to be voluntary under the Fifth Amendment, the Fourth Amendment issue remains. In order for the causal chain, between the illegal arrest and the statements made subsequent thereto, to be broken. Wong Sun requires not merely that the statement meet the Fifth Amendment standard of voluntariness but that it be 'sufficiently an act of free will to purge the primary taint.' 371 U.S. at 486, 83 S.Ct. at 416. Wong Sun thus mandates consideration of a statement's admissibility in light of the distinct policies and interests of the Fourth Amendment.
29
If Miranda warnings, by themselves, were held to attenuate the taint of an unconstitutional arrest, regardless of how wanton and purposeful the Fourth Amendment violation, the effect of the exclusionary rule would be substantially diluted. See Davis v. Mississippi, 394 U.S. 721, 726—727, 89 S.Ct. 1394, 1397, 22 L.Ed.2d 676 (1969). Arrests made without warrant or without probable cause, for questioning or 'investigation,' would be encouraged by the tknowledge that evidence derived therefrom could well be made admissible at trial by the simple expendent of giving Miranda warnings.7 Any incentive to avoid Fourth Amendment violations would be eviscerated by making the warnings, in effect, a 'cure-all,' and the constitutional guarantee against unlawful searches and seizures could be said to be reduced to 'a form of words.' See Mapp v. Ohio, 367 U.S., at 648, 81 S.Ct. at 1687.
30
It is entirely possible, of course, as the State here argues, that persons arrested illegally frequently may decide to confess, as an act of free will unaffected by the initial illegality. But the Miranda warnings, alone and per se, cannot always make the act sufficiently a product of free will be break, for Fourth Amendment purposes, the causal connection between the illegality and the confession. They cannot assure in every case that the Fourth Amendment violation has not been unduly exploited. See Westover v. United States, 384 U.S. 436, 496—497, 86 S.Ct. 1602, 1639, 16 L.Ed.2d 694 (1966).
31
While we therefore reject the per se rule which the Illinois courts appear to have accepted, we also decline to adopt any alternative per se or 'but for' rule. The petitioner himself professes not to demand so much. Tr. of Oral Arg. 12, 45, 47. The question whether a confession is the product of a free will under Wong Sun must be answered on the facts of each case. No single fact is dispositive. The workings of the human mind are too complex, and the possibilities of misconduct too diverse, to permit protection of the Fourth Amendment to turn on such a talismanic test. The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession,8 the presence of intervening circumstances, see Johnson v. Louisiana, 406 U.S. 356, 365, 92 S.Ct. 1620, 1626, 32 L.Ed.2d 152 (1972), and, particularly, the purpose and flagrancy of the official misconduct9 are all relevant. See Wong Sun v. United States, 371 U.S., at 491, 83 S.Ct. at 419. The voluntariness of the statement is a threshold requirement. Cf. 18 U.S.C. § 3501. And the burden of showing admissibility rests, of course, on the prosecution.10
IV
32
Although the Illinois courts failed to undertake the inquiry mandated by Wong Sun to evaluate the circumstances of this case in the light of the policy served by the exclusionary rule, the trial resulted in a record of amply sufficient detail and depth from which the determination may be made. We therefore decline the suggestion of the United States, as amicus curiae, see Morales v. New York, 396 U.S. 102, 90 S.Ct. 291, 24 L.Ed.2d 299 (1969), to remand the case for further factual findings. We conclude that the State failed to sustain the burden of showing that the evidence in question was admissible under Wong Sun.
33
Brown's first statement was separated from his illegal arrest by less than two hours, and there was no intervening event of significance whatsoever. In its essentials, his situation is remarkably like that of James Wah Toy in Wong Sun.11 We could hold Brown's first statement admissible only if we overrule Wong Sun. We decline to do so. And the second statement was clearly the result and the fruit of the first.12
34
The illegality here, moreover, had a quality of purposefulness. The imporpriety of the arrest was obvious; awareness of that fact was virtually conceded by the two detectives when they repeatedly acknowledged, in their testimony, that the purpose of their action was 'for investigation' or for 'questioning.'13 App. 35, 43, 78, 81, 83, 88, 89, 94. The arrest, both in design and in execution, was investigatory. The detectives embarked upon this expedition for evidence in the hope that something might turn up. The manner in which Brown's arrest was affected gives the appearance of having been calculated to cause surprise, fright, and confusion.
35
We emphasize that our holding is a limited one. We decide only that the Illinois courts were in error in assuming that the Miranda warnings, by themselves, under Wong Sun always purge the taint of an illegal arrest.
36
The judgment of the Supreme Court of Illinois is reversed and the case is remanded for further proceedings not inconsistent with this opinion.
37
It is so ordered.
Judgment reversed and
38
Case remanded.
39
Mr. Justice WHITE, concurring in the judgment.
40
Insofar as the Court holds (1) that despite Miranda warnings the Fourth and Fourteenth Amendments require the exclusion from evidence of statements obtained as the fruit of an arrest which the arresting officers knew or should have known was without probable cause and unconstitutional, and (2) that the statements obtained in this case were in this category, I am in agreement and therefore concur in the judgment.
41
Mr. Justice POWELL, with whom Mr. Justice REHNQUIST joins, concurring in part.
42
I join the Court insofar as it holds that the per se rule adopted by the Illinois Supreme Court for determining the admissibility of petitioner's two statements inadequately accommodates the diverse interests underlying the Fourth Amendment exclusionary rule. I would, however, remand the case for reconsideration under the general standards articulated in the Court's opinion and elaborated herein.
A.
43
The issue presented in this case turns on proper application of the policies underlying the Fourth Amendment exclusionary rule, not on the Fifth Amendment or the prophylaxis added to that guarantee by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).1 The Court recognized in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), that the Fourth Amendment exclusionary rule applies to statements obtained following an illegal arrest just as it does to tangible evidence seized in a similar manner or obtained pursuant to an otherwise illegal search and seizure. Wong Sun squarely rejected, however, the suggestion that the admissibility of statements so obtained should be governed by a simple 'but for' test that would render inadmissible all statements given subsequent to an illegal arrest. Id., at 487—488, 83 S.Ct. at 417. In a similar manner, the Court today refrains from according dispositive weight to the single factor of Miranda warnings. I agree with each holding. Neither of the rejected extremes adequately recognizes the competing considerations involved in a determination to exclude evidence after finding that official possession of that evidence was to some degree caused by a violation of the Fourth Amendment.
44
On this record, I cannot conclude as readily as the Court that admission of the statements here at issue would constitute an effective overruling of Wong Sun. See ante, at 604-605. Although Wong Sun establishes the boundaries within which this case must be decided, the incompleteness of the record leaves me uncertain that it compels the exclusion of petitioner's statements. The statements at issue in Wong Sun were on the temporal extremes in relation to the illegal arrest. Cf. Collins v. Beto, 348 F.2d 823, 832, 834—836 (CA5 1965) (Friendly, J., concurring). Toy's statement was obtained immediately after his pursuit and arrest by six agents. It appears to have been a spontaneous response to a question put to him in the frenzy of that event, and there is no indication that the agents made any attempt to inform him of his right to remain silent. Wong Sun's statement, by contrast, was not given until after he was arraigned and released on his own recognizance. Wong Sun voluntarily returned to the station a few days after the arrest for questioning. His statement was preceded by an official warning of his right to remain silent and to have counsel if he desired.2 The Court rejected the Government's assertion that Toy's statement resulted from an independent act of free will sufficient to purge the consequences of the illegal arrest. Wong Sun's statement, however, was deemed admissible. Given the circumstances in which Wong Sun's statement was obtained, the Court concluded that 'the connection between the arrest and the statement had 'become so attenuated as to dissipate the taint." 371 U.S., at 491, 83 S.Ct., at 419.
45
Like most cases in which the admissibility of statements obtained subsequent to an illegal arrest is contested, this case concerns statements more removed than that of Toy from the time and circumstances of the illegal arrest. Petitioner made his first statement some two hours following his arrest, after he had been given Miranda warnings. The Court is correct in noting that no other significant intervening event altered the relationship established between petitioner and the officers by the illegal arrest. But the Court's conclusion that admission of this statement could be allowed only by overruling Wong Sun rests either on an overly restrictive interpretation of the attenuation doctrine, to which I cannot subscribe, or on its view that the arrest was made for investigatory purposes, a factual determination that I think more appropriately should have been left for decision in the first instance by the state courts.
B
46
The Court's rejection in Wong Sun of a 'but for' test, reaffirmed today, ante, at 603-604, recognizes that in some circumstances strict adherence to the Fourth Amendment exclusionary rule imposes greater cost on the legitimate demands of law enforcement than can be justified by the rule's deterrent purposes. The notion of the 'dissipation of the taint' attempts to mark the point at which the detrimental consequences of illegal police action become so attenuated that the deterrent effect of the exclusionary rule no longer justifies its cost. Application of the Wong Sun doctrine will generate fact-specific cases bearing distinct differences as well as similarities, and the question of attenuation inevitably is largely a matter of degree. The Court today identifies the general factors that the trial court must consider in making this determination. I think it appropriate, however, to attempt to articulate the possible relationships to those factors in particular, broad categories of cases.
47
All Fourth Amendment violations are, by constitutional definition, 'unreasonable.' There are, however, significant practical differences that distinguish among violations, differences that measurably assist in identifying the kinds of cases in which disqualifying the evidence is likely to serve the deterrent purposes of the exclusionary rule. Cf. United States v. Calandra, 414 U.S. 338, 347—348, 94 S.Ct. 613, 615, 38 L.Ed.2d 561 (1974); Schneckloth v. Bustamonte, 412 U.S. 218, 250, 93 S.Ct. 2041, 2053, 36 L.Ed.2d 854 (1973) (Powell, J., concurring). In my view, the point at which the taint can be said to have dissipated should be related, in the absence of other controlling circumstances, to the nature of that taint.
48
That police have not succeeded in coercing the accused's confession through willful or negligent misuse of the power of arrest does not remove the fact that they may have tried. The impermissibility of the attempt, and the extent to which such attempts can be deterred by the use of the exclusionary rule, are of primary relevance in determining whether exclusion is an appropriate remedy. The basic purpose of the rule, briefly stated, is to remove possible motivations for illegal arrests. Given this purpose the notion of voluntariness has practical value in deciding whether the rule should apply to statements removed from the immediate circumstances of the illegal arrest. If an illegal arrest merely provides the occasion of initial contact between the police and the accused, and because of time or other intervening factors the accused's eventual statement is the product of his own reflection and free will, application of the exclusionary rule can serve little purpose: the police normally will not make an illegal arrest in the hope of eventually obtaining such a truly volunteered statement. In a similar manner, the role of the Miranda warnings in the Wong Sun inquiry is indirect. To the extent that they dissipate the psychological pressures of custodial interrogation, Miranda warnings serve to assure that the accused's decision to make a statement has been relatively unaffected by the preceding illegal arrest. Correspondingly, to the extent that the police perceive Miranda warnings to have this equalizing potential, their motivation to abuse the power of arrest is diminished. Bearing these considerations in mind, and recognizing that the deterrent value of the Fourth Amendment exclusionary rule is limited to certain kinds of police conduct, the following general categories can be identified.
49
Those most readily identifiable are on the extremes: the flagrantly abusive violation of Fourth Amendment rights, on the one hand, and 'technical' Fourth Amendment violations, on the other. In my view, these extremes call for significantly different judicial responses.
50
I would require the clearest indication of attenuation in cases in which official conduct was flagrantly abusive of Fourth Amendment rights. If, for example, the factors relied on by the police in determining to make the arrest were so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable, or if the evidence clearly suggested that the arrest was effectuated as a pretext for collateral objectives, cf. United States v. Robinson, 414 U.S. 218, 237, 238 n. 2, 94 S.Ct. 467, 470, 38 L.Ed.2d 427 (1973) (Powell, J., concurring), or the physical circumstances of the arrest unnecessarily intrusive on personal privacy, I would consider the equalizing potential of Miranda warnings rarely sufficient to dissipate the taint. In such cases the deterrent value of the exclusionary rule is most likely to be effective, and the corresponding mandate to preserve judicial integrity, see United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975); Michigan v. Tucker, 417 U.S. 433, 450 n. 25, 94 S.Ct. 2357, 2367, 41 L.Ed.2d 182 (1974), most clearly demands that the fruits of official misconduct be denied. I thus would require some demonstrably effective break in the chain of events leading from the illegal arrest to the statement, such as actual consultation with counsel or the accused's presentation before a magistrate for a determination of probable cause, before the taint can be deemed removed, see Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); cf. Johnson v. Louisiana, 406 U.S. 356, 365, 92 S.Ct. 1620, 1626, 32 L.Ed.2d 152 (1972); Parker v. North Carolina, 397 U.S. 790, 796, 90 S.Ct. 1458, 1462, 25 L.Ed.2d 785 (1970).
51
At the opposite end of the spectrum lie 'technical' violations of Fourth Amendment rights where, for example, officers in good faith arrest an individual in reliance on a warrant later invalidated3 or pursuant to a statute that subsequently is declared unconstitutional, see United States v. Kilgen, 445 F.2d 287 (CA5 1971). As we noted in Michigan v. Tucker, supra, 417 U.S., at 447, 94 S.Ct., at 2365: 'The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right.' In cases in which this underlying premise is lacking, the deterrence rationale of the exclusionary rule does not obtain, and I can see no legitimate justification for depriving the prosecution of reliable and probative evidence. Thus, with the exception of statements given in the immediate circumstances of the illegal arrest—a constraint I think is imposed by existing exclusionary-rule law—I would not require more than proof that effective Miranda warnings were given and that the ensuing statement was voluntary in the Fifth Amendment sense. Absent aggravating circumstances, I would consider a statement given at the station house after one has been advised of Miranda rights to be sufficiently removed from the immediate circumstances of the illegal arrest to justify its admission at trial.
52
Between these extremes lies a wide range of situations that defy ready categorization, and I will not attempt to embellish on the factors set forth in the Court's opinion other than to emphasize that the Wong Sun inquiry always should be conducted with the deterrent purpose of the Fourth Amendment exclusionary rule sharply in focus. See ALI Model Code of Pre-Arraignment Procedure, Art. 150, p. 54 et seq. and Commentary thereon, p. 375 et seq. (Prop. Off. Draft 1975). And, in view of the inevitably fact-specific nature of the inquiry, we must place primary reliance on the 'learning, good sense, fairness and courage' of judges who must make the determination in the first instance. Nardone v. United States, 308 U.S. 338, 342, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939). See ante, at 604 n. 10.
C
53
On the facts of record as I view them, it is possible that the police may have believed reasonably that there was probable cause for petitioner's arrest. Although the trial court conducted hearings on petitioner's motion to suppress and received his testimony and that of the arresting officers, its inquiry focused on determining whether petitioner's statements were preceded by adequate Miranda warnings and were made voluntarily. The court did not inquire into the possible justification, actual or perceived, for the arrest. Indeed, numerous questions addressed to the circumstances of the arrest elicited the State's objection, which was sustained. App. 14—15. The Illinois Supreme Court's consideration of the factual basis for its ruling similarly failed to focus on these relevant issues or to rest in any meaningful sense on the factors set forth in the Court's opinion today. After determining that the officers lacked probable cause for petitioner's arrest, the Illinois court concluded simply that examination of the record persuaded it that 'the giving of Miranda warnings . . . served to break the causal connection between the illegal arrest and the giving of the statements.' 56 Ill.2d 312, 317, 307 N.E.2d 356, 358 (1974).
54
I am not able to conclude on this record that the officers arrested petitioner solely for the purpose of questioning, ante, at 605; see also ante, at 606 (WHITE, J., concurring in judgment). To be sure, there is evidence suggesting, as the Court notes, an investigatory arrest. The strongest evidence on that point is the inconclusive testimony by the arresting officers themselves. But the evidence is conflicting. Responding to questions as to what they told petitioner upon his arrest, the officers testified he was advised that the arrest was for investigation of murder. Responding to more pointed questions, however, one of the arresting officers stated that he informed petitioner that he was being arrested for murder. See App. 16.4
55
Moreover, other evidence of record indicates that the police may well have believed that probable cause existed to think that petitioner committed the crime of which he ultimately was convicted. As the opinion of the Illinois Supreme Court reveals, petitioner had been identified as an acquaintance of the deceased, and the police had been told that petitioner was seen in the building where the deceased lived on the day of the murder. 56 Ill.2d, at 315, 307 N.E.2d, at 357. It is also plain that the investigation had begun to focus on petitioner. For example, the police had gone to the trouble of obtaining a bullet that petitioner had fired in an unrelated incident for the purpose of comparing it with the bullets that killed the victim. App. 20. The officers also obtained petitioner's photograph prior to seeking him out, and the circumstances of petitioner's arrest indicate that their suspicions of him were quite pronounced.
56
The trial court made no determination as to whether probable cause existed for petitioner's arrest.5 The Illinois Supreme Court resolved that issue, but did not consider whether the officers might reasonably, albeit erroneously, have thought that probable cause existed. Rather than decide those matters for the first time at this level, I think it preferable to allow the state courts to reconsider the case under the general guidelines expressed in today's opinions.6 I therefore would remand for reconsideration7 with directions to conduct such further factual inquiries as may be necessary to resolve the admissibility issue.
1
The brother, however, when asked at the trial whether any of the victim's family suggested to the police that petitioner was possibly responsible for the victim's death, answered: 'Nobody asked.' App. 74.
2
There is no assertion here that he did not understand those rights.
3
It was stipulated at the trial that if expert testimony were taken, it would be to the effect that the bullet eventually was ascertained to be a 'wiped bullet,' that is, that its sides were 'clean and therefore it was not ballistically comparable to any other bullets, specifically the bullets taken from the body of the deceased, Roger Corpus.' Tr. 543.
4
In response to questions from Mr. Crilly, Brown stated that he was employed at E. I. Guffman Company in Niles, Ill., and that he was a punch press operator, App. 97, whereas he later conceded that he worked at Arnold Schwinn Bicycle Company and had never worked at any other place. Id., at 63. He also remarked in the Crilly statement that he had completed three years of high school, id., at 96, whereas later he conceded that he 'never went to high school.' Id., at 58.
5
Members of the Court on occasion have indicated disenchantment with the rule. See, e.g., Coolidge v. New Hampshire, 403 U.S. 443, 490, 91 S.Ct. 2022, 2050, 29 L.Ed.2d 564 (1971) (Harlan, J., concurring); id., at 492, 91 S.Ct., at 2051 (Burger, C.J., dissenting in part and concurring in part); id., at 493, 91 S.Ct., at 2051 (Black, J., concurring and dissenting); id., at 510, 91 S.Ct., at 2060 (White, J., concurring and dissenting); Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 411, 91 S.Ct. 1999, 2012, 29 L.Ed.2d 619 (1971) (Burger, C.J., dissenting). Its efficacy has been subject to some dispute. United States v. Calandra, 414 U.S. 338, 348, n. 5, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974). See Elkins v. United States, 364 U.S. 206, 218, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960).
6
The Miranda warnings in no way inform a person of his Fourth Amendment rights, including his right to be released from unlawful custody following an arrest made without a warrant or without probable cause.
7
A great majority of the commentators have taken the same position. See, e.g., Pitler, 'The Fruit of the Poisonous Tree' Revisited and Shepardized, 56 Calif.L.Rev. 579, 603—604 (1968); Ruffin, Out on a Limb of the U.C.L.A.L.Rev. 32, 70 (1967); Comment, 1 Poisonous Tree: The Tainted Witness, 15 Fla.St.L.Rev. 533, 539—540 (1973); Note, Admissibility of Confessions Made Subsequent to an Illegal Arrest: Wong Sun v. United States Revisited, 61 J.Crim.L. 207, 212 n. 58 (1970); Comment, Scope of Taint Under the Exclusionary Rule of the Fifth Amendment Privilege Against Self-Incrimination, 114 U.Pa.L.Rev. 570, 574 (1966). But see Comment, Voluntary Incriminating Statements Made Subsequent to an Illegal Arrest—A Proposed Modification of the Exclusionary Rule, 71 Dick.L.Rev. 573, 582—583 (1967).
8
See United States v. Owen, 492 F.2d 1100, 1107 (CA5), cert. denied, 419 U.S. 965, 95 S.Ct. 227, 42 L.Ed.2d 180 (1974); Hale v. Henderson, 485 F.2d 266, 267—269 (CA6 1973), cert. denied, 415 U.S. 930, 94 S.Ct. 1442, 39 L.Ed.2d 489 (1974); United States v. Fallon, 457 F.2d 15, 19—20 (CA10 1972); Leonard v. United States, 391 F.2d 537, 538 (CA9 1968); Commonwealth of Pennsylvania ex rel. Craig v. Maroney, 348 F.2d 22, 29 (CA3 1965).
9
See United States v. Edmons, 432 F.2d 577 (CA2 1970). See also United States ex rel. Gockley v. Myers, 450 F.2d 232, 236 (CA3 1971), cert. denied, 404 U.S. 1063, 92 S.Ct. 738, 30 L.Ed.2d 752 (1972); United States v. Kilgen, 445 F.2d 287, 289 (CA5 1971).
10
Our approach relies heavily, but not excessively, on the 'learning, good sense, fairness and courage of federal trial judges.' Nardone v. United States, 308 U.S. 338, 342, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939).
11
The situation here is thus in dramatic contrast to that of Wong Sun himself. Wong Sun's confession, which the Court held admissible, came serveral days after the illegality, and was preceded by a lawful arraignment and a release from custody on his own recognizance. 371 U.S., at 491, 83 S.Ct. at 419.
12
The fact that Brown had made one statement, believed by him to be admissible, and his cooperation with the arresting and interrogating officers in the search for Claggett, with his anticipation of leniency, bolstered the pressures for him to give the second, or at least vitiated any incentive on his part to avoid self-incrimination. Cf. Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963).
13
Detective Lenz had been a member of the Chicago police force for 14 years and a detective for 12 years. App. 6. Detective Nolan had been a detective on the force for 5 1/2 years. Id., at 87, 84 S.Ct. at 230.
1
Each of these guarantees provides an independent ground for suppression of statements and thus may make it unnecessary in many cases to conduct the inquiry mandated by Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
2
Toy gave a second statement under circumstances similar to those in Wong Sun's case. The Court did not, however, rule as to the admissibility of this statement, finding instead that it lacked corroboration and was therefore insufficient to support Toy's conviction. Wong Sun v. United States, 371 U.S., at 488—491, 83 S.Ct. at 417.
3
I note that this resolution might have the added benefit of encouraging the police to seek a warrant whenever possible. Cf. Gerstein v. Pugh, 420 U.S. 103, 113, 95 S.Ct. 854, 864, 43 L.Ed.2d 54 (1975), and sources cited therein.
4
The majority of the statements cited by the Court are the officers' responses to questions inquiring as to what the officers told petitioner upon arresting him and thus are only indirectly relevant to the issue whether the officers might reasonably have thought they then had sufficient evidence to support a probable-cause determination. Moreover, as noted above, that evidence is contradictory. In only two instances during the trial did the inquiry relate more directly to whether the officers arrested petitioner for questioning. App. 83, 94. The officers' responses to those questions tend to support the Court's conclusion. In view of the weight of the contrary evidence, however, I think that the matter should be considered in the first instance by the state courts.
5
Petitioner's motion to suppress alleged that the police lacked reasonable grounds for believing that he committed a crime. But the testimony at the hearing focused primarily on the issue of the adequacy of the Miranda warnings and the voluntariness of petitioner's statements. At the close of the hearing the trial court ruled, without elaboration or findings of fact, that the statements were admissible. Id., at 65. Conceivably the trial court thought that probable cause existed to support the arrest. The State argued this point unsuccessfully on appeal. Equally possible, the trial court might have determined that the probable-cause issue was a close one and that, viewing the totality of the circumstances with that fact in mind, the statement should be admitted.
6
The Solicitor General has filed a memorandum as amicus curiae in which he urges the Court to remand the case for further factual hearings, cf. Morales v. New York, 396 U.S. 102, 90 S.Ct. 291, 24 L.Ed.2d 299 (1969). I concur in the Court's rejection of this suggestion, agreeing that the record is adequate to allow us to rule on the major issue—whether advice of Miranda rights constitutes a per se attenuation of the taint of an illegal arrest in all cases. I do not agree, however, that the record is adequate for the Court to rule, in addition, that there was insufficient attenuation of taint in this case.
7
Petitioner's second statement, corroborative of the first, was given more than six hours after his arrest and some five hours after the initial statement. During this time petitioner cooperating with the police—had made two trips away from the police headquarters in search of Claggett, whom he had identified as his confederate in the murder. This second statement was given to an assistant state's attorney who again had informed petitioner of his Miranda rights. The Court deems this statement to be the fruit of the first one and thus excludable along with it.
I also would leave the question of admissibility of this statement to the lower Illinois courts. Of course, if the first statement were ruled admissible under the general guidelines articulated in today's opinion, it would follow that the second statement also would be admissible. In any event, the question whether there was sufficient attenuation between the first and second statements to render the second admissible in spite of the inadmissibility of the first presents a factual issue which, like the factual issue underlying the possible admissibility of the first statement, has not been passed on by the state courts.
| 01
|
422 U.S. 694
95 S.Ct. 2427.
45 L.Ed.2d 486
UNITED STATES, Appellant,v.NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC., et al.
No. 73—1701.
Argued March 17, 1975.
Decided June 26, 1975.
Syllabus
Section 22(d) of the Investment Company Act of 1940 provides that 'no dealer shall sell (mutual-fund shares) to any person except a dealer, a principal underwriter, or the issuer, except at a current public offering price described in the prospectus.' Section 22(f) authorizes mutual funds to impose restrictions on the negotiability and transferability of shares, provided they conform with the fund's registration statement and do not contravene any rules and regulations that the Securities and Exchange Commission (SEC) may prescribe in the interests of the holders of all of the outstanding securities. Section 2(a)(6) of that Act defines a 'broker' as a person engaged in the business of effecting transactions in securities for the account of others, and § 2(a)(11) defines a 'dealer' as a person regularly engaged in the business of buying and selling securities for his own account. The Maloney Act of 1938 (§ 15A of the Securities Exchange Act of 1934) supplements the SEC's regulation of over-the-counter markets by providing a system of cooperative self-regulation through voluntary associations of brokers and dealers. The Government brought this action against appellee National Association of Securities Dealers (NASD), certain mutual funds, mutual-fund underwriters, and broker-dealers, alleging that appellees, in violation of § 1 of the Sherman Act, combined and agreed to restrict the sale and fix the resale prices of mutual-fund shares in secondary market transactions between dealers, from an investor to a dealer, and between investors through brokered transactions, and sought to enjoin such agreements. Count I of the complaint charged a horizontal combination and conspiracy among NASD's members to prevent the growth of a secondary dealer market in the purchase and sale of mutual-fund shares, the Government contending that such count was not to be read as a direct attack on NASD rules, but on NASD's interpretations and appellees' extension of the rules so as to include a secondary market. Counts II—VIII alleged various vertical restrictions on secondary market activities. The District Court dismissed the complaint on the grounds that § 22(d) and (f), when read in conjunction with the Maloney Act, afforded antitrust immunity from all of the challenged practices. It further determined that, apart from this statutory immunity, the pervasive regulatory scheme established by these statutes conferred an implied immunity from antitrust sanction. The court concluded that the § 22(d) price maintenance mandate for sales by 'dealers' applied to transactions in which a broker-dealer acts as statutory 'broker' rather than a statutory 'dealer,' and thus that § 22(d) governs transactions in which the broker-dealer acts as an agent for an investor as well as those in which he acts as a principal selling shares for his own account. Held:
1. Neither the language nor legislative history of § 22(d) justifies extending the section's price maintenance mandate beyond its literal terms to encompass transactions by broker-dealers acting as statutory 'brokers.' Pp. 711-720.
(a) To construe § 22(d) to cover all broker-dealer transactions would displace the antitrust laws by implication and also would impinge on the SEC's more flexible authority under § 22(f). Implied antitrust immunity can be justified only by a convincing showing of clear repugnancy between the antitrust laws and the regulatory system, and here no such showing has been made. Pp. 719-720.
(b) Such an expansion of § 22(d)'s coverage would serve neither this Court's responsibility to reconcile the antitrust and regulatory statutes where feasible nor the Court's obligation to interpret the Investment Company Act in a manner most conducive to the effectuation of its goals. P. 720.
2. The vertical restrictions sought to be enjoined in Counts II—VIII are among the kinds of agreements authorized by § 22(f), and hence such restrictions are immune from liability under the Sherman Act. Pp. 720-730.
(a) The restrictions on transferability and negotiability contemplated by § 22(f) include restrictions on the distribution system for mutual-fund shares as well as limitations on the face of the shares themselves. To interpret the section as covering only the latter would disserve the broad remedial function of the section, which, as a complement to § 22(d)'s protection against disruptive price competition caused by dealers' 'bootleg market' trading of mutual-fund shares, authorizes the funds and the SEC to deal more flexibly with other detrimental trading practices by imposing SEC-approved restrictions on transferability and negotiability. Pp. 722-725.
(b) To contend, as the Government does, that the SEC's exercise of regulatory authority has been insufficient to give rise to an implied immunity for agreements conforming with § 22(f) misconceives the statute's intended operation. By its terms § 22(f) authorizes properly disclosed restrictions unless they are inconsistent with SEC rules or regulations and thus authorizes funds to impose transferability or negotiability restrictions subject to SEC disapproval. Pp. 726-728.
(c) The SEC's authority would be compromised if the agreements challenged in Counts II—VIII were deemed actionable under the Sherman Act. There can be no reconciliation of the SEC's authority under § 22(f) to permit these and similar restrictive agreements with the Sherman Act's declaration that they are illegal per se. In this instance the antitrust laws must give way if the regulatory scheme established by the Investment Company Act is to work. Pp. 729-730.
3. The activities charged in Count I are neither required by § 22(d) nor authorized under § 22(f), and therefore cannot find antitrust shelter therein. The SEC's exercise of regulatory authority under the Maloney and Investment Company Acts is sufficiently pervasive, however, to confer implied immunity from antitrust liability for such activities. Pp. 730-735.
374 F.Supp. 95, affirmed.
Gerald P. Norton, Washington, D.C., for appellant.
Lee Loevinger, Washington, D.C., for appellees.
Walter P. North, Washington, D.C., for the Securities and Exchange Commission, as amicus curiae, by special leave of Court.
Opinion of the Court by Mr. Justice POWELL, announced by Mr. Justice BLACKMUN.
1
This appeal requires the Court to determine the extent to which the regulatory authority conferred upon the Securities and Exchange Commission by the Maloney Act, 52 Stat. 1070, as amended, 15 U.S.C. § 78o—3, and the Investment Company Act of 1940, 54 Stat. 789, as amended, 15 U.S.C. § 80a—1 et seq., displaces the strong antitrust policy embodied in § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 1. At issue is whether certain sales and distribution practices employed in marketing securities of open-end management companies, popularly referred to as 'mutual funds,' are immune from antitrust liability. We conclude that they are, and accordingly affirm the judgment of the District Court.
2
* An 'investment company' invests in the securities of other corporations and issues securities of its own.1 Shares in an investment company thus represent proportionate interests in its investment portfolio, and their value fluctuates in relation to the changes in the value of the securities it owns. The most common form of investment company, the 'open end' company or mutual fund, is required by law to redeem its securities on demand at a price approximating their proportionate share of the fund's net asset value at the time of redemption.2 In order to avoid liquidation through redemption, mutual funds continuously issue and sell new shares. These features—continuous and unlimited distribution and compulsory redemption—are, as the Court recently recognized, 'unique characteristic(s)) of this form of investment. United States v. Cartwright, 411 U.S. 546, 547, 93 S.Ct. 1713, 1714, 36 L.Ed.2d 528 (1973).
3
The initial distribution of mutual-fund shares is conducted by a principal underwriter, often an affiliate of the fund, and by broker-dealers3 who contract with that underwriter to sell the securities to the public. The sales price commonly consists of two components, a sum calculated from the net asset value of the fund at the time of purchase, and a 'load,' a sales charge representing a fixed percentage of the net asset value. The load is divided between the principal underwriter and the broker-dealers, compensating them for their sales efforts.4
4
The distribution-redemption system constitutes the primary market in mutual-fund shares, the operation of which is not questioned in this litigation. The parties agree that § 22(d) of the Investment Company Act requires broker-dealers to maintain a uniform price in sales in this primary market to all purchasers except the fund, its underwriters, and other dealers. And in view of this express requirement no question exists that antitrust immunity must be afforded these sales. This case focuses, rather, on the potential secondary market in mutual-fund shares.
5
Although a significant secondary market existed prior to enactment of the Investment Company Act, little presently remains. The United States agrees that the Act was designed to restrict most of secondary market trading, but nonetheless contends that certain industry practices have extended the statutory limitation beyond its proper boundaries. The complaint in this action alleges that the defendants, appellees herein, combined and agreed to restrict the sale and fix the resale prices of mutual-fund shares in secondary market transactions between dealers, from an investor to a dealer, and between investors through brokered transactions.5 Named as defendants are the National Association of Securities Dealers (NASD),6 and certain mutual funds,7 mutual-fund under-writers,8 and securities broker-dealers.9
6
The United States charges that these agreements violate § 1 of the Sherman Act, 15 U.S.C. § 1,10 and prays that they be enjoined under § 4 of that Act.
7
Count I charges a horizontal combination and conspiracy among the members of appellee NASD to prevent the growth of a secondary dealer market in the purchase and sale of mutual-fund shares. See n. 42, infra. Counts II—VIII, by contrast, allege various vertical restrictions on secondary market activities. In Counts II, IV, and VI the United States charges that the principal underwriters and broker-dealers entered into agreements that compel the maintenance of the public offering price in brokerage transactions of specified mutual-fund shares, and that prohibit interdealer transactions by allowing each broker-dealer to sell and purchase shares only to or from investors.11 Count VIII alleges that the broker-dealers entered into other, similar contracts and combinations with numerous principal under-writers. Counts III, V, and VII allege violations on the part of the principal underwriters and the funds themselves. In Counts III and VII the various defendants are charged with entering into contracts requiring the restrictive underwriter-dealer agreements challenged in Counts II and VI. Count V charges that the agreement between one fund and its underwriter restricted the latter to serving as a principal for its own account in all transactions with the public, thereby prohibiting brokerage transactions in the fund's shares. App. 14.
8
After carefully examining the structure, purpose, and history of the Investment Company Act, 15 U.S.C. § 80a—1 et seq., and the Maloney Act, 15 U.S.C. § 78o—3, the District Court held that this statutory scheme was "incompatible with the maintenance of (an) antitrust action," 374 F.Supp. 95, 109 (DC 1973), quoting Silver v. New York Stock Exchange, 373 U.S. 341, 358, 83 S.Ct. 1246, 1257, 10 L.Ed.2d 389 (1963). The court concluded that §§ 22(d) and (f) of the Investment Company Act, when read in conjunction with the Maloney Act, afford antitrust immunity for all of the practices here challenged. The court further held that apart from this explicit statutory immunity, the pervasive regulatory scheme established by these statutes confers an implied immunity from antitrust sanction in the 'narrow area of distribution and sale of mutual fund shares.' 374 F.Supp., at 114. The court accordingly dismissed the complaint, and the United States appealed to this Court.12
9
The position of the United States in this appeal can be summarized briefly. Noting that implied repeals of the antitrust laws are not favored, see, e.g., United States v. Philadelphia National Bank, 374 U.S. 321, 348, 83 S.Ct. 1715, 1733, 10 L.Ed.2d 915 (1963), the United States urges that the antitrust immunity conferred by § 22 of the Investment Company Act should not extend beyond its precise terms, none of which, it maintains, requires or authorizes the practices here challenged. The United States maintains, moreover, that the District Court expanded the limits of the implied-immunity doctrine beyond those recognized by decisions of this Court. In response, appellees advance all of the positions relied on by the District Court. They are joined by the Securities and Exchange Commission (hereinafter SEC or Commission), which asserts as amicus curiae that the regulatory authority conferred upon it by § 22(f) of the Investment Company Act displaces § 1 of the Sherman Act. The SEC contends, therefore, that the District Court properly dismissed Counts II—VIII but takes no position with respect to Count I.
II
A.
10
The Investment Company Act of 1940 originated in congressional concern that the Securities Act of 1933, 48 Stat. 74, 15 U.S.C. § 77a et seq., and the Securities Exchange Act of 1934, 48 Stat. 881, 15 U.S.C. § 78a et seq., were inadequate to protect the purchasers of investment company securities. Thus, in § 30 of the Public Utility Holding Company Act, 49 Stat. 837, 15 U.S.C. § 79z—4, Congress directed the SEC of study the structures, practices, and problems of investment companies with a view toward proposing further legislation. Four years of intensive scrutiny of the industry culminated in the publication of the Investment Trust Study and the recommendation of legislation to rectify the problems and abuses it identified. After extensive congressional consideration, the Investment Company Act of 1940 was adopted.
11
The Act vests in the SEC broad regulatory authority over the business practices of investment companies.13 We are concerned on this appeal with § 22 of the Act, 15 U.S.C. § 80a—22, which controls the sales and distribution of mutual-fund shares. The questions presented require us to determine whether § 22(d) obligates appellees to engage in the practices challenged in Counts II—VIII and thus necessarily confers antitrust immunity on them. If not, we must determine whether such practices are authorized by § 22(f) and, if so, whether they are immune from antitrust sanction. Resolution of these issues will be facilitated by examining the nature of the problems and abuses to which § 22 is addressed, a matter to which we now turn.
B
12
The most thorough description of the sales and distribution practices of mutual funds prior to passage of the Investment Company Act may be bound in Part III of the Investment Trust Study.14
13
That Study, as Congress has recognized, see 15 U.S.C. § 80a 1, forms the initial basis for any evaluation of the Act.
14
Prior to 1940 the basic framework for the primary distribution of mutual-fund shares was similar to that existing today. The fund normally retained a principal underwriter to serve as a wholesaler of its shares. The principal underwriter in turn contracted with a number of broker-dealers to sell the fund's shares to the investing public.15 The price of the shares was based on the fund's net asset value at the approximate time of sale, and a sales commission or load was added to that price.
15
Although prior to 1940 the primary distribution system for mutual-fund shares was similar to the present one, a number of conditions then existed that largely disappeared following passage of the Act. The most prominently discussed characteristic was the 'two-price system,' which encouraged and active secondary market under conditions that tolerated disruptive and discriminatory trading practices. The two- price system reflected the relationship between the commonly used method of computing the daily net asset value of mutual-fund shares and the manner in which the price for the following day was established. The net asset value of mutual funds, which depends on the market quotations of the stocks in their investment portfolios, fluctuates constantly. Most funds computed their net asset values daily on the basis of the fund's portfolio value at the close of exchange trading, and that figure established the sales price that would go into effect at a specified hour on the following day. During this interim period two prices were known: the present day's trading price based on the portfolio value established the previous day; and the following day's price, which was based on the net asset value computed at the close of exchange trading on the present day. One aware of both prices could engage in 'riskless trading' during this interim period. See Investment Trust Study pt. III, pp. 851—852.
16
The two-price system did not benefit the investing public generally. Some of the mutual funds did not explain the system thoroughly, and unsophisticated investors probably were unaware of its existence. See id., at 867. Even investors who knew of the two-price system and understood its operation were rarely in a position to exploit it fully. It was possible, however, for a knowledgeable investor to purchase shares in a rising market at the current price with the advance information that the next day's price would be higher. He thus could be guaranteed an immediate appreciation in the market value of his investment,16 although this advantage was obtained at the expense of the existing shareholders, whose equity interests were diluted by a corresponding amount.17 The load fee that was charged in the sale of mutual funds to the investing public made it difficult for these investors to realize the 'paper gain' obtained in such trading. Because the daily fluctuation in net asset value rarely exceeded the load, public investors generally were unable to realize immediate profits from the two-price system by engaging in rapid in-and-out trading. But insiders, who often were able to purchase shares without paying the load, did not operate under this constraint. Thus insiders could, and sometimes did, purchase shares for immediate redemption at the appreciated value. See n. 24, infra, and sources cited therein.
17
The two-price system often afforded other advantages to underwriters and broker-dealers. In a falling market they could enhance profits by waiting to fill orders with shares purchased from the fund at the next day's anticipated lower price. In a similar fashion, in a rising market they could take a 'long position' in mutual-fund shares by establishing an inventory in order to satisfy anticipated purchases with securities previously obtained at a lower price. Investment Trust Study pt. III, pp. 854 855. In each case the investment company would receive the lower of the two prevailing prices for its shares, id., at 854, and the equity interests of shareholders would suffer a corresponding dilution.
18
As a result, an active secondary market in mutual-fund shares existed. Id., at 865—867. Principal underwriters and contract broker-dealers often maintained inventory positions established by purchasing shares through the primary distribution system and by buying from other dealers and retiring shareholders.18 Additionally, a 'bootleg market' sprang up, consisting of broker-dealers having no contractual relationship with the fund or its principal underwriter. These bootleg dealers purchased shares at a discount from contract dealers or bought them from retiring shareholders at a price slightly higher than the redemption price. Bootleg dealers would then offer the shares at a price slightly lower than that required in the primary distribution system, thus 'initiating a small scale price war between retailers and tend(ing) generally to disrupt the established offering price.' Id., at 865.
19
Section 22 of the Investment Company Act of 1940 was enacted with these abuses in mind. Sections 22(a) and (c) were designed to 'eliminat(e) or reduc(e) so far as reasonably practicable any dilution of the value of other outstanding securities . . . or any other result of (the) purchase, redemption, or sale (of mutual fund securities) which is unfair to holders of such other outstanding securities,' 15 U.S.C. § 80a—22(a). They authorize the NASD and the SEC to regulate certain pricing and trading practices in order to effectuate that goal.19 Section 22(b) authorizes registered securities associations and the SEC to prescribe the maximum sales commissions or loads that can be charged in connection with a primary distribution; and § 22(e) protects the right of redemption by restricting mutual funds' power to suspend redemption or postpone the date of payment.
20
The issues presented in this litigation revolve around subsections (d) and (f) of § 22. Bearing in mind the history and purposes of the Investment Company Act, we now consider the effect of these subsections on the question of potential antitrust liability for the practices here challenged.
III
21
Section 22(d) prohibits mutual funds from selling shares at other than the current public offering price to any person except either to or through a principal underwriter for distribution. It further commands that 'no dealer shall sell (mutual-fund shares) to any person except a dealer, a principal underwriter, or the issuer, except at a current public offering price described in the prospectus.' 15 U.S.C § 80a—22(d).20 By its terms, § 22(d) excepts interdealer sales from its price maintenance requirement. Accordingly, this section cannot be relied upon by appellees as justification for the restrictions imposed upon interdealer transactions. At issue, rather, is the narrower question whether the § 22(d) price maintenance mandate for sales by 'dealers' applies to transactions in which a broker-dealer acts as a statutory 'broker' rather than a statutory 'dealer.' The District Court concluded that it does, and thus that § 22(d) governs transactions in which the broker-dealer acts as an agent for an investor as well as those in which he acts as a principal selling shares for his own account.
22
The District Court's decision reflects an expansive view of § 22(d). The Investment Company Act specifically defines 'broker' and 'dealer'21 and uses the terms distinctively throughout.22 Appellees maintain, however, that the definition of 'dealer' is sufficiently broad to require price maintenance in brokerage transactions. In support of this position appellees assert that the critical elements of the dealer definition are that the term relates to a 'person' rather than to a transaction and that the person must engage 'regularly' in the sale and purchase of securities to qualify as a dealer. It is argued, therefore, that any person who purchases and sells securities with sufficient regularity to qualify as a statutory dealer is thereafter bound by all dealer restrictions, regardless of the nature of the particular transaction in question. We do not find this argument persuasive.
23
Appellees' reliance on the statutory reference to 'person' in defining dealer adds little to the analysis, for the Act defines 'broker,' 'investment banker,' 'issuer,' 'underwriter,' and others to be 'persons' as well. See 15 U.S.C. §§ 80a—2(a)(6), (21), (22), and (40). In each instance, the critical distinction relates to their transactional capacity. Moreover, we think that appellees' reliance on the regularity requirement in the dealer definition places undue emphasis on that element at the expense of the remainder of the provision. On the face of the statute the most apparent distinction between a broker and a dealer is that the former effects transactions for the account of others and the latter buys and sells securities for his own account. We therefore cannot agree that the terms of the Act compel the conclusion that a broker-dealer acting in a brokerage capacity would be bound by the § 22(d) dealer mandate. Indeed, the language of the Act suggests the opposite result.
24
Even if we assume, arguendo, that the statutory definition is ambiguous, we find nothing in the contemporaneous legislative history of the Investment Company Act to justify interpreting § 22(d) to encompass brokered transactions. That history is sparse,23 and suggests only that § 22(d) was considered necessary to curb abuses that had arisen in the sales of securities to insiders.24
25
The prohibition against insider trading would seem adequately served by the first clause of § 22(d), which prevents mutual funds from selling shares at other than the public offering price to any person except a principal underwriter or dealer. See n. 20, supra.25 The further restriction on dealer sales bears little relation to insider trading, however, and logically would be thought to serve some other purpose. The obvious effect of the dealer prohibition is to shield the primary distribution system from the competitive impact of unrestricted dealer trading in the secondary markets, a concern that was reflected in the Study, see Investment Trust Study pt. III, p. 865. The SEC perceives this to be one of the purposes of this provision.26
26
But concluding that protection of the primary distribution system is a purpose of § 22(d) does little to resolve the question whether Congress intended to require strict price maintenance in all broker-dealer transactions with the investing public. By its terms, § 22(d) protects only against the possibly disruptive effects of secondary dealer sales which, as statutorily defined, constituted the most active secondary market existing prior to the Act's passage. Nothing in the contemporary history suggests that Congress was equally concerned with possible disruption from investor transactions in outstanding shares conducted through statutory brokers.
27
Nor do we think that the history attending subsequent congressional consideration of the Act provides adequate support for appellees' contention that § 22(d) requires strict price maintenance in all broker-dealer transactions in mutual-fund shares. To be sure, portions of the testimony of SEC Chairman Cohen before the House Subcommittee on Commerce and Finance in 1967 suggested that the price maintenance requirement of § 22(d) encompassed all broker-dealers, irrespective of how they obtained the traded shares,27 and on other occasions the Chairman referred to sales by brokers when discussing mutual-fund transactions.28 Appellees also can point to congressional characterizations of § 22(d) that suggest that some members of Congress understood the reach of that provision to be as broad as the District Court thought.29
28
Appellees maintain that this history indicates that Congress always intended § 22(d) to control broker as well as dealer transactions, and that it re-enacted the amended § 22 with that purpose in mind. The District Court accepted this position, and it is not without some support in this historical record.30 But impressive evidence to the contrary is found in the position consistently maintained by the SEC. Responding to an inquiry in 1941, the SEC General Counsel stated that § 22(d) did not bar brokerage transactions in mutual-fund shares:
29
'In my opinion the term 'dealer,' as used in section 22(d), refers to the capacity in which a broker-dealer is acting in a particular transaction. It follows, therefore, that if a broker-dealer in a particular transaction is acting solely in the capacity of agent for a selling investor, or for both a selling investor and a purchasing investor, the sale may be made at a price other than the current offering price described in the prospectus. . . .
30
'On the other hand, if a broker-dealer is acting for his own account in a transaction and as principal sells a redeemable security to an investor, the public offering price must be maintained, even though the sale is made through another broker who acts as agent for the seller, the investor, or both.
31
'As section 22(d) itself states, the offering price is not required to be maintained in the case of sales in which both the buyer and the seller are dealers acting as principals in the transaction.' Investment Company Act, Rel. No. 78, Mar. 4, 1941, 11 Fed.Reg. 10992 (1941).
32
This substantially contemporaneous interpretation of the Act has consistently been maintained in subsequent SEC opinions, see Oxford Co., Inc., 21 S.E.C. 681, 690 (1946); Mutual Funds Advisory, Inc., Investment Company Act, Rel. No. 6932, p. 3 (1972). The same position was asserted in a recent staff report, see 1974 Staff Report 105 n. 2, 107 n. 2, and 109, was relied on by the SEC in its subsequent decision to encourage limited price competition in brokered transactions,31 and is advanced by it as amicus curiae in this Court. This consistent and longstanding interpretation by the agency charged with administration of the Act, while not controlling, is entitled to considerable weight. See, e.g., Saxbe v. Bustos, 419 U.S. 65, 95 S.Ct. 272, 42 L.Ed.2d 231 (1974); Investment Co. Institute v. Camp, 401 U.S. 617, 626 627, 91 S.Ct. 1091, 1097, 28 L.Ed.2d 367 (1971); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965).
B
33
The substance of appellees' position is that the dealer prohibition of § 22(d) should be interpreted in generic rather than statutory terms. The price maintenance requirement of that section accordingly would encompass all broker-dealer transactions with the investing public and would shelter them from antitrust sanction. But such an expansion of § 22(d) beyond its terms would not only displace the antitrust laws by implication, it also would impinge seriously on the SEC's more flexible regulatory authority under § 22(f).32
34
Implied antitrust immunity is not favored, and can be justified only by a convincing showing of clear repugnancy between the antitrust laws and the regulatory system. See, e.g., United States v. Philadelphia National Bank, 374 U.S., at 348, 83 S.Ct., at 1733; United States v. Borden Co., 308 U.S. 188, 197—206, 60 S.Ct. 182, 187—191, 84 L.Ed. 181 (1939). We think no such showing has been made. Moreover, in addition to satisfying our responsibility to reconcile the antitrust and regulatory statutes where feasible, Silver v. New York Stock Exchange, 373 U.S., at 356—357, 83 S.Ct., at 1256—1257, we must interpret the Investment Company Act in a manner most conducive to the effectuation of its goals. We conclude that appellees' interpretation of § 22(d) serves neither purpose, and cannot be justified by the language or history of that section.
35
We therefore hold that the price maintenance mandate of § 22(d) cannot be stretched beyond its literal terms to encompass transactions by broker-dealers acting as statutory 'brokers.' Congress defined the limitations for the mandatory price maintenance requirement of the Investment Company Act. 'We are not only bound by those limitations but we are bound to construe them strictly, since resale price maintenance is a privilege restrictive of a free economy.' United States v. McKesson & Robbins, 351 U.S. 305, 316, 76 S.Ct. 937, 943, 100 L.Ed. 1209 (1956). Accordingly, we hold that the District Court erred in relying on § 22(d) in determining that the activities here questioned are immune from antitrust liability.
IV
36
Our determination that the restrictions on the secondary market are not immunized by § 22(d) does not end the inquiry, for the District Court also found them sheltered from antitrust liability by § 22(f). Appellees, joined by the SEC, defend this ruling and urge that it requires dismissal of the challenge to the vertical restrictions sought to be enjoined in Counts II—VIII.
37
Section 22(f) authorizes mutual funds to impose restrictions on the negotiability and transferability of their shares, provided they conform with the fund's registration statement and do not contravene any rules and regulations the Commission may prescribe in the interests of the holders of all of the outstanding securities.33 The Government does not contend that the vertical restrictions are not disclosed in the registration statements of the funds in question. Nor does it assert that the agreements imposing such restrictions violate Commission rules and regulations. Indeed, it could not do so, because to date the SEC has prescribed no such standards. Instead the Government maintains that the contractual restrictions do not come within the meaning of the Act, asserting that § 22(f) does not authorize the imposition of restraints on the distribution system rather than on the shares themselves. The Government thus apparently urges that the only limitations contemplated by this section are those that appear on the face of the certificate itself. The Government also urges that the SEC's unexercised power to prescribe rules and regulations is insufficient to create repugnancy between its regulatory authority and the antitrust laws.
38
Our examination of the language and history of § 22(f) persuades us, however, that the agreements challenged in Counts II VIII are among the kinds of restrictions Congress contemplated when it enacted that section. And this conclusion necessarily leads to a determination that they are immune from liability under the Sherman Act, for we see no way to reconcile the Commission's power to authorize these restrictions with the competing mandate of the antitrust laws. laws.
A.
39
Unlike § 22(d), § 22(f) originated in the Commission-sponsored bill considered in the Senate subcommittee hearings that preceded introduction of the compromise proposal later enacted into law. The Commission-sponsored provision authorized the SEC to promulgate rules, regulations, or orders prohibiting restrictions on the transferability or negotiability of mutual-fund shares, S. 3580, § 22(d)(2), 76th Cong., 3d Sess. (1940).34 Commission testimony indicates that it considered this authority necessary to allow regulatory control of industry measures designed to deal with the disruptive effects of 'bootleg market' trading and with other detrimental trading practices identified in the Investment Trust Study.35
40
The Study indicates, moreover, that a number of funds had begun to deal with these problems prior to passage of the Act. And while their methods may have included the imposition of restrictive legends on the face of the certificate, see n. 35, supra, they were by no means confined to such narrow limits. A number of funds imposed controls on the activities of their principal underwriters, see Investment Trust Study pt. III, pp. 868—869; and in some instances the funds required the underwriters to impose similar restrictions on the dealers, see id., at 869, or entered into these restrictive agreements with the dealers themselves, id., at 870—871.
41
In view of the history of the Investment Company Act, we find no justification for limiting the range of possible transfer restrictions to those that appear on the face of the certificate. The bootleg market was primarily a problem of the distribution system, and bootleg dealers found a source of supply in the contract dealers as well as in retiring shareholders. See id., at 865. Moreover, the Study indicates that part of the bootleg distribution system consisted of 'trading firms' that served as wholesalers of mutual-fund securities in much the same fashion as the principal underwriters. These trading firms primarily purchased and sold shares to and from other dealers, Investment Trust Study pt. II, p. 327, frequently offering them at a price slightly lower than the discounted rate charged to dealers in the primary distribution system. Id., at 327—328. Thus trading firms not only helped supply the bootleg dealers whose sales undercut those of the contract dealers, they competed with the principal underwriters by offering a source for lower cost shares that inevitably discouraged participation in the primary distribution system. See id., at 328 n. 85.
42
The bootleg market was a complex phenomenon whose principal origins lay in the distribution system itself. In view of this history, limitation of the industry's ability, subject of course to SEC regulation, to reach these problems at their source would constitute an inappropriate contraction of the remedial function of the statute.36 Indeed, in view of the role of trading firms and interdealer transactions in the maintenance of the bootleg market, the narrow interpretation of § 22(f) urged by the Government would seem to afford inadequate authority to deal with the problem.
43
Together, §§ 22(d) and 22(f) protect the primary distribution system for mutual-fund securities. Section 22(d), by eliminating price competition in dealer sales, inhibits the most disruptive factor in the pre-1940's mutual market and thus assures the maintenance of a viable sales system. Section 22(f) complements this protection by authorizing the funds and the SEC to deal more flexibly with other detrimental trading practices by imposing SEC-approved restrictions on transferability and negotiability. The Government's limiting interpretation of § 22(f) compromises this flexible mandate, and cannot be accepted.
44
We find support for our interpretation of § 22(f) in the views expressed by the SEC shortly after the passage of the Act. Rule 26(j)(2), proposed by the NASD to curb abuses identified in the Study and the congressional hearings, provided limitations on underwriter sales and redemptions to or from dealers who are not parties to sales agreements. In commenting on this proposed rule, the SEC characterized it as a 'restriction on the transferability of securities,' and specifically adverted to its power to regulate such restrictions under § 22(f). National Association of Securities Dealers, Inc., 9 S.E.C. 38, 44—45 and n. 10 (1941). As indicated above, see supra, at 719, and sources there cited, this contemporaneous interpretation by the responsible agency is entitled to considerable weight. We therefore conclude that the restrictions on transferability and negotiability contemplated by § 22(f) include restrictions on the distribution system for mutual-fund shares as well as limitations on the face of the shares themselves. The narrower interpretation of this provision advanced by the Government would disserve the broad remedial function of the statute.37
45
The Government's additional contention that the SEC's exercise of regulatory authority has been insufficient to give rise to an implied immunity for agreements conforming with § 22(f) misconceives the intended operation of the statute. By its terms, § 22(f) authorizes properly disclosed restrictions unless they are inconsistent with SEC rules or regulations. The provision thus authorizes funds to impose transferability or negotiability restrictions, subject to Commission disapproval. In view of the evolution of this provision, there can be no doubt that this is precisely what Congress intended.
46
Section 22(f) as originally introduced would have authorized the SEC to promulgate rules, regulations, or orders prohibiting restrictions on the redeemability or transferability of mutual-fund shares. Congressional consideration of that provision raised some question whether existing restrictions on transferability and negotiability would remain valid unless specifically disapproved by the SEC.38 The compromise provision, which subsequently was enacted into law, eliminated this uncertainty, however, and manifested a more positive attitude toward self-regulation.
47
Thus § 22(f) specifically recognizes that mutual funds can impose such restrictions on the distribution system provided they are disclosed in the registration statement and conform to any rules and regulations that the SEC might adopt. In addition, § 22(f) alters the focus of Commission scrutiny. Whereas the original provision allowed the SEC to make rules that serve 'the public interest or . . . the protection of investors,' S. 3580, § 22(d)(2), supra, § 22(f) as enacted limits the Commission's rulemaking authority to the protection of the 'interests of the holders of all of the outstanding securities of such investment company.' 15 U.S.C. § 80a—2(f). Viewed in this historical context, the statute reflects a clear congressional determination that, subject to Commission oversight, mutual funds should be allowed to retain the initiative in dealing with the potentially adverse effects of disruptive trading practices.
48
The Commission repeatedly has recognized the role of private agreements in the control of trading practices in the mutual-fund industry. For example, in First Multifund of America, Inc., Investment Company Act Rel. No. 6700 (1971), (1970—1971 Transfer Binder) CCH Fed.Sec.L.Rep. 78,209, p. 80,602, it looked to restrictive agreements similar to those challenged in this litigation to ascertain an investment advisor's capacity in a particular transaction. At no point did it intimate that those agreements were not legitimate.39 Likewise, Commission reports repeatedly have acknowledged the significant role that private agreements have played in restricting the growth of a secondary market in mutual-fund shares.40 Until recently the Commission has allowed the industry to control the secondary market through contractual restrictions duly filed and publicly disclosed. Even the SEC's recently expressed intention to introduce an element of competition in brokered transactions reflects measured caution as to the possibly adverse impact of a totally unregulated and restrained brokerage market on the primary distribution system. See n. 31, supra. The Commission's acceptance of fund-initiated restrictions for more than three decades hardly represents abdication of its regulatory responsibilities. Rather, we think it manifests an informed administrative judgment that the contractual restrictions employed by the funds to protect their shareholders were appropriate means for combating the problems of the industry. The SEC's election not to initiate restrictive rules or regulations is precisely the kind of administrative oversight of private practices that Congress contemplated when it enacted § 22(f).
49
We conclude, therefore, that the vertical restrictions sought to be enjoined in Counts II—VIII are among the kinds of agreements authorized by § 22(f) of the Investment Company Act.
B
50
The agreements questioned by the United States restrict the terms under which the appellee underwriters and broker-dealers may trade in shares of mutual funds. Such restrictions, effecting resale price maintenance and concerted refusals to deal, normally would constitute per se violations of § 1 of the Sherman Act. See, e.g., Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 211—213, 79 S.Ct. 705, 708—710, 3 L.Ed.2d 741 (1959); Fashion Originators' Guild of America, Inc. v. FTC, 312 U.S. 457, 465—468, 61 S.Ct. 703, 706—708, 85 L.Ed. 949 (1941). Here, however, Congress has made a judgment that these restrictions on competition might be necessitated by the unique problems of the mutual-fund industry, and has vested in the SEC final authority to determine whether and to what extent they should be tolerated 'in the interests of the holders of all the outstanding securities' of mutual funds. 15 U.S.C. § 80a—22(f).
51
The SEC, the federal agency responsible for regulating the conduct of the mutual-fund industry, urges that its authority will be compromised seriously if these agreements are deemed actionable under the Sherman Act.41 We agree. There can be no reconciliation of its authority under § 22(f) to permit these and similar restrictive agreements with the Sherman Act's declaration that they are illegal per se. In this instance the antitrust laws must give way if the regulatory scheme established by the Investment Company Act is to work. Silver v. New York Stock Exchange, 373 U.S. 341, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963). We conclude, therefore, that such agreements are not actionable under the Sherman Act, and that the District Court properly dismissed Counts II—VIII.
V
52
It remains to be determined whether the District Court properly dismissed Count I of the Government's complaint, which charged activities allegedly constituting a horizontal conspiracy between the NASD and its members to 'prevent the growth of a secondary dealer market and a brokerage market in the purchase and sale of mutual fund shares.' App. 9.
53
The precise nature of the allegations of the complaint are obscured by subsequent concessions made by the Government to the District Court and reiterated here. It is clear, however, that Count I alleges activities that are neither required by § 22(d) nor authorized under § 22(f). And since they cannot find antitrust shelter in these provisions of the Investment Company Act, the question presented in whether the SEC's exercise of regulatory authority under this statute and the Maloney Act is sufficiently pervasive to confer an implied immunity. We hold that it is, and accordingly affirm the District Court's dismissal of this portion of the complaint.
54
Count I originally appeared to be a general attack on the NASD's role in encouraging the restrictions on secondary market activities challenged in the remainder of the Government's complaint. The acts charged in Count I focused in large part on NASD rules, and on information distributed by that association to its members.42 Subsequently the Government advised the District Court that its complaint was not to be read as a direct attack on NASD rules, however, and it repeated that position before this Court.43 The Government now contends that its complaint should be interpreted as a challenge to various unofficial NASD interpretations and to appellees' extension of the rules in a manner that inhibits a secondary market.
55
In view of the scope of the SEC's regulatory authority over the activities of the NASD, the Government's decision to withdraw from direct attack on the association's rules was prudent. The SEC's supervisory authority over the NASD is extensive. Not only does the Maloney Act require the SEC to determine whether an association satisfies the strict statutory requirements of that Act and thus qualifies to engage in supervised regulation of the trading activities of its membership, 15 U.S.C. § 78o—3(b), it requires registered associations thereafter to submit for Commission approval any proposed rule changes, § 78o—3(j). The Maloney Act additionally authorizes the SEC to request changes in or supplementation of association rules, a power that recently has been exercised with respect to some of the precise conduct questioned in this litigation, see n. 31, supra. If such a request is not complied with, the SEC may order such changes itself. § 78o 3(k)(2).
56
The SEC, in its exercise of authority over association rules and practices, is charged with protection of the public interest as well as the interests of shareholders, see, e.g., § 78o 3(a)(1), (b)(3), and (c), and it repeatedly has indicated that it weighs competitive concerns in the exercise of its continued supervisory responsibility. See, e.g., National Association of Securities Dealers, Inc., 19 S.E.C. 424, 486—487 (1945); National Association of Securities Dealers, Inc., 9 S.E.C., at 43—46; see also 1974 Staff Report 105, 109. As the Court previously has recognized, United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 227 n. 60, 60 S.Ct. 811, 846, 84 L.Ed. 1129 (1940), the investiture of such pervasive supervisory authority in the SEC suggests that Congress intended to lift the ban of the Sherman Act from association activities approved by the SEC.
57
We further conclude that the Government's attack on NASD interpretations of those rules cannot be maintained under the Sherman Act for we see no meaningful distinction between the Association's rules and the manner in which it construes and implements them. Each is equally a subject of SEC oversight.
58
Finally, we hold that the Government's additional challenges to the alleged activities of the membership of the NASD designed to encourage the kinds of restraints averred in Counts II—VIII likewise are precluded by the regulatory authority vested in the SEC by the Maloney and Investment Company Acts. It should be noted that the Government does not contend that appellees' activities have had the purpose or effect of restraining competition among the various funds.44 Instead, the Government urges in Count I that appellees' alleged conspiracy was designed to encourage the suppression of intrafund secondary market activities, precisely the restriction that the SEC consistently has approved pursuant to § 22(f) for nearly 35 years. This close relationship is fatal to the Government's complaint, as the Commission's regulatory approval of the restrictive agreements challenged in Counts II—VIII cannot be reconciled with the Government's attack on the ancillary activities averred in Count I. And this conclusion applies with equal force now that the SEC has determined to introduce a controlled measure of competition into the secondary market.
59
There can be little question that the broad regulatory authority conferred upon the SEC by the Maloney and Investment Company Acts enables it to monitor the activities questioned in Count I, and the history of Commission regulations suggests no laxity in the exercise of this authority.45 To the extent that any of appellees' ancillary activities frustrate the SEC's regulatory objectives it has ample authority to eliminate them.46
60
Here implied repeal of the antitrust laws is 'necessary to make the (regulatory scheme) work.' Silver v. New York Stock Exchange, 373 U.S., at 357, 83 S.Ct., at 1257. In generally similar situations, we have implied immunity in particular and discrete instances to assure that the federal agency entrusted with regulation in the public interest could carry out that responsibility free from the disruption of conflicting judgments that might be voiced by courts exercising jurisdiction under the antitrust laws. See Hughes Tool Co. v. Trans World Airlines, 409 U.S. 363, 93 S.Ct. 647, 34 L.Ed.2d 577 (1973); Pan American World Airways, Inc. v. United States, 371 U.S. 296, 83 S.Ct. 476, 9 L.Ed.2d 325 (1963). In this instance, maintenance of an antitrust action for activities so directly related to the SEC's responsibilities poses a substantial danger that appellees would be subjected to duplicative and inconsistent standards. This is hardly a result that Congress would have mandated. We therefore hold that with respect to the activities challenged in Count I of the complaint, the Sherman Act has been displaced by the pervasive regulatory scheme established by the Maloney and Investment Company Acts.
61
Affirmed.
62
Mr. Justice WHITE, with whom Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice MARSHALL join, dissenting.
63
The majority repeats the principle so often applied by this Court that '(i) mplied antitrust immunity is not favored, and can be justified only by a convincing showing of clear repugnancy between the antitrust laws and the regulatory system.' Ante, at 719-720. That fundamental rule, though invoked again and again in our decisions, retained its vitality because in the many instances of its evocation it was given life and meaning by a close analysis of the legislation and facts involved in the particular case, an analysis inspired by the 'felt indispensable role of antitrust policy in the maintenance of a free economy . . ..' United States v. Philadelphia National Bank, 374 U.S. 321, 348, 83 S.Ct. 1715, 1733, 10 L.Ed.2d 915 (1963). Absent that inspiration the principle becomes an archaism at best, and no longer reflects the tense interplay of differing and at times conflicting public policies.
64
Although I do not disagree with much of the Court's opinion in its construction of §§ 22(d) and (f) of the Investment Company Act, 54 Stat. 824, as amended, 15 U.S.C. §§ 80a 22(d) and (f), its ultimate holding, which in contrast to the earlier portions of its opinion is devoid of detailed discussion of the applicable law, I find unacceptable. Under that holding, in light of the context of this case, implied antitrust immunity becomes the rule where a regulatory agency has authority to approve business conduct whether or not the agency is directed to consider antitrust factors in making its regularity decisions and whether or not there is other evidence that Congress intended to displace judicial with administrative antitrust enforcement.
65
* If Congress itself expressly permits or directs particular private conduct that would otherwise violate the antitrust laws, it can be safely assumed that Congress has made the necessary policy choices and preferred to permit rather than to prevent the acts in question. There is no dispute in this case, for example, that compliance with § 22(d)'s requirement that open-end funds and dealers sell at the public offering price is not subject to attack under the antitrust laws.
66
It also happens that in subjecting areas of commercial activity to regulation, Congress frequently authorizes a regulatory agency to approve certain kinds of transactions if they conform to the appropriate regulatory standard such as the 'public interest' or the 'public convenience and necessity' and correspondingly provides that, when approved, those transactions will be immune from attack under the antitrust laws. Section 414 of the Federal Aviation Act of 1958, 72 Stat. 770, 49 U.S.C. § 1384, for example, provides that any person affected by an order issued under §§ 408, 409, or 412 of that Act, 49 U.S.C. §§ 1378, 1379, 1382, is 'relieved from the operations of the 'antitrust laws," including the Sherman Act, 'insofar as may be necessary to enable such person to do anything authorized, approved, or required by such order.' Hughes Tool Co. v. Trans World Airlines, 409 U.S. 363, 93 S.Ct. 647, 34 L.Ed.2d 577 (1973), thus involved acts and transactions expressly immunized from antitrust scrutiny. Section 5(11) of the Interstate Commerce Act, 24 Stat. 380, as amended, 49 U.S.C. § 5(11), similarly provides that carriers and their employees participating in a transaction approved or authorized under § 5 'shall be and they are relieved from the operation of the antitrust laws . . ..' Also, the Clayton Act itself provides that § 7's prohibitions will not apply to transactions duly consummated pursuant to authority given by certain named agencies under any statutory provisions vesting power in those agencies. 38 Stat. 731, as amended, 15 U.S.C. § 18.
67
The courts have, of course, recognized express exemptions such as these; but the invariable rule has been 'that exemptions from antitrust laws are strictly construed,' FMC v. Seatrain Lines, Inc., 411 U.S. 726, 733, 93 S.Ct. 1773, 1778, 36 L.Ed.2d 620 (1973), and that exemption will not be implied beyond that given by the letter of the law. In Seatrain the Maritime Commission was authorized by statute to approve and immunize from antitrust challenge seven categories of agreements between shipping companies, including agreements 'controlling, regulating, preventing, or destroying competition.' The Court, construing narrowly the category arguably embracing the merger agreement under consideration, held that merger agreements between shipping companies were not subject to approval by the Commission and consequently were not entitled to exemption under the antitrust laws.
68
Absent express immunization or its equivalent, private business arrangements are not exempt from the antitrust laws merely because Congress has empowered an agency to authorize the very conduct which is later challenged in court under the antitrust laws. Where the regulatory standard is the 'public interest,' or something similar, there is no reason whatsoever to conclude that Congress intended the strong policy of the antitrust laws to be displaced or to be ignored in determining the public interest and in approving or disapproving the questioned conduct. This has been the consistent position of this Court. In United States v. Radio Corp. of America, 358 U.S. 334, 79 S.Ct. 457, 3 L.Ed.2d 354 (1959), the approval of the Federal Communications Commission of an exchange of television stations was sought as required by statute. The Commission approved the exchange, finding, in accordance with the statutory standard, that the public interest, convenience, and necessity would be served. The United States brought an antitrust action to require divestiture. It was urged in defense that the Commission had been empowered to consider and adjudicate antitrust issues and that its approval immunized the transaction. The Court rejected the defense, Mr. Justice Harlan concurring in the judgment and summarizing the Court's holding as follows:
69
'(A) Commission determination of 'public interest, convenience, and necessity' cannot either constitute a binding adjudication upon any antitrust issues that may be involved in the Commission's proceeding or serve to exempt a licensee pro tanto from the antitrust laws, and . . . these considerations alone are dispositive of this appeal.' Id., at 353, 79 S.Ct., at 468.
70
In California v. FPC, 369 U.S. 482, 82 S.Ct. 901, 8 L.Ed.2d 54 (1962), the question was whether the authority in the Federal Power Commission to approve mergers in the public interest foreclosed antitrust challenge to an approved merger. The Court held that agency approval did not confer immunity from § 7 of the Clayton Act, even though the agency had taken the competitive factors into account in passing upon the application. A year later, in United States v. Philadelphia Nat. Bank, supra, the Court rejected the contention that 'the Bank Merger Act, by directing the banking agencies to consider competitive factors before approving mergers . . . immunizes approved mergers from challenge under the federal antitrust laws.' 374 U.S., at 350, 83 S.Ct., at 1734 (footnote omitted). More recently, we applied this principle in Otter Tail Power Co. v. United States, 410 U.S. 366, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973). There the Court held that the authority of the Federal Power Commission to order interconnections between power systems of two companies did not exempt company refusal to interconnect from antitrust attack.
71
Under these and other cases it could not be clearer that '(a)ctivities which come under the jurisdiction of a regulatory agency nevertheless may be subject to scrutiny under the antitrust laws,' id., at 372, 93 S.Ct., at 1027, and that agency approval of particular transactions does not itself confer antitrust immunity.
72
The foregoing were the governing principles both before and after Silver v. New York Stock Exchange, 373 U.S. 341, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963). There, stock exchange members were directed to discontinue private wire service to two nonmember brokerdealers, who were given no notice or opportunity to be heard on the discontinuance. The latter brought suit under §§ 1 and 2 of the Sherman Act, but the Court of Appeals held that the stock exchanges had been exempted from the antitrust laws by the Securities Exchange Act of 1934. This Court reversed. The Act contained no express immunity, and immunity would be implied 'only if necessary to make the Securities Exchange Act work, and even then only to the minimum extent necessary.' 373 U.S., at 357, 83 S.Ct. at 1257. Conceding that there would be instances of permissible self-regulation which otherwise would violate the antitrust laws, the Court concluded that nothing in the Act required that the deprivations there imposed be immune from the antitrust laws. In arriving at this conclusion, it was noted that the Securities and Exchange Commission had no authority to review specific instances of enforcement of the exchange rules involved and that it was therefore unnecessary to consider any problem of conflict or coextensiveness with the agency's regulatory power. The Court observed, however, that if there had been jurisdiction in the Commission, with judicial review following, 'a different case would arise concerning exemption from the operation of laws designed to prevent anticompetitive activity . . ..' Id., at 358 n. 12, 83 S.Ct., 1257.
73
Such a different case, we said, was before us in Ricci v. Chicago Mercantile Exchange, 409 U.S. 289, 302, 93 S.Ct. 573, 580, 34 L.Ed.2d 525 (1973). That case arose in the context of the Commodity Exchange Act. We held that a district court entertaining a private antitrust action should stay its hand while the Commodity Exchange Commission exercised whatever jurisdiction it might have to adjudicate specific claims of violation of exchange rules; but that adjudication, we said, was not a substitute for antitrust enforcement, and the fact that the Commission had jurisdiction to approve or disapprove the challenged conduct and might hold the conduct to be consistent with exchange rules would not, in itself, answer the immunity question. Id., at 302—303, n. 13, 93 S.Ct., at 580—581.
74
On occasion, however, Congress has authorized an agency to adjudicate the legality of specifically defined transactions or commercial behavior in accordance with a competitive standard inconsistent with the controlling criteria under the antitrust laws. In these circumstances, the Court has concluded that Congress intended to replace normal antitrust enforcement with the administrative regime provided by the statute, subject to judicial review. Pan American World Airways, Inc. v. United States, 371 U.S. 296, 83 S.Ct. 476, 9 L.Ed.2d 325 (1963), involved certain business conduct within the jurisdiction of the Civil Aeronautics Board. Under the Federal Aviation Act, various transactions by air carriers, if approved by the Board, were expressly immunized from antitrust attack. Also, the Board was given explicit authority under § 411 of that Act, 49 U.S.C. § 1381, to investigate and bring to a halt all 'unfair . . . practices' and 'unfair methods of competition,' the power under this section to be administered in the light of the 'competitive regime' clearly delineated elsewhere in the Act. See 371 U.S., at 308—309. The Court concluded that Congress, having directed itself to the matter of competition in the airlines industry and having provided a competitive standard to be administered by an agency, had intended to displace the usual enforcement of the antitrust laws through the courts, at least insofar as Government injunction suits were concerned. United States v. Philadelphia National Bank, supra, made it plain that Pan American had not disturbed the usual rule that, without more, agency power to approve, and agency approval itself, do not confer antitrust immunity. 374 U.S., at 351—352, 83 S.Ct., at 1735.
75
Gordon v. N.Y. Stock Exchange, Inc., 422 US. 659, 95 S.Ct. 2598, 45 L.Ed.2d 463, decided today, is another instance where Congress has provided an administrative substitute for antitrust enforcement. Section 19(b) of the Securities Exchange Act of 1934, 48 Stat. 898, as amended, 15 U.S.C. § 78s(b), contemplated the fixing by the exchange, and approval or prescription by the Securities and Exchange Commission, of 'reasonable rates of commission' to be charged by exchange members. Price fixing by competitors, however, is wholly at odds with the Sherman Act; under that statute prices fixed by agreement are inherently unreasonable, whatever the level at which they are set. This was the law long prior to the Securities Exchange Act:
76
'The aim and result of every price-fixing agreement, if effective, is the elimination of one form of competition. The power to fix prices, whether reasonably exercised or not, involves power to control the market and to fix arbitrary and unreasonable prices. The reasonable price fixed today may through economic and business changes become the unreasonable price of tomorrow. Once established, it may be maintained unchanged because of the absence of competition secured by the agreement for a price reasonable when fixed. Agreements which create such potential power may well be held to be in themselves unreasonable or unlawful restraints, without the necessity of minute inquiry whether a particular price is reasonable or unreasonable as fixed and without placing on the government in enforcing the Sherman Law the burden of ascertaining from day to day whether it has become unreasonable through the mere variation of economic conditions.' United States v. Trenton Potteries Co., 273 U.S. 392, 397—398, 47 S.Ct. 377, 379, 71 L.Ed. 700 (1927).
77
Thus Congress could not have anticipated that the antitrust laws would apply to stock exchange price fixing approved by the Commission. In this respect, there is a 'plain repugnancy between the antitrust and regulatory provisions,' United States v. Philadelphia National Bank, supra, 374 U.S., at 351, 83 S.Ct., at 1735 (footnote omitted).
78
The rule of law that should be applied in this case, therefore, as it comes to us from these precedents, is that, absent an express antitrust immunization conferred by Congress in a statute, such an immunity can be implied only if Congress has clearly supplanted the antitrust laws and their model of competition with a differing competitive regime, defined by particularized competitive standards and enforced by an administrative agency, and has thereby purged an otherwise obvious antitrust violation of its illegality. When viewed in the light of this rule of law, the argument for implied immunity in this case becomes demonstrably untenable.
II
79
Section 22(f) of the Investment Company Act provides that '(n)o registered open-end company shall restrict the transferability or negotiability of any security of which it is the issuer except in conformity with the statements with respect thereto contained in its registration statement nor in contravention of such rules and regulations as the Commission may prescribe in the interests of the holders of all of the outstanding securities of such investment company.' The majority concludes from these words and their spares legislative history that the 'funds and the SEC' have the authority to impose 'SEC-approved restrictions on transferability and negotiability,' ante, at 724, 725, including the restrictions involved here effecting resale price maintenance and concerted refusals to deal, all aimed at stifling competition that might come from the secondary market. The majority concludes that '(t) here can be no reconciliation of (SEC) authority . . . to permit these and similar restrictive agreements' with their illegality under the Sherman Act and that therefore 'the antitrust laws must give way if the regulatory scheme established by the Investment Company Act is to work.' Ante, at 729, 730.
80
For several reasons, the majority's conclusions are infirm under the controlling authorities. It is plain that the Act itself contains no express exemptions from the antitrust laws. It is equally plain that the Act does not expressly permit the specific restrictions at issue here in the way that it deals with the public offering price under § 22(d). It would be incredible even to suggest that Congress intended to give participants in the mutual-fund industry, individually or collectively, carte blanche authority to impose whatever restrictions were thought desirable and without regard to the policies of the antitrust laws. The majority does not contend otherwise and rests its case on the power which it finds in the Commission to approve, or to fail to disapprove, the practices challenged here and to immunize them from antitrust scrutiny.
81
It is immediately obvious that the majority has failed to heed the teaching of our cases in several respects. It ignores the rule that 'exemptions from antitrust laws are strictly construed' and that implied exemptions are "strongly disfavored." FMC v. Seatrain Lines, Inc., 411 U.S., at 733, 93 S.Ct., at 1778. Lurking in the prohibition of § 22(f) against any restrictions on 'transferability or negotiability' except those stated in the registration statement, the Court discovers the affirmative power to impose resale price maintenance restrictions, as well as the authority to engage in concerted refusals to deal and similar practices wholly at odds with the antitrust laws. Never before has the Court labored to find hidden immunities from the antitrust laws; and the necessity for the effort is itself at odds with our precedents.
82
The Court's holding that Commission approval automatically brings with it antitrust immunity is also contrary to those cases which have consistently refused to equate agency power to approve conduct with an exemption under the antitrust laws. Those cases, as demonstrated above, uniformly held that actual agency approval of the very transaction which the statute empowers the agency to approve is not in itself sufficient to exempt the transaction from liability under the Sherman Act, absent express exemption, or its equivalent, under the regulatory statute itself. This is true even where the agency is required to take antitrust considerations into account in approving the transaction or agreement and, a fortiori, where there is no evidence that such factors played any part in agency approval.
83
Here, the Court finds authority in open-end funds, subject to Commission approval, to impose restrictions on 'negotiability and transferability'; construes those words generously to include price fixing and concerted boycotts; and then concludes that Commission approval—rather, its failure to disapprove automatically and without more confers antitrust immunity on the selling practices followed by the particular open-end funds in this case. This result disregards the fact that there is no express provision for immunity in the statute, no direction to the Commission to consider competitive factors, no statutory standard provided for the Commission to follow with respect to competition in the investment company business, no indication that the Commission has considered the competitive impact of the restrictions at issue here, and no other basis for concluding that Congress intended the unilateral business judgment of an investment company, followed by Commission approval, to substitute for and supplant the antitrust laws.
84
The position of the Securities and Exchange Commission, as described and embraced by the Court, is that 'its authority will be compromised' if industry practices which the Commission has the power to approve are subject to scrutiny under the antitrust laws. See ante, at 729. But the Commission has made no effort to analyze and explain the need for these seriously anticompetitive restrictions in the mutual-fund industry. It has never affirmatively and formally approved the specific practices involved in this case, by rule or adjudication. Until recently, it has seemingly left investors and the public to the tender mercies of the industry itself. In fashioning antitrust immunity for these practices, the majority acts in complete disregard of the basic approach mandated by our cases, including the principles approved by the unanimous Court in FMC v. Seatrain Lines, Inc., supra:
85
'The Commission vigorously argues that such agreements can be interpreted as falling within the third category—which concerns agreements 'controlling, regulating, preventing, or destroying competition.' Without more, we might be inclined to agree that many merger agreements probably fit within this category. But a broad reading of the third category would conflict with our frequently expressed view that exemptions from antitrust laws are strictly construed, see, e.g., United States v. McKesson & Robbins, Inc., 351 U.S. 305, 316, 76 S.Ct. 937, 943, 100 L.Ed. 1209 (1956), and that '(r)epeals of the antitrust laws by implication from a regulatory statute are strongly disfavored, and have only been found in cases of plain repugnancy between the antitrust and regulatory provisions.' United States v. Philadelphia National Bank, 374 U.S. 321, 350—351, 83 S.Ct. 1715, 1735, 10 L.Ed.2d 915 (1963) (footnotes omitted). As we observed only recently: 'When . . . relationships are governed in the first instance by business judgment and not regulatory coercion, courts must be hesitant to conclude that Congress intended to override the fundamental national policies embodied in the antitrust laws.' Otter Tail Power Co. v. United States, 410 U.S. 366, 374, 93 S.Ct. 1022, 1028, 35 L.Ed.2d 359 (1973). See also Silver v. New York Stock Exchange, 373 U.S.
86
341, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963); Pan American World Airways, Inc. v. United States, 371 U.S. 296, 83 S.Ct. 476, 9 L.Ed.2d 325 (1963); California v. FPC, 369 U.S. 482, 82 S.Ct. 901, 8 L.Ed.2d 54 (1962); United States v. Borden Co., 308 U.S. 188, 60 S.Ct. 182, 84 LEd. 181 (1939). This principle has led us to construe the Shipping Act as conferring only a 'limited antitrust exemption' in light of the fact that 'antitrust laws represent a fundamental national economic policy.' Carnation Co. v. Pacific Westbound Conference, 383 U.S., at 219, 218, 86 S.Ct. 785, 784.' 411 U.S., at 732—733, 93 S.Ct., at 1778—1779 (footnotes omitted).
III
87
Exempting the NASD from antitrust scrutiny based on the existence of Commission power to approve or disapprove NASD rules is likewise unacceptable under our cases for very similar reasons. The majority relies on Hughes Tool Co. v. Trans World Airlines, 409 U.S. 363, 93 S.Ct. 647, 34 L.Ed.2d 577 (1973), and Pan American World Airways v. United States, 371 U.S. 296, 83 S.Ct. 476, 9 L.Ed.2d 325 (1963). But in Hughes exemption for the transactions there involved was based on the express immunities conferred by § 414 of the Federal Aviation Act; and in Pan American immunity followed from the Board's authority to adjudicate unfair competitive practices in accordance with the distinctive competitive standard Congress itself supplied in the regulatory statute. Northing comparable is to be found in the relevant provisions of the statutes involved here.
88
It is especially interesting to find the Court on the one hand concluding that the selling practices under scrutiny here are essential to the working of the statutory scheme but on the other hand recognizing that the Commission itself has requested that the NASD rules be amended to prohibit agreements between underwriters and broker-dealers that preclude broker-dealers acting as agents, from matching orders to buy and sell fund shares in a secondary market at competitively determined prices and commission rates. Ante, at 718-719, n. 31.
89
The majority's opinion, as a whole, seems to me to reject the basic position found in our cases that 'antitrust laws represent a fundamental national economic policy . . ..' Carnation Co. v. Pacific Conference, 383 U.S. 213, 218, 86 S.Ct. 781, 784, 15 L.Ed.2d 709 (1966). I cannot follow that course and accordingly dissent.
1
The Investment Company Act of 1940 defines 'investment company' to include any issuer of securities which
'(1) is or holds itself out as being engaged primarily, or proposes to engage primarily, in the business of investing, reinvesting, or trading in securities;
'(2) is engaged or proposes to engage in the business of issuing face-amount certificates of the installment type, or has been engaged in such business and has any such certificate outstanding; or
'(3) is engaged or proposes to engage in the business of investing, reinvesting, owning, holding, or trading in securities, and owns or proposes to acquire investment securities having a value exceeding 40 per centum of the value of such issuer's total assets (exclusive of Government securities and cash items) on an unconsolidated basis.' 15 U.S.C. § 80a—3(a).
This broad definition is qualified, however, by a series of specific exemptions. See §§ 80a—3(b) and (c).
2
See 15 U.S.C. §§ 80a—2(a)(32), 80a—22(e).
Management investment companies whose securities lack this redeemability feature are defined as 'closed end' companies, § 80a 5, and their sales and distribution practices are regulated under § 23 of the Act. 15 U.S.C. § 80a—23. Section 22 of the Act, the provision under consideration in this appeal, governs the sales and distribution practices of 'open end' companies only.
3
In this opinion we will use the term 'broker-dealer' to refer generally to persons registered under the Securities Exchange Act of 1934, 48 Stat. 895, 15 U.S.C. § 78o et seq., and authorized to effect transactions or induce the purchase or sale of securities pursuant to the authorization of that Act. We also will refer seperately to 'brokers' and 'dealers' as defined by the Investment Company Act, see 15 U.S.C. §§ 80a—2(a)(6) and (11), to describe the capacity in which a broker-dealer acts in a particular transaction.
4
The Act defines 'sales load' to be the difference between the public offering price and the portion of the sales proceeds that is invested or held for investment purposes by the issuer. § 80a—2(a)(35). Most mutual funds charge this sales load in order to encourage vigorous sales efforts on the part of underwriters and broker-dealers. There are some funds that do not charge this additional sales fee. These 'no load' funds generally sell directly to the investor without relying on the promotional and sales efforts of underwriters and broker-dealers. See SEC Report of the Division of Investment Management Regulation, Mutual Fund Distribution and Section 22(d) of the Investment Company Act of 1940, p. 112 (Aug. 1974) (hereinafter 1974 Staff Report).
5
Two additional private antitrust actions premised on similar theories were filed in the District Court and subsequently dismissed, Haddad v. Crosby Corp. and Gross v. National Ass'n of Securities Dealers, Inc., 374 F.Supp. 95 (D.C.1973). The Court of Appeals for the District of Columbia Circuit stayed those appeals to await the resolution of this case, and the petition of one of the parties for certiorari before judgment was denied, Gross v. National Ass'n of Securities Dealers, Inc., 419 U.S. 843, 95 S.Ct. 75, 42 L.Ed.2d 71 (1974).
Subsequent to the filing of the United States' complaint some 50 private suits purporting to be class actions under Fed.Rule Civ.Proc. 23 were filed in various District Courts around the country. These cases were transferred to the United States District Court for the District of Columbia by the Judicial Panel on Multidistrict Litigation, In re Mutual Fund Sales Antitrust Litigation, Civil Action No. Misc. 103—73. See 374 F.Supp., at 97 n. 4. The District Court deferred determination of whether the actions could be maintained as class actions under Rule 23 and additionally postponed discovery and other activity pending disposition of the motion to dismiss in this case. 374 F.Supp., at 114.
6
The NASD is registered under § 15A of the Securities Exchange Act of 1934, 15 U.S.C. § 78o—3, the so-called Maloney Act of 1938. The Maloney Act supplements the securities and Exchange Commission's regulation of the over-the-counter markets by providing a system of cooperative self-regulation through voluntary associations of brokers and dealers. The Act provides that associations may register with the Commission pursuant to specified terms and conditions, and authorizes them to promulgate rules designed to prevent fraudulent and manipulative practices; to promote equitable principles of trade; to safeguard against unreasonable profits and charges; and generally to protect investors and the public interest. § 78o—3(b)(8). The Act also authorizes the SEC to exercise a significant oversight function over the rules and activities of the registered associations. See, e.g., § 78o—3(b), (e), (h), (j), and (k). The NASD is presently the only association registered under this Act.
7
The mutual funds named as defendants in this action are Massachusetts Investors Growth Stock Fund, Inc., Fidelity Fund, Inc., and Wellington Fund, Inc.
8
The defendant underwriters include the Crosby Corp., Vance, Sanders & Co., and the Wellington Management Co.
9
Named as defendant broker-dealers are the following: Merrill Lynch, Pierce, Fenner & Smith, Inc., Bache & Co., Inc., Reynolds Securities Corp., E.I. duPont, Glore Forgan, Inc., E. F. Hutton, Inc., Walston & Co., Inc., Dean Witter & Co., Inc., Paine, Webber, Jackson & Curtis, Inc., and Hornblower & Weeks-Hemphill, Noyes, Inc.
10
Section 1 of the Sherman Act provides in pertinent part:
'Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal . . ..
'Every person who shall make any contract or engage in any combination or conspiracy declared by sections 1 to 7 of this title to be illegal shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding fifty thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.'
11
The violations alleged in Count II are typical of those charged in Counts IV and VI. In Count II, appellee Crosby, a principal underwriter of appellee Fidelity Fund, Inc., is charged with entering into contracts and combinations with appellee broker-dealers, the substantial terms of which are that '(a) each broker/dealer must maintain the public offering price in any brokerage transaction in which it participates involving the purchase or sale of shares of the Fidelity Funds; and
'(b) each broker/dealer must sell shares of the Fidelity Funds only to investors or the fund and purchase such shares only from investors or the fund.' App. 10—11. Count VI in addition to charging restrictive agreements similar to the above, alleged that appellee Wellington, a principal underwriter, agreed to act only as an agent of the appropriate mutual fund in all transactions with the broker-dealers. Id., at 15.
The alleged effect of the restrictive agreement charged in (a) was to inhibit the growth and development of a brokerage market in mutual-fund shares. The alleged effect of the restriction identified in (b), by contrast, was to inhibit interdealer transactions and thus to restrict the growth and development of a secondary dealer market. App. 11.
12
The Court noted probable jurisdiction on October 15, 1974. 419 U.S. 822, 95 S.Ct. 37, 42 L.Ed.2d 45. Accordingly, the recent amendments to the Expediting Act, 88 Stat. 1709, 15 U.S.C. § 29 (1970 ed., Supp. IV), do not affect our jurisdiction.
13
For example, the Act requires companies to register with the SEC, 15 U.S.C. § 80a—8. See also § 80a—7. Companies also must register all securities they issue, see Securities Act of 1933, 15 U.S.C. § 77f; Investment Company Act, 15 U.S.C. § 80a—24(a), and must submit for SEC inspection copies of the sales literature they send to prospective investors. § 80a—24(b). The Investment Company Act requires the submission and periodic updating of detailed financial reports and documentation and the semiannual transmission of reports containing similar information to the shareholders. § 80a—29. It also imposes controls and restrictions on the internal management of investment companies: establishing minimum capital requirements, § 80a—14; limiting permissible methods for selecting directors, § 80a—16; and establishing certain qualifications for persons seeking to affiliate with the companies, § 80a—9. Finally, the Act imposes a number of controls on the internal practices of investment companies. For example, it requires a majority shareholder vote for certain fundamental business decisions, § 80a—13, and limits certain dividend distributions, § 80a—19. See generally The Mutual Fund Industry: A Legal Survey, 44 Notre Dame Law. 732 (1969).
14
H.R.Doc.No.279, 76th Cong., 1st Sess. (1940) (hereinafter Investment Trust Study pt. III). Part I of the Investment Study is printed as H.R.Doc.No.707, 75th Cong., 3d Sess. (1938). Part II of the Study is printed as H.R.Doc.No.70, 76th Cong., 1st Sess. (1939) (hereinafter Investment Trust Study pt. II). For additional discussion of the operations of open-end management investment companies, see 1974 Staff Report; SEC Report of the Staff on the Potential Economic Impact of a Repeal of Section 22(d) of the Investment Company Act of 1940 (Nov. 1972); H.R.Rep.No.2337, 89th Cong., 2d Sess. (1966); SEC Report of the Special Study of Securities Markets, c. XI—Open-End Investment Companies (Mutual Funds), H.R.Doc.No.95, pt. 4, 88th Cong., 1st Sess. (1963) (hereinafter 1963 Special Study).
15
The broker-dealers operating within the primary distribution system are denominated 'contract dealers' in the Study and will be so identified in this opinion.
16
The Study indicates that mutual funds increasingly began to disclose more information about the existence and operation of the two-price system. See Investment Trust Study pt. III, pp. 867 868. And in some instances the funds encouraged broker-dealers to explain to potential incoming investors the immediate appreciation in investment value that could be obtained from the pricing system in the hope of encouraging the purchase of shares. Id., at 854. See Hearings on S. 3580 before a Subcommittee of the Senate Committee on Banking and Currency, 76th Cong., 3d Sess., pt. 1, p. 138 (1940) (hereinafter 1940 Senate Hearings).
17
The existing shareholders' equity interests were diluted because the incoming investors bought into the fund at less than the actual value of the shares at the time of purchase. Moreover, SEE testimony indicated that this dilution could be substantial. In one instance the Commission calculated that the two-price system resulted in a loss to existing shareholders of one trust of some $133,000 in a single day. Id., at 139—140.
18
Contract dealers trading from an inventory position often could obtain an additional profit from the sales load. When the dealer acted as an agent for the fund and traded from the primary distribution system, the dealer and the underwriter divided the load charge in accordance with the sales agreement. But the dealer could retain the full load when he filled the purchase order from an inventory position in shares purchased from retiring shareholders or other dealers. Investment Trust Study pt. III, pp. 858—859.
19
Sections 22(a) and (c) reflect the same basic relationship between the SEC and the NASD that is established by the Maloney Act. See n. 6, supra. Section 22(a) authorizes registered securities associations, in this case the NASD, to prescribe rules for the regulation of these matters. 15 U.S.C. § 80a—22(a). The industry thus is afforded the initial opportunity to police its own practices. If, however, industry self-regulation proves insufficient, § 22(c) authorizes the Commission to make rules and regulations 'covering the same subject matter, and for the accomplishment of the same ends as are prescribed in subsection (a),' and proclaims that the SEC rules and regulations supersede any inconsistent rules of the registered securities association. 15 U.S.C. § 80a—22(c).
Shortly after enactment of the Investment Company Act the NASD proposed, and the SEC approved, a rule establishing twice-daily pricing. See National Association of Securities Dealers, Inc., 9 S.E.C. 38 (1941). Twice-daily pricing reduced the time period in which persons could engage in riskless trading and correspondingly decreased the potential for dilution. The Commission subsequently provided full protection against the dilutive effects of riskless trading. In late 1968 it exercised its authority under § 22(c) to adopt Rule 22c—1, which requires all funds to establish 'forward pricing.' Forward pricing eliminates the potential for riskless trading altogether. See Adoption of Rule 22c—1, Investment Company Act Rel.No.5519 (1968), (1967—1969 Transfer Binder) CCH Fed.Sec.L.Rep. 77,616; 17 CFR § 270.22c—1 22c—1 (1974).
20
This section provides in pertinent part:
'No registered investment company shall sell any redeemable security issued by it to any person except either to or through a principal underwriter for distribution or at a current public offering price described in the prospectus, and, if such class of security is being currently offered to the public by or through an underwriter, no principal underwriter of such security, and no dealer shall sell any such security to any person except a dealer, a principal underwriter, or the issuer, except at a current public offering price described in the prospectus.'
21
The Investment Company Act defines a 'dealer' to be:
'(A)ny person regularly engaged in the business of buying and selling securities for his own account, through a broker or otherwise, but does not include a bank, insurance company, or investment company, or any person insofar as he is engaged in investing, reinvesting, or trading in securities, or in owning or holding securities, for his own account, either individually or in some fiduciary capacity, but not as a part of a regular business.' 15 U.S.C. § 80a—2(a)(11). A 'broker,' by contrast, is defined to be:
'(A)ny person engaged in the business of effecting transactions in securities for the account of others, but does not include a bank or any person solely by reason of the fact that such person is an underwriter for one or more investment companies.' § 80a—2(a)(6).
22
Congress employed the term 'broker' without reference to 'dealer' in various sections of the Act. See §§ 80a—3(c)(2), 80a 10(b)(1), 80a—17(e)(1) and (2). In other instances, the Act refers to 'dealer' without reference to 'broker,' see §§ 80a—2(a)(40), 80a—22(c) and (d). And in some cases, including the very definition of the term 'dealer' itself, see n. 21, supra, the Act refers to both 'broker' and 'dealer' in the same provision, see §§ 80a—1(b)(2), 80a—9(a)(1) and (2), and 80a—30(a). Finally, the Act in some cases refers to the more general term 'broker-dealer,' see §§ 80a—22(b)(1) and (2).
23
The original Commission-sponsored bill considered in the initial hearings before a Subcommittee of the Senate Banking and Commerce Committee, S. 3580, 76th Cong., 3d Sess. (1940), contained no provision resembling this subsection. Section 22(d) first emerged in a compromise proposal advanced after a period of intensive consultation between the SEC and industry representatives that followed initial Senate hearings, see 1940 Senate Hearings, pt. 4, pp. 1105—1107, and the Commission subsequently has indicated that this provision was suggested by the industry. See MidAmerica Mutual Fund, Inc., 41 S.E.C. 328, 331 (1963); H.R.Rep.No. 2337, 89th Cong., 2d Sess., 219 (1966). Revised legislation reflecting this compromise was submitted, and further hearings were conducted in the Senate and the House. Both bills were reported favorably by their respective committees, S.Rep.No.1775, 76th Cong., 3d Sess. (1940); H.R.Rep.No.2639, 76th Cong., 3d Sess. (1940), and the House bill, with minor amendments not relevant to this appeal, was accepted by the Senate. 86 Cong.Rec. 10069—10071 (1940).
This history perhaps explains the dearth of discussion relating to § 22(d). The majority of the Senate hearings were completed before this provision was advanced, and both the Senate and House hearings that followed provide relatively little illumination as to the intended purpose or scope of this subsection.
24
Insider trading abuses were identified as a problem during the Senate hearings that preceded submission of the compromise bill containing § 22(d), see 1940 Senate Hearings, pt. 2, pp. 526—527 and 660—661. At the close of the initial Senate hearings an industry representative suggested that the Act should contain a provision prohibiting sales at preferential terms to insiders and others. Id., at 1057. The Commission and industry representatives thereafter met to seek a compromise on the various differences that had been identified in the Senate hearings, and the industry memorandum outlining the nature of the resultant agreement again indicated that a provision should be added to the Act to prohibit insider trading. See Framework of Proposed Investment Company Bill (Title I), Memorandum Embodying Suggestions Resulting from Conferences Between Securities and Exchange Commission and Representatives of Investment Companies (May 13, 1940), printed in Hearings on H.R.10065 before a Subcommittee of the House Committee on Interstate and Foreign Commerce, 76th Cong., 3d Sess., 99 (1940).
25
The insider-trading prohibition is complemented by § 22(g), which precludes issuance of mutual-fund shares for services or property other than cash or securities. 15 U.S.C. § 80A—22(g).
26
See Adoption of Rule N—22D—1, Investment Company Act Rel.No.2798, p. 1 (1958), (1957—1961 Transfer Binder) CCH Fed.Sec.L.Rep. 76,625, p. 80,393; Investors Diversified Services, Inc., Investment Company Act Rel.No.3015 (1960), (1957—1961 Transfer Binder) CCH Fed.Sec.L.Rep. 76,699, p. 80,620; In re Sideris, Securities Exchange Act Rel.No.8816, p. 2 (1970); Mutual Funds Advisory, Inc., Investment Company Act Rel.No.6932, p. 4 (1972).
The SEC also has suggested that preventing discrimination among investors was one of the purposes of this provision. See, e.g., In re Sideris, supra; MidAmerica Mutual Fund, Inc., 41 S.E.C., at 331; Adoption of Rule N—22D—1, supra. But we do not think that brokerage transactions inevitably would foster the kind of investor discrimination sought to be remedied by this statute. All investors would be equally free to seek to engage in brokered transactions, and the possibility that the more sophisticated or fortuitous investor would profit from this market does not, by itself, bring this category of transactions within the purview of § 22(d).
27
Responding to inquiries concerning the relationship of § 22(d) and the operation of state law, Chairman Cohen stated:
'The statute is unequivocal. No person, no matter where he gets it, from the issuer, from another dealer, or even from a private person, no broker-dealer may sell a share of a particular fund at a price less than that fixed by the issuer.' Hearings on the Investment Company Act Amendments of 1967 before the Subcommittee on Commerce and Finance of the House Committee on Interstate and Foreign Commerce, 90th Cong., 1st Sess., pt. 2, p. 711 (1967).
28
Id., at pt. 1, p. 53.
29
Senator Sparkman, Chairman of the Senate Banking and Currency Committee which reported the 1970 amendments to the full Senate, stated on the floor of the Senate that § 22(d) 'now makes it a Federal crime for anyone to sell mutual fund shares at a price lower than that fixed by the fund's distributor.' 115 Cong.Rec. 838 (1969) (emphasis added). Senator Magnuson reflected perhaps a similar view, stating that, as a result of § 22(d), 'mutual fund sales charges are totally insulated from price competition.' 114 Cong.Rec. 23057 (1968) (emphasis added).
The testimony of some witnesses suggests that they shared this expansive view. See, e.g., Hearings on S. 1659 before the Senate Committee on Banking and Currency, 90th Cong., 1st Sess., pt. 2, p. 741 (1967) (hereinafter 1967 Senate Hearings) (testimony of Mr. Funston, President of the New York Stock Exchange); id., at pt. 1, pp. 348, 356 (testimony of Professor Samuelson); id., at pt. 2, p. 1064 (testimony of Professor Wallich).
30
We conclude, however, that the context of the post-enactment history of § 22(d) limits the force of the statements relied upon by appellees. A broker-dealer can serve in either a broker's or a dealer's capacity, and the distinction between the two functions is rather technical and precise. The parties are in general agreement that no significant number of brokered transactions, as statutorily defined, existed prior or subsequent to passage of the Act. In view of the care with which the statute defines these functions and the absence of focus on these distinctions in the statements in the subsequent consideration of § 22(d), we think that the broader characterizations of that section must be viewed with some skepticism.
31
Acting in accordance with the recommendations of the Staff Report, the SEC Chairman recently requested that the NASD amend its Rules of Fair Practice to prohibit agreements between underwriters and broker-dealers that preclude broker-dealers, acting as agents, 'from matching orders to buy and sell fund shares in a secondary market at competitively determined prices and commission rates.' Letter from Mr. Ray Garrett, Jr., Chairman of the SEC to Mr. Gordon S. Macklin, President of the NASD, Nov. 22, 1974, printed in Brief for Appellees Bache & Co. et al, Add. 18. The Chairman further revealed the SEC's intention to exercise its regulatory authority under § 22(f) to neutralize any adverse effects this market might have on the fund's primary distribution system. Id., at Add. 19. As the Staff Report indicates, the Commission's exercise of regulatory authority is premised on its view that § 22(d) does not require strict price maintenance in brokered transactions. See 1974 Staff Report 104. If § 22(d) did control these transactions as well as 'dealer' sales, the Commission's ability to encourage controlled competition in this market would be subject to question.
32
The Department of Justice previously suggested a manner in which its interpretation of § 22(d) could be reconciled with the Commission's exercise of regulatory authority over brokered transactions. Addressing the question of possible repeal of § 22(d), the Justice Department suggested that rather than continue to wait for congressional repeal, the Commission should eliminate the adverse effects of price maintenance by freeing all transactions from the § 22(d) mandate through the exercise of its § 6(c) power of exemption, 15 U.S.C. § 80a—6(c). 1974 Staff Report 70. This presumably would leave the SEC free to regulate transactions through the exercise of the powers conferred on it by other provisions of the Act. We need not consider the validity of the Justice Department's broad interpretation of the SEC's power of exemption, for even assuming it is to correct our analysis would not be affected.
33
Section 22(f) of the Act, 15 U.S.C. § 80a—22(f), provides:
'No registered open-end company shall restrict the transferability or negotiability of any security of which it is the issuer except in conformity with the statements with respect thereto contained in its registration statement nor in contravention of such rules and regulations as the Commission may prescribe in the interests of the holders of all of the outstanding securities of such investment company.'
34
Section 22(d) of the original bill, S. 3580, 76th Cong., 3d Sess. (1940), provided, in pertinent part:
'The Commission is authorized, by rules and regulations or order in the public interest or for the protection of investors, to prohibit—
'(2) Restrictions upon the transferability or negotiability of any redeemable security of which any registered investment company is the issuer.'
35
Testifying before the Senate subcommittee, an SEC spokesman stated:
'Now coming to subparagraph (2) of (d), it just says that the Commission shall have the right to make rules and regulations with respect to any restrictions upon the transferability or negotiability of any redeemable security of which any registered investment company is the issuer.
'There are some companies that have a provision in their certificates to the effect that you cannot sell that certificate to anybody else, and the only way you can sell it is to sell it back to the company. That is a technical problem. It presents a whole problem which they call the bootleg market. What happens is that dealers keep switching people from one company to another. In order to prevent these switches, some provisions require that you cannot make these switches but must sell the certificate back to the company. . . .
'It the committee wants the provision, we shall recommend what, on the basis of our experience up to the present time, it ought to be; but we think subjects like that ought to be a matter of rules and regulations.' 1940 Senate Hearings, pt. 1, pp. 292 293.
36
Neither are we convinced of the necessity to limit negotiability or transferability restrictions to those appearing on the face of the certificate in order to assure their adequate disclosure to investors. Section 24 of the Act requires that mutual funds submit for SEC inspection copies of all sales literature that they send to prospective investors. 15 U.S.C. § 80a—24(b). The Commission is therefore fully apprised as to the nature and sufficiency of the disclosure of these restrictions and can, if necessary, require supplementation of the information provided investors.
37
Neither do we agree with the Government's suggestion that § 22(f) does not authorize restrictions in contracts between underwriters and dealers in which the fund is not a party. We note, preliminarily, that this position would not save Counts III, V, and VII from dismissal, since they relate to restrictions on underwriter conduct that are imposed by the fund. Even under the most technical reading of the statute these restrictions are 'fund-imposed.' Moreover, it further appears from in Count II is required by the challenged in Count II is required by the fund-underwriter agreement challenged in Count III and thus also is 'fund-imposed' in any but the most literal sense. More importantly, however, we think that the Government's position fails to recognize the relationship between the various participants in the distribution chain. As the history of the Investment Company Act recognizes, the relationship between the fund and its principal underwriter traditionally has been a close one. Sections 15(b) and (c) reflect this fact, requiring, in effect, that funds establish written contracts with the underwriter that must be approved by a majority of the fund's disinterested directors and cannot remain in force for more than two years. 15 U.S.C. §§ 80a—15(b) and (c). And NASD Rule 26(c), in effect since 1941, requires that principal underwriters enter into agreements with the dealers who distribute the fund's securities. See National Association of Securities Dealers, Inc., 9 S.E.C., at 44, 48. In view of these requirements, and the broad remedial purpose of § 22(f), we think that the underwriter-dealer agreements challenged in this complaint also must be regarded as fund-imposed within the contemplation of the statute.
38
See 1940 Senate Hearings, pt. 1, p. 293.
39
Commissioner Loomis, dissenting from an SEC determination that an applicant lacked standing to seek an exemption from §§ 17(a)(1) and 22(d) of the Act, stated:
'I would conclude that applicant is a dealer in its relationship with the fund underwriter because to do otherwise would require us to ignore or nullify the perfectly lawful requirement in the dealer agreements that applicant act as a dealer. . . . I do not know of anything unlawful about the generally accepted form of dealer agreement used in the investment company industry.' Mutual Funds Advisory, Inc., Investment Company Act Rel.No. 6932, p. 7 (1972) (dissenting opinion).
While the majority disagreed with Commissioner Loomis' assessment of the facts of the case, it did not question his approval of the mentioned dealer agreement.
40
See 1963 Special Study 98; 1974 Staff Report 104—106.
41
The SEC maintains:
'It would nullify the effect of this grant of regulatory authority to the Commission (under § 22(f)) for this Court to hold that a district court may apply antitrust principles to conduct like that alleged in Counts II through VIII, when the expert body designated and empowered by Congress to regulate and supervise that conduct has not heretofore deemed it appropriate to prohibit the conduct.' Brief for SEC as Amicus Curiae 54.
42
The complaint averred that, in effectuating the conspiracy to restrain the growth of a secondary market in mutual-fund shares, the NASD, its members, and more particularly the other named defendants,
'(a) established and maintained rules which inhibited the development of a secondary dealer market and a brokerage market in the mutual fund shares;
'(b) established and maintained rules which induced broker/dealers to enter into sales agreements with principal underwriters, with knowledge that sales agreements contained restrictive provisions which inhibited the development of a secondary dealer market and brokerage market in mutual fund shares;
'(c) induced member principal underwriters to include restrictive provisions in their sales agreements;
'(d) discouraged persons who made inquiry about the legality of a brokerage market from participating in a brokerage market and distributed misleading information to its members concerning the legality of a brokerage market in mutual fund shares; and
'(e) suppressed market quotations for the secondary dealer market.' App. 9.
43
The Government first indicated abandonment of its attack on the NASD rules during oral argument of appellees' motion to dismiss. See App. 328—332. Notwithstanding clauses (a) and (b) of 17 of the complaint, see n. 42 supra, the Government's counsel stated that it did not intend to challenge any NASD rule, App. 330. Counsel ambiguously suggested, however, that the members' compliance with those rules had aided and abetted the alleged conspiracy, id., at 332, and stated that informal and secret activities of the Association likewise had tended to inhibit growth of the secondary market, id., at 330. Thereafter, in response to the District Court's invitation to join in the litigation as amicus curiae, the SEC expressed its concern that the action might involve an attack on NASD rules, a matter 'over which the Commission is granted exclusive original jurisdiction by Section 15A of the Securities Exchange Act of 1934, 15 U.S.C. § 78o—3, et seq. (the Maloney Act).' Letter from Mr. Lawrence E. Nerheim, General Counsel of the SEC, to the District Court, App. 323. The Government thereafter informed the court that the issues it sought to raise did not represent 'an attack upon NASD Rules as such' but rather 'aimed at an over-all course of conduct engaged in by the NASD and its members going beyond the NASD's rule-making authority.' Letter from Mr. Bruce B. Wilson, Acting Assistant Attorney General for the Antitrust Division, to the District Court, App. 327. It maintains the same position in this Court. See Brief for United States 51 n. 47.
44
Indeed, it appears that vigorous interbrand competition exists in the mutual-fund industry—between the load funds themselves, between load and no-load funds, between open- and closed-end companies, and between all of these investment forms and other investments. See 1974 Staff Report 20 et seq.
45
As SEC Chairman Garrett observed in his letter submitting the 1974 Staff Report for congressional consideration: 'No issuer of securities is subject to more detailed regulation than a mutual fund.' Letter from Ray Garrett, Jr., SEC Chairman, to the Honorable John Sparkman, Chairman of the Committee on Banking, Housing, and Urban Affairs, United States Senate (Nov. 4, 1974), contained in 1974 Staff Report, at v.
46
The Commission can, for example, require amendment of the NASD rules regulating the conduct of its membership, see 15 U.S.C. § 78o—3(k)(2), or exercise the more general rulemaking power conferred by § 38(a) of the Investment Company Act, 15 U.S.C. § 80a—37(a), to contain any of the challenged activities that might in any way frustrate its regulation of the restrictions it authorizes under § 22(f).
| 78
|
45 L.Ed.2d 463
95 S.Ct. 2598
422 U.S. 659
Richard A. GORDON et al., Petitioners,v.NEW YORK STOCK EXCHANGE, INC., et al.
No. 74—304.
Argued March 25 and 26, 1975.
Decided June 26, 1975.
Syllabus
Petitioner, individually and on behalf of an asserted class of small investors, filed suit against respondents—the New York Stock Exchange, the American Stock Exchange, and two member firms of the Exchanges—claiming that the system of fixed commission rates utilized by the Exchanges at that time for transactions of less than $500,000 violated §§ 1 and 2 of the Sherman Act. The District Court and the Court of Appeals both concluded that the fixed commission rates were immunized from antitrust attack because of the authority of the Securities and Exchange Commission (SEC) under § 19(b)(9) of the Securities Exchange Act of 1934 to approve or disapprove exchange commission rates and its exercise of that power. Held: The system of fixed commission rates, which is under the active supervision of the SEC, is beyond the reach of the antitrust laws. Pp. 663-691.
(a) The statutory provision authorizing regulation of rates, § 19(b)(9), the SEC's long regulatory practice in reviewing proposed rate changes and in making detailed studies of rates, culminating in the adoption of a rule requiring a transition to competitive rates, and continued congressional approval of the SEC's authority over rates, all show that Congress intended the Securities Exchange Act to leave the supervision of the fixing of reasonable rates to the SEC. Pp. 663-691.
(b) To interpose antitrust laws, which would bar fixed commission rates as per se violations of the Sherman Act, in the face of positive SEC action, would unduly interfere with the intended operation of the Securities Exchange Act. Hence, implied repeal of the antitrust laws is necessary to make that Act work as intended, since failure to imply repeal would render § 19(b)(9) nugatory. Silver v. New York Stock Exchange, 373 U.S. 341, 83 S.Ct. 1246, 10 L.Ed.2d 389; Ricci v. Chicago Mercantile Exchange, 409 U.S. 289, 93 S.Ct. 573, 34 L.Ed.2d 525 distinguished. Pp. 682-691.
498 F.2d 1303, (2nd Cir.) affirmed.
I. Walton Bader, New York City, for petitioners.
Howard E. Shapiro, Washington, D.C., for the United States, as amicus curiae, by special leave of Court.
William Eldred Jackson, New York City, for respondents.
Lawrence E. Nerheim, Washington, D.C., for the Securities and Exchange Commission, as amicus curiae, by special leave of Court.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This case presents the problem of reconciliation of the antitrust laws with a federal regulatory scheme in the particular context of the practice of the securities exchanges and their members of using fixed rates of commission. The United States District Court for the Southern District of New York and the United States Court of Appeals for the Second Circuit concluded that fixed commission rates were immunized from antitrust attack because of the Securities and Exchange Commission's authority to approve or disapprove exchange commission rates and its exercise of that power.
2
* In early 1971 petitioner Richard A. Gordon, individually and on behalf of an asserted class of small investors, filed this suit against the New York Stock Exchange, Inc. (NYSE), the American Stock Exchange, Inc. (Amex), and two member firms of the Exchanges.1 The complaint challenged a variety of exchange rules and practices and, in particular, claimed that the system of fixed commission rates, utilized by the Exchanges at that time for transactions less than $500,000, violated §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended 15 U.S.C. §§ 1 and 2. Other challenges in the complaint focused on (1) the volume discount on trades of over 1,000 shares, and the presence of negotiated rather than fixed rates for transactions in excess of $500,000;2 (2) the rules limiting the number of exchange memberships; and (3) the rules denying discounted commission rates to nonmembers using exchange facilities.3
3
Respondents moved for summary judgment on the ground that the challenged actions were subject to the overriding supervision of the Securities and Exchange Commission (SEC) under § 19(b) of the Securities Exchange Act of 1934, 48 Stat. 898, as amended, 15 U.S.C. § 78s(b), and, therefore, were not subject to the strictures of the antitrust laws. The District Court granted respondents' motion as to all claims. 366 F.Supp. 1261 (1973). Dismissing the exchange membership limitation and the Robinson-Patman Act contentions as without merit,4 the court focused on the relationship between the fixed commission rates and the Sherman Act mandates. It utilized the framework for analysis of antitrust immunity in the regulated securities area that was established a decade ago in Silver v. New York Stock Exchange, 373 U.S. 341, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963). Since § 19(b)(9) of the Exchange Act authorized the SEC to supervise the Exchanges 'in respect of such matters as . . . the fixing of reasonable rates of commission,' the court held applicable the antitrust immunity reserved in Silver for those cases where 'review of exchange self-regulation (is) provided through a vehicle other than the antitrust laws.' 373 U.S., at 360, 83 S.Ct. at 1258. It further noted that the practice of fixed commission rates had continued without substantial challenge after the enactment of the 1934 Act, and that the SEC had been engaged in detailed study of the rate structure for a decade, culminating in the requirement for abolition of fixed rates as of May 1, 1975.
4
On appeal, the Second Circuit affirmed. 498 F.2d 1303 (1974). Characterizing petitioner's other challenges as frivolous, the appellate court devoted its opinion to the problem of antitrust immunity. It, too, used Silver as a basis for its analysis. Because the SEC, by § 19(b)(9), was given specific review power over the fixing of commission rates, because of the language, legislative history, and policy of the Exchange Act, and because of the SEC's actual exercise of its supervisory power, the Court of Appeals determined that this case differed from Silver, and that antitrust immunity was proper.
5
By his petition for certiorari, petitioner sought review only of the determination that fixed commission rates are beyond the reach of the antitrust laws. Because of the vital importance of the question, and at the urging of all the parties, we granted certiorari. 419 U.S. 1018, 95 S.Ct. 491, 42 L.Ed.2d 291 (1974).
II
6
Resolution of the issue of antitrust immunity for fixed commission rates may be made adequately only upon a thorough investigation of the practice in the light of statutory restrictions and decided cases. We begin with a brief review of the history of commission rates in the securities industry.
7
Commission rates for transactions on the stock exchanges have been set by agreement since the establishment of the first exchange in this country. The New York Stock Exchange was formed with the Buttonwood Tree Agreement of 1792, and from the beginning minimum fees were set and observed by the members. That Agreement itself stated:
8
"We the Subscribers, Brokers for the Purchase and Sale of Public Stock, do hereby solemnly promise and pledge ourselves to each other, that we will not buy or sell from this day for any person whatsoever, any kind of Public Stock at a less rate than one-quarter per cent. Commission on the Specie value, and that we will give a preference to each other in our Negotiations." F. Eames, The New York Stock Exchange 14 (1968 ed).
9
See generally, R. Doed, The Monopoly Power of the New York Stock Exchange, reprinted in Hearings on S. 3169 before the Subcommittee on Securities of the Senate Committee on Banking, Housing and Urban Affairs, 92d Cong., 2d Sess., 405, 412—427 (1972). Successive constitutions of the NYSE have carried forward this basic provision. Similarly, when Amex emerged in 1908—1910, a pattern of fixed commission rates was adopted there.
10
These fixed rate policies were not unnoticed by responsible congressional bodies. For example, the House Committee on Banking and Currency, in a general review of the stock exchanges undertaken in 1913, reported that the fixed commission rate rules were 'rigidly enforced' in order 'to prevent competition amongst the members.' H.R.Rep. No. 1593, 62d Cong., 3d Sess., 39 (1913).5 The report, known as the Pujo Report, did not recommend any change in this policy, for the Committee believed
11
'The present rates to be reasonable, except as to stocks, say, of $25 or less in value, and that the exchange should be protected in this respect by the law under which it shall be incorporated against a kind of competition between members that would lower the service and threaten the responsibility of members. A very low or competitive commission rate would also promote speculation and destroy the value of membership.' Id., at 115—116.
12
Despite the monopoly power of the few exchanges, exhibited not only in the area of commission rates but in a wide variety of other aspects, the exchanges remained essentially self-regulating and without significant supervision until the adoption of the Securities Exchange Act of 1934, 48 Stat. 881, as amended, 15 U.S.C. § 78a et seq. At the lengthy hearings before adoption of that Act, some attention was given to the fixed commission rate practice and to its anticompetitive features. See Hearings on S.Res. 84 (72d Cong.) and S.Res. 56 and 97 (73d Cong.) before the Senate Committee on Banking and Currency, 73d Cong., 1st and 2d Sess., pts. 13, 15, and 16, pp. 6075, 6080, 6868, and 7705 (1934) (hereafter Senate Hearings). See also Hearings on S.Res. 84 before the Senate Committee on Banking and Currency, 72d Cong., 1st Sess., pt. 1, p. 85 (1932); Hearings on H.R. 7852 and H.R. 8720 before the House Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess., 320—321, 423 (1934).
13
Perhaps the most pertinent testimony in the hearings preparatory to enactment of the Exchange Act was proferred by Samuel Untermyer, formerly chief counsel to the committee that drafted the Pujo Report. In commenting on proposed S. 2693, Mr. Untermyer noted that although the bill would provide the federal supervisory commission with
14
'The right to prescribe uniform rates of commission, it does not otherwise authorize the Commission to fix rates, which it seems to me it should do and would do by striking out the word 'uniform.' That would permit the Commission to fix rates.
15
'The volume of the business transacted on the exchange has increased manyfold. Great fortunes have been made by brokers through this monopoly. The public has no access to the exchange by way of membership except by buying a seat and paying a very large sum for it. Therefore it is a monopoly. Probably it has to be something of a monopoly. But after all it is essentially a public institution. It is the greatest financial agency in the world, and should be not only controlled by the public but it seems to me its membership and the commissions charged should either be fixed by some governmental authority or be supervised by such authority. As matters now stand, the exchange can charge all that the traffic will bear, and that is a burden upon commerce.' Senate Hearings 7705.
16
As finally enacted, the Exchange Act apparently reflected the Untermyer suggestion, for it gave the SEC the power to fix and insure 'reasonable' rates. Section 19(b) provided:
17
'(b) The Commission is further authorized, if after making appropriate request in writing to a national securities exchange that such exchange effect on its own behalf specified changes in its rules and practices, and after appropriate notice and opportunity for hearing, the Commission determines that such exchange has not made the changes so requested, and that such changes are 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, by rules or regulations or by order to alter or supplement the rules of such exchange (insofar as necessary or appropriate to effect such changes) in respect of such matters as . . . (9) the fixing of reasonable rates of commission, interest, listing, and other charges.' (Emphasis added.)
18
This provision conformed to the Act's general policy of self-regulation by the exchanges coupled with oversight by the SEC. It is to be noted that the ninth category is one of 12 specifically enumerated. In Merrill Lynch, Pierce, Fenner & Smith v. Ware, 414 U.S. 117, 127—128, 94 S.Ct. 383, 390, 38 L.Ed.2d 348 (1973), we observed:
19
'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 acheive their objectives. . . . Supervised self-regulation, although consonant with the traditional private governance of exchanges, allows the Government to monitor exchange business in the public interest.'
20
The congressional reports confirm that while the development of rules for the governing of exchanges, as enumerated in § 19(b), was left to the exchanges themselves in the first instance, the SEC could compel adoption of those changes it felt were necessary to insure fair dealing and protection of the public. See H.R.Rep. No. 1383, 73d Cong., 2d Sess., 15 (1934); S.Rep. No. 792, 73d Cong., 2d Sess., 13 (1934). The latter report, id., at 15, noted that registered exchanges were required to provide the SEC with 'complete information' regarding its rules.
III
21
With this legislative history in mind, we turn to the actual post-1934 experience of commission rates on the NYSE and Amex. After these two Exchanges had registered in 1934 under § 6 of the Exchange Act, 15 U.S.C. § 78f, both proceeded to prescribe minimum commission rates just as they had prior to the Act. App. A42, A216. These rates were changed periodically by the Exchanges,6 after their submission to the SEC pursuant to § 6(a)(4), 15 U.S.C. § 78f(a)(4), and SEC Rule 17a—8 17 CFR § 240.17a—8. Although several rate changes appear to have been effectuated without comment by the SEC, in other instances the SEC thoroughly exercised its supervisory powers. Thus, for example, as early as 1958 a study of the NYSE commission rates to determine whether the rates were 'reasonable and in accordance with the standards contemplated by applicable provisions of the Securities Exchange Act of 1934,' was announced by the SEC. SEC Exchange Act Release No. 5678, Apr. 14, 1958, App. A240. This study resulted in an agreement by the NYSE to reduce commission rates in certain transactions, to engage in further study of the rate structure by the NYSE in collaboration with the SEC, and to provide the SEC with greater advance notice of proposed rate changes. SEC Exchange Act Release No. 5889, Feb. 20, 1959, App. A247. The SEC specifically stated that it had undertaken the study 'in view of the responsibilities and duties imposed upon the Commission by Section 19(b) . . . with respect to the rules of national securities exchanges, including rules relating to the fixing of commission rates.' Ibid.
22
Under subsection (d) of § 19 of the Act (which subsection was added in 1961, 75 Stat. 465), the SEC was directed to investigate the adequacy of exchange rules for the protection of investors. Accordingly, the SEC began a detailed study of exchange rules in that year. In 1963 it released its conclusions in a six-volume study. SEC Report of Special Study of Securities Markets, H.R.Doc. No. 95, 88th Cong., 1st Sess. The study, among other things, focused on problems of the structure of commission rates and procedures, and standards for setting and reviewing rate levels. Id., pt. 5, p. 102. The SEC found that the rigid commission rate structure based on value of the round lot was causing a variety of 'questionable consequences,' such as 'give-ups' and the providing of special services for certain large, usually institutional customers. These attempts indirectly to achieve rate alterations made more difficult the administration of the rate structure and clouded the cost data used as the basis for determination of rates. These effects were believed by the SEC to necessitate a complete study of the structure. Moreover, the SEC concluded that methods for determining the reasonableness of rates were in need of overhaul. Not only was there a need for more complete information about the economics of the securities business and commission rates in particular, but also for a determination and articulation of the criteria important in arriving at a reasonable rate structure. Hence, while the study did not produce any major immediate changes in commission rate structure or levels, it did constitute a careful articulation of the problems in the structure and of the need for further studies that would be essential as a basis for future changes.
23
Meanwhile, the NYSE began an investigation of its own into the particular aspect of volume discounts from the fixed commission rates. App. A219—A220. This study determined that a volume discount and various other changes were needed, and so recommended to the SEC. The Commission responded in basic agreement. Letter dated Dec. 22, 1965, from SEC Chairman Cohen to NYSE President Funston, App. A249. The NYSE study continued over the next few years and final conclusions were presented to the SEC in early 1968. Id., at A253.7
24
In 1968, the SEC, while continuing the study started earlier in the decade, began to submit a series of specific proposals for change and to require their implementation by the exchanges. Through its Exchange Act Release No. 8324, May 28, 1968, App. A286, the SEC requested the NYSE to revise its commission rate schedule, including a reduction of rates for orders for round lots in excess of 400 shares or, alternatively, the elimination of minimum rate requirements for orders in excess of $50,000. These changes were viewed by the SEC as interim measures, pending further consideration 'in the context of the Commission's responsibilities to consider the national policies embodied both in the securities laws and in the antitrust laws.' Letter dated May 28, 1968, from SEC Chairman Cohen to NYSE President Haack, App. A285. In response to these communications, the NYSE (and Amex) eventually adopted a volume discount for orders exceeding 1,000 shares, as well as other alterations in rates, all approved by the SEC. See, e.g., letter of Aug. 30, 1968, from Chairman Cohen to President Haack, App. A310; memorandum dated Sept. 20, 1968, Amex Subcommittee on Commission Structure, App. A104.
25
Members of the securities exchanges faced substantial declines in profits in the late 1960's and early 1970. These were attributed by the NYSE to be due, at least in part, to the fact that general commission rates had not been increased since 1958. Statement of Feb. 13, 1970, by President Haack to the SEC, App. A313. The NYSE determined that a service charge of at least the lesser of $15 or 50% of the required minimum commission on orders of fewer than 1,000 shares should be imposed as an interim measure to restore financial health by bringing rates in line with costs. NYSE Proposed Rule 383, App. A331. See also letter dated Mar. 19, 1970, from President Haack to members of the NYSE, App. A327. This proposal, submitted to the SEC pursuant to its Rule 17a—8, was permitted by the SEC to be placed into operation on a 90-day interim basis. Letter dated Apr. 2, 1970, from SEC Chairman Budge to President Haack, App. A333. Continuation of the interim measure was thereafter permitted pending further rate structure hearings undertaken by the SEC. SEC Exchange Act Release No. 8923, July 2, 1970, App. A336. The interim rates remained in effect until the rate structure change of March 1972.
26
In 1971 the SEC concluded its hearings begun in 1968. Finding that 'minimum commissions on institutional size orders are neither necessary nor appropriate,' the SEC announced that it would not object to competitive rates on portions of orders above a stated level. Letter dated Feb. 3, 1971, from SEC Commissioner Smith to President Haack, App. A353. See also SEC Exchange Act Release No. 9007, Oct. 22, 1970, App. A348. Although at first supporting a $100,000 order as the cutoff below which fixed rates would be allowed, ibid., the SEC later decided to permit use of $500,000 as the breakpoint. After a year's use of this figure, the SEC required the exchanges to reduce the cutoff point to $300,000 in April 1972. Statement of the SEC on the Future Structure of the Securities Markets, Feb. 2, 1972, App. A369, A387, A388 (Policy Study).
27
The 1972 Policy Study emphasized the problems of the securities markets, and attributed as a major cause of those problems the prevailing commission rate structure. The Policy Study noted:
28
'Our concern with the fixed minimum commission . . . is not only with the level of the rate structure but with its side effects as well. Of these, perhaps the most important are the following:
29
'(a) Dispersion of trading in listed securities.
30
'(b) Reciprocal practices of various kinds.
31
'(c) Increasing pressure for exchange membership by institutions.' Id., at A385.
32
Since commission rates had been fixed for a long period of time, however, and since it was possible that revenue would decline if hasty changes were made, the SEC believed that there should be no rush to impose competitive rates. Rather, the effect of switching to competition should be gauged on a step-by-step basis, and changes should be made 'at a measured, deliberate pace.' Id., at A387. The result of the introduction of competitive rates for orders exceeding $500,000 was found to be a substantial reduction in commissions, with the rate depending on the size of the order. In view of this result, the SEC determined to institute competition in the $300,000—$500,000 range as well.
33
Further reduction followed relatively quickly. By March 29, 1973, the SEC was considering requiring the reduction of the breakpoint on competitive rates to orders in excess of $100,000. SEC Policy Statement on the Structure of a Central Market System 3. In June, the SEC began hearings on the rate schedules, stimulated in part by a request by the NYSE to permit an increase of 15% of the current rate on all orders from $5,000 to $300,000, and to permit a minimum commission on small orders (below $5,000) as well. SEC Exchange Act Release No. 10206, June 6, 1973, Documentary Appendix to Brief for SEC as Amicus Curiae 24 (Doc.App.). Three months later, after completion of the hearings, the SEC determined that it would allow the increases. SEC Exchange Act Release No. 10383, Sept. 11, 1973,8 Doc.App. 27. The SEC also announced, however, that '(i)t will act promptly to terminate the fixing of commission rates by stock exchanges after April 30, 1975, if the stock exchanges do not adopt rule changes achieving that result.' Id., at 28.
34
Elaboration of the SEC's rationale for this phasing out of fixed commission rates was soon forthcoming. In December 1973, SEC Chairman Garrett noted that the temporary increase in fixed rates (through April 1975) was permitted because of the inflation in the cost of operating the Exchanges, the decline in the volume of transactions on the exchanges, and the consequently severe financial losses for the members. SEC Exchange Act Release No. 10560, Dec. 14, 1973, Doc.App. 29. Indeed, without the rate increase, 'the continued deterioration in the capital positions of many member firms was foreseeable, with significant capital impairment and indirect, but consequential, harm to investors the likely result.' Id., at 36. The rate increase also would forestall the possibility that the industry would be impaired during transition to competitive rates and other requirements. This view conformed to the suggestion of Senator Williams, Chairman of the Subcommittee on Securities of the Senate Committee on Banking, Housing and Urban Affairs. See statement dated July 27, 1973, of Senator Williams submitted to the SEC, cited in Exchange Act Release No. 10560 n. 12, Doc.App. 37. Although not purporting to elucidate fully its reasons for abolishing fixed rates, the SEC did suggest several considerations basic to its decision: the heterogeneous nature of the brokerage industry; the desirability of insuring trading on, rather than off, the Exchanges; doubt that small investors are subsidized by large institutional investors under the fixed rate system; and doubt that small firms would be forced out of business if competitive rates were required.
35
In response to a request by the NYSE, the SEC permitted amendment to allow competitive rates on nonmember orders below $2,000. SEC Exchange Act Release No. 10670, Mar. 7, 1974, Doc.App. 42. Hearings on intramember commission rates were announced in April 1974. SEC Exchange Act Release No. 10751, Apr. 23, 1974, Doc.App. 45. The SEC concluded that intramember rates should not be fixed beyond April 30, 1975. SEC Exchange Act Release No. 11019, Sept. 19, 1974, Doc.App. 60. At this time the SEC stated:
36
'(I)t presently appears to the Commission that it is necessary and appropriate (1) for the protection of investors, (2) to insure fair dealing in securities traded in upon national securities exchanges, and (3) to insure the fair administration of such exchanges, that the rules and practices of such exchanges that require, or have the effect of requiring, exchange members to charge any person fixed minimum rates of commission, should be eliminated.' Id., at 63.
37
The SEC formally requested the exchanges to make the appropriate changes in their rules. When negative responses were received from the NYSE and others, the SEC released for public comment proposed Securities Exchange Act Rules 19b—3 and 10b—22. Proposed Rule 19b—3, applicable to intramember and nonmember rates effective May 1, 1975, would prohibit the exchanges from using or compelling their members to use fixed rates of commission. It also would require the exchanges to provide explicitly in their rules that nothing therein require or permit arrangements or agreements to fix rates. Proposed Rule 10b—22 would prohibit agreements with respect to the fixing of commission rates by brokers, dealers, or members of the exchanges. See SEC Exchange Act Release No. 11073, Oct. 24, 1974, Doc.App. 65.
38
Upon the conclusion of hearings on the proposed rules, the SEC determined to adopt Rule 19b—3, but not Rule 10b—22. SEC Exchange Act Release No. 11203, Jan. 23, 1975, Doc.App. 109. Effective May 1, 1975, competitive rates were to be utilized by exchange members in transactions of all sizes for persons other than members of the exchanges. Effective May 1, 1976, competitives rates were to be mandatory in transactions for members as well, i.e., floor brokerage rates. Competition in floor brokerage rates was so deferred until 1976 in order to permit an orderly transition.9 The required transition to competitive rates was based on the SEC's conclusion that competition, rather than fixed rates, would be in the best interests of the securities industry and markets, as well as in the best interests of the investing public and the national economy. Ibid. This determination was not based on a simplistic notion in favor of competition, but rather on demonstrated deficiencies of the fixed commission rate structure. Specifically mentioned by the SEC were factors such as the rigidity and delay inherent in the fixed rate system, the potential for distortion, evasion, and conflicts of interest, and fragmentation of markets caused by the fixed rate system. Acknowledging that the fixed rate system perhaps was not all bad in all periods of its use, the SEC explicitly declined to commit itself to permanent abolition of fixed rates in all cases: in the future circumstances might arise that would indicate that reinstitution of fixed rates in certain areas would be appropriate.
39
The SEC dismissed the arguments against competitive rates that had been raised by various proponents of the status quo. First, the SEC deemed the possibility of destructive competition to be slim, because of the nature of the cost curve in the industry.10 Second, there was substantial doubt whether maintenance of fixed rates, in fact, provided various subsidies that would be beneficial to the operation of the securities markets. For example, it was unlikely that small investors reaped a subsidy from higher rates charged larger investors, because of separation of the business between large and small investors. Nor did the SEC believe that regional brokers were substantially benefited by maintenance of fixed rates. Third, the possibility of an exodus from membership on the exchanges was unlikely, and should be dealt with only as it occurred. In any event, inasmuch as the SEC anticipated that there would be detailed studies of the operation of the competitive rates effectuated by its orders, any problems that arose could be effectively resolved upon further consideration.
40
During this period of concentrated study and action by the SEC, lasting more than a decade, various congressional committees undertook their own consideration of the matter of commission rates. Early in 1972, the Senate Subcommittee on Securities concluded that fixed commission rates must be eliminated on institution-size transactions, and that lower fees should be permitted for small transactions with 'unbundled' services than for those having the full range of brokerage services. Senate Committee on Banking, Housing and Urban Affairs, 92d Cong., 2d Sess., Securities Industry Study (For the Period Ended Feb. 4, 1972), 4 (1972) (containing a report of the Subcommittee on Securities). The Subcommittee objected particularly to the failure of the fixed rate system to produce 'fair and economic' rates, id., at 59, and to distortion in the rate structure in favor of the institutionally oriented firms.
41
The Subcommittee was perturbed at the SEC's actions regarding fixed commission rates for several reasons. First, the Subcommittee noted that in litigation the SEC had taken the position that it had not approved NYSE rate changes in 1971, but had merely failed to object to the introduction of the new rates, id., at 58, referring to the SEC position in Independent Investor Protective League v. SEC (SDNY No. 71—1924), dismissed without opinion (CA2 1971). This posture precluded review of the SEC action in the Court of Appeals.11 Second, the Subcommittee was displeased with the length of time the SEC took in arriving at its decisions regarding commission rate structure and level. Third, the Subcommittee feared that statements of the SEC lacked clarity and perpetuated uncertainty as to the status of fixed rates on transactions exceeding $100,000. Therefore, the Subcommittee report stressed:
42
'(I)t is essential that fixed commission rates be phased out in an orderly and systematic manner, and that a date certain be set promptly for elimination of fixed commissions on institutional-size transactions, which have resulted in the most serious distortions. Based on the SEC's conclusions and on testimony submitted to the SEC and to this Subcommittee, this could best be achieved by eliminating fixed rates on orders in excess of $100,000.' Securities Industry Study, supra, at 60.
43
The House Committee on Interstate and Foreign Commerce, in a report issued only six months after the Senate Report, supra, concluded that fixed rates of commission were not in the public interest and should be replaced by competitively determined rates for transactions of all sizes. Such action should occur 'without excessive delay.' H.R.Rep. No. 92—1519, pp. xiv, 141, 144—145, 146 (1972). Although prodding the SEC to take quick measures to introduce competitive rates for transactions of all sizes, the House Committee determined to defer enacting legislation so long as reasonable progress was being made. These conclusions resulted from a detailed study, by the Subcommittee, of asserted costs and benefits of competitive versus fixed rates, and reflected information gained through lengthy hearings. Id., at 131—146, and related Study of the Securities Industry, Hearings before the Subcommittee on Commerce and Finance of the House Committee on Interstate and Foreign Commerce, 92d Cong., 1st and 2d Sess., serials 92—37 to 92—37h (1971—1972). Similarly, after lengthy analysis, the Senate Subcommittee on Securities concluded both that competitive rates must be introduced at all transaction levels, and that legislation was not required at that time in view of the progress made by the SEC. Securities Industry Study Report of the Subcommittee on Securities of the Senate Committee on Banking, Housing and Urban Affairs, S.Doc. No. 93—13, pp. 5—7, 43—63 (1973), and Hearings on S. 3169 before the Subcommittee on Securities of the Senate Committee on Banking, Housing and Urban Affairs, 92d Cong., 2d Sess. (1972).
44
In 1975 both Houses of Congress did in fact enact legislation dealing directly with commission rates. Although the bills initially passed by each chamber differed somewhat, the Conference Committee compromised the differences. Compare H.R. 4111, § 6(p), as discussed in H.R.Rep. No. 94—123, pp. 51—53, 67—68 (1975), with S. 249, § 6(e), as discussed in S.Rep. No. 94—75, pp. 71—72, 98 (1975), U.S.Code Cong. & Admin.News 1975, p. 613. The measure, as so compromised, was signed by the President on June 4, 1975, 89 Stat. 97.
45
The new legislation amends § 19(b) of the Securities Exchange Act to substitute for the heretofore existing provision a scheme for SEC review of proposed rules and rule changes of the various self-regulatory organizations. Reference to commission rates is now found in the newly amended § 6(e), generally providing that after the date of enactment 'no national securities exchange may impose any schedule or fix rates of commissions, allowances, discounts, or other fees to be charged by its members.' 89 Stat. 107. An exception is made for floor brokerage rates which may be fixed by the exchanges until May 1, 1976. Further exceptions from the ban against fixed commissions are provided if approved by the SEC after certain findings: prior to and including November 1, 1976, the Commission may allow the exchanges to fix commissions if it finds this to be 'in the public interest,' § 6(e)(1)(A); after November 1, 1976, the exchanges may be permitted by the SEC to fix rates of commission if the SEC finds (1) the rates are reasonable in relation to costs of service (to be determined pursuant to standards of reasonableness published by the SEC), and (2) if the rates 'do not impose any burden on competition not necessary or appropriate in furtherance of the purposes of this title, taking into consideration the competitive effects of permitting such schedule or fixed rates weighed against the competitive effects of other lawful actions which the Commission is authorized to take under this title.' § 6(e)(1) (B)(ii). The statute specifically provides that even if the SEC does permit the fixing of rates pursuant to one of these exceptions, the SEC by rule may abrogate such practice if it finds that the fixed rates 'are no longer reasonable, in the public interest, or necessary to accomplish the purposes of this title.' § 6(e)(2).
46
The new section also provides a detailed procedure which the SEC must follow in arriving at its decision to permit fixed commission rates. § 6(e)(4). This procedure was described in the Conference Report as 'comparable to that provided for in Section 18 of the Federal Trade Commission Act, 15 U.S.C. (s) 58, which is more formal than normal notice and comment rulemaking under Section 553 of title 5 U.S.C. but less formal than 'on the record' procedure under Section(s) 556 and 557 of title 5 U.S.C.' H.R.Conf.Rep. No. 94 229, p. 108 (1975), U.S. Code Cong. & Admin.News 1975, p. 773. Finally, the amendments require the SEC to file regularly until December 31, 1976, with both branches of Congress, reports concerning the effect of competitive rates on the public interest, investors, and the securities markets. § 6(e)(3).12
47
As of May 1, 1975, pursuant to order of the SEC, fixed commission rates were eliminated and competitive rates effectuated. Although it is still to soon to determine the total effect of this alteration, there have been no reports of disastrous effects for the public, investors, the industry, or the markets.
48
This lengthy history can be summarized briefly: In enacting the Securities Exchange Act of 1934, the Congress gave clear authority to the SEC to supervise exchange self-regulation with respect to the 'fixing of reasonable rates of commission.' Upon SEC determination that exchange rules or practices regarding commission rates required change in order to protect investors or to insure fair dealing, the SEC was authorized to require adoption of such changes as were deemed necessary or appropriate. This legislative permission for the fixing of commission rates under the supervision of the SEC occurred seven years after this Court's decision in United States v. Trenton Potteries Co., 273 U.S. 392, 47 S.Ct. 377, 71 L.Ed. 700 (1927), to the effect that price fixing was a per se violation of the Sherman Act. Since the Exchange Act's adoption, and primarily in the last 15 years, the SEC has been engaged in thorough review of exchange commission rate practices. The committees of the Congress, while recently expressing some dissatisfaction with the progress of the SEC in implementing competitive rates, have generally been content to allow the SEC to proceed without new legislation. As of May 1, 1975, the SEC, by order, has abolished fixed rates. And new legislation, enacted into law June 5, 1975, codifies this result, although still permitting the SEC some discretion to reimpose fixed rates if warranted.
IV
49
This Court has considered the issue of implied repeal of the antitrust laws in the context of a variety of regulatory schemes and procedures. Certain axioms of construction are now clearly established. Repeal of the antitrust laws by implication is not favored and not casually to be allowed. Only where there is a 'plain repugnancy between the antitrust and regulatory provisions' will repeal be implied. United States v. Philadelphia National Bank, 374 U.S. 321, 350—351, 83 S.Ct. 1715, 1734—1735, 10 L.Ed.2d 915 (1963). See also Merrill Lynch, Pierce, Fenner & Smith v. Ware, 414 U.S., at 126, 94 S.Ct., at 389; Hughes Tool Co. v. Trans World Airlines, Inc., 409 U.S. 363, 385—389, 93 S.Ct. 647, 659 662, 34 L.Ed.2d 577 (1973); Carnation Co. v. Pacific Conference, 383 U.S. 213, 217—218, 86 S.Ct. 781, 784—785, 15 L.Ed.2d 709 (1966); Silver v. New York Stock Exchange, 373 U.S., at 357—358, 83 S.Ct. at 1257—1258; United States v. Borden Co., 308 U.S. 188, 198—199, 60 S.Ct. 182, 188—189, 84 L.Ed. 181 (1939). See United States v. National Assn. of Securities Dealers, 422 U.S. 694, at 719—720, 729—730, 95 S.Ct. 2427, 2443, 2447—2448, 45 L.Ed.2d 486.
50
The starting point for our consideration of the particular issue presented by this case, viz., whether the antitrust laws are impliedly repealed or replaced as a result of the statutory provisions and administrative and congressional experience concerning fixed commission rates, of course, is our decision in Silver. There the Court considered the relationship between the antitrust laws and the Securities Exchange Act, and did so specifically with respect to the action of an exchange in ordering its members to remove private direct telephone connections with the offices of nonmembers. Such action, absent any immunity derived from the regulatory laws, would be a per se violation of § 1 of the Sherman Act. 373 U.S., at 347, 83 S.Ct. at 1251. Concluding that the proper approach to the problem was to reconcile the operation of the antitrust laws with a regulatory scheme, the Court established a 'guiding principle' for the achievement of this reconciliation. Under this principle, '(r)epeal is to be regarded as implied only if necessary to make the Securities Exchange Act work, and even then only to the minimum extent necessary.' Id., at 357, 83 S.Ct. at 1257.
51
In Silver, the Court concluded that there was no implied repeal of the antitrust laws in that factual context because the Exchange Act did not provide for SEC jurisdiction or review of particular applications of rules enacted by the exchanges. It noted:
52
'Although the Act gives to the Securities and Exchange Commission the power to request exchanges to make changes in their rules, § 19(b), 15 U.S.C. § 78s(b), and impliedly, therefore, to disapprove any rules adopted by an exchange, see also § 6(a)(4), 15 U.S.C. § 78f(a)(4), it does not give the Commission jurisdiction to review particular instances of enforcement of exchange rules.' Ibid.
53
At the time Silver was decided, both the rules and constitution of the NYSE provided that the Exchange could require discontinuance of wire service between the office of a member and a nonmember at any time. There was no provision for notice or statement of reasons. While these rules were permissible under the general power of the exchanges to adopt rules regulating relationships between members and nonmembers, and the SEC could disapprove the rules, the SEC could not forbid or regulate any particular application of the rules. Hence, the regulatory agency could not prevent application of the rules that would have undesirable anticompetitive effects; there was no governmental oversight of the exchange's self-regulatory action, and no method of insuring that some attention at least was given to the public interest in competition.
54
The Court, therefore, concluded that the absence in Silver of regulatory supervision over the application of the exchange rules prevented any conflict arising between the regulatory scheme and the antitrust laws. See also Georgia v. Pennsylvania R. Co., 324 U.S. 439, 455—457, 65 S.Ct. 716, 89 L.Ed. 1051 (1945), where the Court found no conflict because the regulatory agency, (the Interstate Commerce Commission) had no jurisdiction over the rate-fixing combination involved. The Court in Silver cautioned, however, that '(s)hould review of exchange self-regulation be provided through a vehicle other than the antitrust laws, a different case as to antitrust exemption would be presented.' 373 U.S., at 360, 83 S.Ct. at 1258. It amplified this statement in a footnote:
55
'Were there Commission jurisdiction and ensuing judicial review for scrutiny of a particular exchange ruling . . . a different case would arise concerning exemption from the operation of laws designed to prevent anticompetitive activity, an issue we do not decide today.' Id., at 358, n. 12, 83 S.Ct. at 1257.
56
It is patent that the case presently at bar is, indeed, that 'different case' to which the Court in Silver referred. In contrast to the circumstances of Silver, § 19(b) gave the SEC direct regulatory power over exchange rules and practices with respect to 'the fixing of reasonable rates of commission.' Not only was the SEC authorized to disapprove rules and practices concerning commission rates, but the agency also was permitted to require alteration or supplementation of the rules and practices when 'necessary or appropriate for the protection of investors or to insure fair dealings in securities traded in upon such exchange.' Since 1934 all rate changes have been brought to the attention of the SEC, and it has taken an active role in review of proposed rate changes during the last 15 years. Thus, rather than presenting a case of SEC impotence to affect application of exchange rules in particular circumstances, this case involves explicit statutory authorization for SEC review of all exchange rules and practices dealing with rates of commission and resultant SEC continuing activity.
57
Having determined that this case is, in fact, the 'different case,' we must then make inquiry as to the proper reconciliation of the regulatory and antitrust statutes involved here, keeping in mind the principle that repeal of the antitrust laws will be 'implied only if necessary to make the Securities Exchange Act work, and even then only to the minimum extent necessary.' 373 U.S., at 357, 83 S.Ct., at 1257. We hold that these requirements for implied repeal are clearly satisfied here. To permit operation of the antitrust laws with respect to commission rates, as urged by petitioner Gordon and the United States as amicus curiae, would unduly interfere, in our view, with the operation of the Securities Exchange Act.
58
As a threshold matter, we believe that the determination of whether implied repeal of the antitrust laws is necessary to make the Exchange Act provisions work is a matter for the courts, and in particular, for the courts in which the antitrust claims are raised. Silver exemplifies this responsibility. In some cases, however, the courts may defer to the regulatory agency involved, in order to take advantage of its special expertise. The decision in the end, however, is for the courts. Ricci v. Chicago Mercantile Exchange, 409 U.S. 289, 306—308, 93 S.Ct. 573, 582—584, 34 L.Ed.2d 525 (1973).
59
The United States, as amicus curiae, suggests not only that the immunity issue is ultimately for the courts to decide, but also that the courts may reach the decision only on a full record. A summary record, as compiled in this case on motions for summary judgment, though voluminous, is said to be an inadequate basis for resolution of the question. We disagree. In this case nothing is to be gained from any further factual development that might be possible with a trial on the merits. We have before us the detailed experience of the SEC regulatory activities, and we have the debates in the Congress culminating in the 1975 legislation. This information is sufficient to permit an informed decision as to the existence of an implied repeal.
60
Our disposition of this case differs from that of the Seventh Circuit in Thill Securities Corp. v. New York Stock Exchange, 433 F.2d 264 (1970), cert. denied, 401 U.S. 994, 91 S.Ct. 1232, 28 L.Ed.2d 532 (1971), where antitrust immunity for the NYSE's antirebate rule was claimed and denied. The Court of Appeals reversed a grant of summary judgment in favor of the NYSE, and remanded for further evidence regarding the effects of the antirebate rule on competition, the degree of actual review by the SEC, and the extent to which the rule was necessary to make the Exchange Act work. 433 F.2d, at 270. This ruling is persuasively distinguishable on at least two grounds from the case at bar: First, there was no evidence presented regarding the extent of SEC review of the challenged rule. Second, the antirebate practice differs from fixed commission rates in that (1) it was not among the items specifically listed in § 19(b), although the practice might reasonably be thought to be related to the fixing of commission rates, and (2) it does not necessarily apply uniformly, and may be applied in a discriminatory manner. We do not believe it necessary, in the circumstances of this case, to take further evidence concerning the competitive effects of fixed rates, or the necessity of fixed rates as a keystone of the operation of exchanges under the Exchange Act. To the extent that the Court of Appeals in Thill viewed the question of implied repeal as a question of fact, concerning whether the particular rule itself is necessary to make the Act work, we decline to follow that lead.
61
We also regard our specific disposition in Ricci v. Chicago Mercantile Exchange, supra, as inapposite for this case. In Ricci, an antitrust complaint charged that the Chicago Mercantile Exchange arbitrarily transferred a membership, in violation of both the Commodity Exchange Act, 42 Stat. 998, as amended, 7 U.S.C. § 1 et seq., and the exchange rules. We held that consideration of the antitrust claims should be stayed pending determination by the Commodity Exchange Commission as to whether the actions taken were in violation of the Act or the rules. Although we noted that the Act did not confer a general antitrust immunity, we stated that if the actions complained of were in conformity with the Act and exchange rules, a substantial question would be presented concerning whether the actions were insulated from antitrust attack. It is manifest, then, that Ricci involved a deference to the expertise of a regulatory agency in determining if the activities violated the Act or rules, and did not represent a decision on antitrust immunity where the conduct charged was clearly encompassed by the legislation or rules and where there was no factual dispute.
62
We believe that the United States, as amicus, has confused two questions. On the one hand, there is a factual question as to whether fixed commission rates are actually necessary to the operation of the exchanges as contemplated under the Securities Exchange Act. On the other hand, there is a legal question as to whether allowance of an antitrust suit would conflict with the operation of the regulatory scheme which specifically authorizes the SEC to oversee the fixing of commission rates. The factual question is not before us in this case. Rather, we are concerned with whether antitrust immunity, as a matter of law, must be implied in order to permit the Exchange Act to function as envisioned by the Congress. The issue of the wisdom of fixed rates becomes relevant only when it is determined that there is no antitrust immunity.
63
The United States appears to suggest that only if there is a pervasive regulatory scheme, as in the public utility area, can it be concluded that the regulatory scheme ousts the antitrust laws. Brief for United States, as Amicus Curiae 16, 35. It is true that in some prior cases we have been concerned with the question of the pervasiveness of the regulatory scheme as a factor in determining whether there is an implied repeal of the antitrust laws. See, e.g., Otter Tail Power Co. v. United States, 410 U.S. 366, 373—375, 93 S.Ct. 1022, 1027—1028, 35 L.Ed.2d 359 (1973). In the present case, however, respondents do not claim that repeal should be implied because of a pervasive regulatory scheme, but because of the specific provision of § 19(b)(9) and the regulatory action thereunder. Brief for Respondents 35. Hence, whether the Exchange Act amounts to pervasive legislation ousting the antitrust acts is not a question before us.
64
We agree with the District Court and the Court of Appeals, and with respondents, that to deny antitrust immunity with respect to commission rates would be to subject the exchanges and their members to conflicting standards. It is clear from our discussion in Part III, supra, that the commission rate practices of the exchanges have been subjected to the scrutiny and approval of the SEC.13 If antitrust courts were to impose different standards or requirements, the exchanges might find themselves unable to proceed without violation of the mandate of the courts or of the SEC. Such different standards are likely to result because the sole aim of antitrust legislation is to protect competition, whereas the SEC must consider, in addition, the economic health of the investors, the exchanges, and the securities industry.14 Given the expertise of the SEC, the confidence the Congress has placed in the agency, and the active roles the SEC and the Congress have taken, permitting courts throughout the country to conduct their own antitrust proceedings would conflict with the regulatory scheme authorized by Congress rather than supplement that scheme.15
65
In Part III, supra, we outlined the legislative and regulatory agency concern with the fixing of commission rates. Beginning with the enactment of the Securities Exchange Act in 1934, the Congress persistently has provided for SEC authority to regulate commission rates. Although SEC action in the early years appears to have been minimal, it is clear that since 1959 the SEC has been engaged in deep and serious study of the commission rate practices of the exchanges and of their members, and has required major changes in those practices. The ultimate result of this long-term study has been a regulatory decree requiring abolition of the practice of fixed rates of commission as of May 1, 1975, and the institution of full and complete competition. Significantly, in the new legislation enacted subsequent to the SEC's abolition of commision rate fixing, the Congress has indicated its continued approval of SEC review of the commission rate structure. Although legislatively enacting the SEC regulatory provision banning fixed rates, the Congress has explicitly provided that the SEC, under certain circumstances and upon the making of specified findings, may allow reintroduction of fixed rates.
66
In sum, the statutory provision authorizing regulation, § 19(b)(9), the long regulatory practice, and the continued congressional approval illustrated by the new legislation, point to one, and only one, conclusion. The Securities Exchange Act was intended by the Congress to leave the supervision of the fixing of reasonable rates of commission to the SEC. Interposition of the antitrust laws, which would bar fixed commission rates as per se violations of the Sherman Act, in the face of positive SEC action, would preclude and prevent the operation of the Exchange Act as intended by Congress and as effecutated through SEC regulatory activity. Implied repeal of the antitrust laws is, in fact, necessary to make the Exchange Act work as it was intended; failure to imply repeal would render nugatory the legislative provision for regulatory agency supervision of exchange commission rates.
67
Affirmed.
68
Mr. Justice DOUGLAS, concurring.
69
The Court relies upon three factors—statutory authorization for regulation by the Securities and Exchange Commission (SEC), a long history of actual SEC oversight and approval, and continued congressional affirmation of the SEC's role—in holding that the system of fixed commission rates employed on the securities exchanges is immune from antitrust attack. While I join that opinion, I write separately to emphasize the single factor which, for me, is of prime importance.
70
The mere existence of a statutory power of review by the SEC over fixed commission rates cannot justify immunizing those rates from antitrust challenges. The antitrust laws are designed to safeguard a strong public interest in free and open competition, and immunity from those laws should properly be implied only when some equivalent mechanism is functioning to protect that public interest. Only if the SEC is actively and aggressively exercising its powers of review and approval can we be sure that fixed commission rates are being monitored in the manner which Congress intended. Cf. Hughes Tool Co. v. Trans World Airlines, Inc., 409 U.S. 363, 387—389, 93 S.Ct. 647, 660—662, 34 L.Ed.2d 577 (1973).
71
The Court reviews at length the history of the SEC's involvement with fixed commission rates. In light of that history, I am satisfied to join the opinion of the Court and affirm the judgment below.
72
Mr. Justice STEWART, with whom Mr. Justice BRENNAN, joins, concurring.
73
While joining the opinion of the Court, I add a brief word. The Court has never held, and does not hold today, that the antitrust laws are inapplicable to anticompetitive conduct simply because a federal agency has jurisdiction over the activities of one or more of the defendants. An implied repeal of the antitrust laws may be found only if there exists a 'plain repugnancy between the antitrust and regulatory provisions.' United States v. Philadelphia Nat. Bank, 374 U.S. 321, 351, 83 S.Ct. 1715, 1735, 10 L.Ed.2d 915.
74
The mere existence of the Commission's reserve power of oversight with respect to rules initially adopted by the exchanges, therefore, does not necessarily immunize those rules from antitrust attack. Rather, 'exchange self-regulation is to be regarded as justified in response to antitrust charges only to the extent necessary to protect the achievement of the aims of the Securities Exchange Act.' Silver v. New York Stock Exchange, 373 U.S. 341, 361, 83 S.Ct. 1246, 1259, 10 L.Ed.2d 389. The question presented by the present case, therefore, is whether exchange rules fixing minimum commission rates are 'necessary to make the Securities Exchange Act work.' Id., at 357, 83 S.Ct. at 1257.
75
As the Court's opinion explains, see ante, at 663-667, when Congress enacted the Securities Exchange Act of 1934, it was fully aware of the well-established exchange practice of fixing commission rates, which had existed continuously since 1792. Nevertheless, Congress chose not to prohibit that practice. Instead, in § 19(b)(9) of the 1934 Act Congress specifically empowered the Commission to exercise direct supervisory authority over exchange rules respecting 'the fixing of reasonable rates of commission.' Congress thereby unmistakably determined that, until such time as the Commission ruled to the contrary, exchange rules fixing minimum commission rates would further the policies of the 1934 Act. Accordingly, although the Act contains no express exemption from the antitrust laws for exchange rules establishing fixed commission rates, under Silver that particular instance of exchange self-regulation is immune from antitrust attack.
1
The member firms are Merrill Lynch, Pierce, Fenner & Smith, Inc., and Bache & Company, Inc.
2
Petitioner urged that these practices were in violation of the Robinson-Patman Price Discrimination Act, 49 Stat. 1528, 15 U.S.C. § 13a.
3
The relief requested included an injunction prohibiting the implementation of certain negotiated commission rates that were to be placed in effect on April 5, 1971, or, alternatively, requiring that negotiated rates be available for transactions of any size. Petitioner also requested treble damages amounting to $1.5 billion and an award of attorneys' fees of $10 million plus interest and costs.
4
In short, the District Court concluded that (1) since petitioner had never applied for exchange membership, he was not in a position to complain that he was arbitrarily precluded from membership; (2) the Exchange Act's § 3(a)(3), 15 U.S.C. § 78c(a)(3), by its definition of 'member,' specifically limited access of nonmembers to the Exchanges; and (3) the Robinson-Patman Act did not apply to services or intangibles, but only to commodities or goods, and the latter were not involved in this litigation.
5
See, for example, the comments of the report in reviewing evidence on fixed commissions:
'As stated by Mr. Sturgis, a former president of the exchange, since 1876 a governor, and now the chairman of the law committee . . .:
"The violation of the commission law we regard as one of the most infamous crimes that a man can commit against his fellow members in the exchange, and as a gross breach of good faith and wrongdoing of the most serious nature, and we consider it a crime that we should punish as severely as, in the judgment of the governing committee, the constitution permits.
"Q. . . . But the reach of that rule (referring to the rule for uniform commissions) by a broker you consider the most heinous crime he can commit?
"A. It is absolute bad faith to his fellow men.'
'The rule is rigidly enforced by suspension from one to five years for a first violation and expulsion for a second. . . . The acknowledged object is to prevent competition amongst the members.' H.R.Rep.No.1593, 62d Cong., 3d Sess., 39 (1913).
6
Since 1947, rates generally have been based on the value of stock in a round lot, SEC Report of Special Study of Securities Markets, H.R.Doc.No.95, 88th Cong., 1st Sess., pt. 5, p. 103 (1963). There was no volume discount at the time of this SEC report.
7
The basic NYSE proposal included some volume discounts, continuation of limited give-ups if directed by the customers, termination of 'rebative' reciprocal practices, discounts for certain nonmembers, and limitation of membership and discounts to 'bona fide broker-dealers.' App. A255.
8
The increases were permitted through March 31, 1974, without restriction. Such increases could continue from April 1, 1974, through April 30, 1975, if the NYSE permitted its members to charge in excess of the old rate and also permitted reductions in brokerage services in return for discounts from the rate.
9
It was also believed that members of the exchanges had not expected that floor brokerage rates would be included among those required to be made competitive, and that extra time for planning and adjustment would be needed. The SEC noted, additionally, that the impact of floor brokerage rates on public investors was significantly less than the impact of public rates, i.e., the rates on transactions for nonmembers. SEC Exchange Act Release No. 11203, Jan. 23, 1975, Doc.App. 109, 110.
10
In order for destructive competition to occur on a large scale, fixed costs must be a high percentage of total costs, and there must be economies of scale in a wide range of production. Neither of these factors was found to be present in the brokerage industry. Id., at 138—139.
11
This view has been rejected by the United States Court of Appeals for the District of Columbia Circuit. Independent Broker-Dealers' Trade Assn. v. SEC, 142 U.S.App.D.C. 384, 442 F.2d 132, cert. denied, 404 U.S. 828, 92 S.Ct. 63, 30 L.Ed.2d 57 (1971). The SEC appears no longer to take this position. See Brief for SEC as Amicus Curiae 38—39, n. 45.
12
One further change in the 1975 amendments should be noted. The 1934 Act defined the term 'member' of an exchange as any person who, among other things, is permitted 'to make use of the facilities of an exchange for transactions thereon . . . with the payment of a commission or fee which is less than that charged the general public.' § 3(a)(3), 48 Stat. 883. This implied a likelihood of fixed rates for the general public, for otherwise it would have been difficult to determine that a member, in fact, was given lower rates. This definition was deleted in the 1975 amendments and has been replaced with a general definition of a member of an exchange. § 3(a)(3)(A), 89 Stat. 97.
13
We believe that this degree of scrutiny and approval by the SEC is not significantly different for our purposes here than an affirmative order to the exchanges to follow fixed rates. The United States, as amicus curiae, agrees that if the SEC 'were to order the exchanges to adhere to a fixed commission rate system of some kind, no antitrust liability could arise.' Brief for United States as Amicus Curiae 48. We conclude that immunity should not rest on the existence of a formal order by the SEC, but that the actions taken by the SEC pursuant to § 19(b)(9), as outlined in Part III, supra, are to be viewed as having an effect equivalent to that of a formal order.
14
Compare Pan American World Airways v. United States, 371 U.S. 296, 305—310, 83 S.Ct. 476, 482—485, 9 L.Ed.2d 325 (1963), with United States v. Philadelphia National Bank, 374 U.S. 321, 350—352, 83 S.Ct. 1715, 1734—1736, 10 L.Ed.2d 915 (1963). In the latter case two factors pointed against antitrust immunity: (1) congressional intent in the Bank Merger Act not to immunize activities from antitrust legislation, and (2) the lack of conflict between the Bank Merger Act and Clayton Act standards. Also, there was an absence of continuing oversight by the Comptroller General of the Currency. These factors are not present in, and are inapplicable to, the case at bar.
15
We note, of course, that judicial review of SEC action is available under the Administrative Procedure Act, 5 U.S.C. §§ 702 and 704, or under § 25 of the Securities Exchange Act, 15 U.S.C. § 78y. See also Independent Broker-Dealers' Trade Assn. v. SEC, 142 U.S.App.D.C. 384, 442 F.2d 132, cert. denied, 404 U.S. 828, 92 S.Ct. 63, 30 L.Ed.2d 57 (1971).
| 78
|
422 U.S. 891
95 S.Ct. 2585.
45 L.Ed.2d 623
UNITED STATES, Petitioner,v.Luis Antonio ORTIZ.
No. 73—2050.
Argued Feb. 18, 1975.
Decided June 30, 1975.
Syllabus*
The Fourth Amendment, held to forbid Border Patrol officers, in the absence of consent or probable cause, to search private vehicles at traffic checkpoints removed from the border and its functional equivalents, and for this purpose there is no difference between a checkpoint and a roving patrol. Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596, followed. Pp. 892-898.
Affirmed.
Mark L. Evans, Washington, D.C., for the United States.
Charles M. Sevilla, San Diego, Cal., for Luis Antonio Ortiz.
Mr. Justice POWELL delivered the opinion of the Court.
1
Border Patrol officers stopped respondent's car for a routine immigration search at the traffic checkpoint on Interstate Highway 5 at San Clemente, Cal., on November 12, 1973. They found three aliens concealed in the trunk, and respondent was convicted on three counts of knowingly transporting aliens who were in the country illegally. The Court of Appeals for the Ninth Circuit reversed the conviction in an unreported opinion, relying on dictum in its opinion in United States v. Bowen, 500 F.2d 960 (CA9 1974), aff'd, 422 U.S. 916, 95 S.Ct. 2569, 45 L.Ed.2d 641, to the effect that our decision in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), required probable cause for all vehicle searches in the border area, whether conducted by roving patrols or at traffic checkpoints. We granted certiorari. 419 U.S. 824, 95 S.Ct. 40, 42 L.Ed.2d 47 (1974).
2
Nothing in this record suggests that the Border Patrol officers had any special reason to suspect that respondent's car was carrying concealed aliens. Nor does the Government contend that the San Clemente checkpoint is a functional equivalent of the border. Brief for United States 16. The only question for decision is whether vehicle searches at traffic checkpoints, like the roving-patrol search in Almeida-Sanchez, must be based on probable cause.
3
* In Almeida-Sanchez we rejected the Government's contention that the Nation's strong interest in controlling immigration and the practical difficulties of policing the Mexican border combined to justify dispensing with both warrant and probable cause for vehicle searches by roving patrols near the border. The facts did not require us to decide whether the same rule would apply to traffic checkpoints, which differ from roving patrols in several important respects. 413 U.S., at 273, 93 S.Ct., at 2539; id., at 276, 93 S.Ct., at 2541 (Powell, J., concurring).
4
A consolidated proceeding on motions to suppress in this and similar cases produced an extensive factual record on the operation of traffic checkpoints in southern California. United States v. Baca, 368 F.Supp. 398 (SDCal.1973). The San Clemente checkpoint is 62 air miles and 66 road miles north of the Mexican border. It is on the principal highway between San Diego and Los Angeles, and over 10 million vehicles pass the checkpoint in a year. United States v. Martinez-Fuerte, 514 F.2d 308, 312 (CA9 1975). The District Court in Baca described the checkpoint as follows:
5
'Approximately one mile south of the checkpoint is a large black on yellow sign with flashing yellow lights over the highway stating 'ALL VEHICLES, STOP AHEAD, 1 MILE.' Three-quarters of a mile further north are two black on yellow signs suspended over the highway with flashing lights stating 'WATCH FOR BRAKE LIGHTS.' At the checkpoint, which is also the location of a State of California weighing station, are two large signs with flashing red lights suspended over the highway. These signs each state 'STOP HERE—U.S. OFFICERS.' Placed on the highway are a number of orange traffic cones funneling traffic into two lanes where a Border Patrol agent in full dress uniform, standing behind a white on red 'STOP' sign checks traffic. Blocking traffic in the unused lanes are official U.S. Border Patrol vehicles with flashing red lights. In addition, there is a permanent building which houses the Border Patrol office and temporary detention facilities. There are also floodlights for nighttime operation.' 368 F.Supp., at 410—411.
6
The Border Patrol would prefer to keep this checkpoint in operation continuously, but bad weather, heavey traffic, and personnel shortages keep it closed about one-third of the time. When it is open, officers screen all northbound traffic. If anything about a vehicle or its occupants leads an officer to suspect that it may be carrying aliens, he will stop the car and ask the occupants about their citizenship. If the officer's suspicion persists, or if the questioning enhances it, he will 'inspect' portions of the car in which an alien might hide.1 Operations at other checkpoints are similar, although the traffic at some is light enough that officers can stop all vehicles for questioning and routinely inspect more of them.
7
The Government maintains that these characteristics justify dispensing with probable cause at traffic checkpoints despite the Court's holding in Almeida-Sanchez. It gives essentially two reasons for distinguishing that case. First, a checkpoint officer's discretion in deciding which cars to search is limited by the location of the checkpoint. That location is determined by high-level Border Patrol officals, using criteria that include the degree of inconvenience to the public and the potential for safe operation, as well as the potential for detecting and deterring the illegal movement of aliens. By contrast, officers on roving patrol were theoretically free before Almeida-Sanchez to stop and search any car within 100 miles of the border. Second, the circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving-patrol stop. Roving patrols often operate at night on seldom-traveled roads, and their approach may frighten motorists. At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers' authority, and he is much less likely to be frightened or annoyed by the intrusion.
8
These differences are relevant to the constitutional issue, since the central concern of the Fourth Amendment is to protect liberty and privacy from arbitrary and oppressive interference by government officials. Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967); Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1833—1834, 16 L.Ed.2d 908 (1966). The Fourth Amendment's requirement that searches and seizures be reasonable also may limit police use of unnecessarily frightening or offensive methods of surveillance and investigation. See e.g., Terry v. Ohio, 392 U.S. 1, 16—17, 88 S.Ct. 1868, 1877—1878, 20 L.Ed.2d 889 (1968); Camara, supra, 387 U.S. at 531, 87 S.Ct. at 1732; Schmerber, supra, 384 U.S. at 771—772, 86 S.Ct. at 1836. While the differences between a roving patrol and a checkpoint would be significant in determining the propriety of the stop, which is considerably less intrusive than a search, Terry v. Ohio, supra, they do not appear to make any difference in the search itself. The greater regularity attending the stop does not mitigate the invasion of privacy that a search entails. Nor do checkpoint procedures significantly reduce the likelihood of embarrassment. Motorists whose cars are searched, unlike those who are only questioned, may not be reassured by seeing that the Border Patrol searches other cars as well. Where only a few are singled out for a search, as at San Clemente, motorists may find the searches especially offensive. See Note, Border Searches and the Fourth Amendment, 77 Yale L.J. 1007, 1012—1013 (1968).
9
Moreover we are not persuaded that the checkpoint limits to any meaningful extent the officer's discretion to select cars for search. The record in the consolidated proceeding indicates that only about 3% of the cars that pass the San Clemente checkpoint are stopped for either questioning or a search, 368 F.Supp., at 411. Throughout the system, fewer than 3% of the vehicles that passed through checkpoints in 1974 were searched, Brief for United States 29, and no checkpoint involved in Baca reported a search rate of more than 10% or 15%. 368 F.Supp., at 412—415. It is apparent from these figures that checkpoint officers exercise a substantial degree of discretion in deciding which cars to search. The Government maintains that they voluntarily exercise that discretion with restraint and search only vehicles that arouse their suspicion, and it insists the officers should be free of judicial oversight of any kind. Viewed realistically, this position would authorize the Border Patrol to search vehicles at random, for no officer ever would have to justify his decision to search a particular car.
10
This degree of discretion to search private automobiles is not consistent with the Fourth Amendment. A search, even of an automobile, is a substantial invasion of privacy.2 To protect that privacy from official arbitrariness, the Court always have regarded probable cause as the minimum requirement for a lawful search. Almeida-Sanchez, 413 U.S., at 269—270, 93 S.Ct., at 2537 2538; Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970). We are not persuaded that the differences between roving patrols and traffic checkpoints justify dispensing in this case with the safeguards we required in Almeida-Sanchez. We therefore follow that decision and hold that at traffic checkpoints removed from the border and its functional equivalents, officers may not search private vehicles without consent or probable cause.3
11
The Government lists in its reply brief some of the factors on which officers have relied in deciding which cars to search. They include the number of persons in a vehicle, the appearance and behavior of the driver and passengers, their inability to speak English, the responses they give to officers' questions, the nature of the vehicle, and indications that it may be heavily loaded. All of these factors properly may be taken into account in deciding whether there is probable cause to search a particular vehicle. In addition, as we note today in United States v. Brignoni-Ponce, 422 U.S., at 884—885, 95 S.Ct., at 2582, the officers are entitled to draw reasonable inferences from these facts in light of their knowledge of the area and their prior experience with aliens and smugglers. In this case, however, the officers advanced no special reasons for believing respondent's vehicle contained aliens. The absence of probable cause makes the search invalid.
II
12
The Government also contends that even if Almeida-Sanchez applies to checkpoint searches, the Court of Appeals erred in voiding this search because it occurred after the date of decision in Almeida-Sanchez but before the Court of Appeals stated in United States v. Bowen, supra, that it would require probable cause for checkpoint searches. Examination of the Government's brief in the Ninth Circuit indicates that it did not raise this question below. On the contrary, it represented to the court that the decision in Bowen would be 'determinative of the issues in this case.' We therefore decline to consider this issue, which was raised for the first time in the petition for certiorari.
13
Affirmed.
14
Mr. Justice REHNQUIST, concurring.
15
I joined the dissent of my Brother White in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), and recognize that the present decision is an extension of the unsound rule announced in that case. I nonetheless join the opinion of the Court, because a majority of the Court still adheres to Almeida-Sanchez and because I agree with the Court's analysis of the significance of the Government's proffered distinctions between roving and fixed-checkpoint searches.
16
I wish to stress, however, that the Court's opinion is confined to full searches, and does not extend to fixed-checkpoint stops for the purpose of inquiring about citizenship. Such stops involve only a modest intrusion, are not likely to be frightening or significantly annoying, are regularized by the fixed situs, and effectively serve the important national interest in controlling illegal entry. I do not regard such stops as unreasonable under the Fourth Amendment, whether or not accompanied by 'reasonable suspicion' that a particular vehicle is involved in immigration violations, cf. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607, and I do not understand today's opinion to cast doubt upon their constitutionality.
17
Mr. Chief Justice BURGER, with whom Mr. Justice BLACKMUN joins, concurring in the judgment.
18
Like Mr. Justice WHITE I can, at most, do no more than concur in the judgment. As the Fourth Amendment now has been interpreted by the Court it seems that the Immigration and Naturalization Service is powerless to stop the tide of illegal aliens—and dangerous drugs—that daily and freely crosses our 2,000-mile southern boundary.1 Perhaps these decisions will be seen in perspective as but another example of a society seemingly impotent to deal with massive lawlessness. In that sense history may view us as prisoners of our own traditional and appropriate concern for individual rights, unable—or unwilling—to apply the concept of reasonableness explicit in the Fourth Amendment in order to develop a rational accommodation between those rights and the literal safety of the country.
19
Given today's decisions it would appear that, absent legislative action, nothing less than a massive force of guards could adequately protect our southern border.2 To establish hundreds of checkpoints with enlarged border forces so as to stop literally every car and pedestrian at every border checkpoint, however, would doubtless impede the flow of commerce and travel between this country and Mexico. Moreover, it is uncertain whether stringent penalties for employment of illegal aliens, and rigid requirements for proof of legal entry before employment, would help solve the problems, but those remedies have not been tried.
20
I would hope that when we next deal with this problem we give greater weight to the reality that the Fourth Amendment prohibits only 'unreasonable searches and seizures' and to the frequent admonition that reasonableness must take into account all the circumstances and balance the rights of the individual with the needs of society. See, e.g., Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960); United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972).
21
APPENDIX TO OPINION OF BURGER, C.J., CONCURRING IN THE JUDGMENT
22
Excerpt from Judge Turrentine's opinion in United States v. Baca, 368 F.Supp. 398, 402—408 (SDCal.1973)
THE ILLEGAL ALIEN PROBLEM
23
The United States through legislative action has determined that it is in the best interest of the nation to limit the number of persons who can legally immigrate into the country in any given year. These controls reflect in part a Congressional intent to protect the American labor market from an influx of foreign labor. Karnuth v. United States, 279 U.S. 231, 49 S.Ct. 274, 73 L.Ed. 677 (1929); § 201(a) of the Immigration and Nationality Act of 1952, 66 Stat. 163, as amended by the Act of October 3, 1965, 79 Stat. 911, 8 U.S.C. § 1151(a).
24
Under this policy of limited admission, 385,685 new immigrants entered the United States legally during fiscal year 1972. Since July 1, 1968, the law has established an annual quota of 120,000 persons for the independent countries of the Western Hemisphere. Included within this quota are immigrants from the Republic of Mexico who in fiscal year 1972 totalled 64,040. 1972 Annual Report, Immigration and Naturalization Service, pp. 2, 28.
25
Currently illegal aliens are in residence within the United States in numbers which, while not susceptible of exact measurement, are estimated to be in the vicinity of 800,000 to over one million. Department of Justice, Special Study Group on Illegal Immigrants from Mexico, A Program for Effective And Humane Action on Illegal Mexican Immigrants, 6 (1973) (hereinafter cited as Cramton Rpt.).
26
Of these illegal aliens, approximately 85 percent are citizens of Mexico. Cramton Rpt. at 6. They are industrious, proud and hard-working people who enter this country for the purpose of earning wages, accumulating savings, and returning or sending their savings home to Mexico.
27
Since 1970, the number of illegal Mexican aliens in the United States who have been apprehended has been growing at a rate in excess of 20 percent per year. Cramton Rpt. at 6.
28
The increasingly large numbers of Mexican nationals seeking to illegally enter this country reflects the substantial unemployment and underemployment in Mexico—fueled by one of the highest birth rates in the world. Moreover, Mexican employment statistics are not likely to improve dramatically since fully 45 percent of Mexico's population is under 15 years of age and, therefore, will soon be attempting to enter the labor market.
29
Further prompting Mexican nationals to seek employment in the United States is the fact that there is a significant disparity in wage rates between this country and Mexico. In Mexicali and Tijuana, both Mexican cities bordering the Southern District and each with a population in excess of 400,000, the average daily wage is about $3.40 per day. The minimum wage is even lower for workers in the interior of Mexico. The average worker in Mexico, assuming he can find work, earns in a day as much as he can make in only a few hours in the United States.
30
In addition, it is estimated that the per capita income of the poorest 40 percent of the Mexican population, the strata most likely to leave their homeland in search of employment in the United States, is less than $150 per year.
31
The manpower needs of the United States generated by World War II resulted in many Mexicans being imported into this country and becoming familiar with employment opportunities and practices in the United States. See Diaz v. Kay-Dix Ranch, 9 Cal.App.3d 588, 88 Cal.Rptr. 443 (1970).
32
The opportunities available to Mexican aliens have traditionally been in agriculture. While still true in many parts of the United States Southwest, in recent years the pattern has changed and more and more illegal aliens are obtaining employment in the service and manufacturing sectors of our economy. These aliens are increasingly found in virtually all regions of the country and in all segments of the economy. State Social Welfare Board, Issue: Aliens in California, 12 (1973) (Hereinafter cited as Aliens in California).
33
The nature of the change in employment opportunities available is demonstrated by one estimate that 250,000 illegal aliens are employed in Los Angeles County where agricultural opportunities are known to be limited. Hearings on Illegal Aliens Before Subcomm. No. 1 of the House Comm. on the Judiciary, 92d Cong., 1st Sess., pt. 1, at 208 (1971) (Hereinafter cited as Hearings on Illegal Aliens).
34
Other estimates of the impact of illegal aliens in California suggest that in 1971, when 595,000 Californians were unemployed (7.4 percent of the State's labor force), there were between 200,000 and 300,000 illegal aliens employed in California earning approximately $100 million in wages. Hearings on Illegal Aliens at 150.
35
Since the majority of Mexicans are unskilled or low skilled workers they tend to compete with Mexican-Americans, blacks, Indians, and other minority groups who, due to the declining percentage of jobs requiring low or no skills, are finding it increasingly difficult to obtain gainful employment. Cramton Rpt. at 12.
36
Illegal aliens compete for jobs with persons legally residing in the United States who are unskilled and uneducated and who form that very group which our society is trying to provide with a fair share of America's prosperity.
37
In addition, illegal aliens tend to perpetuate poor economic conditions by frustrating unionization, especially in such occupations as farm work.
38
Illegal aliens pose a potential health hazard to the community since many seek work as nursemaids, food handlers, cooks, housekeepers, waiters, dishwashers, and grocery workers. Immigration and medical officials in Los Angeles, for example, have discovered that the illegal alien population in Los Angeles' barrio is infected with a high incidence of typhoid, dysentery, tuberculosis, tapeworms, veneral disease and hepatitis. L. A. Times, Sept. 16, 1973, pt II, at 1.
39
In some states illegal aliens abuse public assistance programs. In some instances entire families who entered the country illegally have been admitted to the welfare rolls. Aliens in California at 35, 43.
40
Another aspect of the problem created by illegal aliens is that employed aliens tend to send a substantial portion of their earnings to relatives or friends in Mexico. This outflow of United States dollars exacerbates our balance of payments problem to the extent of $1 billion a year. Hearings on Illegal Aliens, pt. 3 at 683.
41
The net effect of this silent invasion of illegal aliens from Mexico is suffering by the aliens who are frequently victims of extortion, violence and sharp practices, displacement of American citizens and legally residing aliens from the labor market, and irritation between two neighboring countries.
THE LAW ENFORCEMENT PROBLEM
42
Given that illegal aliens are a significant problem in American life, especially for those minority groups who are described as economically deprived, and that Congress has decreed that all but a relatively few aliens are to be permanently excluded, then we must analyze what law enforcement problems exist. In this regard, the following findings of fact are made:
43
The illegal alien problem is one found primarily in the Southwestern Region of the United States.
44
This problem along the Mexican-American border has existed for some time with the original responsibility for securing the integrity of the border being assigned to the U.S. Army, along with the Departments of Treasury and Labor, who had about 20,000 men assigned to the border between Brownsville, Texas, and San Diego, California, in 1920. National Geographic Magazine, 'Along Our Side of the Mexican Border.' (July 1920).
45
Currently the burden of controlling the entry of aliens and stemming the flow of illegal aliens along the Mexican-American border is assigned to the INS.1
46
The border extends for almost 2,000 miles from the Gulf of Mexico to the Pacific Coast.
47
Along this border there were over 152 million legal entries at authorized ports of entry during fiscal 1972, of which over 91 million were made by aliens. Over 39 million of the legal entries were made at the three ports of entry in Southern California (Calexico, San Ysidro and Tecate) of which over 24 million were made by aliens. Immigration and Naturalization Service, 1972 Annual Report, 25.
48
Of these entries made by aliens, the large portion were made by visitors with official permission to enter the country who had been issued temporary 'border passes' such as I—186 cards (issued to residents of Mexico), which authorize the holder to travel within an area no further than 25 miles from the border and for a period of time not to exceed 72 hours. See 8 C.F.R. § 212.6.
49
These temporary border passes (I—186) are issued to simplify procedures needed for entry, and the issuing process recognizes the inter-relationship of contiguous communities along both sides of the border. Hearings on Illegal Aliens, pt. 1, 192.
50
In fiscal 1973 approximately 208,000 I—186 cards were issued and it is estimated that over two million such cards are currently in circulation. Hearings on Illegal Aliens, pt. 1, 173.
51
Within the INS, the U.S. Border Patrol, which was first established in 1924, has the primary function of preventing the illegal entry of aliens and the apprehension of those who have entered illegally and those who smuggle these illegal entrants.
52
The Border Patrol has approximately 1,700 agents, who are well-trained law enforcement officers, and of these about 80 percent are assigned along our southern border with Mexico.
53
A 'deportable alien' is a person who has been found to be deportable by an immigration judge, or who admits his deportability upon questioning by official agents.
54
The number of deportable aliens apprehended by the Border Patrol (which makes the great majority of apprehensions) nationally has grown from 38,861 during fiscal 1963 to 498,123 in fiscal 1973; of this number 128,889 were found by Border Patrol agents working in the Chula Vista sector which includes 70 miles of the border in San Diego County, and 23,125 were located by agents in the El Centro sector which includes the Imperial County of California and 75 miles of the Mexican-American border.
55
The Border Patrol agents have the power to apprehend illegal aliens since by regulation the Attorney General has designated Border Patrol agents to be immigration officers and authorized them to exercise powers and duties as such officers (8 C.F.R. § 103.1(i)); immigration officers by statute § 101(a)(17) of the Immigartion and Nationality Act of 1952, 66 Stat. 163; as amended by the Act of October 3, 1973, 79 Stat. 911, 8 U.S.C. § 1101(a)(17), are empowered, without a warrant, to stop and interrogate any alien or person believed to be an alien as to his right to remain or to be in the United States. See Au Yi Lau v. I.N.S., 144 U.S.App.D.C. 147, 445 F.2d 217 (1971), cert. denied, 404 U.S. 864, 92 S.Ct. 64, 30 L.Ed.2d 108.
56
Sec. 287(a)(3) of the 1952 Immigration Act provides authority for an immigration officer within a reasonable distance from the border of the United States to board and search any conveyance or vehicle; 'reasonable distance' as used in that section of the Act means within 100 air miles from any external boundary of the United States, 8 C.F.R. § 287.1(b).
57
Immigration officers also are authorized to conduct inspection of aliens seeking admission or readmission to, or the privilege of passing through, the United States, and also are authorized and empowered to board and search any vehicle or like conveyance in which they believe aliens are being brought into the United States. Sec. 235(a) of the 1952 Immigration Act, 8 U.S.C. § 1225(a).
58
The deployment of Border Patrol agents along the border is intended to maximize the effectiveness of the limited number of personnel, with the first line of defense being called the 'line watch.' The line watch consists of agents being placed immediately upon the physical boundary where experience has shown that large numbers of illegal aliens can be detected attempting entry. A large number of agents so assigned are primarily concerned with responding to sensor alarms (electronic detection equipment) which are located at strategic positions. These agents also respond to citizen complaints concerning the suspected presence of deportable aliens.
59
In fiscal 1973, there were 175,511 deportable aliens apprehended throughout the nation by agents assigned to the line watch, with 69,147 being apprehended in the Chula Vista sector and 5,908 in the El Centro sector.
60
While the Border Patrol would like to apprehend all deportable aliens right on the border by agents of the line watch, inspections at regular points of entry are not infallible and illegal crossings at other than legal ports of entry are numerous and recurring. The maintenance of continuous patrol over the vast stretches of the border in Southern California is physically impossible, since the approximately 145 miles of boundary creates geographic barriers to effective patrol and man-made devices such as fences and electronic devices are in large part ineffective.
61
Increased manpower on line watch would not make that activity appreciably more effective as was demonstrated in 1969 during 'Operation Intercept' when many more agents were stationed immediately on the border, and yet, the number of illegal aliens apprehended by agents operating inland was not significantly different from like periods when such additional manpower was not located at the boundary.
62
Once the aliens negotiate their way through the port of entry or, as is most common, walk across the border at a place other than an official port of entry, they find transportation inland either in public conveyances, or private vehicles with increasing numbers being transported by professional smugglers. A few have been known to walk some distance inland and have been apprehended after having walked as far north as Julian, California, which is over 60 miles from the border.
63
After crossing the line watch some illegal aliens seek employment in the Southern District, but the vast majority attempt to proceed to Los Angeles County and points north.
64
Once the illegal alien gets settled in a big city far away from the border it becomes very difficult to apprehend him, and therefore, the Border Patrol attempts to contain the illegal entrant within this district. Aliens in California at 7. With this objective in mind, they have (pursuant to their statutory authority discussed above) established, since at least 1927, strategically located traffic inspection facilities, commonly referred to as checkpoints, on highways and roads, for the purpose of questioning vehicle occupants believed to be aliens, as to their right to be, or to remain, in the United States, and also to search such vehicles for illegal aliens. Immigration and Naturalization Service Border Patrol Handbook 9—1 (1972) (hereinafter cited as Handbook).
65
The primary objective of the checkpoints is to intercept vehicles or conveyances transporting illegal aliens, or nonresident aliens admitted with temporary border passing cards (I 186), with particular attention being paid to vehicles operated by smugglers or transporters destined for inland cities in violation of 8 U.S.C. § 1324.
66
The selection of the location of a checkpoint is determined by factors relevant to the interdiction or interception of deportable aliens who have succeeded in gaining entry in an unlawful manner or are proceeding beyond the immediate border area in violation of conditions of their admission as border crossers, 8 C.F.R. § 212.60. The primary factors in selecting a checkpoint site are:
67
1. A location on a highway just beyond the confluence of two or more roads from the border, in order to permit the checking of a large volume of traffic with a minimum number of officers. This also avoids the inconvenience of repeated checking of commuter or urban traffic which would occur if the sites were operated on the network of roads leading from and through the more populated areas near the border.
68
2. Terrain and topography that restrict passage of vehicles around the checkpoint, such as mountains, desert, and, as in the case of the San Clemente checkpoint, the Camp Pendleton Marine Base.
69
3. Safety factors: an unobstructed view of oncoming traffic, to provide a safe distance for slowing and stopping; parking space off the highway; power source to illuminate control signs and inspection area, and bypass capability for vehicles not requiring examination.
70
4. Due to the travel restrictions of the I—186 nonresident border crosser to an area 25 miles from the border (unless issued additional documentation) the checkpoints, as a general rule, are located at a point beyond the 25 mile zone in order to control the unlawful movement inland of such visitors.
71
Strategic sites that meet the foregoing enumerated criteria are selected for 'permanent checkpoints.' These are sites equipped to handle a large volume of traffic on what would be a 24-hour basis except in case of manpower shortage, poor weather, or where traffic becomes excessive causing a potential safety hazard. Handbook at 9—3.
72
Other traffic checkpoints, known as 'temporary checkpoints' are maintained on roads where traffic is less frequent. The placement of these sites will be governed by the same safety factors as involved in permanent site placement and are usually located where the terrain allows an element of surprise. Operations at these temporary checkpoints are set up at irregular intervals and intermittently so as to confuse the potential violator. Handbook at 9—3.
73
When the checkpoints, whether permanent or temporary, are in operation, an officer standing at the 'point' in full dress uniform on the highway will view the decelerating oncoming vehicles and their passengers, and will visually determine whether he has reason to believe the occupants of the vehicle are aliens (i.e., 'breaks the pattern' of usual traffic). If so, the vehicle will be stopped (if the traffic at the checkpoint is heavy, as at the San Clemente checkpoint, the vehicle will be actually directed off the highway) for inquiries to be made by the agent. If the agent does not have reason to believe that the vehicle approaching the checkpoint is carrying aliens, he may exchange salutations, or merely wave the vehicle through the checkpoint.
74
If, after questioning the occupants, the agent then believes that illegal aliens may be secreted in the vehicle (because of a break in the 'pattern' indicating the possibility of smuggling) he will inspect the vehicle by giving a cursory visual inspection of those areas of the vehicle not visible from the outside (i.e. trunk, interior portion of camper, etc.).
75
At the point of location of the sites now in regular use few aliens have reached the locale on foot, with 99 percent having entered a vehicle of one type or another. Approximately 12 percent of all apprehensions of deportable aliens throughout the nation are made at checkpoints.
76
In the United States, during fiscal 1973, approximately 55,300 deportable aliens were apprehended by Border Patrol agents working traffic checking operations. In the Chula Vista sector the number for that period was 21,232, while in the El Centro sector the total was 3,825.2 During fiscal 1973, a total of 4,975 of the above were visitors apprehended at the checkpoints and a majority of these were those who were in violation of the terms of temporary border passes (Form I—186).
77
The placement of the checkpoints and their operations are coordinated between the two sectors located in this district and with Border Patrol activities to the east in Arizona. In actual operation the checkpoints, be they 'permanent' or 'temporary,' have the same basic accouterments. Typically, about one-half mile to one mile south of the checkpoint is the first notification that the checkpoint is ahead. The notice is in the form of a black on yellow sign indicated 'STOP AHEAD' which has floodlights for nighttime illumination, handbook at 9—9. Next, about 200 yards from the checkpoint is another sign cautioning the traffic to slow down or to be careful; this sign usually has flashing yellow lights attached. For the fifty yards directly south of the checkpoint there are placed traffic cones evenly spaced along each side of the highway. The actual checkpoint has a sign indicating to the traffic to stop, with official Border Patrol vehicles parked on each side of the stop zone showing the official Border Patrol emblem and/or the designation U.S. OFFICERS. At this point the agents assigned at the 'point,' in their official uniform, conduct checking and inspection operations. Beyond the checkpoint is usually a sign indicating 'THANK YOU.'
78
While a large number of apprehensions are made at the checkpoints each year, as related above, the primary reason for their operation is that they effectively deter large numbers of aliens from illegally entering the country or violating the terms of any temporary crossing card they may have, because they form an effective obstacle and are located on all major routes north out of the border region.
79
The deterrence aspect of these traffic checkpoint operations is amply demonstrated by the fact that the illegal alien has to resort to the employment of professional smugglers to provide transportation around or through these checkpoints.
80
Some of these smuggling operations have developed into sophisticated and involved operations with the following general modus operandi:
81
1. Contact is made between the smuggler and the alien prior to the latter's leaving Mexico.
82
2. The aliens then make entry on foot, with possibly the aid of a 'guide,' or by use of temporary border passes. Then they enter vehicles approximately 2 or 20 miles inland after having passed through the Border Patrol's line watch activities.
83
3. To get through the traffic checkpoint they might use a 'drop house,' which acts as a staging area to keep the aliens awaiting inclement weather, or any event that might cause the checkpoint to close down temporarily. Or, they may use a 'decoy' vehicle, which is a vehicle loaded with illegal aliens which it is anticipated will be stopped at the checkpoint and would therefore occupy the agents so that other vehicles could pass through without inspection. They even use 'scout cars' to probe those roads where temporary checkpoints are maintained, so as to advise other vehicles whether it is safe to proceed.
84
4. The 'load' vehicles themselves can be of any type of conveyance and the methods used to secrete aliens inside them are varied and often show some originality. Unfortunately, sometimes these are very dangerous to the aliens themselves. It has been reported, for example, that it is not at all unusual for an alien to die from asphyxiation while concealed in an automobile trunk or a tank car.
85
5. The cost of the transportation provided to the aliens is approximately $225 to $250 for each alien for the trip through the checkpoint on to the Los Angeles area. Since smuggling operations are almost exclusively 'cash and carry' businesses and the average income among Mexican nationals who may wish to seek residence here illegally is quite small, this cost tends to act as a very significant deterrent in and of itself. The checkpoints are the major reason for such a high price and if they were discontinued for any length of time it would be one more encouragement to illegal immigration.
86
The deterrent impact of these checkpoints has been noted on several occasions when they resumed operation unexpectedly and a great number of aliens were apprehended.
87
The evidence presented before this court clearly established that there is no reasonable or effective alternative method of detection and apprehension avilable to the Border Patrol in the absence of the checkpoints, for even a geometric increase in its personnel or line watch would not leave any control over those admitted as temporary visitors from Mexico.
88
Of the approximately half million illegal aliens apprehended in fiscal 1973, virtually none were prosecuted, unless they presented counterfeit or altered documents or aided in smuggling endeavors.
89
This district has only 3 percent of the total length of land borders, and yet fully 30 percent of all apprehensions of deportable aliens made in the United States are made within this district.
90
Mr. Justice WHITE, with whom Mr. Justice BLACKMUN joins, concurring in the judgment.
91
Given Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), with which I disagreed but which is now authoritative the results reached in these cases were largely foreordained. The Court purports to leave the question open, but it seems to me, my Brother REHNQUIST notwithstanding, that under the Court's opinions checkpoint investigative stops, without search, will be difficult to justify under the Fourth Amendment absent probable cause or reasonable suspicion. In any event, the Court has thus dismantled major parts of the apparantus by which the Nation has attempted to intercept millions of aliens who enter and remain illegally in this country.
92
The entire system, however, has been notably unsuccessful in deterring or stemming this heavy flow; and its costs, including added burdens on the courts, have been substantial. Perhaps the Judiciary should not strain to accommodate the requirements of the Fourth Amendment to the needs of a system which at best can demonstrate only minimal effectiveness as long as it is lawful for business firms and others to employ aliens who are illegally in the country. This problem, which ordinary law enforcement has not been able to solve, essentially poses questions of national policy and is chiefly the business of Congress and the Executive Branch rather than the courts.
93
I concur in the judgment in these two cases.
*
The syllabus consitutes no part of the opinion of the Court but has been 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
Such places typically include the trunk, under the hood, and beneath the chassis. If the vehicle is a truck, a camper, or the like, the officer inspects the enclosed portion as well. But an immigration inspection is not always so confined. In Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), the officer removed the back seat cushion because there were reports that aliens had been found seated upright behind seats from which the springs had been removed. Id., at 286, 93 S.Ct., at 2546 (White, J., dissenting).
2
The degree of the invasion of privacy in an automobile search may vary with the circumstances, as there are significant differences between 'an automobile and a home or office.' Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 1979, 26 L.Ed.2d 419 (1970); Almeida-Sanchez v. United States, 413 U.S., at 279, 93 S.Ct., at 2542 (Powell, J., concurring).
3
Not every aspect of a routine automobile 'inspection,' as described in n. 1, supra, necessarily constitutes a 'search' for purposes of the Fourth Amendment. There is no occasion in this case to define the exact limits of an automobile 'search.'
Nor do we have occasion to decide whether a warrant could issue approving checkpoint searches based on information about the area as a whole, in the absence of cause to believe that a particular car is carrying concealed aliens, because the officers had no such warrant in this case and had not tried to obtain one. See Almeida-Sanchez v. United States, 413 U.S., at 275, 93 S.Ct., at 2540 (Powell, J., concurring); Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). We also need not decide whether checkpoints and roving patrols must be treated the same for all purposes, or whether Border Patrol officers may lawfully stop motorists for questioning at an established checkpoint without reason to believe that a particular vehicle is carrying aliens. Cf. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607. Nor do we suggest that probable cause would be required for all inspections of private motor vehicles. It is quite possible, for example, that different considerations would apply to routine safety inspections required as a condition of road use.
1
The Court today recognizes that as many as 12 million illegal aliens are now present in this country. United States v. Brignoni-Ponce, 422 U.S., at 878, and n. 4, 95 S.Ct., at 2578 2579. See also U.S. News and World Report, July 22, 1974, p. 27; id., Dec. 9, 1974, p. 77. By all indications the problem will increase in the future, not abate. United States v. Baca, 368 F.Supp. 398, 402—403 (SD Cal.1973). In the Baca case Judge Turrentine conducted a thorough review of the entire problem and the present Government response. Appended to this opinion is an excerpt from Judge Turrentine's Baca opinion describing the illegal alien problem and the law enforcement response.
2
For example, testimony in the Baca hearings revealed that a complement of 21,000 officers would be needed to control adequately the 75 miles of border in the El Centro sector alone.
1
The notation 'INS' when used herein has reference to the Immigration and Naturalization Service.
2
Apparently apprehensions other than those actually made at the checkpoint are included in these figures, but they are a representation of the total activity at these checkpoints and the majority of apprehensions included therein are made at the checkpoints (R.T. 274, 396).
| 01
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422 U.S. 873
95 S.Ct. 2574.
45 L.Ed.2d 607
UNITED STATES, Petitioner,v.Felix Humberto BRIGNONI-PONCE.
No. 74—114.
Argued Feb. 18, 1975.
Decided June 30, 1975.
Syllabus
The Fourth Amendment held not to allow a roving patrol of the Border Patrol to stop a vehicle near the Mexican border and question its occupants about their citizenship and immigration status, when the only ground for suspicion is that the occupants appear to be of Mexican ancestry. Except at the border and its functional equivalents, patrolling officers may stop vehicles only if they are aware of specific articulable facts, together with rational inferences therefrom, reasonably warranting suspicion that the vehicles contain aliens who may be illegally in the country. Pp. 878-887.
(a) Because of the important governmental interest in preventing the illegal entry of aliens at the border, the minimal intrusion of a brief stop, and the absence of practical alternatives for policing the border, an officer, whose observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, may stop the car briefly, question the driver and passengers about their citizenship and immigration status, and ask them to explain suspicious circumstances; but any further detention or search must be based on consent or probable cause. Pp. 878-882.
(b) To allow roving patrols the broad and unlimited discretion urged by the Government to stop all vehicles in the border area without any reason to suspect that they have violated any law, would not be 'reasonable' under the Fourth Amendment. Pp. 882-883.
(c) Assuming that Congress has the power to admit aliens on condition that they submit to reasonable questioning about their right to be in the country, such power cannot diminish the Fourth Amendment rights of citizens who may be mistaken for aliens. The Fourth Amendment therefore forbids stopping persons for questioning about their citizenship on less than a reasonable suspicion that they may be aliens. Pp. 883-884.
9 Cir., 499 F.2d 1109, affirmed.
Andrew L. Frey, Washington, D.C., for petitioner.
John J. Cleary, Redwood City, Cal., for respondent.
Mr. Justice POWELL delivered the opinion of the Court.
1
This case raises questions as to the United States Border Patrol's authority to stop automobiles in areas near the Mexican border. It differs from our decision in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), in that the Border Patrol does not claim authority to search cars, but only to question the occupants about their citizenship and immigration status.
2
* As a part of its regular traffic-checking operations in southern California, the Border Patrol operates a fixed checkpoint on Interstate Highway 5 south of San Clemente. On the evening of March 11, 1973, the checkpoint was closed because of inclement weather, but two officers were observing northbound traffic from a patrol car parked at the side of the highway. The road was dark, and they were using the patrol car's headlights to illuminate passing cars. They pursued respondent's car and stopped it, saying later that their only reason for doing so was that its three occupants appeared to be of Mexican descent. The officers questioned respondent and his two passengers about their citizenship and learned that the passengers were aliens who had entered the country illegally. All three were then arrested, and respondent was charged with two counts of knowingly transporting illegal immigrants, a violation of § 274(a)(2) of the Immigration and Nationality Act, 66 Stat. 228, 8 U.S.C. § 1324(a)(2). At trial respondent moved to suppress the testimony of and about the two passengers, claiming that this evidence was the fruit of an illegal seizure. The trial court denied the motion, the aliens testified at trial, and respondent was convicted on both counts.
3
Respondent's appeal was pending in the Court of Appeals for the Ninth Circuit when we announced our decision in Almeida-Sanchez v. United States, supra, holding that the Fourth Amendment prohibits the use of roving patrols to search vehicles, without a warrant or probable cause, at points removed from the border and its functional equivalents. The Court of Appeals, sitting en banc, held that the stop in this case more closely resembled a roving-patrol stop than a stop at a traffic checkpoint, and applied the principles of Almeida-Sanchez.1 The court held that the Fourth Amendment, as interpreted in Almeida-Sanchez, forbids stopping a vehicle, even for the limited purpose of questioning its occupants, unless the officers have a 'founded suspicion' that the occupants are aliens illegally in the country. The court refused to find that Mexican ancestry alone supported such a 'founded suspicion' and held that respondent's motion to suppress should have been granted.2 499 F.2d 1109 (1974). We granted certiorari and set the case for oral argument with No. 73—2050, United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623, and No. 73—6848, Bowen v. United States, 422 U.S. 916, 95 S.Ct. 2569, 45 L.Ed.2d 641. 419 U.S. 824, 95 S.Ct. 40, 42 L.Ed.2d 48 (1974).
4
The Government does not challenge the Court of Appeals' factual conclusion that the stop of respondent's car was a roving-patrol stop rather than a checkpoint stop. Brief for United States 8. Nor does it challenge the retroactive application of Almeida-Sanchez, Brief for United States 9, or contend that the San Clemente checkpoint is the functional equivalent of the border. The only issue presented for decision is whether a roving patrol may stop a vehicle in an area near the border and question its occupants when the only ground for suspicion is that the occupants appear to be of Mexican ancestry. For the reasons that follow, we affirm the decision of the Court of Appeals.
II
5
The Government claims two sources of statutory authority for stopping cars without warrants in the border areas. Section 287(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1357(a)(1), authorizes any officer or employee of the Immigration and Naturalization Service (INS) without a warrant, 'to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States.' There is no geographical limitation on this authority. The Government contends that, at least in the areas adjacent to the Mexican border, a person's apparent Mexican ancestry alone justifies belief that he or she is an alien and satisfies the requirement of this statute. Section 287(a)(3) of the Act, 8 U.S.C. § 1357(a)(3), authorizes agents, without a warrant,
6
'within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle . . ..'
7
Under current regulations, this authority may be exercised anywhere within 100 miles of the border. 8 CFR § 287.1(a) (1975). The Border Patrol interprets the statute as granting authority to stop moving vehicles and question the occupants about their citizenship, even when its officers have no reason to believe that the occupants are aliens or that other aliens may be concealed in the vehicle.3 But 'no Act of Congress can authorize a violation of the Constitution,' Almeida-Sanchez, supra, 413 U.S. at 272, 93 S.Ct. at 2539, and we must decide whether the Fourth Amendment allows such random vehicle stops in the border areas.
III
8
The Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Terry v. Ohio, 392 U.S. 1, 16—19, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968). '(W)henever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person,' id., at 16, 88 S.Ct., at 1877, and the Fourth Amendment requires that the seizure be 'reasonable.' As with other categories of police action subject to Fourth Amendment constraints, the reasonableness of such seizures depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers. Id., at 20—21, 88 S.Ct., at 1879; Camara v. Municipal Court, 387 U.S. 523, 536—537, 87 S.Ct. 1727, 1734, 18 L.Ed.2d 930 (1967).
9
The Government makes a convincing demonstration that the public interest demands effective measures to prevent the illegal entry of aliens at the Mexican border. Estimates of the number of illegal immigrants in the United States vary widely. A conservative estimate in 1972 produced a figure of about one million, but the INS now suggests there may be as many as 10 or 12 million aliens illegally in the country.4 Whatever the number, these aliens create significant economic and social problems, competing with citizens and legal resident aliens for jobs, and generating extra demand for social services. The aliens themselves are vulnerable to exploitation because they cannot complain of substandard working conditions without risking deportation. See generally Hearings on Illegal Aliens before Subcommittee No. 1 of the House Committee on the Judiciary, 92d Cong., 1st and 2d Sess., ser. 13, pts. 1—5 (1971—1972).
10
The Government has estimated that 85% of the aliens illegally in the country are from Mexico. United States v. Baca, 368 F.Supp. 398, 402 (SD Cal.1973).5 The Mexican border is almost 2,000 miles long, and even a vastly reinforced Border Patrol would find it impossible to prevent illegal border crossings. Many aliens cross the Mexican border on foot, miles away from patrolled areas, and then purchase transportation from the border area to inland cities, where they find jobs and elude the immigration authorities. Others gain entry on valid temporary border-crossing permits, but then violate the conditions of their entry. Most of these aliens leave the border area in private vehicles, often assisted by professional 'alien smugglers.' The Border Patrol's traffic-checking operations are designed to prevent this inland movement. They succeed in apprehending some illegal entrants and smugglers, and they deter the movement of others by threatening apprehension and increasing the cost of illegal transportatin.
11
Against this valid public interest we must weigh the interference with individual liberty that results when an officer stops an automobile and questions its occupants. The intrusion is modest. The Government tells us that a stop by a roving patrol 'usually consumes no more than a minute.' Brief for United States 25. There is no search of the vehicle or its occupants, and the visual inspection is limited to those parts of the vehicle that can be seen by anyone standing alongside.6 According to the Government, '(a)ll that is required of the vehicle's occupants is a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States.' Ibid.
12
Because of the limited nature of the intrusion, stops of this sort may be justified on facts that do not amount to the probable cause required for an arrest. In Terry v. Ohio, supra, the Court declined expressly to decide whether facts not amounting to probable cause could justify an 'investigative 'seizure" short of an arrest, 392 U.S., at 19 n. 16, 88 S.Ct. at 1879, but it approved a limited search—a pat-down for weapons—for the protection of an officer investigating suspicious behavior of persons he reasonably believed to be armed and dangerous. The Court approved such a search on facts that did not constitute probable cause to believe the suspects guilty of a crime, requiring only that 'the police officer . . . be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant' a belief that his safety or that of others is in danger. Id., at 21, 88 S.Ct., at 1880; see id., at 27, 88 S.Ct., at 1883.
13
We elaborated on Terry in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), holding that a policeman was justified in approaching the respondent to investigate a tip that he was carrying narcotics and a gun.
14
'The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. . . . A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.' Id., at 145—146, 92 S.Ct. at 1923.
15
These cases together establish that in appropriate circumstances the Fourth Amendment allows a properly limited 'search' or 'seizure' on facts that do not constitute probable cause to arrest or to search for contraband or evidence of crime. In both Terry and Adams v. Williams the investigating officers had reasonable grounds to believe that the suspects were armed and that they might be dangerous. The limited searches and seizures in those cases were a valid method of protecting the public and preventing crime. In this case as well, because of the importance of the governmental interest at stake, the minimal intrusion of a brief stop, and the absence of practical alternatives for policing the border, we hold that when an officer's observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly and investigate the circumstances that provoke suspicion. As in Terry, the stop and inquiry must be 'reasonably related in scope to the justification for their initiation.' 392 U.S., at 29, 88 S.Ct. at 1884. The officer may question the driver and passengers about their citizenship and immigration status, and he may ask them to explain suspicious circumstances, but any further detention or search must be based on consent or probable cause.
16
We are unwilling to let the Border Patrol dispense entirely with the requirement that officers must have a reasonable suspicion to justify roving-patrol stops.7 In the context of border area stops, the reasonableness requirement of the Fourth Amendment demands something more than the broad and unlimited discretion sought by the Government. Roads near the border carry not only aliens seeking to enter the country illegally, but a large volume of legitimate traffic as well. San Diego, with a metropolitan population of 1.4 million, is located on the border. Texas has two fairly large metropolitan areas directly on the border: El Paso, with a population of 360,000, and the Brownsville-McAllen area, with a combined population of 320,000. We are confident that substantially all of the traffic in these cities is lawful and that relatively few of their residents have any connection with the illegal entry and transportation of aliens. To approve roving-patrol stops of all vehicles in the border area, without any suspicion that a particular vehicle is carrying illegal immigrants, would subject the residents of these and other areas to potentially unlimited interference with their use of the highways, solely at the discretion of Border Patrol officers. The only formal limitation on that discretion appears to be the administrative regulation defining the term 'reasonable distance' in § 287(a)(3) to mean within 100 air miles from the border. 8 CFR § 287.1(a) (1975). Thus, if we approved the Government's position in this case, Border Patrol officers could stop motorists at random for questioning, day or night, anywhere within 100 air miles of the 2,000-mile border, on a city street, a busy highway, or a desert road, without any reason to suspect that they have violated any law.
17
We are not convinced that the legitimate needs of law enforcement require this degree of interference with lawful traffic. As we discuss in Part IV, infra, the nature of illegal alien traffic and the characteristics of smuggling operations tend to generate articulable grounds for identifying violators. Consequently, a requirement of reasonable suspicion for stops allows the Government adequate means of guarding the public interest and also protects residents of the border areas from indiscriminate official interference. Under the circumstances, and even though the intrusion incident to a stop is modest, we conclude that it is not 'reasonable' under the Fourth Amendment to make such stops on a random basis.8
18
The Government also contends that the public interest in enforcing conditions on legal alien entry justifies stopping persons who may be aliens for questioning about their citizenship and immigration status. Although we may assume for purposes of this case that the broad congressional power over immigration, see Kleindienst v. Mandel, 408 U.S. 753, 765—767, 92 S.Ct. 2576, 2583, 33 L.Ed.2d 683 (1972), authorizes Congress to admit aliens on condition that they will submit to reasonable questioning about their right to be and remain in the country, this power cannot diminish the Fourth Amendment rights of citizens who may be mistaken for aliens. For the same reasons that the Fourth Amendment forbids stopping vehicles at random to inquire if they are carrying aliens who are illegally in the country, it also forbids stopping or detaining persons for questioning about their citizenship on less than a reasonable suspicion that they may be aliens.
IV
19
The effect of our decision is to limit exercise of the authority granted by both § 287(a)(1) and § 287(a)(3). Except at the border and its functional equivalents, officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.9
20
Any number of factors may be taken into account in deciding whether there is reasonable suspicion to stop a car in the border area. Officers may consider the characteristics of the area in which they encounter a vehicle. Its proximity to the border, the usual patterns of traffic on the particular road, and previous experience with alien traffic are all relevant. See Carroll v. United States, 267 U.S. 132, 159—161, 45 S.Ct. 280, 69 L.Ed. 543 (1925); United States v. Jaime-Barrios, 494 F.2d 455 (CA9), cert. denied, 417 U.S. 972, 94 S.Ct. 3178, 41 L.Ed.2d 1143 (1974).10 They also may consider information about recent illegal border crossings in the area. The driver's behavior may be relevant, as erratic driving or obvious attempts to evade officers can support a reasonable suspicion. See United States v. Larios-Montes, 500 F.2d 941 (CA9 1974); Duprez v. United States, 435 F.2d 1276 (CA9 1970). Aspects of the vehicle itself may justify suspicion. For instance, officers say that certain station wagons, with large compartments for fold-down seats or spare tires, are frequently used for transporting concealed aliens. See United States v. Bugarin-Casas, 484 F.2d 853 (CA9 1973), cert. denied, 414 U.S. 1136, 94 S.Ct. 881, 38 L.Ed.2d 762 (1974); United States v. Wright, 476 F.2d 1027 (CA5 1973). The vehicle may appear to be heavily loaded, it may have an extraordinary number of passengers, or the officers may observe persons trying to hide. See United States v. Larios-Montes, supra. The Government also points out that trained officers can recognize the characteristic appearance of persons who live in Mexico, relying on such factors as the mode of dress and haircut. Reply Brief for United States 12—13, in United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623. In all situations the officer is entitled to assess the facts in light of his experience in detecting illegal entry and smuggling. Terry v. Ohio, 392 U.S., at 27, 88 S.Ct., at 1883.
21
In this case the officers relied on a single factor to justify stopping respondent's car: the apparent Mexican ancestry of the occupants.11 We cannot conclude that this furnished reasonable grounds to believe that the three occupants were aliens. At best the officers had only a fleeting glimpse of the persons in the moving car, illuminated by headlights. Even if they saw enough to think that the occupants were of Mexican descent, this factor alone would justify neither a reasonable belief that they were aliens, nor a reasonable belief that the car concealed other aliens who were illegally in the country. Large numbers of native-born and naturalized citizens have the physical characteristics identified with Mexican ancestry, and even in the border area a relatively small proportion of them are aliens.12 The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor, but standing alone it does not justify stopping all Mexican-Americans to ask if they are aliens.
22
The judgment of the Court of Appeals is affirmed.
23
Affirmed.
24
Mr. Justice REHNQUIST, concurring.
25
I join in the opinion of the Court. I think it quite important to point out, however, that that opinion, which is joined by a somewhat different majority than that which comprised the Almeida Sanchez Court, is both by its terms and by its reasoning concerned only with the type of stop involved in this case. I think that just as travelers entering the country may be stopped and searched without probable cause and without founded suspicion, 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,' Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925), a strong case may be made for those charged with the enforcement of laws conditioning the right of vehicular use of a highway to likewise stop motorists using highways in order to determine whether they have met the qualifications prescribed by applicable law for such use. See Cady v. Dombrowski, 413 U.S. 433, 440—441, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973); United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972). I regard these and similar situations, such as agricultural inspections and highway roadblocks to apprehend known fugitives, as not in any way constitutionally suspect by reason of today's decision.
26
Mr. Justice DOUGLAS, concurring in the judgment.
27
I join in the affirmance of the judgment. The stopping of respondent's automobile solely because its occupants appeared to be of Mexican ancestry was a patent violation of the Fourth Amendment. I cannot agree, however, with the standard the Court adopts to measure the lawfulness of the officers' action. The Court extends the 'suspicion' test of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to the stop of a moving automobile. I dissented from the adoption of the suspicion test in Terry, believing it an unjustified weakening of the Fourth Amendment's protection of citizens from arbitrary interference by the police. I remarked then:
28
'The infringement on personal liberty of any 'seizure' of a person can only be 'reasonable' under the Fourth Amendment if we require the police to possess 'probable cause' before they seize him. Only that line draws a meaningful distinction between an officer's mere inkling and the presence of facts within the officer's personal
29
knowledge which would convince a reasonable man that the person seized has to commit a particular crime.' Id., at 38, 88 S.Ct., at 1888.
30
The fears I voiced in Terry about the weakening of the Fourth Amendment have regrettably been borne out by subsequent events. Hopes that the suspicion test might be employed only in the pursuit of violent crime—a limitation endorsed by some of its proponents*—have now been dashed, as it has been applied in narcotics investigations, in apprehension of 'illegal' aliens, and indeed has come to be viewed as a legal construct for the regulation of a general investigatory police power. The suspicion test has been warmly embraced by law enforcement forces and vigorously employed in the cause of crime detection. In criminal cases we see those for whom the initial intrusion led to the discovery of some wrongdoing. But the nature of the test permits the police to interfere as well with a multitude of law-abiding citizens, whose only transgression may be a nonconformist appearance or attitude. As one commentator has remarked:
31
"Police power exercised without probable cause is arbitrary. To say that the police may accost citizens at their whim and may detain them upon reasonable suspicion is to say, in reality, that the police may both accost and detain citizens at their whim." Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 395 (1974).
32
The uses to which the suspicion test has been put are illustrated in some of the cases cited in the Court's opinion. In United States v. Wright, 476 F.2d 1027 (CA5 1973), for example, immigration officers stopped a station wagon near the border because there was a spare tire in the back seat. The court held that the officers reasonably suspected that the spare wheel well had been freed in order to facilitate the concealment of aliens. In United States v. Bugarin-Casas, 484 F.2d 853 (CA9 1973), the Border Patrol officers encountered a man driving alone in a station wagon which was 'riding low'; stopping the car was held reasonable because the officers suspected that aliens might have been hidden beneath the floorboards. The vacationer whose car is weighted down with luggage will find no comfort in these decisions; nor will the many law-abiding citizens who drive older vehicles that ride low because their suspension systems are old or in disrepair. The suspicion test has indeed brought a state of affairs where the police may stop citizens on the highway on the flimsiest of justifications.
33
The Court does, to be sure, disclaim approval of the particular decisions it cites applying the suspicion test. But by specifying factors to be considered without attempting to explain what combination is necessary to satisfy the test, the Court may actually induce the police to push its language beyond intended limits and to advance as a justification any of the enumerated factors even where its probative significance is negligible.
34
Ultimately the degree to which the suspicion test actually restrains the police will depend more upon what the Court does henceforth than upon what it says today. If my Brethren mean to give the suspicion test a new bite, I applaud the intention. But in view of the developments since the test was launched in Terry, I am not optimistic. This is the first decision to invalidate a stop on the basis of the suspicion standard. In fact, since Terry we have granted review of a case applying the test only once, in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), where the Court found the standard satisfied by the tip from an informant whose credibility was not established and whose information was not shown to be based upon personal knowledge. If in the future the suspicion test is to provide any meaningful restraint of the police, its force must come from vigorous review of its applications, and not alone from the qualifying language of today's opinion. For now, I remain unconvinced that the suspicion test offers significant protection of the 'comprehensive right of personal liberty in the face of governmental intrusion,' Lopez v. United States, 373 U.S. 427, 455, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963) (dissenting opinion), that is embodied in the Fourth Amendment.
1
For the Court of Appeals' purposes, the distinction between a roving patrol and a fixed checkpoint was controlling. The court previously had held that the principles of Almeida-Sanchez v. United States applied retrospectively to the activities of roving patrols but not to those of fixed checkpoints. See United States v. Peltier, 500 F.2d 985 (CA9 1974), rev'd, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374; United States v. Bowen, 500 F.2d 960 (CA9 1974), aff'd, 422 U.S. 916, 95 S.Ct. 2569, 45 L.Ed.2d 641.
2
There may be room to question whether voluntary testimony of a witness at trial, as opposed to a Government agent's testimony about objects seized or statements overheard, is subject to suppression as the fruit of an illegal search or seizure. See United States v. Guana-Sanchez, 484 F.2d 590 (CA7 1973), cert. dismissed as improvidently granted, 420 U.S. 513, 95 S.Ct. 1344, 43 L.Ed.2d 361 (1975). But since the question was not raised in the petition for certiorari, we do not address it.
3
We cannot accept respondent's contention that, even though § 287(a)(3) does not mention probable cause, its legislative history establishes that Congress meant to condition immigration officers' authority to board and search vehicles on probable cause to believe that they contained aliens. The legislative history simply does not support this contention.
4
The estimate of one million was produced by the Commissioner of the INS for the Immigration and Nationality Subcommittee of the House Judiciary Committee. Hearings on Illegal Aliens before Subcommittee, No. 1 of the House Committee on the Judiciary, 92d Cong., 2d Sess., ser. 13, pt. 5, pp. 1323—1325 (1972). The higher estimate appears in the INS Ann.Rep. iii (1974).
5
This estimate tends to be confirmed by the consistently high proportion of Mexican nationals in the number of deportable aliens arrested each year. In 1970, for example, 80% of the deportable aliens arrested were from Mexico. See INS Ann.Rep. 95 (1970). In 1974, the figure was 92%. INS Ann.Rep. 94 (1974).
6
In this case the officers did search respondent's car, but because they found no other incriminating evidence the validity of the search is not in issue. Almeida-Sanchez changed the Border Patrol's practice of searching cars on routine stops, and the Government informs us that roving patrols now search vehicles only when they have probable cause to believe they will find illegally present aliens or contraband. Brief for United States 25.
7
Because the stop in this case was made without a warrant and the officers made no effort to obtain one, we have no occasion to decide whether a warrant could be issued to stop cars in a designated area on the basis of conditions in the area as a whole and in the absence of reason to suspect that any particular car is carrying aliens. See Almeida-Sanchez, 413 U.S., at 275, 93 S.Ct., at 2540 (Powell, J., concurring); Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).
8
Our decision in this case takes into account the special function of the Border Patrol, the importance of the governmental interests in policing the border area, the character of roving-patrol stops, and the availability of alternatives to random stops unsupported by reasonable suspicion. Border Patrol agents have no part in enforcing laws that regulate highway use, and their activities have nothing to do with an inquiry whether motorists and their vehicles are entitled, by virtue of compliance with laws governing highway usage, to be upon the public highways. Our decision thus does not imply that state and local enforcement agencies are without power to conduct such limited stops as are necessary to enforce laws regarding drivers' licenses, vehicle registration, truck weights, and similar matters.
9
As noted above, we reserve the question whether Border Patrol officers also may stop persons reasonably believed to be aliens when there is no reason to believe they are illegally in the country. See Cheung Tin Wong v. INS, 152 U.S.App.D.C. 66, 468 F.2d 1123 (1972); Au Yi Lau v. INS, 144 U.S.App.D.C. 147, 445 F.2d 217, cert. denied, 404 U.S. 864, 92 S.Ct. 64, 30 L.Ed.2d 108 (1971). The facts of this case do not require decision on the point.
10
The Courts of Appeals decisions cited throughout this part are merely illustrative. Our citation of them does not imply a view of the merits of particular decisions. Each case must turn on the totality of the particular circumstances.
11
The Government also argues that the location of this stop should be considered in deciding whether the officers had adequate reason to stop respondent's car. This appears, however, to be an after-the-fact justification. At trial the officers gave no reason for the stop except the apparent Mexican ancestry of the car's occupants. It is not even clear that the Government presented the broader justification to the Court of Appeals. We therefore decline at this stage of the case to give any weight to the location of the stop.
12
The 1970 census and the INS figures for alien registration in 1970 provide the following information about the Mexican-American population in the border States. There were 1,619,064 persons of Mexican origin in Texas, and 200,004 (or 12.4%) of them registered as aliens from Mexico. In New Mexico there were 119,049 persons of Mexican origin, and 10,171 (or 8.5%) registered as aliens. In Arizona there were 239,811 persons of Mexican origin, and 34,075 (or 14.2%) registered as aliens. In California there were 1,857,267 persons of Mexican origin, and 379,951 (or 20.4%) registered as aliens. Bureau of the Census, Subject Report PC(2)—1C: Persons of Spanish Origin 2 (1970); INS Ann.Rep. 105 (1970). These figures, of course, do not present the entire picture. The number of registered aliens from Mexico has increased since 1970, INS Ann.Rep. 105 (1974), and we assume that very few illegal immigrants appear in the registration figures. On the other hand, many of the 950,000 other persons of Spanish origin living in these border States, see Bureau of the Census, supra, at 1, may have a physical appearance similar to persons of Mexican origin.
*
See LaFave, 'Street Encounters' and the Constitution, 67 Mich.L.Rev. 39, 65—66 (1968).
| 01
|
422 U.S. 806
95 S.Ct. 2525.
45 L.Ed.2d 562
Anthony Pasquall FARETTA, Petitioner,v.State of CALIFORNIA.
No. 73—5772.
Argued Nov. 19, 1974.
Decided June 30, 1975.
Syllabus
The Sixth Amendment as made applicable to the States by the Fourteenth guarantees that a defendant in a state criminal trial has an independent constitutional right of self-representation and that he may proceed to defend himself without counsel when he voluntarily and intelligently elects to do so; and in this case the state courts erred in forcing petitioner against his will to accept a state-appointed public defender and in denying his request to conduct his own defense. Pp. 812-836.
Vacated and remanded.
Jerome B. Falk, Jr., San Francisco, Cal., for petitioner.
Howard J. Schwab, Los Angeles, Cal., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The Sixth and Fourteenth Amendments of our Constitution guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment. This clear constitutional rule has emerged from a series of cases decided here over the last 50 years.1 The question before us now is whether a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. Stated another way, the question is whether a State may constitutionally hale a person into its criminal courts and there force a lawyer upon him, even when he insists that he wants to conduct his own defense. It is not an easy question, but we have concluded that a State may not constitutionally do so.
2
* Anthony Faretta was charged with grand theft in an information filed in the Superior Court of Los Angeles County, Cal. At the arraignment, the Superior Court Judge assigned to preside at the trial appointed the public defender to represent Faretta. Well before the date of trial, however, Faretta requested that he be permitted to represent himself. Questioning by the judge revealed that Faretta had once represented himself in a criminal prosecution, that he had a high school education, and that he did not want to be represented by the public defender because he believed that that office was 'very loaded down with . . . a heavy case load.' The judge responded that he believed Faretta was 'making a mistake' and emphasized that in further proceedings Faretta would receive no special favors.2 Nevertheless, after establishing that Faretta wanted to represent himself and did not want a lawyer, the judge, in a 'preliminary ruling,' accepted Faretta's waiver of the assistance of counsel. The judge indicated, however, that he might reverse this ruling if it later appeared that Faretta was unable adequately to represent himself.
3
Several weeks thereafter, but still prior to trial, the judge sua sponte held a hearing to inquire into Faretta's ability to conduct his own defense, and questioned him specifically about both the hearsay rule and the state law governing the challenge of potential jurors.3 After consideration of Faretta's answers, and observation of his demeanor, the judge ruled that Faretta had not made an intelligent and knowing waiver of his right to the assistance of counsel, and also ruled that Faretta had no constitutional right to conduct his own defense.4 The judge, accordingly, reversed his earlier ruling permitting self-representation and again appointed the public defender to represent Faretta. Faretta's subsequent request for leave to act as co-counsel was rejected, as were his efforts to make certain motions on his own behalf.5 Throughout the subsequent trial, the judge required that Faretta's defense be conducted only through the appointed lawyer from the public defender's office. At the conclusion of the trial, the jury found Faretta guilty as charged, and the judge sentenced him to prison.
4
The California Court of Appeal, relying upon a then-recent California Supreme Court decision that had expressly decided the issue,6 affirmed the trial judge's ruling that Faretta had no federal or state constitutional right to represent himself.7 Accordingly, the appellate court affirmed Faretta's conviction. A petition for rehearing was denied without opinion, and the California Supreme Court denied review.8 We granted certiorari. 415 U.S. 975, 94 S.Ct. 1559, 39 L.Ed.2d 870.
II
5
In the federal courts, the right of self-representation has been protected by statute since the beginnings of our Nation. Section 35 of the Judiciary Act of 1789, 1 Stat. 73, 92, enacted by the First Congress and signed by President Washington one day before the Sixth Amendment was proposed, provided that 'in all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance of such counsel . . ..' The right is currently codified in 28 U.S.C. § 1654.
6
With few exceptions, each of the several States also accords a defendant the right to represent himself in any criminal case.9 The constitutions of 36 States explicitly confer that right.10 Moreover, many state courts have expressed the view that the right is also supported by the Constitution of the United States.11
7
This Court has more than once indicated the same view. In Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 241, 87 L.Ed. 268, the Court recognized that the Sixth Amendment right to the assistance of counsel implicitly embodies a 'correlative right to dispense with a lawyer's help.' The defendant in that case, indicted for federal mail fraud violations, insisted on conducting his own defense without benefit of counsel. He also requested a bench trial and signed a waiver of his right to trial by jury. The prosecution consented to the waiver of a jury, and the waiver was accepted by the court. The defendant was convicted, but the Court of Appeals reversed and conviction on the ground that a person accused of a felony could not competently waive his right to trial by jury except upon the advice of a lawyer. This Court reversed and reinstated the conviction, holding that 'an accused, in the exercise of a free and intelligent choice, and with the considered approval of the court, may waive trial by jury, and so likewise may he competently and intelligently waive his Constitutional right to assistance of counsel.' Id., at 275, 63 S.Ct., at 240.
8
The Adams case does not, of course, necessarily resolve the issue before us. It held only that 'the Constitution does not force a lawyer upon a defendant.' Id., at 279, 63 S.Ct., at 242.12 Whether the Constitution forbids a State from forcing a lawyer upon a defendant is a different question. But the Court in Adams did recognize, albeit in dictum, an affirmative right of self-representation:
9
'The right to assistance of counsel and the correlative right to dispense with a lawyer's help are not legal formalisms. They rest on considerations that go to the substance of an accused's position before the law. . . .
10
'. . . What were contrived as protections for the accused should not be turned into fetters. . . . To deny an accused a choice of procedure in circumstances in which he, though a layman, is as capable as any lawyer of making an intelligent choice, is to impair the worth of great Constitutional safeguards by treating them as empty verbalisms.
11
'. . . When the administration of the criminal law . . . is hedged bout as it is by the Constitutional safeguards for the protection of an accused, to deny him in the exercise of his free choice the right to dispense with some of thse safeguards . . . is to imprison a man in his privileges and call it the Constitution.' Id., at 279—280, 63 S.Ct., at 241 242. (emphasis added).
12
In other settings as well, the Court has indicated that a defendant has a constitutionally protected right to represent himself in a criminal trial. For example, in Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674, the Court held that the Confrontation Clause of the Sixth Amendment gives the accused a right to be present at all stages of the proceedings where fundamental fairness might be thwarted by his absence. This right to 'presence' was based upon the premise that the 'defense may be made easier if the accused is permitted to be present at the examination of jurors or the summing up of counsel, for it will be in his power, if present, to give advice or suggestion or even to supersede his lawyers altogether and conduct the trial himself.' Id., at 106, 54 S.Ct., at 332 (emphasis added). And in Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356, the Court, in holding that a convicted person had no absolute right to argue his own appeal, said this holding was in 'sharp contrast' to his 'recognized privilege of conducting his own defense at the trial.' Id., at 285, 68 S.Ct., at 1060.
13
The United States Court of Appeals have repeatedly held that the right of self-representation is protected by the Bill of Rights. In United States v. Plattner, 330 F.2d 271, the Court of Appeals for the Second Circuit emphasized that the Sixth Amendment grants the accused the rights of confrontation, of compulsory process for witnesses in his favor, and of assistance of counsel as minimum procedural requirements in federal criminal prosecutions. The right to the assistance of counsel, the court concluded, was intended to supplement the other rights of the defendant, and not to impair 'the absolute and primary right to conduct one's own defense in propria persona.' Id., at 274. The court found support for its decision in the language of the 1789 federal statute; in the statutes and rules governing criminal procedure, see 28 U.S.C. § 1654, and Fed.Rule Crim.Proc. 44; in the many state constitutions that expressly guarantee selfrepresentations and in this Court's recognition of the right in Adams and Price. On these grounds, the Court of Appeals held that implicit in the Fifth Amendment's guarantee of due process of law, and implicit also in the Sixth Amendment's guarantee of a right to the assistance of counsel, is 'the right of the accused personally to manage and conduct his own defense in a criminal case.' 330 F.2d, at 274. See also United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (CA2); MacKenna v. Ellis, 263 F.2d 35, 41 (CA5); United States v. Sternman, 415 F.2d 1165, 1169—1170 (CA6); Lowe v. United States, 418 F.2d 100, 103 (CA7); United States v. Warner, 428 F.2d 730, 733 (CA8); Haslam v. United States, 431 F.2d 362, 365 (CA9); compare United States v. Dougherty, 154 U.S.App.D.C. 76, 86, 473 F.2d 1113, 1123 (intimating right is constitutional but finding it unnecessary to reach issue) with Brown v. United States, 105 U.S.App.D.C. 77, 79—80, 264 F.2d 363, 365—366 (plurality opinion stating right is no more than statutory in nature).
14
This Court's past recognition of the right of self-representation, the federal-court authority holding the right to be of constitutional dimension, and the state constitutions pointing to the right's fundamental nature form a consensus not easily ignored. '(T)he mere fact that a path is a beaten one,' Mr. Justice Jackson once observed, 'is a persuasive reason for following it.'13 We confront here a nearly universal conviction, on the part of our people as well as our courts, that forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so.
III
15
This consensus is soundly premised. The right of self-representation finds support in the structure of the Sixth Amendment, as well as in the English and colonial jurisprudence from which the Amendment emerged.
A.
16
The Sixth Amendment includes a compact statement of the rights necessary to a full defense:
17
'In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.'
18
Because these rights are basic to our adversary system of criminal justice, they are part of the 'due process of law' that is guaranteed by the Fourteenth Amendment to defendants in the criminal courts of the States.14 The rights to notice, confrontation, and compulsory process, when taken together, guarantee that a criminal charge may be answered in a manner now considered fundamental to the fair administration of American justice—through the calling and interrogation of favorable witnesses, the cross-examination of adverse witnesses, and the orderly introduction of evidence. In short, the Amendment constitutionalizes the right in an adversary criminal trial to make a defense as we know it. See California v. Green, 399 U.S. 149, 176, 90 S.Ct. 1930, 1944, 26 L.Ed.2d 489 (Harlan, J., concurring).
19
The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be 'informed of the nature and cause of the accusation,' who must be 'confronted with the witnesses against him,' and who must be accorded 'compulsory process for obtaining witnesses in his favor.' Although not stated in the Amendment in so many words, the right to self-representation—to make one's own defense personally is thus necessarily implied by the structure of the Amendment.15 The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.
20
The counsel provision supplements this design. It speaks of the 'assistance' of counsel, and an assistant, however expert, is still an assistant. The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant—not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not an assistant, but a master;16 and the right to make a defense is stripped of the personal character upon which the Amendment insists. It is true that when a defendant chooses to have a lawyer manage and present his case, law and tradition may allocate to the counsel the power to make binding decisions of trial strategy in many areas. Cf. Henry v. Mississippi, 379 U.S. 443, 451, 85 S.Ct. 564, 569, 13 L.Ed.2d 408; Brookhart v. Janis, 384 U.S. 1, 7—8, 86 S.Ct. 1245, 1248—1249, 16 L.Ed.2d 314; Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837. This allocation can only be justified, however, by the defendant's consent, at the outset, to accept counsel as his representative. An unwanted counsel 'represents' the defendant only through a tenuous and unacceptable legal fiction. Unless the accused has acquiesced in such representation, the defense presented is not the defense guaranteed him by the Constitution, for, in a very real sense, it is not his defense.
B
21
The Sixth Amendment, when naturally read, thus implies a right of self-representation. This reading is reinforced by the Amendment's roots in English legal history.
22
In the long history of British criminal jurisprudence, there was only one tribunal that ever adopted a practice of forcing counsel upon an unwilling defendant in a criminal proceeding. The tribunal was the Star Chamber. That curious institution, which flourished in the late 16th and early 17th centuries, was of mixed executive and judicial character, and characteristically departed from common-law traditions. For those reasons, and because it specialized in trying 'political' defenses, the Star Chamber has for centuries symbolized disregard of basic individual rights.17 The Star Chamber not merely allowed but required defendants to have counsel. The defendant's answer to an indictment was not accepted unless it was signed by counsel. When counsel refused to sign the answer, for whatever reason, the defendant was considered to have confessed.18 Stephen commented on this procedure: 'There is something specially repugnant to justice in using rules of practice in such a manner as to debar a prisoner from defending himself, especially when the professed object of the rules so used is to provide for his defence.' 1 J. Stephen, A History of the Criminal Law of England 341—342 (1883). The Star Chamber was swept away in 1641 by the revolutionary fervor of the Long Parliament. The notion of obligatory counsel disappeared with it.
23
By the common law of that time, it was not representation by counsel but self-representation that was the practice in prosecutions for serious crime. At one time, every litigant was required to 'appear before the court in his own person and conduct his own cause in his own words.'19 While a right to counsel developed early in civil cases and in cases of misdemeanor, a prohibition against the assistance of counsel continued for centuries in prosecutions for felony or treason.20 Thus, in the 16th and 17th centuries the accused felon or traitor stood alone, with neither counsel nor the benefit of other rights—to notice, confrontation, and compulsory process—that we now associate with a genuinely fair adversary proceeding. The trial was merely a 'long argument between the prisoner and the counsel for the Crown.'21 As harsh as this now seems, at least 'the prisoner was allowed to make what statements he liked. . . . Obviously this public oral trial presented many more opportunities to a prisoner than the secret enquiry based on written depositions, which, on the continent, had taken the place of a trial. . . .'22
24
With the Treason Act of 1695, there began a long and important era of reform in English criminal procedure. The 1695 statute granted to the accused traitor the rights to a copy of the indictment, to have his witnesses testify under oath, and 'to make . . . full Defence, by Counsel learned in the Law.'23 It also provided for court appointment of counsel, but only if the accused so desired.24 Thus, as new rights developed, the accused retained his established right 'to make what statements he liked.'25 The right to counsel was viewed as guaranteeing a choice between representation by counsel and the traditional practice of self-representation. The ban on counsel in felony cases, which had been substantially eroded in the courts,26 was finally eliminated by statute in 1836.27 In more recent years, Parliament has provided for court appointment of counsel in serious criminal cases, but only at the accused's request.28 At no point in this process of reform in England was counsel ever forced upon the defendant. The common-law rule, succinctly stated in R. v. Woodward, (1944) K.B. 118, 119, (1944) 1 All E.R. 159, 160, has evidently always been that 'no person charged with a criminal offence can have counsel forced upon him against his will.'29 See 3 Halsbury's Laws of England 1141, pp. 624—625 (4th ed. 1973); R. v. Maybury, 11 L.T.R.(n.s.) 566 (Q.B.1865).
C
25
In the American Colonies the insistence upon a right of self-representation was, if anything, more fervent than in England.
26
The colonists brought with them an appreciation of the virtues of self-reliance and a traditional distrust of law-years. When the Colonies were first settled, 'the lawyer was synonymous with the cringing Attorneys-General and Solicitors-General of the Crown and the arbitrary Justices of the King's Court, all bent on the conviction of those who opposed the King's prerogatives, and twisting the law to secure convictions.'30 This prejudice gained strength in the Colonies where 'distrust of lawyers became an institution.'31 Several Colonies prohibited pleading for hire in the 17th century.32 The prejudice persisted into the 18th century as 'the lower classes came to identify lawyers with the upper class.'33 The years of Revolution and Confederation saw an upsurge of antilawyer sentiment, a 'sudden revival, after the War of th Revolution, of the old dislike and distrust of lawyers as a class.'34 In the heat of these sentiments the Constitution was forged.
27
This is not to say that the Colonies were slow to recognize the value of counsel in criminal cases. Colonial judges soon departed from ancient English practice and allowed accused felons the aid of counsel for their defense.35 At the same time, however, the basic right of self-representation was never questioned. We have found no instance where a colonial court required a defendant in a criminal case to accept as his representative an unwanted lawyer. Indeed, even where counsel was permitted, the general practice continued to be self-representation.36
28
The right of self-representation was guaranteed in many colonial charters and declarations of rights. These early documents establish that the 'right to counsel' meant to the colonists a right to choose between pleading through a lawyer and representing oneself.37 After the Declaration of Independence, the right of self-representation, along with other rights basic to the making of a defense, entered the new state constitutions in wholesale fashion.38 The right to counsel was clearly thought to supplement the primary right of the accused to defend himself,39 utilizing his personal rights to notice, confrontation, and compulsory process. And when the Colonies or newly independent States provided by statute rather than by constitution for court appointment of counsel in criminal cases, they also meticulously preserved the right of the accused to defend himself personally.40
29
The recognition of the right of self-representation was not limited to the state lawmakers. As we have noted, § 35 of the Judiciary Act of 1789, signed one day before the Sixth Amendment was proposed, guaranteed in the federal courts the right of all parties to 'plead and manage their own causes personally or by the assistance of . . . counsel.' 1 Stat. 92. See 28 U.S.C. § 1654. At the time James Madison drafted the Sixth Amendment, some state constitutions guaranteed an accused the right to be heard 'by himself' and by counsel; others provided that an accused was to be 'allowed' counsel.41 The various state proposals for the Bill of Rights had similar variations in terminology.42 In each case, however, the counsel provision was embedded in a package of defense rights granted personally to the accused. There is no indication that the differences in phrasing about 'counsel' reflected any differences of principle about self-representation. No State or Colony had ever forced counsel upon an accused; no spokesman had ever suggested that such a practice would be tolerable, much less advisable. If anyone had thought that the Sixth Amendment, as drafted, failed to protect the long-respected right of self-representation, there would undoubtedly have been some debate or comment on the issue. But there was none.
30
In sum, there is no evidence that the colonists and the Framers ever doubted the right of self-representation, or imagined that this right might be considered inferior to the right of assistance of counsel. To the contrary, the colonists and the Framers, as well as their English ancestors, always conceived of the right to counsel as an 'assistance' for the accused, to be used at his option, in defending himself. The Framers selected in the Sixth Amendment a form of words that necessarily implies the right of self-representation. That conclusion is supported by centuries of consistent history.
IV
31
There can be no blinking the fact that the right of an accused to conduct his own defense seems to cut against the grain of this Court's decisions holding that the Constitution requires that no accused can be convicted and imprisoned unless he has been accorded the right to the assistance of counsel. See Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530. For it is surely true that the basic thesis of those decisions is that the help of a lawyer is essential to assure the defendant a fair trial.43 And a strong argument can surely be made that the whole thrust of those decisions most inevitably lead to the conclusion that a State may constitutionally impose a lawyer upon even an unwilling defendant.
32
But it is one thing to hold that every defendant, rich or poor, has the right to the assistance of counsel, and quite another to say that a State may compel a defendant to accept a lawyer he does not want. The value of state-appointed counsel was not unappreciated by the Founders,44 yet the notion of compulsory counsel was utterly foreign to them. And whatever else may be said of those who wrote the Bill of Rights, surely there can be no doubt that they understood the inestimable worth of free choice.45
33
It is undeniable that in most criminal prosecutions defendants could better defend with counsel's guidance than by their own unskilled efforts. But where the defendant will not voluntarily accept representation by counsel, the potential advantage of a lawyer's training and experience can be realized, if at all, only imperfectly. To force a lawyer on a defendant can only lead him to believe that the law contrives against him. Moreover, it is not inconceivable that in some rare instances, the defendant might in fact present his case more effectively by conducting his own defense. Personal liberties are not rooted in the law of averages. The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of 'that respect for the individual which is the lifeblood of the law.' Illinois v. Allen, 397 U.S. 337, 350—351, 90 S.Ct. 1057, 1064, 25 L.Ed.2d 353 (Brennan, J., concurring).46
V
34
When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must 'knowingly and intelligently' forgo those relinquished benefits. Johnson v. Zerbst, 304 U.S., at 464—465, 58 S.Ct., at 1023. Cf. Von Moltke v. Gillies, 332 U.S. 708, 723—724, 68 S.Ct. 316, 323, 92 L.Ed. 309 (plurality opinion of Black, J.). Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.' Adams v. United States ex rel. McCann, 317 U.S., at 279, 63 S.Ct., at 242.
35
Here, weeks before trial, Faretta clearly and unequivocally declared to the trial judge that he wanted to represent himself and did not want counsel. The record affirmatively shows that Faretta was literate, competent, and understanding, and that he was voluntarily exercising his informed free will. The trial judge had warned Faretta that he thought it was a mistake not to accept the assistance of counsel, and that Faretta would be required to follow all the 'ground rules' of trial procedure.47 We need make no assessment of how well or poorly Faretta had mastered the intricacies of the hearsay rule and the California code provisions that govern challenges of potential jurors on voir dire.48 For his technical legal knowledge, as such, was not relevant to an assessment of his knowing exercise of the right to defend himself.
36
In forcing Faretta, under these circumstances, to accept against his will a state-appointed oublic defender, the California courts deprived him of his constitutional right to conduct his own defense. Accordingly, the judgment before us is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.
37
It is so ordered.
38
Judgment vacated and case remanded.
39
Mr. Chief Justice BURGER, with whom Mr. Justice BLACKMUN and Mr. Justice REHNQUIST join, dissenting.
40
This case, like Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593, announced today, is another example of the judicial tendency to constitutionalize what is thought 'good.' That effort fails on its own terms here, because there is nothing desirable or useful in permitting every accused person, even the most uneducated and inexperienced, to insist upon conducting his own defense to criminal charges.1 Moreover, there is no constitutional basis for the Court's holding, and it can only add to the problems of an already malfunctioning criminal justice system. I therefore dissent.
41
* The most striking feature of the Court's opinion is that it devotes so little discussion to the matter which it concedes is the core of the decision, that is, discerning an independent basis in the Constitution for the supposed right to represent oneself in a criminal trial.2 See ante, at 818-821, and n. 15. Its ultimate assertion that such a right is tucked between the lines of the Sixth Amendment is contradicted by the Amendment's language and its consistent judicial interpretation.
42
As the Court seems to recognize, ante, at 820, the conclusion that the right guaranteed by the Sixth Amendment are 'personal' to an accused reflects nothing more than the obvious fact that it is he who is on trial and therefore has need of a defense.3 But neither that nearly trivial proposition nor the language of the Amendment, which speaks in uniformly mandatory terms, leads to the further conclusion that the right to counsel is merely supplementary and may be dispensed with at the whim of the accused. Rather, this Court's decisions have consistently included the right to counsel as an integral part of the bundle making up the larger 'right to a defense as we know it.' For example, in In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948), the Court reversed a summary contempt conviction at the hands of a 'one-man grand jury,' and had this to say:
43
'We . . . hold that failure to afford the petitioner a reasonable opportunity to defend himself against the charge of false and evasive swearing was a denial of due process of law. A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense—a right to his day in court—are basic in our system of jurisprudence; and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel.' Id., at 273, 68 S.Ct., at 507.
44
See also Argersinger v. Hamlin, 407 U.S. 25, 27—33, 92 S.Ct. 2006, 2007—2011, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796—797, 9 L.Ed.2d 799 (1963).
45
The reason for this hardly requires explanation. The fact of the matter is that in all but an extraordinarily small number of cases an accused will lose whatever defense he may have if he undertakes to conduct the trial himself. The Court's opinion in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), puts the point eloquently:
46
'Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect.' Id., at 69, 53 S.Ct., at 64.
47
Obviously, these considerations do not vary depending upon whether the accused actively desires to be represented by counsel or wishes to proceed pro se. Nor is it accurate to suggest, as the Court seems to later in its opinion, that the quality of his representation at trial is a matter with which only the accused is legitimately concerned. See ante, at 834. Although we have adopted an adversary system of criminal justice, see Gideon v. Wainwright, supra, the prosecution is more than an ordinary litigant, and the trial judge is not simply an automaton who insures that technical rules are adhered to. Both are charged with the duty of insuring that justice, in the broadest sense of that term, is achieved in every criminal trial. See Brady v. Maryland, 373 U.S. 83, 87, and n. 2, 83 S.Ct. 1194, 1196—1197, 10 L.Ed.2d 215 (1963); Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). That goal is ill-served, and the integrity of and public confidence in the system are undermined, when an easy conviction is obtained due to the defendant's ill-advised decision to waive counsel. The damage thus inflicted is not mitigated by the lame explanation that the defendant simply availed himself of the 'freedom' 'to go to jail under his own banner . . ..' United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (CA2 1965). The system of criminal justice should not be available as an instrument of self-destruction.
48
In short, both the 'spirit and the logic' of the Sixth Amendment are that every person accused of crime shall receive the fullest possible defense; in the vast majority of cases this command can be honored only by means of the expressly guaranteed right to counsel, and the trial judge is in the best position to determine whether the accused is capable of conducting his defense. True freedom of choice and society's interest in seeing that justice is achieved can be vindicated to reject any attempted waiver of counsel and insist that the accused be tried according to the Constitution. This discretion is as critical an element of basic fairness as a trial judge's discretion to decline to accept a plea of guilty. See Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498—499, 30 L.Ed.2d 427 (1971).
II
49
The Court's attempt to support its result by collecting dicta from prior decisions is no more persuasive than its analysis of the Sixth Amendment. Considered in context, the cases upon which the Court relies to 'beat its path' either lead it nowhere or point in precisely the opposite direction.
50
In Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942), and Carter v. Illinois, 329 U.S. 173, 67 S.Ct. 216, 91 L.Ed. 172 (1946), the defendants had competently waived counsel but later sought to renounce actions taken by them while proceeding pro se. In both cases this Court upheld the convictions, holding that neither an uncounseled waiver of jury trial nor an uncounseled guilty plea is inherently defective under the Constitution. The language which the Court so carefully excises from those opinions relates, not to an affirmative right of self-representation, but to the consequences of waiver.4 In Adams, for example, Mr. Justice Frankfurter was careful to point out that his reference to a defendant's 'correlative right to dispense with a lawyer's help' meant only that '(h)e may waive his Constitutional right to assistance of counsel . . .,' 317 U.S., at 279, 63 S.Ct., at 242. See United States v. Warner, 428 F.2d 730, 733 (CA8 1970). But, as the Court recognizes, the power to waive a constitutional right does not carry with it the right to insist upon its opposite. Singer v. United States, 380 U.S. 24, 34—35, 85 S.Ct. 783, 789 790, 13 L.Ed.2d 630 (1965).
51
Similarly, in Carter the Court's opinion observed that the Constitution 'does not require that under all circumstances counsel be forced upon a defendant,' citing Adams. 329 U.S., at 174—175, 67 S.Ct., at 218 (emphasis added). I, for one, find this statement impossible to square with the Court's present holding that an accused is absolutely entitled to dispense with a lawyer's help under all conditions. Thus, although Adams and Carter support the Court's conclusion that a defendant who represents himself may not thereafter disaffirm his deliberate trial decisions, see ante, at 834-835, n. 46, they provide it no comfort regarding the primary issue in this case.5
52
Far more nearly in point is Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948), where this Court held that, although the courts of appeals possess the power to command that a prisoner be produced to argue his own appeal, the exercise of that power is a matter of sound judicial discretion. An examination of the whole of the Court's reasoning on this point is instructive:
53
'The discretionary nature of the power in question grows out of the fact that a prisoner has no absolute right to argue his own appeal or even to be present at the proceedings in an appellate court. The absence of that right is in sharp contrast to his constitutional prerogative of being present in person at each significant stage of a felony prosecution, and to his recognized privilege of conducting his own defense at the trial. Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system. Among those so limited is the otherwise unqualified right given by § 272 of the Judicial Code, 28 U.S.C. § 394 (now § 1654), to parties in all the courts of the United States to 'plead and manage their own causes personally." Id., at 285—286, 68 S.Ct., at 1060 (citations omitted).
54
It barely requires emphasis that this passage contrasts the 'constitutional prerogative' to be present at trial with the 'recognized privilege' of self-representation, and strongly implies that the latter arises only from the federal statute. It is difficult to imagine a position less consistent with Price v. Johnston than that taken by the Court today.
55
The Court of Appeals cases relied upon by the Court are likewise dubious authority for its views. Only one of those cases, United States v. Plattner, 330 F.2d 271 (CA2 1964), even attempted a reasoned analysis of the issue, and the decision in that case was largely based upon the misreading of Adams and Price which the Court perpetuates in its opinion today. See 330 F.2d, at 275. In every other case cited ante, at 817, the Courts of Appeals assumed that the right of self-representation was constitutionally based but found that the right had not been violated and affirmed the conviction under review. It is highly questionable whether such holdings would even establish the law of the Circuits from which they came.
56
In short, what the Court represents as a well-traveled road is in reality a constitutional trail which it is blazing for the first time today, one that has not even been hinted at in our previous decisions. Far from an interpretation of the Sixth Amendment, it is a perversion of the provision to which we gave full meaning in Gideon v. Wainwright and Argersinger v. Hamlin.
III
57
Like Mr. Justice BLACKMUN, I hesitate to participate in the Court's attempt to use history to take it where legal analysis cannot. Piecing together shreds of English legal history and early state constitutional and statutory provisions, without a full elaboration of the context in which they occurred or any evidence that they were relied upon by the drafters of our Federal Constitution, creates more questions than it answers and hardly provides the firm foundation upon which the creation of new constitutional rights should rest. We are well reminded that this Court once employed an exhaustive analysis of English and colonial practices regarding the right to counsel to justify the conclusion that it was fundamental to a fair trial and, less than 10 years later, used essentially the same material to conclude that it was not. Compare Powell v. Alabama, 287 U.S., at 60—65, 53 S.Ct., at 60—63, with Betts v. Brady, 316 U.S. 455, 465—471, 62 S.Ct. 1252, 1257—1261, 86 L.Ed. 1595 (1942).
58
As if to illustrate this point, the single historical fact cited by the Court which would appear truly relevant to ascertaining the meaning of the Sixth Amendment proves too much. As the Court points out, ante, at 2539, § 35 of the Judiciary Act of 1789 provided a statutory right to self-representation in federal criminal trials. The text of the Sixth Amendment, which expressly provides only for a right to counsel, was proposed the day after the Judiciary Act was signed. It can hardly be suggested that the Members of the Congress of 1789, then few in number, were unfamiliar with the Amendment's carefully structured language, which had been under discussion since the 1787 Constitutional Convention. And it would be most remarkable to suggest, had the right to conduct one's own defense been considered so critical as to require constitutional protection, that it would have been left to implication. Rather, under traditional canons of construction, inclusion of the right in the Judiciary Act and its omission from the constitutional amendment drafted at the same time by many of the same men, supports the conclusion that the omission was intentional.
59
There is no way to reconcile the idea that the Sixth Amendment impliedly guaranteed the right of an accused to conduct his own defense with the contemporaneous action of the Congress in passing a statute explicitly giving that right. If the Sixth Amendment created a right to self-representation it was unnecessary for Congress to enact any statute on the subject at all. In this case, therefore, history ought to lead judges to conclude that the Constitution leaves to the judgment of legislatures, and the flexible process of statutory amendment, the question whether criminal defendants should be permitted to conduct their trials pro se. See Betts v. Brady, supra. And the fact that we have not hinted at a contrary view for 185 years in surely entitled to some weight in the scales.6 Cf. Jackman v. Rosenbaum Co., 260 U.S. 22, 31, 43 S.Ct. 9, 10, 67 L.Ed. 107 (1922).
IV
60
Society has the right to expect that, when courts find new rights implied in the Constitution, their potential effect upon the resources of our criminal justice system will be considered. However, such considerations are conspicuously absent from the Court's opinion in this case.
61
It hardly needs repeating that courts at all levels are already handicapped by the unsupplied demand for competent advocates, with the result that it often takes far longer to complete a given case than experienced counsel would require. If we were to assume that there will be widespread exercise of the newly discovered constitutional right to self-representation, it would almost certainly follow that there will be added congestion in the courts and that the quality of justice will suffer. Moreover, the Court blandly assumes that once an accused has elected to defend himself he will be bound by his choice and not be heard to complain of it later. Ante, at 834-835, n. 46. This assumption ignores the role of appellate review, for the reported cases are replete with instances of a convicted defendant being relieved of a deliberate decision even when made with the advice of counsel. See Silber v. United States, 370 U.S. 717, 82 S.Ct. 1287, 8 L.Ed.2d 798 (1962). It is totally unrealistic, therefore, to suggest that an accused will always be held to the consequences of a decision to conduct his own defense. Unless, as may be the case, most persons accused of crime have more wit than to insist upon the dubious benefit that the Court confers today, we can expect that many expensive and good-faith prosecutions will be nullified on appeal for reasons that trial courts are now deprived of the power to prevent.7
62
Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, dissenting.
63
Today the Court holds that the Sixth Amendment guarantees to every defendant in a state criminal trial the right to proceed without counsel whenever he elects to do so. I find no textual support for this conclusion in the language of the Sixth Amendment. I find the historical evidence relied upon by the Court to be unpersuasive, especially in light of the recent history of criminal procedure. Finally, I fear that the right to self-representation constitutionalized today frequently will cause procedural confusion without advancing any significant strategic interest of the defendant. I therefore dissent.
64
* The starting point, of course, is the language of the Sixth Amendment:
65
'In all criminal prosecutions, the accused shall enjoy the right (to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and) to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.'
66
It is self-evident that the Amendment makes no direct reference to self-representation. Indeed, the Court concedes that the right to self-representation is 'not stated in the Amendment in so many words.' Ante, at 819.
67
It could be argued that the right to assistance of counsel necessarily carries with it the right to waive assistance of counsel. The Court recognizes, however, ante, at 819-820, n. 15, that it has squarely rejected any mechanical interpretation of the Bill of Rights. Mr. Chief Justice Warren, speaking for a unanimous Court in Singer v. United States, 380 U.S. 24, 34—35, 85 S.Ct. 783, 790, 13 L.Ed.2d 630 (1965), stated: 'The ability to waive a constitutional right does not ordinarily carry with it the right to insist upon the opposite of that right.'
68
Where then in the Sixth Amendment does one find this right to self-representation? According to the Court, it is 'necessarily implied by the structure of the Amendment.' Ante, at 819. The Court's chain of inferences is delicate and deserves scrutiny. The Court starts with the proposition that the Sixth Amendment is 'a compact statement of the rights necessary to a full defense.' Ante, at 818. From this proposition the Court concludes that the Sixth Amendment 'constitutionalizes the right in an adversary criminal trial to make a defense as we know it.' Ante, at 818. Up to this point, at least as a general proposition, the Court's reasoning is unexceptionable. The Court, however, then concludes that because the specific rights in the Sixth Amendment are personal to the accused, the accused must have a right to exercise those rights personally. Stated somewhat more succinctly, the Court reasons that because the accused has a personal right to 'a defense as we know it,' he necessarily has a right to make that defense personally. I disagree. Although I believe the specific guarantees of the Sixth Amendment are personal to the accused, I do not agree that the Sixth Amendment guarantees any particular procedural method of asserting those rights. If an accused has enjoyed a speedy trial by an impartial jury in which he was informed of the nature of the accusation, confronted with the witnesses against him, afforded the power of compulsory process, and represented effectively by competent counsel, I do not see that the Sixth Amendment requires more.
69
The Court suggests that thrusting counsel upon the accused against his considered with violates the logic of the Sixth Amendment because counsel is to be an assistant not a master. The Court seeks to support its conclusion by historical analogy to the notorious procedures of the Star Chamber. The potential for exaggerated analogy, however, is markedly diminished when one recalls that petitioner is seeking an absolute right to self-representation. This is not a case where defense counsel, against the wishes of the defendant or with inadequate consultation, has adopted a trial strategy that significantly affects one of the accused's constitutional rights. For such overbearing conduct by counsel, there is a remedy. Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966); Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963). Nor is this a case where distrust, animosity, or other personal differences between the accused and his would-be counsel have rendered effective representation unlikely or impossible. See Brown v. Craven, 424 F.2d 1166, 1169—1170 (CA9 1970). See also Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Nor is this even a case where a defendant has been forced, against his wishes to expend his personal resources to pay for counsel for his defense. See generally Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974); James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972). Instead, the Court holds that any defendant in any criminal proceeding may insist on representing himself regardless of how complex the trial is likely to be and regardless of how frivolous the defendant's motivations may be. I cannot agree that there is anything in the Due Process Clause or the Sixth Amendment that requires the States to subordinate the solemn business of conducting a criminal prosecution to the whimsical—albeit voluntary—caprice of every accused who wishes to use his trial as a vehicle for personal or political self-gratification.
70
The Court seems to suggest that so long as the accused is willing to pay the consequences of his folly, there is no reason for not allowing a defendant the right to self-representation. Ante, at 834. See also United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (CA2 1965) ('(E)ven in cases where the accused is harming himself by insisting on conducting his own defense, respect for individual autonomy requires that he be allowed to go to jail under his own banner if he so desires . . .'). That view ignores the established principle that the interest of the State in a criminal prosecution 'is not that it shall win a case, but that justice shall be done.' Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). See also Singer v. United States, 380 U.S., at 37, 85 S.Ct. at 791. For my part, I do not believe that any amount of pro se pleading can cure the injury to society of an unjust result, but I do believe that a just result should prove to be an effective balm for almost any frustrated pro se defendant.
II
71
The Court argues that its conclusion is supported by the historical evidence on self-representation. It is true that self-representation was common, if not required, in 18th century English and American prosecutions. The Court points with special emphasis to the guarantees of self-representation in colonial charters, early state constitutions, and § 35 of the first Judiciary Act as evidence contemporaneous with the Bill of Rights of widespread recognition of a right to self-representation.
72
I do not participate in the Court's reliance on the historical evidence. To begin with, the historical evidence seems to me to be inconclusive in revealing the original understanding of the language of the Sixth Amendment. At the time the Amendment was first proposed, both the right to self-representation and the right to assistance of counsel in federal prosecutions were guaranteed by statute. The Sixth Amendment expressly constitutionalized the right to assistance of counsel but remained conspicuously silent on any right of self-representation. The Court believes that this silence of the Sixth Amendment as to the latter right is evidence of the Framers' belief that the right was so obvious and fundamental that it did not need to be included 'in so many words' in order to be protected by the Amendment. I believe it is at least equally plausible to conclude that the Amendment's silence as to the right of self-representation indicates that the Framers simply did not have the subject in mind when they drafted the language.
73
The paucity of historical support for the Court's position becomes far more profound when one examines it against the background of two developments in the more recent history of criminal procedure. First, until the middle of the 19th century, the defendant in a criminal proceeding in this country was almost always disqualified from testifying as a witness because of his 'interest' in the outcome. See generally Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961). Thus, the ability to defend 'in person' was frequently the defendant's only chance to present his side of the case to the judge or jury. See, e.g., Wilson v. State, 50 Tenn. 232 (1871). Such Draconian rules of evidence, of course, are now a relic of the past because virtually every State has passed a statute abrogating the common-law rule of disqualification. See Ferguson v. Georgia, 365 U.S., at 575—577, 596, 81 S.Ct. at 759. With the abolition of the common-law disqualification, the right to appear 'in person' as well as by counsel lost most, if not all, of its original importance. See Grano, The Right to Counsel: Collateral Issues Affecting Due Process, 54 Minn.L.Rev. 1175, 1192 1194 (1970).
74
The second historical development is this Court's elaboration of the right to counsel. The road the Court has traveled from Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), to Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), need not be recounted here. For our purposes, it is sufficient to recall that from start to finish the development of the right to counsel has been based on the premise that representation by counsel is essential to ensure a fair trial. The Court concedes this and acknowledges that 'a strong argument can surely be made that the whole thrust of those decisions must inevitably lead to the conclusion that a State may constitutionally impose a lawyer upon even an unwilling defendant.' Ante, at 833. Nevertheless, the Court concludes that self-representation must be allowed despite the obvious dangers of unjust convictions in order to protect the individual defendant's right of free choice. As I have already indicated, I cannot agree to such a drastic curtailment of the interest of the State in seeing that justice is done in a real and objective sense.
III
75
In conclusion, I note briefly the procedural problems that, I suspect, today's decision will visit upon trial courts in the future. Although the Court indicates that a pro se defendant necessarily waives any claim he might otherwise make of ineffective assistance of counsel, ante, at 834-835, n. 46, the opinion leaves open a host of other procedural questions. Must every defendant be advised of his right to proceed pro se? If so, when must that notice be given? Since the right to assistance of counsel and the right to self-representation are mutually exclusive, how is the waiver of each right to be measured? If a defendant has elected to exercise his right to proceed pro se, does he still have a constitutional right to assistance of standby counsel? How soon in the criminal proceeding must a defendant decide between proceeding by counsel or pro se? Must he be allowed to switch in midtrial? May a violation of the right to self-representation ever be harmless error? Must the trial court treat the pro se defendant differently than it would professional counsel? I assume that many of these questions will be answered with finality in due course. Many of them, however, such as the standards of waiver and the treatment of the pro se defendant, will haunt the trial of every defendant who elects to exercise his right to self-representation. The procedural problems spawned by an absolute right to self-representation will far outweigh whatever tactical advantage the defendant may feel he has gained by electing to represent himself.
76
If there is any truth to the old proverb that 'one who is his own lawyer has a fool for a client,' the Court by its opinion today now bestows a constitutional right on one to make a fool of himself.
1
See, e.g., Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530.
2
The judge informed Faretta:
'You are going to follow the procedure. You are going to have to ask the questions right. If there is an objection to the form of the question and it is properly taken, it is going to be sustained. We are going to treat you like a gentleman. We are going to respect you. We are going to give you every chance, but you are going to play with the same ground rules that anybody plays. And you don't know those ground rules. You wouldn't know those ground rules any more than any other lawyer will know those ground rules until he gets out and tries a lot of cases. And you haven't done it.'
3
The colloquy was as follows:
'THE COURT: In the Faretta matter, I brought you back down here to do some reconsideration as to whether or not you should continue to represent yourself.
'How have you been getting along on your research?
'THE DEFENDANT: Not bad, your Honor.
'Last night I put in the mail a 995 motion and it should be with the Clerk within the next day or two.
'THE COURT: Have you been preparing yourself for the intricacies of the trial of the matter?
'THE DEFENDANT: Well, your Honor, I was hoping that the case could possibly be disposed of on the 995.
'Mrs. Ayers informed me yesterday that it was the Court's policy to hear the pretrial motions at the time of trial. If possible, your
Honor, I would like a date set as soon as the Court deems adequate after they receive the motion, sometime before trial.
'THE COURT: Let's see how you have been doing on your research.
'How many exceptions are there to the hearsay rule?
'THE DEFENDANT: Well, the hearsay rule would, I guess, be called the best evidence rule, your Honor. And there are several exceptions in case law, but in actual statutory law, I don't feel there is none.
'THE COURT: What are the challenges to the jury for cause?
'THE DEFENDANT: Well, there is twelve peremptory challenges.
'THE COURT: And how many for cause?
'THE DEFENDANT: Well, as many as the Court deems valid.
'THE COURT: And what are they? What are the grounds for challenging a juror for cause?
'THE DEFENDANT: Well, numerous grounds to challenge a witness I mean, a juror, your Honor, one being the juror is perhaps suffered, was a victim of the same type of offense, might be prejudiced toward the defendant. Any substantial ground that might make the juror prejudice(d) toward the defendant.
'THE COURT: Anything else?
'THE DEFENDANT: Well, a relative perhaps of the victim.
'THE COURT: Have you taken a look at that code section to see what it is?
'THE DEFENDANT: Challenge a juror?
'THE COURT: Yes.
'THE DEFENDANT: Yes, your Honor. I have done—
'THE COURT: What is the code section?
'THE DEFENDANT: On voir diring a jury, your Honor?
'THE COURT: Yes.
'THE DEFENDANT: I am not aware of the section right offhand.
'THE COURT: What code is it in?
'THE DEFENDANT: Well, the research I have done on challenging would be in Witkins Jurisprudence.
'THE COURT: Have you looked at any of the codes to see where these various things are taken up?
'THE DEFENDANT: No, your Honor, I haven't.
'THE COURT: Have you looked in any of the California Codes with reference to trial procedure?
'THE DEFENDANT: Yes, your Honor.
'THE COURT: What codes?
'THE DEFENDANT: I have done extensive research in the Penal Code, your Honor, and the Civil Code.
'THE COURT: If you have done extensive research into it, then tell me about it.
'THE DEFENDANT: On empaneling a jury, your Honor?
'THE COURT: Yes.
'THE DEFENDANT: Well, the District Attorney and the defendant, defense counsel, has both the right to 12 peremptory challenges of a jury. These 12 challenges are undisputable. Any reason that the defense or prosecution should feel that a juror would be inadequate to try the case or to rule on a case, they may then discharge that juror.
'But if there is a valid challenge due to grounds of prejudice or some other grounds, that these aren't considered in the 12 peremptory challenges. There are numerous and the defendant, the defense and the prosecution both have the right to make any inquiry to the jury as to their feelings toward the case.'
4
The judge concluded:
'(T)aking into consideration the recent case of People versus Sharp, where the defendant apparently does not have a constitutional right to represent himself, the Court finds that the ends of justice and requirements of due process require that the prior order permitting the defendant to represent himself in pro per should be and is hereby revoked. That privilege is terminated.'
5
Faretta also urged without success that he was entitled to counsel of his choice, and three times moved for the appointment of a lawyer other than the public defender. These motions, too, were denied.
6
People v. Sharp, 7 Cal.3d 448, 103 Cal.Rptr. 233, 499 P.2d 489.
When Sharp was tried the California Constitution expressly provided that the accused in a criminal prosecution had the right 'to appear and defend, in person and with counsel.' Cal.Const., Art. 1, § 13. In an earlier decision the California Supreme Court had held that this language meant that the accused had the right to appear by himself or with counsel. People v. Mattson, 51 Cal.2d 777, 336 P.2d 937. This view was rejected in Sharp, the California Supreme Court there holding that the defendant in a criminal prosecution has no right under the State or the Federal Constitution to represent himself at trial. See generally Y. Kamisar, W. LaFave & J. Israel, Modern Criminal Procedure 57—60 (4th ed. 1974); Note, 10 Calif.Western L.Rev. 196 (1973); Note, 24 Hastings L.J. 431 (1973); Comment, 64 J.Crim.L. 240 (1973).
Although immaterial to the court's decision, shortly before Sharp was decided on appeal the California Constitution had been amended to delete the right of self-representation from Art. 1, § 13, and to empower the legislature expressly 'to require the defendant in a felony case to have the assistance of counsel.' The new statutes on their face require counsel only in capital cases. See Cal.Penal Code §§ 686(2), 686.1, 859, 987 (1970 and Supp.1975). In other than capital cases the accused retains by statutory terms a right 'to appear and defend in person and with counsel.' § 686(2). However, this language tracks the old language of Art. 1, § 13, of the California Constitution; and in construing the constitutional language in Sharp to exclude any right of self-representation under former Art. 1, § 13, of the State Constitution, the California Supreme Court also stated that § 686(2) does not provide any right of self-representation.
7
The Court of Appeal also held that the trial court had not 'abused its discretion in concluding that Faretta had not made a knowing and intelligent waiver of his right to be represented by counsel,' since 'Faretta did not appear aware of the possible consequences of waiving the opportunity for skilled and experienced representation at trial.'
8
The California courts' conclusion that Faretta had no constitutional right to represent himself was made in the context of the following not unusual rules of California criminal procedure: An indigent criminal defendant has no right to appointed counsel of his choice. See Drumgo v. Superior Court, 8 Cal.3d 930, 106 Cal.Rptr. 631, 506 P.2d 1007; People v. Miller, 7 Cal.3d 562, 574, 102 Cal.Rptr. 841, 849, 498 P.2d 1089, 1097; People v. Massie, 66 Cal.2d 899, 910, 59 Cal.Rptr. 733, 740—741, 428 P.2d 869, 876—877; People v. Taylor, 259 Cal.App.2d 448, 450 451, 66 Cal.Rptr. 514, 515—517. The appointed counsel manages the lawsuit and has the final say in all but a few matters of trial strategy. See, e.g., People v. Williams, 2 Cal.3d 894, 905, 88 Cal.Rptr. 208, 471 P.2d 1008, 1015; People v. Foster, 67 Cal.2d 604, 606—607, 63 Cal.Rptr. 288, 289—290, 432 P.2d 976, 977—978; People v. Monk, 56 Cal.2d 288, 299, 14 Cal.Rptr. 633, 638—639, 363 P.2d 865, 870—871; see generally Rhay v. Browder, 342 F.2d 345, 349 (CA9). A California conviction will not be reversed on grounds of ineffective assistance of counsel except in the extreme case where the quality of representation was so poor as to render the trial a 'farce or a sham.' People v. Ibarra, 60 Cal.2d 460, 34 Cal.Rptr. 863, 386 P.2d 487; see People v. Miller, supra, 7 Cal.3d, at 573, 102 Cal.Rptr., at 848—849, 498 P.2d, at 1096—1097; People v. Floyd, 1 Cal.3d 694, 709, 83 Cal.Rptr. 608, 617, 464 P.2d 64, 73; People v. Hill, 70 Cal.2d 678, 689, 76 Cal.Rptr. 225, 230, 452 P.2d 329, 334; People v. Reeves, 64 Cal.2d 766, 774, 51 Cal.Rptr. 691, 695, 415 P.2d 35, 39.
9
See, e.g., Mackreth v. Wilson, 31 Ala.App. 191, 15 So.2d 112; Cappetta v. State, 204 So.2d 913 (Fla.Dist.Ct.App.); Lockard v. State, 92 Idaho 813, 451 P.2d 1014; People v. Nelson, 47 Ill.2d 570, 268 N.E.2d 2; Blanton v. State, 229 Ind. 701, 98 N.E.2d 186; Westberry v. State, 254 A.2d 44 (Me.); Allen v. Commonwealth, 324 Mass. 558, 87 N.E.2d 192; People v. Haddad, 306 Mich. 556, 11 N.W.2d 240; State v. McGhee, 184 Neb. 352, 167 N.W.2d 765; Zasada v. State, 19 N.J.Super. 589, 89 A.2d 45; People v. McLaughlin, 291 N.Y. 480, 53 N.E.2d 356; State v. Pritchard, 227 N.C. 168, 41 S.E.2d 287; State v. Hollman, 232 S.C. 489, 102 S.E.2d 873; State v. Thomlinson, 78 S.D. 235, 100 N.W.2d 121; State v. Penderville, 2 Utah 2d 281, 272 P.2d 195; State v. Woodall, 5 Wash.App. 901, 491 P.2d 680. See generally Annot., 77 A.L.R.2d 1233 (1961); 5 R. Anderson, Wharton's Criminal Law and Procedure § 2016 (1957).
10
Some States grant the accused the right to be heard, or to defend, in person and by counsel: Ariz.Const., Art. 2, § 24; Ark.Const., Art. 2, § 10; Colo.Const., Art. 2, § 16; Conn.Const., Art. 1, § 8; Del.Const., Art. 1, § 7; Idaho Const., Art. 1, § 13; Ill.Const., Art. 1, § 8; Ind.Const., Art. 1, § 13; Ky.Const. Bill of Rights, § 11; Mo.Const., Art. 1, § 18(a); Mont.Const., Art. 3, § 16; Nev.Const., Art. 1, § 8; N.H.Const., pt. 1, Art. 15; N.M.Const., Art. 2, § 14; N.Y.Const., Art. 1, § 6; N.D.Const., Art. 1, § 13; Ohio Const., Art. 1, § 10; Okla.Const., Art. 2, § 20; Ore.Const., Art. 1, § 11, Pa.Const., Art. 1, § 9; S.D.Const., Art. 6, § 7; Tenn.Const., Art. 1, § 9; Utah Const., Art. 1, § 12; Vt.Const., c. 1, Art. 10; Wis.Const., Art. 1, § 7; see La.Const., Art. 1, § 9.
Others grant the right to defend in person or by counsel: Kan.Const. Bill of Rights, § 10; Mass.Const., pt. 1, Art. 12; Neb.Const., Art. 1, § 11; Wash.Const., Art. 1, § 22.
Still others provide the accused the right to defend either by himself, by counsel, or both: Ala.Const., Art. 1, § 6; Fla.Const., Art. 1, § 16; Me.Const., Art. 1, § 6; Miss.Const., Art. 3, § 26; S.C.Const., Art. 1, § 14; Tex.Const., Art. 1, § 10.
11
See, e.g., Lockard v. State, supra; People v. Nelson, supra; Blanton v. State, supra; Zasada v. State, supra; People v. McLaughlin, supra; State v. Mems, 281 N.C. 658, 190 S.E.2d 164; State v. Verna, 9 Or.App. 620, 498 P.2d 793.
12
The holding of Adams was reaffirmed in a different context in Carter v. Illinois, 329 U.S. 173, 174—175, 67 S.Ct. 216, 218, 91 L.Ed. 172, where the Court again adverted to the right of self-representation:
'Neither the historic conception of Due Process nor the vitality it derives from progressive standards of justice denies a person the right to defend himself or to confess guilt. Under appropriate circumstances the Constitution requires that counsel be tendered; it does not require that under all circumstances counsel be forced upon a defendant.' (Emphasis added.) See also Moore v. Michigan, 355 U.S. 155, 161, 78 S.Ct. 191, 195, 2 L.Ed.2d 167.
13
Jackson, Full Faith and Credit—The Lawyer's Clause of the Constitution, 45 Col.L.Rev. 1, 26 (1945).
14
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 (right to counsel); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (right of confrontation); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (right to compulsory process). See also In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682.
15
This Court has often recognized the constitutional stature of rights that, though not literally expressed in the document, are essential to due process of law in a fair adversary process. It is now accepted, for example, that an accused has a right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings, Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674; to testify on his own behalf, see Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 645, 28 L.Ed.2d 1; Brooks v. Tennessee, 406 U.S. 605, 612, 92 S.Ct. 1891, 1895, 32 L.Ed.2d 358; cf. Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783, and to be convicted only if his guilt is proved beyond a reasonable doubt, In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368; Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508.
The inference of rights is not, of course, a mechanical exercise. In Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630, the Court held that an accused has no right to a bench trial, despite his capacity to waive his right to a jury trial. In so holding, the Court stated that '(t)he ability to waive a constitutional right does not ordinarily carry with it the right to insist upon the opposite of that right.' Id., at 34—35, 85 S.Ct., at 790. But that statement was made only after the Court had concluded that the Constitution does not affirmatively protect any right to be tried by a judge. Recognizing that an implied right must arise independently from the design and history of the constitutional text, the Court searched for, but could not find, any 'indication that the colonists considered the ability to waive a jury trial to be of equal importance to the right to demand one.' Id., at 26, 85 S.Ct., at 785. Instead, the Court could locate only 'isolated instances' of a right to trial by judge, and concluded that these were 'clear departures from the common law.' Ibid.
We follow the approach of Singer here. Our concern is with an independent right of self-representation. We do not suggest that this right arises mechanically from a defendant's power to waive the right to the assistance of counsel. See supra, at 814-815. On the contrary, the right must be independently found in the structure and history of the constitutional text.
16
Such a result would sever the concept of counsel from its historic roots. The first lawyers were personal friends of the litigant, brought into court by him so that he might 'take 'counsel' with them' before pleading. 1 F. Pollock & F. Maitland, The History of English Law 211 (2d ed. 1909). Similarly, the first 'attorneys' were personal agents, often lacking any professional training, who were appointed by those litigants who had secured royal permission to carry on their affairs through a representative, rather than personally. Id., at 212—213.
17
'The court of star chamber was an efficient, somewhat arbitrary arm of royal power. It was at the height of its career in the days of the Tudor and Stuart kings. Star chamber stood for swiftness and power; it was not a competitor of the common law so much as a limitation on it—a reminder that high state policy could not safely be entrusted to a system so chancy as English law. . . .' L. Friedman, A History of American Law 23 (1973). See generally 5 W. Holdsworth, A History of English Law 155—214 (1927).
18
'The proceedings before the Star Chamber began by a Bill 'engrossed in parchment and filed with the clerk of the court.' It must, like the other pleadings, be signed by counsel . . .. However, counsel were obliged to be careful what they signed. If they put their hands to merely frivolous pleas, or otherwise misbehaved themselves in the conduct of their cases, they were liable to rebuke, suspension, a fine, or imprisonment.' Holdsworth, supra, n. 17, at 178—179. Counsel, therefore, had to be cautious that any pleadings they signed would not unduly offend the Crown. See 1 J. Stephen, A History of the Criminal Law of England 340—341 (1883).
This presented not merely a hypothetical risk for the accused. Stephen gives the following account of a criminal libel trial in the Star Chamber:
'In 1632 William Prynne was informed against for his book called Histrio Mastix. Prynne's answer was, amongst other things, that his book had been licensed, and one of the counsel, Mr. Holbourn, apologised, not without good cause, for his style. . . . His trial was, like the other Star Chamber proceedings, perfectly decent and quiet, but the sentence can be described only as monstrous. He was sentenced to be disbarred and deprived of his university degrees; to stand twice in the pillory, and to have one ear cut off each time; to be fined 5,000; and to be perpetually imprisoned, without books, pen, ink, or paper. . . .
'Five years after this, in 1637, Prynne, Bastwick, and Burton, were tried for libel, and were all sentenced to the same punishment as Prynne had received in 1632, Prynne being branded on the cheeks instead of losing his ears.
'The procedure in this case appears to me to have been as harsh as the sentence was severe, though I do not think it has been so much noticed. . . . Star Chamber defendants were not only allowed counsel, but were required to get their answers signed by counsel. The effect of this rule, and probably its object was, that no defence could be put before the Court which counsel would not take the responsibility of signing—a responsibility which, at that time, was extremely serious. If counsel would not sign the defendant's answer he was taken to have confessed the information. Prynne's answer was of such a character that one of the counsel assigned to him refused to sign it at all, and the other did not sign it till after the proper time. Bastwick could get no one to sign his answer. Burton's answer was signed by counsel, but was set aside as impertinent. Upon the whole, the case was taken to be admitted by all the three, and judgment was passed on them accordingly. . . .' Stephen, supra, 340—341.
That Prynne's defense was foreclosed by the refusal of assigned counsel to endorse his answer is all the more shocking when it is realized that Prynne was himself a lawyer I. Brant, The Bill of Rights 106 (1965). On the operation of the Star Chamber generally, see Barnes, Star Chamber Mythology, 5 Am.J.Legal Hist. 1—11 (1961), and Barnes, Due Process and Slow Process in the Late Elizabethan-Early Stuart Star Chamber, 6 Am.J.Legal Hist. 221—249, 315—346 (1962).
19
Pollock & Maitland, supra, n. 16, at 211.
20
Ibid. See also Stephen, supra, n. 18, at 341.
21
Id., at 326.
The trial would begin with accusations by counsel for the Crown. The prisoner usually asked, and was granted, the privilege of answering separately each matter alleged against him:
'(T)he trial became a series of excited altercations between the prisoner and the different counsel opposed to him. Every statement of counsel operated as a question to the prisoner, . . . the prisoner either admitting or denying or explaining what was alleged against him. The result was that . . . the examination of the prisoner . . . was the very essence of the trial, and his answers regulated the production of the evidence . . .. As the argument proceeded the counsel (for the Crown) would frequently allege matters which the prisoner denied and called upon them to prove. The proof was usually given by reading depositions, confessions of accomplices, letters, and the like . . .. When the matter had been fully inquired into . . . the presiding judge 'repeated' or summed up to the jury the matters alleged against the prisoner, and the answers given by him; and the jury gave their verdict.' Id., at 325—326.
22
Holdsworth, supra, n. 17, at 195—196.
23
7 Will. 3, c. 3, § 1. The right to call witnesses under oath was extended to felony cases by statute in 1701. 1 Anne, Stat. 2, c. 9, & 3.
24
The statute provided, in pertinent part, that the accused 'shall be received and admitted to make his and their full Defence, by Counsel learned in the Law, and to make any Proof that he or they can produce by lawful Witness or Witnesses, who shall then be upon Oath, for his and their just Defence in that Behalf; and in case any Person or Persons so accused or indicted shall desire Counsel, the Court before whom such Person or Persons shall be tried, or some Judge of that Court, shall and is hereby authorized and required immediately, upon his or their Request, to assign to such Person and Persons such and so many Counsel, not exceeding Two, as the Person or Persons shall desire, to whom such Counsel shall have free Access at all seasonable Hours; any Law or Usage to the contrary notwithstanding.'
25
Holdsworth, supra, n. 17, at 195.
26
In Mary Blandy's 1752 murder trial, for example, the court declared that counsel for the defendant could not only speak on points of law raised by the defense, but could also examine defense witnesses and cross-examine those of the Crown. 18 How.St.Tr. 1117. Later in that century judges often allowed counsel for the accused 'to instruct him what questions to ask, or even to ask questions for him, with respect to matters of fact . . . (or) law.' 4 W. Blackstone, Commentaries *355—356.
27
6 & 7 Will. 4, c. 114, § 1. The statute provided in pertinent part that the accused 'shall be admitted, after the Close of the Case for the Prosecution, to make full Answer and Defence thereto by Counsel learned in the Law, or by Attorney in Courts where Attornies practise as Counsel.'
28
See, e.g., Poor Prisoners' Defence Act, 1903, 3 Edw. 7, c, 38, § 1; Poor Prisoners' Defence Act, 1930, 20 & 21 Goe. 5, c. 32; Legal Aid and Advice Act, 1949, 12 & 13 Geo. 6, c. 51.
29
Counsel had been appointed for the defendant Woodward but withdrew shortly before trial. When the trial court appointed a substitute counsel, the defendant objected: 'I would rather not have legal aid. I would rather conduct the case myself.' The trial court insisted, however, that the defendant proceed to trial with counsel, and a conviction resulted. On appeal, the Crown did not even attempt to deny a basic right of self-representation, but argued only that the right had been waived when the accused accepted the first counsel. The Court of Appeal rejected this argument: 'The prisoner right at the beginning (of the trial) said that he wished to defend himself . . . and he was refused what we think was his right to make his own case to the jury instead of having it made for him by counsel.' This, the court held, was an 'injustice to the prisoner,' and 'although there was a good deal of evidence against the prisoner,' the court quashed the conviction.
30
C. Warren, A History of the American Bar 7 (1911).
31
D. Boorstin, The Americans; The Colonial Experience 197 (1958).
32
For example, the Massachusetts Body of Liberties (1641) in Art. 26 provided:
'Every man that findeth himselfe unfit to plead his owne cause in any Court shall have Libertie to imploy any man against whom the Court doth not except, to helpe him, provided he give him noe fee or reward for his paines. . . .'
Pleading for hire was also prohibited in 17th Century Virginia, Connecticut, and the Carolinas. Friedman, supra, n. 17, at 81.
33
Id., at 82.
34
Warren, supra, n. 30, at 212.
35
For example, Zephaniah Swift, in one of the first American colonial treatises on law, made clear that a right to counsel was recognized in Connecticut. He wrote:
'We have never admitted that cruel and illiberal principle of the common law of England, that when a man is on trial for his life, he shall be refused counsel, and denied those means of defence, which are allowed, when the most trifling pittance of property is in question. The flimsy pretence, that the court are to be counsel for the prisoner will only heighten our indignation at the practice: for it is apparent to the least consideration, that a court can never furnish a person accused of a crime with the advice, and assistance necessary to make his defence. . . .
'Our ancestors, when they first enacted their laws respecting crimes, influenced by the illiberal principles which they had imbibed in their native country, denied counsel to prisoners to plead for them to any thing but points of law. It is manifest that there is as much necessity for counsel to investigate matters of fact, as points of law, if truth is to be discovered.' 2 Z. Swift, A System of the Laws of the State of Connecticut 398—399 (1796).
Similarly, colonial Virginia at first based its court proceedings on English judicial customs, but '(b)y the middle of the eighteenth century the defendant was permitted advice of counsel if he could afford such services.' H. Rankin, Criminal Trial Proceedings in the General Court of Colonial Virginia 67, 89 (1965).
36
See, e.g., id., at 89—90.
37
See e.g., the Massachusetts Body of Liberties, Art. 26 (1941), supra, n. 32.
Similarly, the Concessions and Agreements of West New Jersey, in 1677, provided, for all cases, civil and criminal, 'that no person or persons shall be compelled to fee any attorney or counciller to plead his cause, but that all persons have free liberty to plead his own cause, if he please.'
The Pennsylvania Frame of Government of 1682, perhaps 'the most influential of the Colonial documents protecting individual rights,' 1 B. Schwartz, The Bill of Rights: A Documentary History 130 (1971) (hereinafter Schwartz), provided:
'That, in all courts all persons of all persuasions may freely appear in their own way, and according to their own manner, and there personally plead their own cause themselves; or, if unable, by their friends . . ..'
That provision was no doubt inspired by William Penn's belief that an accused should go free if he could personally persuade a jury that it would be unjust to convict him. In England, 12 years earlier, Penn, after preaching a sermon in the street, had been indicted and tried for disturbing the peace. Penn conceded that he was 'unacquainted with the formality of the law,' but requested that he be given a fair hearing and the 'liberty of making my defence.' The request was granted, Penn represented himself, and although the judges jailed him for contempt, the jury acquitted him of the charge. 'The People's Ancient and Just Liberties Asserted, in the Trial of William Penn and William Mead, 1670,' reproduced in 1 Schwartz 144, 147. See The Trial of William Penn, 6 How.St.Tr. 951 (1670), cited in Illinois v. Allen, 397 U.S. 337, 353, 90 S.Ct. 1057, 1065, 25 L.Ed.2d 353 (opinion of Douglas, J.).
38
Article IX of the Pennsylvania Declaration of Rights in 1776 guaranteed '(t)hat in all prosecutions for criminal offences, a man hath a right to be heard by himself and his council . . ..' The Vermont Declaration of Rights (Art. X) in 1777 protected the right of self-representation with virtually identical language. The Georgia Constitution (Art. LVIII) in 1777 declared that its provisions barring the unauthorized practice of law were 'not intended to exclude any person from that inherent privilege of every freeman, the liberty to plead his own cause.' In 1780 the Massachusetts Declaration of Rights, Art. XII, provided that the accused had a right to be heard 'by himself, or his counsel, at his election.' The New Hampshire Bill of Rights (Art. XV) in 1783 affirmed the right of the accused 'to be fully heard in his defence by himself, and counsel.' In 1792 the Delaware Constitution (Art. I, § 7) preserved the right in language modeled after Art. IX of the Pennsylvania Declaration of Rights. Similarly, in 1798 Georgia included in its Constitution (Art. III, § 8) a provision that protected the right of the accused to defend 'by himself or counsel, or both.' Other state constitutions did not express in literal terms a right of self-representation, but those documents granted all defense rights to the accused personally and phrased the right of counsel in such fashion as to imply the existence of the antecedent liberty. See Del. Declaration of Rights, § 14 (1776) (right 'to be allowed counsel'); Md. Declaration of Rights. Art. XIX (1776) (right 'to be allowed counsel'); N.J.Const., Art. XVI (1776) (criminals to have 'same privileges of . . . counsel, as their prosecutors'); N.Y.Const., Art. XXXIV (1777) ('shall be allowed counsel').
39
The Founders believed that self-representation was a basic right of a free people. Underlying this belief was not only the antilawyer sentiment of the populace, but also the 'natural law' thinking that characterized the Revolution's spokesmen. See P. Kauper, The Higher Law and the Rights of Man in a Revolutionary Society, a lecture in the American Enterprise Institute for Public Policy Research series on the American Revolution, Nov. 7, 1973, extracted in 18 U. of Mich. Law School Law Quadrangle Notes, No. 2, p. 9 (1974). For example, Thomas Paine, arguing in support of the 1776 Pennsylvania Declaration of Rights, said:
'either party . . . has a natural right to plead his own case; this right is consistent with safety, therefore it is retained; but the parties may not be able, . . . therefore the civil right of pleading by proxy, that is, by a council, is an appendage to the natural right (of self-representation) . . ..' Thomas Paine on a Bill of Rights, 1777, reprinted in 1 Schwartz 316.
40
Statutes providing for appointment of counsel on request of the accused were enacted by Delaware in 1719, 1 Laws of State of Delaware, 1700—1797, p. 66 (Adams 1797); by Pennsylvania in 1718, 3 Stats. at Large of Pennsylvania 199 (Busch 1896); and by South Carolina in 1731, Laws of the Province of South Carolina 518 519 (Trott 1736). Appointment was also the practice in Connecticut in the latter part of the 18th century; appointment apparently was sometimes made even when the accused failed to request counsel, if he appeared in need of a lawyer, but there is no indication appointment was ever made over the objection of the accused. See Swift, supra, n. 35, at 392. Free-choice appointment remained the rule as the new Republic emerged. See the 1791 statute of New Hampshire, Laws of New Hampshire 247 (Melcher 1792), and the 1795 statute of New Jersey, § 2, Acts of the Nineteenth General Assembly of the State of New Jersey 1012.
41
See counsel provisions in n. 38, supra.
42
In ratifying the Constitution, three States urged that a right-to-counsel provision be added by way of amendment. Virginia and North Carolina proposed virtually identical packages of a defendant's rights, each including the provision that an accused be 'allowed' counsel. 2 Schwartz 841, 967. The package proposed by New York provided that the accused 'ought to . . . have . . . the assistance of Counsel for his defense.' Id., at 913. The idea of proposing amendments upon ratification had begun with the Pennsylvania dissenters from ratification, whose proposed package of a defendant's rights provided for the accused's 'right . . . to be heard by himself and his counsel.' Id., at 664—665. It can be seen that Madison's precise formulation—'the right . . . to have the Assistance of Counsel for his defence'—varied in phrasing from each of the proposals. 'The available debates on the various proposals throw no light on the significance or the interpretation which Congress attributed to the right to counsel.' W. Beaney, The Right to Counsel in American Courts 23 (1955).
43
As stated by Mr. Justice Sutherland in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158:
'Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.' Id., at 69, 53 S.Ct., at 64.
44
See n. 38, supra, for colonial appointment statutes that predate the Sixth Amendment. Federal law provided for appointment of counsel in capital cases at the request of the accused as early as 1790, 1 Stat. 118.
45
See, e.g., U.S.Const. Amdt. 1. Freedom of choice is not a stranger to the constitutional design of procedural protections for a defendant in a criminal proceeding. For example, '(e)very criminal defendant is privileged to testify in his own defense, or to refuse to do so.' Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 645, 28 L.Ed.2d 1. See Brooks v. Tennessee, 406 U.S. 605, 612, 92 S.Ct. 1891, 1895, 32 L.Ed.2d 358; Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783. Cf. Brown v. United States, 356 U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d 589.
46
We are told that many criminal defendants representing themselves may use the courtroom for deliberate disruption of their trials. But the right of self-representation has been recognized from our beginnings by federal law and by most of the States, and no such result has thereby occurred. Moreover, the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct. See Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353. Of course, a State may—even over objection by the accused—appoint a 'standby counsel' to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant's self-representation is necessary. See United States v. Dougherty, 154 U.S.App.D.C. 76, 87 89, 473 F.2d 1113, 1124—1126.
The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law. Thus, whatever else may or may not be open to him on appeal, a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of 'effective assistance of counsel.'
47
See n. 2, supra.
48
See n. 3, supra.
1
Absent a statute giving a right to self-representation, I believe that trial courts should have discretion under the Constitution to insist upon representation by counsel if the interests of justice so require. However, I would note that the record does not support the Court's characterization of this case as one in which that occurred. Although he requested, and initially was granted permission to proceed pro se, petitioner has expressed no dissatisfaction with the lawyer who represented him and has not alleged that his defense was impaired or that his lawyer refused to honor his suggestions regarding how the trial should be conducted. In other words, to use the Court's phrase, petitioner has never contended that 'his defense' was not fully presented. Instances of overbearing or ineffective counsel can be dealt with without contriving broad constitutonal rules of dubious validity.
2
The Court deliberately, and in my view properly, declines to characterize this case as one in which the defendant was denied a fair trial. See Herring v. New York, 425 U.S., at 871, 96 S.Ct., at 2560 (Rehnquist, J., dissenting).
3
The Court's attempt to derive support for its position from the fact that the Sixth Amendment speaks in terms of the 'Assistance of Counsel' requires little comment. It is most curious to suggest that an accused who exercises his right to 'assistance' has thereby impliedly consented to subject himself to a 'master.' Ante, at 820. And counsel's responsibility to his client and role in the litigation do not vary depending upon whether the accused would have preferred to represent himself.
4
Indeed, the portion of the Court's quotation which warns against turning constitutional protections into 'fetters' refers to the right to trial by jury, not the right to counsel. See Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 241—242, 87 L.Ed. 268 (1942). This Court has, of course, squarely held that there is no constitutional right to dispense with a jury. Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965).
5
No more relevant is Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934). The reference in that case to an accused's 'power . . . to supersede his lawyers' simply helped explain why his defense might 'be made easier' if he were 'permitted to be present at the examination of jurors or the summing up of counsel . . ..' Id., at 106, 54 S.Ct., at 332. Mr. Justice Cardozo's opinion for the Court made plain that this right was rooted in considerations of fundamental fairness, and was to be distinguished from those conferred by the Confrontation Clause. See id., at 107, 54 S.Ct. at 333. The Court's present reliance on the Snyder dicta is therefore misplaced. See n. 2, supra.
6
The fact that Congress has retained a statutory right to self- representation suggests that it has also assumed that the Sixth Amendment does not guarantee such a right. See 28 U.S.C. § 1654.
7
Some of the damage we can anticipate from a defendant's ill-advised insistence on conducting his own defense may be mitigated by appointing a qualified lawyer to sit in the case as the traditional 'friend of the court.' The Court does not foreclose this option. See ante, at 834-835, n. 46.
| 01
|
422 U.S. 922
95 S.Ct. 2561.
45 L.Ed.2d 648
Frank DORAN, Appellant,v.SALEM INN, INC., et al.
No. 74—337.
Argued April 21, 22, 1975.
Decided June 30, 1975.
Syllabus
Three corporations (M & L, Salem, and Tim-Rob), on August 9, 1973, filed a complaint in District Court, seeking a temporary restraining order, preliminary injunction, and declaratory relief, against Doran, a law enforcement official, claiming that a North Hempstead, N.Y., ordinance proscribing topless dancing, which the corporations had provided as entertainment in their bars, violated their First and Fourteenth Amendment rights. The District Court denied the prayer for a temporary restraining order instanter and set the motion for a preliminary injunction for hearing on August 22. On August 10, M & L, alone of the three corporations, which had theretofore complied with the ordinance, resumed topless dancing, whereupon it was served with criminal summonses. Thereafter, the District Court issued a preliminary injunction against enforcement of the ordinance against the corporations 'pending the final determination of this action.' The Court of Appeals affirmed, holding that the 'ordinance would have to fall' and rejecting Doran's claim that the District Court should have dismissed the complaint on the authority of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, and companion cases, which it concluded did not bar relief as to Salem and Tim-Rob, because there had been no prosecution against them under the ordinance. A different result for M & L was not deemed warranted in view of the interests of avoiding contradictory outcomes, of conserving judicial energy, and of having a clearcut method for determining when federal courts should defer to state prosecutions. Doran appealed under 28 U.S.C. § 1254(2), which gives this Court appellate jurisdiction at the behest of a party relying on a state statute held unconstitutional by a court of appeals. Held:
1. The issues, which were neither briefed nor argued, whether § 1254(2) applies to a review of the affirmance of a preliminary injunction or is confined to review of a final judgment, and whether the Court of Appeals in fact held the ordinance unconstitutional, need not be resolved, since this Court has certiorari jurisdiction under 28 U.S.C. § 2103, under which this matter can be reviewed. P. 927.
2. The question of entitlement to relief in the light of Younger v. Harris, supra, and companion cases, should be considered as to each corporation separately and not in the light of contradictory outcomes and other factors relied upon by the Court of Appeals when it lumped the three plaintiffs together. Pp. 927-929.
3. Younger squarely bars injunctive relief and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 bars declaratory relief for M & L in view of the fact that when the criminal summonses were issued on the days immediately following the filing of the federal complaint, the federal litigation was in an embryonic stage and no contested matter had been decided. P. 929.
4. Salem and Tim-Rob, against whom no criminal proceedings were pending, were not subject to Younger's restrictions in seeking declaratory relief. Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505. Those two corporations could also seek preliminary injunctive relief without regard to Younger's restrictions, since prior to a final judgment a declaratory remedy cannot afford relief comparable to a preliminary injunction. Pp. 930-931.
5. In the circumstances of this case and in the light of existing case law, the District Court did not abuse its discretion in granting preliminary injunctive relief to Salem and Tim-Rob. Pp. 931-934.
(a) The District Court was entitled to conclude that Salem and Tim-Rob satisfied one of the two traditional requirements for securing a preliminary injunction, viz., showing irreparable injury, because they made uncontested allegations that absent such relief they would suffer a substantial business loss and perhaps even bankruptcy. Pp. 931-932.
(b) The District Court was also entitled to conclude that those corporations satisfied the other traditional requirement for interim relief by showing a likelihood that they would prevail on the merits, since they were, inter alia, challenging (and had standing to challenge, Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222) a 'topless' ordinance as being unconstitutionally overbroad in its application to protected activities at places that do not serve liquor as well as to places that do. See California v. LaRue, 409 U.S. 109, 118, 93 S.Ct. 390, 397, 34 L.Ed.2d 342. Pp. 932-934.
Appeal dismissed and certiorari granted; 501 F.2d 18, (2nd Cir.) reversed as to M & L, and affirmed as to Salem and Tim-Rob.
Joseph H. Darago, New Hyde Park, N.Y., for appellant.
Herbert S. Kassner, New York City, for appellees.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Appellant is a town attorney in Nassau County, N.Y., who, along with other local law enforcement officials, was preliminarily enjoined by the United States District Court for the Eastern District of New York from enforcing a local ordinance of the town of North Hempstead. Salem Inn, Inc. v. Frank, 364 F.Supp. 478 (1973), aff'd, 501 F.2d 18 (CA2 1974). In addition to defending the ordinance on the merits, he contends that the complaint should have been dismissed on the authority of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its companion cases.
2
Appellees are three corporations which operate bars at various locations within the town. Prior to enactment of the ordinance in question, each provided topless dancing as entertainment for its customers. On July 17, 1973, the town enacted Local Law No. 1—1973, an ordinance making it unlawful for bar owners and others to permit waitresses, barmaids, and entertainers to appear in their establishments with breasts uncovered or so thinly draped as to appear uncovered. Appellees complied with the ordinance by clothing their dancers in bikini tops, but on August 9, 1973, brought this action in the District Court under 42 U.S.C. § 1983. They alleged that the ordinance violated their rights under the First and Fourteenth Amendments to the United States Constitution. Their pleadings sought a temporary restraining order, a preliminary injunction, and declaratory relief. The prayer for a temporary restraining order was denied instanter, but the motion for a preliminary injunction was set for a hearing on August 22, 1973.
3
On August 10, the day after the appellees' complaint was filed, and their application for a temporary restraining order denied, one of them, M & L Restaurant, Inc., resumed its briefly suspended presentation of topless dancing. On that day, and each of the three succeeding days, M & L and its topless dancers were served with criminal summonses based on violation of the ordinance.1 These summonses were returnable before the Nassau County Court on September 13, 1973. The other two appellees, Salem Inn, Inc., and Tim-Rob Bar, Inc., did not resume the presentation of topless entertainment in their bars until after the District Court issued its preliminary injunction.
4
On September 5, 1973, appellant filed an answer which alleged that a criminal prosecution had been instituted against at least one of the appellees; the District Court was urged to 'refuse to exercise jurisdiction' and to dismiss the complaint. App. 33.
5
On September 6, 1973, on the basis of oral argument and memoranda of law, the District Court entered an opinion and order in which it '(found) that (1) Local Law No. 1—1973 of the Town of North Hempstead is on its face violative of plaintiffs' First Amendment rights in that it prohibits across the board nonobscene conduct in the form of topless dancing, and (2) that the daily penalty of $500 for each violation of the ordinance, the prior state court decision validating a similar ordinance, the over-breadth of the ordinance, and the potential harm to plaintiffs' business by its enforcement justify federal intervention and injunctive relief.' 364 F.Supp., at 483. The court concluded by enjoining appellant 'pending the final determination of this action . . . from prosecuting the plaintiffs for any violation of Local Law No. 1—1973 . . . or in any way interfering with their activities which may be prohibited by the text of said Local Law.' Ibid. The court did address appellant's Younger contention, but held that the pending prosecution against M & L did not affect the availability of injunctive relief to Salem and Tim-Rob. As for M & L, it concluded that if federal relief were granted to two of the appellees, 'it would be anomalous' not to extend it to M & L as well. Id., at 482.
6
The Court of Appeals for the Second Circuit affirmed by a divided vote. It held that the 'ordinance would have to fall,' 501 F.2d, at 21, and that the claim of deprivation of constitutional rights and diminution of business warranted the issuance of a preliminary injunction. The Court of Appeals rejected appellant's claim that the District Court ought to have dismissed appellees' complaint on the authority of Younger v. Harris, supra, and its companion cases. As to Salem and Tim-Rob, Younger did not present a bar because there had at no time been a pending prosecution against them under the ordinance. As for M & L, the court thought that it posed 'a slightly different problem,' 501 F.2d, at 22, since the state prosecution was begun only one day after the filing of appellees' complaint in the District Court. The court recognized that this situation was not squarely covered by either Younger or Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), but concluded that the interests of avoiding contradictory outcomes, of conservation of judicial energy, and of a clearcut method for determining when federal courts should defer to state prosecutions, all militated in favor of granting relief to all three appellees.
7
We deal first with a preliminary jurisdictional matter. This appeal was taken under 28 U.S.C. § 1254(2), which provides this Court with appellate jurisdiction at the behest of a party relying on a state statute held unconstitutional by a court of Appeals.2 There is authority, questioned but never put to rest, that § 1254(2) is available only when review is sought of a final judgment. Slaker v. O'Connor, 278 U.S. 188, 49 S.Ct. 158, 73 L.Ed. 258 (1929); South Carolina Electric & Gas Co. v. Flemming, 351 U.S. 901, 76 S.Ct. 692, 100 L.Ed. 1439 (1956). But see Chicago v. Atchison, T. & S.F.R. Co., 357 U.S. 77, 82—83, 78 S.Ct. 1063, 1066 1067, 2 L.Ed.2d 1174 (1958). The present appeal, however, seeks review of the affirmance of a preliminary injunction. We also are less than completely certain that the Court of Appeals did in fact hold Local Law 1—1973 to be unconstitutional, since it considered the merits only for the purpose of ruling on the propriety of preliminary injunctive relief. We need not resolve these issues, which have neither been briefed nor argued, because we in any event have certiorari jurisdiction under 28 U.S.C. § 2103. As we have previously done in an identical situation, El Paso v. Simmons, 379 U.S. 497, 502—503, 85 S.Ct. 577, 580—581, 13 L.Ed.2d 446 (1965), we dismiss the appeal and, treating the papers as a petition for certiorari, grant the writ of certiorari.
8
Turning to the Younger issues raised by petitioner, we are faced with the necessity of determining whether the holdings of Younger, supra, Steffel, supra, and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), must give way before such interests in efficient judicial administration as were relied upon by the Court of Appeals. We think that the interest of avoiding conflicting outcomes in the litigation of similar issues, while entitled to substantial deference in a unitary system, must of necessity be subordinated to the claims of federalism in this particular area of the law. The classic example is the petitioner in Steffel, and his companion. Both were warned that failure to cease pamphleteering would result in their arrest, but while the petitioner in Steffel ceased and brought an action in the federal court, his companion did not cease and was prosecuted on a charge of criminal trespass in the state court. 415 U.S., at 455—456, 94 S.Ct., at 1213—1214. The same may be said of the interest in conservation of judicial manpower. As worthy a value as this is in a unitary system, the very existence of one system of federal courts and 50 systems of state courts, all charged with the responsibility for interpreting the United States Constitution, suggests that on occasion there will be duplicating and overlapping adjudication of cases which are sufficiently similar in content, time, and location to justify being heard before a single judge had they arisen within a unitary system.
9
We do not agree with the Court of Appeals, therefore, that all three plaintiffs should automatically be thrown into the same hopper for Younger purposes, and should thereby each be entitled to injunctive relief. We cannot accept that view, any more than we can accept petitioner's equally Procrustean view that because M & L would have been barred from injunctive relief had it been the sole plaintiff, Salem and Tim-Rob should likewise be barred not only from injunctive relief but from declaratory relief as well. While there plainly may be some circumstances in which legally distinct parties are so closely related that they should all be subject to the Younger considerations which govern any one of them, this is not such a case;—while respondents are represented by common counsel, and have similar business activities and problems, they are apparently unrelated in terms of ownership, control, and management. We thus think that each of the respondents should be placed in the position required by our cases as if that respondent stood alone.
10
Respondent M & L could have pursued the course taken by the other respondents after the denial of their request for a temporary restraining order. Had it done so, it would not have subjected itself to prosecution for violation of the ordinance in the state court. When the criminal summonses issued against M & L on the days immediately following the filing of the federal complaint, the federal litigation was in an embryonic stage and no contested matter had been decided. In this posture, M & L's prayer for injunction is squarely governed by Younger.
11
We likewise believe that for the same reasons Samuels v. Mackell bars M & L from obtaining declaratory relief, absent a showing of Younger's special circumstances, even though the state prosecution was commenced the day following the filing of the federal complaint. Having violated the ordinance, rather than awaiting the normal development of its federal lawsuit, M & L cannot now be heard to complain that its constitutional contentions are being resolved in a state court. Thus M & L's prayers for both injunctive and declaratory relief are subject to Younger's restrictions.3
12
The rule with regard to the co-plaintiffs, Salem and Tim-Rob, is equally clear, insofar as they seek declaratory relief. Salem and Tim-Rob were not subject to state criminal prosecution at any time prior to the issuance of a preliminary injunction by the District Court. Under Steffel they thus could at least have obtained a declaratory judgment upon an ordinary showing of entitlement to that relief. The District Court, however, did not grant declaratory relief to Salem and Tim-Rob, but instead granted them preliminary injunctive relief. Whether injunctions of future criminal prosecutions are governed by Younger standards is a question which we reserved in both Steffel, 415 U.S., at 463, 94 S.Ct., at 1217, and Younger v. Harris, 401 U.S., at 41, 91 S.Ct., at 749. We now hold that on the facts of this case the issuance of a preliminary injunction is not subject to the restrictions of Younger. The principle underlying Younger and Samuels is that state courts are fully competent to adjudicate constitutional claims, and therefore a federal court should, in all but the most exceptional circumstances, refuse to interfere with an ongoing state criminal proceeding. In the absence of such a proceeding, however, as we recognized in Steffel, a plaintiff may challenge the constitutionality of the state statute in federal court, assuming he can satisfy the requirements for federal jurisdiction. See also Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 509, 92 S.Ct. 1749, 1756, 32 L.Ed.2d 257 (1972).
13
No state proceedings were pending against either Salem or Tim-Rob at the time the District Court issued its preliminary injunction. Nor was there any question that they satisfied the requirements for federal jurisdiction. As we have already stated, they were assuredly entitled to declaratory relief, and since we have previously recognized that '(o)rdinarily . . . the practical effect of (injunctive and declaratory) relief will be virtually identical,' Samuels, 401 U.S., at 73, 91 S.Ct., at 768, we think that Salem and Tim-Rob were entitled to have their claims for preliminary injunctive relief considered without regard to Younger's restrictions. At the conclusion of a successful federal challenge to a state statute or local ordinance, a district court can generally protect that interests of a federal plaintiff by entering a declaratory judgment, and therefore the stronger injunctive medicine will be unnecessary. But prior to final judgment there is no established declaratory remedy comparable to a preliminary injunction; unless preliminary relief is available upon a proper showing, plaintiffs in some situations may suffer unnecessary and substantial irreparable harm. Moreover, neither declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs, and the State is free to prosecute others who may violate the statute.
14
The traditional standard for granting a preliminary injunction requires the plaintiff to show that in the absence of its issuance he will suffer irreparable injury and also that he is likely to prevail on the merits. It is recognized, however, that a district court must weigh carefully the interests on both sides. Although only temporary, the injunction does prohibit state and local enforcement activities against the federal plaintiff pending final resolution of his case in the federal court. Such a result seriously impairs the State's interest in enforcing its criminal laws, and implicates the concerns for federalism which lie at the heart of Younger.
15
But while the standard to be applied by the district court in deciding whether a plaintiff is entitled to a preliminary injunction is stringent, the standard of appellate review is simply whether the issuance of the injunction, in the light of the applicable standard, constituted an abuse of discretion. Brown v. Chote, 411 U.S. 452, 457, 93 S.Ct. 1732, 1735, 36 L.Ed.2d 420 (1973). While we regard the question as a close one, we believe that the issuance of a preliminary injunction in behalf of respondents Salem and Tim-Rob was not an abuse of the District Court's discretion. As required to support such relief, these respondents alleged (and petitioner did not deny) that absent preliminary relief they would suffer a substantial loss of business and perhaps even bankruptcy. Certainly the latter type of injury sufficiently meets the standards for granting interim relief, for otherwise a favorable final judgment might well be useless.
16
The other inquiry relevant to preliminary relief is whether respondents made a sufficient showing of the likelihood of ultimate success on the merits. Both the District Court and the Court of Appeals found such a likelihood. The order of the District Court spoke in terms of actually holding the ordinance unconstitutional, but in the context of a preliminary injunction the court must have intended to refer only to the likelihood that respondents ultimately would prevail. The Court of Appeals properly clarified this point. 501 F.2d, at 20—21.
17
Although the customary 'barroom' type of nude dancing may involve only the barest minimum of protected expression, we recognized in California v. LaRue, 409 U.S. 109, 118, 93 S.Ct. 390, 397, 34 L.Ed.2d 342 (1972), that this form of entertainment might be entitled to First and Fourteenth Amendment protection under some circumstances. In LaRue, however, we concluded that the broad powers of the States to regulate the sale of liquor, conferred by the Twenty-first Amendment, outweighed any First Amendment interest in nude dancing and that a State could therefore ban such dancing as a part of its liquor license program.
18
In the present case, the challenged ordinance applies not merely to places which serve liquor, but to many other establishments as well. The District Court observed, we believe correctly:
19
'The local ordinance here attacked not only prohibits topless dancing in bars but also prohibits any female from appearing in 'any public place' with uncovered breasts. There is no limit to the interpretation of the term 'any public place.' It could include the theater, town hall, opera house, as well as a public market place, street or any place of assembly, indoors or outdoors. Thus, this ordinance would prohibit the performance of the 'Ballet Africains' and a number of other works of unquestionable artistic and socially redeeming significance.' 364 F.Supp., at 483.
20
We have previously held that even though a statute or ordinance may be constitutionally applied to the activities of a particular defendant, that defendant may challenge it on the basis of overbreadth if it is so drawn as to sweep within its ambit protected speech or expression of other persons not before the Court. As we said in Grayned v. City of Rockford, 408 U.S. 104, 114, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972):
21
'Because overbroad laws, like vague ones, deter privileged activity, our cases firmly establish appellant's standing to raise on overbreadth challenge.'
22
Even if we may assume that the State of New York has delegated its authority under the Twenty-first Amendment to towns such as North Hempstead, and that the ordinance would therefore be constitutionally valid under LaRue, supra, if limited to places dispending alcoholic beverages, the ordinance in this case is not so limited. Nor does petitioner raise any other legitimate state interest that would counterbalance the constitutional protection presumptively afforded to activities which are plainly within the reach of Local Law 1—1973. See United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968).
23
In these circumstances, and in the light of existing case law, we cannot conclude that the District Court abused its discretion by granting preliminary injunctive relief. This is the extent of our appellate inquiry, and we therefore 'intimate no view as to the ultimate merits of (respondents') contentions.' Brown v. Chote, supra, 411 U.S. at 457, 93 S.Ct. at 1735. The judgment of the Court of Appeals is reversed as to respondent M & L, and affirmed as to respondents Salem and Tim-Rob.
24
It is so ordered.
25
Judgment reversed in part and affirmed in part.
26
Mr. Justice DOUGLAS, concurring in the judgment in part and dissenting in part.
27
While adhering to my position in Younger v. Harris, 401 U.S. 37, 58, 91 S.Ct. 746, 756, 27 L.Ed.2d 699 (1971) (dissenting opinion), I join the judgment of the Court insofar as it holds that Salem Inn and Tim-Rob were entitled to a preliminary injunction pending disposition of their request for declaratory relief. I do not condone the conduct of M & L in violating the challenged ordinance without awaiting judicial action on its federal complaint, but like the Court of Appeals, I find no compelling reason to distinguish M & L from the other respondents in terms of the relief which is appropriate. I would therefore affirm the judgment below in all respects.
1
The ordinance provides that each day's violation constitutes a separate offense.
2
For the purposes of § 1254(2), local ordinances are treated as state statutes. See, e.g., Chicago v. Atchison, T. & S.F.R. Co., 357 U.S. 77, 78 S.Ct. 1063, 2 L.Ed.2d 1174 (1958).
3
Respondent M & L urges in defense of its judgment that even if the case is controlled by the principles of Younger and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), it may obtain injunctive and declaratory relief because of the presence of the requisite special circumstances. See Younger, 401 U.S., at 53—54, 91 S.Ct., at 754—755. In particular, M & L claims that it was the subject of 'repetitive harassing criminal prosecution aimed at suppressing the expressive activity carried on,' at its bar. Brief for Appellees 35. The District Court did not have occasion to consider this issue, and we decline to do so on the basis of the spare record before us.
| 89
|
422 U.S. 935
95 S.Ct. 2670
45 L.Ed.2d 662
Mark WHITE et al., Appellants,v.Diana REGESTER et al.
No. 73-1462.
Supreme Court of the United States
June 30, 1975
Elizabeth B. Levatino, Asst. Atty. Gen., Austin, Tex., for appellants.
David R. Richards, Austin, Tex., and Don Gladden, Fort Worth, Tex., for appellees.
PER CURIAM.
1
We are informed that the State of Texas has adopted new apportionment legislation providing single-member districts to replace the multimember districts which are at issue before us in this case. That statute by its terms does not become effective until the 1976 elections, and intervening special elections to fill vacancies, if any, will be held in the districts involved as constituted on January 1, 1975. Rather than render an unnecessary judgment on the validity of the constitutional views expressed by the District Court in this case, which we do not undertake to do at this time, we vacate the judgment of the District Court and remand the case to that court for reconsideration in light of the recent Texas reapportionment legislation and for dismissal if the case is or becomes moot.
2
So ordered.
3
Mr. Justice DOUGLAS took no part in the consideration or decision of this case.
| 12
|
422 U.S. 916
95 S.Ct. 2569
45 L.Ed.2d 641
John Lee BOWEN, Petitioner,v.UNITED STATES.
No. 73—6848.
Argued Feb. 18, 1975.
Decided June 30, 1975.
Syllabus
The principles of Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596, that the Fourth Amendment prohibits the Border Patrol from using roving patrols to search vehicles, without a warrant or probable cause, at points removed from the border and its functional equivalents, will not be applied retroactively to invalidate searches that occurred prior to the date of that decision. United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374. As the Court of Appeals in this case correctly decided that Almeida-Sanchez did not apply retroactively, petitioner is not entitled to the benefit of that court's further but unnecessary ruling that Almeida-Sanchez extended to searches at traffic checkpoints. Pp. 918-921.
500 F.2d 960, 9th Cir. affirmed.
Mark L. Evans, Washington, D.C., for the United States.
Michael D. Nasatir, Beverly Hills, Cal., for John Lee Bowen.
Mr. Justice POWELL delivered the opinion of the Court.
1
Petitioner was convicted of federal drug offenses based on evidence seized in January 1971 when Border Patrol officers stopped his camper pickup at a traffic checkpoint on California Highway 86, about 36 air miles from the Mexican border. The officers first determined that petitioner was a United States citizen, then asked him to open the camper so that they could search for concealed aliens. When petitioner opened the door, one officer noticed a strong odor of marihuana. He entered the camper and discovered approximately 356 pounds of the drug. A subsequent search of the passenger compartment produced a number of benzedrine tablets.
2
The Court of Appeals for the Ninth Circuit affirmed petitioner's conviction, rejecting his argument that the search was unlawful. 462 F.2d 347 (1972). A petition for certiorari was pending when we announced our decision in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), holding that the Fourth Amendment prohibits the use of roving patrols to search vehicles, with neither a warrant nor probable cause, at points removed from the border and its functional equivalents. We vacated the judgment in petitioner's case and remanded for reconsideration in light of Almeida-Sanchez. 413 U.S. 915, 93 S.Ct. 3069, 37 L.Ed.2d 1038 (1973).
3
The Court of Appeals reheard the case en banc and held, in a sharply divided opinion, that the principles of Almeida-Sanchez applied to searches conducted at traffic checkpoints as well as searches conducted by roving patrols. The Court nevertheless affirmed petitioner's conviction, holding that Almeida-Sanchez would not be applied to invalidate searches that occurred prior to the date of that decision. 500 F.2d 960 (1974). We granted certiorari to resolve an apparent conflict with the Court of Appeals for the Tenth Circuit in United States v. King, 485 F.2d 353 (1973), and United States v. Maddox, 485 F.2d 361 (1973).
4
We hold today in United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623, that the Fourth Amendment, as interpreted in Almeida-Sanchez, forbids searching cars at traffic checkpoints in the absence of consent or probable cause. In this case the Government does not contend that the Highway 86 checkpoint is a functional equivalent of the border, that the officers had probable cause to open the camper, or that petitioner consented to the search. The primary question for decision is whether the principles of Almeida-Sanchez should have been applied retroactively.
5
In United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975), we refused to apply Almeida-Sanchez to a roving-patrol search conducted before June 21, 1973, even though a direct appeal was pending on that date. We think the decision in Peltier is controlling here, as the reasons that dictated a holding of nonretroactivity in that case are equally applicable. At the time of our decision in Almeida-Sanchez, all the Courts of Appeals in circuits adjacent to the Mexican border had held that immigration officers at traffic checkpoints could search automobiles for concealed aliens. E.g., United States v. McCormick, 468 F.2d 68 (CA10 1972); United States v. De Leon, 462 F.2d 170 (CA5 1972); Fumagalli v. United States, 429 F.2d 1011 (CA9 1970).1 This Court had not ruled on the question, and no contrary precedent was reported in other Courts of Appeals. The Border Patrol reasonably relied on the decisions of the Courts of Appeals in performing the search in this case and others like it, and in these circumstances the purposes of the Fourth Amendment exclusionary rule would not be served by applying the principles of Almeida-Sanchez retroactively.
6
Petitioner further argues that even if Almeida-Sanchez is not to be applied retroactively he is entitled to the benefit of the Court of Appeals' decision that Almeida-Sanchez extended to checkpoint searches. He invokes this Court's practice of applying new constitutional doctrine in the case that establishes the point,2 and maintains that the Court of Appeals' refusal to apply its extension of Almeida-Sanchez in his case made its discussion of that point mere dictum. We conclude, however, that the only error of the Court of Appeals was its reaching out to decide that Almeida-Sanchez applied to checkpoint searches in a case that did not require decision of the issue.
7
The Government raised two questions in the Court of Appeals: whether Almeida-Sanchez applied retroactively, and if it did, whether it would require probable cause for checkpoint searches. This Court consistently has declined to address unsettled questions regarding the scope of decisions establishing new constitutional doctrine in cases in which it holds those decisions nonretroactive. E.g., Michigan v. Payne, 412 U.S. 47, 49—50, 93 S.Ct. 1966, 1967—1968, 36 L.Ed.2d 736 (1973); DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968). This practice is rooted in our reluctance to decide constitutional questions unnecessarily. See United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, (1960); Ashwander v. TVA, 297 U.S. 288, 346—347, 56 S.Ct. 466, 482—483, 80 L.Ed. 688, 4 L.Ed.2d 524 (1936) (Brandeis, J., concurring). Because this reluctance in turn is grounded in the constitutional role of the federal courts, United States v. Raines, supra, the district courts and courts of appeals should follow our practice, when issues of both retroactivity and application of constitutional doctrine are raised, of deciding the retroactivity issue first. As the Court of Appeals correctly decided in this case that Almeida-Sanchez did not apply to a 1971 search, it should have refrained from considering whether our decision in that case applied to searches at checkpoints.
8
Petitioner contends, nevertheless, that once the Court of Appeals addressed the unnecessary issue it was bound to apply that ruling in his case. Because it refused to do so, petitioner says the court rendered a hypothetical decision forbidden by Art. III of the Constitution. It is true that this Court has suggested that Art. III is the primary impetus for applying new constitutional doctrines in cases that establish them for the first time. Stovall v. Denno, 388 U.S. 293, 301, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). But petitioner's case is altogether different. Almeida-Sanchez already had established the principle, and there was a genuine controversy between petitioner and the United States over its retroactive application. Contrary to petitioner's assertion, the court's jurisdiction to resolve that controversy could not be dislodged by its discussion of an unnecessary issue.
9
The judgment of the Court of Appeals is affirmed.
10
Affirmed.
11
Mr. Justice DOUGLAS dissents for the reasons stated in his dissent in United States v. Peltier, 422 U.S. 543, 95 S.Ct. 2320, 45 L.Ed.2d 385.
12
Mr. Justice BRENNAN and Mr. Justice MARSHALL dissent and would reverse substantially for the reasons expressed in Mr. Justice BRENNAN's dissent in United States v. Peltier, 422 U.S. 544, 95 S.Ct. 2321, 45 L.Ed.2d 385.
13
Mr. Justice STEWART dissents.
1
While approving checkpoint searches for aliens, the Court of Appeals for the Ninth Circuit had limited the Border Patrol's authority to search for contraband at points away from the border. E.g., Cervantes v. United States, 263 F.2d 800 (1959); see Fumagalli v. United States, 429 F.2d 1011 (1970). The search of petitioner's camper was not invalid under these cases because the agent was engaged in a search for aliens, legal under the Ninth
Circuit's decisions, when he developed probable cause to believe that the camper contained marihuana.
There was some ground for confusion about the state of the law in the Fifth Circuit at the time Almeida-Sanchez was decided. Early cases had affirmed immigration officers' authority to search for aliens at traffic checkpoints. E.g., Ramirez v. United States, 263 F.2d 385 (1959); Kelly v. United States, 197 F.2d 162 (1952). Later cases took the same view, e.g., United States v. De Leon, 462 F.2d 170 (1972), although one opinion seemed to hold that the authority to search at checkpoints was qualified by a requirement that the location and operation of the checkpoint be reasonable. United States v. McDaniel, 463 F.2d 129, 133 (1972). Two decisions by other panels of the court ambiguously suggested that a search at a checkpoint must be supported by 'reasonable suspicion.' United States v. Wright, 476 F.2d 1027 (1973); United States v. Maggard, 451 F.2d 502 (1971). But a later opinion seemed to adopt the Ninth Circuit's distinction between searches for aliens and searches for contraband, suggesting that immigration searches could be made without suspicion while customs searches required a foundation for believing that the particular car contained contraband. United States v. Thompson, 475 F.2d 1359, 1362 (1973).
Neither of the cases suggesting that 'reasonable suspicion' was required for immigration searches resulted in a decision invalidating a search, and none of the court's opinions indicated disagreement with the earlier cases establishing an unqualified right to search for aliens at checkpoints whose location and operation were reasonable. Under these circumstances, we conclude that the Government reasonably relied on the earlier cases in continuing to make immigration searches at checkpoints.
2
See Stovall v. Denno, 388 U.S. 293, 301, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967); compare Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), with DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968); compare North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), with Michigan v. Payne, 412 U.S. 47, 93 S.Ct. 1966, 36 L.Ed.2d 736 (1973).
| 01
|
422 U.S. 937
95 S.Ct. 2670
45 L.Ed.2d 664
John HILL, Attorney General of Texas, et al., Appellants,v.PRINTING INDUSTRIES OF the GULF COAST et al.
No. 74-456.
Supreme Court of the United States
June 30, 1975
John W. Odam Jr., Austin, Tex., for appellants.
Gerald M. Birnberg, Austin, Tex., for appellees.
PER CURIAM.
1
The parties to this case have informed us that the State of Texas has enacted the Political Funds Reporting and Disclosure Act of 1975, which will become effective on September 1, 1975.* Section 11 of that Act substantially amends Art. 14.10(b) (Supp.1974-1975) of the Texas Election Code, the constitutionality of which is at issue in this appeal. Although the parties take the position that these amendments do not affect this case, we prefer to remand the case to the District Court for reconsideration in light of the recent amendments, rather 'than render an unnecessary judgment on the validity of the constitutional views expressed by the District Court.' White v. Regester, 422 U.S. 935, 95 S.Ct. 2670, 45 L.Ed.2d 662 (1975).
2
The judgment of the District Court is vacated. The case is remanded to that court for reconsideration in light of the new legislation and for dismissal if the case is or becomes moot.
3
So ordered.
4
Mr. Justice DOUGLAS took no part in the consideration or decision of this case.
*
Tex.Const., Art. 3, § 39.
| 89
|
422 U.S. 853
95 S.Ct. 2550.
45 L.Ed.2d 593
Clifford HERRING, Appellant,v.State of NEW YORK.
No. 73—6587.
Argued Feb. 26, 1975.
Decided June 30, 1975.
Syllabus
A total denial of the opportunity for final summation in a nonjury criminal trial as well as in a jury trial deprives the accused of the basic right to make his defense, and a New York statute granting every judge in a nonjury criminal trial the power to deny such summation before rendition of judgment denied the accused the assistance of counsel guaranteed by the Sixth Amendment of the Constitution as applied against the States by the Fourteenth. Pp. 856-865.
43 A.D.2d 816, 351 N.Y.S.2d 368, vacated and remanded.
Diana A. Steele, New York City, for appellant.
Norman C. Morse, Staten Island, N.Y., and Gabriel I. Levy, New York City, for appellee.
Mr. Justice STEWART delivered the opinion of the Court.
1
A New York law confers upon every judge in a nonjury criminal trial the power to deny counsel any opportunity to make a summation of the evidence before the rendition of judgment. N.Y.Crim.Proc.Law § 320.20 (3)(c) (1971), McKinney's Consol.Laws, c. 11—A.1 In the case before us we are called upon to assess the constitutional validity of that law.
2
* The appellant was brought to trial in the Supreme Court of Richmond County, N.Y., upon charges of attempted robbery in the first and third degrees and possession of a dangerous instrument.2 He waived a jury.
3
The trial began on a Thursday, and, after certain preliminaries, the balance of that day and most of Friday were spent on the case for the prosecution. The complaining witness, Allen Braxton, testified that the appellant had approached him outside his home in a Staten Island housing project at about six o'clock on the evening of September 15, 1971, and asked for money. He said that when he refused this demand, the appellant had swung a knife at him. On cross-examination, the appellant's lawyer attempted to impeach the credibility of this evidence by demonstrating inconsistencies between Braxton's testimony and other sworn statements that Braxton had previously made.3 The only other witness for the prosecution was the police officer who had arrested the appellant upon the complaint of Braxton. The officer testified that Braxton had reported the alleged incident to him, and that the appellant, when confronted by the officer later in the evening, had denied Braxton's story and said that he had been working for a Mr. Taylor at the time of the alleged offense. The officer testified that he had then arrested the appellant and found a small knife in his pocket.4
4
At the close of the case for the prosecution, the court granted a defense motion to dismiss the charge of possession of a dangerous instrument on the ground that the knife in evidence was too small to qualify as a dangerous instrument under state law. The trial was then adjourned for the two-day weekend.
5
Proceedings did not actually resume until the following Monday afternoon. The first witness for the defense was Donald Taylor, who was the appellant's employer. He testified that he recalled seeing the appellant on the job premises at about 5:30 p.m. on the day of the alleged offense. The appellant then took the stand and denied Braxton's story. He said that he had been working on a refrigerator at his place of employment during the time of the alleged offense, and further testified that Braxton, a former neighbor, had threatened on several occasions to 'fix' him for refusing to give Braxton money for wine and drugs.
6
At the conclusion of the case for the defense, counsel made a motion to dismiss the robbery charges. This motion was denied. The appellant's lawyer then requested to 'be heard somewhat on the facts.' The trial judge replied: 'Under the new statute, summation is discretionary, and I choose not to hear summations.' The judge thereupon found the appellant guilty of attempted robbery in the third degree, and subsequently sentenced him to serve an indeterminate term of imprisonment with a maximum of four years. The conviction was affirmed without opinion by an intermediate appellate court.5 Leave to appeal to the New York Court of Appeals was denied. An appeal was then brought here, and we noted probable jurisdiction. 419 U.S. 893, 95 S.Ct. 171, 42 L.Ed.2d 137.
II
7
The Sixth Amendment guarantees to the accused in all criminal prosecutions the rights to a 'speedy and public trial,' to an 'impartial jury,' to notice of the 'nature and cause of the accusation,' to be 'confronted' with opposing witnesses, to 'compulsory process' for defense witnesses, and to the 'Assistance of Counsel.'6 These fundamental rights are extended to a defendant in a state criminal prosecution through the Fourteenth Amendment.7
8
The decisions of this Court have not given to these constitutional provisions a narrowly literalistic construction. More specifically, the right to the assistance of counsel has been understood to mean that there can be no restrictions upon the function of counsel in defending a criminal prosecution in accord with the traditions of the adversary factfinding process that has been constitutionalized in the Sixth and Fourteenth Amendments. For example, in Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783, the Court held constitutionally invalid a state statute that, while permitting the defendant to make an unsworn statement to the court and jury, prevented defense counsel from eliciting the defendant's testimony through direct examination. Similarly, in Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358, the Court found unconstitutional a state law that restricted the right of counsel to decide 'whether, and when in the couse of presenting his defense, the accused should take the stand.' Id., at 613, 92 S.Ct. at 1895. The right to the assistance of counsel has thus been given a meaning that ensures to the defense in a criminal trial the opportunity to participate fully and fairly in the adversary factfinding process.
9
There can be no doubt that closing argument for the defense is a basic element of the adversary factfinding process in a criminal trial. Accordingly, it has universally been held that counsel for the defense has a right to make a closing summation to the jury, no matter how strong the case for the prosecution may appear to the presiding judge.8 The issue has been considered less often in the context of a so-called bench trial. But the overwhelming weight of authority, in both federal and state courts, holds that a total denial of the opportunity for final argument in a nonjury criminal trial is a denial of the basic right of the accused to make his defense.9
10
One of many cases so holding was Yopps v. State, 228 Md. 204, 178 A.2d 879 (1962). The defendant in that case, indicted for burglary, was tried by the court without a jury. The defendant in his testimony admitted being in the vicinity of the offense, but denied any involvement in the crime. At the conclusion of the testimony, the trial judge announced a judgment of guilty. Defense counsel objected, stating that he wished to present argument on the facts. But the trial judge refused to hear any argument on the ground that only a question of credibility was involved, and that therefore counsel's argument would not change his mind. The Maryland Court of Appeals held that the trial court's refusal to permit defense counsel to make a final summation violated the defendant's right to the assistance of counsel under the State and Federal Constitutions:
11
'The Constitutional right of a defendant to be heard through counsel necessarily includes his right to have his counsel make a proper argument on the evidence and the applicable law in his favor, however simple, clear, unimpeached, and conclusive the evidence may seem, unless he has waived his right to such argument, or unless the argument is not within the issues in the case, and the trial court has no discretion to deny the accused such right.' Id., at 207, 178 A.2d, at 881.
12
The widespread recognition of the right of the defense to make a closing summary of the evidence to the trier of the facts, whether judge or jury, finds solid support in history. In the 16th and 17th centuries, when notions of compulsory process, confrontation, and counsel were in their infancy, the essence of the English criminal trial was argument between the defendant and counsel for the Crown. Whatever other procedural protections may have been lacking, there was no absence of debate on the factual and legal issues raised in a criminal case.10 As the rights to compulsory process, to confrontation, and to counsel developed,11 the adversary system's commitment to argument was neither discarded nor diluted. Rather, the reform in procedure had the effect of shifting the primary function of argument to summation of the evidence at the close of trial, in contrast to the 'fragmented' factual argument that had been typical of the earlier common law.12
13
It can hardly be questioned that closing argument serves to sharpen and clarify the issues for resolution by the trier of fact in a criminal case. For it is only after all the evidence is in that counsel for the parties are in a position to present their respective versions of the case as a whole. Only then can they argue the inferences to be drawn from all the testimony, and point out the weaknesses of their adversaries' positions. And for the defense, closing argument is the last clear chance to persuade the trier of fact that there may be reasonable doubt of the defendant's guilt. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368.
14
The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free. In a criminal trial, which is in the end basically a factfinding process, no aspect of such advocacy could be more important than the opportunity finally to marshal the evidence for each side before submission of the case to judgment.
15
This is not to say that closing arguments in a criminal case must be uncontrolled or even unrestrained. The presiding judge must be and is given great latitude in controlling the duration and limiting the scope of closing summations. He may limit counsel to a reasonable time and may terminate argument when continuation would be repetitive or redundant. He may ensure that argument does not stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial. In all these respects he must have broad discretion. See generally 5 R. Anderson, Wharton's Criminal Law and Procedure § 2077 (1957). Cf. American Bar Association, Project on Standards for Criminal Justice, The Prosecution Function § 5.8, pp. 126—129, and the Defense Function § 7.8, pp. 277—282 (App.Draft 1971).
16
But there can be no justification for a statute that empowers a trial judge to deny absolutely the opportunity for any closing summation at all. The only conceivable interest served by such a statute is expediency. Yet the difference in any case between total denial of final argument and a concise but persuasive summation could spell the difference, for the defendant, between liberty and unjust imprisonment.13
17
Some cases may appear to the trial judge to be simple—open and shut—at the close of the evidence. And surely in many such cases a closing argument will, in the words of Mr. Justice Jackson, be 'likely to leave (a) judge just where it found him.'14 But just as surely, there will be cases where closing argument may correct a premature misjudgment and avoid an otherwise erroneous verdict. And there is no certain way for a trial judge to identify accurately which cases these will be, until the judge has heard the closing summation of counsel.15
18
The present case is illustrative. This three-day trial was interrupted by an interval of more than two days—a period during which the judge's memory may well have dimmed, however conscientious a note-taker he may have been. At the conclusion of the evidence on the trial's final day, the appellant's lawyer might usefully have pointed to the direct conflict in the trial testimony of the only two prosecution witnesses concerning how and when the appellant was found on the evening of the alleged offense.16 He might also have stressed the many inconsistencies, elicited on cross-examination, between the trial testimony of the complaining witness and his earlier sworn statements.17 He might reasonably have argued that the testimony of the appellant's employer was entitled to greater credibility than that of the complaining witness, who, according to the appellant, had threatened to 'fix' him because of personal differences in the past. There is no way to know whether these or any other appropriate arguments in summation might have affected the ultimate judgment in this case. The credibility assessment was solely for the trier of fact. But before that determination was made, the appellant, through counsel, had a right to be heard in summation of the evidence from the point of view most favorable to him.18
19
In denying the appellant this right under the authority of its statute, New York denied him the assistance of counsel that the Constitution guarantees. Accordingly, the judgment before us is vacated and the case is remanded for further proceedings not inconsistent with this opinion.
20
It is so ordered.
21
Judgment vacated and case remanded.
22
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE and Mr. Justice BLACKMUN join, dissenting.
23
* The Court has made of this a very curious case. What began as a constitutional challenge to a statute which gives trial courts discretion as to whether 'parties' may deliver summations, has been transformed into an exploration of the right to counsel although no one doubts that appellant was competently represented throughout the proceedings which resulted in his conviction. Today's opinion, in deriving from the right to counsel further rights relating to the conduct of a trial, expands the earlier holdings in Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961), and Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972). In each of these three instances one must presume, in view of the Court's analytical approach, that regardless of the intrinsic importance of the rights involved, they are enforced only because the accused has a prior right to the assistance of a third party in the preparation and presentation of his defense.
24
I think that in each instance a statement from Mr. Justice Frankfurter's separate opinion in Ferguson is apropos: 'This is not a right-to-counsel case.' 365 U.S., at 599, 81 S.Ct., at 772. In the present case, the crucial fact is not that counsel wishes to present a summation of the evidence, but that the defendant whether through counsel or otherwise—wishes to make such a summation. Of course I do not suggest that the rights enforced in these cases are without basis, at least in particular cases, in the Due Process Clause of the Fourteenth Amendment. Cf. id., at 598—601, 81 S.Ct., at 771—772 (opinion of Frankfurter, J.); Brooks v. Tennessee, supra, 406 U.S., at 618, 92 S.Ct., at 1897—1898 (Rehnquist, J., dissenting). But I do suggest that the Court's analytical framework, and its resulting prophylactic rule, are wrongly employed to decide this case.
25
I would have thought that in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, the Court had recanted its approach in Ferguson and Brooks. In Faretta the Court concluded that it is the Sixth Amendment, and not the Right-to-Counsel Clause of that Amendment, which 'constitutionalizes the right in an adversary criminal trial to make a defense as we know it.' Ante, at 818, 95 S.Ct., at 2533. Yet in the present case we are informed that it is the Right-to-Counsel Clause which constitutionalizes the right to present a defense 'in accord with the traditions of the adversary fact-finding process.' Ante, at 857. Not being content merely to contradict Faretta by holding that entitlement to the traditions of our judicial system depends upon the right to retain counsel, the Court also states that, 'of course, the same right to make a closing argument' is available to those who choose not to exercise their right to counsel. Ante, at 864, n. 18. To complete the confusion, the Court does not explain the latter ipse dixit, but does cite one case—Faretta.
II
26
The Due Process Clause of the Fourteenth Amendment has long been recognized as assuring 'fundamental fairness' in state criminal proceedings. See, e.g., Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 289—290, 86 L.Ed. 166 (1941); Moore v. Dempsey, 261 U.S. 86, 90—91, 43 S.Ct. 265, 266, 67 L.Ed. 543 (1923). Throughout the history of the Clause we have generally considered the question of fairness on a case-by-case basis, reflecting the fact that the elements of fairness vary with the circumstances of particular proceedings. As the Court observed in Snyder v. Massachusetts, 291 U.S. 97, 116—117, 54 S.Ct. 330, 336, 78 L.Ed. 674 (1934):
27
'Due process of law requires that the proceedings shall be fair, but fairness is a relative, not an absolute concept. . . . What is fair in one set of circumstances may be an act of tyranny in others.'
28
See, e.g., Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967); Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973).
29
However in some instances the Court has engaged in a process of 'specific incorporation,' whereby certain provisions of the Bill of Rights have been applied against the States. See the cases cited ante, at 857 n. 7. In making the decision whether or not a particular provision relating to the conduct of a trial should be incorporated, we have been guided by whether the right in question may be deemed essential to fundamental fairness—an analytical approach which is compelled if we are to remain true to the basic orientation of the Due Process Clause. See, e.g., In re Oliver, 333 U.S. 257, 270—271, 68 S.Ct. 499, 506, 92 L.Ed. 682 (1948) (public trial); Duncan v. Louisiana, 391 U.S. 145, 155—158, 88 S.Ct. 1444, 1450—1452, 20 L.Ed.2d 491 (1968) (jury trial); Pointer v. Texas, 380 U.S. 400, 403—404, 85 S.Ct. 1065, 1067—1068, 13 L.Ed.2d 923 (1965) (confrontation); Washington v. Texas, 388 U.S. 14, 17—19, 87 S.Ct. 1920, 1922—1923, 18 L.Ed.2d 1019 (1967) (compulsory process); Gideon v. Wainwright, 372 U.S. 335, 342, 83 S.Ct. 792, 795, 9 L.Ed.2d 799 (1963) (appointed counsel). But once we have determined that a particular right should be incorporated against the States, we have abandoned case-by-case considerations of fairness. Incorporation, in effect, results in the establishment of a strict prophylactic rule, one which is to be generally observed in every case regardless of its particular circumstances. It is a judgment on the part of this Court that the probability of unfairness in the absence of a particular right is so great that denigration of the right will not be countenanced under any circumstances. These judgments by this Court reflect similar judgments made by the Constitution's Framers with regard to the Federal Government.
30
Beyond certain of the specified rights in the Bill of Rights, however, I do not understand the basis for abandoning the case-by-case approach to fundamental fairness. There are a myriad of rules and practices governing the conduct of criminal proceedings which may or may not in particular circumstances be necessary to assure fundamental fairness. Obvious examples are the rules governing the introduction and testing of evidence, as well as, I think, the New York rule governing summations in nonjury trials. Such matters are not specifically dealt with in the text of the Constitution, nor are they subject to the judgment that uniform application of a particular rule is necessary because the likelihood of unfairness is too great when that rule is not observed. As to such matters it is appropriate, and frequently necessary, that trial judges be accorded considerable discretion, subject of course to both appellate review on an abuse-of-discretion standard and, ultimately, to the fundamental fairness inquiry under the Fourteenth Amendment.
31
The present case is a prime example of why a prophylactic rule with regard to summations in nonjury trials is thoroughly inappropriate. The case was tried before a judge who, unlike a jury, may take notes on testimony, and who is experienced in both judging the credibility of witnesses and testing the relevance of their testimony to the elements which must be proved to obtain a conviction. The case was conceptually and factually a simple one, involving no more than whether on was to believe the victim, despite the inconsistencies in his testimony, or the defendant.1 The judge had previously permitted appellant's counsel to summarize the evidence, on the occasion of the motion to dismiss at the close of the State's case. That appellant's counsel had considerable faith in the judge's familiarity with, and ability to organize, the evidence is shown by the transcript of that earlier summation:
32
'(MR. ADAMS:) Do you want to hear me extensively on that, Judge? Or I have a witness here, I can go on, or would you rather hear me on some lengthy argument subsequently, Judge?
33
'THE COURT: I will hear anything you have to say.
34
'MR. ADAMS: All right. Judge, I believe here that as a matter of law we have a doubt here. Firstly, on this first witness of the prosecution here, Judge. There were numerous inconsistencies, and I will not bore the Court reading that. Of course the Court has copius notes on it, and I am sure it is very fresh in the Court's mind. But on top of that, Judge, we have a questionable complainant, with a questionable way of how it happened, no witness other than this complainant.
35
'An officer who checked out this particular matter testified here and said that the man was working at that time. A definite denial by the defendant. And I believe that as a matter of law, Judge, there is a reasonable doubt here.' App. 66 (emphasis added).
36
Similarly, when the opportunity to summarize was denied, appellant's counsel did not so much as suggest that he thought it necessary to refresh the judge's memory as to certain matters.2 It should also be noted that in his earlier argument counsel had referred to most of the matters which the Court today suggests might have usefully been brought to the judge's attention in a final summation. See ante, at 864. Finally, the fact that the judge conducted this trial in a fairminded fashion, and would not arbitrarily prevent a summation which could be expected to clarify his understanding of the case, is evidenced by his dismissal of one count over the vigorous protests of the prosecution.
37
Whatever theoretical effect the denial of argument may have had on the judgment of conviction, its practical effect on the outcome must have been close to nothing. The trial judge was not conducting a moot court; he was sitting as the finder of fact in a trial in which he had been present during the testimony of every single witness. No experienced advocate would insist on presenting argument to such a judge after he had indicated his belief that argument would not be of assistance. Trial counsel here did not insist, and the claim which is today sustained by this Court is urged by other counsel.
38
The truth of the matter is that appellant received a fair trial, and I do not read the Court's opinion to claim otherwise. The opinion instead establishes a right to summation in criminal trials regardless of circumstances, by tagging that right onto one of the specifically incorporated rights. It thereby conveniently avoids the difficulties of being unable to characterize appellant's trial as fundamentally unfair, but only at the expense of ignoring the logical difficulty of adorning the specifically incorporated rights with characteristics which are not themselves necessary for fundamental fairness.3
39
The nature of the right which the Court today creates is as curious as its genesis. Apparently it requires nothing more than pro forma observance, since the trial judge 'must be and is given great latitude' in controlling the duration and limiting the scope of closing summations. He may determine what is a 'reasonable' time for argument, and at what point the argument becomes repetitive or redundant, or strays 'unduly' from the mark. 'In all these repects he must have broad discretion.' Ante, at 862. That is, after 30 seconds, or some other minimal period of argument, the judge is free to exercise his discretion. It is not clear why this should be so. If it is true that 'there is no certain way for a trial judge to identify accurately (those cases in which closing argument may be beneficial), until the judge has heard the closing summation of counsel,' ante, at 863, it is equally true that he cannot determine whether continued argument will be repetitive, redundant, or otherwise useless until he has heard the continued argument. But in any event, the constitutional issue does rather quickly become framed once again according to the standards which should have governed all along—whether or not the judge's actions in the particular case deprived the defendant of a trial which was fundamentally fair.4
40
By propagating a right to summation—despite such a right's lack of textual basis, and despite the inability reasonably to conclude that the right is so basic that we cannot chance trial court discretion in the matter—the Court has furthered the practice of reviewing state criminal trials in a piecemeal fashion. The incident upon which this reversal is based was but one stage in a carefully conducted trial, and cannot be claimed to have permeated the entire proceeding as would trial without a jury, or without counsel. The Court is thus disregarding the basic question of whether the proceeding by which a defendant is deprived of his liberty is fundamentally fair.
41
The Court's decision derives no support either from logic or from the Amendment it professes to apply. Since it reverses a criminal conviction which was fairly obtained, I dissent.
1
Section 320.20(3)(c) provides:
'The court may in its discretion permit the parties to deliver summations. If the court grants permission to one party, it must grant it to the other also. If both parties deliver summations, the defendant's summation must be delivered first.'
By contrast, New York law explicitly grants a right to make a 'closing statement' in every civil case. N.Y.Civ.Prac.Rule 4016 (1963).
2
N.Y. Penal Law §§ 110.00/160.15, 110.00/160.05, 265.05 (1975), McKinney's Consol.Laws, c. 40.
3
On cross-examination of Braxton, the appellant's lawyer demonstrated the following inconsistencies: First, Braxton testified at trial that, after running into his house to evade the appellant, he did not look back outside to see where the appellant had gone; but before the grand jury, Braxton had said that, after entering his house, he had looked outside and the appellant was gone. Second, Braxton testified at trial that the knifeblade was shiny; but in his grand jury testimony he had said that he could not remember if it was shiny or not. Third, Braxton testified at trial that the appellant had asked him for money in a 'soft' voice; but before the grand jury he had stated that the request for money was 'kind of loud.' Fourth, Braxton testified at trial that the appellant had swung a blade at him once; but in the felony complaint filed the day after the alleged crime, he had stated that the appellant had swung a knife at him 'a couple of times.'
4
There was a major inconsistency between the police officer's testimony and that of Braxton. Braxton testified that he was walking down the street with the officer at about 6:45 p.m. when they came across the appellant. But the officer testified that he had searched for the appellant with Braxton until only about 6:30 p.m., when they had separated, and that about an hour later he had seen the appellant and Braxton on opposite sides of Broadway. Thus Braxton testified that he and the officer were together when they found the appellant about 6:45 p.m., while the officer's testimony was that he had separated from Braxton about 6:30 p.m., and that he next saw Braxton and the appellant on opposite sides of a street at about 7:30 p.m.
5
The court subsequently certified that in affirming the judgment, it had rejected the appellant's constitutional claims:
'Upon the appeal herein, there was presented and passed upon the following constitutional question, namely, whether relator's rights under the Fourth, Sixth and Fourteenth Amendments were denied by the trial court's application of paragraph (c) of subdivision 3 of CPL 320.20 to refuse appellant permission to deliver a summation. This court considered appellant's said conviction and determined that none of his constitutional rights were violated.'
6
The Sixth Amendment provides:
'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . (,) to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.'
7
See Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (speedy trial); In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (public trial); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (jury trial); Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (notice of nature and cause of accusation); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (confrontation); Washington v. Texas, 388 U.S. 14, 87 S.Ct 1920, 18 L.Ed.2d 1019 (compulsory process); 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 (assistance of counsel).
8
See, e.g., Jackson v. State, 239 Ala. 38, 193 So. 417 (1940); Yeldell v. State, 100 Ala. 26, 14 So. 570 (1894); People v. Green, 99 Cal. 564, 34 P. 231 (1893); State v. Hoyt, 47 Conn. 518 (1880); Hall v. State, 119 Fla. 38, 160 So. 511 (1935); Williams v. State, 60 Ga. 367 (1878); Porter v. State, 6 Ga.App. 770, 65 S.E. 814 (1909); State v. Gilbert, 65 Idaho 210, 142 P.2d 584 (1943); People v. McMullen, 300 Ill. 383, 133 N.E. 328 (1921); Lynch v. State, 9 Ind. 541 (1857); State v. Verry, 36 Kan. 416, 13 P. 838 (1887); Sizemore v. Commonwealth, 240 Ky. 279, 42 S.W.2d 328 (1931); State v. Cancienne, 50 La.Ann. 1324, 24 So. 321 (1898); Wingo v. State, 62 Miss. 311 (1884); State v. Page, 21 Mo. 257 (1855); State v. Tighe, 27 Mont. 327, 71 P. 3 (1903); State v. Shedoudy, 45 N.M. 516, 118 P.2d 280 (1941); People v. Marcelin, 23 A.D.2d 368, 260 N.Y.S.2d 560 (1965); State v. Hardy, 189 N.C. 799, 128 S.E. 152 (1925); Weaver v. State, 24 Ohio St. 584 (1874); State v. Rogoway, 45 Or. 601, 78 P. 987 (1907), rehearing, 45 Or. 611, 81 P. 234 (1905); Stewart v. Commonwealth, 117 Pa. 378, 11 A. 370 (1887); State v. Ballenger, 202 S.C. 155, 24 S.E.2d 175 (1943); Word v. Commonwealth, 30 Va. 743 (1831); State v. Mayo, 42 Wash. 540, 85 P. 251 (1906); Seattle v. Erickson, 55 Wash. 675, 104 P. 1128 (1909).
One treatise states the general rule as follows: 'The presentation of his defense by argument to the jury, by himself or his counsel, is a constitutional right of the defendant which may not be denied him, however clear the evidence may seem to the trial court.' 5 R. Anderson, Wharton's Criminal Law and Procedure § 2077 (1957).
9
See United States v. Walls, 443 F.2d 1220 (CA6 1971); Thomas v. District of Columbia, 67 App.D.C. 179, 90 F.2d 424 (1937); United States ex rel. Spears v. Johnson, 327 F.Supp. 1021 (ED Pa.1971), rev'd on other grounds, 463 F.2d 1024 (CA3 1972); United States ex rel. Wilcox v. Pennsylvania, 273 F.Supp. 923 (ED Pa.1967); Floyd v. State, 90 So.2d 105 (Fla.1956); Olds v. Commonwealth, 10 Ky. 465 (1821); Yopps v. State, 228 Md. 204, 178 A.2d 879 (1962); People v. Thomas, 390 Mich. 93, 210 N.W.2d 776 (1973); Decker v. State, 113 Ohio St. 512, 150 N.E. 74 (1925); Commonwealth v. McNair, 208 Pa.Super. 369, 222 A.2d 599 (1966); Commonwealth v. Gambrell, 450 Pa. 290, 301 A.2d 596 (1973); Anselin v. State, 72 Tex.Cr.R. 17, 160 S.W. 713 (1913); Walker v. State, 133 Tex.Cr.R. 300, 110 S.W.2d 578 (1937); Ferguson v. State, 133 Tex.Cr.R. 250, 110 S.W.2d 61 (1937). Cf. Collingsworth v. Mayo, 173 F.2d 695, 697 (CA5 1949); State v. Hollingsworth, 160 La. 26, 106 So. 662 (1925). But see People v. Manske, 399 Ill. 176, 77 N.E.2d 164 (1948). Cf. People v. Berger, 288 Ill. 47, 119 N.E. 975 (1918); Casterlow v. State, 256 Ind. 214, 267 N.E.2d 552 (1971); Reed v. State, 232 Ind. 68, 111 N.E.2d 661 (1953); Lewis v. State, 11 Ga.App. 14, 74 S.E. 442 (1912).
10
Stephen has described the trial procedure in this period as a 'long argument between the prisoner and the counsel for the Crown.' 1 J. Stephen, History of the Criminal Law of England 326 (1883). For a fuller description of the trial process in that period, see id., at 325—326, 350.
11
See 7 Will. 3, c. 3, § 1 (1695); 1 Anne, Stat. 2, c. 9, § 3 (1701); 6 & 7 Will. 4, c. 114, § 1 (1836).
12
Cf. Stephen, supra, n. 10, at 349.
In the Colonies, where a similar reform in criminal defendants' rights occurred, common practice, if not right, apparently gave to the accused the opportunity to sum up his case in closing argument. For example, Zephaniah Swift, in an early colonial treatise on the law in Connecticut, wrote:
'When the exhibition of evidence is closed, the attorney for the state opens the argument, the counsel for the prisoner follow(s), the attorney for the state then closes the argument, and the chief justice then sums up the evidence in his charge delivered to the jury, in which he states in the most candid and impartial manner, the evidence and the law, and the arguments of the counsel for the state, as well as the prisoner . . .' 2 Z. Swift, A System of the Laws of the State of Connecticut 401 (1796).
With a lesser degree of certainty, a modern scholar concludes that in the trial of capital offenses in colonial Virginia, it was likely, but not certain, that the accused would be given an opportunity to make a closing argument in summation at the end of the trial. See H. Rankin, Criminal Trial Proceedings in the General Court of Colonial Virginia 101 (1965).
In England, in 1865, the right of the defendant in a criminal trial to make a closing argument, either by himself or by counsel if he was represented, was given express statutory recognition: '(U)pon every Trial . . . whether the Prisoners . . . or any of them, shall be defended by Counsel or not . . . such Prisoner . . . shall be entitled . . . when all the Evidence is concluded to sum up the Evidence respectively.' Criminal Procedure Act of 1865, 28 Vict., c. 18, § 2. This remains the rule in England. 10 Halsbury's Laws of England & 777, pp. 422—423 (3d ed. 1955). See also T. Butler & M. Garsia, Archibold's Pleading, Evidence and Practice in Criminal Cases, § 558 (37th ed. 1969). Cf. R. v. Wainwright, 13 Cox Cr.Cas. 171 (1875); R. v. Wickham, 55 Cr.App.R. 199 (1971) (noted at 1971 Crim.L.Rev. 233).
13
We deal in this case only with final argument or summation at the conclusion of the evidence in a criminal trial. Nothing said in this opinion is to be understood as implying the existence of a constitutional right to oral argument at any other stage of the trial or appellate process.
14
R. Jackson, The Struggle for Judicial Supremacy 301 (1941).
15
The contention has been made that, while a right to make closing argument should be recognized in a jury trial, there is insufficient justification for such a right in the context of a bench trial. This view rests on the premise that a judge, with legal training and experience, will be likely to see the case clearly, rendering argument superfluous, or to recognize that further illumination of the issues would be helpful, in which case he would permit closing argument.
We find this contention unpersuasive. Judicial training and expertise, however it may enhance judgment, does not render memory or reasoning infallible. Moreover, in one important respect, closing argument may be even more important in a bench trial than in a trial by jury. As Mr. Justice Powell has observed, the 'collective judgment' of the jury 'tends to compensate for individual short-comings and furnishes some assurance of a reliable decision.' Powell, Jury Trial of Crimes, 23 Wash. & Lee L.Rev. 1, 4 (1966). In contrast, the judge who tries a case presumably will reach his verdict with deliberation and contemplation, but must reach it without the stimulation of opposing viewpoints inherent in the collegial decision-making process of a jury.
16
See n. 4, supra.
17
See n. 3, supra.
18
A defendant who has exercised the right to conduct his own defense has, of course, the same right to make a closing argument. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562.
1
The employer's credibility was not at issue. Not only was he vague as to the times at which he had seen appellant at his garage, but that garage was located only 3 1/2 blocks from the scene of the crime. App. 76, 86.
2
The colloquy at the end of the trial was as follows:
'MR. ADAMS: Judge, at this time I respectfully move to—make two motions, Judge. Firstly, that the Court dismiss the two counts, first count and the second count of the indictment on the grounds the People have failed to make out a prima facie case; and on the further grounds the People have failed to prove the defendant guilty of each and every part and parcel of the crimes charged in count one and count two beyond a reasonable doubt as a matter of law, and as a matter of fact.
'THE COURT: Motion denied. I will take a short recess to deliberate, and I will give you a verdict.
'MR. ADAMS: Well, can I be heard somewhat on the facts?
'THE COURT: Under the new statute, summation is discretionary, and I choose not to hear summations.
'THE CLERK: Remand.' App. 92.
3
While the Court, ante, at 862, presents a variety of arguments supporting the wisdom and desirability of generally permitting closing arguments in nonjury trials, none of them impress me as rising to the level of fundamental fairness. They would be of substantial merit if presented to the New York Legislature, but are hardly relevant to the constitutional inquiry which it is our duty to perform. As for the Court's final flourish ('no aspect of such advocacy could be more important'), it is obvious hyperbole which can only be uttered in complete disregard of such matters as cross-examination, the selection of trial strategy and witnesses, and attempts to exclude unconstitutionally obtained evidence.
4
I would also think it not unlikely under the Court's holding that post-trial briefing would be an adequate substitute for oral summation, since it meets the concerns which the Court expresses as the basis for its newly found constitutional right. See ante, at 862.
| 01
|
423 U.S. 1
96 S.Ct. 23
46 L.Ed.2d 1
UNITED STATES, Plaintiff,v.State of MAINE et al.
No. 35, Orig.
Supreme Court of the United States
October 6, 1975
1
On Joint Motion for Entry of Decree.
DECREE
2
Oct. 6, 1975.
3
The joint motion for entry of a decree is granted.
4
For the purpose of giving effect to the decision and opinion of this Court announced in this case on March 17, 1975, 420 U.S. 515, 95 S.Ct. 1155, 43 L.Ed.2d 363, it is Ordered, Adjudged, and Decreed as Follows:
5
1. As against the defendant States of Maine, New Hampshire, Massachusetts, Rhode Island, New York, New Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, the United States is entitled to all the lands, minerals, and other natural resources underlying the Atlantic Ocean more than three geographic miles seaward from the coastlines of those States and extending seaward to the edge of the Continental Shelf. None of the defendant States is entitled to any interest in such lands, minerals, and resources. As used in this decree, the term 'coastline' means the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters.
6
2. As against the United States, each defendant State is entitled to all the lands, minerals, and other natural resources underlying the Atlantic Ocean extending seaward from its coastline for a distance of three geographic miles, and the United States is not entitled, as against any of the defendant States, to any interest in such lands, minerals, or resources, with the exceptions provided by § 5 of the Submerged Lands Act of 1953, 67 Stat. 32, 43 U.S.C. § 1313.
7
3. Jurisdiction is reserved by this Court to entertain such further proceedings, including proceedings to determine the coastline of any defendant State, to enter such orders, and to issue such writs as may from time to time be deemed necessary or advisable to give proper force and effect to this decree. The United States or any defendant State may invoke the jurisdiction so reserved by filing a motion in this Court for supplemental proceedings.
| 910
|
423 U.S. 3
96 S.Ct. 167
46 L.Ed.2d 3
DAY & ZIMMERMANN, INC.v.Hawley K. CHALLONER et al.
No. 75-245.
Nov. 3, 1975.
PER CURIAM.
1
Respondents sued petitioner in the United States District Court for the Eastern District of Texas seeking to recover damages for death and personal injury resulting from the premature explosion of a 105-mm. howitzer round in Cambodia. Federal jurisdiction was based on diversity of citizenship. The District Court held that the Texas law of strict liability in tort governed and submitted the case to the jury on that theory. The Court of Appeals for the Fifth Circuit affirmed a judgment in favor of respondents. 512 F.2d 77 (1975).
2
The Court of Appeals stated that were it to apply Texas choice-of-law rules, the substantive law of Cambodia, the place of injury, would certainly control as to the wrongful death, and perhaps as to the claim for personal injury. It declined nevertheless to apply Texas choice-of-law rules, based in part on an earlier decision in Lester v. Aetna Life Ins. Co., 433 F.2d 884 (CA5 1970), cert. denied, 402 U.S. 909, 91 S.Ct. 1382, 28 L.Ed.2d 650 (1971), which it summarized as holding that "(w)e refused to look to the Louisiana conflict of law rule, deciding that as a matter of federal choice of law, we could not apply the law of a jurisdiction that had no interest in the case, no policy at stake." 512 F.2d at 80 (emphasis in original). The Court of Appeals further supported its decision on the grounds that the rationale for applying the traditional conflicts rule applied by Texas "is not operative under the present facts"; and that it was "a Court of the United States, an instrumentality created to effectuate the laws and policies of the United States."
3
We believe that the Court of Appeals either misinterpreted our longstanding decision in Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), or else determined for itself that it was no longer of controlling force in a case such as this. We are of the opinion that Klaxon, is by its terms applicable here and should have been adhered to by the Court of Appeals. In Klaxon, supra, at 496, 61 S.Ct., at 1021, this Court said:
4
"The conflict of laws rules to be applied by the federal court in Delaware must conform to those prevailing in Delaware's state courts. Otherwise, the accident of diversity of citizenship would constantly disturb equal administration of justice in coordinate state and federal courts sitting side by side. See Erie R. Co. v. Tompkins, (304 U.S. 64, 74-77, 58 S.Ct. 817, 820-822, 82 L.Ed. 1188 (1938))."
5
By parity of reasoning, the conflict-of-laws rules to be applied by a federal court in Texas must conform to those prevailing in the Texas state courts. A federal court in a diversity case is not free to engraft onto those state rules exceptions or modifications which may commend themselves to the federal court, but which have not commended themselves to the State in which the federal court sits. The Court of Appeals in this case should identify and follow the Texas conflicts rule. What substantive law will govern when Texas' rule is applied is a matter to be determined by the Court of Appeals.
6
The petition for certiorari is granted, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings in conformity with this opinion.
7
It is so ordered.
8
Mr. Justice DOUGLAS took no part in the consideration or decision of this case.
9
Mr. Justice BLACKMUN, concurring.
10
Left to my own devices, I would deny the petition for certiorari. Inasmuch, however, as the Court chooses to emphasize and correct certain misapprehensions in the Court of Appeals' opinion and to vacate that court's judgment, I merely point out that, as I read the Court's per curiam opinion, the Court of Appeals on remand is to determine and flatly to apply the conflict of laws rules that govern the state courts of Texas. This means to me that the Court of Appeals is not foreclosed from concluding, if it finds it proper so to do under the circumstances of this case, that the Texas state courts themselves would apply the Texas rule of strict liability. If that proves to be the result, I would perceive no violation of any principle of Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). I make this observation to assure the Court of Appeals that, at least in my view, today's per curiam opinion does not necessarily compel the determination that it is only the law of Cambodia that is applicable.
| 78
|
423 U.S. 12
96 S.Ct. 172
46 L.Ed.2d 156
NORTHERN INDIANA PUBLIC SERVICE COMPANY,v.
PORTER COUNTY CHAPTER OF the IZAAK WALTON LEAGUE OF AMERICA, INC., et al. 75-4 Nov. 11, 1975. djQ PER CURIAM, An Atomic Energy Commission Atomic Safety and Licensing Board approved the issuance of a construction permit to Northern Indiana Public Service Co. (NIPSCO) for a commercial nuclear powered electrical generating plant proposed to be built on the south shore of Lake Michigan, in Porter County, Ind., RAI-74-4, p. 557 (1974). On appeal, an AEC Atomic Safety and Licensing Appeal Board, RAI-74-8, p. 244 (1974), sustained the approval. On petition for review by intervenors in the administrative proceedings,1 a divided panel ----------1.Porter County Chapter of the Izaak Walton League of America, Inc.; Concerned Citizens Against Bailly Nuclear Site; Businessmen for the Public Interest, Inc.; James E. Newman; Mildred Warner; and George Hanks. NIPSCO, the State of Illinois, and the city of Gary, Ind., intervened before the Court of Appeals.
[13]
of the Court of Appeals for the Seventh Circuit set aside the approval on the ground that the Licensing Board and the Appeal Board failed to follow the Commission's own regulations governing "population center distance" in the nuclear plant siting. 515 F.2d 513 (7 Cir. 1975). The petition for certiorari is granted, and the judgment of the Court of Appeals is reversed. Title 10 CFR § 100.10(b) (1975) of the Commission's regulations provides that "the Commission will take . . . into consideration in determining the acceptability of a [proposed nuclear plant] site" the "population center distance," defined in 10 CFR § 100.3(c) (1975) as "the distance from the reactor to the nearest boundary of a densely populated center containing more than about 25,000 residents." At the time of NIPSCO's application and also at the time of the Court of Appeals' decision, 10 CFR § 100.11(a)(3) (1975) further provided, in pertinent part, that "[a]s an aid in evaluating a proposed site" for a nuclear power plant a permit applicant should determine for a proposed unit a "population center distance of at least one and one-third times the distance from the reactor to the outer boundary of the low population zone. In applying this guide, due consideration should be given to the population distribution within the population center." Two miles was the minimum allowable "population center distance" determined administratively pursuant to § 100.11(a)(3). Accepting this determination, the Court of Appeals held that issuance of the construction permit violated the agency's own regulations be-
[14]
cause the corporate boundary of the city of Portage, Ind. projected to have a population in excess of 25,000 by 1980—lay within 1.1 miles of NIPSCO's proposed site. In reaching this conclusion the Court of Appeals rejected the agency's administrative interpretation of its regulations as prescribing computation of "population center distance" for § 100.11(a)(3) purposes, where the difference is critical to the siting decision, not solely to a political boundary but to the boundary of "that portion of the population center at which the dense population starts," RAI-74-4, 565. Under that interpretation of the regulations the "population center distance" was an acceptable 4.5 miles.2 The Court of Appeals erred in rejecting the agency's interpretation of its own regulations. That interpretation is supported by the wording of the regulations and is consistent with prior agency decisions.3 The wording does not equate a "dense population center" with a city or other political entity, nor does it define a "boundary" in terms of pre-existing lines drawn for non-siting purposes. Rather, the regulations require consideration of "population distribution within the population center" in applying the "population center distance" guide. Political boundaries, in contrast, may be drawn for many ----------2.We do not understand the Court of Appeals' discussion of the evidence regarding population distribution within Portage to imply an alternative ground for the holding that the agency violated its own regulations.3In re Consumers Power Co., 5 A.E.C. 214, 218 (1972) (although political boundary of nearby city was within low-population zone, "the reduced population distance was acceptable" since "populous areas" of the city were farther removed from the reactor site than one and one-third times the low-population zone radius); In re Consolidated Edison Co., 5 A.E.C. 43, 45 (1972); cf. In re Southern California Edison Co. (San Onofre Station), RAI-74-12, pp. 957, 960 n.7 (1974).
[15]
reasons irrelevant to safe reactor siting, and thus encompass areas never likely to harbor a significant population.4 But even if the meaning is not free from doubt, the agency's reliance upon the actual boundaries of population density in its interpretation sensibly conforms to the purpose and wording of the regulations. In that circumstance, the Court of Appeals was "obligated to regard as controlling [such] a reasonable, consistently applied administrative interpretation. . . ." Ehlert v. United States, 402 U.S. 99, 105, 91 S.Ct. 1319, 1323, 28 L.Ed.2d 625 (1971). See also Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965); Power Reactor Co. v. Electricians, 367 U.S. 396, 408, 81 S.Ct. 1529, 1535, 6 L.Ed.2d 924 (1961); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945).5 The judgment is reversed, and the case is remanded for consideration of other contentions against the issuance of the construction permit not decided by the Court of Appeals. So ordered. Mr. Justice DOUGLAS concurring. The Atomic Energy Commission, by general regulations, limited the location of nuclear power plants so as not to be nearer than a specified number of miles from population centers. After issuing a construction ----------4.The Court of Appeals' opinion also notes that the boundaries of 1970 census enumeration districts, including an area within Portage's political limits, lay less than a mile from the proposed reactor site. The location of these boundaries, however, without more, has no greater significance than the location of the corporate border.5 Our decision does not rely upon a revision of 10 CFR § 100.11(a)(3), 40 Fed.Reg. 26526 (1975), published after the decision of the Court of Appeals by the Nuclear Regulatory Commission which, pursuant to the Energy Reorganization Act of 1974, § 201, 88 Stat. 1242, 42 U.S.C. § 5841 (1970 ed., Supp. IV), now discharges the licensing responsibility formerly exercised by the Atomic Energy Commission.
[16]
permit which the Court of Appeals held violated those regulations, that agency's successor, the Nuclear Regulatory Commission, amended the regulations so as to permit the deviation. 40 Fed.Reg. 26526 (1975). By its decision today, the Court holds that the Court of Appeals "erred in rejecting the agency's interpretation of its own regulations." Ante, 14. I read today's decision as in no way relying on the agency's post hoc amendment of its regulations to save in this Court its issuance of the construction permit. Ante, 15 n.5. I therefore concur in the Court's decision. The Nuclear Regulatory Commission's conduct in the course of this litigation, however, compels further comment. A certain danger lurks in the ability of an agency to perfunctorily mold its regulations to conform to its instant needs. In the present case, regulations performed an important function of advising all interested parties of the factors that had to be satisfied before a license could be issued. If those conditions can be changed willy-nilly by the Commission after the hearing has been held and after adjudication has been made, the Commission is cut loose from its moorings, and no opponent of the licensing will be able to tender competent evidence bearing on the critical issues. Not just the Commission, but the entire federal bureaucracy is vested with a discretionary power, against the abuse of which the public needs protection. "[A]dministrators must strive to do as much as they reasonably can do to develop and to make known the needed confinements of discretionary power through standards, principles, and rules." K. Davis, Discretionary Justice 59 (1969). Confinement of discretionary power, however, cannot be obtained where rules can be change and applied retroactively to affect a controversy. For some years, the agency which was supposed to
[17]
promote nuclear energy was also charged with the responsibility of protecting the public against its abuse. But a promoter is naturally shortsighted when it comes to the adverse effects of his project on the community. With the establishment of the Nuclear Regulatory Commission, Congress undertook to rectify this weakness in the control system by separating the promotion function from the function of safeguarding the public.1 But the power to change the rules after the contest has been concluded would once more put the promotion of nuclear energy ahead of public's safety. Eminent scientists have been steadfast in opposing the growth of nuclear power plants in this Nation. The number who think nuclear power should be abandoned has been growing.2 The future of nuclear power in this ----------1.The separation of promotional and regulatory functions was accomplished under the Energy Reorganization Act of 1974, 88 Stat. 1233, 42 U.S.C.A. § 5801 et seq. (1970 ed., Supp. IV). The legislation transferred the research and development functions of the AEC to the new Energy Research and Development Administration. § 5814(c). The AEC's regulatory functions became the responsibility of the Nuclear Regulatory Commission. § 5841(f). Also transferred to this new Commission were the responsibilities of the Atomic Safety and Licensing Board and the Atomic Safety and Licensing Appeal Board. § 5841(g). The legislative history of the Act indicates that this division of functions was "a response to growing criticism that there is a basic conflict between the AEC's regulation of the nuclear power industry and its development and promotion of new technology for the industry." S.Rep. No. 93-980, p. 2, U.S.Code Cong. & Admin.News, p. 5471 (1974). "The [Nuclear Regulatory Commission] will have solely regulatory responsibilities, in keeping with a basic purpose of this act to separate the regulatory functions of the Atomic Energy Commission from its developmental and promotional functions, which are transferred to [the Energy Research and Development Administration]." Id., at 19.2 J. Gofman & A. Tamplin, Poisoned Power: The Case Against Nuclear Power Plants (1971); see Ford & Kendall, What Price Nuclear Power?, 10 Trial, 11 (1974); Tamplin, Reacting to Reactors, 10 Trial, 15 (1974); Hearings on AEC Licensing Procedure and Related Legislation before the Subcommittee on Legislation of the Joint Committee on Atomic Energy, 92d Cong., 1st Sess., pt. 1., pp. 294-302 (1971).
[18]
country is not a policy matter for courts to decide, but those who oppose the promotion of nuclear power should have at least a chance to know what the issues are when a case is set down for hearing and adjudication, and to argue meaningfully about those issues. If the rules can be changed by the Commission at any time even after the hearing is over—the protection afforded by the opposition of scientific and environmental groups is greatly weakened. Ad hoc rulemaking in those areas touching the public safety is to be looked upon with disfavor. Rose v. Hodges [96SCt175,423US19,46LEd2d162] 96 S.Ct. 175 423 U.S. 19 46 L.Ed.2d 162 Jimmy H. ROSE Warden v. Isadore HODGES, Jr., and Andrew Lewis, Jr.
No. 75-139.
Nov. 11, 1975.
Rehearing Denied Jan. 26, 1976.
See 423 U.S. 1092, 96 S.Ct. 888.
PER CURIAM.
1
Respondents Hodges and Lewis were convicted of committing murder in the perpetration of a rape in Memphis, Tenn., and sentenced to death by electrocution. On July 31, 1972, the Tennessee Court of Criminal Appeals affirmed the judgments of conviction but reversed and remanded the record to the trial court on the issue of punishment, declaring that "(t)he Supreme Court of the United States has decreed that the death sentence is contrary to the Eighth Amendment . . .." Hodges v. State, 491 S.W.2d 624, 628 (1972).
2
On August 7, 1972, the Governor of Tennessee commuted respondents' death sentences to 99 years' imprisonment. On August 8, 1972, the State (represented by petitioner here) filed a timely petition for rehearing in the Court of Criminal Appeals pursuant to Tenn.Code Ann. § 16-451 (Supp.1974), which provides that such a petition must be filed within 15 days of the entry of the judgment.
3
The Court of Criminal Appeals then found the commutations by the Governor to be "valid and a proper exercise of executive authority," citing Bowen v. State, 488 S.W.2d 373 (Tenn.1972), and held its remand "for naught," thus affirming the convictions and the sentences, as modified, in full, 491 S.W.2d, at 629. On March 5, 1973, the Supreme Court of Tennessee denied certiorari.
4
Respondents Hodges and Lewis then petitioned for habeas corpus in the federal District Court asserting, inter alia, that their Fourteenth Amendment rights were violated by the illegal commutation of their sentences. The case was transferred to the federal District Court for the Western District of Tennessee, which dismissed as to this issue for failure to exhaust state remedies. Respondents appealed to the United States Court of Appeals for the Sixth Circuit.
5
In a brief order, that court held that since the death sentences had been vacated at the time of the Governor's commutation order, "there were . . . no viable death sentences to commute" and therefore declared the commutations invalid.1
6
Upon reconsideration, the court noted that the judgment of the Court of Criminal Appeals vacating the death penalties had been timely modified by that court to comply with the commutation order. However, it did not alter its earlier decision, except to note that respondents had exhausted their state remedies as to this point.2
7
A necessary predicate for the granting of federal habeas relief to respondents is a determination by the federal court that their custody violates the Constitution, laws, or treaties of the United States, 28 U.S.C. § 2241; Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 (1963). The one sentence in the opinion of the Court of Appeals dealing with the invalidity of the Governor's commutations contains no reference to any provision of the Constitution, laws, or treaties of the United States or to any decision of this Court or any other court.3 Whether or not the sentences imposed upon respondents were subject to commutation by the Governor, and the extent of his authority under the circumstances of this case, are questions of Tennessee law which were resolved in favor of sustaining the action of the Governor by the Tennessee Court of Criminal Appeals in Hodges v. State, supra. It was not the province of a federal habeas court to re-examine these questions.
8
Respondents urge, in support of the result reached by the Court of Appeals for the Sixth Circuit, that their Fourteenth and Sixth Amendments right to jury trial have been infringed by the Tennessee proceedings. We reject these contentions. A jury had already determined their guilt and sentenced them to death. The Governor commuted these sentences to a term of 99 years after this Court's decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Neither Furman nor any other holding of this Court requires that following such a commutation the defendant shall be entitled to have his sentence determined anew by a jury. If Tennessee chooses to allow the Governor to reduce a death penalty to a term of years without resort to further judicial proceedings, the United States Constitution affords no impediment to that choice. Dreyer v. Illinois, 187 U.S. 71, 23 S.Ct. 28, 47 L.Ed. 79 (1902). Cf. Schick v. Reed, 419 U.S. 256, 95 S.Ct. 379, 42 L.Ed.2d 430 (1974).
9
The motion of the respondents for leave to proceed in forma pauperis and the petition for certiorari are granted, and the judgment of the Court of Appeals is
10
Reversed.
11
Mr. Justice DOUGLAS would deny certiorari.
12
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting.
13
I dissent on two grounds: first, because the Court errs in reading the record to include a final holding of the Court of Appeals declaring the commutations to be invalids and, second, because if there were such a final holding, summary disposition of the question of the validity of the commutations certainly one of first impression in this Court is particularly inappropriate.1
14
That the "commutations" have not been finally declared invalid clearly emerges from the record of the proceedings in the District Court and in the Court of Appeals. The petition for habeas corpus alleged five errors by the state courts. Three (coerced confessions, prejudicial comments during voir dire, Hodge's claim under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476) attacked respondents' convictions, the other two the sentences (invalid jury sentence and unconstitutional commutations). The District Court held that respondents had failed to exhaust state remedies on all of these issues except the alleged invalidity of the jury sentence; accordingly, the District Court issued a show-cause order "solely on the issue that the jury allegedly failed to specify the degree of murder in the verdicts." Hodges v. Rose, No. C-73-442 (W.D.Tenn., Nov. 15, 1973). The State accordingly filed an answer dealing only with this issue, and the District Court decided only that issue, rejecting respondents' claim on the merits. This question was therefore the only claim that was ripe for appeal; specifically, there was no decision of the District Court on the constitutionality of the commutations that was or could have been the subject of respondents' appeal to the Court of Appeals.2
15
Nevertheless, it is of course true that the initial opinion of the Sixth Circuit contains the following language:
16
"(The) commutation followed by some eight days an order of the Tennessee Court of Criminal Appeals vacating the order imposing the death penalty and remanding the case to the trial court for punishment determination in the light of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 ((1972)), and for the reason that there were therefore no viable death sentences to commute, we hold the purported commutation and the concomitant imposition of committed (sic ) sentences for terms of 99 years invalid." Hodges v. Rose, No. 74-1461, 511 F.2d 1403 (CA6, Feb. 25, 1975).
17
The same opinion goes on to affirm the decision on the merits of the only question decided by the District Court, namely, the jury-sentence issue, and then observes that the State had confessed error on the exhaustion point. Accordingly, the judgment was "for further proceedings consistent herewith." This necessarily must have meant that the three constitutional attacks on the convictions should be addressed on the merits by the District Court. The sua sponte comments on the commutations thus made no sense since that issue would never arise if the convictions were set aside on any of the three grounds.
18
Not surprisingly, therefore, the State sought rehearing. The State dispositively argued, first, that the Sixth Circuit was precluded from addressing the commutation issue since the District Court had carefully confined its decision on the merits to the validity of the jury sentence. The State argued, second, that there had been no opportunity to argue the commutation question in the District Court and that no record had been made on the issue, and, third, the commutation issue had not been briefed in the Sixth Circuit. Fourth, and finally, the State argued what surely must have been crystal clear that the commutation question would never be reached if respondents prevailed on their challenge to the validity of their convictions. True, as a good lawyer's would, the State's petition for rehearing challenged in any event the soundness of the statement that the commutations were invalid. But the relief sought on rehearing was excision of the language quoted above and remand "to the District Court for consideration of all issues."
19
The Court of Appeals obviously recognized its error. The opinion on rehearing, while not deleting the whole statement, did delete the language emphasized above and left only the factual statement of what had occurred:
20
"(The) commutation followed by some eight days an order by the Tennessee Court of Criminal Appeals vacating the (order imposing the) death penalty and remanding the case (to the trial court) for punishment determination in the light of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 ((1972))." Hodges v. Rose, No. 74-1461, 519 F.2d 1402 (CA6, June 10, 1975).
21
Significantly the opinion on rehearing also squarely held that the District Court had erred in finding a failure to exhaust as to the commutation issue.
22
On this record, therefore, the only proper disposition is denial of the petition for certiorari. At the least, we should vacate and remand to the Sixth Circuit for clarification of whether the validity of the commutations was addressed and decided.
23
In any event, summary disposition of the issue of the validity of the commutations is strikingly inappropriate. There is no record in the lower courts on the commutation issue, because the District Court limited the habeas proceeding to the validity of the jury sentence. More importantly, the issue is one of first impression in this Court, and it surely merits briefing and oral argument. For example, I find troublesome the question whether (since there existed no viable death sentences to commute) the Governor's action should be treated as imposing the 99-year sentences without affording respondents constitutionally secured safeguards required when sentences are imposed. If the Governor had not acted, resentencing would have been by a jury at a proceeding highlighted by the usual safeguards, none of which applied to the Governor's action. The question is plainly not insubstantial; in Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), we held that constitutional safeguards (there the right to counsel) applied to the sentencing stage. Was the commutation in this case actually the sentencing stage since no death sentence existed to commute when the Governor acted? Also, the due process dimensions of the right to present evidence relevant to sentencing was left open in McGautha v. California, 402 U.S. 183, 218-220, 91 S.Ct. 1454, 1473, 28 L.Ed.2d 711 (1971). If respondents were "sentenced" by the Governor, were they denied due process when not afforded that opportunity, even assuming that the Federal Constitution permits States to adopt executive in preference to judicial sentencing? I agree that the Constitution allows Tennessee to empower the Governor to reduce a death penalty to a term of years without resort to judicial proceedings. But the Court's disposition assumes, without any in-depth analysis, that the instant case involves such "commutations" despite the fact that respondents' death sentences were voided and were therefore nonexistent when the Governor acted.
24
I would deny the petition for certiorari on my view that there is no holding of the Court of Appeals regarding the commutations to be reviewed. In any event, rather than disposing of the case summarily, the Court should grant the petition and set the case for oral argument.
1
This order would have returned respondents to the trial court for resentencing to between 20 years and life as a jury might determine. Tenn.Code Ann. § 39-2405 (1956).
2
The dissent would have us probe beneath the surface of the opinions below in search of a logical foundation. In cases where the holding of the court below is unclear, such a technique may be required. Here, however, that court clearly "hold(s) the purported commutation . . . invalid." In its second opinion it reversed the District Court on the exhaustion question and otherwise specifically reaffirmed the earlier order. We are forced to take the Court of Appeals at its word.
3
Two other panels of the same court have correctly recognized, in cases virtually identical to this one, that no federal constitutional question was presented by such a commutation. Smith v. Rose, 508 F.2d 844 (1974); Bowen v. Rose No. 74-1087, (1974).
1
Neither of the decisions cited by the Court is apposite. Dreyer v. Illinois, 187 U.S. 71, 23 S.Ct. 28, 47 L.Ed. 79 (1902), held merely that the Due Process Clause of the Fourteenth Amendment does not bar executive exercise of sentencing powers. Id., at 84, 23 S.Ct. at 32. Schick v. Reed, 419 U.S. 256, 95 S.Ct. 379, 42 L.Ed.2d 430 (1974), where the President reduced petitioner's death penalty to life imprisonment, was not a case where the death sentence had been judicially voided when the President acted.
2
The cases cited by the Court in which panels in the Sixth Circuit have upheld similar commutations in other cases, ante, at 21 n. 3, serve to substantiate my reading of the record. Judge Miller was a member of the panel in Smith v. Rose, 508 F.2d 844 (CA6, Nov. 15, 1974), and Judge Peck participated in Bowen v.Rose, No. 74-1087 (CA6, Mar. 19, 1974). Both judges were also on the panel in the instant case, and the alleged inconsistency among the panel decisions was noted in the State's petition for rehearing. The Court's implicit suggestion that these federal judges issued conflicting decisions, without explanation, indicates the inaccuracy of the Court's view of the record.
Moreover, neither of the cited unpublished panel opinions explicitly states that the commutation being upheld was issued after a death sentence had been judicially voided. Parenthetically, the Sixth Circuit's Rule 11 prohibits citation of unpublished opinions. Am I to understand that this Court is not called upon to respect that prohibition?
| 89
|
423 U.S. 6
96 S.Ct. 168
46 L.Ed.2d 148
Richard A. BOEHNING, etc., et al.v.INDIANA STATE EMPLOYEES ASSOCIATION, INC., et al.
No. 74-1544.
Nov. 11, 1975.
PER CURIAM.
1
Respondent Musgrave, an employee of the Indiana State Highway Commission, was dismissed for cause, her request for a pretermination hearing having been denied. She then brought this 42 U.S.C. § 1983 suit asserting hearing rights rooted in the Federal Constitution and seeking damages and injunctive relief. The District Court held that the controlling state statutes, as yet unconstrued by the state courts, might require the hearing demanded by respondent and so obviate decision on the constitutional issue. It therefore abstained until construction of the Indiana statutes had been sought in the state courts. The Court of Appeals for the Seventh Circuit reversed, finding nothing in the language of the relevant state statutes that would support a claim for a pretermination hearing and then resolving the federal constitutional question in respondent's favor.
2
We reverse. Where the Indiana Administrative Adjudication Act is applicable, "(t)he final order or determination of any issue or case applicable to a particular person shall not be made except upon hearing and timely notice of the time, place and nature thereof." Ind.Code, § 4-22-1-5 (1974). The Act applies to all issues or cases applicable to particular persons "excluding . . . the dismissal or discharge of an officer or employee by a superior officer, but including hearings on discharge or dismissal of an officer or employee for cause where the law authorizes or directs such hearing." § 4-22-1-2. It may be that the Court of Appeals is correct in its "forecast," see Railroad Comm'n v. Pullman Co., 312 U.S. 496, 499, 61 S.Ct. 643, 85 L.Ed. 971 (1941), that when construed together by the state courts, the Administrative Adjudication Act and the Indiana Bipartisan Personnel System Act, which applicable to Highway Commission employees and which neither expressly authorizes nor precludes termination hearings, would not require the hearing respondent has demanded. On the other hand, the relevant statutory provisions may fairly be read to extend such hearing rights to respondent;* and in these circumstances we conclude that the District Court was right to abstain from deciding the federal constitutional issue pending resolution of the state-law question in the state courts. Meridian v. Southern Bell T. & T. Co., 358 U.S. 639, 640, 79 S.Ct. 455, 3 L.Ed.2d 562 (1959); Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970); Harman v. Forssenius, 380 U.S. 528, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965); Fornaris v. Ridge Tool Co., 400 U.S. 41, 91 S.Ct. 156, 27 L.Ed.2d 174 (1970); Railroad Comm'n v. Pullman Co., supra.
3
The petition for certiorari is granted, the judgment of the Court of Appeals is reversed, and the case is remanded for further consideration consistent with this opinion.
4
So ordered.
5
Mr. Justice DOUGLAS, dissenting.
6
The position of the Court continues the strangulation of 42 U.S.C. § 1983 that has recently been evident. See, e. g., Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). The road of the respondent employee has been longer and more expensive than the Congress planned. See Harrison v. NAACP, 360 U.S. 167, 179-184, 79 S.Ct. 1025, 1031-1034, 3 L.Ed.2d 1152 (1959) (Douglas, J., dissenting). I would affirm the decision of the Court of Appeals.
*
The possibility that the Indiana state courts would adopt the construction contrary to that of the Court of Appeals for the Seventh Circuit is somewhat enhanced by the fact that the construction adopted by the Seventh Circuit may fairly be said to raise federal constitutional problems under recent procedural due process decisions of this Court, e. g., Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), particularly if, as the Seventh Circuit appears to have assumed, the Administrative Adjudication Act would leave respondent without a state-law right to a hearing at any time in connection with her dismissal for cause. The state courts may be reluctant to attribute to their legislature an intention to pass a statute raising constitutional problems, unless such legislative intent is particularly clear. See, e. g., Kent v. Dulles, 357 U.S. 116, 129-130, 78 S.Ct. 1113, 1119-1120, 2 L.Ed.2d 1204 (1958); Johnson v. Robison, 415 U.S. 361, 366-367, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974). See Field, Abstention in Constitutional Cases: The Scope of the Pullman Abstention Doctrine, 122 U.Pa.L.Rev. 1071, 1117-1118 (1974).
Although the question of respondent's federal constitutional right to a hearing at some time, in connection with a discharge for cause may already have been resolved in respondent's favor in Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); and Arnett v. Kennedy, supra, the tenured employee's right to a preremoval hearing has been determined by this Court only in the context of a statute providing notice and an opportunity to respond in writing before removal coupled with a full hearing after removal. See concurring opinion of Powell, J., in Arnett v. Kennedy, supra, at 164, 170, 94 S.Ct., at 1649, 1652.
| 89
|
423 U.S. 9
96 S.Ct. 170
46 L.Ed.2d 152
State of CONNECTICUTv.Patrick MENILLO.
No. 74-1569.
Nov. 11, 1975.
PER CURIAM.
1
In 1971 a jury convicted Patrick Menillo of attempting to procure an abortion in violation of Connecticut's criminal abortion statute. Menillo is not a physician and has never had any medical training. The Connecticut Supreme Court nevertheless overturned Menillo's conviction, holding that under the decisions 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), the Connecticut statute was "null and void." As we think the Connecticut court misinterpreted Roe and Doe, we grant the State's petition for certiorari and vacate the judgment.
2
The statute under which Menillo was convicted makes criminal an attempted abortion by "any person."1 The Connecticut Supreme Court felt compelled to hold this statute null and void, and thus incapable of constitutional application even to someone not medically qualified to perform an abortion, because it read Roe to have done the same thing to the similar Texas statutes. But Roe did not go so far.
3
In Roe we held that Tex. Penal Code, Art. 1196, which permitted termination of pregnancy at any stage only to save the life of the expectant mother, unconstitutionally restricted a woman's right to an abortion. We went on to state that as a result of the unconstitutionality of Art. 1196 the Texas abortion statutes had to fall "as a unit," 410 U.S., at 166, 93 S.Ct., at 733, and it is that statement which the Connecticut Supreme Court and courts in some other States have read to require the invalidation of their own statutes even as applied to abortions performed by nonphysicians.2 In context, however, our statement had no such effect. Jane Roe had sought to have an abortion " 'performed by a competent, licensed physician, under safe, clinical conditions,' " id., at 120, 93 S.Ct., at 710, and our opinion recognized only her right to an abortion under those circumstances. That the Texas statutes fell as a unit meant only that they could not be enforced, with or without Art. 1196, in contravention of a woman's right to a clinical abortion by medically competent personnel. We did not hold the Texas statutes unenforceable against a nonphysician abortionist, for the case did not present the issue.
4
Moreover, the rationale of our decision supports continued enforceability of criminal abortion statutes against nonphysicians. Roe teaches that a State cannot restrict a decision by a woman, with the advice of her physician, to terminate her pregnancy during the first trimester because neither its interest in maternal health nor its interest in the potential life of the fetus is sufficiently great at that stage. But the insufficiency of the State's interest in maternal health is predicated upon the first trimester abortion's being as safe for the woman as normal childbirth at term, and that predicate holds true only if the abortion is performed by medically competent personnel under conditions insuring maximum safety for the woman. See 410 U.S., at 149-150, 163, 93 S.Ct. at 724-725, 731; cf. statement of Douglas, J., in Cheaney v. Indiana, 410 U.S. 991, 93 S.Ct. 1516, 36 L.Ed.2d 189 (1973), denying certiorari in 259 Ind. 138, 285 N.E.2d 265 (1972). Even during the first trimester of pregnancy, therefore, prosecutions for abortions conducted by nonphysicians infringe upon no realm of personal privacy secured by the Constitution against state interference. And after the first trimester the ever-increasing state interest in maternal health provides additional justification for such prosecutions.
5
As far as this Court and the Federal Constitution are concerned, Connecticut's statute remains fully effective against performance of abortions by nonphysicians. We express no view, of course, as to whether the same is now true under Connecticut law. Accordingly, the petition for certiorari is granted, the judgment of the Supreme Court of Connecticut is vacated, and the case is remanded to that court for its further consideration in light of this opinion.
6
So ordered.
7
Mr. Justice WHITE concurs in the result.
1
Conn.Gen.Stat.Rev. § 53-29:
"Any person who gives or administers to any woman, or advises or causes her to take or use anything, or uses any means, with intent to procure upon her a miscarriage or abortion, unless the same is necessary to preserve her life or that of her unborn child, shall be fined not more than one thousand dollars or imprisoned in the State Prison not more than five years or both."
2
See, e. g., State v. Hultgren, 295 Minn. 299, 204 N.W.2d 197 (1973); Commonwealth v. Jackson, 454 Pa. 429, 312 A.2d 13 (1973). The highest courts of other States have held that their criminal abortion laws can continue to be applied to laymen following Roe and Doe. E. g., People v. Bricker, 389 Mich. 524, 208 N.W.2d 172 (1973); State v. Norflett, 67 N.J. 268, 337 A.2d 609 (1975).
| 45
|
423 U.S. 28
96 S.Ct. 229
46 L.Ed.2d 169
TRANSAMERICAN FREIGHT LINES, INC., Petitioner,v.BRADA MILLER FREIGHT SYSTEMS, INC., et al.
No. 74-54.
Argued Oct. 8, 1975.
Decided Nov. 12, 1975.
Syllabus
Respondent Brada Miller and petitioner Transamerican, two licensed motor carriers, made an agreement whereby respondent leased a vehicle to petitioner, to be operated by respondent's driver over petitioner's authorized route. Under the lease petitioner was to "have the control and responsibility for the operation of said equipment in respect to the public, shippers and Interstate Commerce Commission," but respondent agreed to indemnify petitioner for claims arising out of respondent's negligence, though the indemnification clause specifically did not limit petitioner's liability to the public in connection with the use of the leased equipment. While the vehicle was being operated under the lease, an accident occurred, and a suit was brought against the carriers predicated on the negligence of the vehicle's driver. Petitioner settled the claim and then sought recovery against respondent in District Court under the indemnification clause. That court granted respondent's motion for summary judgment on the ground that the clause contravened an ICC regulation requiring that lease agreements between regulated carriers must contain a written undertaking that "control and responsibility for the operation of the equipment shall be that of the lessee." The Court of Appeals affirmed, reasoning that since respondent, contrary to the intent of the regulation, had agreed to bear the costs of its own negligence, it had assumed control and responsibility and that the indemnification clause was ineffective. Held: The indemnification agreement entered into by petitioner and respondent does not contravene ICC's control-and-responsibility requirement. Pp. 35-43.
(a) An indemnification agreement violates the ICC requirement only if the lessor was in control of the service provided as well as of the vehicle's physical operation. Here control over the vehicle, as agreed between the parties, remained in petitioner, and the furnishing of respondent's driver involved only ministerial control and not delegation of responsibility for the shipment. Pp. 38-40.
(b) Nor did the indemnification provision conflict with ICC safety regulations, because such a provision, which places ultimate financial responsibility on the negligent lessor, may tend to increase rather than diminish protection of the public. P. 41.
497 F.2d 926, reversed and remanded.
Alphonso H. Voorhees, St. Louis, Mo., for petitioner.
Joseph L. Leritz, St. Louis, Mo., for respondents.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
In this case we are concerned with the "control and responsibility" requirement of the Interstate Commerce Commission's equipment leasing regulation, 49 CFR § 1057.3(a) (1975),1 applicable to authorized motor carriers. The question before us is narrow: Does the control-and-responsibility requirement prohibit, as against public policy, an agreement between carriers by which the lessor indemnifies the lessee for loss caused by the negligence of the lessor?
2
* On January 19, 1968, respondent Brada Miller Freight Systems, Inc., entered into an agreement with petitioner Transamerican Freight Lines, Inc., whereby Brada Miller, as lessor, leased to Transamerican, as lessee, a tractor and trailer operated by driver H. L. Hardrick for a trip from Detroit, Mich., to Kansas City, Mo.2 Transamerican held authority from the ICC to serve those points, and the leased equipment was to be operated over Transamerican's routes "without deviation." Brada Miller represented that, as § 1057.3(a) specifies, Kansas City was "in the direction of a point" which it was "authorized to serve." The lease recited that the equipment was "to be operated only by a competent employee" of Brada Miller, "in which event said employee . . . shall be the representative of" Brada Miller. App. 90; Brief for Petitioner A-2. It further provided:
3
"4. It is mutually understood and agreed, that (Transamerican) during the term of this lease shall have the control and responsibility for the operation of said equipment in respect to the public, shippers and Interstate Commerce Commission for such period that said equipment is operated under the terms of this lease as provided in Paragraph 1 hereof.
4
"9. . . . (Brada Miller) hereby agrees to indemnify and save harmless (Transamerican) from any and all claims, suits, losses, fines or other expenses arising out of, based upon or incurred because of injury to any person or persons, or damage to property sustained or which may be alleged to have been sustained by reason of any negligence or alleged negligence on the part of (Brada Miller), its agents, servants or employees . . . . Nothing in this Paragraph 9 contained shall be construed to in anywise limit the liability of (Transamerican) to the public in connection with the use of said equipment under this Agreement." Ibid.
5
Hardrick was a Brada Miller driver and employee. Pursuant to the Commission's regulation, 49 CFR § 1057.4(c) (1975), Transamerican, before the trip, made the required inspection of the equipment and filed a report that it was safe. App. 66-67, 89, 90. It checked the medical report on Hardrick. Id., at 75. It affixed to the door of the tractor an identification placard stating that it was operated by Transamerican and reciting its number assigned by the ICC; the placard remained so affixed throughout the trip. Id., 55-58, 63-65.
6
On the way to Kansas City, and near Smithboro, Ill., the vehicle driven by Hardrick and an automobile operated by Sandra Wear collided. Wear was injured. Transamerican reported the accident on the ICC's prescribed form. Wear later filed suit in the United States District Court for the Southern District of Illinois against both Brada Miller and Transamerican. She alleged that the accident was caused by Hardrick's negligence. Brada Miller and Transamerican filed cross-claims against each other in that litigation. During the trial Wear settled her claim against Transamerican for $80,000 and dismissed her cause of action with prejudice.3 Transamerican then amended its cross-claim by pleading the settlement and seeking recovery from Brada Miller for the settlement amount plus the expenses incurred in defending the Wear action.
7
Brada Miller in due course moved for summary judgment against Transamerican. It did so on the ground that "the pleadings, depositions, answers to interrogatories and exhibits on file show that the indemnity provision of the trip lease . . . is contrary to public policy and is unenforceable." Id., at 91.
8
The District Court granted Brada Miller's motion. In an unreported opinion, the court cited § 204(e) of the Interstate Commerce Act, 24 Stat. 379, as added, 49 Stat. 543, as amended, 49 U.S.C. § 304(e),4 which authorizes the Commission to prescribe regulations with respect to motor carriers' use, under leases, of motor vehicles not owned by them, and § 1057.4(a)(4) of the regulations,5 issued pursuant to that authority, as governing the lease between Brada Miller and Transamerican. It then followed what it regarded as precedent that had been established by its controlling court in Alford v. Major, 470 F.2d 132 (CA7 1972). In Alford the Seventh Circuit had concluded:
9
"Therefore, since the indemnification clause would permit Major to circumvent the regulations' requirement that leased carriers exert actual control over the leased equipment and the borrowed drivers, we find that the indemnification clause is unenforceable." Id., at 135.
10
The Court of Appeals affirmed with an unpublished opinion. Wear v. Transamerican Freight Lines, 497 F.2d 926 (CA7 1974). It, too, relied on 49 U.S.C. § 304(e), on 49 CFR § 1057.4, and on its earlier Alford case. It emphasized its observation in Alford, 470 F.2d, at 135, quoting the trial court in that case, that the intent of the regulations " 'was to make sure that licensed carriers would be responsible in fact, as well as in law, for the maintenance of leased equipment and the supervision of borrowed drivers.' " Pet. for cert. A-10. It felt that "control and cost bearing" were related, and that the regulations required the party with the duty of responsibility and control under the statute "to internalize the cost of any breach of this duty." Id., at A-12. It reasoned that inasmuch as Brada Miller had agreed to bear the costs of its own negligence, it had assumed control and responsibility and that the indemnification clause therefore was ineffective.
11
Because the Court of Appeals asserted, ibid., that Alford could not be distinguished from Allstate Ins. Co. v. Alterman Transport Lines, Inc., 465 F.2d 710 (CA5 1972), we granted certiorari.6 420 U.S. 971, 95 S.Ct. 1389, 43 L.Ed.2d 650 (1975).
II
12
The issue before us, therefore, is whether the indemnification provision in the lease agreement between Brada Miller and Transamerican violates the Commission's applicable regulation and, as a consequence, is contrary to public policy and unenforceable. In order to place the issue in proper perspective, we note, initially, certain general aspects of motor carrier operations.
13
Demand for a motor carrier's services may fluctuate seasonally or day by day. Keeping expensive equipment operating at capacity, and avoiding the waste of resources attendant upon empty backruns and idleness, are necessary and continuing objectives. It is natural, therefore, that a carrier that finds itself short of equipment necessary to meet an immediate demand will seek the use of a vehicle not then required by another carrier for its operations, and the latter will be pleased to accommodate. Each is thereby advantaged.
14
A lease of equipment, which is permissible under defined circumstances, must be distinguished, however, from a sharing or lending of operating authority, which is not permitted. Under the Motor Carrier Act, 1935, 49 Stat. 543, as amended, 49 U.S.C. §§ 301-327, only a properly certificated carrier may haul freight in interstate or foreign commerce. Each certificate is limited as to routes, destinations, and classes of freight. 49 U.S.C. § 308(a). See Nelson, Inc. v. United States, 355 U.S. 554, 78 S.Ct. 496, 2 L.Ed.2d 484 (1958); Kreider Truck Service, Inc., Extension Lard Oils, 82 M.C.C. 565 (1960). As a consequence, the Commission has developed and designed its responsibility-and-control regulations in order to prevent a sharing of operating authority under the guise of a lease of equipment. With only special exceptions, the regulations require the lessee to ship under its own bill of lading, to compensate the lessor on an established basis, to inspect the equipment, and to assume full control and responsibility for the operation. 49 CFR §§ 1057.3(a) and 1057.4. The regulations, however, do not require the lessee itself to operate the equipment; the lessor may perform that task by furnishing the driver with the equipment. But the lessee must assume the responsibility for the shipment and have full authority to control it.
III
15
The regulations were formulated in the 1950's in the rulemaking procedure known as Ex parte No. MC-43. See Lease and Interchange of Vehicles by Motor Carriers, 51 M.C.C. 461 (1950); 52 M.C.C. 675 (1951); 64 M.C.C. 361 (1955); and 68 M.C.C. 553 (1956). The initial formulation was sustained, against a variety of attacks, in American Trucking Assns. v. United States, 344 U.S. 298, 73 S.Ct. 307, 97 L.Ed. 337 (1953). There the Court outlined as background "the existing conditions of the motor truck industry and its regulation." Id., at 302, 73 S.Ct. at 310. It referred to the development of the practice by authorized carriers of using nonowned equipment by interchange and by leasing. Id., at 303, 73 S.Ct. at 311. "The use of nonowned equipment by authorized carriers is not illegal, either under the Act or the rules under consideration." Id., at 303-304, 73 S.Ct. at 311 (footnote omitted). But it is noted that the record in that case contained proof of abuses and evasions of certificated authority and of safety requirements, difficulties in the fixing of the lessee's responsibility, and other problems. Id., at 304-306, 73 S.Ct., at 311-312.
16
After a detailed examination of the proceedings of the Commission that resulted in the promulgation of the protective provisions at issue in this case, the Court observed: "The purpose of the rules is to protect the industry from practices detrimental to the maintenance of sound transportation services consistent with the regulatory system," and to assure safety of operation. Id., at 310, 73 S.Ct., at 314. "So the rules in question are aimed at conditions which may directly frustrate the success of the regulation undertaken by Congress." Id., at 311, 73 S.Ct., at 315. It is apparent, therefore, that sound transportation services and the elimination of the problem of a transfer of operating authority, with its attendant difficulties of enforcing safety requirements and of fixing financial responsibility for damage and injuries to shippers and members of the public, were the significant aims and guideposts in the development of the comprehensive rules.
17
It is likewise apparent that an important feature of the remedy the Commission devised to eliminate the undesirable practices was the rule that any lease in which the lessor furnished the driver was to be one for 30 days or more. See 49 CFR §§ 1057.3(a) and 1057.4(a)(3). This served to eliminate the "hard core of the problem," that is, "the owner-operator trip lease and its attendant evils." 68 M.C.C., at 555. It was effectuated by the provisions, some mentioned above, that the lease be in writing and negotiated in advance; that the equipment be identified as that of the lessee; that the lease provide for payment to the lessor at a specified rate; that the lessee conduct a safety inspection before taking possession; and that the lessee have control and responsibility for the operation of the equipment.
18
Obviously, the inspection requirement of § 1057.4(c), applicable to carriers to which § 1057.3(a) relates, is of distinct importance. It is addressed in part to any apprehension that a lessor might furnish equipment less reliable than that of the certificated lessee. And the requirement that the lessee assume control and responsibility tends to assure that a party directly responsible to the Commission is in actual charge of the operation.
IV
19
In light of this background the early conditions in the industry, the problems that existed, the rules that were evolved to resolve those problems, and the purpose of the rules we turn specifically to the indemnification clause in the Brada Miller-Transamerican lease.
20
A. Whether the presence of an indemnification clause conflicts with the lease's further provision, required by § 1057.3(a), that the lessee shall have full operational control and responsibility, was a question not directly addressed in Ex parte No. MC-43. We readily conclude, however, that the two provisions are not in conflict and that the indemnification clause does not impinge upon the requirements of the lease and of § 1057.3(a) that operational control and responsibility be in the lessee. Paragraph 4 of the lease is, of course, express and clear. The parties agreed in writing that "the control and responsibility for the operation of said equipment" were in Transamerican, as lessee. This is what § 1057.3(a) requires and it is all that it formally requires. Moreover, added to the bare words of assumption of control and responsibility, was the specification that this was directed "to the public, shippers and Interstate Commerce Commission." The separate indemnification clause in the subsequent paragraph 9 of the lease did not affect this basic responsibility of the lessee to the public; it affected only the relationship between the lessee and the lessor. The final sentence of paragraph 9 made this clear:
21
"Nothing in this paragraph 9 contained shall be construed to in anywise limit the liability of (Transamerican) to the public in connection with the use of said equipment under this Agreement."
22
And in this very case it was Transamerican which defended the Wear suit and settled it.
23
It is to be acknowledged, to be sure, that the lessor's furnishing of a driver allows an aspect of control, in a sense, to remain in the lessor. But this is ministerial control, not control of the kind with which the Commission was concerned in Ex parte No. MC-43. Its concern, as we have noted, was with operating authority, with routes and destinations and classes of freight, with the integrity of certifications, and with that ultimate control in the lessee that makes and keeps it responsible to the public, the shipper, and the Commission. The Commission observed:
24
"It now seems to be accepted that when an authorized carrier furnishes service in vehicles owned and operated by others, he must control the service to the same extent as if he owned the vehicles, but need control the vehicles only to the extent necessary to be responsible to the shipper, the public, and this Commission for the transportation." 52 M.C.C., at 681.
25
The regulations do not expressly prohibit an indemnification provision in the agreement between the lessor and the lessee. In fact, they neither sanction nor forbid it. It would seem to follow, then, that the mere presence of a clause such as the one here that the lessor is to bear the burden of its own negligence does not, in and of itself, offend the regulations so long as the lessee does not absolve itself from the duties to the public and to shippers imposed upon it by the Commission's regulations. This is not to say, of course, that the presence of an indemnification clause, or its character, may not be a factor to be considered in determining whether a particular arrangement between carriers is an illegal sharing of operating authority or is a legal lease of equipment.
26
The Commission, on occasion, has considered an indemnification clause as one element, among others, that may demonstrate lack of control and responsibility in the lessee. See Tanksley Transfer Co. Extension Points in Four States, 110 M.C.C. 674, 678-679 (1969); Diamond Transportation System, Inc., Extension Wisconsin and Oklahoma Origins, 117 M.C.C. 706, 712-713 (1973). But the Commission has never condemned the indemnification clause in isolation.
27
Although one party is required by law to have control and responsibility for conditions of the vehicle, and to bear the consequences of any negligence, the party responsible in law to the injured or damaged person may seek indemnity from the party responsible in fact. The indemnification agreement violates the Commission rules only if accompanied by other indicia demonstrating that the lessor was in control of the service provided as well as of the physical operation of the vehicle. But the clause in isolation as framed by the issue before the District Court on the motion for summary judgment, and before the Court of Appeals, and now before us does not do so.
28
B. We similarly conclude that the indemnification clause by itself does not conflict with the regulations' safety provisions. Safety in motor vehicle operation, of course, was an important concern of the Commission in its development of the equipment-leasing regulations. American Trucking Assns. v. United States, 344 U.S., at 305, 73 S.Ct., at 312; 52 M.C.C., at 686-696. This concern is reflected in the provisions of §§ 1057.4(c) and 1057.4(e) relating, respectively, to vehicle inspections and driver familiarity with safety regulations. These provisions apply regardless of the existence of an indemnification agreement, and the lessee may fully comply with the requirements of the regulations despite its having contracted for indemnification.
29
An indemnification provision with respect to the lessor's negligence does not necessarily tend to lessen operational safety. On the contrary, it may increase it. The lessor, as a general rule, is the party more familiar with the equipment it leases and with the experience, ability, and record of the driver it furnishes. An agreement placing the ultimate financial responsibility upon the negligent lessor thus may have a tendency to provide greater protection to the public and to shippers. At the same time, the lessee's control and responsibility may then become more meaningful. It may also be said that the indemnification provision produces an additional source of funds for the one who is damaged or injured. These, of course, are factors that are pertinent in the evaluation of administrative policy; they are not now for this Court to evaluate. We hold only that the presence in an equipment lease of an indemnification clause directed to the lessor's negligence is not in conflict with the safety concerns of the Commission or with the regulations it has promulgated.
30
We utter a word of caution: our decision is not to be regarded as an indication that the Commission, if it so chooses upon study of the problem, may not one day regulate or even proscribe indemnification as between lessee and lessor.7 We merely hold that the present regulations may not be so interpreted. See Chicago, R. I. & P. R. Co. v. Chicago, B. & Q. R. Co., 437 F.2d 6, 9-10 (CA7), cert. denied, 402 U.S. 996, 91 S.Ct. 2173, 29 L.Ed.2d 161 (1971).
31
We therefore find ourselves in disagreement with the Court of Appeals. We emphasize that our disagreement must be viewed in the light of the narrow character of the Court of Appeals' holding to the effect that the indemnification clause in this particular agreement, in isolation, served to circumvent the regulations and was against public policy and was unenforceable. It is with that holding that we disagree and we reverse. Other issues raised by Transamerican's cross-claim and Brada Miller's answer thereto, as the parties recognize, remain undetermined. Among these, seemingly, are the questions whether the negligence that caused Wear's injury was that of Brada Miller, and whether the agreement, as a whole, was a legal lease of equipment or was an illegal sharing of operating authority. We express no view as to those issues; they are to be resolved upon remand.
32
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.
33
It is so ordered.
34
Reversed and remanded.
35
Mr. Justice DOUGLAS concurs in the judgment.
1
The pertinent phrase in 49 CFR § 1057.3(a) (1975) is "control and responsibility for the operation of the equipment." Section 1057.3(a) reads in full as follows:
"The provisions of § 1057.4, except paragraphs (c) and (d), relative to inspection and identification of equipment, shall not apply:
"(a) Equipment used in the direction of a point which lessor is authorized to serve. To equipment owned or held under a lease of 30 days or more by an authorized carrier and regularly used by it in the service authorized, and leased by it to another authorized carrier for transportation in the direction of a point which lessor is authorized to serve: Provided, That the two carriers have first agreed in writing that control and responsibility for the operation of the equipment shall be that of the lessee from the time the equipment passes the inspection required to be made by lessee or its representative under § 1057.4(c) until such time as the lessor or its representative shall give to the lessee or its representative a receipt specifically identifying the equipment and stating the date and the time of day possession thereof is retaken or until such time as the required inspection is completed by another authorized carrier taking possession of the equipment in an interchange of equipment where such use is contemplated, such writing to be signed by the parties or their duly authorized regular employees or agents, and a copy thereof carried in the equipment while the equipment is in the possession of the lessee."
In § 1057.4(a)(4), relating to equipment other than that exchanged in interstate service and other than that leased by one authorized carrier to another, the parallel provision is "exclusive possession, control, and use of the equipment, and . . . the complete assumption of responsibility in respect thereto."
2
At the time, Brada Miller itself held the equipment under a lease dated November 1967.
3
The order of dismissal preserved the rights of Transamerican in its cross-claim against Brada Miller. Diversity of citizenship remained after the settlement.
4
"Subject to the provisions of subsection (f) (setting forth exceptions not material here) of this section, the Commission is authorized to prescribe, with respect to the use by motor carriers (under leases, contracts, or other arrangements) of motor vehicles not owned by them, in the furnishing of transportation of property
"(1) regulations requiring that any such lease, contract, or other arrangement shall be in writing and be signed by the parties thereto, shall specify the period during which it is to be in effect, and shall specify the compensation to be paid by the motor carrier, and requiring that during the entire period of any such lease, contract, or other arrangement a copy thereof shall be carried in each motor vehicle covered thereby; and
"(2) such other regulations as may be reasonably necessary in order to assure that while motor vehicles are being so used the motor carriers will have full direction and control of such vehicles and will be fully responsible for the operation thereof in accordance with applicable law and regulations, as if they were the owners of such vehicles, including the requirements prescribed by or under the provisions of this chapter with respect to safety of operation and equipment and inspection thereof."
5
Under the facts, this appears to be an inadvertent reference. Section 1057.3 of the regulations states that the cited § 1057.4, "except paragraphs (c) and (d)" thereof, "shall not apply" to certain equipment, such as the tractor and trailer in question, leased by one authorized carrier to another authorized carrier, provided that the carriers "have first agreed in writing that control and responsibility for the operation of the equipment shall be that of the lessee." See n. 1, supra. Brada Miller and Transamerican were authorized carriers and they had made the specified agreement. The section's proviso, however, in substance is the same as the parallel provision in § 1057.4(a)(4), cited by the District Court. The miscitation, therefore, is of no significance here.
6
Despite the presence of some distinguishing features, and despite some attempts to distinguish, cases seemingly consistent with the decision below are Denver Midwest Motor Freight, Inc. v. Busboom Trucking, Inc., 190 Neb. 231, 207 N.W.2d 368 (1973), and Gordon Leasing Co. v. Navajo Freight Lines, 130 N.J.Super. 290, 326 A.2d 114 (1974). Seemingly opposed, in addition to Alterman, are Carolina Freight Carriers Corp. v. Pitt County Transportation Co., 492 F.2d 243 (CA4 1974), cert. pending, No. 73-1750; Indiana Refrigerator Lines, Inc. v. Dalton, 516 F.2d 795 (CA6 1975), cert. pending, No. 75-211; Indiana Ins. Co. v. Parr Trucking Service, Inc., 510 F.2d 490, 494 (CA6 1975); Jones Truck Lines, Inc. v. Ryder Truck Lines, Inc., 507 F.2d 100 (CA6 1974), cert. pending, No. 74-973; Cooper-Jarrett, Inc. v. J. Miller Corp., 70 Misc.2d 88, 332 N.Y.S.2d 177 (1972); Newsome v. Surratt, 237 N.C. 297, 74 S.E.2d 732 (1953); Continental Ins. Co. v. Daily Express, Inc., 68 Wis.2d 581, 229 N.W.2d 617 (1975). See General Expressways, Inc. v. Schreiber Freight Lines, Inc., 377 F.Supp. 1159 (ND Ill.1974), where a District Court in the Seventh Circuit reached the conclusion that the indemnification agreement was not unenforceable as against public policy. See also Watkins Motor Lines, Inc. v. Zero Refrigerated Lines, 381 F.Supp. 363 (ND Ill.1974), aff'd, 525 F.2d 538 (CA7 1975), involving an indemnification contract that accompanied an interchange agreement. The Seventh Circuit itself concluded that the indemnification agreement "serves a useful purpose and must be upheld." Id., at 540. The Circuit's earlier contrary decision in Alford, it was felt, was "inapposite."
7
The Commission and the United States in their joint brief as amici curiae submit that the indemnification clause by itself is not in violation of the regulations. They acknowledge that the current regulations do not specifically determine the issue before us; that on some occasion in the future the Commission may consider the promulgation of rules that bear upon indemnification agreements; and that, if so, it is possible that the Commission may come to one conclusion with respect to a provision protecting the lessee against the consequences of its own negligence, and to an opposite conclusion with respect to a provision relating to the negligence of the lessor. We note the Commission's submission here in view of the longstanding and recognized rule of deference. Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945); Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 801-802, 13 L.Ed.2d 616 (1965).
| 78
|
423 U.S. 61
96 S.Ct. 241
46 L.Ed.2d 195
Steve MENNAv.State of NEW YORK.
No. 75-5401.
Nov. 17, 1975.
PER CURIAM.
1
On November 7, 1968, after being granted immunity, petitioner refused to answer questions put to him before a duly convened Kings County, N. Y., Grand Jury which was investigating a murder conspiracy. On March 18, 1969, petitioner refused to obey a court order to return to testify before the same Grand Jury in connection with the same investigation. On that date, petitioner was adjudicated in contempt of court under § 750 of the New York Judiciary Law for his failure to testify before the Grand Jury; and, on March 21, 1969, after declining an offer to purge his contempt, petitioner was sentenced to a flat 30-day term in civil jail. Petitioner served his sentence.
2
On June 10, 1970, petitioner was indicted for his refusal to answer questions before the Grand Jury on November 7, 1968. After asserting unsuccessfully that his indictment should be dismissed under the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, petitioner pleaded guilty to the indictment and was sentenced on his plea. Petitioner appealed, claiming that the Double Jeopardy Clause precluded the State from haling him into court on the charge to which he had pleaded guilty.1 The New York Court of Appeals affirmed the conviction, declining to address the double jeopardy claim on the merits. It held, relying, inter alia, on Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), that the double jeopardy claim had been "waived" by petitioner's counseled plea of guilty.
3
We reverse. Where the State is precluded by the United States Constitution from haling a defendant into court on a charge, federal law requires that a conviction on that charge be set aside even if the conviction was entered pursuant to a counseled plea of guilty. Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 2103, 40 L.Ed.2d 628 (1974).2 The motion for leave to proceed in forma pauperis and the petition for certiorari are granted, and the case is remanded to the New York Court of Appeals for a determination of petitioner's double jeopardy claim on the merits, a claim on which we express no view.
4
Mr. Justice BRENNAN agrees that "(w)here the State is precluded by the United States Constitution from haling a defendant into court on a charge, federal law requires that a conviction on that charge be set aside even if the conviction was entered pursuant to a counseled plea of guilty," ante, but on his view that the Double Jeopardy Clause bars the prosecution from mounting successive prosecutions for offenses growing out of the same criminal transaction, he believes that the proper disposition of the case is not a remand but outright reversal. See Ashe v. Swenson, 397 U.S. 436, 453-454, 90 S.Ct. 1189, 1199, 25 L.Ed.2d 469 (1970) (Brennan, J., concurring).
5
The CHIEF JUSTICE and Mr. Justice REHNQUIST would grant the petition for a writ of certiorari and set the case for oral argument.
1
The state concedes that petitioner's double jeopardy claim is a strong one on the merits. In light of the flat 30-day sentence imposed, the earlier conviction was a criminal conviction, People v. Colombo, 31 N.Y.2d 947, 341 N.Y.S.2d 97, 293 N.E.2d 247, on re and from Colombo v. New York, 405 U.S. 9, 92 S.Ct. 756, 30 L.Ed.2d 762, and New York law supports the proposition that the earlier conviction was based, at least in part, on the failure to answer questions on November 7, 1968, and was thus for the same crime as the one charged in the instant indictment. Matter of Capio v. Justices of the Supreme Court, 41 A.D.2d 235, 342 N.Y.S.2d 100 (2d Dept. 1973), aff'd, 34 N.Y.2d 603, 354 N.Y.S.2d 953, 310 N.E.2d 547; People v. Matra, 42 A.D.2d 865, 346 N.Y.S.2d 872 (2d Dept. 1973).
2
Neither Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235, nor our earlier cases on which it relied, e. g., Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 and McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763, stand for the proposition that counseled guilty pleas inevitably "waive" all antecedent constitutional violations. If they did so hold, the New York Court of Appeals might be correct. However in Tollett we emphasized that waiver was not the basic ingredient of this line of cases, id., 411 U.S. at 266, 93 S.Ct., at 1607. The point of these cases is that a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case. In most cases, factual guilt is a sufficient basis for the State's imposition of punishment. A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction if factual guilt is validly established. Here, however, the claim is that the State may not convict petitioner no matter how validly his factual guilt is established. The guilty plea, therefore does not bar the claim.
We do not hold that a double jeopardy claim may never be waived. We simply hold that a plea of guilty to a charge does not waive a claim that judged on its face the charge is one which the State may not constitutionally prosecute.
| 01
|
423 U.S. 44
96 S.Ct. 249
46 L.Ed.2d 181
Mary Ann TURNERv.DEPARTMENT OF EMPLOYMENT SECURITY AND BOARD OF REVIEW OF the INDUSTRIAL COMMISSION OF UTAH.
No. 74-1312.
Nov. 17, 1975.
PER CURIAM.
1
The petitioner, Mary Ann Turner, challenges the constitutionality of a provision of Utah law that makes pregnant women ineligible for unemployment benefits for a period extending from 12 weeks before the expected date of childbirth until a date six weeks after childbirth. Utah Code Ann. § 35-4-5(h) (1) (1974).
2
The petitioner was separated involuntarily from her employment on November 3, 1972, for reasons unrelated to her pregnancy. In due course she applied for unemployment compensation and received benefits until March 11, 1973, 12 weeks prior to the expected date of the birth of her child. Relying upon § 35-4-5(h) (1), the respondent Department of Employment Security ruled that she was disqualified from receiving any further payments after that date and until six weeks after the date of her child's birth. Thereafter, Mrs. Turner worked intermittently as a temporary clerical employee. After exhausting all available administrative remedies, the petitioner appealed the respondents' rulings to the Utah Supreme Court, claiming that the statutory provision deprived her of protections guaranteed by the Fourteenth Amendment. The state court rejected her contentions, ruling that the provision violated no constitutional guarantee. 531 P.2d 870. The petition for certiorari now before us brings the constitutional issues here.
3
The Utah unemployment compensation system grants benefits to persons who are unemployed and are available for employment. Utah Code Ann. § 35-4-4(c) (1974). One provision of the statute makes a woman ineligible to receive benefits "during any week of unemployment when it is found by the commission that her total or partial unemployment is due to pregnancy." § 35-4-5(h)(2). In contrast to this requirement of an individualized determination of ineligibility, the challenged provision establishes a blanket disqualification during an 18-week period immediately preceding and following childbirth. § 35-4-5(h)(1). The Utah Supreme Court's opinion makes clear that the challenged ineligibility provision rests on a conclusive presumption that women are "unable to work" during the 18-week period because of pregnancy and childbirth.* See 531 P.2d, at 871.
4
The presumption of incapacity and unavailability for employment created by the challenged provision is virtually identical to the presumption found unconstitutional in Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52. In LaFleur, the Court held that a school board's mandatory maternity leave rule which required a teacher to quit her job several months before the expected birth of her child and prohibited her return to work until three months after childbirth violated the Fourteenth Amendment. Noting that "freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause," 414 U.S., at 639, 94 S.Ct. at 796, the Court held that the Constitution required a more individualized approach to the question of the teacher's physical capacity to continue her employment during pregnancy and resume her duties after childbirth since "the ability of any particular pregnant woman to continue at work past any fixed time in her pregnancy is very much an individual matter." Id., at 645, 94 S.Ct. at 799.
5
It cannot be doubted that a substantial number of women are fully capable of working well into their last trimester of pregnancy and of resuming employment shortly after childbirth. In this very case Mrs. Turner was employed intermittently as a clerical worker for portions of the 18-week period during which she was conclusively presumed to be incapacitated. The Fourteenth Amendment requires that unemployment compensation boards no less than school boards must achieve legitimate state ends through more individualized means when basic human liberties are at stake. We conclude that the Utah unemployment compensation statute's incorporation of a conclusive presumption of incapacity during so long a period before and after childbirth is constitutionally invalid under the principles of the LaFleur case.
6
Accordingly, the writ of certiorari is granted, the judgment is vacated, and the case is remanded to the Supreme Court of Utah for further proceedings not inconsistent with this opinion.
7
So ordered.
8
The CHIEF JUSTICE and Mr. Justice BLACKMUN would not summarily vacate the judgment of the Supreme Court of Utah. Instead, they would grant certiorari and set the case for full briefing and oral argument.
9
Mr. Justice REHNQUIST dissents.
*
The respondents contend that the challenged provision is a limitation on the coverage of the Utah unemployment compensation system and not a presumption of unavailability for employment based on pregnancy. This characterization of the statute, advanced in an attempt to analogize the provision to the law upheld in Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256, conflicts with the respondents' argument to the Utah Supreme Court. Before that court respondents claimed that " 'near term pregnancy is an endemic condition relating to employability.' " The Utah Supreme Court's decision is premised on the impact of pregnancy on a woman's ability to work. Its opinion makes no mention of coverage limitations or insurance principles central to Aiello. The construction of the statute by the State's highest court thus undermines the respondents' belated claim that the provision can be analogized to the law sustained in Aiello.
| 12
|
423 U.S. 48
96 S.Ct. 243
46 L.Ed.2d 185
J. H. ROSE, Wardenv.Harold LOCKE.
No. 74-1451.
Nov. 17, 1975.
PER CURIAM.
1
Respondent was convicted in the Criminal Court for Knox County, Tenn., of having committed a "crime against nature" in violation of Tenn.Code Ann. § 39-707 (1955).1 The evidence showed that he had entered the apartment of a female neighbor late at night on the pretext of using the telephone. Once inside, he produced a butcher knife, forced his neighbor to partially disrobe, and compelled her to submit to his twice performing cunnilingus upon her. He was sentenced to five to seven years' imprisonment. The Tennessee Court of Criminal Appeals affirmed the conviction, rejecting respondent's claim that the Tennessee statute's proscription of "crimes against nature" did not encompass cunnilingus, as well as his contention that the statute was unconstitutionally vague. 501 S.W.2d 826 (1973). The Supreme Court of Tennessee denied review.
2
Respondent renewed his constitutional claim in a petition for a writ of habeas corpus filed in the District Court for the Eastern District of Tennessee.2 The District Court denied respondent's petition, holding that when considered in light of previous interpretations by the courts of Tennessee, § 39-707 was "not unconstitutionally vague nor impermissibly overbroad."
3
Respondent appealed to the Court of Appeals for the Sixth Circuit, and that court sustained his constitutional challenge. Believing that the statutory term "crimes against nature" could not "in and of itself withstand a charge of unconstitutional vagueness" and being unable to find any Tennessee opinion previously applying the statute to the act of cunnilingus, the Court of Appeals held that the statute failed to give respondent "fair warning." 514 F.2d 570 (1975).
4
It is settled that the fair-warning requirement embodied in the Due Process Clause prohibits the States from holding an individual "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); see Wainwright v. Stone, 414 U.S. 21, 22, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973). But this prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. Many statutes will have some inherent vagueness, for "(i)n most English words and phrases there lurk uncertainties." Robinson v. United States, 324 U.S. 282, 286, 65 S.Ct. 666, 668, 89 L.Ed. 944 (1945). Even trained lawyers may find it necessary to consult legal dictionaries, treatises, and judicial opinions before they may say with any certainty what some statutes may compel or forbid. Cf. Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232 (1913); United States v. National Dairy Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963). All the Due Process Clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden.3
5
Viewed against this standard, the phrase "crimes against nature" is no more vague than many other terms used to describe criminal offenses at common law and now codified in state and federal penal codes. The phrase has been in use among English-speaking people for many centuries, see 4 W. Blackstone, Commentaries *216, and a substantial number of jurisdictions in this country continue to utilize it. See Note, The Crimes Against Nature, 16 J.Pub.L. 159, 162 n. 19 (1967). Anyone who cared to do so could certainly determine what particular acts have been considered crimes against nature, and there can be no contention that the respondent's acts were ones never before considered as such. See, e. g., Comer v. State, 21 Ga.App. 306, 94 S.E. 314 (1917); State v. Townsend, 145 Me. 384, 71 A.2d 517 (1950).
6
Respondent argued that the vice in the Tennessee statute derives from the fact that jurisdictions differ as to whether "crime against nature" is to be narrowly applied to only those acts constituting the common-law offense of sodomy, or is to be broadly interpreted to encompass additional forms of sexual aberration. We do not understand him to contend that the broad interpretation is itself impermissibly vague; nor do we think he could successfully do so. We have twice before upheld statutes against similar challenges. In State v. Crawford, 478 S.W.2d 314 (1972), the Supreme Court of Missouri rejected a claim that its crime-against-nature statute was so devoid of definition as to be unconstitutional, pointing out that its provision was derived from early English law and broadly embraced sodomy, bestiality, buggery, fellatio, and cunnilingus within its terms. We dismissed the appeal from this judgment as failing to present a substantial federal question. Crawford v. Missouri, 409 U.S. 811, 93 S.Ct. 176, 34 L.Ed.2d 66 (1972); see Hicks v. Miranda, 422 U.S. 332, 343-345, 95 S.Ct. 2281, 2289, 45 L.Ed.2d 223 (1975). And in Wainwright v. Stone, supra, we held that a Florida statute proscribing "the abominable and detestable crime against nature" was not unconstitutionally vague, despite the fact that the State Supreme Court had recently changed its mind about the statute's permissible scope.
7
The Court of Appeals, relying on language in Stone, apparently believed these cases turned upon the fact that the state courts had previously construed their statutes to cover the same acts with which the defendants therein were charged. But although Stone demonstrated that the existence of previous applications of a particular statute to one set of facts forecloses lack-of-fair-warning challenges to subsequent prosecutions of factually identical conduct, it did not hold that such applications were a prerequisite to a statute's withstanding constitutional attack. If that were the case it would be extremely difficult ever to mount an effective prosecution based upon the broader of two reasonable constructions of newly enacted or previously unapplied statutes, even though a neighboring jurisdiction had been applying the broader construction of its identically worded provision for years.
8
Respondent seems to argue instead that because some jurisdictions have taken a narrow view of "crime against nature" and some a broader interpretation, it could not be determined which approach Tennessee would take, making it therefore impossible for him to know if § 39-707 covered forced cunnilingus. But even assuming the correctness of such an argument if there were no indication which interpretation Tennessee might adopt, it is not available here. Respondent is simply mistaken in his view of Tennessee law. As early as 1955 Tennessee had expressly rejected a claim that "crime against nature" did not cover fellatio, repudiating those jurisdictions which had taken a "narrow restrictive definition of the offense." Fisher v. State, 197 Tenn. 594, 277 S.W.2d 340. And four years later the Tennessee Supreme Court reiterated its view of the coverage intended by § 39-707. Emphasizing that the Tennessee statute's proscription encompasses the broad meaning, the court quoted from a Maine decision it had earlier cited with approval to the effect that " 'the prohibition brings all unnatural copulation with mankind or a beast, including sodomy, within its scope.' " Sherrill v. State, 204 Tenn. 427, 429, 321 S.W.2d 811, 812 (1959), quoting from State v. Cyr, 135 Me. 513, 198 A. 743 (1938). And the Maine statute, which the Tennessee court had at that point twice equated with its own, had been applied to cunnilingus before either Tennessee decision. State v. Townsend, supra. Thus, we think the Tennessee Supreme Court had given sufficiently clear notice that § 39-707 would receive the broader of two plausible interpretations, and would be applied to acts such as those committed here when such a case arose.
9
This also serves to distinguish this case from Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964), a decision the Court of Appeals thought controlling. In Bouie, the Court held that an unforeseeable judicial enlargement of a criminal statute narrow and precise on its face violated the Due Process Clause. It pointed out that such a process may lull "the potential defendant into a false sense of security, giving him no reason even to suspect that conduct clearly outside the scope of the statute as written will be retroactively brought within it by an act of judicial construction." 378 U.S., at 352, 84 S.Ct., at 1702. But as we have noted, respondent can make no claim that § 39-707 afforded no notice that his conduct might be within its scope. Other jurisdictions had already reasonably construed identical statutory language to apply to such acts. And given the Tennessee court's clear pronouncements that its statute was intended to effect broad coverage, there was nothing to indicate, clearly or otherwise, that respondent's acts were outside the scope of § 39-707. There is no possibility of retroactive lawmaking here. See 378 U.S., at 353-354, 84 S.Ct., at 1702. Accordingly, the petition for certiorari and respondent's motion to proceed in forma pauperis are granted, and the judgment of the Court of Appeals is reversed.
10
Judgment of Court of Appeals reversed.
11
So ordered.
12
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL concurs, dissenting.
13
I dissent from the Court's summary reversal. The offense of "crimes against nature" at common law was narrowly limited to copulation per anum. American jurisdictions, however, expanded the term some broadly and some narrowly to include other sexual "aberrations." Of particular significance for this case, as the Court of Appeals accurately stated, "courts have differed widely in construing the reach of 'crimes against nature' to cunnilingus." 514 F.2d 570, 571.
14
The Court holds, however, that because "(o)ther jurisdictions had already reasonably construed identical statutory language to apply to (cunnilingus) . . . given the Tennessee court's clear pronouncements that its statute was intended to effect broad coverage, there was nothing to indicate, clearly or otherwise, that respondent's acts were outside the scope of § 39-707." Ante, at 53. In other words the traditional test of vagueness whether the statute gives fair warning that one's conduct is criminal is supplanted by a test of whether there is anything in the statute "to indicate, clearly or otherwise, that respondent's acts were outside the scope of" the statute. This stands the test of unconstitutional vagueness on its head. And this startling change in vagueness law is accompanied by the equally startling holding that, although the Tennessee courts had not previously construed "crimes against nature" to include cunnilingus, respondent cannot be heard to claim that § 39-707, therefore afforded no notice that his conduct fell within its scope, because he was on notice that Tennessee courts favored a broad reach of "crimes against nature" and other state courts favoring a broad reach had construed their state statutes to include cunnilingus.
15
Yet these extraordinary distortions of the principle that the Due Process Clause prohibits the States from holding an individual criminally responsible for conduct when the statute did not give fair warning that the conduct was criminal, are perpetrated without plenary review affording the parties an opportunity to brief and argue the issues orally. It is difficult to recall a more patent instance of judicial irresponsibility. For without plenary review the Court announces today, contrary to our prior decisions, that even when the statute he is charged with violating fails of itself to give fair warning, one acts at his peril if the state court has indicated a tendency to construe the pertinent statute broadly, and some other state court of like persuasion has construed its state statute to embrace the conduct made the subject of the charge. I simply cannot comprehend how the fact that one state court has judicially construed its otherwise vague criminal statute to include particular conduct can, without explicit adoption of that state court's construction by the courts of the charging State, render an uninterpreted statute of the latter State also sufficiently concrete to withstand a charge of unconstitutional vagueness. But apart from the merits of the proposition, surely the citizens of this country are entitled to plenary review of its soundness before being required to attempt to conform their conduct to this drastically new standard. Today's holding surely flies in the face of the line of our recent decisions that have struck down statutes as vague and overbroad, although other state courts had previously construed their like statutes to withstand challenges of vagueness and overbreadth. See, e. g., the "abusive language" decisions of which Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972), is illustrative.
16
Nor will the Court's assertions that the Tennessee courts had in any event in effect construed the Tennessee statute to include cunnilingus withstand analysis. The Court relies on a 1955 Tennessee decision that had held that "crimes against nature" include fellatio, the Tennessee court rejecting the contention that the statute was limited to the common-law copulation-per-anum scope of the phrase. The Tennessee court in that opinion cited a Maine case, decided in 1938, State v. Cyr, 135 Me. 513, 198 A. 743, where the Maine court had applied a "crimes against nature" statute to fellatio. But the Tennessee court did not also cite a 1950 Maine decision, State v. Townsend, 145 Me. 384, 71 A.2d 517, that applied Maine's "crimes against nature" statute to cunnilingus. Fisher v. State, 197 Tenn. 594, 277 S.W.2d 340 (1955). Four years later, in 1959, in another fellatio case, the Tennessee court again made no mention of Townsend, although quoting from Cyr's holding that the Maine statute applies to " 'all unnatural copulation with mankind or a beast, including sodomy.' " Sherrill v. State, 204 Tenn. 427, 429, 321 S.W.2d 811, 812 (1959). Despite this significant failure of the Tennessee court to cite Townsend, and solely on the strength of the Tennessee court's general "equating" of the Maine statute with the Tennessee statute, this Court holds today that respondent had sufficient notice that the Tennessee statute would receive a "broad" interpretation that would embrace cunnilingus.
17
This 1974 attempt to bootstrap 1950 Maine law for the first time into the Tennessee statute must obviously fail if the principle of fair warning is to have any meaning. When the Maine court in 1938 applied its statute broadly to all "unnatural copulation," nothing said by the Main court suggested that that phrase reached cunnilingus. The common-law "crime against nature," limited to copulation per anum, required penetration as an essential element. In holding that a "broad" reading of that phrase should encompass all unnatural copulation including fellatio copulation per os Maine could not reasonably be understood as including cunnilingus in that category. Other jurisdictions, though on their State's particular statutory language, have drawn that distinction. See, e. g., Riley v. Garrett, 219 Ga. 345, 133 S.E.2d 367 (1963); State v. Tarrant, 83 Ohio App. 199, 80 N.E.2d 509 (1948). Thus, when the Tennessee court in 1955 adopted the language of Maine's 1938 Cyr case, a Tennessee citizen had at most notice of developments in Maine law through 1938. That Maine subsequently in 1950 applied its statute to cunnilingus is irrelevant, for such subsequent developments were not "adopted" by the Tennessee court until the case before us. Indeed, the Tennessee court's failure in its 1955 Fisher opinion to cite Townsend, Maine's 1950 cunnilingus decision, although citing Cyr, Maine's 1938 fellatio decision, more arguably was notice that the Tennessee courts considered fellatio but not cunnilingus as within the nebulous reach of the Tennessee statute.
18
Moreover, I seriously question the Court's assumption that the "broad interpretation" of the phrase "crime against nature" is not unconstitutionally vague. The Court's assumption rests upon two supposed precedents: (1) this Court's dismissal for want of a substantial federal question of the appeal in Crawford v. Missouri, 409 U.S. 811, 93 S.Ct. 176, 34 L.Ed.2d 66 (1972), and (2) the Court's per curiam opinion in Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973). That reliance is plainly misplaced.
19
In Crawford, the appellant had been convicted of coercing a mentally retarded individual to perform fellatio on appellant. The Supreme Court of Missouri did not, as the Court implies, for the first time in that case adopt a "broad" construction of its statute and apply that construction in appellant's case. Rather, the Supreme Court of Missouri first noted that the original statute, probably reaching only the common-law "crime against nature," had been legislatively amended in express terms to expand the offense to conduct committed "with the sexual organs or with the mouth," thereby "enlarg(ing) the common law definition of the crime . . . ." State v. Crawford, 478 S.W.2d 314, 317 (Mo.1972). Moreover, the court, observing that a "court's construction of statutory language becomes a part of the statute 'as if it had been so amended by the legislature,' " ibid. (citations omitted), stated that in the 60 years since that amendment, the Missouri courts had "adjudicated" that the statute embraced "bestiality, buggery, fellatio . . . and cunnilingus," id., at 318, and that "(a)t least five (Missouri) cases have specifically held that the act charged (against appellant) is within the statute." Id., at 319. In light of that prior judicial and legislative construction of the statutory phrase, and its specific prior application to acts identical to the appellant's, the dismissal in Crawford simply cannot be treated as holding that the phrase "crime against nature" is not in itself vague.
20
Wainwright v. Stone, as Mr. Justice STEWART correctly observes, also involved a statute already construed to cover the conduct there in question. Indeed, it was for that very reason that we held that 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." 414 U.S., at 22, 94 S.Ct. at 192. The reversal of the Court of Appeals' holding finding the statute unconstitutional was explicitly based on the fact that the state statute had previously been applied to identical conduct, which decisions "require(d) reversal" in Wainwright since they put the particular conduct expressly within the statute. Id., at 22-23, 94 S.Ct. at 192.1
21
No specter of increasing caseload can possibly justify today's summary disposition of this case. The principle that due process requires that criminal statutes give sufficient warning to enable men to conform their conduct to avoid that which is forbidden is one of the great bulwarks of our scheme of constitutional liberty. The Court's erosion today of that great principle without even plenary review reaches a dangerous level of judicial irresponsibility. I would have denied the petition for certiorari, but now that the writ has been granted would affirm the judgment of the Court of Appeals or at least set the case for oral argument.
22
Mr. Justice STEWART, with whom Mr. Justice MARSHALL concurs, dissenting.
23
I would have denied the petition for certiorari in this case, but, now that the writ has been granted, I would affirm the judgment of the Court of Appeals.
24
This case is not of a piece with Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179, upon which the Court so heavily relies. There the Florida courts had repeatedly and explicitly ruled that the state law in question prohibited precisely the conduct in which the defendants were found to have engaged. Here, by contrast, the Tennessee courts had never ruled that the act that Locke was found to have committed was covered by the vague and cryptic language of the Tennessee statute, Tenn.Code Ann. § 39-707. The Court today emphasizes that a previous Tennessee court opinion had cited a decision of a Maine court construing a similar statute "broadly," but even the cited Maine decision had not construed the statute to cover the conduct in question here. And a later Tennessee decision would have supported the inference that this conduct was not proscribed by the Tennessee statute. Stephens v. State, 489 S.W.2d 542 (1972).
25
In the Stone case, supra, the Florida statute had "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 . . . .' " 414 U.S., at 23, 94 S.Ct. at 192. In the present case, by contrast, the state courts had never held that the statutory language here at issue covered the respondent's conduct.
26
As the Court of Appeals pointed out, the respondent in this case could, and probably should, be prosecuted for aggravated assault and battery. But I think the Court of Appeals was correct in holding that the Tennessee statute under which the defendant was in fact prosecuted was unconstitutionally vague as here applied.
1
"39-707. Crimes against nature Penalty. Crimes against nature, either with mankind or any beast, are punishable by imprisonment in the penitentiary not less than five (5) years nor more than fifteen (15) years."
2
Respondent also sought relief on the theory that he was denied due process of law because he was convicted on the uncorroborated testimony of his victim. The District Court dismissed this ground as failing "to state a claim of constitutional significance," and respondent does not appear to have pursued it.
3
This is not a case in which the statute threatens a fundamental right such as freedom of speech so as to call for any special judicial scrutiny, see Smith v. Goguen, 415 U.S. 566, 572-573, 94 S.Ct. 1242, 1246, 39 L.Ed.2d 605 (1974).
1
Admittedly, as the Court notes, a holding that prior application of a statute to identical conduct renders a statute sufficiently definite as to that conduct does not necessarily mean that in the absence of such prior application a statute must of necessity be deemed vague; but such a holding just as surely cannot be construed, as it is by the Court, as precedent deciding that in the absence of such construction, the phrase "crime against nature" is not unconstitutionally vague. In any event, Wainwright and Crawford present the identical situation, namely vague statutes judicially construed to narrow them.
| 34
|
423 U.S. 73
96 S.Ct. 307
46 L.Ed.2d 215
Karl J. BRAYv.UNITED STATES.
No. 75-5182.
Dec. 1, 1975.
PER CURIAM.
1
On June 25, 1973, the Internal Revenue Service (IRS) served a subpoena on the petitioner, Karl J. Bray, directing him to produce business records for examination and to appear for questioning in connection with an inquiry into possible violations of the Economic Stabilization Act of 1970, 84 Stat. 799, as amended, 85 Stat. 743, note following 12 U.S.C. § 1904 (1970 ed., Supp. III). When he failed to comply, the IRS filed a petition for enforcement of the subpoena in the United States District Court for the District of Utah. Following a hearing, the District Court ordered him to comply with the subpoena. Upon his refusal to testify or produce the records, the court directed him to show cause why he should not be held in criminal contempt. He was subsequently convicted of criminal contempt under 18 U.S.C. § 401 and sentenced to imprisonment for 60 days.1 He appealed the judgment of conviction to the United States Court of Appeals for the Tenth Circuit, but that court dismissed the appeal for want of jurisdiction, holding that the appeal came within the exclusive jurisdiction conferred upon the Temporary Emergency Court of Appeals (TECA) by § 211(b)(2) of the Economic Stabilization Act. This petition for certiorari asks us to review the propriety of the dismissal of Bray's appeal.
2
As part of the Economic Stabilization Act Amendments of 1971, Congress created the TECA and vested it with "exclusive jurisdiction of all appeals from the district courts of the United States in cases and controversies arising under this title or under regulations or orders issued thereunder." § 211(b)(2), 85 Stat. 749. This judicial-review provision was designed to provide speedy resolution of cases brought under the Act and "to funnel into one court all the appeals arising out of the District Courts and thus gain in consistency of decision." S.Rep.No.92-507, p. 10 (1971), U.S.Code Cong. & Admin.News 1971, pp. 2283, 2292. The provision thus carved out a limited exception to the broad jurisdiction of the courts of appeals over "appeals from all final decisions of the district courts of the United States." 28 U.S.C. § 1291.
3
The Tenth Circuit held that, "notwithstanding Bray's prosecution under 18 U.S.C. § 401," the contempt charge did not "change the substantive nature of the original enforcement proceedings" and therefore remained "a 'case or controversy' arising under the (Economic Stabilization) Act." This was, we think, a misreading of both the language and the purpose of the stabilization statute. The Act does not contain any provision prohibiting the violation of a district court's enforcement order or establishing penalties for such a violation. Thus, rather than "arising under" any provision of the Act, the contempt prosecution was commenced under 18 U.S.C. § 401, the provision of the Criminal Code that empowers federal courts to punish certain contempts of their authority. Nothing in the Act or in its legislative history indicates that Congress intended "to include existing offenses, already covered under Title 18, under the umbrella of the Stabilization Act." United States v. Cooper, 482 F.2d 1393, 1398 (TECA 1973).2 Review in the TECA of criminal contempt convictions relating to compliance investigations or enforcement efforts is not necessary to assure uniform interpretation of the substantive provisions of the stabilization scheme. Indeed, a requirement of such review would only serve to undermine the prompt resolution of Stabilization Act questions by burdening the TECA with additional appeals.
4
The charge brought against the petitioner based on his refusal to obey a lawful order of the District Court initiated "a separate and independent proceeding at law for criminal contempt, to vindicate the authority of the court" and was "not a part of the original cause." Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 445, 451, 31 S.Ct. 492, 502, 55 L.Ed. 797. Although the contempt charge related to an order entered in connection with an investigation of Stabilization Act violations, it was not dependent on the existence of such violations or even the continuation of the investigation. As the Court noted in United States v. United Mine Workers, 330 U.S. 258, 294, 67 S.Ct. 677, 696, 91 L.Ed. 884: "Violations of an order are punishable as criminal contempt even though the order is set aside on appeal, Worden v. Searls, 121 U.S. 14, 7 S.Ct. 814, 30 L.Ed. 853 (1887), or though the basic action has become moot, Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 319 S.Ct. 492, 55 L.Ed. 797 (1911)." Here the conviction and sentencing of the petitioner for criminal contempt constituted a final decision of the District Court that was then appealable to the appropriate court of appeals. We therefore grant the motion to proceed in forma pauperis and the petition for certiorari, vacate the judgment, and remand the case to the Court of Appeals for the Tenth Circuit for further proceedings consistent with this opinion.
5
Judgment vacated and remanded.
1
The District Court stayed execution of the judgment pending appeal.
2
In Cooper, the TECA held that a prosecution under 18 U.S.C. § 1001 for willfully and knowingly making false representations to an IRS agent in connection with a Stabilization Act investigation was not "a controversy 'arising under' any title of the Stabilization Act or under regulations or orders issued thereunder." 482 F.2d at 1397.
| 89
|
423 U.S. 64
96 S.Ct. 303
46 L.Ed.2d 205
Edward Earl DILLINGHAMv.UNITED STATES.
No. 74-6738.
Dec. 1, 1975.
PER CURIAM.
1
An interval of 22 months elapsed between petitioner's arrest and indictment, and a further period of 12 months between his indictment and trial, upon charges of automobile theft in violation of 18 U.S.C. §§ 371, 2312, and 2313. The District Court for the Northern District of Georgia denied petitioner's motions made immediately after arraignment and posttrial to dismiss the indictment on the ground that petitioner had been denied a speedy trial in violation of the Sixth Amendment. The Court of Appeals for the Fifth Circuit affirmed, holding that under United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), the 22-month "pre-indictment delay . . . is not to be counted for the purposes of a Sixth Amendment motion absent a showing of actual prejudice." 502 F.2d 1233, 1235 (1974). This reading of Marion was incorrect. Marion presented the question whether in assessing a denial of speedy trial claim, there was to be counted a delay between the end of the criminal scheme charged and the indictment of a suspect not arrested or otherwise charged previous to the indictment. The Court held: "On its face, the protection of the (Sixth) Amendment is activated only when a criminal prosecution has begun and extends only to those persons who have been 'accused' in the course of that prosecution. These provisions would seem to afford no protection to those not yet accused, nor would they seem to require the Government to discover, investigate, and accuse any person within any particular period of time." 404 U.S., at 313, 92 S.Ct., at 459. In contrast, the Government constituted petitioner an "accused" when it arrested him and thereby commenced its prosecution of him. Marion made this clear, id., at 320-321, 92 S.Ct., at 463, where the Court stated:
2
"To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. Arrest is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends. These considerations were substantial underpinnings for the decision in Klopfer v. North Carolina (386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967)); see also Smith v. Hooey, 393 U.S. 374, 377-378, 89 S.Ct. 575, 576-577, 21 L.Ed.2d 607 (1969). So viewed, it is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.
3
"Invocation of the speedy trial provision thus need not await indictment, information, or other formal charge."
4
See also Barker v. Wingo, 407 U.S. 514, 519-520, 532-533, 92 S.Ct. 2182, 2186-2187, 2192-2193, 33 L.Ed.2d 101 (1972).*
5
Petitioner's motion to proceed in forma pauperis and the petition for certiorari are granted. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
6
Reversed and remanded.
7
So ordered.
8
The CHIEF JUSTICE dissents.
*
The Memorandum for the United States in Opposition, p. 4, states that "Marion appears to leave little doubt . . . that (the Court) believed that the policies that inform the right to a speedy trial reach beyond the indictment stage of criminal proceedings and that the right consequently attaches either at the point at which a person is arrested and held to answer on a criminal charge or when he is formally charged by indictment or information, whichever occurs earlier . . . ." Accord, United States v. Macino, 7 Cir., 486 F.2d 750 (CA7 1973); United States v. Cabral, 1 Cir., 475 F.2d 715 (CA1 1973); Edmaiston v. Neil, 6 Cir., 452 F.2d 494 (CA6 1971).
| 01
|
423 U.S. 67
96 S.Ct. 304
46 L.Ed.2d 209
State of TEXASv.Earl Elmer WHITE.
No. 75-124.
Dec. 1, 1975.
Rehearing Denied Jan. 19, 1976. See 423 U.S. 1081, 96 S.Ct. 869.
PER CURIAM.
1
Respondent was arrested at 1:30 p. m. by Amarillo, Tex., police officers while attempting to pass fraudulent checks at a drive-in window of the First National Bank of Amarillo. Only 10 minutes earlier, the officers had been informed by another bank that a man answering respondent's description and driving an automobile exactly matching that of respondent had tried to negotiate four checks drawn on a nonexistent account. Upon arrival at the First National Bank pursuant to a telephone call from that bank, the officers obtained from the drive-in teller other checks that respondent had attempted to pass there. The officers directed respondent to park his automobile at the curb. While parking the car, respondent was observed by a bank employee and one of the officers attempting to "stuff" something between the seats. Respondent was arrested and one officer drove him to the station house while the other drove respondent's car there. At the station house, the officers questioned respondent for 30 to 45 minutes and, pursuant to their normal procedure, requested consent to search the automobile. Respondent refused to consent to the search. The officers then proceeded to search the automobile anyway. During the search, an officer discovered four wrinkled checks that corresponded to those respondent had attempted to pass at the first bank. The trial judge, relying on Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), admitted over respondent's objection the four checks seized during the search of respondent's automobile at the station house. The judge expressly found probable cause both for the arrest and for the search of the vehicle, either at the scene or at the station house. Respondent was convicted after a jury trial of knowlingly attempting to pass a forged instrument. The Texas Court of Criminal Appeals, in a 3-2 decision, reversed respondent's conviction on the ground that the four wrinkled checks used in evidence were obtained without a warrant in violation of respondent's Fourth Amendment rights. 521 S.W.2d 255 (1975). We reverse.
2
In Chambers v. Maroney we held that police officers with probable cause to search an automobile at the scene where it was stopped could constitutionally do so later at the station house without first obtaining a warrant. There, as here, "(t)he probable-cause factor" that developed at the scene "still obtained at the station house." 399 U.S., at 52, 90 S.Ct., at 1981. The Court of Criminal Appeals erroneously excluded the evidence seized from the search at the station house in light of the trial judge's finding, undisturbed by the appellate court, that there was probable cause to search respondent's car.
3
The petition for certiorari and the motion of respondent to proceed in forma pauperis are granted, the judgment of the Court of Criminal Appeals is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
4
It is so ordered.
5
Reversed and remanded.
6
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN concurs, dissenting.
7
Only by misstating the holding of Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), can the Court make that case appear dispositive of this one. The Court in its brief per curiam opinion today extends Chambers to a clearly distinguishable factual setting, without having afforded the opportunity for full briefing and oral argument. I respectfully dissent.
8
Chambers did not hold, as the Court suggests, that "police officers with probable cause to search an automobile at the scene where it was stopped could constitutionally do so later at the station house without first obtaining a warrant." Ante, this page. Chambers simply held that to be the rule when it is reasonable to take the car to the station house in the first place.
9
In Chambers the Court took as its departure point this Court's holding in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925):
10
"Carroll . . . holds a search warrant unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car's contents may never be found again if a warrant must be obtained. Hence an immediate search is constitutionally permissible." 399 U.S., at 51, 90 S.Ct., at 1981.
11
Carroll, however, did not dispose of Chambers, for in Chambers, as in this case, the police did not conduct an "immediate search," but rather seized the car and took it to the station house before searching it. The Court in Chambers went on to hold that once the car was legitimately at the station house a prompt search could be conducted. But in recognition of the need to justify the seizure and removal of the car to the station house, the Court added:
12
"It was not unreasonable in this case to take the car to the station house. All occupants in the car were arrested in a dark parking lot in the middle of the night. A careful search at that point was impractical and perhaps not safe for the officers, and it would serve the owner's convenience and the safety of his car to have the vehicle and the keys together at the station house." Id., at 52 n. 10, 90 S.Ct., at 1981.
13
In this case, the arrest took place at 1:30 in the afternoon, and there is no indication that an immediate search would have been either impractical or unsafe for the arresting officers. It may be, of course, that respondent preferred to have his car brought to the station house, but if his convenience was the concern of the police they should have consulted with him. Surely a seizure cannot be justified on the sole ground that a citizen might have consented to it as a matter of convenience. Since, then, there was no apparent justification for the warrantless removal of respondent's car, it is clear that this is a different case from Chambers.
14
It might be argued that the taking of respondent's car to the police station was neither more of a seizure, nor in practical terms more of an intrusion, than would have been involved in an immediate at-the-scene search, which was clearly permissible. Such a contention may well be substantial enough to warrant full briefing and argument, but it is not so clearly meritorious as to warrant adoption in the summary fashion in which the Court proceeds. Indeed, a reading of Chambers itself suggests that this contention is without merit.
15
In Chambers the Court considered and rejected the argument that Carroll was wrong in permitting a warrantless search of an automobile that the immobilization of a car until a search warrant is obtained is a "lesser" intrusion and should therefore be the outer bounds of what is permitted. The Court noted that "which is the 'greater' and which the 'lesser' intrusion is itself a debatable question," 399 U.S., at 51, 90 S.Ct., at 1981, and concluded:
16
"For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant." Id., at 52, 90 S.Ct., at 1981.
17
In the Court's view, then, the intrusion involved in initially seizing a car on the highway and holding it for the short time required to seek a warrant is so substantial as to be constitutionally indistinguishable from the intrusion involved in a search of the vehicle. But the Court did not stop with that observation. It went on to note that once a car is legitimately brought to the station house, the additional intrusion involved in simply immobilizing the car until a warrant can be sought is no less significant than that involved in a station house search: "(T)here is little to choose in terms of practical consequences between an immediate search without a warrant and the car's immobilization until a warrant is obtained." Ibid. It was because such temporary seizures were deemed no less intrusive than searches themselves that Chambers approved searches when temporary seizures would have been justified.
18
In short, the basic premise of Chambers' conclusion that seizures pending the seeking of a warrant are not constitutionally preferred to warrantless searches was that temporary seizures are themselves intrusive. That same premise suggests that the seizure and removal of respondent's car in this case were quite apart from the subsequent search, an intrusion of constitutional dimension that must be independently justified.* The seizure and removal here were not for the purpose of immobilizing the car until a warrant could be secured, nor were they for the purpose of facilitating a safe and thorough search of the car. In the absence of any other justification, I would hold the seizure of petitioner's car unlawful and exclude the evidence seized in the subsequent search.
19
I would have denied the petition for certiorari, but now that the writ has been granted I would affirm the judgment of the Court of Criminal Appeals, or at least set the case for oral argument. In any event, it should be clear to the court below that nothing this Court does today precludes it from reaching the result it did under applicable state law. See Oregon v. Hass, 420 U.S. 714, 726, 95 S.Ct. 1215, 1222, 43 L.Ed.2d 570 (1975) (Marshall, J., dissenting).
*
One might argue that respondent's car was seized and held for a shorter period of time than would be required to ask a magistrate for a warrant, and that the intrusion here is therefore of less significance than the intrusions referred to in Chambers. But Chambers took such time elements out of the equation. While recognizing that the relative intrusiveness of an immediate search and a seizure pending the seeking of a warrant would depend on "a variety of circumstances," 399 U.S., at 51-52, 90 S.Ct., at 1981, the Court preferred the predictability of a general rule "equating" the intrusiveness of a search and a relatively brief seizure. Having chosen such a general rule, the Court should follow it to its logical conclusion.
| 01
|
423 U.S. 87
96 S.Ct. 316
46 L.Ed.2d 228
UNITED STATES, Petitioner,v.Josephine M. POWELL.
No. 74-884.
Argued Oct. 6, 1975.
Decided Dec. 2, 1975.
Syllabus
Respondent was convicted of violating 18 U.S.C. § 1715, which proscribes mailing pistols, revolvers, and "other firearms capable of being concealed on the person," by having sent a 22-inch sawed-off shotgun through the mails. There was evidence at the trial that the gun could be concealed on an average person. The Court of Appeals reversed, holding that the quoted portion of § 1715 was so vague as to violate due process. In addition to the constitutional claim respondent contends that as a matter of statutory construction, particularly in light of the ejusdem generis doctrine, the quoted portion does not embrace sawed-off shotguns. Held :
1. The narrow reading of the statute urged by respondent does not comport with the legislative purpose of making it more difficult for criminals to obtain concealable weapons, and the rule of ejusdem generis may not be used to defeat that purpose. Here a properly instructed jury could have found the shotgun mailed by respondent to have been a "firearm capable of being concealed on the person" within the meaning of § 1715. Pp. 90-91.
2. Section 1715 intelligibly forbids a definite course of conduct (mailing concealable firearms) and gave respondent adequate warning that mailing the gun was a criminal offense. That Congress might have chosen "(c)learer and more precise language" equally capable of achieving its objective does not mean that the statute is unconstitutionally vague. United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 1541, 91 L.Ed. 1877. Pp. 92-94.
9 Cir., 501 F.2d 1136, reversed.
Frank H. Easterbrook, Washington, D. C., for petitioner, pro hac vice, by special leave of Court.
Jerry J. Moberg, Moses Lake, Wash., for respondent, pro hac vice, by special leave of Court.
Mr. Justice REHNQUIST delivered the opinion for the Court.
1
The Court of Appeals in a brief per curiam opinion held that portion of an Act of Congress prohibiting the mailing of firearms "capable of being concealed on the person," 18 U.S.C. § 1715, to be unconstitutionally vague, and we granted certiorari to review this determination. 420 U.S. 971, 95 S.Ct. 1390, 43 L.Ed.2d 651 (1975). Respondent was found guilty of having violated the statute by a jury in the United States District Court for the Eastern District of Washington, and was sentenced by that court to a term of two years' imprisonment. The testimony adduced at trial showed that a Mrs. Theresa Bailey received by mail an unsolicited package from Spokane, Wash., addressed to her at her home in Tacoma, Wash. The package contained two shotguns, shotgun shells, and 20 or 30 hacksaw blades.
2
While the source of this package was unknown to Mrs. Bailey, its receipt by her not unnaturally turned her thoughts to her husband George, an inmate at nearby McNeil Island Federal Penitentiary. Her husband, however, disclaimed any knowledge of the package or its contents.1 Mrs. Bailey turned the package over to federal officials, and subsequent investigation disclosed that both of the shotguns had been purchased on the same date. One had been purchased by respondent, and another by an unidentified woman.
3
Ten days after having received the first package, Mrs. Bailey received a telephone call from an unknown woman who advised her that a second package was coming but that "it was a mistake." The caller advised her to give the package to "Sally." When Mrs. Bailey replied that she "did not have the address or any way of giving it to Sally," the caller said she would call back.2
4
Several days later, the second package arrived, and Mrs. Bailey gave it unopened to the investigating agents. The return address was that of respondent, and it was later determined that the package bore respondent's handwriting. This package contained a sawed-off shotgun with a barrel length of 10 inches and an overall length of 221/8 inches, together with two boxes of shotgun shells.
5
Respondent was indicted on a single count of mailing a firearm capable of being concealed on the person (the sawed-off shotgun contained in the second package), in violation of 18 U.S.C. § 1715.3 At trial there was evidence that the weapon could be concealed on an average person. Respondent was convicted by a jury which was instructed that in order to return a guilty verdict it must find that she "knowingly caused to be delivered by mail a firearm capable of being concealed on the person."
6
She appealed her judgment of conviction to the Court of Appeals, and that court held that the portion of s 1715 proscribing the mailing of "other firearms capable of being concealed on the person" was so vague that it violated the Due Process Clause of the Fifth Amendment to the United States Constitution. 501 F.2d 1136 (1974). Citing Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939), the court held that, although it was clear that a pistol could be concealed on the person, "the statutory prohibition as it might relate to sawed-off shotguns is not so readily recognizable to persons of common experience and intelligence." 501 F.2d, at 1137.
7
While the Court of Appeals considered only the constitutional claim, respondent in this Court makes a statutory argument which may fairly be described as an alternative basis for affirming the judgment of that court. She contends that as a matter of statutory construction, particularly in light of the doctrine of ejusdem generis, the language "other firearms capable of being concealed on the person" simply does not extend to sawed-off shotguns. We must decide this threshold question of statutory interpretation first, since if we find the statute inapplicable to respondent, it will be unnecessary to reach the constitutional question, Dandridge v. Williams, 397 U.S. 471, 475-476, 90 S.Ct. 1153, 1156, 25 L.Ed.2d 491 (1970).
8
The thrust of respondent's argument is that the more general language of the statute ("firearms") should be limited by the more specific language ("pistols and revolvers") so that the phrase "other firearms capable of being concealed on the person" would be limited to "concealable weapons such as pistols and revolvers."
9
We reject this contention. The statute by its terms bans the mailing of "firearms capable of being concealed on the person," and we would be justified in narrowing the statute only if such a narrow reading was supported by evidence of congressional intent over and above the language of the statute.
10
In Gooch v. United States, 297 U.S. 124, 128, 56 S.Ct. 395, 397, 80 L.Ed. 522 (1936), the Court said:
11
"The rule of ejusdem generis, while firmly established, is only an instrumentality for ascertaining the correct meaning of words when there is uncertainty. Ordinarily, it limits general terms which follow specific ones to matters similar to those specified; but it may not be used to defeat the obvious purpose of legislation. And, while penal statutes are narrowly construed, this does not require rejection of that sense of the words which best harmonizes with the context and the end in view."
12
The legislative history of this particular provision is sparse, but the House report indicates that the purpose of the bill upon which § 1715 is based was to avoid having the Post Office serve as an instrumentality for the violation of local laws which prohibited the purchase and possession of weapons. H.R.Rep. No. 610, 69th Cong., 1st Sess. (1926). It would seem that sawed-off shotguns would be even more likely to be prohibited by local laws than would pistols and revolvers. A statement by the author of the bill, Representative Miller of Washington, on the floor of the House indicates that the purpose of the bill was to make it more difficult for criminals to obtain concealable weapons. 66 Cong.Rec. 726 (1924). To narrow the meaning of the language Congress used so as to limit it to only those weapons which could be concealed as readily as pistols or revolvers would not comport with that purpose. Cf. United States v. Alpers, 338 U.S. 680, 682, 70 S.Ct. 352, 354, 94 L.Ed. 457 (1950).
13
We therefore hold that a properly instructed jury could have found the 22-inch sawed-off shotgun mailed by respondent to have been a "(firearm) capable of being concealed on the person" within the meaning of 18 U.S.C. § 1715. Having done so, we turn to the Court of Appeals' holding that this portion of the statute was unconstitutionally vague.
14
We said last Term that "(i)t is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand." United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975). The Court of Appeals dealt with the statute generally, rather than as applied to respondent in this case. It must necessarily have concluded, therefore, that the prohibition against mailing "firearms capable of being concealed on the person" proscribed no comprehensible course of conduct at all. It is well settled, of course, that such a statute may not constitutionally be applied to any set of facts. Lanzetta v. New Jersey, 306 U.S., at 453, 59 S.Ct., at 619; Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926).
15
An example of such a vague statute is found in United States v. Cohen Grocery Co., 255 U.S. 81, 89, 41 S.Ct. 298, 300, 65 L.Ed. 516 (1921). The statute there prohibited any person from "willfully . . . mak(ing) any unjust or unreasonable rate or charge in . . . dealing in or with any necessaries. . . ." So worded it "forbids no specific or definite act" and "leaves open . . . the widest conceivable inquiry, the scope of which no one can foresee and the result of which no one can foreshadow or adequately guard against." Ibid.
16
On the other hand, a statute which provides that certain oversized or heavy loads must be transported by the "shortest practicable route" is not unconstitutionally vague. Sproles v. Binford, 286 U.S. 374, 393, 52 S.Ct. 581, 587, 76 L.Ed. 1167 (1932). The carrier has been given clear notice that a reasonably ascertainable standard of conduct is mandated; it is for him to insure that his actions do not fall outside the legal limits. The sugar dealer in Cohen, to the contrary, could have had no idea in advance what an "unreasonable rate" would be because that would have been determined by the vagaries of supply and demand, factors over which he had no control. Engaged in a lawful business which Congress had in no way sought to proscribe, he could not have charged any price with the confidence that it would not be later found unreasonable.
17
But the challenged language of 18 U.S.C. § 1715 is quite different from that of the statute involved in Cohen. It intelligibly forbids a definite course of conduct: the mailing of concealable firearms. While doubts as to the applicability of the language in marginal fact situations may be conceived, we think that the statute gave respondent adequate warning that her mailing of a 22-inch-long sawed-off shotgun was a criminal offense. Even as to more doubtful cases than that of respondent, we have said that "the law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree." Nash v. United States, 229 U.S. 373, 377, 33 S.Ct. 780, 781, 57 L.Ed. 1232 (1913).
18
The Court of Appeals questioned whether the "person" referred to in the statute to measure capability of concealment was to be "the person mailing the firearm, the person receiving the firearm, or, perhaps, an average person, male or female, wearing whatever garb might be reasonably appropriate, wherever the place and whatever the season." 501 F.2d, at 1137. But we think it fair to attribute to Congress the commonsense meaning that such a person would be an average person garbed in a manner to aid, rather than hinder, concealment of the weapons. Such straining to inject doubt as to the meaning of words where no doubt would be felt by the normal reader is not required by the "void for vagueness" doctrine, and we will not indulge in it.
19
The Court of Appeals also observed that "(t)o require Congress to delimit the size of the firearms (other than pistols and revolvers) that it intends to declare unmailable is certainly to impose no insurmountable burden upon it . . .." Ibid. Had Congress chosen to delimit the size of the firearms intended to be declared unmail able, it would have written a different statute and in some respects a narrower one than it actually wrote. To the extent that it was intended to proscribe the mailing of all weapons capable of being concealed on the person, a statute so limited would have been less inclusive than the one Congress actually wrote.
20
But the more important disagreement we have with this observation of the Court of Appeals is that it seriously misconceives the "void for vagueness" doctrine. The fact that Congress might, without difficulty, have chosen "(c) learer and more precise language" equally capable of achieving the end which it sought does not mean that the statute which it in fact drafted is unconstitutionally vague. United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 1541, 91 L.Ed. 1877 (1947).
The judgment of the Court of Appeals is
21
Reversed.
22
Mr. Justice STEWART, concurring in part and dissenting in part.
23
I agree with the Court that the statutory provision before us is not unconstitutionally vague, because I think the provision has an objectively measurable meaning under established principles of statutory construction. Specifically, I think the rule of ejusdem generis is applicable here, and that 18 U.S.C. § 1715 must thus be read specifically to make criminal the mailing of a pistol or revolver, or of any firearm as "capable of being concealed on the person" as a pistol or revolver.
24
The rule of ejusdem generis is applicable in a setting such as this unless its application would defeat the intention of Congress or render the general statutory language meaningless. See United States v. Alpers, 338 U.S. 680, 682, 70 S.Ct. 352, 354, 94 L.Ed. 457; United States v. Salen, 235 U.S. 237, 249-251, 35 S.Ct. 51, 53, 59 L.Ed. 210; United States v. Stever, 222 U.S. 167, 174-175, 32 S.Ct. 51, 53, 56 L.Ed. 145. Application of the rule in the present situation entails neither of those results. Instead of draining meaning from the general language of the statute, an ejusdem generis construction gives to that language an ascertainable and intelligible content. And, instead of defeating the intention of Congress, an ejusdem generis construction coincides with the legislative intent.
25
The legislative history of the bill on which § 1715 was based contains persuasive indications that it was not intended to apply to firearms larger than the largest pistols or revolvers. Representative Miller, the bill's author, made it clear that the legislative concern was not with the "shotgun, the rifle, or any firearm used in hunting or by the sportsman." 66 Cong.Rec. 727. As a supporter of the legislation stated: "The purpose . . . is to prevent the shipment of pistols and revolvers through the mails." 67 Cong.Rec. 12041. The only reference to sawed-off shotguns came in a question posed by Representative McKeown: "Is there anything in this bill that will prevent the citizens of Oklahoma from buying sawed-off shotguns to defend themselves against these bank-robbing bandits?" Representative Blanton, an opponent of the bill, responded: "That may come next. Sometimes a revolver is more necessary than a sawed-off shotgun." 66 Cong.Rec. 729. In the absence of more concrete indicia of legislative intent, the pregnant silence that followed Representative Blanton's response can surely be taken as an indication that Congress intended the law to reach only weapons of the same general size as pistols and revolvers.
26
I would vacate the judgment of the Court of Appeals and remand the case to that court for further proceedings consistent with these views.
1
Respondent's husband, Travis Powell, also was an inmate at McNeil Island.
2
Mrs. Bailey testified at trial that she did not know "Sally."
3
Title 18 U.S.C. § 1715 provides in pertinent part:
"Pistols, revolvers, and other firearms capable of being concealed on the person are nonmailable . . ..
Whoever knowingly deposits for mailing or delivery, or knowingly causes to be delivered by mail according to the direction thereon . . . any pistol, revolver, or firearm declared nonmailable by this section, shall be fined not more than $1,000 or imprisoned not more than two years, or both."
| 34
|
423 U.S. 77
96 S.Ct. 310
46 L.Ed.2d 219
UNITED STATES, Petitioner,v.Thomas W. MOORE, Jr., etc., et al.
No. 74-687.
Argued Oct. 15, 1975.
Decided Dec. 2, 1975.
Syllabus
Obligations of an insolvent debtor arising from default in the performance of Government contracts, occurring before an assignment for the benefit of creditors held entitled to the statutory priority accorded "debts due to the United States" under 31 U.S.C. § 191, even though the obligations were unliquidated in amount at the time of the assignment. Pp. 80-86.
(a) Nothing on the face of § 191, and no potential difficulty in administering it, require any distinction between liquidated and unliquidated debts for purpose of the statutory priority; the statute's language looks to the time of payment rather than the time when the assignment is made. P. 83.
(b) To construe the words "debts due to the United States" as including unliquidated claims and as not being restricted to those obligations that would on the date of the assignment have given rise to a common-law action for debt, comports with the treatment of unliquidated claims in the Bankruptcy Acts, including the current Act. Pp. 83-85.
(c) The obligations in question were fixed and independent of "events after insolvency," and only the precise amount of those obligations awaited future events. Pp. 85-86.
5 Cir., 497 F.2d 976, reversed and remanded.
Harriet S. Shapiro, Washington, D. C., for petitioner.
Thomas Osa Harris, Houston, Tex., for respondents.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari to decide whether obligations of an insolvent debtor arising from default in the performance of Government contracts, occurring before an assignment for the benefit of creditors, are entitled to the statutory priority for "debts due to the United States" when the amount of the obligation was not fixed at the time of the assignment. We hold that the obligations, even though unliquidated in amount when the insolvent debtor made the assignment, are entitled to the statutory priority accorded debts due the United States under Rev.Stat. § 3466, 31 U.S.C. § 191, and we reverse.
2
(1)
3
The facts are not in dispute. In June 1966 respondent Emsco Screen and Pipe Company of Texas, Inc., contracted with the United States in three separate contracts to supply to the Navy, the Army, and the Defense Supply Agency certain fabricated items at an aggregate agreed price of $310,296. Emsco subsequently advised the Navy that it could not perform the contracts without an advance of money not yet due under the terms of the contracts; the Government was unwilling to make the advance. The Navy treated its contract as terminated on August 31, 1966. Emsco repudiated the Army contract, and the Army notified Emsco of its intent to treat the contract as terminated during the same month, although formal termination was not made until December 6, 1966. The Defense Supply Agency terminated its contract with Emsco on October 19, 1966, for failure to deliver.
4
Respondent Emsco made a voluntary assignment of all its assets, totaling $55,707.28, on October 20, 1966, to respondent Thomas W. Moore, Jr., as assignee for the benefit of creditors. The company at that time owed the city of Houston approximately $6,000, and it owed more than $68,000 to the private creditors who consented to the assignment. Thus the claims of the private creditors alone exceeded all known corporate assets of the debtor.
5
The United States did not consent to the assignment, but filed proof of claims with the respondent Moore. The amount of the Government's claim, after reprocurement of the contract goods and negotiations with respondent Moore, was eventually set at $51,680, exclusive of interest. Respondent Moore refused to accord these claims priority under Rev.Stat. § 3466, 31 U.S.C. § 191, which provides:
6
"Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied; and the priority established shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, as to cases in which an act of bankruptcy is committed."
7
The United States then sued respondents Moore and Emsco in District Court. That court found the amount owed under the three defaulted contracts to be in excess of $67,000, including interest, and held that § 3466 afforded priority status to them as "debts due to the United States."
8
The Court of Appeals reversed, with one judge dissenting, holding that the claims of the United States were not, at the time of the assignment for creditors, amounts certain and then payable and hence not "debts due" entitled to statutory priority. United States v. Moore, 497 F.2d 976 (CA5 1974). To define this term, the court looked to the limits of a common-law action for debt, which permitted recovery of only liquidated obligations "sums certain or which could be made certain by mathematical computation." Id., at 978. One judge concurred separately, concluding that to have priority the claim of the United States must be one ascertained in amount prior to assignment, by a tribunal having jurisdiction to bind the contracting parties. Judge Thornberry dissented; he relied on King v. United States, 379 U.S. 329, 85 S.Ct. 427, 13 L.Ed.2d 315 (1964), and other holdings to the effect that Congress intended to give special status and protection to claims of the Government and the statute was to be construed to accomplish that objective. Small Business Administration v. McClellan, 364 U.S. 446, 81 S.Ct. 191, 5 L.Ed.2d 200 (1960); United States v. Emory, 314 U.S. 423, 62 S.Ct. 317, 86 L.Ed. 315 (1941); Bramwell v. U. S. Fidelity & Guaranty Co., 269 U.S. 483, 46 S.Ct. 176, 70 L.Ed. 368 (1926). The dissent viewed the existence of an obligation as determinative, even though the extent of the obligation was unliquidated at the time of the assignment.
9
(2)
10
The statute at issue is almost as old as the Constitution, and its roots reach back even further into the English common law; the Crown exercised a sovereign prerogative to require that debts owed it be paid before the debts owed other creditors. 3 R. Clark, Law of Receivers § 669, p. 1223 (3d ed. 1959). Many of the States claim the same prerogative, as an inherent incident of sovereignty. Pauley v. California, 75 F.2d 120, 133 (CA9 1934); People v. Farmers' State Bank, 335 Ill. 617, 167 N.E. 804 (1929); In re Carnegie Trust Co., 206 N.Y. 390, 99 N.E. 1096 (1912); State v. Bank of Maryland, 6 Gill & Johns. 205, 26 Am.Dec. 561 (Md. 1834). The Federal Government's claim to priority, however, rests as a matter of settled law only on statute. Price v. United States, 269 U.S. 492, 499-500, 46 S.Ct. 180, 181, 70 L.Ed. 373 (1926); United States v. State Bank of North Carolina, 6 Pet. 29, 35, 8 L.Ed. 308 (1832).
11
The earliest priority statute was enacted in the Act of July 31, 1789, 1 Stat. 29, which dealt with bonds posted by importers in lieu of payment of duties for release of imported goods. It provided that the "debt due to the United States" for such duties shall be discharged first "in all cases of insolvency, or where any estate in the hands of executors or administrators shall be insufficient to pay all the debts due from the deceased . . . ". § 21, 1 Stat. 42. A 1792 enactment broadened the Act's coverage by providing that the language "cases of insolvency" should be taken to include cases in which a debtor makes a voluntary assignment for the benefit of creditors, and the other situations that § 3466, 31 U.S.C. § 191, now covers. 1 Stat. 263.
12
In 1797 Congress applied the priority to any "person hereafter becoming indebted to the United States, by bond or otherwise . . . ." 1 Stat. 515. Then in 1799, Congress gave the priority teeth by making the administrator of any insolvent or decedent's estate personally liable for any amount not paid the United States because he gave another creditor preference. Act of Mar. 2, 1799, 1 Stat. 627, 676. The 1797 and 1799 Acts have survived to this day essentially unchanged, as 31 U.S.C. §§ 191 and 192 (Rev.Stat. §§ 3466 and 3467).
13
The priority statute serves the same public policy as the Crown's common-law prerogative. As Mr. Justice Story wrote for the Court in 1832, the priority proceeds from "motives of public policy, in order to secure an adequate revenue to sustain the public burthens and discharge the public debts. . . . (A)s that policy has mainly a reference to the public good, there is no reason for giving to (the statute) a strict and narrow interpretation." United States v. State Bank of North Carolina, supra, at 35. For nearly two centuries this Court has applied the statute with this policy in mind. In State Bank itself, 6 Pet., at 38, the Court rejected the bank's argument that bonds payable only in the future were not "debts due to the United States" because they were not presently payable, using language apt for today's case as well:
14
"No reason can be perceived, why, in cases of a deficiency of assets of deceased persons, the legislature should make a distinction between bonds which should be payable at the time of their decease, and bonds which should become payable afterwards. The same public policy which would secure a priority of payment to the United States in one case, applies with equal force to the other; and an omission to provide for such priority in regard to bonds payable in futuro, would amount to an abandonment of all claims, except for a pro rata dividend. In cases of general assignments by debtors, there would be a still stronger reason against making a distinction between bonds then payable and bonds payable in futuro; for the debtor might, at his option, give any preferences to other creditors, and postpone the debts of the United States of the latter description, and even exclude them altogether."
15
For similar reasons, and using similar language, the courts have applied the priority statute to Government claims of all types. See 3A J. Moore & R. Oglebay Collier on Bankruptcy P 64.502 (14th ed. 1975); see also Plumb, The Federal Priority In Insolvency: Proposals for Reform, 70 Mich.L.Rev. 3, 10-12 (1971). Indeed, under the decisions of this Court, "(o)nly the plainest inconsistency would warrant our finding an implied exception to the operation of so clear a command as that of § 3466." United States v. Emory, 314 U.S., at 433, 62 S.Ct., at 322.
16
(3)
17
Respondent Moore argues that in this case we should read the statute narrowly, to accord priority only to those claims that are liquidated and certain in amount at the time an assignment for the benefit of creditors is made. Three factors lead us to a different result.
18
First, nothing on the face of the statute, and no potential difficulty in administering it, require that a distinction be drawn for this purpose between liquidated and unliquidated debts. The statute's express command is that "debts due the United States shall be first satisfied"; its language looks to the time of payment rather than the moment at which the assignment of obligations is made. Respondent Moore concedes here, as he has throughout this litigation, that the debt owed the United States is a valid claim against the debtor's assets; he argues only that the United States should be paid pro rata, as a general creditor. While the concession does not dispose of the case, it does dispose of any argument that giving priority to debts unliquidated at the time of assignment would unduly delay distribution of the debtor's estate, since payment pro rata would occasion a like delay. Moreover, if the claim can be paid on a pro rata basis, Congress could, as we hold it did in this statute, provide for priority payment.
19
Second, respondent Moore urges and the Court of Appeals held that the words "debts due to the United States" must be read to mean only those obligations that would on the date of the assignment have given rise to a common-law action for debt. But we see no persuasive reason why the technical requirements of a commonlaw pleading should be read into the statute.1 We look instead to the provisions of the several Bankruptcy Acts that Congress has enacted, as the Court has for the definition of other phrases used in the statute here at issue. See, e. g., United States v. Oklahoma, 261 U.S. 253, 43 S.Ct. 295, 67 L.Ed. 638 (1923); United States v. Emory, supra, 314 U.S. 423, at 426, 62 S.Ct. 317, at 319, 86 L.Ed. 315. The Bankruptcy Acts focus more precisely on the problems of insolvency and are more apt an analogy to a statute giving the United States priority in payments to be made from insolvents' estates.
20
The first Bankruptcy Act, passed in 1800, was a near contemporary of the priority statute. It permitted creditors to prove not only debts liquidated at the time of bankruptcy, but some other debts that became certain during the proceedings.2 The debtor would receive a discharge of these debts "as if such money had been due and payable before the time of his or her becoming bankrupt." § 39, 2 Stat. 32. The Acts of 1841 and 1867 contained similar provisions.3 The current Bankruptcy Act permits proof of unliquidated claims, which will be allowed if they are liquidated or can reasonably be estimated soon enough that the distribution of the estate will not unduly be delayed. 11 U.S.C. §§ 103(a)(8), (9), 93(d).4 The priority statute "is not to be defeated by unnecessarily restricting the application of the word 'debts' within a narrow or technical meaning," Price v. United States, 269 U.S., at 500, 46 S.Ct., at 181, and to give "debts" a meaning more restrictive than the bankruptcy statutes have given it over 175 years would do just that.
21
Finally, the parties agree that this Court and other federal courts have regularly applied the priority statute to debts that in fact were unliquidated, although without discussing the precise issue before us in this case. See, e. g., King v. United States, 379 U.S. 329, 85 S.Ct. 427, 13 L.Ed.2d 315 (1964); United States v. National Surety Co., 254 U.S. 73, 41 S.Ct. 29, 65 L.Ed. 143 (1920); United States v. Brunner, 282 F.2d 535 (CA10 1960); United States v. Barnes, 31 F. 705 (CC SDNY 1887). Respondent Moore relies on dicta in Massachusetts v. United States, 333 U.S. 611, 627, 68 S.Ct. 747, 756, 92 L.Ed. 968 (1948), to the effect that "obligations wholly contingent for ultimate maturity and obligation upon the happening of events after insolvency" are not "debts due." But the obligation here, and in the cases cited, was fixed and independent of "events after insolvency"; only the precise amount of that obligation awaited future events.5 Given the consistent application of the priority statute to fixed but unliquidated obligations, Mr. Justice Story's remarks in State Bank, 6 Pet., at 39-are particularly appropriate:
22
"It is not unimportant to state, that the construction which we have given to the terms of the act, is that which is understood to have been practically acted upon by the government, as well as by individuals, ever since its enactment. Many estates, as well of deceased persons, as of persons insolvent who have made general assignments, have been settled upon the footing of its correctness. A practice so long and so general, would, of itself, furnish strong grounds for a liberal construction; and could not now be disturbed without introducing a train of serious mischiefs. We think the practice was founded in the true exposition of the terms and intent of the act: but if it were susceptible of some doubt, so long an acquiescence in it would justify us in yielding to it as a safe and reasonable exposition."
23
For these reasons, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
24
It is so ordered.
1
Respondent Moore relies upon some language in United States v. State Bank of North Carolina, 6 Pet. 29, 39, 8 L.Ed. 308 (1832): "Wherever the common law would hold a debt to be debitum in presenti, solvendum in futuro, the statute embraces it just as much as if it were presently payable." But the Court relied upon this common-law phrase to hold that at least such debts were within the reach of the priority statute; it certainly did not hold that any debts but these were excluded from the statute. And the Court rested its decision upon more than just this phrase. See supra, at 82, and infra, at 86.
2
The Act of 1800, § 39, 2 Stat. 19, 32, provided that the "obligee of any bottomry or respondentia bond, and the assured in any policy of insurance, shall be admitted to claim, and after the contingency or loss, to prove the debt thereon."
3
The Act of 1841, § 5, 5 Stat. 440, 445, provided that contingent or uncertain claims might be proved and paid when they became absolute; debts payable in the future might also be proved and paid with an appropriate discount. The Act of 1867, c. 176, 14 Stat. 517, allowed in § 19 proof of debts due and payable as of bankruptcy, debts payable in the future, and unliquidated contract damages claims: "(T)he court may cause such damages to be assessed in such mode as it may deem best, and the sum so assessed may be proved against the estate. No debts other than those above specified shall be proved or allowed . . . ."
4
Title 11 U.S.C. § 1(14) defines a debt as "any debt, demand, or claim provable in bankruptcy."
5
In Massachusetts, the Court held that insolvency cut off a debtor's right to elect to pay the State rather than the Federal Government an unemployment compensation tax. Permitting post-insolvency election would mean that the priority statute applied to contingent obligations, the Court reasoned, and that result would be anomalous. The "contingency" in Massachusetts, of course, was the debtor's election to pay someone other than the United States, and so defeat the obligation entirely. The present case is, as we note, quite different: liability vel non will be determined on the facts as they exist at the time of the assignment for the benefit of creditors; subsequent events cannot defeat the obligation.
| 1112
|
423 U.S. 96
96 S.Ct. 321
46 L.Ed.2d 313
State of MICHIGAN, Petitioner,v.Richard Bert MOSLEY.
No. 74-653.
Argued Oct. 6, 1975.
Decided Dec. 9, 1975.
Syllabus
Respondent, who had been arrested in connection with certain robberies and advised, in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, that he was not obliged to answer any questions and that he could remain silent if he wished, and having made oral and written acknowledgment of the Miranda warnings, declined to discuss the robberies, whereupon the detective ceased the interrogation. More than two hours later, after giving Miranda warnings, another detective questioned respondent solely about an unrelated murder. Respondent made an inculpatory statement, which was later used in his trial for murder which resulted in his conviction. The appellate court reversed on the ground that Miranda mandated a cessation of all interrogation after respondent had declined to answer the first detective's questions. Held: The admission in evidence of respondent's incriminating statement did not violate Miranda principles. Respondent's right to cut off questioning was scrupulously honored, the police having immediately ceased the robbery interrogation after respondent's refusal to answer and having commenced questioning about the murder only after a significant time lapse and after a fresh set of warnings had been given respondent. Westover v. United States, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, distinguished. Pp. 99-107.
51 Mich.App. 105, 214 N.W.2d 564, vacated and remanded.
Thomas Khalil, Detroit, Mich., for petitioner.
Carl Ziemba, Detroit, Mich., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The respondent, Richard Bert Mosley, was arrested in Detroit, Mich., in the early afternoon of April 8, 1971, in connection with robberies that had recently occurred at the Blue Goose Bar and the White Tower Restaurant on that city's lower east side. The arresting officer, Detective James Cowie of the Armed Robbery Section of the Detroit Police Department, was acting on a tip implicating Mosley and three other men in the robberies.1 After effecting the arrest, Detective Cowie brought Mosley to the Robbery, Breaking and Entering Bureau of the Police Department, located on the fourth floor of the departmental headquarters building. The officer advised Mosley of his rights under this Court's decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and had him read and sign the department's constitutional rights notification certificate. After filling out the necessary arrest papers, Cowie began questioning Mosley about the robbery of the White Tower Restaurant. When Mosley said he did not want to answer any questions about the robberies, Cowie promptly ceased the interrogation. The completion of the arrest papers and the questioning of Mosley together took approximately 20 minutes. At no time during the questioning did Mosley indicate a desire to consult with a lawyer, and there is no claim that the procedures followed to this point did not fully comply with the strictures of the Miranda opinion. Mosley was then taken to a ninth-floor cell block.
2
Shortly after 6 p. m., Detective Hill of the Detroit Police Department Homicide Bureau brought Mosley from the cell block to the fifth-floor office of the Homicide Bureau for questioning about the fatal shooting of a man named Leroy Williams. Williams had been killed on January 9, 1971, during a holdup attempt outside the 101 Ranch Bar in Detroit. Mosley had not been arrested on this charge or interrogated about it by Detective Cowie.2 Before questioning Mosley about this homicide, Detective Hill carefully advised him of his "Miranda rights." Mosley read the notification form both silently and aloud, and Detective Hill then read and explained the warnings to him and had him sign the form. Mosley at first denied any involvement in the Williams murder, but after the officer told him that Anthony Smith had confessed to participating in the slaying and had named him as the "shooter," Mosley made a statement implicating himself in the homicide.3 The interrogation by Detective Hill lasted approximately 15 minutes, and at no time during its course did Mosley ask to consult with a lawyer or indicate that he did not want to discuss the homicide. In short, there is no claim that the procedures followed during Detective Hill's interrogation of Mosley, standing alone, did not fully comply with the strictures of the Miranda opinion.4
3
Mosley was subsequently charged in a one-count information with first-degree murder. Before the trial he moved to suppress his incriminating statement on a number of grounds, among them the claim that under the doctrine of the Miranda case it was constitutionally impermissible for Detective Hill to question him about the Williams murder after he had told Detective Cowie that he did not want to answer any questions about the robberies.5 The trial court denied the motion to suppress after an evidentiary hearing, and the incriminating statement was subsequently introduced in evidence against Mosley at his trial. The jury convicted Mosley of first-degree murder, and the court imposed a mandatory sentence of life imprisonment.
4
On appeal to the Michigan Court of Appeals, Mosley renewed his previous objections to the use of his incriminating statement in evidence. The appellate court reversed the judgment of conviction, holding that Detective Hill's interrogation of Mosley had been a per se violation of the Miranda doctrine. Accordingly, without reaching Mosley's other contentions, the Court remanded the case for a new trial with instructions that Mosley's statement be suppressed as evidence. 51 Mich.App. 105, 214 N.W.2d 564. After further appeal was denied by the Michigan Supreme Court, 392 Mich. 764, the State filed a petition for certiorari here. We granted the writ because of the important constitutional question presented. 419 U.S. 1119, 95 S.Ct. 801, 42 L.Ed.2d 819.
5
In the Miranda case this Court promulgated a set of safeguards to protect the there-delineated constitutional rights of persons subjected to custodial police interrogation. In sum, the Court held in that case that unless law enforcement officers give certain specified warnings before questioning a person in custody,6 and follow certain specified procedures during the course of any subsequent interrogation, any statement made by the person in custody cannot over his objection be admitted in evidence against him as a defendant at trial, even though the statement may in fact be wholly voluntary. See Michigan v. Tucker, 417 U.S. 433, 443, 94 S.Ct. 2357, 2363, 41 L.Ed.2d 182.
6
Neither party in the present case challenges the continuing validity of the Miranda decision, or of any of the so-called guidelines it established to protect what the Court there said was a person's constitutional privilege against compulsory self-incrimination. The issue in this case, rather, is whether the conduct of the Detroit police that led to Mosley's incriminating statement did in fact violate the Miranda "guidelines," so as to render the statement inadmissible in evidence against Mosley at his trial. Resolution of the question turns almost entirely on the interpretation of a single passage in the Miranda opinion, upon which the Michigan appellate court relied in finding a per se violation of Miranda:
7
"Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked." 384 U.S., at 473-474, 86 S.Ct., at 1627.7
8
This passage states that "the interrogation must cease" when the person in custody indicates that "he wishes to remain silent." It does not state under what circumstances, if any, a resumption of questioning is permissible.8 The passage could be literally read to mean that a person who has invoked his "right to silence" can never again be subjected to custodial interrogation by any police officer at any time or place on any subject. Another possible construction of the passage would characterize "any statement taken after the person invokes his privilege" as "the product of compulsion" and would therefore mandate its exclusion from evidence, even if it were volunteered by the person in custody without any further interrogation whatever. Or the passage could be interpreted to require only the immediate cessation of questioning, and to permit a resumption of interrogation after a momentary respite.
9
It is evident that any of these possible literal interpretations would lead to absurd and unintended results. To permit the continuation of custodial interrogation after a momentary cessation would clearly frustrate the purposes of Miranda by allowing repeated rounds of questioning to undermine the will of the person being questioned. At the other extreme, a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests. Clearly, therefore, neither this passage nor any other passage in the Miranda opinion can sensibly be read to create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent.9
10
A reasonable and faithful interpretation of the Miranda opinion must rest on the intention of the Court in that case to adopt "fully effective means . . . to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored . . . ." 384 U.S., at 479, 86 S.Ct., at 1630. The critical safeguard identified in the passage at issue is a person's "right to cut off questioning." Id., at 474, 86 S.Ct., at 1627. Through the exercise of his option to terminate questioning he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person's exercise of that option counteracts the coercive pressures of the custodial setting. We therefore conclude that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his "right to cut off questioning" was "scrupulously honored."10
11
A review of the circumstances leading to Mosley's confession reveals that his "right to cut off questioning" was fully respected in this case. Before his initial interrogation, Mosley was carefully advised that he was under no obligation to answer any questions and could remain silent if he wished. He orally acknowledged that he understood the Miranda warnings and then signed a printed notification-of-rights form. When Mosley stated that he did not want to discuss the robberies, Detective Cowie immediately ceased the interrogation and did not try either to resume the questioning or in any way to persuade Mosley to reconsider his position. After an interval of more than two hours, Mosley was questioned by another police officer at another location about an unrelated holdup murder. He was given full and complete Miranda warnings at the outset of the second interrogation. He was thus reminded again that he could remain silent and could consult with a lawyer, and was carefully given a full and fair opportunity to exercise these options. The subsequent questioning did not undercut Mosley's previous decision not to answer Detective Cowie's inquiries. Detective Hill did not resume the interrogation about the White Tower Restaurant robbery or inquire about the Blue Goose Bar robbery, but instead focused exclusively on the Leroy Williams homicide, a crime different in nature and in time and place of occurrence from the robberies for which Mosley had been arrested and interrogated by Detective Cowie. Although it is not clear from the record how much Detective Hill knew about the earlier interrogation, his questioning of Mosley about an unrelated homicide was quite consistent with a reasonable interpretation of Mosley's earlier refusal to answer any questions about the robberies.11
12
This is not a case, therefore, where the police failed to honor a decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind. In contrast to such practices, the police here immediately ceased the interrogation, resumed questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation.
13
The Michigan Court of Appeals viewed this case as factually similar to Westover v. United States, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, a companion case to Miranda. But the controlling facts of the two cases are strikingly different.
14
In Westover, the petitioner was arrested by the Kansas City police at 9:45 p. m. and taken to the police station. Without giving any advisory warnings of any kind to Westover, the police questioned him that night and throughout the next morning about various local robberies. At noon, three FBI agents took over, gave advisory warnings to Westover, and proceeded to question him about two California bank robberies. After two hours of questioning, the petitioner confessed to the California crimes. The Court held that the confession obtained by the FBI was inadmissible because the interrogation leading to the petitioner's statement followed on the heels of prolonged questioning that was commenced and continued by the Kansas City police without preliminary warnings to Westover of any kind. The Court found that "the federal authorities were the beneficiaries of the pressure applied by the local in-custody interrogation" and that the belated warnings given by the federal officers were "not sufficient to protect" Westover because from his point of view "the warnings came at the end of the interrogation process." Id., at 496-497, 86 S.Ct., at 1639.
15
Here, by contrast, the police gave full "Miranda warnings" to Mosley at the very outset of each interrogation, subjected him to only a brief period of initial questioning, and suspended questioning entirely for a significant period before beginning the interrogation that led to his incriminating statement. The cardinal fact of Westover the failure of the police officers to give any warnings whatever to the person in their custody before embarking on an intense and prolonged interrogation of him was simply not present in this case. The Michigan Court of Appeals was mistaken, therefore, in believing that Detective Hill's questioning of Mosley was "not permitted" by the Westover decision. 51 Mich.App., at 108, 214 N.W.2d, at 566.
16
For these reasons, we conclude that the admission in evidence of Mosley's incriminating statement did not violate the principles of Miranda v. Arizona. Accordingly, the judgment of the Michigan Court of Appeals is vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
17
It is so ordered.
18
Judgment vacated and case remanded.
19
Mr. Justice WHITE, concurring.
20
I concur in the result and in much of the majority's reasoning. However, it appears to me that in an effort to make only a limited holding in this case, the majority has implied that some custodial confessions will be suppressed even though they follow an informed and voluntary waiver of the defendant's rights. The majority seems to say that a statement obtained within some unspecified time after an assertion by an individual of his "right to silence" is always inadmissible, even if it was the result of an informed and voluntary decision following, for example, a disclosure to such an individual of a piece of information bearing on his waiver decision which the police had failed to give him prior to his assertion of the privilege but which they gave him immediately thereafter. Indeed, ante, at p. 102, the majority characterizes as "absurd" any contrary rule. I disagree. I do not think the majority's conclusion is compelled by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and I suspect that in the final analysis the majority will adopt voluntariness as the standard by which to judge the waiver of the right to silence by a properly informed defendant. I think the Court should say so now.
21
Miranda holds that custody creates an inherent compulsion on an individual to incriminate himself in response to questions, and that statements obtained under such circumstances are therefore obtained in violation of the Fifth Amendment privilege against compelled testimonial self-incrimination unless the privilege is "knowingly and intelligently waived." Id., at 471, 475, 86 S.Ct., at 1626, 1628. It also holds that an individual will not be deemed to have made a knowing and intelligent waiver of his "right to silence" unless the authorities have first informed him, inter alia, of that right "the threshold requirement for an intelligent decision as to its exercise." Id., at 468, 86 S.Ct., at 1624. I am no more convinced that Miranda was required by the United States Constitution than I was when it was decided. However, there is at least some support in the law both before and after Miranda for the proposition that some rights will never be deemed waived unless the defendant is first expressly advised of their existence. E. g., Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 238 (1969); Fed.Rules Crim.Proc. 11, 32(a)(2). There is little support in the law or in common sense for the proposition that an informed waiver of a right may be ineffective even where voluntarily made. Indeed, the law is exactly to the contrary, e. g., Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970). Unless an individual is incompetent, we have in the past rejected any paternalistic rule protecting a defendant from his intelligent and voluntary decisions about his own criminal case. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). To do so would be to "imprison a man in his privileges,"1 Adams v. United States ex rel. McCann, 317 U.S. 269, 280, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942), and to disregard " 'that respect for the individual which is the lifeblood of the law,' " Faretta v. California, supra, 422 U.S., at 834, 95 S.Ct., at 2541. I am very reluctant to conclude that Miranda stands for such a proposition.
22
The language of Miranda no more compels such a result than does its basic rationale. As the majority points out, the statement in Miranda, 384 U.S., at 474, 86 S.Ct., at 1627, requiring interrogation to cease after an assertion of the "right to silence" tells us nothing because it does not indicate how soon this interrogation may resume. The Court showed in the very next paragraph, moreover, that when it wanted to create a per se rule against further interrogation after assertion of a right, it knew how to do so. The Court there said "(i)f the individual states that he wants an attorney, the interrogation must cease until an attorney is present." Ibid.2 However, when the individual indicates that he will decide unaided by counsel whether or not to assert his "right to silence" the situation is different. In such a situation, the Court in Miranda simply said: "If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Id., at 475, 86 S.Ct., at 1628. Apparently, although placing a heavy burden on the government, Miranda intended waiver of the "right to silence" to be tested by the normal standards. In any event, insofar as the Miranda decision might be read to require interrogation to cease for some magical and unspecified period of time following an assertion of the "right to silence," and to reject voluntariness as the standard by which to judge informed waivers of that right, it should be disapproved as inconsistent with otherwise uniformly applied legal principles.
23
In justifying the implication that questioning must inevitably cease for some unspecified period of time following an exercise of the "right to silence," the majority says only that such a requirement would be necessary to avoid "undermining" "the will of the person being questioned." Yet, surely a waiver of the "right to silence" obtained by "undermining the will" of the person being questioned would be considered an involuntary waiver. Thus, in order to achieve the majority's only stated purpose, it is sufficient to exclude all confessions which are the result of involuntary waivers. To exclude any others is to deprive the factfinding process of highly probative information for no reason at all. The "repeated rounds" of questioning following an assertion of the privilege, which the majority is worried about, would, of course, count heavily against the State in any determination of voluntariness particularly if no reason (such as new facts communicated to the accused or a new incident being inquired about) appeared for repeated questioning. There is no reason, however, to rob the accused of the choice to answer questions voluntarily for some unspecified period of time following his own previous contrary decision. The Court should now so state.
24
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting.
25
The Court focuses on the correct passage from Miranda v. Arizona, 384 U.S. 436, 473-474, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694 (1966) (footnote omitted):
26
"Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked."
27
But the process of eroding Miranda rights, begun with Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), continues with today's holding that police may renew the questioning of a suspect who has once exercised his right to remain silent, provided the suspect's right to cut off questioning has been "scrupulously honored." Today's distortion of Miranda's constitutional principals can be viewed only as yet another stop in the erosion and, I suppose, ultimate overruling of Miranda's enforcement of the privilege against self-incrimination.
28
The Miranda guidelines were necessitated by the inherently coercive nature of in-custody questioning. As in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), "we sought a protective device to dispel the compelling atmosphere of the interrogation." 384 U.S., at 465, 86 S.Ct., at 1623. We "concluded that without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." Id., at 467, 86 S.Ct., at 1624.1 To assure safeguards that promised to dispel the "inherently compelling pressures" of in-custody interrogation, a prophylactic rule was fashioned to supplement the traditional determination of voluntariness on the facts of each case. Miranda held that any confession obtained when not preceded by the required warnings or an adequate substitute safeguard was per se inadmissible in evidence. Id., at 468-469, 479, 86 S.Ct., at 1624-1625, 1630. Satisfaction of this prophylactic rule, therefore, was necessary, though not sufficient, for the admission of a confession. Certiorari was expressly granted in Miranda "to give concrete constitutional guidelines for law enforcement agencies and courts to follow," id., at 441-442, 86 S.Ct., at 1611, that is, clear, objective standards that might be applied to avoid the vagaries of the traditional voluntariness test.
29
The task that confronts the Court in this case is to satisfy the Miranda approach by establishing "concrete constitutional guidelines" governing the resumption of questioning a suspect who, while in custody, has once clearly and unequivocally "indicate(d) . . . that he wishes to remain silent . . .." As the Court today continues to recognize, under Miranda, the cost of assuring voluntariness by procedural tests, independent of any actual inquiry into voluntariness, is that some voluntary statements will be excluded. Ante, at p. ——. Thus the consideration in the task confronting the Court is not whether voluntary statements will be excluded, but whether the procedures approved will be sufficient to assure with reasonable certainty that a confession is not obtained under the influence of the compulsion inherent in interrogation and detention. The procedures approved by the Court today fail to provide that assurance.
30
We observed in Miranda : "Whatever the testimony of the authorities as to waiver of rights by an accused, the fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights. In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion of a voluntary relinquishment of the privilege." 384 U.S., at 476, 86 S.Ct., at 1629. And, as that portion of Miranda which the majority finds controlling observed, "the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked." Id., at 474, 86 S.Ct., at 1628. Thus, as to statements which are the product of renewed questioning, Miranda established a virtually irrebuttable presumption of compulsion, see id., at 474 n. 44, 86 S.Ct., at 1627, and that presumption stands strongest where, as in this case, a suspect, having initially determined to remain silent, is subsequently brought to confess his crime. Only by adequate procedural safeguards could the presumption be rebutted.
31
In formulating its procedural safeguard, the Court skirts the problem of compulsion and thereby fails to join issue with the dictates of Miranda. The language which the Court finds controlling in this case teaches that renewed questioning itself is part of the process which invariably operates to overcome the will of a suspect. That teaching is embodied in the form of a proscription on any further questioning once the suspect has exercised his right to remain silent. Today's decision uncritically abandons that teaching. The Court assumes, contrary to the controlling language, that "scrupulously honoring" an initial exercise of the right to remain silent preserves the efficaciousness of initial and future warnings despite the fact that the suspect has once been subjected to interrogation and then has been detained for a lengthy period of time.
32
Observing that the suspect can control the circumstances of interrogation "(t)hrough the exercise of his option to terminate questioning," the Court concludes "that the admissibility of statements obtained after the person in custody has decided to remain silent depends . . . on whether his 'right to cut off questioning' was 'scrupulously honored.' " Ante, at 103, 104. But scrupulously honoring exercises of the right to cut off questioning is only meaningful insofar as the suspect's will to exercise that right remains wholly unfettered. The Court's formulation thus assumes the very matter at issue here: whether renewed questioning following a lengthy period of detention acts to overbear the suspect's will, irrespective of giving the Miranda warnings a second time (and scrupulously honoring them), thereby rendering inconsequential any failure to exercise the right to remain silent. For the Court it is enough conclusorily to assert that "(t)he subsequent questioning did not undercut Mosley's previous decision not to answer Detective Cowie's inquiries." Ante, at 105. Under Miranda, however, Mosley's failure to exercise the right upon renewed questioning is presumptively the consequence of an overbearing in which detention and that subsequent questioning played central roles.
33
I agree that Miranda is not to be read, on the one hand, to impose an absolute ban on resumption of questioning "at any time or place on any subject," ante, at 102, or on the other hand, "to permit a resumption of interrogation after a momentary respite," ibid. But this surely cannot justify adoption of a vague and ineffective procedural standard that falls somewhere between those absurd extremes, for Miranda in flat and unambiguous terms requires that questioning "cease" when a suspect exercises the right to remain silent. Miranda's terms, however, are not so uncompromising as to preclude the fashioning of guidelines to govern this case. Those guidelines must, of course, necessarily be sensitive to the reality that "(a)s a practical matter, the compulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investigations, where there are often impartial observers to guard against intimidation or trickery." 384 U.S., at 461, 86 S.Ct., at 1621 (footnote omitted).
34
The fashioning of guidelines for this case is an easy task. Adequate procedures are readily available. Michigan law requires that the suspect be arraigned before a judicial officer "without unnecessary delay,"2 certainly not a burdensome requirement. Alternatively, a requirement that resumption of questioning should await appointment and arrival of counsel for the suspect would be an acceptable and readily satisfied precondition to resumption.3 Miranda expressly held that "(t)he presence of counsel . . . would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege (against self-incrimination)." Id., at 466, 86 S.Ct., at 1623. The Court expediently bypasses this alternative in its search for circumstances where renewed questioning would be permissible.4
35
Indeed, language in Miranda suggests that the presence of counsel is the only appropriate alternative. In categorical language we held in Miranda : "If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." Id., at 473-474, 86 S.Ct., at 1627. We then immediately observed:
36
"If an individual indicates his desire to remain silent, but has an attorney present, there may be some circumstances in which further questioning would be permissible. In the absence of evidence of overbearing, statements then made in the presence of counsel might be free of the compelling influence of the interrogation process and might fairly be construed as a waiver of the privilege for purposes of these statements." Id., at 474 n. 44, 86 S.Ct., at 1627 (emphasis added).
37
This was the only circumstance in which we at all suggested that questioning could be resumed, and even then, further questioning was not permissible in all such circumstances, for compulsion was still the presumption not easily dissipated.5
38
These procedures would be wholly consistent with the Court's rejection of a "per se proscription of indefinite duration," ante, at 102, a rejection to which I fully subscribe. Today's decision, however, virtually empties Miranda of principle, for plainly the decision encourages police asked to cease interrogation to continue the suspect's detention until the police station's coercive atmosphere does its work and the suspect responds to resumed questioning.6 Today's rejection of that reality of life contrasts sharply with the Court's acceptance only two years ago that "(i)n Miranda the Court found that the techniques of police questioning and the nature of custodial surroundings produce an inherently coercive situation." Schneckloth v. Bustamonte, 412 U.S. 218, 247, 93 S.Ct. 2041, 2058, 36 L.Ed.2d 854 (1973). I can only conclude that today's decision signals rejection of Miranda's basic premise.
39
My concern with the Court's opinion does not end with its treatment of Miranda, but extends to its treatment of the facts in this case. The Court's effort to have the Williams homicide appear as "an unrelated holdup murder," ante at 104, is patently unsuccessful. The anonymous tip received by Detective Cowie, conceded by the Court to be the sole basis for Mosley's arrest, ante, at 97 n. 1, embraced both the robberies covered in Cowie's interrogation and the robbery-murder of Williams, ante, at 98 n. 2, about which Detective Hill questioned Mosley. Thus, when Mosley was apprehended, Cowie suspected him of being involved in the Williams robbery in addition to the robberies about which he tried to examine Mosley. On another matter, the Court treats the second interrogation as being "at another location," ante, at 104. Yet the fact is that it was merely a different floor of the same building, ante, at 97-98.7
40
I also find troubling the Court's finding that Mosley never indicated that he did not want to discuss the robbery-murder, see ante, at 104-106. I cannot read Cowie's testimony as the Court does. Cowie testified that Mosley declined to answer " '(a)nything about the robberies,' " ante, at 105 n. 11. That can be read only against the background of the anonymous tip that implicated Mosley in the Williams incident. Read in that light, it may reasonably be inferred that Cowie understood "(a)nything" to include the Williams episode, since the anonymous tip embraced that episode. More than this, the Court's reading of Cowie's testimony is not even faithful to the standard it articulates here today. "Anything about the robberies" may more than reasonably be interpreted as comprehending the Williams murder which occurred during a robbery. To interpret Mosley's alleged statement to the contrary, therefore, hardly honors "scrupulously" the suspect's rights.
41
In light of today's erosion of Miranda standards as a matter of federal constitutional law, it is appropriate to observe that no State is precluded by the decision from adhering to higher standards under state law. Each State has power to impose higher standards governing police practices under state law than is required by the Federal Constitution. See Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570 (1975);8 Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618 (1972); Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967). A decision particularly bearing upon the question of the adoption of Miranda as state law is Commonwealth v. Ware, 446 Pa. 52, 284 A.2d 700 (1971). There the Pennsylvania Supreme Court adopted an aspect of Miranda as state law. This Court on March 20, 1972, granted the Commonwealth's petition for certiorari to review that decision. 405 U.S. 987, 92 S.Ct. 1254, 31 L.Ed.2d 453. A month later, however, the error of the grant having been made apparent, the Court vacated the order of March 20, "it appearing that the judgment below rests upon an adequate state ground." 406 U.S. 910, 92 S.Ct. 1606, 31 L.Ed.2d 821 (1972). Understandably, state courts and legislatures are, as matters of state law, increasingly according protections once provided as federal rights but now increasingly depreciated by decisions of this Court. See, e. g., State v. Santiago, 53 Haw. 254, 492 P.2d 657 (1971) (rejecting Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971)); People v. Beavers, 393 Mich. 554, 227 N.W.2d 511 (1975), cert. denied, 423 U.S. 878, 96 S.Ct. 152, 46 L.Ed.2d 111 (rejecting United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971)); State v. Johnson, 68 N.J. 349, 346 A.2d 66 (1975) (rejecting Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)); Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974) (adopting "same transaction or occurrence" view of Double Jeopardy Clause). I note that Michigan's Constitution has its own counterpart to the privilege against self-incrimination. Mich.Const., Art. 1, § 17; see State v. Johnson, supra.
1
The officer testified that information supplied by an anonymous caller was the sole basis for his arrest of Mosley.
2
The original tip to Detective Cowie had, however, implicated Mosley in the Williams murder.
3
During cross-examination by Mosley's counsel at the evidentiary hearing, Detective Hill conceded that Smith in fact had not confessed but had "denied a physical participation in the robbery."
4
But see n. 5, infra.
5
In addition to the claim that Detective Hill's questioning violated Miranda, Mosley contended that the statement was the product of an illegal arrest, that the statement was inadmissible because he had not been taken before a judicial officer without unnecessary delay, and that it had been obtained through trickery and promises of leniency. He argued that these circumstances, either independently or in combination, required the suppression of his incriminating statement.
6
The warnings must inform the person in custody "that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." 384 U.S., at 444, 86 S.Ct., at 1612.
7
The present case does not involve the procedures to be followed if the person in custody asks to consult with a lawyer, since Mosley made no such request at any time. Those procedures are detailed in the Miranda opinion as follows:
"If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.
"This does not mean, as some have suggested, that each police station must have a 'station house lawyer' present at all times to advise prisoners. It does mean, however, that if police propose to interrogate a person they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him prior to any interrogation. If authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the person's Fifth Amendment privilege so long as they do not question him during that time." Id., at 474, 86 S.Ct., at 1628.
8
The Court did state in a footnote:
"If an individual indicates his desire to remain silent, but has an attorney present, there may be some circumstances in which further questioning would be permissible. In the absence of evidence of overbearing, statements then made in the presence of counsel might be free of the compelling influence of the interrogation process and might fairly be construed as a waiver of the privilege for purposes of these statements." Id., at 474 n. 44, 86 S.Ct., at 1627.
This footnote in the Miranda opinion is not relevant to the present case, since Mosley did not have an attorney present at the time he declined to answer Detective Cowie's questions, and the officer did not continue to question Mosley but instead ceased the interrogation in compliance with Miranda's dictates.
9
It is instructive to note that the vast majority of federal and state courts presented with the issue have concluded that the Miranda opinion does not create a per se proscription of any further interrogation once the person being questioned has indicated a desire to remain silent. See Hill v. Whealon, 490 F.2d 629, 630, 635 (C.A.6 1974); United States v. Collins, 462 F.2d 792, 802 (C.A.2 1972) (en banc); Jennings v. United States, 391 F.2d 512, 515-516 (C.A.5 1968); United States v. Choice, 392 F.Supp. 460, 466-467 (E.D.Pa.1975); McIntyre v. New York, 329 F.Supp. 9, 13-14 (E.D.N.Y.1971); People v. Naranjo, 181 Colo. 273, 277-278, 509 P.2d 1235, 1237 (1973); People v. Pittman, 55 Ill.2d 39, 54-56, 302 N.E.2d 7, 16-17 (1973); State v. McClelland, Iowa, 164 N.W.2d 189, 192-196 (Iowa 1969); State v. Law, 214 Kan. 643, 647-649, 522 P.2d 320, 324-325 (1974); Conway v. State, 7 Md.App. 400, 405-411, 256 A.2d 178, 181-184 (1969); State v. O'Neill, 299 Minn. 60, 70-71, 216 N.W.2d 822, 829 (1974); State v. Godfrey, 182 Neb. 451, 454-457, 155 N.W.2d 438, 440-442 (1968); People v. Gary, 31 N.Y.2d 68, 69-70, 334 N.Y.S.2d 883, 884-885, 286 N.E.2d 263, 264 (1972); State v. Bishop, 272 N.C. 283, 296-297, 158 S.E.2d 511, 520 (1968); Commonwealth v. Grandison, 449 Pa. 231, 233-234, 296 A.2d 730, 731 (1972); State v. Robinson, 87 S.D. 375, 378, 209 N.W.2d 374, 375-377 (1973); Hill v. State, 429 S.W.2d 481, 486-487 (Tex.Cr.App.1968); State v. Estrada, 63 Wis.2d 476, 486-488, 217 N.W.2d 359, 365-366 (1974). See also People v. Fioritto, 68 Cal.2d 714, 717-720, 68 Cal.Rptr. 817, 818-820, 441 P.2d 625, 626-628 (1968) (permitting the suspect but not the police to initiate further questioning).
Citation of the above cases does not imply a view of the merits of any particular decision.
10
The dissenting opinion asserts that Miranda established a requirement that once a person has indicated a desire to remain silent, questioning may be resumed only when counsel is present. Post, at 116-117. But clearly the Court in Miranda imposed no such requirement, for it distinguished between the procedural safeguards triggered by a request to remain silent and a request for an attorney and directed that "the interrogation must cease until an attorney is present" only "(i)f the individual states that he wants an attorney." 384 U.S., at 474, 86 S.Ct., at 1628.
11
Detective Cowie gave the only testimony at the suppression hearing concerning the scope of Mosley's earlier refusal to answer his questions:
"A. I think at that time he declined to answer whether he had been involved.
"Q. He declined to answer?
"A. Yes. Anything about the robberies."
At the suppression hearing, Mosley did not in any way dispute Cowie's testimony. Not until trial, after the judge had denied the motion to suppress the incriminating statement, did Mosley offer a somewhat different version of his earlier refusal to answer Detective Cowie's questions. The briefs submitted by Mosley's counsel to the Michigan Court of Appeals and to this Court accepted Detective Cowie's account of the interrogation as correct, and the Michigan Court of Appeals decided the case on that factual premise. At oral argument before this Court, both counsel discussed the case solely in terms of Cowie's description of the events.
1
The majority's rule may cause an accused injury. Although a recently arrested individual may have indicated an initial desire not to answer questions, he would nonetheless want to know immediately if it were true that his ability to explain a particular incriminating fact or to supply an alibi for a particular time period would result in his immediate release. Similarly, he might wish to know if it were true that (1) the case against him was unusually strong and that (2) his immediate cooperation with the authorities in the apprehension and conviction of others or in the recovery of property would redound to his benefit in the form of a reduced charge. Certainly the individual's lawyer, if he had one, would be interested in such information, even if communication of such information followed closely on an assertion of the "right to silence." Where the individual has not requested counsel and has chosen instead to make his own decisions regarding his conversations with the authorities, he should not be deprived even temporarily of any information relevant to the decision.
2
The question of the proper procedure following expression by an individual of his desire to consult counsel is not presented in this case. It is sufficient to note that the reasons to keep the lines of communication between the authorities and the accused open when the accused has chosen to make his own decisions are not present when he indicates instead that he wishes legal advice with respect thereto. The authorities may then communicate with him through an attorney. More to the point, the accused having expressed his own view that he is not competent to deal with the authorities without legal advice, a later decision at the authorities' insistence to make a statement without counsel's presence may properly be viewed with skepticism.
1
The Court said further:
"Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice." 384 U.S., at 458, 86 S.Ct., at 1619.
2
Mich.Comp.Laws §§ 764.13, 764.26 (1970); Mich.Stat.Ann. §§ 28.871(1), 28.885 (1972). Detective Cowie's testimony indicated that a judge was available across the street from the police station in which Mosley was held from 2:15 p. m. until 4 p. m. or 4:30 p. m. App. 13. The actual interrogation of Mosley, however, covered only 15 or 20 minutes of this time. Id., at 14. The failure to comply with a simple state-law requirement in these circumstances is totally at odds with the holding that the police "scrupulously honored" Mosley's rights.
3
In addition, a break in custody for a substantial period of time would permit indeed it would require law enforcement officers to give Miranda warnings a second time.
4
I do not mean to imply that counsel may be forced on a suspect who does not request an attorney. I suggest only that either arraignment or counsel must be provided before resumption of questioning to eliminate the coercive atmosphere of in-custody interrogation. The Court itself apparently proscribes resuming questioning until counsel is present if an accused has exercised the right to have an attorney present at questioning. Ante, at 101 n. 7.
5
The Court asserts that this language is not relevant to the present case, for "Mosley did not have an attorney present at the time he declined to answer Detective Cowie's questions." Ante, at 102 n. 8. The language, however, does not compel a reading that it is applicable only if counsel is present when the suspect initially exercises his right to remain silent. Even if it did, this would only indicate that Miranda placed even stiffer limits on the circumstances when questioning may be resumed than I suggest here. Moreover, since the concern in Miranda was with assuring the absence of compulsion upon renewed questioning, it makes little difference whether counsel is initially present. Thus, even if the language does not specifically address the situation where counsel is not initially present, it certainly contemplates that situation.
The Court also asserts that Miranda "directed that 'the interrogation must cease until an attorney is present' only '(i)f the individual states that he wants an attorney.' " Ante, at 104 n. 10 (quoting 384 U.S., at 474, 86 S.Ct., at 1627). This is patently inaccurate. The language from the quoted portion of Miranda actually reads: "If the individual states that he wants an attorney, the interrogation must cease until an attorney is present."
6
I do not suggest that the Court's opinion is to be read as permitting unreasonably lengthy detention without arraignment so long as any exercise of rights by a suspect is "scrupulously honored." The question of whether there is some constitutional limitation on the length of time police may detain a suspect without arraignment, cf. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957); McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), is an open one and is not now before the Court.
7
See Westover v. United States, 384 U.S. 436, 494, 86 S.Ct. 1602, 1638, 16 L.Ed.2d 694 (1966), where Westover confessed after being turned over to the FBI following questioning by local police. We said:
"Although the two law enforcement authorities are legally distinct and the crimes for which they interrogated Westover were different, the impact on him was that of a continuous period of questioning. . . .
"We do not suggest that law enforcement authorities are precluded from questioning any individual who has been held for a period of time by other authorities and interrogated by them without appropriate warnings. A different case would be presented if an accused were taken into custody by the second authority, removed both in time and place from his original surroundings, and then adequately advised of his rights and given an opportunity to exercise them. But here the FBI interrogation was conducted immediately following the state interrogation in the same police station in the same compelling surroundings. Thus, in obtaining a confession from Westover the federal authorities were the beneficiaries of the pressure applied by the local in-custody interrogation. In these circumstances the giving of warnings alone was not sufficient to protect the privilege." Id., at 496-497, 86 S.Ct., at 1639.
It is no answer to say that the questioning was resumed by a second police officer. Surely Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971), requires that the case be decided as if it involved two interrogation sessions by a single law enforcement officer.
8
Although my Brother Marshall correctly argued in Hass, 420 U.S., at 728, 95 S.Ct., at 1223 (dissenting), that we should have remanded for the state court to clarify whether it was relying on state or federal law, such a disposition is not required here. In Hass the state court cited both federal and state authority; in this case Mosley's counsel has conceded that the self-incrimination argument in the state court was based solely on the Fifth Amendment to the Federal Constitution. Tr. of Oral Arg. 44.
| 01
|
423 U.S. 122
96 S.Ct. 335
46 L.Ed.2d 333
UNITED STATES, Petitioner,v.Thomas W. MOORE, Jr.
No. 74-759.
Argued Oct. 7, 1975.
Decided Dec. 9, 1975.
Syllabus
Respondent, a licensed physician registered under the Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq., was convicted of knowing and unlawful distribution and dispensation of methadone (a controlled substance or addictive drug used in the treatment of heroin addicts) in violation of 21 U.S.C. § 841(a)(1), which makes it unlawful for "any person" knowingly or intentionally to distribute or dispense a controlled substance, except as authorized by the CSA. The evidence disclosed that respondent prescribed large quantities of methadone for patients without giving them adequate physical examinations or specific instructions for its use and charged fees according to the quantity of methadone prescribed rather than fees for medical services rendered. The Court of Appeals, however, reversed the conviction on the grounds that respondent was exempted from prosecution under § 841 by virtue of his status as a registrant and that a registrant can be prosecuted only under §§ 842 and 843, which prescribe less severe penalties than § 841. Held: Registered physicians can be prosecuted under § 841 when, as here, their activities fall outside the usual course of professional practice. Pp. 131-145.
(a) Only the lawful acts of registrants under the CSA are exempted from prosecution under § 841. That section by its terms reaches "any person" and does not exempt (as it could have) "all registrants" or "all persons registered under the Act." The language of the qualified authorization of § 822(b), which authorizes registrants to possess, distribute, or dispense controlled substances to the extent authorized by their registration and in conformity with other CSA provisions, and which was added merely to ensure that persons engaged in lawful activities could not be prosecuted, cannot be fairly read to support the view that all activities of registered physicians are beyond the reach of § 841 simply because of their status. Pp. 131-133.
(b) There is no indication in the operative language of §§ 841-843 that Congress intended to establish two mutually exclusive penalty systems, with nonregistrants to be punished under § 841 and registrants under §§ 842 and 843, the fact that the term "registrants" is used in some subsections of §§ 842 and 843 but not in § 841 being of limited significance. Moreover, the legislative history indicates that Congress was concerned with the nature of the drug transaction, rather than with the defendant's status. Pp. 133-135.
(c) It is immaterial whether respondent also could have been prosecuted for the relatively minor offense of violating § 829 with respect to the issuing of prescriptions, since there is nothing in the statutory scheme or the legislative history that justifies a conclusion that a registrant who may be prosecuted for violating § 829 is thereby exempted from prosecution under § 841 for the significantly greater offense of acting as a drug "pusher." Pp. 135-138.
(d) The scheme of the CSA, viewed against the background of the legislative history, reveals an intent to limit a registered physician's dispensing authority to the course of his "professional practice." Pp. 138-143.
(e) Congress was concerned that the drug laws not impede legitimate research and that physicians be allowed reasonable discretion in treating patients, but it did not intend to exempt from serious criminal penalties those acts by physicians that go beyond the limits of approved professional practice. Pp. 143-145.
(f) Where the statutory purpose is clear, the canon of strict construction of criminal statutes favoring the accused will be satisfied if the words of the statute are "given their fair meaning in accord with the manifest intent of the lawmakers." United States v. Brown, 333 U.S. 18, 25-26, 68 S.Ct. 376, 379-380, 92 L.Ed. 442. P. 145.
164 U.S.App.D.C. 319, 505 F.2d 426, reversed and remanded.
Paul L. Friedman, Washington, D. C., for petitioner.
Raymond W. Bergan, Washington, D. C., for respondent.
Mr. Justice POWELL delivered the opinion of the Court.
1
The issue in this case is whether persons who are registered under the Controlled Substances Act (CSA or Act), 84 Stat. 1242, 21 U.S.C. § 801 et seq., can be prosecuted under § 841 for dispensing or distributing controlled substances. The United States Court of Appeals for the District of Columbia Circuit reversed the conviction of respondent, a licensed physician registered under the Act, on the ground that he was exempted from prosecution under § 841 by virtue of his status as a registrant. We reverse and hold that registered physicians can be prosecuted under § 841 when their activities fall outside the usual course of professional practice.
2
* Dr. Moore was charged, in a 639-count indictment, with the knowing and unlawful distribution and dispensation of methadone (Dolophine), a Schedule II controlled substance,1 in violation of 21 U.S.C. § 841(a)(1). That subsection provides:
3
"Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally
4
"(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance . . . ."
5
The indictment covered a 51/2 month period from late August 1971 to early February 1972. It was reduced before trial to 40 counts, and the jury convicted respondent on 22 counts. He was sentenced to concurrent terms of five to 15 years' imprisonment on 14 counts, and to concurrent terms of 10 to 30 years on the remaining eight counts. The second set of sentences was to be consecutive with the first. Fines totaling $150,000 were also imposed.2
6
Methadone is an addictive drug used in the treatment of heroin addicts. If taken without controls it can, like heroin, create euphoric "highs," but if properly administered it eliminates the addict's craving for heroin without providing a "high." The two principal methods of treating heroin addicts with methadone are "detoxification" and "maintenance." Under a maintenance program, the addict is given a fixed dose once a day for an indefinite period to keep him from using heroin. In detoxification the addict is given a large dose of methadone during the first few days of treatment to keep him free of withdrawal symptoms. Then the dose is gradually reduced until total abstinence is reached.
7
Maintenance is the more controversial method of treatment. During the period covered by the indictment, registration under § 822, in itself, did not entitle a physician to conduct a maintenance program. In addition to a § 822 registration, the physician who wished to conduct such a program was required to obtain authorization from the Food and Drug Administration for investigation of a new drug. Dr. Moore's authorization by the FDA was revoked in the summer of 1971, and he does not claim that he was conducting an authorized maintenance program. Instead, his defense at trial was that he had devised a new method of detoxification based on the work of a British practitioner. He testified that he prescribed large quantities of methadone to achieve a "blockade" condition, in which the addict was so saturated with methadone that heroin would have no effect, and to instill a strong psychological desire for detoxification. The Government's position is that the evidence established that Dr. Moore's conduct was inconsistent with all accepted methods of treating addicts, that in fact he operated as a "pusher."
8
Respondent concedes in his brief that he did not observe generally accepted medical practices. He conducted a large-scale operation. Between September 1971 and mid-February 1972 three District of Columbia pharmacies filled 11,169 prescriptions written by Dr. Moore. These covered some 800,000 methadone tablets. On 54 days during that period respondent wrote over 100 prescriptions a day. In billing his patients he used a "sliding-fee scale" pegged solely to the quantity prescribed, rather than to the medical services performed. The fees ranged from $15 for a 50-pill prescription to $50 for 150 pills. In five and one-half months Dr. Moore's receipts totaled at least $260,000.
9
When a patient entered the office he was given only the most perfunctory examination. Typically this included a request to see the patient's needle marks (which in more than one instance were simulated) and an unsupervised urinalysis (the results of which were regularly ignored). A prescription was then written for the amount requested by the patient. On return visits for which appointments were never scheduled no physical examination was performed and the patient again received a prescription for whatever quantity he requested. Accurate records were not kept, and in some cases the quantity prescribed was not recorded. There was no supervision of the administration of the drug. Dr. Moore's instructions consisted entirely of a label on the drugs reading: "Take as directed for detoxification." Some patients used the tablets to get "high"; others sold them or gave them to friends or relatives. Several patients testified that their use of methadone increased dramatically while they were under respondent's care.3
10
The Court of Appeals, with one judge dissenting, assumed that respondent acted wrongfully, but held that he could not be prosecuted under § 841.4 164 U.S. App.D.C. 319, 505 F.2d 426 (1974). The court found that Congress intended to subject registered physicians to prosecution only under §§ 842 and 843,5 which prescribe less severe penalties than § 841.6 The court reasoned:
11
" . . . Congress intended to deal with registrants primarily through a system of administrative controls, relying on modest penalty provisions to enforce those controls, and reserving the severe penalties provided for in § 841 for those seeking to avoid regulation entirely by not registering." 164 U.S.App.D.C., at 323, 505 F.2d, at 430.
12
It said, further, that §§ 842 and 843 were enacted to enforce that scheme, while § 841 was reserved for prosecution of those outside the "legitimate distribution chain." Persons registered under the Act were "authorized by (the) subchapter" within the meaning of § 841 and thus were thought to be immunized against prosecution under that section.7
13
Respondent advances two basic arguments, contending that each requires affirmance of the Court of Appeals: (i) as that court held, registered physicians may be prosecuted only under §§ 842 and 843; and (ii) in any event, respondent cannot be prosecuted under § 841 because his conduct was "authorized by (the) subchapter" in question. We now consider each of these arguments.
II
14
Section 841(a)(1) makes distribution and dispensing of drugs unlawful "(e) xcept as authorized by this subchapter . . . ." Relying on this language, the Court of Appeals held that a physician registered under the Act is per se exempted from prosecution under § 841 because of his status as a registrant. We take a different view and hold that only the lawful acts of registrants are exempted. By its terms § 841 reaches "any person." It does not exempt (as it could have) "all registrants" or "all persons registered under this Act."
15
The Court of Appeals relied also on § 822(b), which provides: "Persons registered . . . under this subchapter to . . . distribute, or dispense controlled substances are authorized to possess, . . . distribute, or dispense such substances . . . to the extent authorized by their registration and in conformity with the other provisions of this subchapter." This is a qualified authorization of certain activities, not a blanket authorization of all acts by certain persons. This limitation is emphasized by the subsection's heading "Authorized activities," which parallels the headings of §§ 841-843 "Unlawful acts." We think the statutory language cannot fairly be read to support the view that all activities of registered physicians are exempted from the reach of § 841 simply because of their status.
16
If § 822(b) were construed to authorize all such activities, thereby exempting them from other constraints, it would constitute a sharp departure from prior laws. But there is no indication that Congress had any such intent. Physicians who stepped outside the bounds of professional practice could be prosecuted under the Harrison Act (Narcotics) of 1914, 38 Stat. 785, the predecessor of the CSA. In Jin Fuey Moy v. United States, 254 U.S. 189, 41 S.Ct. 98, 65 L.Ed. 214 (1920), the Court affirmed the conviction of a physician on facts remarkably similar to those before us (e. g., no adequate physical examination, the dispensing of large quantities of drugs without specific directions for use, and fees graduated according to the amount of drugs prescribed). A similar conviction was upheld in United States v. Behrman, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619 (1922), where the defendant-doctor had prescribed heroin, morphine, and cocaine to a person whom he knew to be an addict.
17
In enacting the CSA Congress attempted to devise a more flexible penalty structure than that used in the Harrison Act. H.R.Rep.No.91-1444, Pt. 1, pp. 1, 4 (1970), U.S.Code Cong. & Admin.News 1970, p. 4566.8 Penalties were geared to the nature of the violation, including the character of the drug involved. But the Act was intended to "strengthen," rather than to weaken, "existing law enforcement authority in the field of drug abuse." 84 Stat. 1236 (1970) (preamble). See also H.R.Rep.No.91-1444, p. 1.
18
Section 822(b) was added to the original bill at a late date9 to "make it clear that persons registered under this title are authorized to deal in or handle controlled substances." H.R.Rep.No.91-1444, p. 38, U.S.Code Cong. & Admin.News 1970, p. 4606. It is unlikely that Congress would seek, in this oblique way, to carve out a major new exemption, not found in the Harrison Act, for physicians and other registrants. Rather, § 822(b) was added merely to ensure that persons engaged in lawful activities could not be prosecuted.
B
19
Respondent nonetheless contends that §§ 841 and 822(b) must be interpreted in light of a congressional intent to set up two separate and distinct penalty systems: Persons not registered under the Act are to be punished under § 841, while those who are registered are to be subject only to the sanctions of §§ 842 and 843. The latter two sections, the argument goes, establish modest penalties which are the sole sanctions in a system of strict administrative regulation of registrants.
20
The operative language of those sections provides no real support for the proposition that Congress intended to establish two mutually exclusive systems. It is true that the term "registrants" is used in §§ 842 and 843, and not in § 841. But this is of limited significance. All three sections provide that "(i)t shall be unlawful for any person . . . (to commit the proscribed acts)." Two of the eight subsections of § 842(a), one of the five subsections of § 843(a), and § 842(b) further qualify "any person" with "who is a registrant." The other subsections of §§ 842 and 843 are not so limited. In context, "registrant" is merely a limiting term, indicating that the only "persons" who are subject to these subsections are "registrants."10 There is no indication that "persons" means "nonregistrants" when introducing the other subsections.
21
There are other indications that § 841, and §§ 842 and 843, do not constitute two discrete systems. Section 843(b), for example, makes it unlawful for any person to use a communication facility in committing a felony under any provision of the subchapter. But violations of both § 841 and § 843 lead to felony convictions; criminal violations of § 842 are misdemeanors.11 ss 842(c)(2)(A), 802(13); 18 U.S.C. § 1. And counsel for respondent agreed at oral argument that registrants can be prosecuted under § 841(a)(2), which prohibits the creation, distribution, dispensing, or possession with intent to distribute or dispense of a "counterfeit substance."
22
The legislative history indicates that Congress was concerned with the nature of the drug transaction, rather than with the status of the defendant. The penalties now embodied in §§ 841-843 originated in §§ 501-503 of the Controlled Dangerous Substances Act of 1969. The Report of the Senate Judiciary Committee on that bill described § 501 (the counterpart of § 841) as applying to "traffickers." S.Rep.No.91-613, p. 8 (1969). Section 502 provided "(a) dditional penalties . . . for those involved in the legitimate drug trade," and "(f)urther penalties . . . for registrants" were specified in § 503. S.Rep.No.91-613, p. 9. The House Committee Report on the bill that was to become the CSA explains: "The bill provides for control . . . of problems related to drug abuse through registration of manufacturers, wholesalers, retailers, and all others in the legitimate distribution chain, and makes transactions outside the legitimate distribution chain illegal." H.R.Rep.No.91-1444, p. 3, U.S.Code Cong. & Admin.News 1970, p. 4569. Although this language is ambiguous, the most sensible interpretation is that the penalty to be imposed for a violation was intended to turn on whether the "transaction" falls within or without legitimate channels. All persons who engage in legitimate transactions must be registered and are subject to penalties under §§ 842 and 843 for "(m)ore or less technical violations." H.R.Rep.No.91-1444, p. 10. But "severe criminal penalties" were imposed on those, like respondent, who sold drugs, not for legitimate purposes, but "primarily for the profits to be derived therefrom." Ibid.
C
23
Congress was particularly concerned with the diversion of drugs from legitimate channels to illegitimate channels. Id., at 6; S.Rep.No.91-613, p. 4; 116 Cong.Rec. 996 (1970) (remarks of Sen. Dodd). It was aware that registrants, who have the greatest access to controlled substances and therefore the greatest opportunity for diversion, were responsible for a large part of the illegal drug traffic. See id., at 1663 (remarks of Sen. Hruska); id., at 998 (remarks of Sen. Griffin).
24
Recognizing this concern the Court of Appeals suggested that Dr. Moore could be prosecuted under § 842 (a)(1) for having violated the provisions of § 829 with respect to the issuing of prescriptions.12 Whether Dr. Moore could have been so prosecuted is not before the Court.13 We note, however, that the penalties for such a violation could hardly have been deemed by Congress to be an appropriate sanction for drug trafficking by a registered physician. Indeed, the penalty for conviction under § 842 would be significantly lighter than, for example, that applicable to a registrant convicted under § 843 for using a suspended registration number.14 Moreover, a physician who wished to traffic in drugs without threat of criminal prosecution could, if violation of § 829 were the sole basis for prosecution, simply dispense drugs directly without the formality of issuing a prescription. Direct dispensing is exempt from § 829 and thus is not reached by any subsection of § 842 or s 843 so long as the technical requirements are complied with.
25
But we think it immaterial whether Dr. Moore also could have been prosecuted for his violation of statutory provisions relating to dispensing procedures. There is nothing in the statutory scheme or the legislative history that justifies a conclusion that a registrant who may be prosecuted for the relatively minor offense of violating § 829 is thereby exempted from prosecution under § 841 for the significantly greater offense of acting as a drug "pusher."15
III
26
Respondent argues that even if Congress did not intend to exempt registrants from all prosecutions under § 841, he cannot be prosecuted under that section because the specific conduct for which he was prosecuted was "authorized by (the) subchapter" and thus falls within the express exemption of the section.
27
The trial judge assumed that a physician's activities are authorized only if they are within the usual course of professional practice. He instructed the jury that it had to find
28
"beyond a reasonable doubt that a physician, who knowingly or intentionally, did dispense or distribute (methadone) by prescription, did so other than in good faith for detoxification in the usual course of a professional practice and in accordance with a standard of medical practice generally recognized and accepted in the United States." App. 123.
29
The Court of Appeals did not address this argument because it concluded that registrants could not be prosecuted under § 841 under any circumstances. But it suggested that if a registrant could be reached under § 841 he could not be prosecuted merely because his activities fall outside the "usual course of practice." 164 U.S.App.D.C., at 322 n. 11, 505 F.2d, at 429 n. 11.
30
Under the Harrison Act physicians who departed from the usual course of medical practice were subject to the same penalties as street pushers with no claim to legitimacy. Section 2 of that Act required all persons who sold or prescribed certain drugs to register and to deliver drugs only to persons with federal order forms. The latter requirement did not apply to "the dispensing or distribution of any of the aforesaid drugs to a patient by a physician . . . registered under this Act in the course of his professional practice only." 38 Stat. 786. As noted above, Congress intended the CSA to strengthen rather than to weaken the prior drug laws. There is no indication that Congress intended to eliminate the existing limitation on the exemption given to doctors.16 The difficulty arises because the CSA, unlike the Harrison Act, does not spell out this limitation in unambiguous terms.
31
Instead of expressly removing from the protection of the Act those physicians who operate beyond the bounds of professional practice, the CSA uses the concept of "registration." Section 822(b) defines the scope of authorization under the Act in circular terms: "Persons registered . . . under this subchapter . . . are authorized (to dispense controlled substances) . . . to the extent authorized by their registration and in conformity with the other provisions of this subchapter." But the scheme of the statute, viewed against the background of the legislative history, reveals an intent to limit a registered physician's dispensing authority to the course of his "professional practice."
32
Registration of physicians and other practitioners17 is mandatory if the applicant is authorized to dispense drugs or conduct research under the law of the State in which he practices.18 § 823(f). In the case of a physician this scheme contemplates that he is authorized by the State to practice medicine and to dispense drugs in connection with his professional practice.19 The federal registration, which follows automatically, extends no further. It authorizes transactions within "the legitimate distribution chain" and makes all others illegal. H.R.Rep.No.91-1444, p. 3. Implicit in the registration of a physician is the understanding that he is authorized only to act "as a physician."
33
This is made explicit in § 802(20), which provides that "practitioner" means one who is "registered . . . by the United States or the jurisdiction in which he practices or does research, to distribute, dispense, conduct research with respect to, administer, or use in teaching or chemical analysis, a controlled substance in the course of professional practice or research." This section defines the term "practitioner" for purposes of the Act. It also describes the type of registration contemplated by the Act. That registration is limited to the dispensing and use of drugs "in the course of professional practice or research."
34
Other provisions throughout the Act reflect the intent of Congress to confine authorized medical practice within accepted limits. Section 812(b)(2) includes in its definition of Schedule II drugs a requirement that "(t)he drug (have) a currently accepted medical use with severe restrictions." Registration under the CSA to dispense or to conduct research with Schedule I drugs, which are defined as having "no currently accepted medical use in treatment in the United States," § 812(b)(1)(B), does not follow automatically from state registration as it does with respect to drugs in Schedules II through V, all of which have some accepted medical use. § 823(f). The record and reporting requirements of § 827 are made inapplicable with respect to narcotic drugs in Schedules II through V when they are prescribed or administered "by a practitioner in the lawful course of his professional practice." § 827(c)(1) (A). Section 828(a) prohibits the distribution of Schedule I and II drugs unless pursuant to specified order forms; § 828(e) makes it unlawful for "any person" to obtain drugs with these order forms "for any purpose other than their use, distribution, dispensing, or administration in the conduct of a lawful business in such substances or in the course of his professional practice or research." Section 844(a) prohibits possession of controlled substances unless the drug was obtained "from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized . . . ." See also § 885(a)(2).
35
The evidence presented at trial was sufficient for the jury to find that respondent's conduct exceeded the bounds of "professional practice."20 As detailed above, he gave inadequate physical examinations or none at all. He ignored the results of the tests he did make. He did not give methadone at the clinic and took no precautions against its misuse and diversion. He did not regulate the dosage at all, prescribing as much and as frequently as the patient demanded. He did not charge for medical services rendered, but graduated his fee according to the number of tablets desired. In practical effect, he acted as a large-scale "pusher" not as a physician.
IV
36
Respondent further contended at trial that he was experimenting with a new "blockade" theory of detoxification. The jury did not believe him. Congress understandably was concerned that the drug laws not impede legitimate research and that physicians be allowed reasonable discretion in treating patients and testing new theories. But respondent's interpretation of the Act would go far beyond authorizing legitimate research and experimentation by physicians. It would even compel exemption from the provisions of § 841 of all "registrants," including manufacturers, wholesalers, and pharmacists in addition to physicians.
37
In enacting the Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1236, Title II of which is the CSA, Congress faced the problem directly. Because of the potential for abuse it decided that some limits on free experimentation with drugs were necessary. But it was also aware of the concern expressed by the Prettyman Commission:
38
"(A) controversy has existed for fifty years over the extent to which narcotic drugs may be administered to an addict solely because he is an addict.
39
"The practicing physician has . . . been confused as to when he may prescribe narcotic drugs for an addict. Out of a fear of prosecution many physicians refuse to use narcotics in the treatment of addicts except occasionally in a withdrawal regimen lasting no longer than a few weeks. In most instances they shun addicts as patients."21
40
Congress' solution to this problem is found in § 4 of Title I of the 1970 Act, 42 U.S.C. § 257a. That section requires the Secretary of Health, Education, and Welfare, after consultation with the Attorney General and national addict treatment organizations, to "determine the appropriate methods of professional practice in the medical treatment of . . . narcotic addiction . . . ." It was designed "to clarify for the medical profession . . . the extent to which they may safely go in treating narcotic addicts as patients." H.R.Rep.No.91-1444, p. 14, U.S.Code Cong. & Admin.News 1970, p. 4580. Congress pointed out that "criminal prosecutions" in the past had turned on the opinions of federal prosecutors. Under the new Act, "(t)hose physicians who comply with the recommendations made by the Secretary will no longer jeopardize their professional careers . . . ." Id., at 15, U.S.Code Cong. & Admin.News 1970, p. 4581. The negative implication is that physicians who go beyond approved practice remain subject to serious criminal penalties.
41
In the case of methadone treatment the limits of approved practice are particularly clear. As Dr. Moore admitted at trial,22 he was authorized only to dispense methadone for detoxification purposes. His authorization by the FDA to engage in a methadone maintenance program had been revoked. Nor was respondent unfamiliar with the procedures for conducting a legitimate detoxification program. Charges arising out of his 1969 treatment program, which involved a combination of "long term" and "short term" detoxification, were dropped after he testified before a grand jury and agreed to abide by certain medical procedures in future methadone programs. These included obtaining a medical history of each patient, conducting a reasonably thorough physical examination, abiding by the results of urine tests, recording times and amounts of dosages, and either administering the methadone in his office or prescribing no more than a daily dosage.23 At trial respondent admitted that he had failed to follow these procedures.24
V
42
Respondent argues finally that the statute is sufficiently ambiguous that it must be construed in his favor despite the clear intent of the Congress. It is true that "when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite." United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-222, 73 S.Ct. 227, 229, 97 L.Ed. 260 (1952). In this case, however, the principle set forth in United States v. Brown, 333 U.S. 18, 25-26, 68 S.Ct. 376, 380, 92 L.Ed. 442 (1948), is appropriately followed:
43
"The canon in favor of strict construction (of criminal statutes) is not an inexorable command to override common sense and evident statutory purpose. . . . Nor does it demand that a statute be given the 'narrowest meaning'; it is satisfied if the words are given their fair meaning in accord with the manifest intent of the lawmakers." The judgment of the Court of Appeals is reversed. Because of its disposition of the case, that court did not reach the question whether respondent could be sentenced under 21 U.S.C. § 845, which provides a higher penalty for distribution of controlled substances to persons under 21 years of age. We remand for the sole purpose of considering respondent's claim that he was improperly sentenced under that section.
44
So ordered.
45
Judgment of Court of Appeals reversed.
1
A substance listed in Schedule II has "a high potential for abuse," "a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions," and is a drug the abuse of which "may lead to severe psychological of physical dependence." 21 U.S.C. § 812(b)(2). Methadone is listed as a Schedule II drug in § 812(c), Schedule II (b)(11).
2
In addition, Dr. Moore's license to practice medicine was revoked pursuant to D.C.Code Ann. § 2-131 (1973), which authorizes revocation upon the conviction of "any felony." An appeal from the conviction acts "as a supersedeas to the judgment . . . revoking his license . . . ."
3
One patient testified that he was taking approximately two to three pills per day when he started visiting Dr. Moore. By the end of his visits he was taking 30 to 35 pills a day. Id. at 43. Another patient increased his intake from five to 10 pills a day to almost 70. Id., at 53-54. A third addict, relying on Dr. Moore for drugs, increased his intake from seven pills a day to over 100. Tr. 310.
4
Section 841(a) provides, in full:
"Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally
"(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or
"(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance."
"Dispense" is defined in § 802(10) to mean "to deliver a controlled substance to an ultimate user . . . by, or pursuant to the lawful order of, a practitioner, including the prescribing and administering of a controlled substance . . . ." Section 802(11) defines "distribute" to mean "to deliver (other than by administering or dispensing) a controlled substance." "Administer" refers to "the direct application of a controlled substance to the body of a patient . . . ." § 802(2).
5
Section 842 in relevant part provides:
"(a) Unlawful acts.
"It shall be unlawful for any person
"(1) who is subject to the requirements of part C to distribute or dispense a controlled substance in violation of section 829 of this title;
"(2) who is a registrant to distribute or dispense a controlled substance not authorized by his registration to another registrant or other authorized person or to manufacture a controlled substance not authorized by his registration;
"(3) who is a registrant to distribute a controlled substance in violation of section 825 of this title;
"(4) to remove, alter, or obliterate a symbol or label required by section 825 of this title;
"(5) to refuse or fail to make, keep, or furnish any record, report, notification, declaration, order or order form, statement, invoice, or information required under this subchapter or subchapter II of this chapter;
"(6) to refuse any entry into any premises or inspection authorized by this subchapter or subchapter II of this chapter;
"(7) to remove, break, injure, or deface a seal placed upon controlled substances pursuant to section 824(f) or 881 of this title or to remove or dispose of substances so placed under seal; or
"(8) to use, to his own advantage, or to reveal, other than to duly authorized officers or employees of the United States, or to the courts when relevant in any judicial proceeding under this subchapter or subchapter II of this chapter, any information acquired in the course of an inspection authorized by this subchapter concerning any method or process which as a trade secret is entitled to protection.
"(b) Manufacture.
"It shall be unlawful for any person who is a registrant to manufacture a controlled substance in Schedule I or II which is
"(1) not expressly authorized by his registration and by a quota assigned to him pursuant to section 826 of this title; or
"(2) in excess of a quota assigned to him pursuant to section 826 of this title."
Section 843 provides:
"(a) Unlawful acts.
"It shall be unlawful for any person knowingly or intentionally
"(1) who is a registrant to distribute a controlled substance classified in schedule I or II, in the course of his legitimate business, except pursuant to an order or an order form as required by section 828 of this title;
"(2) to use in the course of the manufacture or distribution of a controlled substance a registration number which is fictitious, revoked, suspended, or issued to another person;
"(3) to acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge;
"(4) to furnish false or fraudulent material information in, or omit any material information from, any application, report, record, or other document required to be made, kept, or filed under this subchapter or subchapter II of this chapter; or
"(5) to make, distribute, or possess any punch, die, plate, stone, or other thing designed to print, imprint, or reproduce the trademark, trade name, or other identifying mark, imprint, or device of another or any likeness of any of the foregoing upon any drug or container or labeling thereof so as to render such drug a counterfeit substance.
"(b) Communication facility.
"It shall be unlawful for any person knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under any provision of this subchapter or subchapter II of this chapter. Each separate use of a communication facility shall be a separate offense under this subsection. For purposes of this subsection, the term 'communication facility' means any and all public and private instrumentalities used or useful in the transmission of writing, signs, signals, pictures, or sounds of all kinds and includes mail, telephone, wire, radio, and all other means of communication."
6
Violations of § 841, under which respondent was convicted, carry sentences of up to 15 years, fines as high as $25,000, or both. § 841(b). Knowing violators of § 842 are subject at most to imprisonment for one year, a fine of $25,000, or both. There also may be a civil penalty of $25,000 for violation of § 842. § 842(c). The penalties for violation of § 843 are imprisonment for not more than four years, a fine of not more than $30,000, or both. § 843(c). All three sections impose higher penalties for violations after the first conviction.
7
The decision below stands alone. At the time it was issued it conflicted with the rulings of four other Circuits. Courts of Appeals for the First, Fifth, and Tenth Circuits had held squarely that physicians may be prosecuted under § 841. See United States v. Badia, 490 F.2d 296 (CA1 1973); United States v. Collier, 478 F.2d 268 (CA5 1973); United States v. Leigh, 487 F.2d 206 (CA5 1973); United States v. Bartee, 479 F.2d 484 (CA10 1973); United States v. Jobe, 487 F.2d 268 (CA10 1973). The Ninth Circuit also had affirmed the conviction of a physician under § 841(a)(1). United States v. Larson, 507 F.2d 385 (1974). Since the ruling in this case, two other decisions have considered the issue and expressly rejected the analysis of the Court of Appeals for the District of Columbia Circuit. See United States v. Rosenberg, 515 F.2d 190 (CA9 1975); United States v. Green, 511 F.2d 1062 (CA7 1975). The Sixth Circuit has implicitly agreed. It reversed the conviction of a physician and remanded the case for a new trial because the trial court had failed to instruct the jury that physicians are exempt from prosecution under § 841(a)(1) when they dispense or prescribe controlled substances in good faith to patients in the regular course of professional practice. United States v. Carroll, 518 F.2d 187 (6 Cir. 1975).
8
To this end controlled substances were classified in five categories according to their potential for abuse, their promise for treatment, and their psychological and physical effects. § 812.
9
Section 822(b) was added by the House Committee on Interstate and Foreign Commerce. No comparable section was in the Act when it passed the Senate on January 28, 1970.
10
This represents a commonsense recognition by Congress that only a registrant could, for example, distribute drugs "not authorized by his registration," § 842(a)(2); or manufacture substances "not authorized by his registration" or "in excess of (his) quota." §§ 842(b)(1), (2). Nor would there be any reason to apply to nonregistrants the penalties for distributing drugs without complying with the labeling and order-form requirements of the Act, §§ 842(a)(3), 843(a)(1), for nonregistrants are barred from making any distributions whatsoever.
11
Another subsection which can be sensibly interpreted only if it reaches nonregistrants is § 842(a)(1), which is limited to "any person who is subject to the requirements of part C." Part C of the Act, §§ 821-829, covers the provisions for registration and applies to "(e)very person who manufactures, distributes, or dispenses any controlled substance or who proposes" to do so. § 822(a). Presumably, § 842(a)(1) is so phrased in order to reach those who should have registered but failed to do so.
12
Section 829 provides, in part:
"(a) Schedule II substances.
"Except when dispensed directly by a practitioner, other than a pharmacist, to an ultimate user, no controlled substance in schedule II, which is a prescription drug as determined under the Federal Food, Drug, and Cosmetic Act, may be dispensed without the written prescription of a practitioner, except that in emergency situations, as prescribed by the Secretary by regulation after consultation with the Attorney General, such drug may be dispensed upon oral prescription in accordance with section 353(b) of this title. Prescriptions shall be retained in conformity with the requirements of section 827 of this title. No prescription for a controlled substance in schedule II may be refilled.
"(b)Schedule III and IV substances.
"Except when dispensed directly by a practitioner, other than a pharmacist, to an ultimate user, no controlled substance in schedule III or IV, which is a prescription drug as determined under the Federal Food, Drug, and Cosmetic Act, may be dispensed without a written or oral prescription in conformity with section 353(b) of this title. Such prescriptions may not be filled or refilled more than six months after the date thereof or be refilled more than five times after the date of the prescription unless renewed by the practitioner.
"(c) Schedule V substances.
"No controlled substance in schedule V which is a drug may be distributed or dispensed other than for a medical purpose."
The Attorney General's regulations enacted pursuant to § 829 required that:
"A prescription for a controlled substance to be effective must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice. The responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fills the prescription. An order purporting to be a prescription issued not in the usual course of professional treatment or in legitimate and authorized research is not a prescription within the meaning and intent of section 309 of the Act (21 U.S.C. 829) and the person knowingly filling such a purported prescription, as well as the person issuing it, shall be subject to the penalties provided for violations of the provisions of law relating to controlled substances." 21 CFR § 306.04(a) (1973) (redesignated as 21 CFR § 1306.04(a) (1975)).
The court below suggested that a violation of the "medical purpose" requirement of § 306.04(a) makes a prescription something other than the "written prescription" required by § 829. The dissent, which agreed that Dr. Moore could be prosecuted under § 842(a)(1), did not rely on the regulations. It found inherent in the statutory term "prescription" a requirement that the order be issued for a valid medical purpose.
13
On its face § 829 addresses only the form that a prescription must take. A written prescription is required for Schedule II substances. § 829(a). Either a written or an oral prescription is adequate for drugs in Schedules III and IV. § 829(b). The only limitation on the distribution or dispensing of Schedule V drugs is that it be "for a medical purpose." § 829(c). The medical purpose requirement explicit in subsection (c) could be implicit in subsections (a) and (b). Regulation § 306.04 makes it explicit. But § 829 by its terms does not limit the authority of a practitioner.
14
In addition, a doctor who dispenses a controlled substance not authorized by his registration to another registrant is also covered by § 842 and would thus be punished as severely as a doctor who sold drugs solely for financial profit to nonregistrants. § 842(a)(2).
15
Respondent argues that the proper sanction for trafficking physicians is not criminal prosecution, but deregistration or refusal to reregister. But, under respondent's analysis, at the time he was convicted neither penalty could be imposed as a sanction for the conduct in which he engaged. Registration was mandatory for practitioners with state licenses, § 823(f), and could only be suspended or revoked if the state license was revoked or suspended, if the practitioner had "materially falsified" an application under the Act, or if he had been convicted of a drug-related felony. § 824(a). Conviction for a misdemeanor under § 842 would be insufficient to support revocation.
16
The Narcotic Addict Treatment Act of 1974 (NATA), 88 Stat. 124, 21 U.S.C. §§ 802, 823, 824 (1970 ed., Supp. IV), modified the registration and revocation procedures provided in the CSA in order to facilitate "more expeditious" criminal prosecutions by making revocation easier.
There was no indication that Congress thought that trafficking doctors could escape felony prosecution altogether under pre-NATA law. Rather, it sought to "cure the present difficulty in such prosecutions because of the intricate and nearly impossible burden of establishing what is beyond 'the course of professional practice' for criminal law purposes when such a practitioner speciously claims that the practices in question were ethical and humanitarian in nature." S.Rep.No.93-192, p. 14 (1973). Dr. Moore's conviction was cited to illustrate that successful criminal actions could be brought only "in the most aggravated of circumstances . . . after prolonged effort to make undercover penetrations." Id., at 13.
17
"Practitioner" means "a physician, dentist, veterinarian, scientific investigator, pharmacy, hospital, or other person licensed, registered, or otherwise permitted, by the United States or the jurisdiction in which he practices or does research, to distribute, dispense, conduct research with respect to, administer, or use in teaching or chemical analysis, a controlled substance in the course of professional practice or research." § 802(20).
18
Under § 823, registration of manufacturers and nonpractitioner distributors (such as suppliers) is discretionary with the Attorney General. He first must make a finding that registration is consistent (in the case of manufacturers of Schedule I and II drugs) or not inconsistent (in the case of manufacturers of Schedule III-V drugs and all distributors) with the public interest. In evaluating the public interest the Attorney General is to consider, for example, "maintenance of effective controls against diversion," compliance with applicable state and local law, prior conviction record in drug-related charges, past experience, and (in the case of manufacturers) promotion of technical advances in manufacturing and the development of new substances. Practitioners and pharmacies are automatically entitled to registration to handle drugs in Schedules II-V "if they are authorized to dispense . . . under the law of the State in which they practice." § 823(f).
19
The House Report described the rationale behind § 823(f) as follows: "Practitioners . . . engaged in the distribution chain would be required to be registered, but registration would be as a matter of right where the individual or firm is engaged in activities involving these drugs which are authorized or permitted under State law . . . ." H.R.Rep.No.91-1444, p. 23 (1970), U.S.Code Cong. & Admin.News 1970, p. 4590 (emphasis added).
20
The jury was instructed that Dr. Moore could not be convicted if he merely made "an honest effort" to prescribe for detoxification in compliance with an accepted standard of medical practice. App. 124.
21
Report of the President's Advisory Commission on Narcotic and Drug Abuse 56-57 (1963), quoted in H.R.Rep.No.91-1444, pp. 14-15.
22
App. 101.
23
Id., at 97-100, 116, 136-138.
24
Id., at 97-100.
| 01
|
423 U.S. 147
96 S.Ct. 347
46 L.Ed.2d 350
Robert WEINSTEIN et al.v.Howard E. BRADFORD.
No. 74-1287.
Dec. 10, 1975.
PER CURIAM.
1
Respondent Bradford sued petitioner members of the North Carolina Board of Parole in the United States District Court for the Eastern District of North Carolina, claiming that petitioners were obligated under the Fourteenth Amendment of the United States Constitution to accord him certain procedural rights in considering his eligibility for parole. Although respondent sought certification of the action as a class action, the District Court refused to so certify it and dismissed the complaint. On respondent's appeal to the Court of Appeals for the Fourth Circuit, that court sustained his claim that he was constitutionally entitled to procedural rights in connection with petitioners' consideration of his application for parole. Because the conclusion of the Court of Appeals was at odds with the decisions of several other Courts of Appeals, we granted certiorari on June 2, 1975, 421 U.S. 998, 95 S.Ct. 2394, 44 L.Ed.2d 664 and the case was set for oral argument during the December calendar of this Court.
2
Respondent has now filed a suggestion of mootness with this Court, and petitioners have filed a response. It is undisputed that respondent was temporarily paroled on December 18, 1974, and that this status ripened into a complete release from supervision on March 25, 1975. From that date forward it is plain that respondent can have no interest whatever in the procedures followed by petitioners in granting parole.
3
Conceding this fact, petitioners urge that this is an issue which is "capable of repetition, yet evading review" as that term has been used in our cases dealing with mootness. Petitioners rely on Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974), to support their contention that the case is not moot. But there the posture of the parties was quite different. Petitioner employer was engaged in cyclically recurring bargaining with the union representing its employees, and respondent state official was continuously following a policy of paying unemployment compensation benefits to strikers. Even though the particular strike which had been the occasion for the filing of the lawsuit was terminated, the Court held that it was enough that the petitioner employer showed "the existence of an immediate and definite governmental action or policy that has adversely affected and continues to affect a present interest," and noted that "the great majority of economic strikes do not last long enough for complete judicial review of the controversies they engender." Id., at 125-126, 94 S.Ct. at 1700. But in the instant case, respondent, who challenged the "governmental action or policy" in question, no longer has any present interest affected by that policy.
4
In Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), we reviewed in some detail the historical developments of the mootness doctrine in this Court. Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911), was the first case to enunciate the "capable of repetition, yet evading review" branch of the law of mootness. There it was held that because of the short duration of the Interstate Commerce Commission order challenged, it was virtually impossible to litigate the validity of the order prior to its expiration. Because of this fact, and the additional fact that the same party would in all probability be subject to the same kind of order in the future, review was allowed even though the order in question had expired by its own terms. This case was followed by Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); SEC v. Medical Committee for Human Rights, 404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972); and Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), which applied the original concept of Southern Pacific Terminal Co. v. ICC to different fact situations, including a class action in Dunn.
5
Sosna decided that in the absence of a class action, the "capable of repetition, yet evading review" doctrine was limited to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again. The instant case, not a class action, clearly does not satisfy the latter element. While petitioners will continue to administer the North Carolina parole system with respect to those who at any given moment are subject to their jurisdiction, there is no demonstrated probability that respondent will again be among that number. O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974).
6
It appearing, therefore, that the case is moot, the judgment of the Court of Appeals is vacated, and the case is remanded to the District Court with instructions to dismiss the complaint. Indianapolis School Comm'rs v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975); United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950).
7
So ordered.
| 89
|
423 U.S. 150
96 S.Ct. 410
46 L.Ed.2d 354
AMERICAN FOREIGN STEAMSHIP COMPANY, Petitioner,v.Lillian M. MATISE, etc.
No. 74-966.
Argued Oct. 14, 1975.
Decided Dec. 16, 1975.
Rehearing Denied March 22, 1976. See 424 U.S. 979, 96 S.Ct. 1488.
Syllabus
Respondent's decedent, a seaman, was discharged for misconduct from petitioner's ship while it was docked in South Vietnam. Because of South Vietnamese currency regulations and other complications precluding paying the seaman in American currency the wages due him that he had earned prior to his discharge, petitioner purchased for him an airline ticket to the United States for $510, and this ticket, together with a wage voucher for $118.45, representing wages due less the $510, were given to him. When the seaman arrived back in the United States he received the $118.45. Subsequently he sued petitioner, claiming that it had withheld $510 in wages from him. He contended that petitioner was liable to him for the $510, and for an added sum pursuant to 46 U.S.C. § 596, which requires the master or owner of a vessel making foreign voyages to pay a discharged seaman his wages within four days after the discharge, and, upon refusal or neglect to make such payment "without sufficient cause," to pay the seaman a sum equal to two days' pay for every day during which payment is delayed. Finding that the seaman had consented to the purchase of the airline ticket for his purposes with his money and that such purchase therefore constituted a partial payment of wages, the District Court held that petitioner had not refused or neglected to pay and hence was not liable under § 596. The Court of Appeals reversed, holding that § 596 requires that wage payments be made directly to the seaman and that therefore the $510 paid to the airline could not be regarded as a partial payment of wages. On remand, the District Court assessed damages pursuant to § 596, and the Court of Appeals dismissed an appeal from this assessment. Held: Under the circumstances, the transaction resulting in the seaman's receipt of an airline ticket purchased with money owed to him as wages constituted a payment of wages, and therefore there was no refusal or neglect to make payment, and hence no liability, under § 596. Isbrandtsen Co. v. Johnson, 343 U.S. 779, 72 S.Ct. 1011, 96 L.Ed. 1294, distinguished. Since the transaction was a partial payment of wages and not a "deduction from" wages, the requirement of 46 U.S.C. § 642 that a ship's master enter wage deductions in the logbook does not apply, and thus the master's failure to make a logbook entry that the $510 had been paid does not bar viewing the transaction as a partial payment of wages. Pp. 156-160.
Reversed and remanded; see 9 Cir., 488 F.2d 469.
Francis L. Tetreault, San Francisco, Cal., for petitioner.
Eric J. Schmidt, San Francisco, Cal., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Granville C. Matise, a seaman, brought this suit alleging that upon his discharge from the S. S. American Hawk, petitioner, the ship's owner, withheld $510 in wages from him. Matise claimed that, pursuant to Rev.Stat. § 4529, as amended, 46 U.S.C. § 596, he was entitled to two days' pay for every day that payment of the $510 had been delayed.
2
Title 46 U.S.C. § 596 provides in relevant part:
3
"The master or owner of any vessel (making foreign voyages) shall pay to every seaman his wages . . . within twenty-four hours after the cargo has been discharged, or within four days after the seaman has been discharged, whichever first happens . . .. Every master or owner who refuses or neglects to make payment in the manner hereinbefore mentioned without sufficient cause shall pay to the seaman a sum equal to two days' pay for each and every day during which payment is delayed beyond the respective periods, which sum shall be recoverable as wages in any claim made before the court." The parties to this case differ over the meaning of "sufficient cause" under § 596; they are in conflict, too, over whether the trial court can exercise any discretion in determining the amount of the award under § 596.1 But we need not address either of these questions today. We hold simply that in this case the District Court correctly concluded that petitioner-shipowner never "refuse(d) or neglect(ed) to make payment" to Matise. This being so, petitioner incurred no liability under § 596.
4
* Granville Matise was hired on January 11, 1969, as a seaman aboard the S. S. American Hawk. Between February 14 and March 19, 1969, there were five occasions on which the ship's master entered in the ship's log reports that Matise either was absent from his duty position or, because of intoxication, was unable to fulfill his normal responsibilities. On the first four occasions relatively minor penalties of the loss of several days' pay were imposed. On March 19, the date of the fifth log entry, the master decided that Matise should be discharged. With the ship docked in Saigon, South Vietnam, the master took Matise before the United States Vice Consul stationed in Saigon. The Vice Consul, whose duty in such situations is to "inquire carefully into the facts and circumstances, and (to) satisfy himself that good and substantial reasons exist for a discharge," 22 CFR § 82.16,2 agreed with the master that Matise's discharge was justified. He granted the discharge application without objection from Matise, and entered into the ship's log a notation stating that he "agreed to remove (Matise) from the vessel on grounds of misconduct at the Master's request and for the good of the vessel." The Vice Consul also advised the master that, because the discharge resulted from repeated instances of misconduct by Matise, petitioner was not obligated to pay for Matise's repatriation.3
5
Petitioner did, of course, have an obligation to pay Matise the wages that he had earned prior to his discharge. See 46 U.S.C. § 596. But payment in a form enabling Matise to secure transportation back to the United States was no easy matter. South Vietnamese law prohibited American seamen from carrying American currency ashore, and required that any ship's safe containing American currency be sealed while the ship was in port. An airline ticket to the United States, however, could be purchased only with American currency. Thus, Matise could not simply be put ashore with his wages and left there to secure transportation back to the United States for himself.4
6
In order to resolve the resulting dilemma, Vietnamese Customs officials gave the ship's master special permission to break the seal on the ship's safe and to remove enough money to purchase an airline ticket to the United States. The ticket was purchased and given to Matise along with a wage voucher for $118.45 a sum which, as indicated on the voucher itself, represented the amount of the wages due him, less the $510 paid for the airline ticket.5 When Matise arrived back in the United States, he signed off the ship's articles, executed a mutual release,6 and, on March 24, 1969, received the $118.45 from petitioner.
7
Almost one year later Matise filed suit against petitioner in the United States District Court for the Northern District of California.7 He claimed that petitioner had withheld from him $510 in wages, and that petitioner was liable to him for that amount and, as provided in § 596, for two days' pay for every day that payment had been delayed. The District Court rejected Matise's claim, finding that he had "consented to and approved the purchase of an airline ticket for his purposes with his money," and concluding that "(t) he purchase of that ticket under those circumstances constituted the equivalent of payment of monies over to the seaman." Having found that the purchase of the airline ticket for $510 constituted a partial payment of wages, the District Court concluded that petitioner had not "refuse(d) or neglect(ed) to pay and had therefore incurred no liability under § 596.
8
The Court of Appeals for the Ninth Circuit reversed. 488 F.2d 469 (1974). It read § 596 as requiring that wage payments be paid directly to the seaman, and held that the $510 paid to the airline without ever having passed through Matise's hands could not be regarded as a partial payment of wages. Citing this Court's indication in Isbrandtsen Co. v. Johnson, 343 U.S. 779, 72 S.Ct. 1011, 96 L.Ed. 1294 (1952), that only deductions and setoffs for derelictions of duty specifically provided for by Congress could lawfully be deducted from a seaman's wages, the Court of Appeals concluded that since the statutory scheme does not provide for setoffs for return transportation expenses, the "withholding" here at issue was improper and was without "sufficient cause" under § 596.
9
On remand, the District Court assessed damages in the amount of $510 for the wages "wrongfully withheld" and $29,462 in penalties,8 representing double wages calculated from March 24, 1969, four days after the discharge, until December 15, 1971, the date of the first District Court judgment in the case.9 Petitioner's appeal from this assessment was dismissed by the Court of Appeals as frivolous, and this Court thereupon granted certiorari. 420 U.S. 971, 95 S.Ct. 1391, 43 L.Ed.2d 651 (1975). We reverse.
II
10
The threshold question in this case is whether petitioner's purchase and Matise's receipt of the airline ticket constituted a partial payment of wages. If it was a partial payment, then there was no refusal or neglect to pay wages and there can be no double-wage liability under § 596.10 Only if the transaction was not a partial payment are we presented with the question whether the "withholding" of the $510 was without "sufficient cause" under § 596.
11
In Isbrandtsen Co. v. Johnson, supra, on which the Court of Appeals heavily relied, there was no question that what this Court was faced with was a refusal or neglect to make payment. There respondent, a seaman, had stabbed one of his shipmates while at sea. Over respondent's objection, the shipowner deducted from his wages amounts spent for the medical care and hospitalization of the shipmate. We held that because the deductions were not provided for in the relevant statutes,11 they should not have been made even though it might later have been determined that the shipowner had a valid claim for reimbursement against the respondent.
12
The situation before us today is quite different from that in Isbrandtsen. While the deductions in Isbrandtsen were made over the seaman's objection, the District Court in this case explicitly found that Matise "consented to and approved the purchase of an airline ticket for his purposes with his money."12 Moreover, unlike the seaman in Isbrandtsen, Matise received a benefit from the petitioner's expenditure that he simply could not have obtained through being paid in cash.13 Because of South Vietnamese currency regulations, it was only the procedure that was followed that allowed Matise to secure air transportation to the United States. Under such circumstances, it is evident that the shipowner did not refuse or neglect to make payment under § 596 as the shipowner in Isbrandtsen so clearly did;14 rather, the transaction in question constituted a partial payment of Matise's wages.
13
The Court of Appeals rejected petitioner's attempt to treat the giving of the plane ticket to Matise as a payment of wages. It viewed the purchase of the ticket as a payment to the airline, not to Matise, and observed that "the applicable statutes explicitly and unequivocally provide that the wages due are to be paid to the seaman, 46 U.S.C. §§ 596-597." 488 F.2d, at 471 (emphasis in original). The Court was evidently relying at this point on the following language in § 596: "The master . . . shall pay to every seaman his wages . . . within four days after the seaman has been discharged . . .."15 (Emphasis added.) The Court of Appeals' conclusion that the "payment" went to the airline and not to Matise does not necessarily follow from the facts of this case. It could as easily be argued that "payment," albeit in the form of an airline ticket rather than cash, was made to Matise. But even under the Court of Appeals' characterization of the transaction, we are unwilling to say that the payment was precluded by the general language of § 596. A far more explicit statement would be required to bar such a payment under the peculiar circumstances of this case. The obvious concern of § 596 is that the shipowner not unlawfully withhold wages, and thereby unjustly enrich himself while wrongfully denying the seaman the benefits of his labor. In this case, there was neither unjust enrichment of the shipowner nor a denial of benefits to the seaman. The shipowner made in a timely manner all the expenditures for which it was obligated. And the seaman received full benefit from the $510 by consenting to have it applied in the fashion most useful to him the purchase of an airline ticket.
14
Respondent advanced an alternative theory during oral argument to support the contention that petitioner neglected to make payment under § 596. Respondent argued that the master's failure to enter into the ship's logbook a notation that the $510 had been paid bars viewing the transaction as a partial payment of wages.
15
We find this argument unpersuasive. When crew members become liable for deductions from wages during a ship's voyage, there is, it is true, a statutory requirement that "the master shall, during the voyage, enter the various matters in respect to which such deductions are made, with the amounts of the respective deductions as they occur, in the official log book." 46 U.S.C. § 642. As we have indicated above, however, the airline ticket transaction in this case is not a "deduction from" Matise's wages, but rather is itself a partial payment of wages. Section 642's terms do not apply to payments of wages. The shipowner therefore acted properly in doing no more than rendering Matise a complete wage voucher that clearly noted the purchase of the airline ticket.
III
16
In reversing the decision of the Court of Appeals, we do not retreat from our view that the aim of § 596 is "to protect (seamen) from the harsh consequences of arbitrary and unscrupulous action(s) of their employers." Collie v. Fergusson, 281 U.S. 52, 55, 50 S.Ct. 189, 191, 74 L.Ed. 696 (1930). In this case, there was no impropriety either in the discharge itself or in the payment of wages to Matise. Nor do we today compromise our holding in Isbrandtsen that "only such deductions and set-offs for derelictions in the performance of . . . duties shall be allowed against . . . wages as are recognized in the statutes." 343 U.S., at 787, 72 S.Ct., at 1017. We hold simply that, under the circumstances of this case, the transaction resulting in Matise's receipt of an airline ticket purchased with money owed to him as wages constituted a payment of wages. There was therefore no refusal or neglect to make payment under § 596.
17
The judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for proceedings consistent with this opinion.
18
It is so ordered.
19
Judgment of Court of Appeals reversed and case remanded.
1
While the Third and Ninth Circuits have found that the trial judge has no discretion in determining the amount of the penalty under § 596, Swain v. Isthmian Lines, Inc., 360 F.2d 81 (CA3 1966); Escobar v. S. S. Washington Trader, 503 F.2d 271 (CA9 1974), cert. pending sub nom. American Trading Transp. Co. v. Escobar, No. 74-1184, the First, Second, Fourth, and Fifth Circuits have concluded that the length of time to which the penalty applies and hence its amount is subject to the discretion of the District Court. Mavromatis v. United Greek Shipowners Corp., 179 F.2d 310 (CA1 1950); Forster v. Oro Navigation Co., 228 F.2d 319 (CA2 1955), aff'g 128 F.Supp. 113 (S.D.N.Y.1954); Southern Cross S.S. Co. v. Firipis, 285 F.2d 651 (CA4 1960), cert. denied, 365 U.S. 869, 81 S.Ct. 903, 5 L.Ed.2d 859 (1961); Caribbean Federation Lines v. Dahl, 315 F.2d 370 (CA5 1963).
2
See also 46 U.S.C. § 682; 7 Foreign Affairs Manual § 526.2.
3
Two Coast Guard officers with whom the master had earlier consulted concerning Matise's misconduct were also present and concurred in the Vice Consul's advice that there was no obligation of repatriation.
4
South Vietnamese currency regulations were apparently not the only barrier to simply discharging Matise with his full wages in cash in Saigon. The Court of Appeals noted that South Vietnamese law also required the shipowner to guarantee the removal from the country of all persons whom it had transported to South Vietnam. 488 F.2d 469, 471-472.
5
Apart from the airline ticket expense, several deductions, none of them here at issue, were also reflected on the wage voucher.
6
Such a release is required by 46 U.S.C. § 644. Once such a release is signed, it "shall operate as a mutual discharge and settlement of all demands for wages between the parties thereto, on account of wages, in respect of the past voyage or engagement," § 644, except that "any court having jurisdiction may upon good cause shown set aside such release and take such action as justice shall require." § 597.
7
Granville Matise died during the pendency of the suit. Lillian M. Matise, respondent in this case, was appointed by the State of Maryland to administer his estate. Pursuant to stipulation, the District Court substituted respondent as plaintiff in this action.
8
The District Court also held petitioner liable for interest on these sums, as well as for court costs in both the District Court and Court of Appeals.
9
The District Court assessment was made in conformity with Escobar v. S. S. Washington Trader. See n. 1, supra.
10
Respondent conceded as much at oral argument before this Court. See Tr. of Oral Arg. 27, 31.
11
46 U.S.C. §§ 659, 663, 701, 707.
12
The Court of Appeals rejected the District Court's finding that Matise had consented to the purchase of the airline ticket with part of the wages due him, in part because of its conclusion that Matise was "compelled to sign the release and Wage Voucher in order to receive the remainder of his wages that admittedly were due." 488 F.2d, at 473. But there is nothing in the record to indicate that Matise's signing the wage voucher and release was the product of any such compulsion. Indeed, no claim is made that Matise registered any dissatisfaction whatsoever with either the form or amount of his wages until some months after signing the release. Nor was he the subject of any fraud or misrepresentation. See n. 14, infra. Accordingly, the District Court's finding that Matise had consented to and approved the form and amount of his wage payment was not clearly erroneous and should have been respected by the Court of Appeals.
13
To the extent that the respondent in Isbrandtsen Co. v. Johnson, 343 U.S. 779, 72 S.Ct. 1011, 96 L.Ed. 1294 (1952), was ultimately liable for the expenses surrounding his shipmate's injury, he too could be said to have benefited from the shipowner's payment of those expenses. However, unlike the case before us today, this was a "benefit" that he could have secured for himself had he been paid the wages directly.
14
Any suggestion that on Matise's discharge petitioner had a repatriation obligation to him independent of the obligation to pay wages is without merit. That this is so follows from respondent's concession that the discharge was validly based on Matise's misconduct. A shipowner's obligation to repatriate a seaman discharged in a foreign port depends on the circumstances of the discharge. For instance, there is a general obligation to repatriate seamen who through causes other than their own misconduct, have been injured. See Ladzinski v. Sperling S.S. & Trading Corp., 300 F.Supp. 947, 956 (S.D.N.Y.1969); Miller v. United States, 51 F.Supp. 924 (S.D.N.Y.1943); The Centennial, 10 F. 397 (E.D.La.1881); 1 M. Norris, The Law of Seamen § 418 (1970). On the other hand, as the Court of Appeals recognized in this case, 488 F.2d, at 471, there is no obligation to repatriate a seaman like Matise who has been discharged for misconduct. 1 Norris, supra, § 420. See Aguilar v. Standard Oil Co., 318 U.S. 724, 731, 63 S.Ct. 930, 934, 87 L.Ed. 1107 (1943).
Nothing in Isbrandtsen suggests that when a seaman concedes that his discharge for misconduct is warranted, the shipowner must pay for the seaman's repatriation and only later claim reimbursement from him. It is true that Isbrandtsen indicated that, because of the importance of repatriation allowances to seamen, amounts not deductible from earned wages may not be deducted from a repatriation allowance that is owing to a seaman. 343 U.S., at 789 n. 12, 72 S.Ct., at 1017. But in this case, we are presented, not with a deduction from a repatriation allowance that was owed to Matise, but rather, because of the nature of Matise's discharge, with the absence of any obligation at all on the part of the shipowner toward Matise to repatriate him. The Vice Consul's advice to the master, see supra, at 153, that petitioner had no obligation even of a temporary nature to pay for Matise's return to the United States was correct. It follows that Matise's consent to partial payment was not, as the Court of Appeals indicated, 488 F.2d, at 473, the product of misinformation.
15
The Court of Appeals' reference to § 597 was apparently to the following language:
"Every seaman . . . shall be entitled to receive on demand from the master of the vessel to which he belongs one-half part of the balance of his wages . . . at the time when such demand is made at every port where such vessel . . . shall load or deliver cargo before the voyage is ended . . .." 46 U.S.C. § 597 (emphasis added).
For reasons identical to those presented with regard to § 596, we reject any reading of § 597 that bars the method of payment utilized in this case.
| 78
|
423 U.S. 161
96 S.Ct. 473
46 L.Ed.2d 416
James Burnett McKay LAING, Petitioner,v.UNITED STATES et al. UNITED STATES et al., Petitioners, v. Elizabeth Jane HALL.
Nos. 73-1808 and 74-75.
Argued Jan. 21, 1975.
Reargued Oct. 15, 1975.
Decided Jan. 13, 1976.
Syllabus
These cases involve two income-tax payers whose taxable years were terminated by the Internal Revenue Service (IRS) prior to their normal expiration dates pursuant to the jeopardy-termination provisions of § 6851(a)(1) of the Internal Revenue Code of 1954 (Code), which allow the IRS immediately to terminate a taxpayer's taxable period when it finds that the taxpayer intends to commit any act tending to prejudice or render ineffectual the collection of his income tax for the current or preceding taxable year. Under § 6851 the tax is due immediately upon termination, and upon such termination the taxpayer's taxable year comes to a close. In each case, after the taxpayer failed to file a return or pay the tax assessed as demanded, the IRS levied upon and seized property of the taxpayer without having sent a notice of deficiency to the taxpayer, a jurisdictional prerequisite to a taxpayer's suit in the Tax Court for redetermination of his tax liability, and without having followed the other procedures mandated by § 6861 et seq. of the Code for the assessment and collection of a deficiency whose collection is in jeopardy. The Government contends that such procedures are inapplicable to a tax liability arising after a § 6851 termination because such liability is not a "deficiency" within the meaning of § 6211(a) of the Code, where the term is defined as the amount of the tax imposed less any amount that may have been reported by the taxpayer on his return. In No. 73-1808 the District Court held that a deficiency notice is not required when a taxable period is terminated pursuant to § 6851(a)(1), and dismissed the taxpayer's suit for injunctive and declaratory relief on the ground, inter alia, that it was prohibited by the Anti-Injunction Act, § 7421(a) of the Code, and the Court of Appeals affirmed. In No. 74-75 the District Court granted the taxpayer injunctive relief, holding that the Anti-Injunction Act was inapplicable because of the IRS's failure to follow the procedures of § 6861 et seq., and the Court of Appeals affirmed. Held: Based on the plain language of the statutory provisions at issue, their place in the legislative scheme, and their legislative history, the tax owing, but not reported, at the time of a § 6851 termination is a deficiency whose assessment and collection is subject to the procedures of § 6861 et seq., and hence because the District Director in each case failed to comply with these requirements, the taxpayers' suits were not barred by the Anti-Injunction Act. Pp. 169-185.
(a) Under the statutory definition of § 6211(a), the tax owing and unreported after a jeopardy termination, which in these cases, as in most § 6851 terminations, is the full tax due, is clearly a deficiency, there being nothing in the definition to suggest that a deficiency can arise only at the conclusion of a 12-month taxable year and it being sufficient that the taxable period in question has come to an end and the tax in question is due and unreported. Pp. 173-175.
(b) To deny a taxpayer subjected to a jeopardy termination the opportunity to litigate his tax liability in the Tax Court, as would be the case under the Government's view that the unreported tax due after a jeopardy termination is not a deficiency and that hence a deficiency notice is not required, would be out of keeping with the thrust of the Code, which generally allows income-tax payers access to that court. Pp. 176-177.
(c) The jeopardy-assessment and jeopardy-termination provisions have long been treated in a closely parallel fashion, and there is nothing in the early codification of such provisions to suggest the contrary. Pp. 177-183.
No. 73-1808, 496 F.2d 853, reversed and remanded; No. 74-75, 6 Cir., 493 F.2d 1211, affirmed.
Joseph S. Oteri, Boston, Mass., for James Burnett McKay Laing. Stuart A. Smith, Washington, D. C., for the United States and others, by Donald M. Heavrin, Louisville, Ky., for Elizabeth Jane Hall.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
These companion cases involve two taxpayers whose taxable years were terminated by the Internal Revenue Service (IRS) prior to their normal expiration date pursuant to the jeopardy termination provisions of § 6851(a)(1) of the Internal Revenue Code of 1954 (Code), 26 U.S.C. § 6851(a)(1).1 Section 6851(a)(1) allows the IRS immediately to terminate a taxpayer's taxable period when it finds that the taxpayer intends to do any act tending to prejudice or render ineffectual the collection of his income tax for the current or preceding taxable year. Upon termination the tax is immediately owing and, after notice, the IRS may, and usually does, levy upon the taxpayer's property under § 6331(a) of the Code, 26 U.S.C. § 6331(a), to assure payment.
2
We must decide whether the IRS, when assessing and collecting the unreported tax due after the termination of a taxpayer's taxable period, must follow the procedures mandated by § 6861 et seq. of the Code, 26 U.S.C. § 6861 et seq., for the assessment and collection of a deficiency whose collection is in jeopardy.2 The answer, as we shall see, depends on whether the unreported tax due upon such a termination is a "deficiency" as defined in § 6211(a) of the Code, 26 U.S.C. § 6211(a) (1970 ed. and Supp. IV). The Government argues that the tax liability that arises after a § 6851 termination cannot be a "deficiency," and that the procedures for the assessment and collection of deficiencies in jeopardy are therefore inapplicable. We reject this argument. We agree with the taxpayers that any tax owing, but unreported, after a § 6851 termination is a deficiency, and that the assessment of that deficiency is subject to the provisions of § 6861 et seq. We reverse in No. 73-1808 and affirm in No. 74-75.
3
* A. No. 73-1808, Laing v. United States. Petitioner James Burnett McKay Laing is a citizen of New Zealand. He entered the United States from Canada on a temporary visitor's visa on May 31, 1972. On the following June 24, Mr. Laing and two companions sought to enter Canada from Vermont but were refused entry by Canadian officials. As they turned back, they were detained by United States customs authorities at Derby, Vt. Upon a search of the vehicle in which the three were traveling, the customs officers discovered in the engine compartment a suitcase containing more than $300,000 in United States currency. The IRS District Director found that petitioner Laing and his companions were in the process of placing assets beyond the reach of the Government by removing them from the United States, thereby tending to prejudice or render ineffectual the collection of their income tax.3 He declared the taxable periods of petitioner and his companions immediately terminated under § 6851(a). An assessment of $310,000 against each was orally asserted for the period from January 1 through June 24, 1972. The assessment against Mr. Laing was subsequently abated to the amount of $195,985.55 when a formal letter-notice of termination and demand for payment and the filing of a return were sent. Mr. Laing received no deficiency notice under § 6861(b) and no specific information about how the amount of the tax was determined.4
4
After Mr. Laing and his companions refused to pay the tax, the IRS seized the currency that had been found in the vehicle. A portion thereof was applied to the tax assessed against Mr. Laing.5
5
On July 15, petitioner, filed suit against the United States, the Commissioner of Internal Revenue, the District Director, and the Chief of the Collection Division, District of Vermont, in the United States District Court for the District of Vermont. He asserted the absence of a notice of deficiency, which he claimed was required under § 6861(b), and he challenged as violative of due process both the provisions of the levy and distraint statute, § 6331(a), and the actions of the IRS in seizing and retaining the currency "without any finding of a substantial or probable nexus between that money and taxable income." App. in No. 73-1808, p. 20.6
6
The District Court, relying on its controlling court's decision in Irving v. Gray, 479 F.2d 20 (CA2 1973), held that a notice of deficiency is not required when a taxable period is terminated pursuant to § 6851(a)(1), and dismissed the suit as prohibited by the Federal Anti-Injunction Act, § 7421(a) of the Code, 26 U.S.C. § 7421(a), and as within the plain wording of the exception to the Declaratory Judgment Act, 28 U.S.C. § 2201, for a controversy with respect to federal taxes. 364 F.Supp. 469 (1973).
7
Adhering to its earlier ruling in Irving, the Second Circuit affirmed per curiam. 496 F.2d 853 (1974). It expressly declined to follow the Sixth Circuit's decision in Rambo v. United States, 492 F.2d 1060 (1974).7 These rulings of the Second Circuit, and one of the Seventh Circuit, Williamson v. United States, 31 A.F.T.R.2d 73-800 (1971), appeared to be in conflict with holdings by other Courts of Appeals, Rambo v. United States, supra ; Hall v. United States, 493 F.2d 1211 (CA6 1974), and Clark v. Campbell, 501 F.2d 108 (CA5 1974).8 Suggesting that the conflict was irreconcilable and noting that some 70 pending cases in the federal courts depended on its resolution, the Solicitor General did not oppose Mr. Laing's petition for certiorari. We granted certiorari to resolve the conflict.9 419 U.S. 824, 95 S.Ct. 39, 42 L.Ed.2d 47 (1974).
8
B. No. 74-75, United States v. Hall. Respondent Elizabeth Jane Hall is a resident of Shelbyville, Ky. After the arrest of her husband in Texas on drug-related charges, Kentucky state troopers obtained a warrant and searched respondent's home on January 31, 1973. They found controlled substances there. The next day the Acting District Director notified respondent Hall by letter that he found her "involved in illicit drug activities, thereby tending to prejudice or render ineffectual collection of income tax for the period 1-1-73 thru 1-30-73." App. in No. 74-75, p. 11. Citing § 6851, the Acting Director declared respondent's taxable period for the first 30 days of 1973 "immediately terminated" and her income tax for that period "immediately due and payable." Ibid. He further informed respondent that a tax in the amount of $52,680.25 for the period "will be immediately assessed" and that "(d) emand for immediate payment of the full amount of this tax is hereby made." Ibid. A return for the terminated period, pursuant to § 443(a)(3) of the Code, 26 U.S.C. § 443 (a)(3), was requested but not filed. The formal assessment was made on February 1. As was the case with Mr. Laing, Mrs. Hall received no deficiency notice under § 6861(b) and no specific information about how the amount of the tax had been determined.
9
Respondent was unable to pay the tax so assessed. Therefore, the IRS, acting pursuant to § 6331, levied upon and seized respondent's 1970 Volkswagen and offered it for sale.10
10
Respondent Hall instituted suit on February 13 in the United States District Court for the Western District of Kentucky, seeking injunctive relief and compensatory and punitive damages. The court issued an order temporarily restraining the IRS from selling the automobile and from seizing any more of respondent's property. Thereafter, relying upon Schreck v. United States, 301 F.Supp. 1265 (D.Md.1969), the court held that the Federal Anti-Injunction Act, § 7421(a), was inapplicable because of the IRS's failure to follow the procedures of § 6861 et seq. The court ordered the return of respondent's automobile upon her posting a bond in the amount of its fair market value.11 It issued a preliminary injunction restraining the defendants (the United States, the Acting District Director, the Group Supervisor of Internal Revenue, and a lieutenant of the Kentucky State Police) "from harassing or intimidating (respondent) in any manner including but not limited to trespassing on, seizing or levying upon any of her property of whatever nature, be it rental property or not." Pet. for Cert. in No. 74-75, p. 5a.
11
On appeal, the United States Court of Appeals for the Sixth Circuit affirmed per curiam, 493 F.2d 1211 (1974), relying upon its opinion and decision in Rambo v. United States, supra, decided one month earlier. In Rambo the court had held that the failure of the IRS to issue a deficiency notice for a terminated taxable period, and the consequent unavailability of a remedy in the United States Tax Court, entitled the taxpayer to injunctive relief. Because of the conflict, indicated above, we also granted certiorari in Mrs. Hall's case. 419 U.S. 824, 95 S.Ct. 40, 42 L.Ed.2d 47 (1974).
II
12
In these cases, the taxpayers seek the protection of certain procedural safeguards that the Government claims were not intended to apply to jeopardy terminations. Specifically, the taxpayers argue that the procedures mandated by § 6861 et seq. for assessing and collecting deficiencies whose collection is in jeopardy also govern assessments of taxes owing, but not reported, after the termination of a taxpayer's taxable period under § 6851. Resolution of this claim requires analysis of the interplay between these two basic jeopardy provisions § 6851, the jeopardy-termination provision, and § 6861, the jeopardy-assessment provision.
13
The initial workings of the jeopardy-termination provision, which essentially permits the shortening of a taxable year, are not in dispute. When the District Director determines that the conditions of § 6851(a) are met generally, that the taxpayer is preparing to do something that will endanger the collection of his taxes12 the District Director may declare the taxpayer's current tax year terminated. The tax for the shortened period and any unpaid tax for the preceding year become due and payable immediately, § 6851(a), and the taxpayer must file a return for the shortened year. § 443(a) (3).
14
The disagreement between the taxpayers and the Government focuses on the applicability of the jeopardy-assessment procedures of § 6861 et seq. to the assessment13 and collection of taxes that become due upon a § 6851 termination. Section 6861(a) provides for the immediate assessment of a deficiency, as defined in § 6211(a), whenever the assessment or collection of the deficiency would be "jeopardized by delay." By allowing an immediate assessment, § 6861(a) provides an exception to the general rule barring an assessment until the taxpayer has been sent a notice of deficiency and has been afforded an opportunity to seek resolution of his tax liability in the Tax Court.14 Certain procedural safeguards are provided, however, to the taxpayer whose deficiency is assessed immediately under § 6861(a). Within 60 days after the jeopardy assessment, the District Director must send the taxpayer a notice of deficiency, § 6861(b), which enables the taxpayer to file a petition with the Tax Court for a redetermination of the deficiency, 26 U.S.C. § 6213(a) (1970 ed., Supp. IV). The taxpayer can stay the collection of the amount assessed by posting an equivalent bond, § 6863(a). Any property seized for the collection of the tax cannot be sold until a notice of deficiency is issued and the taxpayer is afforded an opportunity to file a petition in the Tax Court. If the taxpayer does seek a redetermination of the deficiency in the Tax Court, the prohibition against sale extends until the Tax Court decision becomes final. § 6863(b)(3)(A).15
15
The taxpayers view the provisions of § 6861 et seq. as complementary to those of § 6851. They contend that to the extent the tax owing upon a jeopardy termination has not been reported, it is a "deficiency" as that term is defined in § 6211(a) and used in § 6861(a), and that the deficiency, being of necessity one whose assessment or collection is in jeopardy,16 must be assessed and collected in accordance with the procedures of § 6861 et seq.
16
Under the Government's view, on the other hand, §§ 6851 and 6861 are aimed at distinct problems and have no bearing on each other. "Section 6851," according to the Government, "advances the date when taxes are due and payable, while Section 6861 advances the time for collection of taxes which are already overdue (i. e., already owing for a prior, normally expiring taxable year)." Brief for United States 10. The validity of this distinction rests on the Government's claim that a deficiency can arise only with respect to a nonterminated taxable year, so that no deficiency can be created by a § 6851 termination. If there is no deficiency to assess, of course, the provisions of § 6861 et seq. cannot apply.
17
Thus, under the Government's reading of the Code, the procedures for assessment and collection of a tax owing, but not reported, after the termination of a taxable period are not governed by § 6861 et seq.17 The Government argues that, with the single exception of the bond provision of § 6851(e), the taxpayer's only remedy upon a jeopardy termination is to pay the tax, file for a refund, and, if the refund is refused, bring suit in the district court or the Court of Claims. See 28 U.S.C. § 1346(a)(1). Since the IRS has up to six months to act on a request for a refund, the taxpayer, under the Government's theory, may have to wait up to half a year before gaining access to any judicial forum. See 26 U.S.C. §§ 6532(a), 7422(a) (1970 ed. and Supp. IV).
18
The Government does not seriously challenge the taxpayers' conclusion that if the termination of their taxable periods created a deficiency whose assessment or collection was in jeopardy, the assessments and collections in these cases should have been pursuant to the procedures of § 6861 et seq. The question, then, is whether the tax owing, but not reported, upon a jeopardy termination is a deficiency within the meaning of § 6211(a).
III
19
In essence, a deficiency as defined in the Code is the amount of tax imposed less any amount that may have been reported by the taxpayer on his return.18 § 6211 (a). Where there has been no tax return filed, the deficiency is the amount of tax due. Treas. Reg. § 301.6211-1(a), 26 CFR § 301.6211-1(a) (1975). As we have seen, upon terminating a taxpayer's taxable year under § 6851, the District Director makes a demand for the payment of the unpaid tax for the terminated period and for the preceding taxable year. The taxpayer is then required to file a return for the truncated taxable year. § 443(a)(3). The amount due, of course, must be determined according to ordinary tax principles, as applied to the abbreviated reporting period. The amount properly assessed upon a § 6851 termination is thus the amount of tax imposed under the Code for the preceding year and the terminated short year, less any amount that may already have been paid. To the extent this sum has not been reported by the taxpayer on a return, it fits precisely the statutory definition of a deficiency.19
20
The Government resists this conclusion by reading the definition of "deficiency" restrictively to include only those taxes due at the end of a full taxable year when a return has been or should have been made. It argues that a "deficiency" cannot be determined before the close of a taxable year. Of course, we agree with the Government that a deficiency does not arise until the tax is actually due and the taxable year is complete. The fact is, however, that under § 6851 the tax is due immediately upon termination. Moreover, upon a § 6851 termination, the taxpayer's taxable year has come to a close. See Sanzogno v. Commissioner, 60 T.C. 321, 325 (1973).20 Section 441(b)(3) defines as a "taxable year" the terminated taxable period on which a return is due under § 443(a)(3). See also § 7701(a)(23). Under the statutory definition of § 6211(a), the tax owing and unreported after a jeopardy termination, which in these cases and in most § 6851 terminations is the full tax due, is clearly a deficiency. We see nothing in the definition to suggest that a deficiency can arise only at the conclusion of a 12-month taxable year; it is sufficient that the taxable period in question has come to an end and the tax in question is due and unreported.21 Besides conflicting with the plain language of the Code provisions directly before us, the Government's position in these cases would, for no discernible purpose, isolate the taxpayer subjected to a jeopardy termination from most other income-tax payers. If the unreported tax due after a jeopardy termination is not a deficiency, the IRS need not issue the taxpayer a deficiency notice and accord him access to the Tax Court for a redetermination of his tax. Denial of an opportunity to litigate in the Tax Court is out of keeping with the thrust of the Code, which generally allows income-tax payers access to that court. Where exceptions are intended, the Code is explicit on the matter. See, e. g., § 6871(b). Denying a Tax Court forum to a particular class of taxpayers is sufficiently anomalous that an intention to do so should not be imputed to Congress when the statute does not expressly so provide. This is particularly so in view of the Government's concession that the jeopardy-assessment procedures of § 6861 et seq. are sufficient to protect its interests, and that providing taxpayers with the limited protections of those procedures would not impair the collection of the revenues.22
IV
21
While the plain language of the provisions at issue here and their place in the legislative scheme suggest that the unreported tax due upon a § 6851 termination is a deficiency and that the deficiency, its collection being in jeopardy, must be assessed and collected according to the procedures of § 6861 et seq., the Government attempts to undercut this conclusion by pointing to the legislative history of the several provisions at issue in this case. We are unpersuaded. The jeopardy-assessment and jeopardy-termination provisions have long been treated in a closely parallel fashion, and nothing that the Government points to in the early codification suggests the contrary.
22
As the Government points out, the Revenue Act of 1918 (1918 Act) contained a termination provision, § 250(g), 40 Stat. 1084, that was very similar to the present § 6851. Under the 1918 statute all assessments were made under the authority of Rev.Stat. § 318223 and the taxpayer could attack an assessment only by paying the amount claimed and bringing suit for a refund in district court. Since there was no way for the taxpayer to contest assessments prior to payment, the Government had no need for any expedited jeopardy-assessment procedure such as is now authorized in § 6861.24 When a termination was made under § 250(g), the tax assessment and collection thus proceeded exactly as in any other case the taxpayer had to pay first and litigate later.
23
In the Revenue Act of 1921 (1921 Act), 42 Stat. 227, Congress added both a special procedure for prepayment challenges to assessments and an exception to that procedure. The special procedure made available, under certain circumstances, a limited administrative remedy within the Bureau of Internal Revenue (predecessor to the IRS) by which taxpayers could question assessments before paying the taxes assessed. § 250(d) of the 1921 Act, 42 Stat. 266. The Commissioner could, however, pretermit that procedure if he believed that collection of the revenues might be jeopardized by delay. This exception, contained in a proviso to § 250(d), was the precursor of § 6861. Since the proviso limited the availability of the administrative remedy to cases where collection of the taxes due would not be "jeopardized by such delay," the remedy was necessarily inapplicable to cases in which a § 250(g) termination was made. As of 1921, then, the nascent prepayment remedy was available to ordinary taxpayers but not to taxpayers in either jeopardy situation where the tax year had been terminated pursuant to § 250(g), or where the full tax year had run and the Commissioner had determined that the collection of the tax would be jeopardized under the proviso to § 250(d).
24
The Government, however, relies heavily on the 1921 Act, claiming that "(t)he key to an understanding of the term 'deficiency' lies" therein. Brief for United States 42. It relies on a reference to the term "deficiency" in § 250(b), which set out the procedure for handling underpayments after returns had been filed:
25
"If the amount already paid is less than that which should have been paid, the difference, to the extent not covered by any credits due to the taxpayer under section 252 (hereinafter called 'deficiency') . . . shall be paid upon notice and demand by the collector." 40 Stat. 265.
26
This "hereinafter" reference was permanently eliminated when the Act was revised in the Revenue Act of 1924 (1924 Act) and the word "deficiency" precisely defined in much the same way as it is today. Nonetheless, the Government persists in viewing the reference in the 1921 Act as an authoritative definition of "deficiency." Since the reference related only to money owed after a return had been filed and examined, the Government argues that Congress in 1921 did not consider the amount assessed pursuant to a jeopardy termination which often must be assessed before a return is filed to be a "deficiency." This supposed limitation in the 1921 Act continues, in the Government's view, to this day. We disagree with the Government's analysis.
27
To understand the use of the word "deficiency" in the 1921 Act, it is necessary to begin with the 1918 Act where the term first appeared. In the 1918 statute the term was not formally defined but appeared in various provisions dealing with underpayments and overpayments of tax, referring to the difference between the amount due and the amount already paid. "Deficiency" was used synonymously with the word "understatement," and it is clear from the context that neither word was being used as a term of art. In the 1921 Act, the 1918 language was left largely unchanged, except that after the reference to the difference between the amount paid and the amount due, Congress added the parenthetical expression "(hereinafter called 'deficiency')," and from that point on replaced all references to "understatement" with the word "deficiency." From the context, it is evident that the "hereinafter" parenthetical term was not intended as a restrictive definition of deficiency, but merely as an indication that throughout the subsection the word would be used as shorthand for the difference between the amount paid and the amount that should have been paid.25 We thus find nothing in the informal use of the term "deficiency" in the 1921 Act to limit our construction of the precise definition in § 6211(a) of the present Code.
28
In 1924 Congress made a number of important changes in the jeopardy-assessment scheme. The termination section, § 282, 43 Stat. 302, remained basically the same as it had been in § 250(g) of the 1921 Act, but taxpayers' prepayment remedies and the jeopardy-assessment provision were substantially altered. Section 274(a) of the 1924 Act, 43 Stat. 297, provided that if, "in the case of any taxpayer, the Commissioner determine(d) that there is a deficiency" in the tax imposed by the Act, the Commissioner was required to mail a notice of deficiency to the taxpayer. Within 60 days of mailing of the notice, and prior to payment of the deficiency, the taxpayer was entitled to file an appeal with the Board of Tax Appeals, an agency independent of the Bureau of Internal Revenue. The only exception to this statutory provision permitting general access to the Board of Tax Appeals was that for a jeopardy assessment. The jeopardy-assessment provision, § 274(d), permitted the Commissioner to assess and collect a deficiency immediately, bypassing various procedures set out in § 274(a) for the ordinary assessment and collection of deficiencies. Even in the jeopardy-assessment situation, however, the taxpayer could gain access to the Board of Tax Appeals by posting a bond. § 279(a).
29
Section 273 of the 1924 Act defined "deficiency," much as it is now defined, as the amount by which the tax due exceeds the tax shown on the taxpayer's return, or, "if no return is made by the taxpayer, then the amount by which the tax exceeds the amounts previously assessed (or collected without assessment) as a deficiency." § 273(2). In cases in which no return was filed and no amount had previously been assessed or collected, § 273(2) in effect defined a "deficiency" simply as the amount of tax due. Since § 282 the termination provision provided that at the time of termination the Commissioner would demand "immediate payment of the tax for the taxable period so declared terminated and of the tax for the preceding taxable year or so much of such tax as is unpaid . . .," and that the tax demanded would become "immediately due and payable," the tax "due and payable" at the time of the termination notice, to the extent unreported, would appear to fit the definition of "deficiency" in § 273(2). This being so, the Government's assertion that under the 1924 Act, § 282 terminations were not subject to the procedures of § 274(d) is incorrect, and much of the force of its argument from the history of the statute is lost.
30
With the amendments made by the Revenue Act of 1926, c. 27, 44 Stat. 9, the statutory provisions relevant to these cases took essentially their present form. The jurisdiction of the Board of Tax Appeals (subsequently renamed the Tax Court) was broadened, in part by granting taxpayers subjected to jeopardy assessments a means of having their assessment redetermined by the Board without having to post bond as had previously been required. Under the new jeopardy-assessment procedures, the Commissioner could immediately assess the deficiency, but in addition to a demand for payment, he was required to send a notice of deficiency, § 279(b), which allowed the jeopardy taxpayer immediate access to the Board of Tax Appeals. § 274(a). As in the 1924 Act, there was no indication that taxpayers subjected to a jeopardy termination would not then be assessed under the jeopardy-assessment procedures to the extent a deficiency was owing, and thereby allowed to follow the same route to the Board of Tax Appeals that was available to other jeopardy taxpayers.
31
In sum, to the extent that it sheds any light on the question at all, the legislative history seems to help the taxpayers rather than the Government. In the course of the development of a prepayment remedy and a jeopardy exception to that remedy between 1918 and 1926, taxpayers subjected to jeopardy terminations and those subjected to jeopardy assessments for nonterminated taxable years were consistently treated alike. In 1921, when the administrative remedy was first created, neither those subjected to a jeopardy assessment for a nonterminated year nor those subjected to a termination could avail themselves of that remedy. In 1924, those terminated and those subjected to jeopardy assessments for nonterminated years were similarly denied access to the Board of Tax Appeals, unless they filed a bond in the amount of the claim. And in 1926, when the scheme assumed its current form, there was no indication that Congress intended for the first time to treat the two groups separately by granting direct access to the Board of Tax Appeals to those subjected to a jeopardy assessment for a nonterminated year, but denying it to those subjected to an assessment following a jeopardy termination.
V
32
Based on the plain language of the statutory provisions, their place in the legislative scheme, and the legislative history, we agree with the taxpayers' reading of the pertinent sections of the Code.26 Under that reading, the tax owing, but not reported, at the time of a § 6851 termination is a deficiency whose assessment and collection are subject to the procedures of § 6861 et seq. Section 6861(b) requires a notice of deficiency to be mailed to a taxpayer within 60 days after the jeopardy assessment. Section 6863 bars the offering for sale of property seized until the taxpayer has had an opportunity to litigate in the Tax Court. Because the District Director failed to comply with these requirements in these cases, the taxpayers' suits were not barred by the Anti-Injunction Act,27 § 7421(a) of the Code. The judgment of the United States Court of Appeals for the Sixth Circuit in No. 74-75 is affirmed. The judgment of the United States Court of Appeals for the Second Circuit in No. 73-1808 is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.
33
It is so ordered.
34
Affirmed in No. 74-75; Reversed and remanded in No. 73-1808.
35
Mr. Justice STEVENS took no part in the consideration or decision of these cases.
36
Mr. Justice BRENNAN, concurring.
37
I join the Court's opinion, and the statutory construction that makes unnecessary the Court's addressing the claims of Mr. Laing and Mrs. Hall that they were denied procedural due process secured by the Fifth Amendment. Decision of that question is therefore expressly reserved, ante, at 184 n. 26. I write only to state my views of the considerations raised by the due process claim.
38
The Court's construction of the relevant statutes permits the IRS to seize a taxpayer's assets upon a finding by the Commissioner in compliance with § 6851(a)(1). No hearing is required, judicial or administrative, prior to the seizure. But it cannot be gainsaid that the risk of erroneous determinations by the Commissioner with consequent possibility of irreparable injury to a taxpayer is very real. This suffices to bring due process requirements into play.
39
The "root requirement" of the Due Process Clause is "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." Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971) (emphasis in original). See, e. g., Bell v. Burson, 402 U.S. 535, 542, 91 S.Ct. 1586, 1591, 29 L.Ed.2d 90 (1971); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). The precise timing and attributes of the due process requirement, however, depend upon accommodating the competing interests involved. Goss v. Lopez, 419 U.S. 565, 579, 95 S.Ct. 729, 739, 42 L.Ed.2d 725 (1975); Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972); Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961).
40
Governmental seizures without a prior hearing have been sustained where (1) the seizure is necessary to protect an important governmental or public interest, (2) there is a "special need for very prompt action," and (3) "the standards of a narrowly drawn statute" require that an official determine that the particular seizure is both necessary and justified. See Fuentes v. Shevin, 407 U.S. 67, 91, 92 S.Ct. 1983, 2000, 32 L.Ed.2d 556 (1972). Seizures pursuant to jeopardy assessments are clearly necessary to protect important governmental interests and there is a "special need for very prompt action." But § 6851(a)(1), although requiring an official determination that the particular seizure is both necessary and justified, nevertheless falls short, in my view, of meeting due process requirements. This is because present law denies an affected taxpayer access to any forum for review of jeopardy assessments for up to 60 days.
41
In Goss v. Lopez, supra, the Court held that notice and hearing must follow a deprivation "as soon as practicable." 419 U.S., at 582-583, 95 S.Ct., at 740. The Louisiana statute upheld in Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), entitled debtors whose assets had been seized to a hearing immediately following seizure and to invalidation of the seizure unless the creditor could prove the basis for the seizure, id., at 606, 94 S.Ct. at 1899. In contrast, a Georgia garnishment statute was invalidated for want of any opportunity "for an early hearing at which the creditor would be required to demonstrate at least probable cause for the garnishment." North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 607, 95 S.Ct. 719, 723, 42 L.Ed.2d 751 (1975). Thus, the governing due process principle obliges the IRS to provide a prompt hearing at which the IRS must prove "at least probable cause" for its claim.
42
But present law requires that taxpayers wait up to 60 days before challenging jeopardy assessments by filing suit in the Tax Court. However expeditiously the Tax Court handles the claim, that court is not required to decide the merits within any specified time, and no provision is made for a prompt preliminary evaluation of the basis for the assessment. In my view, such delay would be constitutionally permissible only if there were some overriding governmental interest at stake, and the IRS suggested none in either of these cases.* But even if delay in judicial review on the merits were justifiable, due process would at least require some supporting rationale for denying taxpayers the opportunity for a prompt preliminary determination by an unbiased tribunal on the validity of the basis for the assessment. Again, none was offered in either of these cases.
43
Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, dissenting.
44
Every experienced tax practitioner is aware of the problems of tax collection and tax evasion, and of the frequent need for prompt action on the part of those having responsibility for the protection of the revenues. Every experienced tax practitioner also knows that our Internal Revenue Code is a structured and complicated instrument perhaps too complex that deserves careful and historical analysis when, as here, longstanding provisions of that Code are challenged.
45
The Court in these two cases today gives every evidence of pursuing a quest for what it seems to regard as a desirable or necessary symmetry and, in my view, and most unfortunately, indulges in a faulty analysis of the Code's structure and misinterprets the historical development of the statutes. It is led astray, I fear, by the emotional appeal of the facts in Mrs. Hall's case, involving, as it does, her husband's arrest on drug-related charges1 and the seizure by the Internal Revenue Service of Mrs. Hall's Volkswagen automobile. I have little doubt that if Mr. Laing's case had come here alone and unfettered by the coincidental appearance of Mrs. Hall's case, the Court would have denied certiorari to Mr. Laing out of hand or, if not, would readily have affirmed. But Mr. Laing's case did not arrive alone. Thus the "equities" and the extremes of Mrs. Hall's case, with their sad overtones, tend to counterbalance, and now have overbalanced, the lack of "equity" in Mr. Laing's case. The result is that the Internal Revenue Service is deprived of a weapon it has long possessed under the Code and of a device it obviously needs in combatting questionable tax practices and tax evasion by those who do not pay their rightful taxes and who thereby increase the burden of those who do.
46
It is unfortunate, of course, that the issues are imbedded in a complicated and detailed tax code. Correct analysis, I submit, demands conclusions opposite to those reached by the Court today. I therefore dissent.
47
* For an understanding of the purport and reach of § 6851(a)(1), an examination of the statutory structure of which it is a part is indicated.
48
A. The customary deficiency procedure. This is prescribed by Subchapter B of Chapter 63 of the Code under the heading "Assessment." The term "deficiency" is defined in § 6211(a), 26 U.S.C. § 6211(a) (1970 ed. and Supp. IV), essentially as the excess of the tax imposed by the Code over the amount of tax shown on the taxpayer's return as filed. If, however, the taxpayer files no return, or shows no tax on the return he does file, the deficiency is the amount of the tax imposed by the Code. Treas.Reg. § 301.6211-1(a), 26 CFR § 301.6211-1(a) (1975).
49
Once the Commissioner determines that a deficiency exists, he "is authorized to send notice of such deficiency to the taxpayer by certified mail or registered mail." 26 U.S.C. § 6212(a) (1970 ed., Supp. IV). Under § 6213(a) (1970 ed., Supp. IV), the taxpayer, within 90 days after the mailing of that notice, may file a petition with the United States Tax Court for a redetermination of the deficiency. During this period and, if a petition is filed with the Tax Court, until that court's decision has become final the Commissioner, with one exception hereinafter noted, is precluded from assessing the deficiency, from making a levy, and from proceeding in court for its collection. Any such move on the part of the Internal Revenue Service during that time "may be enjoined by a proceeding in the proper court." Section 6213(a) expressly, makes the Anti-Injunction Act, § 7421(a), inapplicable under those circumstances.
50
The sole exception to this preclusion of the Service during the customary deficiency procedure is also set forth explicitly in § 6213(a). It is that the preclusion is not effective with respect to a jeopardy assessment under § 6861. No like exception, or reference, however, is made with respect to § 6851, the statute that empowers the Commissioner to terminate the taxpayer's taxable period when collection of the tax may be in jeopardy.
51
B. The termination-of-the-taxable-period statute. This is the above-mentioned, and critical, § 6851, subsection (a)(1) of which is set forth in n. 1 of the Court's opinion, ante, p. 163. The statute constitutes the entire Part I of Subchapter A (Jeopardy) of Chapter 70 of the Code.
52
Our income tax system is primarily a self-reporting and self-assessment one. It is "based upon voluntary assessment and payment, not upon distraint." Flora v. United States, 362 U.S. 145, 176, 80 S.Ct. 630, 647, 4 L.Ed.2d 623 (1960). See Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917 (1938); Treas. Reg. § 601.103(a), 26 CFR § 601.103(a) (1975). Congress, nonetheless, early recognized that there would be instances where the Service must take immediate affirmative action in order to safeguard the collection of a tax.2 Section 6851(a)(1) fulfills this congressional concern and permits the District Director, see Treas. Reg. § 1.6851-1(a), 26 CFR § 1.6851-1(a) (1975), to terminate the taxable period if he finds that the taxpayer designs an act tending to prejudice or render ineffectual the collection of income tax for the current or the preceding tax year.3 When this is done, notice of the termination must be given the taxpayer together with a demand for immediate payment of the tax for the taxable period so terminated. The tax thereupon becomes immediately due and payable.4
53
Section 6851, standing alone, however, is not sufficient for a collection procedure because it does not contain its own assessment authority. The statute provides simply for the termination of the taxable period prematurely, and the authority must be found elsewhere in the statutory scheme.5
54
That assessment authority is granted by § 6201(a) of the Code, 26 U.S.C. § 6201(a).6 This empowers the Commissioner "to make . . . assessments of all taxes . . . imposed by this title." An assessment is made by recording the liability of the taxpayer in the Service's books of account. § 6203. If, after demand, the taxpayer fails to pay, the Commissioner may invoke § 6321, which provides that the amount shall be a lien in favor of the United States upon the property of the taxpayer. The Service has power, after 10 days' notice and demand in a nonjeopardy situation, to collect the tax by levy and distraint. § 6331 (1970 ed. and Supp. IV).
55
Section 6851(b) permits the Service to reopen the terminated taxable period each time the taxpayer is found to have received income within the current taxable year but since the termination. Similarly, the taxpayer himself may reopen the terminated period if he files "a true and accurate return." Under § 6851(e), the taxpayer may avoid early collection by furnishing a bond to insure the timely making of a return and the payment of the tax.
56
Nowhere in these several subsections of § 6851 does the word "deficiency" appear. The section contains no words of authorization or requirement that the Commissioner issue a notice of deficiency. Seemingly, once the tax is made immediately due by termination of the taxable period, the Commissioner may exercise his general assessment authority and proceed forthwith to collect through lien, levy, and distraint.
57
C. The jeopardy-assessment statute. This, so far as income, estate, and gift taxes are concerned, all of which require returns, is § 6861 of the Code, 26 U.S.C. § 6861.7 It and the three succeeding sections constitute Part II (Jeopardy Assessments) of Subchapter A (Jeopardy) of Chapter 70 of the Code. Section 6861, like § 6851(a), is designed to achieve collection under exigent circumstances.
58
Section 6861 is invoked only after the date upon which the tax for the full year is due. This stands in contrast to § 6851(a), which permits premature termination of the taxable period. In other words, § 6851(a) serves to advance the time when a tax becomes due and payable, whereas § 6861 serves to advance the time for collection of a tax already due. Jeopardy to collection lies in the background of both situations and triggers the invocation of either statute.
59
In sharp contrast with § 6851(a), § 6861(a) refers specifically to a "deficiency," as that term is defined in § 6211. The further reference in § 6861(a) to § 6213(a) is of significance. Section 6213(a), as has been noted, provides for the filing by the taxpayer with the Tax Court of a petition for redetermination of the deficiency. By its reference to § 6213(a), § 6861(a) thus authorizes a jeopardy assessment, despite the available path for the taxpayer to the Tax Court and despite the presence of the otherwise operative preclusion provisions of § 6213(a). Also, it confirms that a jeopardy assessment made under § 6861(a) is reviewable in the Tax Court. That this is so is convincingly demonstrated by the additional fact that § 6861(b) provides that if a jeopardy assessment is made before the mailing of any notice of deficiency, the Commissioner shall mail a notice within 60 days after the making of the assessment. Thus, although the Service in such a jeopardy situation is not restrained from immediate levy and collection, the taxpayer is nevertheless assured his relatively prompt access to the Tax Court for redetermination of the deficiency. In addition, under § 6863(a), 26 U.S.C. § 6863(a), the taxpayer may post a proper bond and thereby stay collection. And, absent specified exigent circumstances, sale of property seized for collection is not to be effected during the period of Tax Court review. § 6863(b)(3).
60
D. The Federal Anti-Injunction Act. This statute, s 7421(a), generally prohibits suits to restrain assessment or collection of tax. It reads:
61
"Except as provided in sections 6212(a) and (c), 6213(a), and 7426(a) and (b)(1), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed."
62
The statute had its origin over a century ago in § 10 of the Revenue Act of Mar. 2, 1867, 14 Stat. 475.8 See Rev.Stat. § 3224. It was enacted to prevent in the federal system the type of injunctive suits that had plagued tax collections by the States. The Court has recognized the congressional concern underlying the statute, namely, that if courts were to exercise injunctive power with respect to the collection of taxes, the Government's very existence could be threatened. See Cheatham v. United States, 92 U.S. 85, 89, 23 L.Ed. 561 (1876); State Railroad Tax Cases, 92 U.S. 575, 613, 23 L.Ed. 663 (1876); Snyder v. Marks, 109 U.S. 189, 193-194, 3 S.Ct. 157, 159-160, 27 L.Ed. 901 (1883); Bob Jones University v. Simon, 416 U.S. 725, 736-737, 94 S.Ct. 2038, 2046, 40 L.Ed.2d 496 (1974). The statute has been uniformly applied to bar suits before collection except in certain specific and delimited circumstances.
63
The first exception to the statute's bar is spelled out in the initial words of § 7421(a) itself: the Act does not preclude injunctive suits within the contemplation of §§ 6212(a) and (c) and 6213(a). These sections, as has been seen, concern situations where a notice of deficiency is required and where jurisdiction of the United States Tax Court is thereby afforded.
64
The second exception is also spelled out in the prefatory words of § 7421(a): the Act does not apply to an injunctive suit within the contemplation of § 7426(a) and (b)(1), 26 U.S.C. § 7426(a) and (b)(1). These sections, however, concern a civil action instituted by a person other than the taxpayer, such as a person claiming a prior lien, and have no possible application here. See Bob Jones University v. Simon, 416 U.S., at 731-732, 94 S.Ct., at 2043, n. 6.
65
The third exception is of judicial origin. The Court, in Enochs v. Williams Packing Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962), observed that "if it is clear that under no circumstances could the Government ultimately prevail, the central purpose of the Act is inapplicable and . . . the attempted collection may be enjoined if equity jurisdiction otherwise exists." This obviously is a very narrow exception and is subject to a twofold test: a clear indication that the Government cannot prevail, and the presence of an equity consideration in the sense of threat of irreparable injury for which there is no adequate legal remedy. The Court recently reaffirmed the Williams Packing exception in Bob Jones University v. Simon, supra, and in Commissioner v. "Americans United" Inc., 416 U.S. 752, 94 S.Ct. 2053, 40 L.Ed.2d 518 (1974). It noted that a somewhat different attitude had been evident in the 1930's. See Miller v. Standard Nut Margarine Co., 284 U.S. 498, 52 S.Ct. 260, 76 L.Ed. 422 (1932), and Allen v. Regents of University System of Georgia, 304 U.S. 439, 58 S.Ct. 980, 82 L.Ed. 1448 (1938).
66
There is no question, of course, that the present suits instituted by petitioner Laing and respondent Hall are actions to restrain the collection or enforcement of tax, within the meaning of § 7421(a). These parties, however, do not contend that the Williams Packing exception is applicable to their respective cases. I necessarily agree that the exception affords Mr. Laing and Mrs. Hall no avenue of relief, for there is no indication in the records that on the merits the Government under no circumstances could prevail.9
II
67
This review of the statutory structure clearly reveals the following:
68
1. The congressionally intended normal procedure is to allow the taxpayer, if he desires it, some "breathing space" prior to exaction of the additional tax that is claimed. The avenue provided to accomplish this result is the route to the Tax Court where the issues, factual and legal, may be resolved prior to collection. This avoids the necessity of the taxpayer's disgorgement of funds, to his current financial detriment, even though he might ultimately prevail and recoup by refund all or a substantial part of the amount he pays. The choices the taxpayer makes, and the risks he assumes, by this route, include the forgoing of trial of the factual issues by a jury, having his trial before a specialist judge not assigned to the taxpayer's local district, and the accruing of interest on any deficiency ultimately redetermined, § 6601(a), 26 U.S.C. § 6601(a) (1970 ed., Supp. IV). If he selects the other route, that is, payment of the asserted deficiency, filing claim for refund, and suit, the taxpayer (if he chooses the district court rather than the Court of Claims) has his case tried before a United States district judge of his own district, with a jury available, and it is the Government, not the taxpayer, that bears the burden of accruing interest, § 6611, 26 U.S.C. § 6611 (1970 ed., Supp. IV).
69
2. Despite this available avenue of litigation in the Tax Court before payment, and its use by the taxpayer after a notice of deficiency is issued, the Commissioner nonetheless may assess and collect, subject to the taxpayer's fulfillment of prescribed conditions, in a jeopardy situation. § 6861. This enables the Government to protect the revenues, but at the same time the path to the Tax Court is preserved for the taxpayer.
70
3. Jeopardy collection power is also vested in the Commissioner during the taxpayer's taxable period before his tax for the year can be determined. § 6851(a). This, too, protects the revenues.
71
4. Both § 6861 and § 6851 are directed to critical and exigent circumstances. In this respect, neither statute is a part of the normal assessment and collection process. The one, § 6861, the "ordinary" jeopardy-assessment provision, operates within that usual procedure and while it is underway. The other, § 6851, however, operates separate and apart from that procedure and, indeed, inasmuch as the taxable year is not at an end, or a return for it is not yet overdue, before that procedure can get underway at all.
72
5. It would seem to follow, then, that §§ 6861 and 6851, although they are similar in character and although both are directed at emergency situations, are separate and distinct. Of the two, § 6851 is the more extreme and perilous, for its impact comes in midstream, that is, during the taxable year rather than after its close and a return for it has been filed. See Ludwig Littauer & Co. v. Commissioner, 37 B.T.A. 840, 842 (1938) (reviewed by the Board).
73
6. Because § 6851 is concerned with the situation prior to the overdue date for the filing of the year's return, that is, with premature termination of a taxable period, at a time when the computation of the tax for the full year cannot be made or not yet has been made, it is clear that no deficiency as such can be ascertained, that no notice of deficiency can be issued, and that none is required. These terms and concepts have no sensible application and relationship to the § 6851 procedure.
III
74
The foregoing analysis and conclusion that a notice of deficiency is not required when a taxable period is prematurely terminated under § 6851, despite the Court's disavowal, is confirmed by the legislative history. This history demonstrates that §§ 6851 and 6861, although now consecutively placed in the present Code, are discrete and independent provisions, with the consequences that assessment authority for a termination under § 6851 does not derive from § 6861, as the taxpayers here assert and the Court is now led to believe, and that assessment following termination of a taxable period was not intended to be subject to review by the Tax Court.
75
As is often the case in tax matters, the successive Revenue Acts primarily present the pertinent legislative history.
76
The provision allowing premature termination of a taxable period where collection was feared jeopardized first appeared as § 250(g) of the Revenue Act of 1918, 40 Stat. 1084.10 The language of § 250(g) obviously comports substantially with the language of the current § 6851(a). An assessment for a terminated period was made under the general assessment authority provided by Rev.Stat. § 3182. Judicial review at that time could be obtained only after payment of the tax and by way of a refund suit in the United States district court or in the Court of Claims. Rev.Stat. § 3226. See 28 U.S.C. § 1346(a)(1).
77
Section 6861, on the other hand, evolved independently and initially with the Revenue Act of 1921. It was born as a proviso to § 250(d) of that Act. 42 Stat. 266. Section 250(d) established an administrative appeal procedure for resolution of taxpayer disputes; assessment of a deficiency could not be made pending final decision on the administrative appeal. This deferral, however, was not compelled where the Commissioner determined that collection was in jeopardy; when he so determined, assessment could be made immediately. Despite this introduction by the 1921 Act of the administrative appeal procedure, § 250(g) of the 1918 Act, providing for termination of the taxable period, was continued as s 250(g) of the 1921 Act, 42 Stat. 267, without any change material here and without reference to the newly established administrative appeal procedure. See S.Rep. No. 275, 67th Cong., 1st Sess., 20-21 (1921). And the assessment authority continued to be provided only by Rev.Stat. § 3182.
78
Congress soon recognized that taxpayers might not be convinced of the impartiality of an administrative appeal within the then Bureau of Internal Revenue. Accordingly, by § 900 of the Revenue Act of 1924, 43 Stat. 336, the Board of Tax Appeals was created as an independent agency in the Executive Branch. The taxpayer, prior to payment of his tax, could obtain a review in the Board whenever the Commissioner disagreed with the amount of tax reported. See H.R.Rep. No. 179, 68th Cong., 1st Sess., 7-8 (1924). The Board, however, was given only limited jurisdiction; it was confined to deficiencies in income, estate, and gift taxes and to claims for abatement of deficiencies. Revenue Act of 1924, §§ 900(e), 274, 279, 308, 312, and 324, 43 Stat. 337, 297, 300, 308, 310, and 316. Review of the Commissioner's termination of a taxable period, however, was not cognizable before the Board. Under § 282 of the 1924 Act, 43 Stat. 302, the taxpayer whose taxable period was terminated could avoid immediate collection only by furnishing security that he would make a timely return and pay the tax when due.
79
The 1924 Act also introduced a more precise definition of the term "deficiency" to supplant the definition contained in the 1921 Act.11 The new definition, contained in the 1924 Act's § 273(1) and (2), 43 Stat. 296, is virtually identical to the present definition in § 6211(a) of the 1954 Code and in Treas.Reg. § 301.6211-1, 26 CFR § 301.6211-1 (1975). The committee reports described this new definition in terms that indicate that a deficiency could not be determined until the time for filing the return had arrived, that is, until a date after the close of the taxable year. See H.R.Rep. No. 179, 68th Cong., 1st Sess., 24 (1924); S.Rep. No. 398, 68th Cong., 1st Sess., 30 (1924). There was nothing indicating that the Congress intended that the definition of "deficiency" was to encompass the amount declared due and payable upon the termination of a taxable period. The exception for the situation where collection after the close of the taxable year and after the passing of the due date for the filing of the return would be jeopardized by delay, however, was carried forward to the Board review created by the 1924 Act, and the Commissioner could immediately assess and collect notwithstanding the taxpayer's ability to go to the Board. Revenue Act of 1924, §§ 274(d) and 279, 43 Stat. 297 and 300.
80
The Revenue Act of 1926, 44 Stat. 9, filled some interstices of Board jurisdiction. Direct appeal of Board decisions to the then circuit courts of appeals was provided. § 1001(a), 44 Stat. 109. The Board was given jurisdiction to determine that the taxpayer had overpaid his tax as well as to determine that a deficiency existed. The definition of "deficiency" remained the same. § 273, 44 Stat. 55. Thus, the taxpayer whose taxable period was prematurely terminated still could not go to the Board.
81
The Revenue Acts following the 1926 Act, until and including the Internal Revenue Code of 1939, 53 Stat. pt. 1, effected no significant change in the termination or jeopardy-assessment provisions or in the jurisdiction of the Board of Tax Appeals.
82
The 1954 Code culminated the legislative development of §§ 6861 and 6851 and provided the current section designations. Two minor changes were made in the statutes that are pertinent here, but neither altered the jurisdictional framework of the Tax Court which, by § 504 of the Revenue Act of 1942, 56 Stat. 957, had supplanted the Board of Tax Appeals. The first was the amendment of the termination statute, § 6851, by the addition of its present subsection (b). This permitted the reopening of the terminated taxable period either by the Commissioner or by the taxpayer. See Treas.Reg. §§ 1.6851-1(b) and (c), 26 CFR §§ 1.6851-1(b) and (c) (1975); H.R.Rep. No. 1337, 83d Cong., 2d Sess., A421 (1954); S.Rep. No. 1622, 83d Cong., 2d Sess., 597 (1954). The second change was the addition of § 6863(b)(3) to authorize a stay of the sale of property seized after a jeopardy assessment under § 6861 pending decision by the Tax Court. No similar stay was made explicitly available with respect to the termination provisions of § 6851.
83
This legislative history particularly reinforces two aspects of the conclusions, drawn above, upon analysis of only the language of the presently effective statutes:
84
The first is the inescapable fact that the assessment authority for an amount made "immediately due and payable" under § 6851(a) is not § 6861 but is the general authority granted by § 6201. Indeed, during the time the Revenue Act of 1918 was in effect, that is, until the Revenue Act of 1921 was adopted, only § 6851's predecessor was in existence; the predecessor of § 6861 had not yet appeared. Thus, I disagree with the suggestions contained in Clark v. Campbell, 501 F.2d 108, 121 (CA5 1974), in Rambo v. United States, 492 F.2d 1060, 1064 (CA6 1974), and in Schreck v. United States, 301 F.Supp. 1265, 1273 (D.Md.1969), that the placement of § 6861 in the Code immediately following § 6851 served to establish a new procedure mandatory for a proceeding under § 6851. That approach is expressly foreclosed, in any event, by § 7806(b) of the 1954 Code, 26 U.S.C. § 7806(b), providing that no inference shall be drawn by reason of the location or grouping of any particular section or portion of the tax title of the Code. See United States v. Ryder, 110 U.S. 729, 740, 4 S.Ct. 196, 201, 28 L.Ed. 308 (1884); Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S. 289, 309 n. 12, 95 S.Ct. 2336, 2350, 45 L.Ed.2d 191 (1975). The Commissioner's power to terminate a taxable period under § 6851 and then to assess under § 6201 is not at all dependent upon § 6861, and there is no basis for the incorporation of the notice-of-deficiency requirement of § 6861(b) into § 6851.
85
Not only do §§ 6851 and 6861 have separate and independent origins and dates of birth, but their legislative developments in subsequent years are distinctly different. Dealing with jeopardy situations in disparate ways, the statutes should be considered as independent and not as one provision tied to the requirements of the other.
86
Secondly, the legislative evolution of the two sections and the creation of the Board of Tax Appeals demonstrate that an amount assessed pursuant to a § 6851 termination is not a "deficiency" within the meaning of § 6211. A glance at the 1921 Act reveals the establishment and existence of the administrative appeal which was the predecessor of the later independent review in the Board of Tax Appeals. Section 250(b) of that Act defined "deficiency" as the difference between "the amount already paid" and "that which should have been paid." When a taxable year is prematurely terminated, the tax "which should have been paid" is indeterminable because none was required to have been paid by that time. Thus, the deficiency concept was inapplicable to an assessment made for a terminated period. No notice of deficiency would be issued for the period, and the administrative appeal under the 1921 Act would not be available.
87
Exactly the same analysis applies to the definition of "deficiency" under the 1954 Code. Prior to the end of the taxable year neither the Commissioner nor the taxpayer is able to ascertain the tax imposed by the Code. A "deficiency" cannot be determined before the close of a taxable year. The requirement that a notice of deficiency be issued, therefore, does not apply to a § 6851(a) termination of a taxable period.12
88
I therefore conclude that the Commissioner is not required to issue a notice of deficiency to a taxpayer whose taxable period is terminated pursuant to the provisions of § 6851(a) of the Code. The statutory scheme does not require this, and the legislative history demonstrates that an assessment pursuant to a termination does not give rise to a "deficiency." From this it follows that, as a statutory matter, the Anti-Injunction Act, § 7421(a) of the Code, bars the suits by petitioner Laing and respondent Hall to enjoin the assessment and collection of taxes for their respective terminated taxable periods. This conclusion, of course, is not an end to the cases, for there remain the question of remedy available to persons in their position and the constitutional issue that is thereby raised.
IV
89
The courts that have arrived at a result contrary to the one I reach on the statutory issue have suggested that this result would produce "significant constitutional problems." Rambo v. United States, 492 F.2d, at 1064-1065. See also Schreck v. United States, 301 F.Supp., at 1281. This constitutional reservation has been prompted by the concern that if a notice of deficiency is not required for a terminated taxable period, the taxpayer does not have the benefit of immediate access to the Tax Court.
90
To be sure, as has been noted above, Tax Court jurisdiction to determine liability prior to payment is predicated upon the existence of a "deficiency," within the meaning of § 6211(a), and upon the Commissioner's formal issuance of a notice of deficiency pursuant to § 6212(a). As a result, notices of deficiency have been described as " 'tickets to the tax court.' " Corbett v. Frank, 293 F.2d 501, 502 (CA9 1961). See Mason v. Commissioner of Internal Revenue, 210 F.2d 388 (CA5 1954). But this lack of access to the Tax Court by the taxpayer who finds himself in a terminated taxable period situation does not mean that he is without effective judicial remedy to challenge the Commissioner's action. Lack of access to the Tax Court does not equate with a denial of Fifth Amendment due process if due process is otherwise available. And it is at once apparent that the taxpayer has a variety of remedies to test the validity of the Commissioner's action:
91
First, a refund suit is possible. Once there is a seizure of any property of the taxpayer in satisfaction of the assessment for the terminated period, the taxpayer may file a claim for refund either by filing the formal claim (Form 843) or by making a short-period return and showing an amount due that is less than the amount seized. See Rogan v. Mertens, 153 F.2d 937 (CA9 1946). See also Treas.Reg. § 301.6402-3(a)(1), 26 CFR § 301.6402-3(a)(1) (1975). The Commissioner, of course, has up to six months to process the claim. §§ 6532(a) and 7422(a) of the Code, 26 U.S.C. §§ 6532(a) and 7422(a). Immediately upon denial of the claim, or upon the expiration of six months with no action by the Commissioner,13 the taxpayer may commence suit for refund in the district court or in the Court of Claims. See 28 U.S.C. § 1346(a)(1). The jurisdiction of these courts over a refund suit does not depend upon the existence of a formally asserted "deficiency," as does the jurisdiction of the Tax Court.
92
Second, the taxpayer subject to a § 6851 termination may await the end of his taxable year and then file a full-year return and claim an overpayment and refund and in due course seek relief in court. See Irving v. Gray, 479 F.2d 20 (CA2 1973).
93
Third, the taxpayer again may await the end of the taxable year and file a full-year return. The Commissioner may then determine that additional tax is due and, if so, the statutory definition of a "deficiency" will be met and a notice of deficiency will issue. When this happens, the taxpayer is in a position to seek a redetermination in the Tax Court, contesting the additional tax so asserted or claiming an overpayment for the year.
94
Although a taxpayer whose taxable period is terminated thus may not gain immediate access to the Tax Court, he does have available appropriately prompt avenues of relief principally in the district court or in the Court of Claims. There is, of course, no constitutional requirement that every tax dispute be adjudicable in the Tax Court. In fact, that court's jurisdiction is limited to income, estate, and gift taxes.
95
It must be made clear that, whether the taxpayer whose taxable period has been terminated files a short-period refund claim or one for a full taxable year, he still may sue for refund even if the value of the property seized is less than the amount of the assessment made against him. There is no requirement in this situation that he pay the full amount of the assessment before he may claim and sue for a refund.
96
At this point, Flora v. United States, 357 U.S. 63, 78 S.Ct. 1079, 2 L.Ed.2d 1165 (1958), on rehearing, 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960), deserves comment. In that case the Court held that a federal district court does not have jurisdiction of an action for refund of a part payment made by a taxpayer on an assessment. It ruled that the taxpayer must pay the full amount of the assessment before he may challenge its validity in the court action. Payment of the entire deficiency thus was made a prerequisite to the refund suit. The ruling, however, was tied directly to the jurisdiction of the Tax Court where litigation prior to payment of the tax was the usual order of the day. 362 U.S., at 158-163, 80 S.Ct., at 637-640. The holding thus kept clear and distinct the line between Tax Court jurisdiction and district court jurisdiction. The Court said specifically:
97
"A word should also be said about the argument that requiring taxpayers to pay the full assessments before bringing suits will subject some of them to great hardship. This contention seems to ignore entirely the right of the taxpayer to appeal the deficiency to the Tax Court without paying a cent." Id., at 175, 80 S.Ct., at 646.
98
This passage demonstrates that the full-payment rule applies only where a deficiency has been noticed, that is, only where the taxpayer has access to the Tax Court for redetermination prior to payment. This is the thrust of the ruling in Flora, which was concerned with the possibility, otherwise, of splitting actions between, and overlapping jurisdiction of, the Tax Court and the district court. Id., at 163, 165-167, 176, 80 S.Ct., at 640, 641-642, 646. Where, as here, in these terminated period situations, there is no deficiency and no consequent right of access to the Tax Court, there is and can be no requirement of full payment in order to institute a refund suit. The taxpayer may sue for his refund even if he is unable to pay the full amount demanded upon the termination of his taxable period. Irving v. Gray, 479 F.2d, at 24-25, n. 6; Lewis v. Sandler, 498 F.2d 395, 400 (CA4 1974).
99
I recognize that on occasion the refund procedure may cause some hardship for the terminated taxpayer whose entire assets may be seized and who may be required to wait as long as six months before filing his refund suit. Indeed, this hardship was one of the reasons for establishing the Board of Tax Appeals as a prepayment forum in the first place. See H.R.Rep. No. 179, 68th Cong., 1st Sess., 7 (1924); S.Rep. No. 398, 68th Cong., 1st Sess., 8 (1924).14 It is obvious, of course, that when one taxpayer dishonestly evades his share of the tax burden, that share is shifted to all those who comply with the law. This balance of "hardship" doubtless was in the minds of those who formulated the statutory structure.
100
It has long been established, moreover, that there is no constitutional requirement for a prepayment forum to adjudicate a dispute over the collection of a tax. Phillips v. Commissioner of Internal Revenue, 283 U.S. 589, 595-596, 51 S.Ct. 608, 611, 75 L.Ed. 1289 (1931). There, in an opinion by Mr. Justice Brandeis, the Court unanimously held that the taxing authorities may lawfully seize property for payment of taxes in summary proceedings prior to an adjudication of liability where "adequate opportunity is afforded for a later judicial determination of the legal rights." Id., at 595, 51 S.Ct., at 611. See Fuentes v. Shevin, 407 U.S. 67, 91-92, 92 S.Ct. 1983, 1999-1920, 32 L.Ed.2d 556, and n. 24 (1972).
101
In Phillips the Court noted the availability of two alternative mechanisms for judicial review in that particular situation: a refund action, or immediate redetermination of liability by the Board of Tax Appeals. In response, however, to a complaint by the taxpayer there that if the Board remedy were sought, collection would not be stayed unless a bond were filed, Mr. Justice Brandeis dismissed the contention with the observation:
102
"(I)t has already been shown that the right of the United States to exact immediate payment and to relegate the taxpayer to a suit for recovery is paramount. The privilege of delaying payment pending immediate judicial review, by filing a bond, was granted by the sovereign as a matter of grace solely for the convenience of the taxpayer." 283 U.S., at 599-600, 51 S.Ct., at 612.
103
Thus, the Court made clear that a prepayment forum was not a requirement of due process. I see no reason whatsoever to depart from that rule in these cases, where the taxpayer may file an action for refund after at most six months from the seizure of his assets or other action taken by the IRS under § 6851.
104
Accordingly, I dissent. I would affirm the judgment of the United States Court of Appeals for the Second Circuit in No. 73-1808, and I would reverse the judgment of the United States Court of Appeals for the Sixth Circuit in No. 74-75 and remand that case to the United States District Court for the Western District of Kentucky with directions to dismiss the complaint.
1
Section 6851(a)(1) provides:
"If the Secretary or his delegate finds that a taxpayer designs quickly to depart from the United States or to remove his property therefrom, or to conceal himself or his property therein, or to do any other act tending to prejudice or to render wholly or partly ineffectual proceedings to collect the income tax for the current or the preceding taxable year unless such proceedings be brought without delay, the Secretary or his delegate shall declare the taxable period for such taxpayer immediately terminated, and shall cause notice of such finding and declaration to be given the taxpayer, together with a demand for immediate payment of the tax for the taxable period so declared terminated and of the tax for the preceding taxable year or so much of such tax as is unpaid, whether or not the time otherwise allowed by law for filing return and paying the tax has expired; and such taxes shall thereupon become immediately due and payable. In any proceeding in court brought to enforce payment of taxes made due and payable by virtue of the provisions of this section, the finding of the Secretary or his delegate, made as herein provided, whether made after notice to the taxpayer or not, shall be for all purposes presumptive evidence of jeopardy."
2
Section 6861(a) provides for the immediate assessment of deficiencies whose assessment or collection would otherwise be in jeopardy:
"If the Secretary or his delegate believes that the assessment or collection of a deficiency, as defined in section 6211, will be jeopardized by delay, he shall, notwithstanding the provisions of section 6213(a), immediately assess such deficiency (together with all interest, additional amounts, and additions to the tax provided for by law), and notice and demand shall be made by the Secretary or his delegate for the payment thereof."
3
The Code provides that a § 6851 termination will be ordered by "the Secretary or his delegate," § 6851(a). The Regulations provide that the District Director is in all cases authorized to make the required findings and order the termination. Treas.Reg. § 1.6851-1(a)(1), 26 CFR § 1.6851-1(a)(1) (1975).
4
A deficiency notice is of import primarily because it is a jurisdictional prerequisite to a taxpayer's suit in the Tax Court for redetermination of his tax liability. See infra, at 171.
5
Petitioner Laing has not denied ownership of the currency. Tr. of Oral Arg. 64; Tr. of Oral Rearg. 48.
6
Petitioner Laing also has filed suit for refund in the United States District Court for the District of Vermont. Trial is being delayed, pursuant to stipulation of the parties, pending our decision in the present case.
7
Rambo is before us as No. 73-2005, cert. pending.
8
Cert. pending, sub nom. United States v. Clark, No. 74-722.
9
The developing conflict among the federal courts was recognized in Willits v. Richardson, 497 F.2d 240, 246 n. 4 (CA5 1974), and Jones v. Commissioner, 62 T.C. 1, 2-3 (1974).
10
Counsel for respondent Hall asserted that the IRS also "seized $57 from her bank account," and that it would, or did, seize her paycheck. Tr. of Oral Arg. 46. Counsel also stated that $77 was later refunded to Mrs. Hall. Id., at 57. We are not advised how the latter amount was computed.
11
A corporate surety bond in the amount of $1,650 was duly filed.
12
The precise findings required are: (1) that the taxpayer designs quickly to depart from the United States or to remove his property therefrom; or (2) that he intends to conceal himself or his property therein; or (3) that he is about to do any other act tending to prejudice or render wholly or partly ineffectual proceedings to collect income tax for the current or preceding year. § 6851(a). See n. 1, supra.
13
The "assessment," essentially a bookkeeping notation, is made when the Secretary or his delegate establishes an account against the taxpayer on the tax rolls. 26 U.S.C. § 6203. In both of the cases at bar, the assessments were made immediately upon termination of the taxpayers' taxable years.
In the past, the Government has argued that § 6851 contained its own assessment authority, see Schreck v. United States, 301 F.Supp. 1265 (D.Md.1969), but it has since abandoned that position, see Lisner v. McCanless, 356 F.Supp. 398, 401 (D.Ariz.1973), and it does not press the point here. Cf. n. 17, infra.
14
A tax deficiency whose collection is not in jeopardy is collected according to the procedures of §§ 6211-6216 of the Code, 26 U.S.C. §§ 6211-6216 (1970 ed. and Supp. IV). Under § 6213(a), the taxpayer ordinarily has 90 days after mailing of his deficiency notice in which to file his claim with the Tax Court.
15
The rule against sale of the taxpayer's property has three limited exceptions: the property can be sold (1) if the taxpayer consents to the sale; (2) if the expenses of maintenance of the property will greatly reduce the net proceeds of its sale; or (3) if the property is perishable. §§ 6863(b)(3)(B), 6336.
16
This follows because the findings necessary to terminate a taxable year under § 6851 will always justify a finding that the assessment of the taxes owed will be "jeopardized by delay." See nn. 1 and 2, supra.
17
Since it does not view the termination as creating a deficiency, the Government would apply neither the ordinary nor the jeopardy deficiency assessment procedures. Under the Government's approach, the taxes due upon a jeopardy termination are simply assessed under the general assessment section of the Code, § 6201, 26 U.S.C. § 6201 (1970 ed. and Supp. IV).
The Government further argues that the power to assess jeopardy terminations is derived solely from the general assessment section. While the taxpayers argue that the power to assess jeopardy terminations comes from the jeopardy-assessment provision, § 6861, rather than the general assessment provision, § 6201, we need not resolve that question here. Even if the Government is correct that the assessment power comes from § 6201, the procedural rules of § 6861 et seq. govern, on their face, when the assessment is of a deficiency whose collection is in jeopardy. See n. 2, supra. Likewise, the procedural rules of §§ 6211-6216 govern assessments empowered by § 6201 when the assessment is of a deficiency whose collection is not in jeopardy. See n. 14, supra, and accompanying text. Cf. n. 13, supra.
18
A deficiency is defined as follows:
"(a) In general.
"For purposes of this title in the case of income, estate and gift taxes and excise taxes, imposed by subtitles A and B, chapters 42 and 43, the term 'deficiency' means the amount by which the tax imposed by subtitle A or B or chapter 42 or 43, exceeds the excess of
"(1) the sum of
"(A) the amount shown as the tax by the taxpayer upon his return, if a return was made by the taxpayer and an amount was shown as the tax by the taxpayer thereon, plus
"(B) the amounts previously assessed (or collected without assessment) as a deficiency, over
"(2) the amount of rebates, as defined in subsection (b)(2), made." 26 U.S.C. § 6211(a) (1970 ed. and Supp. IV).
See also Treas. Reg. § 301.6211-1(a), 26 CFR § 301.6211-1(a) (1975). Thus a deficiency does not include all taxes owed by a taxpayer, but only those that are both owed and not reported. Cf. n. 19, infra.
19
To the extent the tax owing upon a jeopardy termination has been reported by the taxpayer either because it was reported for the preceding year, or because the taxpayer immediately filed a § 443 return no deficiency is created, even if the taxes reported have not yet been paid. See n. 18, supra. Of course, the procedures for assessing deficiencies whose collection is in jeopardy, § 6861 et seq., would not apply to such monies. The taxpayer has conceded owing the taxes he has reported, and those taxes, if unpaid, may be directly obtained by levy without according any prepayment access to the Tax Court. The levy provision, § 6331, contains provisions for the expedited collection of taxes owing in jeopardy situations.
20
The broad dictum to the contrary in the Board of Tax Appeals' 1938 opinion in Ludwig Littauer & Co. v. Commissioner, 37 B.T.A. 840, 842, upon which the Government in part relies, was apparently rejected by the Tax Court in the Sanzogno opinion. The majority recognized in Sanzogno that "(i)t is possible that our holding is in some conflict with the rationale of our opinion in Ludwig Littauer & Co.," 60 T.C., at 325 n. 2, and Judge Simpson wrote separately to suggest that the earlier precedent should have been given its formal burial then and there. In a subsequent § 6851 case, Jones v. Commissioner, 62 T.C. 1 (1974), the Tax Court avoided the broad rationale of Littauer and instead held simply that a termination letter was not a deficiency notice and that without a deficiency notice a taxpayer cannot litigate his claim in the Tax Court.
21
See 9 J. Mertens, Law of Federal Income Taxation § 49.130 (J. Malone rev. 1971); Odell, Assessments: What are they Ordinary? Immediate? Jeopardy?, 2 N.Y.U. 31st Inst. on Fed. Tax. 1495, 1520, 1522 (1973).
The Government argues that a deficiency cannot be created by a jeopardy termination because a notice of deficiency for a terminated year would make no sense. This is so, it is argued, because the year is not really over and may be reopened pursuant to § 6851(b). Brief for United States 24-25. The Government ignores the effect of a § 6851 termination: for the taxpayer the "taxable year" is complete and taxes are immediately owing for that short year. §§ 441(b)(3), 443(a)(3), 6851. The deficiency for that period can easily be computed under § 6211 and notice of that deficiency issued. If the short year is thereafter reopened and again terminated, a new notice of deficiency can, and under our view of § 6861 et seq. must, be issued. § 6861(b).
The Government's argument, Brief for United States 25-26, that Tax Court jurisdiction in the case of a terminated year that is subject to reopening is inappropriate must likewise fail. We see no reason why the Tax Court, applying normal tax principles should be less capable of determining the tax owing for the short year than the district court or Court of Claims, which, under the Government's theory, would make that determination. See also § 6861(c).
22
The Government repeatedly conceded at oral argument that adoption of the taxpayers' theory would result in no significant injury to the Government other than the loss of some of the cases now pending in the lower courts. Tr. of Oral Arg. 9-10, 18, 21, 23, 24, 28, 30. This concession completely rebuts the dissent's claim that our decision today deprives the IRS "of a device it obviously needs in combatting questionable tax practices . . . ." Post, at 189..
23
That statute was almost identical to § 6201 of the present Code.
24
The jeopardy-assessment procedure, as is indicated, supra, at p. 170, is an exception to the normal deficiency-assessment mechanism, which allows a taxpayer the prepayment remedy of withholding the taxes claimed by the Government until after a final judicial determination of liability. Of course, under the 1918 Act a taxpayer who sought to place in jeopardy collection of his taxes could be forestalled under the jeopardy-termination provision of § 250(g), which enabled the IRS to declare immediately owing the tax for the present or previous taxable year. That the jeopardy-assessment procedures, born of necessity to reconcile the prepayment remedy with the occasional need for expedited collections of taxes, did not exist to govern assessments after jeopardy terminations under the 1918 Act does not mean, of course, that the procedures, once formulated, were not intended to cover assessments of deficiencies created by jeopardy terminations as well as all other jeopardy assessments.
The Government suggests that the power to assess jeopardy terminations cannot derive from the jeopardy-assessment section because the jeopardy-termination provision existed in the 1918 Act before any provision was made for jeopardy assessments. Brief for United States 40-42. Since in our view the source of the power to assess jeopardy terminations is irrelevant in determining whether the procedures for jeopardy assessments apply to assessments after jeopardy terminations, see n. 17, supra, this argument is of no consequence.
25
Examination of the entire text of § 250, including the termination provision, § 250(g), strongly suggests that in the 1921 Act the word "deficiency" was used in its colloquial sense to mean the amount of tax remaining unpaid at the time the tax was due, and that no significance was attached to whether a return had been filed at that time.
26
As a final reason for adopting their construction of the Code, the taxpayers argue that the Government's reading would violate the Due Process Clause of the Fifth Amendment. The basis for this claim is that under the assessment procedures of § 6861 et seq. the taxpayer is guaranteed access to the Tax Court within 60 days, while under the procedures suggested by the Government the taxpayer in a termination case could be denied access to a judicial forum for up to six months. See supra, at 173. Cf. Phillips v. Commissioner of Internal Revenue, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 1289 (1931). Moreover, the taxpayers argue, under the procedures of § 6861 et seq. the property seized may not be sold until after a final determination by the Tax Court, § 6863, while under the Government's theory the property seized in a jeopardy termination may be immediately subject to sale. Because we agree with the taxpayers' construction of the Code, we need not decide whether the procedures available under the Government's theory would, in fact, violate the Constitution.
The taxpayers do not question here, and we do not consider whether, even if the jeopardy-assessment procedures of § 6861 et seq. are followed, due process demands that the taxpayer in a jeopardy-assessment situation be afforded a prompt post-assessment hearing at which the Government must make some preliminary showing in support of the assessment. See North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 607, 95 S.Ct. 719, 722, 42 L.Ed.2d 751 (1975); Mitchell v. W. T. Grant Co., 416 U.S. 600, 610-611, 94 S.Ct. 1895, 1901-1902, 40 L.Ed.2d 406 (1974); Fuentes v. Shevin, 407 U.S. 67, 72, 92 S.Ct. 1983, 1990, 32 L.Ed.2d 556 (1972).
27
The Anti-Injunction Act generally bars suits to enjoin the assessment or collection of taxes. But § 7421(a) is subject to several exceptions, one pertinent here: it does not forbid suits to enjoin the assessment of a deficiency, or a levy or proceeding in court for its collection, if the taxpayer has not been mailed a notice of deficiency and afforded an opportunity to secure a final Tax Court determination. § 6213(a). On the other hand, this exception to the Anti-Injunction Act does not apply to jeopardy assessments made "as . . . provided in" § 6861. Thus jeopardy assessments ordinarily may not be enjoined. When, however, the IRS fails to follow the procedures of § 6861 et seq., as in these cases, it is not assessing "as . . . provided in" § 6861, and the § 6861 exception to § 6213(a) is inapplicable. In such cases, § 6213(a)'s exception to the Anti-Injunction Act becomes operative, and a suit to enjoin the collection of the jeopardy deficiency may be brought.
In No. 73-1808, petitioner Laing brought suit approximately three weeks after the jeopardy termination and assessment. Since the IRS has up to 60 days after a jeopardy assessment to mail the notice of deficiency, § 6861(b), no action had yet been taken that was not in conformity with the jeopardy-assessment procedures, and the suit could properly have been dismissed at that time as barred by the Anti-Injunction Act. When 60 days passed without the mailing of a notice of deficiency, however, petitioner amended his complaint to include this violation of the procedures of § 6861. App. in No. 73-1808, p. 19. At that time the IRS was violating the required procedures, the Anti-Injunction Act bar was no longer applicable, and the District Court had jurisdiction to determine petitioner's claim. Accordingly, its dismissal of Laing's action was improper.
Respondent Hall in No. 74-75 likewise brought suit before the 60-day grace period had expired (although the 60-day period subsequently lapsed without the issuance of the required notice of deficiency). Mrs. Hall alleged, however, that the IRS was offering her automobile for sale before issuing her a notice of deficiency and affording her the opportunity to litigate in the Tax Court, an action that violated § 6863. Since the offering for sale was not in conformity with the jeopardy-assessment procedures of § 6861 et seq., the Anti-Injunction Act bar was inapplicable, and the levy and subsequent sale could properly be enjoined under § 6213(a).
*
The dissenting opinion would require no justification for even a six-month delay, apparently on the view that tax seizures are somehow different from other deprivations for due process purposes. I am aware of no precedent drawing that distinction. Phillips v. Commissioner of Internal Revenue, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 1289 (1931), concerned a procedure that offered taxpayers an alternative of seeking a prompt determination before the Board of Tax Appeals, the predecessor to the Tax Court, before payment and without posting any bond. Id., at 598, 51 S.Ct., at 612. The bond referred to in the dissenting opinion, post, at 210-211, was required pending review in the court of appeals of the Board of Tax Appeals' decision.
1
Mr. Hall evidently was convicted. Tr. of Oral Arg. 45.
2
See n. 10, infra.
3
The reference in the statute to the "preceding taxable year" enables the Commissioner to exercise the termination power after the close of the preceding year but prior to the filing of the return for that year. See, e. g., Irving v. Gray, 479 F.2d 20, 25 (CA2 1973); United States v. Johansson, 62-1 U.S.T.C. 83197 (S.D.Fla.1961), aff'd in part and remanded, 336 F.2d 809 (CA5 1964).
4
A return for a taxable period terminated under § 6851(a), and called for by § 443(a)(3), is to be distinguished, despite the confusing use of the term "taxable year" in § 443(a)(3), from a return for what is a true and self-constituted short period of the kind to which § 443(a)(1) and (2) relate, that is, the interim period occasioned by a change in the taxpayer's annual accounting period, or when the taxpayer is in existence during only part of the entire taxable year.
5
The Government, on at least one occasion in the past has contended that § 6851 did contain its own assessment authority. See Schreck v. United States, 301 F.Supp. 1265, 1276 (D.Md.1969). In the present cases, however, the Government states that the statute does not go so far. Brief for United States 20.
6
Section 6201(a) reads in pertinent part:
"The Secretary or his delegate is authorized and required to make the inquiries, determinations, and assessments of all taxes (including interest, additional amounts, additions to the tax, and assessable penalties) imposed by this title, or accruing under any former internal revenue law, which have not been duly paid by stamp at the time and in the manner provided by law."
Respondent Hall suggests that § 6201(a) by its terms is confined to taxes paid by stamp. I read the statute otherwise, for I regard the reference to payment effected "by stamp" as exclusive, rather than restrictive, of the assessment power.
7
Section 6861(a) reads:
"If the Secretary or his delegate believes that the assessment or collection of a deficiency, as defined in section 6211, will be jeopardized by delay, he shall, notwithstanding the provisions of section 6213(a), immediately assess such deficiency (together with all interest, additional amounts, and additions to the tax provided for by law), and notice and demand shall be made by the Secretary or his delegate for the payment thereof."
8
"That section nineteen (of the Act of July 13, 1866, 14 Stat. 152) is hereby amended by adding the following thereto: 'And no suit for the purpose of restraining the assessment or collection of tax shall be maintained in any court.' "
9
I do not foreclose the possibility that in some case the Service's action in terminating a taxable period would come within the Williams Packing exception if the termination were so fictitious and without foundation that under no circumstances could the Government prevail on the merits. This view was taken by the Fifth Circuit in Willits v. Richardson, 497 F.2d 240 (1974). See generally Note, Use of I.R.C. Section 6851: Exaction in the Guise of a Tax?, 6 Loyola U.L.J. 139, 151-158 (1975).
10
"If the Commissioner finds that a taxpayer designs quickly to depart from the United States or to remove his property therefrom, or to conceal himself or his property therein, or to do any other act tending to prejudice or to render wholly or partly ineffectual proceedings to collect the tax for the taxable year then last past or the taxable year then current unless such proceedings be brought without delay, the Commissioner shall declare the taxable period for such taxpayer terminated at the end of the calendar month then last past and shall cause notice of such finding and declaration to be given the taxpayer, together with a demand for immediate payment of the tax for the taxable period so declared terminated and of the tax for the preceding taxable year or so much of said tax as is unpaid, whether or not the time otherwise allowed by law for filing return and paying the tax has expired; and such taxes shall thereupon become immediately due and payable. In any action or suit brought to enforce payment of taxes made due and payable by virtue of the provisions of this subdivision the finding of the Commissioner, made as herein provided, whether made after notice to the taxpayer or not, shall be for all purposes presumptive evidence of the taxpayer's design."
The presence of § 250(g) so soon after the inception of the modern federal income tax in 1913, see the Sixteenth Amendment and the Tariff Act of Oct. 3, 1913, § II, 38 Stat. 166, discloses Congress' early and continuing concern with tax evasion.
11
Section 250(b) of the Revenue Act of 1921, 42 Stat. 265, had defined "deficiency" as the difference between "the amount already paid" and "that which should have been paid."
12
The Tax Court itself consistently has denied jurisdiction on its part over a period terminated under § 6851(a), and has done so on the ground that the termination results in "but a provisional statement of the amount which must be presently paid as a protection against the impossibility of collection." Ludwig Littauer & Co. v. Commissioner, 37 B.T.A. 840, 842 (1938) (reviewed by the Board). See Puritan Church The Church of America v. Commissioner, 10 T.C.M. 485, 494 (1951), aff'd, 93 U.S.App.D.C. 129, 209 F.2d 306 (1953), cert. denied, 347 U.S. 975, 74 S.Ct. 787, 98 L.Ed. 1115 (1954); Jones v. Commissioner, 62 T.C. 1 (1974). See also Page v. Commissioner of Internal Revenue, 297 F.2d 733 (CA8 1962).
13
The six-month period, of course, is the maximum, not the minimum. Petitioner Laing, in fact, filed a claim for refund on March 1, 1973. It was denied just eight days later, on March 9. He was then in a position to sue and did so. Brief for Petitioner Laing 34 n. 11; Brief for United States 7 n. 4.
The maximum six months' wait, in order to accommodate the administrative operation, surely is not per se unconstitutional. See Dodge v. Osborn, 240 U.S. 118, 122, 36 S.Ct. 275, 276, 60 L.Ed. 557 (1916).
14
I have no hesitancy in recognizing that there is a possibility of abuse in the jeopardy-assessment system. See Note, Narcotics Offenders and the Internal Revenue Code: Sheathing the Section 6851 Sword, 28 Vand.L.Rev. 363 (1975); Note, Jeopardy Terminations Under Section 6851: The Taxpayer's Rights and Remedies, 60 Iowa L.Rev. 644 (1975); Silver, Terminating the Taxpayer's Taxable Year: How IRS Uses it Against Narcotics Suspects, 40 J. of Tax. 110 (1974); Note, Jeopardy Assessment: The Sovereign's Stranglehold, 55 Geo.L.J. 701 (1967); Willits v. Richardson, 497 F.2d 240, 246 (CA5 1974). But this possibility is also present with respect to a jeopardy assessment under § 6861. And it is present, too, perhaps with even greater force, in those tax situations (excise, FICA, etc.) where jurisdiction of the Tax Court does not exist and the taxpayer has no ability to litigate prior to payment or seizure. These differing degrees of tax comfort, in my view, do not render the system, or parts of it, unconstitutional. Prior to 1924, as has been pointed out, there was no prepayment forum at all.
I do not condone abuse in tax collection. The records of these two cases do not convincingly demonstrate abuse, although Mrs. Hall's situation, as it developed after the initial critical moves by the Service, makes one wonder. I have no such concern whatsoever about Mr. Laing. In any event, abuse is subject to rectification otherwise, and the Congress and the courts surely will not be unsympathetic. Cf. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
| 34
|
423 U.S. 212
96 S.Ct. 498
46 L.Ed.2d 450
Pearl BARRETT, Petitioner,v.UNITED STATES.
No. 74-5566.
Argued Nov. 4, 1975.
Decided Jan. 13, 1976.
Syllabus
The provision of the Gun Control Act of 1968, 18 U.S.C. § 922(h), making it unlawful for a convicted felon, inter alia, "to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce," held to apply to a convicted felon's intrastate purchase from a retail dealer of a firearm that previously, but independently of the felon's receipt, had been transported in interstate commerce from the manufacturer to a distributor and then from the distributor to the dealer. Pp. 215-225.
504 F.2d 629, affirmed.
Thomas A. Schaffer, Cincinnati, Ohio, for petitioner.
Robert B. Reich, Dept. of Justice, Washington, D.C., for respondent, pro hac vice, by special leave of Court.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
Petitioner Pearl Barrett has been convicted by a jury in the United States District Court for the Eastern District of Kentucky of a violation of 18 U.S.C. § 922(h),1 a part of the Gun Control Act of 1968, Pub.L. 90-618, 82 Stat. 1213, amending the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. 90-351, 82 Stat. 197, enacted earlier the same year. The issue before us is whether § 922(h) has application to a purchaser's intrastate acquisition of a firearm that previously, but independently of the purchaser's receipt, had been transported in interstate commerce from the manufacturer to a distributor and then from the distributor to the dealer.
2
* In January 1967, petitioner was convicted in a Kentucky state court of housebreaking. He received a two-year sentence. On April 1, 1972, he purchased a .32-caliber Smith & Wesson revolver over the counter from a Western Auto Store in Booneville, Ky., where petitioner resided.2 The vendor, who was a local dentist as well as the owner of the store, and who was acquainted with petitioner, was a federally licensed firearms dealer. The weapon petitioner purchased had been manufactured in Massachusetts, shipped by the manufacturer to a distributor in North Carolina, and then received by the Kentucky dealer from the distributor in March 1972, a little less than a month prior to petitioner's purchase. The sale to Barrett was the firearm's first retail transaction. It was the only handgun then in the dealer's stock. Tr. 36-47.
3
Within an hour after the purchase petitioner was arrested by a county sheriff for driving while intoxicated. The firearm, fully loaded, was on the floorboard of the car on the driver's side.
4
Petitioner was charged with a violation of § 922(h). He pleaded not guilty. At the trial no evidence was presented to show that Barrett personally had participated in any way in the previous interstate movement of the firearm. The evidence was merely to the effect that he had purchased the revolver out of the local dealer's stock, and that the gun, having been manufactured and then warehoused in other States, had reached the dealer through interstate channels. At the close of the prosecution's case, Barrett moved for a directed verdict of acquittal on the ground that § 922(h) was not applicable to his receipt of the firearm.3 The motion was denied. The court instructed the jury that the statute's interstate requirement was satisfied if the firearm at some time in its past had traveled in interstate commerce.4 A verdict of guilty was returned. Petitioner received a sentence of three years, subject to the immediate parole eligibility provisions of 18 U.S.C. § 4208(a)(2).
5
On appeal, the Court of Appeals affirmed by a divided vote on the question before us. 504 F.2d 629 (CA6 1974). Because of the importance of the issue and because the Sixth Circuit's decision appeared to have overtones of conflict with the opinion and decision of the United States Court of Appeals for the Eighth Circuit in United States v. Ruffin, 490 F.2d 557 (1974), we granted certiorari limited to the § 922(h) issue. 420 U.S. 923, 95 S.Ct. 1117, 43 L.Ed.2d 392 (1975).
II
6
Petitioner concedes that Congress, under the Commerce Clause of the Constitution, has the power to regulate interstate trafficking in firearms. Brief for Petitioner 7. He states, however, that the issue before us concerns the scope of Congress' exercise of that power in this statute. He argues that, in its enactment of § 922(h), Congress was interested in "the business of gun traffic," Brief for Petitioner 11; that the Act was meant "to deal with businesses, not individuals per se" (emphasis in original), id., at 14, that is, with mail-order houses, out-of-state sources, and the like; and that the Act was not intended to, and does not, reach an isolated intrastate receipt, such as Barrett's transaction, where the handgun was sold within Kentucky by a local merchant to a local resident with whom the merchant was acquainted, and where the transaction "has no apparent connection with interstate commerce," despite the weapon's manufacture and original distribution in States other than Kentucky. Id., at 6.
7
We feel, however, that the language of § 922(h), the structure of the Act of which § 922(h) is a part, and the manifest purpose of Congress are all adverse to petitioner's position.
8
A. Section 922(h) pointedly and simply provides that it is unlawful for four categories of persons, including a convicted felon, "to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." The quoted language is without ambiguity. It is directed unrestrictedly at the felon's receipt of any firearm that "has been" shipped in interstate commerce. It contains no limitation to a receipt which itself is part of the interstate movement. We therefore have no reason to differ with the Court of Appeals' majority's conclusion that the language "means exactly what it says." 504 F.2d, at 632.
9
It is to be noted, furthermore, that while the proscribed act, "to receive any firearm," is in the present tense, the interstate commerce reference is in the present perfect tense, denoting an act that has been completed. Thus, there is no warping or stretching of language when the statute is applied to a firearm that already has completed its interstate journey and has come to rest in the dealer's showcase at the time of its purchase and receipt by the felon. Congress knew the significance and meaning of the language it employed. It used the present perfect tense elsewhere in the same section, namely, in § 922(h)(1) (a person who "has been convicted"), and in § 922(h)(4) (a person who "has been adjudicated" or who "has been committed"), in contrast to its use of the present tense ("who is") in §§ 922(h)(1), (2), and (3). The statute's pattern is consistent and no unintended misuse of language or of tense is apparent.
10
Had Congress intended to confine § 922(h) to direct interstate receipt, it would have so provided, just as it did in other sections of the Gun Control Act. See § 922(a)(3) (declaring it unlawful for a nonlicensee to receive in the State where he resides a firearm purchased or obtained "by such person outside that State"); § 922(j) (prohibiting the receipt of a stolen firearm "moving as . . . interstate . . . commerce"); and § 922(k) (prohibiting the receipt "in interstate . . . commerce" of a firearm the serial number of which has been removed). Statutes other than the Gun Control Act similarly utilize restrictive language when only direct interstate commerce is to be reached. See, e. g., 18 U.S.C. §§ 659, 1084, 1201, 1231, 1951, 1952, 2313, 2315, and 2421, and 15 U.S.C. § 77e. As we have said, there is no ambiguity in the words of § 922(h), and there is no justification for indulging in uneasy statutory construction. United States v. Wiltberger, 5 Wheat. 76, 95-96, 5 L.Ed. 37 (1820); Yates v. United States, 354 U.S. 298, 305, 77 S.Ct. 1064, 1069, 1 L.Ed.2d 1356 (1957); Huddleston v. United States, 415 U.S. 814, 831, 94 S.Ct. 1262, 1271, 39 L.Ed.2d 782 (1974). See United States v. Sullivan, 332 U.S. 689, 696, 68 S.Ct. 331, 335, 92 L.Ed. 297 (1948). There is no occasion here to resort to a rule of lenity, see 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), for there is no ambiguity that calls for a resolution in favor of lenity. A criminal statute, to be sure, is to be strictly construed, but it is "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); Huddleston v. United States, 415 U.S., at 831, 94 S.Ct., at 1271.
11
B. The very structure of the Gun Control Act demonstrates that Congress did not intend merely to restrict interstate sales but sought broadly to keep firearms away from the persons Congress classified as potentially irresponsible and dangerous. These persons are comprehensively barred by the Act from acquiring firearms by any means. Thus, § 922(d) prohibits a licensee from knowingly selling or otherwise disposing of any firearm (whether in an interstate or intrastate transaction, see Huddleston v. United States, 415 U.S., at 833, 94 S.Ct., at 1273) to the same categories of potentially irresponsible persons. If § 922(h) were to be construed as petitioner suggests, it would not complement § 922(d), and a gap in the statute's coverage would be created, for then, although the licensee is prohibited from selling either interstate or intrastate to the designated person, the vendee is not prohibited from receiving unless the transaction is itself interstate.
12
Similarly, § 922(g) prohibits the same categories of potentially irresponsible persons from shipping or transporting any firearm in interstate commerce or, see 18 U.S.C. § 2(b), causing it to be shipped interstate. Petitioner's proposed narrow construction of § 922(h) would reduce that section to a near redundancy with § 922(g), since almost every interstate shipment is likely to have been solicited or otherwise caused by the direct recipient. That proposed narrow construction would also create another anomaly: if a prohibited person seeks to buy from his local dealer a firearm that is not currently in the dealer's stock, and the dealer then orders it interstate, that person violates § 922(h), but under the suggested construction, he would not violate § 922(h) if the firearm were already on the dealer's shelf.
13
We note, too, that other sections of the Act clearly apply to and regulate intrastate sales of a gun that has moved in intrastate commerce. For example, the licensing provisions, §§ 922(a)(1) and 923(a), apply to exclusively intrastate, as well as interstate, activity. Under § 922(d), as noted above, a licensee may not knowingly sell a firearm to any prohibited person, even if the sale is intrastate. Huddleston v. United States, 415 U.S., at 833, 94 S.Ct., at 1273. Sections 922(c) and (a)(6), relating, respectively, to a physical presence at the place of purchase and to the giving of false information, apply to intrastate as well as to interstate transactions. So, too, do § 922(b)(2) and (5).
14
Construing § 922(h) as applicable to an intrastate retail sale that has been preceded by movement of the firearm in interstate commerce is thus consistent with the entire pattern of the Act. To confine § 922(h) to direct interstate receipts would result in having the Gun Control Act cover every aspect of intrastate transactions in firearms except receipt. This, however, and obviously, is the most crucial of all. Congress surely did not intend to except from the direct prohibitions of the statute the very act it went to such pains to prevent indirectly, through complex provisions, in the other sections of the Act.
15
C. The legislative history is fully supportive of our construction of § 922(h). The Gun Control Act of 1968 was an amended and, for present purposes, a substantially identical version of Title IV of the Omnibus Crime Control and Safe Streets Act of 1968. Each of the statutes enlarged and extended the Federal Firearms Act, 52 Stat. 1250 (1938). Section 922(h), although identical in its operative phrase with § 2(f) of the Federal Firearms Act, expanded the categories of persons prohibited from receiving firearms.5 The new Act also added many prophylactic provisions, hereinabove referred to, governing intrastate as well as interstate transactions. See Zimring, Firearms and Federal Law: The Gun Control Act of 1968, 4 J. Legal Studies 133 (1975). But the 1938 Act, it was said, was designed "to prevent the crook and gangster, racketeer and fugitive from justice from being able to purchase or in any way come in contact with firearms of any kind." S.Rep.No. 1189, 75th Cong., 1st Sess., 33 (1937). Nothing we have found in the committee reports or hearings on the 1938 legislation indicates any intention on the part of Congress to confine § 2(f) to direct interstate receipt of firearms.
16
The history of the 1968 Act reflects a similar concern with keeping firearms out of the hands of categories of potentially irresponsible persons, including convicted felons. Its broadly stated principal purpose was "to make it possible to keep 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). See also 114 Cong.Rec. 13219 (1968) (remarks by Sen. Tydings); Huddleston v. United States, 415 U.S., at 824-825, 94 S.Ct., at 1268-1269. Congressman Celler, the House Manager, expressed the same concern: "This bill seeks to maximize the possibility of keeping firearms out of the hands of such persons." 114 Cong.Rec. 21784 (1968); Huddleston v. United States, 415 U.S., at 828, 94 S.Ct., at 1270. In the light of this principal purpose, Congress could not have intended that the broad and unambiguous language of § 922(h) was to be confined, as petitioner suggests, to direct interstate receipts. That suggestion would remove from the statute the most usual transaction, namely, the felon's purchase or receipt from his local dealer.
III
17
Two statements of this Court in past cases, naturally relied upon by petitioner, deserve mention. The first is an observation made over 30 years ago in reference to the 1938 Act's § 2(f), the predecessor of § 922(h):
18
"Both courts below held that the offense created by the Act is confined to the receipt of firearms or ammunition as a part of interstate transportation and does not extend to the receipt, in an intrastate transaction, of such articles which, at some prior time, have been transported interstate. The Government agrees that this construction is correct." Tot v. United States, 319 U.S. 463, 466, 63 S.Ct. 1241, 1244, 87 L.Ed. 1519 (1943).
19
In that case, the Court held that the presumption contained in § 2(f), to the effect that "the possession of a firearm or ammunition by any such person (one convicted of a crime of violence or a fugitive from justice) shall be presumptive evidence that such firearm or ammunition was shipped or transported or received, as the case may be, by such person in violation of this Act," was violative of due process.
20
The quoted observation, of course, is merely a recital as to what the District Court and the Court of Appeals in that case had held and a further statement that the Government had agreed that the construction by the lower courts was correct. Having made this observation, the Court then understandably moved on to the only issue in Tot, namely, the validity of the statutory presumption. The fact that the Government long ago took a narrow position on the reach of the 1938 Act may not serve to help its posture here, when it seemingly argues to the contrary, but it does not prevent the Government from arguing that the current gun control statute is broadly based and reaches a purchase such as that made by Barrett.6
21
The second statement is more recent and appears in United States v. Bass, supra.7 The Bass comment, of course, is dictum, for Bass had to do with a prosecution under 18 U.S.C.App. § 1202(a), a provision which was part of Title VII, not of Title IV, of the Omnibus Crime Control and Safe Streets Act of 1968, as amended. Section 1202(a) concerned any member of stated categories of persons "who receives, possesses, or transports in commerce or affecting commerce . . . any firearm." The Government contended that the statute did not require proof of a connection with interstate commerce. The Court held, however, that the statute was ambiguous and that, therefore, it must be read to require such a nexus. In so holding, the Court noted the connection between Title VII and Title IV, and observed that although subsections of the two Titles addressed their prohibitions to some of the same people, each also reached groups not reached by the other. Then followed the dictum in question. The Court went on to state:
22
"While the reach of Title IV itself is a question to be decided finally some other day, the Government has presented here no learning or other evidence indicating that the 1968 Act changed the prior approach to the 'receipt' offense." 404 U.S., at 343, n. 10, 92 S.Ct., at 520.
23
The Bass dictum was just another observation made in passing as the Court proceeded to consider § 1202(a). The observation went so far as to intimate that Title IV was to be limited even with respect to a transaction possessing an interstate commerce nexus, a situation that Barrett here concedes is covered by § 922(h). In any event, the Court, by its statement in n. 10 of the Bass opinion, reserved the question of the reach of Title IV for "some other day." That day is now at hand, with Barrett's case before us. And it is at hand with the benefit of full briefing and an awareness of the plain language of § 922(h), of the statute's position in the structure of the entire Act, and of the legislative aims and purpose.
24
Furthermore, we are not willing to decide the present case on the assumption that Congress, in passing the Gun Control Act 25 years after Tot was decided, had the Court's casual recital in Tot in mind when it used language identical to that in the 1938 Act.8 There is one mention of Tot in the debates, 114 Cong.Rec. 21807 (1968), and one mention in the reports, S.Rep.No. 1097, 90th Cong., 2d Sess., 272, U.S.Code Cong. & Admin.News 1968, p. 2112 (1968) (additional views of Sens. Dirksen, Hruska, Thurmond, and Burdick). These reflect a concern with the fact that Tot eliminated the presumption of interstate movement, thus increasing the burden of proof on the Government. They do not focus on what showing was necessary to carry that burden of proof. Similarly, the few references to Tot in the hearings reflect objections to the elimination of the presumption, but mention only in passing the type of proof that the witness believed was necessary to satisfy § 2(f). See e. g., Hearings on S. 1, Amendment 90 to S. 1, S. 1853, and S. 1854 before Subcommittee to Investigate Juvenile Delinquency of the Senate Committee on the Judiciary, 90th Cong., 1st Sess., 46 (1967); Hearings on H.R. 5037, H.R. 5038, H.R. 5384, H.R. 5385, and H.R. 5386 before Subcommittee No. 5 of the House Committee on the Judiciary, 90th Cong., 1st Sess., 561-562, 564, 677-678. Nothing in this legislative history persuades us that Congress intended to adopt Tot's limited interpretation. If we were to conclude otherwise, we would fly in the face of, and ignore, obvious congressional intent at the price of a passing recital. See Girouard v. United States, 328 U.S. 61, 69-70, 66 S.Ct. 826, 829-830, 90 L.Ed. 1084 (1946). To hold, as the Court did in Bass, 404 U.S., at 350, 92 S.Ct., at 523, that Title VII, directed to a receipt of any firearm "in commerce or affecting commerce," requires only a showing that the firearm received previously traveled in interstate commerce, but that Title IV, relating to a receipt of any firearm "which has been shipped or transported in interstate . . . commerce," is limited to the receipt of the firearm as part of an interstate movement, would be inconsistent construction of sections of the same Act and, indeed, would be downgrading the stronger language and upgrading the weaker.
25
We conclude that § 922(h) covers the intrastate receipt, such as petitioner's purchase here, of a firearm that previously had moved in interstate commerce. The judgment of the Court of Appeals, accordingly, is affirmed.
26
It is so ordered.
27
Affirmed.
28
Mr. Justice STEVENS took no part in the consideration or decision of this case.
29
Mr. Justice WHITE, concurring.
30
In meeting petitioner's contention that Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), necessarily confines the offense created by 18 U.S.C. § 922(h) to the receipt of a firearm in the course of an interstate shipment, the Court reads the Tot opinion as reciting but not adopting the lower courts' holdings that § 2(f) of the Federal Firearms Act of 1938 did not cover the intrastate receipt of a firearm that previously had moved in interstate commerce. Ante, at 221-222. I join the Court in this respect. Also, I find its construction of § 922(h) to be correct even if it is assumed, as Mr. Justice STEWART concludes, post, at 228-230 and n. 3, that the Tot decision did adopt the more limited construction of § 2(f).
31
Section 2(f) of the Federal Firearms Act of 1938, 52 Stat. 1251, at issue in Tot, read as follows:
32
"It shall be unlawful for any person who has been convicted of a crime of violence or is a fug(i)tive from justice to receive any firearm or ammuni tion which has been shipped or transported in interstate or foreign commerce, and the possession of a firearm or ammunition by any such person shall be presumptive evidence that such firearm or ammunition was shipped or transported or received, as the case may be, by such person in violation of this Act."
33
The opening words of the section broadly describing the statutory violation as receiving a firearm which "has been shipped or transported" in interstate commerce were immediately followed by a provision that it could be presumed from possession alone that the defendant-possessor had personally participated in the interstate movement of the possessed firearm. Had Congress intended to proscribe the mere intrastate receipt by a defendant of a gun which had previously moved in interstate commerce without any involvement by the defendant in that movement, there would have been little or no reason to provide that his personal participation in the interstate movement could be inferred from his possession alone. Proof of personal possession and previous interstate movement independent of any act of the defendant, which would be sufficient to make out intrastate receipt of a firearm which had previously moved in interstate commerce, requires no such presumptive assistance.
34
In this light it is not surprising that the otherwise broad language of the statute, which was not limited to receipts that were themselves part of the interstate movement, was nonetheless understood to reach only receipts directly involved in interstate commerce. Tot v. United States, supra, it is argued, so understood the statute. Striking down the presumption did not remove this gloss from the language defining the violation. Thus after Tot, and as long as Congress left § 2(f) intact, to establish a violation of § 2(f) it was necessary to prove that a convicted felon found in possession of a firearm actually participated in an interstate shipment.
35
When § 922(h) was enacted, however, Congress omitted the presumptive language of the prior statute and removed any basis for reading the plain language of the statute to reach only receipts of firearms which have moved in interstate commerce with the aid or participation of the defendant. That the plain language of § 922(h) contains no limitation to receipts which are themselves part of an interstate movement is not disputed. Instead the argument is that by reenacting the initial language of § 2(f) Congress intended to maintain the restricted meaning even though it dropped the presumption which had provided the gloss and added nothing in its stead.
36
It is noted that Congress was aware that after Tot, "in order to establish a violation of this statute, it is necessary to prove that a convicted felon found in possession of a firearm actually received it in the course of an interstate shipment."* From this it is inferred that in enacting § 922(h) Congress adopted Tot's interpretation of the glossed language of § 2(f). But the quoted statement simply describes the continuing effect of the gloss provided by the language of the invalidated presumption in § 2(f). Congressional awareness of the effect of Tot does not overcome the concededly plain language of § 922(h) or the force of the Court's analysis of the statutory scheme of which it is a part. Ante, at 216-219. Indeed I find that congressional understanding of the history of § 2(f), first with and then without its presumption, supports the Court's determination that § 922(h) "covers the intrastate receipt . . . of a firearm that previously had moved in interstate commerce." Ante, at 225.
37
Mr. Justice STEWART, with whom Mr. Justice REHNQUIST joins, dissenting.
38
The petitioner in this case, a former convict, was arrested for driving while intoxicated. A revolver, fully loaded, was found on the floorboard of his car. These circumstances are offensive to those who believe in law and order. They are particularly offensive to those concerned with the need to control handguns. While I understand these concerns, I cannot join the Court in its rush to judgment, because I believe that as a matter of law the petitioner was simply not guilty of the federal statutory offense of which he stands convicted.
39
The petitioner bought a revolver from the Western Auto Store in Booneville, Ky., in an over-the-counter retail sale. Within an hour, he was arrested for driving while intoxicated and the revolver was found on the floorboard of his car. The revolver had been manufactured in Massachusetts and shipped to the Booneville retailer from a North Carolina distributor. The prosecution submitted no evidence of any kind that the petitioner had participated in any interstate activity involving the revolver, either before or after its purchase. On these facts, he was convicted of violating 18 U.S.C. § 922(h), which makes it unlawful for a former criminal offender like the petitioner, "to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."
40
This clause first appeared in the predecessor of § 922(h), § 2(f) of the Federal Firearms Act of 1938, 52 Stat. 1250, 1251.1 In Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), the Court interpreted this statutory language to prohibit only receipt of firearms or ammunition as part of an interstate transaction:
41
"Both courts below held that the offense created by the Act is confined to the receipt of firearms or ammunition as a part of interstate transportation and does not extend to the receipt, in an intrastate transaction, of such articles which, at some prior time, have been transported interstate. The Government agrees that this construction is correct." Id., at 466, 63 S.Ct. at 1244.
42
Although the Tot Court was principally concerned with the constitutionality of the presumption established by the last clause of § 2(f),2 its interpretation of the first clause of the statute was essential to its holding.3 The statutory presumption was that possession of a firearm or ammunition by any person in the class specified in § 2(f) established receipt in violation of the statute. The Court in Tot held the presumption unconstitutional for lack of a rational connection between the fact proved and the facts presumed. 319 U.S., at 467-468, 63 S.Ct. at 1244-1245. The Court could not have reached that decision without first determining what set of facts needed to exist in order to constitute a violation of the statute.
43
The Tot case did not go unnoticed when 18 U.S.C. § 922(h) was enacted in its present form in 1968, as the legislative history clearly reveals. Subcommittees of both the Senate and House Judiciary Committees in 1967 conducted hearings on bills to amend the Federal Firearms Act. At both hearings, the Commissioner of Internal Revenue explained the decision in Tot:
44
"The Supreme Court declared (the presumption in § 2(f)) unconstitutional in a 1943 case, Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519. Consequently, in order to establish a violation of this statute, it is necessary to prove that a convicted felon found in possession of a firearm actually received it in the course of an interstate shipment." Hearings on S. 1, Amendment 90 to S. 1, S. 1853, and S. 1854 before Subcommittee to Investigate Juvenile Delinquency of the Senate Committee on the Judiciary, 90th Cong., 1st Sess., 46 (1967).
45
"The Supreme Court has declared (the presumption in § 2(f)) unconstitutional. In order to establish the violation of the statute it is necessary to find that the felon found in possession of the firearm actually received it in the course of interstate commerce or transportation." Hearings on H.R. 5037, H.R. 5038, H.R. 5384, H.R. 5385, and H.R. 5386 before Subcommittee No. 5 of the House Committee on the Judiciary, 90th Cong., 1st Sess., 561 (1967).4
46
In both hearings, the Commissioner was speaking in support of bills that omitted the presumption held unconstitutional in Tot, but that otherwise retained the same language there construed. See Hearings on S. 1, Amendment 90 to S. 1, S. 1853, and S. 1854, supra, at 16, 43-44; Hearings on H.R. 5037, H.R. 5038, H.R. 5384, H.R. 5385, and H.R. 5386, supra, at 13, 555. That is precisely the form in which the statute now before us, § 922(h), was enacted in 1968. It is thus evident that Congress was aware of Tot and adopted its interpretation of the statutory language in enacting the present law. See Francis v. Southern Pacific Co., 333 U.S. 445, 449-450, 68 S.Ct. 611, 613, 92 L.Ed. 798 (1948); Apex Hosiery Co. v. Leader, 310 U.S. 469, 488-489, 60 S.Ct. 982, 989, 84 L.Ed. 1311 (1940); Commissioner of Internal Revenue v. Estate of Church, 335 U.S. 632, 682, 690, 69 S.Ct. 322, 352-358, 93 L.Ed. 288 (1949) (Frankfurter, J., dissenting).5
47
Just four years ago, in United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), the Court expressly stated that it found nothing to indicate "that the 1968 Act changed the prior approach to the 'receipt' offense." Id., at 343 n. 10, 92 S.Ct., at 521. I would adhere to the Court's settled interpretation of the statutory language here involved and reverse the judgment of the Court of Appeals.
1
"s 922. Unlawful acts.
"(h) It shall be unlawful for any person
"(1) who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
"(2) who is a fugitive from justice;
"(3) who is an unlawful user of or addicted to marihuana or any depressant or stimulant drug (as defined in section 201(v) of the Federal Food, Drug, and Cosmetic Act) or narcotic drug (as defined in section 4731(a) of the Internal Revenue Code of 1954); or
"(4) who has been adjudicated as a mental defective or who has been committed to any mental institution;
"to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."
2
Petitioner at the time of the purchase was not asked to complete Treasury Form 4473, designed for use in the enforcement of the gun control provisions of the statute. Tr. 45-47. Accordingly, there is no issue here as to the making of any false statement in violation of § 922(a)(6). See Huddleston v. United States, 415 U.S. 814, 94 S.Ct. 1262, 39 L.Ed.2d 782 (1974).
3
The defense also moved to quash the indictment on the ground that on June 20, 1969, the Governor of Kentucky, by executive order in the nature of a pardon, had granted petitioner "all the rights of citizenship denied him in consequence of said judgment of conviction." It was suggested that this served to wipe out petitioner's state felony conviction of January 1967. The motion to quash was denied. The same argument was made in the Court of Appeals, but that court unanimously rejected it for reasons stated in the court's respective majority and dissenting opinions. 504 F.2d 629, 632-634 (CA6 1974). The issue is not presented here.
4
"Now, interstate commerce, ladies and gentlemen, is the movement of something of value from one political subdivision, which we call a state, to another political subdivision, which we call a state. Interstate commerce occurs when something of value crosses a state boundary line. Now, if you believe that from this evidence . . . the firearm in question was manufactured in a state other than Kentucky, then you are entitled to make the permissible inference that in order for that firearm to be physically located in Kentucky, . . . it had to be engaged in interstate transportation at some point or another, but this is a permissible inference. You are not required to make that inference unless you believe from the evidence that that is a logical, reasonable determination to make from the facts." Tr. 99-100.
5
Section 2(f) provided:
"It shall be unlawful for any person who has been convicted of a crime of violence or is a fugutive (sic ) from justice to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce . . . ." 52 Stat. 1251.
6
There is, of course, no rule of law to the effect that the Government must be consistent in its stance in litigation over the years. It has changed positions before. See, e. g., Automobile Club of Michigan v. Commissioner of Internal Revenue, 353 U.S. 180, 183, 77 S.Ct. 707, 709, 1 L.Ed.2d 746 (1957).
7
"Even under respondent's view, a Title VII offense is made out if the firearm was possessed or received 'in commerce or affecting commerce'; however, Title IV apparently does not reach possessions or intrastate transactions at all, even those with an interstate commerce nexus, but is limited to the sending or receiving of firearms as part of an interstate transportation." 404 U.S., at 342-343, 92 S.Ct., at 520.
8
"The verdict of quiescent years cannot be invoked to baptize a statutory gloss that is otherwise impermissible. This Court has many times reconsidered statutory constructions that have been passively abided by Congress. Congressional inaction frequently betokens unawareness, preoccupation, or paralysis." Zuber v. Allen, 396 U.S. 168, 185-186, n. 21, 90 S.Ct. 314, 324, 24 L.Ed.2d 345 (1969).
*
Hearings on S. 1, Amendment 90 to S. 1, S. 1853, and S. 1854 before Subcommittee to Investigate Juvenile Delinquency of the Senate Committee of the Judiciary, 90th Cong., 1st Sess., 46 (1967). See also Hearings on H.R. 5037, H.R. 5038, H.R. 5384, H.R. 5385, and H.R. 5386 before Subcommittee No. 5 of the House Committee on the Judiciary, 90th Cong., 1st Sess., 561 (1967).
1
Section 2(f) of the Federal Firearms Act provided:
"It shall be unlawful for any person who has been convicted of a crime of violence or is a fug(i)tive from justice to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce, and the possession of a firearm or ammunition by any such person shall be presumptive evidence that such firearm or ammunition was shipped or transported or received, as the case may be, by such person in violation of this Act."
2
See n. 1, supra.
3
The Court today reads the Tot opinion as only attributing this interpretation to the courts below and to the Government, and not as adopting it. Ante, pp. 221-222. This reading is mistaken, for in rejecting an argument premised on the power of Congress to prohibit all possession of firearms by felons, the Tot opinion stated:
"(I)t is plain that Congress, for whatever reason, did not seek to pronounce general prohibition of possession by certain residents of the various states of firearms in order to protect interstate commerce, but dealt only with their future acquisition in interstate commerce." 319 U.S., at 472, 63 S.Ct., at 1247 (emphasis added).
4
See also these Hearings, at 575 (statement of Commissioner of Internal Revenue), 629-630, 677-678 (statements of other witnesses).
5
The cases relied upon by the Court, ante, at 223 n. 8 and 224, stand for the quite different proposition that where it cannot be shown that Congress was aware of a decision of this Court interpreting a statute, such awareness cannot be presumed: Zuber v. Allen, 396 U.S. 168, 185-186, n. 21, 90 S.Ct. 314, 323-324, 24 L.Ed.2d 345 (1969); Girouard v. United States, 328 U.S. 61, 69-70, 66 S.Ct. 826, 829-830, 90 L.Ed. 1084 (1946).
| 01
|
423 U.S. 232
96 S.Ct. 508
46 L.Ed.2d 464
FOREMOST-McKESSON, INC., Petitioner,v.PROVIDENT SECURITIES COMPANY.
No. 74-742.
Argued Oct. 7, 1975.
Decided Jan. 13, 1976.
Syllabus
Respondent, a personal holding company contemplating liquidation, sold assets to petitioner corporation. Respondent received from petitioner as part of the purchase price convertible debentures which if converted into petitioner's common stock would make respondent a holder of more than 10% Of petitioner's outstanding common stock. A few days later, pursuant to an underwriting agreement, one of the debentures was sold to a group of underwriters for cash in an amount exceeding its face value. After making debenture and cash distributions to its stockholders, respondent dissolved. Under § 16(b) of the Securities Exchange Act of 1934 (Act) a corporation may recover for itself the profits realized by an officer, director, or beneficial owner of more than 10% Of its shares from a purchase and sale of its stock within a six-month period. An exemptive provision specifies, however, that § 16(b) shall not be construed to cover any transaction where the beneficial owner was not such both "at the time of" the purchase and sale of the securities involved. Since the amount of petitioner's debentures received by respondent was large enough to make respondent a beneficial owner of petitioner within the meaning of § 16, and its disposal of the securities within the six-month period exposed respondent to a suit by petitioner to recover profits realized by respondent on the sale to the underwriters, respondent sought a declaratory judgment of its nonliability under § 16(b). The District Court granted summary judgment to respondent, and the Court of Appeals affirmed, though for different reasons. Held: By virtue of the exemptive provision a beneficial owner is accountable under § 16(b) in a purchase-sale sequence such as was involved here only if he was such an owner "before the purchase." Thus, the fact that respondent was not a beneficial owner before the purchase removed the transaction from the operation of § 16(b). Pp. 239-259.
(a) The legislative history of the exemptive provision reveals a legislative intent to deter beneficial owners from making both a purchase and a sale on the basis of inside information, which is presumptively available only after the purchase. Pp. 251-252.
(b) Had it been Congress' design when it enacted § 16(b) to impose liability in cases such as this, it should have done so expressly or by unmistakable inference. Pp. 251-252.
(c) Congress may have sought to distinguish between purchases by persons who have not yet acquired inside status through stock ownership of at least 10% And purchases by directors and officers because the latter are more intimately involved in corporate affairs. Pp. 253-254.
(d) Other sanctions remain available against fraudulent use of inside information in transactions not covered by § 16(b). Pp. 254-256.
(e) Other provisions exempting certain transactions from § 16(b) are not inconsistent with the "before the purchase" construction reached here. Pp. 256-259.
506 F.2d 601, affirmed.
Mr. Justice POWELL delivered the opinion of the Court.
1
This case presents an unresolved issue under § 16(b) of the Securities Exchange Act of 1934 (Act), 48 Stat. 896, 15 U.S.C. § 78p(b). That section of the Act was designed to prevent a corporate director or officer or "the beneficial owner of more than 10 per centum" of a corporation1 from profiteering through short-swing securities transactions on the basis of inside information. It provides that a corporation may capture for itself the profits realized on a purchase and sale, or sale and purchase, of its securities within six months by a director, officer, or beneficial owner.2 Section 16(b)'s last sentence, however, provides that it "shall not be construed to cover any transaction where such beneficial owner was not such both at the time of the purchase and sale, or the sale and purchase, of the security involved . . . ." The question presented here is whether a person purchasing securities that put his holdings above the 10% Level is a beneficial owner "at the time of the purchase" so that he must account for profits realized on a sale of those securities within six months. The United States Court of Appeals for the Ninth Circuit answered this question in the negative. 506 F.2d 601 (1974). We affirm.
2
* Respondent, Provident Securities Co., was a personal holding company. In 1968 Provident decided tentatively to liquidate and dissolve, and it engaged an agent to find a purchaser for its assets. Petitioner, Foremost-McKesson, Inc., emerged as a potential purchaser, but extensive negotiations were required to resolve a disagreement over the nature of the consideration Foremost would pay. Provident wanted cash in order to facilitate its dissolution, while Foremost wanted to pay with its own securities.
3
Eventually a compromise was reached, and Provident and Foremost executed a purchase agreement embodying their deal on September 25, 1969. The agreement provided that Foremost would buy two-thirds of Provident's assets for $4.25 million in cash and $49.75 million in Foremost convertible subordinated debentures.3 The agreement further provided that Foremost would register under the Securities Act of 1933 $25 million in principal amount of the debentures and would participate in an underwriting agreement by which those debentures would be sold to the public. At the closing on October 15, 1969, Foremost delivered to Provident the cash and a $40 million debenture which was subsequently exchanged for two debentures in the principal amounts of $25 million and $15 million. Foremost also delivered a.$2.5 million debenture to an escrow agent on the closing date. On October 20 Foremost delivered to Provident a $7.25 million debenture representing the balance of the purchase price. These debentures were immediately convertible into more than 10% Of Foremost's outstanding common stock.
4
On October 21 Provident, Foremost, and a group of underwriters executed an underwriting agreement to be closed on October 28. The agreement provided for sale to the underwriters of the $25 million debenture. On October 24 Provident distributed the $15 million and $7.25 million debentures to its stockholders, reducing the amount of Foremost common into which the company's holdings were convertible to less than 10%. On October 28 the closing under the underwriting agreement was accomplished.4 Provident thereafter distributed the cash proceeds of the debenture sale to its stockholders and dissolved.
5
Provident's holdings in Foremost debentures as of October 20 were large enough to make it a beneficial owner of Foremost within the meaning of § 16.5 Having acquired and disposed of these securities within six months, Provident faced the prospect of a suit by Foremost to recover any profits realized on the sale of the debenture to the underwriters. Provident therefore sued for a declaration that it was not liable to Foremost under § 16(b). The District Court granted summary judgment for Provident, and the Court of Appeals affirmed.
6
Provident's principal argument below for nonliability was based on Kern County Land Co. v. Occidental Corp., 411 U.S. 582, 93 S.Ct. 1736, 36 L.Ed.2d 503 (1973). There we held that an "unorthodox transaction" in securities that did not present the possibility of speculative abuse of inside information was not a "sale" within the meaning of § 16(b). Provident contended that its reluctant acceptance of Foremost debentures in exchange for its assets was an "unorthodox transaction" not presenting the possibility of speculative abuse and therefore was not a "purchase" within the meaning of § 16(b). Although the District Court's pre-Kern County opinion had adopted this type of analysis, 331 F.Supp. 787 (N.D.Cal.1971), the Court of Appeals rejected it, reasoning that Provident's acquisition of the debentures was not "unorthodox" and that the circumstances did not preclude the possibility of speculative abuse. 506 F.2d, at 604-605.
7
The Court of Appeals then considered two theories of nonliability based on § 16(b)'s exemptive provision: "This subsection shall not be construed to cover any transaction where such beneficial owner was not such both at the time of the purchase and sale, or the sale and purchase . . . ." The first was Provident's argument that it was not a beneficial owner "at the time of . . . sale." After the October 24 distribution of some debentures to stockholders, the debentures held by Provident were convertible into less than 10% Of Foremost's outstanding common stock. Provident contended that its sale to the underwriters did not occur until the underwriting agreement was closed on October 28. If this were the case, the sale would not have been covered by § 16(b), since Provident would not have been a beneficial owner "at the time of . . . sale."6 The Court of Appeals rejected this argument because it found that the sale occurred on October 21 upon execution of the underwriting agreement.7
8
The Court of Appeals then turned to the theory of nonliability based on the exemptive provision that we consider here.8 It held that in a purchase-sale sequence the phrase "at the time of the purchase," "must be construed to mean prior to the time when the decision to purchase is made." 506 F.2d, at 614. Thus, although Provident became a beneficial owner of Foremost by acquiring the debentures, it was not a beneficial owner "at the time of the purchase." Accordingly, the exemptive provision prevented any § 16(b) liability on Provident's part.
II
9
The meaning of the exemptive provision has been disputed since § 16(b) was first enacted. The discussion has focused on the application of the provision to a purchase-sale sequence, the principal disagreement being whether "at the time of the purchase" means "before the purchase" or "immediately after the purchase."9 The difference in construction is determinative of a beneficial owner's liability in cases such as Provident's where such owner sells within six months of purchase the securities the acquisition of which made him a beneficial owner. The commentators divided immediately over which construction Congress intended,10 and they remain divided.11 The Courts of Appeals also are in disagreement over the issue.
10
The question of what Congress intended to accomplish by the exemptive provision in a purchase-sale sequence came to a Court of Appeals for the first time in Stella v. Graham-Paige Motors Corp., 232 F.2d 299 (CA2), cert. denied, 352 U.S. 831, 77 S.Ct. 46, 1 L.Ed.2d 52 (1956). There the Court of Appeals for the Second Circuit without discussion, but over a dissent, affirmed the District Court's adoption of the "immediately after the purchase" construction. That court had been impelled to this construction at least in part by concern over what the phrase "at the time of . . . purchase" means in a sale-repurchase sequence, reasoning:
11
"If the ('before the purchase') construction urged by (Graham-Paige) is placed upon the exemption provision, it would be possible for a person to purchase a large block of stock, sell it out until his ownership was reduced to less than 10%, and then repeat the process, ad infinitum." 104 F.Supp. 957, 959 (S.D.N.Y.1952).
12
The District Court may have thought that "before the purchase" seemed an unlikely construction of the exemptive provision in a sale-repurchase sequence, so it could not be the proper construction in a purchase-sale sequence.12 The Stella construction of the exemptive provision has been adhered to in the Second Circuit, Newmark v. RKO General, Inc., 425 F.2d 348, 355-356, cert. denied, 400 U.S. 854, 91 S.Ct. 64, 27 L.Ed.2d 91 (1970);13 Perine v. William Norton & Co., 509 F.2d 114, 118 (1974), and adopted by the Court of Appeals for the Eighth Circuit. Emerson Electric Co. v. Reliance Electric Co., 434 F.2d 918, 923-924 (1970), aff'd on other grounds, 404 U.S. 418, 92 S.Ct. 596, 30 L.Ed.2d 575 (1972).14 But in none of the foregoing cases did the court examine critically the legislative history of § 16(b).
13
The Court of Appeals considered this case against the background, sketched above, of ambiguity in the pertinent statutory language, continued disagreement among the commentators, and a perceived absence in the relatively few decided cases of a full consideration of the purpose and legislative history of § 16(b). The court found unpersuasive the rationales offered in Stella and its progeny for the "immediately after the purchase" construction. It noted that construing the provision to require that beneficial-ownership status exist before the purchase in a purchase-sale sequence would not foreclose an "immediately after the purchase" construction in a sale-repurchase sequence.15 506 F.2d, at 614-615. More significantly, the Court of Appeals challenged directly the premise of the earlier cases that a "before the purchase" construction in a purchase-sale sequence would allow abuses Congress intended to abate. The court reasoned that in § 16(b) Congress intended to reach only those beneficial owners who both bought and sold on the basis of inside information, which was available to them only after they became statutory "insiders." 506 F.2d, at 608-614.16
III
A.
14
The general purpose of Congress in enacting § 16(b) is well known. See Kern County Land Co., 411 U.S. at 591-592, 93 S.Ct., at 1742-1743; Reliance Electric Co., 404 U.S., at 422, 92 S.Ct., at 599, 30 L.Ed.2d 575, and the authorities cited therein. Congress recognized that insiders may have access to information about their corporations not available to the rest of the investing public. By trading on this information, these persons could reap profits at the expense of less well informed investors. In § 16(b) Congress sought to "curb the evils of insider trading (by) . . . taking the profits out of a class of transactions in which the possibility of abuse was believed to be intolerably great." Reliance Electric Co., supra, at 422, 92 S.Ct., at 599. It accomplished this by defining directors, officers, and beneficial owners as those presumed to have access to inside information17 and enacting a flat rule that a corporation could recover the profits these insiders made on a pair of security transactions within six months.18
15
Foremost points to this purpose, and invokes the observation in Reliance Electric Co. that "where alternative constructions of the terms of § 16(b) are possible, those terms are to be given the construction that best serves the congressional purpose of curbing short-swing speculation by corporate insiders." 404 U.S., at 424, 92 S.Ct., at 600 (footnote omitted). From these premises Foremost argues that the Court of Appeals' construction of the exemptive provision must be rejected19 because it makes § 16(b) inapplicable to some possible abuses of inside information that the statute would reach under the Stella construction.20 We find this approach unsatisfactory in its focus on situations that § 16(b) may not reach rather than on the language and purpose of the exemptive provision itself. Foremost's approach also invites an imposition of § 16(b)'s liability without fault that is not consistent with the premises upon which Congress enacted the section.
B
16
The exemptive provision, which applies only to beneficial owners and not to other statutory insiders, must have been included in § 16(b) for a purpose. Although the extensive legislative history of the Act is bereft of any explicit explanation of Congress' intent, see Reliance Electric Co., supra, at 424, 92 S.Ct., at 600, the evolution of § 16(b) from its initial proposal through passage does shed significant light on the purpose of the exemptive provision.
17
The original version of what would develop into the Act was S. 2693, 73d Cong., 2d Sess. (1934). It provided in § 15(b):
18
"It shall be unlawful for any director, officer, or owner of securities, owning as of record and/or beneficially more than 5 per centum of any class of stock of any issuer, any security of which is registered on a national securities exchange
19
"(1) To purchase any such registered security with the intention or expectation of selling the same security within six months; and any profit made by such person on any transaction in such a registered security extending over a period of less than six months shall inure to and be recoverable by the issuer, irrespective of any intention or expectation on his part in entering into such transaction of holding the security purchased for a period exceeding six months."
20
In the next version of the legislation, H.R. 8720, 73d Cong., 2d Sess. (1934), § 15(b) read almost identically to § 16(b) as it was eventually enacted:21
21
"Any profit realized by such beneficial owner, director, or officer from any purchase and sale or sale and purchase of any such registered equity security within a period of less than six months, unless such security was acquired in good faith in connection with a debt previously contracted, shall inure to and be recoverable by the issuer, irrespective of any intention on the part of such beneficial owner, director, or officer in entering into such transaction of holding the security purchased or of not repurchasing the security sold for a period exceeding six months. . . . This subsection shall not be construed to cover any transaction where such beneficial owner was not such both at the time of the purchase and sale or sale and purchase of the security involved, nor any transaction or transactions which the Commission by rules and regulations may exempt as not comprehended within the purpose of this subsection of preventing the unfair use of information which may have been obtained by such beneficial owner, director, or officer by reason of his relationship to the issuer."
22
Thomas G. Corcoran, a spokesman for S. 2693's drafters, explained § 15(b) as forbidding an insider "to carry on any short-term specu(la)tions in the stock. He cannot, with his inside information get in and out of stock within six months." Hearings on H.R. 7852 and H.R. 8720 before the House Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess., 133 (1934). The Court of Appeals concluded that § 15(b) of S. 2693 would have applied only to a beneficial owner who had that status before a purchase-sale sequence was initiated, 506 F.2d, at 609, and we agree. Foremost appears not to contest this point. Brief for Petitioner 29. The question thus becomes whether H.R. 8720's change in the language imposing liability and its addition of the exemptive provision were intended to change S. 2693's result in a purchase-sale sequence by a beneficial owner. We think the legislative history shows no such intent.
23
S. 2693 and its House counterpart, H.R. 7852, 73d Cong., 2d Sess. (1934), met substantial criticism on a number of scores, including various provisions of § 15. See Hearings on Stock Exchange Practices before the Senate Committee on Banking and Currency, 73d Cong., 2d Sess., pt. 15 (1934); Hearings on H.R. 7852 and H.R. 8720, supra, at 1-623.22 S. 2693 was recast into H.R. 8720 to take account of the criticisms that the bill's drafters thought valid. Hearings on H.R. 7852 and H.R. 8720, supra, at 625, 674. The primary substantive criticism directed at § 15(b) of S. 2693 was that it did not prevent the use of inside information to reap a short-term profit in a sale-repurchase situation. See Hearings on Stock Exchange Practices, supra, at 6557-6558. Criticism was also directed at making liability for short-term profits turn on ownership "as of record and/or beneficially." See id., at 6914. H.R. 8720 remedied these perceived shortcomings by providing in § 15(b): "Any profit realized by such beneficial owner, director, or officer from any purchase and sale or sale and purchase . . . shall inure to and be recoverable by the issuer."23 The term "such beneficial owner" was defined in § 15(a) to mean one "who is directly or indirectly the beneficial owner of more than 5 per centum of any class" of a registered security.
24
The structure of the clause imposing liability in the revised § 15(b) did not unambiguously retain S. 2693's requirement that beneficial ownership precede a purchase-sale sequence. But we cannot assume easily that Congress intended to eliminate the requirement in the revised bill. The legislative history reveals that the requirement was made clear in the hearings, yet no complaint was made about it.
25
The testimony on S. 2693 demonstrates that the drafters were emphatic about the requirement. In explaining the bill Corcoran pointed out a technical flaw in S. 2693's language: "It shall be unlawful for any director, officer, or owner of securities, owning as of record and/or beneficially more than 5 per centum of any class of stock . . . ." It was possible to construe the phrase "owning . . . 5 per centum" to apply to directors and officers as well as to mere stockholders, so that trading by directors and officers would not be subject to § 15(b) if their previous holdings did not exceed 5%. But Corcoran made clear that the requirement of pre-existing ownership of the specified percentage applied only to beneficial owners.
26
"Mr. Corcoran. . . . The bill is not very well drawn there. It ought to read to cover every director, every officer, and every stockholder who owns more than 5 percent of the stock. That is the way it was intended to read.
27
"Mr. Mapes. It ought to read 'and/or beneficially more than 5 percent' followed by 'is a director, or officer.'
28
"Mr. Corcoran. It is badly drawn. We slipped on that. It ought to read 'every director and every officer' and then 'every big stockholder.' " Hearings on H.R. 7852 and H.R. 8720, supra, at 133.
29
See Hearings on Stock Exchange Practices, supra, at 6555.
30
The legislative record thus reveals that the drafters focused directly on the fact that S. 2693 covered a short-term purchase-sale sequence by a beneficial owner only if his status existed before the purchase, and no concern was expressed about the wisdom of this requirement. But the explicit requirement was omitted from the operative language of the section when it was restructured to cover sale-repurchase sequences. In the same draft, however, the exemptive provision was added to the section. On this record we are persuaded that the exemptive provision was intended to preserve the requirement of beneficial ownership before the purchase. Later discussions of the present § 16(b) in the hearings are consistent with this interpretation.24 We hold that, in a purchase-sale sequence, a beneficial owner must account for profits only if he was a beneficial owner "before the purchase."25
IV
31
Additional considerations support our reading of the legislative history.
A.
32
Section 16(b) imposes a strict prophylactic rule with respect to insider, short-swing trading. In Kern County Land Co., 411 U.S., at 595, 93 S.Ct., at 1745, we noted:
33
"The statute requires the (statutorily defined) inside, short-swing trader to disgorge all profits realized on all 'purchases' and 'sales' within the specified time period, without proof of actual abuse of insider information, and without proof of intent to profit on the basis of such information."
34
In short, this statute imposes liability without fault within its narrowly drawn limits.26
35
As noted earlier, Foremost recognizes the ambiguity of the exemptive provision, but argues that where "alternative constructions" of § 16(b)'s terms are available, we should choose the construction that best serves the statute's purposes. Foremost relies on statements generally to this effect in Kern County Land Co., supra, at 595, 93 S.Ct., at 1745, and Reliance Electric Co., 404 U.S., at 424, 92 S.Ct., at 600. In neither of those cases, however, did the Court adopt the construction that would have imposed liability, thus recognizing that serving the congressional purpose does not require resolving every ambiguity in favor of liability under § 16(b). We reiterate that nothing suggests that the construction urged by Foremost would serve better to further congressional purposes. Indeed, the legislative history of § 16(b) indicates that by adding the exemptive provision Congress deliberately expressed a contrary choice. But even if the legislative record were more ambiguous, we would hesitate to adopt Foremost's construction. It is inappropriate to reach the harsh result of imposing § 16(b)'s liability without fault on the basis of unclear language. If Congress wishes to impose such liability, we must assume it will do so expressly or by unmistakable inference.
36
It is not irrelevant that Congress itself limited carefully the liability imposed by § 16(b). See Reliance Electric Co., supra, at 422-425, 92 S.Ct., at 599-601. Even an insider may trade freely without incurring the statutory liability if, for example, he spaces his transactions at intervals greater than six months. When Congress has so recognized the need to limit carefully the "arbitrary and sweeping coverage" of § 16(b), Bershad v. McDonough, 428 F.2d 693, 696 (C.A.7 1970), cert. denied, 400 U.S. 992, 91 S.Ct. 458, 27 L.Ed.2d 440 (1971), courts should not be quick to determine that, despite an acknowledged ambiguity, Congress intended the section to cover a particular transaction.
B
37
Our construction of § 16(b) also is supported by the distinction Congress recognized between short-term trading by mere stockholders and such trading by directors and officers. The legislative discourse revealed that Congress thought that all short-swing trading by directors and officers was vulnerable to abuse because of their intimate involvement in corporate affairs. But trading by mere stockholders was viewed as being subject to abuse only when the size of their holdings afforded the potential for access to corporate information.27 These different perceptions simply reflect the realities of corporate life.
38
It would not be consistent with this perceived distinction to impose liability on the basis of a purchase made when the percentage of stock ownership requisite to insider status had not been acquired. To be sure, the possibility does exist that one who becomes a beneficial owner by a purchase will sell on the basis of information attained by virtue of his newly acquired holdings. But the purchase itself was not one posing dangers that Congress considered intolerable, since it was made when the purchaser owned no shares or less than the percentage deemed necessary to make one an insider.28 Such a stockholder is more analogous to the stockholder who never owns more than 10% And thereby is excluded entirely from the operation of § 16(b), than to a director or officer whose every purchase and sale is covered by the statute. While this reasoning might not compel our construction of the exemptive provision, it explains why Congress may have seen fit to draw the line it did. Cf. Adler v. Klawans, 267 F.2d 840, 845 (C.A.2 1959).
C
39
Section 16(b)'s scope, of course, is not affected by whether alternative sanctions might inhibit the abuse of inside information. Congress, however, has left some problems of the abuse of inside information to other remedies. These sanctions alleviate concern that ordinary investors are unprotected against actual abuses of inside information in transactions not covered by § 16(b). For example, Congress has passed general antifraud statutes that proscribe fraudulent practices by insiders. See Securities Act of 1933, § 17(a), 48 Stat. 84, 15 U.S.C. § 77q(a); Securities Exchange Act of 1934, § 10(b), 15 U.S.C. § 78j(b); 3 Loss, supra, n. 11, at 1423-1429, 1442-1445. Today an investor who can show harm from the misuse of material inside information may have recourse, in particular, to § 10(b) and Rule 10b-5, 17 CFR § 240.10b-5 (1975).29 It also was thought that § 16(a)'s publicity requirement30 would afford indirect protection against some potential misuses of inside information.31 See Hearings on H.R. 7852 and H.R. 8720, supra, at 134-135; H.R.Rep.No.1383, 73d Cong., 2d Sess., 13 (to accompany H.R. 9323, 73d Cong., 2d Sess., passed by the House, May 4, 1934, without the present § 16(b)).
V
40
We must still consider briefly Foremost's contention that the "before the purchase" construction renders other enactments of Congress unnecessary and conflicts with the interpretation of § 16(b) by the Securities and Exchange Commission.
41
Foremost and amicus and Allis-Chalmers Manufacturing Co. point to §§ 16(d) and (e) of the Act, 15 U.S.C. § 78p(d) and (e), as congressional actions that would not have been necessary unless one selling the securities the acquisition of which made him a beneficial owner is liable under § 16(b). Section 16(d), in part, exempts from § 16(b) certain transactions by a securities "dealer in the ordinary course of his business and incident to the establishment or maintenance by him of a primary or secondary market."32 Section 16(e) provides an exemption for certain "foreign or domestic arbitrage transactions."33 They argue similarly that the SEC's Rule 16b-2, 17 CFR § 240.16b-2 (1975), is unnecessary if our construction of § 16(b) is correct. Rule 16b-2 exempts from § 16(b) specified transactions "in connection with the distribution of a substantial block of securities."34
42
We do not consider these provisions to be inconsistent with our holding. Nothing on their faces would make them applicable to one selling the securities the purchase of which made him a beneficial owner. But the exemptions would be necessary to protect stockholders already qualifying as beneficial owners when they purchased35 and they would, of course, apply to transactions by directors and officers as well.
43
Foremost and the amicus also remind us that the interpretation of the exemptive provision for which they contend has been adopted by the SEC in the past. See Brief for SEC as Amicus Curiae, in 22-27, Reliance Electric Co. v. Emerson Electric Co., O.T.1971, No. 70-79, pp. 22-27. But the Commission has not appeared as an amicus in this case. In any event, even if the Commission's views have not changed we would not afford them the deference to which the views of the agency administering a statute are usually entitled, for in Reliance Electric Co., 404 U.S., at 425-427, 92 S.Ct., at 600-602, the Court rejected the basic theory on which the SEC based its interpretation of the exemptive provision. Our re-examination of the exemptive provision confirms the view that the SEC's theory did not reflect the intent of Congress.
The judgment is
44
Affirmed.
45
Mr. Justice WHITE joins in the judgment of the Court, and in all but Part IV-C of the Court's opinion.
46
Mr. Justice STEVENS took no part in the consideration or decision of this case.
1
The corporate "insiders" whose trading is regulated by § 16(b) are defined in § 16(a) of the Act, 15 U.S.C. § 78p(a), as "(e)very person who is directly or indirectly the beneficial owner of more than 10 per centum of any class of any equity security (other than an exempted security) which is registered pursuant to section 78l of this title, or who is a director or an officer of the issuer of such security."
2
Section 16(b), 15 U.S.C. § 78p(b), reads in full:
"For the purpose of preventing the unfair use of information which may have been obtained by such beneficial owner, director, or officer by reason of his relationship to the issuer, any profit realized by him from any purchase and sale, or any sale and purchase, of any equity security of such issuer (other than an exempted security) within any period of less than six months, unless such security was acquired in good faith in connection with a debt previously contracted, shall inure to and be recoverable by the issuer, irrespective of any intention on the part of such beneficial owner, director, or officer in entering into such transaction of holding the security purchased or of not repurchasing the security sold for a period exceeding six months. Suit to recover such profit may be instituted at law or in equity in any court of competent jurisdiction by the issuer, or by the owner of any security of the issuer in the name and in behalf of the issuer if the issuer shall fail or refuse to bring such suit within sixty days after request or shall fail diligently to prosecute the same thereafter; but no such suit shall be brought more than two years after the date such profit was realized. This subsection shall not be construed to cover any transaction where such beneficial owner was not such both at the time of the purchase and sale, or the sale and purchase, of the security involved, or any transaction or transactions which the Commission by rules and regulations may exempt as not comprehended within the purpose of this subsection."
3
The debentures were issued expressly to acquire Provident's assets, and all of them were used for that purpose.
4
The underwriters delivered $25,366,666.66 in cash to Provident. That amount represented a purchase price of 1011/4% Of the principal amount of the debenture ($25,312,500) plus interest accrued from October 15 to the date of closing ($54,166.66). The amount of profit realized by Provident has never been established.
5
A beneficial owner is one who owns more than 10% Of an "equity security" registered pursuant to § 12 of the Act, 15 U.S.C. § 78l. See n. 1, supra. The owner of debentures convertible into more than 10% Of a corporation's registered common stock is a beneficial owner within the meaning of the Act. § 3(a)(10), (11) of the Act, 15 U.S.C. § 78c(a)(10), (11); Rule 16a-2(b), 17 CFR § 240.16a-2(b) (1975). Foremost's common stock was registered; thus Provident's holdings made it a beneficial owner.
6
This contention was based on Reliance Electric Co. v. Emerson Electric Co., 404 U.S. 418, 92 S.Ct. 596, 30 L.Ed.2d 575 (1972). There the Court held that a sale made after a former beneficial owner had already reduced its holdings below 10% Was exempted from § 16(b) by the phrase "at the time of . . . sale" in the exemptive provision. See n. 25, infra.
7
Section 3(a)(14) of the Act, 15 U.S.C. § 78c(a)(14), defines "sale" and "sell" to include "any contract to sell or otherwise dispose of." But Provident argued that the October 28 closing date was the day of sale because contractual conditions prevented the contract from becoming binding until closing. The underwriting agreement provided in paragraph 7:
"7. Termination of Agreement: This agreement may be terminated, prior to the time the Registration Statement becomes effective, by you or by any group of Underwriters which has agreed hereunder to purchase in the aggregate at least 50% Of the Debentures, if, in your judgment or in the judgment of any such group of Underwriters, there shall have occurred a material unfavorable change in political, financial or economic conditions generally." App. A134.
And in paragraph 5, the agreement provided: "The several obligations of the Underwriters hereunder are subject to the following conditions:
"(h) That, between the time of execution of this agreement and the time of purchase, there shall occur no material and unfavorable change, financial or otherwise (other than as referred to in the Registration Statement and the Prospectus), in the condition of the Company and its consolidated subsidiaries as a whole; and the Company will, at the time of purchase, deliver to you a certificate of two of its executive officers to the foregoing effect." App. A134.
The Court of Appeals agreed that conditions to performance might prevent a contract from being a "sale" prior to closing. But it ruled that all significant conditions here were satisfied when the registration statement required by paragraph 7 became effective on October 21, the day the underwriting agreement was executed. The court also found that after October 21, Provident was no longer subject to the risk of a decline in the market for Foremost's stock. 506 F.2d, at 607. For reasons not apparent from its opinion, the court did not address the possibility that paragraph 5(h) left Provident subject to market risks. See n. 8, infra.
8
Our holding on this issue disposes of this case by precluding any liability on Provident's part. We therefore do not consider whether the Court of Appeals properly rejected Provident's arguments based on Kern County Land Co. v. Occidental Corp., 411 U.S. 582, 93 S.Ct. 1736, 36 L.Ed.2d 503 (1973), and on the sale's not having occurred until October 28.
9
The alternative construction to "before the purchase" is sometimes denominated "simultaneously with the purchase," as it was by the Court of Appeals. 506 F.2d, at 608.
10
Compare C. Meyer, The Securities Exchange Act of 1934, p. 112 (1934) (adopting a "before" construction), with Seligman, Problems Under the Securities Exchange Act, 21 Va.L.Rev. 1, 19-20 (1934) (adopting an "immediately after" construction).
11
Compare, e. g., Munter, Section 16(b) of the Securities Exchange Act of 1934: An Alternative to "Burning Down the Barn in Order to Kill the Rats," 52 Cornell L.Q. 69, 74-75 (1966); Note, Insider Liability for Short-Swing Profits: The Substance and Function of the Pragmatic Approach, 72 Mich.L.Rev. 592, 616-619 (1974); Comment, 9 Stan.L.Rev. 582 (1957) (adopting a "before" construction), with, e. g., 2 L. Loss, Securities Regulation 1060 (2d ed. 1961) (favoring an "immediately after" construction). The weight of the commentary appears to be with the "before the purchase" construction. The ALI Federal Securities Code (Tentative Draft No. 2, 1973), § 1413(d) and Comment (6), considers the "immediately after the purchase" construction "questionable" on the statutory language and proposes an amendment to codify the result.
12
Stella was decided before § 10(b) of the Act, 15 U.S.C. § 78j(b), as implemented by Rule 10b-5, 17 CFR § 240.10b-5 (1975), developed fully as a private remedy for actual abuses of inside information. See 6 L. Loss, supra, n. 11, at 3559. The sale-repurchase abuse that worried the Stella court would now invite § 10(b) liability, see n. 29, infra, as well as possible liability under § 16(b).
13
To rationalize its view as applied to the purchase-sale sequence, the court in Newmark wrote:
"(T)he presumed access to (inside) information resulting from (the) purchase (that makes one a beneficial owner) provides him with an opportunity, not available to the investing public, to sell his shares at the moment most advantageous to him. Thus, a purchase of shares which makes the buyer an insider creates an opportunity for the type of speculative abuse the statute was enacted to prevent." 425 F.2d, at 356.
14
When this Court decided Reliance Electric Co. v. Emerson Electric Co., 404 U.S. 418, 92 S.Ct. 596, 30 L.Ed.2d 575 (1972), the question presented here was no longer in the case. See n. 25, infra.
15
The view of the Court of Appeals that "at the time of" may mean different things in different contexts is not unique. See Allis-Chalmers Mfg. Co. v. Gulf & Western Industries, 527 F.2d 335 (C.A.7 1975), cert. pending, No. 75-580. We express no opinion here on this view.
16
Shortly before this case was argued the Court of Appeals for the Seventh Circuit reached the same conclusion on somewhat different analysis. Allis-Chalmers Mfg. Co., supra, at 347-349. The court apparently would have reached its result even in the absence of the exemptive provision, reasoning that § 16(b) covers no transactions by any § 16(b) insiders who were not insiders before their initial transaction. Id., at 347-348. Since we rely on the exemptive provision, we intimate no view on the proper analysis of a case where a director or officer makes an initial transaction before obtaining insider status. See, e. g., Adler v. Klawans, 267 F.2d 840 (C.A.2 1959). Nor do we have occasion here to assess the approach taken by the Court of Appeals for the Seventh Circuit to the exemptive provision. 527 F.2d, at 348-348, and n. 13. See n. 25, infra.
17
The purpose of § 16(b) is stated explicitly to be "preventing the unfair use of information which may have been obtained by such beneficial owner, director, or officer by reason of his relationship to the issuer." 15 U.S.C. § 78p(b).
18
Section 16(b) states that any short-swing profits "shall inure to and be recoverable by the issuer, irrespective of any intention on the part of such beneficial owner, director, or officer in entering into such transaction of holding the security purchased or of not repurchasing the security sold for a period exceeding six months." 15 U.S.C. § 78p(b).
19
In lieu of the Court of Appeals' construction, Foremost offers a construction whereby any purchases prior to the purchase making one a beneficial owner are exempted from the operation of § 16(b). See 2 Loss, supra, n. 11, at 1060.
20
Newmark describes a possible abuse of inside information covered only under the Stella construction. See n. 13, supra.
21
As can be seen by comparing H.R. 8720's version of § 15(b) with § 16(b), supra, n. 2, the differences are relatively minor. Formally, the statement of purpose was moved to the front of the statute and various grammatical changes were made. A significant substantive change not apparent from the faces of the two sections is that § 16(b) beneficial owners are those owning more than 10% Of a registered security, while H.R. 8720 retained S. 2693's 5% Requirement. Compare § 16(a) of the Act, 15 U.S.C. § 78p(a), with H.R. 8720, 73d Cong., 2d Sess., § 15(a) (1934).
22
Corcoran termed § 15 "one of the most important provisions in (S. 2693)." Hearings on Stock Exchange Practices before the Senate Committee on Banking and Currency, 73d Cong., 2d Sess., 6555 (1934). But most of the proposed legislation was directed at regulation of the stock exchanges themselves and certain trading practices that were considered undesirable regardless of who performed them. See id., at 6465-6466. Most of the hearings, therefore, dealt with other problems.
23
The other major substantive change effected in § 15(b) by H.R. 8720 was the elimination of the potential criminal liability. The criminal liability aspect of S. 2693's version of § 15(b) received almost no attention in hearings. But cf. Hearings on Stock Exchange Practices, supra, at 6966. It may have been thought, however, that a criminal case could never be made out. The difficulties of proving the mental elements on which criminal liability turned had already led the drafters to eliminate those questions of fact in civil suits to recover profits. See n. 26, infra.
24
"Mr. Pecora. The theory was that the ownership of 5 percent of the stock would practically constitute him an insider, and by virtue of that position he could acquire confidential information which he might use for his own enrichment by trading in the open market, against the interests of the general body of the stockholders. That is the main purpose sought to be served." Hearings on Stock Exchange Practices, supra, at 7741.
Ferdinand Pecora was counsel to the subcommittee of the Senate Committee on Banking and Currency that conducted extensive hearings on stock exchange operations prior to the enactment of the Act. He was also one of the draftsmen of S. 2693. Hearings on H.R. 7852 and H.R. 8720 before the House Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess., 83 (1934).
25
In Reliance Electric Co. v. Emerson Electric Co., 404 U.S. 418, 92 S.Ct. 596, 30 L.Ed.2d 575 (1972), the Court also had occasion to consider the application of the exemptive provision in a purchase-sale sequence. There Emerson acquired 13.2% Of the shares of Reliance's predecessor pursuant to a tender offer and within six months disposed of its holdings in two sales of 3.24% And 9.96%. The Court of Appeals for the Eighth Circuit held that the purchase, by which Emerson became a beneficial owner, was covered by § 16(b). But it ruled that Emerson was liable for the profits on only its first sale, because "at the time of . . . sale" of the 9.96%, it was not a beneficial owner.
The Court granted certiorari on Reliance's petition to review this construction of "at the time of . . . sale," and affirmed. The construction of "at the time of the purchase," however, was not before the Court. 404 U.S., at 420-422, 92 S.Ct., at 598. Emerson thus remained liable for the 3.24% Sale, although it would have had no liability under our holding today. The Court of Appeals for the Seventh Circuit has noted correctly that the construction of "at the time of . . . sale" in Reliance Electric Co. is superfluous in light of the construction of "at the time of the purchase" adopted by the Court of Appeals for the Ninth Circuit, which we affirm here. See Allis-Chalmers Mfg. Co., 527 F.2d, at 348 n. 12. But the procedural posture of Reliance Electric Co. prevented a full consideration of the meaning of the exemptive provision. See ibid. We express no opinion on the interpretation of the provision by which the Court of Appeals for the Seventh Circuit sought to avoid the apparent superfluity of the "at the time of . . . sale" language. Id., at 348; supra, n. 16.
26
"Mr. Corcoran. . . . You hold the director, irrespective of any intention or expectation to sell the security within 6 months after, because it will be absolutely impossible to prove the existence of such intention or expectation, and you have to have this crude rule of thumb, because you cannot undertake the burden of having to prove that the director intended, at the time he bought, to get out on a short swing.
"Senator Gore. You infer the intent from the fact.
"Mr. Corcoran. From the fact.
"Senator Kean. Suppose he got stuck in something else, and he had to sell?
"Senator Barkley. All he would get would be what he put into it. He would get his original investment.
"Mr. Corcoran. He would get his money out, but the profit goes to the corporation.
"Senator Kean. Suppose he had to sell.
"Mr. Corcoran. Let him get out what he put in, but give the corporation the profit." Hearings on Stock Exchange Practices, supra, n. 22, at 6556-6557.
27
This distinction is especially evident in the following exchange, directed to the reporting requirements imposed by § 15(a) of S. 2693 on beneficial owners:
"Senator Kean. Suppose a man is not a director at all and does not want to be a director, and he happens to own 5 percent or buy 5 percent. Do you think you are going to get him to file with the exchange all the time just the number of shares he has?
"Mr. Corcoran. I think so, sir.
"Senator Kean. I think it is all right to apply it to a director or officer, but I think to require the ordinary investor
"Mr. Corcoran. Five percent is a lot in a modern corporation. Many corporations are controlled by 5 percent or 10 percent.
"Senator Kean. They may own it or they may sell it. This applies to all corporations, and you are getting down to the point where you are interfering with the individual a good deal there. I agree with you with respect to the officers and directors.
"Mr. Corcoran. A stockholder owning 5 percent is as much an insider as an officer or director. Whether he is a titular director or not, he normally is, as a practical matter of fact, a director.
"Senator Kean. He might not be." Hearings on Stock Exchange Practices, supra, n. 22, at 6556.
The distinction also is reflected in the discussion of the technical flaw in S. 2693. See id., at 6555; Hearings on H.R. 7852 and H.R. 8720, supra, n. 24, at 133. See also Hearings on Stock Exchange Practices, supra, n. 22, at 7741-7743.
28
Thus, according to the presumption of the statute, the purchaser did not have access to inside information in making the purchase. It should be noted further that as a matter of practicalities the crucial point in the acquisition of securities is not the technical "purchase," but rather the decision to make an acquisition. In the case of an acquisition of a large block of a corporation's stock, that decision may precede the "purchase" by a considerable period of time. A prudent investor will want to investigate all available information on the corporation. Such an investor also may need time to finance the purchase, and may wish to effectuate purchases without influencing the market price. These realities emphasize that the acquisition decision by a beneficial owner normally will occur well in advance of the event that is presumed to afford access to inside information.
29
Rule 10b-5 has been held to embrace evils that Foremost urges its construction of § 16(b) is necessary to prevent. The Rule has been applied to trading by one who acquired inside information in the course of negotiations with a corporation, such as the negotiations for Provident's purchase of the Foremost debentures. Van Alstyne, Noel & Co., 43 S.E.C. 1080 (1969); 3 Loss, supra, n. 11, at 1451-1452. And a stockholder trading on information not generally known has been held subject to the sanctions of the Rule. Shapiro v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 495 F.2d 228 (C.A.2 1974); SEC v. Texas Gulf Sulphur Co., 401 F.2d 833 (C.A.2 1968), cert. denied, sub. nom. Coates v. SEC, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969). The liability of insiders who improperly "tip" others, SEC v. Texas Gulf Sulphur Co., 446 F.2d 1301 (C.A.2), cert. denied, 404 U.S. 1005, 92 S.Ct. 561, 30 L.Ed.2d 558 (1971), may reduce the threat that beneficial owners not themselves represented on the board of directors will be able to acquire inside information from officers and directors. We cite these cases for illustrative purposes without necessarily implying approval.
30
Section 16(a), 15 U.S.C. § 78p(a), provides:
"Every person who is directly or indirectly the beneficial owner of more than 10 per centum of any class of any equity security (other than an exempted security) which is registered pursuant to section 78l of this title, or who is a director or an officer of the issuer of such security, shall file, at the time of the registration of such security on a national securities exchange or by the effective date of a registration statement filed pursuant to section 78l (g) of this title, or within ten days after he becomes such beneficial owner, director, or officer, a statement with the Commission (and, if such security is registered on a national securities exchange, also with the exchange) of the amount of all equity securities of such issuer of which he is the beneficial owner, and within ten days after the close of each calendar month thereafter, if there has been a change in such ownership during such month, shall file with the Commission (and if such security is registered on a national securities exchange, shall also file with the exchange), a statement indicating his ownership at the close of the calendar month and such changes in his ownership as have occurred during such calendar month."
31
The drafters clearly thought that § 16(a) would help deter abuses not covered by § 16(b).
"(Mr. Corcoran.) (S)ection 15(a), requires every director, officer, or principal holder of any securities listed on an exchange to file with the exchange and with the commission a statement of how many shares he owns and to file that statement at the end of each month to show whether there has been any change in his position during the month. That is to prevent the insider from taking advantage of information to sell or buy shares ahead of the release of information to the public about the company."
These remarks were addressed to S. 2693. Hearings on H.R. 7852 and H.R. 8720, supra, n. 24, at 132.
32
Section 16(d), 15 U.S.C. § 78p(d), provides:
"The provisions of subsection (b) of this section shall not apply to any purchase and sale, or sale and purchase, and the provisions of subsection (c) of this section shall not apply to any sale, of an equity security not then or theretofore held by him in an investment account, by a dealer in the ordinary course of his business and incident to the establishment or maintenance by him of a primary or secondary market (otherwise than on a national securities exchange or an exchange exempted from registration under section 78e of this title) for such security. The Commission may, by such rules and regulations as it deems necessary or appropriate in the public interest, define and prescribe terms and conditions with respect to securities held in an investment account and transactions made in the ordinary course of business and incident to the establishment or maintenance of a primary or secondary market."
"Dealer" is defined in § 3(a)(5) of the Act, 15 U.S.C. § 78c(a)(5).
33
Section 16(e), 15 U.S.C. § 78p(e), provides:
"The provisions of this section shall not apply to foreign or domestic arbitrage transactions unless made in contravention of such rules and regulations as the Commission may adopt in order to carry out the purposes of this section."
34
Section 16(b) provides in its final clause that it shall not cover "any transaction or transactions which the Commission by rules and regulations may exempt as not comprehended within the purpose of this subsection." 15 U.S.C. § 78p(b). Rule 16b-2, 17 CFR § 240.16b-2 (1975), provides:
"(a) Any transaction of purchase and sale, or sale and purchase, of a security which is effected in connection with the distribution of a substantial block of securities shall be exempt from the provisions of section 16(b) of the Act, to the extent specified in this § 240.16b-2, as not comprehended within the purpose of said section, upon the following conditions:
"(1) The person effecting the transaction is engaged in the business of distributing securities and is participating in good faith, in the ordinary course of such business, in the distribution of such block of securities;
"(2) The security involved in the transaction is (i) a part of such block of securities and is acquired by the person effecting the transaction, with a view to the distribution thereof, from the issuer or other person on whose behalf such securities are being distributed or from a person who is participating in good faith in the distribution of such block of securities, or (ii) a security purchased in good faith by or for the account of the person effecting the transaction for the purpose of stabilizing the market price of securities of the class being distributed or to cover an over-allotment or other short position created in connection with such distribution; and
"(3) Other persons not within the purview of section 16(b) of the Act are participating in the distribution of such block of securities on terms at least as favorable as those on which such person is participating and to an extent at least equal to the aggregate participation of all persons exempted from the provisions of section 16(b) of the Act by this § 240.16b-2. However, the performance of the functions of manager of a distributing group and the receipt of a bona fide payment for performing such functions shall not preclude an exemption which would otherwise be available under this § 240.16b-2.
"(b) The exemption of a transaction pursuant to this § 240.16b-2 with respect to the participation therein of one party thereto shall not render such transaction exempt with respect to participation of any other party therein unless such other party also meets the conditions of this § 240.16b-2."
35
The press release accompanying the SEC's initial promulgation of Rule 16b-2 demonstrates this point. It explained: "The new Rule (16b-2) affords an exemption for certain cases by providing that underwriters who happen to have a member of their firm also an officer or director of the issuer or one of its principal stockholders who are regularly engaged in the business of buying and selling securities need not account to the company for profits realized from purchases and sales made in the distribution of a security for the company . . . ." SEC Release No. 34-264 (June 8, 1935).
| 78
|
423 U.S. 276
96 S.Ct. 535.
46 L.Ed.2d 495
MICHELIN TIRE CORPORATION, Petitioner,v.W. L. WAGES, Tax Commissioner, et al.
No. 74-1396.
Argued Oct. 15, 1975.
Decided Jan. 14, 1976.
Rehearing Denied Feb. 23, 1976. See 424 U.S. 935, 96 S.Ct. 1151.
Syllabus
Georgia's assessment of a nondiscriminatory ad valorem property tax against petitioner's inventory of imported tires maintained at its wholesale distribution warehouse in the State held not to be within the Import-Export Clause's prohibition against States laying "any Imposts or Duties on Imports." Low v. Austin, 13 Wall. 29, overruled. Pp. 281-302.
(a) In the history of the Import-Export Clause, whose purposes were to commit to the Federal Government the exclusive power to regulate foreign commerce and the exclusive right to all revenues from imposts and duties on imports, and to assure the free flow of imported goods among the States by prohibiting the taxing of goods merely flowing through seaboard States to other States, there is nothing to suggest that a nondiscriminatory ad valorem property tax imposed on imported goods that are no longer in import transit was the type of exaction that was regarded as objectionable by the Framers of the Constitution. Pp. 283-286.
(b) Such nondiscriminatory property taxation cannot affect the Federal Government's exclusive regulation of foreign commerce, since such a tax does not fall on imports as such because of their place of origin and it cannot be used to create special protective tariffs or particular preferences for certain domestic goods or be applied selectively to encourage or discourage any importation in a manner inconsistent with federal regulation. P. 286.
(c) Nor will such taxation deprive the Federal Government of its exclusive right to all revenues from imposts and duties on imports, since that right by definition only extends to revenues from exactions of a particular category. Unlike imposts and duties, which are essentially taxes on the commercial privilege of bringing goods into a country, such property taxes are taxes by which a State apportions the cost of such services as police and fire protection among the beneficiaries according to their respective wealth, and there is no reason why an importer should not share these costs with his competitors handling domestic goods. Pp. 286-288.
(d) Nor does such nondiscriminatory property taxation interfere with the free flow of imported goods among the States. Importers of goods destined for inland States can easily avoid such taxes by using modern transportation methods, and to the extent such taxation may increase the cost of goods purchased by "inland" consumers, the cost, which is the quid pro quo for benefits actually conferred by the taxing State, is one that ultimate consumers should pay for. The prevention of exactions that are no more than transit fees that could otherwise be imposed due to the peculiar geographical situation of certain States may be secured by prohibiting the assessment of even nondiscriminatory property taxes on goods that are still in import transit. Pp. 288-290.
(e) The Import-Export Clause, while not in terms excepting nondiscriminatory taxes with some impact on imports or exports, is not couched in terms of a broad prohibition of every "tax," but only prohibits States from laying "Imposts or Duties," which historically connoted exactions directed only at imports or commercial activity as such. Pp. 290-293.
(f) Since prohibition of nondiscriminatory ad valorem property taxation would not further the objectives of the Import-Export Clause, only the clearest constitutional mandate should lead to a condemnation of such taxation, and the Clause's terminology "Imposts or Duties" is sufficiently ambiguous as not to warrant a presumption that it was intended to embrace taxation that does not create the evils the Clause was specifically intended to eliminate. Pp. 293-294.
233 Ga. 712, 214 S.E.2d 349, affirmed.
Earle B. May, Jr., Atlanta, Ga., for petitioner.
H. A. Stephens, Jr., Atlanta, Ga., for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Respondents, the Tax Commissioner and Tax Assessors of Gwinnett County, Ga., assessed ad valorem property taxes against tires and tubes imported by petitioner from France and Nova Scotia that were included on the assessment dates in an inventory maintained at its wholesale distribution warehouse in the county. Petitioner brought this action for declaratory and injunctive relief in the Superior Court of Gwinnett County, alleging that with the exception of certain passenger tubes that had been removed from the original shipping cartons,1 the ad valorem property taxes assessed against its inventory of imported tires and tubes were prohibited by Art. I, § 10, cl. 2, of the Constitution, which provides in pertinent part: "No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws . . .." After trial, the Superior Court granted the requested declaratory and injunctive relief. On appeal, the Supreme Court of Georgia affirmed in part and reversed in part, agreeing that the tubes in the corrugated shipping cartons were immune from ad valorem taxation, but holding that the tires had lost their status as imports and had become subject to such taxation because they had been mingled with other tires imported in bulk, sorted, and arranged for sale. 233 Ga. 712, 214 S.E.2d 349 (1975). We granted certiorari, 422 U.S. 1040, 95 S.Ct. 2652, 45 L.Ed.2d 692 (1975). The only question presented is whether the Georgia Supreme Court was correct in holding that the tires were subject to the ad valorem property tax.2 We affirm without addressing the question whether the Georgia Supreme Court was correct in holding that the tires had lost their status as imports. We hold that, in any event, Georgia's assessment of a nondiscriminatory ad valorem property tax against the imported tires is not within the constitutional prohibition against laying "any Imposts or Duties on Imports . . . " and that insofar as Low v. Austin, 13 Wall. 29, 20 L.Ed. 517 (1872) is to the contrary, that decision is overruled.
2
* Petitioner, a New York corporation qualified to do business in Georgia, operates as an importer and wholesale distributor in the United States of automobile and truck tires and tubes manufactured in France and Nova Scotia by Michelin Tires Ltd. The business is operated from distribution warehouses in various parts of the country. Distribution and sale of tires and tubes from the Gwinnett County warehouse is limited to the 250-300 franchised dealers with whom petitioner does all of its business in six southeastern States. Some 25% Of the tires and tubes are manufactured in and imported from Nova Scotia, and are brought to the United States in tractor-driven, over-the-road trailers packed and sealed at the Nova Scotia factory. The remaining 75% Of the imported tires and tubes are brought to the United States by sea from France and Nova Scotia in sea vans packed and sealed at the foreign factories. Sea vans are essentially over-the-road trailers from which the wheels are removed before being loaded aboard ship. Upon arrival of the ship at the United States port of entry, the vans are unloaded, the wheels are replaced, and the vans are tractor-hauled to petitioner's distribution warehouse after clearing customs upon payment of a 4% Import duty.
3
The imported tires, each of which has its own serial number, are packed in bulk into the trailers and vans, without otherwise being packaged or bundled. They lose their identity as a unit, however, when unloaded from the trailers and vans at the distribution warehouse. When unloaded they are sorted by size and style, without segregation by place of manufacture, stacked on wooden pallets each bearing four stacks of five tires of the same size and style, and stored in pallet stacks of three pallets each. This is the only processing required or performed to ready the tires for sale and delivery to the franchised dealers.
4
Sales of tires and tubes from the Gwinnett County distribution warehouse to the franchised dealers average 4,000-5,000 pounds per sale. Orders are filled without regard to the shipments in which the tires and tubes arrived in the United States or the place of their manufacture. Delivery to the franchised dealers is by common carrier or customer pickup.
II
5
Both Georgia courts addressed the question whether, without regard to whether the imported tires had lost their character as imports, Georgia's nondiscriminatory ad valorem tax fell within the constitutional prohibition against the laying by States of "any Imposts or Duties on Imports . . . ." The Superior Court expressed strong doubts that the ad valorem tax fell within the prohibition but concluded that it was bound by this Court's decisions to the contrary. The Superior Court stated:
6
"While it would seem that where said tires and tubes have been placed in (petitioner's) general inventory for the purpose of sale to its customers, . . . such inventory should be taxed to the same extent as any other inventory of any other business in Gwinnett County, and the Court would so hold if supported by the law, it is clear that where the property is imported for resale it retains its import exemption from ad valorem taxes until after such sale," "(for) (t)he immunity of imported goods from local taxation includes immunity from local ad valorem property taxes; Hooven & Allison Company v. Evatt, 324 U.S. 652 (65 S.Ct. 870, 89 L.Ed. 1252); Low v. Austin, 80 U.S. 29 (20 L.Ed. 517)." Pet. for Cert., App. A-4, A-3.
7
Similarly, the Georgia Supreme Court stated, 233 Ga., at 722, 214 S.E.2d, at 355:
8
"(Petitioners) argue that an annual ad valorem tax is not a tax on imports within the meaning of the federal constitutional provision. We reject this argument on the basis of the above-cited authority. (E. g., Low v. Austin.)"
9
Low v. Austin, supra, is the leading decision of this Court holding that the States are prohibited by the Import-Export Clause from imposing a nondiscriminatory ad valorem property tax on imported goods until they lose their character as imports and become incorporated into the mass of property in the State. The Court there reviewed a decision of the California Supreme Court that had sustained the constitutionality of California's nondiscriminatory ad valorem tax on the ground that the Import-Export Clause only prohibited taxes upon the character of the goods as imports and therefore did not prohibit nondiscriminatory taxes upon the goods as property. See 13 Wall., at 30-31. This Court reversed on its reading of the seminal opinion construing the Import-Export Clause, Brown v. Maryland, 12 Wheat. 419, 6 L.Ed. 678 (1827), as holding that "(w)hilst retaining their character as imports, a tax upon them, in any shape, is within the constitutional prohibition." 13 Wall., at 34.
10
Scholarly analysis has been uniformly critical of Low v. Austin. It is true that Mr. Chief Justice Marshall, speaking for the Court in Brown v. Maryland, supra, at 442, said that "while (the thing imported remains) the property of the importer, in his warehouse, in the original form or package in which it was imported, a tax upon it is too plainly a duty on imports to escape the prohibition in the constitution." Commentators have uniformly agreed that Low v. Austin misread this dictum in holding that the Court in Brown included nondiscriminatory ad valorem property taxes among prohibited "imposts" or "duties," for the contrary conclusion is plainly to be inferred from consideration of the specific abuses which led the Framers to include the ImportExport Clause in the Constitution. See, e. g., Powell, State Taxation of Imports When Does an Import Cease to Be an Import?, 58 Harv.L.Rev. 858 (1945); Note, The Supreme Court, 1958 Term, 73 Harv.L.Rev. 126, 176 (1959); Early & Weitzman, A Century of Dissent: The Immunity of Goods Imported for Resale From Nondiscriminatory State Personal Property Taxes, 7 Sw.U.L.Rev. 247 (1975); Dakin, The Protective Cloak of the Export-Import Clause: Immunity for the Goods or Immunity for the Process?, 19 La.L.Rev. 747 (1959).
11
Our independent study persuades us that a nondiscriminatory ad valorem property tax is not the type of state exaction which the Framers of the Constitution or the Court in Brown had in mind as being an "impost" or "duty" and that Low v. Austin's reliance upon the Brown dictum to reach the contrary conclusion was misplaced.
III
12
One of the major defects of the Articles of Confederation, and a compelling reason for the calling of the Constitutional Convention of 1787, was the fact that the Articles essentially left the individual States free to burden commerce both among themselves and with foreign countries very much as they pleased. Before 1787 it was commonplace for seaboard States with port facilities to derive revenue to defray the costs of state and local governments by imposing taxes on imported goods destined for customers in other States. At the same time, there was no secure source of revenue for the central government. James Madison, in his Preface to Debates in the Convention of 1787, 3 M. Farrand, The Records of the Federal Convention of 1787, p. 542 (1911) (hereafter Farrand), provides a graphic description of the situation:
13
"The other source of dissatisfaction was the peculiar situation of some of the States, which having no convenient ports for foreign commerce, were subject to be taxed by their neighbors, thro whose ports, their commerce was carryed on. New Jersey, placed between Phila. & N. York, was likened to a Cask tapped at both ends: and N. Carolina between Virga. & S. Carolina to a patient bleeding at both Arms. The Articles of Confederation provided no remedy for the complaint: which produced a strong protest on the part of N. Jersey; and never ceased to be a source of dissatisfaction & discord, until the new Constitution, superseded the old."3
And further, id., at 546-548:
14
"Rh. I. was the only exception to a compliance with the recommendation from Annapolis (to have a Const. Convention), well known to have been swayed by an obdurate adherence to an advantage which her position gave her of taxing her neighbors thro' their consumption of imported supplies, an advantage which it was foreseen would be taken from her by a revisal of the Articles of Confederation.
15
"The same want of a general power over Commerce led to an exercise of this power separately, by the States, wch not only proved abortive, but engendered rival, conflicting and angry regulations. Besides the vain attempts to supply their respective treasuries by imposts, which turned their commerce into the neighbouring ports, and to co-erce a relaxation of the British monopoly of the W. Indn. navigation, which was attemted by Virga. . . . the States having ports for foreign commerce, taxed & irritated the adjoining States, trading thro' them, as N.Y. Pena. Virga. & S-Carolina."
16
The Framers of the Constitution thus sought to alleviate three main concerns by committing sole power to lay imposts and duties on imports in the Federal Government, with no concurrent state power: the Federal Government must speak with one voice when regulating commercial relations with foreign governments, and tariffs, which might affect foreign relations, could not be implemented by the States consistently with that exclusive power;4 import revenues were to be the major source of revenue of the Federal Government and should not be diverted to the States;5 and harmony among the States might be disturbed unless seaboard States, with their crucial ports of entry, were prohibited from levying taxes on citizens of other States by taxing goods merely flowing through their ports to the other States not situated as favorably geographically.6
17
Nothing in the history of the Import-Export Clause even remotely suggests that a nondiscriminatory ad valorem property tax which is also imposed on imported goods that are no longer in import transit was the type of exaction that was regarded as objectionable by the Framers of the Constitution. For such an exaction, unlike discriminatory state taxation against imported goods as imports, was not regarded as an impediment that severely hampered commerce or constituted a form of tribute by seaboard States to the disadvantage of the other States.
18
It is obvious that such nondiscriminatory property taxation can have no impact whatsoever on the Federal Government's exclusive regulation of foreign commerce, probably the most important purpose of the Clause's prohibition. By definition, such a tax does not fall on imports as such because of their place of origin. It cannot be used to create special protective tariffs or particular preferences for certain domestic goods, and it cannot be applied selectively to encourage or discourage any importation in a manner inconsistent with federal regulation.
19
Nor will such taxation deprive the Federal Government of the exclusive right to all revenues from imposts and duties on imports and exports, since that right by definition only extends to revenues from exactions of a particular category; if nondiscriminatory ad valorem taxation is not in that category, it deprives the Federal Government of nothing to which it is entitled. Unlike imposts and duties, which are essentially taxes on the commercial privilege of bringing goods into a country, such property taxes are taxes by which a State apportions the cost of such services as police and fire protection among the beneficiaries according to their respective wealth; there is no reason why an importer should not bear his share of these costs along with his competitors handling only domestic goods. The Import-Export Clause clearly prohibits state taxation based on the foreign origin of the imported goods, but it cannot be read to accord imported goods preferential treatment that permits escape from uniform taxes imposed without regard to foreign origin for services which the State supplies. See, e. g., May v. New Orleans, 178 U.S. 496, 20 S.Ct. 976, 44 L.Ed. 1165, 502-504, 507-509 (1900). It may be that such taxation could diminish federal impost revenues to the extent its economic burden may discourage purchase or importation of foreign goods. The prevention or avoidance of this incidental effect was not, however, even remotely an objective of the Framers in enacting the prohibition. Certainly the Court in Brown did not think so. See 12 Wheat., at 443-444. Taxes imposed after an initial sale, after the breakup of the shipping packages, or the moment goods imported for use are committed to current operational needs are also all likely to have an incidental effect on the volume of goods imported; yet all are permissible. See, e. g., Waring v. The Mayor, 8 Wall. 110, 19 L.Ed. 342 (1869) (taxation after initial sale); May v. New Orleans, supra, (taxation after breakup of shipping packages); Youngstown Sheet & Tube Co. v. Bowers, 358 U.S. 534, 79 S.Ct. 383, 3 L.Ed.2d 490 (1959) (taxation of goods committed to current operational needs by manufacturer). What those taxes and nondiscriminatory ad valorem property taxes share, it should be emphasized, is the characteristic that they cannot be selectively imposed and increased so as substantially to impair or prohibit importation.7
20
Finally, nondiscriminatory ad valorem property taxes do not interfere with the free flow of imported goods among the States, as did the exactions by States under the Articles of Confederation directed solely at imported goods. Indeed, importers of goods destined for inland States can easily avoid even those taxes in today's world. Modern transportation methods such as air freight and containerized packaging, and the development of railroads and the Nation's internal waterways, enable importation directly into the inland States. Petitioner, for example, operates other distribution centers from wholesale warehouses in inland States. Actually, a quarter of the tires distributed from petitioner's Georgia warehouse are imported interstate directly from Canada. To be sure, allowance of nondiscriminatory ad valorem property taxation may increase the cost of goods purchased by "inland" consumers.8 But as already noted, such taxation is the quid pro quo for benefits actually conferred by the taxing State. There is no reason why local taxpayers should subsidize the services used by the importer; ultimate consumers should pay for such services as police and fire protection accorded the goods just as much as they should pay transportation costs associated with those goods.9 An evil to be prevented by the Import-Export Clause was the levying of taxes which could only be imposed because of the peculiar geographical situation of certain States that enabled them to single out goods destined for other States. In effect, the Clause was fashioned to prevent the imposition of exactions which were no more than transit fees on the privilege of moving through a State.10 A non-discriminatory ad valorem property tax obviously stands on a different footing, and to the extent there is any conflict whatsoever with this purpose of the Clause, it may be secured merely by prohibiting the assessment of even nondiscriminatory property taxes on goods which are merely in transit through the State when the tax is assessed.11
21
Admittedly, the wording of the prohibition of the Import-Export Clause does not in terms except nondiscriminatory taxes with some impact on imports or exports. But just as clearly, the Clause is not written in terms of a broad prohibition of every "tax." The prohibition is only against States laying "Imposts or Duties" on "Imports." By contrast, Congress is empowered to "lay and collect Taxes, Duties, Imposts, and Excises" which plainly lends support to a reading of the Import-Export Clause as not prohibiting every exaction or "tax" which falls in some measure on imported goods. Indeed, Professor Crosskey makes a persuasive demonstration that the words "imposts" and "duties" as used in 1787 had meanings well understood to be exactions upon imported goods as imports. "Imposts" were like customs duties, that is, charges levied on imports at the time and place of importation. "Duties" was a broader term embracing excises as well as customs duties, and probably only capitation, land, and general property exactions were known by the term "tax" rather than the term "duty." 1 W. Crosskey, Politics and the Constitution in the History of the United States 296-297 (1953).12 The characteristic common to both "imposts" and "duties" was that they were exactions directed at imports or commercial activity as such and, as imposed by the seaboard States under the Articles of Confederation, were purposefully employed to regulate interstate and foreign commerce and tax States situated less favorably geographically.
22
In any event, since prohibition of nondiscriminatory ad valorem property taxation would not further the objectives of the Import-Export Clause, only the clearest constitutional mandate should lead us to condemn such taxation. The terminology employed in the Clause "Imposts or Duties" is sufficiently ambiguous that we decline to presume it was intended to embrace taxation that does not create the evils the Clause was specifically intended to eliminate.
IV
23
The Court in Low v. Austin nevertheless expanded the prohibition of the Clause to include nondiscriminatory ad valorem property taxes, and did so with no analysis, but with only the statement that Brown v. Maryland had marked the line "where the power of Congress over the goods imported ends, and that of the State begins, with as much precision as the subject admits." 13 Wall., at 32. But the opinion in Brown v. Maryland cannot properly be read to propose such a broad definition of "imposts" or "duties." The tax there held to be prohibited by the Import-Export Clause was imposed under a Maryland statute that required importers of foreign goods, and wholesalers selling the same by bale or package, to obtain a license and pay a $50 fee therefor, subject to certain forfeitures and penalties for noncompliance. The importers contested the validity of the statute, arguing that the license was a "palpable evasion" of the Import-Export Clause because it was essentially equivalent to a duty on imports. They contended that asserted differences between the license fee and a tax directly imposed on imports were more formal than substantial: the privilege of bringing the goods into the country could not realistically be divorced from the privilege of selling the goods, since the power to prohibit sale would be the power to prohibit importation, 12 Wheat., at 422; the payment of the tax at the time of sale rather than at the time of importation would be irrelevant since it would still be a tax on the same privilege at either time, id., at 423; and the fact that a license operates on the person of the importer while the duty operates on the goods themselves is irrelevant in that either levy would directly increase the cost of the goods, ibid. Since the power to impose a license on importers would also entail a power to price them out of the market or prohibit them entirely, the importers concluded that such a power must be repugnant to the exclusive federal power to regulate foreign commerce, id., at 423-425.
24
The Attorney General of Maryland, Roger Taney, later Chief Justice, defended the constitutionality of Maryland's law. He argued that the fee was not a prohibited "impost" or "duty" because the license fee was not a tax upon the imported goods, but on the importers, a tax upon the occupation and nothing more, and the Import-Export Clause prohibited only exactions on the right of importation and not an exaction upon the occupation of importers. He contended that, in any event, the Clause, if not read as prohibiting only exactions on the right of importation, but more broadly as also prohibiting exactions on goods imported, would necessarily immunize imports from all state taxation at any time. Moreover, if the privilege of selling is a concomitant of the privilege of importing, the argument proved too much; the importer could sell free of regulation by the States in any place and in any manner, even importing free of regulations concerning the bringing of noxious goods into the city, or auctioning the goods in public warehouses, or selling at retail or as a traveling peddler, activities that had traditionally been subject to state regulation and taxation.
25
The Court in Brown refused to define "imposts" or "duties" comprehensively, since the Maryland statute presented only the question "whether the legislature of a State can constitutionally require the importer of foreign articles to take out a license from the State, before he shall be permitted to sell a bale or package so imported." 12 Wheat., at 436. However, in holding that the Maryland license fee was within prohibited "imposts, or duties on imports . . ." the Court significantly characterized an impost or duty as "a custom or a tax levied on articles brought into a country," id., at 437, although also holding that, while normally levied before the articles are permitted to enter, the exactions are no less within the prohibition if levied upon the goods as imports after entry; since "imports" are the goods imported, the prohibition of imposts or duties on "imports" was more than a prohibition of a tax on the act of importation; it "extends to a duty levied after (the thing imported) has entered the country," id., at 438. And since the power to prohibit sale of an article is the power to prohibit its introduction into the country, the privilege of sale must be a concomitant of the privilege of importation, and licenses on the right to sell must therefore also fall within the constitutional prohibition. Id., at 439.
26
Taney's argument was persuasive, however, to the extent that the Court "was prompted to declare that the words of the prohibition ought not to be pressed to their utmost extent; . . . in our complex system, the object of the powers conferred on the government of the Union, and the nature of the often conflicting powers which remain in the States, must always be taken into view . . . (T)here must be a point of time when the prohibition ceases, and the power of the State to tax commences . . . ." Id., at 441.
27
The Court stated that there were two situations in which the prohibition would not apply. One was the case of a state tax levied after the imported goods had lost their status as imports. The Court devised an evidentiary tool, the "original package" test, for use in making that determination. The formula was: "It is sufficient for the present to say, generally, that when the importer has so acted upon the thing imported, that it has become incorporated and mixed up with the mass of property in the country, it has, perhaps, lost its distinctive character as an import, and has become subject to the taxing power of the State; but while remaining the property of the importer, in his warehouse, in the original form or package in which it was imported, a tax upon it is too plainly a duty on imports to escape the prohibition in the constitution." Id., at 441-442. "It is a matter of hornbook knowledge that the original package statement of Justice Marshall was an illustration, rather than a formula, and that its application is evidentiary, and not substantive . . . ." Galveston v. Mexican Petroleum Corp., 15 F.2d 208 (SD Tex.1926).
28
The other was the situation of particular significance to our decision of this case, that is, when the particular state exaction is not a prohibited "impost" or "duty." The Court first stated its view of the characteristics of prohibited state levies. It said that the obvious clue was the express exception of the Import-Export Clause authorizing "imposts or duties" that "may be absolutely necessary for executing (the State's) inspection Laws." "(T)his exception," said the Court, "in favour of duties for the support of inspection laws, goes far in proving that the framers of the constitution classed taxes of a similar character with those imposed for the purposes of inspection, with duties on imports and exports, and supposed them to be prohibited." 12 Wheat., at 438 (emphasis supplied). The characteristic of the prohibited levy, the Court said later in the opinion illustrated by the Maryland license tax was that "the tax intercepts the import, as an import, in its way to become incorporated with the general mass of property, and denies it the privilege of becoming so incorporated until it shall have contributed to the revenue of the State." Id., at 443 (emphasis supplied). The Court illustrated the kinds of state exactions that in its view fell without the prohibition as examples of neutral and nondiscriminatory taxation: a tax on itinerant peddlers, a service charge for the use of a public auctioneer, a property tax on plate or furniture personally used by the importer. These could not be considered within the constitutional prohibition because they were imposed without regard to the origin of the goods taxed. Id., at 443, 444. In contrast, the Maryland exaction in question was a license fee which singled out imports, and therefore was prohibited because "the tax intercepts the import, as an import, in its way to become incorporated with the general mass of property." Id., at 443. (Emphasis supplied.)
29
Thus, it is clear that the Court's view in Brown was that merely because certain actions taken by the importer on his imported goods would so mingle them with the common property within the State as to "lose their distinctive character as imports" and render them subject to the taxing power of the State, did not mean that in the absence of such action, no exaction could be imposed on the goods. Rather, the Court clearly implied that the prohibition would not apply to a state tax that treated imported goods in their original packages no differently from the "common mass of property in the country"; that is, treated it in a manner that did not depend on the foreign origins of the goods.
30
Despite the language and objectives of the Import-Export Clause, and despite the limited nature of the holding in Brown v. Maryland, the Court in Low v. Austin, ignored the warning that the boundary between the power of States to tax persons and property within their jurisdictions and the limitations on the power of the States to impose imposts or duties with respect to "imports" was a subtle and difficult line which must be drawn as the cases arise. Low v. Austin also ignored the cautionary remark that, for those reasons, it "might be premature to state any rule as being universal in its application." 12 Wheat., at 441. Although it was "sufficient" in the context of Maryland's license tax on the right to sell imported goods to note that a tax imposed directly on imported goods which have not been acted upon in any way would clearly fall within the constitutional prohibition, that observation did not apply, as the foregoing analysis indicates, to a state tax which treated those same goods without regard to the fact of their foreign origin.
31
Low v. Austin compounded the error in misreading the Brown opinion by the further error of misreading the views of Mr. Chief Justice Taney as expressed in his opinion in the License Cases, 5 How. 504 (1847) (six Justices wrote separately in the cases). As already observed, when the Chief Justice was Attorney General of Maryland he argued Brown v. Maryland, for the State. He had argued that the Maryland license fee requirement fell upon the importer, not the imported goods, and therefore fell without the Import-Export Clause's prohibition against imposts or duties on "imports." In the License Cases he observed that "further and more mature reflection has convinced me that the rule laid down (in Brown v. Maryland ) is a just and safe one, and perhaps the best that could have been adopted for preserving the right of the United States on the one hand, and of the States on the other, and preventing collision between them. The question, I have already said, was a very difficult one for the judicial mind. In the nature of things, the line of division is in some degree vague and indefinite, and I do not see how it could be drawn more accurately and correctly, or more in harmony with the obvious intention and object of this provision in the constitution. Indeed, goods imported, while they remain in the hands of the importer, in the form and shape in which they were brought into the country, can in no just sense be regarded as a part of that mass of property in the State usually taxed for the support of the State government." 5 How., at 575.
32
Low v. Austin quoted this excerpt, 13 Wall., at 33-34, as supporting the holding, id., at 34, that "a tax upon (imported goods), in any shape, is within the constitutional prohibition." But Mr. Chief Justice Taney said much more in his opinion in the License Cases, and what he said further makes crystal clear that the prohibition applied only to state exactions upon imports as imports and did not apply to nondiscriminatory ad valorem property taxes. For, continuing his analysis in the very paragraph from which Low v. Austin excerpted only a part, he concluded: "A tax in any shape . . . cannot be done directly, in the shape of a duty on imports, for that is expressly prohibited. And as it cannot be done directly, it could hardly be a just and sound construction of the constitution which would enable a State to accomplish precisely the same thing under another name, and in a different form." 5 How., at 576 (emphasis supplied). The Chief Justice then went on to distinguish an exaction upon imports as imports from property taxes indiscriminately applied to all owners of property, stating, ibid. :
33
"Undoubtedly a State may impose a tax upon its citizens in proportion to the amount they are respectively worth; and the importing merchant is liable to this assessment like any other citizen, and is chargeable according to the amount of his property, whether it consists of money engaged in trade, or of imported goods which he proposes to sell, or any other property of which he is the owner.
34
But a tax of this description stands upon a very different footing from a tax on the thing imported, while it remains a part of foreign commerce, and is not introduced into the general mass of property in the State." (Emphasis supplied.)
35
Thus Mr. Chief Justice Taney's opinion is authority, precisely contrary to the reading of Low v. Austin, that nondiscriminatory ad valorem property taxes are not prohibited by the Import-Export Clause.
36
It follows from the foregoing that Low v. Austin was wrongly decided. That decision therefore must be, and is, overruled.13
V
37
Petitioner's tires in this case were no longer in transit. They were stored in a distribution warehouse from which petitioner conducted a wholesale operation, taking orders from franchised dealers and filling them from a constantly replenished inventory. The warehouse was operated no differently than would be a distribution warehouse utilized by a wholesaler dealing solely in domestic goods, and we therefore hold that the nondiscriminatory property tax levied on petitioner's inventory of imported tires was not interdicted by the Import-Export Clause of the Constitution. The judgment of the Supreme Court of Georgia is accordingly
38
Affirmed.
39
Mr. Justice STEVENS took no part in the consideration or decision of this case.
40
Mr. Justice WHITE, concurring in the judgment.
41
Being of the view that the goods involved here had lost their character as imports and that subjecting them to ad valorem taxation was consistent with the Constitution as interpreted by prior cases, including Low v. Austin, 13 Wall. 29 (1872), I would affirm the judgment. There is little reason and no necessity at this time to overrule Low v. Austin. None of the parties has challenged that case here, and the issue of its overruling has not been briefed or argued.
1
Petitioner's complaint conceded the taxability of certain passenger tubes that had been removed from the original shipping cartons. These had a value of $633.92 on the assessment date January 1, 1972, and of $664.22 on the assessment date January 1, 1973. The tax for 1972 on the tubes was $8.03 and for 1973 was $8.73.
2
The respondents did not cross-petition from the affirmance of the holding of the Superior Court that the tubes in the corrugated shipping cartons were immune from the tax, and that holding is therefore not before us for review.
3
Madison noted the States' aversion to the transfer of power to a central government "notwithstanding the urgent demands of the Federal Treasury; the glaring inadequacy of the authorized mode of supplying it, the rapid growth of anarchy in the Fedl. System, and the animosity kindled among its members by their conflicting regulations." 3 Farrand 544. See also, e. g., 1 id., at 19 (Mr. Randolph's comments concerning defects of Articles of Confederation); id., at 462 (Mr. Ghorum, in explaining why small States should not object to the formation of the Union, notes: "Should a separation of the States take place, the fate of N. Jersey wd. be worst of all. She has no foreign commerce & can have but little. Pa. & N. York will continue to levy taxes on her consumption"); 3 id., at 328-329 (Mr. Madison's remarks during debate at the Virginia Convention).
4
See, e. g., Brown v. Maryland, 12 Wheat. 419, 439 (1827); Cook v. Pennsylvania, 97 U.S. 566, 574, 24 L.Ed. 1015 (1878); Youngstown Sheet & Tube Co. v. Bowers, 358 U.S. 534, 555-556, 79 S.Ct. 383, 3 L.Ed.2d 490 (1959) (Frankfurter, J., dissenting); The Federalist Nos. 11 (Hamilton), 12 (Hamilton), 42 (Madison), 44 (Madison); 2 Farrand 135, 157-158, 169 (notes of Committee of Detail); id., at 441; 3 id., at 520-521 (letter of James Madison to Professor Davis); id., at 547-548.
5
See, e. g., Brown v. Maryland, supra, 12 Wheat., at 439; Youngstown Sheet & Tube Co. v. Bowers, supra, 358 U.S., at 556, 79 S.Ct. 383, 3 L.Ed.2d 490 (Frankfurter, J., dissenting); The Federalist No. 12.
6
See, e. g., Brown v. Maryland, supra, 12 Wheat., at 440; Cook v. Pennsylvania, supra, 97 U.S., at 574, 24 L.Ed. 1015; Youngstown Sheet & Tube Co. v. Bowers, supra, 358 U.S., at 545, 79 S.Ct. 383, 3 L.Ed.2d 490; id., at 556-557, 79 S.Ct. 383 (Frankfurter, J., dissenting); 2 Farrand 441-442, 589; 3 id., at 519 (letter of James Madison to Professor Davis).
7
Of course, discriminatory taxation in such circumstances is not inconceivable. For example, a State could pass a law which only taxed the retail sale of imported goods, while the retail sale of domestic goods was not taxed. Such a tax, even though operating after an "initial sale" of the imports would, of course, be invalidated as a discriminatory imposition that was, in practical effect, an impost. Nothing in the opinion in Brown v. Maryland should suggest otherwise. The Court in Brown merely presumed that at these later stages of commercial activity, state impositions would not be discriminatory. But merely because Brown would have authorized a nondiscriminatory charge on even an importer's use of the services of a public auctioneer, see 12 Wheat., at 443, does not mean that it would have disapproved the holding of Cook v. Pennsylvania, 97 U.S. 566 (1878), which invalidated a tax on the sale of goods by auction that discriminated against foreign goods.
8
Of course, depending on the relevant competition from domestic goods, an importer may be forced to absorb some of these ad valorem property assessments rather than passing them on to consumers.
9
Cooley v. Board of Wardens of Port of Philadelphia, 12 How. 299, 13 L.Ed. 996 (1852), upheld pilotage fees imposed by the city of Philadelphia. It expressly rejected the argument that these fees were prohibited "imposts or duties," id., at 314:
"(The Import-Export Clause) was intended to operate upon subjects actually existing and well understood when the constitution was formed. Imposts and duties on imports, exports, and tonnage were then known to the commerce of a civilized world to be as distinct from fees and charges for pilotage, and from the penalties by which commercial States enforced their pilot-laws, as they were from charges for wharfage or towage, or any other local port-charges for services rendered to vessels or cargoes; and to declare that such pilot-fees or penalties are embraced within the words imposts or duties on imports, exports, or tonnage, would be to confound things essentially different, and which must have been known to be actually different by those who used this language. It cannot be denied that a tonnage duty, or an impost on imports or exports, may be levied under the name of pilot dues or penalties; and certainly it is the thing, and not the name, which is to be considered. But, having previously stated that, in this instance, the law complained of does not pass the appropriate line which limits laws for the regulation of pilots and pilotage, the suggestion, that this law levies a duty on tonnage or on imports or exports, is not admissible; and, if so, it also follows, that this law is not repugnant to the first clause of the eighth section of the first article of the constitution, which declares that all duties, imposts, and excises shall be uniform throughout the United States; for, if it is not to be deemed a law levying a duty, impost, or excise, the want of uniformity throughout the United States is not objectionable. Indeed, the necessity of conforming regulations of pilotage to the local peculiarities of each port, and the consequent impossibility of having its charges uniform throughout the United States, would be sufficient of itself to prove that they could not have been intended to be embraced within this clause of the constitution; for it cannot be supposed uniformity was required, when it must have been known to be impracticable."
Such fees, of course, would nevertheless likely increase the cost of the goods being imported. Thus more than a mere cost impact on imported goods is required before an exaction can be deemed to fall within the Clause's prohibition.
10
See, e. g., License Cases, 5 How. 504, 575-576 (1847) (Taney, C.J.).
11
Such an assessment would also be invalid under traditional Commerce Clause analysis.
12
In 2 Farrand 305, the following is reported as having occurred during the debate on the last draft of the Tax Clause submitted by the Committee of Detail:
"Mr. L. Martin asked what was meant by the Committee of detail (in the expression) 'duties' and 'imposts.' If the meaning were the same, the former was unnecessary; if different, the matter ought to be made clear.
"Mr. Wilson, duties are applicable to many objects to which the word imposts does not relate. The latter are appropriated to commerce; the former extend to a variety of objects, as stamp duties, &c."
Subsequently, Mr. Martin also stated in his "Genuine Information" delivered to the Maryland Legislature, see 3 Farrand at 203-204:
"By the eighth section of this article, Congress is to have power to lay and collect taxes, duties, imposts, and excises. When we met in convention after our adjournment, to receive the report of the committee of detail, the members of that committee were requested to inform us, what powers were meant to be vested in Congress by the word duties in this section, since the word imposts extended to duties on goods imported, and by another part of the system no duties on exports were to be laid. In answer to this inquiry, we were informed, that it was meant to give the general government the power of laying stamp duties on paper, parchment, and vellum. . . . By the power to lay and collect imposts, they may impose duties on any or every article of commerce imported into these States, to what amount they please. By the power to lay excises, a power very odious in its nature, since it authorizes officers to go into your houses, your kitchens, your cellars, and to examine into your private
concerns, the Congress may impose duties on every article of use or consumption, on the food that we eat, on the liquors we drink, on the clothes that we wear, the glass which enlightens our houses, or the hearths necessary for our warmth and comfort. By the power to lay and collect taxes, they may proceed to direct taxation on every individual, either by a capitation tax on their heads, or an assessment on their property. By this part of the section therefore, the government has power to lay what duties they please on goods imported; to lay what duties they please, afterwards, on whatever we use or consume; to impose stamp duties to what amount they please, and in whatever case they please; afterwards to impose on the people direct taxes, by capitation tax, or by assessment, to what amount they choose . . .."
A similar recognition that commercial "imposts" do not encompass property "taxes" appears in The Federalist No. 12, pp. 80-81, 84 (Bourne ed. 1947):
"It is evident from the state of the country, from the habits of the people, from the experience we have had on the point itself, that it is impracticable to raise any very considerable sums by direct taxation. Tax laws have in vain been multiplied; new methods to enforce the collection have in vain been tried; the public expectation has been uniformly disappointed, and the treasuries of the States have remained empty. The popular system of administration inherent in the nature of popular government, coinciding with the real scarcity of money incident to a languid and mutilated state of trade, has hitherto defeated every experiment for extensive collections, and has at length taught the different legislatures the folly of attempting them.
"No person acquainted with what happens in other countries will be surprised at this circumstance. In so opulent a nation as that of Britain, where direct taxes from superior wealth must be much more tolerable, and, from the vigor of the government, much more practicable, than in America, far the greatest part of the national revenue is derived from taxes of the indirect kind, from imposts, and from excises. Duties on imported articles form a large branch of this latter description.
"In America, it is evident that we must a long time depend for
the means of revenue chiefly on such duties. In most parts of it, excises must be confined within a narrow compass. The genius of the people will ill brook the inquisitive and peremptory spirit of excise laws. The pockets of the farmers, on the other hand, will reluctantly yield but scanty supplies, in the unwelcome shape of impositions on their houses and lands; and personal property is too precarious and invisible a fund to be laid hold of in any other way than by the imperceptible agency of taxes on consumption.
" . . . A nation cannot long exist without revenues. Destitute of this essential support, it must resign its independence, and sink into the degraded condition of a province. This is an extremity to which no government will of choice accede. Revenue, therefore, must be had at all events. In this country, if the principal part be not drawn from commerce, it must fall with oppressive weight upon land. It has been already intimated that excises, in their true signification, are too little in unison with the feelings of the people, to admit of great use being made of that mode of taxation; nor, indeed, in the States where almost the sole employment is agriculture, are the objects proper for excise sufficiently numerous to permit very ample collections in that way. Personal estate (as has been before remarked), from the difficulty in tracing it, cannot be subjected to large contributions, by any other means than by taxes on consumption."
See also, e. g., The Federalist Nos. 30, 32, 35, 36; T. Cooley, The General Principles of Constitutional Law in the United States c. V, § 3, c. VII, § 14 (Bruce ed. 1931); 2 J. Story, Commentaries on the Constitution of the United States §§ 946-950, 954, 1013-1014 (1833); n. 9, supra.
13
In another context, this Court said that "(i)n view of the fact that the Constitution gives Congress authority to consent to state taxation of imports and hence to lay down its own test for determining when the immunity ends, we see no convincing practical reason for abandoning the test which has been applied for more than a century . . . ." Hooven & Allison Co. v. Evatt, 324 U.S. 652, 668, 65 S.Ct. 870, 878, 89 L.Ed. 1252 (1945). However, this overlooked the fact that the Import-Export Clause contains a provision that "the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States . . . ." Although the Constitutional Convention had refused to make the Import-Export Clause's prohibition of state exactions absolute, it immediately added that proviso, which Mr. Madison supported "as preventing all State imposts." 2 Farrand 441-442. See also, e. g., 3 id., at 215-216 (Luther Martin's "Genuine Information"). Of course, Congress presumably could enact other legislation transferring the funds back to the States after they were put to "the Use of the Treasury of the United States." But may Congress consent to state exactions if they are not uniform throughout the United States, since any congressional taxation must conform to the mandate of Art. I, § 8, cl. 1, that "all Duties, Imposts and Excises shall be uniform throughout the United States?" If Congress may authorize, under the Import-Export Clause, an exaction that it could not directly impose under the Tax Clause, would that not permit Congress to undermine the policies which both Clauses were fashioned to secure? Since, however, we hold that Low v. Austin was not properly decided, there is no occasion to address the question whether Congress could have constitutionally consented to state nondiscriminatory ad valorem property taxes if they had been within the prohibition of the Import-Export Clause.
| 78
|
423 U.S. 261
96 S.Ct. 549
46 L.Ed.2d 483
F. David MATHEWS, Secretary of Health, Education, and Welfare, Petitioner,v.William G. WEBER.
No. 74-850.
Argued Nov. 4, 1975.
Decided Jan. 14, 1976.
Syllabus
In addition to authorizing United States magistrates to perform certain specified statutory functions, the Federal Magistrates Act (Act) authorizes district courts to assign to magistrates "such additional duties as are not inconsistent with the Constitution and laws of the United States." 28 U.S.C. § 636(b). Pursuant to that provision, the District Court adopted General Order No. 104-D, which, inter alia, requires initial reference to a magistrate of actions to review administrative determinations regarding entitlement to Social Security benefits, including Medicare. Respondent challenged the final determination of the Secretary of Health, Education, and Welfare that respondent was not entitled to claimed Medicare benefits. Under 42 U.S.C. § 405(g) a district court can review such a determination only on the basis of the pleadings and administrative record, and the court is bound by the Secretary's factual findings if supported by substantial evidence. The case was assigned to a District Judge and at the same time referred to a Magistrate to "prepare a proposed written order or decision, together with proposed findings of fact and conclusions of law where necessary or appropriate" for consideration by the District Judge after the Magistrate had reviewed the record and heard the parties' arguments. Contending that the reference to the Magistrate under the District Court's general order violated Fed.Rule Civ.Proc. 53(b) and was not authorized by the Act, the Secretary moved to vacate the order of reference. The District Court refused to vacate the reference order. The Court of Appeals affirmed. Held: In the context of this case, the preliminary-review function assigned to the Magistrate was one of the "additional duties" that the Act contemplates magistrates are to perform. Pp. 266-275.
(a) Section 636(b) was enacted to permit district courts to increase the scope of responsibilities that magistrates can undertake upon reference, as part of its plan "to establish a system capable of increasing the overall efficiency of the Federal judiciary." But Congress also intended that in such references the district judge retain ultimate responsibility for decisionmaking. Pp. 266-270.
(b) In this type of case the magistrate helps the court focus on the relevant portions of what might be a voluminous record and move directly to any substantial legal arguments, by putting before the court a preliminary evaluation of the evidence in the record. Although substantially assisting the court, the magistrate performs only a preliminary review of a closed administrative record, and any recommendation to the court is confined to whether or not substantial evidence supports the Secretary's decision. The final determination remains with the judge, who has discretion to review the record anew. Pp. 270-272.
(c) The order of reference here does not constitute the magistrate a special master and there is no conflict with the requirement of Fed.Rule Civ.Proc. 53(b) that "reference to a master shall be the exception and not the rule," made in nonjury cases "only upon a showing that some exceptional condition requires it." The magistrate here acts in an advisory role as a magistrate, not as a master; the judge is free to accept or reject the magistrate's recommendation in whole or in part, whereas under Rule 53(e) the court must accept a special master's finding of fact if it is not clearly erroneous. LaBuy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290, distinguished. Pp. 272-275.
9 Cir., 503 F.2d 1049, affirmed.
Argued by Michael Kimmel, Dept. of Justice, Washington, D.C., for petitioner.
Peter D. Ehrenhaft, Washington, D. C., as amicus curiae, in support of judgment below, by invitation of Court.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
The question presented in this case is whether the Federal Magistrates Act, 28 U.S.C. § 631 et seq., permits a United States district court to refer all Social Security benefit cases to United States magistrates for preliminary review of the administrative record, oral argument, and preparation of a recommended decision as to whether the record contains substantial evidence to support the administrative determination all subject to an independent decision, on the record, by the district judge who may, in his discretion, hear the whole matter anew.
2
(1)
3
Respondent Weber brought this action in the United States District Court for the Central District of California to challenge the final determination of the Secretary of Health, Education and Welfare that he was not entitled to reimbursement under the Medicare provisions of the Social Security Act, as added, 79 Stat. 291, and amended 42 U.S.C. § 1395 et seq., for medical payments he made on behalf of his wife. Such a suit for judicial review is authorized by § 205(g) of the Federal Magistrates Act, as added, 53 Stat. 1370, and amended 42 U.S.C. § 405(g), and governed by its standards. The court may consider only the pleadings and administrative record, and must accept the Secretary's findings of fact so long as they are supported by substantial evidence.
4
When respondent's complaint was filed, the Clerk of the court pursuant to court rule assigned the case to a named District Judge, and simultaneously referred it to a United States Magistrate with directions "to notice and conduct such factual hearings and legal argument as may be appropriate" and to "prepare a proposed written order or decision, together with proposed findings of fact and conclusions of law where necessary or appropriate" for consideration by the District Judge. The Clerk took these steps pursuant to General Order No. 104-D of the District Court, which requires initial reference to a magistrate in seven categories of review of administrative cases,1 including actions filed under 42 U.S.C. § 405(g). The parties may object to the magistrate's recommendations. After acting on any objections the magistrate is to forward the entire file to the district judge to whom the case is assigned for decision; the District Judge "will calendar the matter for oral argument before him if he deems it necessary or appropriate."
5
The Secretary moved to vacate the order of reference, arguing (1) that referral under a general order of this type violated Fed.Rule Civ.Proc. 53(b) and (2) that such referral was not authorized by the Federal Magistrates Act. The Secretary also argued that the reference was of doubtful constitutionality and in contravention of the judicial review provisions of the Social Security Act, arguments that he has expressly declined to make in this Court. The District Court refused to vacate the order of reference, but certified the reference question for appeal under 28 U.S.C. § 1292(b).
6
The Court of Appeals affirmed. 503 F.2d 1049 (CA9 1974). That court stressed the limited and preliminary nature of the inquiry in review actions brought under 42 U.S.C. § 405(g), the limited scope of the Magistrate's role on reference, and the fact that final authority for decision remained with the District Judge. "Were the broad provisions of General Order No. 104-D . . . before us, the Secretary might have grounds to complain. As applied, the rule is not vulnerable to the attack here mounted." 503 F.2d, at 1051. The Court of Appeals thus reached a decision squarely in conflict with the decision of the Court of Appeals for the Sixth Circuit in Ingram v. Richardson, 471 F.2d 1268 (1972). We granted certiorari, 420 U.S. 989, 95 S.Ct. 1422, 43 L.Ed.2d 669 (1975),2 and we affirm.
(2)
7
After several years of study, the Congress in 1968 enacted the Federal Magistrates Act, 28 U.S.C. § 631 et seq. The Act abolished the office of United States commissioner, and sought to "reform the first echelon of the Federal judiciary into an effective component of a modern scheme of justice by establishing a system of U.S. magistrates." S.Rep.No.371, 90th Cong., 1st Sess., 8 (1967) (hereafter Senate Report). In order to improve the former system and to attract the most competent men and women to the office, the Act in essence made the position analogous to the career service, replacing the fee system of compensation with substantial salaries; the Act also gave both full- and part-time magistrates a definite term of office, and required that wherever possible the district courts appoint only members of the bar to serve as magistrates. Magistrates took over most of the duties of the commissioners, and the Act gave them new authority to try a broad range of misdemeanors with the consent of the parties.
8
Title 28 U.S.C. § 636(b) outlines a procedure by which the district courts may call upon magistrates to perform other functions, in both civil and criminal cases. It provides:
9
"Any district court of the United States, by the concurrence of a majority of all the judges of such district court, may establish rules pursuant to which any full-time United States magistrate, or, where there is no full-time magistrate reasonably available, any part-time magistrate specially designated by the court, may be assigned within the territorial jurisdiction of such court such additional duties as are not inconsistent with the constitution and laws of the United States. The additional duties authorized by rule may include, but are not restricted to "(1) service as a special master in an appropriate civil action, pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts;
10
"(2) assistance to a district judge in the conduct of pretrial or discovery proceedings in civil or criminal actions; and
11
"(3) preliminary review of applications for posttrial relief made by individuals convicted of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case as to whether there should be a hearing."
12
The three examples § 636(b) sets out are, as the statute itself states, not exclusive. The Senate sponsor of the legislation, Senator Tydings, testified in the House hearings:
13
"The Magistrate(s) Act specifies these three areas because they came up in our hearings and we thought they were areas in which the district courts might be able to benefit from the magistrate's services. We did not limit the courts to the areas mentioned. Nor did we require that they use the magistrates for additional functions at all.
14
"We hope and think that innovative, imaginative judges who want to clean up their caseload backlog will utilize the U.S. magistrates in these areas and perhaps even come up with new areas to increase the efficiency of their courts." Hearings on the Federal Magistrates Act before Subcommittee No. 4 of the House Committee on the Judiciary, 90th Cong., 2d Sess., 81 (1968) (hereafter House Hearings).
15
See also Hearings on the Federal Magistrates Act before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 89th Cong., 2d Sess., and 90th Cong., 1st Sess., 14, 27 (1966 and 1967) (hereafter Senate Hearings).
16
Section 636(b) was included to "permit . . . the U.S. district courts to assign magistrates, as officers of the courts, a variety of functions . . . presently performable only by the judges themselves." Senate Report, 12. In enacting this section and in expanding the criminal jurisdiction conferred upon magistrates, Congress hoped by "increasing the scope of the responsibilities that can be discharged by that office, . . . to establish a system capable of increasing the overall efficiency of the Federal judiciary . . . ." Id., at 11.
17
The Act grew from Congress' recognition that a multitude of new statutes and regulations had created an avalanche of additional work for the district courts which could be performed only by multiplying the number of judges or giving judges additional assistance. The Secretary argues that Congress intended the transfer to magistrates of simply the irksome, ministerial tasks; respondent3 urges that Congress intended magistrates to take on a wide range of substantive judicial duties and advisory functions. We need not accept the characterization of the federal magistrate as either a "para-judge," as respondent would have it, or a "super-notary," as the Secretary argues, in order to resolve this case; finding the best analogy to this new office is not particularly important. Congress had a number of precedents for this new officer before it: British masters, justices of peace, and magistrates; our own traditional special masters in equity; and pretrial examiners.4 The office Congress created drew on all prior experience. What is important is that the congressional anticipation is becoming a reality; in fiscal 1975, for example, the 500 full- or part-time United States magistrates disposed of 255,061 matters, most of which would otherwise have occupied a district judge. These included 36,766 civil proceedings, 537 of which were Social Security review cases. Annual Report of the Director, Administrative Office of the United States Courts VIII-4 (1975). See also Sussman, The Fourth Tier in the Federal Judicial System: The United States Magistrate, 56 Chicago Bar Record 134 (1974); Geffen, Practice Before the United States Magistrate, 47 L.A. Bar Bull. 462 (1972); Doyle, Implementing the Federal Magistrates Act, 39 J.Kan. Bar Assn. 25 (1970).
18
Congress manifested concern as well as enthusiasm, however, in considering the Act. Several witnesses, including the Director of the Administrative Office and representatives of the Justice Department, expressed some fear that Congress might improperly delegate to magistrates duties reserved by the Constitution to Article III judges. Senate Hearings 107-128, 241n; House Hearings 123-128.5 The hearings and committee reports indicate that in § 636(b) Congress met this problem in two ways. First, Congress restricted the range of matters that may be referred to a magistrate to those where referral is "not inconsistent with the Constitution and laws of the United States. . . ." Second, Congress limited the magistrate's role in cases referred to him under § 636(b). The Act's sponsors made it quite clear that the magistrate acts "under the supervision of the district judges" when he accepts a referral, and that authority for making final decisions remains at all times with the district judge. Senate Report 12. "(A) district judge would retain ultimate responsibility for decision making in every instance in which a magistrate might exercise additional duties jurisdiction." House Hearings 73 (testimony of Sen. Tydings). See also id., at 127 (testimony of the Asst. Deputy Atty. Gen. Finley).
19
(3)
20
We need not define the full reach of a magistrate's authority under the Act, or reach the broad provisions of General Order No. 104-D, in order to decide this case. Under the part of the order at issue the magistrates perform a limited function which falls well within the range of duties Congress empowered the district courts to assign to them. The magistrate is directed to conduct a preliminary review of a closed administrative record closed because under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), neither party may put any additional evidence before the district court. The magistrate gives only a recommendation to the judge, and only on the single, narrow issue: is there in the record substantial evidence to support the Secretary's decision?6 The magistrate may do no more than propose a recommendation, and neither § 636(b) nor the General Order gives such recommendation presumptive weight. The district judge is free to follow it or wholly to ignore it, or, if he is not satisfied, he may conduct the review in whole or in part anew. The authority and the responsibility to make an informed, final determination, we emphasize, remains with the judge.
21
The magistrate's limited role in this type of case nonetheless substantially assists the district judge in the performance of his judicial function, and benefits both him and the parties. A magistrate's review helps focus the court's attention on the relevant portions of what may be a voluminous record, from a point of view as neutral as that of an Article III judge. Review also helps the Court move directly to those legal arguments made by the parties that find some support in the record. Finally, the magistrate's report puts before the district judge a preliminary evaluation of the cumulative effect of the evidence in the record, to which the parties may address argument, and in this way narrows the dispute. Each step of the process takes place with the full participation of the parties. They know precisely what recommendations the judge is receiving and may frame their arguments accordingly.
22
We conclude that in the context of this case the preliminary-review function assigned to the magistrate, and at issue here, is one of the "additional duties" that the statute contemplates magistrates are to perform.7
23
(4)
24
The Secretary argues that the magistrate, in taking this reference, functions as a special master. From this premise, the Secretary asks us to hold that a general rule requiring automatic reference in a category of cases does not comply with the mandate of Fed.Rule Civ.Proc. 53(b) that "reference to a master shall be the exception and not the rule," made in nonjury cases "only upon a showing that some exceptional condition requires it." He also argues that, for similar reasons, the reference here is not permissible under our decision in La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957).8
25
Section 636(b) expressly provides that a district court may, in an appropriate case and in accordance with Fed.Rule Civ.Proc. 53, call upon a magistrate to act as a special master. But the statute also is clear that not every reference, for whatever purpose, is to be characterized as a reference to a special master. It treats references to the magistrate acting as master quite separately in subsection (1), indicating by its structure that other references are of a different sort. Moreover, Rule 53(e) provides that, in nonjury cases referred to a master, the court shall accept any finding of fact that is not clearly erroneous. Under the reference in this case, however, the judge remains free to give the magistrate's recommendation whatever weight the judge decides it merits. It cannot be said, therefore, that the magistrate acts as a special master in the sense that either Rule 53 or the Federal Magistrates Act uses that term. The order of reference at issue does not constitute the magistrate a special master.
26
The Secretary argues that the magistrate will be a master in fact because the judge will accept automatically the recommendation made in every case. Nothing in the record or within the scope of permissible judicial notice supports this argument; nor does common observation of the performance of United States judges remotely lend the slightest credence to such an extravagant assertion. We express no opinion with respect to either the wisdom or the validity of automatic referral in other types of cases; only the narrow portion of General Order No. 104-D that led to reference of this particular case is before us today. In this narrow range of cases, reference promotes more focused, and so more careful, decisionmaking by the district judge. We categorically reject the suggestion that judges will accept, uncritically, recommendations of magistrates.
27
Our decision in La Buy v. Howes Leather Co., supra, does not call for a different result. In La Buy, the District Judge on his own motion referred to a special master two complex, protracted antitrust cases on the eve of trial. The cases had been pending before him for several years, he had heard pretrial motions, and he was familiar with the issues involved. The master, a member of the bar, was to hear and decide the entire case, subject to review by the District Judge under the "clearly erroneous" test. The judge cited the problems attendant to docket congestion to satisfy Rule 53's requirement that a reference to a special master be justified by "exceptional circumstances." The Court held that on these facts reference was not permissible and affirmed the Court of Appeals' supervisory prohibition.
28
La Buy, although nearly two decades past, is the most recent of our cases dealing with special masters, and our decision today does not erode it.9 The Magistrate here acted in his capacity as magistrate, not as a special master, under a reference authorized by an Act passed 10 years after La Buy was decided. Other factors distinguish this case from La Buy as well. The issues here are as simple as they were complex in La Buy, and the District Judge had not yet invested any time in familiarizing himself with the case. The reference in this case will result in a recommendation that carries only such weight as its merit commands and the sound discretion of the judge warrants. We are persuaded that the important premises from which the La Buy decision proceeded are not threatened here.
29
Finally, our decision in Wingo v. Wedding, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974), does not bear on this case. The Secretary has abandoned any claim that the statute giving the District Court jurisdiction of the case in the first instance, 42 U.S.C. § 405(g), precludes reference to a magistrate. It was the Court's reading of the habeas corpus statute, 28 U.S.C. § 2243, that formed the basis for the holding in Wingo v. Wedding.
30
Affirmed.
31
Mr. Justice STEVENS took no part in the consideration or decision of this case.
1
General Order No. 104-D provides for reference in the following types of review of administrative cases:
"(A) Actions to review administrative determinations re entitlement to benefits under the Social Security Act and related statutes, including but not limited to actions filed under 42 U.S.C. § 405(g).
"(B) Actions filed by the United States or a carrier to review, implement or restrain orders of the Interstate Commerce Commission re freight overcharges, including but not limited to actions under 28 U.S.C. § 1336 and 49 U.S.C. § 304a.
"(C) Actions, whether in the form of judicial review, habeas corpus or otherwise, for review of orders and other actions of the Immigration and Naturalization Service. Included, but not by way of limitation, are actions involving deportation orders, denial of preference classification visas and denial of petitions to adjust status.
"(D) Actions for review of adjudications by the Civil Service Commission, or the various departments or agencies, involving personnel actions such as wrongful discharge, reductions in force, transfers, retirements, etc.
"(E) Actions for review of an order of any branch or establishment of the military service denying discharge of petitioner from the military, whether such actions are brought in the form of petitions for judicial review, habeas corpus or actions for declaratory relief and injunction.
"(F) Actions filed pursuant to 18 U.S.C. § 923(f)(3) to review administrative decisions denying applications for licenses to engage in business as a firearms or ammunition importer, manufacturer or dealer.
"(G) Actions to review administrative decisions by the Department of Labor denying applications for alien employment certification required pursuant to the provisions of 8 U.S.C. § 1182(a)(14)."
The petition for certiorari raises only the issue of the propriety of the part of subsection (A) of the General Order that authorizes reference of cases brought under 42 U.S.C. § 405(g), and we intimate no opinion on the validity of its other provisions.
2
Because respondent has declined to appear, we invited an amicus curiae to support the decision of the Court of Appeals. 421 U.S. 985, 95 S.Ct. 1987, 44 L.Ed.2d 475 (1975).
3
For convenience, the position taken by amicus in support of the Court of Appeals judgment will be referred to as the position of respondent.
4
The administration of the Act also profits from the British analogy. See Institute of Judicial Administration, Report of the Committee to Study the Role of Masters in the English Judicial System (Federal Judicial Center 1974).
5
Some courts have manifested a like concern. See TPO, Inc. v. McMillen, 460 F.2d 348 (CA7 1972); Reed v. Board of Election Comm'rs, 459 F.2d 121 (CA1 1972). But cf. Palmore v. United States, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973). See also Note, Masters and Magistrates in the Federal Courts, 88 Harv.L.Rev. 779 (1975); Comment, An Adjudicative Role for Federal Magistrates in Civil Cases, 40 U.Chi.L.Rev. 584 (1973). Because we limit our consideration of the Act and General Order No. 104-D to the particular reference presented by this case, we need not deal with these broad constitutional issues. Petitioner expressly declines to rely on any constitutional argument.
6
Ordinarily, the parties will agree as to the legal standard, leaving as the sole issue whether the Secretary's determination is supported by substantial evidence. In some cases, the magistrate may preliminarily resolve issues of law before making a recommendation; in some few cases, the recommendation may turn wholly upon an issue of law. The parties have not suggested that cases in either of these sub-categories raise issues of statutory interpretation that require separate treatment, and we do not reach them on this record. Experience with the magistrate's role under the Act may well lead to the conclusion that sound judicial administration calls for sending directly to the district judge those cases that turn solely upon issues of law.
7
Though we do not rely upon subsequently expressed congressional views, the Congress plainly considers claims such as respondent brought in the District Court as matters that could appropriately be referred for preliminary review to a magistrate. In considering magistrates' salaries in 1972, a Senate subcommittee noted:
"Magistrates are judicial officers of the Federal district courts. . . . They may also be authorized to screen prisoner petitions, hold pretrial conferences in civil and criminal cases, hear certain preliminary motions, review social security appeals, review Narcotics Addict Rehabilitation Act matters, and serve as special masters. In short, they render valuable assistance to the judges of the district courts, thereby freeing the time of those judges for the actual trial of cases." S.Rep. No. 92-1065, p. 3 (1972) U.S.Code Cong. & Admin.News 1972, pp. 3350, 3351 (emphasis added).
The Administrative Office of the United States Courts, the statutory body that supervises the administrative aspects of the Act pursuant to 28 U.S.C. § 604(d) (1), reads the Act in the same way. It has distributed a "checklist" of magistrate duties that includes review of Social Security appeals brought under 42 U.S.C. § 405(g). Judicial Conference of the United States, Committee on the Administration of the Federal Magistrates System, Duties Which Might Be Assigned to U.S. Magistrates (Mar. 14, 1975). The Administrative Office first noted in its 1972 report that district courts were assigning Social Security appeals to magistrates under the 1968 Act. Administrative Office of the U.S. Courts, Annual Report of the Director VI-8 (1972).
8
These arguments persuaded the Court of Appeals in Ingram v. Richardson, 471 F.2d 1268 (CA6 1972). Other federal courts to consider the issue reached a contrary result. Yascavage v. Weinberger, 379 F.Supp. 1297 (MD Pa.1974); Bell v. Weinberger, 378 F.Supp. 198 (ND Ga.1974); Murphy v. Weinberger, (Oct. 1966-Dec. 1974 Transfer Binder) CCH Unempl. Ins. Rep. P 17,608 (Conn.1974).
Several courts have relied upon these arguments to one extent or another in disapproving references that involved a broader grant of authority to the magistrate. See, e. g., Flowers v. Crouch-Walker Corp., 507 F.2d 1378 (CA7 1974); TPO, Inc. v. McMillen, 460 F.2d 348 (CA7 1972); Reed v. Board of Election Comm'rs, 459 F.2d 121 (CA1 1972).
9
See generally Kaufman, Masters in the Federal Courts: Rule 53, 58 Col.L.Rev. 452 (1958); CAB v. Carefree Travel, Inc., 513 F.2d 375 (CA2 1975).
| 89
|
423 U.S. 303
96 S.Ct. 523
46 L.Ed.2d 514
UNITED STATES, Petitioner,v.Philip L. BORNSTEIN et al.
No. 74-712.
Argued Oct. 8, 1975.
Decided Jan. 14, 1976.
Syllabus
A prime contractor (Model) had a contract with the Government to provide radio kits containing electron tubes meeting certain specifications. A subcontractor (United), which was to supply the tubes, sent to Model in three separately invoiced shipments tubes that were not of the required quality but were falsely marked to indicate that they were. The radio kits that Model in turn shipped to the Government contained 397 of these falsely marked tubes. Model then sent 35 invoices to the Government for the kits, each invoice including claims for payment for the falsely marked tubes. After the Government discovered the fraud, it recovered in settlement from Model $40.72 per tube or a total of $16,165.84. Subsequently the Government sued United and two of its owner-officers (respondents) under the False Claims Act (Act), which provides that the Government may recover from a person who presents a false claim or causes a false claim to be presented to it a forfeiture of $2,000 plus an amount equal to double the amount of damages that it sustains by reason of the false claim. The Government alleged that United was liable for 35 $2,000 forfeitures, one for each invoice that it "caused" Model to submit, and also claimed damages of $16,205.54, consisting of a replacement cost of $40.82 per tube for 397 tubes. The District Court agreed that there had been 35 forfeitures, but ruled that before the Government's damages could be doubled, they had to be reduced by the amount of Model's payment to the Government, and accordingly computed double damages at only $79.40 (double the 10-cent difference per tube between its replacement cost and the payment already received from Model). On cross-appeals, the Court of Appeals agreed with the District Court on the double-damages issue, but held that since there had been only one subcontract involved there should be only one forfeiture. Held:
1. A correct application of the Act's language requires that the focus in each case be upon the specific conduct of the person from whom the Government seeks to collect the forfeiture. Thus, here United committed three acts that caused Model to submit false claims to the Government the three separately invoiced shipments of falsely branded tubes to Model and hence is liable for three $2,000 forfeitures representing those three shipments. Pp. 308-313.
(a) The number of $2,000 forfeitures is not to be measured by the number of contracts involved, since such an automatic measurement, which would almost always result in only a single forfeiture no matter how many fraudulent acts the subcontractor might have committed, would not only contravene the Act's plain language, which focuses on false claims not on contracts, but would defeat the statutory purpose of punishing and preventing frauds. Pp. 310-311.
(b) Nor is the number of forfeitures to be measured by the 35 false claims presented by Model to the Government, since this method fails to distinguish between the acts committed by Model and those committed by United, a critical distinction since the Act imposes liability only for the conduct that causes false claims to be presented. Thus here the statute does not penalize United for what Model did but penalizes United for what it did. Pp. 311-313.
2. In computing the double damages authorized by the Act, the Government's actual damages are to be doubled before any subtractions are made for compensatory payments previously received from any source. This computation method best conforms to the Act's language and reflects the congressional judgment that double damages are necessary to compensate the Government completely for the costs, delays, and inconveniences occasioned by fraudulent claims; fixes the defrauder's liability without reference to the adventitious actions of other persons (such as the prime contractor here); and forecloses the subcontractor from avoiding the double-damages provision by tendering the amount of the undoubled damages at any time before judgment. Pp. 313-317.
504 F.2d 368, reversed and remanded.
Argued by Keith A. Jones, Washington, D.C., for petitioner.
William Rossmoore, Newark, N.J., for respondent Gerald Page.
Jack Ballan, Fairlawn, N.J., for respondent Philip L. Bornstein.
Mr. Justice STEWART delivered the opinion of the Court.
1
The False Claims Act provides that the United States may recover from a person who presents a false claim or causes a false claim to be presented to it a forfeiture of $2,000 plus an amount equal to double the amount of damages that it sustains by reason of the false claim.1 This case presents two interpretative problems that arise when the United States sues a subcontractor under the Act on the ground that the subcontractor has caused the prime contractor to present false claims: First, how should the number of $2,000 forfeitures be counted? Second, when the United States has already recovered damages from the prime contractor because of the subcontractor's fraud, what effect does that recovery have upon the Government's right to recover double damages from the subcontractor?
2
* In 1962, the United States entered into a $2,100,000 contract with Model Engineering & Manufacturing Corporation, Inc. (Model), for the provision of radio kits. Each kit was to contain electron tubes that met certain specifications. Model subcontracted with United National Labs (United) to supply these tubes at a price of $32 each. The tubes that United sent to Model under this subcontract were not of the required quality, but were falsely marked by United to indicate that they were. United sent at least 21 boxes of these falsely marked tubes to Model, in three separately invoiced shipments. The radio kits that Model in turn shipped to the United States contained 397 of those falsely marked tubes. Model sent 35 invoices to the Government for the radio kits, and each invoice included claims for payment for the falsely marked tubes that had been supplied to Model by United. After the Government discovered the fraud, it recovered $40.72 per tube from Model and also retained the falsely marked tubes.
3
Subsequently, the Government brought this civil action in a Federal District Court under the False Claims Act against United and two of its owner-officers, the respondents Philip L. Bornstein and Gerald Page.2 The complaint alleged that United was liable for 35 $2,000 forfeitures one forfeiture for each invoice that it had "caused" Model to submit,3 and also claimed damages of $16,205.54, consisting of $40.82 per tube for 397 tubes. The trial court agreed that there had been 35 forfeitures, but ruled that before the Government's damages could be doubled, they were to be reduced by the amount of Model's payment to the United States. The court accordingly computed double damages at only $79.40 and awarded the Government a total of $70,079.40. 361 F.Supp. 869 (NJ). On cross-appeals the Court of Appeals agreed with the trial court on the double-damages issue, but concluded that since there had been only one subcontract involved, there should be only one statutory forfeiture. Accordingly, the appellate court held that United was liable for only $2,079.40. 504 F.2d 368 (CA3). We granted the Government's petition for certiorari to consider the statutory questions presented. 420 U.S. 906, 95 S.Ct. 823, 42 L.Ed.2d 835.
II
The Number of Statutory Forfeitures
4
The False Claims Act provides that a person "who shall do or commit any of the acts prohibited by" Rev.Stat. § 5438 "shall forfeit and pay to the United States the sum of two thousand dollars . . . ." Rev.Stat. § 3490. Section 5438 makes it illegal for a person to present or cause to be presented "for payment or approval . . . any claim upon or against the Government of the United States . . . knowing such claim to be false, fictitious, or fraudulent." It is settled that the Act permits recovery of multiple forfeitures and that it gives the United States a cause of action against a subcontractor who causes a prime contractor to submit a false claim to the Government. See United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443. The precise issue presented here is whether the subcontractor should be liable for each claim submitted by its prime contractor or whether it should be liable only for certain identifiable acts that it itself committed.4
5
The legislative history of the Act offers little guidance on how properly to determine the number of forfeitures. The Act was originally aimed principally at stopping the massive frauds perpetrated by large contractors during the Civil War.5 There is no indication that Congress gave any thought to the question of how the number of forfeitures should be determined in cases involving subcontractor fraud. But the absence of specific legislative history in no way modifies the conventional judicial duty to give faithful meaning to the language Congress adopted in the light of the evident legislative purpose in enacting the law in question.
6
The respondents defend the decision of the Court of Appeals that held them liable for only one forfeiture. In reaching this conclusion the Court of Appeals relied principally on its earlier decision in United States v. Rohleder, 157 F.2d 126 (CA3), where it found that 16 forfeitures were appropriate because 16 contracts were involved. The Rohleder court had relied in turn on this Court's decision in United States ex rel. Marcus v. Hess, supra. The Hess case involved several electrical contractors who had collusively bid on 56 Public Works Administration projects. The District Court in Hess had imposed 56 forfeitures, rejecting the defendants' claim that only one forfeiture should have been imposed because there had been only one fraudulent scheme. This Court concluded that the District Court was correct because the incidence of fraud on each separate project was clearly individualized. 317 U.S., at 552, 63 S.Ct. at 388. No party argued in this Court that more than 56 forfeitures should have been imposed, and no statement in the Hess opinion expressly limited the number of imposable forfeitures to the number of contracts involved in a case. Hess simply approved the result reached by the District Court which had found that "in each project there was a single, false, or fraudulent claim." 41 F.Supp. 197, 216 (WDPa).
7
The Hess case, therefore, in no way stands for the proposition that the number of forfeitures is inevitably measured by the number of contracts involved in a case. Such an automatic measurement would ignore the plain language of the statute, as the present case itself illustrates. United is liable under the statute only because it engaged in conduct that caused false claims to be submitted to the United States. While it is true that no false claims would have been submitted had United and Model not entered into a contractual relationship, the entry into that relationship did not in itself cause the submission of any false claims. Had United shipped tubes of the required quality to Model, no false claims would have been presented. By the same token, Model was not caused to file a false claim until it received shipments of falsely branded tubes from United. The language of the statute focuses on false claims, not on contracts. See n. 4, supra. That language does not support a conclusion that United is chargeable with only one forfeiture in this case.
8
To equate the number of forfeitures with the number of contracts would in a case such as this result almost always in but a single forfeiture, no matter how many fraudulent acts the subcontractor might have committed. This result would not only be at odds with the statutory language; it would also defeat the statutory purpose.6 Such a limitation would, in the language of the Government's brief, convert "the Act's forfeiture provision into little more than a $2,000 license for subcontractor fraud."
9
At the other extreme, the Government urges that 35 forfeitures should be assessed, in accord with the position of the District Court, which ruled that "(United's fraudulent) acts caused Model to submit thirty-five false claims, each of which constituted a separate violation justifying a separate forfeiture." 361 F.Supp., at 879. The difficulty with this position is that it fails to distinguish between the acts committed by Model and the acts committed by United.7 The distinction is a critical one, because the statute imposes liability only for the commission of acts which cause false claims to be presented.
10
If United had committed one act which caused Model to file a false claim, it would clearly be liable for a single forfeiture. If, as a result of the same act by United, Model had filed three false claims, United would still have committed only one act that caused the filing of false claims, and thus, under the language of the statute, would again be liable for only one forfeiture. If, on the other hand, United had committed three separate such causative acts, United would be liable for three forfeitures, even if Model had filed only one false claim. The Act, in short, penalizes a person for his own acts, not for the acts of someone else.
11
The Government's claim that United "caused" Model to submit 35 false claims is simply not accurate. While United committed certain acts which caused Model to submit false claims, it did not cause Model to submit any particular number of false claims. The fact that Model chose to submit 35 false claims instead of some other number was, so far as United was concerned, wholly irrelevant completely fortuitous and beyond United's knowledge or control. The Government suggests that United assumed the risk that Model might send 35 invoices when United sent the falsely branded tubes to Model. The statute, however, does not penalize United for what Model did. It penalizes United for what it did. The construction given to the statutory language by the District Court is, therefore, no more satisfactory than the interpretation adopted by the Court of Appeals.
12
A correct application of the statutory language requires, rather, that the focus in each case be upon the specific conduct of the person from whom the Government seeks to collect the statutory forfeitures. In the present case United committed three acts which caused Model to subit false claims to the Government-the three separately invoiced shipments to Model. If United had not shipped any falsely branded tubes to Model, Model could not have incorporated such tubes into its radio kits and would not have had occasion to submit any false claims to the United States. When, however, United dispatched each shipment of flasely marked tubes to Model, it did so knowing that Model would incorporate the tubes into the radio kits it later shipped to the Government, and that it would ask for payment from the Government on account of those tubes. Thus, United's three shipments of falsely branded tubes to Model caused Model to submit false claims to the United States, and United is thus liable for three $2,000 statutory forfeitures representing the three separate shipments that it made to Model.8
III
Computation of Double Damages
13
In the District Court "(t)he Government . . . established that the per unit cost to replace the (falsely branded) tubes was $40.82." 361 F.Supp., at 875. Finding that the Government had already received $40.72 per tube as damages from Model, the court concluded, and the Court of Appeals agreed, that the Government's total statutory damages were $79.40 double the 10-cent difference per tube between its replacement costs and the payment already received from Model for the 397 tubes.
14
The Government argues that both courts were wrong, and that its damages under the Act should be calculated by doubling the amount of its original loss and only then deducting Model's payment from that doubled amount.9 We agree that the Government's damages should be doubled before any compensatory payments are deducted, because that method of computation most faithfully conforms to the language and purpose of the Act.10
15
Although there is nothing in the legislative history that specifically bears on the question of how to calculate double damages, past decisions of this Court have reflected a clear understanding that Congress intended the double-damages provision to play an important role in compensating the United States in cases where it has been defrauded. "We think the chief purpose of the (Act's civil penalties) was to provide for restitution to the government of money taken from it by fraud, and that the device of double damages plus a specific sum was chosen to make sure that the government would be made completely whole." United States ex rel. Marcus v. Hess, 317 U.S., at 551-552, 63 S.Ct., at 387-388, 87 L.Ed. 443. For several different reasons, this make-whole purpose of the Act is best served by doubling the Government's damages before any compensatory payments are deducted.
16
First, this method of computation comports with the congressional judgment that double damages are necessary to compensate the Government completely for the costs, delays, and inconveniences occasioned by fraudulent claims.11 Second, the rule that damages should be doubled prior to any deductions fixes the liability of the defrauder without reference to the adventitious actions of other persons. The position adopted by the Court of Appeals would mean that two subcontractors who committed similar acts and caused similar damage could be subjected to widely disparate penalties depending upon whether and to what extent their prime contractors had paid the Government in settlement of the Government's claims against them. Just as fortuitous acts of the prime contractor should not determine the liability of the subcontractor under the forfeiture provision of the Act, so likewise the prime contractor's fortuitous acts should not determine the liability of the subcontractor under the double-damages provision. Third, the reasoning of the Court of Appeals and the District Court would enable the subcontractor to avoid the Act's double-damages provision by tendering the amount of the undoubled damages at any time prior to judgment. This possibility would make the double-damages provision meaningless. Doubling the Government's actual damages before any deduction is made for payments previously received from any source in mitigation of those damages forecloses such a result.12
17
For these reasons we hold that, in computing the double damages authorized by the Act, the Government's actual damages are to be doubled before any subtractions are made for compensatory payments previously received by the Government from any source.13 This method of computation, which maximizes the deterrent impact of the double-damages provision and fixes the relative rights and liabilities of the respective parties with maximum precision, best comports in our view with the language and purpose of the Act.
18
The judgment is reversed, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion.
19
It is so ordered.
20
Reversed and remanded.
21
Mr. Justice STEVENS took no part in the consideration or decision of this case.
22
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE and Mr. Justice WHITE join, concurring in part and dissenting in part.
23
I join the opinion of the Court with respect to Part III's treatment of the double-damages issue. But the narrow construction of the False Claims Act adopted by the Court in Part II of the opinion, while not repugnant to the face of the statute itself, is by no means the only permissible construction of that language. Because that construction, as applied to the facts of this case, leads to an arbitrary result providing a windfall for those who would seek to defraud the Government, I would construe the statute somewhat differently than does the Court. Instead of concentrating in isolation on the "conduct of the person from whom the Government seeks to collect the statutory forfeitures," as the Court does, I believe that the statute requires inquiry as to the relationship, in terms of proximate cause and foreseeability, between the conduct of such person and the number of false claims actually presented to the Government.
24
Revised Stat. § 3490 provides that any nonmilitary person "who shall do or commit any of the acts prohibited by any" of the provisions of Rev.Stat. § 5438 "shall forfeit and pay" $2,000 to the United States. The "act" which is prohibited by the first clause of § 5438, at issue here, is the "mak(ing) or caus(ing) to be made, or present(ing) or caus(ing) to be presented, for payment . . . any claim . . . against the Government . . . knowing such claim to be false, fictitious, or fraudulent . . . ." That which is proscribed, then, is the causing to be presented a false claim against the Government with knowledge of the falsity of the claim.
25
Reading the pertinent portion of the above to impose liability only for the "commission of acts which cause false claims to be presented" (emphasis added), the Court construes this language to require the trier of fact to "focus in each case . . . upon the specific conduct of the person from whom the Government seeks to collect the statutory forfeitures." It then goes on to hold, apparently as a matter of law, that "the three separately invoiced shipments to Model" were the causative "acts" to which forfeiture liability attaches. As may be more readily seen from an examination of the facts of this case, this extremely narrow construction and application produce a result which bears little relationship to the congressional purpose.
26
The stipulated facts reveal a complex and altogether deliberate scheme to palm off cheaper, surplus tubes to the prime contractor, Model. Model had contracted to build radio kits for use by the Army. The specifications for the component parts reflected the Army's understandable desire that military equipment be long lasting and reliable. The radios were to contain new 4X150G electron tubes bearing markings that, pursuant to the underlying military procurement specifications, showed they were manufactured in a plant whose quality-control standards measured up to certain Government requirements and were "source" inspected and approved by a Government inspector at the plant during manufacturing.1 As far as the military was concerned (as opposed to commercial buyers), Eimac was the only authorized manufacturer. Tubes made by Eimac at its designated plant, accompanied by the proper "source" inspection and stamped accordingly, were the only ones qualified to receive genuine affixations. These stringent requirements were reflected in Eimac's market price of $40 per tube.
27
Respondents, however, with full awareness of what was required under Model's contract, got themselves caught between that market price and their own promise to deliver some 1,000 tubes at $32 each. Model had already rejected United's first shipment of 120 surplus tubes; with none of them bearing the requisite markings, nonconformity was obvious. The only way respondents were going to profit under their contract with Model was to ship electron tubes that had the appearance of being new and genuine JAN-type2 electron tubes, bearing markings as if they had been produced by Eimac under the strictures of the Government inspection process. To that end, they bought several hundred surplus tubes, at $17.50 each, from a distributor of Eimac and affixed, on each one, the JAN stamp, a "Manufacturer's Qualification Code"3 (Eimac's) and an "acceptance" date, all of which markings were palpably false and designed to deceive Model. To complete the illusion, respondents sent the falsely stamped tubes to a testing laboratory where, after inspection, 21 packing lists (referencing the serial numbers) were prepared, each stamped, falsely, with a facsimile of a Government inspector's "Eagle" stamp.4 The 21 boxes were then combined in three separate shipments, respondents certifying with each shipment that the tubes conformed to the contract. Duped into accepting the tubes as genuine, Model paid each of the three invoices and incorporated the fraudulent tubes into the radio kits. Model was paid, of course, on 35 separate invoices.
28
Applying its construction of the statutory language to this multifaceted shell game, the Court concludes that the only "acts" which "caused" the submission of false claims were the three separately invoiced shipments, reasoning that but for the shipment of "falsely branded" tubes the radio kits, and in turn Model's claims to the Government, would have been genuine. However, the three invoiced shipments were among a host of fraudulent acts, with respect to each of which it could be said that "but for" that act Model's claims to the Government would have been genuine. Had respondents not falsely marked each of the 300-odd tubes which were actually shipped to Model, or had the 21 packing lists covering them not been falsely stamped, it could equally well be said that Model would have submitted no false claims to the Government respecting the tubes supplied by respondents.5 Thus, on the basis of "but for" causation, which is all the Court's justification really amounts to, there is no support whatever for picking the number 3 in preference to the number 21, or for picking either of those numbers in preference to the total number of tubes each of which was falsely marked. The only way these various "acts" can be distinguished from one another, so far as causation is concerned, is their proximity in time to the submission of the false claims by Model.
29
The Court's construction of the statute, as applied to these facts, leads to a result which is not only arbitrary but has the effect of allowing those who would defraud the Government to minimize their potential penalties by shipping all of their rotten eggs in one basket. I believe that a somewhat different construction is at least equally consistent with the language and would produce a result far more consistent with the congressional purpose to penalize those who would defraud the Government.
30
The "act" proscribed is causing a false claim to be presented to the Government with knowledge of its falsity. The Court simply counts the number of causative acts irrespective of the number of false claims actually submitted because the latter number is, in the words of the Court "wholly fortuitous." But the foregoing examination has shown that the Court's preference for focusing on the "acts" of the subcontractor in isolation leads to an equally fortuitous result. I think that Congress intended the trier of fact in cases such as this to consider not only the "act" of the subcontractor, but also the number of false claims which the act or various acts of the subcontractor caused to be submitted. The first clause of § 5438 by its very terms focuses on protecting the Government not simply from fraud "in the air" but from the presentation for payment of fraudulent claims. The Court notes with approval cases involving prime contractors where the number of imposable forfeitures has turned on the number of false-payment demands made upon the Government. Ante, at 309, n. 4. If a prime contractor utilized an innocent agent to present a single false claim to a Government agency, but in fact the agent proceeded to split that claim up into multiple invoices, it would mock the statute to suggest that the prime contractor could avoid multiple forfeitures by claiming that he was unable to foresee his agent's conduct. The Court's construction does indeed suggest that in that case the prime contractor could cry "fortuity."
31
There is nothing on the face of the statute, however, to indicate congressional intent to treat deceitful prime contractors and subcontractors according to the mechanics of the underlying fraud. Instead, the verbal linkage of "acts," "causes," and "false claim" is couched in general terms pointing to a uniform construction: the number of imposable forfeitures in each case under the first clause is keyed to the number of false claims submitted.6 The language further suggests an interpretation in terms of traditional concepts of causation. Such concepts, whether denominated "proximate cause" or "legal" cause, frequently result in the imposition of liability even upon a negligent actor for consequences of which he could not have been absolutely certain at the time he acted, so long as those consequences might reasonably have been foreseen. See W. Prosser, The Law of Torts §§ 42, 43 (4th ed. 1971); Restatement (Second) of Torts § 435 (1965). I would remand this case to the District Court for assessment of forfeiture liability under this standard.
32
There may well be room for inference on the part of the trier of fact in this case, if not on the present record, on such additional record as could be compiled on remand, that respondent subcontractor knew or had reason to believe that the prime contractor would assemble and forward finished products to the Government at routine and regular intervals. Nor would it be unforeseeable under such a set of circumstances that the prime contractor would regularly invoice the Government for the customary progress payments. I am unwilling to accept the flat conclusion that it was "wholly beyond" the subcontractor's ability to foresee that 35 false claims would be generated by his fraud. Evidence such as the terms of the prime contract, and the subcontract, the subcontractor's experience in business generally and in Government procurement particularly, and the closeness of the working relationship between the subcontractor and the prime contractor could well be relevant to such an inquiry. But the fact that the subcontractor loses "control" over the actual number of false claims his actions have caused to be submitted to the Government, once the prime contractor has been tricked into paying for fraudulent goods, cannot be of controlling significance if he could have foreseen the number or even the order of magnitude of the claims which would be ultimately submitted by the prime contractor. Given a statute which punishes intentional deception, deception which is abundantly made out on this record, I cannot agree with the Court's sharply restricted test for determining the number of forfeitures for which these respondents are liable.
1
The False Claims Act was adopted in 1863. Act of Mar. 2, 1863, c. 67, 12 Stat. 696. It was re-enacted as Rev.Stat. §§ 3490-3494, 5438. The part of the Act dealing with civil prohibitions is now codified in 31 U.S.C. § 231 et seq. The language used in Title 31 differs in some important respects from that contained in the revised Statutes. Since Title 31 has not been enacted into positive law, the official text of the statute is that which appears in the Revised Statutes. See United States v. Neifert-White Co., 390 U.S. 228, 228-229, n. 1, 88 S.Ct. 959, 19 L.Ed.2d 1061; United States ex rel. Marcus v. Hess, 317 U.S. 537, 539-540, and n. 2, 63 S.Ct. 40, 87 L.Ed. 498.
The relevant statutory provisions are as follows:
§ 3490. "Any person not in the military or naval forces of the United States, or in the militia called into or actually employed in the service of the United States, who shall do or commit any of the acts prohibited by any of the provisions of section fifty-four hundred and thirty-eight, Title 'CRIMES,' shall forfeit and pay to the United States the sum of two thousand dollars, and, in addition, double the amount of damages which the United States may have sustained by reason of the doing or committing such act, together
with the costs of suit; and such forfeiture and damages shall be sued for in the same suit."
§ 5438. "Every person who makes or causes to be made, or presents or causes to be presented, for payment or approval, to or by any person or officer in the civil, military, or naval service of the United States, any claim upon or against the Government of the United States, or any department or officer thereof, knowing such claim to be false, fictitious, or fraudulent, or who, for the purpose of obtaining or aiding to obtain the payment or approval of such claim, makes, uses, or causes to be made or used, any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowing the same to contain any fraudulent or fictitious statement or entry, or who enters into any agreement, combination, or conspiracy to defraud the Government of the United States, or any department or officer thereof, by obtaining or aiding to obtain the payment or allowance of any false or fraudulent claim, or who, having charge, possession, custody, or control of any money or other public property used or to be used in the military or naval service, who, with intent to defraud the United States or willfully to conceal such money or other property, delivers or causes to be delivered, to any other person having authority to receive the same, any amount of such money or other property less than that for which he received a certificate or took a receipt, and every person authorized to make or deliver any certificate, voucher, receipt, or other paper certifying the receipt of arms, ammunition, provisions, clothing, or other property so used or to be used, who makes or delivers the same to any other person without a full knowledge of the truth of the facts stated therein, and with intent to defraud the United States, and every person who knowingly purchases or receives in pledge for any obligation or indebtedness from any soldier, officer, sailor, or other person called into or employed in the military or naval service any arms, equipments, ammunition, clothes, military stores, or other public property, such soldier, sailor, officer, or other person not having the lawful right to pledge or sell the same, every person so offending in any of the matters set forth in this section shall be imprisoned at hard labor for not less than one nor more
than five years, or fined not less than one thousand or more than five thousand dollars."
Section 5438 was repealed in 1909. Act of Mar. 4, 1909, c. 321, § 341, 35 Stat. 1153. It has continued vitality only insofar as it specifies the acts giving rise to civil liability under § 3490. See United States v. Neifert-White Co., supra. The criminal prohibitions were subsequently altered and codified in 18 U.S.C. §§ 287 and 1001.
2
United was dismissed as a party prior to judgment. For convenience, however, the respondents are sometimes referred to in this opinion as United. The United States also brought criminal charges against Bornstein and Page. They pleaded guilty to those charges and were given suspended sentences.
3
The Government also claimed that United was liable for three additional $2,000 forfeitures under the second clause of § 5438 which prohibits the preparation and use of false documents in support of a false claim. See n. 1, supra. The Government does not press that claim here.
4
In cases involving prime contractors the number of imposable forfeitures has generally been set at the number of individual false payment demands that the contractor has made upon the Government. See, e. g., United States v. Woodbury, 359 F.2d 370, 377-378 (CA9); Fleming v. United States, 336 F.2d 475, 480 (CA10); United States v. National Wholesalers, 236 F.2d 944, 950 (CA9); Faulk v. United States, 198 F.2d 169, 171 (CA5); United States v. Grannis, 172 F.2d 507, 515-516 (CA4); United States v. Collyer Insulated Wire Co., 94 F.Supp. 493, 496-498 (RI). Cf. United States v. Ueber, 299 F.2d 310 (CA6). This result is in accord with this Court's statement that " 'the conception of a claim against the government normally connotes a demand for money or for some transfer of public property.' " United States v. McNinch, 356 U.S. 595, 599, 78 S.Ct. 950, 952, 2 L.Ed.2d 1001, quoting United States v. Tieger, 234 F.2d 589, 591 (CA3).
5
According to its sponsor, the False Claims Act was adopted "for the purpose of punishing and preventing . . . frauds." Cong.Globe, 37th Cong., 3d Sess., 952 (remarks of Sen. Howard). See also id., at 955 (remarks of Sen. Wilson).
6
See n. 5, supra.
7
Cf. United States v. Ueber, 299 F.2d 310 (CA6).
8
This Court has noted that in construing § 5438 'we are actually construing the provisions of a criminal statute. Such provisions must be carefully restricted, not only to their literal terms but to the evident purpose of Congress in using those terms, particularly where they are broad and susceptible to numerous definitions.' United States v. McNich, 356 U.S., at 598, 78 S.Ct., at 952, 2 L.Ed.2d 1001. See also Rainwater v. United States, 356 U.S. 590, 592-593, 78 S.Ct. 946, 948-949, 2 L.Ed. 996.
9
At one point in this litigation the Government urged that any compensatory payments it received should not be deducted from its statutory damages at all. It has now abandoned that position, perhaps for the reason that since United is liable to Model for Model's payment to the United States, United would in effect be assessed triple damages under such a rule.
10
The statute speaks of doubling "damages" and not doubling "net damages" or "uncompensated damages."
11
As originally enacted, the False Claims Act contained a qui tam provision which authorized any person to bring an action on behalf of the United States to recover the civil penalties that could be imposed under the Act. Act of Mar. 2, 1863, § 4, 12 Stat. 698. If successful, the person would receive one-half of the damages awarded to the United States. § 6. Respondents suggest that double damages were provided by Congress because it knew that half of the Government's recovery would go to a private person and that as a result double damages were necessary in order to allow the Government's share of the proceeds of a suit to cover the Government's single damages. Thus, they argue that Congress never concluded that the United States needed to recover double damages in order to be made completely whole.
This argument would have some force if the only enforcement mechanism provided in the Act were the qui tam action. However, the Act clearly envisioned that the Government could sue on its own behalf, § 4, and it specifically exhorted United States attorneys to enforce the Act diligently. § 5. Moreover, in 1943 Congress placed restrictions on the possibility of bringing a qui tam action and limited a private person's recovery to a maximum of one quarter of the damages awarded the United States, Act of Dec. 23, 1943, c. 377, 57 Stat. 608. In adopting these changes, Congress did not make any adjustment in the double-damages provision, again suggesting that it thought that double damages are necessary to make the United States whole in fraudulent-claim cases.
12
The only two District Courts that have addressed this question have reached opposing results. Compare United States v. Klein, 230 F.Supp. 426, 443 (WD Pa.), aff'd per curiam, 356 F.2d 983 (CA3) (damages doubled after offsetting credits deducted), with United States v. Globe Remodeling Co., 196 F.Supp. 652, 657 (Vt.) (damages doubled before offsetting credits deducted).
13
The Government's actual damages are equal to the difference between the market value of the tubes it received and retained and the market value that the tubes would have had if they had been of the specified quality. C. McCormick, Law of Damages § 42, p. 137 (1935). See, e. g., United States v. Cooperative Grain & Supply Co., 476 F.2d 47, 61-65 (CA8); United States v. Foster Wheeler Corp., 447 F.2d 100, 102 (CA2); United States v. Woodbury, 359 F.2d, at 379; Toepelman v. United States, 263 F.2d 697, 700 (CA4); United States v. Ben Grunstein & Sons Co., 137 F.Supp. 197, 205 (NJ); United States v. American Packing Corp., 125 F.Supp. 788, 791 (NJ); but cf. United States v. Aerodex, Inc., 469 F.2d 1003, 1010-1011 (CA5); Faulk v. United States, 198 F.2d 169, 172 (CA5).
1
One such required marking is the "JAN" prefix, which stands for Joint Army Navy qualification standard. This brand, registered by the Patent Office, is to be used by the manufacturer only after the tubes have passed Government inspection at the place of manufacture during the manufacturing process. 361 F.Supp. 869, 872 n. 3 (NJ 1973). In addition, following the JAN prefix is the Manufacturer's Qualification Code, which shall be used only by the manufacturer to whom it has been assigned and only as a part of the designation on tubes manufactured at the plant to which qualification approval was granted. Id., at 871 n. 2. Only manufacturers whose plants have passed rigorous qualifying tests are issued this Code. The Code for the sole authorized maker of these tubes was "CIM," which identified Eitel McCullough, Inc. (Eimac), a California corporation. In addition to the JAN-CIM brand on tubes that passed all of the tests, Eimac would imprint a four-figure number indicating the year and week of acceptance. Id., at 872.
2
See n. 1, supra.
3
See ibid.
4
As proof that the JAN stamp in fact represents the required Government "source" inspection, the Government inspector imprints his "Eagle" acceptance stamp on packing lists accompanying each shipment of tubes. 504 F.2d 368, 369 (CA3 1974).
5
Indeed, the facts show that without the false stamping and the false packing lists, no claims at all would have been presented by Model, because Model, as it did with respect to the first 120-tube shipment, would have continued to reject tubes whose nonstamping clearly showed them to be nonconforming.
6
This is in contrast, however, with the second and third clauses of § 5438, which also go to nonmilitary persons. The number of imposable forfeitures in the second clause appears to turn on the number of false bills, certificates, affidavits, etc., made or used, or caused to be made or used, "for the purpose of obtaining . . . the payment or approval" of a false claim. The act prohibited by the third clause is the entry into a conspiracy to defraud the Government by obtaining the payment of a false claim. See text quoted, ante, at 306 n. 1.
| 78
|
423 U.S. 325
96 S.Ct. 579
46 L.Ed.2d 531
Oscar Roosevelt DOVEv.UNITED STATES.
No. 75-543.
Jan. 19, 1976.
PER CURIAM.
1
The Court is advised that the petitioner died at New Bern, N. C., on November 14, 1975. The petition for certiorari is therefore dismissed. To the extent that Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971), may be inconsistent with this ruling, Durham is overruled.
2
It is so ordered.
3
Petition dismissed.
4
Mr. Justice WHITE dissents.
| 89
|
423 U.S. 326
96 S.Ct. 579
46 L.Ed.2d 533
FEDERAL POWER COMMISSIONv.7[[TIQ!]] TRANSCONTINENTAL GAS PIPE LINE CORPORATION.
No. 75-584.
Jan. 19, 1976.
[Syllabus from this page intentionally omitted]
PER CURIAM.
1
The Federal Power Commission seeks certiorari from an interlocutory order of the Court of Appeals for the District of Columbia Circuit, which defers that court's review of the Commission order at issue pending completion of a certain evidentiary investigation by the Commission directed by the court. The Commission challenges the authority of the Court of Appeals to order the investigation under the statutory review provision involved, § 19(b) of the Natural Gas Act, 52 Stat. 831, as amended, 15 U.S.C. § 717r(b), and, in any event, contends that the Court of Appeals abused its discretion in the circumstances of this case.
2
The underlying case involves plans for coping with a natural gas shortage being experienced by respondent Transcontinental Gas Pipe Line Corp. (Transco). The shortage is said to require curtailment of contracted natural gas deliveries by Transco to its customers during periods of high demand. The curtailment plans concern methods of allocating the shortfall among the various customers. The curtailment plan immediately at issue was submitted by Transco to cover the period of November 1974 to November 1975. This interim plan was filed in September 1974, and was the result of a settlement agreement negotiated between Transco and its various customers. The agreement provided for a plan of allocation of natural gas supplies among Transco's customers during periods of shortage, and a monetary compensation scheme under which customers receiving more gas than the systemwide average would compensate customers who received less natural gas than the average. The Commission rejected the proposed plan, determining that the compensation scheme would be violative of the Natural Gas Act. The Commission held that the compensation scheme would violate (1) § 4(a) of the Act, 15 U.S.C. § 717c(a), which requires a pipeline's jurisdictional rate to be based on the pipeline's cost of service plus a reasonable rate of return; (2) § 4(b) of the Act, 15 U.S.C. § 717c(b), which prohibits undue discrimination in rates among similarly situated customers; and (3) § 7(c) of the Act, 15 U.S.C. § 717f(c), which requires persons engaging in resales of natural gas in interstate commerce first to obtain a certificate of public convenience and necessity.
3
Thereafter, Transco and several of the parties to the settlement agreement sought review of the Commission's determination.1 Following oral argument on the petition for review, the Court of Appeals, "desiring to be more fully informed about the 'crisis' on the Transco system before reviewing questions pertaining to its solution," entered an order sua sponte directing the parties to submit certain information concerning Transco's natural gas reserves. After receiving responses to this order, and noting the refusal of the Commission to certify the accuracy of the data supplied by Transco regarding its reserves of natural gas, the court directed the parties to show cause why it should not order the Commission to conduct an immediate investigation of Transco's claim of reduced reserves. Thereafter, the Court of Appeals, observing that evidence of "actual shortage both underlies the concept of curtailment and justifies its application," issued the proposed order. That order directed the Commission to complete and report to the court an investigation "of Transco's claims of reduced reserves by immediate subpoena of Transco's books and records pertaining to all gas supplies in which it has any legal interest . . . and by field investigation (which) has determined the extent of the reduced reserves and the bona fides of Transco and its suppliers in meeting their past and future contract commitments. . . ." The court further directed that its decision reviewing the Commission's order would be deferred pending the investigation and report, and that the investigation and report should be made by the Commission within 30 days.
4
It is this interlocutory order for which the Commission petitions for review by this Court. The Commission first argues that the Court of Appeals has overstepped the bounds of its reviewing authority in ordering this investigation by the Commission, and that in doing so the court has unwarrantedly interfered with the internal functional autonomy of an independent administrative agency. Additionally, the Commission argues, the Court of Appeals has abused its discretion in ordering the factual inquiry by the Commission in the circumstances presented by this case. The Commission maintains that the extent of Transco's natural gas shortage is not material to the legal issues concerning the lawfulness of the proposed compensation scheme which presently confront the Court of Appeals. This is said to be particularly true where, as here, the Commission has disapproved the proposed interim plan for dealing with the alleged shortage of gas.2 Finally, the Commission argues that it is impossible to comply with the order, as such a complex investigation would require much longer than the 30 days allowed.
5
First. We agree with the Commission that the challenged order, although interlocutory in nature, is properly reviewable by this Court pursuant to 28 U.S.C. § 1254(1). Clearly the effect of the order is immediate and irreparable, and any review by this Court of the propriety of the order must be immediate to be meaningful.
6
Second. We agree with the Court of Appeals that the existence of an actual shortage of gas supplies forms the factual predicate necessary to the Commission's assertion of authority under its transportation jurisdiction, § 1(b) of the Act, 15 U.S.C. § 717(b), to approve the curtailment of gas already contracted for. FPC v. Louisiana Power & Light Co., 406 U.S. 621, 92 S.Ct. 1827, 32 L.Ed.2d 369 (1972). Certainly that court could properly conclude that the Commission would have abused its discretion had it approved curtailment plans in the absence of evidence whereby it "could have reasonably believed" the shortage to exist, Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971), and that "substantial evidence" in the record is necessary to support any such finding by the Commission.
7
Third. We are of the view, however, that the Court of Appeals overstepped the bounds of its reviewing authority in issuing the order presently before us. First, we have consistently expressed the view that ordinarily review of administrative decisions is to be confined to 'consideration of the decision of the agency . . and of the evidence on which it was based.' United States v. Carlo Bianchi & Co., 373 U.S. 709, 714-715, 83 S.Ct. 1409, 1413, 10 L.Ed.2d 652 (1963). '[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.' Camp v. Pitts, 411 U.S. 138, 142. 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). If the decision of the agency 'is not sustainable on the administrative record made, then the . . . decision must be vacated and the matter remanded . . . for further consideration.' Id., at 143, 93 S.Ct. at 1244. Clearly it is this mode of review that is contemplated by the statute providing for judicial review of Commission decisions, § 19(b) of the Act, 15 U.S.C. § 717r(b).3 Secondly, although we have recognized that a court reviewing decisions of the Federal Power Commission sits as a court vested with equity powers and "may authorize the Commission in proper cases to take new evidence," Mobil Oil Corp. v. FPC, 417 U.S. 283, 311-312, 94 S.Ct. 2328, 2347, 41 L.Ed.2d 72 (1974), it is nevertheless true that ordinarily this will require a remand to the agency in order that it can exercise its administrative discretion in deciding how, in light of internal organizational considerations, it may best proceed to develop the needed evidence and how its prior decision should be modified in light of such evidence as develops. Certainly this is the procedure contemplated by the review statute, which provides that the Commission "may modify its findings as to the facts by reason of the additional evidence so taken,' and that 'such modified or new findings, . . . if supported by substantial evidence, shall be conclusive . . ..' 15 U.S.C. § 717r(b). At least in the absence of substantial justification for doing otherwise,4 a reviewing court may not, after determining that additional evidence is requisite for adequate review, proceed by dictating to the agency the methods, procedures, and time dimension of the needed inquiry and ordering the results to be reported to the court without opportunity for further consideration on the basis of the new evidence by the agency. Such a procedure clearly runs the risk of "propel(ling) the court into the domain which Congress has set aside exclusively for the administrative agency." SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947). "The Court, it is true, has power 'to affirm, modify, or set aside' the order of the Commission 'in whole or in part.' . . . But that authority is not power to exercise an essentially administrative function." FPC v. Idaho Power Co., 344 U.S. 17, 21, 73 S.Ct. 85, 87, 97 L.Ed. 15 (1952).
8
Fourth. We are unable to determine with certainty, from this vantage point and on the partial record now before us, whether the evidence regarding Transco's actual shortage with which the instant order is concerned is absolutely essential to a decision by the Court of Appeals on the issues presently before that court for review. Although Judge MacKinnon in his separate statement was apparently of the view that it was not, it is at least conceivable that the Court of Appeals could determine that the lawfulness of the proposed compensation scheme is partially a function of the actual severity of the shortage. Cf. FPC v. Louisiana Power & Light Co., supra. Accordingly, the court below is free on remand either to proceed to the merits of the issues presented by the compensation scheme and only thereafter deal with the adequacy of the record in regard to the evidence of shortage, or immediately to remand the case to the Commission for the required inquiry. It is apparent that under neither alternative need the Court of Appeals' ability fully and effectively to review the administrative process regarding the implementation of curtailment plans and their underlying factual premises be relinquished.
9
Fifth. In light of the immediacy of the natural gas shortage problem with which the Commission is attempting to cope, the already protracted nature of review proceedings in this case, and the potential importance of a resolution on the merits of the compensation issues presented by the instant case,5 swift and priority consideration of this case by the Court of Appeals on remand is merited.
10
Accordingly, the petition for certiorari is granted, the order of the Court of Appeals is vacated, and the case is remanded to that court for further proceedings consistent with this opinion.
11
It is so ordered.
12
Order of Court of Appeals vacated; case remanded for further proceedings.
13
Mr. Justice STEWART and Mr. Justice POWELL did not participate in the consideration or decision of this case.
1
Although neither the petitioning Commission nor the two respondents who have filed responses to the petition for certiorari have addressed the issue, it appears that the underlying controversy is not now moot even though it concerns an interim plan covering a period of time that has by now expired. The Court of Appeals earlier granted a motion by Transco and ordered the interim plan into effect pending that court's review of the Commission's order disallowing the plan. Consolidated Edison Co. v. F. P. C., 167 U.S.App.D.C. 134, 143, 511 F.2d 372, 381 (1974). The court ordered that the compensation payments under the plan be paid into an escrow account pending review of the Commission's determination that the compensation scheme was unlawful. Ibid. Therefore, it appears that at the least the disposition of these payments into the escrow account will be affected by the Court of Appeals' ultimate judgment on the merits of the case.
2
This argument appears to accord with the views of Judge MacKinnon which are set forth in a separate statement accompanying the challenged order. Judge MacKinnon expressed the view that the extent of the shortage is "peripheral," although "not wholly irrelevant" to the legal issues confronting the Court of Appeals. He indicated that he would instead first reach the merits, affirm the order of the Commission, and then direct that the Commission make the complex factual inquiry regarding the shortage "prior to passing on any subsequent curtailment plan."
3
Section 19(b) of the Natural Gas Act provides:
"Any party to a proceeding under this chapter aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order in the court of appeals of the United States for any circuit wherein the natural-gas company to which the order relates is located or has its principal place of business, or in the United States Court of Appeals for the District of Columbia Circuit, by filing in such court, within sixty days after the order of the Commission upon the application for rehearing, a written petition praying that the order of the Commission be modified or set aside in whole or in part. A copy of such petition shall forthwith be transmitted by the clerk of the court to any member of the Commission and thereupon the Commission shall file with the court the record upon which the order complained of was entered, as provided in section 2112 of Title 28. Upon the filing of such petition such court shall have jurisdiction, which upon the filing of the record with it shall be exclusive, to affirm, modify, or set aside such order in whole or in part. No objection to the order of the Commission shall be considered by the court unless such objection shall have been urged before the Commission in the application for rehearing unless there is reasonable ground for failure so to do. The finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive. If any party shall apply to the court for leave to adduce additional evidence, and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for failure to adduce such evidence in the proceedings before the Commission, the court may order such additional evidence to be taken before the Commission and to be adduced upon the hearing in such manner and upon such terms and conditions as to the court may seem proper. The Commission may modify its findings as to the facts by reason of the additional evidence so taken, and it shall file with the court such modified or new findings, which if supported by substantial evidence, shall be conclusive, and its recommendation, if any, for the modification or setting aside of the original order. The judgment and decree of the court, affirming, modifying, or setting aside, in whole or in part, any such order of the Commission, shall be final, subject to review by the Supreme Court of the United States upon certiorari or certification as provided in sections 346 and 347 of Title 28."
4
We do not find the reasons stated by the Court of Appeals, largely that the Commission "has been long on notice" that data supporting the claimed existence of shortage was necessary, to be in the circumstances presented sufficient justification for the court's order.
5
See Mississippi Pub. Serv. Comm'n v. FPC, 522 F.2d 1345 (CA5 1975).
| 89
|
423 U.S. 336
96 S.Ct. 584
46 L.Ed.2d 542
THERMTRON PRODUCTS, INC., and Larry Dean Newhard, Petitioners,v.H. David HERMANSDORFER, Judge, United States District Court for the Eastern District of Kentucky.
No. 74-206.
Argued Oct. 7, 1975.
Decided Jan. 20, 1976.
Syllabus
Title 28 U.S.C. § 1441(a) provides that "any civil action brought in a State court of which the district courts of the United States have original jurisdiction" may be removed by the defendant to the federal district court, and § 1446 provides the removal procedure. Section 1447(c) provides for remand to the state court on the ground that the case was removed "improvidently and without jurisdiction," and § 1447(d) imposes a general bar against appellate review of a remand order. After two citizens of Kentucky had brought a damages action against petitioners, an Indiana corporation and its employee, a citizen of Indiana, petitioners removed the action to the Federal District Court under §§ 1441(a) and 1446. Thereafter respondent, the District Judge, though conceding that petitioners had the statutory right to remove the action to federal court, ordered the case remanded to the state court for trial, solely on the ground that his heavy docket would unjustly delay the plaintiffs from going to trial on the merits. Petitioners then filed in the Court of Appeals an alternative petition for a writ of mandamus or prohibition on the ground that the action had been properly removed and that respondent lacked authority to remand the case on the ground that he had asserted. The Court of Appeals denied the petition after concluding that (1) the District Court had jurisdiction to enter the remand order and (2) the Court of Appeals because of § 1447(d) had no jurisdiction to review that order. Petitioners concede that § 1447(d) prohibits appellate review of all remand orders issued pursuant to § 1447(c), whether erroneous or not, but maintain that the bar does not apply to remand on a ground not authorized by § 1447(c). Held:
1. The District Court exceeded its authority in remanding the case on grounds not permitted by § 1447(c). Pp. 342-345.
2. Section 1447(d), when construed as it must be in conjunction with § 1447(c), does not bar appellate review by mandamus of a remand order made on grounds not specified in § 1447(c), there being no indication either in the language or the legislative history of the provision that Congress intended to extend the bar against review to reach remand orders not based on statutory grounds. Pp. 345-352.
3. Here, where the District Court had refused to adjudicate a case, and had remanded on grounds not authorized by the removal statutes, mandamus was the proper remedy to compel the District Court to entertain the remanded action. Pp. 352-353.
Reversed and remanded.
Frank G. Dickey, Jr., Lexington, Ky., for petitioners.
C. Kilmer Combs, Pikesville, Ky., for respondents real parties in interests.
Mr. Justice WHITE delivered the opinion of the Court.
1
The questions in this case are whether a Federal District Judge may remand a properly removed diversity case for reasons not authorized by statute, and, if not, whether such remand order may be remedied by writ of mandamus.
2
* On April 9, 1973, two citizens and residents of Kentucky filed an action in a Kentucky state court against Thermtron Products, Inc., an Indiana corporation without office or place of business in Kentucky, and one Larry Dean Newhard, an employee of Thermtron and a citizen and resident of Indiana, seeking damages for injuries arising out of an automobile accident between plaintiffs' automobile and a vehicle driven by Newhard. Service on the defendants, who are petitioners here, was by substituted service on the Secretary of State of the Commonwealth, pursuant to Kentucky law. Later that month, petitioners removed the cause to the United States District Court for the Eastern District of Kentucky pursuant to 28 U.S.C. §§ 14411 and 1446.2 The case was assigned a number, and the defendants filed their answer and later proceeded with discovery. On February 5, 1974, respondent judge issued an order in the case which recited that the action "was removed from the Pike Circuit Court, Pike County, Kentucky, on April 30, 1973, pursuant to the provisions of 28 U.S.C. § 1446," that his court had reviewed its entire civil docket and found "that there is no available time in which to try the above-styled action in the foreseeable future" and that an adjudication of the merits of the case would be expedited in the state court. Record 31. The order then called upon the defendants to show cause "why the ends of justice do not require this matter (to) be remanded to the Pike Circuit Court . . .." Ibid. In response to the order, petitioners asserted that they believed they could not have a fair and impartial trial in the state courts, that the cause had been properly removed pursuant to the applicable statutes, that petitioners had a federal right to have the cause tried in the federal court, that respondent had no discretion to remand the case merely because of a crowded docket, and that there was no other legal ground for the remand.
3
On March 22, 1974, respondent filed a memorandum opinion and order remanding the case to the Pike Circuit Court. The opinion noted petitioners' contention that they had a "right" to remove the action by properly invoking 28 U.S.C. § 1441, and remarked that "(t)he court must concede that fact." Record 36. That right, the opinion then stated, nevertheless had to be "balanced against the plaintiffs' right to a forum of their choice and their right to a speedy decision on the merits of their cause of action." Ibid. Because of the District Court's crowded docket and because other cases had priority on available trial time,3 "plaintiffs' right of redress is being severely impaired," which "would not be the case if the cause had not been removed from the state courts." Id., at 37. Remarking that the purpose of the removal statute was to prevent prejudice in local courts and being of the view that petitioners had made no showing of possible prejudice that might follow from remand, respondent then ordered the case remanded.4
4
Petitioners then filed in the Court of Appeals for the Sixth Circuit their alternative petition for writ of mandamus or prohibition, requesting relief on the ground that the action had been properly removed and that respondent had no authority or discretion whatsoever to remand the case on the ground asserted by him. Based on the petition and respondent's response, the Court of Appeals denied the petition after concluding (1) that the District Court had jurisdiction to enter the order for remand and (2) that the Court of Appeals had no jurisdiction to review that order or to issue mandamus because of the prohibition against appellate review contained in 28 U.S.C. § 1447(d). We granted the petition for certiorari, 420 U.S. 923, 95 S.Ct. 1115, 43 L.Ed.2d 391 (1975), and now reverse.
II
5
Title 28 U.S.C. § 1441(a) provides that unless otherwise expressly provided by Act of Congress, "any civil action brought in a State court of which the district courts of the United States have original jurisdiction," may be removed by the defendant to the district court of the United States.5 Section 1446 provides the procedure for removal;6 and a case removed under that section may be remanded only in accordance with § 1447 which governs procedure after removal. Section 1447(c) provides in part:
6
"If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just costs."
7
The following section, § 1447(d), generally forbids review of remand orders:
8
"An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it is removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise."7
9
It is unquestioned in this case and conceded by petitioners that this section prohibits review of all remand orders issued pursuant to § 1447(c) whether erroneous or not and whether review is sought by appeal or by extraordinary writ. This has been the established rule under § 1447(d) and its predecessors stretching back to 1887. See, e. g., In re Pennsylvania Co., 137 U.S. 451, 11 S.Ct. 141, 34 L.Ed. 738 (1890); Ex parte Matthew Addy S. S. Co., 256 U.S. 417, 41 S.Ct. 508, 65 L.Ed. 1027 (1921); Employers Reinsurance Corp. v. Bryant, 299 U.S. 374, 57 S.Ct. 273, 81 L.Ed. 289 (1937); United States v. Rice, 327 U.S. 742, 66 S.Ct. 835, 90 L.Ed. 982 (1946). If a trial judge purports to remand a case on the ground that it was removed "improvidently and without jurisdiction," his order is not subject to challenge in the court of appeals by appeal, by mandamus, or otherwise.
10
The issue before us now is whether § 1447(d) also bars review where a case has been properly removed and the remand order is issued on grounds not authorized by § 1447(c). Here, respondent did not purport to proceed on the basis that this case had been removed "improvidently and without jurisdiction." Neither the propriety of the removal nor the jurisdiction of the court was questioned by respondent in the slightest.8 Section 1447(c) was not even mentioned. Instead, the District Court's order was based on grounds wholly different from those upon which § 1447(c) permits remand. The determining factor was the District Court's heavy docket, which respondent thought would unjustly delay plaintiffs in going to trial on the merits of their action. This consideration, however, is plainly irrelevant to whether the District Court would have had jurisdiction of the case had it been filed initially in that court, to the removability of a case from the state court under § 1441, and hence to the question whether this cause was removed "improvidently and without jurisdiction" within the meaning of the statute.
11
Removal of cases from state courts has been allowed since the first Judiciary Act, and the right to remove has never been dependent on the state of the federal court's docket. It is indeed unfortunate if the judicial manpower provided by Congress in any district is insufficient to try with reasonable promptness the cases properly filed in or removed to that court in accordance with the applicable statutes. But an otherwise properly removed action may no more be remanded because the district court considers itself too busy to try it than an action properly filed in the federal court in the first instance may be dismissed or referred to state courts for such reason. McClellan v. Carland, 217 U.S. 268, 30 S.Ct. 501, 54 L.Ed. 762 (1910); Chicot County v. Sherwood, 148 U.S. 529, 13 S.Ct. 695, 37 L.Ed. 546 (1893); Hyde v. Stone, 20 How. 170, 15 L.Ed. 874 (1858).
12
We agree with petitioners: The District Court exceeded its authority in remanding on grounds not permitted by the controlling statute.9
III
13
Although the Court of Appeals, erroneously we think, held that the District Court had jurisdiction to enter its remand order, the Court of Appeals did not mention § 1447(c), did not suggest that the District Court had proceeded under that section, properly or improperly, and did not itself suggest that this case was not removable under § 1441 or that it had been improvidently removed from the state court for want of jurisdiction or otherwise. In the face of petitioners' position that the remand was for reasons not authorized by the statute, the Court of Appeals acted solely on the ground that under § 1447(d) it had no jurisdiction to entertain a petition for writ of mandamus challenging the remand order issued by respondent in this case.
14
We disagree with that conclusion. Section 1447(d) is not dispositive of the reviewability of remand orders in and of itself. That section and § 1447(c) must be construed together, as this Court has said of the predecessors to these two sections in Employers Reinsurance Corp. v. Bryant, supra, 299 U.S., at 380-381, 57 S.Ct., at 276-277, 81 L.Ed. 289, (1937), and Kloeb v. Armour & Co., 311 U.S. 199, 202, 61 S.Ct. 213, 215, 85 L.Ed. 124 (1940). These provisions, like their predecessors, "are in pari materia (and) are to be construed accordingly rather than as distinct enactments . . . ." Employers Reinsurance Corp. v. Bryant, supra, 299 U.S., at 380, 57 S.Ct., at 276. This means that only remand orders issued under § 1447(c) and invoking the grounds specified therein that removal was improvident and without jurisdiction are immune from review under § 1447(d).
15
Section 1447(d) has its roots in the Act of Mar. 3, 1887, 24 Stat. 552. Prior to 1875, orders of remand were not reviewable by appeal or writ of error for want of a final judgment. Railroad Co. v. Wiswall, 23 Wall. 507, 23 L.Ed. 103 (1875). Section 5 of the Judiciary Act of 1875, 18 Stat. 472, provided that if the trial court became satisfied at any time during the pendency of a case brought in or removed to that court that the case did not really or substantially involve a dispute or controversy properly within its jurisdiction, the action was to be either dismissed or remanded to the court from which it was removed as justice might require. The section expressly provided that the order dismissing or remanding the cause was to be reviewable on writ of error or appeal.10 The Act of Mar. 3, 1887, however, while not disturbing the provision for dismissal or remand for want of jurisdiction, not only repealed the provision in § 5 of the 1875 Act providing for appellate review of remand orders but contained a provision that "improperly removed" cases should be remanded and that "no appeal or writ of error from the decision of the circuit court so remanding such cause shall be allowed." 24 Stat. 553.11 (Emphasis added.)
16
These provisions for the disposition of removed cases where jurisdiction was lacking or removal was otherwise improper, together with the prohibition of appellate review, were later included in §§ 28 and 37 of the Judicial Code of 1911, appeared in 28 U.S.C. §§ 71 and 80 (1946 ed.), 36 Stat. 1094, 1098, and endured until 194812 when 28 U.S.C. § 1447 was enacted minus, however, the prohibition against appellate review. The omission was corrected in 1949 when the predecessor of the present subsection (d) came into being.13
17
Until 1948, then, district courts were authorized to remand cases over which they had no jurisdiction or which had been otherwise "improperly" removed, and district court orders "so remanding" were not appealable. It was held that a case remanded for want of jurisdiction under § 80, which itself contained no prohibition of appellate review, was an "improperly" removed case under § 71 and hence subject to the reviewability bar of that section. Employers Reinsurance Corp. v. Bryant, 299 U.S. 374, 57 S.Ct. 273, 81 L.Ed. 289 (1937). But under the plain language of § 71, a case was "so remanded" and within the reviewability prohibition only if it had been improperly removed. Insofar as we are advised, no case in this Court ever held that § 71 prohibited appellate review by mandamus of a remand order not purporting to be based on the statutory ground.14
18
Sections 1447(c) and (d) represent the 1948 recodification of §§ 71 and 80. They were intended to restate the prior law with respect to remand orders and their reviewability.15 There is no indication whatsoever that Congress intended to extend the prohibition against review to reach remand orders entered on grounds not provided by the statute.
19
There is no doubt that in order to prevent delay in the trial of remanded cases by protracted litigation of jurisdictional issues, United States v. Rice, 327 U.S. 742 at 751, 66 S.Ct. 835 at 838, 90 L.Ed. 982, Congress immunized from all forms of appellate review any remand order issued on the grounds specified in § 1447(c), whether or not that order might be deemed erroneous by an appellate court. But we are not convinced that Congress ever intended to extend carte blanche authority to the district courts to revise the federal statutes governing removal by remanding cases on grounds that seem justifiable to them but which are not recognized by the controlling statute. That justice may move more slowly in some federal courts than in their state counterparts is not one of the considerations that Congress has permitted the district courts to recognize in passing on remand issues. Because the District Judge remanded a properly removed case on grounds that he had no authority to consider, he exceeded his statutorily defined power; and issuance of the writ of mandamus was not barred by § 1447(d).
20
In so holding we neither disturb nor take issue with the well-established general rule that § 1447(d) and its predecessors were intended to forbid review by appeal or extraordinary writ of any order remanding a case on the grounds permitted by the statute. But this Court has not yet construed the present or past prohibition against review of remand orders so as to extinguish the power of an appellate court to correct a district court that has not merely erred in applying the requisite provision for remand but has remanded a case on grounds not specified in the statute and not touching the propriety of the removal. We decline to construe § 1447(d) so woodenly as to reach that result now.
IV
21
There remains the question whether absent the bar of § 1447(d) against appellate review, the writ of mandamus is an appropriate remedy to require the District Court to entertain the remanded action. The answer is in the affirmative.
22
A "traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so." Roche v. Evaporated Milk Assn., 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943); Ex parte Peru, 318 U.S. 578, 584, 63 S.Ct. 793, 797, 87 L.Ed. 1014 (1943); Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 382, 74 S.Ct. 145, 147, 98 L.Ed. 106 (1953). "Repeated decisions of this Court have established the rule . . . that the writ will lie in a proper case to direct a subordinate Federal court to decide a pending cause," Insurance Co. v. Comstock, 16 Wall. 258, 270, 21 L.Ed. 493 (1873), or to require "a Federal court of inferior jurisdiction to reinstate a case, and to proceed to try and adjudicate the same." McClellan v. Carland, 217 U.S. 268 at 280, 30 S.Ct. 501 at 504, 54 L.Ed. 762.
23
In accordance with the foregoing cases, this Court has declared that because an order remanding a removed action does not represent a final judgment reviewable by appeal, "(t)he remedy in such a case is by mandamus to compel action, and not by writ of error to review what has been done." Railroad Co. v. Wiswall, 23 Wall. 507 at 508, 23 L.Ed. 103. Absent statutory prohibitions, when a remand order is challenged by a petition for mandamus in an appellate court, "the power of the court to issue the mandamus would be undoubted." In re Pennsylvania Co., 137 U.S. 451 at 453, 11 S.Ct. 141 at 141, 34 L.Ed. 738. There is nothing in our later cases dealing with the extraordinary writs that leads us to question the availability of mandamus in circumstances where the district court has refused to adjudicate a case; and has remanded it on grounds not authorized by the removal statutes. See Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967); Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964); La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957); McCullough v. Cosgrave, 309 U.S. 634, 60 S.Ct. 703, 84 L.Ed. 992 (1940); Los Angeles Brush Corp. v. James, 272 U.S. 701, 47 S.Ct. 286, 71 L.Ed. 481 (1927). On the contrary, these cases would support the use of mandamus to prevent nullification of the removal statutes by remand orders resting on grounds having no warrant in the law.
24
The judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.
25
So ordered.
26
Mr. Justice STEVENS took no part in the consideration or decision of this case.
27
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE and Mr. Justice STEWART join, dissenting.
28
The Court begins its discussion in this case by asking the wrong questions, and compounds its error by arriving at the wrong answer to at least one of the questions thus posed. The principal, and in my view only, issue presented for review is whether the Court of Appeals was correct in concluding that it was without jurisdiction to review the order of remand entered by the District Court for the Eastern District of Kentucky. If no jurisdiction existed, it of course follows that there was no power in the Court of Appeals to examine the merits of petitioners' contentions that the order of remand exceeded respondent's authority, and that its order denying relief must be affirmed. Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 4 S.Ct. 510, 28 L.Ed. 462 (1884). As I think it plain that Congress, which has unquestioned authority to do so, Sheldon v. Sill, 8 How. 441, 12 L.Ed. 1147 (1850), has expressly prohibited the review sought by petitioners, I dissent.
29
* The Court of Appeals not unreasonably believed that 28 U.S.C. § 1447(d) means what it says. It says:
30
"An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise . . . ."
31
Nor was the Court of Appeals confronted with a question of first impression. As the Court recognizes, the limitation found in § 1447(d) has remained substantially unchanged since its enactment in 1887, and this Court has consistently ruled that the provision prohibits any form of review of remand orders.
32
Congress' purpose in barring review of all remand orders has always been very clear to prevent the additional delay which a removing party may achieve by seeking appellate reconsideration of an order of remand. The removal jurisdiction extended by Congress works a significant interference in the conduct of litigation commenced in state court. While Congress felt that making available a federal forum in appropriate instances justifies some such interruption and delay, it obviously thought it equally important that when removal to a federal court is not warranted the case should be returned to the state court as expeditiously as possible. If this balanced concern is disregarded, federal removal provisions may become a device affording litigants a means of substantially delaying justice.
33
It is clear that the ability to invoke appellate review, even if ultimately unavailing on the merits, provides a significant opportunity for additional delay. Congress decided that this possibility was an unacceptable source of additional delay and therefore made the district courts the final arbiters of whether Congress intended that specific actions were to be tried in a federal court.
34
I do not doubt that the district courts may occasionally err in making these decisions, and certainly Congress was not unaware of these probabilities. All decision-makers err from time to time, and judicial systems frequently provide some review to remedy some of those errors. But such review is certainly not compelled. Congress balanced the continued disruption and delay caused by further review against the minimal possible harm to the party attempting removal who will still receive a trial on the merits before a state court which cannot be presumed to be unwilling or unable to afford substantial justice and concluded that no review should be permitted in these cases. Congress has explicitly indicated its intent to achieve this result; indeed "(i)t is difficult to see what more could be done to make the action of (remand) final, for all the purposes of the removal, and not the subject of review . . . ." Morey v. Lockhart, 123 U.S. 56, 57, 8 S.Ct. 65, 31 L.Ed. 68 (1887). Yet the Court today holds that Congress did not mean what it so plainly said.
35
The majority attempts to avoid the plain language of § 1447(d) by characterizing the bar to review as limited to only those remand orders entered pursuant to the directive of § 1447(c), i. e., those cases "removed improvidently and without jurisdiction." But such a crabbed reading of the statute ignores the undoubted purpose behind the congressional prohibition. If the party opposing a remand order may obtain review to litigate whether the order was properly pursuant to the statute, his ability to delay and to frustrate justice is wide ranging indeed. By permitting such a result here, the Court effectively undermines the accepted rule established by Congress and adhered to for almost 90 years.
36
Nor is it any more than a naive hope to suppose, as the Court apparently does, that the effect of today's decision will be limited to the unique circumstances of this case. According to the Court, this case is beyond the reach of § 1447(d) by virtue of the fact that respondent appears to have expressly premised his remand of the case before him on a ground not authorized by Congress, a conclusion purportedly drawn from the face of respondent's order. I may agree, arguendo, that an order of remand based upon the clogged docket of the district court and a desire to obtain for the parties a trial in some forum without unreasonable delay, however salutary the motivation behind it, is not within the discretion placed in district courts by Congress. But I fail to see how such an order of remand is any more unauthorized than one where the district court erroneously concludes that an action was removed "improvidently and without jurisdiction." Surely such an error equally contravenes congressional intent to extend a "right" of removal to those within the statute's terms. Yet such an error, until today, never has been thought subject to challenge by appeal or extraordinary writ.
37
The Court seems to believe the instant case different because it has determined to its satisfaction that respondent's order was not merely an erroneous application of § 1447(c), but was based upon considerations district courts are not empowered to evaluate. I think the Court's purported distinction both unworkable and portentous of the significant impairment of Congress' carefully worked out scheme. The Court relies upon its belief that respondent's order made clear that he was not acting in accordance with § 1447(c). But there was no requirement that respondent issue any explanation of the grounds for his remand order, and there is no reason to expect that district courts will always afford such explanations. If they do not, is there now jurisdiction in the courts of appeals to compel an explanation so as to evaluate potential claims that the lower court was not acting pursuant to subsection (c)? And what if the district court does state that it finds no jurisdiction, using the rubric of § 1447(c), but the papers plainly demonstrate such a conclusion to be absurd? Are potential challengers to such an order entitled to seek the aid of the court of appeals, first to demonstrate that the order entered by the lower court was a sham and second to block that order pursuant to today's decision? If the Court's grant of certiorari and order of reversal in this case are to have any meaning, it would seem that such avenues of attack should clearly be open to potential opponents of orders of remand. Yet it is equally clear that such devices would soon render meaningless Congress' express, and heretofore fully effective, directive prohibiting such tactics because of their potential for abuse by those seeking only to delay.
II
38
The majority's only support for its conclusion that § 1447(d) no longer means what everyone thought it did is the fact that the predecessor statute provided:
39
"Whenever any cause shall be removed from any State court into any district court of the United States, and the district court shall decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the district court so remanding such cause shall be allowed." 28 U.S.C. § 71 (1946 ed.).
40
In the Court's view the words "so remanding" limited the bar of the prior statute. But this appears a novel construction of the former § 71. If "so remanding" had any limiting effect upon the prohibition against review, it would seem to have restricted the bar to only those cases which a district court determined to have been "improperly removed," as described in the above-quoted sentence. Yet this Court early held that the original prohibition against review of remand orders contained in the Act of Mar. 3, 1887, 24 Stat. 553, applied to bar review not only of remands of removals taken on account of prejudice or local influence which were not remanded because "improperly removed" but rather pursuant to independent statutory directives requiring the district courts to remand such cases unless they found the opposing party could not obtain justice in the state court but also of all other remands entered by a district court. Rejecting an argument essentially identical to that advanced by the majority, the Court there held:
41
"The fact that it is found at the end of the section, and immediately after the provision for removals on account of prejudice or local influence, has, to our minds, no special significance. Its language is broad enough to cover all cases, and such was evidently the purpose of congress." Morey, 123 U.S., at 58, 8 S.Ct., at 66.
42
In Employes Reinsurance Corp. v. Bryant, 299 U.S. 374, 57 S.Ct. 273, 81 L.Ed. 289 (1937), the Court reiterated its Morey holding, ruling that even though the 1911 revision of the Judicial Code had split removal and remand provisions into various sections, the prohibition against review continued to bar all attempts to challenge orders of remand. The majority characterizes Bryant as holding that orders of remand issue pursuant to former 28 U.S.C. § 80 (1946 ed.) were cases "improperly removed" within the meaning of § 71 of that Title. Ante, at 348. But there is no such statement anywhere in Bryant, and that case's clearly stated holding is that the prohibitions against review of remand orders originally enacted in 1887 (and still in effect) "are intended to reach and include all cases removed from a state court into a federal court and remanded by the latter." 299 U.S., at 381, 57 S.Ct., at 276. See United States v. Rice, 327 U.S. 742, 752, 66 S.Ct. 835, 839, 90 L.Ed. 982 (1946).
43
Even if one were to accept the majority's theory that "so remanding" somehow limited the otherwise universal prohibition against review, there is no such phrase in the current statute. The majority attempts to avoid this by contending that Congress "intended to restate the prior law with respect to remand orders and their reviewability." Ante, at 349-350. But this assertion flies in the face of the fact that in revising and codifying Title 28, Congress intended to, and did, work significant changes in prior law governing the Judicial Code and the judiciary. The House Committee made clear that the proposed revisions to the removal provisions effectuated a substantially altered and less cumbersome scheme of removal, in which several prior avenues to federal court had been removed so as to restrict federal jurisdiction. H.R.Rep.No.308, 80th Cong., 1st Sess., 6, A133-A134. And with respect to the section at issue here, § 1447, the House Judiciary Committee noted that the new
44
"(s)ection consolidates procedural provisions of sections 71, 72, 74, 76, 80, 81 and 83 of title 28, U.S.C. 1940 ed., with important changes in substance and phraseology." Id., at A-136.
45
It is difficult to see how changes thus described by the Committee can have had no effect on the law.
46
The Court stresses that the 1949 reintroduction of the bar to review, apparently inadvertently omitted from the 1948 revision of the Judicial Code, was intended to enact the same rule of finality previously in effect. Ante, at 350 n. 15. I agree with this interpretation, but not with the Court's application of it. The "former law as to finality" which was continued by subsection (d) is that which had been in effect from 1887. Congress has made all judgments "remanding a cause to the state court final and conclusive." In re Pennsylvania Co., 137 U.S. 451, 454, 11 S.Ct. 141, 142, 34 L.Ed. 738 (1890); Bryant, supra. Until today it has not been doubted that
47
"Congress, by the adoption of these provisions, . . . established the policy of not permitting interruption of the litigation of the merits of a removed cause by prolonged litigation of questions of jurisdiction of the district court to which the cause is removed. This was accomplished by denying any form of review of an order of remand . . . ." United States v. Rice, supra, 327 U.S., at 751, 66 S.Ct., at 839.
III
48
Finally, I perceive no justification for the Court's decision to ignore the express directive of Congress in favor of what it personally perceives to be "justice" in this case. If anything is clear from the history of the prohibition against review, it is that Congress decided that potential errors in individual cases did not justify permitting litigants to challenge remand orders. To carry out its policy of avoiding further interruption of the litigation of removed causes, properly begun in state courts, see Rice, supra, at 751-752, 66 S.Ct., at 838-839, Congress decided to place final responsibility for implementation of its removal scheme with the district courts. It is not for this Court to strike that balance anew.
49
Congress has demonstrated its ability to protect against judicial abuses of removal rights when it thought it necessary to do so. See Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966); City of Greenwood v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966). And it is apparent that the judiciary is not without the means of dealing with such errors as pose some danger of repetition.* Rather than leaving future repetition of cases such as this to Congress, the Court sets out to right a perceived wrong in this individual case. In the process of doing so it reopens an avenue for dilatory litigation which Congress had explicitly closed. Because I am convinced that both the Court of Appeals and this Court are without jurisdiction to consider the merits of petitioners' claims, I would affirm the judgment below.
1
Title 28 U.S.C. § 1441 provides:
"(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
"(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.
"(c) Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction."
2
Title 28 U.S.C. § 1446 provides:
"(a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a verified petition containing a short and plain statement of the facts which entitle him or them to removal together with a copy of all process, pleadings and orders served upon him or them in such action.
"(b) The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and
is not required to be served on the defendant, whichever period is shorter.
"If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.
"(c) The petition for removal of a criminal prosecution may be filed at any time before trial.
"(d) Each petition for removal of a civil action or proceeding, except a petition in behalf of the United States, shall be accompanied by a bond with good and sufficient surety conditioned that the defendant or defendants will pay all costs and disbursements incurred by reason of the removal proceedings should it be determined that the case was not removable or was improperly removed.
"(e) Promptly after the filing of such petition and bond the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the petition with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.
"(f) If the defendant or defendants are in actual custody on process issued by the State court, the district court shall issue its writ of habeas corpus, and the marshal shall thereupon take such defendant or defendants into his custody and deliver a copy of the writ to the clerk of such State court."
3
The condition of respondent's docket and the priority for trial of cases on the docket were explained by respondent in the memorandum opinion and order, Record 36-37:
"At the close of business on February 28, 1974 there were pending on the dockets for which this Court has primary responsibility a total of eighty (80) criminal actions and three hundred ninety-four (394) civil actions. These cases have been assigned various priorities. The first priority is granted criminal actions. Social Security and Black Lung cases * have a priority second only to criminal cases. Webb v. Richardson, 472 F.2d 529, 538 (6th Cir. 1972). A third priority is granted those actions in which the United States is a party. The lowest priority, as a matter of necessity, is assigned private civil actions. Consequently, the period between the filing of such actions and the time in which they are assigned for trial must, regrettably, continually be extended."
"*At the present time the Eastern District of Kentucky is experiencing an influx of Black Lung related actions. The Department of Health, Education and Welfare predicts that a total in excess of four thousand (4,000) of these actions will ultimately be filed in this District."
4
Apparently respondent entered similar orders of remand in other diversity cases removed to his court. Petitioners stated in their petition for a writ of mandamus in the Court of Appeals that they believed "upon information only, that the Respondent herein has entered similar Orders of Remand in approximately 28 other actions, which actions either were removed to the United States District Court for the Eastern District of Kentucky, at Pikeville, in 1973, or which actions constitute all cases removed to said Court during the year 1973." Id., at 8-9. At oral argument before this Court, petitioners' counsel stated that during 1973, 14 cases had been removed from the Pike Circuit Court to respondent's court and that in every case respondent had issued orders to defendants to show cause why the cases should not be remanded to the state court. Petitioners' counsel further stated that respondent had entered orders of remand to the state court in all but two of those cases. Tr. of Oral Arg. 8.
5
See n. 1, supra.
6
See n. 2, supra.
7
Title 28 U.S.C. § 1443 provides:
"Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:
"(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof;
"(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law."
Title 28 U.S.C. § 1447(d) as amended in 1949, was further amended in 1964 to provide expressly for review "by appeal or otherwise" of orders remanding cases that had been removed pursuant to § 1443. § 901 of Civil Rights Act of 1964, 78 Stat. 266. See Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966); City of Greenwood v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966).
8
So far as the record reveals, it has not been questioned in this case that the cause is between citizens of different States, that it involves a claim of over $10,000 exclusive of interest and costs, that it is within the so-called diversity jurisdiction of the District Court and that it could have been initially filed in the District Court pursuant to 28 U.S.C. § 1331. It also seems common ground that there is no express statutory provision forbidding the removal of this action and that the cause was timely removed in strict compliance with 28 U.S.C. § 1446.
9
Lower federal courts have uniformly held that cases properly removed from state to federal court within the federal court's jurisdiction may not be remanded for discretionary reasons not authorized by the controlling statute. Romero v. ITE Imperial Corp., 332 F.Supp. 523, 526 (PR1971); Isbrandtsen Co. v. Dist. 2, Marine Engineers Ben. Assn., 256 F.Supp. 68, 77 (E.D.N.Y.1966); Davis v. Joyner, 240 F.Supp. 689, 690 (E.D.N.C.1964); Vann v. Jackson, 165 F.Supp. 377, 381 (E.D.N.C.1958).
10
Section 5 of the Judiciary Act of 1875, 18 Stat. 472, provided:
"That if, in any suit commenced in a circuit court or removed from a State court to a circuit court of the United States, it shall appear to the satisfaction of said circuit court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said circuit court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said circuit court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed as justice may require, and shall make such order as to costs as shall be just; but the order of said circuit court dismissing or remanding said cause to the State court shall be reviewable by the Supreme Court on writ of error or appeal, as the case may be."
11
The Act of Mar. 3, 1887, c. 373, 24 Stat. 553, provided in part:
" 'Whenever any cause shall be removed from any State court into any circuit court of the United States, and the circuit court shall decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the circuit court so remanding such cause shall be allowed.' "
12
Title 28 U.S.C. § 71 (1946 ed.), which was effective until the 1948 revision, provided in part:
"Whenever any cause shall be removed from any State court into any district court of the United States, and the district court shall decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the district court so remanding such cause shall be allowed."
Title 28 U.S.C. § 80 (1946 ed.), which was also effective until the 1948 revision, provided:
"If in any suit commenced in a district court, or removed from a State court to a district court of the United States, it shall appear to the satisfaction of the said district court, at any time after such suit has been brought or removed thereto, that such suit does not
really and substantially involve a dispute or controversy properly within the jurisdiction of said district court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this chapter, the said district court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may require, and shall make such order as to costs as shall be just."
13
As amended in 1949, 28 U.S.C. § 1447(d) (1946 ed., Supp. III) provided:
"(d) An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." The subsection took its present form in 1964, when Congress amended the subsection to provide for review of cases removed pursuant to 28 U.S.C. § 1443. See n. 7, supra.
14
Kloeb v. Armour & Co., 311 U.S. 199, 61 S.Ct. 213, 85 L.Ed. 124 (1940), upon which respondent relies, plainly did not do so. There, various suits were
filed in the Ohio state courts against Armour and an individual. Armour's removal petitions, filed in the state courts in accordance with the then-controlling procedure and asserting the right to remove because of a separable controversy between it and the plaintiffs, were denied by the trial court. The Ohio Supreme Court reversed, holding that the controversy with Armour was separable and that its removal petitions should have been granted. The trial court complied, and the cases were removed; but a motion to remand was then granted in the Federal District Court on the ground that in its view there was no separable controversy and hence no federal jurisdiction. The Court of Appeals for the Sixth Circuit granted Armour's mandamus petition, holding that the District Court had no power to determine the separable-controversy issue because that question had been finally determined by the Ohio Supreme Court. The Court of Appeals deemed inapplicable the prohibition against review by appeal or mandamus where the action of the District Court flouted not only the doctrine of res judicata but also the statutes directing courts to give full faith and credit to the decisions of state tribunals. The view of the Court of Appeals was that the prohibition against review contained in § 71 barred review of erroneous decisions but not of those beyond the power of the District Court. In reversing, this Court could not agree with "(t)he suggestion that the federal district court had no power to consider the entire record and pass upon the question of separability, because this point had been finally settled by the Supreme Court of Ohio." 311 U.S., at 204, 61 S.Ct., at 216. Although the Ohio Supreme Court had held that the state trial court should have relinquished jurisdiction, the federal court was required by the controlling statute to consider its own jurisdiction, which it had proceeded to do in determining that "the controversy was not within the jurisdiction of that court" and that the case should be remanded. The remand order was thus deemed by this Court to be strictly within the power conferred upon the District Court by the statute, inasmuch as it was based on a determination of jurisdiction over the case. Mandamus was therefore barred by § 71.
It is apparent that Kloeb does not control this case. Kloeb did not hold that mandamus would not lie to challenge an order based
upon grounds that the District Court was not empowered by statute to consider. To the contrary, Kloeb held that the District Court was not bound by the state court's jurisdictional determination, and that the District Court's remand order, entered for want of jurisdiction in compliance with the controlling statute, was not reviewable by mandamus. In contrast to Kloeb, where the remand for want of jurisdiction was expressly authorized by the statute, here the District Court did not purport to comply with the removal and remand statutes at all. Its remand was on wholly unauthorized grounds.
15
When the Judicial Code was revised in 1948, 28 U.S.C. § 1447(e) (1946 ed., Supp. II) (now § 1447(c)) provided:
"If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case." There was no express provision, as there had been under former § 71, prohibiting review of such order. The Reviser's Note stated:
"Subsection (e) (now subsec. (c)) is derived from sections 71 and 80 of title 28, U.S.C., 1940 ed. Such subsection is rewritten to eliminate the cumbersome procedure of remand." Note following 28 U.S.C. § 1447.
There was no intent to change the prior law substantively, although the prohibition of appellate review of remand orders contained in § 71 of the old Code was inexplicably omitted. The omission was quickly rectified by the 1949 amendments to the Code. Section 1447(c), (1946 ed., Supp. III), which had been § 1447(e) (1946 ed., Supp. II) in the 1948 revision, took its present form and § 1447(d) (1946 ed., Supp III) was enacted. The House Report on the 1949 amendments explained the addition of § 1447(d):
"This section strikes out subsections (c) and (d) of section 1447 of title 28, U.S.C., as covered by the Federal Rules of Civil Procedure, and adds a new subsection to such section 1447 to remove any doubt that the former law as to the finality of an order of remand to a State court is continued." H.R.Rep.No.352, 81st Cong., 1st Sess., 15, U.S.Code Cong.Serv.1949, pp. 1248, 1268.
The plain intent of Congress, which was accomplished with the 1949
amendment, was to recodify the pre-1948 law without material change insofar as the provisions of §§ 71 and 80 of the old Code here relevant were concerned. That the word "improperly" in the old law was changed to "improvidently" in § 1447(c) (1946 ed., Supp. III) with reference to the criteria for remanding cases removed from state and federal court is of no moment. "(N)o changes of law or policy are to be presumed from changes of language in the (1948) revision (of the Judicial Code) unless an intent to make such changes is clearly expressed." Fourco Glass Co. v. Transmirra Corp., 353 U.S. 222, 227, 77 S.Ct. 787, 790, 1 L.Ed.2d 786 (1957) (footnote omitted). What this Court said in Employers Reinsurance Corp. v. Bryant, 299 U.S. 374, 57 S.Ct. 273, 81 L.Ed. 289 (1937), with respect to the in pari materia construction of §§ 71 and 80 of the pre-1948 Judicial Code is equally true today of §§ 1447(c) and (d) in light of the identical substantive content of the two sets of statutory provisions.
*
The panel of the Court of Appeals below indicated its intention to report respondent's actions "to the Circuit Council for the Sixth Circuit, which has supervisory powers over the District Court."
| 89
|
423 U.S. 362
96 S.Ct. 598
46 L.Ed.2d 561
Frank L. RIZZO et al., Petitioners,v.Gerald G. GOODE et al.
No. 74-942.
Argued Nov. 11, 1975.
Decided Jan. 21, 1976.
Syllabus
Two suits, permitted to proceed as class actions, were brought in District Court under 42 U.S.C. § 1983 by respondents, individuals and organizations, against petitioners, the Mayor of Philadelphia, the Police Commissioner, and others, alleging a pervasive pattern of illegal and unconstitutional police mistreatment of minority citizens in particular and Philadelphia residents in general. The petitioners were charged with misconduct ranging from express authorization or encouragement of the mistreatment to failure to act in such a way as to avoid recurrence. The principal antagonists involved in one case were two police officer, not named as parties, who were found to have violated complainants' constitutional rights in three of eight incidents as to which the District Court made detailed factual findings and as to which a five-day suspension had resulted in one incident and no disciplinary action in another. In the other case, in only two of 28 incidents did the District Court conclude that the police conduct amounted to a deprivation of a federally secured right; it found no police misconduct in four incidents; in another, departmental policy was subsequently changed; and, though the court made no comment on the degree of misconduct occurring in the remainder, there were arguably 16 police violations of citizens' constitutional rights in the year involved. The District Court found, inter alia, that the evidence did not establish the existence of any policy on the part of petitioners to violate the constitutional rights of respondent classes but found evidence of departmental discouragement of complaints and a tendency to minimize the consequences of police misconduct. The court found that only a small percentage of policemen commit violations of the rights of Philadelphia residents generally but that such violations could not be dismissed as rare or isolated. Petitioners were directed to draft for the court's approval "a comprehensive program for dealing adequately with civilian complaints" to be formulated in accordance with the court's "guidelines" containing detailed suggestions for revising the police manuals and procedural rules for dealing with citizens and for changing procedures for handling complaints. On petitioners' appeal the Court of Appeals affirmed. Held :
1. The requisite Art. III case or controversy between the individually named respondents and petitioners was lacking, since those respondents' claim to "real and immediate" injury rests not upon what the named petitioners might do to them in the future but upon what one of a small, unnamed minority of policemen might do to them, and thus those respondents lacked the requisite personal stake in the outcome, i. e., the order overhauling police disciplinary procedures. Cf. O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674. Pp. 371-373.
2. The judgment of the District Court constitutes an unwarranted federal judicial intrusion into the discretionary authority of petitioners to perform their official functions as prescribed by state and local law, and by validating the type of litigation and granting the type of relief involved here, the lower courts have exceeded their authority under 42 U.S.C. § 1983. Pp. 373-381.
(a) The District Court's theory of liability under § 1983 was erroneous, being based on a showing of an "unacceptably high" number of incidents of constitutional dimension when in fact there were only 20 in a city of three million inhabitants with 7,500 policemen, and on the untenable conclusion that even without a showing of direct responsibility for the actions of a small percentage of the police force petitioners' failure to act in the face of a statistical pattern was just as enjoinable under § 1983 as was the active conduct enjoined in Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423, and Allee v. Medrano, 416 U.S. 802, 94 S.Ct. 2191, 40 L.Ed.2d 566. Pp. 373-376.
(b) Nor can the remedy granted here be upheld on the basis that such equitable relief was sanctioned in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554, for here, unlike the situation in that case, where the state authorities had implemented the unconstitutional deprivation, the responsible authorities were not found to have played an affirmative part in any unconstitutional deprivations. Pp. 376-377.
(c) Important principles of federalism militate against the proposition, advanced by respondents, that federal equity power should fashion prophylactic procedures designed to minimize misconduct by a handful of state employees, and the District Court's injunctive order, which sharply limited the police department's "latitude in the dispatch of its internal affairs," contravened those principles. Pp. 377-380.
506 F.2d 542, reversed.
James M. Penny, Jr., Philadelphia, Pa., for petitioners.
Peter Hearn, Philadelphia, Pa., for respondents.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
The District Court for the Eastern District of Pennsylvania, after parallel trials of separate actions1 filed in 1970, entered an order in 1973 requiring petitioners "to submit to (the District) Court for its approval a comprehensive program for improving the handling of citizen complaints alleging police misconduct" in accordance with a comprehensive opinion filed together with the order. The proposed program, negotiated between petitioners and respondents for the purpose of complying with the order, was incorporated six months later into a final judgment. Petitioner City Police Commissioner was thereby required, inter alia, to put into force a directive governing the manner by which citizens' complaints against police officers should henceforth be handled by the department.2 The Court of Appeals for the Third Circuit, upholding the District Court's finding that the existing procedures for handling citizen complaints were "inadequate," affirmed the District Court's choice of equitable relief: "The revisions were . . . ordered because they appeared to have the potential for prevention of future police misconduct." 506 F.2d 542, 548 (1974). We granted certiorari to consider petitioners' claims that the judgment of the District Court represents an unwarranted intrusion by the federal judiciary into the discretionary authority committed to them by state and local law to perform their official functions. We find ourselves substantially in agreement with these claims, and we therefore reverse the judgment of the Court of Appeals.
2
* The central thrust of respondents' efforts in the two trials was to lay a foundation for equitable intervention, in one degree or another, because of an assertedly pervasive pattern of illegal and unconstitutional mistreatment by police officers. This mistreatment was said to have been directed against minority citizens in particular and against all Philadelphia residents in general. The named individual and group respondents were certified to represent these two classes. The principal petitioners here the Mayor, the City Managing Director, and the Police Commissioner were charged with conduct ranging from express authorization or encouragement of this mistreatment to failure to act in a manner so as to assure that it would not recur in the future.
3
Hearing some 250 witnesses during 21 days of hearings, the District Court was faced with a staggering amount of evidence; each of the 40-odd incidents might alone have been the piece de resistance of a short, separate trial. The District Court carefully and conscientiously resolved often sharply conflicting testimony, and made detailed findings of fact,3 which both sides now accept, with respect to eight of the incidents presented by the Goode respondents and with respect to 28 of those presented by COPPAR.4
4
The principal antagonists in the eight incidents recounted in Goode were Officers DeFazio and D'Amico, members of the city's "Highway Patrol" force. They were not named as parties to the action. The District Court found the conduct of these officers to be violative of the constitutional rights of the citizen complainants in three5 of the incidents, and further found that complaints to the police Board of Inquiry had resulted in one case in a relatively mild five-day suspension and in another case a conclusion that there was no basis for disciplinary action.
5
In only two of the 28 incidents recounted in COPPAR (which ranged in time from October 1969 to October 1970) did the District Court draw an explicit conclusion that the police conduct amounted to a deprivation of a federally secured right; it expressly found no police misconduct whatsoever in four of the incidents; and in one other the departmental policy complained of was subsequently changed. As to the remaining 21, the District Court did not proffer a comment on the degree of misconduct that had occurred: whether simply improvident, illegal under police regulations or state law, or actually violative of the individual's constitutional rights. Respondents' brief asserts that of this latter group, the facts as found in 14 of them "reveal (federal) violations."6 While we think that somewhat of an overstatement, we accept it, arguendo, and thus take it as established that, insofar as the COPPAR record reveals, there were 16 incidents occurring in the city of Philadelphia over a year's time in which numbers of police officers violated citizens' constitutional rights. Additionally, the District Court made reference to citizens' complaints to the police in seven of those 16; in four of which, involving conduct of constitutional dimension, the police department received complaints but ultimately took no action against the offending officers.
6
The District Court made a number of conclusions of law, not all of which are relevant to our analysis. It found that the evidence did not establish the existence of any policy on the part of the named petitioners to violate the legal and constitutional rights of the plaintiff classes, but it did find that evidence of departmental procedure indicated a tendency to discourage the filing of civilian complaints and to minimize the consequences of police misconduct. It found that as to the larger plaintiff class, the residents of Philadelphia, only a small percentage of policemen commit violations of their legal and constitutional rights, but that the frequency with which such violations occur is such that "they cannot be dismissed as rare, isolated instances." COPPAR v. Rizzo, 357 F.Supp. 1289, 1319 (1973). In the course of its opinion, the District Court commented:
7
"In the course of these proceedings, much of the argument has been directed toward the proposition that courts should not attempt to supervise the functioning of the police department. Although, contrary to the defendants' assertions, the Court's legal power to do just that is firmly established, . . . I am not persuaded that any such drastic remedy is called for, at least initially, in the present cases." Id., at 1320.
8
The District Court concluded by directing petitioners to draft, for the court's approval, "a comprehensive program for dealing adequately with civilian complaints", to be formulated along the following "guidelines" suggested by the court:
9
"(1) Appropriate revision of police manuals and rules of procedure spelling out in some detail, in simple language, the 'dos and don'ts' of permissible conduct in dealing with civilians (for example, manifestations of racial bias, derogatory remarks, offensive language, etc.; unnecessary damage to property and other unreasonable conduct in executing search warrants; limitations on pursuit of persons charged only with summary offenses; recording and processing civilian complaints, etc.). (2) Revision of procedures for processing complaints against police, including (a) ready availability of forms for use by civilians in lodging complaints against police officers; (b) a screening procedure for eliminating frivolous complaints; (c) prompt and adequate investigation of complaints; (d) adjudication of nonfrivolous complaints by an impartial individual or body, insulated so far as practicable from chain of command pressures, with a fair opportunity afforded the complainant to present his complaint, and to the police officer to present his defense; and (3) prompt notification to the concerned parties, informing them of the outcome." Id., at 1321.
10
While noting that the "guidelines" were consistent with "generally recognized minimum standards" and imposed "no substantial burdens" on the police department, the District Court emphasized that respondents had no constitutional right to improved police procedures for handling civilian complaints. But given that violations of constitutional rights of citizens occur in "unacceptably" high numbers, and are likely to continue to occur, the court-mandated revision was a "necessary first step" in attempting to prevent future abuses. Ibid. On petitioners' appeal the Court of Appeals affirmed.
II
11
These actions were brought, and the affirmative equitable relief fashioned, under the Civil Rights Act of 1871, 42 U.S.C. § 1983. It provides that "(e) very person who, under color of (law) subjects, or causes to be subjected, any . . . person within the jurisdiction (of the United States) to the deprivation of any rights . . . secured by the Constitution and laws, shall be liable to the party injured in an action at law (or) suit in equity . . . ." The plain words of the statute impose liability whether in the form of payment of redressive damages or being placed under an injunction only for conduct which "subjects, or causes to be subjected" the complainant to a deprivation of a right secured by the Constitution and laws.
12
The findings of fact made by the District Court at the conclusion of these two parallel trials in sharp contrast to that which respondents sought to prove with respect to petitioners disclose a central paradox which permeates that court's legal conclusions. Individual police officers not named as parties to the action were found to have violated the constitutional rights of particular individuals, only a few of whom were parties plaintiff. As the facts developed, there was no affirmative link between the occurrence of the various incidents of police misconduct and the adoption of any plan or policy by petitioners express or otherwise showing their authorization or approval of such misconduct. Instead, the sole causal connection found by the District Court between petitioners and the individual respondents was that in the absence of a change in police disciplinary procedures, the incidents were likely to continue to occur, not with respect to them, but as to the members of the classes they represented. In sum, the genesis of this lawsuit a heated dispute between individual citizens and certain policemen has evolved into an attempt by the federal judiciary to resolve a "controversy" between the entire citizenry of Philadelphia and the petitioning elected and appointed officials over what steps might, in the Court of Appeals' words, "(appear) to have the potential for prevention of future police misconduct." 506 F.2d, at 548. The lower courts have, we think, overlooked several significant decisions of this Court in validating this type of litigation and the relief ultimately granted.
A.
13
We first of all entertain serious doubts whether on the facts as found there was made out the requisite Art. III case or controversy between the individually named respondents and petitioners. In O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), the individual respondents, plaintiffs in the District Court, alleged that petitioners, a county magistrate and judge, had embarked on a continuing, intentional practice of racially discriminatory bond setting, sentencing, and assessing of jury fees. No specific instances involving the individual respondents were set forth in the prayer for injunctive relief against the judicial officers. And even though respondents' counsel at oral argument had stated that some of the named respondents had in fact "suffered from the alleged unconstitutional practices," the Court concluded that "(p)ast 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." Id., at 495-496, 94 S.Ct., at 676. The Court further recognized that while "past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury", the attempt to anticipate under what circumstances the respondents there would be made to appear in the future before petitioners "takes us into the area of speculation and conjecture." Id., at 496-497, 94 S.Ct., at 676. These observations apply here with even more force, for the individual respondents' claim to "real and immediate" injury rests not upon what the named petitioners might do to them in the future such as set a bond on the basis of race but upon what one of a small, unnamed minority of policemen might do to them in the future because of that unknown policeman's perception of departmental disciplinary procedures. This hypothesis is even more attenuated than those allegations of future injury found insufficient in O'Shea to warrant invocation of federal jurisdiction. Thus, insofar as the individual respondents were concerned, we think they lacked the requisite "personal stake in the outcome," Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), i. e., the order overhauling police disciplinary procedures.
B
14
That conclusion alone might appear to end the matter, for O'Shea also noted that "if none of the named plaintiffs . . . 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" which they purport to represent. 414 U.S., at 494, 94 S.Ct., at 675. But, unlike O'Shea, this case did not arise on the pleadings. The District Court, having certified the plaintiff classes,7 bridged the gap between the facts shown at trial and the classwide relief sought with an unprecedented theory of § 1983 liability. It held that the classes' § 1983 actions for equitable relief against petitioners were made out on a showing of an "unacceptably high" number of those incidents of constitutional dimension some 20 in all occurring at large in a city of three million inhabitants, with 7,500 policemen.
15
Nothing in Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939), the only decision of this Court cited by the District Court,8 or any other case from this Court, supports such an open-ended construction of § 1983. In Hague, the pattern of police misconduct upon which liability and injunctive relief were grounded was the adoption and enforcement of deliberate policies by the defendants there (including the Mayor and the Chief of Police) of excluding and removing the plaintiff's labor organizers and forbidding peaceful communication of their views to the citizens of Jersey City. These policies were implemented "by force and violence" on the part of individual policemen. There was no mistaking that the defendants proposed to continue their unconstitutional policies against the members of this discrete group.
16
Likewise, in Allee v. Medrano, 416 U.S. 802, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974), relied upon by the Court of Appeals and respondents here, we noted:
17
"The complaint charged that the enjoined conduct was but one part of a single plan by the defendants, and the District Court found a pervasive pattern of intimidation in which the law enforcement authorities sought to suppress appellees' constitutional rights. In this blunderbuss effort the police not only relied on statutes . . . found constitutionally deficient, but concurrently exercised their authority under valid laws in an unconstitutional manner." Id., at 812, 94 S.Ct., at 2198 (emphasis added).
18
The numerous incidents of misconduct on the part of the named Texas Rangers, as found by the District Court and summarized in this Court's opinion, established beyond peradventure not only a "persistent pattern" but one which flowed from an intentional, concerted, and indeed conspiratorial effort to deprive the organizers of their First Amendment rights and place them in fear of coming back. Id., at 814-815, 94 S.Ct., at 2199-2200.
19
Respondents stress that the District Court not only found an "unacceptably high" number of incidents but held, as did the Court of Appeals, that "when a pattern of frequent police violations of rights is shown, the law is clear that injunctive relief may be granted." 357 F.Supp., at 1318 (emphasis added). However, there was no showing that the behavior of the Philadelphia police was different in kind or degree from that which exists elsewhere; indeed, the District Court found "that the problems disclosed by the record . . . are fairly typical of (those) afflicting police departments in major urban areas." Ibid. Thus, invocation of the word "pattern" in a case where, unlike Hague and Medrano, the defendants are not causally linked to it, is but a distant echo of the findings in those cases. The focus in Hague and Medrano was not simply on the number of violations which occurred but on the common thread running through them: a "pervasive pattern of intimidation" flowing from a deliberate plan by the named defendants to crush the nascent labor organizations. Medrano, supra, 416 U.S., at 812, 94 S.Ct., at 2198. The District Court's unadorned finding of a statistical pattern is quite dissimilar to the factual settings of these two cases.
20
The theory of liability underlying the District Court's opinion, and urged upon us by respondents, is that even without a showing of direct responsibility for the actions of a small percentage of the police force, petitioners' failure to act in the face of a statistical pattern is indistinguishable from the active conduct enjoined in Hague and Medrano. Respondents posit a constitutional "duty" on the part of petitioners (and a corresponding "right" of the citizens of Philadelphia) to "eliminate" future police misconduct; a "default" of that affirmative duty being shown by the statistical pattern, the District Court is empowered to act in petitioners' stead and take whatever preventive measures are necessary, within its discretion, to secure the "right" at issue. Such reasoning, however, blurs accepted usages and meanings in the English language in a way which would be quite inconsistent with the words Congress chose in § 1983. We have never subscribed to these amorphous propositions, and we decline to do so now.
21
Respondents claim that the theory of liability embodied in the District Court's opinion is supported by desegregation cases such as Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). But this case, and the long line of precedents cited therein, simply reaffirmed the body of law originally enunciated in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954):
22
"Nearly 17 years ago this Court held, in explicit terms, that state-imposed segregation by race in public schools denies equal protection of the laws. At no time has the Court deviated in the slightest degree from that holding or its constitutional underpinnings.
23
"Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies." Swann, supra, 402 U.S., at 11, 15, 91 S.Ct., at 1274.
24
Respondents, in their effort to bring themselves within the language of Swann, ignore a critical factual distinction between their case and the desegregation cases decided by this Court. In the latter, segregation imposed by law had been implemented by state authorities for varying periods of time, whereas in the instant case the District Court found that the responsible authorities had played no affirmative part in depriving any members of the two respondent classes of any constitutional rights. Those against whom injunctive relief was directed in cases such as Swann and Brown were not administrators and school board members who had in their employ a small number of individuals, which latter on their own deprived black students of their constitutional rights to a unitary school system. They were administrators and school board members who were found by their own conduct in the administration of the school system to have denied those rights. Here, the District Court found that none of the petitioners had deprived the respondent classes of any rights secured under the Constitution. Under the well-established rule that federal "judicial powers may be exercised only on the basis of a constitutional violation," Swann, supra, 402 U.S., at 16, 91 S.Ct., at 1276, this case presented no occasion for the District Court to grant equitable relief against petitioners.
C
25
Going beyond considerations concerning the existence of a live controversy and threshold statutory liability, we must address an additional and novel claim advanced by respondent classes. They assert that given the citizenry's "right" to be protected from unconstitutional exercises of police power, and the "need for protection from such abuses," respondents have a right to mandatory equitable relief in some form when those in supervisory positions do not institute steps to reduce the incidence of unconstitutional police misconduct.9 The scope of federal equity power, it is proposed, should be extended to the fashioning of prophylactic procedures for a state agency designed to minimize this kind of misconduct on the part of a handful of its employees. However, on the facts of this case, not only is this novel claim quite at odds with the settled rule that in federal equity cases "the nature of the violation determines the scope of the remedy," ibid., but important considerations of federalism are additional factors weighing against it. Where, as here, the exercise of authority by state officials is attacked, federal courts must be constantly mindful of the "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), quoted in O'Shea v. Littleton, 414 U.S., at 500, 94 S.Ct., at 678.
26
Section 1983 by its terms confers authority to grant equitable relief as well as damages, but its words "allow a suit in equity only when that is the proper proceeding for redress, and they refer to existing standards to determine what is a proper proceeding." Giles v. Harris, 189 U.S. 475, 486, 23 S.Ct. 639, 642, 47 L.Ed. 909 (1903) (Holmes, J.). Even in an action between private individuals, it has long been held that an injunction is "to be used sparingly, and only in a clear and plain case." Irwin v. Dixion, 9 How. 10, 33, 13 L.Ed. 25 (1850). When a plaintiff seeks to enjoin the activity of a government agency, even within a unitary court system, his case must contend with "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)," quoted in Sampson v. Murray, 415 U.S. 61, 83, 94 S.Ct. 937, 950, 39 L.Ed.2d 166 (1974). The District Court's injunctive order here, significantly revising the internal procedures of the Philadelphia police department, was indisputably a sharp limitation on the department's "latitude in the 'dispatch of its own internal affairs.' "
27
When the frame of reference moves from a unitary court system, governed by the principles just stated, to a system of federal courts representing the Nation, subsisting side by side with 50 state judicial, legislative, and executive branches, appropriate consideration must be given to principles of federalism in determining the availability and scope of equitable relief. Doran v. Salem Inn, Inc., 422 U.S. 922, 928, 95 S.Ct. 2561, 2566, 45 L.Ed.2d 648 (1975).
28
So strongly has Congress weighted this factor of federalism in the case of a state criminal proceeding that it has enacted 28 U.S.C. § 2283 to actually deny to the district courts the authority to issue injunctions against such proceedings unless the proceedings come within narrowly specified exceptions. Even though an action brought under § 1983, as this was, is within those exceptions, Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972), the underlying notions of federalism which Congress has recognized in dealing with the relationships between federal and state courts still have weight. Where an injunction against a criminal proceeding is sought under § 1983, "the principles of equity, comity, and federalism" must nonetheless restrain a federal court. 407 U.S., at 243, 92 S.Ct., at 2162.
29
But even where the prayer for injunctive relief does not seek to enjoin the state criminal proceedings themselves, we have held that the principles of equity nonetheless militate heavily against the grant of an injunction except in the most extraordinary circumstances. In O'Shea v. Littleton, supra, 414 U.S., at 502, 94 S.Ct., at 679, we held that "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." And the same principles of federalism may prevent the injunction by a federal court of a state civil proceeding once begun. Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975).
30
Thus the principles of federalism which play such an important part in governing the relationship between federal courts and state governments, though initially expounded and perhaps entitled to their greatest weight in cases where it was sought to enjoin a criminal prosecution in progress, have not been limited either to that situation or indeed to a criminal proceeding itself. We think these principles likewise have applicability where injunctive relief is sought, not against the judicial branch of the state government, but against those in charge of an executive branch of an agency of state or local governments such as petitioners here. Indeed, in the recent case of Mayor v. Educational Equality League, 415 U.S. 605, 94 S.Ct. 1323, 39 L.Ed.2d 630 (1974), in which private individuals sought injunctive relief against the Mayor of Philadelphia, we expressly noted the existence of such considerations, saying: "There are also delicate issues of federal-state relationships underlying this case." Id., at 615, 94 S.Ct., at 1331.
31
Contrary to the District Court's flat pronouncement that a federal court's legal power to "supervise the functioning of the police department . . . is firmly established," it is the foregoing cases and principles that must govern consideration of the type of injunctive relief granted here. When it injected itself by injunctive decree into the internal disciplinary affairs of this state agency, the District Court departed from these precepts.
32
For the foregoing reasons the judgment of the Court of Appeals which affirmed the decree of the District Court is
33
Reversed.
34
Mr. Justice STEVENS took no part in the consideration or decision of this case.
35
Mr. Justice BLACKMUN with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
36
To be sure, federal-court intervention in the daily operation of a large city's police department, as the Court intimates, is undesirable and to be avoided if at all possible. The Court appropriately observes, however, ante, at 367, that what the Federal District Court did here was to engage in a careful and conscientious resolution of often sharply conflicting testimony and to make detailed findings of fact, now accepted by both sides, that attack the problem that is the subject of the respondents' complaint. The remedy was one evolved with the defendant officials' assent, reluctant though that assent may have been, and it was one that the police department concededly could live with. Indeed, the District Court, in its memorandum of December 18, 1973, stated that "the resolution of all the disputed items was more nearly in accord with the defendants' position than with the plaintiffs' position," and that the relief contemplated by the earlier orders of March 14, 1973, see COPPAR v. Rizzo, 357 F.Supp. 1289 (E.D. Pa.), "did not go beyond what the defendants had always been willing to accept." App. 190a. No one, not even this Court's majority, disputes the apparent efficacy of the relief or the fact that it effectuated a betterment in the system and should serve to lessen the number of instances of deprival of constitutional rights of members of the respondent classes. What is worrisome to the Court is abstract principle, and, of course, the Court has a right to be concerned with abstract principle that, when extended to the limits of logic, may produce untoward results in other circumstances on a future day. See Hudson County Water Co. v. McCarter, 209 U.S. 349, 355, 28 S.Ct. 529, 531, 52 L.Ed. 828 (1908) (Holmes, J.).
37
But the District Court here, with detailed, careful, and sympathetic findings, ascertained the existence of violations of citizens' constitutional rights, of a pattern of that type of activity, of its likely continuance and recurrence, and of an official indifference as to doing anything about it. The case, accordingly, plainly fits the mood of Allee v. Medrano, 416 U.S. 802, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974), and Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939), despite the observation, 357 F.Supp. at 1319, that the evidence "does not establish the existence of any overall Police Department policy to violate the legal and constitutional rights of citizens, nor to discriminate on the basis of race" (emphasis supplied). I am not persuaded that the Court's attempt to distinguish those cases from this one is at all successful. There must be federal relief available against persistent deprival of federal constitutional rights even by (or, perhaps I should say, particularly by) constituted authority on the state side.
38
The Court entertains "serious doubts," ante, at 371-372, as to whether there is a case of controversy here, citing O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). O'Shea, however, presented quite different facts. There, the plaintiff-respondents had alleged a fear of injury from actions that would be subsequent to some future, valid arrest. The Court said:
39
"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 the conduct said to be followed by petitioners. . . . 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." Id., at 497-498, 94 S.Ct. at 677.
40
Here, by contrast, plaintiff-respondents are persons injured by past unconstitutional conduct (an allegation not made in the O'Shea complaint) and fear injury at the hands of the police regardless of whether they have violated a valid law.
41
To the extent that Part II-A of the Court's opinion today indicates that some constitutional violations might be spread so extremely thin as to prevent any individual from showing the requisite case or controversy, I must agree. I do not agree, however, with the Court's substitution of its judgment for that of the District Court on what the evidence here shows. The Court states that what was shown was minimal, involving only a few incidents out of thousands of arrests in a city of several million population. Small as the ratio of incidents to arrests may be, the District Court nevertheless found a pattern of operation, even if no policy and one sufficiently significant that the violations "cannot be dismissed as rare, isolated instances." 357 F.Supp. at 1319. Nothing the Court has said demonstrates for me that there is no justification for that finding on this record. The Court's criticism about numbers would be just as forceful, or would miss the mark just as much, with 100 incidents or 500 or even 3,000, when compared with the overall number of arrests made in the city of Philadelphia. The pattern line will appear somewhere. The District Court drew it this side of the number of proved instances. One properly may wonder how many more instances actually existed but were unproved because of the pressure of time upon the trial court, or because of reluctant witnesses, or because of inherent fear to question constituted authority in any degree, or because of a despairing belief, unfounded though it may be, that nothing can be done about it anyway and that it is not worth the effort. That it was worth the effort is convincingly demonstrated by the result in the District Court, by the affirmance, on the issues before us, by a unanimous panel of the Third Circuit, and by the support given the result below by the Commonwealth of Pennsylvania, the Philadelphia Bar Association, the Greater Philadelphia Movement, and the other entities that have filed briefs as amici curiae here in support of the respondents.
42
The Court today appears to assert that a state official is not subject to the strictures of 42 U.S.C. § 1983 unless he directs the deprivation of constitutional rights. Ante, at 375-377. In so holding, it seems to me, the Court ignores both the language of § 1983 and the case law interpreting that language. Section 1983 provides a cause of action where a person acting under color of state law "subjects, or causes to be subjected," any other person to a deprivation of rights secured by the Constitution and laws of the United States. By its very words, § 1983 reaches not only the acts of an official, but also the acts of subordinates for whom he is responsible. In Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the Court said that § 1983 "should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions," id., at 187, 81 S.Ct., at 484, and:
43
"It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies." Id., at 180, 81 S.Ct., at 480. (Emphasis added.)
44
I do not find it necessary to reach the question under what circumstances failure to supervise will justify an award of money damages, or whether an injunction is authorized where the superior has no consciousness of the wrongs being perpetrated by his subordinates.1 It is clear that an official may be enjoined from consciously permitting his subordinates, in the course of their duties, to violate the constitutional rights of persons with whom they deal. In rejecting the concept that the official may be responsible under § 1983, the Court today casts aside reasoned conclusions to the contrary reached by the Courts of Appeals of 10 Circuits.2
45
In the instant case, the District Court found that although there was no departmental policy of racial discrimination, "such violations do occur, with such frequency that they cannot be dismissed as rare, isolated instances; and that little or nothing is done by the city authorities to punish such infractions, or to prevent their recurrence," 357 F.Supp., at 1319, and that it "is the policy of the department to discourage the filing of such complaints, to avoid or minimize the consequences of proven police misconduct, and to resist disclosure of the final disposition of such complaints." Id., at 1318. Needless to say, petitioners were under a statutory duty to supervise their subordinates. See Philadelphia Home Rule Charter, c2, § 5-200. I agree with the District Court that its findings are sufficient to bring petitioners within the ambit of § 1983.
46
Further, the applicability of § 1983 to controlling officers allows the district courts to avoid the necessity of injunctions issued against individual officers and the consequent continuing supervision by the federal courts of the day-to-day activities of the men on the street. The District Court aptly stated:
47
"Respect and admiration for the performance of the vast majority of police officers cannot justify refusal to confront the reality of the abuses which do exist. But deference to the essential role of the police in our society does mandate that intrusion by the courts into this sensitive area should be limited, and should be directed toward insuring that the police themselves are encouraged to remedy the situation." 357 F.Supp., at 1320.
48
I would regard what was accomplished in this case as one of those rightly rare but nevertheless justified instances just as Allee and Hague of federal-court "intervention" in a state or municipal executive area. The facts, the deprival of constitutional rights, and the pattern are all proved in sufficient degree. And the remedy is carefully delineated, worked out within the administrative structure rather then superimposed by edict upon it, and essentially, and concededly, "livable." In the City of Brotherly Love or in any other American city no less should be expected. It is a matter of regret that the Court sees fit to nullify what so meticulously and thoughtfully has been evolved to satisfy an existing need relating to constitutional rights that we cherish and hold dear.
1
The complaint in the first action, filed in February 1970 and styled Goode v. Rizzo, was brought by respondent Goode and two other individuals. The second, filed in September 1970 and styled COPPAR v. Tate, was brought by 21 individuals and four organizations: the Council of Organizations on Philadelphia Police Accountability and Responsibility (COPPAR), an unincorporated association composed of some 32 constituent community organizations; the Southern Christian Leadership Conference, whose principal office is in Atlanta, Ga.; and the Black Panther Party and the Young Lords Party, unincorporated associations of black citizens and citizens of Spanish origin, respectively. The latter two groups, of which some of the individual complainants in COPPAR were members, were ultimately dismissed as parties by the District Court for failure to submit to discovery. Both complaints named as defendants those officials then occupying the offices of Mayor, City Managing Director (who supervises and, with the Mayor's approval, appoints the Police Commissioner), and the Police Commissioner, who has direct supervisory power over the department. Two other police supervisors subordinate to the Commissioner were also named defendants. Both actions were permitted to proceed as class actions, with the individual respondents representing all residents of Philadelphia and an "included" class of all black residents of that city. For a thorough account of the procedural background of this case, see the District Court's opinion. COPPAR v. Rizzo, 357 F.Supp. 1289 (1973).
2
A judgment of considerable detail was entered against petitioners, appropriate substitution having been made in 1973 of the current officeholders, including petitioner Rizzo, by then Mayor. See n. 1, supra. The existing procedure for handling complaints, embodied in the 21/2-page "directive 127" (March 1967), was expanded to an all-encompassing 14-page document reflecting the revisions suggested by the District Court's "guidelines." See infra, at 369-370. Directive 127 as revised was ordered by the District Court to be promulgated as such by the Police Commissioner and posted in various public areas, with copies provided anyone who either requested one or inquired generally into the procedure for lodging complaints. A "Citizen's Complaint Report" was ordered drawn up in a format designated by the court, with copies to be printed and available in sufficient quantities to the public in several locations. The department was further ordered to propose a police recruit training manual reflective of the court's "guidelines," with respondents then having the chance to proffer alternative suggestions. Finally, the department was directed to maintain adequate statistical records and annual summaries to provide a basis for the court's "evaluation" of the program as ordered; the court reserved jurisdiction to review petitioners' progress in these areas and to grant further relief as might be appropriate. Pet. for Cert., 20a-37a.
3
Each of the incidents in Goode and COPPAR is set out in full detail in the District Court's opinion. 357 F.Supp., at 1294-1316. For present purposes we need only highlight those findings.
4
See n. 1, supra.
5
Incidents "1" through "3." 357 F.Supp., at 1294-1297.
6
This textual summary of the District Court's findings with respect to the COPPAR incidents is taken from the Brief for Respondents 14-15 and n. 18.
7
The Court of Appeals noted that petitioners had in their appeal raised no question of the propriety of the class designation under Fed.Rule Civ.Proc. 23. That issue is therefore not before us, and we express no opinion upon it.
8
Lankford v. Gelston, 364 F.2d 197 (CA4 1966), was also cited by the District Court for the proposition that federal courts have the legal power to "supervise the functioning of the police department." 357 F.Supp., at 1320. But the court in Lankford intimated no such power, and the facts which confronted it are obviously distinguishable. There, in executing an "evil practice that has long and notoriously persisted in the Police Department," the police, searching over a 19-day period for two black men who murdered one of their ranks, conducted some 300 warrantless searches of private residences in a predominately Negro area "at all hours of the day and night" on nothing more than "unverified anonymous (telephone) tips." 364 F.2d, at 198, and 205 n. 9. This "series of the most flagrant invasions of privacy every to come under the scrutiny of a federal court" arose out of what several experienced police officers testified was a "routine practice" in "serious cases." Id., at 200-201. Injunctive relief under § 1983 was granted against the defendant Police Commissioner because the wholesale raids were the "effectuation of a plan conceived by high ranking (police) officials," a practice which in the interim the defendant had "renounced only obliquely, if at all," and as to which "the danger of repetition has not been removed." Id., at 202, 204.
9
Brief for Respondents 34-35.
1
In this regard, however, this Court recently has approved the imposition of criminal liability without "consciousness of wrongdoing" for failure to supervise subordinates. United States v. Park, 421 U.S. 658, 95 S.Ct. 1903, 44 L.Ed.2d 489 (1975). The concept, thus, is far from novel doctrine.
2
"Under section 1983, equitable relief is appropriate in a situation where governmental officials have notice of the unconstitutional conduct of their subordinates and fail to prevent a recurrence of such misconduct. Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). From a legal standpoint, it makes no difference whether the plaintiffs' constitutional rights are violated as a result of police behavior which is the product of the active encouragement and direction of their superiors or as a result of the superiors' mere acquiescence in such behavior. In either situation, if the police officials had a duty, as they admittedly had here, to prevent the officers under their direction from committing the acts which are alleged to have occurred during the Convention, they are proper defendants in this action." Schnell v. City of Chicago, 407 F.2d 1084, 1086 (CA7 1969). See also Inmates of Suffolk County Jail v. Eisenstadt, 494 F.2d 1196, 1199 (CA1), cert. denied, 419 U.S. 977, 95 S.Ct. 239, 42 L.Ed.2d 189 (1974), and Rozecki v. Gaughan, 459 F.2d 6, 8 (CA1 1972); Wright v. McMann, 460 F.2d 126, 134-135 (CA2), cert. denied, 409 U.S. 885, 93 S.Ct. 115, 34 L.Ed.2d 141 (1972); Lewis v. Kugler, 446 F.2d 1343, 1351 (CA3 1971); Lankford v. Gelston, 364 F.2d 197 (CA4 1966); Jennings v. Patterson, 460 F.2d 1021, 1022 (CA5 1972); Smith v. Ross, 482 F.2d 33, 36 (CA6 1973); Byrd v. Brishke, 466 F.2d 6, 10-11 (CA7 1972); Jennings v. Davis, 476 F.2d 1271, 1275 (CA8 1973); Dewell v. Lawson, 489 F.2d 877, 881 (CA10 1974); Carter v. Carlson, 144 U.S.App.D.C. 388, 395, 447 F.2d 358, 365 (1971), rev'd on other grounds sub nom. District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973).
| 89
|
423 U.S. 403
96 S.Ct. 816
46 L.Ed.2d 591
Thomas S. KLEPPE, Secretary of the Interior, Petitioner,v.DELTA MINING, INC., et al.
No. 74-521.
Argued Oct. 6, 1975.
Decided Jan. 26, 1976.
Syllabus
Section 109(a)(1) of the Federal Coal Mine Health and Safety Act of 1969 requires the Secretary of the Interior, in determining the amount of the civil penalty against a coal mine operator for violations of the Act, to consider the history of previous violations, the appropriateness of the penalty to the size of the business, whether the operator was negligent, the effect on his ability to continue in business, the gravity of the violation, and the operator's good faith in attempting to comply after notification of a violation. Section 109(a)(3) requires that the penalty be assessed only after the operator "has been given an opportunity for a public hearing and the Secretary has determined, by decision incorporating his findings of fact therein, that a violation did occur, and the amount of the penalty which is warranted." Respondent mine operators protested assessed penalties but did not request formal adjudication, and after they refused to pay the assessments, the Secretary brought suits against them in the District Court seeking enforcement of the assessments. The District Court entered judgments in favor of respondents on the ground that the assessments were not supported by adequate findings of fact, and was upheld by the Court of Appeals. Held : Section 109(a)(3) does not compel the Secretary to support each penalty assessment order with express findings of fact concerning the violation and the amount of the penalty, absent a request by the mine operator for an administrative hearing. National Independent Coal Operators' Assn. v. Kleppe, 423 U.S. 388, 96 S.Ct. 809, 46 L.Ed.2d 580. Pp. 388.
(a) A protest against a penalty assessment, as opposed to a request for a hearing, does not necessarily trigger an administrative review, but the amount of the penalty is subject to de novo review in the district court whether or not a hearing was held. P. 407-408.
(b) It is not significant that the proposed assessment orders contained merely pro forma recitations that the six factors specified in § 109(a)(1) had been considered, or that the Secretary's final orders did not mention such factors but merely set forth his finding that a violation did in fact occur. Although express findings are generally required for judicial review of an administrative determination based on a substantial-evidence test, here the operators can contest the amount of the penalty without a hearing by refusing to pay it, thus invoking the right to a de novo trial in the district court; moreover, when an operator is informed as to the details of a violation, § 105's administrative procedures come into play and appellate review is available. Pp. 408-409.
3 Cir., 495 F.2d 38, reversed and remanded.
John L. Kilcullen, Washington, D. C., for the National Independent Coal Operator's Assn. and others.
Fred Blackwell, Washington, D. C., for Delta Mining, Inc., and others.
A. Raymond Randolph, Jr., Washington, D. C., for the Secretary of the Interior and others.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari in this case and consolidated it for argument with No. 73-2066, National Independent Coal Operators' Assn. v. Kleppe, 423 U.S. 388, 96 S.Ct. 809, 46 L.Ed.2d 580 (1974), decided today, to resolve an apparent conflict between the two Circuits.
2
In 1971 and January 1972 inspectors from the Bureau of Mines entered and inspected the coal mines owned respectively by Delta Mining, Inc., G. M. W. Coal Co., Inc., and a partnership of Edward Mears and others known as the M. Y. Coal Co. The inspectors detected a number of violations of the Federal Coal Mine Health and Safety Act of 1969, 83 Stat. 742, 30 U.S.C. § 801 et seq. or regulations and served each mine operator with notices of the infractions.1 Each notice stated that the violations were to be abated by a specified date. The inspectors returned on that date and furnished the mine operators with a notice that the violations had been abated. The local office of the Bureau of Mines sent copies of the notice of violation and abatement to the Bureau's central office. There an assessment officer reviewed the notices and sent proposed penalty assessment orders to the mine operators. The orders contained a list of the violations, the dates of their occurrence, the regulations violated, and the amounts of the proposed penalties.
3
The proposed order of assessment to Delta was issued on April 11, 1972. It referred to six violations with civil penalties for each ranging from $30 to $90 for a total of $375. In December 1971, and January and May 1972, G. M. W. was issued proposed assessment orders for violations occurring from May to December 1971. Ten of the violations were assessed civil penalties from $25 to $100, totaling $525. G. M. W. also received an imminent-danger withdrawal order on November 24, 1971, identified as a fire hazard from loose coal in excess of three feet deep and was assessed a fine of $5,000. For violations occurring in 1971 and 1972 Mears received assessments with fines for 16 violations ranging from $25 to $100 and a 17th at $200 for a total of $1,000. It also received a withdrawal order for failure to abate a violation of the respirable-dust-concentration standard with a fine of $1,000.
4
Each of the operators protested the proposed assessments. Delta argued, among other things, that it was a newly opened, small mine and the fines would affect its ability to stay in business. G. M. W. protested that the loose coal was wet and therefore not a fire hazard. Without explanation as to how, if at all, the information in the protest letters was considered, the assessment officer reissued the proposed orders. One of G. M. W.'s penalties was reduced from $100 to $50. The operators were again informed that they had 15 working days from the receipt of the reissued proposed order "to accept the amended or reissued order, whereupon it shall become the final assessment order of the Secretary, or to request formal adjudication with opportunity for hearing." None of the operators requested formal adjudication.
5
The mine operators did not pay the assessments. The Secretary filed complaints against each of them in October and November 1972, seeking enforcement of the assessments. Attached to the complaints were the proposed orders of assessment and preprinted forms reciting that the assessment officer found in fact that the violations had occurred. These forms were dated several months after the proposed assessment orders. The mine operators each answered, denying liability.
6
While the cases were awaiting trial, the United States District Court for the District of Columbia enjoined the Secretary from utilizing or enforcing the assessment procedures of 30 CFR pt. 100 (1972), concluding that § 109(a)(3) of the Federal Coal Mine Health and Safety Act, 30 U.S.C. § 819(a)(3), requires the Secretary to prepare a decision incorporating findings of fact in all penalty assessment determinations, whether or not a hearing is requested. National Independent Coal Operators' Assn. v. Morton, D.C., 357 F.Supp. 509 (1973).
7
On the basis of that decision G. M. W. moved for summary judgment, contending that the Secretary's assessment orders were unenforceable since there had been no "decision incorporating . . . findings of fact." The District Court for the Western District of Pennsylvania, relying on the National Independent decision, decided that the penalty assessments sought to be enforced by the Secretary did not meet the requirements of § 109(a)(3) of the Act because they were not supported by adequate findings of fact. The court entered judgment in favor of the respondent mine operators in all three cases.
8
While the cases were pending on appeal, the Court of Appeals for the District of Columbia Circuit reversed the decisions on which the trial court here relied. National Independent Coal Operators' Assn. v. Morton, 161 U.S.App.D.C. 68, 494 F.2d 987 (1974). The Court of Appeals for the Third Circuit, however, declined to follow the District of Columbia Circuit decision, and held that § 109(a)(3) compels the Secretary to support each assessment order with express findings of fact concerning the violation and the amount of the penalty, without regard to whether or not the operator requests a hearing. 3 Cir., 495 F.2d 38 (1974). We have today affirmed National Independent, which holding governs this case. Two remaining issues raised by the Third Circuit holding require discussion.
9
The Court of Appeals first distinguished the District of Columbia Circuit holding on the ground that the "operators' failure to request a hearing in no way suggests that the appropriateness of the penalty amount went undisputed. In each instance, the operators lodged protests . . . ." 495 F.2d, at 44. This overlooks the fact that while a protest does not necessarily trigger administrative review, a request for a hearing does. Here the party against whom a penalty is assessed has deliberately forgone the opportunity for a full, public, administrative hearing from which findings of fact can be made. Here, too, the amount of the penalty is subject to de novo review in the district court whether or not a hearing was held.
10
The Court of Appeals next distinguished the holding of the District of Columbia Circuit on the ground that the proposed assessment orders at issue "contained no 'information' other than pro forma recitations that the six criteria (of § 109(a)(1) of the Act) had been considered." (Emphasis in original.) Ibid. The court was concerned that the proposed assessment orders were on "preprinted forms which recited, in some instances, that the six factors set out in the statute had been considered" and that the final orders of the Secretary did not mention the six criteria but "merely set forth the Secretary's finding that a violation 'did, in fact, occur.' " Id., at 40.2 The court then held that "each final decision of the Secretary must be accompanied by findings of fact, concerning both the fact of violation and the magnitude of the penalty." Id., at 44.
11
The court noted the general proposition that judicial "review of a final administrative determination . . . is rendered practically impossible, or at least vastly more difficult, where the agency's decision is not accompanied by express findings." Id., at 42. We agree with the general proposition when judicial review is based on a substantial-evidence test. Here, however, if an operator wishes to contest the amount of the penalty without a hearing, that can be done by refusing to pay the penalty, thus invoking the right to a de novo trial in the district court, with a jury if desired. When a violation is noticed the operator is informed as to the details of the nature and location of that violation; the administrative procedures of § 105 of the Act, 30 U.S.C. § 815, with provision for a public hearing on request, come into play and appellate review is available.
12
In light of our holding in National Independent Coal Operators' Assn. v. Kleppe, 423 U.S. 388, 96 S.Ct. 809, 46 L.Ed.2d 580, decided today, the judgment of the Court of Appeals for the Third Circuit is reversed, and the case is remanded for further proceedings consistent herewith.
13
Reversed and remanded.
14
Mr. Justice STEVENS took no part in the consideration or decision of this case.
1
The operators protest that these notices are not part of the record below. Since the issue before this Court is the validity of the regulations, not whether the regulations were properly complied with, for purposes of this case we will assume the notices were properly served. We note, however, that the mine operators do not contend that they were not given ample notice of the violations charged by the mine inspectors.
2
The Third Circuit found support for its concern in a Comptroller General's report which stated that the Comptroller was " 'unable to determine the adequacy of the consideration given to the six factors (of § 109(a)(1)) and the basis for the penalties assessed in (400) sample cases.' " 495 F.2d at 43. However, the Secretary's method of assessing penalties has been changed in a way that largely meets this objection. The regulations now in force contain formulas to be used by the assessment officers in considering the six § 109(a) (1) criteria. 30 CFR § 100.3 (1975). The Secretary represented to the Court of Appeals for the District of Columbia Circuit that the assessment formula is to be retained. National Coal Operators' Assn. v. Morton, 161 U.S.App.D.C. 68, 70 n. 12, 494 F.2d 987, 989 n. 12 (1974). These regulations were not in effect when the penalties at issue here were levied. Use of the current regulations is preferable to the apparent ad hoc consideration given the criteria in this case. But a trial de novo is available to the mine operators on the amount of the penalty, so the Secretary's failure to promulgate the best regulations in the first instance does not render all penalties assessed under the prior regulations unenforceable. Although explication by the assessment officer and an examiner might be of some aid to the district judge who is called upon to consider the penalty, the provision for a de novo trial on the amount of the penalty places squarely on the court the task of evaluating the penalty. The six criteria of § 109(a)(1) can be argued to the district court. The Third Circuit is undoubtedly correct that the more information a mine operator has, the better the operator will be able to determine whether to challenge the penalty. The issue, however, was whether the new procedures were mandated by the statute.
| 89
|
423 U.S. 411
96 S.Ct. 820
46 L.Ed.2d 598
UNITED STATES, Petitioner,v.Henry Ogle WATSON.
No. 74-538.
Argued Oct. 8, 1975.
Decided Jan. 26, 1976.
Rehearing Denied March 22, 1976.
See 424 U.S. 979, 96 S.Ct. 1488.
Syllabus
A postal inspector received from an informant of known reliability a stolen credit card that respondent had given the informant to be used for their mutual advantage, and the inspector was told by the informant that respondent had agreed to furnish additional cards. At the inspector's suggestion, a meeting was arranged between the informant and respondent for a few days later, which took place at a restaurant. Upon a prearranged signal from the informant that respondent had the additional cards, postal officers made a warrantless arrest of respondent, removed him from the restaurant, and gave him Miranda warnings. When a search of respondent's person revealed no cards, a consented search of his nearby car (after respondent had been cautioned that the results could be used against him) revealed two additional cards in the names of other persons. Following an unsuccessful motion to suppress, these cards were used as evidence in respondent's trial, which resulted in his conviction of possessing stolen mail. The Court of Appeals reversed, ruling that the Fourth Amendment prohibited use of that evidence because (1) notwithstanding probable cause for respondent's arrest, the arrest was unconstitutional because the postal inspector had failed to secure an arrest warrant though he had time to do so, and (2) based on the totality of the circumstances (including the illegality of the arrest) respondent's consent to the car search was coerced and thus invalid. Held:
1. The arrest of respondent, having been based on probable cause and made by postal officers acting in strict compliance with the governing statute and regulations, did not violate the Fourth Amendment. Pp. 414-424.
2. Since the arrest comported with the Fourth Amendment, respondent's consent to the car search was not, contrary to the holding of the Court of Appeals, the product of an illegal arrest, nor were there any other circumstances indicating that respondent's consent was not his own "essentially free and unconstrained choice" because his "will ha(d) been . . . overborne and his capacity for self-determination critically impaired," Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S.Ct. 2041, 2046-2047, 36 L.Ed.2d 854. Pp. 424-425.
504 F.2d 849, reversed.
Andrew L. Frey, Washington, D. C., for petitioner.
Michael D. Nasatir, Beverly Hills, Cal., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
This case presents questions under the Fourth Amendment as to the legality of a warrantless arrest and of an ensuing search of the arrestee's automobile carried out with his purported consent.
2
* The relevant events began on August 17, 1972, when an informant, one Khoury, telephoned a postal inspector informing him that respondent Watson was in possession of a stolen credit card and had asked Khoury to cooperate in using the card to their mutual advantage. On five to 10 previous occasions Khoury had provided the inspector with reliable information on postal inspection matters, some involving Watson. Later that day Khoury delivered the card to the inspector. On learning that Watson had agreed to furnish additional cards, the inspector asked Khoury to arrange to meet with Watson. Khoury did so, a meeting being scheduled for August 22.1 Watson canceled that engagement, but at noon on August 23, Khoury met with Watson at a restaurant designated by the latter. Khoury had been instructed that if Watson had additional stolen credit cards, Khoury was to give a designated signal. The signal was given, the officers closed in, and Watson was forthwith arrested. He was removed from the restaurant to the street where he was given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A search having revealed that Watson had no credit cards on his person, the inspector asked if he could look inside Watson's car, which was standing within view. Watson said, "Go ahead," and repeated these words when the inspector cautioned that "(i)f I find anything, it is going to go against you." Using keys furnished by Watson, the inspector entered the car and found under the floor mat an envelop containing two credit cards in the names of other persons. These cards were the basis for two counts of a four-count indictment charging Watson with possessing stolen mail in violation of 18 U.S.C. § 1708.2
3
Prior to trial, Watson moved to suppress the cards, claiming that his arrest was illegal for want of probable cause and an arrest warrant and that his consent to search the car was involuntary and ineffective because he had not been told that he could withhold consent. The motion was denied, and Watson was convicted of illegally possessing the two cards seized from his car.3
4
A divided panel of the Court of Appeals for the Ninth Circuit reversed, 504 F.2d 849 (1974), ruling that the admission in evidence of the two credit cards found in the car was prohibited by the Fourth Amendment. In reaching this judgment, the court decided two issues in Watson's favor. First, notwithstanding its agreement with the District Court that Khoury was reliable and that there was probable cause for arresting Watson, the court held the arrest unconstitutional because the postal inspector had failed to secure an arrest warrant although he concededly had time to do so. Second, based on the totality of the circumstances, one of which was the illegality of the arrest, the court held Watson's consent to search had been coerced and hence was not a valid ground for the warrantless search of the automobile. We granted certiorari. 420 U.S. 924, 95 S.Ct. 1117, 43 L.Ed.2d 392 (1975).
II
5
A major part of the Court of Appeals' opinion was its holding that Watson's warrantless arrest violated the Fourth Amendment. Although it did not expressly do so, it may have intended to overturn the conviction on the independent ground that the two credit cards were the inadmissible fruits of an unconstitutional arrest. Cf. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). However that may be, the Court of Appeals treated the illegality of Watson's arrest as an important factor in determining the voluntariness of his consent to search his car. We therefore deal first with the arrest issue.
6
Contrary to the Court of Appeals' view, Watson's arrest was not invalid because executed without a warrant. Title 18 U.S.C. § 3061(a)(3) expressly empowers the Board of Governors of the Postal Service to authorize Postal Service officers and employees "performing duties related to the inspection of postal matters" to
7
"make arrests without warrant for felonies cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such a felony."
8
By regulation, 39 CFR § 232.5(a)(3) (1975), and in identical language, the Board of Governors has exercised that power and authorized warrantless arrests. Because there was probable cause in this case to believe that Watson had violated § 1708, the inspector and his subordinates, in arresting Watson, were acting strictly in accordance with the governing statute and regulations. The effect of the judgment of the Court of Appeals was to invalidate the statute as applied in this case and as applied to all the situations where a court fails to find exigent circumstances justifying a warrantless arrest. We reverse that judgment.
9
Under the Fourth Amendment, the people are to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, . . . and no Warrants shall issue, but upon probable cause . . . ." Section 3061 represents a judgment by Congress that it is not unreasonable under the Fourth Amendment for postal inspectors to arrest without a warrant provided they have probable cause to do so.4 This was not an isolated or quixotic judgment of the legislative branch. Other federal law enforcement officers have been expressly authorized by statute for many years to make felony arrests on probable cause but without a warrant. This is true of United States marshals, 18 U.S.C. § 3053, and of agents of the Federal Bureau of Investigation, 18 U.S.C. § 3052; the Drug Enforcement Administration, 84 Stat. 1273, 21 U.S.C. § 878; the Secret Service, 18 U.S.C. § 3056(a); and the Customs Service, 26 U.S.C. § 7607.5
10
Because there is a "strong presumption of constitutionality due to an Act of Congress, especially when it turns on what is 'reasonable,' " "(o)bviously the Court should be reluctant to decide that a search thus authorized by Congress was unreasonable and that the Act was therefore unconstitutional." United States v. Di Re, 332 U.S. 581, 585, 68 S.Ct. 222, 224, 92 L.Ed. 210 (1948). Moreover, there is nothing in the Court's prior cases indicating that under the Fourth Amendment a warrant is required to make a valid arrest for a felony. Indeed, the relevant prior decisions are uniformly to the contrary.
11
"The usual rule is that a police officer may arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a felony . . . ." Carroll v. United States, 267 U.S. 132, 156, 45 S.Ct. 280, 286, 69 L.Ed. 543 (1925). In Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959), the Court dealt with an FBI agent's warrantless arrest under 18 U.S.C. § 3052, which authorizes a warrantless arrest where there are reasonable grounds to believe that the person to be arrested has committed a felony. The Court declared that "(t)he statute states the constitutional standard . . . ." Id., at 100, 80 S.Ct., at 170. The necessary inquiry, therefore, was not whether there was a warrant or whether there was time to get one, but whether there was probable cause for the arrest. In Abel v. United States, 362 U.S. 217, 232, 80 S.Ct. 683, 693, 4 L.Ed.2d 668 (1960), the Court sustained an administrative arrest made without "a judicial warrant within the scope of the Fourth Amendment." The crucial question in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), was whether there was probable cause for the warrantless arrest. If there was, the Court said, "the arrest, though without a warrant, was lawful . . . ." Id., at 310, 79 S.Ct., at 331. Ker v. California, 374 U.S. 23, 34-35, 83 S.Ct. 1623, 1630, 10 L.Ed.2d 726 (1963) (opinion of Clark, J.), reiterated the rule that "(t)he lawfulness of the arrest without warrant, in turn, must be based upon probable cause . . . " and went on to sustain the warrantless arrest over other claims going to the mode of entry. Just last Term, while recognizing that maximum protection of individual rights could be assured by requiring a magistrate's review of the factual justification prior to any arrest, we stated that "such a requirement would constitute an intolerable handicap for legitimate law enforcement" and noted that the Court "has never invalidated an arrest supported by probable cause solely because the officers failed to secure a warrant." Gerstein v. Pugh, 420 U.S. 103, 113, 95 S.Ct. 854, 862, 43 L.Ed.2d 54 (1975).6
12
The cases construing the Fourth Amendment thus reflect the ancient common-law rule that a peace officer was permitted to arrest without a warrant for a misdemeanor or felony committed in his presence as well as for a felony not committed in his presence if there was reasonable ground for making the arrest. 10 Halsbury's Laws of England 344-345 (3d ed. 1955); 4 W. Blackstone, Commentaries *292; 1 J. Stephen, A History of the Criminal Law of England 193 (1883); 2 M. Hale, Pleas of the Crown *72-74; Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 541, 547-550, 686-688 (1924); Samuel v. Payne, 1 Doug. 359, 99 Eng.Rep. 230 (K.B.1780); Beckwith v. Philby, 6 Barn. & Cress. 635, 108 Eng.Rep. 585 (K.B.1827). This has also been the prevailing rule under state constitutions and statutes. "The rule of the common law, that a peace officer or a private citizen may arrest a felon without a warrant, has been generally held by the courts of the several States to be in force in cases of felony punishable by the civil tribunals." Kurtz v. Moffitt, 115 U.S. 487, 504, 6 S.Ct. 148, 154, 29 L.Ed. 458 (1885).
13
In Rohan v. Sawin, 59 Mass. 281 (1850), a false-arrest case, the Supreme Judicial Court of Massachusetts held that the common-law rule obtained in that State. Given probable cause to arrest, "(t)he authority of a constable, to arrest without warrant, in cases of felony, is most fully established by the elementary books, and adjudicated cases." Id., at 284. In reaching this judgment the court observed:
14
"It has been sometimes contended, that an arrest of this character, without a warrant, was a violation of the great fundamental principles of our national and state constitutions, forbidding unreasonable searches and arrests, except by warrant founded upon a complaint made under oath. Those provisions doubtless had another and different purpose, being in restraint of general warrants to make searches, and requiring warrants to issue only upon a complaint made under oath. They do not conflict with the authority of constables or other peace-officers, or private persons under proper limitations, to arrest without warrant those who have committed felonies. The public safety, and the due apprehension of criminals, charged with heinous offences, imperiously require that such arrests should be made without warrant by officers of the law." Id., at 284-285.
15
Also rejected, id., at 285-286, was the trial court's view that to justify a warrantless arrest, the State must show "an immediate necessity therefor, arising from the danger, that the plaintiff would otherwise escape, or secrete the stolen property, before a warrant could be procured against him." The Supreme Judicial Court ruled that there was no "authority for thus restricting a constable in the exercise of his authority to arrest for a felony without a warrant." Id., at 286. Other early cases to similar effect were Wakely v. Hart, 6 Bin. 316 (Pa.1814); Holley v. Mix, 3 Wend. 350 (N.Y.Sup.Ct.1829); State v. Brown, 5 Del. 505 (Ct.Gen.Sess.1853); Johnson v. State, 30 Ga. 426 (1860); Wade v. Chaffee, 8 R.I. 224 (1865). See Reuck v. McGregor, 32 N.J.L. 70, 74 (Sup.Ct.1866); Baltimore & O. R. Co. v. Cain, 81 Md. 87, 100, 102, 31 A. 801, 803, 804 (1895).7
16
Because the common-law rule authorizing arrests without a warrant generally prevailed in the States, it is important for present purposes to note that in 1792 Congress invested United States marshals and their deputies with "the same powers in executing the laws of the United States, as sheriffs and their deputies in the several states have by law, in executing the laws of their respective states." Act of May 2, 1792, c. 28, § 9, 1 Stat. 265. The Second Congress thus saw no inconsistency between the Fourth Amendment and legislation giving United States marshals the same power as local peace officers to arrest for a felony without a warrant.8 This provision equating the power of federal marshals with those of local sheriffs was several times re-enacted9 and is today § 570 of Title 28 of the United States Code. That provision, however, was supplemented in 1935 by § 504a of the Judicial Code,10 which in its essential elements is now 18 U.S.C. § 3053 and which expressly empowered marshals to make felony arrests without warrant and on probable cause. It was enacted to furnish a federal standard independent of the vagaries of state laws, the Committee Report remarking that under existing law a "marshal or deputy marshal may make an arrest without a warrant within his district in all cases where the sheriff might do so under the State statutes." H.R.Rep.No.283, 74th Cong., 1st Sess., 1 (1935). See United States v. Riggs, 474 F.2d 699, 702-703, n. 2 (CA2), cert. denied, 414 U.S. 820, 94 S.Ct. 115, 38 L.Ed.2d 53 (1973).
17
The balance struck by the common law in generally authorizing felony arrests on probable cause, but without a warrant, has survived substantially intact. It appears in almost all of the States in the form of express statutory authorization. In 1963, the American Law Institute undertook the task of formulating a model statute governing police powers and practice in criminal law enforcement and related aspects of pretrial procedure. In 1975, after years of discussion, A Model Code of Pre-arraignment Procedure was proposed. Among its provisions was § 120.1 which authorizes an officer to take a person into custody if the officer has reasonable cause to believe that the person to be arrested has committed a felony, or has committed a misdemeanor or petty misdemeanor in his presence.11 The commentary to this section said: "The Code thus adopts the traditional and almost universal standard for arrest without a warrant."12
18
This is the rule Congress has long directed its principal law enforcement officers to follow. Congress has plainly decided against conditioning warrantless arrest power on proof of exigent circumstances.13 Law enforcement officers may find it wise to seek arrest warrants where practicable to do so, and their judgments about probable cause may be more readily accepted where backed by a warrant issued by a magistrate. See United States v. Ventresca, 380 U.S. 102, 106, 85 S.Ct. 741, 744-745, 13 L.Ed.2d 684 (1965); Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 1512, 12 L.Ed.2d 723 (1964); Wong Sun v. United States, 371 U.S. 471, 479-480, 83 S.Ct. 407, 412-413, 9 L.Ed.2d 441 (1963). But we decline to transform this judicial preference into a constitutional rule when the judgment of the Nation and Congress has for so long been to authorize warrantless public arrests on probable cause rather than to encumber criminal prosecutions with endless litigation with respect to the existence of exigent circumstances, whether it was practicable to get a warrant, whether the suspect was about to flee, and the like.
19
Watson's arrest did not violate the Fourth Amendment, and the Court of Appeals erred in holding to the contrary.
III
20
Because our judgment is that Watson's arrest comported with the Fourth Amendment, Watson's consent to the search of his car was not the product of an illegal arrest. To the extent that the issue of the voluntariness of Watson's consent was resolved on the premise that his arrest was illegal, the Court of Appeals was also in error.
21
We are satisfied in addition that the remaining factors relied upon by the Court of Appeals to invalidate Watson's consent are inadequate to demonstrate that, in the totality of the circumstances, Watson's consent was not his own "essentially free and unconstrained choice" because his "will ha(d) been overborne and his capacity for self-determination critically impaired." Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). There was no overt act or threat of force against Watson proved or claimed. There were no promises made to him and no indication of more subtle forms of coercion that might flaw his judgment. He had been arrested and was in custody, but his consent was given while on a public street, not in the confines of the police station. Moreover, the fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search. Similarly, under Schneckloth, the absence of proof that Watson knew he could withhold his consent, though it may be a factor in the overall judgment, is not to be given controlling significance. There is no indication in this record that Watson was a newcomer to the law,14 mentally deficient, or unable in the face of a custodial arrest to exercise a free choice. He was given Miranda warnings and was further cautioned that the results of the search of his car could be used against him. He persisted in his consent.
22
In these circumstances, to hold that illegal coercion is made out from the fact of arrest and the failure to inform the arrestee that he could withhold consent would not be consistent with Schneckloth and would distort the voluntariness standard that we reaffirmed in that case.
23
In consequence, we reverse the judgment of the Court of Appeals.
24
So ordered.
25
Reversed.
26
Mr. Justice STEVENS took no part in the consideration or decision of this case.
27
Mr. Justice POWELL, concurring.
28
Although I concur in the opinion of the Court, I write to express additional views. I note at the outset that the case could be disposed of on the ground that respondent's consent to the search was plainly voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Indeed, the evidence that his consent was the product of free will is so overwhelming that I would have held the consent voluntary even on the assumption that the preceding warrantless arrest was unconstitutional, and that the doctrine of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), therefore was applicable. See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). The Court's different route to the same result requires, however, an inquiry into the validity of the arrest itself.
29
* Respondent was arrested without a warrant in a public restaurant six days after postal inspectors learned from a reliable source that he possessed stolen credit cards in violation of 18 U.S.C. § 1708. The Government made no effort to show that circumstances precluded the obtaining of a warrant, relying instead for the validity of the arrest solely upon the showing of probable cause to believe that respondent had committed a felony. Respondent contends, and the Court of Appeals held, that the absence of any exigency justifying the failure to procure a warrant renders this arrest violative of the Fourth Amendment.
30
In reversing the Court of Appeals the Court concludes that nothing in our previous cases involving warrantless arrests supports the position of respondent and the Court of Appeals. See, e. g., Gerstein v. Pugh, 420 U.S. 103, 113, 95 S.Ct. 854, 862, 43 L.Ed.2d 54 (1975). But it is fair to say, I think, that the prior decisions of the Court have assumed the validity of such arrests without addressing in a reasoned way the analysis advanced by respondent.1 Today's decision is the first square holding that the Fourth Amendment permits a duly authorized law enforcement officer to make a warrantless arrest in a public place even though he had adequate opportunity to procure a warrant after developing probable cause for arrest.
31
On its face, our decision today creates a certain anomaly. There is no more basic constitutional rule in the Fourth Amendment area than that which makes a warrantless search unreasonable except in a few "jealously and carefully drawn" exceptional circumstances. Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958); see Almeida-Sanchez v. United States, 413 U.S. 266, 279-280, 93 S.Ct. 2535, 2542-2543, 37 L.Ed.2d 596 (1973) (Powell, J., concurring); United States v. United States District Court, 407 U.S. 297, 314-321, 92 S.Ct. 2125, 2135-2139, 32 L.Ed.2d 752 (1972); Coolidge v. New Hampshire, 403 U.S. 443 454-455, 91 S.Ct. 2022, 2031-2032, 29 L.Ed.2d 564 (1971). On more than one occasion this Court has rejected an argument that a law enforcement officer's own probable cause to search a private place for contraband or evidence of crime should excuse his otherwise unexplained failure to procure a warrant beforehand. Id., at 450, 91 S.Ct., at 2029-2030; Katz v. United States, 389 U.S. 347, 356-358, 88 S.Ct. 507, 514-515, 19 L.Ed.2d 576 (1967). In short, the course of judicial development of the Fourth Amendment with respect to searches has remained true to the principles so well expressed by Mr. Justice Jackson:
32
"Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers. . . . 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." Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948).
33
Since the Fourth Amendment speaks equally to both searches and seizures, and since an arrest, the taking hold of one's person, is quintessentially a seizure, it would seem that the constitutional provision should impose the same limitations upon arrests that it does upon searches. Indeed, as an abstract matter an argument can be made that the restrictions upon arrest perhaps should be greater. A search may cause only annoyance and temporary inconvenience to the law-abiding citizen, assuming more serious dimension only when it turns up evidence of criminality. An arrest, however, is a serious personal intrusion regardless of whether the person seized is guilty or innocent. Although an arrestee cannot be held for a significant period without some neutral determination that there are grounds to do so, see Gerstein, supra, no decision that he should go free can come quickly enough to erase the invasion of his privacy that already will have occurred. See Chimel v. California, 395 U.S. 752, 776, 89 S.Ct. 2034, 2047, 23 L.Ed.2d 685 (1969) (White, J., dissenting); cf. United States v. Robinson, 414 U.S. 218, 237-238, 94 S.Ct. 467, 477-478, 38 L.Ed.2d 427 (1973) (Powell, J., concurring). Logic therefore would seem to dictate that arrests be subject to the warrant requirement at least to the same extent as searches.
34
But logic sometimes must defer to history and experience. The Court's opinion emphasizes the historical sanction accorded warrantless felony arrests. In the early days of the common law most felony arrests were made upon personal knowledge and without warrants. So established were such arrests as the usual practice that Lord Coke seriously questioned whether a justice of the peace, receiving his information secondhand instead of from personal knowledge, even could authorize an arrest by warrant. 4 E. Coke, Institutes 177 (6th ed. 1681). By the late 18th century it had been firmly established by Blackstone, with an intervening assist from Sir Matthew Hale, that magistrates could issue arrest warrants upon information supplied by others. 4 W. Blackstone, Commentaries *290; see 2 M. Hale, Pleas of the Crown *108-110. But recognition of the warrant power cast no doubt upon the validity of warrantless felony arrests, which continued to be practiced and upheld as before. 4 W. Blackstone, supra, at *282; 1 J. Chitty, Criminal Law *14-15. There is no historical evidence that the Framers or proponents of the Fourth Amendment, outspokenly opposed to the infamous general warrants and writs of assistance, were at all concerned about warrantless arrests by local constables and other peace officers. See N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 79-105 (1937); cf. Gerstein v. Pugh, supra, 420 U.S., at 114-116, 95 S.Ct., at 863-864. As the Court today notes, the Second Congress' passage of an Act authorizing such arrests2 so soon after the adoption of the Fourth Amendment itself underscores the probability that the constitutional provision was intended to restrict entirely different practices.
35
The historical momentum for acceptance of warrantless arrests, already strong at the adoption of the Fourth Amendment, has gained strength during the ensuing two centuries. Both the judiciary and the legislative bodies of this Nation repeatedly have placed their imprimaturs upon the practice and, as the Government emphasizes, law enforcement agencies have developed their investigative and arrest procedures upon an assumption that warrantless arrests were valid so long as based upon probable cause. The decision of the Court of Appeals in this case was virtually unprecedented.3 Of course, no practice that is inconsistent with constitutional protections can be saved merely by appeal to previous uncritical acceptance. But the warrantless felony arrest, long preferred at common law and unimpeached at the passage of the Fourth Amendment, is not such a practice. Given the revolutionary implications of such a holding, a declaration at this late date that warrantless felony arrests are constitutionally infirm would have to rest upon reasons more substantial than a desire to harmonize the rules for arrest with those governing searches. Cf. United States v. Robinson, supra, 414 U.S., at 230, 94 S.Ct., at 474.
36
Moreover, a constitutional rule permitting felony arrests only with a warrant or in exigent circumstances could severely hamper effective law enforcement. Good police practice often requires postponing an arrest, even after probable cause has been established, in order to place the suspect under surveillance or otherwise develop further evidence necessary to prove guilt to a jury.4 Under the holding of the Court of Appeals such additional investigative work could imperil the entire prosecution. Should the officers fail to obtain a warrant initially, and later be required by unforeseen circumstances to arrest immediately with no chance to procure a last-minute warrant, they would risk a court decision that the subsequent exigency did not excuse their failure to get a warrant in the interim since they first developed probable cause. If the officers attempted to meet such a contingency by procuring a warrant as soon as they had probable cause and then merely held it during their subsequent investigation, they would risk a court decision that the warrant had grown stale by the time it was used.5 Law enforcement personnel caught in this squeeze could ensure validity of their arrests only by obtaining a warrant and arresting as soon as probable cause existed, thereby foreclosing the possibility of gathering vital additional evidence from the suspect's continued actions.
37
In sum, the historical and policy reasons sketched above fully justify the Court's sustaining of a warrantless arrest upon probable cause, despite the resulting divergence between the constitutional rule governing searches and that now held applicable to seizures of the person.6
II
38
Finally, I share the view expressed in the opinion of Mr. Justice STEWART. It makes clear that we do not today consider or decide whether or under what circumstances an officer lawfully may make a warrantless arrest in a private home or other place where the person has a reasonable expectation of privacy.7
39
Mr. Justice STEWART, concurring in the result.
40
The arrest in this case was made upon probable cause in a public place in broad daylight. The Court holds that this arrest did not violate the Fourth Amendment, and I agree. The Court does not decide, nor could it decide in this case, whether or under what circumstances an officer must obtain a warrant before he may lawfully enter a private place to effect an arrest. See Gerstein v. Pugh, 420 U.S. 103, 113 n. 13, 95 S.Ct. 854, 863, 43 L.Ed.2d 54; Coolidge v. New Hampshire, 403 U.S. 443, 474-481, 91 S.Ct. 2022, 2042-2046, 29 L.Ed.2d 564; Davis v. Mississippi, 394 U.S. 721, 728, 89 S.Ct. 1394, 1398, 22 L.Ed.2d 676; Jones v. United States, 357 U.S. 493, 499-500, 78 S.Ct. 1253, 1257-1258, 2 L.Ed.2d 1514.
41
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
42
By granting police broad powers to make warrantless arrests, the Court today sharply reverses the course of our modern decisions construing the Warrant Clause of the Fourth Amendment. The Court turns next to the consent-to-search question last dealt with in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Without acknowledgment or analysis, the Court extends the scope of that decision to the situation expressly reserved in Schneckloth, and creates a rule inconsistent with Schneckloth's own analysis. The Court takes both steps with a remarkable lack of consideration of either the facts of this case or the constitutional questions it is deciding. That is unfortunate not only because, in my view, the Court decides the constitutional questions wrongly, but also because consideration would have shown that the first question decided today is not raised by the facts before us, and that the second question should not be resolved here, given the present posture of this case. I respectfully dissent.
43
* Before addressing what the Court does today, I note what it does not do. It does not decide this case on the narrow question that is presented. That is unfortunate for this is, fundamentally, a simple case.
44
On the afternoon of August 23, 1972, Awad Khoury, an informant of proved reliability, met with respondent Watson at a public restaurant under the surveillance of two postal inspectors. Khoury was under instructions to light a cigarette as a signal to the watching agents if Watson was in possession of stolen credit cards. Khoury lit a cigarette, and the postal inspectors moved in, made the arrest, and, ultimately, discovered under the floor mat of Watson's automobile the stolen credit cards that formed the basis of Watson's conviction and this appeal.
45
The signal of the reliable informant that Watson was in possession of stolen credit cards gave the postal inspectors probable cause to make the arrest. This probable cause was separate and distinct from the probable cause relating to the offense six days earlier, and provided an adequate independent basis for the arrest. Whether or not a warrant ordinarily is required prior to making an arrest, no warrant is required when exigent circumstances are present. When law enforcement officers have probable cause to believe that an offense is taking place in their presence and that the suspect is at that moment in possession of the evidence, exigent circumstances exist. Delay could cause the escape of the suspect or the destruction of the evidence. Accordingly, Watson's warrantless arrest was valid under the recognized exigent-circumstances exception to the warrant requirement, and the Court has no occasion to consider whether a warrant would otherwise be necessary.1
46
This conclusion should properly dispose of the case before us. As the Court observes, ante, at 414, the Court of Appeals relied heavily on the supposed illegality of Watson's arrest in ruling that his consent to the search of his car was coerced. Neither the opinion of the Court of Appeals nor the briefs of the parties here address the remaining issue of the circumstances under which consent to search given by a suspect lawfully in custody may be deemed coerced. Since that issue is both complex and expressly reserved in Schneckloth v. Bustamonte, supra, I think it inappropriate for resolution without the benefit of the views of the parties and the Court of Appeals. Accordingly, I would reverse the Court of Appeals on the legality of the arrest, vacate its judgment, and remand the case to that court for further proceedings.
II
47
Since, for reasons it leaves unexpressed, the Court does not take this traditional course, I am constrained to express my views on the issues it unnecessarily decides. The Court reaches its conclusion that a warrant is not necessary for a police officer to make an arrest in a public place, so long as he has probable cause to believe a felony has been committed, on the basis of its views of precedent and history. As my Brother POWELL correctly observes, ante, at 426-427 n. 1 (concurring), the precedent is spurious. None of the cases cited by the Court squarely confronted the issue decided today. Moreover, an examination of the history relied on by the Court shows that it does not support the conclusion laid upon it. After showing why, in my view, the Court's rationale does not support today's result, I shall examine the relevant decisions and suggest what I believe to be the proper rule for arrests.
The Fourth Amendment provides:
48
"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."
49
There is no doubt that by the reference to the seizure of persons, the Fourth Amendment was intended to apply to arrests. Ex parte Burford, 3 Cranch 448, 2 L.Ed. 495 (1806). See generally N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 79-82 (1937). Indeed, we have often considered whether arrests were made in conformity with the Fourth Amendment. E. g., Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). Admittedly, as the Court observes, some of our decisions make passing reference to the common-law rule on arrests. E. g., Carroll v. United States, 267 U.S. 132, 156, 45 S.Ct. 280, 286, 69 L.Ed. 543 (1925); John Bad Elk v. United States, 177 U.S. 529, 534, 20 S.Ct. 729, 731, 44 L.Ed. 874 (1900); Kurtz v. Moffitt, 115 U.S. 487, 498-499, 6 S.Ct. 148, 151-152, 29 L.Ed. 458 (1885). However, none of the cases cited by the Court, nor any other warrantless arrest case in this Court, mandates the decision announced today. Frequently exigent circumstances were present, so that the warrantless arrest was proper even if a warrant ordinarily may be required. Ker v. California, supra ; Draper v. United States, supra ; United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948). Many cases have invalidated arrests as not based on probable cause, thereby bypassing the need to reach the warrant question. E. g., Beck v. Ohio, supra ; Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). Elsewhere the Court has simply assumed the propriety of the arrest and resolved the case before it on other grounds. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Cf. Coolidge v. New Hampshire, 403 U.S. 443, 476, 91 S.Ct. 2022, 2043, 29 L.Ed.2d 564 (1971). And in other cases, the Court noted, but did not reach, the warrantless-arrest issue. E. g., Giordenello v. United States, supra. In sum, as the case-by-case analysis undertaken by my Brother POWELL demonstrates, the dicta relied upon by the Court in support of its decision today are just that dicta. See ante, at 426-427 n. 1 (concurring). They are no substitute for reasoned analysis of the relationship between the warrant requirement and the law of arrest.
50
The Court next turns to history. It relies on the English common-law rule of arrest and the many state and federal statutes following it. There are two serious flaws in this approach. First, as a matter of factual analysis, the substance of the ancient common-law rule provides no support for the far-reaching modern rule that the Court fashions on its model. Second, as a matter of doctrine, the longstanding existence of a Government practice does not immunize the practice from scrutiny under the mandate of our Constitution.
51
The common-law rule was indeed as the Court states it:
52
"(A) peace officer was permitted to arrest without a warrant for a misdemeanor or felony committed in his presence as well as for a felony not committed in his presence if there was reasonable grounds for making the arrest." Ante, at 418, and sources cited.
53
See also Kurtz v. Moffitt, supra; Bad Elk v. United States, supra. To apply the rule blindly today, however, makes as much sense as attempting to interpret Hamlet's admonition to Ophelia, "Get thee to a nunnery, go,"2 without understanding the meaning of Hamlet's words in the context of their age.3 For the fact is that a felony at common law and a felony today bear only slight resemblance, with the result that the relevance of the common-law rule of arrest to the modern interpretation of our Constitution is minimal.
54
Both at common law and today, felonies find definition in the penal consequences of crime rather than the nature of the crime itself. At common law, as this Court has several times recognized,
55
"No crime was considered a felony which did not occasion a total forfeiture of the offender's lands or goods or both." Kurtz v. Moffitt, 115 U.S., at 499, 6 S.Ct., at 152.
56
See also Ex parte Wilson, 114 U.S. 417, 423, 5 S.Ct. 935, 938, 29 L.Ed. 89 (1885); 4 W. Blackstone, Commentaries *95 (Lewis ed. 1902).4 At present, on the other hand,
57
"Any offense punishable by death or imprisonment for a term exceeding one year is a felony." 18 U.S.C. § 1(1).5
58
This difference reflects more than changing notions of penology. It reflects a substantive change in the kinds of crimes called felonies. Carroll v. United States, supra, 267 U.S., at 158, 45 S.Ct., at 287.6 Only the most serious crimes were felonies at common law, and many crimes now classified as felonies under federal or state law were treated as misdemeanors. Profess Wilgus has summarized and documented the cases:
59
"At common law an assault was a misdemeanor and it was still only such even if made with the intent to rob, murder, or rape. Affrays, abortion, barratry, bribing voters, challenging to fight, compounding felonies, cheating by false weights or measures, escaping from lawful arrest, eavesdropping, forgery, false imprisonment, forcible and violent entry, forestalling, kidnapping, libel, mayhem, maliciously killing valuable animals, obstructing justice, public nuisance, perjury, riots and routs, etc. were misdemeanors . . . ." Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 541, 572-573 (1924) (footnotes omitted).
60
See also 9 Halsbury's Laws of England 450-793 (1909).7 To make an arrest for any of these crimes at common law, the police officer was required to obtain a warrant, unless the crime was committed in his presence.8 Since many of these same crimes are commonly classified as felonies today9 however, under the Court's holding a warrant is no longer needed to make such arrests, a result in contravention of the common law.
61
Thus the lesson of the common law, and those courts in this country that have accepted its rule, is an ambiguous one. Applied in its original context, the common-law rule would allow the warrantless arrest of some, but not all, of those we call felons today. Accordingly, the Court is simply historically wrong when it tells us that "(t)he balance struck by the common law in generally authorizing felony arrests on probable cause, but without warrant, has survived substantially intact." Ante, at 421. As a matter of substance, the balance struck by the common law in accommodating the public need for the most certain and immediate arrest of criminal suspects with the requirement of magisterial oversight to protect against mistaken insults to privacy decreed that only in the most serious of cases could the warrant be dispensed with. This balance is not recognized when the common-law rule is unthinkingly transposed to our present classifications of criminal offenses. Indeed, the only clear lesson of history is contrary to the one the Court draws: the common law considered the arrest warrant far more important than today's decision leaves it.
62
I do not mean by this that a modern warrant requirement should apply only to arrests precisely analogous to common-law misdemeanors, and be inapplicable to analogues of common-law felonies. Rather, the point is simply that the Court's unblinking literalism cannot replace analysis of the constitutional interests involved. While we can learn from the common law, the ancient rule does not provide a simple answer directly transferable to our system. Thus, in considering the applicability of the common-law rule to our present constitutional scheme, we must consider both of the rule's two opposing constructs: the presumption favoring warrants, as well as the exception allowing immediate arrests of the most dangerous criminals. The Court's failure to do so, indeed its failure to recognize any tension in the common-law rule at all, drains all validity from its historical analysis.
63
Lastly, the Court relies on the numerous state and federal statutes codifying the common-law rule. But this, too, is no substitute for reasoned analysis. True enough, the national and state legislatures have steadily ratified the drift of the balance struck by the common-law rule past the bounds of its original intent. And it is true as well, as the Court observes, that a presumption of constitutionality attaches to every Act of Congress. But neither observation is determinative of the constitutional issue, and the doctrine of deference that the Court invokes is contrary to the principles of constitutional analysis practiced since Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803). The Court's error on this score is far more dangerous than its misreading of history, for it is well settled that the mere existence of statutes or practice, even of long standing, is no defense to an unconstitutional practice. "(N)o one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it." Walz v. Tax Comm'n, 397 U.S. 664, 678, 90 S.Ct. 1409, 1416, 25 L.Ed.2d 697 (1970). See also Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964).10 Our function in constitutional cases is weightier than the Court today suggests: where reasoned analysis shows a practice to be constitutionally deficient, our obligation is to the Constitution, not the Congress.
64
In sum, the Court's opinion is without foundation. It relies on precedents that are not precedents. It relies on history that offers no clear rule to impose, but only conflicting interests to balance. It relies on statutes that constitute, at best, no more than an aid to construction. The Court never grapples with the warrant requirement of the Fourth Amendment and the cases construing it. It simply announces, by ipse dixit, a rule squarely rejecting the warrant requirement we have favored for so long.
III
65
My Brother POWELL concludes: "Logic . . . would seem to dictate that arrests be subject to the warrant requirement at least to the same extent as searches." Ante, at 429 (concurring). I agree.
66
One of the few absolutes of our law is the requirement that, absent the presence of one of a few "jealously and carefully drawn" exceptions, Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958), a warrant be obtained prior to any search.11 "(E)xcept in certain carefully defined classes of cases, a search of private property without proper consent is 'unreasonable' (within the meaning of the Fourth Amendment) unless it has been authorized by a valid search warrant." Camara v. Municipal Court, 387 U.S. 523, 528-529, 87 S.Ct. 1727, 1731, 18 L.Ed.2d 930 (1967). See Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973); United States v. United States District Court, 407 U.S. 297, 315-316, 318, 92 S.Ct. 2125, 2135-2136, 2137, 32 L.Ed.2d 752 (1972); Coolidge v. New Hampshire, 403 U.S., at 454-455, 91 S.Ct., at 2031-2032; Chimel v. California, 395 U.S., at 762, 89 S.Ct., at 2039-2040; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967).
67
The rule the Court announces today for arrests is the reverse of this approach. It is, in essence, the Rabinowitz rule: "The relevant test is not whether it is reasonable to procure (an arrest) warrant, but whether the (arrest) was reasonable." United States v. Rabinowitz, 339 U.S. 56, 66, 70 S.Ct. 430, 435, 94 L.Ed. 653 (1950). In the search context, Rabinowitz has been overruled, Chimel v. California, supra, 395 U.S., at 764-768, 89 S.Ct., at 2040-2043, and thoroughly discredited, see, e. g., United States v. United States District Court, supra, 407 U.S., at 315, and n. 16, 92 S.Ct., at 2136. The Rabinowitz approach simply does not provide adequate protection for the important personal privacy interests codified in the Fourth Amendment. Given "(t)he history of the use, and not infrequent abuse, of the power to arrest," Wong Su v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 413, 9 L.Ed.2d 441 (1963), and the fact that arrests are, in terms, as fully governed by the Fourth Amendment as searches, the logical presumption is that arrests and searches should be treated equally under the Fourth Amendment. Analysis of the interests involved confirms this supposition.
68
The Court has typically engaged in a two-part analysis in deciding whether the presumption favoring a warrant should be given effect in situations where a warrant has not previously been clearly required. Utilizing that approach we must now consider (1) whether the privacy of our citizens will be better protected by ordinarily required a warrant to be issued before they may be arrested; and (2) whether a warrant requirement would unduly burden legitimate governmental interests. United States v. United States District Court, supra, 407 U.S., at 315, 92 S.Ct., at 2135-2136; Camara v. Municipal Court, supra, 387 U.S., at 533, 87 S.Ct., at 1733.
69
The first question is easily answered. Of course, the privacy of our citizens will be better protected by a warrant requirement. We have recognized that "the Fourth Amendment protects people, not places." Katz v. United States, supra, 389 U.S., at 351, 88 S.Ct., at 511. Indeed, the privacy guaranteed by the Fourth Amendment is quintessentially personal. Cf. Roe v. Wade, supra ; Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). Thus a warrant is required in search situations not because of some high regard for property, but because of our regard for the individual, and his interest in his possessions and person.
70
"It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property, where that right has never been forfeited by his conviction of some public offense, it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment (in the classic English warrant case of Entick v. Carrington, 19 How.St.Tr. 1029, 95 Eng.Rep. 807 (1765))." Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886).
71
Not only is the Fourth Amendment directly addressed to the privacy of our citizens, but it speaks in indistinguishable terms about the freedom of both persons and property from unreasonable seizures. A warrant is required in the search situation to protect the privacy of the individual, but there can be no less invasion of privacy when the individual himself, rather than his property, is searched and seized. Indeed, an unjustified arrest that forces the individual temporarily to forfeit his right to control his person and movements and interrupts the course of his daily business may be more intrusive than an unjustified search.
72
"Being arrested and held by the police, even if for a few hours, is for most persons, awesome and frightening. Unlike other occasions on which one may be authoritatively required to be somewhere or do something, an arrest abruptly subjects a person to constraint, and removes him to unfamiliar and threatening surroundings. Moreover, this exercise of control over the person depends not just on his willingness to comply with an impersonal directive, such as a summons or subpoena, but on an order which a policeman issues on the spot and stands ready then and there to back up with force. The security of the individual requires that so abrupt and intrusive an authority be granted to public officials only on a guarded basis." ALI, Model Code of Pre-arraignment Procedure, Commentary 290-291 (1975).
73
A warrant requirement for arrests would, of course, minimize the possibility that such an intrusion into the individual's sacred sphere of personal privacy would occur on less than probable cause. Primarily for this reason, a warrant is required for searches. Surely there is no reason to place greater trust in the partisan assessment of a police officer that there is probable cause for an arrest than in his determination that probable cause exists for a search.12 Last Term the Court unanimously recognized that detention of a person cannot be prolonged without judicial oversight of the probable-cause determination. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). But while Gerstein may provide the best protection possible against less-than-probable-cause warrantless arrests based on exigent circumstances, it does not fully protect the Fourth Amendment rights at stake here. A less-than-probable-cause arrest followed by a Gerstein release is as offensive to the Fourth Amendment as a less-than-probable-cause search that fails to uncover the evidence sought, and the requirement of a warrant is as instrumental in protecting against the one as the other. Indeed, the Court's opinion in Gerstein expressly recognizes that maximum protection of individual rights can only be realized "by requiring a magistrate's review of the factual justification prior to any arrest . . . ." Id., at 113, 95 S.Ct., at 863.
74
We come then to the second part of the warrant test: whether a warrant requirement would unduly burden legitimate law enforcement interests. Dicta in Gerstein answer this question in the affirmative, and these concerns are somewhat amplified in the concurrence of my Brother POWELL. Ante, at 431-432, (POWELL, J., concurring). I believe, however, that the suggested concerns are wholly illusory. Indeed, the argument that a warrant requirement for arrests would be an onerous chore for the police seems somewhat anomalous in light of the Government's concession that "it is the standard practice of the Federal Bureau of Investigation (FBI) to present its evidence to the United States Attorney, and to obtain a warrant, before making an arrest." Brief for United States 26 n. 15. In the past, the practice and experience of the FBI have been taken as a substantial indication that no intolerable burden would be presented by a proposed rule of procedure. Miranda v. Arizona, 384 U.S. 436, 483-486, 86 S.Ct. 1602, 1632-1634, 16 L.Ed.2d 694 (1966). There is no reason to accord less deference to the FBI practice here.13
75
The Government's assertion that a warrant requirement would impose an intolerable burden stems, in large part, from the specious supposition that procurement of an arrest warrant would be necessary as soon as probable cause ripens. Brief for United States 22-24. There is no requirement that a search warrant be obtained the moment police have probable cause to search. The rule is only that present probable cause be shown and a warrant obtained before a search is undertaken.14 Fed.Rule Crim.Proc. 41. Cf. Berger v. New York, 388 U.S. 41, 59, 87 S.Ct. 1873, 1883-1884, 18 L.Ed.2d 1040 (1967). The same rule should obtain for arrest warrants, where it may even make more sense. Certainly, there is less need for prompt procurement of a warrant in the arrest situation. Unlike probable cause to search, probable cause to arrest, once formed will continue to exist for the indefinite future, at least if no intervening exculpatory facts come to light. See Wilson v. United States, 117 U.S.App.D.C. 28, 325 F.2d 224 (1963), cert. denied, 377 U.S. 1005, 84 S.Ct. 1941, 12 L.Ed.2d 1053 (1964), and United States v. Wilson, 342 F.2d 782 (CA2 1965) (both upholding delay of 16 months between formation of probable cause and issuance of arrest warrant). Cf. Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 417-418, 17 L.Ed.2d 374 (1966).
76
This sensible approach obviates most of the difficulties that have been suggested with an arrest warrant rule. Police would not have to cut their investigation short the moment they obtain probable cause to arrest, nor would undercover agents be forced suddenly to terminate their work and forfeit their covers. Godfrey v. United States, 123 U.S.App.D.C. 219, 358 F.2d 850 (1966). Moreover, if in the course of the continued police investigation exigent circumstances develop that demand an immediate arrest, the arrest may be made without fear of unconstitutionality, so long as the exigency was unanticipated and not used to avoid the arrest warrant requirement. Cf. Coolidge v. New Hamphshire, 403 U.S., at 469-471, 91 S.Ct., at 2040-2041 (evidence may be seized if in plain view only if its discovery is inadvertent). Likewise, if in the course of the continued investigation police uncover evidence tying the suspect to another crime, they may immediately arrest him for that crime if exigency demands it, and still be in full conformity with the warrant rule. This is why the arrest in this case was not improper.15 Other than where police attempt to evade the warrant requirement, the rule would invalidate an arrest only in the obvious situation: where police, with probable cause but without exigent circumstances, set out to arrest a suspect. Such an arrest must be void, even if exigency develops in the course of the arrest that would ordinarily validate it; otherwise the warrant requirement would be reduced to a toothless prescription.
77
In sum, the requirement that officers about to arrest a suspect ordinarily obtain a warrant before they do so does not seem unduly burdensome, at least no more burdensome than any other requirement that law enforcement officials undertake a new procedure in order to comply with the dictates of the Constitution. Cf. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Miranda v. Arizona, supra; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).
78
It is suggested, however, that even if application of this rule does not require police to secure a warrant as soon as they obtain probable cause, the confused officer would nonetheless be prone to do so. If so, police "would risk a court decision that the warrant had grown stale by the time it was used." Ante, at 432 (POWELL, J., concurring) (footnote omitted). This fear is groundless. First, as suggested above, the requirement that police procure a warrant before an arrest is made is rather simple of application. Thus, there is no need for the police to find themselves in this "squeeze." Second, the "squeeze" is nonexistent. Just as it is virtually impossible for probable cause for an arrest to grow stale between the time of formation and the time a warrant is procured, it is virtually impossible for probable cause to become stale between procurement and arrest.16 Delay by law enforcement officers in executing an arrest warrant does not ordinarily affect the legality of the arrest.17 United States v. Wilson, supra; Wilson v. United States, supra; Carlo v. United States, 286 F.2d 841, 846 (CA2), cert. denied, 366 U.S. 944, 81 S.Ct. 1672, 6 L.Ed.2d 855 (1961); United States v. Joines, 258 F.2d 471 (CA3), cert. denied, 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109 (1958); Giordenello v. United States, 241 F.2d 575 (CA5), rev'd on other grounds, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). In short, staleness should be the least of an arresting officer's worries.18
79
Thus, the practical reasons marshaled against an arrest warrant requirement are unimpressive.19 If anything, the virtual nonexistence of a staleness problem suggest that such a requirement would be less burdensome for police than the search warrant rule. And given the significant protection our citizens will gain from a warrant requirement, accepted Fourth Amendment analysis dictates that a warrant rule be imposed. This conclusion, then, answers the questions posed by analysis of the common-law rule on arrest. In choosing between the common law's prescription that a warrant ordinarily be obtained for the arrest of persons suspected of committing less serious crimes, and the common-law exception allowing warrantless arrests of suspects in more serious offenses, the intervention of our Fourth Amendment and the cases developing its application necessarily favor the former approach. Thus, I believe the proper result is application of the warrant requirement, as it has developed in the search context, to all arrests.
IV
80
Accordingly, I dissent from the Court's contrary holding. It is always disheartening when the Court ignores a relevant body of precedent and eschews any considered analysis. It is more so when the result of such an approach is a rule that "leave(s) law-abiding citizens at the mercy of the officers' whim or caprice," Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949), and renders the constitutional protection of our "persons" a nullity. The consequences of the Court's casually adopted rationale are clear.
81
First, the opinion all but answers the question raised in Coolidge v. New Hampshire, 403 U.S., at 480-481, 91 S.Ct., at 2045, namely, "whether and under what circumstances an officer may enter a suspect's home to make a warrantless arrest." Gerstein v. Pugh, 420 U.S., at 113 n. 13, 95 S.Ct., at 863.20 Admittedly, my Brothers STEWART and POWELL do not read the opinion to resolve that issue and, indeed, the Court purports to leave it open. Ante, at 418 n. 6. But the mode of analysis utilized here reliance on the common law and federal and state statutes provides a ready answer, as indeed the Court hints by its extended discussion of § 120.6 of the ALI Model Code of Pre-arraignment Procedure and its relevant commentary. Ante, at 825 n. 6. See also Wilgus, 22 Mich.L.Rev., at 800 ("For a felony . . . one may break into the dwelling house to take the felon . . ."); id., at 558, 803; 9 Halsbury's Laws of England 307 (1909); 1 J. Chitty, Criminal Law *23; 4 W. Blackstone, Commentaries *292. Unless the approach of this opinion is to be fundamentally rejected, it will be difficult, if not impossible, to follow these sources to any but one conclusion that entry to effect a warrantless arrest is permissible.
82
Second, by paying no attention whatever to the substance of the offense, and considering only whether it is labeled "felony," the Court, in the guise of "constitutionalizing" the common-law rule, actually does away with it altogether, replacing it with the rule that the police may, consistent with the Constitution, arrest on probable cause anyone who they believe has committed any sort of crime at all. Certainly this rule would follow if the legislatures redenominated all crimes as "felonies." As a matter of substance, it would seem to follow in any event from the holding of this case, for the Court surely does not intend to accord constitutional status to a distinction that can be readily changed by legislative fiat.21
83
Lastly, the Court surrenders the opportunity to put teeth in our oft-expressed preference for the use of arrest warrants. Beck v. Ohio, 379 U.S., at 96, 85 S.Ct., at 228, 13 L.Ed.2d 142; Wong Sun v. United States, 371 U.S., at 479-482, 83 S.Ct., at 412-415. While some incentives for police to obtain arrest warrants remain,22 they are only indirect and have proved ineffective in the past in assuring routine application for arrest warrants when the circumstances permit it. By our holding today, the preference for an arrest warrant, which the Court has conceded is the optimal method to protect our citizens from the affront of an unlawful arrest, will remain only an ideal, one that the Court will espouse but not enforce.
V
84
Having disposed of the suggestion that the Fourth Amendment requires a warrant of arrest before the police may seize our persons, the Court turns its attention, briefly, to whether Watson voluntarily consented to the search of his automobile. I have suggested above that because this issue is of some complexity and has not been thoroughly briefed for us I would remand this case for initial consideration of the question by the Court of Appeals. The Court, however, finds the question simplicity itself. It applies the "totality of the circumstances" test established in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), and treats the question as merely requiring the application of settled law to the facts before us.
85
That is not the case. Watson was in custody when his consent was obtained. The lack of custody was of decisional importance in Schneckloth, which repeatedly distinguished the case before it from one involving a suspect in custody. Id., at 232, 240-241, and n. 29, 246-248, and n. 36, 93 S.Ct., at 2050, 2054-2055, 2058. The Court held:
86
"Our decision today is a narrow one. We hold only that when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied." Id., at 248, 93 S.Ct. at 2059 (emphasis added).
87
Not once, but twice, the question the Court today treats as settled was expressly reserved:
88
"(T)he present case does not require a determination of the proper standard to be applied in assessing the validity of a search authorized solely by an alleged consent that is obtained from a person after he has been placed in custody." Id., at 241 n. 29, 93 S.Ct., at 2055.
89
See also id., at 247 n. 36, 93 S.Ct., at 2058.
90
I adhere to the views expressed in my dissent in Schneckloth, id., at 277, 93 S.Ct., at 2073, and therefore believe that the Government must always show that a person who consented to a search did so knowing he had the right to refuse. But even short of this position, there are valid reasons for application of such a rule to consents procured from suspects held in custody. It was, apparently, the force of those reasons that prompted the Court in Schneckloth to reserve the question. Most significantly, we have previously accorded constitutional recognition to the distinction between custodial and non-custodial police contacts. Miranda v. Arizona, 384 U.S., at 477-478, 86 S.Ct., at 1629-1630. Indeed, Schneckloth directly relied on Miranda's articulation of that distinction to reach its conclusion. 412 U.S., at 232, 93 S.Ct., at 2050. Thus, while custodial interrogation is inherently coercive, and any consent thereby obtained necessarily suspect, Miranda (and Schneckloth) expressly reject the notion that there is anything inherently coercive about general noncustodial interrogation. 384 U.S., at 477-478, 86 S.Ct., at 1629-1630; 412 U.S., at 247, 93 S.Ct., at 2058. For this reason it is entirely appropriate to place a substantially greater burden on the Government to validate a consent obtained from a suspect following custodial interrogation, however brief. Indeed, it is difficult, if not impossible, to square a contrary conclusion with Miranda. A substantially greater burden on the Government means, quite obviously, that the fact of custody is not merely another factor to be considered in the "totality of the circumstances."23 And, in my view, it means that the Government must show that the suspect knew he was not obligated to consent to the search.
91
Whether after due consideration the Court would accept this view or not, it is a surrender of our judicial task altogether to ignore the question. And, equally disturbing, it is a distortion of our precedent to pretend that what seemed a difficult and complex problem three years ago is no problem at all today.
92
I respectfully dissent.
1
In the meantime the inspector had verified that the card was stolen.
2
Title 18 U.S.C. § 1708 punishes the theft of mail as well as the possession of stolen mail. The punishment is a fine of not more than $2,000 or imprisonment for not more than five years, or both.
3
Watson was acquitted on the second count. The fourth was dismissed prior to trial.
4
At least since approval of the Act of June 10, 1955, c. 137, § 203, 69 Stat. 106, 39 U.S.C. § 3523(a)(2)(K) (1964 ed.), postal inspectors' duties have been thought to permit arrest without a warrant upon probable cause. Compare United States v. Helbock, 76 F.Supp. 985 (D.Or.1948), with United States v. Alexander, 415 F.2d 1352 (CA7 1969), cert. denied, 397 U.S. 1014, 90 S.Ct. 1246, 25 L.Ed.2d 427 (1970); Kelley v. Dunne, 344 F.2d 129 (CA1 1965); and United States v. Bell, 294 F.Supp. 1314 (N.D.Ill.1968). The Court of Appeals for the Ninth Circuit held, however, that § 3523(a)(2)(K) did not give the necessary express power to arrest, but that a warrantless arrest by a postal inspector could be upheld by resort to a citizen's power to arrest. United States v. DeCatur, 430 F.2d 365 (1970); Neggo v. United States, 390 F.2d 609 (1968); Ward v. United States, 316 F.2d 113, cert. denied, 375 U.S. 862, 84 S.Ct. 132, 11 L.Ed.2d 89 (1963).
In 1968 in the face of confusion generated by these decisions and two others striking down warrantless arrests by postal inspectors as not authorized by federal statute or by state law, Alexander v. United States, 390 F.2d 101 (CA5 1968); United States v. Moderacki, 280 F.Supp. 633 (D.Del.1968), the Congress enacted 18 U.S.C. § 3061 to make clear that postal inspectors are empowered to arrest without warrant upon probable cause. Pub.L. 90-560, § 5(a), 82 Stat. 998; H.R.Conf.Rep.No.1918, 90th Cong., 2d Sess., 6 (1968); H.R.Rep.No.1725, 90th Cong., 2d Sess. (1968); 114 Cong.Rec. 20914-20915, 26928, 28864-28865 (1968), U.S.Code Cong. & Admin.News 1968, p. 3988.
5
There are other federal officers subject to a more restrictive statutory standard. See, e. g., 18 U.S.C. § 3050, with respect to employees of the Bureau of Prisons.
6
In the case before us the Court of Appeals relied heavily, but mistakenly, on Coolidge v. New Hampshire, 403 U.S. 443, 480-481, 91 S.Ct. 2022, 2045-2046, 29 L.Ed.2d 564 (1971), for as we noted in Gerstein v. Pugh, 420 U.S., at 113 n. 13, 95 S.Ct., at 863, the still unsettled question posed in that part of the Coolidge opinion was "whether and under what circumstances an officer may enter a suspect's home to make a warrantless arrest." Watson's midday public arrest does not present that question.
In its proposed Model Code of Pre-arraignment Procedure, the American Law Institute has addressed the question and recommends that an officer who is empowered to make an arrest and has probable cause to believe the person to be arrested is on private premises be authorized to demand entry to such premises and thereupon to enter to make an arrest. ALI, Model Code of Pre-arraignment Procedure § 120.6(1) (1975). In certain cases of necessity, however, notification and demand are not required. § 120.6(2). Authority to make nighttime arrests on private premises is restricted to arrests with warrants authorizing nighttime execution and to certain cases of necessity. § 120.6(3). The commentary states that 24 States (and the District of Columbia), authorize forcible entry whenever there is authority to arrest, six whenever the arrest is under a warrant or for a felony, six whenever the arrest is under a warrant, and two whenever the arrest is for a felony. Id., at 310, 696-697. Of these jurisdictions all but three have prior-notice requirements for entries to make an arrest similar to those 18 U.S.C. § 3109 imposes on entries to execute a search warrant. ALI Model Code, supra, at 310-313.
7
As Professor Wilgus observed in his article Arrest Without A Warrant, 22 Mich.L.Rev. 541, 549-550 (1924) (footnote omitted), "(i)t was early argued that similar provisions (to the Fourth Amendment of the Constitution) in state constitutions forbade arrests without a warrant; it was ruled otherwise as to arrests by officers and private persons according to the common law."
8
Of equal import is the rule recognized by this Court that even in the absence of a federal statute granting or restricting the authority of federal law enforcement officers, "the law of the state where an arrest without warrant takes place determines its validity." United States v. Di Re, 332 U.S. 581, 589, 68 S.Ct. 222, 226, 92 L.Ed. 210 (1948). Accord, Miller v. United States, 357 U.S. 301, 305, 78 S.Ct. 1190, 1193-1194, 2 L.Ed.2d 1332 (1958); Johnson v. United States, 333 U.S. 10, 15 n. 5, 68 S.Ct. 367, 370, 92 L.Ed. 436 (1948); Bad Elk v. United States, 177 U.S. 529, 535, 20 S.Ct. 729, 731, 44 L.Ed. 874 (1900). This rule is consistent with the express statutory authority of United States marshals discussed in the text, as well as with the Act of Sept. 24, 1789, c. 20, § 33, 1 Stat. 91, providing that for any offense against the United States the offender may be arrested by any judge or justice of the United States "agreeably to the usual mode of process against offenders in such state" as he might be found. See United States v. Di Re, supra, 332 U.S., at 589 n. 8, 68 S.Ct., at 226.
9
Act of Feb. 28, 1795, c. 36, § 9, 1 Stat. 425; Act of July 29, 1861, c. 25, § 7, 12 Stat. 282; Rev.Stat. § 788 (1874); Judicial Code of 1948, § 549, 62 Stat. 912.
10
Act of June 15, 1935, c. 259, § 2, 49 Stat. 378.
11
Section 120.1 of the Model Code provides, in pertinent part:
"(1) Authority to Arrest Without a Warrant. A law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed
"(a) a felony;
"(b) a misdemeanor, and the officer has reasonable cause to believe that such person
"(i) will not be apprehended unless immediately arrested; or
"(ii) may cause injury to himself or others or damage to property unless immediately arrested; or
"(c) a misdemeanor or petty misdemeanor in the officer's presence."
12
Id., at 289 (footnote omitted). The commentary goes on to say with respect to § 120.1:
"This Section does not require an officer to arrest under a warrant even if a reasonable opportunity to obtain a warrant exists. As to arrests on the street such a requirement would be entirely novel. Moreover the need for it is not urgent, and the subsequent inquiry such a requirement would authorize would be indeterminate and difficult." Id., at 303 (footnotes omitted).
As the commentary notes, id., at 289 n. 1, a statute in the State of Georgia is more restrictive of the arrest power than the general standard. Ga.Code Ann. § 27-207(a) (Supp.1975). See also Colo.Rev.Stat.Ann. § 16-3-102 (1973), which provides that an arrest warrant should be obtained "when practicable," and Mont.Rev.Codes Ann. § 95-608(d) (1969) which authorizes a warrantless arrest if "existing circumstances require" it. A North Carolina statute, N.C.Gen.Stat. § 15-41 (1965), similar to the Georgia statute, was replaced in 1975 by a provision permitting warrantless felony arrests on probable cause. N.C.Gen.Stat. § 15A-401(b)(2) (1975).
13
Until 1951, 18 U.S.C. § 3052 conditioned the warrantless arrest powers of the agents of the Federal Bureau of Investigation on there being reasonable grounds to believe that the person would escape before a warrant could be obtained. The Act of Jan. 10, 1951, c. 1221, § 1, 64 Stat. 1239, eliminated this condition. The House Report explained the purpose of the amendment, H.R.Rep.No.3228, 81st Cong., 2d Sess., 1-2 (1950), U.S.Code Cong. Service 1950, p. 4322, and the amendment was given effect by the courts in accordance with its terms. Compare United States v. Coplon, 185 F.2d 629, 633-636 (CA2 1950), cert. denied, 342 U.S. 920, 72 S.Ct. 362, 96 L.Ed. 688 (1952), with Coplon v. United States, 89 U.S.App.D.C. 103, 108-109, 191 F.2d 749, 753-754 (1951), cert. denied, 342 U.S. 926, 72 S.Ct. 363, 96 L.Ed. 690 (1952).
14
On the contrary, the inspector making the arrest in this case had arrested Watson in 1971 for mail theft. Those charges were dropped when Watson cooperated with the prosecution. During the ensuing two years he also furnished information to the authorities.
1
None of the decisions cited by the Court today squarely faced the issue. In Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959), for example the Court declared that 18 U.S.C. § 3052, which authorizes an FBI agent to make a warrantless arrest when he has reasonable grounds to believe that a person has committed a felony, "states the constitutional standard." 361 U.S., at 100, 80 S.Ct., at 170. But that declaration was made without discussion, and the issue actually presented to and addressed by the Court was whether there was in fact probable cause for the arrest in that case. Similarly, Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), stands only for the validity of a warrantless arrest made with probable cause to believe that the arrestee had committed an offense in the arresting officer's presence. See id., at 313, 79 S.Ct., at 333. As this Court had noted in an earlier case, such an arrest presents no danger that an innocent person might be ensnared, since the officer observes both the crime and the culprit with his own eyes; there thus would be no reason to require a warrant in that particular situation even if there might be in others. Trupiano v. United States, 334 U.S. 699, 705, 68 S.Ct. 1229, 1232, 92 L.Ed. 1663 (1948). Another case cited by the Court, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), involved no challenge to an arrest. Nor did Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960), in which the Court refused to consider petitioner's challenge to his arrest under less than a judicial warrant because of his failure to raise the issue in the lower courts. See id., at 230-232, 80 S.Ct., at 692-694. Finally, in Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), the Court addressed only the questions of whether there was probable cause for arrest and whether the method of entry for the purpose of arrest was reasonable; no issue arose as to whether a warrant was necessary for either the arrest or the entry.
2
Act of May 2, 1792, c. 18, § 9, 1 Stat. 265; see 28 U.S.C. § 570.
3
Respondent has cited no other decision, state or federal, in support of the Court of Appeals' result in this case. The Government stated in its petition that the decision below was the first of which it was aware that required a warrant for an arrest in a public place. The Court of Appeals relied upon part of this Court's discussion in Coolidge v. New Hampshire, 403 U.S. 443, 480-481, 91 S.Ct. 2022, 2045-2046 (1971), but as other courts have recognized, that discussion had nothing to do with warrantless arrests in public places. See, e. g., United States v. Miles, 468 F.2d 482, 486-487, and n. 6 (CA3 1972); United States v. Bazinet, 462 F.2d 982, 987 (CA8), cert. denied, sub nom. Knox v. United States, 409 U.S. 1010, 93 S.Ct. 453, 34 L.Ed.2d 303 (1972).
4
This Court has not attempted a more precise definition of probable cause than the one in Carroll v. United States, 267 U. S., at 161, 45 S.Ct., at 288, where the standard was affirmed as "facts and circumstances . . . such as to warrant a man of (reasonable) prudence and caution in believing that the offense has been committed" and, of course, that the person to be arrested was the offender. See generally Henry v. United States, 361 U.S., at 100-102, 80 S.Ct., at 169-171. Whatever evidence may be necessary to establish probable cause in a given case, however, it is clear that it never need rise to the level required to prove guilt beyond a reasonable doubt. Id., at 102, 80 S.Ct., at 171; Draper v. United States, 358 U.S., at 311-312, and n. 4, 79 S.Ct., at 332-333. The different standards for arrest and conviction reflect a recognition of society's valid interest in the earliest detention of suspected criminals that is consistent with the individual's interest in freedom from arbitrary interference with his liberty. See Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). But society's equally valid interest in ultimate conviction of the guilty requires the police sometimes to continue their investigation after establishing probable cause to arrest, even if doing so means they have to leave a suspect at large pending such investigation. See generally ALI, A Model Code of Pre-arraignment Procedure § 120.1, Commentary, pp. 289, 292-296 (1975).
5
The probable cause to support issuance of an arrest warrant normally would not grow stale as easily as that which supports a warrant to search a particular place for particular objects. This is true because once there is probable cause to believe that someone is a felon the passage of time often will bring new supporting evidence. But in some cases the original grounds supporting the warrant could be disproved by subsequent investigation that at the same time turns up wholly new evidence supporting probable cause on a different theory. In those cases the warrant could be stale because based upon discredited information.
6
I do not understand today's decision to suggest any retreat from our longstanding position that such an arrest should receive careful judicial scrutiny if challenged. "An arrest without a warrant bypasses the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable procedure of an after-the-event justification for the arrest . . ., too likely to be subtly influenced by the familiar shortcomings of hindsight judgment." Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964).
7
Compare Dorman v. United States, 140 U.S.App.D.C. 313, 318-319, 435 F.2d 385, 390-391 (1970) (en banc) (warrant required, absent exigent circumstances, for entry into a suspect's home for purpose of arrest), with People v. Eddington, 23 Mich.App. 210, 178 N.W.2d 686 (1970), aff'd, 387 Mich. 551, 198 N.W.2d 297 (1972) (only probable cause to arrest needed to enter suspect's home if there is a reasonable belief that he is there). Compare England v. State, 488 P.2d 1347 (Okl.Cr.1971) (search warrant needed to enter residence of third party to arrest suspect), with United States v. Brown, 151 U.S.App.D.C. 365, 369, 467 F.2d 419, 423 (1972) (only an arrest warrant, plus reasonable belief that the suspect is present, necessary to support entry onto third party's premises).
1
The Court of Appeals did not recognize this independent probable cause to arrest petitioner, perhaps because one of the arresting officers testified that the arrest was made for the earlier, rather than the contemporaneous, offense. App. 23-24. That testimony should not limit the inquiry into contemporaneous probable cause. Where the good faith of the arresting officers is not at issue, and where the crime for which a suspect is arrested and that for which the officers have probable cause are closely related, courts typically use an objective rather than subjective measure of probable cause. Ramirez v. Rodriguez, 467 F.2d 822 (CA10 1972); United States v. Martinez, 465 F.2d 79 (CA2 1972); United States v. Atkinson, 450 F.2d 835, 838 (CA5 1971). Since the objective facts demonstrably show probable cause as to the contemporaneous offense as well as the earlier offense, Watson's arrest is properly justified by reference to those facts.
2
W. Shakespeare, Hamlet, act iii, sc. 1, line 142.
3
Nunnery was Elizabethan slang for house of prostitution. 7 Oxford English Dictionary 264 (1933).
4
Professor Wilgus has defined felonies at common law as
"those bootless crimes, prosecuted by an appeal with an offer of trial by battle, the felon's lands to go to his lord or the king, his chattels confiscated, and life and members forfeited, if guilty, and if he fled he became an outlaw . . . ." Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 541, 569 (1924).
5
In the States the most common rule is that any crime punishable by death or imprisonment in the state prison is a felony. See id., at 571. See also, e. g., Ark.Stat.Ann. § 41-103 (1964); 22 Fla.Stat.Ann. § 775.08 (Supp.1975); Ill.Ann.Stat. § 2-7 (Supp.1975); Ky.Rev.Stat.Ann. § 431.060 (1970); Mass.Gen.Laws Ann., c. 274, § 1 (1970); Okla.Stat.Ann., Tit. 21, § 5 (1958); Wash.Rev.Code § 9.01.020 (1974).
6
"In England at the common law the difference in punishment between felonies and misdemeanors was very great. Under our present federal statutes, it is much less important and Congress may exercise a relatively wide discretion in classing particular offenses as felonies or misdemeanors." Carroll v. United States, 267 U.S., at 158, 45 S.Ct., at 287.
7
Indeed, by statute, it was no more than a high misdemeanor wilfully to discharge or attempt to discharge a pistol at or near the King of England. 9 Halsbury's Laws of England 459 (1909). Cf. 18 U.S.C. § 871 (felony to make threats against President of United States); § 1751 (felony to assault President of United States).
8
This exception was essentially a narrowly drawn exigent-circumstances exception. See Carroll v. United States, supra, n. 6, 267 U.S., at 157, 45 S.Ct., at 286-287.
9
For example, under federal law these are some of the common-law misdemeanors, or their modern equivalents, now considered felonies: assault, 18 U.S.C. §§ 111-112; assault with intent to commit murder, rape or any other felony, § 113; forging securities of the United States, § 471; bribing voters, § 597; escape, § 751; kidnaping, § 1201; obstruction of congressional or executive investi-
gations, § 1505; obstruction of criminal investigations, § 1510; perjury, § 1621; riots, § 2101; interception of wire or oral communications, § 2511.
See also, e. g., Ark.Stat.Ann. § 41-606 (1964) (assault with intent to kill); § 41-607 (assault with intent to rape); § 41-1805 (forgery); § 41-3005 (perjury); § 41-2308 (Supp.1973) (kidnaping).
Fla.Stat.Ann. § 787.02 (Supp.1975) (false imprisonment); § 831.01 (Supp.1975) (forgery); § 837.012 (Supp.1975) (perjury); § 843.14 (Supp.1975) (compounding felonies); § 870.03 (Supp.1975) (riots and routs).
Ill.Ann.Stat. § 10-1 (Supp.1975) (kidnaping); § 14-4 (eavesdropping); § 33-1 (Supp.1975) (bribery); § 32-2 (Supp.1975) (perjury).
Ky.Rev.Stat. § 520.020 (1975) (escape); § 516.020 (1975) (forgery); § 509.020 (1975) (kidnapping); § 515.020 (1975) (assault with intent to rob); § 523.020 (1975) (perjury).
Mass.Gen.Laws Ann., c. 265, § 29 (1970) (assault with intent to commit a felony); c. 268, § 36 (compounding felonies); c. 268, § 13B (obstructing justice); c. 267, § 1 (Supp.1975) (forgery); c. 272, § 99 (interception of wire and oral communications); c. 268, § 16 (Supp.1975) (escape); c. 265, § 26 (Supp.1975) (kidnapping).
Okla.Stat.Ann. Tit. 21, § 443 (Supp.1975) (escape); § 499 (1958) (perjury); § 653 (Supp.1975) (assault with intent to kill); § 1312 (1958) (riot); § 1621 (1958) (forgery). Wash.Rev.Code § 9.11.010 (1974) (assault with intent to commit a felony); § 9.27.050 (riot); § 9.31.010 (escape); § 9.44.020 (forgery); § 9.52.010 (kidnapping); § 9.72.010 (perjury).
10
"It is clear, of course, that no Act of Congress can authorize a violation of the Constitution." Almeida-Sanchez v. United States, 413 U.S., at 272, 93 S.Ct., at 2539, 37 L.Ed.2d 596 (1973).
11
"(S)earches 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." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967).
12
In fact, the reasons relating to personal privacy so often itemized by the Court in requiring a warrant to search appear to apply with equal force to arrests. In Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), Mr. Justice Jackson laid down the reasons for a search warrant in these classic lines:
"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. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers. 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.
Substitute "arrest" for "search" and replace references to the home with references to the person, and the justification for an arrest warrant compellingly emerges.
13
The Miranda Court rejected as irrelevant the argument that the FBI deals with crimes different from those dealt with by state authorities. 384 U.S., at 486, 86 S.Ct., at 1634, 16 L.Ed.2d 694.
14
The police will, however, encounter problems of "staleness" of their information if they delay too long in seeking a search warrant. E. g., Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932); United States v. Sawyer, 213 F.Supp. 38, 40 (ED Pa.1963). See generally Annot., 100 A.L.R.2d 525 (1965). But see People v. Wright, 367 Mich. 611, 116 N.W.2d 786 (1962). This problem relates, however, to the existence at the time the warrant is applied for of probable cause to believe the object to be seized remains where it was, not to whether the earlier probable cause mandated immediate application for a warrant. Mascolo, The Staleness of Probable Cause in Affidavits for Search Warrants: Resolving the Issue of Timeliness, 43 Conn.B.J. 189 (1969). This problem has no bearing, of course, in connection with a warrant to arrest.
15
Although the postal inspectors here anticipated the occurrence of the second crime, they could not have obtained a warrant for Watson's arrest for that crime until probable cause formed, just moments before the arrest. A warrant based on anticipated facts is premature and void. United States v. Roberts, 333 F.Supp. 786 (ED Tenn.1971).
16
Thus, unlike a search warrant, an arrest warrant typically does not require execution within a specified time period or "forthwith." Compare Fed.Rule Crim.Proc. 41(c) with Rules 4 and 9.
17
Pre-arrest delay may violate a defendant's due process rights and cause dismissal of the charges if the delay is such as to impair the defendant's ability to defend himself or is deliberate and unjustified. United States v. Feinberg, 383 F.2d 60, 65 (CA2 1967), cert. denied, 389 U.S. 1044, 88 S.Ct. 788, 19 L.Ed.2d 836 (1968); United States v. Harbin, 377 F.2d 78 (CA4 1967); Godfrey v. United States, 123 U.S.App.D.C. 219, 358 F.2d 850 (1966); Powell v. United States, 122 U.S.App.D.C. 229, 231, 352 F.2d 705, 707 (1965). The effect of such delay, however, is completely unrelated to the warrant question.
18
It is suggested that staleness would be most serious in situations where the original probable cause justifying a warrant is undercut by exculpatory evidence, only to be reaffirmed by further inculpatory evidence. Why this should be a problem baffles me. It should be obvious that when the probable cause supporting a warrant no longer exists, the warrant is void and the suspect cannot be arrested. That probable cause is thereafter again found only tells us that, absent exigency, a subsequent warrant should be obtained, not that the void warrant should somehow be resurrected. Cf. Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932).
19
The fear that "endless litigation" will result from a warrant rule cannot be credited as an additional practical reason against such a rule. Cf. ante, at 423-424. Recognition of a constitutional right inevitably results in litigation to enforce that right. We would quickly lose all protection from our Constitution if it could successfully be argued that its guarantees should be ignored because if they were recognized our citizens would begin to assert them.
20
The Court of Appeals relied on language from Coolidge v. New Hampshire, to support its conclusion that a warrant was required to arrest Watson:
"Indeed, if Mr. Justice WHITE is correct that it has generally been assumed that the Fourth Amendment is not violated by the warrantless entry of a man's house for purposes of arrest, it might be wise to re-examine the assumption. . . .
". . . The case of Warden v. Hayden, (387 U.S. 294, (1967),) where the Court elaborated a 'hot pursuit' justification for the police entry into the defendant's house without a warrant for his arrest, certainly stands by negative implication for the proposition that an arrest warrant is required in the absence of exigent circumstances." 403 U.S., at 480-481, 91 S.Ct., at 2045.
The Court is correct that this language relates only to the question reserved both in Gerstein v. Pugh, 420 U.S., at 113 n. 13, 95 S.Ct., at 863, 43 L.Ed.2d 54, and in this case.
21
Thus the Court calls into question the line of state cases holding unconstitutional statutes authorizing warrantless arrests for misdemeanors not committed in the presence of the arresting officer. In re Kellam, 55 Kan. 700, 41 P. 960 (1895); Robison v. Miner, 68 Mich. 549, 37 N.W. 21 (1888); Pinkerton v. Verberg, 78 Mich. 573, 44 N.W. 579 (1889); Gunderson v. Struebing, 125 Wis. 173, 104 N.W. 149 (1905); Ex parte Rhodes, 202 Ala. 68, 79 So. 462 (1918). Of course, such a result (or, indeed, the result I espouse herein) may still be sustained under the pertinent provisions of the state constitution. Cf. Oregon v. Hass, 420 U.S. 714, 726 (1975) (MARSHALL, J., dissenting).
22
After today there are two primary incentives for the police to obtain an arrest warrant. First, the Court has suggested, but never held, that a stronger showing of probable cause may be needed to justify a warrantless arrest than would be required if a warrant had been obtained. Wong Sun v. United States, 371 U.S. 471, 479-480, 83 S.Ct. 407, 412-413, 9 L.Ed.2d 441 (1963). Cf. United States v. Ventresca, 380 U.S. 102, 106, 85 S.Ct. 741, 744-745, 13 L.Ed.2d 684 (1965) (searches). This two-tier standard of probable cause may prove too slippery for ready application, however, especially given the already imprecise definition of probable cause itself, Carroll v. United States, 267 U.S., at 161, 45 S.Ct., at 288, 69 L.Ed. 543. What the Court intends, I suspect, is simply that the evidence of probable cause supporting a warrantless arrest will be subjected to closer scrutiny than that underlying a warrant-supported arrest.
The second incentive for police to obtain a warrant is that they may desire to present their evidence to a magistrate so as to be sure that they have probable cause. If probable cause is lacking, the police will then have an opportunity to gather more evidence rather than make an illegal arrest that would result in suppression of any evidence seized.
23
Many Courts of Appeals have recognized that a custodial consent is different in kind from one obtained from a person not in custody, and have placed a stiff burden on the Government to validate the consent. United States v. Rothman, 492 F.2d 1260, 1265 (CA9 1973); United States v. Nikrasch, 367 F.2d 740, 744 (CA7 1966); Judd v. United States, 89 U.S.App.D.C. 64, 66, 190 F.2d 649, 651 (1951).
| 01
|
423 U.S. 388
96 S.Ct. 809
46 L.Ed.2d 580
NATIONAL INDEPENDENT COAL OPERATORS' ASSOCIATION et al., Petitioners,v.Thomas S. KLEPPE, Secretary of the Interior, et al.
No. 73-2066.
Argued Oct. 6, 1975.
Decided Jan. 26, 1976.
Syllabus
Section 109(a)(1) of the Federal Coal Mine Health and Safety Act of 1969 requires the Secretary of the Interior to assess a civil monetary penalty against a coal mine operator for each violation of the mandatory health and safety standards prescribed by the Act and other provisions. But under § 109(a)(3) a penalty may be assessed only after the operator "has been given an opportunity for a public hearing and the Secretary has determined, by decision incorporating his findings of fact therein, that a violation did occur, and the amount of the penalty which is warranted . . . ." Implementing regulations provide that assessment officers assess a penalty based on a notice of violation issued by mine inspectors and a penalty schedule graduated according to the seriousness of the violation, and further provide that if the mine operator fails to make a timely protest against the proposed assessment and to request adjudication he is deemed to waive his right to protest, including his right to formal adjudication and opportunity for hearing, and the proposed assessment becomes the Secretary's "final assessment." An unpaid penalty is enforceable under the Act only by way of subsequent judicial hearing in a district court in which the operator is entitled to a trial de novo as to the amount of the penalty. Petitioners sought injunctive and declaratory relief on the ground that the summary civil penalty assessment procedures permitted by the regulations violated the Act's procedural requirements. The District Court upheld this contention, ruling that the Secretary must make express findings of fact, whether or not the operator requests a hearing. The Court of Appeals reversed. Held : The language of § 109(a)(3), especially when read in light of its legislative history, requires the Secretary to make formal findings of fact as a predicate for a penalty assessment order only when the mine operator exercises his statutory right to request an administrative hearing on the factual issues relating to the penalty. Pp. 397-402.
(a) The word "opportunity" as used in § 109(a)(3) would be meaningless if the statute contemplated formal adjudicated findings whether or not a requested evidentiary hearing is held, and absent a request for a hearing, the Secretary has a sufficient factual predicate for a penalty assessment based on the reports of the qualified inspectors who find violations; when the assessment officers fix penalties, as the Secretary's "authorized representatives," the operator may still have the penalty reviewed in the district court. P. 398.
(b) The requirement for a formal hearing under § 109(a)(3) is keyed to a request, and the requirement for formal findings is keyed to the same request. P. 398.
(c) Such a reading of the statute comports with the Act's purpose of imposing stricter coal mine regulation to prevent accidents and disasters; the deterrent provided by monetary sanctions is essential to that purpose, and effective enforcement of the Act would be weakened were the Secretary required to make findings of fact for every penalty assessment including those cases in which the mine operator did not request a hearing, thus indicating no disagreement with the Secretary's proposed determination. Pp. 398-399.
161 U.S.App.D.C 68, 494 F.2d 987, affirmed.
John L. Kilcullen, Washington, D. C., for the National Independent Coal Operator's Ass'n and others.
Fred Blackwell, Washington, D. C., for Delta Mining, Inc., and others.
A. Raymond Randolph, Jr., Washington, D. C., for the Secretary of the Interior and others.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
This case1 presents the question whether the Federal Coal Mine Health and Safety Act of 1969, 83 Stat. 742, 30 U.S.C. § 801 et seq., requires the Secretary of the Interior to prepare a decision with formal findings of fact before assessing a civil penalty against a mine operator absent a request by the mine operator for an administrative hearing, the penalty being enforceable only by way of a subsequent judicial proceeding in which the operator is entitled to a trial de novo as to the amount of the penalty.
2
The National Independent Coal Operators' Association sought declaratory and injunctive relief on the ground that certain civil penalty assessment regulations utilized by the Secretary violated the procedural requirements of the Act. The Court of Appeals for the District of Columbia Circuit held that the regulations did not violate the Act.2 National Independent Coal Operators' Assn. v. Morton, 161 U.S.App.D.C. 68, 494 F.2d 987 (1974).
3
We granted certiorari, 420 U.S. 906, 95 S.Ct. 824, 42 L.Ed.2d 835 (1975), to resolve the apparent conflict between the District of Columbia Circuit and the Third Circuit holding in Morton v. Delta Mining Inc., 495 F.2d 38 (1974), reversed and remanded, 423 U.S. 403, 96 S.Ct. 816, 46 L.Ed.2d 591.
(1)
4
The statutory provision in question, § 109(a)(3), 30 U.S.C. § 819(a)(3), is part of the enforcement scheme of the Federal Coal Mine Health and Safety Act of 1969. The Act prescribes health and safety standards for the protection of coal miners, Titles II and III, 30 U.S.C. § 841 et seq. ; it requires coal mine operators and miners to comply with the standards. § 2(g)(2), 30 U.S.C. § 801(g)(2).
5
Section 103 of the Act, 30 U.S.C. § 813, requires the Secretary to conduct continuing surveillance of mines by inspectors. Among the purposes of the inspections are finding imminently dangerous conditions and violations of mandatory health or safety standards. Section 104, 30 U.S.C. § 814, provides procedures for abating the conditions found by the inspectors. If an imminent danger is found, the inspector is required to issue a withdrawal order compelling the mine operator to withdraw all persons from the danger area. If a violation of a mandatory standard is found that is not imminently dangerous, the inspector issues a notice to the operator fixing a reasonable time for its abatement. If the violation is not abated and the time for abatement is not extended, the inspector then issues a withdrawal order. Withdrawal orders are also issued for any "unwarrantable failure" of mine operators to comply with the standards. The notices and orders issued contain a detailed description of the dangerous conditions or violations and their locations. The notices must be in writing and given promptly to the mine operators.
6
Under § 105, 30 U.S.C. § 815, an operator may apply to the Secretary for review of the factual basis of any order or notice issued under § 104, or for review of the amount of time allowed for abatement of violations. Upon application from a mine operator the Secretary makes whatever investigation he deems appropriate; an opportunity for a public hearing is provided. Hearings are subject to § 5 of the Administrative Procedure Act, 5 U.S.C. § 554, and following the hearing the Secretary must make findings of fact. Section 105 also requires that actions by the Secretary be taken promptly because of the urgent need for prompt decision. The orders issued by the Secretary under this section are subject to judicial review under § 106, 30 U.S.C. § 816, by a court of appeals.
7
As part of the enforcement scheme, the Act requires the Secretary to assess and collect civil penalties. Section 109(a)(1), 30 U.S.C. § 819(a)(1), subjects mine operators to civil penalties not exceeding $10,000 for each violation of a mandatory standard or other provision of the Act. In determining the amount of the penalty, § 109(a)(1) requires the Secretary to consider
8
"the operator's history of previous violations, the appropriateness of such penalty to the size of the business of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue in business, the gravity of the violation, and the demonstrated good faith of the operator charged in attempting to achieve rapid compliance after notification of a violation."
9
The provision in question, § 109(a)(3), authorizes the Secretary to assess a civil penalty only after the operator charged with a violation "has been given an opportunity for a public hearing and the Secretary has determined, by decision incorporating his findings of fact therein, that a violation did occur, and the amount of the penalty which is warranted . . . ." Hearings under this section are to be consolidated with other proceedings when appropriate. They must be of record and subject to provisions of the Administrative Procedure Act, 5 U.S.C. § 554.
10
If the operator does not pay the penalty assessed, the Secretary is required, pursuant to § 109(a)(4), 30 U.S.C. § 819(a)(4), to petition for judicial enforcement of the assessment in the district court for the district in which the mine is located. At that stage the court must resolve the issues relevant to the amount of the penalty in a de novo proceeding with a jury trial if requested. The trial de novo with a jury is not available for review of issues of fact which "were or could have been litigated" in the court of appeals under § 106.3
11
(2)
12
We are concerned in this case with the regulations the Secretary has adopted to govern only one part of this statutory scheme: the assessment of penalties under § 109(a)(3). When the Secretary initially implemented the Act, he published regulations that provided for civil penalty assessments to be determined by a hearing examiner, with a right of appeal to a departmental appeals board. 30 CFR pt. 301 (1971), recodified, 43 CFR § 4.540 et seq. (1972). Nine months later, due to the large numbers of violations charged (approximately 80,000 or more per year), the Secretary adopted the regulations contested here. 30 CFR pt. 100 (1972).4 These regulations provide that assessment officers assess a penalty based on a notice of violation issued by mine inspectors and a penalty schedule graduated according to the seriousness of the violation.5 The Part 100 procedures follow the mandate of § 109(a) (1) as to the criteria to be applied in determining the amount of the proposed penalty for an operator. 30 CFR § 100.4(c).6
13
The regulations also provide that the operators are to be advised when they receive original or reissued proposed orders that they have 15 working days from the receipt of the order to "protest the proposed assessment, either partly or in its entirety." If an operator fails to make a timely protest and request adjudication, he is "deemed to have waived his right of protest including his right of formal adjudication and opportunity for hearing . . . ." The proposed assessment order then becomes the "final assessment order of the Secretary." 30 CFR § 100.4(d-h).7
14
In any case in which an operator makes a timely request for a formal hearing, by so indicating in his protest, or in response to a reissued or amended proposed assessment order, the assessment officer is required to forward the matter to the Office of the Solicitor, Department of the Interior; a petition to assess a penalty can then be filed by the Solicitor with the Department's Office of Hearings and Appeals. 30 CFR § 100.4(i)(1); 43 CFR § 4.540(a). The petition is served on the operator who then has an opportunity to answer and secure a public hearing. 30 CFR § 100.4(i)(2). A hearing de novo is conducted and the examiner is free to assess a different penalty.8 30 CFR § 100.4(i) (4). The Bureau of Mines, represented by the Office of the Solicitor, has the burden of proving the penalty by a preponderance of the evidence. 43 CFR § 4.587. The regulations provide that the hearing examiner consider the statutory criteria. 43 CFR § 4.546. The decision is subject to review by the Secretary's delegate, the Board of Mine Operations Appeals. 43 CFR §§ 4.1(b)(4), 4.500(a)(2), 4.600.
15
Whether or not the operator requests formal adjudication, he may obtain de novo judicial review of the amount of the penalty by refusing to pay it and awaiting the Secretary's enforcement action in the district court. § 109(a) (4), 30 U.S.C. § 819(a)(4).
16
(3)
17
The National Independent Coal Operators' Association and various operators brought suit against the Secretary in the United States District Court for the District of Columbia to enjoin the use of the pt. 100 regulations. The court granted the Association's motion for summary judgment, holding that the summary procedures were not authorized by § 109(a) of the Act. D.C., 357 F.Supp. 509 (1973). The court noted that there were no written guidelines within the assessment office to guide the assessment officers in evaluating or applying the statutory criteria for penalty assessment. The court held that the Secretary must make express findings of fact whether or not a hearing is requested. The court believed that requiring a mine operator to request a hearing "would shift the initial burden to the mine operator." Id., at 512.
18
The Court of Appeals for the District of Columbia Circuit reversed, holding that the Secretary need not render a formal decision incorporating findings of fact; it held that, absent a request for a hearing, the Secretary is entitled to conclude that the operator does not dispute the proposed order, including the factual basis of the violation. In the view of that court, a "decision incorporating his findings of fact" with findings and conclusions is required only if a hearing is requested and takes place; otherwise, any findings of fact would consist of essentially the same information already recited in the proposed assessment order and would be a meaningless duplication. The court also noted that the legislative history of the Act supports an interpretation that the Secretary's findings are not required unless the operator requests a hearing; however, when a hearing is requested, the burden of proof remains with the Secretary. 161 U.S.App.D.C. 68, 494 F.2d 987 (1974).
19
(4)
20
Under the Act, a mine operator plainly has a right to notice of violations and proposed penalties; it is equally clear that an operator has a right to be heard, if a hearing is requested. In this Court the mine operators continue to urge that the Secretary may not assess a civil penalty without making formal "findings of fact" even though no hearing was requested as to the violation charged and the proposed order.
21
Section 109(a)(3), as previously noted, provides:
22
"A civil penalty shall be assessed by the Secretary only after the person charged with a violation under this Act has been given an opportunity for a public hearing and the Secretary has determined, by decision incorporating his findings of fact therein, that a violation did occur, and the amount of the penalty which is warranted . . . ."
23
The operators argue that a penalty assessment itself is an adjudicatory function and hence the Secretary must make a formal "decision incorporating his findings of fact" even when an operator has not requested a hearing on the violation issue. In short, what they argue for is the same type of formal findings of fact that are the usual product of the adversary hearing to which they have an absolute right, but which was waived by failure to make a request.
24
Section 109(a)(3) provides the mine operators with no more than "an opportunity" for a hearing. The word "opportunity" would be meaningless if the statute contemplated formal adjudicated findings whether or not a requested evidentiary hearing is held. Absent a request, the Secretary has a sufficient factual predicate for the assessment of a penalty based on the reports of the trained and experienced inspectors who find violations; when the assessment officers fix penalties as the Secretary's "authorized representatives," the operators may still have review of the penalty in the district court.9 See Morton v. Whitaker, Civ.No. 74.96 (ED Ky., Jan. 14, 1975) (appeal pending in CA6).
25
We therefore agree with the Court of Appeals that the language of the statute, especially when read in light of its legislative history, requires the Secretary to make formal findings of fact specified in § 109(a)(3) only when the mine operator requests a hearing. The requirement for a formal hearing under § 109(a)(3) is keyed to a request, and the requirement for formal findings is keyed to the same request.
26
This reading of the statute plainly comports with the purpose of the Act. Congressional attention was focused on the need for stricter coal mine regulations by a 1968 explosion in a Farmington, W.Va., mine which killed 78 miners, but Congress also recognized that an inordinate number of miners lose their lives in day-to-day accidents other than multidisaster situations. The Act was seen as a major step in preventing death and injury in mines. H.R.Rep.No.91-563, pp. 1-3, U.S.Code Cong. & Admin.News 1969, p. 2503. The need for stricter regulation of coal mines was commented on by President Truman when he signed the 1952 amendment to the Federal Coal Mine Safety Act, 66 Stat. 692. In approving that measure into law he called the attention of Congress to its flaws:
27
"The measure contains complex procedural provisions relating to inspections, appeals, and the postponing of orders which I believe will make it exceedingly difficult, if not impossible, for those charged with the administration of the act to carry out an effective enforcement program."
28
Congress noted President Truman's comments when it reported the 1969 Act. S.Rep.No.91-411, p. 5 (1969). Effective enforcement of the Act would be weakened if the Secretary were required to make findings of fact for every penalty assessment including those cases in which the mine operator did not request a hearing and thereby indicated no disagreement with the Secretary's proposed determination. While a protest by a mine operator may trigger an administrative re-examination, the protest is not the equivalent of a request for a hearing. When no request for a hearing is made, the operator has in effect voluntarily defaulted and abandoned the right to a hearing and findings of fact on the factual basis of the violation and the penalty.
29
The Court of Appeals for the District of Columbia Circuit regarded § 109 as possibly ambiguous and turned to the legislative history. Assuming, arguendo, that the statute is ambiguous, we read that history as supporting the result reached by the Court of Appeals. The bills passed by the Senate and House each called for hearings only if requested. The House bill provided:
30
"Upon written request made by an operator within thirty days after receipt of an order assessing a penalty under this section, the Secretary shall afford such operator an opportunity for a hearing and, in accordance with the request, determine by decision whether or not a violation did occur or whether the amount of the penalty is warranted or should be compromised." H.R. 13950, 91st Cong., 1st Sess., § 109(b) (1969). (Emphasis added.)
The Senate bill read:
31
"An order assessing a civil penalty under this subsection shall be issued by the Secretary only after the person against whom the order is issued has been given an opportunity for a hearing and the Secretary has determined by decision incorporating findings of fact based on the record of such hearing whether or not a violation did occur and the amount of the penalty, if any, which is warranted. Section 554 of title 5 of the United States Code shall apply to any such hearing and decision." S. 2917, 91st Cong., 1st Sess., § 308(a)(3) (1969). (Emphasis added.)
32
Thus it is clear that under both bills the requirement for a formal decision with findings was contingent on the operator's request for a hearing.
33
Both bills were referred to a Conference Committee to resolve differences. The Conference Committee adopted the Senate version but deleted the second italicized phrase. That change did not alter the requirement that if findings of fact are desired, a hearing must be requested. The Conference Committee explained § 109 as follows:
34
"Both the Senate bill and the House amendment provided an opportunity for a hearing in assessing such penalties, but the Senate bill required a record hearing under 5 U.S.C. (s) 554. The conference substitute adopts the Senate provision with the added provision that, where appropriate, such as in the case of an appeal from a withdrawal order, an effort should be made to consolidate the hearings. The commencement of such proceeding, however, shall not stay any notice or order involving a violation of a standard." H.R.Conf.Rep.No.91-761, p. 71. U.S.Code Cong. & Admin.News 1969, p. 2586. (Emphasis added.)
35
No mention was made of the language deleted from the Senate bill or the similar language contained in the House bill. A change to require findings of fact without a request for a hearing would be a significant matter that would not likely have escaped attention; such a change would have called for explanation.10
36
The importance of § 109 in the enforcement of the Act cannot be overstated. Section 109 provides a strong incentive for compliance with the mandatory health and safety standards. That the violations of the Act have been abated or miners withdrawn from the dangerous area before § 109 comes into effect is not dispositive; if a mine operator does not also face a monetary penalty for violations, he has little incentive to eliminate dangers until directed to do so by a mine inspector. The inspections may be as infrequent as four a year. A major objective of Congress was prevention of accidents and disasters; the deterrence provided by monetary sanctions is essential to that objective.
37
We conclude, as did the Court of Appeals, that the Federal Coal Mine Health and Safety Act of 1969 does not mandate a formal decision with findings as a predicate for a penalty assessment order unless the mine operator exercises his statutory right to request a hearing on the factual issues relating to the penalty, and the judgment of the Court of Appeals is therefore
38
Affirmed.
39
Mr. Justice STEVENS took no part in the consideration or decision of this case.
1
Consolidated with No. 74-521, Kleppe v. Delta Mining, Inc., post, p. 403.
2
In the companion case supra, three mine operators in a consolidated action raised the same challenge as a defense when the Secretary sought judicial enforcement of assessment orders in a suit, where, under the Act, the operators had a right to a trial de novo as to the amount of the penalties. The Court of Appeals for the Third Circuit noted the District of Columbia Circuit's holding but held that the regulations were invalid for failure to require findings of fact, rejecting the Secretary's contention that such findings are required only when an administrative hearing is requested by a mine operator.
3
Respondents have suggested that trial de novo is available on the factual basis of the violation as well as on the amount of the penalty. The statutory scheme is less than clear on this matter. Compare § 106 with § 109(a). See Eastern Associated Coal Corp. v. Interior Bd. of Mine Operations Appeals, 491 F.2d 277 (CA4 1974). We need not reach the issue to dispose of this case.
4
Those regulations have been reissued, 39 Fed.Reg. 27558-27561 (1974), since these suits were initiated. The mine operators in the companion case, Kleppe v. Delta Mining, Inc., 423 U.S. 403, 96 S.Ct. 816, 46 L.Ed. 591, argue that this case is moot. The case is not moot because there are assessments under the contested regulations awaiting enforcement and because the new regulations also do not provide a hearing unless one is requested.
Unless otherwise indicated, all citations to the Code of Federal Regulations throughout this opinion are to the regulations effective at the time this suit was initiated (Jan. 1, 1972, for 30 CFR, and Oct. 1, 1972, for 43 CFR).
5
Section 100.2(b) of the regulations states that the amount of proposed civil penalty "shall be within guidelines established by the Secretary (see Appendix A to this part) and revised periodically in the light of experience gained under the Act . . . ." 30 CFR § 100.2(b). Appendix A in effect at the time of this suit provided a range between $5,000 and $10,000 for violations resulting in the issuance of imminent-danger withdrawal orders (under § 104(a) of the Act); a range between $1,000 and $5,000 for violations resulting in the issuance of other withdrawal orders (under §§ 104(b), (c), (h), and (i) of the Act); a range between $100 and $1,000 for "serious violations"; and a range between $25 and $500 for other violations.
6
A penalty schedule with formulas for considering the six criteria was promulgated after these suits were filed. 30 CFR § 100.3 (1975).
7
The mine operators in the companion case contend that these orders are not final since the regulations provide only that the orders become final if accepted. 30 CFR § 100.4(h). The regulations provide that a hearing can be requested but do not specify what happens if neither the orders are accepted nor a hearing is requested. This contention is without merit. The order is final. See 30 CFR § 100.4(e). The regulation is not misleading.
8
These uncontested regulations provide that if an operator fails to file a preliminary statement or response to a prehearing order, the hearing examiner can issue an order to show cause why the proceedings should not be summarily dismissed. 43 CFR § 4.545(a). If the operator fails to respond to such an order, the proceedings are summarily dismissed and remanded to the assessment officer for entry of the last proposed order of assessment (issued under 30 CFR pt. 100) as the final assessment order of the Secretary. 43 CFR § 4.545(b).
9
At the time of the events giving rise to these actions, the Act was enforced by the Secretary's delegate, the Bureau of Mines. The Bureau's safety and enforcement functions have since been transferred to a newly created Mining Enforcement and Safety Administration, Department of the Interior. 38 Fed.Reg. 18665-18668, 18695-18696 (1973).
10
A Conference Committee does not have authority to make changes on matters as to which both bills agree. 2 U.S.C. § 190c(a) (Sen. Conf. Reps.); Rule XXVIII(3), Rules of the House of Representatives; and § 546, Jefferson's Manual, H.R.Doc.No.384, 92d Cong., 2d Sess., 526, 270-271 (1973).
| 89
|
424 U.S. 1
96 S.Ct. 612
46 L.Ed.2d 659
James L. BUCKLEY et al., Appellants,v.Francis R. VALEO, Secretary of the United States Senate, et al. (two cases).
Nos. 75-436 and 75-437.
Argued Nov. 10, 1975.
Decided Jan. 30, 1976.
Motion Granted Feb. 27, 1976.
See 424 U.S. 936, 96 S.Ct. 1153.
Syllabus
The Federal Election Campaign Act of 1971 (Act), as amended in 1974, (a) limits political contributions to candidates for federal elective office by an individual or a group to $1,000 and by a political committee to $5,000 to any single candidate per election, with an overall annual limitation of $25,000 by an individual contributor; (b) limits expenditures by individuals or groups "relative to a clearly identified candidate" to $1,000 per candidate per election, and by a candidate from his personal or family funds to various specified annual amounts depending upon the federal office sought, and restricts overall general election and primary campaign expenditures by candidates to various specified amounts, again depending upon the federal office sought; (c) requires political committees to keep detailed records of contributions and expenditures, including the name and address of each individual contributing in excess of $10, and his occupation and principal place of business if his contribution exceeds $100, and to file quarterly reports with the Federal Election Commission disclosing the source of every contribution exceeding $100 and the recipient and purpose of every expenditure over $100, and also requires every individual or group, other than a candidate or political committee, making contributions or expenditures exceeding $100 "other than by contribution to a political committee or candidate" to file a statement with the Commission; and (d) creates the eight-member Commission as the administering agency with recordkeeping, disclosure, and investigatory functions and extensive rulemaking, adjudicatory, and enforcement powers, and consisting of two members appointed by the President pro tempore of the Senate, two by the Speaker of the House, and two by the President (all subject to confirmation by both Houses of Congress), and the Secretary of the Senate and the Clerk of the House as ex officio nonvoting members. Subtitle H of the Internal Revenue Code of 1954 (IRC), as amended in 1974, provides for public financing of Presidential nominating conventions and general election and primary campaigns from general revenues and allocates such funding to conventions and general election campaigns by establishing three categories: (1) "major" parties (those whose candidate received 25% Or more of the vote in the most recent election), which receive full funding; (2) "minor" parties (those whose candidate received at least 5% But less than 25% Of the votes at the last election), which receive only a percentage of the funds to which the major parties are entitled; and (3) "new" parties (all other parties), which are limited to receipt of post-election funds or are not entitled to any funds if their candidate receives less than 5% Of the vote. A primary candidate for the Presidential nomination by a political party who receives more than $5,000 from private sources (counting only the first $250 of each contribution) in each of at least 20 States is eligible for matching public funds. Appellants (various federal officeholders and candidates, supporting political organizations, and others) brought suit against appellees (the Secretary of the Senate, Clerk of the House, Comptroller General, Attorney General, and the Commission) seeking declaratory and injunctive relief against the above statutory provisions on various constitutional grounds. The Court of Appeals, on certified questions from the District Court, upheld all but one of the statutory provisions. A three-judge District Court upheld the constitutionality of Subtitle H. Held : 1. This litigation presents an Art. III "case or controversy," since the complaint discloses that at least some of the appellants have a sufficient "personal stake" in a determination of the constitutional validity of each of the challenged provisions to present "a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241, 57 S.Ct. 461, 464, 81 L.Ed. 617. P. 11-12.
2. The Act's contribution provisions are constitutional, but the expenditure provisions violate the First Amendment. Pp. 12-59.
(a) The contribution provisions, along with those covering disclosure, are appropriate legislative weapons against the reality or appearance of improper influence stemming from the dependence of candidates on large campaign contributions, and the ceilings imposed accordingly serve the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion. Pp. 23-38.
(b) The First Amendment requires the invalidation of the Act's independent expenditure ceiling, its limitation on a candidate's expenditures from his own personal funds, and its ceilings on overall campaign expenditures, since those provisions place substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate. Pp. 39-59.
3. The Act's disclosure and recordkeeping provisions are constitutional. Pp. 60-84.
(a) The general disclosure provisions, which serve substantial governmental interests in informing the electorate and preventing the corruption of the political process, are not overbroad insofar as they apply to contributions to minor parties and independent candidates. No blanket exemption for minor parties is warranted since such parties in order to prove injury as a result of application to them of the disclosure provisions need show only a reasonable probability that the compelled disclosure of a party's contributors' names will subject them to threats, harassment, or reprisals in violation of their First Amendment associational rights. Pp. 64-74.
(b) The provision for disclosure by those who make independent contributions and expenditures, as narrowly construed to apply only (1) when they make contributions earmarked for political purposes or authorized or requested by a candidate or his agent to some person other than a candidate or political committee and (2) when they make an expenditure for a communication that expressly advocates the election or defeat of a clearly identified candidate is not unconstitutionally vague and does not constitute a prior restraint but is a reasonable and minimally restrictive method of furthering First Amendment values by public exposure of the federal election system. Pp. 74-82.
(c) The extension of the recordkeeping provisions to contributions as small as those just above $10 and the disclosure provisions to contributions above $100 is not on this record overbroad since it cannot be said to be unrelated to the informational and enforcement goals of the legislation. Pp. 82-84.
4. Subtitle H of the IRC is constitutional. Pp. 85-109.
(a) Subtitle H is not invalid under the General Welfare Clause but, as a means to reform the electoral process, was clearly a choice within the power granted to Congress by the Clause to decide which expenditures will promote the general welfare. Pp. 90-92.
(b) Nor does Subtitle H violate the First Amendment. Rather than abridging, restricting, or censoring speech, it represents an effort to use public money to facilitate and enlarge public discussion and participation in the electoral process. Pp. 92-93.
(c) Subtitle H, being less burdensome than ballot-access regulations and having been enacted in furtherance of vital governmental interests in relieving major-party candidates from the rigors of soliciting private contributions, in not funding candidates who lack significant public support, and in eliminating reliance on large private contributions for funding of conventions and campaigns, does not invidiously discriminate against minor and new parties in violation of the Due Process Clause of the Fifth Amendment. Pp. 93-108.
(d) Invalidation of the spending-limit provisions of the Act does not render Subtitle H unconstitutional, but the Subtitle is severable from such provisions and is not dependent upon the existence of a generally applicable expenditure limit. Pp. 108-109.
5. The Commission's composition as to all but its investigative and informative powers violates Art. II, § 2, cl. 2. With respect to the Commission's powers, all of which are ripe for review, to enforce the Act, including primary responsibility for bringing civil actions against violators, to make rules for carrying out the Act, to temporarily disqualify federal candidates for failing to file required reports, and to authorize convention expenditures in excess of the specified limits, the provisions of the Act vesting such powers in the Commission and the prescribed method of appointment of members of the Commission to the extent that a majority of the voting members are appointed by the President pro tempore of the Senate and the Speaker of the House, violate the Appointments Clause, which provides in pertinent part that the President shall nominate, and with the Senate's advice and consent appoint, all "Officers of the United States," whose appointments are not otherwise provided for, but that Congress may vest the appointment of such inferior officers, as it deems proper, in the President alone, in the courts, or in the heads of departments. Hence (though the Commission's past acts are accorded de facto validity and a stay is granted permitting it to function under the Act for not more than 30 days), the Commission, as presently constituted, may not because of that Clause exercise such powers, which can be exercised only by "Officers of the United States" appointed in conformity with the Appointments Clause, although it may exercise such investigative and informative powers as are in the same category as those powers that Congress might delegate to one of its own committees. Pp. 109-143.
171 U.S.App.D.C. 172, 519 F.2d 821, affirmed in part and reversed in part; D.C., 401 F.Supp. 1235, affirmed.
Ralph K. Winter, Jr., New Haven, Conn., pro hac vice, by special leave of Court, Joel M. Gora, New York City, Brice M. Clagett, Washington, D.C., for appellants.
Daniel M. Friedman, Washington, D.C., Archibald Cox, Cambridge, Mass., Lloyd N. Cutler, Washington, D.C., Ralph S. Spritzer, Philadelphia, Pa., for appellees.
PER CURIAM.
1
These appeals present constitutional challenges to the key provisions of the Federal Election Campaign Act of 1971 (Act), and related provisions of the Internal Revenue Code of 1954, all as amended in 1974.1
2
The Court of Appeals, in sustaining the legislation in large part against various constitutional challenges,2 viewed it as "by far the most comprehensive reform legislation (ever) passed by Congress concerning the election of the President, Vice-President, and members of Congress." 171 U.S.App.D.C. 172, 182, 519 F.2d 821, 831 (1975). The statutes at issue summarized in broad terms, contain the following provisions: (a) individual political contributions are limited to $1,000 to any single candidate per election, with an overall annual limitation of $25,000 by any contributor; independent expenditures by individuals and groups "relative to a clearly identified candidate" are limited to $1,000 a year; campaign spending by candidates for various federal offices and spending for national conventions by political parties are subject to prescribed limits; (b) contributions and expenditures above certain threshold levels must be reported and publicly disclosed; (c) a system for public funding of Presidential campaign activities is established by Subtitle H of the Internal Revenue Code;3 and (d) a Federal Election Commission is established to administer and enforce the legislation.
3
This suit was originally filed by appellants in the United States District Court for the District of Columbia. Plaintiffs included a candidate for the Presidency of the United States, a United States Senator who is a candidate for re-election, a potential contributor, the Committee for a Constitutional Presidency McCarthy '76, the Conservative Party of the State of New York, the Mississippi Republican Party, the Libertarian Party, the New York Civil Liberties Union, Inc., the American Conservative Union, the Conservative Victory Fund, and Human Events, Inc. The defendants included the Secretary of the United States Senate and the Clerk of the United States House of Representatives, both in their official capacities and as ex officio members of the Federal Election Commission. The Commission itself was named as a defendant. Also named were the Attorney General of the United States and the Comptroller General of the United States.
4
Jurisdiction was asserted under 28 U.S.C. §§ 1331, 2201, and 2202, and § 315(a) of the Act, 2 U.S.C. § 437h(a) (1970 ed., Supp. IV).4 The complaint sought both a declaratory judgment that the major provisions of the Act were unconstitutional and an injunction against enforcement of those provisions. Appellants requested the convocation of a three-judge District Court as to all matters and also requested certification of constitutional questions to the Court of Appeals, pursuant to the terms of § 315(a). The District Judge denied the application for a three-judge court and directed that the case be transmitted to the Court of Appeals. That court entered an order stating that the case was "preliminarily deemed" to be properly certified under § 315(a). Leave to intervene was granted to various groups and individuals.5 After considering matters regarding factfinding procedures, the Court of Appeals entered an order en banc remanding the case to the District Court to (1) identify the constitutional issues in the complaint; (2) take whatever evidence was found necessary in addition to the submissions suitably dealt with by way of judicial notice; (3) make findings of fact with reference to those issues; and (4) certify the constitutional questions arising from the foregoing steps to the Court of Appeals.6 On remand, the District Judge entered a memorandum order adopting extensive findings of fact and transmitting the augmented record back to the Court of Appeals.
5
On plenary review, a majority of the Court of Appeals rejected, for the most part, appellants' constitutional attacks. The court found "a clear and compelling interest," 171 U.S.App.D.C., at 192, 519 F.2d, at 841, in preserving the integrity of the electoral process. On that basis, the court upheld, with one exception,7 the substantive provisions of the Act with respect to contributions, expenditures, and disclosure. It also sustained the constitutionality of the newly established Federal Election Commission. The court concluded that, notwithstanding the manner of selection of its members and the breadth of its powers, which included nonlegislative functions, the Commission is a constitutionally authorized agency created to perform primarily legislative functions.8 The provisions for public funding of the three stages of the Presidential selection process were upheld as a valid exercise of congressional power under the General Welfare Clause of the Constitution, Art. I, § 8.
6
In this Court, appellants argue that the Court of Appeals failed to give this legislation the critical scrutiny demanded under accepted First Amendment and equal protection principles. In appellants' view, limiting the use of money for political purposes constitutes a restriction on communication violative of the First Amendment, since virtually all meaningful political communications in the modern setting involve the expenditure of money. Further, they argue that the reporting and disclosure provisions of the Act unconstitutionally impinge on their right to freedom of association. Appellants also view the federal subsidy provisions of Subtitle H as violative of the General Welfare Clause, and as inconsistent with the First and Fifth Amendments. Finally, appellants renew their attack on the Commission's composition and powers.
7
At the outset we must determine whether the case before us presents a "case or controversy" within the meaning of Art. III of the Constitution. Congress may not, of course, require this Court to render opinions in matters which are not "cases or controversies." Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-241, 57 S.Ct. 461, 463-464, 81 L.Ed. 617 (1937). We must therefore decide whether appellants have the "personal stake in the outcome of the controversy" necessary to meet the requirements of Art. III. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). It is clear that Congress, in enacting 2 U.S.C. § 437h (1970 ed., Supp. IV),9 intended to provide judicial review to the extent permitted by Art. III. In our view, the complaint in this case demonstrates that at least some of the appellants have a sufficient "personal stake"10 in a determination of the constitutional validity of each of the challenged provisions to present "a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." Aetna Life Ins. Co. v. Haworth, supra, 300 U.S. at 241, 57 S.Ct. at 464.11
I. CONTRIBUTION AND EXPENDITURE LIMITATIONS
8
The intricate statutory scheme adopted by Congress to regulate federal election campaigns includes restrictions on political contributions and expenditures that apply broadly to all phases of and all participants in the election process. The major contribution and expenditure limitations in the Act prohibit individuals from contributing more than $25,000 in a single year or more than $1,000 to any single candidate for an election campaign12 and from spending more than $1,000 a year "relative to a clearly identified candidate."13 Other provisions restrict a candidate's use of personal and family resources in his campaign14 and limit the overall amount that can be spent by a candidate in campaigning for federal office.15
9
The constitutional power of Congress to regulate federal elections is well established and is not questioned by any of the parties in this case.16 Thus, the critical constitutional questions presented here go not to the basic power of Congress to legislate in this area, but to whether the specific legislation that Congress has enacted interferes with First Amendment freedoms or invidiously discriminates against nonincumbent candidates and minor parties in contravention of the Fifth Amendment.
A. General Principles
10
The Act's contribution and expenditure limitations operate in an area of the most fundamental First Amendment activities. Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order "to assure (the) unfettered interchange of ideas for the bringing about of political and social changes desired by the people." Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498 (1957). Although First Amendment protections are not confined to "the exposition of ideas," Winters v. New York, 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840 (1948), "there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. . . . of course includ(ing) discussions of candidates . . . ." Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1437, 16 L.Ed.2d 484 (1966). This no more than reflects our "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open," New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964). In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation. As the Court observed in Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 625, 28 L.Ed.2d 35 (1971), "it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office."
11
The First Amendment protects political association as well as political expression. The constitutional right of association explicated in NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488 (1958), stemmed from the Court's recognition that "(e)ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association." Subsequent decisions have made clear that the First and Fourteenth Amendments guarantee " 'freedom to associate with others for the common advancement of political beliefs and ideas,' " a freedom that encompasses " '(t)he right to associate with the political party of one's choice.' " Kusper v. Pontikes, 414 U.S. 51, 56, 57, 94 S.Ct. 303, 307, 38 L.Ed.2d 260 (1973), quoted in Cousins v. Wigoda, 419 U.S. 477, 487, 95 S.Ct. 541, 547, 42 L.Ed.2d 595 (1975).
12
It is with these principles in mind that we consider the primary contentions of the parties with respect to the Act's limitations upon the giving and spending of money in political campaigns. Those conflicting contentions could not more sharply define the basic issues before us. Appellees contend that what the Act regulates is conduct, and that its effect on speech and association is incidental at most. Appellants respond that contributions and expenditures are at the very core of political speech, and that the Act's limitations thus constitute restraints on First Amendment liberty that are both gross and direct.
13
In upholding the constitutional validity of the Act's contribution and expenditure provisions on the ground that those provisions should be viewed as regulating conduct, not speech, the Court of Appeals relied upon United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). See 171 U.S.App.D.C., at 191, 519 F.2d, at 840. The O'Brien case involved a defendant's claim that the First Amendment prohibited his prosecution for burning his draft card because his act was " 'symbolic speech' " engaged in as a " 'demonstration against the war and against the draft.' " 391 U.S., at 376, 88 S.Ct., at 1678. On the assumption that "the alleged communicative element in O'Brien's conduct (was) sufficient to bring into play the First Amendment," the Court sustained the conviction because it found "a sufficiently important governmental interest in regulating the nonspeech element" that was "unrelated to the suppression of free expression" and that had an "incidental restriction on alleged First Amendment freedoms . . . no greater than (was) essential to the furtherance of that interest." Id., at 376-377, 88 S.Ct., at 1678. The Court expressly emphasized that O'Brien was not a case "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." Id., at 382, 88 S.Ct., at 1682.
14
We cannot share the view that the present Act's contribution and expenditure limitations are comparable to the restrictions on conduct upheld in O'Brien. The expenditure of money simply cannot be equated with such conduct as destruction of a draft card. Some forms of communication made possible by the giving and spending of money involve speech alone, some involve conduct primarily, and some involve a combination of the two. Yet this Court has never suggested that the dependence of a communication on the expenditure of money operates itself to introduce a nonspeech element or to reduce the exacting scrutiny required by the First Amendment. See Bigelow v. Virginia, 421 U.S. 809, 820, 95 S.Ct. 2222, 2231, 44 L.Ed.2d 600 (1975); New York Times Co. v. Sullivan, supra, 376 U.S., at 266, 84 S.Ct., at 718. For example, in Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965), the Court contrasted picketing and parading with a newspaper comment and a telegram by a citizen to a public official. The parading and picketing activities were said to constitute conduct "intertwined with expression and association," whereas the newspaper comment and the telegram were described as a "pure form of expression" involving "free speech alone" rather than "expression mixed with particular conduct." Id., at 563-564, 85 S.Ct., at 480-481.
15
Even if the categorization of the expenditure of money as conduct were accepted, the limitations challenged here would not meet the O'Brien test because the governmental interests advanced in support of the Act involve "suppressing communication." The interests served by the Act include restricting the voices of people and interest groups who have money to spend and reducing the overall scope of federal election campaigns. Although the Act does not focus on the ideas expressed by persons or groups subject to its regulations, it is aimed in part at equalizing the relative ability of all voters to affect electoral outcomes by placing a ceiling on expenditures for political expression by citizens and groups. Unlike O'Brien, where the Selective Service System's administrative interest in the preservation of draft cards was wholly unrelated to their use as a means of communication, it is beyond dispute that the interest in regulating the alleged "conduct" of giving or spending money "arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful." 391 U.S., at 382, 88 S.Ct., at 1682.
16
Nor can the Act's contribution and expenditure limitations be sustained, as some of the parties suggest, by reference to the constitutional principles reflected in such decisions as Cox v. Louisiana, supra; Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966); and Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949). Those cases stand for the proposition that the government may adopt reasonable time, place, and manner regulations, which do not discriminate among speakers or ideas, in order to further an important governmental interest unrelated to the restriction of communication. See Erznoznik v. City of Jacksonville, 422 U.S. 205, 209, 95 S.Ct. 2268, 2272, 45 L.Ed.2d 125 (1975). In contrast to O'Brien, where the method of expression was held to be subject to prohibition, Cox, Adderley, and Kovacs involved place or manner restrictions on legitimate modes of expression picketing, parading, demonstrating, and using a soundtruck. The critical difference between this case and those time, place, and manner cases is that the present Act's contribution and expenditure limitations impose direct quantity restrictions on political communication and association by persons, groups, candidates, and political parties in addition to any reasonable time, place, and manner regulations otherwise imposed.17
17
[12] A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.18 This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate's increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech.
18
The expenditure limitations contained in the Act represent substantial rather than merely theoretical restraints on the quantity and diversity of political speech. The $1,000 ceiling on spending "relative to a clearly identified candidate," 18 U.S.C. § 608(e)(1) (1970 ed., Supp. IV), would appear to exclude all citizens and groups except candidates, political parties, and the institutional press19 from any significant use of the most effective modes of communication.20 Although the Act's limitations on expenditures by campaign organizations and political parties provide substantially greater room for discussion and debate, they would have required restrictions in the scope of a number of past congressional and Presidential campaigns21 and would operate to constrain campaigning by candidates who raise sums in excess of the spending ceiling.
19
By contrast with a limitation upon expenditures for political expression, a limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor's ability to engage in free communication. A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support. The quantity of communication by the contributor does not increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing. At most, the size of the contribution provides a very rough index of the intensity of the contributor's support for the candidate.22 A limitation on the amount of money a person may give to a candidate or campaign organization thus involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor's freedom to discuss candidates and issues. While contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor.
20
Given the important role of contributions in financing political campaigns, contribution restrictions could have a severe impact on political dialogue if the limitations prevented candidates and political committees from amassing the resources necessary for effective advocacy. There is no indication, however, that the contribution limitations imposed by the Act would have any dramatic adverse effect on the funding of campaigns and political associations.23 The overall effect of the Act's contribution ceilings is merely to require candidates and political committees to raise funds from a greater number of persons and to compel people who would otherwise contribute amounts greater than the statutory limits to expend such funds on direct political expression, rather than to reduce the total amount of money potentially available to promote political expression.
21
The Act's contribution and expenditure limitations also impinge on protected associational freedoms. Making a contribution, like joining a political party, serves to affiliate a person with a candidate. In addition, it enables like-minded persons to pool their resources in furtherance of common political goals. The Act's contribution ceilings thus limit one important means of associating with a candidate or committee, but leave the contributor free to become a member of any political association and to assist personally in the association's efforts on behalf of candidates. And the Act's contribution limitations permit associations and candidates to aggregate large sums of money to promote effective advocacy. By contrast, the Act's $1,000 limitation on independent expenditures "relative to a clearly identified candidate" precludes most associations from effectively amplifying the voice of their adherents, the original basis for the recognition of First Amendment protection of the freedom of association. See NAACP v. Alabama, 357 U.S., at 460, 78 S.Ct., at 1171. The Act's constraints on the ability of independent associations and candidate campaign organizations to expend resources on political expression "is simultaneously an interference with the freedom of (their) adherents," Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203, 1212, 1 L.Ed.2d 1311 (1957) (plurality opinion). See Cousins v. Wigoda, 419 U.S., at 487-488, 95 S.Ct., at 547-548; NAACP v. Button, 371 U.S. 415, 431, 83 S.Ct. 328, 337, 9 L.Ed.2d 405 (1963).
22
In sum, although the Act's contribution and expenditure limitations both implicate fundamental First Amendment interests, its expenditure ceilings impose significantly more severe restrictions on protected freedoms of political expression and association than do its limitations on financial contributions.
B. Contribution Limitations
23
1. The $1,000 Limitation on Contributions by Individuals and Groups to Candidates and Authorized Campaign Committees
24
Section 608(b) provides, with certain limited exceptions, that "no person shall make contributions to any candidate with respect to any election for Federal office which, in the aggregate, exceed $1,000." The statute defines "person" broadly to include "an individual, partnership, committee, association, corporation, or any other organization or group of persons." § 591(g). The limitation reaches a gift, subscription, loan, advance, deposit of anything of value, or promise to give a contribution, made for the purpose of influencing a primary election, a Presidential preference primary, or a general election for any federal office.24 §§ 591(e)(1), (2). The $1,000 ceiling applies regardless of whether the contribution is given to the candidate, to a committee authorized in writing by the candidate to accept contributions on his behalf, or indirectly via earmarked gifts passed through an intermediary to the candidate. §§ 608(b)(4), (6).25 The restriction applies to aggregate amounts contributed to the candidate for each election with primaries, run-off elections, and general elections counted separately, and all Presidential primaries held in any calendar year treated together as a single election campaign. § 608(b)(5).
25
Appellants contend that the $1,000 contribution ceiling unjustifiably burdens First Amendment freedoms, employs overbroad dollar limits, and discriminates against candidates opposing incumbent officeholders and against minor-party candidates in violation of the Fifth Amendment. We address each of these claims of invalidity in turn.
26
(a)
27
As the general discussion in Part I-A, supra, indicated, the primary First Amendment problem raised by the Act's contribution limitations is their restriction of one aspect of the contributor's freedom of political association. The Court's decisions involving associational freedoms establish that the right of association is a "basic constitutional freedom," Kusper v. Pontikes, 414 U.S., at 57, 94 S.Ct., at 307, that is "closely allied to freedom of speech and a right which, like free speech, lies at the foundation of a free society." Shelton v. Tucker, 364 U.S. 479, 486, 81 S.Ct. 247, 251, 5 L.Ed.2d 231 (1960). See, e. g., Bates v. Little Rock, 361 U.S. 516, 522-523, 80 S.Ct. 412, 416, 4 L.Ed.2d 480 (1960); NAACP v. Alabama, supra, 357 U.S., at 460-461, 78 S.Ct., at 1170-1171; NAACP v. Button, supra, 371 U.S., at 452, 83 S.Ct., at 347 (Harlan, J., dissenting). In view of the fundamental nature of the right to associate, governmental "action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny." NAACP v. Alabama, supra, 357 U.S., at 460-461, 78 S.Ct., at 1171. Yet, it is clear that "(n)either the right to associate nor the right to participate in political activities is absolute." CSC v. Letter Carriers, 413 U.S. 548, 567, 93 S.Ct. 2880, 2891, 37 L.Ed.2d 796 (1973). Even a " 'significant interference' with protected rights of political association" may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms. Cousins v. Wigoda, supra, 419 U.S., at 488, 95 S.Ct., at 548; NAACP v. Button, supra, 371 U.S., at 438, 83 S.Ct., at 340; Shelton v. Tucker, supra, 364 U.S., at 488, 81 S.Ct., at 252.
28
Appellees argue that the Act's restrictions on large campaign contributions are justified by three governmental interests. According to the parties and amici, the primary interest served by the limitations and, indeed, by the Act as a whole, is the prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates' positions and on their actions if elected to office. Two "ancillary" interests underlying the Act are also allegedly furthered by the $1,000 limits on contributions. First, the limits serve to mute the voices of affluent persons and groups in the election process and thereby to equalize the relative ability of all citizens to affect the outcome of elections.26 Second, it is argued, the ceilings may to some extent act as a brake on the skyrocketing cost of political campaigns and thereby serve to open the political system more widely to candidates without access to sources of large amounts of money.27
29
It is unnecessary to look beyond the Act's primary purpose to limit the actuality and appearance of corruption resulting from large individual financial contributions in order to find a constitutionally sufficient justification for the $1,000 contribution limitation. Under a system of private financing of elections, a candidate lacking immense personal or family wealth must depend on financial contributions from others to provide the resources necessary to conduct a successful campaign. The increasing importance of the communications media and sophisticated mass-mailing and polling operations to effective campaigning make the raising of large sums of money an ever more essential ingredient of an effective candidacy. To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined. Although the scope of such pernicious practices can never be reliably ascertained, the deeply disturbing examples surfacing after the 1972 election demonstrate that the problem is not an illusory one.28
30
Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions. In CSC v. Letter Carriers, supra, the Court found that the danger to "fair and effective government" posed by partisan political conduct on the part of federal employees charged with administering the law was a sufficiently important concern to justify broad restrictions on the employees' right of partisan political association. Here, as there, Congress could legitimately conclude that the avoidance of the appearance of improper influence "is also critical . . . if confidence in the system of representative Government is not to be eroded to a disastrous extent." 413 U.S., at 565, 93 S.Ct., at 2890.29
31
Appellants contend that the contribution limitations must be invalidated because bribery laws and narrowly drawn disclosure requirements constitute a less restrictive means of dealing with "proven and suspected quid pro quo arrangements." But laws making criminal the giving and taking of bribes deal with only the most blatant and specific attempts of those with money to influence governmental action. And while disclosure requirements serve the many salutary purposes discussed elsewhere in this opinion,30 Congress was surely entitled to conclude that disclosure was only a partial measure, and that contribution ceilings were a necessary legislative concomitant to deal with the reality or appearance of corruption inherent in a system permitting unlimited financial contributions, even when the identities of the contributors and the amounts of their contributions are fully disclosed.
32
The Act's $1,000 contribution limitation focuses precisely on the problem of large campaign contributions the narrow aspect of political association where the actuality and potential for corruption have been identified while leaving persons free to engage in independent political expression, to associate actively through volunteering their services, and to assist to a limited but nonetheless substantial extent in supporting candidates and committees with financial resources.31 Significantly, the Act's contribution limitations in themselves do not undermine to any material degree the potential for robust and effective discussion of candidates and campaign issues by individual citizens, associations, the institutional press, candidates, and political parties.
33
We find that, under the rigorous standard of review established by our prior decisions, the weighty interests served by restricting the size of financial contributions to political candidates are sufficient to justify the limited effect upon First Amendment freedoms caused by the $1,000 contribution ceiling.
34
(b)
35
Appellants' first overbreadth challenge to the contribution ceilings rests on the proposition that most large contributors do not seek improper influence over a candidate's position or an officeholder's action. Although the truth of that proposition may be assumed, it does not undercut the validity of the $1,000 contribution limitation. Not only is it difficult to isolate suspect contributions, but, more importantly, Congress was justified in concluding that the interest in safeguarding against the appearance of impropriety requires that the opportunity for abuse inherent in the process of raising large monetary contributions be eliminated.
36
A second, related overbreadth claim is that the $1,000 restriction is unrealistically low because much more than that amount would still not be enough to enable an unscrupulous contributor to exercise improper influence over a candidate or officeholder, especially in campaigns for statewide or national office. While the contribution limitation provisions might well have been structured to take account of the graduated expenditure limitations for congressional and Presidential campaigns,32 Congress' failure to engage in such fine tuning does not invalidate the legislation. As the Court of Appeals observed, "(i)f it is satisfied that some limit on contributions is necessary, a court has no scalpel to probe, whether, say, a $2,000 ceiling might not serve as well as $1,000." 171 U.S.App.D.C., at 193, 519 F.2d, at 842. Such distinctions in degree become significant only when they can be said to amount to differences in kind. Compare Kusper v. Pontikes, 414 U.S. 51, 94 S.Ct. 303, 38 L.Ed.2d 260, with Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973).
37
(c)
38
Apart from these First Amendment concerns, appellants argue that the contribution limitations work such an invidious discrimination between incumbents and challengers that the statutory provisions must be declared unconstitutional on their face.33 In considering this contention, it is important at the outset to note that the Act applies the same limitations on contributions to all candidates regardless of their present occupations, ideological views, or party affiliations. Absent record evidence of invidious discrimination against challengers as a class, a court should generally be hesitant to invalidate legislation which on its face imposes evenhanded restrictions. Cf. James v. Valtierra, 402 U.S. 137, 91 S.Ct. 1331, 28 L.Ed.2d 678 (1971).
39
[23] There is no such evidence to support the claim that the contribution limitations in themselves discriminate against major-party challengers to incumbents. Challengers can and often do defeat incumbents in federal elections.34 Major-party challengers in federal elections are usually men and women who are well known and influential in their community or State. Often such challengers are themselves incumbents in important local, state, or federal offices. Statistics in the record indicate that major-party challengers as well as incumbents are capable of raising large sums for campaigning.35 Indeed, a small but nonetheless significant number of challengers have in recent elections outspent their incumbent rivals.36 And, to the extent that incumbents generally are more likely than challengers to attract very large contributions, the Act's $1,000 ceiling has the practical effect of benefiting challengers as a class.37 Contrary to the broad generalization drawn by the appellants, the practical impact of the contribution ceilings in any given election will clearly depend upon the amounts in excess of the ceilings that, for various reasons, the candidates in that election would otherwise have received and the utility of these additional amounts to the candidates. To be sure, the limitations may have a significant effect on particular challengers or incumbents, but the record provides no basis for predicting that such adventitious factors will invariably and invidiously benefit incumbents as a class.38 Since the danger of corruption and the appearance of corruption apply with equal force to challengers and to incumbents, Congress had ample justification for imposing the same fundraising constraints upon both.
40
The charge of discrimination against minor-party and independent candidates is more troubling, but the record provides no basis for concluding that the Act invidiously disadvantages such candidates. As noted above, the Act on its face treats all candidates equally with regard to contribution limitations. And the restriction would appear to benefit minor-party and independent candidates relative to their major-party opponents because major-party candidates receive far more money in large contributions.39 Although there is some force to appellants' response that minor-party candidates are primarily concerned with their ability to amass the resources necessary to reach the electorate rather than with their funding position relative to their major-party opponents, the record is virtually devoid of support for the claim that the $1,000 contribution limitation will have a serious effect on the initiation and scope of minor-party and independent candidacies.40 Moreover, any attempt to exclude minor parties and independents en masse from the Act's contribution limitations overlooks the fact that minor-party candidates may win elective office or have a substantial impact on the outcome of an election.41
41
In view of these considerations, we conclude that the impact of the Act's $1,000 contribution limitation on major-party challengers and on minor-party candidates does not render the provision unconstitutional on its face.
42
2. The $5,000 Limitation on Contributions by Political Committees
43
Section 608(b)(2) permits certain committees, designated as "political committees," to contribute up to $5,000 to any candidate with respect to any election for federal office. In order to qualify for the higher contribution ceiling, a group must have been registered with the Commission as a political committee under 2 U.S.C. § 433 (1970 ed., Supp. IV) for not less than six months, have received contributions from more than 50 persons, and, except for state political party organizations, have contributed to five or more candidates for federal office. Appellants argue that these qualifications unconstitutionally discriminate against ad hoc organizations in favor of established interest groups and impermissibly burden free association. The argument is without merit. Rather than undermining freedom of association, the basic provision enhances the opportunity of bona fide groups to participate in the election process, and the registration, contribution, and candidate conditions serve the permissible purpose of preventing individuals from evading the applicable contribution limitations by labeling themselves committees.
44
3. Limitations on Volunteers' Incidental Expenses
45
The Act excludes from the definition of contribution "the value of services provided without compensation by individuals who volunteer a portion or all of their time on behalf of a candidate or political committee." § 591(e)(5)(A). Certain expenses incurred by persons in providing volunteer services to a candidate are exempt from the $1,000 ceiling only to the extent that they do not exceed $500. These expenses are expressly limited to (1) "the use of real or personal property and the cost of invitations, food, and beverages, voluntarily provided by an individual to a candidate in rendering voluntary personal services on the individual's residential premises for candidate-related activities," § 591(e)(5)(B); (2) "the sale of any food or beverage by a vendor for use in a candidate's campaign at a charge (at least equal to cost but) less than the normal comparable charge," § 591(e)(5)(C); and (3) "any unreimbursed payment for travel expenses made by an individual who on his own behalf volunteers his personal services to a candidate," § 591(e)(5)(D).
46
If, as we have held, the basic contribution limitations are constitutionally valid, then surely these provisions are a constitutionally acceptable accommodation of Congress' valid interest in encouraging citizen participation in political campaigns while continuing to guard against the corrupting potential of large financial contributions to candidates. The expenditure of resources at the candidate's direction for a fundraising event at a volunteer's residence or the provision of in-kind assistance in the form of food or beverages to be resold to raise funds or consumed by the participants in such an event provides material financial assistance to a candidate. The ultimate effect is the same as if the person had contributed the dollar amount to the candidate and the candidate had then used the contribution to pay for the fundraising event or the food. Similarly, travel undertaken as a volunteer at the direction of the candidate or his staff is an expense of the campaign and may properly be viewed as a contribution if the volunteer absorbs the fare. Treating these expenses as contributions when made to the candidate's campaign or at the direction of the candidate or his staff forecloses an avenue of abuse42 without limiting actions voluntarily undertaken by citizens independently of a candidate's campaign.43 4. The $25,000 Limitation on Total Contributions During any Calendar Year
47
In addition to the $1,000 limitation on the nonexempt contributions that an individual may make to a particular candidate for any single election, the Act contains an overall $25,000 limitation on total contributions by an individual during any calendar year. § 608(b)(3). A contribution made in connection with an election is considered, for purposes of this subsection, to be made in the year the election is held. Although the constitutionality of this provision was drawn into question by appellants, it has not been separately addressed at length by the parties. The overall $25,000 ceiling does impose an ultimate restriction upon the number of candidates and committees with which an individual may associate himself by means of financial support. But this quite modest restraint upon protected political activity serves to prevent evasion of the $1,000 contribution limitation by a person who might otherwise contribute massive amounts of money to a particular candidate through the use of unearmarked contributions to political committees likely to contribute to that candidate, or huge contributions to the candidate's political party. The limited, additional restriction on associational freedom imposed by the overall ceiling is thus no more than a corollary of the basic individual contribution limitation that we have found to be constitutionally valid.
C. Expenditure Limitations
48
The Act's expenditure ceilings impose direct and substantial restraints on the quantity of political speech. The most drastic of the limitations restricts individuals and groups, including political parties that fail to place a candidate on the ballot,44 to an expenditure of $1,000 "relative to a clearly identified candidate during a calendar year." § 608(e)(1). Other expenditure ceilings limit spending by candidates, § 608(a), their campaigns, § 608(c), and political parties in connection with election campaigns, § 608(f). It is clear that a primary effect of these expenditure limitations is to restrict the quantity of campaign speech by individuals, groups, and candidates. The restrictions, while neutral as to the ideas expressed, limit political expression "at the core of our electoral process and of the First Amendment freedoms." Williams v. Rhodes, 393 U.S. 23, 32, 89 S.Ct. 5, 11, 21 L.Ed.2d 24 (1968).
49
Section 608(e)(1) provides that "(n)o person may make any expenditure . . . relative to a clearly identified candidate during a calendar year which, when added to all other expenditures made by such person during the year advocating the election or defeat of such candidate, exceeds $1,000."45 The plain effect of § 608(e)(1) is to prohibit all individuals, who are neither candidates nor owners of institutional press facilities, and all groups, except political parties and campaign organizations, from voicing their views "relative to a clearly identified candidate" through means that entail aggregate expenditures of more than $1,000 during a calendar year. The provision, for example, would make it a federal criminal offense for a person or association to place a single one-quarter page advertisement "relative to a clearly identified candidate" in a major metropolitan newspaper.46
50
Before examining the interests advanced in support of § 608(e)(1)'s expenditure ceiling, consideration must be given to appellants' contention that the provision is unconstitutionally vague.47 Close examination of the specificity of the statutory limitation is required where, as here, the legislation imposes criminal penalties in an area permeated by First Amendment interests. See Smith v. Goguen, 415 U.S. 566, 573, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1974); Cramp v. Board of Public Instruction, 368 U.S. 278, 287-288, 82 S.Ct. 275, 280-281, 7 L.Ed.2d 285 (1961); Smith v. California, 361 U.S. 147, 151, 80 S.Ct. 215, 217, 4 L.Ed.2d 205 (1959).48 The test is whether the language of § 608(e)(1) affords the "(p)recision of regulation (that) 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.
51
The key operative language of the provision limits "any expenditure . . . relative to a clearly identified candidate." Although "expenditure," "clearly identified," and "candidate" are defined in the Act, there is no definition clarifying what expenditures are "relative to" a candidate. The use of so indefinite a phrase as "relative to" a candidate fails to clearly mark the boundary between permissible and impermissible speech, unless other portions of § 608(e)(1) make sufficiently explicit the range of covered by the limitation. The section prohibits "any expenditure . . . relative to a clearly identified candidate during a calendar year which, when added to all other expenditures . . . advocating the election or defeat of such candidate, exceeds, $1,000." (Emphasis added.) This context clearly permits, if indeed it does not require, the phrase "relative to" a candidate to be read to mean "advocating the election or defeat of" a candidate.49
52
But while such a construction of § 608(e)(1) refocuses the vagueness question, the Court of Appeals was mistaken in thinking that this construction eliminates the problem of unconstitutional vagueness altogether. 171 U.S.App.D.C., at 204, 519 F.2d, at 853. For the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and governmental actions. Not only do candidates campaign on the basis of their positions on various public issues, but campaigns themselves generate issues of public interest.50 In an analogous context, this Court in Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed.2d 430 (1945), observed:
53
"(W)hether words intended and designed to fall short of invitation would miss that mark is a question both of intent and of effect. No speaker, in such circumstances, safely could assume that anything he might say upon the general subject would not be understood by some as an invitation. In short, the supposedly clear-cut distinction between discussion, laudation, general advocacy, and solicitation puts the speaker in these circumstances wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning.
54
"Such a distinction offers no security for free discussion. In these conditions it blankets with uncertainty whatever may be said. It compels the speaker to hedge and trim." Id., at 535, 65 S.Ct., at 325.
55
See also United States v. Auto. Workers, 352 U.S. 567, 595-596, 77 S.Ct. 529, 543-544, 1 L.Ed.2d 563 (1957) (Douglas, J., dissenting); Gitlow v. New York, 268 U.S. 652, 673, 45 S.Ct. 625, 632, 69 L.Ed. 1138 (1925) (Holmes, J., dissenting).
56
The constitutional deficiencies described in Thomas v. Collins can be avoided only by reading § 608(e)(1) as limited to communications that include explicit words of advocacy of election or defeat of a candidate, much as the definition of "clearly identified" in § 608(e)(2) requires that an explicit and unambiguous reference to the candidate appear as part of the communication.51 This is the reading of the provision suggested by the non-governmental appellees in arguing that "(f)unds spent to propagate one's views on issues without expressly calling for a candidate's election or defeat are thus not covered." We agree that in order to preserve the provision against invalidation on vagueness grounds, § 608(e)(1) must be construed to apply only to expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office.52
57
We turn then to the basic First Amendment question whether § 608(e)(1), even as thus narrowly and explicitly construed, impermissibly burdens the constitutional right of free expression. The Court of Appeals summarily held the provision constitutionally valid on the ground that "section 608(e) is a loophole-closing provision only" that is necessary to prevent circumvention of the contribution limitations. 171 U.S.App.D.C., at 204, 519 F.2d, at 853. We cannot agree.
58
The discussion in Part I-A, supra, explains why the Act's expenditure limitations impose far greater restraints on the freedom of speech and association than do its contribution limitations. The markedly greater burden on basic freedoms caused by § 608(e)(1) thus cannot be sustained simply by invoking the interest in maximizing the effectiveness of the less intrusive contribution limitations. Rather, the constitutionality of § 608(e)(1) turns on whether the governmental interests advanced in its support satisfy the exacting scrutiny applicable to limitations on core First Amendment rights of political expression.
59
We find that the governmental interest in preventing corruption and the appearance of corruption is inadequate to justify § 608(e)(1)'s ceiling on independent expenditures. First, assuming, arguendo, that large independent expenditures pose the same dangers of actual or apparent quid pro quo arrangements as do large contributions, § 608(e)(1) does not provide an answer that sufficiently relates to the elimination of those dangers. Unlike the contribution limitations' total ban on the giving of large amounts of money to candidates, § 608(e)(1) prevents only some large expenditures. So long as persons and groups eschew expenditures that in express terms advocate the election or defeat of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views. The exacting interpretation of the statutory language necessary to avoid unconstitutional vagueness thus undermines the limitation's effectiveness as a loophole-closing provision by facilitating circumvention by those seeking to exert improper influence upon a candidate or office-holder. It would naively underestimate the ingenuity and resourcefulness of persons and groups desiring to buy influence to believe that they would have much difficulty devising expenditures that skirted the restriction on express advocacy of election or defeat but nevertheless benefited the candidate's campaign. Yet no substantial societal interest would be served by a loophole-closing provision designed to check corruption that permitted unscrupulous persons and organizations to expend unlimited sums of money in order to obtain improper influence over candidates for elective office. Cf. Mills v. Alabama, 384 U.S., at 220, 86 S.Ct., at 1437.
60
Second, quite apart from the shortcomings of § 608(e) (1) in preventing any abuses generated by large independent expenditures, the independent advocacy restricted by the provision does not presently appear to pose dangers of real or apparent corruption comparable to those identified with large campaign contributions. The parties defending § 608(e)(1) contend that it is necessary to prevent would-be contributors from avoiding the contribution limitations by the simple expedient of paying directly for media advertisements or for other portions of the candidate's campaign activities. They argue that expenditures controlled by or coordinated with the candidate and his campaign might well have virtually the same value to the candidate as a contribution and would pose similar dangers of abuse. Yet such controlled or coordinated expenditures are treated as contributions rather than expenditures under the Act.53 Section 608(b)'s contribution ceilings rather than § 608(e)(1)'s independent expenditure limitation prevent attempts to circumvent the Act through prearranged or coordinated expenditures amounting to disguised contributions. By contrast, § 608(e)(1) limits expenditures for express advocacy of candidates made totally independently of the candidate and his campaign. Unlike contributions, such independent expenditures may well provide little assistance to the candidate's campaign and indeed may prove counterproductive. The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate. Rather than preventing circumvention of the contribution limitations, § 608(e)(1) severely restricts all independent advocacy despite its substantially diminished potential for abuse.
61
While the independent expenditure ceiling thus fails to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process, it heavily burdens core First Amendment expression. For the First Amendment right to " 'speak one's mind . . . on all public institutions' " includes the right to engage in " 'vigorous advocacy' no less than 'abstract discussion.' " New York Times Co. v. Sullivan, 376 U.S., at 269, 84 S.Ct., at 721, quoting Bridges v. California, 314 U.S. 252, 270, 62 S.Ct. 190, 197, 86 L.Ed. 192 (1941), and NAACP v. Button, 371 U.S., at 429, 83 S.Ct., at 335. Advocacy of the election or defeat of candidates for federal office is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy of the passage or defeat of legislation.54
62
It is argued, however, that the ancillary governmental interest in equalizing the relative ability of individuals and groups to influence the outcome of elections serves to justify the limitation on express advocacy of the election or defeat of candidates imposed by § 608(e)(1)'s expenditure ceiling. But the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed "to secure 'the widest possible dissemination of information from diverse and antagonistic sources,' " and " 'to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.' " New York Times Co. v. Sullivan, supra, 376 U.S., at 266, 269, 84 S.Ct., at 718, quoting Associated Press v. United States, 326 U.S. 1, 20, 65 S.Ct. 1416, 1424, 89 L.Ed. 2013 (1945), and Roth v. United States, 354 U.S., at 484, 77 S.Ct., at 1308. The First Amendment's protection against governmental abridgment of free expression cannot properly be made to depend on a person's financial ability to engage in public discussion. Cf. Eastern R. Conf. v. Noerr Motors, 365 U.S. 127, 139, 81 S.Ct. 523, 530, 5 L.Ed.2d 464 (1961).55
63
The Court's decisions in Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966), and Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974), held that legislative restrictions on advocacy of the election or defeat of political candidates are wholly at odds with the guarantees of the First Amendment. In Mills, the Court addressed the question whether "a State, consistently with the United States Constitution, can make it a crime for the editor of a daily newspaper to write and publish an editorial on election day urging people to vote a certain way on issues submitted to them." 384 U.S., at 215, 86 S.Ct., at 1435 (emphasis in original). We held that "no test of reasonableness can save (such) a state law from invalidation as a violation of the First Amendment." Id., at 220, 86 S.Ct., at 1437. Yet the prohibition of election day-editorials invalidated in Mills is clearly a lesser intrusion on constitutional freedom than a $1,000 limitation on the amount of money any person or association can spend during an entire election year in advocating the election or defeat of a candidate for public office. More recently in Tornillo, the Court held that Florida could not constitutionally require a newspaper to make space available for a political candidate to reply to its criticism. Yet under the Florida statute, every newspaper was free to criticize any candidate as much as it pleased so long as it undertook the modest burden of printing his reply. See 418 U.S., at 256-257, 94 S.Ct., at 2838-2839. The legislative restraint involved in Tornillo thus also pales in comparison to the limitations imposed by § 608(e) (1).56
64
For the reasons stated, we conclude that § 608(e)(1)'s independent expenditure limitation is unconstitutional under the First Amendment.
65
2. Limitation on Expenditures by Candidates from Personal or Family Resources
66
The Act also sets limits on expenditures by a candidate "from his personal funds, or the personal funds of his immediate family, in connection with his campaigns during any calendar year." § 608(a)(1). These ceilings vary from $50,000 for Presidential or Vice Presidential candidates to $35,000 for senatorial candidates, and $25,000 for most candidates for the House of Representatives.57
67
[41] The ceiling on personal expenditures by candidates on their own behalf, like the limitations on independent expenditures contained in § 608(e)(1), imposes a substantial restraint on the ability of persons to engage in protected First Amendment expression.58 The candidate, no less than any other person, has a First Amendment right to engage in the discussion of public issues and vigorously and tirelessly to advocate his own election and the election of other candidates. Indeed, it is of particular importance that candidates have the unfettered opportunity to make their views known so that the electorate may intelligently evaluate the candidates' personal qualities and their positions on vital public issues before choosing among them on election day. Mr. Justice Brandeis' observation that in our country "public discussion is a political duty," Whitney v. California, 274 U.S. 357, 375, 47 S.Ct. 641, 648, 71 L.Ed. 1095 (1927) (concurring opinion), applies with special force to candidates for public office. Section 608(a)'s ceiling on personal expenditures by a candidate in furtherance of his own candidacy thus clearly and directly interferes with constitutionally protected freedoms.
68
The primary governmental interest served by the Act the prevention of actual and apparent corruption of the political process does not support the limitation on the candidate's expenditure of his own personal funds. As the Court of Appeals concluded: "Manifestly, the core problem of avoiding undisclosed and undue influence on candidates from outside interests has lesser application when the monies involved come from the candidate himself or from his immediate family." 171 U.S.App.D.C., at 206, 519 F.2d, at 855. Indeed, the use of personal funds reduces the candidate's dependence on outside contributions and thereby counteracts the coercive pressures and attendant risks of abuse to which the Act's contribution limitations are directed.59
69
[44,45] The ancillary interest in equalizing the relative financial resources of candidates competing for elective office, therefore, provides the sole relevant rationale for § 608(a)'s expenditure ceiling. That interest is clearly not sufficient to justify the provision's infringement of fundamental First Amendment rights. First, the limitation may fail to promote financial equality among candidates. A candidate who spends less of his personal resources on his campaign may nonetheless outspend his rival as a result of more successful fundraising efforts. Indeed, a candidate's personal wealth may impede his efforts to persuade others that he needs their financial contributions or volunteer efforts to conduct an effective campaign. Second, and more fundamentally, the First Amendment simply cannot tolerate § 608(a)'s restriction upon the freedom of a candidate to speak without legislative limit on behalf of his own candidacy. We therefore hold that § 608(a)'s restriction on a candidate's personal expenditures is unconstitutional.
3. Limitations on Campaign Expenditures
70
Section 608(c) places limitations on overall campaign expenditures by candidates seeking nomination for election and election to federal office.60 Presidential candidates may spend $10,000,000 in seeking nomination for office and an additional $20,000,000 in the general election campaign. §§ 608(c)(1)(A), (B).61 The ceiling on senatorial campaigns is pegged to the size of the voting-age population of the State with minimum dollar amounts applicable to campaigns in States with small populations. In senatorial primary elections, the limit is the greater of eight cents multiplied by the voting-age population or $100,000, and in the general election the limit is increased to 12 cents multiplied by the voting-age population or $150,000. §§ 608(c)(1)(C), (D). The Act imposes blanket $70,000 limitations on both primary campaigns and general election campaigns for the House of Representatives with the exception that the senatorial ceiling applies to campaigns in States entitled to only one Representative. §§ 608(c)(1)(C)-(E). These ceilings are to be adjusted upwards at the beginning of each calendar year by the average percentage rise in the consumer price index for the 12 preceding months. § 608(d).62
71
No governmental interest that has been suggested is sufficient to justify the restriction on the quantity of political expression imposed by § 608(c)'s campaign expenditure limitations. The major evil associated with rapidly increasing campaign expenditures is the danger of candidate dependence on large contributions. The interest in alleviating the corrupting influence of large contributions is served by the Act's contribution limitations and disclosure provisions rather than by § 608(c)'s campaign expenditure ceilings. The Court of Appeals' assertion that the expenditure restrictions are necessary to reduce the incentive to circumvent direct contribution limits is not persuasive. See 171 U.S. App.D.C., at 210, 519 F.2d, at 859. There is no indication that the substantial criminal penalties for violating the contribution ceilings combined with the political repercussion of such violations will be insufficient to police the contribution provisions. Extensive reporting, auditing, and disclosure requirements applicable to both contributions and expenditures by political campaigns are designed to facilitate the detection of illegal contributions. Moreover, as the Court of Appeals noted, the Act permits an officeholder or successful candidate to retain contributions in excess of the expenditure ceiling and to use these funds for "any other lawful purpose." 2 U.S.C. § 439a (1970 ed., Supp. IV). This provision undercuts whatever marginal role the expenditure limitations might otherwise play in enforcing the contribution ceilings.
72
The interest in equalizing the financial resources of candidates competing for federal office is no more convincing a justification for restricting the scope of federal election campaigns. Given the limitation on the size of outside contributions, the financial resources available to a candidate's campaign, like the number of volunteers recruited, will normally vary with the size and intensity of the candidate's support.63 There is nothing invidious, improper, or unhealthy in permitting such funds to be spent to carry the candidate's message to the electorate.64 Moreover, the equalization of permissible campaign expenditures might serve not to equalize the opportunities of all candidates, but to handicap a candidate who lacked substantial name recognition or exposure of his views before the start of the campaign.
73
The campaign expenditure ceilings appear to be designed primarily to serve the governmental interests in reducing the allegedly skyrocketing costs of political campaigns. Appellees and the Court of Appeals stressed statistics indicating that spending for federal election campaigns increased almost 300% Between 1952 and 1972 in comparison with a 57.6% Rise in the consumer price index during the same period. Appellants respond that during these years the rise in campaign spending lagged behind the percentage increase in total expenditures for commercial advertising and the size of the gross national product. In any event, the mere growth in the cost of federal election campaigns in and of itself provides no basis for governmental restrictions on the quantity of campaign spending and the resulting limitation on the scope of federal campaigns. The First Amendment denies government the power to determine that spending to promote one's political views is wasteful, excessive, or unwise. In the free society ordained by our Constitution it is not the government, but the people individually as citizens and candidates and collectively as associations and political committees who must retain control over the quantity and range of debate on public issues in a political campaign.65
74
[52] For these reasons we hold that § 608(c) is constitutionally invalid.66
75
In sum, the provisions of the Act that impose a $1,000 limitation on contributions to a single candidate, § 608(b)(1), a $5,000 limitation on contributions by a political committee to a single candidate, § 608(b)(2), and a $25,000 limitation on total contributions by an individual during any calendar year, § 608(b)(3), are constitutionally valid. These limitations, along with the disclosure provisions, constitute the Act's primary weapons against the reality or appearance of improper influence stemming from the dependence of candidates on large campaign contributions. The contribution ceilings thus serve the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion. By contrast, the First Amendment requires the invalidation of the Act's independent expenditure ceiling, § 608(e)(1), its limitation on a candidate's expenditures from his own personal funds, § 608(a), and its ceilings on overall campaign expenditures, § 608(c). These provisions place substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate.67
II. REPORTING AND DISCLOSURE REQUIREMENTS
76
Unlike the limitations on contributions and expenditures imposed by 18 U.S.C. § 608 (1970 ed., Supp. IV), the disclosure requirements of the Act, 2 U.S.C. § 431 et seq. (1970 ed., Supp. IV),68 are not challenged by appellants as per se unconstitutional restrictions on the exercise of First Amendment freedoms of speech and association.69 Indeed, appellants argue that "narrowly drawn disclosure requirements are the proper solution to virtually all of the evils Congress sought to remedy." Brief for Appellants 171. The particular requirements embodied in the Act are attacked as overbroad both in their application to minor-party and independent candidates and in their extension to contributions as small as $11 or $101. Appellants also challenge the provision for disclosure by those who make independent contributions and expenditures, § 434(e). The Court of Appeals found no constitutional infirmities in the provisions challenged here.70 We affirm the determination on overbreadth and hold that § 434(e), if narrowly construed, also is within constitutional bounds.
77
The first federal disclosure law was enacted in 1910. Act of June 25, 1910, c. 392, 36 Stat. 822. It required political committees, defined as national committees and national congressional campaign committees of parties, and organizations operating to influence congressional elections in two or more States, to disclose names of all contributors of $100 or more; identification of recipients of expenditures of $10 or more was also required. §§ 1, 5-6, 36 Stat. 822-824. Annual expenditures of $50 or more "for the purpose of influencing or controlling, in two or more States, the result of" a congressional election had to be reported independently if they were not made through a political committee. § 7, 36 Stat. 824. In 1911 the Act was revised to include prenomination transactions such as those involved in conventions and primary campaigns. Act of Aug. 19, 1911, § 2, 37 Stat. 26. See United States v. Auto Workers, 352 U.S., at 575-576, 77 S.Ct., at 533-534.
78
Disclosure requirements were broadened in the Federal Corrupt Practices Act of 1925 (Title III of the Act of Feb. 28, 1925), 43 Stat. 1070. That Act required political committees, defined as organizations that accept contributions or make expenditures "for the purpose of influencing or attempting to influence" the Presidential or Vice Presidential elections (a) in two or more States or (b) as a subsidiary of a national committee, § 302(c), 43 Stat. 1070, to report total contributions and expenditures, including the names and addresses of contributors of $100 or more and recipients of $10 or more in a calendar year. § 305(a), 43 Stat. 1071. The Act was upheld against a challenge that it infringed upon the prerogatives of the States in Burroughs v. United States, 290 U.S. 534, 54 S.Ct. 287, 78 L.Ed. 484 (1934). The Court held that it was within the power of Congress "to pass appropriate legislation to safeguard (a Presidential) election from the improper use of money to influence the result." Id., at 545, 54 S.Ct., at 290. Although the disclosure requirements were widely circumvented,71 no further attempts were made to tighten them until 1960, when the Senate passed a bill that would have closed some existing loopholes. S. 2436, 106 Cong.Rec. 1193. The attempt aborted because no similar effort was made in the House.
79
The Act presently under review replaced all prior disclosure laws. Its primary disclosure provisions impose reporting obligations on "political committees" and candidates. "Political committee" is defined in § 431(d) as a group of persons that receives"contributions" or makes "expenditures" of over $1,000 in a calendar year. "Contributions" and "expenditures" are defined in lengthy parallel provisions similar to those in Title 18, discussed above.72 Both definitions focus on the use of money or other objects of value "for the purpose of . . . influencing" the nomination or election of any person to federal office. § 431(e)(1), (f)(1).
80
Each political committee is required to register with the Commission, § 433, and to keep detailed records of both contributions and expenditures, § 432(c), (d). These records must include the name and address of everyone making a contribution in excess of $10, along with the date and amount of the contribution. If a person's contributions aggregate more than $100, his occupation and principal place of business are also to be included. § 432(c) (2). These files are subject to periodic audits and field investigations by the Commission. § 438(a)(8).
81
Each committee and each candidate also is required to file quarterly reports. § 434(a). The reports are to contain detailed financial information, including the full name, mailing address, occupation, and principal place of business of each person who has contributed over $100 in a calendar year, as well as the amount and date of the contributions. § 434(b). They are to be made available by the Commission "for public inspection and copying." § 438(a)(4). Every candidate for federal office is required to designate a "principal campaign committee," which is to receive reports of contributions and expenditures made on the candidate's behalf from other political committees and to compile and file these reports, together with its own statements, with the Commission. § 432(f).
82
Every individual or group, other than a political committee or candidate, who makes "contributions" or "expenditures" of over $100 in a calendar year "other than by contribution to a political committee or candidate" is required to file a statement with the Commission. § 434(e). Any violation of these record-keeping and reporting provisions is punishable by a fine of not more than $1,000 or a prison term of not more than a year, or both. § 441(a).
A. General Principles
83
Unlike the overall limitations on contributions and expenditures, the disclosure requirements impose no ceiling on campaign-related activities. But we have repeatedly found that compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment. E. g., Gibson v. Florida Legislative Comm., 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); 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).
84
We long have recognized that significant encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot be justified by a mere showing of some legitimate governmental interest. Since NAACP v. Alabama we have required that the subordinating interests of the State must survive exacting scrutiny.73 We also have insisted that there be a "relevant correlation"74 or "substantial relation"75 between the governmental interest and the information required to be disclosed. See Pollard v. Roberts, 283 F.Supp. 248, 257 (ED Ark.) (three-judge court), aff'd, 393 U.S. 14, 89 S.Ct. 47, 21 L.Ed.2d 14 (1968) (per curiam). This type of scrutiny is necessary even if any deterrent effect on the exercise of First Amendment rights arises, not through direct government action, but indirectly as an unintended but inevitable result of the government's conduct in requiring disclosure. NAACP v. Alabama, supra, 357 U.S., at 461, 78 S.Ct., at 1171. Cf. Kusper v. Pontikes, 414 U.S., at 57-58, 94 S.Ct., at 307-308.
85
Appellees argue that the disclosure requirements of the Act differ significantly from those at issue in NAACP v. Alabama and its progeny because the Act only requires disclosure of the names of contributors and does not compel political organizations to submit the names of their members.76
86
As we have seen, group association is protected because it enhances "(e) ffective advocacy." NAACP v. Alabama, supra, 357 U.S., at 460, 78 S.Ct., at 1170. The right to join together "for the advancement of beliefs and ideas," ibid., is diluted if it does not include the right to pool money through contributions, for funds are often essential if "advocacy" is to be truly or optimally "effective." Moreover, the invasion of privacy of belief may be as great when the information sought concerns the giving and spending of money as when it concerns the joining of organizations, for "(f)inancial transactions can reveal much about a person's activities, associations, and beliefs." California Bankers Ass'n v. Shultz, 416 U.S. 21, 78-79, 94 S.Ct. 1494, 1526, 39 L.Ed.2d 812 (1974) (Powell, J., concurring). Our past decisions have not drawn fine lines between contributors and members but have treated them interchangeably. In Bates, for example, we applied the principles of NAACP v. Alabama and reversed convictions for failure to comply with a city ordinance that required the disclosure of "dues, assessments, and contributions paid, by whom and when paid." 361 U.S., at 518, 80 S.Ct., at 414. See also United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770 (1953) (setting aside a contempt conviction of an organization official who refused to disclose names of those who made bulk purchases of books sold by the organization).
87
The strict test established by NAACP v. Alabama is necessary because compelled disclosure has the potential for substantially infringing the exercise of First Amendment rights. But we have acknowledged that there are governmental interests sufficiently important to outweigh the possibility of infringement, particularly when the "free functioning of our national institutions" is involved. Communist Party v. Subversive Activities Control Bd., 367 U.S. 1, 97, 81 S.Ct. 1357, 1411, 6 L.Ed.2d 625 (1961).
88
The governmental interests sought to be vindicated by the disclosure requirements are of this magnitude. They fall into three categories. First, disclosure provides the electorate with information "as to where political campaign money comes from and how it is spent by the candidate"77 in order to aid the voters in evaluating those who seek federal office. It allows voters to place each candidate in the political spectrum more precisely than is often possible solely on the basis of party labels and campaign speeches. The sources of a candidate's financial support also alert the voter to the interests to which a candidate is most likely to be responsive and thus facilitate predictions of future performance in office.
89
Second, disclosure requirements deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity.78 This exposure may discourage those who would use money for improper purposes either before or after the election. A public armed with information about a candidate's most generous supporters is better able to detect any post-election special favors that may be given in return.79 And, as we recognized in Burroughs v. United States, 290 U.S., at 548, 54 S.Ct., at 291, Congress could reasonably conclude that full disclosure during an election campaign tends "to prevent the corrupt use of money to affect elections." In enacting these requirements it may have been mindful of Mr. Justice Brandeis' advice:
90
"Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman."80
91
Third, and not least significant, recordkeeping, reporting, and disclosure requirements are an essential means of gathering the data necessary to detect violations of the contribution limitations described above.
92
The disclosure requirements, as a general matter, directly serve substantial governmental interests. In determining whether these interests are sufficient to justify the requirements we must look to the extent of the burden that they place on individual rights.
93
It is undoubtedly true that public disclosure of contributions to candidates and political parties will deter some individuals who otherwise might contribute. In some instances, disclosure may even expose contributors to harassment or retaliation. These are not insignificant burdens on individual rights, and they must be weighed carefully against the interests which Congress has sought to promote by this legislation. In this process, we note and agree with appellants' concession81 that disclosure requirements certainly in most applications appear to be the least restrictive means of curbing the evils of campaign ignorance and corruption that Congress found to exist.82 Appellants argue, however, that the balance tips against disclosure when it is required of contributors to certain parties and candidates. We turn now to this contention.
94
B. Application to Minor Parties and Independents
95
Appellants contend that the Act's requirements are overbroad insofar as they apply to contributions to minor parties and independent candidates because the governmental interest in this information is minimal and the danger of significant infringement on First Amendment rights is greatly increased.
1. Requisite Factual Showing
96
In NAACP v.Alabama the organization had "made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members (had) exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility," 357 U.S., at 462, 78 S.Ct., at 1172, and the State was unable to show that the disclosure it sought had a "substantial bearing" on the issues it sought to clarify, id., at 464, 78 S.Ct. at 1172. Under those circumstances, the Court held that "whatever interest the State may have in (disclosure) has not been shown to be sufficient to overcome petitioner's constitutional objections." Id., at 465, 78 S.Ct., at 1173.
97
The Court of Appeals rejected appellants' suggestion that this case fits into the NAACP v. Alabama mold. It concluded that substantial governmental interests in "informing the electorate and preventing the corruption of the political process" were furthered by requiring disclosure of minor parties and independent candidates, 171 U.S.App.D.C., at 218, 519 F.2d, at 867, and therefore found no "tenable rationale for assuming that the public interest in minority party disclosure of contributions above a reasonable cut-off point is uniformly outweighed by potential contributors' associational rights," id., at 219, 519 F.2d, at 868. The court left open the question of the application of the disclosure requirements to candidates (and parties) who could demonstrate injury of the sort at stake in NAACP v. Alabama. No record of harassment on a similar scale was found in this case.83 We agree with the Court of Appeals' conclusion that NAACP v. Alabama is inapposite where, as here, any serious infringement on First Amendment rights brought about by the compelled disclosure of contributors is highly speculative.
98
It is true that the governmental interest in disclosure is diminished when the contribution in question is made to a minor party with little chance of winning an election. As minor parties usually represent definite and publicized viewpoints, there may be less need to inform the voters of the interests that specific candidates represent. Major parties encompass candidates of greater diversity. In many situations the label "Republican" or "Democrat" tells a voter little. The candidate who bears it may be supported by funds from the far right, the far left, or any place in between on the political spectrum. It is less likely that a candidate of, say, the Socialist Labor Party will represent interests that cannot be discerned from the party's ideological position.
99
The Government's interest in deterring the "buying" of elections and the undue influence of large contributors on officeholders also may be reduced where contributions to a minor party or an independent candidate are concerned, for it is less likely that the candidate will be victorious. But a minor party sometimes can play a significant role in an election. Even when a minor-party candidate has little or no chance of winning, he may be encouraged by major-party interests in order to divert votes from other major-party contenders.84
100
We are not unmindful that the damage done by disclosure to the associational interests of the minor parties and their members and to supporters of independents could be significant. These movements are less likely to have a sound financial base and thus are more vulnerable to falloffs in contributions. In some instances fears of reprisal may deter contributions to the point where the movement cannot survive. The public interest also suffers if that result comes to pass, for there is a consequent reduction in the free circulation of ideas both within85 and without86 the political arena.
101
There could well be a case, similar to those before the Court in NAACP v. Alabama and Bates, where the threat to the exercise of First Amendment rights is so serious and the state interest furthered by disclosure so insubstantial that the Act's requirements cannot be constitutionally applied.87 But no appellant in this case has tendered record evidence of the sort proffered in NAACP v. Alabama. Instead, appellants primarily rely on "the clearly articulated fears of individuals, well experienced in the political process." Brief for Appellants 173. At best they offer the testimony of several minor-party officials that one or two persons refused to make contributions because of the possibility of disclosure.88 On this record, the substantial public interest in disclosure identified by the legislative history of this Act outweighs the harm generally alleged.
102
Appellants agree that "the record here does not reflect the kind of focused and insistent harassment of contributors and members that existed in the NAACP cases." Ibid. They argue, however, that a blanket exemption for minor parties is necessary lest irreparable injury be done before the required evidence can be gathered.
103
Those parties that would be sufficiently "minor" to be exempted from the requirements of § 434 could be defined, appellants suggest, along the lines used for public-financing purposes, see Part III-A, infra, as those who received less than 25% Of the vote in past elections. Appellants do not argue that this line is constitutionally required. They suggest as an alternative defining "minor parties" as those that do not qualify for automatic ballot access under state law. Presumably, other criteria, such as current political strength (measured by polls or petition), age, or degree of organization, could also be used.89
104
The difficulty with these suggestions is that they reflect only a party's past or present political strength and that is only one of the factors that must be considered. Some of the criteria are not precisely indicative of even that factor. Age,90 or past political success, for instance, may typically be associated with parties that have a high probability of success. But not all long-established parties are winners some are consistent losers and a new party may garner a great deal of support if it can associate itself with an issue that has captured the public's imagination. None of the criteria suggested is precisely related to the other critical factor that must be considered, the possibility that disclosure will impinge upon protected associational activity.
105
An opinion dissenting in part from the Court of Appeals' decision concedes that no one line is "constitutionally required."91 It argues, however, that a flat exemption for minor parties must be carved out, even along arbitrary lines, if groups that would suffer impermissibly from disclosure are to be given any real protection. An approach that requires minor parties to submit evidence that the disclosure requirements cannot constitutionally be applied to them offers only an illusory safeguard, the argument goes, because the "evils" of "chill and harassment . . . are largely incapable of formal proof."92 This dissent expressed its concern that a minor party, particularly a new party, may never be able to prove a substantial threat of harassment, however real that threat may be, because it would be required to come forward with witnesses who are too fearful to contribute but not too fearful to testify about their fear. A strict requirement that chill and harassment be directly attributable to the specific disclosure from which the exemption is sought would make the task even more difficult.
106
We recognize that unduly strict requirements of proof could impose a heavy burden, but it does not follow that a blanket exemption for minor parties is necessary. Minor parties must be allowed sufficient flexibility in the proof of injury to assure a fair consideration of their claim. The evidence offered need show only a reasonable probability that the compelled disclosure of a party's contributors' names will subject them to threats, harassment, or reprisals from either Government officials or private parties. The proof may include, for example, specific evidence of past or present harassment of members due to their associational ties, or of harassment directed against the organization itself. A pattern of threats or specific manifestations of public hostility may be sufficient. New parties that have no history upon which to draw may be able to offer evidence of reprisals and threats directed against individuals or organizations holding similar views.
107
Where it exists the type of chill and harassment identified in NAACP v. Alabama can be shown. We cannot assume that courts will be insensitive to similar showings when made in future cases. We therefore conclude that a blanket exemption is not required.
C. Section 434(e)
108
Section 434(e) requires "(e)very person (other than a political committee or candidate) who makes contributions or expenditures" aggregating over $100 in a calendar year "other than by contribution to a political committee or candidate" to file a statement with the Commission.93 Unlike the other disclosure provisions, this section does not seek the contribution list of any association. Instead, it requires direct disclosure of what an individual or group contributes or spends.
109
In considering this provision we must apply the same strict standard of scrutiny, for the right of associational privacy developed in NAACP v. Alabama derives from the rights of the organization's members to advocate their personal points of view in the most effective way. 357 U.S., at 458, 460, 78 S.Ct., at 1169-1170. See also NAACP v. Button, 371 U.S., at 429-431, 83 S.Ct., at 335-337; Sweezy v. New Hampshire, 354 U.S., at 250, 77 S.Ct., at 1211.
110
Appellants attack § 434(e) as a direct intrusion on privacy of belief, in violation of Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960), and as imposing "very real, practical burdens . . . certain to deter individuals from making expenditures for their independent political speech" analogous to those held to be impermissible in Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945).
1. The Role of § 434(e)
111
The Court of Appeals upheld § 434(e) as necessary to enforce the independent-expenditure ceiling imposed by 18 U.S.C. § 608(e)(1) (1970 ed., Supp. IV). It said:
112
"If . . . Congress has both the authority and a compelling interest to regulate independent expenditures under section 608(e), surely it can require that there be disclosure to prevent misuse of the spending channel." 171 U.S.App.D.C., at 220, 519 F.2d, at 869.
113
We have found that § 608(e)(1) unconstitutionally in fringes upon First Amendment rights.94 If the sole function of § 434(e) were to aid in the enforcement of that provision, it would no longer serve any governmental purpose.
114
But the two provisions are not so intimately tied. The legislative history on the function of § 434(e) is bare, but it was clearly intended to stand independently of § 608(e)(1). It was enacted with the general disclosure provisions in 1971 as part of the original Act,95 while § 608(e)(1) was part of the 1974 amendments.96 Like the other disclosure provisions, § 434(e) could play a role in the enforcement of the expanded contribution and expenditure limitations included in the 1974 amendments, but it also has independent functions. Section 434(e) is part of Congress' effort to achieve "total disclosure" by reaching "every kind of political activity"97 in order to insure that the voters are fully informed and to achieve through publicity the maximum deterrence to corruption and undue influence possible. The provision is responsive to the legitimate fear that efforts would be made, as they had been in the past,98 to avoid the disclosure requirements by routing financial support of candidates through avenues not explicitly covered by the general provisions of the Act.
115
In its effort to be all-inclusive, however, the provision raises serious problems of vagueness, particularly treacherous where, as here, the violation of its terms carries criminal penalties99 and fear of incurring these sanctions may deter those who seek to exercise protected First Amendment rights.
116
Section 434(e) applies to "(e)very person . . . who makes contributions or expenditures." "Contributions" and "expenditures" are defined in parallel provisions in terms of the use of money or other valuable assets "for the purpose of . . . influencing" the nomination or election of candidates for federal office.100 It is the ambiguity of this phrase that poses constitutional problems.
117
Due process requires that a criminal statute provide adequate notice to a person of ordinary intelligence that his contemplated conduct is illegal, for "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). See also Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). Where First Amendment rights are involved, an even "greater degree of specificity" is required. Smith v. Goguen, 415 U.S., at 573, 94 S.Ct., at 1247. See Grayned v. City of Rockford, 408 U.S. 104, 109, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222 (1972); Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951).
118
There is no legislative history to guide us in determining the scope of the critical phrase "for the purpose of . . . influencing." It appears to have been adopted without comment from earlier disclosure Acts.101 Congress "has voiced its wishes in (most) muted strains," leaving us to draw upon "those common-sense assumptions that must be made in determining direction without a compass." Rosado v. Wyman, 397 U.S. 397, 412, 90 S.Ct. 1207, 1218, 25 L.Ed.2d 442 (1970). Where the constitutional requirement of definiteness is at stake, we have the further obligation to construe the statute, if that can be done consistent with the legislature's purpose, to avoid the shoals of vagueness. United States v. Harriss, supra, 347 U.S., at 618, 74 S.Ct., at 812; United States v. Rumely, 345 U.S., at 45, 73 S.Ct., at 545.
119
In enacting the legislation under review Congress addressed broadly the problem of political campaign financing. It wished to promote full disclosure of campaign-oriented spending to insure both the reality and the appearance of the purity and openness of the federal election process.102 Our task is to construe "for the purpose of . . . influencing," incorporated in § 434(e) through the definitions of "contributions" and "expenditures," in a manner that precisely furthers this goal.
120
In Part I we discussed what constituted a "contribution" for purposes of the contribution limitations set forth in 18 U.S.C. § 608(b) (1970 ed., Supp. IV).103 We construed that term to include not only contributions made directly or indirectly to a candidate, political party, or campaign committee, and contributions made to other organizations or individuals but earmarked for political purposes, but also all expenditures placed in cooperation with or with the consent of a candidate, his agents, or an authorized committee of the candidate. The definition of "contribution" in § 431(e) for disclosure purposes parallels the definition in Title 18 almost word for word, and we construe the former provision as we have the latter. So defined, "contributions" have a sufficiently close relationship to the goals of the Act, for they are connected with a candidate or his campaign.
121
When we attempt to define "expenditure" in a similarly narrow way we encounter line-drawing problems of the sort we faced in 18 U.S.C. § 608(e)(1) (1970 ed., Supp. IV). Although the phrase, "for the purpose of . . . influencing" an election or nomination, differs from the language used in § 608(e)(1), it shares the same potential for encompassing both issue discussion and advocacy of a political result.104 The general requirement that "political committees" and candidates disclose their expenditures could raise similar vagueness problems, for "political committee" is defined only in terms of amount of annual "contributions" and "expenditures,"105 and could be interpreted to reach groups engaged purely in issue discussion. The lower courts have construed the words "political committee" more narrowly.106 To fulfill the purposes of the Act they need only encompass organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate. Expenditures of candidates and of "political committees" so construed can be assumed to fall within the core area sought to be addressed by Congress. They are, by definition, campaign related.
122
But when the maker of the expenditure is not within these categories when it is an individual other than a candidate or a group other than a "political committee"1075 —the relation of the information sought to the purposes of the Act may be too remote. To insure that the reach of § 434(e) is not impermissibly broad, we construe "expenditure" for purposes of that section in the same way we construed the terms of § 608(e) to reach only funds used for communications that expressly advocate108 the election or defeat of a clearly identified candidate. This reading is directed precisely to that spending that is unambiguously related to the campaign of a particular federal candidate.
123
In summary, § 434(e), as construed, imposes independent reporting requirements on individuals and groups that are not candidates or political committees only in the following circumstances: (1) when they make contributions earmarked for political purposes or authorized or requested by a candidate or his agent, to some person other than a candidate or political committee, and (2) when they make expenditures for communications that expressly advocate the election or defeat of a clearly identified candidate.
124
Unlike 18 U.S.C. § 608(e)(1) (1970 ed., Supp. IV), § 434(e), as construed, bears a sufficient relationship to a substantial governmental interest. As narrowed, § 434(e), like § 608(e)(1), does not reach all partisan discussion for it only requires disclosure of those expenditures that expressly advocate a particular election result. This might have been fatal if the only purpose of § 434(e) were to stem corruption or its appearance by closing a loophole in the general disclosure requirements. But the disclosure provisions, including § 434(e), serve another, informational interest, and even as construed § 434(e) increases the fund of information concerning those who support the candidates. It goes beyond the general disclosure requirements to shed the light of publicity on spending that is unambiguously campaign related but would not otherwise be reported because it takes the form of independent expenditures or of contributions to an individual or group not itself required to report the names of its contributors. By the same token, it is not fatal that § 434(e) encompasses purely independent expenditures uncoordinated with a particular candidate or his agent. The corruption potential of these expenditures may be significantly different, but the informational interest can be as strong as it is in coordinated spending, for disclosure helps voters to define more of the candidates' constituencies.
125
Section 434(e), as we have construed it, does not contain the infirmities of the provisions before the Court in Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960), and Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945). The ordinance found wanting in Talley forbade all distribution of handbills that did not contain the name of the printer, author, or manufacturer, and the name of the distributor. The city urged that the ordinance was aimed at identifying those responsible for fraud, false advertising, and libel, but the Court found that it was "in no manner so limited." 362 U.S., at 64, 80 S.Ct., at 538. Here, as we have seen, the disclosure requirement is narrowly limited to those situations where the information sought has a substantial connection with the governmental interests sought to be advanced. Thomas held unconstitutional a prior restraint in the form of a registration requirement for labor organizers. The Court found the State's interest insufficient to justify the restrictive effect of the statute. The burden imposed by § 434(e) is no prior restraint, but a reasonable and minimally restrictive method of furthering First Amendment values by opening the basic processes of our federal election system to public view.109
D. Thresholds
126
Appellants' third contention, based on alleged overbreadth, is that the monetary thresholds in the record-keeping and reporting provisions lack a substantial nexus with the claimed governmental interests, for the amounts involved are too low even to attract the attention of the candidate, much less have a corrupting influence.
127
The provisions contain two thresholds. Records are to be kept by political committees of the names and addresses of those who make contributions in excess of $10, § 432(c)(2), and these records are subject to Commission audit, § 438(a)(8). If a person's contributions to a committee or candidate aggregate more than $100, his name and address, as well as his occupation and principal place of business, are to be included in reports filed by committees and candidates with the Commission, § 434(b)(2), and made available for public inspection, § 438(a)(4).
128
The Court of Appeals rejected appellants' contention that these thresholds are unconstitutional. It found the challenge on First Amendment grounds to the $10 threshold to be premature, for it could "discern no basis in the statute for authorizing disclosure outside the Commission . . ., and hence no substantial 'inhibitory effect' operating upon" appellants. 171 U.S.App.D.C., at 216, 519 F.2d, at 865. The $100 threshold was found to be within the "reasonable latitude" given the legislature "as to where to draw the line." Ibid. We agree.
129
The $10 and $100 thresholds are indeed low. Contributors of relatively small amounts are likely to be especially sensitive to recording or disclosure of their political preferences. These strict requirements may well discourage participation by some citizens in the political process, a result that Congress hardly could have intended. Indeed, there is little in the legislative history to indicate that Congress focused carefully on the appropriate level at which to require recording and disclosure. Rather, it seems merely to have adopted the thresholds existing in similar disclosure laws since 1910.110 But we cannot require Congress to establish that it has chosen the highest reasonable threshold. The line is necessarily a judgmental decision, best left in the context of this complex legislation to congressional discretion. We cannot say, on this bare record, that the limits designated are wholly without rationality.111
130
We are mindful that disclosure serves informational functions, as well as the prevention of corruption and the enforcement of the contribution limitations. Congress is not required to set a threshold that is tailored only to the latter goals. In addition, the enforcement goal can never be well served if the threshold is so high that disclosure becomes equivalent to admitting violation of the contribution limitations.
131
The $10 recordkeeping threshold, in a somewhat similar fashion, facilitates the enforcement of the disclosure provisions by making it relatively difficult to aggregate secret contributions in amounts that surpass the $100 limit. We agree with the Court of Appeals that there is no warrant for assuming that public disclosure of contributions between $10 and $100 is authorized by the Act. Accordingly, we do not reach the question whether information concerning gifts of this size can be made available to the public without trespassing impermissibly on First Amendment rights. Cf. California Bankers Ass'n v. Shultz, 416 U.S., at 56-57, 94 S.Ct., at 1515.112
132
In summary, we find no constitutional infirmities in the recordkeeping reporting, and disclosure provisions of the Act.113
133
III. PUBLIC FINANCING OF PRESIDENTIAL ELECTION CAMPAIGNS
134
A series of statutes114 for the public financing of Presidential election campaigns produced the scheme now found in § 6096 and Subtitle H of the Internal Revenue Code of 1954, 26 U.S.C. §§ 6096, 9001-9012, 9031-9042 (1970 ed., Supp. IV).115 Both the District Court, 401 F.Supp. 1235, and the Court of Appeals, 171 U.S.App.D.C., at 229-238, 519 F.2d, at 878-887, sustained Subtitle H against a constitutional attack.116 Appellants renew their challenge here, contending that the legislation violates the First and Fifth Amendments. We find no merit in their claims and affirm.
A. Summary of Subtitle H
135
Section 9006 establishes a Presidential Election Campaign Fund (Fund), financed from general revenues in the aggregate amount designated by individual taxpayers, under § 6096, who on their income tax returns may authorize payment to the Fund of one dollar of their tax liability in the case of an individual return or two dollars in the case of a joint return. The Fund consists of three separate accounts to finance (1) party nominating conventions, § 9008(a), (2) general election campaigns, § 9006(a), and (3) primary campaigns, § 9037(a).117
136
Chapter 95 of Title 26, which concerns financing of party nominating conventions and general election campaigns, distinguishes among "major," "minor," and "new" parties. A major party is defined as a party whose candidate for President in the most recent election received 25% Or more of the popular vote. § 9002(6). A minor party is defined as a party whose candidate received at least 5% But less than 25% Of the vote at the most recent election. § 9002(7). All other parties are new parties, § 9002(8), including both newly created parties and those receiving less than 5% Of the vote in the last election.118
137
Major parties are entitled to $2,000,000 to defray their national committee Presidential nominating convention expenses, must limit total expenditures to that amount, § 9008(d),119 and may not use any of this money to benefit a particular candidate or delegate, § 9008(c). A minor party receives a portion of the major-party entitlement determined by the ratio of the votes received by the party's candidate in the last election to the average of the votes received by the major parties' candidates. § 9008(b)(2). The amounts given to the parties and the expenditure limit are adjusted for inflation, using 1974 as the base year. § 9008(b)(5). No financing is provided for new parties, nor is there any express provision for financing independent candidates or parties not holding a convention.
138
For expenses in the general election campaign, § 9004(a)(1) entitles each major-party candidate to $20,000,000.120 This amount is also adjusted for inflation. See § 9004(a)(1). To be eligible for funds the candidate121 must pledge not to incur expenses in excess of the entitlement under § 9004(a) (1) and not to accept private contributions except to the extent that the fund is insufficient to provide the full entitlement. § 9003(b). Minor-party candidates are also entitled to funding, again based on the ratio of the vote received by the party's candidate in the preceding election to the average of the major-party candidates. § 9004(a)(2)(A). Minor-party candidates must certify that they will not incur campaign expenses in excess of the major-party entitlement and that they will accept private contributions only to the extent needed to make up the difference between that amount and the public funding grant. § 9003(c). New-party candidates receive no money prior to the general election, but any candidate receiving 5% Or more of the popular vote in the election is entitled to post-election payments according to the formula applicable to minor-party candidates. § 9004(a)(3). Similarly, minor-party candidates are entitled to post-election funds if they receive a greater percentage of the average major-party vote than their party's candidate did in the preceding election; the amount of such payments is the difference between the entitlement based on the preceding election and that based on the actual vote in the current election. § 9004(a)(3). A further eligibility requirement for minor- and new-party candidates is that the candidate's name must appear on the ballot, or electors pledged to the candidate must be on the ballot, in at least 10 States. § 9002(2)(B).
139
Chapter 96 establishes a third account in the Fund, the Presidential Primary Matching Payment Account. § 9037(a). This funding is intended to aid campaigns by candidates seeking Presidential nomination "by a political party," § 9033(b)(2), in "primary elections," § 9032(7).122 The threshold eligibility requirement is that the candidate raise at least $5,000 in each of 20 States, counting only the first $250 from each person contributing to the candidate. § 9033(b)(3), (4). In addition, the candidate must agree to abide by the spending limits in § 9035. See § 9033(b)(1).123 Funding is provided according to a matching formula: each qualified candidate is entitled to a sum equal to the total private contributions received, disregarding contributions from any person to the extent that total contributions to the candidate by that person exceed $250. § 9034(a). Payments to any candidate under Chapter 96 may not exceed 50% Of the overall expenditure ceiling accepted by the candidate. § 9034(b).
B. Constitutionality of Subtitle H
140
Appellants argue that Subtitle H is invalid (1) as "contrary to the 'general welfare,' " Art. I, § 8(2) because any scheme of public financing of election campaigns is inconsistent with the First Amendment, and (3) because Subtitle H invidiously discriminates against certain interests in violation of the Due Process Clause of the Fifth Amendment. We find no merit in these contentions.
141
Appellants' "general welfare" contention erroneously treats the General Welfare Clause as a limitation upon congressional power. It is rather a grant of power, the scope of which is quite expansive, particularly in view of the enlargement of power by the Necessary and Proper Clause. McCulloch v. Maryland, 4 Wheat. 316, 420, 4 L.Ed. 579 (1819). Congress has power to regulate Presidential elections and primaries, United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941); Burroughs v. United States, 290 U.S. 534, 54 S.Ct. 287, 78 L.Ed. 484 (1934); and public financing of Presidential elections as a means to reform the electoral process was clearly a choice within the granted power. It is for Congress to decide which expenditures will promote the general welfare: "(T)he power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution." United States v. Butler, 297 U.S. 1, 66, 56 S.Ct. 312, 319, 80 L.Ed. 477 (1936). See Helvering v. Davis, 301 U.S. 619, 640-641, 57 S.Ct. 904, 908-909, 81 L.Ed. 1307 (1937). Any limitations upon the exercise of that granted power must be found elsewhere in the Constitution. In this case, Congress was legislating for the "general welfare" to reduce the deleterious influence of large contributions on our political process, to facilitate communication by candidates with the electorate, and to free candidates from the rigors of fundraising. See S.Rep.No.93-689, pp. 1-10 (1974). Whether the chosen means appear "bad," "unwise," or "unworkable" to us is irrelevant; Congress has concluded that the means are "necessary and proper" to promote the general welfare, and we thus decline to find this legislation without the grant of power in Art. I, § 8.
142
Appellants' challenge to the dollar check-off provision (§ 6096) fails for the same reason. They maintain that Congress is required to permit taxpayers to designate particular candidates or parties as recipients of their money. But the appropriation to the Fund in § 9006 is like any other appropriation from the general revenue except that its amount is determined by reference to the aggregate of the one- and two-dollar authorization on taxpayers' income tax returns. This detail does not constitute the appropriation any less an appropriation by Congress.124 The fallacy of appellants' argument is therefore apparents every appropriation made by Congress uses public money in a manner to which some taxpayers object.125
143
Appellants next argue that "by analogy" to the Religion Clauses of the First Amendment public financing of election campaigns, however meritorious, violates the First Amendment. We have, of course, held that the Religion Clauses "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" require Congress, and the States through the Fourteenth Amendment, to remain neutral in matters of religion. E. g., Abington School Dist. v. Schempp, 374 U.S. 203, 222-226, 83 S.Ct. 1560, 1571-1573, 10 L.Ed.2d 844 (1963). The government may not aid one religion to the detriment of others or impose a burden on one religion that is not imposed on others, and may not even aid all religions. E. g., Everson v. Board of Education, 330 U.S. 1, 15-16, 67 S.Ct. 504, 511-512, 91 L.Ed. 711 (1947). See Kurland, Of Church and State and the Supreme Court, 29 U.Chi.L.Rev. 1, 96 (1961). But the analogy is patently inapplicable to our issue here. Although "Congress shall make no law . . . abridging the freedom of speech, or of the press," Subtitle H is a congressional effort, not to abridge, restrict, or censor speech, but rather to use public money to facilitate and enlarge discussion and participation in the electoral process, goals vital to a self-governing people.126 Thus, Subtitle H furthers, not abridges, pertinent First Amendment values.127 Appellants argue, however, that as constructed public financing invidiously discriminates in violation of the Fifth Amendment. We turn therefore to that argument.
144
Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment. Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct. 1225, 1228, 43 L.Ed.2d 514 (1975), and cases cited. In several situations concerning the electoral process, the principle has been developed that restrictions on access to the electoral process must survive exacting scrutiny. The restriction can be sustained only if it furthers a "vital" governmental interest, American Party of Texas v. White, 415 U.S. 767, 780-781, 94 S.Ct. 1296, 1305-1306, 39 L.Ed.2d 744 (1974), that is "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." Lubin v. Panish, 415 U.S. 709, 716, 94 S.Ct. 1315, 1320, 39 L.Ed.2d 702 (1974). See American Party of Texas v. White, supra, 415 U.S., at 780, 94 S.Ct., at 1305; Storer v. Brown, 415 U.S. 724, 729-730, 94 S.Ct. 1274, 1278-1279, 39 L.Ed.2d 714 (1974). These cases, however, dealt primarily with state laws requiring a candidate to satisfy certain requirements in order to have his name appear on the ballot. These were, of course, direct burdens not only on the candidate's ability to run for office but also on the voter's ability to voice preferences regarding representative government and contemporary issues. In contrast, the denial of public financing to some Presidential candidates is not restrictive of voters' rights and less restrictive of candidates'.128 Subtitle H does not prevent any candidate from getting on the ballot or any voter from casting a vote for the candidate of his choice; the inability, if any, of minor-party candidates to wage effective campaigns will derive not from lack of public funding but from their inability to raise private contributions. Any disadvantage suffered by operation of the eligibility formulae under Subtitle H is thus limited to the claimed denial of the enhancement of opportunity to communicate with the electorate that the formulae afford eligible candidates. But eligible candidates suffer a countervailing denial. As we more fully develop later, acceptance of public financing entails voluntary acceptance of an expenditure ceiling. Noneligible candidates are not subject to that limitation.129 Accordingly, we conclude that public financing is generally less restrictive of access to the electoral process than the ballot-access regulations dealt with in prior cases.130 In any event, Congress enacted Subtitle H in furtherance of sufficiently important governmental interests and has not unfairly or unnecessarily burdened the political opportunity of any party or candidate.
145
It cannot be gainsaid that public financing as a means of eliminating the improper influence of large private contributions furthers a significant governmental interest. S.Rep.No.93-689, pp. 4-5 (1974). In addition, the limits on contributions necessarily increase the burden of fundraising, and Congress properly regarded public financing as an appropriate means of relieving major-party Presidential candidates from the rigors of soliciting private contributions. See id., at 5. The States have also been held to have important interests in limiting places on the ballot to those candidates who demonstrate substantial popular support. E. g., Storer v. Brown, supra, at 736, 94 S.Ct., at 1282; Lubin v. Panish, supra, 415 U.S., at 718-719, 94 S.Ct., at 1321; Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 1976, 29 L.Ed.2d 554 (1971); Williams v. Rhodes, 393 U.S., at 31-33, 89 S.Ct., at 10-11. Congress' interest in not funding hopeless candidacies with large sums of public money, S.Rep.No.93-689, supra, at 7, necessarily justifies the withholding of public assistance from candidates without significant public support. Thus, Congress may legitimately require "some preliminary showing of a significant modicum of support," Jenness v. Fortson, supra, 403 U.S., at 442, 91 S.Ct., at 1976, as an eligibility requirement for public funds. This requirement also serves the important public interest against providing artificial incentives to "splintered parties and unrestrained factionalism." Storer v. Brown, supra, 415 U.S., at 736, 94 S.Ct., at 1282; S.Rep.No.93-689, supra, at 8; H.R.Rep.No.93-1239, p. 13 (1974). Cf. Bullock v. Carter, 405 U.S. 134, 145, 92 S.Ct. 849, 856, 31 L.Ed.2d 92 (1972).
146
At the same time Congress recognized the constitutional restraints against inhibition of the present opportunity of minor parties to become major political entities if they obtain widespread support. S.Rep.No.93-689, supra, at 8-10; H.R.Rep.No.93-1239, supra, at 13. As the Court of Appeals said, "provisions for public funding of Presidential campaigns . . . could operate to give an unfair advantage to established parties, thus reducing, to the nation's detriment, . . . the 'potential fluidity of American political life.' " 171 U.S.App.D.C., at 231, 519 F.2d, at 880, quoting from Jenness v. Fortson, supra, 403 U.S., at 439, 91 S.Ct., at 1974.
1. General Election Campaign Financing
147
Appellants insist that Chapter 95 falls short of the constitutional requirement in that its provisions supply larger, and equal, sums to candidates of major parties, use prior vote levels as the sole criterion for pre-election funding, limit new-party candidates to post-election funds, and deny any funds to candidates of parties receiving less than 5% Of the vote. These provisions, it is argued, are fatal to the validity of the scheme, because they work invidious discrimination against minor and new parties in violation of the Fifth Amendment. We disagree.131
148
As conceded by appellants, the Constitution does not require Congress to treat all declared candidates the same for public financing purposes. As we said in Jenness v. Fortson, "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. . . . 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." 403 U.S., at 441-442, 91 S.Ct., at 1976. Since the Presidential elections of 1856 and 1860, when the Whigs were replaced as a major party by the Republicans, no third party has posed a credible threat to the two major parties in Presidential elections.132 Third parties have been completely incapable of matching the major parties' ability to raise money and win elections. Congress was, of course, aware of this fact of American life, and thus was justified in providing both major parties full funding and all other parties only a percentage of the major-party entitlement.133 Identical treatment of all parties, on the other hand, "would not only make it easy to raid the United States Treasury, it would also artificially foster the proliferation of splinter parties." 171 U.S.App.D.C., at 232, 519 F.2d, at 881. The Constitution does not require the Government to "finance the efforts of every nascent political group," American Party of Texas v. White, 415 U.S., at 794, 94 S.Ct., at 1312, merely because Congress chose to finance the efforts of the major parties.
149
Furthermore, appellants have made no showing that the election funding plan disadvantages nonmajor parties by operating to reduce their strength below that attained without any public financing. First, such parties are free to raise money from private sources,134 and by our holding today new parties are freed from any expenditure limits, although admittedly those limits may be a largely academic matter to them. But since any major-party candidate accepting public financing of a campaign voluntarily assents to a spending ceiling, other candidates will be able to spend more in relation to the major-party candidates. The relative position of minor parties that do qualify to receive some public funds because they received 5% Of the vote in the previous Presidential election is also enhanced. Public funding for candidates of major parties is intended as a substitute for private contributions; but for minor-party candidates135 such assistance may be viewed as a supplement to private contributions since these candidates may continue to solicit private funds up to the applicable spending limit. Thus, we conclude that the general election funding system does not work an invidious discrimination against candidates of nonmajor parties.
150
Appellants challenge reliance on the vote in past elections as the basis for determining eligibility. That challenge is foreclosed, however, by our holding in Jenness v. Fortson, 403 U.S., at 439-440, 91 S.Ct., at 1974-1975, that popular vote totals in the last election are a proper measure of public support. And Congress was not obliged to select instead from among appellants' suggested alternatives. Congress could properly regard the means chosen as preferable, since the alternative of petition drives presents cost and administrative problems in validating signatures, and the alternative of opinion polls might be thought inappropriate since it would involve a Government agency in the business of certifying polls or conducting its own investigation of support for various candidates, in addition to serious problems with reliability.136
151
Appellants next argue, relying on the ballot-access decisions of this Court, that the absence of any alternative means of obtaining pre-election funding renders the scheme unjustifiably restrictive of minority political interests. Appellants' reliance on the ballot-access decisions is misplaced. To be sure, the regulation sustained in Jenness v. Fortson, for example, incorporated alternative means of qualifying for the ballot, 403 U.S., at 440, 91 S.Ct., at 1975, and the lack of an alternative was a defect in the scheme struck down in Lubin v. Panish, 415 U.S., at 718, 94 S.Ct., at 1320. To suggest, however, that the constitutionality of Subtitle H therefore hinges solely on whether some alternative is afforded overlooks the rationale of the operative constitutional principles. Our decisions finding a need for an alternative means turn on the nature and extent of the burden imposed in the absence of available alternatives. We have earlier stated our view that Chapter 95 is far less burdensome upon and restrictive of constitutional rights than the regulations involved in the ballot-access cases. See, supra, at 94-95. Moreover, expenditure limits for major parties and candidates may well improve the chances of nonmajor parties and their candidates to receive funds and increase their spending. Any risk of harm to minority interests is speculative due to our present lack of knowledge of the practical effects of public financing and cannot overcome the force of the governmental interests against use of public money to foster frivolous candidacies, create a system of splintered parties, and encourage unrestrained factionalism.
152
Appellants' reliance on the alternative-means analyses of the ballot-access cases generally fails to recognize a significant distinction from the instant case. The primary goal of all candidates is to carry on a successful campaign by communicating to the voters persuasive reasons for electing them. In some of the ballot-access cases the States afforded candidates alternative means for qualifying for the ballot, a step in any campaign that, with rare exceptions, is essential to successful effort. Chapter 95 concededly provides only one method of obtaining pre-election financing; such funding is, however, not as necessary as being on the ballot. See n. 128, supra. Plainly, campaigns can be successfully carried out by means other than public financing; they have been up to this date, and this avenue is still open to all candidates. And, after all, the important achievements of minority political groups in furthering the development of American democracy137 were accomplished without the help of public funds. Thus, the limited participation or nonparticipation of nonmajor parties or candidates in public funding does not unconstitutionally disadvantage them.
153
Of course, nonmajor parties and their candidates may qualify for post-election participation in public funding and in that sense the claimed discrimination is not total. Appellants contend, however, that the benefit of any such participation is illusory due to § 9004(c), which bars the use of the money for any purpose other than paying campaign expenses or repaying loans that had been used to defray such expenses. The only meaningful use for post-election funds is thus to repay loans; but loans, except from national banks, are"contributions" subject to the general limitations on contributions, 18 U.S.C. § 591(e) (1970 ed., Supp. IV). Further, they argue, loans are not readily available to nonmajor parties or candidates before elections to finance their campaigns. Availability of post-election funds therefore assertedly gives them nothing. But in the nature of things the willingness of lenders to make loans will depend upon the pre-election probability that the candidate and his party will attract 5% Or more of the voters. When a reasonable prospect of such support appears, the party and candidate may be an acceptable loan risk since the prospect of post-election participation in public funding will be good.138
154
[92,93] Finally, appellants challenge the validity of the 5% Threshold requirement for general election funding. They argue that, since most state regulations governing ballot access have threshold requirements well below 5%, and because in their view the 5% Requirement here is actually stricter than that upheld in Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971),139 the requirement is unreasonable. We have already concluded that the restriction under Chapter 95 is generally less burdensome than ballot-access regulations. Supra, at 94-95. Further, the Georgia provision sustained in Jenness required the candidate to obtain the signatures of 5% Of all eligible voters, without regard to party. To be sure, the public funding formula does not permit anyone who voted for another party in the last election to be part of a candidate's 5%. But under Chapter 95 a Presidential candidate needs only 5% Or more of the actual vote, not the larger universe of eligible voters. As a result, we cannot say that Chapter 95 is numerically more, or less, restrictive than the regulation in Jenness. In any event, the choice of the percentage requirement that best accommodates the competing interests involved was for Congress to make. See Louisville Gas Co. v. Coleman, 277 U.S. 32, 41, 48 S.Ct. 423, 426, 72 L.Ed. 770 (1928) (Holmes, J., dissenting); n. 111, supra. Without any doubt a range of formulations would sufficiently protect the public fisc and not foster factionalism, and would also recognize the public interest in the fluidity of our political affairs. We cannot say that Congress' choice falls without the permissible range.140
155
The foregoing analysis and reasoning sustaining general election funding apply in large part to convention funding under Chapter 95 and suffice to support our rejection of appellants' challenge to these provisions. Funding of party conventions has increasingly been derived from large private contributions, see H.R.Rep. No. 93-1239, p. 14 (1974), and the governmental interest in eliminating this reliance is as vital as in the case of private contributions to individual candidates. The expenditure limitations on major parties participating in public financing enhance the ability of nonmajor parties to increase their spending relative to the major parties; further, in soliciting private contributions to finance conventions, parties are not subject to the $1,000 contribution limit pertaining to candidates.141 We therefore conclude that appellants' constitutional challenge to the provisions for funding nominating conventions must also be rejected.
156
Appellants' final challenge is to the constitutionality of Chapter 96, which provides funding of primary campaigns. They contend that these provisions are constitutionally invalid (1) because they do not provide funds for candidates not running in party primaries142 and (2) because the eligibility formula actually increases the influence of money on the electoral process. In not providing assistance to candidates who do not enter party primaries, Congress has merely chosen to limit at this time the reach of the reforms encompassed in Chapter 96. This Congress could do without constituting the reforms a constitutionally invidious discrimination. The governing principle was stated in Katzenbach v. Morgan, 384 U.S. 641, 657, 86 S.Ct. 1717, 1727, 16 L.Ed.2d 828 (1966):
157
"(I)n deciding the constitutional propriety of the limitations in such a reform measure we are guided by the familiar principles that a 'statute is not invalid under the Constitution because it might have gone farther than it did,' Roschen v. Ward, 279 U.S. 337, 339, 49 S.Ct. 336, 73 L.Ed. 722, that a legislature need not 'strike at all evils at the same time,' Semler v. Dental Examiners, 294 U.S. 608, 610, 55 S.Ct. 570, 79 L.Ed. 1086, and that 'reform may take 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 Co., 348 U.S. 483, 489, 75 S.Ct. 461, 99 L.Ed. 563."143
158
The choice to limit matching funds to candidates running in primaries may reflect that concern about large private contributions to candidates centered on primary races and that there is no historical evidence of similar abuses involving contributions to candidates who engage in petition drives to qualify for state ballots. Moreover, assistance to candidates and nonmajor parties forced to resort to petition drives to gain ballot access implicates the policies against fostering frivolous candidacies, creating a system of splintered parties, and encouraging unrestrained factionalism.
159
The eligibility requirements in Chapter 96 are surely not an unreasonable way to measure popular support for a candidate, accomplishing the objective of limiting subsidization to those candidates with a substantial chance of being nominated. Counting only the first $250 of each contribution for eligibility purposes requires candidates to solicit smaller contributions from numerous people. Requiring the money to come from citizens of a minimum number of States eliminates candidates whose appeal is limited geographically; a President is elected not by popular vote, but by winning the popular vote in enough States to have a majority in the Electoral College.144
160
[98] We also reject as without merit appellants' argument that the matching formula favors wealthy voters and candidates. The thrust of the legislation is to reduce financial barriers145 and to enhance the importance of smaller contributions.146 Some candidates undoubtedly could raise large sums of money and thus have little need for public funds, but candidates with lesser fundraising capabilities will gain substantial benefits from matching funds. In addition, one eligibility requirement for matching funds is acceptance of an expenditure ceiling, and candidates with little fundraising ability will be able to increase their spending relative to candidates capable of raising large amounts in private funds.
161
For the reasons stated, we reject appellants' claims that Subtitle H is facially unconstitutional.147
C. Severability
162
The only remaining issue is whether our holdings invalidating 18 U.S.C. §§ 608(a), (c), and (e)(1) (1970 ed., Supp. IV) require the conclusion that Subtitle H is unconstitutional. There is, of course, a relationship between the spending limits in § 608(c) and the public financing provisions; the expenditure limits accepted by a candidate to be eligible for public funding are identical to the limits in § 608(c). But we have no difficulty in concluding that Subtitle H is severable. "Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law." Champlin Refining Co. v. Corporation Commission, 286 U.S. 210, 234, 52 S.Ct. 559, 565, 76 L.Ed. 1062 (1932). Our discussion of "what is left" leaves no doubt that the value of public financing is not dependent on the existence of a generally applicable expenditure limit. We therefore hold Subtitle H severable from those portions of the legislation today held constitutionally infirm.
IV. THE FEDERAL ELECTION COMMISSION
163
The 1974 amendments to the Act create an eight-member Federal Election Commission (Commission), and vest in it primary and substantial responsibility for administering and enforcing the Act. The question that we address in this portion of the opinion is whether, in view of the manner in which a majority of its members are appointed, the Commission may under the Constitution exercise the powers conferred upon it. We find it unnecessary to parse the complex statutory provisions in order to sketch the full sweep of the Commission's authority. It will suffice for present purposes to describe what appear to be representative examples of its various powers.
164
Chapter 14 of Title 2148 makes the Commission the principal repository of the numerous reports and statements which are required by that chapter to be filed by those engaging in the regulated political activities. Its duties under § 438(a) with respect to these reports and statements include filing and indexing, making them available for public inspection, preservation, and auditing and field investigations. It is directed to "serve as a national clearinghouse for information in respect to the administration of elections." § 438(b).
165
Beyond these recordkeeping, disclosure, and investigative functions, however, the Commission is given extensive rulemaking and adjudicative powers. Its duty under § 438(a)(10) is "to prescribe suitable rules and regulations to carry out the provisions of . . . chapter (14)." Under § 437d(a)(8) the Commission is empowered to make such rules "as are necessary to carry out the provisions of this Act."149 Section 437d(a)(9) authorizes it to "formulate general policy with respect to the administration of this Act" and enumerated sections of Title 18's Criminal Code,150 as to all of which provisions the Commission "has primary jurisdiction with respect to (their) civil enforcement." § 437c(b).151 The Commission is authorized under § 437f(a) to render advisory opinions with respect to activities possibly violating the Act, the Title 18 sections, or the campaign funding provisions of Title 26,152 the effect of which is that "(n)otwithstanding any other provision of law, any person with respect to whom an advisory opinion is rendered . . . who acts in good faith in accordance with the provisions and findings (thereof) shall be presumed to be in compliance with the (statutory provision) with respect to which such advisory opinion is rendered." § 437f(b). In the course of administering the provisions for Presidential campaign financing, the Commission may authorize convention expenditures which exceed the statutory limits. 26 U.S.C. § 9008(d)(3) (1970 ed., Supp. IV).
166
The Commission's enforcement power is both direct and wide ranging. It may institute a civil action for (i) injunctive or other relief against "any acts or practices which constitute or will constitute a violation of this Act," § 437g(a)(5); (ii) declaratory or injunctive relief "as may be appropriate to implement or con(s)true any provisions" of Chapter 95 of Title 26, governing administration of funds for Presidential election campaigns and national party conventions, 26 U.S.C. § 9011(b)(1) (1970 ed., Supp. IV); and (iii) "such injunctive relief as is appropriate to implement any provision" of Chapter 96 of Title 26, governing the payment of matching funds for Presidential primary campaigns, 26 U.S.C. § 9040(c) (1970 ed., Supp. IV). If after the Commission's post-disbursement audit of candidates receiving payments under Chapter 95 or 96 it finds an overpayment, it is empowered to seek repayment of all funds due the Secretary of the Treasury. 26 U.S.C. §§ 9010(b), 9040(b) (1970 ed., Supp. IV). In no respect do the foregoing civil actions require the concurrence of or participation by the Attorney General; conversely, the decision not to seek judicial relief in the above respects would appear to rest solely with the Commission.153 With respect to the referenced Title 18 sections, § 437g(a)(7) provides that if, after notice and opportunity for a hearing before it, the Commission finds an actual or threatened criminal violation, the Attorney General "upon request by the Commission . . . shall institute a civil action for relief." Finally, as "(a)dditional enforcement authority," § 456(a) authorizes the Commission, after notice and opportunity for hearing, to make "a finding that a person . . . while a candidate for Federal office, failed to file" a required report of contributions or expenditures. If that finding is made within the applicable limitations period for prosecutions, the candidate is thereby "disqualified from becoming a candidate in any future election for Federal office for a period of time beginning on the date of such finding and ending one year after the expiration of the term of the Federal office for which such person was a candidate."154
167
The body in which this authority is reposed consists of eight members.155 The Secretary of the Senate and the Clerk of the House of Representatives are ex officio members of the Commission without the right to vote. Two members are appointed by the President pro tempore of the Senate "upon the recommendations of the majority leader of the Senate and the minority leader of the Senate."156 Two more are to be appointed by the Speaker of the House of Representatives, likewise upon the recommendations of its respective majority and minority leaders. The remaining two members are appointed by the President. Each of the six voting members of the Commission must be confirmed by the majority of both Houses of Congress, and each of the three appointing authorities is forbidden to choose both of their appointees from the same political party.
A. Ripeness
168
Appellants argue that given the Commission's extensive powers the method of choosing its members under § 437c(a)(1) runs afoul of the separation of powers embedded in the Constitution, and urge that as presently constituted the Commission's "existence be held unconstitutional by this Court." Before embarking on this or any related inquiry, however, we must decide whether these issues are properly before us. Because of the Court of Appeals' emphasis on lack of "ripeness" of the issue relating to the method of appointment of the members of the Commission, we find it necessary to focus particularly on that consideration in this section of our opinion.
169
We have recently recognized the distinction between jurisdictional limitations imposed by Art. III and "(p)roblems of prematurity and abstractness" that may prevent adjudication in all but the exceptional case. Socialist Labor Party v. Gilligan, 406 U.S. 583, 588, 92 S.Ct. 1716, 1719, 32 L.Ed.2d 317 (1972). In Regional Rail Reorganization Act Cases, 419 U.S. 102, 140, 95 S.Ct. 335, 357, 42 L.Ed.2d 320 (1974), we stated that "ripeness is peculiarly a question of timing," and therefore the passage of months between the time of the decision of the Court of Appeals and our present ruling is of itself significant. We likewise observed in the Reorganization Act Cases:
170
"Thus, occurrence of the conveyance allegedly violative of Fifth Amendment rights is in no way hypothetical or speculative. Where the inevitability of the operation of a statute against certain individuals is patent, it is irrelevant to the existence of a justiciable controversy that there will be a time delay before the disputed provisions will come into effect." Id., at 143, 95 S.Ct., at 358.
171
The Court of Appeals held that of the five specific certified questions directed at the Commission's authority, only its powers to render advisory opinions and to authorize excessive convention expenditures were ripe for adjudication. The court held that the remaining aspects of the Commission's authority could not be adjudicated because "(in) its present stance, this litigation does not present the court with the concrete facts that are necessary to an informed decision."157 171 U.S.App.D.C., at 244, 519 F.2d, at 893.
172
Since the entry of judgment by the Court of Appeals, the Commission has undertaken to issue rules and regulations under the authority of § 438(a)(10). While many of its other functions remain as yet unexercised, the date of their all but certain exercise is now closer by several months than it was at the time the Court of Appeals ruled. Congress was understandably most concerned with obtaining a final adjudication of as many issues as possible litigated pursuant to the provisions of § 437h. Thus, in order to decide the basic question whether the Act's provision for appointment of the members of the Commission violates the Constitution, we believe we are warranted in considering all of those aspects of the Commission's authority which have been presented by the certified questions.158
173
Party litigants with sufficient concrete interests at stake may have standing to raise constitutional questions of separation of powers with respect to an agency designated to adjudicate their rights. Palmore v. United States, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973); Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962); Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939). In Glidden, of course, the challenged adjudication had already taken place, whereas in this case appellants' claim is of impending future rulings and determinations by the Commission. But this is a question of ripeness, rather than lack of case or controversy under Art. III, and for the reasons to which we have previously adverted we hold that appellants' claims as they bear upon the method of appointment of the Commission's members may be presently adjudicated.
B. The Merits
174
Appellants urge that since Congress has given the Commission wide-ranging rulemaking and enforcement powers with respect to the substantive provisions of the Act, Congress is precluded under the principle of separation of powers from vesting in itself the authority to appoint those who will exercise such authority. Their argument is based on the language of Art. II, § 2, cl. 2, of the Constitution, which provides in pertinent part as follows:
175
"(The President) shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."
176
Appellants' argument is that this provision is the exclusive method by which those charged with executing the laws of the United States may be chosen. Congress, they assert, cannot have it both ways. If the Legislature wishes the Commission to exercise all of the conferred powers, then its members are in fact "Officers of the United States" and must be appointed under the Appointments Clause. But if Congress insists upon retaining the power to appoint, then the members of the Commission may not discharge those many functions of the Commission which can be performed only by "Officers of the United States," as that term must be construed within the doctrine of separation of powers.
177
Appellee Commission and amici in support of the Commission urge that the Framers of the Constitution, while mindful of the need for checks and balances among the three branches of the National Government, had no intention of denying to the Legislative Branch authority to appoint its own officers. Congress, either under the Appointments Clause or under its grants of substantive legislative authority and the Necessary and Proper Clause in Art. I, is in their view empowered to provide for the appointment to the Commission in the manner which it did because the Commission is performing "appropriate legislative functions."
178
The majority of the Court of Appeals recognized the importance of the doctrine of separation of powers which is at the heart of our Constitution, and also recognized the principle enunciated in Springer v. Philippine Islands, 277 U.S. 189, 48 S.Ct. 480, 72 L.Ed. 845 (1928), that the Legislative Branch may not exercise executive authority by retaining the power to appoint those who will execute its laws. But it described appellants' argument based upon Art. II, § 2, cl. 2, as "strikingly syllogistic," and concluded that Congress had sufficient authority under the Necessary and Proper Clause of Art. I of the Constitution not only to establish the Commission but to appoint the Commission's members. As we have earlier noted, it upheld the constitutional validity of congressional vesting of certain authority in the Commission, and concluded that the question of the constitutional validity of the vesting of its remaining functions was not yet ripe for review. The three dissenting judges in the Court of Appeals concluded that the method of appointment for the Commission did violate the doctrine of separation of powers. 1. Separation of Powers
179
We do not think appellants' arguments based upon Art. II, § 2, cl. 2, of the Constitution may be so easily dismissed as did the majority of the Court of Appeals. Our inquiry of necessity touches upon the fundamental principles of the Government established by the Framers of the Constitution, and all litigants and all of the courts which have addressed themselves to the matter start on common ground in the recognition of the intent of the Framers that the powers of the three great branches of the National Government be largely separate from one another.
180
James Madison, writing in the Federalist No. 47,159 defended the work of the Framers against the charge that these three governmental powers were not entirely separate from one another in the proposed Constitution. He asserted that while there was some admixture, the Constitution was nonetheless true to Montesquieu's well-known maxim that the legislative, executive, and judicial departments ought to be separate and distinct:
181
"The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. 'When the legislative and executive powers are united in the same person or body,' says he, 'there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.' Again: 'Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.' Some of these reasons are more fully explained in other passages; but briefly stated as they are here, they sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author."160
182
Yet it is also clear from the provisions of the Constitution itself, and from the Federalist Papers, that the Constitution by no means contemplates total separation of each of these three essential branches of Government. The President is a participant in the law-making process by virtue of his authority to veto bills enacted by Congress. The Senate is a participant in the appointive process by virtue of its authority to refuse to confirm persons nominated to office by the President. The men who met in Philadelphia in the summer of 1787 were practical statesmen, experienced in politics, who viewed the principle of separation of powers as a vital check against tyranny. But they likewise saw that a hermetic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself effectively.
183
Mr. Chief Justice Taft, writing for the Court in Hampton & Co. v. United States, 276 U.S. 394, 48 S.Ct. 348, 72 L.Ed. 624 (1928), after stating the general principle of separation of powers found in the United States Constitution, went on to observe:
184
"(T)he rule is that in the actual administration of the government Congress or the Legislature should exercise the legislative power, the President or the state executive, the Governor, the executive power, and the courts or the judiciary the judicial power, and in carrying out that constitutional division into three branches it is a breach of the national fundamental law if Congress gives up its legislative power and transfers it to the President, or to the judicial branch, or if by law it attempts to invest itself or its members with either executive power or judicial power. This is not to say that the three branches are not co-ordinate parts of one government and that each in the field of its duties may not invoke the action of the two other branches in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch. In determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental co-ordination." Id., at 406, 48 S.Ct., at 351.
185
More recently, Mr. Justice Jackson, concurring in the opinion and the judgment of the Court in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 870, 96 L.Ed. 1153 (1952), succinctly characterized this understanding:
186
"While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity."
187
The Framers regarded the checks and balances that they had built into the tripartite Federal Government as a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other. As Madison put it in Federalist No. 51:
188
"This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State."161
189
This Court has not hesitated to enforce the principle of separation of powers embodied in the Constitution when its application has proved necessary for the decisions of cases or controversies properly before it. The Court has held that executive or administrative duties of a nonjudicial nature may not be imposed on judges holding office under Art. III of the Constitution. United States v. Ferreira, 54 U.S. 40, 13 How. 40, 14 L.Ed. 42 (1852); Hayburn's Case, 2 U.S. 409, 2 Dall. 409, 1 L.Ed. 436 (1792). The Court has held that the President may not execute and exercise legislative authority belonging only to Congress. Youngstown Sheet & Tube Co. v. Sawyer, supra. In the course of its opinion in that case, the Court said:
190
"In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that 'All legislative Powers herein granted shall be vested in a Congress of the United States . . . .' " 343 U.S., at 587-588, 72 S.Ct., at 867.
191
More closely in point to the facts of the present case is this Court's decision in Springer v. Philippine Islands, 277 U.S. 189, 48 S.Ct. 480, 72 L.Ed. 845 (1928), where the Court held that the legislature of the Philippine Islands could not provide for legislative appointment to executive agencies.
2. The Appointments Clause
192
The principle of separation of powers was not simply an abstract generalization in the minds of the Framers: it was woven into the document that they drafted in Philadelphia in the summer of 1787. Article I, § 1, declares: "All legislative Powers herein granted shall be vested in a Congress of the United States." Article II, § 1, vests the executive power "in a President of the United States of America," and Art. III, § 1, declares that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." The further concern of the Framers of the Constitution with maintenance of the separation of powers is found in the so-called "Ineligibility" and "Incompatibility" Clauses contained in Art. I, § 6:
193
"No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."
194
It is in the context of these cognate provisions of the document that we must examine the language of Art. II, § 2, cl. 2, which appellants contend provides the only authorization for appointment of those to whom substantial executive or administrative authority is given by statute. Because of the importance of its language, we again set out the provision:
195
"(The President) shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."
196
The Appointments Clause could, of course, be read as merely dealing with etiquette or protocol in describing "Officers of the United States," but the drafters had a less frivolous purpose in mind. This conclusion is supported by language from United States v. Germaine, 99 U.S. 508, 509-510, 25 L.Ed. 482 (1879):
197
"The Constitution for purposes of appointment very clearly divides all its officers into two classes. The primary class requires a nomination by the President and confirmation by the Senate. But foreseeing that when offices became numerous, and sudden removals necessary, this mode might be inconvenient, it was provided that, in regard to officers inferior to those specially mentioned, Congress might by law vest their appointment in the President alone, in the courts of law, or in the heads of departments. That all persons who can be said to hold an office under the government about to be established under the Constitution were intended to be included within one or the other of these modes of appointment there can be but little doubt." (Emphasis supplied.)
198
We think that the term "Officers of the United States" as used in Art. II, defined to include "all persons who can be said to hold an office under the government" in United States v. Germaine, supra, is a term intended to have substantive meaning. We think its fair import is that any appointee exercising significant authority pursuant to the laws of the United States is an "Officer of the United States," and must, therefore, be appointed in the manner prescribed by § 2, cl. 2, of that Article.
199
If "all persons who can be said to hold an office under the government about to be established under the Constitution were intended to be included within one or the other of these modes of appointment," United States v. Germaine, supra, it is difficult to see how the members of the Commission may escape inclusion. If a postmaster first class, Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926), and the clerk of a district court, Ex parte Hennen, 38 U.S. 225, 13 Pet. 230, 10 L.Ed. 138 (1839), are inferior officers of the United States within the meaning of the Appointments Clause, as they are, surely the Commissioners before us are at the very least such "inferior Officers" within the meaning of that Clause.162
200
Although two members of the Commission are initially selected by the President, his nominations are subject to confirmation not merely by the Senate, but by the House of Representatives as well. The remaining four voting members of the Commission are appointed by the President pro tempore of the Senate and by the Speaker of the House. While the second part of the Clause authorizes Congress to vest the appointment of the officers described in that part in "the Courts of Law, or in the Heads of Departments," neither the Speaker of the House nor the President pro tempore of the Senate comes within this language.
201
The phrase "Heads of Departments," used as it is in conjunction with the phrase "Courts of Law," suggests that the Departments referred to are themselves in the Executive Branch or at least have some connection with that branch. While the Clause expressly authorizes Congress to vest the appointment of certain officers in the "Courts of Law," the absence of similar language to include Congress must mean that neither Congress nor its officers were included within the language "Heads of Departments" in this part of cl. 2.
202
Thus with respect to four of the six voting members of the Commission, neither the President, the head of any department, nor the Judiciary has any voice in their selection.
203
The Appointments Clause specifies the method of appointment only for "Officers of the United States" whose appointment is not "otherwise provided for" in the Constitution. But there is no provision of the Constitution remotely providing any alternative means for the selection of the members of the Commission or for anybody like them. Appellee Commission has argued, and the Court of Appeals agreed, that the Appointments Clause of Art. II should not be read to exclude the "inherent power of Congress" to appoint its own officers to perform functions necessary to that body as an institution. But there is no need to read the Appointments Clause contrary to its plain language in order to reach the result sought by the Court of Appeals. Article I, § 3, cl. 5, expressly authorizes the selection of the President pro tempore of the Senate, and § 2, cl. 5, of that Article provides for the selection of the Speaker of the House. Ranking nonmembers, such as the Clerk of the House of Representatives, are elected under the internal rules of each House163 and are designated by statute as "officers of the Congress."164 There is no occasion for us to decide whether any of these member officers are "Officers of the United States" whose "appointment" is otherwise provided for within the meaning of the Appointments Clause, since even if they were such officers their appointees would not be. Contrary to the fears expressed by the majority of the Court of Appeals, nothing in our holding with respect to Art. II, § 2, cl. 2, will deny to Congress "all power to appoint its own inferior officers to carry out appropriate legislative functions."165
204
Appellee Commission and amici contend somewhat obliquely that because the Framers had no intention of relegating Congress to a position below that of the coequal Judicial and Executive Branches of the National Government, the Appointments Clause must somehow be read to include Congress or its officers as among those in whom the appointment power may be vested. But the debates of the Constitutional Convention, and the Federalist Papers, are replete with expressions of fear that the Legislative Branch of the National Government will aggrandize itself at the expense of the other two branches.166 The debates during the Convention, and the evolution of the draft version of the Constitution, seem to us to lend considerable support to our reading of the language of the Appointments Clause itself.
205
An interim version of the draft Constitution had vested in the Senate the authority to appoint Ambassadors, public Ministers, and Judges of the Supreme Court, and the language of Art. II as finally adopted is a distinct change in this regard. We believe that it was a deliberate change made by the Framers with the intent to deny Congress any authority itself to appoint those who were "Officers of the United States." The debates on the floor of the Convention reflect at least in part the way the change came about.
206
On Monday, August 6, 1787, the Committee on Detail to which had been referred the entire draft of the Constitution reported its draft to the Convention, including the following two articles that bear on the question before us:167
207
Article IX, § 1: "The Senate of the United States shall have power . . . to appoint Ambassadors, and Judges of the Supreme Court."
208
Article X, § 2: "(The President) shall commission all the officers of the United States; and shall appoint officers in all cases not otherwise provided for by this Constitution."
209
It will be seen from a comparison of these two articles that the appointment of Ambassadors and Judges of the Supreme Court was confided to the Senate, and that the authority to appoint not merely nominate, but to actually appoint all other officers was reposed in the President.
210
During a discussion of a provision in the same draft from the Committee on Detail which provided that the "Treasurer" of the United States should be chosen by both Houses of Congress, Mr. Read moved to strike out that clause, "leaving the appointment of the Treasurer as of other officers to the Executive."168 Opposition to Read's motion was based, not on objection to the principle of executive appointment, but on the particular nature of the office of the "Treasurer."169
211
On Thursday, August 23, the Convention voted to insert after the word "Ambassadors" in the text of draft Art. IX the words "and other public Ministers." Immediately afterwards, the section as amended was referred to the "Committee of Five."170 The following day the Convention took up Art. X. Roger Sherman objected to the draft language of § 2 because it conferred too much power on the President, and proposed to insert after the words "not otherwise provided for by this Constitution" the words "or by law." This motion was defeated by a vote of nine States to one.171 On September 3 the Convention debated the Ineligibility and Incompatibility Clauses which now appear in Art. I, and made the Ineligibility Clause somewhat less stringent.172
212
Meanwhile, on Friday, August 31, a motion had been carried without opposition to refer such parts of the Constitution as had been postponed or not acted upon to a Committee of Eleven. Such reference carried with it both Arts. IX and X. The following week the Committee of Eleven made its report to the Convention, in which the present language of Art. II, § 2, cl. 2, dealing with the authority of the President to nominate is found, virtually word for word, as § 4 of Art. X.173 The same Committee also reported a revised article concerning the Legislative Branch to the Convention. The changes are obvious. In the final version, the Senate is shorn of its power to appoint Ambassadors and Judges of the Supreme Court. The President is given, not the power to appoint public officers of the United States, but only the right to nominate them, and a provision is inserted by virtue of which Congress may require Senate confirmation of his nominees.
213
It would seem a fair surmise that a compromise had been made. But no change was made in the concept of the term "Officers of the United States," which since it had first appeared in Art. X had been taken by all concerned to embrace all appointed officials exercising responsibility under the public laws of the Nation.
214
Appellee Commission and amici urge that because of what they conceive to be the extraordinary authority reposed in Congress to regulate elections, this case stands on a different footing than if Congress had exercised its legislative authority in another field. There is, of course, no doubt that Congress has express authority to regulate congressional elections, by virtue of the power conferred in Art. I, § 4.174 This Court has also held that it has very broad authority to prevent corruption in national Presidential elections. Burroughs v. United States, 290 U.S. 534, 54 S.Ct. 287, 78 L.Ed. 484 (1934). But Congress has plenary authority in all areas in which it has substantive legislative jurisdiction, McCulloch v. Maryland, 17 U.S. 316, 4 W heat. 316, 4 L.Ed. 579 (1819), so long as the exercise of that authority does not offend some other constitutional restriction. We see no reason to believe that the authority of Congress over federal election practices is of such a wholly different nature from the other grants of authority to Congress that it may be employed in such a manner as to offend well-established constitutional restrictions stemming from the separation of powers.
215
The position that because Congress has been given explicit and plenary authority to regulate a field of activity, it must therefore have the power to appoint those who are to administer the regulatory statute is both novel and contrary to the language of the Appointments Clause. Unless their selection is elsewhere provided for, all Officers of the United States are to be appointed in accordance with the Clause. Principal officers are selected by the President with the advice and consent of the Senate. Inferior officers Congress may allow to be appointed by the President alone, by the heads of departments, or by the Judiciary. No class or type of officer is excluded because of its special functions. The President appoints judicial as well as executive officers. Neither has it been disputed and apparently it is not now disputed that the Clause controls the appointment of the members of a typical administrative agency even though its functions, as this Court recognized in Humphrey's Executor v. United States, 295 U.S. 602, 624, 55 S.Ct. 869, 872, 79 L.Ed. 1611 (1935), may be "predominantly quasijudicial and quasilegislative" rather than executive. The Court in that case carefully emphasized that although the members of such agencies were to be independent of the Executive in their day-to-day operations, the Executive was not excluded from selecting them. Id., at 625-626, 55 S.Ct., at 872.
216
Appellees argue that the legislative authority conferred upon the Congress in Art. I, § 4, to regulate "the Times, Places and Manner of holding Elections for Senators and Representatives" is augmented by the provision in § 5 that "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members." Section 5 confers, however, not a general legislative power upon the Congress, but rather a power "judicial in character" upon each House of the Congress. Barry v. United States ex rel. Cunningham, 279 U.S. 597, 613, 49 S.Ct. 452, 455, 73 L.Ed. 867 (1929). The power of each House to judge whether one claiming election as Senator or Representative has met the requisite qualifications, Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), cannot reasonably be translated into a power granted to the Congress itself to impose substantive qualifications on the right to so hold such office. Whatever power Congress may have to legislate, such qualifications must derive from § 4, rather than § 5, of Art. I.
217
Appellees also rely on the Twelfth Amendment to the Constitution insofar as the authority of the Commission to regulate practices in connection with the Presidential election is concerned. This Amendment provides that certificates of the votes of the electors be "sealed (and) directed to the President of the Senate," and that the "President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted." The method by which Congress resolved the celebrated disputed Hayes-Tilden election of 1876, reflected in 19 Stat. 227, supports the conclusion that Congress viewed this Amendment as conferring upon its two Houses the same sort of power "judicial in character," Barry v. United States ex rel. Cunningham, supra, 279 U.S., at 613, 49 S.Ct., at 455, as was conferred upon each House by Art. I, § 5, with respect to elections of its own members.
218
We are also told by appellees and amici that Congress had good reason for not vesting in a Commission composed wholly of Presidential appointees the authority to administer the Act, since the administration of the Act would undoubtedly have a bearing on any incumbent President's campaign for re-election. While one cannot dispute the basis for this sentiment as a practical matter, it would seem that those who sought to challenge incumbent Congressmen might have equally good reason to fear a Commission which was unduly responsive to members of Congress whom they were seeking to unseat. But such fears, however rational, do not by themselves warrant a distortion of the Framers' work.
219
Appellee Commission and amici finally contend, and the majority of the Court of Appeals agreed with them, that whatever shortcomings the provisions for the appointment of members of the Commission might have under Art. II, Congress had ample authority under the Necessary and Proper Clause of Art. I to effectuate this result. We do not agree. The proper inquiry when considering the Necessary and Proper Clause is not the authority of Congress to create an office or a commission, which is broad indeed, but rather its authority to that its own officers may make appointments to such office or commission.
220
So framed, the claim that Congress may provide for this manner of appointment under the Necessary and Proper Clause of Art. I stands on no better footing than the claim that it may provide for such manner of appointment because of its substantive authority to regulate federal elections. Congress could not, merely because it concluded that such a measure was "necessary and proper" to the discharge of its substantive legislative authority, pass a bill of attainder or ex post facto law contrary to the prohibitions contained in § 9 of Art. I. No more may it vest in itself, or in its officers, the authority to appoint officers of the United States when the Appointments Clause by clear implication prohibits it from doing so.
221
The trilogy of cases from this Court dealing with the constitutional authority of Congress to circumscribe the President's power to remove officers of the United States is entirely consistent with this conclusion. In Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926), the Court held that Congress could not by statute divest the President of the power to remove an officer in the Executive Branch whom he was initially authorized to appoint. In explaining its reasoning in that case, the Court said:
222
"The vesting of the executive power in the President was essentially a grant of the power to execute the laws. But the President alone and unaided could not execute the laws. He must execute them by the assistance of subordinates. . . . As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that as part of his executive power he should select those who were to act for him under his direction in the execution of the laws.
223
"Our conclusion on the merits, sustained by the arguments before stated, is that article 2 grants to the President the executive power of the government i. e., the general administrative control of those executing the laws, including the power of appointment and removal of executive officers a conclusion confirmed by his obligation to take care that the laws be faithfully executed . . . ." Id., at 117, 163-164, 47 S.Ct., at 25.
224
In the later case of Humphrey's Executor, where it was held that Congress could circumscribe the President's power to remove members of independent regulatory agencies, the Court was careful to note that it was dealing with an agency intended to be independent of executive authority "except in its selection." 295 U.S., at 625, 55 S.Ct., at 872 (emphasis in original). Wiener v. United States, 357 U.S. 349, 78 S.Ct. 1275, 2 L.Ed.2d 1377 (1958), which applied the holding in Humphrey's Executor to a member of the War Claims Commission, did not question in any respect that members of independent agencies are not independent of the Executive with respect to their appointments.
225
This conclusion is buttressed by the fact that Mr. Justice Sutherland, the author of the Court's opinion in Humphrey's Executor, likewise wrote the opinion for the Court in Springer v. Philippine Islands, 277 U.S. 189, 48 S.Ct. 480, 72 L.Ed. 845 (1928), in which it was said:
226
"Not having the power of appointment, unless expressly granted or incidental to its powers, the legislature cannot ingraft executive duties were upon a legislative office, since that would be to usurp the power of appointment by indirection; though the case might be different if the additional duties were devolved upon an appointee of the executive." Id., at 202, 48 S.Ct., at 482.
3. The Commission's Powers
227
Thus, on the assumption that all of the powers granted in the statute may be exercised by an agency whose members have been appointed in accordance with the Appointments Clause,175 the ultimate question is which, if any, of those powers may be exercised by the present voting Commissioners, none of whom was appointed as provided by that Clause. Our previous description of the statutory provisions, see supra, at 109-113, disclosed that the Commission's powers fall generally into three categories: functions relating to the flow of necessary information receipt, dissemination, and investigation; functions with respect to the Commission's task of fleshing out the statute rulemaking and advisory opinions; and functions necessary to ensure compliance with the statute and rules informal procedures, administrative determinations and hearings, and civil suits.
228
Insofar as the powers confided in the Commission are essentially of an investigative and informative nature, falling in the same general category as those powers which Congress might delegate to one of its own committees, there can be no question that the Commission as presently constituted may exercise them. Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1881); McGrain v. Daugherty, 273 U.S. 135, 47 S.Ct. 319, 71 L.Ed. 580 (1927); Eastland v. United States Servicemen's Fund, 421 U.S. 491, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975). As this Court stated in McGrain, supra, 273 U.S., at 175, 47 S.Ct., at 329:
229
"A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information which not infrequently is true recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed. All this was true before and when the Constitution was framed and adopted. In that period the power of inquiry, with enforcing process, was regarded and employed as a necessary and appropriate attribute of the power to legislate, indeed, was treated as inhering in it."
230
But when we go beyond this type of authority to the more substantial powers exercised by the Commission, we reach a different result. The Commission's enforcement power, exemplified by its discretionary power to seek judicial relief, is authority that cannot possibly be regarded as merely in aid of the legislative function of Congress. A lawsuit is the ultimate remedy for a breach of the law, and it is to the President, and not to the Congress, that the Constitution entrusts the responsibility to "take Care that the Laws be faithfully executed." Art. II, § 3.
231
Congress may undoubtedly under the Necessary and Proper Clause create "offices" in the generic sense and provide such method of appointment to those "offices" as it chooses. But Congress' power under that Clause is inevitably bounded by the express language of Art. II, § 2, cl. 2, and unless the method it provides comports with the latter, the holders of those offices will not be "Officers of the United States." They may, therefore, properly perform duties only in aid of those functions that Congress may carry out by itself, or in an area sufficiently removed from the administration and enforcement of the public law as to permit their being performed by persons not "Officers of the United States."
232
This Court observed more than a century ago with respect to litigation conducted in the courts of the United States:
233
"Whether tested, therefore, by the requirements of the Judiciary Act, or by the usage of the government, or by the decisions of this court, it is clear that all such suits, so far as the interests of the United States are concerned, are subject to the direction, and within the control of, the Attorney-General." Confiscation Cases, 74 U.S. 454, 458-459, 7 Wall. 454, 458-459, 19 L.Ed. 196 (1869).
234
The Court echoed similar sentiments 59 years later in Springer v. Philippine Islands, 277 U.S., at 202, 48 S.Ct., at 482, saying:
235
"Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement. The latter are executive functions. It is unnecessary to enlarge further upon the general subject, since it has so recently received the full consideration of this court. Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160.
236
"Not having the power of appointment, unless expressly granted or incidental to its powers, the legislature cannot ingraft executive duties upon a legislative office, since that would be to usurp the power of appointment by indirection, though the case might be different if the additional duties were devolved upon an appointee of the executive."
237
We hold that these provisions of the Act, vesting in the Commission primary responsibility for conducting civil litigation in the courts of the United States for vindicating public rights, violate Art. II, § 2, cl. 2, of the Constitution. Such functions may be discharged only by persons who are "Officers of the United States" within the language of that section.
238
All aspects of the Act are brought within the Commission's broad administrative powers: rulemaking, advisory opinions, and determinations of eligibility for funds and even for federal elective office itself. These functions, exercised free from day-to-day supervision of either Congress176 or the Executive Branch, are more legislative and judicial in nature than are the Commission's enforcement powers, and are of kinds usually performed by independent regulatory agencies or by some department in the Executive Branch under the direction of an Act of Congress. Congress viewed these broad powers as essential to effective and impartial administration of the entire substantive framework of the Act. Yet each of these functions also represents the performance of a significant governmental duty exercised pursuant to a public law. While the President may not insist that such functions be delegated to an appointee of his removable at will, Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935), none of them operates merely in aid of congressional authority to legislate or is sufficiently removed from the administration and enforcement of public law to allow it to be performed by the present Commission. These administrative functions may therefore be exercised only by persons who are "Officers of the United States."177
239
[118] It is also our view that the Commission's inability to exercise certain powers because of the method by which its members have been selected should not affect the validity of the Commission's administrative actions and determinations to this date, including its administration of those provisions, upheld today, authorizing the public financing of federal elections. The past acts of the Commission are therefore accorded de facto validity, just as we have recognized should be the case with respect to legislative acts performed by legislators held to have been elected in accordance with an unconstitutional apportionment plan. Connor v. Williams, 404 U.S. 549, 550-551, 92 S.Ct. 656, 658, 30 L.Ed.2d 704 (1972). See Ryan v. Tinsley, 316 F.2d 430, 431-432 (CA10 1963); Schaefer v. Thomson, 251 F.Supp. 450, 453 (Wyo.1965), aff'd sub nom. Harrison v. Schaeffer, 383 U.S. 269, 86 S.Ct. 929, 15 L.Ed.2d 750 (1966). Cf. City of Richmond v. United States, 422 U.S. 358, 379, 95 S.Ct. 2296, 2308, 45 L.Ed.2d 245 (1975) (Brennan, J., dissenting). We also draw on the Court's practice in the apportionment and voting rights cases and stay, for a period not to exceed 30 days, the Court's judgment insofar as it affects the authority of the Commission to exercise the duties and powers granted it under the Act. This limited stay will afford Congress an opportunity to reconstitute the Commission by law or to adopt other valid enforcement mechanisms without interrupting enforcement of the provisions the Court sustains, allowing the present Commission in the interim to function de facto in accordance with the substantive provisions of the Act. Cf. Georgia v. United States, 411 U.S. 526, 541, 93 S.Ct. 1702, 1711, 36 L.Ed.2d 472 (1973); Fortson v. Morris, 385 U.S. 231, 235, 87 S.Ct. 446, 449, 17 L.Ed.2d 330 (1966); Maryland Comm. v. Tawes, 377 U.S. 656, 675-676, 84 S.Ct. 1429, 1440, 12 L.Ed.2d 595 (1964).
CONCLUSION
240
In summary,178 we sustain the individual contribution limits, the disclosure and reporting provisions, and the public financing scheme. We conclude, however, that the limitations on campaign expenditures, on independent expenditures by individuals and groups, and on expenditures by a candidate from his personal funds are constitutionally infirm. Finally, we hold that most of the powers conferred by the Act upon the Federal Election Commission can be exercised only by "Officers of the United States," appointed in conformity with Art. II, § 2, cl. 2, of the Constitution, and therefore cannot be exercised by the Commission as presently constituted.
241
In No. 75-436, the judgment of the Court of Appeals is affirmed in part and reversed in part. The judgment of the District Court in No. 75-437 is affirmed. The mandate shall issue forthwith, except that our judgment is stayed, for a period not to exceed 30 days, insofar as it affects the authority of the Commission to exercise the duties and powers granted it under the Act.
242
So ordered.
243
Mr. Justice STEVENS took no part in the consideration or decision of these cases.
APPENDIX TO PER CURIAM OPINION*
TITLE 2. THE CONGRESS
CHAPTER 14 FEDERAL ELECTION CAMPAIGNS
244
SUBCHAPTER I. DISCLOSURE OF FEDERAL CAMPAIGN FUNDS
245
s 431. Definitions
246
When used in this subchapter and subchapter II of this chapter
247
(a) "election" means
248
(1) a general, special, primary, or runoff election;
249
(2) a convention or caucus of a political party held to nominate a candidate;
250
(3) a primary election held for the selection of delegates to a national nominating convention of a political party; and
251
(4) a primary election held for the expression of a preference for the nomination of persons for election to the office of President; (b) "candidate" means an individual who seeks nomination for election, or election, to Federal office, whether or not such individual is elected, and, for purposes of this paragraph, an individual shall be deemed to seek nomination for election, or election, if he has
252
(1) taken the action necessary under the law of a State to qualify himself for nomination for election, or election, to Federal office; or
253
(2) received contributions or made expenditures, or has given his consent for any other person to receive contributions or make expenditures, with a view to bringing about his nomination for election, or election, to such office;
254
(c) "Federal office" means the office of President or Vice President of the United States; or of Senator or Representative in, or Delegate or Resident Commissioner to, the Congress of the United States;
255
(d) "political committee" means any committee, club, association, or other group of persons which receives contributions or makes expenditures during a calendar year in an aggregate amount exceeding $1,000;
256
(e) "contribution"
257
(1) means a gift, subscription, loan, advance, or deposit of money or anything of value made for the purpose of
258
(A) influencing the nomination for election, or election, of any person to Federal office or for the purpose of influencing the results of a primary held for the selection of delegates to a national nominating convention of a political party; or
259
(B) influencing the result of an election held for the expression of a preference for the nomination of persons for election to the office of President of the United States; (2) means a contract, promise, or agreement, expressed or implied, whether or not legally enforceable, to make a contribution for such purposes;
260
(3) means funds received by a political committee which are transferred to such committee from another political committee or other source;
261
(4) means the payment, by any person other than a candidate or a political committee, of compensation for the personal services of another person which are rendered to such candidate or political committee without charge for any such purpose; but
262
(5) does not include
263
(A) the value of services provided without compensation by individuals who volunteer a portion or all of their time on behalf of a candidate or political committee;
264
(B) the use of real or personal property and the cost of invitations, food, and beverages, voluntarily provided by an individual to a candidate in rendering voluntary personal services on the individual's residential premises for candidate-related activities;
265
(C) the sale of any food or beverage by a vendor for use in a candidate's campaign at a charge less than the normal comparable charge, if such charge for use in a candidate's campaign is at least equal to the cost of such food or beverage to the vendor;
266
(D) any unreimbursed payment for travel expenses made by an individual who on his own behalf volunteers his personal services to a candidate;
267
(E) the payment by a State or local committee of a political party of the costs of preparation, display, or mailing or other distribution incurred by such committee with respect to a printed slate card or sample ballot, or other printed listing, of three or more candidates for any public office for which an election is held in the State in which such committee is organized, except that this clause shall not apply in the case of costs incurred by such committee with respect to a display of any such listing made on broadcasting stations, or in newspapers, magazines, or other similar types of general public political advertising; or
268
(F) any payment made or obligation incurred by a corporation or a labor organization which, under the provisions of the last paragraph of section 610 of Title 18, would not constitute an expenditure by such corporation or labor organization; to the extent that the cumulative value of activities by any individual on behalf of any candidate under each of clauses (B), (C), and (D) does not exceed $500 with respect to any election;
269
(f) "expenditure"
270
(1) means a purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made for the purpose of
271
(A) influencing the nomination for election, or the election, of any person to Federal office, or to the office of presidential and vice presidential elector; or
272
(B) influencing the results of a primary election held for the selection of delegates to a national nominating convention of a political party or for the expression of a preference for the nomination of persons for election to the office of President of the United States;
273
(2) means a contract, promise, or agreement, express or implied, whether or not legally enforceable, to make any expenditure;
274
(3) means the transfer of funds by a political committee to another political committee; but
275
(4) does not include
276
(A) any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate;
277
(B) nonpartisan activity designed to encourage individuals to register to vote or to vote;
278
(C) any communication by any membership organization or corporation to its members or stockholders, if such membership organization or corporation is not organized primarily for the purpose of influencing the nomination for election, or election, of any person to Federal office;
279
(D) the use of real or personal property and the cost of invitations, food, and beverages, voluntarily provided by an individual to a candidate in rendering voluntary personal services on the individual's residential premises for candidate-related activities if the cumulative value of such activities by such individual on behalf of any candidate do (sic ) not exceed $500 with respect to any election;
280
(E) any unreimbursed payment for travel expenses made by an individual who on his own behalf volunteers his personal services to a candidate if the cumulative amount for such individual incurred with respect to such candidate does not exceed $500 with respect to any election;
281
(F) any communication by any person which is not made for the purpose of influencing the nomination for election, or election, of any person to Federal office; or
282
(G) the payment by a State or local committee of a political party of the costs of preparation, display, or mailing or other distribution incurred by such committee with respect to a printed slate card or sample ballot, or other printed listing, of three or more candidates for any public office for which an election is held in the State in which such committee is organized, except that this clause shall not apply in the case of costs incurred by such committee with respect to a display of any such listing made on broadcasting stations, or in newspapers, magazines or other similar types of general public political advertising; or
283
(H) any payment made or obligation incurred by a corporation or a labor organization which, under the provisions of the last paragraph of section 610 of Title 18, would not constitute an expenditure by such corporation or labor organization;
284
(g) "Commission" means the Federal Election Commission;
285
(h) "person" means an individual, partnership, committee, association, corporation, labor organization, and any other organization or group of persons;
286
(i) "State" means each State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States; (j) "identification" means
287
(1) in the case of an individual, his full name and the full address of his principal place of residence; and
288
(2) in the case of any other person, the full name and address of such person;
289
(k) "national committee" means the organization which, by virtue of the bylaws of a political party, is responsible for the day-to-day operation of such political party at the national level, as determined by the Commission;
290
(l) "State committee" means the organization which, by virtue of the bylaws of a political party, is responsible for the day-to-day operation of such political party at the State level, as determined by the Commission;
291
(m) "political party" means an association, committee, or organization which nominates a candidate for election to any Federal office, whose name appears on the election ballot as the candidate of such association, committee, or organization; and
292
(n) "principal campaign committee" means the principal campaign committee designated by a candidate under section 432(f)(1) of this title.
293
s 432. Organization of political committees.
294
(a) Chairman; treasurer; vacancies; official authorizations. Every political committee shall have a chairman and a treasurer. No contribution and no expenditure shall be accepted or made by or on behalf of a political committee at a time when there is a vacancy in the office of chairman or treasurer thereof. No expenditure shall be made for or on behalf of a political committee without the authorization of its chairman or treasurer, or their designated agents.
295
(b) Account of contributions; segregated funds. Every person who receives a contribution in excess of $10 for a political committee shall, on demand of the treasurer, and in any event within 5 days after receipt of such contribution, render to the treasurer a detailed account thereof, including the amount of the contribution and the identification of the person making such contribution, and the date on which received. All funds of a political committee shall be segregated from, and may not be commingled with, any personal funds of officers, members, or associates of such committee.
296
(c) Recordkeeping. It shall be the duty of the treasurer of a political committee to keep a detailed and exact account of
297
(1) all contributions made to or for such committee;
298
(2) the identification of every person making a contribution in excess of $10, and the date and amount thereof and, if a person's contributions aggregate more than $100, the account shall include occupation, and the principal place of business (if any);
299
(3) all expenditures made by or on behalf of such committee; and
300
(4) the identification of every person to whom any expenditure is made, the date and amount thereof and the name and address of, and office sought by, each candidate on whose behalf such expenditure was made.
301
(d) Receipts; preservation. It shall be the duty of the treasurer to obtain and keep a receipted bill, stating the particulars, for every expenditure made by or on behalf of a political committee in excess of $100 in amount, and for any such expenditure in a lesser amount, if the aggregate amount of such expenditures to the same person during a calendar year exceeds $100. The shall preserve all receipted bills and accounts required to be kept by this section for periods of time to be determined by the Commission.
302
(e) Unauthorized activities; notice. Any political committee which solicits or receives contributions or makes expenditures on behalf of any candidate that is not authorized in writing by such candidate to do so shall include a notice on the face or front page of all literature and advertisements published in connection with such candidate's campaign by such committee or on its behalf stating that the committee is not authorized by such candidate and that such candidate is not responsible for the activities of such committee.
303
(f) Principal campaign committees; one candidate limitation; office of President: national committee for candidate; duties. (1) Each individual who is a candidate for Federal office (other than the office of Vice President of the United States) shall designate a political committee to serve as his principal campaign committee. No political committee may be designated as the principal campaign committee of more than one candidate, except that the candidate for the office of President of the United States nominated by a political party may designate the national committee of such political party as his principal campaign committee. Except as provided in the preceding sentence, no political committee which supports more than one candidate may be designated as a principal campaign committee.
304
(2) Notwithstanding any other provision of this subchapter, each report or statement of contributions received or expenditures made by a political committee (other than a principal campaign committee) which is required to be filed with the Commission under this subchapter shall be filed instead with the principal campaign committee for the candidate on whose behalf such contributions are accepted or such expenditures are made.
305
(3) It shall be the duty of each principal campaign committee to receive all reports and statements required to be filed with it under paragraph (2) of this subsection and to compile and file such reports and statements, together with its own reports and statements, with the Commission in accordance with the provisions of this subchapter.
306
s 433. Registration of political committees.
307
(a) Statements of organization. Each political committee which anticipates receiving contributions or making expenditures during the calendar year in an aggregate amount exceeding $1,000 shall file with the Commission a statement of organization, within 10 days after its organization or, if later, 10 days after the date on which it has information which causes the committee to anticipate it will receive contributions or make expenditures in excess of $1,000. Each such committee in existence at the date of enactment of this Act shall file a statement of organization with the Commission at such time as it prescribes.
308
(b) Contents of statements. The statement of organization shall include
309
(1) the name and address of the committee;
310
(2) the names, addresses, and relationships of affiliated or connected organizations;
311
(3) the area, scope, or jurisdiction of the committee;
312
(4) the name, address, and position of the custodian of books and accounts;
313
(5) the name, address, and position of other principal officers, including officers and members of the finance committee, if any; (6) the name, address, office sought, and party affiliation of
314
(A) each candidate whom the committee is supporting; and
315
(B) any other individual, if any, whom the committee is supporting for nomination for election, or election, to any public office whatever; or, if the committee is supporting the entire ticket of any party, the name of the party;
316
(7) a statement whether the committee is a continuing one;
317
(8) the disposition of residual funds which will be made in the event of dissolution;
318
(9) a listing of all banks, safety deposit boxes, or other repositories used;
319
(10) a statement of the reports required to be filed by the committee with State or local officers, and, if so, the names, addresses, and positions of such persons; and
320
(11) such other information as shall be required by the Commission.
321
(c) Information changes; report. Any change in information previously submitted in a statement of organization shall be reported to the Commission within a 10-day period following the change.
322
(d) Disbanding of political committees or contributions and expenditures below prescribed ceiling; notice. Any committee which, after having filed one or more statements of organization, disbands or determines it will no longer receive contributions or make expenditures during the calendar year in an aggregate amount exceeding $1,000 shall so notify the Commission.
323
(e) Filing reports and notifications with appropriate principal campaign committees. In the case of a political committee which is not a principal campaign committee, reports and notifications required under this section to be filed with the Commission shall be filed instead with the appropriate principal campaign committee.
324
s 434. rEPORTS BY POLITICAL COMMITTEES AND CANDIDATes.
325
(a) Receipts and expenditures; completion date, exception.
326
(1) Except as provided by paragraph (2), each treasurer of a political committee supporting a candidate or candidates for election to Federal office, and each candidate for election to such office, shall file with the Commission reports of receipts and expenditures on forms to be prescribed or approved by it. The reports referred to in the preceding sentence shall be filed as follows:
327
(A)(i) In any calendar year in which an individual is a candidate for Federal office and an election for such Federal office is held in such year, such reports shall be filed not later than the 10th day before the date on which such election is held and shall be complete as of the 15th day before the date of such election; except that any such report filed by registered or certified mail must be postmarked not later than the close of the 12th day before the date of such election.
328
(ii) Such reports shall be filed not later than the 30th day after the day of such election and shall be complete as of the 20th day after the date of such election.
329
(B) In any other calendar year in which an individual is a candidate for Federal office, such reports shall be filed after December 31 of such calendar year, but not later than January 31 of the following calendar year and shall be complete as of the close of the calendar year with respect to which the report is filed.
330
(C) Such reports shall be filed not later than the 10th day following the close of any calendar quarter in which the candidate or political committee concerned received contributions in excess of $1,000, or made expenditures in excess of $1,000, and shall be complete as of the close of such calendar quarter; except that any such report required to be filed after December 31 of any calendar year with respect to which a report is required to be filed under subparagraph (B) shall be filed as provided in such subparagraph.
331
(D) When the last day for filing any quarterly report required by subparagraph (C) occurs within 10 days of an election, the filing of such quarterly report shall be waived and superseded by the report required by subparagraph (A)(i).
332
Any contribution of $1,000 or more received after the 15th day, but more than 48 hours, before any election shall be reported within 48 hours after its receipt.
333
(2) Each treasurer of a political committee which is not a principal campaign committee shall file the reports required under this section with the appropriate principal campaign committee.
334
(3) Upon a request made by a presidential candidate or a political committee which operates in more than one State, or upon its own motion, the Commission may waive the reporting dates set forth in paragraph (1) (other than the reporting date set forth in paragraph (1)(B)), and require instead that such candidate or political committee file reports not less frequently than monthly. The Commission may not require a presidential candidate or a political committee operating in more than one State to file more than 12 reports (not counting any report referred to in paragraph (1)(B)) during any calendar year. If the Commission acts on its own motion under this paragraph with respect to a candidate or a political committee, such candidate or committee may obtain judicial review in accordance with the provisions of chapter 7 of Title 5.
335
(b) Contents of reports. Each report under this section shall disclose
336
(1) the amount of cash on hand at the beginning of the reporting period;
337
(2) the full name and mailing address (occupation and the principal place of business, if any) of each person who has made one or more contributions to or for such committee or candidate (including the purchase of tickets for events such as dinners, luncheons, rallies, and similar fundraising events) within the calendar year in an aggregate amount or value in excess of $100, together with the amount and date of such contributions;
338
(3) the total sum of individual contributions made to or for such committee or candidate during the reporting period and not reported under paragraph (2);
339
(4) the name and address of each political committee or candidate from which the reporting committee or the candidate received, or to which that committee or candidate made, any transfer of funds, together with the amounts and dates of all transfers;
340
(5) each loan to or from any person within the calendar year in an aggregate amount or value in excess of $100, together with the full names and mailing addresses (occupations and the principal places of business, if any) of the lender, endorsers, and guarantors, if any, and the date and amount of such loans;
341
(6) the total amount of proceeds from (A) the sale of tickets to each dinner, luncheon, rally, and other fundraising event;
342
(B) mass collections made at such events; and
343
(C) sales of items such as political campaign pins, buttons, badges, flags, emblems, hats, banners, literature, and similar materials;
344
(7) each contribution, rebate, refund, or other receipt in excess of $100 not otherwise listed under paragraphs (2) through (6);
345
(8) the total sum of all receipts by or for such committee or candidate during the reporting period, together with total expenditures less transfers between political committees which support the same candidate and which do not support more than one candidate;
346
(9) the identification of each person to whom expenditures have been made by such committee or on behalf of such committee or candidate within the calendar year in an aggregate amount or value in excess of $100, the amount, date, and purpose of each such expenditure and the name and address of, and office sought by, each candidate on whose behalf such expenditure was made;
347
(10) the identification of each person to whom an expenditure for personal services, salaries, and reimbursed expenses in excess of $100 has been made, and which is not otherwise reported, including the amount, date, and purpose of such expenditure;
348
(11) the total sum of expenditures made by such committee or candidate during the calendar year, together with total receipts less transfers between political committees which support the same candidate and which do not support more than one candidate; (12) the amount and nature of debts and obligations owed by or to the committee, in such form as the supervisory officer may prescribe and a continuous reporting of their debts and obligations after the election at such periods as the Commission may require until such debts and obligations are extinguished, together with a statement as to the circumstances and conditions under which any such debt or obligation is extinguished and the consideration therefor; and
349
(13) such other information as shall be required by the Commission.
350
(c) Cumulative reports for calendar year; amounts for unchanged items carried forward; statement of inactive status. The reports required to be filed by subsection (a) of this section shall be cumulative during the calendar year to which they relate, but where there has been no change in an item reported in a previous report during such year, only the amount need be carried forward. If no contributions or expenditures have been accepted or expended during a calendar year, the treasurer of the political committee or candidate shall file a statement to that effect.
351
(d) Members of Congress; reporting exemption. This section does not require a Member of the Congress to report, as contributions received or as expenditures made, the value of photographic, matting, or recording services furnished to him by the Senate Recording Studio, the House Recording Studio, or by an individual whose pay is disbursed by the Secretary of the Senate or the Clerk of the House of Representatives and who furnishes such services as his primary duty as an employee of the Senate or House of Representatives, or if such services were paid for by the Republican or Democratic Senatorial Campaign Committee, the Democratic National Congressional Committee, or the National Republican Congressional Committee. This subsection does not apply to such recording services furnished during the calendar year before the year in which the Member's term expires.
352
(e) Reports by other than political committees. Every person (other than a political committee or candidate) who makes contributions or expenditures, other than by contribution to a political committee or candidate, in an aggregate amount in excess of $100 within a calendar year shall file with the Commission a statement containing the information required by this section. Statements required by this subsection shall be filed on the dates on which reports by political committees are filed but need not be cumulative.
353
s 437a. Reports by certain persons; exemptions.
354
Any person (other than an individual) who expends any funds or commits any act directed to the public for the purpose of influencing the outcome of an election, or who publishes or broadcasts to the public any material referring to a candidate (by name, description, or other reference) advocating the election or defeat of such candidate, setting forth the candidate's position on any public issue, his voting record, or other official acts (in the case of a candidate who holds or has held Federal office), or otherwise designed to influence individuals to cast their votes for or against such candidate or to withhold their votes from such candidate shall file reports with the Commission as if such person were a political committee. The reports filed by such person shall set forth the source of the funds used in carrying out any activity described in the preceding sentence in the same detail as if the funds were contributions within the meaning of section 431(e) of this title, and payments of such funds in the same detail as if they were expenditures within the meaning of section 431(f) of this title. The provisions of this section do not apply to any publication or broadcast of the United States Government or to any news story, commentary, or editorial distributed through the facilities of a broadcasting station or a bona fide newspaper, magazine, or other periodical publication. A news story, commentary, or editorial is not considered to be distributed through a bona fide newspaper, magazine, or other periodical publication if
355
(1) such publication is primarily for distribution to individuals affiliated by membership or stock ownership with the person (other than an individual) distributing it or causing it to be distributed, and not primarily for purchase by the public at newsstands or paid by subscription; or
356
(2) the news story, commentary, or editorial is distributed by a person (other than an individual) who devotes a substantial part of his activities to attempting to influence the outcome of elections, or to influence public opinion with respect to matters of national or State policy or concern.
357
s 437c. Federal Election Commission.
358
(a) Establishment; membership; term of office; vacancies; qualifications; compensation; chairman and vice chairman.
359
(1) There is established a commission to be known as the Federal Election Commission. The Commission is composed of the Secretary of the Senate and the Clerk of the House of Representatives, ex officio and without the right to vote, and six members appointed as follows:
360
(A) two shall be appointed, with the confirmation of a majority of both Houses of the Congress, by the President pro tempore of the Senate upon the recommendations of the majority leader of the Senate and the minority leader of the Senate; (B) two shall be appointed, with the confirmation of a majority of both Houses of the Congress, by the Speaker of the House of Representatives, upon the recommendations of the majority leader of the House and the minority leader of the House; and
361
(C) two shall be appointed, with the confirmation of a majority of both Houses of the Congress, by the President of the United States.
362
A member appointed under subparagraph (A), (B), or (C) shall not be affiliated with the same political party as the other member appointed under such paragraph.
363
(2) Members of the Commission shall serve for terms of 6 years, except that of the members first appointed
364
(A) one of the members appointed under paragraph (1)(A) shall be appointed for a term ending on the April 30 first occurring more than 6 months after the date on which he is appointed;
365
(B) one of the members appointed under paragraph (1)(B) shall be appointed for a term ending 1 year after the April 30 on which the term of the member referred to in subparagraph (A) of this paragraph ends;
366
(C) one of the members appointed under paragraph (1)(C) shall be appointed for a term ending 2 years thereafter;
367
(D) one of the members appointed under paragraph (1)(A) shall be appointed for a term ending 3 years thereafter;
368
(E) one of the members appointed under paragraph (1)(B) shall be appointed for a term ending 4 years thereafter; and
369
(F) one of the members appointed under paragraph (1)(C) shall be appointed for a term ending 5 years thereafter.
370
An individual appointed to fill a vacancy occurring other than by the expiration of a term of office shall be appointed only for the unexpired term of the member he succeeds. Any vacancy occurring in the membership of the Commission shall be filled in the same manner as in the case of the original appointment.
371
(3) Members shall be chosen on the basis of their maturity, experience, integrity, impartiality, and good judgment and shall be chosen from among individuals who, at the time of their appointment, are not elected or appointed officers or employees in the executive, legislative, or judicial branch of the Government of the United States.
372
(4) Members of the Commission (other than the Secretary of the Senate and the Clerk of the House of Representatives) shall receive compensation equivalent to the compensation paid at level IV of the Executive Schedule (5 U.S.C. 5315).
373
(5) The Commission shall elect a chairman and a vice chairman from among its members (other than the Secretary of the Senate and the Clerk of the House of Representatives) for a term of one year. No member may serve as chairman more often than once during any term of office to which he is appointed. The chairman and the vice chairman shall not be affiliated with the same political party. The vice chairman shall act as chairman in the absence or disability of the chairman, or in the event of a vacancy in such office.
374
(b) Administration, enforcement, and formulation of policy; primary jurisdiction of civil enforcement.
375
The Commission shall administer, seek to obtain compliance with, and formulate policy with respect to this Act and sections 608, 610, 611, 613, 614, 615, 616, and 617 of Title 18. The Commission has primary jurisdiction with respect to the civil enforcement of such provisions.
376
(c) Voting requirement; nondelegation of function.
377
All decisions of the Commission with respect to the exercise of its duties and powers under the provisions of this subchapter shall be made by a majority vote of the members of the Commission. A member of the Commission may not delegate to any person his vote or any decisionmaking authority or duty vested in the Commission by the provisions of this subchapter.
378
(d) Meetings.
379
The Commission shall meet at least once each month and also at the call of any member.
380
(e) Rules for conduct of activities; seal, judicial notice; principal office.
381
The Commission shall prepare written rules for the conduct of its activities, shall have an official seal which shall be judicially noticed, and shall have its principal office in or near the District of Columbia (but it may meet or exercise any of its powers anywhere in the United States).
382
(f) Staff director and general counsel: appointment and compensation; appointment and compensation of personnel and procurement of intermittent services by staff director; use of assistance, personnel, and facilities of Federal agencies and departments.
383
(1) The Commission shall have a staff director and a general counsel who shall be appointed by the Commission. The staff director shall be paid at a rate not to exceed the rate of basic pay in effect for level IV of the Executive Schedule (5 U.S.C. 5315). The general counsel shall be paid at a rate not to exceed the rate of basic pay in effect for level V of the Executive Schedule (5 U.S.C. 5316). With the approval of the Commission, the staff director may appoint and fix the pay of such additional personnel as he considers desirable.
384
(2) With the approval of the Commission, the staff director may procure temporary and intermittent services to the same extent as is authorized by section 3109(b) of Title 5, but at rates for individuals not to exceed the daily equivalent of the annual rate of basic pay in effect for grade GS-15 of the general schedule (5 U.S.C. 5332).
385
(3) In carrying out its responsibilities under this Act, the Commission shall, to the fullest extent practicable, avail itself of the assistance, including personnel and facilities, of other agencies and departments of the United States Government. The heads of such agencies and departments may make available to the Commission such personnel, facilities, and other assistance, with or without reimbursement, as the Commission may request.
386
s 437d. Powers of Commission.
387
(a) Specific enumeration.
The Commission has the power
388
(1) to require, by special or general orders, any person to submit in writing such reports and answers to questions as the Commission may prescribe; and such submission shall be made within such a reasonable period of time and under oath or otherwise as the Commission may determine;
389
(2) to administer oaths or affirmations;
390
(3) to require by subpoena, signed by the chairman or the vice chairman, the attendance and testimony of witnesses and the production of all documentary evidence relating to the execution of its duties;
391
(4) in any proceeding or investigation, to order testimony to be taken by deposition before any person who is designated by the Commission and has the power to administer oaths and, in such instances, to compel testimony and the production of evidence in the same manner as authorized under paragraph (3) of this subsection;
392
(5) to pay witnesses the same fees and mileage as are paid in like circumstances in the courts of the United States;
393
(6) to initiate (through civil proceedings for injunctive, declaratory, or other appropriate relief), defend, or appeal any civil action in the name of the Commission for the purpose of enforcing the provisions of this Act, through its general counsel;
394
(7) to render advisory opinions under section 437 of this title;
395
(8) to make, amend, and repeal such rules, pursuant to the provisions of chapter 5 of Title 5, as are necessary to carry out the provisions of this Act;
396
(9) to formulate general policy with respect to the administration of this Act and sections 608, 610, 611, 613, 614, 615, 616, and 617 of Title 18;
397
(10) to develop prescribed forms under subsection (a)(1) of this section; and
398
(11) to conduct investigations and hearings expeditiously, to encourage voluntary compliance, and to report apparent violations to the appropriate law enforcement authorities.
399
(b) Judicial orders for compliance with subpenas and orders of Commission; contempt of court.
400
Any United States district court within the jurisdiction of which any inquiry is carried on, may, upon petition by the Commission, in case of refusal to obey a subpoena or order of the Commission issued under subsection (a) of this section, issue an order requiring compliance therewith. Any failure to obey the order of the court may be punished by the court as a contempt thereof.
401
(c) Civil liability for disclosure of information.
402
No person shall be subject to civil liability to any person (other than the Commission or the United States) for disclosing information at the request of the Commission.
403
(d) Transmittal to Congress: Budget estimates or requests and legislative recommendations; prior transmittal to Congress: legislative recommendations.
404
(1) Whenever the Commission submits any budget estimate or request to the President of the United States or the Office of Management and Budget, it shall concurrently transmit a copy of such estimate or request to the Congress.
405
(2) Whenever the Commission submits any legislative recommendations, or testimony, or comments on legislation, requested by the Congress or by any Member of the Congress, to the President of the United States or the Office of Management and Budget, it shall concurrently transmit a copy thereof to the Congress or to the Member requesting the same. No officer or agency of the United States shall have any authority to require the Commission to submit its legislative recommendations, testimony, or comments on legislation, to any office or agency of the United States for approval, comments, or review, prior to the submission of such recommendations, testimony, or comments to the Congress.
406
s 437e. Reports to President and Congress.
407
The Commission shall transmit reports to the President of the United States and to each House of the Congress no later than March 31 of each year. Each such report shall contain a detailed statement with respect to the activities of the Commission in carrying out its duties under this subchapter, together with recommendations for such legislative or other action as the Commission considers appropriate.
408
s 437f. Advisory opinions.
409
(a) Written requests; written opinions within reasonable time; specific transactions or activities constituting violations of provisions.
410
Upon written request to the Commission by any individual holding Federal office, any candidate for Federal office, or any political committee, the Commission shall render an advisory opinion, in writing, within a reasonable time with respect to whether any specific transaction or activity by such individual, candidate, or political committee would constitute a violation of this Act, of chapter 95 or chapter 96 of Title 26, or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18.
411
(b) Presumption of compliance with provisions based on good faith actions.
412
Notwithstanding any other provision of law, any person with respect to whom an advisory opinion is rendered under subsection (a) of this section who acts in good faith in accordance with the provisions and findings of such advisory opinion shall be presumed to be in compliance with the provision of this Act, of chapter 95 or chapter 96 of Title 26, or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18, with respect to which such advisory opinion is rendered.
413
(c) Requests made public; transmittal to Commission of comments of interested parties with respect to such requests.
414
Any request made under subsection (a) shall be made public by the Commission. The Commission shall before rendering an advisory opinion with respect to such request, provide any interested party with an opportunity to transmit written comments to the Commission with respect to such request. s 437g. Enforcement.
415
(a) Violations; complaints and referrals; notification and investigation by Commission: venue, judicial orders; referral to law enforcement authorities: civil actions by Attorney General: venue, judicial orders, bond; subpenas; review by courts of appeals: time for petition, finality of judgment; review by Supreme Court; docket: advancement and priorities.
416
(1)(A) Any person who believes a violation of this Act or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18, has occurred may file a complaint with the Commission.
417
(B) In any case in which the Clerk of the House of Representatives or the Secretary of the Senate (who receive reports and statements as custodian for the Commission) has reason to believe a violation of this act or section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18 has occurred he shall refer such apparent violation to the Commission.
418
(2) The Commission upon receiving any complaint under paragraph (1)(A), or a referral under paragraph (1)(B), or if it has reason to believe that any person has committed a violation of any such provision, shall notify the person involved of such apparent violation and shall
419
(A) report such apparent violation to the Attorney General; or
420
(B) make an investigation of such apparent violation.
421
(3) Any investigation under paragraph (2)(B) shall be conducted expeditiously and shall include an investigation of reports and statements filed by any complainant under this subchapter, if such complainant is a candidate. Any notification or investigation made under paragraph (2) shall not be made public by the Commission or by any other person without the written consent of the person receiving such notification or the person with respect to whom such investigation is made.
422
(4) The Commission shall, at the request of any person who receives notice of an apparent violation under paragraph (2), conduct a hearing with respect to such apparent violation.
423
(5) If the Commission determines, after investigation, that there is reason to believe that any person has engaged, or is about to engage in any acts or practices which constitute or will constitute a violation of this Act, it may endeavor to correct such violation by informal methods of conference, conciliation, and persuasion. If the Commission fails to correct the violation through informal methods, it may institute a civil action for relief, including a permanent or temporary injunction, restraining order, or any other appropriate order in the district court of the United States for the district in which the person against whom such action is brought is found, resides, or transacts business. Upon a proper showing that such person has engaged or is about to engage in such acts or practices, the court shall grant a permanent or temporary injunction, restraining order, or other order.
424
(6) The Commission shall refer apparent violations to the appropriate law enforcement authorities to the extent that violations of provisions of chapter 29 of Title 18 are involved, or if the Commission is unable to correct apparent violations of this Act under the authority given it by paragraph (5), or if the Commission determines that any such referral is appropriate.
425
(7) Whenever in the judgment of the Commission, after affording due notice and an opportunity for a hearing, any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of this Act or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18, upon request by the Commission the Attorney General on behalf of the United States shall institute a civil action for relief, including a permanent or temporary injunction, restraining order, or any other appropriate order in the district court of the United States for the district in which the person is found, resides, or transacts business. Upon a proper showing that such person has engaged or is about to engage in such acts or practices, a permanent or temporary injunction, restraining order, or other order shall be granted without bond by such court.
426
(8) In any action brought under paragraph (5) or (7) of this subsection, subpenas for witnesses who are required to attend a United States district court may run into any other district.
427
(9) Any party aggrieved by an order granted under paragraph (5) or (7) of this subsection may, at any time within 60 days after the date of entry thereof, file a petition with the United States court of appeals for the circuit in which such order was issued for judicial review of such order.
428
(10) The judgment of the court of appeals affirming or setting aside, in whole or in part, any such order of the district court shall be final, subject to review by the Supreme Court of the United States upon certiorari or certification as provided in section 1254 of Title 28.
429
(11) Any action brought under this subsection shall be advanced on the docket of the court in which filed, and put ahead of all other actions (other than other actions brought under this subsection or under section 437h of this title).
430
(b) Reports of Attorney General to Commission respecting action taken; reports of Commisson respecting status of referrals.
431
In any case in which the Commission refers an apparent violation to the Attorney General, the Attorney General shall respond by report to the Commission with respect to any action taken by the Attorney General regarding such apparent violation. Each report shall be transmitted no later than 60 days after the date the Commission refers any apparent violation, and at the close of every 30-day period thereafter until there is final disposition of such apparent violation. The Commission may from time to time prepare and publish reports on the status of such referrals.
432
s 437h. Judicial review.
433
(a) Actions, including declaratory judgments, for construction of constitutional questions; eligible plaintiffs; certification of such questions to courts of appeals sitting en banc.
434
The Commission, the national committee of any political party, or any individual eligible to vote in any election for the office of President of the United States may institute such actions in the appropriate district court of the United States, including actions for declaratory judgment, as may be appropriate to construe the constitutionality of any provision of this Act or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18. The district court immediately shall certify all questions of constitutionality of this Act or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18, to the United States court of appeals for the circuit involved, which shall hear the matter sitting en banc.
435
(b) Appeal to Supreme Court; time for appeal.
436
Notwithstanding any other provision of law, any decision on a matter certified under subsection (a) of this section shall be reviewable by appeal directly to the Supreme Court of the United States. Such appeal shall be brought no later than 20 days after the decision of the court of appeals.
437
(c) Advancement on appellate docket and expedited deposition of certified questions.
438
It shall be the duty of the court of appeals and of the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any matter certified under subsection (a) of this section.
439
s 438. administrative and judicial provisions.
440
(a) Federal Election Commission; duties.
It shall be the duty of the Commission
441
(1) Forms. To develop and furnish to the person required by the provisions of this Act prescribed forms for the making of the reports and statements required to be filed with it under this subchapter;
442
(2) Manual for uniform bookkeeping and reporting methods. To prepare, publish, and furnish to the person required to file such reports and statements a manual setting forth recommended uniform methods of bookkeeping and reporting;
443
(3) Filing, coding, and cross-indexing system. To develop a filing, coding, and cross-indexing system consonant with the purposes of this subchapter;
444
(4) Public inspection; copies; sale or use restrictions. To make the reports and statements filed with it available for public inspection and copying, commencing as soon as practicable but not later than the end of the second day following the day during which it was received, and to permit copying of any such report or statement by hand or by duplicating machine, as requested by any person, at the expense of such person: Provided, That any information copied from such reports and statements shall not be sold or utilized by any person for the purpose of soliciting contributions or for any commercial purpose;
445
(5) Preservation of reports and statements. To preserve such reports and statements for a period of 10 years from date of receipt, except that reports and statements relating solely to candidates for the House of Representatives shall be preserved for only 5 years from the date of receipt;
446
(6) Index of reports and statements; publication in Federal Register. To compile and maintain a cumulative index of reports and statements filed with it, which shall be published in the Federal Register at regular intervals and which shall be available for purchase directly or by mail for a reasonable price;
447
(7) Special reports; publication. To prepare and publish from time to time special reports listing those candidates for whom reports were filed as required by this subchapter and those candidates for whom such reports were not filed as so required;
448
(8) Audits; investigations. To make from time to time audits and field investigations with respect to reports and statements filed under the provisions of this subchapter, and with respect to alleged failures to file any report or statement required under the provisions of this subchapter;
449
(9) Enforcement authorities; reports of violations. To report apparent violations of law to the appropriate law enforcement authorities; and
450
(10) Rules and regulations. To prescribe suitable rules and regulations to carry out the provisions of this subchapter, in accordance with the provisions of subsection (c) of this section.
451
(b) Commission; duties: national clearinghouse for information; studies, scope, publication, copies to general public at cost. It shall be the duty of the Commission to serve as a national clearinghouse for information in respect to the administration of elections. In carrying out its duties under this subsection, the Commission shall enter into contracts for the purpose of conducting independent studies of the administration of elections. Such studies shall include, but shall not be limited to, studies of
452
(1) the method of selection of, and the type of duties assigned to, officials and personnel working on boards of elections;
453
(2) practices relating to the registration of voters; and
454
(3) voting and counting methods.
455
Studies made under this subsection shall be published by the Commission and copies thereof shall be made available to the general public upon the payment of the cost thereof.
456
(c) Proposed rules or regulations; statement, transmittal to Congress; Presidential elections and Congressional elections; "legislative days" defined.
457
(1) The Commission, before prescribing any rule or regulation under this section, shall transmit a statement with respect to such rule or regulation to the Senate or the House of Representatives, as the case may be, in accordance with the provisions of this subsection. Such statement shall set forth the proposed rule or regulation and shall contain a detailed explanation and justification of such rule or regulation.
458
(2) If the appropriate body of the Congress which receives a statement from the Commission under this subsection does not, through appropriate action, disapprove the proposed rule or regulation set forth in such statement no later than 30 legislative days after receipt of such statement, then the Commission may prescribe such rule or regulation. In the case of any rule or regulation proposed to deal with reports or statements required to be filed under this subchapter by a candidate for the office of President of the United States, and by political committees supporting such a candidate both the Senate and the House of Representatives shall have the power to disapprove such proposed rule or regulation. The Commission may not prescribe any rule or regulation which is disapproved under this paragraph.
459
(3) If the Commission proposes to prescribe any rule or regulation dealing with reports or statements required to be filed under this subchapter by a candidate for the office of Senator, and by political committees supporting such candidate, it shall transmit such statement to the Senate. If the Commission proposes to prescribe any rule or regulation dealing with reports or statements required to be filed under this subchapter by a candidate for the office of Representative, Delegate, or Resident Commissioner, and by political committees supporting such candidate, it shall transmit such statement to the House of Representatives. If the Commission proposes to prescribe any rule or regulation dealing with reports or statements required to be filed under this subchapter by a candidate for the office of President of the United States, and by political committees supporting such candidate it shall transmit such statement to the House of Representatives and the Senate.
460
(4) For purposes of this subsection, the term "legislative days" does not include, with respect to statements transmitted to the Senate, any calendar day on which the Senate is not in session, and with respect to statements transmitted to the House of Representatives, any calendar day on which the House of Representatives is not in session, and with respect to statements transmitted to both such bodies, any calendar day on which both Houses of the Congress are not in session.
461
(d) Rules and regulations; issuance; custody of reports and statements; Congressional cooperation.
462
(1) The Commission shall prescribe suitable rules and regulations to carry out the provisions of this subchapter, including such rules and regulations as may be necessary to require that
463
(A) reports and statements required to be filed under this subchapter by a candidate for the office of Representative in, or Delegate or Resident Commissioner to, the Congress of the United States, and by political committees supporting such candidate, shall be received by the Clerk of the House of Representatives as custodian for the Commission;
464
(B) reports and statements required to be filed under this subchapter by a candidate for the office of Senator, and by political committees supporting such candidate, shall be received by the Secretary of the Senate as custodian for the Commission; and
465
(C) the Clerk of the House of Representatives and the Secretary of the Senate, as custodians for the Commission, each shall make the reports and statements received by him available for public inspection and copying in accordance with paragraph (4) of subsection (a) of this section, and preserve such reports and statements in accordance with paragraph (5) of subsection (a) of this section.
466
(2) It shall be the duty of the Clerk of the House of Representatives and the Secretary of the Senate to cooperate with the Commission in carrying out its duties under this Act and to furnish such services and facilities as may be required in accordance with this section.
467
§ 439. Statements filed with State officers
468
(a) "Appropriate State" defined. A copy of each statement required to be filed with the Commission by this subchapter shall be filed with the Secretary of State (or, if there is no office of Secretary of State, the equivalent State officer) of the appropriate State. For purposes of this subsection, the term "appropriate State" means
469
(1) for reports relating to expenditures and contributions in connection with the campaign for nomination for election, or election, of a candidate to the office of President or Vice President of the United States, each State in which an expenditure is made by him or on his behalf, and
470
(2) for reports relating to expenditures and contributions in connection with the campaign for nomination for election, or election, of a candidate to the office of Senator or Representative in, or Delegate or Resident Commissioner to, the Congress of the United States, the State in which he seeks election.
471
(b) Duties of State officers. It shall be the duty of the Secretary of State, or the equivalent State officer, under subsection (a) of this section
472
(1) to receive and maintain in an orderly manner all reports and statements required by this subchapter to be filed with him;
473
(2) to preserve such reports and statements for a period of 10 years from date of receipt, except that reports and statements relating solely to candidates for the House of Representatives shall be preserved for only 5 years from the date of receipt;
474
(3) to make the reports and statements filed with him available for public inspection and copying during regular office hours, commencing as soon as practicable but not later than the end of the day during which it was received and to permit copying of any such report or statement by hand or by duplicating machine, requested by any person, at the expense of such person; and
475
(4) to compile and maintain current list of all statements or parts of statements pertaining to each candidate.
476
s 439a. Use of contributed amounts for certain purposes; rules of Commission.
477
Amounts received by a candidate as contributions that are in excess of any amount necessary to defray his expenditures, and any other mounts contributed to an individual for the purpose of supporting his activities as a holder of Federal office, may be used by such candidate or individual, as the case may be, to defray any ordinary and necessary expenses incurred by him in connection with his duties as a holder of Federal office, may be contributed by him to any organization described in section 170(c) of Title 26, or may be used for any other lawful purpose. To the extent any such contribution, amount contributed, or expenditure thereof is not otherwise required to be disclosed under the provisions of this subchapter, such contribution, amount contributed, or expenditure shall be fully disclosed in accordance with rules promulgated by the Commission. The Commission is authorized to prescribe such rules as may be necessary to carry out the provisions of this section.
478
s 441. Penalties for violations.
479
(a) Any person who violates any of the provisions of this subchapter shall be fined not more than $1,000 or imprisoned not more than 1 year, or both.
480
(b) In case of any conviction under this subchapter, where the punishment inflicted does not include imprisonment, such conviction shall be deemed a misdemeanor conviction only.
SUBCHAPTER II. GENERAL PROVISIONS
481
s 454. Partial invalidity.
482
If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the validity of the remainder of the Act and the application of such provision to other persons and circumstances shall not be affected thereby.
483
s 456. Additional enforcement authority.
484
(a) Findings, after notice and hearing, or failure to file timely reports; disqualification for prescribed period from candidacy in future Federal elections.
485
In any case in which the Commission, after notice and opportunity for a hearing on the record in accordance with section 554 of Title 5, makes a finding that a person who, while a candidate for Federal office, failed to file a report required by subchapter I of this chapter, and such finding is made before the expiration of the time within which the failure to file such report may be prosecuted as a violation of such subchapter I, such person shall be disqualified from becoming a candidate in any future election for Federal office for a period of time beginning on the date of such finding and ending one year after the expiration of the term of the Federal office for which such person was a candidate.
486
(b) Judicial review of findings.
487
Any finding by the Commission under subsection (a) of this section shall be subject to judicial review in accordance with the provisions of chapter 7 of Title 5.
TITLE 18. CRIMES AND CRIMINAL PROCEDURE
CHAPTER 29 ELECTIONS AND POLITICAL ACTIVITIES
488
s 591. Definitions.
489
Except as otherwise specifically provided, when used in this section and in sections 597, 599, 600, 602, 608, 610, 611, 614, 615, and 617 of this title
490
(a) "election" means
491
(1) a general, special, primary, or runoff election,
492
(2) a convention or caucus of a political party held to nominate a candidate,
493
(3) a primary election held for the selection of delegates to a national nominating convention of a political party, or
494
(4) a primary election held for the expression of a preference for the nomination of persons for election to the office of President;
495
(b) a "candidate" means an individual who seeks nomination for election, or election, to Federal office, whether or not such individual is elected, and, for purposes of this paragraph, an individual shall be deemed to seek nomination for election, or election, to Federal office, if he has
496
(1) taken the action necessary under the law of a State to qualify himself for nomination for election, or election, or
497
(2) received contributions or made expenditures, or has given his consent for any other person to receive contributions or make expenditures, with a view to bringing about his nomination for election, or election, to such office;
498
(c) "Federal office" means the office of President or Vice President of the United States, or Senator or Representative in, or Delegate or Resident Commissioner to, the Congress of the United States;
499
(d) "political committee" means any committee, club, association, or other group of persons which receives contributions or makes expenditures during a calendar year in an aggregate amount, exceeding $1,000;
500
(e) "contribution"
501
(1) means a gift, subscription, loan, advance, or deposit of money or anything of value (except a loan of money by a national or State bank made in accordance with the applicable banking laws and regulations and in the ordinary course of business, which shall be considered a loan by each endorser or guarantor, in that proportion of the unpaid balance thereof that each endorser or guarantor bears to the total number of endorsers or guarantors), made for the purpose of influencing the nomination for election, or election, of any person to Federal office or for the purpose of influencing the results of a primary held for the selection of delegates to a national nominating convention of a political party or for the expression of a preference for the nomination of persons for election to the office of President of the United States;
502
(2) means a contract, promise, or agreement, express or implied, whether or not legally enforceable, to make a contribution for such purposes;
503
(3) means funds received by a political committee which are transferred to such committee from another political committee or other source; (4) means the payment, by any person other than a candidate or a political committee, of compensation for the personal services of another person which are rendered to such candidate or political committee without charge for any such purpose; but
504
(5) does not include
505
(A) the value of services provided without compensation by individuals who volunteer a portion or all of their time on behalf of a candidate or political committee;
506
(B) the use of real or personal property and the cost of invitations, food, and beverages, voluntarily provided by an individual to a candidate in rendering voluntary personal services on the individual's residential premises for candidate-related activities;
507
(C) the sale of any food or beverage by a vendor for use in a candidate's campaign at a charge less than the normal comparable charge, if such charge for use in a candidate's campaign is at least equal to the cost of such food or beverage to the vendor;
508
(D) any unreimbursed payment for travel expenses made by an individual who on his own behalf volunteers his personal services to a candidate; or
509
(E) the payment by a State or local committee of a political party of the costs of preparation, display, or mailing or other distribution incurred by such committee with respect to a printed slate card or sample ballot, or other printed listing, of three or more candidates for any public office for which an election is held in the State in which such committee is organized, except that this clause shall not apply in the case of costs incurred by such committee with respect to a display of any such listing made on broadcasting stations, or in newspapers, magazines or other similar types of general public political advertising;
510
to the extent that the cumulative value of activities by any person on behalf of any candidate under each of clauses (B), (C), and (D) does not exceed $500 with respect to any election;
511
(f) "expenditure"
512
(1) means a purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value (except a loan of money by a national or State bank made in accordance with the applicable banking laws and regulations and in the ordinary course of business), made for the purpose of influencing the nomination for election, or election, of any person to Federal office or for the purpose of influencing the results of a primary held for the selection of delegates to a national nominating convention of a political party or for the expression of a preference for the nomination of persons for election to the office of President of the United States;
513
(2) means a contract, promise, or agreement, express or implied, whether or not legally enforceable, to make any expenditure; and
514
(3) means the transfer of funds by a political committee to another political committee; but (4) does not include
515
(A) any news story, commentary or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate;
516
(B) nonpartisan activity designed to encourage individuals to register to vote or to vote;
517
(C) any communication by any membership organization or corporation to its members or stockholders, if such membership organization or corporation is not organized primarily for the purpose of influencing the nomination for election, or election, of any person to Federal office;
518
(D) the use of real or personal property and the cost of invitations, food, and beverages, voluntarily provided by an individual to a candidate in rendering voluntary personal services on the individual's residential premises for candidate-related activities;
519
(E) any unreimbursed payment for travel expenses made by an individual who on his own behalf volunteers his personal services to a candidate;
520
(F) any communication by any person which is not made for the purpose of influencing the nomination for election, or election, of any person to Federal office;
521
(G) the payment by a State or local committee of a political party of the costs of preparation, display, or mailing or other distribution incurred by such committee with respect to a printed slate card or sample ballot, or other printed listing, of three or more candidates for any public office for which an election is held in the State in which such committee is organized, except that this clause shall not apply in the case of costs incurred by such committee with respect to a display of any such listing made on broadcasting stations, or in newspapers, magazines or other similar types of general public political advertising;
522
(H) any costs incurred by a candidate in connection with the solicitation of contributions by such candidate, except that this clause shall not apply with respect to costs incurred by a candidate in excess of an amount equal to 20 percent of the expenditure limitation applicable to such candidate under section 608(c) of this title; or
523
(I) any costs incurred by a political committee (as such term is defined by section 608(b)(2) of this title) with respect to the solicitation of contributions to such political committee or to any general political fund controlled by such political committee, except that this clause shall not apply to exempt costs incurred with respect to the solicitation of contributions to any such political committee made through broadcasting stations, newspapers, magazines, outdoor advertising facilities, and other similar types of general public political advertising;
524
to the extent that the cumulative value of activities by any individual on behalf of any candidate under each of clauses (D) or (E) does not exceed $500 with respect to any election;
525
(g) "person" and "whoever" mean an individual, partnership, committee, association, corporation, or any other organization or group of persons;
526
(h) "State" means each State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States;
527
(i) "political party" means any association, committee, or organization which nominates a candidate for election to any Federal office whose name appears on the election ballot as the candidate of such association, committee, or organization;
528
(j) "State committee" means the organization which, by virtue of the bylaws of a political party, is responsible for the day-to-day operation of such political party at the State level, as determined by the Federal Election Commission;
529
(k) "national committee" means the organization which, by virtue of the bylaws of the political party, is responsible for the day-to-day operation of such political party at the national level, as determined by the Federal Election Commission established under section 437c(a) of Title 2; and
530
(l) "principal campaign committee" means the principal campaign committee designated by a candidate under section 432(f)(1) of Title 2.
531
s 608. Limitations on contributions and expenditures
532
(a) Personal funds of candidate and family.
533
(1) No candidate may make expenditures from his personal funds, or the personal funds of his immediate family, in connection with his campaigns during any calendar year for nomination for election, or for election, to Federal office in excess of, in the aggregate
534
(A) $50,000, in the case of a candidate for the office of President or Vice President of the United States;
535
(B) $35,000, in the case of a candidate for the office of Senator or for the office of Representative from a State which is entitled to only one Representative; or
536
(C) $25,000, in the case of a candidate for the office of Representative, or Delegate or Resident Commissioner, in any other State.
537
For purposes of this paragraph, any expenditure made in a year other than the calendar year in which the election is held with respect to which such expenditure was made, is considered to be made during the calendar year in which such election is held.
538
(2) For purposes of this subsection, "immediate family" means a candidate's spouse, and any child, parent, grandparent, brother, or sister of the candidate, and the spouses of such persons.
539
(3) No candidate or his immediate family may make loans or advances from their personal funds in connection with his campaign for nomination for election, or for election, to Federal office unless such loan or advance is evidenced by a written instrument fully disclosing the terms and conditions of such loan or advance.
540
(4) For purposes of this subsection, any such loan or advance shall be included in computing the total amount of such expenditures only to the of the balance of such loan or advance outstanding and unpaid.
541
(b) Contributions by persons and committees.
542
(1) Except as otherwise provided by paragraphs (2) and (3), no person shall make contributions to any candidate with respect to any election for Federal office which, in the aggregate, exceed $1,000.
543
(2) No political committee (other than a principal campaign committee) shall make contributions to any candidate with respect to any election for Federal office which, in the aggregate, exceed $5,000. Contributions by the national committee of a political party serving as the principal campaign committee of a candidate for the office of President of the United States shall not exceed the limitation imposed by the preceding sentence with respect to any other candidate for Federal office. For purposes of this paragraph, the term "political committee" means an organization registered as a political committee under section 433, Title 2, United States Code, for a period of not less than 6 months which has received contributions from more than 50 persons and, except for any State political party organization, has made contributions to 5 or more candidates for Federal office.
544
(3) No individual shall make contributions aggregating more than $25,000 in any calendar year. For purposes of this paragraph, any contribution made in a year other than the calendar year in which the election is held with respect to which such contribution was made, is considered to be made during the calendar year in which such election is held.
545
(4) For purposes of this subsection
546
(A) contributions to a named candidate made to any political committee authorized by such candidate, in writing, to accept contributions on his behalf shall be considered to be contributions made to such candidate; and
547
(B) contributions made to or for the benefit of any candidate nominated by a political party for election to the office of Vice President of the United States shall be considered to be contributions made to or for the benefit of the candidate of such party for election to the office of President of the United States.
548
(5) The limitations imposed by paragraphs (1) and (2) of this subsection shall apply separately with respect to each election, except that all elections held in any calendar year for the office of President of the United States (except a general election for such office) shall be considered to be one election.
549
(6) For purposes of the limitations imposed by this section, all contributions made by a person, either directly or indirectly, on behalf of a particular candidate, including contributions which are in any way earmarked or otherwise directed through an intermediary or conduit to such candidate, shall be treated as contributions from such person to such candidate. The intermediary or conduit shall report the original source and the intended recipient of such contribution to the Commission and to the intended recipient.
550
(c) Limitations on expenditures.
551
(1) No candidate shall make expenditures in excess of
552
(A) $10,000,000, in the case of a candidate for nomination for election to the office of President of the United States, except that the aggregate of expenditures under this subparagraph in any one State shall not exceed twice the expenditure limitation applicable in such State to a candidate for nomination for election to the office of Senator, Delegate, or Resident Commissioner, as the case may be;
553
(B) $20,000,000, in the case of a candidate for election to the office of President of the United States;
554
(C) in the case of any campaign for nomination for election by a candidate for the office of Senator or by a candidate for the office of Representative from a State which is entitled to only one Representative, the greater of
555
(i) 8 cents multiplied by the voting age population of the State (as certified under subsection (g)); or
556
(ii) $100,000;
557
(D) in the case of any campaign for election by a candidate for the office of Senator or by a candidate for the office of Representative from a State which is entitled to only one Representative, the greater of
558
(i) 12 cents multiplied by the voting age population of the State (as certified under subsection (g)); or
559
(ii) $150,000;
560
(E) $70,000, in the case of any campaign for nomination for election, or for election, by a candidate for the office of Representative in any other State, Delegate from the District of Columbia, or Resident Commissioner; or
561
(F) $15,000, in the case of any campaign for nomination for election, or for election, by a candidate for the office of Delegate from Guam or the Virgin Islands.
562
(2) For purposes of this subsection
563
(A) expenditures made by or on behalf of any candidate nominated by a political party for election to the office of Vice President of the United States shall be considered to be expenditures made by or on behalf of the candidate of such party for election to the office of President of the United States; and
564
(B) an expenditure is made on behalf of a candidate, including a vice presidential candidate, if it is made by
565
(i) an authorized committee or any other agent of the candidate for the purposes of making any expenditure; or
566
(ii) any person authorized or requested by the candidate, an authorized committee of the candidate, or an agent of the candidate, to make the expenditure.
567
(3) The limitations imposed by subparagraphs (C), (D), (E), and (F) of paragraph (1) of this subsection shall apply separately with respect to each election.
568
(4) The Commission shall prescribe rules under which any expenditure by a candidate for presidential nomination for use in 2 or more States shall be attributed to such candidate's expenditure limitation in each such State, based on the voting age population in such State which can reasonably be expected to be influenced by such expenditure.
569
(d) Adjustment of limitations based on price index.
570
(1) At the beginning of each calendar year (commencing in 1976), as there become available necessary data from the Bureau of Labor Statistics of the Department of Labor, the Secretary of Labor shall certify to the Commission and publish in the Federal Register the per centum difference between the price index for the 12 months preceding the beginning of such calendar year and the price index for the base period. Each limitation established by subsection (c) and subsection (f) shall be increased by such per centum difference. Each amount so increased shall be the amount in effect for such calendar year.
571
(2) For purposes of paragraph (1)
572
(A) the term "price index" means the average over a calendar year of the Consumer Price Index (all items United States city average) published monthly by the Bureau of Labor Statistics; and
573
(B) the term "base period" means the calendar year 1974.
574
(e) Expenditure relative to clearly identified candidate.
575
(1) No person may make any expenditure (other than an expenditure made by or on behalf of a candidate within the meaning of subsection (c)(2)(B)) relative to a clearly identified candidate during a calendar year which, when added to all other expenditures made by such person during the year advocating the election or defeat of such candidate, exceeds $1,000.
576
(2) For purposes of paragraph (1)
577
(A) "clearly identified" means
578
(i) the candidate's name appears;
579
(ii) a photograph or drawing of the candidate appears; or (iii) the identity of the candidate is apparent by unambiguous reference; and
580
(B) "expenditure" does not include any payment made or incurred by a corporation or a labor organization which, under the provisions of the last paragraph of section 610, would not constitute an expenditure by such corporation or labor organization.
581
(f) Exceptions for national and State committees.
582
(1) Notwithstanding any other provision of law with respect to limitations on expenditures or limitations on contributions, the national committee of a political party and a State committee of a political party, including any subordinate committee of a State committee, may make expenditures in connection with the general election campaign of candidates for Federal office, subject to the limitations contained in paragraphs (2) and (3) of this subsection.
583
(2) The national committee of a political party may not make any expenditure in connection with the general election campaign of any candidate for President of the United States who is affiliated with such party which exceeds an amount equal to 2 cents multiplied by the voting age population of the United States (as certified under subsection (g)). Any expenditure under this paragraph shall be in addition to any expenditure by a national committee of a political party serving as the principal campaign committee of a candidate for the office of President of the United States.
584
(3) The national committee of a political party, or a State committee of a political party, including any subordinate committee of a State committee, may not make any expenditure in connection with the general election campaign of a candidate for Federal office in a State who is affiliated with such party which exceeds
585
(A) in the case of a candidate for election to the office of Senator, or of Representative from a State which is entitled to only one Representative, the greater of
586
(i) 2 cents multiplied by the voting age population of the State (as certified under subsection (g)); or
587
(ii) $20,000; and
588
(B) in the case of a candidate for election to the office of Representative, Delegate, or Resident Commissioner in any other State, $10,000.
589
(g) Voting age population estimates. During the first week of January 1975, and every subsequent year, the Secretary of Commerce shall certify to the Commission and publish in the Federal Register an estimate of the voting age population of the United States, of each State, and of each congressional district as of the first day of July next preceding the date of certification. The term "voting age population" means resident population, 18 years of age or older.
590
(h) Knowing violations. No candidate or political committee shall knowingly accept any contribution or make any expenditure in violation of the provisions of this section. No officer or employee of a political committee shall knowingly accept a contribution made for the benefit or use of a candidate, or knowingly make any expenditure on behalf of a candidate, in violation of any limitation imposed on contributions and expenditures under this section.
591
(i) Penalties. Any person who violates any provision of this section shall be fined not more than $25,000 or imprisoned not more than 1 year, or both.
592
(§ 609. Repealed.) s 610. Contributions or expenditures by national banks, corporations or labor organizations.
593
It is unlawful for any national bank, or any corporation organized by authority of any law of Congress, to make a contribution or expenditure in connection with any election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office, or for any corporation whatever, or any labor organization to make a contribution or expenditure in connection with any election at which presidential and vice presidential electors or a Senator or Representative in, or a Delegate or Resident Commissioner to Congress are to be voted for, or in connection with any primary election or political convention or caucus held to select candidates for any of the foregoing offices, or for any candidate, political committee, or other person to accept or receive any contribution prohibited by this section.
594
Every corporation or labor organization which makes any contribution or expenditure in violation of this section shall be fined not more than $25,000; and every officer or director of any corporation, or officer of any labor organization, who consents to any contribution or expenditure by the corporation or labor organization, as the case may be, and any person who accepts or receives any contribution, in violation of this section, shall be fined not more than $1,000 or imprisoned not more than 1 year, or both; and if the violation was willful, shall be fined not more than $50,000 or imprisoned not more than 2 years or both.
595
For the purposes of this section "labor organization" means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exist for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.
596
As used in this section, the phrase "contribution or expenditure" shall include any direct or indirect payment, distribution, loan, advance, deposit, or gift of money, or any services, or anything of value (except a loan of money by a national or State bank made in accordance with the applicable banking laws and regulations and in the ordinary course of business) to any candidate, campaign committee, or political party or organization, in connection with any election to any of the offices referred to in this section; but shall not include communications by a corporation to its stockholders and their families or by a labor organization to its members and their families on any subject; nonpartisan registration and get-out-the-vote campaigns by a corporation aimed at its stockholders and their families, or by a labor organization aimed at its members and their families; the establishment, administration, and solicitation of contributions to a separate segregated fund to be utilized for political purposes by a corporation or labor organization: Provided, That it shall be unlawful for such a fund to make a contribution or expenditure by utilizing money or anything of value secured by physical force, job discrimination, financial reprisals, or the threat of force, job discrimination, or financial reprisal; or by dues, fees, or other monies required as a condition of membership in a labor organization or as a condition of employment, or by monies obtained in any commercial transaction.
597
s 611. Contributions by Government contractors.
Whoever
598
(a) entering into any contract with the United States or any department or agency thereof either for the rendition of personal services or furnishing any material, supplies, or equipment to the United States or any department or agency thereof or for selling any land or building to the United States or any department or agency thereof, if payment for the performance of such contract or payment for such material, supplies, equipment, land, or building is to be made in whole or in part from funds appropriated by the Congress, at any time between the commencement of negotiations for and the later of
599
(1) the completion of performance under, or
600
(2) the termination of negotiations for, such contract or furnishing of material, supplies, equipment, land or buildings,
601
directly or indirectly makes any contribution of money or other thing of value, or promises expressly or impliedly to make any such contribution, to any political party, committee, or candidate for public office or to any person for any political purpose or use; or
602
(b) knowingly solicits any such contribution from any such person for any such purpose during any such period;
603
shall be fined not more than $25,000 or imprisoned not more than 5 years, or both.
604
This section does not prohibit or make unlawful the establishment or administration of, or the solicitation of contributions to, any separate segregated fund by any corporation or labor organization for the purpose of influencing the nomination for election, or election, of any person to Federal office, unless the provisions of section 610 of this title prohibit or make unlawful the establishment or administration of, or the solicitation of contributions to, such fund.
605
For purposes of this section, the term "labor organization" has the meaning given it by section 610 of this title.
TITLE 26. INTERNAL REVENUE CODE
606
s 6096. Designation by individuals.
607
(a) In general. Every individual (other than a nonresident alien) whose income tax liability for the taxable year is $1 or more may designate that $1 shall be paid over to the Presidential Election Campaign Fund in accordance with the provisions of section 9006(a). In the case of a joint return of husband and wife having an income tax liability of $2 or more, each spouse may designate that $1 shall be paid to the fund.
608
(b) Income tax liability. For purposes of subsection (a), the income tax liability for an individual for any taxable year is the amount of the tax imposed by chapter 1 on such individual for such taxable year (as shown on his return), reduced by the sum of the credits (as shown in his return) allowable under sections 33, 37, 38, 40, and 41.
609
(c) Manner and time of designation. A designation under subsection (a) may be made with respect to any taxable year
610
(1) at the time of filing the return of the tax imposed by chapter 1 for such taxable year, or
611
(2) at any other time (after the time of filing the return of the tax imposed by chapter 1 for such taxable year) specified in regulations prescribed by the Secretary or his delegate.
612
Such designation shall be made in such manner as the Secretary or his delegate prescribes by regulations except that, if such designation is made at the time of filing the return of the tax imposed by chapter 1 for such taxable year, such designation shall be made either on the first page of the return or on the page bearing the taxpayer's signature.
CHAPTER 95 PRESIDENTIAL ELECTION CAMPAIGN FUND
613
s 9001. Short title.
614
This chapter may be cited as the "Presidential Election Campaign Fund Act."
615
s 9002. Definitions.
For purposes of this chapter
616
(1) The term "authorized committee" means, with respect to the candidates of a political party for President and Vice President of the United States, any political committee which is authorized in writing by such candidates to incur expenses to further the election of such candidates. Such authorization shall be addressed to the chairman of such political committee, and a copy of such authorization shall be filed by such candidates with the Commission. Any withdrawal of any authorization shall also be in writing and shall be addressed and filed in the same manner as the authorization.
617
(2) The term "candidate" means, with respect to any presidential election, an individual who
618
(A) has been nominated for election to the office of President of the United States or the office of Vice President of the United States by a major party, or
619
(B) has qualified to have his name on the election ballot (or to have the names of electors pledged to him on the election ballot) as the candidate of a political party for election to either such office in 10 or more States.
620
For purposes of paragraphs (6) and (7) of this section and purposes of section 9004(a)(2), the term "candidate" means, with respect to any preceding presidential election, an individual who received popular votes for the office of President in such election.
621
(3) The term "Commission" means the Federal Election Commission established by section 437c(a)(1) of Title 2, United States Code.
622
(4) The term "eligible candidates" means the candidates of a political party for President and Vice President of the United States who have met all applicable conditions for eligibility to receive payments under this chapter set forth in section 9003.
623
(5) The term "fund" means the Presidential Election Campaign Fund established by section 9006(a).
624
(6) The term "major party" means, with respect to any presidential election, a political party whose candidate for the office of President in the preceding presidential election received, as the candidate of such party, 25 percent or more of the total number of popular votes received by all candidates for such office.
625
(7) The term "minor party" means, with respect to any presidential election, a political party whose candidate for the office of President in the preceding presidential election received, as the candidate of such party, 5 percent or more but less than 25 percent of the total number of popular votes received by all candidates for such office.
626
(8) The term "new party" means, with respect to any presidential election, a political party which is neither a major party nor a minor party.
627
(9) The term "political committee" means any committee, association, or organization (whether or not incorporated) which accepts contributions or makes expenditures for the purpose of influencing, or attempting to influence, the nomination or election of one or more individuals to Federal, State, or local elective public office.
628
(10) The term "presidential election" means the election of presidential and vice-presidential electors.
629
(11) The term "qualified campaign expense" means an expense
630
(A) incurred
631
(i) by the candidate of a political party for the office of President to further his election to such office or to further the election of the candidate of such political party for the office of Vice President, or both,
632
(ii) by the candidate of a political party for the office of Vice President to further his election to such office or to further the election of the candidate of such political party for the office of President, or both, or
633
(iii) by an authorized committee of the candidates of a political party for the offices of President and Vice President to further the election of either or both of such candidates to such offices;
634
(B) incurred within the expenditure report period (as defined in paragraph (12)), or incurred before the beginning of such period to the extent such expense is for property, services, or facilities used during such period; and
635
(C) neither the incurring nor payment of which constitutes a violation of any law of the United States or of the State in which such expense is incurred or paid.
636
An expense shall be considered as incurred by a candidate or an authorized committee if it is incurred by a person authorized by such candidate or such committee, as the case may be, to incur such expense on behalf of such candidate or such committee. If an authorized committee of the candidates of a political party for President and Vice President of the United States also incurs expenses to further the election of one or more other individuals to Federal, State, or local elective public office, expenses incurred by such committee which are not specifically to further the election of such other individual or individuals shall be considered as incurred to further the election of such candidates for President and Vice President in such proportion as the Commission prescribes by rules or regulations.
637
(12) The term "expenditure report period" with respect to any presidential election means
638
(A) in the case of a major party, the period beginning with the first day of September before the election, or, if earlier, with the date on which such major party at its national convention nominated its candidate for election to the office of President of the United States, and ending 30 days after the date of the presidential election; and
639
(B) in the case of a party which is not a major party, the same period as the expenditure report period of the major party which has the shortest expenditure report period for such presidential election under subparagraph (A).
640
s 9003. Condition for eligibility for payments.
641
(a) In general. In order to be eligible to receive any payments under section 9006, the candidates of a political party in a presidential election shall, in writing
642
(1) agree to obtain and furnish to the Commission such evidence as it may request of the qualified campaign expenses of such candidates;
643
(2) agree to keep and furnish to the Commission such records, books, and other information as it may request; and
644
(3) agree to an audit and examination by the Commission under section 9007 and to pay any amounts required to be paid under such section.
645
(b) Major parties. In order to be eligible to receive any payments under section 9006, the candidates of a major party in a presidential election shall certify to the Commission, under penalty of perjury, that
646
(1) such candidates and their authorized committees will not incur qualified campaign expenses in excess of the aggregate payments to which they will be entitled under section 9004; and
647
(2) no contributions to defray qualified campaign expenses have been or will be accepted by such candidates or any of their authorized committees except to the extent necessary to make up any deficiency in payments received out of the fund on account of the application of section 9006(d), and no contributions to defray expenses which would be qualified campaign expenses but for subparagraph (C) of section 9002(11) have been or will be accepted by such candidates or any of their authorized committees.
648
Such certification shall be made within such time prior to the day of the presidential election as the Commission shall prescribe by rules or regulations.
649
(c) Minor and new parties. In order to be eligible to receive any payments under section 9006, the candidates of a minor or new party in a presidential election shall certify to the Commission, under penalty of perjury, that
650
(1) such candidates and their authorized committees will not incur qualified campaign expenses in excess of the aggregate payments to which the eligible candidates of a major party are entitled under section 9004; and (2) such candidates and their authorized committees will accept and expend or retain contributions to defray qualified campaign expenses only to the extent that the qualified campaign expenses incurred by such candidates and their authorized committees certified to under paragraph (1) exceed the aggregate payments received by such candidates out of the fund pursuant to section 9006.
651
Such certification shall be made within such time prior to the day of the presidential election as the Commission shall prescribe by rules or regulations.
652
s 9004. Entitlement of eligible candidates to payments.
653
(a) In general. Subject to the provisions of this chapter
654
(1) The eligible candidates of each major party in a presidential election shall be entitled to equal payments under section 9006 in an amount which, in the aggregate, shall not exceed the expenditure limitations applicable to such candidates under section 608(c)(1)(B) of Title 18, United States Code.
655
(2)(A) The eligible candidates of a minor party in a presidential election shall be entitled to payments under section 9006 equal in the aggregate to an amount which bears the same ratio to the amount allowed under paragraph (1) for a major party as the number of popular votes received by the candidate for President of the minor party, as such candidate, in the preceding presidential election bears to the average number of popular votes received by the candidates for President of the major parties in the preceding presidential election.
656
(B) If the candidate of one or more political parties (not including a major party) for the office of President was a candidate for such office in the preceding presidential election and received 5 percent or more but less than 25 percent of the total number of popular votes received by all candidates for such office, such candidate and his running mate for the office of Vice President, upon compliance with the provisions of section 9003(a) and (c), shall be treated as eligible candidates entitled to payments under section 9006 in an amount computed as provided in subparagraph (A) by taking into account all the popular votes received by such candidate for the office of President in the preceding presidential election. If eligible candidates of a minor party are entitled to payments under this subparagraph, such entitlement shall be reduced by the amount of the entitlement allowed under subparagraph (A).
657
(3) The eligible candidates of a minor party or a new party in a presidential election whose candidate for President in such election receives, as such candidate, 5 percent or more of the total number of popular votes cast for the office of President in such election shall be entitled to payments under section 9006 equal in the aggregate to an amount which bears the same ratio to the amount allowed under paragraph (1) for a major party as the number of popular votes received by such candidate in such election bears to the average number of popular votes received in such election by the candidates for President of the major parties. In the case of eligible candidates entitled to payments under paragraph (2), the amount allowable under this paragraph shall be limited to the amount, if any, by which the entitlement under the preceding sentence exceeds the amount of the entitlement under paragraph (2).
658
(b) Limitations. The aggregate payments to which the eligible candidates of a political party shall be entitled under subsections (a)(2) and (3) with respect to a presidential election shall not exceed an amount equal to the lower of
659
(1) the amount of qualified campaign expenses incurred by such eligible candidates and their authorized committees, reduced by the amount of contributions to defray qualified campaign expenses received and expended or retained by such eligible candidates and such committees; or
660
(2) the aggregate payments to which the eligible candidates of a major party are entitled under subsection (a)(1), reduced by the amount of contributions described in paragraph (1) of this subsection.
661
(c) Restrictions. The eligible candidates of a political party shall be entitled to payments under subsection (a) only
662
(1) to defray qualified campaign expenses incurred by such eligible candidates or their authorized committees; or
663
(2) to repay loans the proceeds of which were used to defray such qualified campaign expenses, or otherwise to restore funds (other than contributions to defray qualified campaign expenses received and expended by such candidates or such committees) used to defray such qualified campaign expenses.
664
s 9005. Certification by Commission.
665
(a) Initial certifications. Not later than 10 days after the candidates of a political party for President and Vice President of the United States have met all applicable conditions for eligibility to receive payments under this chapter set forth in section 9003, the Commission shall certify to the Secretary for payment to such eligible candidates under section 9006 payment in full of amounts to which such candidates are entitled under section 9004.
666
(b) Finality of certifications and determinations. Initial certifications by the Commission under subsection (a), and all determinations made by it under this chapter shall be final and conclusive, except to the extent that they are subject to examination and audit by the Commission under section 9007 and judicial review under section 9011.
667
s 9006. Payments to eligible candidates.
668
(a) Establishment of campaign fund. There is hereby established on the books of the Treasury of the United States a special fund to be known as the "Presidential Election Campaign Fund." The Secretary shall, from time to time, transfer to the fund an amount not in excess of the sum of the amounts designated (subsequent to the previous Presidential election) to the fund by individuals under section 6096. There is appropriated to the fund for each fiscal year, out of amounts in the general fund of the Treasury not otherwise appropriated, an amount equal to the amounts so designated during each fiscal year, which shall remain available to the fund without fiscal year limitation.
669
(b) Transfer to the general fund. If, after a Presidential election and after all eligible candidates have been paid the amount which they are entitled to receive under this chapter, there are moneys remaining in the fund, the Secretary shall transfer the moneys so remaining to the general fund of the Treasury.
670
(c) Payments from the fund. Upon receipt of a certification from the Commission under section 9005 for payment to the eligible candidates of a political party, the Secretary shall pay to such candidates out of the fund the amount certified by the Commission. Amounts paid to any such candidates shall be under the control of such candidates.
671
(d) Insufficient amounts in fund. If at the time of aertification by the Commission under section 9005 for payment to the eligible candidates of a political party, the Secretary or his delegate determines that the moneys in the fund are not, or may not be, sufficient to satisfy the full entitlements of the eligible candidates of all political parties, he shall withhold from such payment such amount as he determines to be necessary to assure that the eligible candidates of each political party will receive their pro rata share of their full entitlement. Amounts withheld by reason of the preceding sentence shall be paid when the Secretary or his delegate determines that there are sufficient moneys in the fund to pay such amounts, or portions thereof, to all eligible candidates from whom amounts have been withheld, but, if there are not sufficient moneys in the fund to satisfy the full entitlement of the eligible candidates of all political parties, the amounts so withheld shall be paid in such manner that the eligible candidates of each political party receive their pro rata share of their full entitlement.
672
s 9007. Examinations and audits; repayments.
673
(a) Examinations and audits. After each presidential election, the Commission shall conduct a thorough examination and audit of the qualified campaign expenses of the candidates of each political party for President and Vice President.
674
(b) Repayments.
675
(1) If the Commission determines that any portion of the payments made to the eligible candidates of a political party under section 9006 was in excess of the aggregate payments to which candidates were entitled under section 9004, it shall so notify such candidates, and such candidates shall pay to the Secretary an amount equal to such portion.
676
(2) If the Commission determines that the eligible candidates of a political party and their authorized committees incurred qualified campaign expenses in excess of the aggregate payments to which the eligible candidates of a major party were entitled under section 9004, it shall notify such candidates of the amount of such excess and such candidates shall pay to the Secretary an amount equal to such amount.
677
(3) If the Commission determines that the eligible candidates of a major party or any authorized committee of such candidates accepted contributions (other than contributions to make up deficiencies in payments out of the fund on account of the application of section 9006(d)) to defray qualified campaign expenses (other than qualified campaign expenses with respect to which payment is required under paragraph (2)), it shall notify such candidates of the amount of the contributions so accepted, and such candidates shall pay to the Secretary an amount equal to such amount.
678
(4) If the Commission determines that any amount of any payment made to the eligible candidates of a political party under section 9006 was used for any purpose other than
679
(A) to defray the qualified campaign expenses with respect to which such payment was made; or
680
(B) to repay loans the proceeds of which were used, or otherwise to restore funds (other than contributions to defray qualified campaign expenses which were received and expended) which were used to defray such qualified campaign expenses,
681
it shall notify such candidates of the amount so used, and such candidates shall pay to the Secretary an amount equal to such amount.
682
(5) No payment shall be required from the eligible candidates of a political party under this subsection to the extent that such payment, when added to other payments required from such candidates under this subsection, exceeds the amount of payments received by such candidates under section 9006.
683
(c) Notification. No notification shall be made by the Commission under subsection (b) with respect to a presidential election more than 3 years after the day of such election.
684
(d) Deposit of repayments. All payments received by the Secretary under subsection (b) shall be deposited by him in the general fund of the Treasury.
685
s 9008. Payments for presidential nominating conventions.
686
(a) Establishment of accounts. The Secretary shall maintain in the fund, in addition to any account which he maintains under section 9006(a), a separate account for the national committee of each major party and minor party. The Secretary shall deposit in each such account an amount equal to the amount which each such committee may receive under subsection (b). Such deposits shall be drawn from amounts designated by individuals under section 6096 and shall be made before any transfer is made to any account for any eligible candidate under section 9006(a).
687
(b) Entitlement to payments from the fund.
688
(1) Major parties. Subject to the provisions of this section, the national committee of a major party shall be entitled to payments under paragraph (3), with respect to any presidential nominating convention, in amounts which, in the aggregate, shall not exceed $2 million.
689
(2) Minor parties. Subject to the provisions of this section, the national committee of a minor party shall be entitled to payments under paragraph (3), with respect to any presidential nominating convention, in amounts which, in the aggregate, shall not exceed an amount which bears the same ratio to the amount the national committee of a major party is entitled to receive under paragraph (1) as the number of popular votes received by the candidate for President of the minor party, as such candidate, in the preceding presidential election bears to the average number of popular votes received by the candidates for President of the United States of the major parties in the preceding presidential election.
690
(3) Payments. Upon receipt of certification from the Commission under subsection (g), the Secretary shall make payments from the appropriate account maintained under subsection (a) to the national committee of a major party or minor party which elects to receive its entitlement under this subsection. Such payments shall be available for use by such committee in accordance with the provisions of subsection (c).
691
(4) Limitation. Payments to the national committee of a major party or minor party under this subsection from the account designated for such committee shall be limited to the amounts in such account at the time of payment.
692
(5) Adjustment of entitlements. The entitlements established by this subsection shall be adjusted in the same manner as expenditure limitations established by section 608(c) and section 608(f) of Title 18, United States Code, are adjusted pursuant to the provisions of section 608(d) of such title.
693
(c) Use of funds. No part of any payment made under subsection (b) shall be used to defray the expenses of any candidate or delegate who is participating in any presidential nominating convention. Such payments shall be used only
694
(1) to defray expenses incurred with respect to a presidential nominating convention (including the payment of deposits) by or on behalf of the national committee receiving such payments; or
695
(2) to repay loans the proceeds of which were used to defray such expenses, or otherwise to restore funds (other than contributions to defray such expenses received by such committee) used to defray such expenses.
696
(d) Limitation of expenditures.
697
(1) Major parties. Except as provided by paragraph (3), the national committee of a major party may not make expenditures with respect to a presidential nominating convention which, in the aggregate, exceed the amount of payments to which such committee is entitled under subsection (b)(1).
698
(2) Minor parties. Except as provided by paragraph (3), the national committee of a minor party may not make expenditures with respect to a presidential nominating convention which, in the aggregate, exceed the amount of the entitlement of the national committee of a major party under subsection (b)(1).
699
(3) Exception. The Commission may authorize the national committee of a major party or minor party to make expenditures which, in the aggregate, exceed the limitation established by paragraph (1) or paragraph (2) of this subsection. Such authorization shall be based upon a determination by the Commission that, due to extraordinary and unforeseen circumstances, such expenditures are necessary to assure the effective operation of the presidential nominating convention by such committee.
700
(e) Availability of payments. The national committee of a major party or minor party may receive payments under subsection (b)(3) beginning on July 1 of the calendar year immediately preceding the calendar year in which a presidential nominating convention of the political party involved is held.
701
(f) Transfer to the fund. If, after the close of a presidential nominating convention and after the national committee of the political party involved has been paid the amount which it is entitled to receive under this section, there are moneys remaining in the account of such national committee, the Secretary shall transfer the moneys so remaining to the fund.
702
(g) Certification by Commission. Any major party or minor party may file a statement with the Commission in such form and manner and at such times as it may require, designating the national committee of such party. Such statement shall include the information required by section 433(b) of Title 2, United States Code, together with such additional information as the Commission may require. Upon receipt of a statement filed under the preceding sentences, the Commission promptly shall verify such statement according to such procedures and criteria as it may establish and shall certify to the Secretary for payment in full to any such committee of amounts to which such committee may be entitled under subsection (b). Such certifications shall be subject to an examination and audit which the Commission shall conduct no later than December 31 of the calendar year in which the presidential nominating convention involved is held.
703
(h) Repayments. The Commission shall have the same authority to require payments from the national committee of a major party or a minor party as it has with respect to repayments from any eligible candidate under section 9007(b). The provisions of section 9007(c) and section 9007(d) shall apply with respect to any repayment required by the Commission under this subsection.
704
s 9009. Reports to Congress; regulations.
705
(a) Reports. The Commission shall, as soon as practicable after each presidential election, submit a full report to the Senate and House of Representatives setting forth
706
(1) the qualified campaign expenses (shown in such detail as the Commission determines necessary) incurred by the candidates of each political party and their authorized committees;
707
(2) the amounts certified by it under section 9005 for payment to eligible candidates of each political party;
708
(3) the amount of payments, if any, required from such candidates under section 9007, and the reasons for each payment required;
709
(4) the expenses incurred by the national committee of a major party or minor party with respect to a presidential nominating convention;
710
(5) the amounts certified by it under section 9008(g) for payment to each such committee; and
711
(6) the amount of payments, if any, required from such committees under section 9008(h) and the reasons for each such payment.
712
Each report submitted pursuant to this section shall be printed as a Senate document.
713
(b) Regulations, etc. The Commission is authorized to prescribe such rules and regulations in accordance with the provisions of subsection (c), to conduct such examinations and audits (in addition to the examination and audits required by section 9007(a)), to conduct such investigations, and to require the keeping and submission of such books, records, and information, as it deems necessary to carry out the functions and duties imposed on it by this chapter.
714
(c) Review of regulations.
715
(1) The Commission, before prescribing any rule or regulation under subsection (b), shall transmit a statement with respect to such rule or regulation to the Senate and to the House of Representatives, in accordance with the provisions of this subsection. Such statement shall set forth the proposed rule or regulation and shall contain a detailed explanation and justification of such rule or regulation.
716
(2) If either such House does not, through appropriate action, disapprove the proposed rule or regulation set forth in such statement no later than 30 legislative days after receipt of such statement, then the Commission may prescribe such rule or regulation. The Commission may not prescribe any rule or regulation which is disapproved by either such House under this paragraph.
717
(3) For purposes of this subsection, the term "legislative days" does not include any calendar day on which both Houses of the Congress are not in session.
718
s 9010. Participation by commission in judicial proceedings.
719
(a) Appearance by counsel. The Commission is authorized to appear in and defend against any action filed under section 9011, either by attorneys employed in its office or by counsel whom it may appoint without regard to the provisions of Title 5, United States Code, governing appointments in the competitive service, and whose compensation it may fix without regard to the provisions of chapter 51 and subchapter III of chapter 53 of such title.
720
(b) Recovery of certain payments. The Commission is authorized through attorneys and counsel described in subsection (a) to appear in the district courts of the United States to seek recovery of any amounts determined to be payable to the Secretary as a result of examination and audit made pursuant to section 9007.
721
(c) Declaratory and injunctive relief. The Commission is authorized through attorneys and counsel described in subsection (a) to petition the courts of the United States for declaratory or injunctive relief concerning any civil matter covered by the provisions of this subtitle or section 6096. Upon application of the Commission an action brought pursuant to this subsection shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28, United States Code, and any appeal shall lie to the Supreme Court. It shall be the duty of the judges designated to hear the case to assign the case for hearing at the earliest practicable date, to participate in the hearing and determination thereof, and to cause the case to be in every way expedited.
722
(d) Appeal. The Commission is authorized on behalf of the United States to appeal from, and to petition the Supreme Court for certiorari to review, judgments or decrees entered with respect to actions in which it appears pursuant to the authority provided in this section.
723
s 9011. Judicial review.
724
(a) Review of certification, determination, or other action by the Commission. Any certification, determination, or other action by the Commission made or taken pursuant to the provisions of this chapter shall be subject to review by the United States Court of Appeals for the District of Columbia upon petition filed in such Court by any interested person. Any petition filed pursuant to this section shall be filed within 30 days after the certification, determination, or other action by the Commission for which review is sought.
725
(b) Suits to implement chapter.
726
(1) The Commission, the national committee of any political party, and individuals eligible to vote for President are authorized to institute such actions, including actions for declaratory judgment or injunctive relief, as may be appropriate to implement or contrue1 any provisions of this chapter.
727
(2) The district courts of the United States shall have jurisdiction of proceedings instituted pursuant to this subsection and shall exercise the same without regard to whether a person asserting rights under provisions of this subsection shall have exhausted any administrative or other remedies that may be provided at law. Such proceedings shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28, United States Code, and any appeal shall lie to the Supreme Court. It shall be the duty of the judges designated to hear the case to assign the case for hearing at the earliest practicable date, to participate in the hearing and determination thereof, and to cause the case to be in every way expedited.
728
s 9012. Criminal penalties.
729
(a) Excess expenses.
730
(1) It shall be unlawful for an eligible candidate of a political party for President and Vice President in a presidential election or any of his authorized committees knowingly and willfully to incur qualified campaign expenses in excess of the aggregate payments to which the eligible candidates of a major party are entitled under section 9004 with respect to such election. It shall be unlawful for the national committee of a major party or minor party knowingly and willfully to incur expenses with respect to a presidential nominating convention in excess of the expenditure limitation applicable with respect to such committee under section 9008(d), unless the incurring of such expenses is authorized by the Commission under section 9008(d)(3).
731
(2) Any person who violates paragraph (1) shall be fined not more than $5,000, or imprisoned not more than 1 year or both. In the case of a violation by an authorized committee, any officer or member of such committee who knowingly and willfully consents to such violation shall be fined not more than $5,000, or imprisoned not more than 1 year, or both.
732
(b) Contributions.
733
(1) It shall be unlawful for an eligible candidate of a major party in a presidential election or any of his authorized committees knowingly and willfully to accept any contribution to defray qualified campaign expenses, except to the extent necessary to make up any deficiency in payments received out of the fund on account of the application of section 9006(d), or to defray expenses which would be qualified campaign expenses but for subparagraph (C) of section 9002(11).
734
(2) It shall be unlawful for an eligible candidate of a political party (other than a major party) in a presidential election or any of his authorized committees knowingly and willfully to accept and expend or retain contributions to defray qualified campaign expenses in an amount which exceeds the qualified campaign expenses incurred with respect to such election by such eligible candidate and his authorized committees.
735
(3) Any person who violates paragraph (1) or (2) shall be fined not more than $5,000, or imprisoned not more than 1 year, or both. In the case of a violation by an authorized committee, any officer or member of such committee who knowingly and willfully consents to such violation shall be fined not more than $5,000, or imprisoned not more than 1 year, or both.
736
(c) Unlawful use of payments.
737
(1) It shall be unlawful for any person who receives any payment under section 9006, or to whom any portion of any payment received under such section is transferred, knowingly and willfully to use, or authorize the use of, such payment or such portion for any purpose other than
738
(A) to defray the qualified campaign expenses with respect to which such payment was made; or
739
(B) to repay loans the proceeds of which were used, or otherwise to restore funds (other than contributions to defray qualified campaign expenses which were received and expended) which were used, to defray such qualified campaign expenses.
740
(2) It shall be unlawful for the national committee of a major party or minor party which receives any payment under section 9008(b)(3) to use, or authorize the use of, such payment for any purpose other than a purpose authorized by section 9008(c).
741
(3) Any person who violates paragraph (1) shall be fined not more than $10,000, or imprisoned not more than 5 years, or both.
742
(d) False statements, etc.
743
(1) It shall be unlawful for any person knowingly and willfully
744
(A) to furnish any false, fictitious, or fraudulent evidence, books, or information to the Commission under this subtitle, or to include in any evidence, books, or information so furnished any misrepresentation of a material fact, or to falsify or conceal any evidence, books, or information relevant to a certification by the Commission or an examination and audit by the Commission under this chapter; or
745
(B) to fail to furnish to the Commission any records, books, or information requested by it for purposes of this chapter.
746
(2) Any person who violates paragraph (1) shall be fined not more than $10,000, or imprisoned not more than 5 years, or both.
747
(e) Kickbacks and illegal payments.
748
(1) It shall be unlawful for any person knowingly and willfully to give or accept any kickback or any illegal payment in connection with any qualified campaign expense of eligible candidates or their authorized committees. It shall be unlawful for the national committee of a major party or minor party knowingly and willfully to give or accept any kickback or any illegal payment in connection with any expense incurred by such committee with respect to a presidential nominating convention.
749
(2) Any person who violates paragraph (1) shall be fined not more than $10,000 or imprisoned not more than 5 years, or both.
750
(3) In addition to the penalty provided by paragraph (2), any person who accepts any kickback or illegal payment in connection with any qualified campaign expense of eligible candidates or their authorized committees, or in connection with any expense incurred by the national committee of a major party or minor party with respect to a presidential nominating convention, shall pay to the Secretary, for deposit in the general fund of the Treasury, an amount equal to 125 percent of the kickback or payment received.
751
(f) Unauthorized expenditures and contributions.
752
(1) Except as provided in paragraph (2), it shall be unlawful for any political committee which is not an authorized committee with respect to the eligible candidates of a political party for President and Vice President in a presidential election knowingly and willfully to incur expenditures to further the election of such candidates, which would constitute qualified campaign expenses if incurred by an authorized committee of such candidates, in an aggregate amount exceeding $1,000.
753
(2) This subsection shall not apply to
754
(A) expenditures by a broadcaster regulated by the Federal Communications Commission, or by a periodical publication, in reporting the news or in taking editorial positions; or
755
(B) expenditures by any organization described in section 501(c) which is exempt from tax under section 501(a) in communicating to its members the views of that organization.
756
(3) Any political committee which violates paragraph (1) shall be fined not more than $5,000, and any officer or member of such committee who knowingly and willfully consents to such violation and any other individual who knowingly and willfully violates paragraph (1) shall be fined not more than $5,000, or imprisoned not more than 1 year, or both.
757
(g) Unauthorized disclosure of information.
758
(1) It shall be unlawful for any individual to disclose any information obtained under the provisions of this chapter except as may be required by law.
759
(2) Any person who violates paragraph (1) shall be fined not more than $5,000, or imprisoned not more than 1 year, or both.
760
CHAPTER 96 PRESIDENTIAL PRIMARY MATCHING PAYMENT ACCOUNT
761
s 9031. Short title.
762
This chapter may be cited as the "Presidential Primary Matching Payment Account Act."
763
s 9032. Definitions.
For the purposes of this chapter
764
(1) The term "authorized committee" means, with respect to the candidates of a political party for President and Vice President of the United States, any political committee which is authorized in writing by such candidates to incur expenses to further the election of such candidates. Such authorization shall be addressed to the chairman of such political committee, and a copy of such authorization shall be filed by such candidates with the Commission. Any withdrawal of any authorization shall also be in writing and shall be addressed and filed in the same manner as the authorization.
765
(2) The term "candidate" means an individual who seeks nomination for election to be President of the United States. For purposes of this an individual shall be considered to seek nomination for election if he
766
(A) takes the action necessary under the law of a State to qualify himself for nomination for election;
767
(B) receives contributions or incurs qualified campaign expenses; or
768
(C) gives his consent for any other person to receive contributions or to incur qualified campaign expenses on his behalf.
769
(3) The term "Commission" means the Federal Election Commission established by section 437c(a)(1) of Title 2, United States Code.
770
(4) Except as provided by section 9034(a), the term "contribution"
771
(A) means a gift, subscription, loan, advance, or deposit of money, or anything of value, the payment of which was made on or after the beginning of the calendar year immediately preceding the calendar year of the presidential election with respect to which such gift, subscription, loan, advance, or deposit of money, or anything of value, is made for the purpose of influencing the result of a primary election;
772
(B) means a contract, promise, or agreement, whether or not legally enforceable, to make a contribution for any such purpose;
773
(C) means funds received by a political committee which are transferred to that committee from another committee; and
774
(D) means the payment by any person other than a candidate, or his authorized committee, of compensation for the personal services of another person which are rendered to the candidate or committee without charge; but (E) does not include
775
(i) except as provided in subparagraph (D), the value of personal services rendered to or for the benefit of a candidate by an individual who receives no compensation for rendering such service to or for the benefit of the candidate; or
776
(ii) payments under section 9037.
777
(5) The term "matching payment account" means the Presidential Primary Matching Payment Account established under section 9037(a).
778
(6) The term "matching payment period" means the period beginning with the beginning of the calendar year in which a general election for the office of President of the United States will be held and ending on the date on which the national convention of the party whose nomination a candidate seeks nominates its candidate for the office of President of the United States, or, in the case of a party which does not make such nomination by national convention, ending on the earlier of
779
(A) the date such party nominates its candidate for the office of President of the United States; or
780
(B) the last day of the last national convention held by a major party during such calendar year.
781
(7) The term "primary election" means an election, including a runoff election or a nominating convention or caucus held by a political party, for the selection of delegates to a national nominating convention of a political party, or for the expression of a preference for the nomination of persons for election to the office of President of the United States.
782
(8) The term "political committee" means any individual, committee, association, or organization (whether or not incorporated) which accepts contributions or incurs qualified campaign expenses for the purpose of influencing, or attempting to influence, the nomination of any person for election to the office of President of the United States.
783
(9) The term "qualified campaign expense" means a purchase, payment, distribution, loan, advance, deposit, or gift of money or of anything of value
784
(A) incurred by a candidate, or by his authorized committee, in connection with his campaign for nomination for election; and
785
(B) neither the incurring nor payment of which constitutes a violation of any law of the United States or of the State in which the expense is incurred or paid.
786
For purposes of this paragraph, an expense is incurred by a candidate or by an authorized committee if it is incurred by a person specifically authorized in writing by the candidate or committee, as the case may be, to incur such expense on behalf of the candidate or the committee.
787
(10) The term "State" means each State of the United States and the District of Columbia.
788
s 9033. Eligibility for payments.
789
(a) Conditions. To be eligible to receive payments under section 9037, a candidate shall, in writing
790
(1) agree to obtain and furnish to the Commission any evidence it may request of qualified campaign expenses;
791
(2) agree to keep and furnish to the Commission any records, books, and other information it may request; and
792
(3) agree to an audit and examination by the Commission under section 9038 and to pay any amounts required to be paid under such section.
793
(b) Expense limitation; declaration of intent; minimum contributions. To be eligible to receive payments under section 9037, a candidate shall certify to the Commission that
794
(1) the candidate and his authorized committees will not incur qualified campaign expenses in excess of the limitation on such expenses under section 9035;
795
(2) the candidate is seeking nomination by a political party for election to the office of President of the United States;
796
(3) the candidate has received matching contributions which in the aggregate, exceed $5,000 in contributions from residents of each of at least 20 States; and
797
(4) the aggregate of contributions certified with respect to any person under paragraph (3) does not exceed $250.
798
s 9034. Entitlement of eligible candidates to payments.
799
(a) In general. Every candidate who is eligible to receive payments under section 9033 is entitled to payments under section 9037 in an amount equal to the amount of each contribution received by such candidate on or after the beginning of the calendar year immediately preceding the calendar year of the presidential election with respect to which such candidate is seeking nomination, or by his authorized committees, disregarding any amount of contributions from any person to the extent that the total of the amounts contributed by such person on or after the beginning of such preceding calendar year exceeds $250. For purposes of this subsection and section 9033(b), the term "contribution" means a gift of money made by a written instrument which identifies the person making the contribution by full name and mailing address, but does not include a subscription, loan, advance, or deposit of money, or anything of value or anything described in subparagraph (B), (C), or (D) of section 9032(4).
800
(b) Limitations. The total amount of payments to which a candidate is entitled under subsection (a) shall not exceed 50 percent of the expenditure limitation applicable under section 608(c)(1)(A) of Title 18, United States Code.
801
s 9035. Qualified campaign expense limitation.
802
No candidate shall knowingly incur qualified campaign expenses in excess of the expenditure limitation applicable under section 608(c)(1)(A) of Title 18, United States Code.
803
s 9036. Certification by Commission.
804
(a) Initial certifications. Not later than 10 days after a candidate establishes his eligibility under section 9033 to receive payments under section 9037, the Commission shall certify to the Secretary for payment to such candidate under section 9037 payment in full of amounts to which such candidate is entitled under section 9034. The Commission shall make such additional certifications as may be necessary to permit candidates to receive payments for contributions under section 9037.
805
(b) Finality of determinations. Initial certifications by the Commission under subsection (a) and all determinations made by it under this chapter, are final and conclusive, except to the extent that they are subject to examination and audit by the Commission under section 9038 and judicial review under section 9041.
806
s 9037. Payments to eligible candidates.
807
(a) Establishment of account. The Secretary shall maintain in the Presidential Election Campaign Fund established by section 9006(a), in addition to any account which he maintains under such section, a separate account to be known as the Presidential Primary Matching Payment Account. The Secretary shall deposit into the matching payment account, for use by the candidate of any political party who is eligible to receive payments under section 9033, the amount available after the Secretary determines that amounts for payments under section 9006(c) and for payments under section 9008(b)(3) are available for such payments.
808
(b) Payments from the matching payment account. Upon receipt of a certification from the Commission under section 9036, but not before the beginning of the matching payment period, the Secretary or his delegate shall promptly transfer the amount certified by the Commission from the matching payment account to the candidate. In making such transfers to candidates of the same political party, the Secretary or his delegate shall seek to achieve an equitable distribution of funds available under subsection (a), and the Secretary or his delegate shall take into account, in seeking to achieve an equitable distribution, the sequence in which such certifications are received.
809
s 9038. Examinations and audits; repayments.
810
(a) Examinations and audits. After each matching payment period, the Commission shall conduct a thorough examination and audit of the qualified campaign expenses of every candidate and his authorized committees who received payments under section 9037.
811
(b) Repayments.
812
(1) If the Commission determines that any portion of the payments made to a candidate from the matching payment account was in excess of the aggregate amount of payments to which such candidate was entitled under section 9034, it shall notify the candidate, and the candidate shall pay to the Secretary or his delegate an amount equal to the amount of excess payments.
813
(2) If the Commission determines that any amount of any payment made to a candidate from the matching payment account was used for any purpose other than
814
(A) to defray the qualified campaign expenses with respect to which such payment was made; or
815
(B) to repay loans the proceeds of which were used or otherwise to restore funds (other than contributions to defray qualified campaign expenses which were received and expended) which were used, to defray qualified campaign expenses;
816
it shall notify such candidate of the amount so used, and the candidate shall pay to the Secretary or his delegate an amount equal to such amount.
817
(3) Amounts received by a candidate from the matching payment account may be retained for the liquidation of all obligations to pay qualified campaign expenses incurred for a period not exceeding 6 months after the end of the matching payment period. After all obligations have been liquidated, that portion of any unexpended balance remaining in the candidate's accounts which bears the same ratio to the total unexpended balance as the total amount received from the matching payment account bears to the total of all deposits made into the candidate's accounts shall be promptly repaid to the matching payment account.
818
(c) Notification. No notification shall be made by the Commission under subsection (b) with respect to a matching payment period more than 3 years after the end of such period.
819
(d) Deposit of repayments. All payments received by the Secretary or his delegate under subsection (b) shall be deposited by him in the matching payment account.
820
s 9039. Reports to Congress; regulations.
821
(a) Reports. The Commission shall, as soon as practicable after each matching payment period, submit a full report to the Senate and House of Representatives setting forth
822
(1) the qualified campaign expenses (shown in such detail as the Commission determines necessary) incurred by the candidates of each political party and their authorized committees;
823
(2) the amounts certified by it under section 9036 for payment to each eligible candidate; and
824
(3) the amount of payments, if any, required from candidates under section 9038, and the reasons for each payment required.
825
Each report submitted pursuant to this section shall be printed as a Senate document.
826
(b) Regulations, etc. The Commission is authorized to prescribe rules and regulations in accordance with the provisions of subsection (c), to conduct examinations and audits (in addition to the examinations and audits required by section 9038(a)), to conduct investigations, and to require the keeping and submission of any books, records, and information, which it determines to be necessary to carry out its responsibilities under this chapter.
827
(c) Review of regulations.
828
(1) The Commission, before prescribing any rule or regulation under subsection (b), shall transmit a statement with respect to such rule or regulation to the Senate and to the House of Representatives, in accordance with the provisions of this subsection. Such statement shall set forth the proposed rule or regulation and shall contain a detailed explanation and justification of such rule or regulation.
829
(2) If either such House does not, through appropriate action, disapprove the proposed rule or regulation set forth in such statement no later than 30 legislative days after receipt of such statement, then the Commission may not prescribe such rule or regulation. The Commission may prescribe any rule or regulation which is disapproved by either such House under this paragraph.
830
(3) For purposes of this subsection, the term "legislative days" does not include any calendar day on which both Houses of the Congress are not in session.
831
s 9040. Participation by Commission in judicial proceedings.
832
(a) Appearance by counsel. The Commission is authorized to appear in and defend against any action instituted under this section, either by attorneys employed in its office or by counsel whom it may appoint without regard to the provisions of Title 5, United States Code, governing appointments in the competitive service, and whose compensation it may fix without regard to the provisions of chapter 51 and subchapter III of chapter 53 of such title.
833
(b) Recovery of certain payments. The Commission is authorized, through attorneys and counsel described in subsection (a), to institute actions in the district courts of the United States to seek recovery of any amounts determined to be payable to the Secretary or his delegate as a result of an examination and audit made pursuant to section 9038.
834
(c) Injunctive relief. The Commission is authorized, through attorneys and counsel described in subsection (a) to petition the courts of the United States for such injunctive relief as is appropriate to implement any provision of this chapter.
835
(d) Appeal. The Commission is authorized on behalf of the United States to appeal from, and to petition the Supreme Court for certiorari to review, judgments or decrees entered with respect to actions in which it appears pursuant to the authority provided in this section.
836
s 9041. Judicial review.
837
(a) Review of agency action by the Commission. Any agency action by the Commission made under the provisions of this chapter shall be subject to review by the United States Court of Appeals for the District of Columbia Circuit upon petition filed in such court within 30 days after the agency action by the Commission for which review is sought.
838
(b) Review procedures. The provisions of chapter 7 of Title 5, United States Code, apply to judicial review of any agency action, as defined in section 551(13) of Title 5, United States Code, by the Commission.
839
s 9042. Criminal penalties.
840
(a) Excess campaign expenses. Any person who violates the provisions of section 9035 shall be fined not more than $25,000, or imprisoned not more than 5 years, or both. Any officer or member of any political committee who knowingly consents to any expenditure in violation of the provisions of section 9035 shall be fined not more than $25,000, or imprisoned not more than 5 years, or both.
841
(b) Unlawful use of payments.
842
(1) It is unlawful for any person who receives any payment under section 9037, or to whom any portion of any such payment is transferred, knowingly and willfully to use, or authorize the use of, such payment or such portion for any purpose other than
843
(A) to defray qualified campaign expenses; or
844
(B) to repay loans the proceeds of which were used, or otherwise to restore funds (other than contributions to defray qualified campaign expenses which were received and expended) which were used, to defray qualified campaign expenses.
845
(2) Any person who violates the provisions of paragraph (1) shall be fined not more than $10,000, or imprisoned not more than 5 years, or both.
846
(c) False statements, etc.
847
(1) It is unlawful for any person knowingly and willfully
848
(A) to furnish any false, fictitious, or fraudulent evidence, books, or information to the Commission under this chapter, or to include in any evidence, books, or information so furnished any misrepresentation of a material fact, or to falsify or conceal any evidence, books, or information relevant to a certification by the Commission or an examination and audit by the Commission under this chapter; or
849
(B) to fail to furnish to the Commission any records, books, or information requested by it for purposes of this chapter.
850
(2) Any person who violates the provisions of paragraph (1) shall be fined not more than $10,000, or imprisoned not more than 5 years, or both.
851
(d) Kickbacks and illegal payments.
852
(1) It is unlawful for any person knowingly and willfully to give or accept any kickback or any illegal payment in connection with any qualified campaign expense of a candidate, or his authorized committees, who receives payments under section 9037.
853
(2) Any person who violates the provision of paragraph (1) shall be fined not more than $10,000, or imprisoned not more than 5 years, or both.
854
(3) In addition to the penalty provided by paragraph (2), any person who accepts any kickback or illegal payment in connection with any qualified campaign expense of a candidate or his authorized committees shall pay to the Secretary for deposit in the matching payment account, an amount equal to 125 percent of the kickback or payment received.
855
Mr. Chief Justice BURGER, concurring in part and dissenting in part.
856
For reasons set forth more fully later, I dissent from those parts of the Court's holding sustaining the statutory provisions (a) for disclosure of small contributions, (b) for limitations on contributions, and (c) for public financing of Presidential campaigns. In my view, the Act's disclosure scheme is impermissibly broad and violative of the First Amendment as it relates to reporting contributions in excess of $10 and $100. The contribution limitations infringe on First Amendment liberties and suffer from the same infirmities that the Court correctly sees in the expenditure ceilings. The system for public financing of Presidential campaigns is, in my judgment, an impermissible intrusion by the Government into the traditionally private political process.
857
More broadly, the Court's result does violence to the intent of Congress in this comprehensive scheme of campaign finance. By dissecting the Act bit by bit, and casting off vital parts, the Court fails to recognize that the whole of this Act is greater than the sum of its parts. Congress intended to regulate all aspects of federal campaign finances, but what remains after today's holding leaves no more than a shadow of what Congress contemplated. I question whether the residue leaves a workable program.
858
(1)
DISCLOSURE PROVISIONS
859
Disclosure is, in principle, the salutary and constitutional remedy for most of the ills Congress was seeking to alleviate. I therefore agree fully with the broad proposition that public disclosure of contributions by individuals and by entities particularly corporations and labor unions is an effective means of revealing the type of political support that is sometimes coupled with expectations of special favors or rewards. That disclosure impinges on First Amendment rights is conceded by the Court, ante, at 64-66, but given the objectives to which disclosure is directed, I agree that the need for disclosure outweighs individual constitutional claims.
860
Disclosure is, however, subject to First Amendment limitations which are to be defined by looking to the relevant public interests. The legitimate public interest is the elimination of the appearance and reality of corrupting influences. Serious dangers to the very processes of government justify disclosure of contributions of such dimensions reasonably thought likely to purchase special favors. These fears have been at the root of the Court's prior decisions upholding disclosure requirements, and I therefore have no disagreement, for example, with Burroughs v. United States, 290 U.S. 534, 54 S.Ct. 287, 78 L.Ed. 484 (1934).
861
The Court's theory, however, goes beyond permissible limits. Under the Court's view, disclosure serves broad informational purposes, enabling the public to be fully informed on matters of acute public interest. Forced disclosure of one aspect of a citizen's political activity, under this analysis, serves the public right to know. This open-ended approach is the only plausible justification for the otherwise irrationally low ceilings of $10 and $100 for anonymous contributions. The burdens of these low ceilings seem to me obvious, and the Court does not try to question this. With commendable candor, the Court acknowledges:
862
"It is undoubtedly true that public disclosure of contributions to candidates and political parties will deter some individuals who otherwise might contribute." Ante, at 68.
863
Examples come readily to mind. Rank-and-file union members or rising junior executives may now think twice before making even modest contributions to a candidate who is disfavored by the union or management hierarchy. Similarly, potential contributors may well decline to take the obvious risks entailed in making a reportable contribution to the opponent of a well-entrenched incumbent. This fact of political life did not go unnoticed by the Congress:
864
"The disclosure provisions really have in fact made it difficult for challengers to challenge incumbents." 120 Cong.Rec. 34392 (1974) (remarks of Sen. Long).
865
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).
866
The public right to know ought not be absolute when its exercise reveals private political convictions. Secrecy, like privacy, is not per se criminal. On the contrary, secrecy and privacy as to political preferences and convictions are fundamental in a free society. For example, one of the great political reforms was the advent of the secret ballot as a universal practice. Similarly, the enlightened labor legislation of our time has enshrined the secrecy of choice of a bargaining representative for workers. In other contexts, this Court has seen to it that governmental power cannot be used to force a citizen to disclose his private affiliations, NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), even without a record reflecting any systematic harassment or retaliation, as in Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). For me it is far too late in the day to recognize an ill-defined "public interest" to breach the historic safeguards guaranteed by the First Amendment.
867
We all seem to agree that whatever the legitimate public interest in this area, proper analysis requires us to scrutinize the precise means employed to implement that interest. The balancing test used by the Court requires that fair recognition be given to competing interests. With respect, I suggest the Court has failed to give the traditional standing to some of the First Amendment values at stake here. Specifically, it has failed to confine the particular exercise of governmental power within limits reasonably required.
868
"In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom." Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940).
869
"Unduly" must mean not more than necessary, and until today, the Court has recognized this criterion in First Amendment cases:
870
"In the area of First Amendment freedoms, government has the duty to confine itself to the least intrusive regulations which are adequate for the purpose." Lamont v. Postmaster General, 381 U.S. 301, 310, 85 S.Ct. 1493, 1498, 14 L.Ed.2d 398 (1965) (Brennan, J., concurring). (Emphasis added.)
Similarly, the Court has said:
871
'Even though the governmental purpose be legiti-mate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgement must be viewed in the light of less drastic means for achieving the same basicpurpose.' Shelton v. Tucker, supra, 364 U.S. at 488, 81 S.Ct., at 252.
872
In light of these views,1it seems to me that the threshold limits fixed at $10 and $100 for anonymous contributions are constitutionally impermissible on their face. As the Court's opinion notes, ante, at 83, Congress gave little or no thought, one way or the other, to these limits, but rather lifted figures out of a 65-year-old statute.2 As we are all painfully aware, the 1976 dollar is not what it used to be and is surely not the dollar of 1910. Ten dollars in 1976 will, for example, purchase only what $1.68 would buy in 1910. United States Dept. of Labor, Handbook of Labor statistics 1975, p. 313 (Dec. 1975). To argue that a 1976 contribution of $10 or $100 entails a risk of corruption or its appearance is simply too extravagant to be maintained. No public right to know justifies the compelled disclosure of such contributions, at the risk of discouraging them. There is, in short, no relation whatever between the means used and the legitimate goal of ventilating possible undue influence. Congress has used a shotgun to kill wrens as well as hawks. In saying that the lines drawn by Congress are "not wholly without rationality," the Court plainly fails to apply the traditional test:
873
"Precision of regulation must be the touchstone in an area so closely touching on our most precious freedoms." NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1938).
874
See, e. g., Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964); United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); Lamont v. Postmaster General, supra. The Court's abrupt departure3 from traditional standards is wrong; surely a greater burden rests on Congress than merely to avoid "irrationality" when regulating in the core area of the First Amendment. Even taking the Court at its word, the particular dollar amounts fixed by Congress that must be reported to the Commission fall short of meeting the test of rationality when measured by the goals sought to be achieved.
875
Finally, no legitimate public interest has been shown in forcing the disclosure of modest contributions that are the prime support of new, unpopular, or unfashionable political causes. There is no realistic possibility that such modest donations will have a corrupting influence especially on parties that enjoy only "minor" status. Major parties would not notice them; minor parties need them. Furthermore, as the Court candidly recognizes, ante, at 70, minor parties and new parties tend to be sharply ideological in character, and the public can readily discern where such parties stand, without resorting to the indirect device of recording the names of financial supporters. To hold, as the Court has, that privacy must sometimes yield to congressional investigations of alleged subversion, is quite different from making domestic political partisans give up privacy. Cf. Eastland v. United States Servicemen's Fund, 421 U.S. 491, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975). In any event, the dangers to First Amendment rights here are too great. Flushing out the names of supporters of minority parties will plainly have a deterrent effect on potential contributors, a consequence readily admitted by the Court, ante, at 71, 83, and supported by the record.4
876
I would therefore hold unconstitutional the provisions requiring reporting of contributions of more than $10 and to make a public record of the name, address, and occupation of a contributor of more than $100.
877
(2)
CONTRIBUTION AND EXPENDITURE LIMITS
878
I agree fully with that part of the Court's opinion that holds unconstitutional the limitations the Act puts on campaign expenditures which "place substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate." Ante, at 58-59. Yet when it approves similarly stringent limitations on contributions, the Court ignores the reasons it finds so persuasive in the context of expenditures. For me contributions and expenditures are two sides of the same First Amendment coin.
879
By limiting campaign contributions, the Act restricts the amount of money that will be spent on political activity and does so directly. Appellees argue, as the Court notes, that these limits will "act as a brake on the skyrocketing cost of political campaigns," ante, at 26. In treating campaign expenditure limitations, the Court says that the "First Amendment denies government the power to determine that spending to promote one's political views is wasteful, excessive, or unwise." Ante, at 57. Limiting contributions, as a practical matter, will limit expenditures and will put an effective ceiling on the amount of political activity and debate that the Government will permit to take place. The argument that the ceiling is not, after all, very low as matters now stand gives little comfort for the future, since the Court elsewhere notes the rapid inflation in the cost of political campaigning.5 Ante, at 57.
880
The Court attempts to separate the two communicative aspects of political contributions the "moral" support that the gift itself conveys, which the Court suggests is the same whether the gift is $10 or $10,000,6 and the fact that money translates into communication. The Court dismisses the effect of the limitations on the second aspect of contributions: "(T)he transformation of contributions into political debate involves speech by someone other than the contributor." Ante, at 21. On this premise that contribution limitations restrict only the speech of "someone other than the contributor" rests the Court's justification for treating contributions differently from expenditures. The premise is demonstrably flawed; the contribution limitations will, in specific instances, limit exactly the same political activity that the expenditure ceilings limit,7 and at least one of the "expenditure" limitations the Court finds objectionable operates precisely like the "contribution" limitations.8
881
The Court's attempt to distinguish the communication inherent in political contributions from the speech aspects of political expenditures simply "will not wash." We do little but engage in word games unless we recognize that people candidates and contributors spend money on political activity because they wish to communicate ideas, and their constitutional interest in doing so is precisely the same whether they or someone else utters the words.
882
The Court attempts to make the Act seem less restrictive by casting the problem as one that goes to freedom of association rather than freedom of speech. I have long thought freedom of association and freedom of expression were two peas from the same pod. The contribution limitations of the Act impose a restriction on certain forms of associational activity that are for the most part, as the Court recognizes, ante, at 29, harmless in fact. And the restrictions are hardly incidental in their effect upon particular campaigns. Judges are ill-equipped to gauge the precise impact of legislation, but a law that impinges upon First Amendment rights requires us to make the attempt. It is not simply speculation to think that the limitations on contributions will foreclose some candidacies.9 The limitations will also alter the nature of some electoral contests drastically.10
883
At any rate, the contribution limits are a far more severe restriction on First Amendment activity than the sort of "chilling" legislation for which the Court has shown such extraordinary concern in the past. See, e. g., Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); see also cases reviewed in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967); Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966). If such restraints can be justified at all, they must be justified by the very strongest of state interests. With this much the Court clearly agrees; the Court even goes so far as to note that legislation cutting into these important interests must employ "means closely drawn to avoid unnecessary abridgment of associational freedoms." Ante, at 25.
884
After a bow to the "weighty interests" Congress meant to serve, the Court then forsakes this analysis in one sentence: "Congress was surely entitled to conclude that disclosure was only a partial measure, and that contribution ceilings were a necessary legislative concomitant to deal with the reality or appearance of corruption . . . ." Ante, at 28. In striking down the limitations on campaign expenditures, the Court relies in part on its conclusion that other means namely, disclosure and contribution ceilings will adequately serve the statute's aim. It is not clear why the same analysis is not also appropriate in weighing the need for contribution ceilings in addition to disclosure requirements. Congress may well be entitled to conclude that disclosure was a "partial measure," but I had not thought until today that Congress could enact its conclusions in the First Amendment area into laws immune from the most searching review by this Court.
885
Finally, it seems clear to me that in approving these limitations on contributions the Court must rest upon the proposition that "pooling" money is fundamentally different from other forms of associational or joint activity. But see ante, at 66. I see only two possible ways in which money differs from volunteer work, endorsements, and the like. Money can be used to buy favors, because an unscrupulous politician can put it to personal use; second, giving money is a less visible form of associational activity. With respect to the first problem, the Act does not attempt to do any more than the bribery laws to combat this sort of corruption. In fact, the Act does not reach at all, and certainly the contribution limits do not reach, forms of "association" that can be fully as corrupt as a contribution intended as a quid pro quo such as the eleventh-hour endorsement by a former rival, obtained for the promise of a federal appointment. This underinclusiveness is not a constitutional flaw, but it demonstrates that the contribution limits do not clearly focus on this first distinction. To the extent Congress thought that the second problem, the lesser visibility of contributions, required that money be treated differently from other forms of associational activity, disclosure laws are the simple and wholly efficacious answer; they make the invisible apparent.
886
(3)
PUBLIC FINANCING
887
I dissent from Part III sustaining the constitutionality of the public financing provisions of Subtitle H.
888
Since the turn of this century when the idea of Government subsidies for political campaigns first was broached, there has been no lack of realization that the use of funds from the public treasury to subsidize political activity of private individuals would produce substantial and profound questions about the nature of our democratic society. The Majority Leader of the Senate, although supporting such legislation in 1967, said that "the implications of these questions . . . go to the very heart and structure of the Government of the Republic."11 The Solicitor General in his amicus curiae brief states that "the issues involved here are of indisputable moment."12 He goes on to express his view that public financing will have "profound effects in the way candidates approach issues and each other."13 Public financing, he notes, "affects the role of the party in campaigns for office, changes the role of the incumbent government vis-a-vis all parties, and affects the relative strengths and strategies of candidates vis-a-vis each other and their party's leaders."14
889
The Court chooses to treat this novel public financing of political activity as simply another congressional appropriation whose validity is "necessary and proper" to Congress' power to regulate and reform elections and primaries, relying on United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941), and Burroughs v. United States, 290 U.S. 534, 54 S.Ct. 287, 78 L.Ed. 484 (1934). No holding of this Court is directly in point, because no federal scheme allocating public funds in a comparable manner has ever been before us. The uniqueness of the plan is not relevant, of course, to whether Congress has power to enact it. Indeed, I do not question the power of Congress to regulate elections; nor do I challenge the broad proposition that the General Welfare Clause is a grant, not a limitation, of power. McCulloch v. Maryland, 4 Wheat. 316, 420, 4 L.Ed. 579 (1819); United States v. Butler, 297 U.S. 1, 66, 56 S.Ct. 312, 319, 80 L.Ed. 477 (1936).
890
I would, however, fault the Court for not adequately analyzing and meeting head on the issue whether public financial assistance to the private political activity of individual citizens and parties is a legitimate expenditure of public funds. The public monies at issue here are not being employed simply to police the integrity of the electoral process or to provide a forum for the use of all participants in the political dialogue, as would, for example, be the case if free broadcast time were granted. Rather, we are confronted with the Government's actual financing, out of general revenues, a segment of the political debate itself. As Senator Howard Baker remarked during the debate on this legislation:
891
"I think there is something politically incestuous about the Government financing and, I believe, inevitably then regulating, the day-to-day procedures by which the Government is selected . . . .
892
"I think it is extraordinarily important that the Government not control the machinery by which the public expresses the range of its desires, demands, and dissent." 120 Cong.Rec. 8202 (1974).
893
If this "incest" affected only the issue of the wisdom of the plan, it would be none of the concern of judges. But, in my view, the inappropriateness of subsidizing, from general revenues, the actual political dialogue of the people the process which begets the Government itself is as basic to our national tradition as the separation of church and state also deriving from the First Amendment, see Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971); Walz v. Tax Comm'n, 397 U.S. 664, 668-669, 90 S.Ct. 1409, 1411, 25 L.Ed.2d 697 (1970), or the separation of civilian and military authority, see Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 540, 97 L.Ed. 842 (1953), neither of which is explicit in the Constitution but both of which have developed through case-by-case adjudication of express provisions of the Constitution.
894
Recent history shows dangerous examples of systems with a close, "incestuous" relationship between "government" and "politics"; the Court's opinion simply dismisses possible dangers by noting that:
895
"Subtitle H is a congressional effort, not to abridge, restrict, or censor speech, but rather to use public money to facilitate and enlarge public discussion and participation in the electoral process, goals vital to a self-governing people." Ante, at 92-93.
896
Congress, it reassuringly adds by way of a footnote, has expressed its determination to avoid such a possibility.15 Ante, at 93 n. 126. But the Court points to no basis for predicting that the historical pattern of "varying measures of control and surveillance," Lemon v. Kurtzman, supra, 403 U.S., at 621, 91 S.Ct. at 2115 which usually accompany grants from Government will not also follow in this case.16 Up to now, the Court has always been extraordinarily sensitive, when dealing with First Amendment rights, to the risk that the "flag tends to follow the dollars." Yet, here, where Subtitle H specifically requires the auditing of records of political parties and candidates by Government inspectors,17 the Court shows little sensitivity to the danger it has so strongly condemned in other contexts. See, e. g., Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947). Up to now, this Court has scrupulously refrained, absent claims of invidious discrimination,18 from entering the arena of intraparty disputes concerning the seating of convention delegates. Graham v. Fong Eu, 403 F.Supp. 37 (N.D.Cal.1975), summarily aff'd, 423 U.S. 1067, 96 S.Ct. 851, 47 L.Ed.2d 80 (1976); Cousins v. Wigoda, 419 U.S. 477, 95 S.Ct. 541, 42 L.Ed.2d 595 (1975); O'Brien v. Brown, 409 U.S. 1, 92 S.Ct. 2718, 34 L.Ed.2d 1 (1972). An obvious underlying basis for this reluctance is that delegate selection and the management of political conventions have been considered a strictly private political matter, not the business of Government inspectors. But once the Government finances these national conventions by the expenditure of millions of dollars from the public treasury, we may be providing a springboard for later attempts to impose a whole range of requirements on delegate selection and convention activities. Does this foreshadow judicial decisions allowing the federal courts to "monitor" these conventions to assure compliance with court orders or regulations?
897
Assuming, arguendo, that Congress could validly appropriate public money to subsidize private political activity, it has gone about the task in Subtitle H in a manner which is not, in my view, free of constitutional infirmity.19 I do not question that Congress has "wide discretion in the manner of prescribing details of expenditures" in some contexts, Cincinnati Soap Co. v. United States, 301 U.S. 308, 321, 57 S.Ct. 764, 770, 81 L.Ed. 1122 (1937). Here, however, Congress has not itself appropriated a specific sum to attain the ends of the Act but has delegated to a limited group of citizens those who file tax returns the power to allocate general revenue for the Act's purposes and of course only a small percentage of that limited group has exercised the power. There is nothing to assure that the "fund" will actually be adequate for the Act's objectives. Thus, I find it difficult to see a rational basis for concluding that this scheme would, in fact, attain the stated purposes of the Act when its own funding scheme affords no real idea of the amount of the available funding.
898
I agree with Mr. Justice REHNQUIST that the scheme approved by the Court today invidiously discriminates against minor parties. Assuming, arguendo, the constitutionality of the overall scheme, there is a legitimate governmental interest in requiring a group to make a "preliminary showing of a significant modicum of support." Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 1976, 29 L.Ed.2d 554 (1971). But the present system could preclude or severely hamper access to funds before a given election by a group or an individual who might, at the time of the election, reflect the views of a major segment or even a majority of the electorate. The fact that there have been few drastic realignments in our basic two-party structure in 200 years is no constitutional justification for freezing the status quo of the present major parties at the expense of such future political movements. Compare discussion, ante, at 73. When and if some minority party achieves majority status, Congress can readily deal with any problems that arise. In short, I see grave risks in legislation, enacted by incumbents of the major political parties, which distinctly disadvantages minor parties or independent candidates. This Court has, until today, been particularly cautious when dealing with enactments that tend to perpetuate those who control legislative power. See Reynolds v. Sims, 377 U.S. 533, 570, 84 S.Ct. 1362, 1386, 12 L.Ed.2d 506 (1964).
899
I would also find unconstitutional the system of matching grants which makes a candidate's ability to amass private funds the sole criterion for eligibility for public funds. Such an arrangement can put at serious disadvantage a candidate with a potentially large, widely diffused but poor constituency. The ability of a candidate's supporters to help pay for his campaign cannot be equated with their willingness to cast a ballot for him. See Lubin v. Panish, 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974); Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972).
900
(4)
901
I cannot join in the attempt to determine which parts of the Act can survive review here. The statute as it now stands is unworkable and inequitable.
902
I agree with the Court's holding that the Act's restrictions on expenditures made "relative to a clearly identified candidate," independent of any candidate or his committee, are unconstitutional. Ante, at 39-51. Paradoxically the Court upholds the limitations on individual contributions, which embrace precisely the same sort of expenditures "relative to a clearly identified candidate" if those expenditures are "authorized or requested" by the "candidate or his agents." Ante, at 24 n. 25. The Act as cut back by the Court thus places intolerable pressure on the distinction between "authorized" and "unauthorized" expenditures on behalf of a candidate; even those with the most sanguine hopes for the Act might well concede that the distinction cannot be maintained. As the Senate Report on the bill said:
903
"Whether campaigns are funded privately or publicly . . . controls are imperative if Congress is to enact meaningful limits on direct contributions. Otherwise, wealthy individuals limited to a $3,000 direct contribution ($1,000 in the bill as finally enacted) could also purchase one hundred thousand dollars' worth of advertisements for a favored candidate. Such a loophole would render direct contribution limits virtually meaningless." S.Rep. No. 93-689, p. 18 (1974), U.S.Code Cong. & Admin.News 1974, p. 5604.
904
Given the unfortunate record of past attempts to draw distinctions of this kind, see ante, at 61-62, it is not too much to predict that the Court's holding will invite avoidance, if not evasion of the intent of the Act, with "independent" committees undertaking "unauthorized" activities in order to escape the limits on contributions. The Court's effort to blend First Amendment principles and practical politics has produced a strange offspring.
905
Moreover, the Act or so much as the Court leaves standing creates significant inequities. A candidate with substantial personal resources is now given by the Court a clear advantage over his less affluent opponents, who are constrained by law in fundraising, because the Court holds that the "First Amendment cannot tolerate" any restrictions on spending. Ante, at 59. Minority parties, whose situation is difficult enough under an Act that excludes them from public funding, are prevented from accepting large single-donor contributions. At the same time the Court sustains the provision aimed at broadening the base of political support by requiring candidates to seek a greater number of small contributors, it sustains the unrealistic disclosure thresholds of $10 and $100 that I believe will deter those hoped-for small contributions. Minor parties must now compete for votes against two major parties whose expenditures will be vast. Finally, the Act's distinction between contributions in money and contributions in services remains, with only the former being subject to any limits. As Judge Tamm put it in dissent from the Court of Appeals' opinion:
906
"(T)he classification created only regulates certainypes of disproportional influences. Under section 591(e)(5), services are excluded from contributions. This allows the housewife to volunteer time that might cost well over $1000 to hire on the open market, while limiting her neighbor who works full-time to a regulated contribution. It enhances the disproportional influence of groups who command large quantities of these volunteer services and will continue to magnify this inequity by not allowing for an inflation adjustment to the contribution limit. It leads to the absurd result that a lawyer's contribution of services to aid a candidate in complying with FECA is exempt, but his first amendment activity is regulated if he falls ill and hires a replacement." 171 U.S.App.D.C. 172, 266, 519 F.2d 821, 915 (1975).
907
One need not call problems of this order equal protection violations to recognize that the contribution limitations of the Act create grave inequities that are aggravated by the Court's interpretation of the Act.
908
The Court's piecemeal approach fails to give adequate consideration to the integrated nature of this legislation. A serious question is raised, which the Court does not consider:20 when central segments, key operative provisions, of this Act are stricken, can what remains function in anything like the way Congress intended? The incongruities are obvious. The Commission is now eliminated, yet its very purpose was to guide candidates and campaign workers and their accountants and lawyers through an intricate statutory maze where a misstep can lead to imprisonment. All candidates can now spend freely; affluent candidates, after today, can spend their own money without limit; yet, contributions for the ordinary candidate are severely restricted in amount and small contributors are deterred. I cannot believe that Congress would have enacted a statutory scheme containing such incongruous and inequitable provisions.
909
Although the statute contains a severability clause, 2 U.S.C. § 454 (1970 ed., Supp. IV), such a clause is not an "inexorable command."21 Dorchy v. Kansas, 264 U.S. 286, 290, 44 S.Ct. 323, 324, 68 L.Ed. 686 (1924). The clause creates a rebuttable presumption that " 'eliminating invalid parts, the Legislature would have been satisfied with what remained.' " Welsh v. United States, 398 U.S. 333, 364, 90 S.Ct. 1792, 1809, 26 L.Ed.2d 308 (1970) (Harlan, J., concurring, quoting from Champlin Rfg. Co. v. Commission, 286 U.S. 210, 235, 52 S.Ct. 559, 565, 76 L.Ed. 1062 (1932)). Here just as the presumption of constitutionality of a statute has been overcome to the point that major portions and chapters of the Act have been declared unconstitutional, for me the presumption of severability has been rebutted. To invoke a severability clause to sal vage parts of a comprehensive, integrated statutory scheme, which facts, standing alone, are unworkable and in many aspects unfair, exalts a formula at the expense of the broad objectives of Congress.
910
Finally, I agree with the Court that the members of the Federal Election Commission were unconstitutionally appointed. However, I disagree that we should give blanket de facto validation to all actions of the Commission undertaken until today. The issue is not before us and we cannot know what acts we are ratifying. I would leave this issue to the District Court to resolve if and when any challenges are brought.
911
In the past two decades the Court has frequently spoken of the broad coverage of the First Amendment, especially in the area of political dialogue:
912
"(T)o assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people," Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498 (1957);
913
and:
914
"(T)here is practically universal agreement that a major purpose of (the First) Amendment was to protect the free discussion of governmental affairs . . . (including) discussions of candidates . . . ," Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1437, 16 L.Ed.2d 484 (1966);
915
and again:
916
"(I)t can hardly be doubted that the constitutional guarantee (of the First Amendment) has its fullest and most urgent application precisely to the conduct of campaigns for political office." Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 625, 28 L.Ed.2d 35 (1971).
917
To accept this generalization one need not agree that the Amendment has its "fullest and most urgent application" only in the political area, for others would think religious freedom is on the same or even a higher plane. But I doubt that the Court would tolerate for an instant a limitation on contributions to a church or other religious cause; however grave an "evil" Congress thought the limits would cure, limits on religious expenditures would most certainly fall as well. To limit either contributions or expenditures as to churches would plainly restrict "the free exercise" of religion. In my view Congress can no more ration political expression than it can ration religious expression; and limits on political or religious contributions and expenditures effectively curb expression in both areas. There are many prices we pay for the freedoms secured by the First Amendment; the risk of undue influence is one of them, confirming what we have long known: Freedom is hazardous, but some restraints are worse.
918
Mr. Justice WHITE, concurring in part and dissenting in part.
919
I concur in the Court's answers to certified questions 1, 2, 3(b), 3(c), 3(e), 3(f), 3(h), 5, 6, 7(a), 7(b), 7(c), 7(d), 8(a), 8(b), 8(c), 8(d), 8(e), and 8(f). I dissent from the answers to certified questions 3(a), 3(d), and 4(a). I also join in Part III of the Court's opinion and in much of Parts I-B, II, and IV.
920
* It is accepted that Congress has power under the Constitution to regulate the election of federal officers, including the President and the Vice President. This includes the authority to protect the elective processes against the "two great natural and historical enemies of all republics, open violence and insidious corruption," Ex parte Yarbrough, 110 U.S. 651, 658, 4 S.Ct. 152, 155, 28 L.Ed. 274 (1884); for "(i)f this government is anything more than a mere aggregation of delegated agents of other states and governments, each of which is superior to the general government, it must have the power to protect the elections on which its existence depends, from violence and corruption," the latter being the consequence of "the free use of money in elections, arising from the vast growth of recent wealth . . . ." Id., at 657-658, 667, 4 S.Ct. at 160.
921
This teaching from the last century was quoted at length and reinforced in Burroughs v. United States, 290 U.S. 534, 546-548, 54 S.Ct. 287, 291, 78 L.Ed. 484 (1934). In that case the Court sustained the Federal Corrupt Practices Act of 1925, Title III of the Act of Feb. 28, 1925, 43 Stat. 1070, which, among other things, required political committees to keep records and file reports concerning all contributions and expenditures received and made by political committees for the purposes of influencing the election of candidates for federal office. The Court noted the conclusion of Congress that public disclosure of contributions would tend to prevent the corrupt use of money to influence elections; this, together with the requirement "that the treasurer's statement shall include full particulars in respect of expenditures," made it "plain that the statute as a whole is calculated to discourage the making and use of contributions for purposes of corruption." 290 U.S. at 548, 54 S.Ct. at 291. Congress clearly had the power to further as it did that fundamental goal:
922
"The power of Congress to protect the election of President and Vice President from corruption being clear, the choice of means to that end presents a question primarily addressed to the judgment of Congress. If it can be seen that the means adopted are really calculated to attain the end, the degree of their necessity, the extent to which they conduce to the end, the closeness of the relationship between the means adopted, and the end to be attained, are matters for congressional determination alone." Id., at 547-548, 54 S.Ct. at 291.
923
Pursuant to this undoubted power of Congress to vindicate the strong public interest in controlling corruption and other undesirable uses of money in connection with election campaigns, the Federal Election Campaign Act substantially broadened the reporting and disclosure requirements that so long have been a part of the federal law. Congress also concluded that limitations on contributions and expenditures were essential if the aims of the Act were to be achieved fully. In another major innovation, aimed at insulating candidates from the time-consuming and entangling task of raising huge sums of money, provision was made for public financing of political campaigns for federal office. A Federal Election Commission (FEC) was also created to administer the law.
924
The disclosure requirements and the limitations on contributions and expenditures are challenged as invalid abridgments of the right of free speech protected by the First Amendment. I would reject these challenges. I agree with the Court's conclusion and much of its opinion with respect to sustaining the disclosure provisions. I am also in agreement with the Court's judgment upholding the limitations on contributions. I dissent, however, from the Court's view that the expenditure limitations of 18 U.S.C. § 608(c) and (e) (1970 ed., Supp. IV) violate the First Amendment.
925
Concededly, neither the limitations on contributions nor those on expenditures directly or indirectly purport to control the content of political speech by candidates or by their supporters or detractors. What the Act regulates is giving and spending money, acts that have First Amendment significance not because they are themselves communicative with respect to the qualifications of the candidate, but because money may be used to defray the expenses of speaking or otherwise communicating about the merits or demerits of federal candidates for election. The act of giving money to political candidates, however, may have illegal or other undesirable consequences: it may be used to secure the express or tacit understanding that the giver will enjoy political favor if the candidate is elected. Both Congress and this Court's cases have recognized this as a mortal danger against which effective preventive and curative steps must be taken.
926
Since the contribution and expenditure limitations are neutral as to the content of speech and are not motivated by fear of the consequences of the political speech of particular candidates or of political speech in general, this case depends on whether the nonspeech interests of the Federal Government in regulating the use of money in political campaigns are sufficiently urgent to justify the incidental effects that the limitations visit upon the First Amendment interests of candidates and their supporters.
927
Despite its seeming struggle with the standard by which to judge this case, this is essentially the question the Court asks and answers in the affirmative with respect to the limitations on contributions which individuals and political committees are permitted to make to federal candidates. In the interest of preventing undue influence that large contributors would have or that the public might think they would have, the Court upholds the provision that an individual may not give to a candidate, or spend on his behalf if requested or authorized by the candidate to do so, more than $1,000 in any one election. This limitation is valid although it imposes a low ceiling on what individuals may deem to be their most effective means of supporting or speaking on behalf of the candidate i. e., financial support given directly to the candidate. The Court thus accepts the congressional judgment that the evils of unlimited contributions are sufficiently threatening to warrant restriction regardless of the impact of the limits on the contributor's opportunity for effective speech and in turn on the total volume of the candidate's political communications by reason of his inability to accept large sums from those willing to give.
928
The congressional judgment, which I would also accept, was that other steps must be taken to counter the corrosive effects of money in federal election campaigns. One of these steps is § 608(e), which, aside from those funds that are given to the candidate or spent at his request or with his approval or cooperation limits what a contributor may independently spend in support or denigration of one running for federal office. Congress was plainly of the view that these expenditures also have corruptive potential; but the Court strikes down the provision, strangely enough claiming more insight as to what may improperly influence candidates than is possessed by the majority of Congress that passed this bill and the President who signed it. Those supporting the bill undeniably included many seasoned professionals who have been deeply involved in elective processes and who have viewed them at close range over many years.
929
It would make little sense to me, and apparently made none to Congress, to limit the amounts an individual may give to a candidate or spend with his approval but fail to limit the amounts that could be spent on his behalf. Yet the Court permits the former while striking down the latter limitation. No more than $1,000 may be given to a candidate or spent at his request or with his approval or cooperation; but otherwise, apparently, a contributor is to be constitutionally protected in spending unlimited amounts of money in support of his chosen candidate or candidates.
930
Let us suppose that each of two brothers spends $1 million on TV spot announcements that he has individually prepared and in which he appears, urging the election of the same named candidate in identical words. One brother has sought and obtained the approval of the candidate; the other has not. The former may validly be prosecuted under § 608(e); under the Court's view, the latter may not, even though the candidate could scarcely help knowing about and appreciating the expensive favor. For constitutional purposes it is difficult to see the difference between the two situations. I would take the word of those who know that limiting independent expenditures is essential to prevent transparent and widespread evasion of the contribution limits.
931
In sustaining the contribution limits, the Court recognizes the importance of avoiding public misapprehension about a candi date's reliance on large contributions. It ignores that consideration in invalidating § 608(e). In like fashion, it says that Congress was entitled to determine that the criminal provisions against bribery and corruption, together with the disclosure provisions, would not in themselves be adequate to combat the evil and that limits on contributions should be provided. Here, the Court rejects the identical kind of judgment made by Congress as to the need for and utility of expenditure limits. I would not do so.
932
The Court also rejects Congress' judgment manifested in § 608(c) that the federal interest in limiting total campaign expenditures by individual candidates justifies the incidental effect on their opportunity for effective political speech. I disagree both with the Court's assessment of the impact on speech and with its narrow view of the values the limitations will serve.
933
Proceeding from the maxim that "money talks," the Court finds that the expenditure limitations will seriously curtail political expression by candidates and interfere substantially with their chances for election. The Court concludes that the Constitution denies Congress the power to limit campaign expenses; federal candidates and I would suppose state candidates, too are to have the constitutional right to raise and spend unlimited amounts of money in quest of their own election.
934
As an initial matter, the argument that money is speech and that limiting the flow of money to the speaker violates the First Amendment proves entirely too much. Compulsory bargaining and the right to strike, both provided for or protected by federal law, inevitably have increased the labor costs of those who publish newspapers, which are in turn an important factor in the recent disappearance of many daily papers. Federal and state taxation directly removes from company coffers large amounts of money that might be spent on larger and better newspapers. The antitrust laws are aimed at preventing monopoly profits and price fixing, which gouge the consumer. It is also true that general price controls have from time to time existed and have been applied to the newspapers or other media. But it has not been suggested, nor could it be successfully, that these laws, and many others, are invalid because they siphon off or prevent the accumulation of large sums that would otherwise be available for communicative activities.
935
In any event, as it should be unnecessary to point out, money is not always equivalent to or used for speech, even in the context of political campaigns. I accept the reality that communicating with potential voters is the heart of an election campaign and that widespread communication has become very expensive. There are, however, many expensive campaign activities that are not themselves communicative or remotely related to speech. Furthermore, campaigns differ among themselves. Some seem to spend much less money than others and yet communicate as much as or more than those supported by enormous bureaucracies with unlimited financing. The record before us no more supports the conclusion that the communicative efforts of congressional and Presidential candidates will be crippled by the expenditure limitations than it supports the contrary. The judgment of Congress was that reasonably effective campaigns could be conducted within the limits established by the Act and that the communicative efforts of these campaigns would not seriously suffer. In this posture of the case, there is no sound basis for invalidating the expenditure limitations, so long as the purposes they serve are legitimate and sufficiently substantial, which in my view they are.
936
In the first place, expenditure ceilings reinforce the contribution limits and help eradicate the hazard of corruption. The Court upholds the overall limit of $25,000 on an individual's political contributions in a single election year on the ground that it helps reinforce the limits on gifts to a single candidate. By the same token, the expenditure limit imposed on candidates plays its own role in lessening the chance that the contribution ceiling will be violated. Without limits on total expenditures, campaign costs will inevitably and endlessly escalate. Pressure to raise funds will constantly build and with it the temptation to resort in "emergencies" to those sources of large sums, who, history shows, are sufficiently confident of not being caught to risk flouting contribution limits. Congress would save the candidate from this predicament by establishing a reasonable ceiling on all candidates. This is a major consideration in favor of the limitation. It should be added that many successful candidates will also be saved from large, overhanging campaign debts which must be paid off with money raised while holding public office and at a time when they are already preparing or thinking about the next campaign. The danger to the public interest in such situations is self-evident.
937
Besides backing up the contribution provisions, which are aimed at preventing untoward influence on candidates that are elected, expenditure limits have their own potential for preventing the corruption of federal elections themselves. For many years the law has required the disclosure of expenditures as well as contributions. As Burroughs indicates, the corrupt use of money by candidates is as much to be feared as the corrosive influence of large contributions. There are many illegal ways of spending money to influence elections. One would be blind to history to deny that unlimited money tempts people to spend it on whatever money can buy to influence an election. On the assumption that financing illegal activities is low on the campaign organization's priority list, the expenditure limits could play a substantial role in preventing unethical practices. There just would not be enough of "that kind of money" to go around.
938
I have little doubt in addition that limiting the total that can be spent will ease the candidate's understandable obsession with fundraising, and so free him and his staff to communicate in more places and ways unconnected with the fundraising function. There is nothing objectionable indeed it seems to me a weighty interest in favor of the provision in the attempt to insulate the political expression of federal candidates from the influence inevitably exerted by the endless job of raising increasingly large sums of money. I regret that the Court has returned them all to the treadmill.
939
It is also important to restore and maintain public confidence in federal elections. It is critical to obviate or dispel the impression that federal elections are purely and simply a function of money, that federal offices are bought and sold or that political races are reserved for those who have the facility and the stomach for doing whatever it takes to bring together those interests, groups, and individuals that can raise or contribute large fortunes in order to prevail at the polls.
940
The ceiling on candidate expenditures represents the considered judgment of Congress that elections are to be decided among candidates none of whom has overpowering advantage by reason of a huge campaign war chest. At least so long as the ceiling placed upon the candidates is not plainly too low, elections are not to turn on the difference in the amounts of money that candidates have to spend. This seems an acceptable purpose and the means chosen a common-sense way to achieve it. The Court nevertheless holds that a candidate has a constitutional right to spend unlimited amounts of money, mostly that of other people, in order to be elected. The holding perhaps is not that federal candidates have the constitutional right to purchase their election, but many will so interpret the Court's conclusion in this case. I cannot join the Court in this respect.
941
I also disagree with the Court's judgment that § 608(a), which limits the amount of money that a candidate or his family may spend on his campaign, violates the Consti tution. Although it is true that this provision does not promote any interest in preventing the corruption of candidates, the provision does, nevertheless, serve salutary purposes related to the integrity of federal campaigns. By limiting the importance of personal wealth, § 608(a) helps to assure that only individuals with a modicum of support from others will be viable candidates. This in turn would tend to discourage any notion that the outcome of elections is primarily a function of money. Similarly, § 608(a) tends to equalize access to the political arena, encouraging the less wealthy, unable to bankroll their own campaigns, to run for political office.
942
As with the campaign expenditure limits, Congress was entitled to determine that personal wealth ought to play a less important role in political campaigns than it has in the past. Nothing in the First Amendment stands in the way of that determination.
943
For these reasons I respectfully dissent from the Court's answers to certified questions 3(a), 3(d), and 4(a).
II
944
I join the answers in Part IV of the Court's opinion, ante, at 141-142, n. 177, to the questions certified by the District Court relating to the composition and powers of the FEC, i. e., questions 8(a), 8(b), 8(c), 8(d) (with the qualifications stated infra, at 282-286), 8(e), and 8(f). I also agree with much of that part of the Court's opinion, including the conclusions that these questions are properly before us and ripe for decision, that the FEC's past acts are de facto valid, that the Court's judgment should be stayed, and that the FEC may function de facto while the stay is in effect.
945
The answers to the questions turn on whether the FEC is illegally constituted because its members were not selected in the manner required by Art. II, § 2, cl. 2, the Appointments Clause. It is my view that with one exception Congress could endow a properly constituted commission with the powers and duties it has given the FEC.1
946
Section 437c creates an eight-member FEC. Two members, the Secretary of the Senate and the Clerk of the House of Representatives, are ex officio members without the right to vote or to hold an FEC office.2 Of the remaining six, two are appointed by the President pro tempore of the Senate upon the recommendation of the majority and minority leaders of that body; two are similarly appointed by the Speaker of the House; and two are appointed by the President of the United States. The appointment of each of these six members is subject to confirmation by a majority of both Houses of Congress. § 437c(a) (1). Each member is appointed for a term of years; none can be an elected or appointed officer or employee of any branch of the Government at the time of his appointment. § 437c(a)(2), (3). The FEC is empowered to elect its own officers, § 437c(a)(5), and to appoint a staff director and general counsel. § 437c(f). Decisions are by a majority vote. § 437c(c).
947
It is apparent that none of the members of the FEC is selected in a manner Art. II specifies for the appointment of officers of the United States. The Appointments Clause provides:
948
"(The President) shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."3
949
Although two of the members of the FEC are initially selected by the President, his nominations are subject to confirmation by both Houses of Congress. Neither he, the head of any department, nor the Judiciary has any voice in the selection of the remaining members of the FEC. The challenge to the FEC, therefore, is that its members are officers of the United States the mode of whose appointment was required to, but did not, conform to the Appointments Clause. That challenge is well taken.
950
The Appointments Clause applies only to officers of the United States whose appointment is not "otherwise provided for" in the Constitution. Senators and Congressmen are officers of the United States, but the Constitution expressly provides the mode of their selection.4 The Constitution also expressly provides that each House of Congress is to appoint its own officers.5 But it is not contended here that FEC members are officers of either House selected pursuant to these express provisions, if for no other reason, perhaps, than that none of the Commissioners was selected in the manner specified by these provisions none of them was finally selected by either House acting alone as Art. I authorizes.
951
The appointment power provided in Art. II also applies only to officers, as distinguished from employees,6 of the United States, but there is no claim the Commissioners are employees of the United States rather than officers. That the Commissioners are among those officers of the United States referred to in the Appointments Clause of Art. II is evident from the breadth of their assigned duties and the nature and importance of their assigned functions.
952
The functions and duties of the FEC relate to three different aspects of the election laws: First, the provisions of the Criminal Code, 18 U.S.C. §§ 608-617 (1970 ed., Supp. IV), which establish major substantive limitations on political contributions and expenditures by individuals, political organizations, and candidates; second, the reporting and disclosure provisions contained in 2 U.S.C. §§ 431-437b (1970 ed., Supp. IV), these sections requiring the filing of detailed reports of political contributions and expenditures; and third, the provisions of 26 U.S.C. §§ 9001-9042 (1970 ed., Supp. IV) with respect to the public financing of Presidential primary and general election campaigns. From the "representative examples of (the FEC's) various powers" the Court describes, ante, at 109-113, it is plain that the FEC is the primary agency for the enforcement and administration of major parts of the election laws. It does not replace or control the executive agencies with respect to criminal prosecutions, but within the wide zone of its authority the FEC is independent of executive as well as congressional control except insofar as certain of its regulations must be laid before and not be disapproved by Congress. § 438(c); 26 U.S.C. §§ 9009(c), 9039(c) (1970 ed., Supp. IV). With duties and functions such as these, members of the FEC are plainly "officers of the United States" as that term is used in Art. II, § 2, cl. 2.
953
It is thus not surprising that the FEC, in defending the legality of its members' appointments, does not deny that they are "officers of the United States" as that term is used in the Appointments Clause of Art. II.7 Instead, for reasons the Court outlines, ante, at 131-132, 133-134, its position appears to be that even if its members are officers of the United States, Congress may nevertheless appoint a majority of the FEC without participation by the President.8 This position that Congress may itself appoint the members of a body that is to administer a wide-ranging statute will not withstand examination in light of either the purpose and history of the Appointments Clause or of prior cases in this Court.
954
The language of the Appointments Clause was not mere inadvertence. The matter of the appointment of officers of the new Federal Government was repeatedly debated by the Framers, and the final formulation of the Clause arrived at only after the most careful debate and consideration of its place in the overall design of government. The appointment power was a major building block fitted into the constitutional structure designed to avoid the accumulation or exercise of arbitrary power by the Federal Government. The basic approach was that official power should be divided among the Executive, Legislative, and Judicial Departments. The separation-of-powers principle was implemented by a series of provisions, among which was the knowing decision that Congress was to have no power whatsoever to appoint federal officers, except for the power of each House to appoint its own officers serving in the strictly legislative processes and for the confirming power of the Senate alone.
955
The decision to give the President the exclusive power to initiate appointments was thoughtful and deliberate. The Framers were attempting to structure three departments of government so that each would have affirmative powers strong enough to resist the encroachment of the others. A fundamental tenet was that the same persons should not both legislate and administer the laws.9 From the very outset, provision was made to prohibit members of Congress from holding office in another branch of the Government while also serving in Congress. There was little if any dispute about this incompatibility provision which survived in Art. I, § 6, of the Constitution as finally ratified.10 Today, no person may serve in Congress and at the same time be Attorney General, Secretary of State, a member of the judiciary, a United States attorney, or a member of the Federal Trade Commission or the National Labor Relations Board.
956
Early in the 1787 Convention it was also proposed that members of Congress be absolutely ineligible during the term for which they were elected, and for a period thereafter, for appointment to any state or federal office.11 But to meet substantial opposition to so stringent a provision, ineligibility for state office was first eliminated,12 and under the language ultimately adopted, Congressmen were disqualified from being appointed only to those offices which were created, or for which the emoluments were increased, during their term of office.13 Offices not in this category could be filled by Representatives or Senators, but only upon resignation.
957
Immediately upon settling the ineligibility provision, the Framers returned to the appointment power which they had several times before debated and postponed for later consideration.14 From the outset, there had been no dispute that the Executive alone should appoint, and not merely nominate, purely executive officers,15 but at one stage judicial officers were to be selected by the entire Congress.16 This provision was subsequently changed to lodge the power to choose judges in the Senate,17 which was later also given the power to appoint ambassadors and other public ministers.18 But following resolution of the dispute over the ineligibility provision, which served both to prevent members of Congress from appointing themselves to federal office and to limit their being appointed to federal office, it was determined that the appointment of all principal officers, whether executive or not, should originate with the President and that the Senate should have only the power of advice and consent.19 Inferior officers could be otherwise appointed, but not by Congress itself.20 This allocation of the appointment power, in which for the first time the Executive had the power to initiate appointment to all principal offices and the Senate was empowered to advise and consent to nominations by the Executive,21 was made possible by adoption of the ineligibility provisions and was formulated as part of the fundamental compromises with respect to the composition of the Senate, the respective roles of the House and Senate, and the placement of the election of the President in the electoral college.
958
Under Art. II as finally adopted, law enforcement authority was not to be lodged in elected legislative officials subject to political pressures. Neither was the Legislative Branch to have the power to appoint those who were to enforce and administer the law. Also, the appointment power denied Congress and vested in the President was not limited to purely executive officers but reached officers performing purely judicial functions as well as all other officers of the United States.
959
I thus find singularly unpersuasive the proposition that because the FEC is implementing statutory policies with respect to the conduct of elections, which policies Congress has the power to propound, its members may be appointed by Congress. One might as well argue that the exclusive and plenary power of Congress over interstate commerce authorizes Congress to appoint the members of the Interstate Commerce Commission and of many other regulatory commissions; that its exclusive power to provide for patents and copyrights would permit the administration of the patent laws to be carried out by a congressional committee; or that the exclusive power of the Federal Government to establish post offices authorizes Congress itself or the Speaker of the House and the President pro tempore of the Senate to appoint postmasters and to enforce the postal laws.
960
Congress clearly has the power to create federal offices and to define the powers and duties of those offices, Myers v. United States, 272 U.S. 52, 128-129, 47 S.Ct. 21, 29, 71 L.Ed. 160 (1926), but no case in this Court even remotely supports the power of Congress to appoint an officer of the United States aside from those officers each House is authorized by Art. I to appoint to assist in the legislative processes.
961
In Myers, a postmaster of the first class was removed by the President prior to the expiration of his statutory four-year term. Challenging the President's power to remove him contrary to the statute, he sued for his salary. The challenge was rejected here. The Court said that under the Constitution the power to appoint the principal officers of the Executive Branch was an inherent power of the President:
962
"(T)he reasonable implication, even in the absence of express words, was that as part of his executive power (the President) should select those who were to act for him under his direction in the execution of the laws." Id., at 117, 47 S.Ct., at 25.
963
Further, absent express limitation in the Constitution, the President was to have unrestricted power to remove those administrative officers essential to him in discharging his duties. These fundamental rules were to extend to those bureau and department officers with power to issue regulations and to discharge duties of a quasi-judicial nature those members of "executive tribunals whose decisions after hearing affect interests of individuals." Id., 272 U.S. at 135, 47 S.Ct. at 31. As for inferior officers such as the plaintiff postmaster, the same principles were to govern if Congress chose to place the appointment in the President with the advice and consent of the Senate, as was the case in Myers. Under the Appointments Clause, Congress could but did not in the Myers case permit the appointment of inferior officers by the heads of departments, in which event, the Court said, Congress would have the authority to establish a term of office and limit the reasons for their removal. But in no circumstance could Congress participate in the removal:
964
"(T)he court never has held, nor reasonably could hold, although it is argued to the contrary on behalf of the appellant, that the excepting clause enables Congress to draw to itself, or to either branch of it, the power to remove or the right to participate in the exercise of that power. To do this would be to go beyond the words and implications of that clause, and to infringe the constitutional principle of the separation of governmental powers." Id., at 161, 47 S.Ct. at 40.
965
Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935), limited the reach of the Myers case. There the President attempted to remove a member of the Federal Trade Commission prior to the expiration of his statutory term and for reasons not specified in the statute. The Court ruled that the Presidential removal power vindicated in Myers related solely to "purely executive officers," 295 U.S., at 628, 55 S.Ct., at 874, from whom the Court sharply distinguished officers such as the members of the Federal Trade Commission who were to be free from political dominance and control, whose duties are "neither political nor executive, but predominantly quasi judicial and quasi legislative." Id., at 624, 55 S.Ct. at 872. Contrary to the dicta in Myers, such an officer was thought to occupy "no place in the executive department," and to exercise "no part of the executive power vested by the Constitution in the President," 295 U.S., at 628, 55 S.Ct., at 874, and to be immune from removal by the President except on terms specified by Congress. The Commissioners were described as being in part an administrative body carrying out legislative policies and in part an agency of the Judiciary, ibid.; such a body was intended to be "independent of executive authority, except in its selection, and free to exercise its judgment without the leave or hindrance of any other official or any department of the government." Id., at 625-626, 55 S.Ct. at 873. (Emphasis in original.)
966
The holding in Humphrey's Executor was confirmed in Wiener v. United States, 357 U.S. 349, 78 S.Ct. 1275, 2 L.Ed.2d 1377 (1958), but the Court did not question what Humphrey's Executor had expressly recognized that members of independent agencies are not independent of the Executive with respect to their appointments. Nor did either Wiener or Humphrey's Executor suggest that Congress could not only create the independent agency, specify its duties, and control the grounds for removal of its members but could also itself appoint or remove them without the participation of the Executive Branch of the Government. To have so held would have been contrary to the Appointments Clause as the Myers case recognized.
967
It is said that historically Congress has used its own officers to receive and file the reports of campaign expenditures and contributions as required by law and that this Court should not interfere with this practice. But the Act before us creates a separate and independent campaign commission with members, some nominated by the President, who have specified terms of office, are not subject to removal by Congress, and are free from congressional control in their day-to-day functions. The FEC, it is true, is the designated authority with which candidates and political committees must file reports of contributions and expenditures, as required by the Act. But the FEC may also make rules and regulations with respect to the disclosure requirements, may investigate reported violations, issue subpoenas, hold its own hearings and institute civil enforcement proceedings in its own name. Absent a request by the FEC, it would appear that the Attorney General has no role in the civil enforcement of the reporting and disclosure requirements. The FEC may also issue advisory opinions with respect to the legality of any particular activities so as to protect those persons who in good faith have conducted themselves in reliance on the FEC's opinion. These functions go far beyond mere information gathering, and there is no long history of lodging such enforcement powers in congressional appointees.
968
Nor do the FEC's functions stop with policing the reporting and disclosure requirements of the Act. The FEC is given express power to administer, obtain compliance with, and "to formulate general policy"22 with respect to 18 U.S.C. §§ 608-617, so much so that the Act expressly provides that "(t)he Commission has primary jurisdiction with respect to the civil enforcement of such provisions."23 Following its own proceedings the FEC may request the Attorney General to bring civil enforcement proceedings, a request which the Attorney General must honor.24 And good-faith con duct taken in accordance with the FEC's advisory opinions as to whether any transaction or activity would violate any of these criminal provisions "shall be presumed to be in compliance with" these sections.25 § 437f(b). Finally, the FEC has the central role in administering and enforcing the provisions of Title 26 contemplating the public financing of political campaigns.26
969
It is apparent that the FEC is charged with the enforcement of the election laws in major respects. Indeed, except for the conduct of criminal proceedings, it would appear that the FEC has the entire responsibility for enforcement of the statutes at issue here. By no stretch of the imagination can its various functions in this respect be considered mere adjuncts to the legislative process or to the powers of Congress to judge the election and qualifications of its own members.
970
It is suggested, without accounting for the President's role in appointing some of its members that the FEC would be willing to forgo its civil enforcement powers and that absent these functions, it is left with nothing that purely legislative officers may not do. The difficulty is that the statute invests the FEC not only with the authority but with the duties that unquestionably make its members officers of the United States, fully as much as the members of other commissions charged with the major responsibility for administering statutes. What is more, merely forgoing its authority to bring suit would still leave the FEC with the power to issue rules and regulations, its advisory opinion authority, and primary duties to enforce the Act. Absent notice and hearing by the FEC and a request on its part, it would not appear that the Executive Branch of the Government would have any authority under the statute to institute civil enforcement proceedings with respect to the reporting and disclosure requirements or the relevant provisions of Titles 18 and 26.
971
There is no doubt that the development of the administrative agency in response to modern legislative and administrative need has placed severe strain on the separation-of-powers principle in its pristine formulation. See Kilbourn v. Thompson, 103 U.S. 168, 191, 26 L.Ed. 377 (1881). Any notion that the Constitution bans any admixture of powers that might be deemed legislative, executive, and judicial has had to give way. The independent agency has survived attacks from various directions: that it exercises invalidly delegated legislative power, Sunshine Coal Co. v. Adkins, 310 U.S. 381, 60 S.Ct. 907, 84 L.Ed. 1263 (1940); that it invalidly exer cises judicial power, ibid.; and that its functions are so executive in nature that its members must be subject to Presidential control, Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed.2d 1611 (1935). Until now, however, it has not been insisted that the commands of the Appointments Clause must also yield to permit congressional appointments of members of a major agency. With the Court, I am not convinced that we should create a broad exception to the requirements of that Clause that all officers of the United States be appointed in accordance with its terms. The provision applies to all officers, however their duties may be classified; and even if some of the FEC's functions, such as rulemaking, are purely legislative, I know of no authority for the congressional appointment of its own agents to make binding rules and regulations necessary to or advisable for the administration and enforcement of a major statute where the President has not participated either in the appointment of each of the administrators or in the fashioning of the rules or regulations which they propound.
972
I do not dispute the legislative power of Congress coercively to gather and make available for public inspection massive amounts of information relevant to the legislative process. Its own officers may, as they have done for years, receive and file contribution and expenditure reports of candidates and political committees. Arguably, the Commissioners, although not properly appointed by the President, should at least be able to perform this function. But the members of the FEC are appointed for definite terms of office, are not removable by the President or by Congress, and even if their duties were to be severely limited, they would appear to remain Art. II officers. In any event, the task of gathering and publishing campaign finance information has been one of the specialties of the officers of the respective Houses, and these same officers under the present law continue to receive such information and to act as custodians for the FEC, at least with respect to the Senate and House political campaigns. They are also instructed to cooperate with the FEC. § 438(d).
973
For these reasons I join in the Court's answers to certified questions 8(a), 8(b), 8(c), 8(e) and 8(f), and with the following reservations to question 8(d).
974
Question 8(d) asks whether § 438(c) violates the constitutional rights of one or more of the plaintiffs in that "it empowers the Federal Election Commission to make rules under the F.E.C.A. in the manner specified therein." Section 438(c) imposes certain preconditions to the effectiveness of "any rule or regulation under this section . . .," but does not itself authorize the issuance of rules or regulations. That authorization is to be found in § 438(a)(10), which includes among the duties of the FEC the task of prescribing "rules and regulations to carry out the provisions of this subchapter, in accordance with the provisions of subsection (c)." The "subchapter" referred to is the subchapter dealing with federal election campaigns and the reports of contributions and expenditures required to be filed with the FEC.27 Subsection (c), which is the provision expressly mentioned in question 8(d), requires that any rule or regulation prescribed by the FEC under § 438 shall be transmitted to the Senate or the House, or to both as thereafter directed. After 30 legislative days,28 the rule or regulation will become effective unless (1) either House has disapproved the rule if it relates to reports by Presidential candidates or their supporting committees; (2) the House has disapproved it if it relates to reports to be filed by House candidates or their committees; or (3) the Senate has disapproved it if the rule relates to reports by Senate candidates or their related committees.
975
By expressly referring to subsection (c), question 8(d) appears to focus on the disapproval requirement; but the Court's answer is not responsive in these terms. Rather, the Court expressly disclaims holding that the FEC's rules and regulations are invalid because of the requirement that they are subject to disapproval by one or both Houses of Congress. Ante, at 140 n. 176. As I understand it, the FEC's rules and regulations, whether or not issued in compliance with § 438(c), are invalid because the members of the FEC have not been appointed in accordance with Art. II. To the extent that this is the basis for the Court's answer to the question, I am in agreement.
976
If the FEC members had been nominated by the President and confirmed by the Senate as provided in Art. II, nothing in the Constitution would prohibit Congress from empowering the Commission to issue rules and regulations without later participation by, or consent of, the President or Congress with respect to any particular rule or regulation or initially to adjudicate questions of fact in accordance with a proper interpretation of the statute. Sunshine Coal Co. v. Adkins, 310 U.S. 381, 60 S.Ct. 907, 84 L.Ed. 1263 (1940); RFC v. Bankers Trust Co., 318 U.S. 163, 63 S.Ct. 515, 87 L.Ed. 680 (1943); Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935). The President must sign the statute creating the rulemaking authority of the agency or it must have been passed over his veto, and he must have nominated the members of the agency in accordance with Art. II; but agency regulations issued in accordance with the statute are not subject to his veto even though they may be substantive in character and have the force of law.
977
I am also of the view that the otherwise valid regulatory power of a properly created independent agency is not rendered constitutionally infirm, as violative of the President's veto power, by a statutory provision subjecting agency regulations to disapproval by either House of Congress. For a bill to become law it must pass both Houses and be signed by the President or be passed over his veto. Also, "Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary . . ." is likewise subject to the veto power.29 Under § 438(c) the FEC's regulations are subject to disapproval; but for a regulation to become effective, neither House need approve it, pass it, or take any action at all with respect to it. The regulation becomes effective by nonaction. This no more invades the President's powers than does a regulation not required to be laid before Congress. Congressional influence over the substantive content of agency regulation may be enhanced, but I would not view the power of either House to disapprove as equivalent to legislation or to an order, resolution, or vote requiring the concurrence of both Houses.30
978
In terms of the substantive content of regulations and the degree of congressional influence over agency lawmaking, I do not suggest that there is no difference between the situation where regulations are subject to disapproval by Congress and the situation where the agency need not run the congressional gantlet. But the President's veto power, which gives him an important role in the legislative process, was obviously not considered an inherently executive function. Nor was its principal aim to provide another check against poor legislation. The major purpose of the veto power appears to have been to shore up the Executive Branch and to provide it with some bargaining and survival power against what the Framers feared would be the overweening power of legislators. As Hamilton said, the veto power was to provide a defense against the legislative department's intrusion on the rights and powers of other departments; without such power, "the legislative and executive powers might speedily come to be blended in the same hands."31
979
I would be much more concerned if Congress purported to usurp the functions of law enforcement, to control the outcome of particular adjudications, or to pre-empt the President's appointment power; but in the light of history and modern reality, the provision for congressional disapproval of agency regulations does not appear to transgress the constitutional design, at least where the President has agreed to legislation establishing the disapproval procedure or the legislation has been passed over his veto. It would be considerably different if Congress itself purported to adopt and propound regulations by the action of both Houses. But here no action of either House is required for the agency rule to go into effect, and the veto power of the President does not appear to be implicated.
980
Mr. Justice MARSHALL, concurring in part and dissenting in part.
981
I join in all of the Court's opinion except Part I-C-2, which deals with 18 U.S.C. § 608(a) (1970 ed., Supp. IV). That section limits the amount a candidate may spend from his personal funds, or family funds under his control, in connection with his campaigns during any calendar year. See ante, at 51-52, n. 57. The Court invalidates § 608(a) as violative of the candidate's First Amendment rights. "(T)he First Amendment," the Court explains, "simply cannot tolerate § 608(a)'s restriction upon the freedom of a candidate to speak without legislative limit on behalf of his own candidacy." Ante, at 54. I disagree.
982
To be sure, § 608(a) affects the candidate's exercise of his First Amendment rights. But unlike the other expenditure limitations contained in the Act and invalidated by the Court the limitation on independent expenditures relative to a clearly identified candidate, § 608(e), and the limitations on overall candidate expenditures, § 608(c) the limitations on expenditures by candidates from personal resources contained in § 608(a) need never prevent the speaker from spending another dollar to communicate his ideas. Section 608(a) imposes no overall limit on the amount a candidate can spend; it simply limits the "contribution" a candidate may make to his own campaign. The candidate remains free to raise an unlimited amount in contributions from others. So long as the candidate does not contribute to his campaign more than the amount specified in § 608(a), and so long as he does not accept contributions from others in excess of the limitations imposed by § 608(b), he is free to spend without limit on behalf of his campaign.
983
It is significant, moreover, that the ceilings imposed by § 608(a) on candidate expenditures from personal resources are substantially higher than the $1,000 limit imposed by § 608(e) on independent expenditures by noncandidates. Presidential and Vice Presidential candidates may contribute $50,000 of their own money to their campaigns, Senate candidates $35,000, and most House candidates $25,000. Those ceilings will not affect most candidates. But they will admittedly limit the availability of personal funds for some candidates, and the question is whether that limitation is justified.
984
The Court views "(t)he ancillary interest in equalizing the relative financial resources of candidates" as the relevant rationale for § 608(a), and deems that interest insufficient to justify § 608(a). Ante, at 54. In my view the interest is more precisely the interest in promoting the reality and appearance of equal access to the political arena. Our ballot-access decisions serve as a reminder of the importance of the general interest in promoting equal access among potential candidates. See, e. g., Lubin v. Panish, 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974); Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972). While admittedly those cases dealt with barriers to entry different from those we consider here, the barriers to which § 608(a) is directed are formidable ones, and the interest in removing them substantial.
985
One of the points on which all Members of the Court agree is that money is essential for effective communication in a political campaign. It would appear to follow that the candidate with a substantial personal fortune at his disposal is off to a significant "headstart." Of course, the less wealthy candidate can potentially overcome the disparity in resources through contributions from others. But ability to generate contributions may itself depend upon a showing of a financial base for the campaign or some demonstration of pre-existing support, which in turn is facilitated by expenditures of substantial personal sums. Thus the wealthy candidate's immediate access to a substantial personal fortune may give him an initial advantage that his less wealthy opponent can never overcome. And even if the advantage can be overcome, the perception that personal wealth wins elections may not only discourage potential candidates without significant personal wealth from entering the political arena, but also undermine public confidence in the integrity of the electoral process.1
986
The concern that candidacy for public office not become, or appear to become, the exclusive province of the wealthy assumes heightened significance when one considers the impact of § 608(b), which the Court today upholds. That provision prohibits contributions from individuals and groups to candidates in excess of $1,000, and contributions from political committees in excess of $5,000. While the limitations on contributions are neutral in the sense that all candidates are foreclosed from accepting large contributions, there can be no question that large contributions generally mean more to the candidate without a substantial personal fortune to spend on his campaign. Large contributions are the less wealthy candidate's only hope of countering the wealthy candidate's immediate access to substantial sums of money. With that option removed, the less wealthy candidate is without the means to match the large initial expenditures of money of which the wealthy candidate is capable. In short, the limitations on contributions put a premium on a candidate's personal wealth.
987
In view of § 608(b)'s limitations on contributions, then, § 608(a) emerges not simply as a device to reduce the natural advantage of the wealthy candidate, but as a provision providing some symmetry to a regulatory scheme that otherwise enhances the natural advantage of the wealthy.2 Regardless of whether the goal of equalizing access would justify a legislative limit on personal candidate expenditures standing by itself, I think it clear that that goal justifies § 608(a)'s limits when they are considered in conjunction with the remainder of the Act. I therefore respectfully dissent from the Court's invalidation of § 608(a).
988
Mr. Justice BLACKMUN, concurring in part and dissenting in part.
989
I am not persuaded that the Court makes, or indeed is able to make, a principled constitutional distinction between the contribution limitations, on the one hand, and the expenditure limitations on the other, that are involved here. I therefore do not join Part I-B of the Court's opinion or those portions of Part I-A that are consistent with Part I-B. As to those, I dissent.
990
I also dissent, accordingly, from the Court's responses to certified questions 3(b), (c), and (h). I would answer those questions in the affirmative.
991
I do join the remainder of the Court's opinion and its answers to the other certified questions.
992
Mr. Justice REHNQUIST, concurring in part and dissenting in part.
993
I concur in Parts I, II, and IV of the Court's opinion. I concur in so much of Part III of the Court's opinion as holds that the public funding of the cost of a Presidential election campaign is a permissible exercise of congressional authority under the power to tax and spend granted by Art. I, but dissent from Part III-B-1 of the Court's opinion, which holds that certain aspects of the statutory treatment of minor parties and independent candidates are constitutionally valid. I state as briefly as possible my reasons for so doing.
994
The limits imposed by the First and Fourteenth Amendments on governmental action may vary in their stringency depending on the capacity in which the government is acting. The government as proprietor, Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966), is, I believe, permitted to affect putatively protected interests in a manner in which it might not do if simply proscribing conduct across the board. Similarly, the government as employer, Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and CSC v. Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973), may prescribe conditions of employment which might be constitutionally unacceptable if enacted into standards of conduct made applicable to the entire citizenry.
995
For the reasons stated in the dissenting opinion of Mr. Justice Jackson in Beauharnais v. Illinois, 343 U.S. 250, 288-295, 72 S.Ct. 725, 746-750, 96 L.Ed. 919 (1952), and by Mr. Justice Harlan in his dissenting opinion in Roth v. United States, 354 U.S. 476, 500-503, 77 S.Ct. 1304, 1317-1318, 1 L.Ed.2d 1498 (1957), I am of the opinion that not all of the strictures which the First Amendment imposes upon Congress are carried over against the States by the Fourteenth Amendment, but rather that it is only the "general principle" of free speech, Gitlow v. New York, 268 U.S. 652, 672, 45 S.Ct. 625, 632, 69 L.Ed. 1138 (1925) (Holmes J., dissenting), that the latter incorporates. See Palko v. Connecticut, 302 U.S. 319, 324-325, 58 S.Ct. 149, 151-152, 82 L.Ed. 288 (1937).
996
Given this view, cases which deal with state restrictions on First Amendment freedoms are not fungible with those which deal with restrictions imposed by the Federal Government, and cases which deal with the government as employer or proprietor are not fungible with those which deal with the government as a lawmaker enacting criminal statutes applying to the population generally. The statute before us was enacted by Congress, not with the aim of managing the Government's property nor of regulating the conditions of Government employment, but rather with a view to the regulation of the citizenry as a whole. The case for me, then, presents the First Amendment interests of the appellants at their strongest, and the legislative authority of Congress in the position where it is most vulnerable to First Amendment attacks.
997
While this approach undoubtedly differs from some of the underlying assumptions in the opinion of the Court, opinions are written not to explore abstract propositions of law but to decide concrete cases. I therefore join in all of the Court's opinion except Part III-B-1, which sustains, against appellants' First and Fifth Amendment challenges, the disparities found in the congressional plan for financing general Presidential elections between the two major parties, on the one hand, and minor parties and candidacies on the other.
998
While I am not sure that I agree with the Court's comment, ante, at 95, that "public financing is generally less restrictive of access to the electoral process than the ballot-access regulations dealt with in prior cases," in any case that is not, under my view, an adequate answer to appellants' claim. The electoral laws relating to ballot access which were examined in Lubin v. Panish, 415 U.S. 709, 716, 94 S.Ct. 1315, 1320, 39 L.Ed.2d 702 (1974); American Party of Texas v. White, 415 U.S. 767, 780, 94 S.Ct. 1296, 1305, 39 L.Ed.2d 744 (1974); and Storer v. Brown, 415 U.S. 724, 729-730, 94 S.Ct. 1274, 1278, 39 L.Ed.2d 714 (1974); all arose out of state efforts to regulate minor party candidacies and the actual physical size of the ballot. If the States are to afford a republican form of government, they must by definition provide for general elections and for some standards as to the contents of the official ballots which will be used at those elections. The decision of the state legislature to enact legislation embodying such regulations is therefore not in any sense an optional one; there must be some standards, however few, which prescribe the contents of the official ballot if the popular will is to be translated into a choice among candidates. Dealing thus by necessity with these issues, the States have strong interests in "limiting places on the ballot to those candidates who demonstrate substantial popular support," ante, at 96. They have a like interest in discouraging "splintered parties and unrestrained factionalism" which might proliferate the number of candidates on a state ballot so as to make it virtually unintelligible to the average voter. Storer v. Brown, supra, 415 U.S. at 736, 94 S.Ct. at 1282.
999
Congress, on the other hand, while undoubtedly possessing the legislative authority to undertake the task if it wished, is not obliged to address the question of public financing of Presidential elections at all. When it chooses to legislate in this area, so much of its action as may arguably impair First Amendment rights lacks the same sort of mandate of necessity as does a State's regulation of ballot access.
1000
Congress, of course, does have an interest in not "funding hopeless candidacies with large sums of public money," ante, at 96, and may for that purpose legitimately require " 'some preliminary showing of a significant modicum of support,' Jenness v. Fortson, (403 U.S. 431, 442, 91 S.Ct. 1970, 1976, 29 L.Ed.2d 554 (1971)), as an eligibility requirement for public funds." Ante, at 96. But Congress in this legislation has done a good deal more than that. It has enshrined the Republican and Democratic Parties in a permanently preferred position, and has established requirements for funding minor-party and independent candidates to which the two major parties are not subject. Congress would undoubtedly be justified in treating the Presidential candidates of the two major parties differently from minor-party or independent Presidential candidates, in view of the long demonstrated public support of the former. But because of the First Amendment overtones of the appellants' Fifth Amendment equal protection claim something more than a merely rational basis for the difference in treatment must be shown, as the Court apparently recognizes. I find it impossible to subscribe to the Court's reasoning that because no third party has posed a credible threat to the two major parties in Presiden tial¢s294¢s elections since 1860, Congress may by law attempt to assure that this pattern will endure forever.
1001
I would hold that, as to general election financing, Congress has not merely treated the two major parties differently from minor parties and independents, but has discriminated in favor of the former in such a way as to run afoul of the Fifth and First Amendments to the United States Constitution.
1
Federal Election Campaign Act of 1971, 86 Stat. 3, as amended by the Federal Election Campaign Act Amendments of 1974, 88 Stat. 1263. The pertinent portions of the legislation are set forth in the Appendix to this opinion.
2
171 U.S.App.D.C. 172, 519 F.2d 821 (1975).
3
The Revenue Act of 1971, Title VIII, 85 Stat. 562, as amended, 87 Stat. 138, and further amended by the Federal Election Campaign Act Amendments of 1974, § 403 et seq., 88 Stat. 1291. This Subtitle consists of two parts: Chapter 95 deals with funding national party conventions and general election campaigns for President, and Chapter 96 deals with matching funds for Presidential primary campaigns.
4
"s 437h. Judicial review.
"(a) . . .
"The Commission, the national committee of any political party, or any individual eligible to vote in any election for the office of President of the United States may institute such actions in the appropriate district court of the United States, including actions for declaratory judgment, as may be appropriate to construe the constitutionality of any provision of this Act or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18. The district court immediately shall certify all questions of constitutionality of this Act or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18, United States Code, to the United States court of appeals for the circuit involved, which shall hear the matter sitting en banc.
"(b) . . .
"Notwithstanding any other provision of law, any decision on a matter certified under subsection (a) of this section shall be reviewable by appeal directly to the Supreme Court of the United States. Such appeal shall be brought no later than 20 days after the decision of the court of appeals.
"(c) . . .
"It shall be the duty of the court of appeals and of the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any matter certified under subsection (a) of this section."
5
Center for Public Financing of Elections, Common Cause, the League of Women Voters of the United States, Chellis O'Neal Gregory, Norman F. Jacknis, Louise D. Wides, Daniel R. Noyes, Mrs. Edgar B. Stern, Charles P. Taft, John W. Gardner, and Ruth Clusen.
6
The Court of Appeals also suggested in its en banc order that the issues arising under Subtitle H (relating to the public financing of Presidential campaigns) might require, under 26 U.S.C. § 9011(b) (1970 ed., Supp. IV), a different mode of review from the other issues raised in the case. The court suggested that a three-judge District Court should consider the constitutionality of these provisions in order to protect against the contingency that this Court might eventually hold these issues to be subject to determination by a three-judge court, either under § 9011(b), or 28 U.S.C. §§ 2282, 2284. 171 U.S.App.D.C. 168, 170, 519 F.2d 817, 819 (1975). The case was argued simultaneously to both the Court of Appeals, sitting en banc, and a three-judge District Court. The three-judge court limited its consideration to issues under Subtitle H. The three-judge court adopted the Court of Appeals' opinion on these questions in toto and simply entered an order with respect to those matters. 401 F.Supp. 1235. Thus, two judgments are before us one from each court upholding the constitutionality of Subtitle H, though the two cases before the Court will generally be referred to hereinafter in the singular. Since the jurisdiction of this Court to hear at least one of the appeals is clear, we need not resolve the jurisdictional ambiguities that occasioned the joint sitting of the Court of Appeals and the three-judge court.
7
The court held one provision, § 437a, unconstitutionally vague and overbroad on the ground that the provision is " 'susceptible to a reading necessitating reporting by groups whose only connection with the elective process arises from completely nonpartisan public discussion of issues of public importance.' " 171 U.S.App.D.C., at 183, 519 F.2d, at 832. No appeal has been taken from that holding.
8
The court recognized that some of the powers delegated to the Commission, when exercised in a concrete context, may be predominantly executive or judicial or unrelated to the Commission's legislative function; however, since the Commission had not yet exercised most of these challenged powers, consideration of the constitutionality of those grants of authority was postponed. See n. 157, infra.
9
See n. 4, supra.
10
This Court has held, for instance, that an organization "may assert, on behalf of its members, a right personal to them to be protected from compelled disclosure . . . of their affiliation." NAACP v. Alabama, 357 U.S. 449, 458, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488 (1958). See also Bates v. Little Rock, 361 U.S. 516, 523 n. 9, 80 S.Ct. 412, 416, 4 L.Ed.2d 480 (1960). Similarly, parties with sufficient concrete interests at stake have been held to have standing to raise constitutional questions of separation of powers with respect to an agency designated to adjudicate their rights. Palmore v. United States, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973); Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962); Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939).
11
Accordingly, the two relevant certified questions are answered as follows:
1. Does the first sentence of § 315(a) of the Federal Election Campaign Act, as amended, 2 U.S.C. § 437h(a) (1970 ed., Supp. IV), in he context of this action, require courts of the United States to render advisory opinions in violation of the "case or controversy" requirement of Article III, § 2, of the Constitution of the United States? NO.
2. Has each of the plaintiffs alleged sufficient injury to his constitutional rights enumerated in the following questions to create a constitutional "case or controversy" within the judicial power under Article III? YES.
12
See 18 U.S.C. §§ 608(b)(1), (3) (1970 ed., Supp. IV), set forth in the Appendix, infra, at 189. An organization registered as a political committee for not less than six months which has received contributions from at least 50 persons and made contributions to at least five candidates may give up to $5,000 to any candidate for any election. 18 U.S.C. § 608(b)(2) (1970 ed., Supp. IV), set forth in the Appendix, infra, at 189. Other groups are limited to making contributions of $1,000 per candidate per election.
13
See 18 U.S.C. § 608(e) (1970 ed., Supp. IV), set forth in the Appendix, infra, at 193-194.
14
See 18 U.S.C. § 608(a) (1970 ed., Supp. IV), set forth in the Appendix, infra, at 187-189.
15
See 18 U.S.C. § 608(c) (1970 ed., Supp. IV), set forth in the Appendix, infra, at 190-192.
16
Article I, § 4, of the Constitution grants Congress the power to regulate elections of members of the Senate and House of Representatives. See Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76 L.Ed. 795 (1932); Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274 (1884). Although the Court at one time indicated that party primary contests were not "elections" within the meaning of Art. I, § 4, Newberry v. United States, 256 U.S. 232, 41 S.Ct. 469, 65 L.Ed. 913 (1921), it later held that primary elections were within the Constitution's grant of authority to Congress. United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). The Court has also recognized broad congressional power to legislate in connection with the elections of the President and Vice President. Burroughs v. United States, 290 U.S. 534, 54 S.Ct. 287, 78 L.Ed. 484 (1934). See Part III, infra.
17
The nongovernmental appellees argue that just as the decibels emitted by a sound truck can be regulated consistently with the First Amendment, Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed.2d 513 (1949), the Act may restrict the volume of dollars in political campaigns without impermissibly restricting freedom of speech. See Freund, Commentary in A. Rosenthal, Federal Regulation of Campaign Finance: Some Constitutional Questions 72 (1971). This comparison underscores a fundamental misconception. The decibel restriction upheld in Kovacs limited the manner of operating a soundtruck but not the extent of its proper use. By contrast, the Act's dollar ceilings restrict the extent of the reasonable use of virtually every means of communicating information. As the Kovacs Court emphasized, the nuisance ordinance only barred sound trucks from broadcasting "in a loud and raucous manner on the streets," 336 U.S., at 89, 69 S.Ct., at 454, and imposed "no restriction upon the communication of ideas or discussion of issues by the human voice, by newspapers, by pamphlets, by dodgers," or by soundtrucks operating at a reasonable volume. Ibid. See Saia v. New York, 334 U.S. 558, 561-562, 68 S.Ct. 1148, 1150, 92 L.Ed. 1574 (1948).
18
Being free to engage in unlimited political expression subject to a ceiling on expenditures is like being free to drive an automobile as far and as often as one desires on a single tank of gasoline.
19
Political parties that fail to qualify a candidate for a position on the ballot are classified as "persons" and are subject to the $1,000 independent expenditure ceiling. See 18 U.S.C. §§ 591(g), (i), 608(e)(1), (f) (1970 ed., Supp. IV). Institutional press facilities owned or controlled by candidates or political parties are also subject to expenditure limits under the Act. See 18 U.S.C. §§ 591(f)(4)(A), 608(c)(2)(B), (e)(1) (1970 ed., Supp. IV).
Unless otherwise indicated all subsequent statutory citations in Part I of this opinion are to Title 18 of the United States Code, 1970 edition, Supplement IV.
20
The record indicates that, as of January 1, 1975, one full-page advertisement in a daily edition of a certain metropolitan newspaper cost $6,971.04 almost seven times the annual limit on expenditures "relative to" a particular candidate imposed on the vast majority of individual citizens and associations by § 608(e)(1).
21
The statistical findings of fact agreed to by the parties in the District Court indicate that 17 of 65 major-party senatorial candidates in 1974 spent more than the combined primary-election, general-election, and fundraising limitations imposed by the Act. §§ 591(f)(4)(H), 608(c)(1)(C), (D). The 1972 senatorial figures showed that 18 of 66 major-party candidates exceeded the Act's limitations. This figure may substantially underestimate the number of candidates who exceeded the limits provided in the Act, since the Act imposes separate ceilings for the primary election, the general election, and fundraising, and does not permit the limits to be aggregated. § 608(c)(3). The data for House of Representatives elections are also skewed, since statistics reflect a combined $168,000 limit instead of separate $70,000 ceilings for primary and general elections with up to an additional 20% Permitted for fundraising. §§ 591(f)(4)(H), 608(c)(1)(E). Only 22 of the 810 major-party House candidates in 1974 and 20 of the 816 major-party candidates in 1972 exceeded the $168,000 figure. Both Presidential candidates in 1972 spent in excess of the combined Presidential expenditure ceilings. §§ 608(c) (1)(A), (B).
22
Other factors relevant to an assessment of the "intensity" of the support indicated by a contribution include the contributor's financial ability and his past contribution history.
23
Statistical findings agreed to by the parties reveal that approximately 5.1% Of the $73,483,613 raised by the 1,161 candidates for Congress in 1974 was obtained in amounts in excess of $1,000. In 1974, two major-party senatorial candidates, Ramsey Clark and Senator Charles Mathias, Jr., operated large-scale campaigns on contributions raised under a voluntarily imposed $100 contribution limitation.
24
The Act exempts from the contribution ceiling the value of all volunteer services provided by individuals to a candidate or a political committee and excludes the first $500 spent by volunteers on certain categories of campaign-related activities. §§ 591(e)(5)(A)-(D). See infra, at 36-37.
The Act does not define the phrase "for the purpose of influencing" an election that determines when a gift, loan, or advance constitutes a contribution. Other courts have given that phrase a narrow meaning to alleviate various problems in other contexts. See United States v. National Comm. for Impeachment, 469 F.2d 1135, 1139-1142 (CA2 1972); American Civil Liberties Union v. Jennings, 366 F.Supp. 1041, 1055-1057 (DC 1973) (three-judge court), vacated as moot sub nom. Staats v. American Civil Liberties Union, 422 U.S. 1030, 95 S.Ct. 2646, 45 L.Ed.2d 686 (1975). The use of the phrase presents fewer problems in connection with the definition of a contribution because of the limiting connotation created by the general understanding of what constitutes a political contribution. Funds provided to a candidate or political party or campaign committee either directly or indirectly through an intermediary constitute a contribution. In addition, dollars given to another person or organization that are earmarked for political purposes are contributions under the Act.
25
Expenditures by persons and associations that are "authorized or requested" by the candidate or his agents are treated as contributions under the Act. See n. 53, infra.
26
Contribution limitations alone would not reduce the greater potential voice of affluent persons and well-financed groups, who would remain free to spend unlimited sums directly to promote candidates and policies they favor in an effort to persuade voters.
27
Yet, a ceiling on the size of contributions would affect only indirectly the costs of political campaigns by making it relatively more difficult for candidates to raise large amounts of money. In 1974, for example, 94.9% Of the funds raised by candidates for Congress came from contributions of $1,000 or less, see n. 23, supra. Presumably, some or all of the contributions in excess of $1,000 could have been replaced through efforts to raise additional contributions from persons giving less than $1,000. It is the Act's campaign expenditure limitations, § 608(c), not the contribution limits, that directly address the overall scope of federal election spending.
28
The Court of Appeals' opinion in this case discussed a number of the abuses uncovered after the 1972 elections. See 171 U.S.App.D.C., at 190-191, and nn. 36-38, 519 F.2d, at 839-840, and nn. 36-38.
29
Although the Court in Letter Carriers found that this interest was constitutionally sufficient to justify legislation prohibiting federal employees from engaging in certain partisan political activities, it was careful to emphasize that the limitations did not restrict an employee's right to express his views on political issues and candidates. 413 U.S., at 561, 568, 575-576, 579, 93 S.Ct., at 2888, 2892, 2895-2896, 2897. See n. 54, infra.
30
The Act's disclosure provisions are discussed in Part II, infra.
31
While providing significant limitations on the ability of all individuals and groups to contribute large amounts of money to candidates, the Act's contribution ceilings do not foreclose the making of substantial contributions to candidates by some major special-interest groups through the combined effect of individual contributions from adherents or the proliferation of political funds each authorized under the Act to contribute to candidates. As a prime example, § 610 permits corporations and labor unions to establish segregated funds to solicit voluntary contributions to be utilized for political purposes. Corporate and union resources without limitation may be employed to administer these funds and to solicit contributions from employees, stockholders, and union members. Each separate fund may contribute up to $5,000 per candidate per election so long as the fund qualifies as a political committee under § 608(b)(2). See S.Rep. No. 93-1237, pp. 50-52 (1974), U.S.Code Cong. & Admin.News 1974, pp. 5587, 5618; Federal Election Commission, Advisory Opinion 1975-23, 40 Fed.Reg. 56584 (1975).
The Act places no limit on the number of funds that may be formed through the use of subsidiaries or divisions of corporations, or of local and regional units of a national labor union. The potential for proliferation of these sources of contributions is not insignificant. In 1972, approximately 1,824,000 active corporations filed federal income tax returns. Internal Revenue Service, Preliminary Statistics of Income 1972, Corporation Income Tax Returns, p. 1 (Pub. 159 (11-74)). (It is not clear whether this total includes subsidiary corporations where the parent filed a consolidated return.) In the same year, 71,409 local unions were chartered by national unions. Department of Labor, Bureau of Labor Statistics, Directory of National Unions and Employee Associations 1973, p. 87 (1974).
The Act allows the maximum contribution to be made by each unit's fund provided the decision or judgment to contribute to particular candidates is made by the fund independently of control or direction by the parent corporation or the national or regional union. See S.Rep. No. 93-1237, pp. 51-52 (1974).
32
The Act's limitations applicable to both campaign expenditures and a candidate's personal expenditures on his own behalf are scaled to take account of the differences in the amounts of money required for congressional and Presidential campaigns. See § 608(a)(1), (c)(1)(A)-(E).
33
In this discussion, we address only the argument that the contribution limitations alone impermissibly discriminate against non-incumbents. We do not address the more serious argument that these limitations, in combination with the limitation on expenditures by individuals and groups, the limitation on a candidate's use of his own personal and family resources, and the overall ceiling on campaign expenditures invidiously discriminate against major-party challengers and minor-party candidates.
Since an incumbent is subject to these limitations to the same degree as his opponent, the Act, on its face, appears to be evenhanded. The appearance of fairness, however, may not reflect political reality. Although some incumbents are defeated in every congressional election, it is axiomatic that an incumbent usually begins the race with significant advantages. In addition to the factors of voter recognition and the status accruing to holding federal office, the incumbent has access to substantial resources provided by the Government. These include local and Washington offices, staff support, and the franking privilege. Where the incumbent has the support of majorspecial-interest groups which have the flexibility described in n. 31, supra, and is further supported by the media, the overall effect of the contribution and expenditure limitations enacted by Congress could foreclose any fair opportunity of a successful challenge.
However, since we decide in Part I-C, infra, that the ceilings on independent expenditures, on the candidate's expenditures from his personal funds, and on overall campaign expenditures are unconstitutional under the First Amendment, we need not express any opinion with regard to the alleged invidious discrimination resulting from the full sweep of the legislation as enacted.
34
In 1974, for example, 40 major-party challengers defeated incumbent members of the House of Representatives in the general election. Four incumbent Senators were defeated by major-party challengers in the 1974 primary and general election campaigns.
35
In the 1974 races for the House of Representatives, three of the 22 major-party candidates exceeding the combined expenditure limits contained in the Act were challengers to incumbents and nine were candidates in races not involving incumbents. The comparable 1972 statistics indicate that 14 of the 20 major-party candidates exceeding the combined limits were nonincumbents.
36
In 1974, major-party challengers outspent House incumbents in 22% Of the races, and 22 of the 40 challengers who defeated House incumbents outspent their opponents. In 1972, 24% Of the major-party challengers in senatorial elections outspent their incumbent opponents. The 1974 statistics for senatorial contests reveal substantially greater financial dominance by incumbents.
37
Of the $3,781,254 in contributions raised in 1974 by congressional candidates over and above a $1,000-per-contributor limit, almost twice as much money went to incumbents as to major-party challengers.
38
Appellants contend that the Act discriminates against challengers, because, while it limits contributions to all candidates, the Government makes available other material resources to incumbents. See n. 33, supra. Yet, taking cognizance of the advantages and disadvantages of incumbency, there is little indication that the $1,000 contribution ceiling will consistently harm the prospects of challengers relative to incumbents.
39
Between September 1, 1973, and December 31, 1974, major-party candidates for the House and Senate raised over $3,725,000 in contributions over and above $1,000 compared to $55,000 raised by minor-party candidates in amounts exceeding the $1,000 contribution limit.
40
Appellant Libertarian Party, according to estimates of its national chairman, has received only 10 contributions in excess of $1,000 out of a total of 4,000 contributions. Even these 10 contributions would have been permissible under the Act if the donor did not earmark the funds for a particular candidate and did not exceed the overall $25,000 contribution ceiling for the calendar year. See § 608(b). Similarly, appellants Conservative Victory Fund and American Conservative Union have received only an insignificant portion of their funding through contributions in excess of $1,000. The affidavit of the executive director of the Conservative Victory Fund indicates that in 1974, a typical fundraising year, the Fund received approximately $152,000 through over 9,500 individual contributions. Only one of the 9,500 contributions, an $8,000 contribution earmarked for a particular candidate, exceeded $1,000. In 1972, the Fund received only three contributions in excess of $1,000, all of which might have been legal under the Act if not earmarked. And between April 7, 1972, and February 28, 1975, the American Conservative Union did not receive any aggregate contributions exceeding $1,000. Moreover, the Committee for a Constitutional Presidency McCarthy '76, another appellant, engaged in a concerted effort to raise contributions in excess of $1,000 before the effective date of the Act but obtained only five contributions in excess of $1,000.
Although appellants claim that the $1,000 ceiling governing contributions to candidates will prevent the acquisition of seed money necessary to launch campaigns, the absence of experience under the Act prevents us from evaluating this assertion. As appellees note, it is difficult to assess the effect of the contribution ceiling on the acquisition of seed money since candidates have not previously had to make a concerted effort to raise start-up funds in small amounts.
41
Appellant Buckley was a minor-party candidate in 1970 when he was elected to the United States Senate from the State of New York.
42
Although expenditures incidental to volunteer services would appear self-limiting, it is possible for a worker in a candidate's campaign to generate substantial travel expenses. An affidavit submitted by Stewart Mott, an appellant, indicates that he "expended some $50,000 for personal expenses" in connection with Senator McGovern's 1972 Presidential campaign.
43
The Act contains identical, parallel provisions pertaining to incidental volunteer expenses under the definitions of contribution and expenditure. Compare §§ 591(e)(5)(B)-(D) with §§ 591(f)(4)(D), (E). The definitions have two effects. First, volunteer expenses that are counted as contributions by the volunteer would also constitute expenditures by the candidate's campaign. Second, some volunteer expenses would qualify as contributions whereas others would constitute independent expenditures. The statute distinguishes between independent expenditures by individuals and campaign expenditures on the basis of whether the candidate, an authorized committee of the candidate, or an agent of the candidate "authorized or requested" the expenditure. See § 608(c)(2) (B)(ii), (e)(1); S.Rep. No. 93-689, p. 18 (1974); H.R.Rep. No. 93-1239, p. 6 (1974); U.S.Code Cong. & Admin.News 1974, p. 5587. As a result, only travel that is "authorized or requested" by the candidate or his agents would involve incidental expenses chargeable against the volunteer's contribution limit and the candidate's expenditure ceiling. See n. 53, infra. Should a person independently travel across the country to participate in a campaign, any unreimbursed travel expenses would not be treated as a contribution. This interpretation is not only consistent with the statute and the legislative history but is also necessary to avoid the administrative chaos that would be produced if each volunteer and candidate had to keep track of amounts spent on unsolicited travel in order to comply with the Act's contribution and expenditure ceilings and the reporting and disclosure provisions. The distinction between contributions and expenditures is also discussed at n. 53, infra, and in Part II-C-2, infra.
44
See n. 19, supra.
1. The $1,000 Limitation on Expenditures "Relative to a Clearly Identified Candidate"
45
The same broad definition of "person" applicable to the contribution limitations governs the meaning of "person" in § 608(e)(1). The statute provides some limited exceptions through various exclusions from the otherwise comprehensive definition of "expenditure." See § 591(f). The most important exclusions are: (1) "any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate," § 591(f)(4)(A), and (2) "any communication by any membership organization or corporation to its members or stockholders, if such membership organization or corporation is not organized primarily for the purpose of influencing the nomination for election, or election, of any person to Federal office," § 591(f)(4)(C). In addition, the Act sets substantially higher limits for personal expenditures by a candidate in connection with his own campaign, § 608(a), expenditures by national and state committees of political parties that succeed in placing a candidate on the ballot, §§ 591(i), 608(f), and total campaign expenditures by candidates, § 608(c).
46
Section 608(i) provides that any person convicted of exceeding any of the contribution or expenditure limitations "shall be fined not more than $25,000 or imprisoned not more than one year, or both."
47
Several of the parties have suggested that problems of ambiguity regarding the application of § 608(e)(1) to specific campaign speech could be handled by requesting advisory opinions from the Commission. While a comprehensive series of advisory opinions or a rule delineating what expenditures are "relative to a clearly identified candidate" might alleviate the provision's vagueness problems, reliance on the Commission is unacceptable because the vast majority of individuals and groups subject to criminal sanctions for violating § 608(e)(1) do not have a right to obtain an advisory opinion from the Commission. See 2 U.S.C. § 437f (1970 ed., Supp. IV). Section 437f(a) of Title 2 accords only candidates, federal officeholders, and political committees the right to request advisory opinions and directs that the Commission "shall render an advisory opinion, in writing, within a reasonable time" concerning specific planned activities or transactions of any such individual or committee. The powers delegated to the Commission thus do not assure that the vagueness concerns will be remedied prior to the chilling of political discussion by individuals and groups in this or future election years.
48
In such circumstances, vague laws may not only "trap the innocent by not providing fair warning" or foster "arbitrary and discriminatory application" but also operate to inhibit protected expression by inducing "citizens to ' "steer far wider of the unlawful zone" . . . than if the boundaries of the forbidden areas were clearly marked.' " Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222 (1972), quoting Baggett v. Bullitt, 377 U.S. 360, 372, 84 S.Ct. 1316, 1322, 12 L.Ed.2d 377 (1964), quoting Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958). "Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity." NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963).
49
This interpretation of "relative to" a clearly identified candidate is supported by the discussion of § 608(e)(1) in the Senate Report, S.Rep.No.93-689, p. 19 (1974), the House Report, H.R.Rep.No.93-1239, p. 7 (1974), the Conference Report,S.Conf.Rep.No.93-1237, pp. 56-57 (1974), and the opinion of the Court of Appeals, 171 U.S.App.D.C., at 203-204, 519 F.2d, at 852-853.
50
In connection with another provision containing the same advocacy language appearing in § 608(e)(1), the Court of Appeals concluded:
"Public discussion of public issues which also are campaign issues readily and often unavoidably draws in candidates and their positions, their voting records and other official conduct. Discussions of those issues, and as well more positive efforts to influence public opinion on them, tend naturally and inexorably to exert some influence on voting at elections." 171 U.S.App.D.C., at 226, 519 F.2d, at 875.
51
Section 608(e)(2) defines "clearly identified" to require that the candidate's name, photograph or drawing, or other unambiguous reference to his identity appear as part of the communication. Such other unambiguous reference would include use of the candidate's initials (e. g., FDR), the candidate's nickname (e. g., Ike), his office (e. g., the President or the Governor of Iowa), or his status as a candidate (e. g., the Democratic Presidential nominee, the senatorial candidate of the Republican Party of Georgia).
52
This construction would restrict the application of § 608(e)(1) to communications containing express words of advocacy of election or defeat, such as "vote for," "elect," "support," "cast your ballot for," "Smith for Congress," "vote against," "defeat," "reject."
53
Section 608(e)(1) does not apply to expenditures "on behalf of a candidate" within the meaning of § 608(c)(2)(B). The latter subsection provides that expenditures "authorized or requested by the candidate, an authorized committee of the candidate, or an agent of the candidate" are to be treated as expenditures of the candidate and contributions by the person or group making the expenditure. The House and Senate Reports provide guidance in differentiating individual expenditures that are contributions and candidate expenditures under § 608(c)(2)(B) from those treated as independent expenditures subject to the § 608(e)(1) ceiling. The House Report speaks of independent expenditures as costs "incurred without the request or consent of a candidate or his agent." H.R.Rep. No. 93-1239, p. 6 (1974). The Senate report addresses the issue in greater detail. It provides an example illustrating the distinction between "authorized or requested" expenditures excluded from § 608(e)(1) and independent expenditures governed by § 608(e)(1):
"(A) person might purchase billboard advertisements endorsing a candidate. If he does so completely on his own, and not at the request or suggestion of the candidate or his agent's (sic ) that would constitute an 'independent expenditure on behalf of a candidate' under section 614(c) of the bill. The person making the expenditure would have to report it as such.
"However, if the advertisement was placed in cooperation with the candidate's campaign organization, then the amount would constitute a gift by the supporter and an expenditure by the candidate just as if there had been a direct contribution enabling the candidate to place the advertisement himself. It would be so reported by both." S.Rep. No. 93-689, p. 18 (1974), U.S.Code Cong. & Admin.News 1974, p. 5604.
The Conference substitute adopted the provision of the Senate bill dealing with expenditures by any person "authorized or requested" to make an expenditure by the candidate or his agents. S.Conf.Rep. No. 93-1237, p. 55 (1974). In view of this legislative history and the purposes of the Act, we find that the "authorized or requested" standard of the Act operates to treat all expenditures placed in cooperation with or with the consent of a candidate, his agents, or an authorized committee of the candidate as contributions subject to the limitations set forth in § 608(b).
54
Appellees mistakenly rely on this Court's decision in CSC v. Letter Carriers, as supporting § 608(e)(1)'s restriction on the spending of money to advocate the election or defeat of a particular candidate. In upholding the Hatch Act's broad restrictions on the associational freedoms of federal employees, the Court repeatedly emphasized the statutory provision and corresponding regulation permitting an employee to " '(e)xpress his opinion as an individual privately and publicly on political subjects and candidates.' " 413 U.S., at 579, 93 S.Ct., at 2897, quoting 5 CFR § 733.111(a)(2). See 413 U.S., at 561, 568, 575-576, 93 S.Ct., 2888, 2892, 2895-2896. Although the Court "unhesitatingly" found that a statute prohibiting federal employees from engaging in a wide variety of "partisan political conduct" would "unquestionably be valid," it carefully declined to endorse provisions threatening political expression. See Id., at 556, 579-581, 93 S.Ct., at 2890, 2897-2898. The Court did not rule on the constitutional questions presented by the regulations forbidding partisan campaign endorsements through the media and speechmaking to political gatherings because it found that these restrictions did not "make the statute substantially overbroad and so invalid on its face." Id., at 581, 93 S.Ct., at 2898.
55
Neither the voting rights cases nor the Court's decision upholding the Federal Communications Commission's fairness doctrine lends support to appellees' position that the First Amendment permits Congress to abridge the rights of some persons to engage in political expression in order to enhance the relative voice of other segments of our society.
Cases invalidating governmentally imposed wealth restrictions on the right to vote or file as a candidate for public office rests on the conclusion that wealth "is not germane to one's ability to participate intelligently in the electoral process" and is therefore an insufficient basis on which to restrict a citizen's fundamental right to vote. Harper v. Virginia Bd. of Elections, 383 U.S. 663, 668, 86 S.Ct. 1079, 1082, 16 L.Ed.2d 169 (1966). See Lubin v. Panish, 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974); Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970). These voting cases and the reapportionment decisions serve to assure that citizens are accorded an equal right to vote for their representatives regardless of factors of wealth or geography. But the principles that underlie invalidation of governmentally imposed restrictions on the franchise do not justify governmentally imposed restrictions on political expression. Democracy depends on a well-informed electorate, not a citizenry legislatively limited in its ability to discuss and debate candidates and issues.
In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), the Court upheld the political-editorial and personal-attack portions of the Federal Communications Commission's fairness doctrine. That doctrine requires broadcast licensees to devote programing time to the discussion of controversial issues of public importance and to present both sides of such issues. Red Lion "makes clear that the broadcast media pose unique and special problems not present in the traditional free speech case," by demonstrating that " 'it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish.' " Columbia Broadcasting v. Democratic Comm., 412 U.S. 94, 101, 93 S.Ct. 2080, 2086, 36 L.Ed.2d 772 (1973), quoting Red Lion Broadcasting Co., supra, 395 U.S., at 388, 89 S.Ct., at 1805. Red Lion therefore undercuts appellees' claim that § 608(e)(1)'s limitations may permissibly restrict the First Amendment rights of individuals in this "traditional free speech case." Moreover, in contrast, to the undeniable effect of § 608(e)(1), the presumed effect of the fairness doctrine is one of "enhancing the volume and quality of coverage" of public issues. 395 U.S., at 393, 89 S.Ct., at 1808.
56
The Act exempts most elements of the institutional press, limiting only expenditures by institutional press facilities that are owned or controlled by candidates and political parties. See § 591(f)(4)(A). But, whatever differences there may be between the constitutional guarantees of a free press and of free speech, it is difficult to conceive of any principled basis upon which to distinguish § 608(e)(1)'s limitations upon the public at large and similar limitations imposed upon the press specifically.
57
The $35,000 ceiling on expenditures by candidates for the Senate also applies to candidates for the House of Representatives from States entitled to only one Representative. § 608(a)(1)(B).
The Court of Appeals treated § 608(a) as relaxing the$1,000-per-candidate contribution limitation imposed by § 608(b)(1) so as to permit any member of the candidate's immediate family spouse, child, grandparent, brother, sister, or spouse of such persons to
contribute up to the $25,000 overall annual contribution ceiling to the candidate. See 171 U.S.App.D.C., at 205, 519 F.2d, at 854. The Commission has recently adopted a similar interpretation of the provision. See Federal Election Commission, Advisory Opinion 1975-76 (Dec. 5, 1975), 40 Fed.Reg. 58393. However, both the Court of Appeals and the Commission apparently overlooked the Conference Report accompanying the final version of the Act which expressly provides for a contrary interpretation of § 608(a):
"It is the intent of the conferees that members of the immediate family of any candidate shall be subject to the contribution limitations established by this legislation. If a candidate for the office of Senator, for example, already is in a position to exercise control over funds of a member of his immediate family before he becomes a candidate, then he could draw upon these funds up to the limit of $35,000. If, however, the candidate did not have access to or control over such funds at the time he became a candidate, the immediate family member would not be permitted to grant access or control to the candidate in amounts up to $35,000, if the immediate family member intends that such amounts are to be used in the campaign of the candidate. The immediate family member would be permitted merely to make contributions to the candidate in amounts not greater than $1,000 for each election involved." S.Conf.Rep. No. 93-1237, p. 58 (1974), U.S.Code Cong. & Admin.News 1974, p. 5627.
58
The Court of Appeals evidently considered the personal funds expended by the candidate on his own behalf as a contribution rather than an expenditure. See 171 U.S.App.D.C., at 205, 519 F.2d, at 854. However, unlike a person's contribution to a candidate, a candidate's expenditure of his personal funds directly facilitates his own political speech.
59
The legislative history of the Act clearly indicates that § 608(a) was not intended to suspend the application of the $1,000 contribution limitation of § 608(b)(1) for members of the candidate's immediate family. See n. 57, supra. Although the risk of improper influence is somewhat diminished in the case of large contributions from immediate family members, we cannot say that the danger is sufficiently reduced to bar Congress from subjecting family members to the same limitations as nonfamily contributors.
The limitation on a candidate's expenditure of his own funds differs markedly from a limitation on family contributions both in the absence of any threat of corruption and the presence of a legislative restriction on the candidate's ability to fund his own communication with the voters.
60
Expenditures made by an authorized committee of the candidate or any other agent of the candidate as well as any expenditure by any other person that is "authorized or requested" by the candidate or his agent are charged against the candidate's spending ceiling. § 608(c)(2)(B).
61
Expenditures made by or on behalf of a Vice Presidential candidate of a political party are considered to have been made by or on behalf of the party's Presidential candidate. § 608(c)(2)(A).
62
The campaign ceilings contained in § 608(c) would have required a reduction in the scope of a number of previous congressional campaigns and substantially limited the overall expenditures of the two major-party Presidential candidates in 1972. See n. 21, supra.
63
This normal relationship may not apply where the candidate devotes a large amount of his personal resources to his campaign.
64
As an opinion dissenting in part from the decision below noted: "If a senatorial candidate can raise $1 from each voter, what evil is exacerbated by allowing that candidate to use all that money for political communication? I know of none." 171 U.S.App.D.C., at 268, 519 F.2d, at 917 (Tamm, J.)
65
For the reasons discussed in Part III, infra, Congress may engage in public financing of election campaigns and may condition acceptance of public funds on an agreement by the candidate to abide by specified expenditure limitations. Just as a candidate may voluntarily limit the size of the contributions he chooses to accept, he may decide to forgo private fundraising and accept public funding.
66
Subtitle H of the Internal Revenue Code also established separate limitations for general election expenditures by national and state committees of political parties, § 608(f), and for national political party conventions for the nomination of Presidential candidates. 26 U.S.C. § 9008(d). Appellants do not challenge these ceilings on First Amendment grounds. Instead, they contend that the provisions discriminate against independent candidates and regional political parties without national committees because they permit additional spending by political parties with national committees. Our decision today holding § 608(e)(1)'s independent expenditure limitation unconstitutional and § 608(c)'s campaign expenditure ceilings unconstitutional removes the predicate for appellants' discrimination claim by eliminating any alleged advantage to political parties with national committees.
67
Accordingly, the answers to the certified constitutional questions pertaining to the Act's contribution and expenditure limitations are as follows:
3. Does any statutory limitation, or do the particular limitations in the challenged statutes, on the amounts that individuals or organizations may contribute or expend in connection with elections for federal office violate the rights of one or more of the plaintiffs under the First, Fifth, or Ninth Amendment or the Due Process Clause of the Fifth Amendment of the Constitution of the United States?
(a) Does 18 U.S.C. § 608(a) (1970 ed., Supp. IV) violate such rights, in that it forbids a candidate or the members of his immediate family from expending personal funds in excess of the amounts specified in 18 U.S.C. § 608(a)(1) (1970 ed., Supp. IV)?
Answer: YES.
(b) Does 18 U.S.C. § 608(b) (1970 ed., Supp. IV) violate such rights, in that it forbids the solicitation, receipt or making of contributions on behalf of political candidates in excess of the amounts specified in 18 U.S.C. § 608(b) (1970 ed., Supp. IV)?
Answer: NO.
(c) Do 18 U.S.C. §§ 591(e) and 608(b) (1970 ed., Supp. IV) violate such rights, in that they limit the incidental expenses which volunteers working on behalf of political candidates may incur to the amounts specified in 18 U.S.C. §§ 591(e) and 608(b) (1970 ed., Supp. IV)?
Answer: NO.
(d) Does 18 U.S.C. § 608(e) (1970 ed., Supp. IV) violate such rights, in that it limits to $1,000 the independent (not on behalf of a candidate) expenditures of any person relative to an identified candidate?
Answer: YES.
(e) Does 18 U.S.C. § 608(f) (1970 ed., Supp. IV) violate such rights, in that it limits the expenditures of national or state committees of political parties in connection with general election campaigns for federal office?
Answer: NO, as to the Fifth Amendment challenge advanced by appellants.
(f) Does § 9008 of the Internal Revenue Code of 1954 violate such rights, in that it limits the expenditures of the national committee of a party with respect to presidential nominating conventions?
Answer: NO, as to the Fifth Amendment challenge advanced by appellants.
(h) Does 18 U.S.C. § 608(b)(2) (1970 ed., Supp. IV) violate such rights, in that it excludes from the definition of "political committee" committees registered for less than the period of time prescribed in the statute?
Answer: NO.
4. Does any statutory limitation, or do the particular limitations in the challenged statutes, on the amounts that candidates for elected federal office may expend in their campaigns violate the rights of one or more of the plaintiffs under the First or Ninth Amendment or the Due Process Clause of the Fifth Amendment?
(a) Does 18 U.S.C. § 608(c) (1970 ed., Supp. IV) violate such rights, in that it forbids expenditures by candidates for federal office in excess of the amounts specified in 18 U.S.C. § 608(c) (1970 ed., Supp. IV)?
Answer: YES.
68
Unless otherwise indicated, all statutory citations in Part II of this opinion are to Title 2 of the United States Code, 1970 edition, Supplement IV.
69
Appellants do contend that there should be a blanket exemption from the disclosure provisions for minor parties. See Part II-B-2, infra.
70
The Court of Appeals' ruling that § 437a is unconstitutional was not appealed. See n. 7, supra.
71
Past disclosure laws were relatively easy to circumvent because candidates were required to report only contributions that they had received themselves or that were received by others for them with their knowledge or consent. § 307, 43 Stat. 1072. The data that were reported were virtually impossible to use because there were no uniform rules for the compiling of reports or provisions for requiring corrections and additions. See Redish, Campaign Spending Laws and the First Amendment, 46 N.Y.U.L.Rev. 900, 905 (1971).
72
See Part I, supra. The relevant provisions of Title 2 are set forth in the Appendix to this opinion, infra, at 144 et seq.
73
NAACP v. Alabama, 357 U.S., at 463, 78 S.Ct., at 1172. See also Gibson v. Florida Legislative Comm., 372 U.S. 539, 546, 83 S.Ct. 889, 893, 9 L.Ed.2d 929 (1963); NAACP v. Button, 371 U.S., at 438, 83 S.Ct., at 340; Bates v. Little Rock, 361 U.S., at 524, 80 S.Ct., at 417.
74
Id., at 525, 80 S.Ct., at 417.
75
Gibson v. Florida Legislative Comm., supra, 372 U.S., at 546, 83 S.Ct., at 893.
76
The Court of Appeals held that the applicable test for evaluating the Act's disclosure requirements is that adopted in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), in which " 'speech' and 'nonspeech' elements (were) combined in the same course of conduct." Id., at 376, 88 S.Ct., at 1678. O'Brien is appropriate, the Court of Appeals found, because the Act is directed toward the spending of money, and money introduces a nonspeech element. As the discussion in Part I-A, supra, indicates, O'Brien is inapposite, for money is a neutral element not always associated with speech but a necessary and integral part of many, perhaps most, forms of communication. Moreover, the O'Brien test would not be met, even if it were applicable. O'Brien requires that "the governmental interest (be) unrelated to the suppression of free expression." Id., at 377, 88 S.Ct., at 1679. The governmental interest furthered by the disclosure requirements is not unrelated to the "suppression" of speech insofar as the requirements are designed to facilitate the detection of violations of the contribution and expenditure limitations set out in 18 U.S.C. § 608 (1970 ed., Supp. IV).
77
H.R.Rep. No. 92-564, p. 4 (1971).
78
Ibid.; S.Rep. No. 93-689, p. 2 (1974).
79
We have said elsewhere that "informed public opinion is the most potent of all restraints upon misgovernment." Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 449, 80 L.Ed. 660 (1936). Cf. United States v. Harriss, 347 U.S. 612, 625, 74 S.Ct. 808, 815, 98 L.Ed. 989 (1954) (upholding disclosure requirements imposed on lobbyists by the Federal Regulation of Lobbying Act, Title III of the Legislative Reorganization Act of 1946, 60 Stat. 839).
80
L. Brandeis, Other People's Money 62 (National Home Library Foundation ed. 1933).
81
See supra, at 60.
82
Post-election disclosure by successful candidates is suggested as a less restrictive way of preventing corrupt pressures on officeholders. Delayed disclosure of this sort would not serve the equally important informational function played by pre-election reporting. Moreover, the public interest in sources of campaign funds is likely to be at its peak during the campaign period; that is the time when improper influences are most likely to be brought to light.
83
Nor is this a case comparable to Pollard v. Roberts, 283 F.Supp. 248 (ED Ark.) (three-judge court), aff'd, 393 U.S. 14, 89 S.Ct. 47, 21 L.Ed.2d 14 (1968), in which an Arkansas prosecuting attorney sought to obtain, by a subpoena duces tecum, the records of a checking account (including names of individual contributors) established by a specific party, the Republican Party of Arkansas.
84
See Developments in the Law Elections, 88 Harv.L.Rev. 1111, 1247 n. 75 (1975).
85
See Williams v. Rhodes, 393 U.S. 23, 32, 89 S.Ct. 5, 11, 21 L.Ed.2d 24 (1968) ("There is, of course, no reason why two parties should retain a permanent monopoly on the right to have people vote for or against them. Competition in ideas and governmental policies is at the core of our electoral process and of the First Amendment freedoms"); Sweezy v. New Hampshire, 354 U.S. 234, 250-251, 77 S.Ct. 1203, 1211-1212, 1 L.Ed.2d 1311 (1957) (plurality opinion).
86
Cf. Talley v. California, 362 U.S. 60, 64-65, 80 S.Ct. 536, 538-539, 4 L.Ed.2d 559 (1960).
87
Allegations made by a branch of the Socialist Workers Party in a civil action seeking to declare the District of Columbia disclosure and filing requirements unconstitutional as applied to its records were held to be sufficient to withstand a motion to dismiss in Doe v. Martin, 404 F.Supp. 753 (DC 1975) (three-judge court). The District of Columbia provisions require every political committee to keep records of contributions of $10 or more and to report contributors of $50 or more.
88
For example, a campaign worker who had solicited campaign funds for the Libertarian Party in New York testified that two persons solicited in a Party campaign "refused to contribute because they were unwilling for their names to be disclosed or published." None of the appellants offers stronger evidence of threats or harassment.
2. Blanket Exemption
89
These criteria were suggested in an opinion concurring in part and dissenting in part from the decision below. 171 U.S.App.D.C., at 258 n. 1, 519 F.2d, at 907 n. 1 (Bazelon, C. J.).
90
Age is also underinclusive in that it would presumably leave long-established but unpopular parties subject to the disclosure requirements. The Socialist Labor Party, which is not a party to this litigation but which has filed an amicus brief in support of appellants, claims to be able to offer evidence of "direct suppression, intimidation, harassment, physical abuse, and loss of economic sustenance" relating to its contributors. Brief for Socialist Labor Party as Amicus Curiae 6. The Party has been in existence since 1877.
91
171 U.S.App.D.C., at 258 n. 1, 519 F.2d, at 907 n. 1 (Bazelon, C. J.).
92
Id., at 260, 519 F.2d, at 909. See also Developments in the Law Elections, 88 Harv.L.Rev. 1111, 1247-1249 (1975).
93
See Appendix to this opinion, infra, at 160.
94
See Part I-C-1, supra.
95
§ 305, 86 Stat. 16.
96
88 Stat. 1265.
97
S.Rep.No.92-229, p. 57 (1971).
98
See n. 71, supra.
2. Vagueness Problems
99
Section 441(a) provides: "Any person who violates any of the provisions of this subchapter shall be fined not more than $1,000 or imprisoned not more than one year, or both."
100
§ 431(e), (f). See Appendix to this opinion, infra, at 145-149.
101
See supra, at 61-63.
102
S.Rep.No.92-96, p. 33 (1971); S.Rep.No.93-689, pp. 1-2 (1974).
103
See n. 53, supra.
104
See Part I-C-1, supra.
105
Section 431(d) defines "political committee" as "any committee, club, association, or other group of persons which receives contributions or makes expenditures during a calendar year in an aggregate amount exceeding $1,000."
106
At least two lower courts, seeking to avoid questions of unconstitutionality, have construed the disclosure requirements imposed on "political committees" by § 434(a) to be nonapplicable to nonpartisan organizations. United States v. National Comm. for Impeachment, 469 F.2d, at 1139-1142, American Civil Liberties Union v. Jennings, 366 F.Supp., at 1055-1057. See also 171 U.S.App.D.C., at 214 n.112, 519 F.2d, at 863 n. 112.
107
Some partisan committees groups within the control of the candidate or primarily organized for political activities will fall within § 434(e) because their contributions and expenditures fall in the $100-to-$1,000 range. Groups of this sort that do not have contributions and expenditures over $1,000 are not "political committees" within the definition in § 431(d); those whose transactions are not as great as $100 are not required to file statements under § 434(e).
108
See n. 52, supra.
109
Of course, independent contributions and expenditures made in support of the campaigns of candidates of parties that have been found to be exempt from the general disclosure requirements because of the possibility of consequent chill and harassment would be exempt from the requirements of § 434(e).
110
See supra, at 61-63.
111
"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 Co. v. Coleman, 277 U.S. 32, 41, 48 S.Ct. 423, 426, 72 L.Ed. 770 (1928) (Holmes, J., dissenting).
112
Appellants' final argument is directed against § 434(d), which exempts from the reporting requirements certain "photographic, matting, or recording services" furnished to Congressmen in nonelection years. See Appendix to this opinion, infra, at 159. Although we are troubled by the considerable advantages that this exemption appears to give to incumbents, we agree with the Court of Appeals that, in the absence of record evidence of misuse or undue discriminatory impact, this provision represents a reasonable accommodation between the legitimate and necessary efforts of legislators to communicate with their constituents and activities designed to win elections by legislators in their other role as politicians.
113
Accordingly, we respond to the certified questions, as follows:
7. Do the particular requirements in the challenged statutes that persons disclose the amounts that they contribute or expend in connection with elections for federal office or that candidates for such office disclose the amounts that they expend in their campaigns violate the rights of one or more of the plaintiffs under the First, Fourth or Ninth Amendment or the Due Process Clause of the Fifth Amendment?
(a) Do 2 U.S.C. §§ 432(b), (c), and (d) and 438(a)(8) (1970 ed., Supp. IV) violate such rights, in that they provide, through auditing procedures, for the Federal Election Commission to inspect lists and records required to be kept by political committees of individuals who contribute more than $10?
Answer: NO.
(b) Does 2 U.S.C. §§ 434(b)(1)-(8) (1970 ed., Supp. IV) violate such rights, in that it requires political committees to register and disclose the names, occupations, and principal places of business (if any) of those of their contributors who contribute in excess of $100?
Answer: NO.
(c) Does 2 U.S.C. § 434(d) (1970 ed., Supp. IV) violate such rights, in that it neither requires disclosure of nor treats as contribution to or expenditure by incumbent officeholders the resources enumerated in 2 U.S.C. § 434(d) (1970 ed., Supp. IV)?
Answer: NO.
(d) Does 2 U.S.C. § 434(e) (1970 ed., Supp. IV) violate such rights, in that it provides that every person contributing or expending more than $100 other than by contribution to a political committee or candidate (including volunteers with incidental expenses in excess of $600) must make disclosure to the Federal Election Commission?
Answer: NO.
114
The Presidential Election Campaign Fund Act of 1966, Title IV of Pub.L. 89-909, §§ 301-305, 80 Stat. 1587, was the first such provision. This Act also initiated the dollar check-off provision now contained in 26 U.S.C. § 6096 (1970 ed., Supp. IV). The Act was suspended, however, by a 1967 provision barring any appropriations until Congress adopted guidelines for the distribution of money from the Fund. Pub.L. 90-26, § 5, 81 Stat. 58. In 1971 Congress added Subtitle H to the Internal Revenue Code. Pub.L. 92-178, § 801, 85 Stat. 562. Chapter 95 thereof provided public financing of general election campaigns for President; this legislation was to become effective for the 1976 election and is substantially the same as the present scheme. Congress later amended the dollar check-off provision, deleting the taxpayers' option to designate specific parties as recipients of their money. Pub.L. 93-53, § 6, 87 Stat. 138. Finally, the 1974 amendments added to Chapter 95 provisions for financing nominating conventions and enacted a new Chapter 96 providing matching funds for campaigns in Presidential primaries. Pub.L. 93-443, §§ 403-408, 88 Stat. 1291.
115
Unless otherwise indicated all statutory citations in this Part III are to the Internal Revenue Code of 1954, Title 26 of the United States Code, 1970 edition, Supplement IV.
116
See n. 6, supra.
117
Priorities are established when the Fund is insufficient to satisfy all entitlements in any election year: the amount in the Fund is first allocated to convention funding, then to financing the general election, and finally to primary matching assistance. See §§ 9008(a), 9037(a). But the law does not specify how funds are to be allocated among recipients within these categories. Cf. § 9006(d).
118
Independent candidates might be excluded from general election funding by Chapter 95. See §§ 9002(2)(B), 9003(a), (c), 9004(a)(2), (c), 9005(a), 9006(c). Serious questions might arise as to the constitutionality of excluding from free annual assistance candidates not affiliated with a "political party" solely because they lack such affiliation. Storer v. Brown, 415 U.S. 724, 745-746, 94 S.Ct. 1274, 1286-1287, 39 L.Ed.2d 714 (1974). But we have no occasion to address that question in this case. The possibility of construing Chapter 95 as affording financial assistance to independent candidates was remarked by the Court of Appeals. 171 U.S.App.D.C., at 238, 519 F.2d, at 887. The only announced independent candidate for President before the Court former Senator McCarthy has publicly announced that he will refuse any public assistance. Moreover, he is affiliated with the Committee for a Constitutional Presidency McCarthy '76, and there is open the question whether it would qualify as a "political party" under Subtitle H.
119
No party to this case has challenged the constitutionality of this expenditure limit.
120
This amount is the same as the expenditure limit provided in 18 U.S.C. § 608(c)(1)(B) (1970 ed., Supp. IV). The Court of Appeals viewed the provisions as "complementary stratagems." 171 U.S.App.D.C., at 201, 519 F.2d, at 850. Since the Court today holds § 608(c)(1) to be unconstitutional, the question of the severability of general election funding as now constituted arises. We hold that the provisions are severable for the reasons stated in Part III-C, infra.
121
No separate pledge is required from the candidate's party, but if the party organization is an "authorized committee" or "agent," expenditures by the party may be attributed to the candidate. 18 U.S.C. § 608(c)(2)(B) (1970 ed., Supp. IV). See § 608(b)(4)(A).
122
As with Chapter 95, any constitutional question that may arise from the exclusion of independent candidates from any assistance, such as funds to defray expenses of getting on state ballots by petition drives, need not be addressed in this case. See n. 118, supra.
123
As with general election funding, this limit is the same as the candidate expenditure limit of 18 U.S.C. § 608(c)(1) (1970 ed., Supp. IV). See n. 120, supra, and Part III-C, infra.
124
The scheme involves no compulsion upon individuals to finance the dissemination of ideas with which they disagree. Lathrop v. Donohue, 367 U.S. 820, 871, 81 S.Ct. 1826, 1852, 6 L.Ed.2d 1191 (1961) (Black, J., dissenting); id., at 882, 81 S.Ct., at 1858 (Douglas, J., dissenting); Machinists v. Street, 367 U.S. 740, 778, 81 S.Ct. 1784, 1805, 6 L.Ed.2d 1141 (1961) (Douglas, J., concurring; d., at 788-792, 81 S.Ct., at 1809-1811 (Black, J., dissenting). The § 6096 check-off is simply the means by which Congress determines the amount of its appropriation.
125
Some proposals for public financing would give taxpayers the opportunity to designate the candidate or party to receive the dollar, and § 6096 initially offered this choice. See n. 114, supra. The voucher system proposed by Senator Metcalf, as amicus curiae here, also allows taxpayers this option. But Congress need not provide a mechanism for allowing taxpayers to designate the means in which their particular tax dollars are spent. See n. 124, supra. Further, insofar as these proposals are offered as less restrictive means, Congress had legitimate reasons for rejecting both. The designation option was criticized on privacy grounds, 119 Cong.Rec. 22598, 22396 (1973), and also because the identity of all candidates would not be known by April 15, the filing day for annual individual and joint tax returns. Senator Metcalf's proposal has also been criticized as possibly leading to black markets and to coercion to obtain vouchers and as administratively impractical.
126
Appellants voice concern that public funding will lead to governmental control of the internal affairs of political parties, and thus to a significant loss of political freedom. The concern is necessarily wholly speculative and hardly a basis for invalidation of the public financing scheme on its face. Congress has expressed its determination to avoid the possibility. S.Rep.No.93-689, pp. 9-10 (1974).
127
The historical bases of the Religion and Speech Clauses are markedly different. Intolerable persecutions throughout history led to the Framers' firm determination that religious worship both in method and belief must be strictly protected from government intervention. "Another purpose of the Establishment Clause rested upon an awareness of the historical fact that governmentally established religions and religious persecutions go hand in hand." Engel v. Vitale, 370 U.S. 421, 432, 82 S.Ct. 1261, 1267, 8 L.Ed.2d 601 (1962) (footnote omitted). See Everson v. Board of Education, 330 U.S. 1, 8-15, 67 S.Ct. 504, 507-511, 91 L.Ed. 711 (1947). But the central purpose of the Speech and Press Clauses was to assure a society in which "uninhibited, robust, and wide-open" public debate concerning matters of public interest would thrive, for only in such a society can a healthy representative democracy flourish. New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 720, 11 L.Ed.2d 686 (1964). Legislation to enhance these First Amendment values is the rule, not the exception. Our statute books are replete with laws providing financial assistance to the exercise of free speech, such as aid to public broadcasting and other forms of educational media, 47 U.S.C. §§ 390-399, and preferential postal rates and antitrust exemptions for newspapers, 39 CFR § 132.2 (1975); 15 U.S.C. §§ 1801-1804.
128
Appellants maintain that denial of funding is a more severe restriction than denial of access to the ballot, because write-in candidates can win elections, but candidates without funds cannot. New parties will be unfinanced, however, only if they are unable to get private financial support, which presumably reflects a general lack of public support for the party. Public financing of some candidates does not make private fundraising for others any more difficult; indeed, the elimination of private contributions to major-party Presidential candidates might make more private money available to minority candidates.
129
Appellants dispute the relevance of this answer to their argument on the ground that they will not be able to raise money to equal major-party spending. As a practical matter, however, Subtitle H does not enhance the major parties' ability to campaign; it substitutes public funding for what the parties would raise privately and additionally imposes an expenditure limit. If a party cannot raise funds privately, there are legitimate reasons not to provide public funding, which would effectively facilitate hopeless candidacies.
130
Our only prior decision dealing with a system of public financing, American Party of Texas v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974), also recognized that such provisions are less restrictive than regulation of ballot access. Texas required major parties there called "political parties" to nominate candidates by primaries, and the State reimbursed the parties for some of the expenses incurred in holding the primaries. But Texas did not subsidize other parties for the expenses involved in qualifying for the ballot, and this denial was claimed to be a denial of equal protection of the laws. We said that we were "unconvinced . . . 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.' " Id., 415 U.S., at 794, 94 S.Ct., at 1312, quoting from Bullock v. Carter, 405 U.S., at 144, 92 S.Ct., at 856. That the aid in American Party was provided to parties and not to candidates, as is most of the Subtitle H funding, is immaterial.
131
The allegations of invidious discrimination are based on the claim that Subtitle H is facially invalid; since the public financing provisions have never been in operation, appellants are unable to offer factual proof that the scheme is discriminatory in its effect. In rejecting appellants' arguments, we of course do not rule out the possibility of concluding in some future case, upon an appropriate factual demonstration, that the public financing system invidiously discriminates against nonmajor parties.
132
In 1912 Theodore Roosevelt ran as the candidate of the Progressive Party, which had split off from the Republican Party, and he received more votes than William H. Taft, the Republican candidate. But this third-party "threat" was short-lived; in 1916 the Progressives came back into the Republican Party when the party nominated Charles Evans Hughes as its candidate for the Presidency. With the exception of 1912, the major-party candidates have outpolled all others in every Presidential election since 1856.
133
Appellants suggest that a less discriminatory formula would be to grant full funding to the candidate of the party getting the most votes in the last election and then give money to candidates of other parties based on their showing in the last election relative to the "leading" party. That formula, however, might unfairly favor incumbents, since their major-party challengers would receive less financial assistance. See S.Rep.No.93-689, p. 10 (1974).
134
Appellants argue that this effort to "catch up" is hindered by the contribution limits in 18 U.S.C. § 608(b) (1970 ed., Supp. IV) and that therefore the public financing provisions are unconstitutional. Whatever merit the point may have, which is questionable on the basis of the record before the Court, it is answered in our treatment of the contribution limits. See Part I-B, supra.
135
There will, however, be no minor-party candidates in the 1976 Presidential election, since no 1972 candidate other than those of the major parties received 5% Of the popular vote.
136
Another suggested alternative is Senator Metcalf's voucher scheme, but we have previously mentioned problems presented by that device. See n. 125, supra. The United States suggests that a matching formula could be used for general election funding, as it is for funding primary campaigns, in order to relate current funding to current support more closely. Congress could readily have concluded, however, that the matching formula was inappropriate for the general election. The problems in determining the relative strength of candidates at the primaries stage of the campaign are far greater than after a candidate has obtained the nomination of a major party. See S.Rep.No.93-689, p. 6 (1974). It might be eminently reasonable, therefore, to employ a matching formula for primary elections related to popular support evidenced by numerous smaller contributions, yet inappropriate for general election financing as inconsistent with the congressional effort to remove the influence of private contributions and to relieve candidates of the burden of fundraising. Ibid.
137
Williams v. Rhodes, 393 U.S. 23, 31-32, 89 S.Ct. 5, 10-11, 21 L.Ed.2d 24 (1968); Sweezy v. New Hampshire, 354 U.S. 234, 250-251, 77 S.Ct. 1203, 1211-1212, 1 L.Ed.2d 1311 (1957) (plurality opinion). Cf. Talley v. California, 362 U.S. 60, 64, 80 S.Ct. 536, 538, 4 L.Ed.2d 559 (1960).
138
Apart from the adjustment for inflation, and assuming a major-party entitlement of $20,000,000, a candidate getting 5% Of the popular vote, when the balance is divided between two major parties, would be entitled to a post-election payment of more than $2,100,000 if that sum remains after priority allocations from the fund.
139
It is also argued that Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974), is a better analogy than Jenness. In Storer a candidate could qualify for the ballot by obtaining the signatures of 5% Of the voters, but the signatures could not include any voters who voted for another candidate at the primary election. 415 U.S., at 739, 94 S.Ct., at 1283. The analogy, however, is no better than Jenness. The Chapter 95 formula is not more restrictive than that sustained in the two cases, since for the reasons stated earlier, supra, at 94-95, it burdens minority interests less than ballot-access regulations.
140
On similar grounds we sustain the 10-state requirement in § 9002(2). Success in Presidential elections depends on winning electoral votes in States, not solely popular votes, and the requirement is plainly not unreasonable in light of that fact.
2. Nominating Convention Financing
141
As with primary campaigns, Congress could reasonably determine that there was no need for reforms as to minor-party conventions. See, infra, at 105-106. This contribution limit applies to "contributions to any candidate," 18 U.S.C. § 608(b)(1) (1970 ed., Supp. IV), and thus would not govern gifts to a party for general purposes, such as convention funding. Although "contributions to a named candidate made to any political committee" are within § 608(b)(1) if the committee is authorized in writing by a candidate to accept contributions, § 608(b)(4)(A), contributions to a party not for the benefit of any specific candidate would apparently not be subject to the $1,000 ceiling. Moreover, § 608(b)(4)(A) governs only party organizations authorized by a candidate in writing to accept contributions.
3. Primary Election Campaign Financing
142
With respect to the denial of funds to candidates who may not be affiliated with a "political party" for the purposes of public financing, see n. 118, supra.
143
Appellants argue that this reasoning from Katzenbach v. Morgan, supra, is inapplicable to this case involving First Amendment guarantees. But the argument as to the denial of funds to certain candidates primarily claims invidious discrimination and hence presents Fifth Amendment questions, though with First Amendment overtones, as in Katzenbach v. Morgan.
144
Appellants contend that the 20-state requirement directly conflicts with Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969), but that case is distinguishable. Only 7% Of the Illinois voters could have blocked a candidate from qualifying for the ballot, even though the statewide elections were decided by straight majority vote. The clear purpose was to keep any person from being nominated without support in downstate counties making up only 7% Of the vote, but those same voters could not come close to defeating a candidate in the general election. There is no similar restriction here on the opportunity to vote for any candidate, and the 20-state requirement is not an unreasonable method of measuring a candidate's breadth of support. See supra, at 103-105.
145
The fear that barriers would be reduced too much was one reason for rejecting a matching formula for the general election financing system. See n. 136, supra.
146
By offering a single hypothetical situation, appellants try to prove that the matching formula gives wealthy contributors an advantage. Taxpayers are entitled to a deduction from ordinary income for political contributions up to $100, or $200 on a joint return. § 218. Appellants note that a married couple in the 70% Tax bracket could give $500 to a candidate and claim the full deduction allowed by § 218, thus reducing their tax liability by $140. The matching funds increase the effective contribution to $1,000, and the total cost to the contributors is $360. But the appellants have disregarded a myriad of other possibilities. For example, taxpayers also have the option of claiming a tax credit up to $25, or $50 on a joint return, for one-half of their political contributions. § 41. Any married couple could give $100 to a candidate, claim the full $50 credit, and matching thus allows a contribution of $200 at a cost of only $50 to the contributors. Because this example and others involve greater subsidization 75% Against 64% Of smaller contributions than is involved in appellants' hypothesis, one cannot say that the matching formula unfairly favors wealthy interests or large contributors. Moreover, the effect noted by appellants diminishes as the size of individual contributions approaches $1,000.
Finally, these examples clearly reveal that §§ 41 and 218 afford public subsidies for candidates, but appellants have raised no constitutional challenge to the provisions, either on First or Fifth Amendment grounds.
147
Our responses to the certified constitutional questions pertaining to public financing of Presidential election campaigns are:
5. Does any statutory provision for the public financing of political conventions or campaigns for nomination or election to the Presidency or Vice Presidency violate the rights of one or more of the plaintiffs under the First or Ninth Amendment, the Due Process Clause of the Fifth Amendment, or Article I, Section 8, Clause 1, of the Constitution of the United States?
Answer: NO.
6. Do the particular provisions of Subtitle H and § 6096 of the Internal Revenue Code of 1954 deprive one or more of the plaintiffs of such rights under the First or Ninth Amendment or Article 1, Section 8, Clause 1, in that they provide federal tax money to support certain political candidates, parties, movements, and organizations or in the manner that they so provide such federal tax money?
Answer: NO.
148
Unless otherwise indicated, all statutory citations in Part IV are to Title 2 of the United States Code, 1970 edition, Supplement IV, the relevant provisions of which are set forth in the Appendix to this opinion, infra, at 144-180.
149
In administering Chapters 95 and 96 of Title 26, which provide for funding of Presidential election and primary campaigns, respectively, the Commission is empowered, inter alia, "to prescribe such rules and regulations . . . as it deems necessary to carry out the functions and duties imposed on it" by each chapter. 26 U.S.C. § 9009(b). See also 26 U.S.C. § 9039(b) (1970 ed., Supp. IV).
150
The sections from Title 18, incorporated by reference into several of the provisions relating to the Commission's powers, were either enacted or amended by the 1971 Act or the 1974 amendments. They are codified at 18 U.S.C. §§ 608, 610, 611, 613, 614, 615, 616, and 617 (1970 ed., Supp. IV) (hereinafter referred to as Title 18 sections).
151
Section 437c(b) also provides, somewhat redundantly, that the Commission "shall administer, seek to obtain compliance with, and formulate policy with respect to this Act" and the Title 18 sections.
152
The Commission is charged with the duty under each Act to receive and pass upon requests by eligible candidates for campaign money and certify them to the Secretary of the Treasury for the latter's disbursement from the Fund. See 26 U.S.C. §§ 9003-9007, 9033-9038 (1970 ed., Supp. IV).
153
This conclusion seems to follow from the manner in which the subsections of § 437g interrelate. Any person may file, and the
Clerk of the House or the Secretary of the Senate shall refer, believed or apparent civil or criminal violations to the Commission. Upon receipt of a complaint or referral, as the case may be, the Commission is directed to notify the person involved and to report the violation to the Attorney General or to make an investigation. § 437g(a)(2). The Commission shall conduct a hearing at that person's request. § 437g(a)(4). If after its investigation the Commission "determines . . . that there is reason to believe" that a "violation of this Act," i. e., a civil violation, has occurred or is about to occur, it "may endeavor to correct such violation by informal methods," failing which, the Commission "may institute a civil action for relief." § 437g(a)(5). Finally, paragraph (6) provides as follows:
"The Commission shall refer apparent violations to the appropriate law enforcement authorities to the extent that violations of provisions of chapter 29 of Title 18 are involved, or if the Commission is unable to correct apparent violations of this Act under the authority given it by paragraph (5), or if the Commission determines that any such referral is appropriate." § 437g(a)(6) (emphasis added).
While it is clear that the Commission has a duty to refer apparent criminal violations either upon their initial receipt or after an investigation, it would appear at the very least that the Commission, which has "primary jurisdiction" with respect to civil enforcement, § 437c(b), has the sole discretionary power "to determine" whether or not a civil violation has occurred or is about to occur, and consequently whether or not informal or judicial remedies will be pursued.
154
Such a finding is subject to judicial review under the Administrative Procedure Act, 5 U.S.C. § 701 et seq.
155
§ 437c(a)(1), set forth in the Appendix to this opinion, infra, at 161-162.
156
§ 437c(a)(1)(A).
157
The Court of Appeals, following the sequence of the certified questions, adopted a piecemeal approach to the six questions, reproduced below, concerning the method of appointment and powers of the Commission. Its basic holding, in answer to question 8(a), was that "Congress has the constitutional authority to establish and appoint (the Commission) to carry out appropriate legislative functions." 171 U.S.App.D.C., at 241, 519 F.2d, at 890. Appellants' claim, embodied in questions 8(b) through 8(f), that the Commission's powers go well beyond "legislative functions" and are facially invalid was in an overarching sense not ripe, since "(w)hether particular powers are predominantly executive or judicial, or insufficiently related to the exercise of appropriate legislative power is an abstract question . . . better decided in the context of a particular factual controversy." Id., at 243, 519 F.2d, at 892. While some of the statutory grants such as civil enforcement and candidate disqualification powers (questions 8(c) and 8(e)) raised, in the court's view, "very serious constitutional questions," only the power of the Commission to issue advisory opinions under § 437f(a) was ripe in the context of an attack on Congress' method of appointment. Even then, beyond the Commission's power to inform the public of its interpretations, the question whether Congress under § 437f(b) could validly give substantive effect to the Commission's opinions in later civil and criminal enforcement proceedings should, the Court of Appeals held, await a case in which a defense based on § 437f(b) was asserted. Finally, the question of the Commission's power under 26 U.S.C. § 9008(d)(3) (1970 ed., Supp. IV) to authorize nominating convention expenditures in excess of the statutory limits (question 8(f)) was found ripe because appellants had not challenged it in relation to the method of appointment but had asserted only that 26 U.S.C. § 9008(d)(3) (1970 ed., Supp. IV) sted excessive discretion in the Commission. The Court of Appeals found th at Congress had provided sufficient guidelines to withstand that attack.
The Court of Appeals accordingly answered the six certified questions as follows:
"8. Do the provisions in the challenged statutes concerning the powers and method of appointment of the Federal Election Com-
mission violate the rights of one or more of the plaintiffs under the constitutional separation of powers, the First, Fourth, Fifth, Sixth, or Ninth Amendment, Article I, Section 2, Clause 6, Article I, Section 5, Clause 1, or Article III?
"(a) Does 2 U.S.C. § 437c(a) violate such rights by the method of appointment of the Federal Election Commission? . . .
"Answer: NO
"(b) Do 2 U.S.C. §§ 437d and 437g violate such rights, in that they entrust administration and enforcement of the FECA to the Federal Election Commission? . . .
"Answer: NO as to the power to issue advisory opinions; UNRIPE as to all else.
"(c) Does 2 U.S.C. § 437g(a) violate such rights, in that it empowers the Federal Election Commission and the Attorney General to bring civil actions (including proceedings for injunctions) against any person who has engaged or who may engage in acts or practices which violate the Federal Election Campaign Act, as amended, or §§ 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18? . . .
"Answer: UNRIPE FOR RESOLUTION
"(d) Does 2 U.S.C. § 438(c) violate such rights, in that it empowers the Federal Election Commission to make rules under FECA in the manner specified therein? . . .
"Answer: UNRIPE FOR RESOLUTION
"(e) Does 2 U.S.C. § 456 violate such rights, in that it imposes a temporary disqualification on any candidate for election to federal office who is found by the Federal Election Commission to have failed to file a report required by Title III of the Federal Election Campaign Act, as amended ? . . .
"Answer: UNRIPE FOR RESOLUTION
"(f) Does § 9008 of the Internal Revenue Code of 1954 violate such rights, in that it empowers the Federal Election Commission to authorize expenditures of the national committee of a party with respect to presidential nominating conventions in excess of the limits enumerated therein? . . .
"Answer: NO"
158
With respect to the Commission's power under 26 U.S.C. § 9008(d)(3) (1970 ed., Supp. IV) to authorize excessive convention expenditures (question 8(f)), the fact that appellants in the Court of Appeals may have focused their attack primarily or even exclusively upon the asserted lack of standards attendant to that power, see n. 157, supra, does not foreclose them from challenging that power in relation to Congress' method of appointment of the Commission's members. Question 8(f) asks whether vesting the Commission with this power under 26 U.S.C. § 9008 (1970 ed., Supp. IV) violates "such rights," which by reference to question 8 includes "the rights of (appellants) under the constitutional separation of powers." Since the certified questions themselves provide our jurisdictional framework, § 437h(b), the separation-of-powers aspect of appellants' attack on 26 U.S.C. § 9008(d)(3) (1970 ed., Supp. IV) is properly before this Court.
159
The Federalist No. 47, p. 299 (G. P. Putnam's Sons ed. 1908).
160
Id., at 302-303 (emphasis in original).
161
The Federalist No. 51, pp. 323-324 (G.P. Putnam's Sons ed. 1908).
162
"Officers of the United States" does not include all employees of the United States, but there is no claim made that the Commissioners are employees of the United States rather than officers. Employees are lesser functionaries subordinate to officers of the United States, see Auffmordt v. Hedden, 137 U.S. 310, 327, 11 S.Ct. 103, 108, 34 L.Ed. 674 (1890); United States v. Germaine, 99 U.S. 508, 25 L.Ed. 482 (18979), whereas the Commissioners, appointed for a statutory term, are not subject to the control or direction of any other executive, judicial, or legislative authority.
163
Rule II of the Rules of the House of Representatives, the earliest form of which was adopted in 1789, provides for the election by the House, at the commencement of each Congress, of a Clerk, Sergeant at Arms, Doorkeeper, Postmaster, and Chaplain, each of whom in turn is given appointment power over the employees of his department. Jefferson's Manual and Rules of the House of Representatives §§ 635-636. While there is apparently no equivalent rule on the Senate side, one of the first orders of business at the first session of the Senate, April 1789, was to elect a Secretary and a Doorkeeper. Senate Journal 10 (1st & 2d Congress 1789-1793).
164
2 U.S.C. § 60-1(b).
165
Appellee Commission has relied for analogous support on the existence of the Comptroller General, who as a "legislative officer" had significant duties under the 1971 Act. § 308, 86 Stat. 16. But irrespective of Congress' designation, cf. 31 U.S.C. § 65(d), the Comptroller General is appointed by the President in conformity with the Appointments Clause. 31 U.S.C. § 42.
166
2 M. Farrand, The Records of the Federal Convention of 1787, pp. 74, 76 (1911); The Federalist No. 48, pp. 308-310 (G. P. Putnam's Sons ed. 1908) (J. Madison); The Federalist No. 71, pp. 447-448 (G. P. Putnam's Sons ed. 1908) (A. Hamilton). See generally Watson, Congress Steps Out: A Look at Congressional Control of the Executive, 63 Calif.L.Rev. 983, 1029-1048 (1975).
167
J. Madison, Notes of Debates in the Federal Convention of 1787, p. 385 (Ohio Univ. Press ed. 1966).
168
Id., at 472 (emphasis added).
169
"Col. Mason in opposition to Mr. Read's motion desired it might be considered to whom the money would belong; if to the people, the legislature representing the people ought to appoint the keepers of it." Ibid.
170
Id., at 521.
171
Id., at 527.
172
Id., at 571-573.
173
Id., at 575.
174
"The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."
175
Since in future legislation that may be enacted in response to today's decision Congress might choose not to confer one or more of the powers under discussion to a properly appointed agency, our assumption is arguendo only. Considerations of ripeness prevent us from deciding, for example, whether such an agency could under § 456 disqualify a candidate for federal election consistently with Art. I, § 5, cl. 1. With respect to this and other powers discussed infra, this page and 138-141, we need pass only upon their nature in relation to the Appointments Clause, and not upon their validity vel non.
176
Before a rule or regulation promulgated by the Commission under § 438(a) (10) may go into effect, it must be transmitted either to the Senate or House of Representatives together with "a detailed explanation and justification of such rule or regulation." § 438(c)(1). If the House of Congress to which the rule is required to be transmitted disapproves the proposed regulation within the specified period of time, it may not be promulgated by the Commission. Appellants make a separate attack on this qualification of the Commission's rulemaking authority, which is but the most recent episode in a long tug of war between the Executive and Legislative Branches of the Federal Government respecting the permissible extent of legislative involvement in rulemaking under statutes which have already been enacted. The history of these episodes is described in Ginnane, The Control of Federal Administration by Congressional Resolutions and Committees, 66 Harv.L.Rev. 569 (1953); in Newman & Keaton, Congress and the Faithful Execution of Laws Should Legislators Supervise Administrators?, 41 Cal.L.Rev. 565 (1953); and in Watson, Congress Steps Out: A Look at Congressional Control of the Executive, 63 Cal.L.Rev. 983 (1975). Because of our holding that the manner of appointment of the members of the Commission precludes them from exercising the rulemaking powers in question, we have no occasion to address this separate challenge of appellants.
177
The subsidiary questions certified by the District Court relating to the composition of the Federal Election Commission, together with our answers thereto, are as follows:
Question 8(a). Does 2 U.S.C. § 437c(a) (1970 ed., Supp. IV) violate (the rights of one or more of the plaintiffs under the constitutional separation of powers, the First, Fourth, Fifth, Sixth, or Ninth Amendment, Art. I, § 2, cl. 6, Art. I, § 5, cl. 1, or Art. III) by the method of appointment of the Federal Election Commission?
With respect to the powers referred to in Questions 8(b)-8(f), the method of appointment violates Art. II, § 2, cl. 2, of the Constitution.
Question 8(b). Do 2 U.S.C. §§ 437d and 437g (1970 ed., Supp. IV) violate such rights, in that they entrust administration and enforcement of the FECA to the Federal Election Commission?
Question 8(c). Does 2 U.S.C. § 437g(a) (1970 ed., Supp. IV) violate such rights, in that it empowers the Federal Election Commission and the Attorney General to bring civil action (including proceedings for injunctions) against any person who has engaged or who may engage in acts or practices which violate the Federal Election Campaign Act, as amended, or §§ 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18 (1970 ed., Supp. IV)?
Question 8(d). Does 2 U.S.C. § 438(c) (1970 ed., Supp. IV) violate such rights in that it empowers the Federal Election Commission to make rules under the FECA in the manner specified therein?
Question 8(e). Does 2 U.S.C. § 456 (1970 ed., Supp. IV) violate such rights, in that it imposes a temporary disqualification on any candidate for election to federal office who is found by the Federal Election Commission to have failed to file a report required by Title III of the Federal Election Campaign Act, as amended ?
Question 8(f). Does § 9008 of the Internal Revenue Code of 1954 violate such rights, in that it empowers the Federal Election Commission to authorize expenditures of the national committee of a party with respect to Presidential nominating conventions in excess of the limits enumerated therein?
The Federal Election Commission as presently constituted may not under Art. II, § 2, cl. 2, of the Constitution exercise the powers referred to in Questions 8(b)-8(f).
178
We have not set forth specific answers to some of the certified questions. Question 9, dealing with alleged vagueness in several provisions, 171 U.S.App.D.C., at 252, 519 F.2d, at 901 (Appendix A), is resolved in the opinion to the extent urged by the parties. We need not respond to questions 3(g), 3(i), 4(b), and 7(f), id., at 250-251, 519 F.2d, at 899-900 (Appendix A), to resolve the issues presented.
*
Based upon Federal Election Campaign Laws, compiled by the Senate Library for the Subcommittee on Privileges and Elections of the Senate Committee on Rules and Administration (1975).
1
So in original.
1
The particular verbalization has varied from case to case. First Amendment analysis defies capture in a single, easy phrase. The basic point of our inquiry, however expressed, is to determine whether the Government has sought to achieve admittedly important goals by means which demonstrably curtail our liberties to an unnecessary extent.
2
The 1910 legislation required disclosure of the names of recipients of expenditures in excess of $10.
3
Ironically, the Court seems to recognize this principle when dealing with the limitations on contributions. Ante, at 25.
4
The record does not show systematic harassment of the sort involved in NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). But uncontradicted evidence was adduced with respect to actual experiences of minor parties indicating a sensitivity on the part of potential contributors to the prospect of disclosure. See, e. g., District Court findings of fact, affidavits of Wertheimer (P 6) and Reed (P 8), 2B App. 736, 742. This evidence suffices when the governmental interest in putting the spotlight on the sources of support for minor parties or splinter groups is so tenuous.
5
The Court notes that 94.9% Of the funds raised by congressional candidates in 1974 came in contributions of less than $1,000, ante, at 26 n. 27, and suggests that the effect of the contribution limitations will be minimal. This logic ignores the disproportionate influence large contributions may have when they are made early in a campaign; "seed money" can be essential, and the inability to obtain it may effectively end some candidacies before they begin. Appellants have excerpted from the record data on nine campaigns to which large, initial contributions were critical. Brief for Appellants 132-138. Campaigns such as these will be much harder, and perhaps impossible, to mount under the Act.
6
Whatever the effect of the limitation, it is clearly arbitrary Congress has imposed the same ceiling on contributions to a New York or California senatorial campaign that it has put on House races in Alaska or Wyoming. Both the strength of support conveyed by the gift of $1,000 and the gift's potential for corruptly influencing the recipient will vary enormously from place to place. Seven Senators each spent from $1,000,000 to $1,300,000 in their successful 1974 election campaigns. A great many congressional candidates spent less than $25,000. 33 Cong. Quarterly 789-790 (1975). The same contribution ceiling would seem to apply to each of these campaigns. Congress accounted for these tremendous variations when it geared the expenditure limits to voting population; but it imposed a flat ceiling on contributions without focusing on the actual evil attacked or the actual harm the restrictions will work.
7
Suppose, for example, that a candidate's committee authorizes a celebrity or elder statesman to make a radio or television address on the candidate's behalf, for which the speaker himself plans to pay. As the Court recognizes, ante, at 24 n. 25, the Act defines this activity as a contribution and subjects it to the $1,000 limit on individual contributions and the $5,000 limit on contributions by political committees effectively preventing the speech over any substantial radio or television station. Whether the speech is considered an impermissible "contribution" or an allowable "expenditure" turns, not on whether speech by "someone other than the contributor" is involved, but on whether the speech is "authorized" or not. The contribution limitations directly restrict speech by the contributor himself. Of course, this restraint can be "avoided" if the speaker makes his address without consulting the candidate or his agents. Elsewhere I suggest that the distinction between "independent" and "authorized" political activity is unrealistic and simply cannot be maintained. For present purposes I wish only to emphasize that the Act directly restricts, as a "contribution," what is clearly speech by the "contributor" himself.
8
The Court treats the Act's provisions limiting a candidate's spending from his personal resources as expenditure limits, as indeed the Act characterizes them, and holds them unconstitutional. As Mr. Justice MARSHALL points out, infra, at 287, by the Court's logic these provisions could as easily be treated as limits on contributions, since they limit what the candidate can give to his own campaign.
9
Candidates who must raise large initial contributions in order to appeal for more funds to a broader audience will be handicapped. See n. 5, supra. It is not enough to say that the contribution ceilings "merely . . . require candidates . . . to raise funds from a greater number of persons," ante, at 22, where the limitations will effectively prevent candidates without substantial personal resources from doing just that.
10
Under the Court's holding, candidates with personal fortunes will be free to contribute to their own campaigns as much as they like, since the Court chooses to view the Act's provisions in this regard as unconstitutional "expenditure" limitations rather than "contribution" limitations. See n. 8, supra.
11
113 Cong.Rec. 12165 (1967).
12
Brief for Appellee Attorney General and for United States as Amicus Curiae 93.
13
Id., at 94.
14
Id., at 93.
15
Such considerations have never before influenced the Court's evaluation of the risks of restraints on expression.
16
The Court's opinion demonstrates one such intrusion. While the Court finds that the Act's expenditure limitations unconstitutionally inhibit a candidate's or a party's First Amendment rights, it imposes, by invoking the severability cause of Subtitle H, such limitations on qualifying for public funds.
17
See, e. g., 26 U.S.C. §§ 9003, 9007, 9033, 9038 (1970 ed., Supp. IV).
18
Cf. Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953); Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944).
19
See generally remarks of Senator Gore, 112 Cong.Rec. 28783 (1966).
20
The problem is considered only in the limited context of Subtitle H.
21
Section 454 provides that if a "provision" is invalid, the entire Act will not be deemed invalid. More than a provision, more than a few provisions, have been held invalid today. Section 454 probably does not even reach such extensive invalidation.
1
That is, if the FEC were properly constituted, I would answer questions 8(b), 8(c), 8(d) (see infra, at 282-286), and 8(f) in the negative. With respect to questions 8(e), I reserve judgment on the validity of 2 U.S.C. § 456 (1970 ed., Supp. IV) which empowers the FEC to disqualify a candidate for failure to file certain reports. Of course, to the extent that the Court invalidates the expenditure limitations of the FECA, Part I-C, ante, at 39-59, the FEC, however, appointed, would be powerless to enforce those provisions.
Unless otherwise indicated, all statutory citations in this part of the opinion are to the Federal Election Campaign Act of 1971, §§ 301-311, 86 Stat. 11, as amended by the Federal Election Campaign Act Amendments of 1974, §§ 201-407, 88 Stat. 1272, 2 U.S.C. § 431 et seq. (1970 ed., Supp. IV).
2
References to the "Commissioners," the "FEC," or its "members" do not include these two ex officio members.
3
U.S. Const., Art. II, § 2, cl. 2.
4
Id., Art. I, §§ 2, 3, and the Seventeenth Amendment.
5
"The House of Representatives shall chuse their Speaker and other Officers . . . ." U.S. Const., Art. I, § 2, cl. 5.
"The Vice President of the United States shall be President of the Senate, but . . . (t)he Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States." § 3, cls. 4, 5.
6
The distinction appears ante, at 126 n. 162.
7
Indeed the FEC attacks as "erroneous" appellants' statement that the Court of Appeals ruled that "the FEC commissioners are not officers of the United States. Rather, it held that the grant of power to the President to appoint civil officers of the United States is not to be read as preclusive of Congressional authority to appoint such officers to aid in the discharge of Congressional responsibilities." Brief for Appellee Federal Election Commission 16 n. 19 (hereafter FEC Brief).
8
How Congress may both appoint officers itself and condition appointment of the President's nominees on confirmation by a majority of both Houses of Congress is not explained.
9
Watson, Congress Steps Out: A Look at Congressional Control of the Executive, 63 Calif.L.Rev. 983, 1042-1043 (1975).
10
U.S. Const., Art. I, § 6, cl. 2, provides in part:
"(N)o Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."
See 1 M. Farrand, The Records of the Federal Convention of 1787, pp. 379-382 (1911) (hereafter Farrand); 2 Farrand 483.
11
1 Farrand 20.
12
Id., at 210-211, 217, 219, 221, 222, 370, 375-377, 379-382, 383, 384, 419, 429, 435; 2 Farrand 180.
13
Id., at 487. As ratified, the Ineligibility Clause provides:
"No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time . . . ." U.S. Const., Art. I, § 6, cl. 2.
14
1 Farrand 116, 120, 224, 233; 2 Farrand 37-38, 41-44, 71-72, 116, 138.
15
1 Farrand 63, 67.
16
Id., at 21-22.
17
Id., at 224, 233.
18
2 Farrand 183, 383, 394.
19
Id., at 533.
20
Id., at 627.
21
C. Warren, The Making of the Constitution 641-642 (1947).
22
§ 437d(a)(9).
23
§ 437c(b).
24
Section 437g(a)(7) provides:
"Whenever in the judgment of the Commission, after affording due notice and an opportunity for a hearing, any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any (relevant) provision . . . upon request by the Commission the Attorney General on behalf of the United States shall institute a civil action for relief . . . ." (Emphasis supplied.)
The FEC argues that " 'there is no showing in this case of a convincing legislative history that would enable us to conclude that "shall" was intended to be the "language of command." ' " FEC Brief 62 n. 52, quoting 171 U.S.App.D.C. 172, 244 n. 191, 519 F.2d 821, 893 n. 191 (1975). The contention is that the FEC's enforcement power is not exclusive, because the Attorney General retains the traditional discretion to decline to institute legal proceedings. However this may be, the FEC's civil enforcement responsibilities are substantial. Moreover it is authorized under 26 U.S.C. §§ 9010, 9040 (1970 ed., Supp. IV), to appear in and to defend actions brought in the Court of Appeals for the District of Columbia Circuit under §§ 9011, 9041, to review the FEC's actions under Chapters 95 and 96 of Title 26, and to appear in district court to seek recovery of amounts repayable to the Treasury under §§ 9007, 9008, 9038.
25
Although the FEC resists appellants' attack on its position that it has "no general substantive rulemaking authority with regard to Title 18 spending and contribution limitations" (FEC Brief 49), it agrees "that there is inevitably some interplay between Title 2 and Title 18." (Id., at 55). It seeks to minimize the importance of the interplay by noting that its definitions of what is to be disclosed and reported would not be binding in judicial proceedings to determine whether substantive provisions of the Act had been violated, but would simply be extended a measure of deference as administrative interpretations. Appellants' reply is the practical one that, whether the FEC's power is substantive or not, persons violating its regulations do so at their peril. To illustrate the extent to which the FEC's regulations implicate the provisions of Title 18, appellants point to the FEC's interim guidelines for the New Hampshire and Tennessee special elections, 40 Fed.Reg. 40668, 43660 (1975), and its regulations, rejected by the Senate, providing that funds contributed to and expended from the "office accounts" of Members of Congress were contributions or expenditures "subject to the limitations of 18 U.S.C. §§ 608, 610, 611, 613, 614 and 615." See notice of proposed rulemaking, id., at 32951. Unless the FEC's regulations are to be given no weight in criminal proceedings, it seems plain that through those regulations the FEC will have a significant role in the implementation and enforcement of criminal statutes.
26
The FEC itself cannot fashion coercive relief by, for example, issuing cease-and-desist orders. To obtain such relief it must apply to the courts itself or through the Attorney General.
27
The same preconditions are imposed with respect to regulations issued under the public financing provisions of the election laws. 26 U.S.C. §§ 9009 and 9039 (1970 ed., Supp. IV). No such requirement appears to exist with respect to the FEC's power to make "policy" with respect to the enforcement of the criminal provisions in Title 18 or with respect to any power it may have to issue rules and regulations dealing with the civil enforcement of those provisions. See also § 439a.
28
Section 438(c)(4) defines "legislative day." See also 26 U.S.C. §§ 9009(c)(3), 9039(c)(3) (1970 ed., Supp. IV).
29
U.S. Const., Art. I, § 7, cl. 3.
30
Surely the challengers to the provision for congressional disapproval do not mean to suggest that the FEC's regulations must become effective despite the disapproval of one House or the other. Disapproval nullifies the suggested regulation and prevents the occurrence of any change in the law. The regulation is void. Nothing remains on which the veto power could operate. It is as though a bill passed in one House and failed in another.
31
The Federalist No. 73, pp. 468-469 (Wright ed. 1961).
1
"In the Nation's seven largest States in 1970, 11 of the 15 major senatorial candidates were millionaires. The four who were not millionaires lost their bid for election." 117 Cong.Rec. 42065 (1971) (remarks of Rep. Macdonald).
2
Of course, § 608(b)'s enhancement of the wealthy candidate's natural advantage does not require its invalidation. As the Court demonstrates, § 608(b) is fully justified by the governmental interest in limiting the reality and appearance of corruption. Ante, at 26-29.
In addition to § 608(a), § 608(c), which limits overall candidate expenditures in a campaign, also provides a check on the advantage of the wealthy candidate. But we today invalidate that section, which unlike § 608(a) imposes a flat prohibition on candidate expenditures above a certain level, and which is less tailored to the interest in equalizing access than § 608(a). The effect of invalidating both § 608(c) and § 608(a) is to enable the wealthy candidate to spend his personal resources without limit, while his less wealthy opponent is forced to make do with whatever amount he can accumulate through relatively small contributions.
| 23
|
424 U.S. 319
96 S.Ct. 893
47 L.Ed.2d 18
F. David MATHEWS, Secretary of Health, Education, and Welfare, Petitioner,v.George H. ELDRIDGE.
No. 74-204.
Argued Oct. 6, 1975.
Decided Feb. 24, 1976.
Syllabus
In order to establish initial and continued entitlement to disability benefits under the Social Security Act (Act), a worker must demonstrate that, inter alia, he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . ." The worker bears the continuing burden of showing, by means of "medically acceptable . . . techniques" that his impairment is of such severity that he cannot perform his previous work or any other kind of gainful work. A state agency makes the continuing assessment of the worker's eligibility for benefits, obtaining information from the worker and his sources of medical treatment. The agency may arrange for an independent medical examination to resolve conflicting information. If the agency's tentative assessment of the beneficiary's condition differs from his own, the beneficiary is informed that his benefits may be terminated, is provided a summary of the evidence, and afforded an opportunity to review the agency's evidence. The state agency then makes a final determination, which is reviewed by the Social Security Administration (SSA). If the SSA accepts the agency determination it gives written notification to the beneficiary of the reasons for the decision and of his right to de novo state agency reconsideration. Upon acceptance by the SSA, benefits are terminated effective two months after the month in which recovery is found to have occurred. If, after reconsideration by the state agency and SSA review, the decision remains adverse to the recipient, he is notified of his right to an evidentiary hearing before an SSA administrative law judge. If an adverse decision results, the recipient may request discretionary review by the SSA Appeals Council, and finally may obtain judicial review. If it is determined after benefits are terminated that the claimant's disability extended beyond the date of cessation initially established, he is entitled to retroactive payments. Retroactive adjustments are also made for overpayments. A few years after respondent was first awarded disability benefits he received and completed a questionnaire from the monitoring state agency. After considering the information contained therein and obtaining reports from his doctor and an independent medical consultant, the agency wrote respondent that it had tentatively determined that his disability had ceased in May 1972 and advised him that he might request a reasonable time to furnish additional information. In a reply letter respondent disputed one characterization of his medical condition and indicated that the agency had enough evidence to establish his disability. The agency then made its final determination reaffirming its tentative decision. This determination was accepted by the SSA, which notified respondent in July that his benefits would end after that month and that he had a right to state agency reconsideration within six months. Instead of requesting such reconsideration respondent brought this action challenging the constitutionality of the procedures for terminating disability benefits and seeking reinstatement of benefits pending a hearing. The District Court, relying in part on Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287, held that the termination procedures violated procedural due process and concluded that prior to termination of benefits respondent was entitled to an evidentiary hearing of the type provided welfare beneficiaries under Title IV of the Act. The Court of Appeals affirmed. Petitioner contends, inter alia, that the District Court is barred from considering respondent's action by Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522, which held that district courts are precluded from exercising jurisdiction over an action seeking a review of a decision of the Secretary of Health, Education, and Welfare regarding benefits under the Act except as provided in 42 U.S.C. § 405(g), which grants jurisdiction only to review a "final" decision of the Secretary made after a hearing to which he was a party. Held :
1. The District Court had jurisdiction over respondent's constitutional claim, since the denial of his request for benefits was a final decision with respect to that claim for purposes of § 405(g) jurisdiction. Pp. 326-332.
(a) The § 405(g) finality requirement consists of the waivable requirement that the administrative remedies prescribed by the Secretary be exhausted and the nonwaivable requirement that a claim for benefits shall have been presented to the Secretary. Respondent's answers to the questionnaire and his letter to the state agency specifically presented the claim that his benefits should not be terminated because he was still disabled, and thus satisfied the nonwaivable requirement. Pp. 328-330.
(b) Although respondent concededly did not exhaust the Secretary's internal-review procedures and ordinarily only the Secretary has the power to waive exhaustion, this is a case where the claimant's interest in having a particular issue promptly resolved is so great that deference to the Secretary's judgment is inappropriate. The facts that respondent's constitutional challenge was collateral to his substantive claim of entitlement and that (contrary to the situation in Salfi ) he colorably claimed that an erroneous termination would damage him in a way not compensable through retroactive payments warrant the conclusion that the denial of his claim to continued benefits was a sufficiently "final decision" with respect to his constitutional claim to satisfy the statutory exhaustion requirement. Pp. 330-332.
2. An evidentiary hearing is not required prior to the termination of Social Security disability payments and the administrative procedures prescribed under the Act fully comport with due process. Pp. 332-349.
(a) "(D)ue process is flexible and calls for such procedural protections as the particular situation demands," Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484. Resolution of the issue here involving the constitutional sufficiency of administrative procedures prior to the initial termination of benefits and pending review, requires consideration of three factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional procedural safeguards; and (3) the Government's interest, including the fiscal and administrative burdens that the additional or substitute procedures would entail. Pp. 332-335.
(b) The private interest that will be adversely affected by an erroneous termination of benefits is likely to be less in the case of a disabled worker than in the case of a welfare recipient, like the claimants in Goldberg, supra. Eligibility for disability payments is not based on financial need, and although hardship may be imposed upon the erroneously terminated disability recipient, his need is likely less than the welfare recipient. In view of other forms of government assistance available to the terminated disability recipient, there is less reason than in Goldberg to depart from the ordinary principle that something less than an evidentiary hearing is sufficient prior to adverse administrative action. Pp. 339-343.
(c) The medical assessment of the worker's condition implicates a more sharply focused and easily documented decision than the typical determination of welfare entitlement. The decision whether to discontinue disability benefits will normally turn upon "routine, standard, and unbiased medical reports by physician specialists," Richardson v. Perales, 402 U.S. 389, 404, 91 S.Ct. 1420, 1428-1429, 28 L.Ed.2d 842. In a disability situation the potential value of an evidentiary hearing is thus substantially less than in the welfare context. Pp. 343-345.
(d) Written submissions provide the disability recipient with an effective means of communicating his case to the decision-maker. The detailed questionnaire identifies with particularity the information relevant to the entitlement decision. Information critical to the decision is derived directly from medical sources. Finally, prior to termination of benefits, the disability recipient or his representative is afforded full access to the information relied on by the state agency, is provided the reasons underlying its tentative assessment, and is given an opportunity to submit additional arguments and evidence. Pp. 345-346.
(e) Requiring an evidentiary hearing upon demand in all cases prior to the termination of disability benefits would entail fiscal and administrative burdens out of proportion to any countervailing benefits. The judicial model of an evidentiary hearing is neither a required, nor even the most effective, method of decisionmaking in all circumstances, and here where the prescribed procedures not only provide the claimant with an effective process for asserting his claim prior to any administrative action but also assure a right to an evidentiary hearing as well as subsequent judicial review before the denial of his claim becomes final, there is no deprivation of procedural due process. Pp. 347-349.
493 F.2d 1230, reversed.
Donald E. Earls, Norton, Va., for respondent.
Mr. Justice POWELL delivered the opinion of the Court.
1
The issue in this case is whether the Due Process Clause of the Fifth Amendment requires that prior to the termination of Social Security disability benefit payments the recipient be afforded an opportunity for an evidentiary hearing.
2
* Cash benefits are provided to workers during periods in which they are completely disabled under the disability insurance benefits program created by the 1956 amendments to Title II of the Social Security Act. 70 Stat. 815, 42 U.S.C. § 423.1 Respondent Eldridge was first awarded benefits in June 1968. In March 1972, he received a questionnaire from the state agency charged with monitoring his medical condition. Eldridge completed the questionnaire, indicating that his condition had not improved and identifying the medical sources, including physicians, from whom he had received treatment recently. The state agency then obtained reports from his physician and a psychiatric consultant. After considering these reports and other information in his file the agency informed Eldridge by letter that it had made a tentative determination that his disability had ceased in May 1972. The letter included a statement of reasons for the proposed termination of benefits, and advised Eldridge that he might request reasonable time in which to obtain and submit additional information pertaining to his condition.
3
In his written response, Eldridge disputed one characterization of his medical condition and indicated that the agency already had enough evidence to establish his disability.2 The state agency then made its final determination that he had ceased to be disabled in May 1972. This determination was accepted by the Social Security Administration (SSA), which notified Eldridge in July that his benefits would terminate after that month. The notification also advised him of his right to seek reconsideration by the state agency of this initial determination within six months.
4
Instead of requesting reconsideration Eldridge commenced this action challenging the constitutional validity of the administrative procedures established by the Secretary of Health, Education, and Welfare for assessing whether there exists a continuing disability. He sought an immediate reinstatement of benefits pending a hearing on the issue of his disability.3 361 F.Supp. 520 (W.D.Va.1973). The Secretary moved to dismiss on the grounds that Eldridge's benefits had been terminated in accordance with valid administrative regulations and procedures and that he had failed to exhaust available remedies. In support of his contention that due process requires a pretermination hearing, Eldridge relied exclusively upon this Court's decision in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), which established a right to an "evidentiary hearing" prior to termination of welfare benefits.4 The Secretary contended that Goldberg was not controlling since eligibility for disability benefits, unlike eligibility for welfare benefits, is not based on financial need and since issues of credibility and veracity do not play a significant role in the disability entitlement decision, which turns primarily on medical evidence.
5
The District Court concluded that the administrative procedures pursuant to which the Secretary had terminated Eldridge's benefits abridged his right to procedural due process. The court viewed the interest of the disability recipient in uninterrupted benefits as indistinguishable from that of the welfare recipient in Goldberg. It further noted that decisions subsequent to Goldberg demonstrated that the due process requirement of pretermination hearings is not limited to situations involving the deprivation of vital necessities. See Fuentes v. Shevin, 407 U.S. 67, 88-89, 92 S.Ct. 1983, 1998-1999, 32 L.Ed.2d 556 (1972); Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90 (1971). Reasoning that disability determinations may involve subjective judgments based on conflicting medical and nonmedical evidence, the District Court held that prior to termination of benefits Eldridge had to be afforded an evidentiary hearing of the type required for welfare beneficiaries under Title IV of the Social Security Act. 361 F.Supp., at 528.5 Relying entirely upon the District Court's opinion, the Court of Appeals for the Fourth Circuit affirmed the injunction barring termination of Eldridge's benefits prior to an evidentiary hearing. 493 F.2d 1230 (1974).6 We reverse.
II
6
At the outset we are confronted by a question as to whether the District Court had jurisdiction over this suit. The Secretary contends that our decision last Term in Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), bars the District Court from considering Eldridge's action. Salfi was an action challenging the Social Security Act's duration-of-relationship eligibility requirements for surviving wives and stepchildren of deceased wage earners. We there held that 42 U.S.C. § 405(h)7 precludes federal-question jurisdiction in an action challenging denial of claimed benefits. The only avenue for judicial review is 42 U.S.C. § 405(g), which requires exhaustion of the administrative remedies provided under the Act as a jurisdictional prerequisite.
Section 405(g) in part provides:
7
"Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow."8
8
On its face § 405(g) thus bars judicial review of any denial of a claim of disability benefits until after a "final decision" by the Secretary after a "hearing." It is uncontested that Eldridge could have obtained full administrative review of the termination of his benefits, yet failed even to seek reconsideration of the initial determination. Since the Secretary has not "waived" the finality requirement as he had in Salfi, supra, at 767, 95 S.Ct., at 2467-2468, he concludes that Eldridge cannot properly invoke § 405(g) as a basis for jurisdiction. We disagree.
9
Salfi identified several conditions which must be satisfied in order to obtain judicial review under § 405(g). Of these, the requirement that there be a final decision by the Secretary after a hearing was regarded as "central to the requisite grant of subject-matter jurisdiction . . .." 422 U.S., at 764, 95 S.Ct., at 2466.9 Implicit in Salfi however, is the principle that this condition consists of two elements, only one of which is purely "jurisdictional" in the sense that it cannot be "waived" by the Secretary in a particular case. The waivable element is the requirement that the administrative remedies prescribed by the Secretary be exhausted. The nonwaivable element is the requirement that a claim for benefits shall have been presented to the Secretary. Absent such a claim there can be no "decision" of any type. And some decision by the Secretary is clearly required by the statute.
10
That this second requirement is an essential and distinct precondition for § 405(g) jurisdiction is evident from the different conclusions that we reached in Salfi with respect to the named appellees and the unnamed members of the class. As to the latter the complaint was found to be jurisdictionally deficient since it "contain(ed) no allegations that they have even filed an application with the Secretary . . . ." 422 U.S., at 764, 95 S.Ct., at 2466. With respect to the named appellees, however, we concluded that the complaint was sufficient since it alleged that they had "fully presented their claims for benefits 'to their district Social Security Office and, upon denial, to the Regional Office for reconsideration.' " Id., at 764-765, 95 S.Ct., at 2466. Eldridge has fulfilled this crucial prerequisite. Through his answers to the state agency questionnaire, and his letter in response to the tentative determination that his disability had ceased, he specifically presented the claim that his benefits should not be terminated because he was still disabled. This claim was denied by the state agency and its decision was accepted by the SSA.
11
The fact that Eldridge failed to raise with the Secretary his constitutional claim to a pretermination hearing is not controlling.10 As construed in Salfi, § 405(g) requires only that there be a "final decision" by the Secretary with respect to the claim of entitlement to benefits. Indeed, the named appellees in Salfi did not present their constitutional claim to the Secretary. Weinberger v. Salfi, O.T.1974, No. 74-214, App. 11, 17-21. The situation here is not identical to Salfi, for, while the Secretary had no power to amend the statute alleged to be unconstitutional in that case, he does have authority to determine the timing and content of the procedures challenged here. 42 V.S.C. § 405(a). We do not, however, regard this difference as significant. It is unrealistic to expect that the Secretary would consider substantial changes in the current administrative review system at the behest of a single aid recipient raising a constitutional challenge in an adjudicatory context. The Secretary would not be required even to consider such a challenge.
12
As the nonwaivable jurisdictional element was satisfied, we next consider the waivable element. The question is whether the denial of Eldridge's claim to continued benefits was a sufficiently "final" decision with respect to his constitutional claim to satisfy the statutory exhaustion requirement. Eldridge concedes that he did not exhaust the full set of internal-review procedures provided by the Secretary. See 20 CFR §§ 404.910, 404.916, 404.940 (1975). As Salfi recognized, the Secretary may waive the exhaustion requirement if he satisfies himself, at any stage of the administrative process, that no further review is warranted either because the internal needs of the agency are fulfilled or because the relief that is sought is beyond his power to confer. Salfi suggested that under § 405(g) the power to determine when finality has occurred ordinarily rests with the Secretary since ultimate responsibility for the integrity of the administrative program is his. But cases may arise where a claimant's interest in having a particular issue resolved promptly is so great that deference to the agency's judgment is inappropriate. This is such a case.
13
Eldridge's constitutional challenge is entirely collateral to his substantive claim of entitlement. Moreover, there is a crucial distinction between the nature of the constitutional claim asserted here and that raised in Salfi. A claim to a predeprivation hearing as a matter of constitutional right rests on the proposition that full relief cannot be obtained at a postdeprivation hearing. See Regional Rail Reorganization Act Cases, 419 U.S. 102, 156, 95 S.Ct. 335, 365, 42 L.Ed.2d 320 (1974). In light of the Court's prior decisions, see, e. g., 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), Eldridge has raised at least a colorable claim that because of his physical condition and dependency upon the disability benefits, an erroneous termination would damage him in a way not recompensable through retroactive payments.11 Thus, unlike the situation in Salfi, denying Eldridge's substantive claim "for other reasons" or upholding it "under other provisions" at the post-termination stage, 422 U.S., at 762, 95 S.Ct., at 2465, would not answer his constitutional challenge.
14
We conclude that the denial of Eldridge's request for benefits constitutes a final decision for purposes of § 405(g) jurisdiction over his constitutional claim. We now proceed to the merits of that claim.12
III
A.
15
Procedural due process imposes constraints on governmental decisions which deprive individuals of "liberty" or "property" interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment. The Secretary does not contend that procedural due process is inapplicable to terminations of Social Security disability benefits. He recognizes, as has been implicit in our prior decisions, e. g., Richardson v. Belcher, 404 U.S. 78, 80-81, 92 S.Ct. 254, 256-257, 30 L.Ed.2d 231 (1971); Richardson v. Perales, 402 U.S. 389, 401-402, 91 S.Ct. 1420, 1427-1428, 28 L.Ed.2d 842 (1971); Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1372-1373, 4 L.Ed.2d 1435 (1960), that the interest of an individual in continued receipt of these benefits is a statutorily created "property" interest protected by the Fifth Amendment. Cf. Arnett v. Kennedy, 416 U.S. 134, 166, 94 S.Ct. 1633, 1650, 40 L.Ed.2d 15 (Powell, J., concurring in part) (1974); Board of Regents v. Roth, 408 U.S. 564, 576-578, 92 S.Ct. 2701, 2708-2710, 33 L.Ed.2d 548 (1972); Bell v. Burson, 402 U.S., at 539, 91 S.Ct., at 1589; Goldberg v. Kelly, 397 U.S., at 261-262, 90 S.Ct., at 1016-1017. Rather, the Secretary contends that the existing administrative procedures, detailed below, provide all the process that is constitutionally due before a recipient can be deprived of that interest.
16
This Court consistently has held that some form of hearing is required before an individual is finally deprived of a property interest. Wolff v. McDonnell, 418 U.S. 539, 557-558, 94 S.Ct. 2963, 2975-2976, 41 L.Ed.2d 935 (1974). See, e. g. Phillips v. Commissioner of Internal Revenue, 283 U.S. 589, 596-597, 51 S.Ct. 608, 611-612, 75 L.Ed. 1289 (1931). See also Dent v. West Virginia, 129 U.S. 114, 124-125, 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 Comm. v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 646, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). The fundamental requirement of due process is the opportunity to be heard "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). See Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914). Eldridge agrees that the review procedures available to a claimant before the initial determination of ineligibility becomes final would be adequate if disability benefits were not terminated until after the evidentiary hearing stage of the administrative process. The dispute centers upon what process is due prior to the initial termination of benefits, pending review.
17
In recent years this Court increasingly has had occasion to consider the extent to which due process requires an evidentiary hearing prior to the deprivation of some type of property interest even if such a hearing is provided thereafter. In only one case, Goldberg v. Kelly, 397 U.S., at 266-271, 90 S.Ct., at 1019-1022, 25 L.Ed.2d 287, has the Court held that a hearing closely approximating a judicial trial is necessary. In other cases requiring some type of pretermination hearing as a matter of constitutional right the Court has spoken sparingly about the requisite procedures. SniaDach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), involving garnishment of wages, was entirely silent on the matter. In Fuentes v. Shevin, 407 U.S., at 96-97, 92 S.Ct., at 2002-2003, 32 L.Ed.2d 556, the Court said only that in a replevin suit between two private parties the initial determination required something more than an ex parte proceeding before a court clerk. Similarly, Bell v. Burson, supra, at 540, 91 S.Ct., at 1590, 29 L.Ed.2d 90, held, in the context of the revocation of a state-granted driver's license, that due process required only that the prerevocation hearing involve a probable-cause determination as to the fault of the licensee, noting that the hearing "need not take the form of a full adjudication of the question of liability." See also North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 607, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975). More recently, in Arnett v. Kennedy, supra, we sustained the validity of procedures by which a federal employee could be dismissed for cause. They included notice of the action sought, a copy of the charge, reasonable time for filing a written response, and an opportunity for an oral appearance. Following dismissal, an evidentiary hearing was provided. 416 U.S., at 142-146, 94 S.Ct., at 1638-1640.
18
These decisions underscore the truism that " '(d)ue process,' unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances." Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961). "(D)ue process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). Accordingly, resolution of the issue whether the administrative procedures provided here are constitutionally sufficient requires analysis of the governmental and private interests that are affected. Arnett v. Kennedy, supra, 416 U.S., at 167-168, 94 S.Ct., at 1650-1651 (Powell, J., concurring in part); Goldberg v. Kelly, supra, 397 U.S., at 263-266, 90 S.Ct., at 1018-1020; Cafeteria Workers v. McElroy, supra, 367 U.S., at 895, 81 S.Ct., at 1748-1749. More precisely, our prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. See, e. g., Goldberg v. Kelly, supra, 397 U.S., at 263-271, 90 S.Ct., at 1018-1022.
19
We turn first to a description of the procedures for the termination of Social Security disability benefits and thereafter consider the factors bearing upon the constitutional adequacy of these procedures.
B
20
The disability insurance program is administered jointly by state and federal agencies. State agencies make the initial determination whether a disability exists, when it began, and when it ceased. 42 U.S.C. § 421(a).13 The standards applied and the procedures followed are prescribed by the Secretary, see § 421(b), who has delegated his responsibilities and powers under the Act to the SSA. See 40 Fed.Reg. 4473 (1975).
21
In order to establish initial and continued entitlement to disability benefits a worker must demonstrate that he is unable
22
"to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months . . . ." 42 U.S.C. § 423(d)(1)(A).
23
To satisfy this test the worker bears a continuing burden of showing, by means of "medically acceptable clinical and laboratory diagnostic techniques," § 423(d)(3), that he has a physical or mental impairment of such severity that
24
"he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." § 423(d)(2)(A).14
25
The principal reasons for benefits terminations are that the worker is no longer disabled or has returned to work. As Eldridge's benefits were terminated because he was determined to be no longer disabled, we consider only the sufficiency of the procedures involved in such cases.15
26
The continuing-eligibility investigation is made by a state agency acting through a "team" consisting of a physician and a nonmedical person trained in disability evaluation. The agency periodically communicates with the disabled worker, usually by mail in which case he is sent a detailed questionnaire or by telephone, and requests information concerning his present condition, including current medical restrictions and sources of treatment, and any additional information that he considers relevant to his continued entitlement to benefits. CM § 6705.1; Disability Insurance State Manual (DISM) § 353.3 (TL No. 137, Mar. 5, 1975).16
27
Information regarding the recipient's current condition is also obtained from his sources of medical treatment. DISM § 353.4. If there is a conflict between the information provided by the beneficiary and that obtained from medical sources such as his physician, or between two sources of treatment, the agency may arrange for an examination by an independent consulting physician.17 Ibid. Whenever the agency's tentative assessment of the beneficiary's condition differs from his own assessment, the beneficiary is informed that benefits may be terminated, provided a summary of the evidence upon which the proposed determination to terminate is based, and afforded an opportunity to review the medical reports and other evidence in his case file.18 He also may respond in writing and submit additional evidence. Id., § 353.6.
28
The state agency then makes its final determination, which is reviewed by an examiner in the SSA Bureau of Disability Insurance. 42 U.S.C. § 421(c); CM §§ 6701(b), (c).19 If, as is usually the case, the SSA accepts the agency determination it notifies the recipient in writing, informing him of the reasons for the decision, and of his right to seek de novo reconsideration by the state agency. 20 CFR §§ 404.907, 404.909 (1975).20 Upon acceptance by the SSA, benefits are terminated effective two months after the month in which medical recovery is found to have occurred. 42 U.S.C. (Supp. III) § 423(a) (1970 ed., Supp. III).
29
If the recipient seeks reconsideration by the state agency and the determination is adverse, the SSA reviews the reconsideration determination and notifies the recipient of the decision. He then has a right to an evidentiary hearing before an SSA administrative law judge. 20 CFR §§ 404.917, 404.927 (1975). The hearing is nonadversary, and the SSA is not represented by counsel. As at all prior and subsequent stages of the administrative process, however, the claimant may be represented by counsel or other spokesmen. § 404.934. If this hearing results in an adverse decision, the claimant is entitled to request discretionary review by the SSA Appeals Council, § 404.945, and finally may obtain judicial review. 42 U.S.C. § 405(g); 20 CFR § 404.951 (1975).21
30
Should it be determined at any point after termination of benefits, that the claimant's disability extended beyond the date of cessation initially established, the worker is entitled to retroactive payments. 42 U.S.C. § 404. Cf. § 423(b); 20 CFR §§ 404.501, 404.503, 404.504 (1975). If, on the other hand, a beneficiary receives any payments to which he is later determined not to be entitled, the statute authorizes the Secretary to attempt to recoup these funds in specified circumstances. 42 U.S.C. § 404.22
C
31
Despite the elaborate character of the administrative procedures provided by the Secretary, the courts below held them to be constitutionally inadequate, concluding that due process requires an evidentiary hearing prior to termination. In light of the private and governmental interests at stake here and the nature of the existing procedures, we think this was error.
32
Since a recipient whose benefits are terminated is awarded full retroactive relief if he ultimately prevails, his sole interest is in the uninterrupted receipt of this source of income pending final administrative decision on his claim. His potential injury is thus similar in nature to that of the welfare recipient in Goldberg, see 397 U.S., at 263-264, 90 S.Ct., at 1018-1019, the nonprobationary federal employee in Arnett, see 416 U.S., at 146, 94 S.Ct., at 1640, 1641, and the wage earner in Sniadach. See 395 U.S., at 341-342, 89 S.Ct., at 1822-1823.23
33
Only in Goldberg has the Court held that due process requires an evidentiary hearing prior to a temporary deprivation. It was emphasized there that welfare assistance is given to persons on the very margin of subsistence:
34
"The crucial factor in this context a factor not present in the case of . . . virtually anyone else whose governmental entitlements are ended 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." 397 U.S., at 264, 90 S.Ct., at 1018 (emphasis in original).
35
Eligibility for disability benefits, in contrast, is not based upon financial need.24 Indeed, it is wholly unrelated to the worker's income or support from many other sources, such as earnings of other family members, workmen's compensation awards,25 tort claims awards, savings, private insurance, public or private pensions, veterans' benefits, food stamps, public assistance, or the "many other important programs, both public and private, which contain provisions for disability payments affecting a substantial portion of the work force . . . ." Richardson v. Belcher, 404 U.S., at 85-87, 92 S.Ct., at 259 (Douglas, J., dissenting). See Staff of the House Committee on Ways and Means, Report on the Disability Insurance Program, 93d Cong., 2d Sess., 9-10, 419-429 (1974) (hereinafter Staff Report).
36
As Goldberg illustrates, the degree of potential deprivation that may be created by a particular decision is a factor to be considered in assessing the validity of any administrative decisionmaking process. Cf. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The potential deprivation here is generally likely to be less than in Goldberg, although the degree of difference can be overstated. As the District Court emphasized, to remain eligible for benefits a recipient must be "unable to engage in substantial gainful activity." 42 U.S.C. § 423; 361 F.Supp., at 523. Thus, in contrast to the discharged federal employee in Arnett, there is little possibility that the terminated recipient will be able to find even temporary employment to ameliorate the interim loss.
37
As we recognized last Term in Fusari v. Steinberg, 419 U.S. 379, 389, 95 S.Ct. 533, 540, 42 L.Ed.2d 521 (1975), "the possible length of wrongful deprivation of . . . benefits (also) is an important factor in assessing the impact of official action on the private interests." The Secretary concedes that the delay between a request for a hearing before an administrative law judge and a decision on the claim is currently between 10 and 11 months. Since a terminated recipient must first obtain a reconsideration decision as a prerequisite to invoking his right to an evidentiary hearing, the delay between the actual cutoff of benefits and final decision after a hearing exceeds one year.
38
In view of the torpidity of this administrative review process, cf. id., at 383-384, 386, 95 S.Ct., at 536-537, 538, and the typically modest resources of the family unit of the physically disabled worker,26 the hardship imposed upon the erroneously terminated disability recipient may be significant. Still, the disabled worker's need is likely to be less than that of a welfare recipient. In addition to the possibility of access to private resources, other forms of government assistance will become available where the termination of disability benefits places a worker or his family below the subsistence level.27 See Arnett v. Kennedy, supra, 416 U.S., at 169, 94 S.Ct., at 1651-1652 (Powell, J., concurring in part); id., at 201-202, 94 S.Ct., at 1667-1668 (White, J., concurring in part and dissenting in part). In view of these potential sources of temporary income, there is less reason here than in Goldberg to depart from the ordinary principle, established by our decisions, that something less than an evidentiary hearing is sufficient prior to adverse administrative action.
D
39
An additional factor to be considered here is the fairness and reliability of the existing pretermination procedures, and the probable value, if any, of additional procedural safeguards. Central to the evaluation of any administrative process is the nature of the relevant inquiry. See Mitchell v. W. T. Grant Co., 416 U.S. 600, 617, 94 S.Ct. 1895, 1905, 40 L.Ed.2d 406 (1974); Friendly, Some Kind of Hearing, 123 U.Pa.L.Rev. 1267, 1281 (1975). In order to remain eligible for benefits the disabled worker must demonstrate by means of "medically acceptable clinical and laboratory diagnostic techniques," 42 U.S.C. § 423(d)(3), that he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . ." § 423(d)(1)(A) (emphasis supplied). In short, a medical assessment of the worker's physical or mental condition is required. This is a more sharply focused and easily documented decision than the typical determination of welfare entitlement. In the latter case, a wide variety of information may be deemed relevant, and issues of witness credibility and veracity often are critical to the decisionmaking process. Goldberg noted that in such circumstances "written submissions are a wholly unsatisfactory basis for decision." 397 U.S., at 269, 90 S.Ct., at 1021.
40
By contrast, the decision whether to discontinue disability benefits will turn, in most cases, upon "routine, standard, and unbiased medical reports by physician specialists," Richardson v. Perales, 402 U.S., at 404, 91 S.Ct., at 1428, concerning a subject whom they have personally examined.28 In Richardson the Court recognized the "reliability and probative worth of written medical reports," emphasizing that while there may be "professional disagreement with the medical conclusions" the "specter of questionable credibility and veracity is not present." Id., at 405, 407, 91 S.Ct., at 1428, 1430. To be sure, credibility and veracity may be a factor in the ultimate disability assessment in some cases. But procedural due process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions. The potential value of an evidentiary hearing, or even oral presentation to the decisionmaker, is substantially less in this context than in Goldberg.
41
The decision in Goldberg also was based on the Court's conclusion that written submissions were an inadequate substitute for oral presentation because they did not provide an effective means for the recipient to communicate his case to the decisionmaker. Written submissions were viewed as an unrealistic option, for most recipients lacked the "educational attainment necessary to write effectively" and could not afford professional assistance. In addition, such submissions would not provide the "flexibility of oral presentations" or "permit the recipient to mold his argument to the issues the decision maker appears to regard as important." 397 U.S., at 269, 90 S.Ct., at 1021. In the context of the disability-benefits-entitlement assessment the administrative procedures under review here fully answer these objections.
42
The detailed questionnaire which the state agency periodically sends the recipient identifies with particularity the information relevant to the entitlement decision, and the recipient is invited to obtain assistance from the local SSA office in completing the questionnaire. More important, the information critical to the entitlement decision usually is derived from medical sources, such as the treating physician. Such sources are likely to be able to communicate more effectively through written documents than are welfare recipients or the lay witnesses supporting their cause. The conclusions of physicians often are supported by X-rays and the results of clinical or laboratory tests, information typically more amenable to written than to oral presentation. Cf. W. Gellhorn & C. Byse, Administrative Law Cases and Comments 860-863 (6th ed. 1974).
43
A further safeguard against mistake is the policy of allowing the disability recipient's representative full access to all information relied upon by the state agency. In addition, prior to the cutoff of benefits the agency informs the recipient of its tentative assessment, the reasons therefor, and provides a summary of the evidence that it considers most relevant. Opportunity is then afforded the recipient to submit additional evidence or arguments, enabling him to challenge directly the accuracy of information in his file as well as the correctness of the agency's tentative conclusions. These procedures, again as contrasted with those before the Court in Goldberg, enable the recipient to "mold" his argument to respond to the precise issues which the decisionmaker regards as crucial.
44
Despite these carefully structured procedures, amici point to the significant reversal rate for appealed cases as clear evidence that the current process is inadequate. Depending upon the base selected and the line of analysis followed, the relevant reversal rates urged by the contending parties vary from a high of 58.6% For appealed reconsideration decisions to an overall reversal rate of only 3.3%.29 Bare statistics rarely provide a satisfactory measure of the fairness of a decisionmaking process. Their adequacy is especially suspect here since the administrative review system is operated on an open-file basis. A recipient may always submit new evidence, and such submissions may result in additional medical examinations. Such fresh examinations were held in approximately 30% To 40% Of the appealed cases, in fiscal 1973, either at the reconsideration or evidentiary hearing stage of the administrative process. Staff Report 238. In this context, the value of reversal rate statistics as one means of evaluating the adequacy of the pretermination process is diminished. Thus, although we view such information as relevant, it is certainly not controlling in this case.
E
45
In striking the appropriate due process balance the final factor to be assessed is the public interest. This includes the administrative burden and other societal costs that would be associated with requiring, as a matter of constitutional right, an evidentiary hearing upon demand in all cases prior to the termination of disability benefits. The most visible burden would be the incremental cost resulting from the increased number of hearings and the expense of providing benefits to ineligible recipients pending decision. No one can predict the extent of the increase, but the fact that full benefits would continue until after such hearings would assure the exhaustion in most cases of this attractive option. Nor would the theoretical right of the Secretary to recover undeserved benefits result, as a practical matter, in any substantial offset to the added outlay of public funds. The parties submit widely varying estimates of the probable additional financial cost. We only need say that experience with the constitutionalizing of government procedures suggests that the ultimate additional cost in terms of money and administrative burden would not be insubstantial.
46
Financial cost alone is not a controlling weight in determining whether due process requires a particular procedural safeguard prior to some administrative decision. But the Government's interest, and hence that of the public, in conserving scarce fiscal and administrative resources is a factor that must be weighed. At some point the benefit of an additional safeguard to the individual affected by the administrative action and to society in terms of increased assurance that the action is just, may be outweighed by the cost. Significantly, the cost of protecting those whom the preliminary administrative process has identified as likely to be found undeserving may in the end come out of the pockets of the deserving since resources available for any particular program of social welfare are not unlimited. See Friendly, supra, 123 U.Pa.L.Rev., at 1276, 1303.
47
But more is implicated in cases of this type than ad hoc weighing of fiscal and administrative burdens against the interests of a particular category of claimants. The ultimate balance involves a determination as to when, under our constitutional system, judicial-type procedures must be imposed upon administrative action to assure fairness. We reiterate the wise admonishment of Mr. Justice Frankfurter that differences in the origin and function of administrative agencies "preclude wholesale transplantation of the rules of procedure, trial and review which have evolved from the history and experience of courts." FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 143, 60 S.Ct. 437, 441, 84 L.Ed. 656 (1940). The judicial model of an evidentiary hearing is neither a required, nor even the most effective, method of decisionmaking in all circumstances. The essence of due process is the requirement that "a person in jeopardy of serious loss (be given) notice of the case against him and opportunity to meet it." Joint Anti-Fascist Comm. v. McGrath, 341 U.S., at 171-172, 71 S.Ct., at 649. (Frankfurter, J., concurring). All that is necessary is that the procedures be tailored, in light of the decision to be made, to "the capacities and circumstances of those who are to be heard," Goldberg v. Kelly, 397 U.S., at 268-269, 90 S.Ct., at 1021 (footnote omitted), to insure that they are given a meaningful opportunity to present their case. In assessing what process is due in this case, substantial weight must be given to the good-faith judgments of the individuals charged by Congress with the administration of social welfare programs that the procedures they have provided assure fair consideration of the entitlement claims of individuals. See Arnett v. Kennedy, 416 U.S., at 202, 94 S.Ct., at 1667-1668 (White, J., concurring in part and dissenting in part). This is especially so where, as here, the prescribed procedures not only provide the claimant with an effective process for asserting his claim prior to any administrative action, but also assure a right to an evidentiary hearing, as well as to subsequent judicial review, before the denial of his claim becomes final. Cf. Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971).
48
We conclude that an evidentiary hearing is not required prior to the termination of disability benefits and that the present administrative procedures fully comport with due process.
The judgment of the Court of Appeals is
49
Reversed.
50
Mr. Justice STEVENS took no part in the consideration or decision of this case.
51
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL concurs, dissenting.
52
For the reasons stated in my dissenting opinion in Richardson v. Wright, 405 U.S. 208, 212, 92 S.Ct. 788, 791, 31 L.Ed.2d 151 (1972), I agree with the District Court and the Court of Appeals that, prior to termination of benefits, Eldridge must be afforded an evidentiary hearing of the type required for welfare beneficiaries under Title IV of the Social Security Act, 42 U.S.C. § 601 et seq. See Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). I would add that the Court's consideration that a discontinuance of disability benefits may cause the recipient to suffer only a limited deprivation is no argument. It is speculative. Moreover, the very legislative determination to provide disability benefits, without any prerequisite determination of need in fact, presumes a need by the recipient which is not this Court's function to denigrate. Indeed, in the present case, it is indicated that because disability benefits were terminated there was a foreclosure upon the Eldridge home and the family's furniture was repossessed, forcing Eldridge, his wife, and their children to sleep in one bed. Tr. of Oral Arg. 39, 47-48. Finally, it is also no argument that a worker, who has been placed in the untenable position of having been denied disability benefits, may still seek other forms of public assistance.
53
George P. McLAUGHLIN, petitioner, v. Douglas VINZANT, Superintendent, Massachusetts Correctional Institution. No. 75-5671.
54
Former decision, 423 U.S. 1037, 423 U.S. 1037, 96 S.Ct. 573.
55
Facts and opinion, 1 Cir., 522 F.2d 448.
56
Jan. 26, 1976. Petition for rehearing denied.
57
Mr. Justice STEVENS took no part in the consideration or decision of this petition.
1
The program is financed by revenues derived from employee and employer payroll taxes. 26 U.S.C. §§ 3101(a), 3111(a); 42 U.S.C. § 401(b). It provides monthly benefits to disabled persons who have worked sufficiently long to have an insured status, and who have had substantial work experience in a specified interval directly preceding the onset of disability. 42 U.S.C. §§ 423(c)(1)(A) and (B). Benefits also are provided to the worker's dependents under specified circumstances. §§ 402(b)-(d). When the recipient reaches age 65 his disability benefits are automatically converted to retirement benefits. §§ 416(i)(2)(D), 423(a)(1). In fiscal 1974 approximately 3,700,000 persons received assistance under the program. Social Security Administration, The Year in Review 21 (1974).
2
Eldridge originally was disabled due to chronic anxiety and back strain. He subsequently was found to have diabetes. The tentative determination letter indicated that aid would be terminated because available medical evidence indicated that his diabetes was under control, that there existed no limitations on his back movements which would impose severe functional restrictions, and that he no longer suffered emotional problems that would preclude him from all work for which he was qualified. App. 12-13. In his reply letter he claimed to have arthritis of the spine rather than a strained back.
3
The District Court ordered reinstatement of Eldridge's benefits pending its final disposition on the merits.
4
In Goldberg the Court held that the pretermination hearing must include the following elements: (1) "timely and adequate notice detailing the reasons for a proposed termination"; (2) "an effective opportunity (for the recipient) to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally"; (3) retained counsel, if desired; (4) an "impartial" decisionmaker; (5) a decision resting "solely on the legal rules and evidence adduced at the hearing"; (6) a statement of reasons for the decision and the evidence relied on. 397 U.S., at 266-271, 90 S.Ct., at 1019-1022. In this opinion the term "evidentiary hearing" refers to a hearing generally of the type required in Goldberg.
5
The HEW regulations direct that each state plan under the federal categorical assistance programs must provide for pretermination hearings containing specified procedural safeguards, which include all of the Goldberg requirements. See 45 CFR § 205.10(a) (1975); n. 4, supra.
6
The Court of Appeals for the Fifth Circuit, simply noting that the issue had been correctly decided by the District Court in this case, reached the same conclusion in Williams v. Weinberger, 494 F.2d 1191 (1974), cert. pending, No. 74-205.
7
Title 42 U.S.C. § 405(h) provides in full:
"(h) Finality of Secretary's decision.
"The findings and decisions of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under section 41 of Title 28 to recover on any claim arising under this subchapter."
8
Section 405(g) further provides:
Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has his principal place of business, or, if he does not reside or have his principal place of business within any such judicial district, in the United States District Court for the District of Columbia. . . . The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . . ."
9
The other two conditions are (1) that the civil action be commenced within 60 days after the mailing of notice of such decision, or within such additional time as the Secretary may permit, and (2) that the action be filed in an appropriate district court. These two requirements specify a statute of limitations and appropriate venue, and are waivable by the parties. Salfi, 422 U.S., at 763-764, 95 S.Ct., at 2465-2466. As in Salfi no question as to whether Eldridge satisfied these requirements was timely raised below, see Fed.Rules Civ.Proc. 8(c), 12(h)(1), and they need not be considered here.
10
If Eldridge had exhausted the full set of available administrative review procedures, failure to have raised his constitutional claim would not bar him from asserting it later in a district court. Cf. Flemming v. Nestor, 363 U.S. 603, 607, 80 S.Ct. 1367, 1370-1371, 4 L.Ed.2d 1435 (1960).
11
Decisions in different contexts have emphasized that the nature of the claim being asserted and the consequences of deferment of judicial review are important factors in determining whether a statutory requirement of finality has been satisfied. The role these factors may play is illustrated by the intensely "practical" approach which the Court has adopted, Cohen v. Beneficial Ind. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-1226, 93 L.Ed. 1528 (1949), when applying the finality requirements of 28 U.S.C. § 1291, which grants jurisdiction to courts of appeals to review all "final decisions" of the district courts, and 28 U.S.C. § 1257, which empowers this Court to review only "final judgments" of state courts. See, e. g., Harris v. Washington, 404 U.S. 55, 92 S.Ct. 183, 30 L.Ed.2d 212 (1971); Construction Laborers v. Curry, 371 U.S. 542, 549-550, 83 S.Ct. 531, 536, 537, 9 L.Ed.2d 514 (1963); Mercantile Nat. Bank v. Langdeau, 371 U.S. 555, 557-558, 83 S.Ct. 520, 521-522 (1963); Cohen v. Beneficial Ind. Loan Corp., supra, 337 U.S., at 545-546, 69 S.Ct., at 1225-1226. To be sure, certain of the policy considerations implicated in §§ 1257 and 1291 cases are different from those that are relevant here. Compare Construction Laborers, supra, 371 U.S., at 550, 83 S.Ct., at 536-537; Mercantile Nat. Bank, supra, 371 U.S., at 558, 83 S.Ct., at 522, with McKart v. United States, 395 U.S. 185, 193-195, 89 S.Ct. 1657, 1662-1663, 23 L.Ed.2d 194 (1969); L. Jaffe, Judicial Control of Administrative Action 424-426 (1965). But the core principle that statutorily created finality requirements should, if possible, be construed so as not to cause crucial collateral claims to be lost and potentially irreparable injuries to be suffered remains applicable.
12
Given our conclusion that jurisdiction in the District Court was proper under § 405(g), we find it unnecessary to consider Eldridge's contention that notwithstanding § 405(h) there was jurisdiction over his claim under the mandamus statute, 28 U.S.C. § 1361, or the Administrative Procedure Act, 5 U.S.C. § 701 et seq.
13
In all but six States the state vocational rehabilitation agency charged with administering the state plan under the Vocational Rehabilitation Act of 1920, 41 Stat. 735, as amended, 29 U.S.C. § 701 et seq. (1970 ed., Supp. III), acts as the "state agency" for purposes of the disability insurance program. Staff of the House Comm. on Ways and Means, Report on the Disability Insurance Program, 93d Cong., 2d Sess., 148 (1974). This assignment of responsibility was intended to encourage rehabilitation contacts for disabled workers and to utilize the well-established relationships of the local rehabilitation agencies with the medical profession. H.R.Rep.No.1698, 83d Cong., 2d Sess., 23-24 (1954).
14
Work which "exists in the national economy" is in turn defined as "work which exists in significant numbers either in the region where such individual lives or in several regions of the country." § 423(d)(2)(A).
15
Because the continuing-disability investigation concerning whether a claimant has returned to work is usually done directly by the SSA Bureau of Disability Insurance, without any state agency involvement, the administrative procedures prior to the post-termination evidentiary hearing differ from those involved in cases of possible medical recovery. They are similar, however, in the important respect that the process relies principally on written communications and there is no provision for an evidentiary hearing prior to the cutoff of benefits. Due to the nature of the relevant inquiry in certain types of cases, such as those involving self-employment and agricultural employment, the SSA office nearest the beneficiary conducts an oral interview of the beneficiary as part of the pretermination process. SSA Claims Manual (CM) § 6705.2(c).
16
Information is also requested concerning the recipient's belief as to whether he can return to work, the nature and extent of his employment during the past year, and any vocational services he is receiving.
17
All medical-source evidence used to establish the absence of continuing disability must be in writing, with the source properly identified. DISM § 353.4C.
18
The disability recipient is not permitted personally to examine the medical reports contained in his file. This restriction is not significant since he is entitled to have any representative of his choice, including a lay friend or family member, examine all medical evidence. CM § 7314. See also 20 CFR § 401.3(a)(2) (1975). The Secretary informs us that this curious limitation is currently under review.
19
The SSA may not itself revise the state agency's determination in a manner more favorable to the beneficiary. If, however, it believes that the worker is still disabled, or that the disability lasted longer than determined by the state agency, it may return the file to the agency for further consideration in light of the SSA's views. The agency is free to reaffirm its original assessment.
20
The reconsideration assessment is initially made by the state agency, but usually not by the same persons who considered the case originally. R. Dixon, Social Security Disability and Mass Justice 32 (1973). Both the recipient and the agency may adduce new evidence.
21
Unlike all prior levels of review, which are de novo, the district court is required to treat findings of fact as conclusive if supported by substantial evidence. 42 U.S.C. § 405(g).
22
The Secretary may reduce other payments to which the beneficiary is entitled, or seek the payment of a refund, unless the beneficiary is "without fault" and such adjustment or recovery would defeat the purposes of the Act or be "against equity and good conscience." 42 U.S.C. § 404(b). See generally 20 CFR §§ 404.501-404.515 (1975).
23
This, of course, assumes that an employee whose wages are garnisheed erroneously is subsequently able to recover his back wages.
24
The level of benefits is determined by the worker's average monthly earnings during the period prior to disability, his age, and other factors not directly related to financial need, specified in 42 U.S.C. § 415 (1970 ed., Supp. III). See § 423(a)(2).
25
Workmen's compensation benefits are deducted in part in accordance with a statutory formula. 42 U.S.C. § 424a (1970 ed., Supp. III); 20 CFR § 404.408 (1975); see Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971).
26
Amici cite statistics compiled by the Secretary which indicate that in 1965 the mean income of the family unit of a disabled worker was $3,803, while the median income for the unit was $2,836. The mean liquid assets i. e., cash, stocks, bonds of these family units was $4,862; the median was $940. These statistics do not take into account the family unit's nonliquid assets i. e., automobile, real estate, and the like. Brief for AFL-CIO et al. as Amici Curiae App. 4a. See n.29, infra.
27
Amici emphasize that because an identical definition of disability is employed in both the Title II Social Security Program and in the companion welfare system for the disabled, Supplemental Security Income (SSI), compare 42 U.S.C. § 423(d)(1) with § 1382c(a)(3) (1970 ed., Supp. III), the terminated disability-benefits recipient will be ineligible for the SSI Program. There exist, however, state and local welfare programs which may supplement the worker's income. In addition, the worker's household unit can qualify for food stamps if it meets the financial need requirements. See 7 U.S.C. §§ 2013(c), 2014(b); 7 CFR § 271 (1975). Finally, in 1974, 480,000 of the approximately 2,000,000 disabled workers receiving Social Security benefits also received SSI benefits. Since financial need is a criterion for eligibility under the SSI program, those disabled workers who are most in need will in the majority of cases be receiving SSI benefits when disability insurance aid is terminated. And, under the SSI program, a pretermination evidentiary hearing is provided, if requested. 42 U.S.C. § 1383(c) (1970 ed., Supp. III); 20 CFR § 416.1336(c) (1975); 40 Fed.Reg. 1512 (1975); see Staff Report 346.
28
The decision is not purely a question of the accuracy of a medical diagnosis since the ultimate issue which the state agency must resolve is whether in light of the particular worker's "age, education, and work experience" he cannot "engage in any . . . substantial gainful work which exists in the national economy . . . ." 42 U.S.C. § 423(d)(2)(A). Yet information concerning each of these worker characteristics is amenable to effective written presentation. The value of an evidentiary hearing, or even a limited oral presentation, to an accurate presentation of those factors to the decisionmaker does not appear substantial. Similarly, resolution of the inquiry as to the types of employment opportunities that exist in the national economy for a physically impaired worker with a particular set of skills would not necessarily be advanced by an evidentiary hearing. Cf. K. Davis, Administrative Law Treatise § 7.06, at 429 (1958). The statistical information relevant to this judgment is more amenable to written than to oral presentation.
29
By focusing solely on the reversal rate for appealed reconsideration determinations amici overstate the relevant reversal rate. As we indicated last Term in Fusari v. Steinberg, 419 U.S. 379, 383 n. 6, 95 S.Ct. 533, 536-537, 42 L.Ed.2d 521 (1975), in order fully to assess the reliability and fairness of a system of procedure, one must also consider the overall rate of error for all denials of benefits. Here that overall rate is 12.2%. Moreover, about 75% Of these reversals occur at the reconsideration stage of the administrative process. Since the median period between a request for reconsideration review and decision is only two months, Brief for AFL-CIO et al. as Amici Curiae App. 4a, the deprivation is significantly less than that concomitant to the lengthier delay before an evidentiary hearing. Netting out these reconsideration reversals, the overall reversal rate falls to 3.3%. See Supplemental and Reply Brief for Petitioner 14.
| 12
|
424 U.S. 295
96 S.Ct. 910
47 L.Ed.2d 1
ALAMO LAND & CATTLE CO., INC., Petitioner,v.State of ARIZONA.
No. 74-125.
Argued Oct. 14, 15, 1975.
Decided Feb. 24, 1976.
Syllabus
In 1962 Arizona, as lessor, and petitioner, as lessee, executed a 10-year grazing lease of certain tracts of land which had been granted to Arizona to be held in trust under the New Mexico-Arizona Enabling Act. In 1966 the United States filed a condemnation complaint in connection with a flood control dam and reservoir which included the leased tracts. In allocating the stipulated compensation payable by the United States for the tracts the District Court awarded Arizona a certain amount for its fee interest and petitioner one amount for the improvements and another amount for "its leasehold interest at the time of taking and its reasonable prospective leasehold interest." The Court of Appeals, while recognizing that petitioner was entitled to compensation for the improvements, and finding it unnecessary to determine petitioner's rights based upon the provisions of the lease or upon state law, held that under the Enabling Act Arizona, as trustee, had no power to grant a compensable leasehold interest and that petitioner therefore never acquired a property right for which it is entitled to compensation. Held:
1. Nothing in the Enabling Act, apart, possibly, from the extent it may incorporate Arizona law by reference, prevents the usual application of Fifth Amendment protection of the outstanding leasehold interest whereby the holder of such an interest is entitled to just compensation for the value of that interest when it is taken upon condemnation by the United States. Pp. 300-308.
2. To be determined on remand are (1) whether, under state law and the provisions of the lease, petitioner could not possess a compensable leasehold interest upon the federal condemnation; (2) if petitioner did possess such an interest, how it is properly to be evaluated and calculated (with the subsidiary questions of the relevance of possible lease renewals and of possible value additions by reason of petitioner's development of adjoining properties); and (3) if that interest proves to be substantial, whether it is permissible to find from that fact a violation of the Enabling Act's requirement that a lease, when offered, shall be appraised at its "true value" and be given at not less than that value. Pp. 308-311.
9 Cir., 495 F.2d 12, reversed and remanded.
J. Gordon Cook, Phoenix, Ariz., for petitioner.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This case presents an issue of federal condemnation law as it relates to an outstanding lease of trust lands that, we are told, affects substantial acreage in our Southwestern and Western States.
2
* Under § 241 of the New Mexico-Arizona Enabling Act, 36 Stat. 572 (1910), specified sections of every township in the then proposed State were granted to Arizona "for the support of common schools." By § 282 of the same Act, 36 Stat. 574, as amended by the Act of June 5, 1936, c. 517, 49 Stat. 1477, and by the Act of June 2, 1951, 65 Stat. 51, the lands transferred "shall be by the said State held in trust, to be disposed of in whole or in part only in manner as herein provided and for the several objects specified . . . and . . . the . . . proceeds of any of said lands shall be subject to the same trusts as the lands producing the same." Arizona, by its Constitution, Art. 10, § 1,3 accepted the lands so granted and its trusteeship over them.
3
Among the lands constituting the grant to Arizona were two parcels herein referred to as Tract 304 and Tract 305, respectively.4 On February 8, 1962, Arizona, as lessor, and petitioner Alamo Land and Cattle Company, Inc. (Alamo), as lessee, executed a grazing lease of these tracts for the 10-year period ending February 7, 1972. App. 6-14. By Arizona statute, Ariz.Rev.Stat.Ann. 37-281D (1974), incorporated by general reference into the lease, App. 7, Alamo may not use the lands for any purpose other than grazing.
4
On May 31, 1966, while the two tracts were subject to the grazing lease and were utilized as part of Alamo's larger operating cattle ranch, the United States filed a complaint in condemnation in the United States District Court for the District of Arizona in connection with the establishment of a flood control dam and reservoir at a site on the Bill Williams River. The tracts in their entirety were among the properties that were the subject of the complaint in condemnation. The District Court duly entered the customary order for delivery of possession.5
5
Thereafter, the United States and Arizona and, separately, the United States and Alamo, stipulated that "the full just compensation" payable by the United States "for the taking of said property, together with all improvements thereon and appurtenances thereunto belonging" was $48,220 for Tract 304 and $70,400 for Tract 305, and thus a total of $118,620 for the two. 1 Record 156, 162.6
6
At a distribution hearing held to determine the proper allocation of the compensation amounts, the only parties claiming an interest in the awards for the two tracts were respondent Arizona, asserting title through the federal grants to it, and petitioner Alamo, asserting a compensable leasehold interest in the lands and a compensable interest in the improvements thereon. The State conceded that Alamo was entitled to receive the value of the improvements, but contested Alamo's right, as lessee, to participate in the portion of the award allocated to land value. The District Court, with an unreported opinion, App. 1-5, awarded Arizona $57,970 for its fee interest, and awarded Alamo $3,600 for the improvements and $57,050 for "its leasehold interest at the time of taking, and its reasonable prospective leasehold interest." 1 Record 227-228. On appeal, the United States Court of Appeals for the Ninth Circuit, while recognizing that Alamo was entitled to compensation for the improvements, held that under the Enabling Act Arizona "had no power to grant a compensable property right to Alamo," and that "Alamo therefore never acquired a property right for which it is entitled to compensation." United States v. 2,562.92 Acres of Land, 495 F.2d 12, 14 (1974). The Court of Appeals thus reversed the judgment of the District Court insofar as it concerned the leasehold interests. It remanded the cause for the entry of a new judgment in accordance with its opinion. Id., at 15. Because the Ninth Circuit's decision appeared to implicate this Court's decision in Lassen v. Arizona ex rel. Arizona Highway Dept., 385 U.S. 458, 87 S.Ct. 584, 17 L.Ed.2d 515 (1967), and because it was claimed to be in conflict with Nebraska v. United States, 164 F.2d 866 (CA8 1947), cert. denied, 334 U.S. 815, 68 S.Ct. 1070, 92 L.Ed. 1745 (1948), we granted Alamo's petition for certiorari. Alamo Land & Cattle Co., Inc. v. Arizona, 420 U.S. 971, 95 S.Ct. 1390, 43 L.Ed.2d 650 (1975).
II
7
The Lassen case was an action instituted by the Arizona Highway Department to prohibit the application by the State Land Commissioner of rules governing the acquisition of rights-of-way and material sites in federally donated lands held by Arizona in trust pursuant to the provisions of the Enabling Act. What was involved, therefore, was the acquisition of interests in trust lands by the State itself. The Supreme Court of Arizona held that it could be presumed conclusively that highways constructed across trust lands always enhanced the value of the remainder in amounts at least equal to the value of the areas taken and therefore refused to order the Highway Department to compensate the trust. State v. Lassen, 99 Ariz. 161, 407 P.2d 747 (1965). This Court unanimously reversed. In so doing, it observed that the more recent federal grants to newly admitted States, including Arizona, "make clear that the United States has a continuing interest in the administration of both the lands and the funds which derive from them." 385 U.S., at 460, 87 S.Ct., at 585.
8
The Court read § 28 of the Enabling Act with particularity. It emphasized the Act's requirements that trust lands be sold or leased only to " 'the highest and best bidder' "; that no lands be sold for less than their appraised value; that disposal of trust lands be " 'only in manner as herein provided' "; that disposition in any other way " 'shall be deemed a breach of trust' "; and that every sale or lease " 'not made in substantial conformity with the provisions of this Act shall be null and void.' " 385 U.S., at 461-462, 87 S.Ct., at 586. The Court then examined the purposes of the Act and concluded that the grant "was plainly expected to produce a fund, accumulated by sale and use of the trust lands, with which the State could support the public institutions designated by the Act." Id., at 463, 87 S.Ct., at 587. Sales and leases were intended. The "central problem" was "to devise constraints which would assure that the trust received in full fair compensation for trust lands." Ibid. The Court concluded, for reasons stated in the opinion, that the Act's procedural restrictions did not apply when the State itself sought trust lands for its highway program.
9
The Court then turned to the standard of compensation Arizona must employ to recompense the trust for the interests the State acquired. It concluded that the terms and purposes of the grant did not permit Arizona to diminish the actual monetary compensation payable to the trust by the amount of any enhancement in the value of remaining trust lands. The Court emphasized that the Enabling Act "unequivocally demands both that the trust receive the full value of any lands transferred from it and that any funds received be employed only for the purposes for which the land was given." Id., at 466, 87 S.Ct., at 588. It again stressed the requirements of the Act and noted that "these restrictions in combination indicate Congress' concern both that the grants provide the most substantial support possible to the beneficiaries and that only those beneficiaries profit from the trust." Id., at 467, 87 S.Ct., at 589. All this was confirmed by the background and legislative history of the Enabling Act. Accordingly, it held that even where the State itself is the acquisitor, the Act's designated beneficiaries were to derive the full benefit of the grant. Thus, "Arizona must actually compensate the trust in money for the full appraised value of any material sites or rights-of-way which it obtains on or over trust lands." Id., at 469, 87 S.Ct., at 590.7 (footnotes omitted). This standard, it was said, "most consistently reflects the essential purposes of the grant." Id., at 470, 87 S.Ct., at 590.
10
Much of what was said in Lassen had also been said, several decades earlier, in Ervien v. United States, 251 U.S. 41, 40 S.Ct. 75, 64 L.Ed. 128 (1919), when the provisions of the same Enabling Act were under consideration in a federal case from New Mexico. The Court's concern for the integrity of the conditions imposed by the Act, therefore, has long been evident.
11
But to say, as the Court did in Ervien and in Lassen, that the trust is to receive the full value of any lands transferred from it is not to say that the Act requires, in every Arizona case where a leasehold is outstanding at the time of the federal condemnation, that the trust is to receive the entire then value of the land and the possessor of the leasehold interest is to receive nothing whatsoever. What the Act requires and we think that this is clear from Ervien and Lassen is that the trust is to receive, at the time of its disposition of any interest in the land, the then full value of the particular interest which is being dispensed.
12
It has long been established that the holder of an unexpired leasehold interest in land is entitled, under the Fifth Amendment,8 to just compensation for the value of that interest when it is taken upon condemnation by the United States. United States v. Petty Motor Co., 327 U.S. 372, 66 S.Ct. 596, 90 L.Ed. 729 (1946); A. W. Duckett & Co. v. United States, 266 U.S. 149, 45 S.Ct. 38, 69 L.Ed. 216 (1924). See United States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311 (1945); Almota Farmers Elevator & Warehouse Co. v. United States, 409 U.S. 470, 93 S.Ct. 791, 35 L.Ed.2d 1 (1973); 2 P. Nichols, Eminent Domain § 5.23 (Rev.3d ed. 1975); 4 id. § 12.42(1). It would therefore seem to follow that when a lease of trust land is made, the trust must receive from the lessee the then fair rental value of the possessory interest transferred by the lease, and that upon a subsequent condemnation by the United States, the trust must receive the then full value of the reversionary interest that is subject to the outstanding lease, plus, of course, the value of the rental rights under the lease. The trust should not be entitled, in addition to all this, to receive the compensable value, if any, of the leasehold interest. That, if it exists and if the lease is valid, is the lessee's. See State ex rel. La Prade v. Carrow, 57 Ariz. 429, 433-434, 114 P.2d 891, 893 (1941).
13
Ordinarily, a leasehold interest has a compensable value whenever the capitalized then fair rental value for the remaining term of the lease, plus the value of any renewal right, exceeds the capitalized value of the rental the lease specifies. The Court has expressed it this way:
14
"The measure of damages is the value of the use and occupancy of the leasehold for the remainder of the tenant's term, plus the value of the right to renew . . ., less the agreed rent which the tenant would pay for such use and occupancy." United States v. Petty Motor Co., 327 U.S., at 381, 66 S.Ct., at 601.
15
See Almota Farmers Elevator & Warehouse Co. v. United States, supra. A number of factors, of course, could operate to eliminate the existence of compensable value in the leasehold interest. Presumably, this would be so if the Enabling Act provided, as the New Mexico-Arizona Act does not, that any lease of trust land was revocable at will by the State, or if it provided that, upon sale or condemnation of the land, no compensation was payable to the lessee. The State, of course, may require that a provision of this kind be included in the lease. See United States v. Petty Motor Co., 327 U.S., at 375-376, 66 S.Ct., at 598-599, and n. 4; see also 4 Nichols, supra, § 12.42(1), pp. 12-488 and 12-489.
16
A difference between the rental specified in the lease and the fair rental value plus the renewal right could arise either because the lease rentals were set initially at less than fair rental value, or because during the term of the lease the value of the land, and consequently its fair rental value, increased. The New Mexico-Arizona Enabling Act has a protective provision against the initial setting of lease rentals at less than fair rental value. This is specifically prohibited by § 28. The prohibition is given bite by the further very drastic provision that a lease not made in substantial conformity with the Act "shall be null and void." Thus, if the lease of trust lands calls for a rental of substantially less than the land's then fair rental value, it is null and void and the holder of the claimed leasehold interest could not be entitled to compensation upon condemnation.
17
On the other hand, the fair rental value of the land may increase during the term of the lease.9 If this takes place, the increase in fair rental value operates to create a compensable value in the leasehold interest. It is at this point, we feel, that the Court of Appeals erred when it held that the Act by its terms, and apart from the extent to which it incorporated Arizona law by reference, barred Arizona from leasing trust land in any manner that might result in the lessee's becoming constitutionally entitled to just compensation for the value of its unexpired leasehold interest at the time of the federal condemnation. Instead, the Act is completely silent in this respect.
III
18
Arizona, however, suggests that this usually acceptable analysis may not be applied under the New Mexico-Arizona Enabling Act. It argues, as the Court of Appeals held, 495 F.2d at 14, that under that Act the State, as trustee, has no power to grant a compensable property interest to Alamo, as lessee. It bases this thesis on the Enabling Act's provision in § 28 that no "mortgage or other encumbrance" of trust land shall be valid, and it claims that a lease is an encumbrance, citing among other cases, Hecketsweiler v. Parrett, 185 Ore. 46, 52, 200 P.2d 971, 974 (1948) (agreement to sell real estate free and clear of encumbrances), and Hartman v. Drake, 166 Neb. 87, 91, 87 N.W.2d 895, 898 (1958) (partition). One seemingly apparent and complete answer to this argument is that § 28 goes on to authorize specifically a lease of trust land for grazing purposes for a term of 10 years or less, and further provides that a leasehold, before being offered, shall be appraised at "true value." See n. 2, supra. These provisions thus plainly contemplate the possibility of a lease of trust land and, in so doing, intimate that such a lease is not a prohibited "mortgage or other encumbrance."10 Furthermore, Arizona statutes in other contexts specifically protect the lessee's interest. Ariz.Rev.Stat.Ann. §§ 41-511.06, 37-291 (1974). See Ehle v. Tenney Trading Co., 56 Ariz. 241, 107 P.2d 210 (1940). To this the State responds that, while a lease is possible, it falls short of being a compensable interest when the property is sold because the Act prohibits the sale unless the trust receives the full appraised value of the land. The argument assumes that such compensation is to be measured by the entire land value despite the presence of the outstanding lease. That approach overlooks the actuality of a two-step disposition of interests in the land, the first at the time of the granting of the lease, and the second at the time of the condemnation. Full appraised value is to be determined and measured at the times of disposition of the respective interests, and if the State receives those values at those respective times, the demands of the Enabling Act are met. The State's argument would serve to convert and downgrade a 10-year grazing lease, fully recognized and permitted by the Act, into a lease terminable at will or into one automatically terminated whenever the State sells the property or it is condemned. The lessee is entitled to better treatment than this if neither the Enabling Act nor the lease contains any such provision. We have noted above that the Act or the lease, or both, could provide for that result. The Act, however, does not specifically so provide. Whether either the Act or the lease does so through incorporation of state law is an issue not addressed by the Court of Appeals, and it is to be considered on remand. We merely note that the fact that it is within Arizona's power to insert a condemnation clause in a lease it makes of trust land does not mean that the State may claim the same result when its lease contains no such clause.
IV
19
Alamo suggests that the Court of Appeals' decision is at odds with the above-cited case of Nebraska v. United States, 164 F.2d 866 (CA8 1947), cert. denied, 334 U.S. 815, 68 S.Ct. 1070, 92 L.Ed. 1745 (1948). There, in the face of a totality claim like that made by Arizona here, the Eighth Circuit ruled that trust lands in Nebraska were to be treated as any other property and that condemnation proceeds were subject to allocation between the State as trustee and the holder of an outstanding agricultural lease. The Nebraska Enabling Act of April 19, 1864, c. 59, 13 Stat. 47, was an earlier edition of this type of statute, and was adopted more than four decades before the New Mexico-Arizona Act. It did not contain the detailed restrictive provisions that appear in the 1910 Act and that were developed and utilized as passing years and experience demonstrated a need for them. Because of this, one may say, as Arizona does, that the Nebraska case is distinguishable from the present one. But the decision is not devoid of precedential value, for it is consistent with our analysis of the New Mexico-Arizona Act in its recognition of the possibility of a compensable leasehold interest in trust land upon federal condemnation, and it demonstrates that the existence of that interest is not incompatible with the trust land concept. See also United States v. 78.61 Acres of Land, 265 F.Supp. 564 (Neb.1967), a post-Lassen case ; United States v. 40,021.64 Acres of Land, 387 F.Supp. 839, 848-849 (N.M.1975).
V
20
Finally, the Court of Appeals observed, but only in passing, 495 F.2d, at 14, that the lease recited that it was made subject to the laws of Arizona; that if the State "relinquished" the property to the United States, the lease "shall be null and void as it may pertain to the land so relinquished"; and that no provision of the lease "shall create any vested right in the lessee." The court also observed, ibid., that Ariz.Rev.Stat.Ann. §§ 37-242 and 37-29311 restrict a lessee's participation in the proceeds of a sale of public land to the value of improvements. Having made these observations, however, the court thereupon concluded that it did not find it necessary "to determine the rights of Alamo based upon these lease provisions or the state law." 495 F.2d, at 14.
21
The significance of the provisions referred to and of the cited statutes will now be for determination upon remand. We note only that the land in question was condemned and thus does not appear to have been technically "relinquished" by Arizona to the United States; that we are not at all sure that there is language of restriction in §§ 37-242 and 37-293; and that Ariz.Rev.Stat.Ann. §§ 37-288 and 37-290 respectively permit forfeiture for violation of the conditions of a lease or for nonpayment of rent, and cancellation of a lease if the leased land is reclassified to a higher use, and thus could explain the lease's provision against vesting in the technical sense that it is not subject to any contingency whatsoever.
22
To repeat: we hold that nothing in the Enabling Act apart, possibly, from the extent it may incorporate Arizona law by reference, prevents the usual application of Fifth Amendment protection of the outstanding leasehold interest. We leave for determination on remand the following: (1) whether, under state law and the lease provisions, Alamo could not possess a compensable leasehold interest upon the federal condemnation; (2) if Alamo did possess such an interest, how it is properly to be evaluated and calculated (with the subsidiary questions of the relevance of possible lease renewals12 and of possible value additions by reason of Alamo's development of adjoining properties, cf. United States v. Fuller, 409 U.S. 488, 93 S.Ct. 801, 35 L.Ed.2d 16 (1973)); and, (3) if that interest proves to be substantial, whether it is permissible to find from that fact a violation of the Enabling Act's requirement that a lease, when offered, "shall be appraised at (its) true value" and be given at not less than that value.
23
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
24
It is so ordered.
25
Reversed and remanded.
26
Mr. Justice STEVENS took no part in the consideration or decision of this case.
27
Mr. Justice WHITE, with whom Mr. Justice BRENNAN joins, dissenting.
28
The question in this case is whether, under § 28 of the New Mexico-Arizona Enabling Act, 36 Stat. 574, the State of Arizona had the power to grant to petitioner a compensable leasehold interest in the property in issue. The question is solely one of statutory construction. As I agree with the Court of Appeals for the Ninth Circuit that Congress intended that lessees of land covered by the Act should acquire a compensable interest in leased land only to the extent of "improvements . . . placed thereon by such lessee," United States v. 2,562.92 Acres of Land, 495 F.2d 12, 14 (1974), I dissent.
29
The Act states expressly, with respect to the lands involved here, that "no mortgage or other encumbrance of the said lands . . . shall be valid in favor of any person or for any purpose or under any circumstances whatsoever." A lease, if not terminable at will by the State or terminable automatically upon sale or condemnation, is clearly an "encumbrance." 7 G. Thompson, Real Property § 3183, p. 277 (1962); 2 Bouvier's Law Dictionary 1530 (8th ed. 1914). A lease not so terminable is, therefore expressly prohibited by the Act. The majority opinion, however, finds implicit in the Act an exception to the express ban on encumbrances in the case of leases for terms of 10 years or less. It points to the fact that 10-year leases of school trust lands are expressly permitted by the Act and states that to treat a lease as an "encumbrance" under the circumstances would be to "downgrade a 10-year grazing lease, fully recognized and permitted by the Act, into a lease terminable at will or into one automatically terminated whenever the State sells the property or it is condemned." Ante, at 307. Treating the lease as an encumbrance would certainly have the effect which the majority says it would. The majority does not disclose, however, why such an effect is contrary to the intent of the Act. Apparently, it simply finds illogical the notion that a lease could be terminable on sale or condemnation and still be a "10-year" lease, notwithstanding the fact that treating 10-year leases as being so terminable is the only way to square them with the Act's unqualified ban on encumbrances.
30
It is Congress' policy, however, and not our own which we must apply to the Act; and Congress' prior statutes governing leases by States of school trust lands granted to them by the United States strongly support the proposition that Congress viewed an express statutory provision permitting leases of such land for a term of years as entirely consistent with provisions making such leases terminable at will or by sale or condemnation. In 1888 Congress provided, with respect to school trust lands granted to Wyoming, that the lands could be leased for 5-year periods but that such leases could be annulled at will by the Secretary of the Interior. 25 Stat. 393. Of far more significance to this case was Congress' treatment of the lands granted to Oklahoma the State to enter the Union most recently prior to the entry of Arizona and New Mexico in the Oklahoma Enabling Act. C. 3335, 34 Stat. 267. In that Act, Congress expressly provided Oklahoma with the authority to lease school trust lands for 10-year periods while also clearly providing that upon sale of the lands during the period of the lease, the lessee would receive only the value of its improvements. That Act states with respect to sales of lands subject to a lease that "preference right to purchase at the highest bid (is) given to the lessee at the time of such sale," id., at 274 (emphasis added); and then provides:
31
"(I)n case the leaseholder does not become the purchaser, the purchaser at said sale shall, under such rules and regulations as the legislature may prescribe, pay to or for the leaseholder the appraised value of . . . improvements, and to the State the amount bid for said lands, exclusive of the appraised value of improvements . . . ." Ibid. (emphasis added).
32
The Oklahoma Enabling Act thus clearly provides for the result which the majority finds so illogical and which it declines for that reason alone to attribute to Congress under the New Mexico-Arizona Enabling Act passed only four years later. Moreover, in the single piece of legislative history shedding any light on the relevant portion of the Act, the Senate sponsor of the Act Senator Beveridge spoke approvingly of the restrictions placed on Oklahoma in dealing with school trust lands granted to it in the Oklahoma Enabling Act and indicated his belief that the restrictions on Arizona and New Mexico were more stringent. He stated:
33
"We took the position (in drafting the Act) that the United States owned this land, and in creating these States we were giving the lands to the States for specific purposes, and that restrictions should be thrown about it which would assure its being used for those purposes."
34
"We have thrown conditions around land grants in several States heretofore, notably in the case of Oklahoma, but not so thorough and complete as this." 45 Cong.Rec. 8227 (1910).
35
The Oklahoma Enabling Act prevents the creation of a compensable interest in a lessee of school trust lands except to the extent of improvements placed thereon by him. A literal application of the New Mexico-Arizona Enabling Act at issue here reaches the same result. The latter Act, passed only four years after the Oklahoma Enabling Act, had purposes similar to those of the former. I cannot but conclude that it should also be construed to prevent the creation of a compensable interest in leaseholds of school trust lands.
36
Congress' reasons for so limiting the rights of leaseholders is easily discernible from the Act and its legislative history. Congress anticipated that the value of the school trust lands would increase over time and it intended that the schools, not leaseholders, to benefit from this increase. Pursuing this end, the Act set a minimum sales price for school trust lands of $3 per acre, 36 Stat. 574, the House committee report explaining:
37
"The bill fixes a minimum price at which the lands granted for educational purposes subject to sale may be sold. . . .
38
"It is recognized by the committee as well as by other earnest advocates of a minimum price, that practically none of these lands are worth now anything like the minimum price fixed. . . . It is believed, however, that the advance of science, the extension of public and private irrigation projects, and the tendency toward the higher development of smaller holdings will, in the case of Arizona and New Mexico, as in the case of other States, result in a sure, although possibly slow, increase of land values.
39
"The educational lands which are subject to sale would probably not bring on the market now much more than 25 cents an acre, but if the history of other states in which minimum prices, which at the time were considered prohibitive, were fixed shall be repeated in Arizona and New Mexico, it is of the utmost importance that some restriction be placed upon the sale of these lands.
40
"The experience of other States and the importance of fixing a minimum selling price for educational lands is indicated in the following extract from a letter from former Secretary of the Interior Garfield addressed to the chairman of the committee in the last Congress:
41
" 'The history of the public-land States in the matter of the disposal of granted school lands has convinced me that those States which have a minimum price fixed on their lands granted for educational purposes get a much larger return from their lands. I am informed that most States with no minimum have not disposed of their lands to the best advantage, thus seriously failing to derive the full benefit to which the schools are entitled. The States of North and South Dakota, Montana, Wyoming, Idaho, and Washington have a $10 minimum fixed on their lands, and I am informed that none of these States, unless it is Wyoming, feels that this high minimum is harmful.
42
" 'On the contrary, I find that officials of these States are zealous and proud of the splendid school funds which they are creating from the sale of school lands. North Dakota, which a few years ago seemed to contain immense areas of poor land, is, I am informed, obtaining in many cases $15 or $20 per acre for its school sections. Colorado seems to have an exceedingly low minimum, $2.50; and nevertheless it has administered its land grants unusually well, securing from them very large returns, both from sales and from leases. For these reasons, I urge that a minimum price be fixed for these proposed new States. They will be able to lease most of their land, if it is not worth to-day the minimum price, and will thereby obtain an income.' " H.R.Rep. No. 152, 61st Cong., 2d Sess., 2-3 (1910).
43
If leases were permitted to encumber school trust lands at a time when they were worth less than the minimum sales price then when the land rose in value as Congress anticipated it would and was sold for the minimum price or more, the State would have to give part of such sales price to the lessee. Such a result is utterly irreconcilable with the reasons for setting minimum sales prices. Plainly, Congress intended the school trust to receive the full sales price and to prevent the States from disposing of the lands in any fashion which would result in its receiving any less. Lessees were to receive none of the proceeds of sale of the land itself even if the land had appreciated in value subsequent to the creation of the lease.
44
To make its purpose even clearer, Congress, in dealing with the very question of whether the lessee should share in the proceeds when lands subject to the lease are sold, provided:
45
"Nothing herein contained shall prevent . . . (4) the Legislature of the State of Arizona from providing by proper laws for the protection of lessees of said lands, whereby such lessees shall be protected in their rights to their improvements (including water rights) in such manner that in case of lease or sale of said lands to other parties the former lessee shall be paid by the succeeding lessee or purchaser the value of such improvements and rights placed thereon by such lessee." 65 Stat. 52.
46
The Act provides for no other kind of compensation to the lessee of lands sold. Under the majority opinion a lessee could, if the value of the lands increased after the lease was entered into, and if the lease had not expired at the time of any sale or condemnation, receive a portion of the sale or condemnation price over and above the value of any improvements. In Lassen v. Arizona ex rel. Arizona Highway Dept., 385 U.S. 458, 466, 87 S.Ct. 584, 588, 17 L.Ed.2d 515 (1967), we said that Act "unequivocally demands . . . that the trust receive the full value of lands transferred from it." The majority now construes the Act to authorize a result contrary to the Act's "unequivocal demand" and, accordingly, I dissent.
1
"Sec. 24. That in addition to sections sixteen and thirty-six, heretofore reserved for the Territory of Arizona, sections two and thirty-two in every township in said proposed State not otherwise appropriated at the date of the passage of this Act are hereby granted to the said State for the support of common schools . . . ."
2
"Sec. 28. That it is hereby declared that all lands hereby granted, including those which, having been heretofore granted to the said Territory, are hereby expressly transferred and confirmed
to the said State, shall be by the said State held in trust, to be disposed of in whole or in part only in manner as herein provided and for the several objects specified in the respective granting and confirmatory provisions, and that the natural products and money proceeds of any of said lands shall be subject to the same trusts as the lands producing the same.
"Disposition of any of said lands, or of any money or thing of value directly or indirectly derived therefrom, for any object other than for which such particular lands, or the lands from which such money or thing of value shall have been derived, were granted or confirmed, or in any manner contrary to the provisions of this Act, shall be deemed a breach of trust.
"No mortgage or other encumbrance of the said lands, or any part thereof, shall be valid in favor of any person or for any purpose or under any circumstances whatsoever. . . . Nothing herein contained shall prevent: (1) the leasing of any of the lands referred to in this section, in such manner as the Legislature of the State of Arizona may prescribe, for grazing, agricultural, commercial, and homesite purposes, for a term of ten years or less; . . . or (4) the Legislature of the State of Arizona from providing by proper laws for the protection of lessees of said lands, whereby such lessees shall be protected in their rights to their improvements (including water rights) in such manner that in case of lease or sale of said lands to other parties the former lessee shall be paid by the succeeding lessee or purchaser the value of such improvements and rights placed thereon by such lessee.
"All lands, leaseholds, timber, and other products of land, before being offered, shall be appraised at their true value, and no sale or other disposal thereof shall be made for a consideration less than the value so ascertained . . . .
"No lands shall be sold for less than (their appraised value) . . . .
"A separate fund shall be established for each of the several objects for which the said grants are hereby made or confirmed, and whenever any moneys shall be in any manner derived from any of said land the same shall be deposited by the state treasurer in the fund corresponding to the grant under which the particular
land producing such moneys was by this Act conveyed or confirmed. No moneys shall ever be taken from one fund for deposit in any other, or for any object other than that for which the land producing the same was granted or confirmed. . . .
"Every sale, lease, conveyance, or contract of or concerning any of the lands hereby granted or confirmed, or the use thereof or the natural products thereof, not made in substantial conformity with the provisions of this Act shall be null and void, any provision of the constitution or laws of the said State to the contrary notwithstanding."
3
"All lands expressly transferred and confirmed to the State by the provisions of the Enabling Act approved June 20, 1910, including all lands granted to the State and all lands heretofore granted to the Territory of Arizona, and all lands otherwise acquired by the State, shall be by the State accepted and held in trust to be disposed of in whole or in part, only in manner as in the said Enabling Act and in this Constitution provided, and for the several objects specified in the respective granting and confirmatory provisions. The natural products and money proceeds of any of said lands shall be subject to the same trusts as the lands producing the same."
4
"Tract 304:
"All of Section 2, Township 10 North, Range 13 West, Gila and Salt River Base and Meridian, Yuma County, Arizona."
"Tract 305:
"All of Section 36, Township 11 North, Range 13 West, Gila and Salt River Base and Meridian, Yuma County, Arizona." App. 1-2.
5
No question is raised as to the propriety or effectiveness of the condemnation procedure.
6
These figures were also the compensation estimated for the respective tracts in the declaration of taking and paid into court. 1 Record 15.
7
The full-value provision does not exclude an appropriate deferred-payment arrangement. 385 U.S., at 469, n. 21, 87 S.Ct., at 590.
8
"(N)or shall private property be taken for public use, without just compensation."
9
The Arizona statutes governing grazing leases of trust lands recognize this possibility and provide for adjustment of rent at specified times to account for fluctuations in fair rental value. Ariz.Rev.Stat.Ann. §§ 37-283, 37-285 (1974). Indeed, under § 28 of the Enabling Act, at the termination of a lease, a re-evaluation would appear to be required before release or renewal.
10
The Supreme Court of New Mexico long ago ruled that a grazing lease of state lands is not a "mortgage or . . . encumbrance," within the meaning of the identical prohibition, applicable to New Mexico, in § 10 of the New Mexico-Arizona Enabling Act, 36 Stat. 563. American Mortgage Co. v. White, 34 N.M. 602, 605-606, 287 P. 702, 703 (1930). See United States v. 40,021.64 Acres of Land, 387 F.Supp. 839, 848-849 (N.M.1975); State ex rel. State Highway Comm'n v. Chavez, 80 N.M. 394, 456 P.2d 868 (1969).
11
§ 37-242:
"A. When state lands on which there are improvements for which the owner thereof is entitled to be compensated are offered for sale, and the purchaser is not the owner of the improvements, the purchaser shall pay the person conducting the sale ten per cent of the appraised value of the improvements and the balance within thirty days thereafter. If the state land department determines that the amount at which the improvements are appraised is so great that competitive bidding for the land will be thereby hindered, the
department may sell the improvements on installments payable ten per cent upon announcement of the successful bidder, fifteen per cent thirty days thereafter, and fifteen per cent annually thereafter for five years, together with six per cent interest on the balance remaining unpaid, which amount, until paid, shall be a lien upon the land. The purchaser shall at all times, keep the insurable improvements insured for the benefit of the state. Payments shall be made at the time and in the manner prescribed for payments on the land, and any default in the payments for improvements shall be deemed a default in the payments for the land.
"B. When improvements are sold on installments, the first twenty-five per cent, after deducting all rents, penalties and costs owing to the state on account of the land, shall be paid to the owner of the improvements, and the balance shall become a legal charge against the state.
"C. Upon surrendering possession of any such land, the owner of the improvements thereof shall file with the commissioner of finance his claim for the balance on the improvements remaining unpaid, and if the claim bears the approval of the department as to correctness, and a certificate that possession of the lands and improvements has been surrendered by all persons having lawful claims for improvements on the land, it shall be paid by the state treasurer on the warrant of the commissioner of finance from any fund in which there is money subject to investment. As payments for the improvements are made by the purchaser, they shall be deposited with the state treasurer and both principal and interest shall be returned by him to the fund from which they were taken.
"D. Failure to pay the balance of the purchase price or the fifteen per cent within thirty days after the announcement of the successful bidder shall constitute a forfeiture of all rights to the land and all payments made."
§ 37-293:
"A. A lessee of state lands shall be reimbursed by a succeeding lessee for improvements placed on the lands which are not removable. If the retiring lessee and the new lessee do not agree upon the value of the improvements, either party may file with the state
land department an application for appraisal of the improvements. Thereafter an appraisal of the improvements shall be made in the same manner and subject to the same conditions as appraisals of improvements are made when state lands are sold.
"B. Upon making the appraisal, the department shall give notice of the amount thereof by registered mail to each person interested in the appraisal. The notice shall require that the new lessee pay to the department for the prior lessee the entire amount of the appraisal within thirty days from the date of the notice, or the department, when the value is greater than the rental for the period of the lease, may require that payment of ten per cent of the appraised value be made within thirty days, fifteen per cent within sixty days, twenty-five per cent at the end of the first year of the new lease, and twenty-five per cent at the end of each year thereafter until the entire balance is paid.
"C. If the improvements are not paid for as required in the notice, the succeeding lessee shall not be permitted to sell, assign, or transfer his lease, nor sell, assign or remove any improvements whatever from the land until the entire amount of the appraised value of the improvements has been paid. Upon default he shall be subject to the same penalties and liabilities as provided by § 37-288 for failure to pay rents, including a cancellation of the lease."
12
We note in regard to the possible value of renewal rights that leases of the kind in issue here are limited by statute to 10 years in duration, and that the Act requires that rentals be adjusted to reflect current fair rental value before any renewal. See n. 9, supra. Therefore, although we do not foreclose the relevance of possible renewals, the calculation of the lessee's interest cannot include the prospect of renewing the lease at less than fair rental value.
| 34
|
424 U.S. 351
96 S.Ct. 933
47 L.Ed.2d 43
Leonor Alberti DeCANAS and Miguel Canas, Petitioners,v.Anthony G. BICA and Juan Silva.
No. 74-882.
Argued Dec. 16, 1975.
Decided Feb. 25, 1976.
Syllabus
Section 2805(a) of the California Labor Code, which prohibits an employer from knowingly employing an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers, held not to be unconstitutional as a regulation of immigration or as being preempted under the Supremacy Clause by the Immigration and Nationality Act (INA). Pp. 354-365.
(a) Standing alone, the fact that aliens are the subject of a state statute does not render it a regulation of immigration. Even if such local regulation has some purely speculative and indirect impact on immigration, it does not thereby become a constitutionally proscribed regulation of immigration that Congress itself would be powerless to authorize or approve. Pp. 354-356.
(b) Pre-emption on the basis of congressional intent to "occupy the field" and thereby invalidate even harmonious state regulation is not required in this case either because "the nature of the regulated subject matter permits no other conclusion" or because "Congress has unmistakably so ordained" that result. Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248. Section 2805(a) is clearly within a State's police power to regulate the employment relationship so as to protect workers within the State, and it will not be presumed that Congress, in enacting the INA, intended to oust state authority to regulate the employment relationship covered by § 2805(a) in a manner consistent with pertinent federal laws, absent any showing of such intent either in the INA's wording or legislative history or in its comprehensive scheme for regulating immigration and naturalization. Rather than there being evidence that Congress "has unmistakably . . . ordained" exclusivity of federal regulation in the field of employment of illegal aliens, the Farm Labor Contractor Registration Act, whose provisions prohibiting farm labor contractors from employing illegal aliens were enacted to supplement state action, is persuasive evidence that the INA should not be taken as legislation expressing Congress' judgment to have uniform federal regulations in matters affecting employment of illegal aliens, and therefore barring state legislation such as § 2805(a). Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581; Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640, distinguished. Pp. 356-363.
(c) It is for the California courts to construe § 2805(a), and then to decide in the first instance whether and to what extent § 2805(a), as construed, is unconstitutional as conflicting with the INA or other federal laws or regulations. Pp. 363-365.
40 Cal.App.3d 976, 115 Cal.Rptr. 444, reversed and remanded.
Robert S. Catz, Washington, D. C., for petitioners; Howard S. Scher, Washington, D. C., Burton D. Fretz, Cal. Rural Legal Assistance, Inc., Santa Maria, Cal., and Ralph Santiago Abascal, Cal. Rural Legal Assistance, Inc., Sacramento, Cal., on the briefs.
William S. Marrs, Berkeley, Cal., for respondents; Robert L. Trapp, Jr., Santa Maria, Cal., on the brief.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
California Labor Code Ann. § 2805(a) provides that "(n)o employer shall knowingly employ an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers."1 The question presented in this case is whether § 2805(a) is unconstitutional either because it is an attempt to regulate immigration and naturalization or because it is pre-empted under the Supremacy Clause, Art. VI, cl. 2, of the Constitution, by the Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U.S.C. § 1101 et seq., the comprehensive federal statutory scheme for regulation of immigration and naturalization.
2
Petitioners, who are migrant farmworkers, brought this action pursuant to § 2805(c) against respondent farm labor contractors in California Superior Court. The complaint alleged that respondents had refused petitioners continued employment due to a surplus of labor resulting from respondents' knowing employment, in violation of § 2805(a), of aliens not lawfully admitted to residence in the United States. Petitioners sought reinstatement and a permanent injunction against respondents' willful employment of illegal aliens.2 The Superior Court, in an unreported opinion, dismissed the complaint, holding "that Labor Code 2805 is unconstitutional . . . (because) (i)t encroaches upon, and interferes with, a comprehensive regulatory scheme enacted by Congress in the exercise of its exclusive power over immigration . . . ." App. 17a. The California Court of Appeal, Second Appellate District, affirmed, 40 Cal.App.3d 976, 115 Cal.Rptr. 444 (1974). The Court of Appeal held that § 2805(a) is an attempt to regulate the conditions for admission of foreign nationals, and therefore unconstitutional because, "in the area of immigration and naturalization, congressional power is exclusive." Id., at 979, 115 Cal.Rptr., at 446.3 The Court of Appeal further indicated that state regulatory power over this subject matter was foreclosed when Congress, "as an incident of national sovereignty," enacted the INA as a comprehensive scheme governing all aspects of immigration and naturalization, including the employment of aliens, and "specifically and intentionally declined to add sanctions on employers to its control mechanism." Ibid.4 The Supreme Court of California denied review. We granted certiorari, 422 U.S. 1040, 95 S.Ct. 2654, 45 L.Ed.2d 692 (1975). We reverse.
3
* Power to regulate immigration is unquestionably exclusively a federal power. See, e. g., Passenger Cases, 7 How. 283, 12 L.Ed. 702 (1849); Henderson v. Mayor of New York, 92 U.S. 259, 23 L.Ed. 543 (1876); Chy Lung v. Freeman, 92 U.S. 275, 23 L.Ed. 550 (1876); Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905 (1893). But the Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power, whether latent or exercised. For example, Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 415-422, 68 S.Ct. 1138, 1140-1144, 92 L.Ed. 1478 (1948), and Graham v. Richardson, 403 U.S. 365, 372-373, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534 (1971), cited a line of cases that upheld certain discriminatory state treatment of aliens lawfully within the United States. Although the "doctrinal foundations" of the cited cases, which generally arose under the Equal Protection Clause, e. g., Clarke v. Deckebach, 274 U.S. 392, 47 S.Ct. 587, 71 L.Ed. 1115 (1927), "were undermined in Takahashi," see In re Griffiths, 413 U.S. 717, 718-722, 93 S.Ct. 2851, 2853-2855, 37 L.Ed.2d 910 (1973); Graham v. Richardson, supra, at 372-375, 91 S.Ct., at 1852-1853, they remain authority that, standing alone, the fact that aliens are the subject of a state statute does not render it a regulation of immigration, which is essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain. Indeed, there would have been no need, in cases such as Graham, Takahashi, or Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941), even to discuss the relevant congressional enactments in finding pre-emption of state regulation if all state regulation of aliens was ipso facto regulation of immigration, for the existence vel non of federal regulation is wholly irrelevant if the Constitution of its own force requires pre-emption of such state regulation. In this case, California has sought to strengthen its economy by adopting federal standards in imposing criminal sanctions against state employers who knowingly employ aliens who have no federal right to employment within the country; even if such local regulation has some purely speculative and indirect impact on immigration, it does not thereby become a constitutionally proscribed regulation of immigration that Congress itself would be powerless to authorize or approve. Thus, absent congressional action, § 2805 would not be an invalid state incursion on federal power.
II
4
Even when the Constitution does not itself commit exclusive power to regulate a particular field to the Federal Government, there are situations in which state regulation, although harmonious with federal regulation, must nevertheless be invalidated under the Supremacy Clause. As we stated in Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963):
5
"(F)ederal regulation . . . 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."
6
In this case, we cannot conclude that pre-emption is required either because "the nature of the . . . subject matter (regulation of employment of illegal aliens) permits no other conclusion," or because "Congress has unmistakably so ordained" that result.
7
States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State. Child labor laws, minimum and other wage laws, laws affecting occupational health and safety, and workmen's compensation laws are only a few examples. California's attempt in § 2805(a) to prohibit the knowing employment by California employers of persons not entitled to lawful residence in the United States, let alone to work here, is certainly within the mainstream of such police power regulation. Employment of illegal aliens in times of high unemployment deprives citizens and legally admitted aliens of jobs; acceptance by illegal aliens of jobs on substandard terms as to wages and working conditions can seriously depress wage scales and working conditions of citizens and legally admitted aliens; and employment of illegal aliens under such conditions can diminish the effectiveness of labor unions. These local problems are particularly acute in California in light of the significant influx into that State of illegal aliens from neighboring Mexico. In attempting to protect California's fiscal interests and lawfully resident labor force from the deleterious effects on its economy resulting from the employment of illegal aliens, § 2805(a) focuses directly upon these essentially local problems and is tailored to combat effectively the perceived evils.
8
Of course, even state regulation designed to protect vital state interests must give way to paramount federal legislation. But we will not presume that Congress, in enacting the INA, intended to oust state authority to regulate the employment relationship covered by § 2805(a) in a manner consistent with pertinent federal laws. Only a demonstration that complete ouster of state power including state power to promulgate laws not in conflict with federal laws was " 'the clear and manifest purpose of Congress' " would justify that conclusion. Florida Lime & Avocado Growers v. Paul, supra, at 146, 83 S.Ct., at 1219, quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947).5 Respondents have not made that demonstration. They fail to point out, and an independent review does not reveal, any specific indication in either the wording or the legislative history of the INA that Congress intended to preclude even harmonious state regulation touching on aliens in general, or the employment of illegal aliens in particular.6
9
Nor can such intent be derived from the scope and detail of the INA. The central concern of the INA is with the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country. The comprehensiveness of the INA scheme for regulation of immigration and naturalization, without more, cannot be said to draw in the employment of illegal aliens as "plainly within . . . (that) central aim of federal regulation." San Diego Unions v. Garmon, 359 U.S. 236, 244, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959).7 This conclusion is buttressed by the fact that comprehensiveness of legislation governing entry and stay of aliens was to be expected in light of the nature and complexity of the subject. As the Court said in another legislative context: "Given the complexity of the matter addressed by Congress . . ., a detailed statutory scheme was both likely and appropriate, completely apart from any questions of pre-emptive intent." New York Dept. of Social Services v. Dublino, 413 U.S. 405, 415, 93 S.Ct. 2507, 2514, 37 L.Ed.2d 688 (1973).8
10
It is true that a proviso to 8 U.S.C. § 1324, making it a felony to harbor illegal entrants, provides that "employment (including the usual and normal practices incident to employment) shall not be deemed to constitute harboring." But this is at best evidence of a peripheral concern with employment of illegal entrants,9 and San Diego Unions v. Garmon, supra, 359 U.S., at 243, 79 S.Ct., at 779, admonished that "due regard for the presuppositions of our embracing federal system, including the principle of diffusion of power not as a matter of doctrinaire localism but as a promoter of democracy, has required us not to find withdrawal from the States of power to regulate where the activity regulated was a merely peripheral concern of the (federal regulation) . . . ."
11
Finally, rather than evidence that Congress "has unmistakably . . . ordained" exclusivity of federal regulation in this field, there is evidence in the form of the 1974 amendments to the Farm Labor Contractor Registration Act, 88 Stat. 1652, 7 U.S.C. § 2041 et seq. (1970 ed., Supp. IV), that Congress intends that States may, to the extent consistent with federal law, regulate the employment of illegal aliens. Section 2044(b) authorizes revocation of the certificate of registration of any farm labor contractor found to have employed "an alien not lawfully admitted for permanent residence, or who has not been authorized by the Attorney General to accept employment." Section 2045(f) prohibits farm labor contractors from employing "an alien not lawfully admitted for permanent residence or who has not been authorized by the Attorney General to accept employment."10 Of particular significance to our inquiry is the further provision that "(t)his chapter and the provisions contained herein are intended to supplement State action and compliance with this chapter shall not excuse anyone from compliance with appropriate State law and regulation." 7 U.S.C. § 2051 (emphasis supplied). Although concerned only with agricultural employment, the Farm Labor Contractor Registration Act is thus persuasive evidence that the INA should not be taken as legislation by Congress expressing its judgment to have uniform federal regulations in matters affecting employment of illegal aliens and therefore barring state legislation such as § 2805(a).11
12
Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941), and Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640 (1956), upon which respondents rely, are fully consistent with this conclusion. Hines held that Pennsylvania's Alien Registration Act of 1939 was pre-empted by the federal Alien Registration Act. Nelson held that the Pennsylvania Sedition Act was pre-empted by the federal Smith Act. Although both cases relied on the comprehensiveness of the federal regulatory schemes in finding pre-emptive intent, both federal statutes were in the specific field which the States were attempting to regulate, while here there is no indication that Congress intended to preclude state law in the area of employment regulation. And Nelson stated that even in the face of the general immigration laws, States would have the right "to enforce their sedi tion laws at times when the Federal Government has not occupied the field and is not protecting the entire country from seditious conduct." 350 U.S., at 500, 76 S.Ct., at 479. Moreover, in neither Hines nor Nelson was there affirmative evidence, as here, that Congress sanctioned concurrent state legislation on the subject covered by the challenged state law. Furthermore, to the extent those cases were based on the predominance of federal interest in the fields of immigration and foreign affairs, there would not appear to be a similar federal interest in a situation in which the state law is fashioned to remedy local problems, and operates only on local employers, and only with respect to individuals whom the Federal Government has already declared cannot work in this country. Finally, the Pennsylvania statutes in Hines and Nelson imposed burdens on aliens lawfully within the country that created conflicts with various federal laws.
III
13
There remains the question whether, although the INA contemplates some room for state legislation, § 2805(a) is nevertheless unconstitutional because it "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress" in enacting the INA. Hines v. Davidowitz, supra, 312 U.S., at 67, 61 S.Ct., at 404; Florida Lime & Avocado Growers v. Paul, 373 U.S., at 141, 83 S.Ct., at 1216. We do not think that we can address that inquiry upon the record before us. The Court of Appeal did not reach the question in light of its decision, today reversed, that Congress had completely barred state action in the field of employment of illegal aliens. Accordingly, there are questions of construction of § 2805(a) to be settled by the California courts before a determination is appropriate whether, as construed, § 2805(a), "can be enforced without impairing the federal superintendence of the field" covered by the INA. 373 U.S., at 142, 83 S.Ct., at 1217.
14
For example, § 2805(a) requires that to be employed an alien must be "entitled to lawful residence." In its application, does the statute prevent employment of aliens who, although "not entitled to lawful residence in the United States," may under federal law be permitted to work here? Petitioners conceded at oral argument that, on its face, § 2805(a) would apply to such aliens and thus unconstitutionally conflict with federal law. They point, however, to the limiting construction given § 2805(a) in administrative regulations promulgated by the California Director of Industrial Relations. California Administrative Code, Title 8, part 1, c. 8, art. 1, § 16209 (1972), defines an alien "entitled to lawful residence" as follows: "An alien entitled to lawful residence shall mean any non-citizen of the United States who is in possession of a Form I-151, Alien Registration Receipt Card, or any other document issued by the United States Immigration and Naturalization Service which authorizes him to work." Dolores Canning Co. v. Howard, 40 Cal.App.3d 673, 677 n. 3, 115 Cal.Rptr. 435, 436 n. 3 (1974). Whether these regulations were before the Superior Court in this case does not appear, and the Court of Appeal found § 2805(a) unconstitutional without addressing whether it conflicts with federal law.12 Obviously it is for the California courts to decide the effect of these administrative regulations in construing § 2805(a), and thus to decide in the first instance whether and to what extent, see n. 5, supra, § 2805 as construed would conflict with the INA or other federal laws or regulations. It suffices that this Court decide at this time that the Court of Appeal erred in holding that Congress in the INA precluded any state authority to regulate the employment of illegal aliens.
15
The judgment of the Court of Appeal is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
16
It is so ordered.
17
Reversed and remanded.
18
Mr. Justice STEVENS took no part in the consideration or decision of this case.
1
Section 2805 of the California Labor Code, added by Stats.1971, p. 2847, c. 1442, § 1, reads in text as follows:
"(a) No employer shall knowingly employ an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.
"(b) A person found guilty of violation of subdivision (a) is punishable by a fine of not less than two hundred dollars ($200) nor more than five hundred dollars ($500) for each offense.
"(c) The foregoing provisions shall not be a bar to civil action against the employer based upon a violation of subdivision (a)."
2
We assume, arguendo, in this opinion, in referring to "illegal aliens," that the prohibition of § 2805(a) only applies to aliens who would not be permitted to work in the United States under pertinent federal laws and regulations. Whether that is the correct construction of the statute is an issue that will remain open for determination by the state courts on remand. See Part III, infra.
3
Insofar as the determination of § 2805's objective is a matter of state law, the Court of Appeal's view that § 2805(a) is an attempt to regulate the conditions for admission of foreign nationals may be questioned. Another division of the Court of Appeal has said that "the section is not aimed at immigration control or regulation but seeks to aid California residents in obtaining jobs . . . ." Dolores Canning Co. v. Howard, 40 Cal.App.3d 673, 686, 115 Cal.Rptr. 435, 442 (1974). Dolores Canning also invalidated § 2805(a), however, relying, inter alia, on Guss v. Utah Labor Board, 353 U.S. 1, 77 S.Ct. 598, 1 L.Ed.2d 601 (1957), and San Diego Unions v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), and stating that the statute "does or could affect immigration in several ways." 40 Cal.App.3d, at 686, 115 Cal.Rptr., at 442-443.
It is also uncertain that the Court of Appeal viewed § 2805 as a constitutionally proscribed state regulation of immigration that would be invalid even absent federal legislation; the court's discussion of the INA seems to imply that the court assumed that Congress could clearly authorize state legislation such as § 2805, even if it had not yet done so.
4
H.R. 8713, now pending in Congress, would amend 8 U.S.C. § 1324 to provide a penalty for knowingly employing an alien not lawfully admitted to the United States.
5
See also, e. g., New York Dept. of Social Services v. Dublino, 413 U.S. 405, 413-414, 93 S.Ct. 2507, 2512-2513, 37 L.Ed.2d 688 (1973); Schwartz v. Texas, 344 U.S. 199, 202-203, 73 S.Ct. 232, 234-235, 97 L.Ed. 231 (1952); California v. Zook, 336 U.S. 725, 732-733, 69 S.Ct. 841, 844-845, 93 L.Ed. 1005 (1949).
Of course, even absent such a manifestation of congressional intent to "occupy the field," the Supremacy Clause requires the invalidation of any state legislation that burdens or conflicts in any manner with any federal laws or treaties. See Part III, infra. However, "conflicting law absent repealing or exclusivity provisions, should be pre-empted . . . 'only to the extent necessary to protect the achievement of the aims of' " the federal law, since "the proper approach is to reconcile 'the operation of both statutory schemes with one another rather than holding (the state scheme) completely ousted.' " Merrill Lynch, Pierce, Fenner & Smith v. Ware, 414 U.S. 117, 127, 94 S.Ct. 383, 389, 38 L.Ed.2d 348 (1973), quoting Silver v. New York Stock Exchange, 373 U.S. 341, 361, 357, 83 S.Ct. 1246, 1259, 1257, 10 L.Ed.2d 389 (1963).
6
Of course, state regulation not congressionally sanctioned that discriminates against aliens lawfully admitted to the country is impermissible if it imposes additional burdens not contemplated by Congress:
"The Federal Government has broad constitutional powers in determining what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization. See Hines v. Davidowitz, 312 U.S. 52, 66, 61 S.Ct. 399, 403, 85 L.Ed. 581. Under the Constitution the states are granted no such powers; they can neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states. State laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States conflict with this constitutionally derived federal power to regulate immigration, and have accordingly been held invalid." Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 419, 68 S.Ct. 1138, 1142, 92 L.Ed. 1478 (1948) (emphasis supplied).
See also, e. g., Graham v. Richardson, 403 U.S. 365, 376-380, 91 S.Ct. 1848, 1854-1856, 29 L.Ed.2d 534 (1971); Truax v. Raich, 239 U.S. 33, 41-42, 36 S.Ct. 7, 10-11, 60 L.Ed. 131 (1915); cf. also Sugarman v. Dougall, 413 U.S. 634, 641-646, 93 S.Ct. 2842, 2847-2849, 37 L.Ed.2d 853 (1973); In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973). But California Code § 2805 appears to be designed to protect the opportunities of lawfully admitted aliens for obtaining and holding jobs, rather than to add to their burdens. The question whether § 2805(a) nevertheless in fact imposes burdens bringing it into conflict with the INA is open for inquiry on remand. See Part III, infra.
7
In finding § 2805 pre-empted by the INA, the Court of Appeal cited Guss v. Utah Labor Board, 353 U.S. 1, 77 S.Ct. 598, 1 L.Ed.2d 601 (1957), and San Diego Unions v. Garmon, 353 U.S. 26, 77 S.Ct. 607, 1 L.Ed.2d 618 (1957), and 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959) as controlling authority. Reliance upon those decisions was misplaced. Those decisions involved labor management disputes over conduct expressly committed to the National Labor Relations Board to regulate, but concerning which the Board had declined to assert jurisdiction; the Board had not ceded jurisdiction of such regulation to the States, as it was empowered to do. 353 U.S., at 6-9, 77 S.Ct., at 600-602. This Court rejected the argument that the inaction of the NLRB left the States free to regulate the conduct. Section 10(a) of the National Labor Relations Act, 29 U.S.C. § 160(a), expressly excluded state regulation of the disputed conduct unless the Board entered into an agreement with the State ceding regulatory authority. The Court held in that circumstance that "(t)o leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law." San Diego Unions v. Garmon, 359 U.S., at 244, 79 S.Ct., at 779. Guss and Garmon recognize, therefore, that in areas that Congress decides require national uniformity of regulation, Congress may exercise power to exclude any state regulation, even if harmonious. But nothing remotely resembling the NLRA scheme is to be found in the INA.
8
"Little aid can be derived from the vague and illusory but often repeated formula that Congress 'by occupying the field' has excluded from it all state legislation. Every Act of Congress occupies some field, but we must know the boundaries of that field before we can say that it has precluded a state from the exercise of any power reserved to it by the Constitution. To discover the boundaries we look to the federal statute itself, read in the light of its constitutional setting and its legislative history." Hines v. Davidowitz, 312 U.S. 52, 78-79, 61 S.Ct. 399, 410, 85 L.Ed. 581 (1941) (Stone, J., dissenting).
9
A construction of the proviso as not immunizing an employer who knowingly employs illegal aliens may be possible, and we imply no view upon the question. As will appear infra, other federal law that criminalizes knowing employment of illegal aliens in the agricultural field sanctions "appropriate" state laws criminalizing the same conduct. Accordingly, neither the proviso to 8 U.S.C. § 1324(a) nor Congress' failure to enact general laws criminalizing knowing employment of illegal aliens justifies an inference of congressional intent to pre-empt all state regulation in the employment area. Indeed, Congress' failure to enact such general sanctions reinforces the inference that may be drawn from other congressional action that Congress believes this problem does not yet require uniform national rules and is appropriately addressed by the States as a local matter. The cited statutory provisions would, in any event, be relevant on remand in the analysis of actual or potential conflicts between § 2805 and federal law. See also 8 U.S.C. §§ 1101(a)(15)(H), 1182(a)(14), 1321-1330.
10
Title 7 U.S.C. § 2044(b)(6) (1970 ed., Supp. IV) provides:
"Upon notice and hearing in accordance with regulations prescribed by him, the Secretary may refuse to issue, and may suspend, revoke, or refuse to renew a certificate of registration to any farm labor contractor if he finds that such contractor
"(6) has recruited, employed, or utilized, with knowledge, the services of any person, who is an alien not lawfully admitted for permanent residence, or who has not been authorized by the Attorney General to accept employment . . . ."
Title 7 U.S.C. § 2045(f) (1970 ed., Supp. IV) provides:
"Every farm labor contractor shall
"(f) refrain from recruiting, employing, or utilizing, with knowledge, the services of any person who is an alien not lawfully admitted for permanent residence or who has not been authorized by the Attorney General to accept employment . . . ."
Violations of the Act are made criminal, and aggrieved persons are accorded the right to civil relief.
11
The Solicitor General, in his Memorandum for the United States as Amicus Curiae 4 n. 4, concedes that the "Act contemplates some limited room for state law," but argues that § 2805 is not "appropriate" in light of various alleged conflicts with federal regulation.
12
It would appear the regulations were not before the Superior Court since that court held § 2805(a) to be in conflict with federal immigration laws, stating:
"(T)he statute forbids hiring of an 'alien who is not entitled to lawful residence in the United States,' and under the U. S. Immigration laws, there are many such aliens who may work in the United States, under certain classifications, and Labor Code 2805 is in direct conflict with Federal Law." App. 18a.
Dolores Canning Co. v. Howard quotes the definition in a footnote, 40 Cal.App.3d, at 677 n. 3, 115 Cal.Rptr., at 436 n. 3, but the opinion states nothing respecting its significance in construing § 2805(a).
| 12
|
424 U.S. 366
96 S.Ct. 923
47 L.Ed.2d 55
The GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC., Appellant,v.Hugh B. COTTRELL, Health Officer, State of Mississippi.
No. 74-1148.
Argued Dec. 1, 1975.
Decided Feb. 25, 1976.
Syllabus
A Mississippi regulation provides that milk and milk products from another State may be sold in Mississippi only if the other State accepts milk or milk products produced and processed in Mississippi on a reciprocal basis. Appellant's application for a permit to distribute for sale at its retail outlets in Mississippi milk and milk products from its Louisiana processing plant was denied solely on the ground that Louisiana had not signed a reciprocity agreement with Mississippi as required by the regulation. Appellant then brought suit claiming that the regulation violated the Commerce Clause, but a three-judge District Court upheld the regulation as a valid exercise of state police powers, even though it incidentally burdened interstate commerce. Held: The mandatory character of the regulation's reciprocity requirement unduly burdens the free flow of interstate commerce in violation of the Commerce Clause and cannot be justified as a permissible exercise of any state power. Pp. 370-381.
(a) Only state interests of substantial importance can save the regulation in the face of its devastating effect upon the free flow of interstate milk by in practical effect, though not in absolute terms, excluding from Mississippi wholesome milk produced in Louisiana. Cf. Dean Milk Co. v. Madison, 340 U.S. 349, 71 S.Ct. 295, 95 L.Ed. 329. Pp. 372-375.
(b) The reciprocity requirement cannot be justified as serving Mississippi's vital interests in maintaining the State's health standards, for even if Louisiana's standards were lower than Mississippi's, such requirement if met permits Louisiana milk to be admitted to Mississippi if Louisiana enters into a reciprocity agreement. And even if the requirement enables Mississippi to assure itself that the reciprocating State's health standards are the "substantial equivalent" of its own, Mississippi has available for accomplishing that objective the alternative, substantially less burdensome on commerce, of applying its own inspection standards to milk shipments from a nonreciprocating State. Pp. 375-378.
(c) Nor can the reciprocity requirement be justified as an economic "free trade" measure, since it is "precisely the kind of hindrance to the introduction of milk from other states . . . condemned as an 'unreasonable clog upon the mobility of commerce' " and " 'hostile in conception as well as burdensome in result.' " Polar Ice Cream & Creamery Co. v. Andrews, 375 U.S. 361, 377, 84 S.Ct. 378, 387, 11 L.Ed.2d 389. Pp. 378-381.
D.C., 383 F.Supp. 569, reversed and remanded.
Walter W. Christy, for appellant.
Heber A. Ladner, Jr., Jackson, Miss., for appellee.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Section 11 of Mississippi's Regulation Governing the Production and Sale of Milk and Milk Products in Mississippi, promulgated by the Mississippi State Board of Health (1967), provides, among other things, that "(m)ilk and milk products from . . . (another State) may be sold in . . . Mississippi . . . provided . . . that the regulatory agency (of the other State that) has jurisdiction accepts Grade A milk and milk products produced and processed in Mississippi on a reciprocal basis."1 The question presented by this case is whether Mississippi, consistently with the Commerce Clause, Art. I, § 8, cl. 3, of the Constitution,2 may, pursuant to this regulation, constitutionally deny a Louisiana milk producer the right to sell in Mississippi milk satisfying Mississippi's health standards solely because the State of Louisiana has not signed a reciprocity agreement with the State of Mississippi as required by the regulation. A three-judge District Court in the Southern District of Mississippi rejected appellant's Commerce Clause challenge, holding that "section 11 is within the permissible limits of state police powers even though it incidentally or indirectly involves or burdens interstate commerce." 383 F.Supp. 569, 575 (1974). We noted probable jurisdiction of appellant's appeal, 421 U.S. 961, 95 S.Ct. 1949, 44 L.Ed.2d 448 (1975). We reverse.3
2
* Appellant, The Great Atlantic & Pacific Tea Co., Inc. (A&P), a Maryland corporation, owns and operates 38 outlets in Mississippi that engage in the retail sale of milk and milk products. A&P also operates at Kentwood, La., a plant for the processing of raw milk into milk and milk products for delivery to its retail outlets. A&P invested over $1 million in the Kentwood processing facilities, intending that part of the dairy products produced at the facility would supply its retail outlets in Mississippi. However, A&P's application on August 28, 1972, to the Mississippi State Board of Health for a permit to distribute the products from its Kentwood facility for sale in Mississippi was denied by the Board because A&P failed to submit the reciprocal agreement between Louisiana and Mississippi required by § 11.4 Appellant thereupon brought this action.
3
Evidence was stipulated before the District Court which conclusively established that the milk produced at the Kentwood plant fully complied with the requirements of § 11 in all respects save the required reciprocity agreement. The Kentwood plant had received milk sanitation-compliance ratings in excess of 90% In all respects following each inspection by Louisiana officials. These sanitation-compliance ratings were published in the Sanitation Compliance and Enforcement Ratings of Interstate Milk Shippers, a list compiled by the Public Health Service and the Food and Drug Administration of the United States Department of Health, Education, and Welfare (HEW), which includes only processors receiving compliance ratings from state officials who have been certified by the Public Health Service. Further, the parties stipulated that the Supervisor of the Milk Control Program of the Mississippi State Board of Health testified, on the basis of an inspection by Louisiana officials of the Kentwood plant reported on an HEW form, that Kentwood milk would be acceptable in Mississippi as the Louisiana regulations were substantially equivalent to Mississippi's within the meaning of § 11. Thus only the lack of a reciprocity agreement between the two States prevented appellant from marketing its Kentwood milk at its Mississippi retail outlets.5
II
4
Mississippi's answer to appellant's Commerce Clause challenge is that the reciprocity requirement of § 11 is a reasonable exercise of its police power over local affairs, designed to assure the distribution of healthful milk products to the people of its State. We begin our analysis by again emphasizing that "(t)he very purpose of the Commerce Clause was to create an area of free trade among the several States." McLeod v. J. E. Dilworth Co., 322 U.S. 327, 330, 64 S.Ct. 1023, 1026, 88 L.Ed. 1304 (1944). And at least since Cooley v. Board of Wardens, 12 How. 299, 13 L.Ed. 996 (1852), it has been clear that "the Commerce Clause was not merely an authorization to Congress to enact laws for the protection and encouragement of commerce among the States, but by its own force created an area of trade free from interference by the States. . . . (T)he Commerce Clause even without implementing legislation by Congress is a limitation upon the power of the States." Freeman v. Hewit, 329 U.S. 249, 252, 67 S.Ct. 274, 276, 91 L.Ed. 265 (1946). It is no less true, of course, that under our constitutional scheme the States retain "broad power" to legislate protection for their citizens in matters of local concern such as public health, H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 531-532, 69 S.Ct. 657, 661-662, 93 L.Ed. 865 (1949), and that not every exercise of local power is invalid merely because it affects in some way the flow of commerce between the States. Freeman v. Hewit, supra, 329 U.S., at 253, 67 S.Ct., at 277; Milk Control Board v. Eisenberg Farm Products, 306 U.S. 346, 351-352, 59 S.Ct. 528, 530-531, 83 L.Ed. 752 (1939). Rather, in areas where activities of legitimate local concern overlap with the national interests expressed by the Commerce Clause where local and national powers are concurrent the Court in the absence of congressional guidance is called upon to make "delicate adjustment of the conflicting state and federal claims," H. P. Hood & Sons, Inc. v. Du Mond, supra, 336 U.S. at 553, 69 S.Ct. at 679 (Black, J., dissenting), thereby attempting "the necessary accommodation between local needs and the overriding requirement of freedom for the national commerce." Freeman v. Hewit, supra, 329 U.S., at 253, 67 S.Ct., at 277. In undertaking this task the Court, if it finds that a challenged exercise of local power serves to further a legitimate local interest but simultaneously burdens interstate commerce, is confronted with a problem of balance:
5
"Although the criteria for determining the validity of state statutes affecting interstate commerce have been variously stated, the general rule that emerges can be phrased as follows: Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Huron Cement Co. v. Detroit, 362 U.S. 440, 443, 80 S.Ct. 813, 816, 4 L.Ed.2d 852. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities." Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970).6
6
Adjudication of Commerce Clause challenges to the validity of local milk regulations burdening interstate milk is not a novel experience for this Court. See, e. g., Polar Ice Cream & Creamery Co. v. Andrews, 375 U.S. 361, 84 S.Ct. 378, 11 L.Ed.2d 389 (1964); Dean Milk Co. v. Madison, 340 U.S. 349, 71 S.Ct. 295, 95 L.Ed. 329 (1951); H. P. Hood & Sons, Inc. v. Du Mond, supra; Milk Control Board v. Eisenberg Farm Products, supra; Baldwin v. G. A. F. Seelig, Inc., 294 U.S. 511, 55 S.Ct. 497, 79 L.Ed. 1032 (1935).
7
The District Court seems to have concluded that Dean Milk Co. v. Madison, supra, while especially pertinent to a decision upon the validity of the reciprocity provision of § 11, did not require the conclusion that the requirement rendered the section violative of the Commerce Clause. We disagree. Dean Milk involved a Madison, Wis., ordinance that forbade the sale of milk in the city unless it had been pasteurized and bottled at an approved plant located within five miles of the center of the city. Although agreeing that sanitary regulation of milk originating in remote areas is a " 'matter . . . which may appropriately be regulated in the interest of the safety, health and well-being of local communities,' " 340 U.S., at 353, 71 S.Ct., at 297, the Court held that the Madison ordinance could not withstand challenge under the Commerce Clause, "even in the exercise of (the city's) unquestioned power to protect the health and safety of its people, if reasonable nondiscriminatory alternatives, adequate to conserve legitimate local interests, are available." Id., at 354, 71 S.Ct., at 298. Inquiry whether adequate and less burdensome alternatives exist is, of course, important in discharge of the Court's task of "accommodation" of conflicting local and national interests, since any " 'realistic' judgment" whether a given state action "unreasonably" trespasses upon national interests must, of course, consider the "consequences to the state if its action were disallowed." Dowling, Interstate Commerce and State Power, 27 Va.L.Rev. 1, 22 (1940).
8
Dean Milk identified as adequate to serve local interests, and yet less burdensome to the flow of interstate commerce, the alternatives of either inspection of the distant plants by city officials, or reliance on milk ratings obtained by officials in localities having standards as high as those of Madison, the enforcement of which could be verified by reliance on the United States Public Health Service's system of checking local ratings. This latter alternative reflected the recommendation of the United States Public Health Service based on § 11 of the Model Milk Ordinance proposed by the Service, Dean Milk, supra, 340 U.S., at 355, n. 5, 71 S.Ct., at 298, that the local "health officer approve milk or milk products from distant points without his inspection if they are produced and processed under regulations equivalent to those of this ordinance, and if the milk or milk products have been awarded by the State control agency a rating of 90 percent or more on the basis of the Public Health Service rating method." The Illinois producer's milk involved in Dean Milk was processed in plants inspected by the public health authorities in Chicago on the basis of the Public Health Service rating method.
9
The District Court in the instant case acknowledged that "(i)nterestingly enough Section 11 of the Mississippi regulation, but for the reciprocal clause, is identical in every material aspect to Section 11 of the U. S. Public Health Service Ordinance" discussed in Dean Milk. 383 F.Supp., at 574. Accordingly, the District Court concluded that § 11 was "free of any constitutional infirmity," "insofar as it follows Section 11 of the U. S. Public Health Service Milk Ordinance." Id., at 575. The District Court held further that the reciprocity clause of Mississippi's § 11 not found in HEW's proposed Model Milk Ordinance § 11 did not constitute a sufficient burden on interstate commerce to violate the Commerce Clause. Mississippi, said the District Court, may constitutionally "enforce its own standards, either through inspections at the source of the processed milk, although such may require out-of-state inspections, or through reciprocal agreements . . ." and "(a)s long as Mississippi mutually exchanges standards of inspection with other states, there can be no burden on interstate trade." 383 F.Supp., at 575. Further, said the District Court, "Mississippi adopted the reciprocity clause to avoid the expense of out-of-state inspections," id., at 576, and offers reciprocity to all States without discrimination.
10
The fallacy in the District Court's reasoning is that it attached insufficient significance to the interference effected by the clause upon the national interest in freedom for the national commerce, and attached too great significance to the state interests purported to be served by the clause. Although not in terms an absolute and universal bar to sales of out-of-state milk, which was the effect of the Madison ordinance invalidated in Dean Milk, the barrier of the reciprocity clause to sales of out-of-state milk in Mississippi has in this case also "in practical effect exclude(d) from distribution in (Mississippi) wholesome milk produced . . . in (Louisiana)." 340 U.S., at 354, 71 S.Ct., at 297.7 Only state interests of substantial importance can save § 11 in the face of that devastating effect upon the free flow of interstate milk.
11
Mississippi's contention that the reciprocity clause serves its vital interests in maintaining the State's health standards borders on the frivolous. The clause clearly does not do so in the sense of furthering Mississippi's established milk quality standards. For, according to appellee, "s 11 covenants that Mississippi will do the inspections, will certify them, and will accept a standard below that applicable to domestic producers if the forwarding state will do the same." Brief for Appellee 9. Thus, even if Louisiana's standards were lower than Mississippi's, the clause permits Louisiana milk to be admitted to Mississippi if Louisiana enters into a reciprocity agreement. The reciprocity clause thus disserves rather than promotes any higher Mississippi milk quality stand ards. Therefore this is a case where the "burden imposed on (interstate) commerce is clearly excessive in relation to the putative local benefits." Pike v. Bruce Church, Inc., supra, 397 U.S., at 142, 90 S.Ct., at 847.
12
Mississippi next argues that the reciprocity clause somehow enables Mississippi to assure itself that the reciprocating State's (here Louisiana's) health standards are the "substantial equivalent" of Mississippi's.8 But even if this were true, and the premise may be disputed,9 there are means adequate to serve this interest that are substantially less burdensome on commerce, and, therefore, Dean Milk teaches that the burden of the mandatory reciprocity clause cannot be justified in view of the character of the local interest and these available methods of protecting it. In the absence of adequate assurance that the standards of a sister State, either as constituted or as applied, are substantially equivalent to its own, Mississippi has the obvious alternative of applying its own standards of inspection to shipments of milk from a nonreciprocating State.10 Dean Milk, supra, 340 U.S., at 355, 71 S.Ct., at 298, expressly supported the adequacy of this alternative: "(S)uch inspection is readily open to it without hardship for it could charge the actual and reasonable cost of such inspection to the importing producers and processors."11 Cf. Evansville-Vanderburgh Airport Authority District v. Delta Airlines, Inc., 405 U.S. 707, 92 S.Ct. 1349, 31 L.Ed.2d 620 (1972).
III
13
Mississippi argues that apart from the putative health-related interests served by the clause, the reciprocity requirement is in effect a free-trade provision, advancing the identical national interest that is served by the Commerce Clause.
14
The argument is two-pronged. First, Mississippi, argues that the reciprocity requirement serves to help eliminate "hypertechnical" inspection standards that vary between different States.12 Such hypertechnical standards are said to burden commerce by requiring costly duplicative or out-of-state inspection in instances where, for truly health-related purposes, the standards of the different States are "substantially equivalent." The Court has recognized that mutually beneficial objectives may be promoted by voluntary reciprocity agreements, and that the existence of such an agreement between two or more States is not a per se violation of the Commerce Clause of which citizens of nonreciprocating States who do not receive the benefits conferred by the agreement may complain. See Kane v. New Jersey, 242 U.S. 160, 167-168, 37 S.Ct. 30, 31-32, 61 L.Ed. 222 (1916); cf. Bode v. Barrett, 344 U.S. 583, 73 S.Ct. 468, 97 L.Ed. 567 (1953).13 But we have not held that acceptance of offered reciprocity is required from other States, see Kane v. New Jersey, supra, 242 U.S., at 168, 37 S.Ct., at 32, or that a State may threaten complete isolation as the alternative to acceptance of its offer of reciprocity. Mississippi may offer reciprocity to States with substantially equivalent health standards, and insist on enforcement of its own, somewhat different, standards as the alternative. But Mississippi may not use the threat of economic isolation as a weapon to force sister States to enter into even a desirable reciprocity agreement.
15
The second prong of appellee's argument that the reciprocity requirement promotes trade between the States draws upon Mississippi's allegations that Louisiana is itself violating the Commerce Clause by refusing to admit milk produced in Mississippi. Mississippi asserts that Louisiana has refused reciprocity with Mississippi in bad faith, and in fact has erected economic barriers to the sale of Mississippi milk in Louisiana under the guise of health and inspection regulations. Hence, the reciprocity agreement, it is argued, is a legitimate means by which Mississippi may seek to gain access to Louisiana markets for its own producers as a condition to allowing Louisiana milk to be sold in Mississippi. We cannot agree.
16
First, to the extent, if any, that Louisiana is unconstitutionally burdening the flow of milk in interstate commerce by erecting and enforcing economic trade barriers to protect its own producers from competition under the guise of health regulations, the Commerce Clause itself creates the necessary reciprocity: Mississippi and its producers may pursue their constitutional remedy by suit in state or federal court challenging Louisiana's actions as violative of the Commerce Clause.
17
Second, to the extent that Louisiana is legitimately exercising its local powers in the interest of the health of its citizens by refusing reciprocity and consequently the admission of milk deemed in good faith by state officials to be of insufficient quality, Mississippi is not privileged under the Commerce Clause to force its own judgments as to an adequate level of milk sanitation on Louisiana at the pain of an absolute ban on the interstate flow of commerce in milk. However available such methods in an international system of trade between wholly sovereign nation states, they may not constitutionally be employed by the States that constitute the common market created by the Framers of the Constitution. To allow Mississippi to insist that a sister State either sign a reciprocal agreement acceptable to Mississippi or else be absolutely foreclosed from exporting its products to Mississippi would plainly "invite a multiplication of preferential trade areas destructive of the very purpose of the Commerce Clause." Dean Milk, supra, 340 U.S., at 356, 71 S.Ct., at 299. No "parochial legislative polic(y)," H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S., at 538, 69 S.Ct., at 665, could be more precisely calculated to open "the door . . . to rivalries and reprisals that were meant to be averted by subjecting commerce between the states to the power of the nation." Baldwin v. G. A. F. Seelig, Inc., 294 U.S., at 522, 55 S.Ct., at 500.
18
"The Constitution was framed under the dominion of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division." Id., at 523, 55 S.Ct., at 500.
19
The mandatory reciprocity provision of § 11, insofar as justified by the State as an economic measure, is "precisely the kind of hindrance to the introduction of milk from other States . . . condemned as an 'unreasonable clog upon the mobility of commerce. . . . (It is) hostile in conception as well as burdensome in result.' " Polar Ice Cream & Creamery Co. v. Andrews, 375 U.S., at 377, 84 S.Ct., at 387.
20
Accordingly, we hold that the mandatory character of the reciprocity requirement of § 11 unduly burdens the free flow of interstate commerce and cannot be justified as a permissible exercise of any state power. The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion.
21
It is so ordered.
22
Mr. Justice STEVENS took no part in the consideration or decision of this case.
1
Section 11 provides in full text:
"Milk and milk products from points beyond the limits of routine inspection of the state of Mississippi or its police jurisdiction, may be sold in the state of Mississippi or its police jurisdiction, provided they are produced, pasteurized, and labeled under regulations which are substantially equivalent to this Regulation and have been awarded an acceptable milk sanitation compliance rating of 90 percent or above made by a state milk sanitation rating officer certified by the U. S. Public Health Service, and Provided further, that the regulatory agency who (sic ) has jurisdiction accepts Grade A milk and milk products produced and processed in Mississippi on a reciprocal basis. The health authority is authorized to require and conduct laboratory analysis and investigations to determine if the milk and milk products are in compliance with this Regulation." Record 102.
2
The Commerce Clause, U.S.Const., Art. I, § 8, cl. 3, provides: "The Congress shall have power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
3
Appellant also alleged a claim for relief under the Equal Protection Clause of the Fourteenth Amendment. In view of our conclusion we have no occasion to address that claim.
4
A&P attempted but failed to obtain the required reciprocity agreement from the Louisiana health authorities. It was informed by Louisiana health officials that Louisiana had not entered into a reciprocity agreement with any State, that in the opinion of Louisiana officials processed milk from Mississippi did not meet Louisiana health standards, and that Mississippi-processed milk from plants that met Louisiana standards would be admitted for sale in Louisiana. Record 15.
5
Appellee makes no contention that there are alternative means by which appellant's milk may be judged qualified under Mississippi standards and thereby admitted for sale in the State. Indeed, appellee states that without reciprocity, milk from the Kentwood plant must be subjected to on-site inspection according to Mississippi health standards, and that Mississippi currently makes no provision for out-of-state inspection by Mississippi officials. Brief for Appellee 15-16, n. 1.
6
Adjudication entails "emphasis upon the concrete elements of the situation that concerns both state and national interests. The particularities of a local statute touch its special aims and the scope of their fulfillment, the difficulties which it seeks to adjust, the price at which it does so . . . . (P)ractical considerations, however screened by doctrine, underlie resolution of conflicts between state and national power." F. Frankfurter, The Commerce Clause Under Marshall, Taney and Waite 33-34 (1937).
"(I)t seems clear that those interferences (with interstate commerce) not deemed forbidden are to be sustained . . . because a consideration of all the facts and circumstances, such as the nature of the regulation, its function, the character of the business involved and the actual effect on the flow of commerce, lead to the conclusion that the regulation concerns interests peculiarly local and does not infringe the national interest in maintaining the freedom of commerce across state lines." Di Santo v. Pennsylvania, 273 U.S. 34, 44, 47 S.Ct. 267, 271, 71 L.Ed. 524 (1927) (Stone, J., dissenting).
7
The parties stipulated in the District Court that the net annual cost to A&P incurred by its inability to use the product of its Kentwood facility and its consequent reliance on alternative sources of supply was $195,700.
8
"If Louisiana will not give trust and reliance to Mississippi's conduct of the inspections, then Mississippi is loath to accept the same Louisiana procedures, out of a regard for the health and welfare of her own citizens." Brief for Appellee 11.
9
A sample reciprocity agreement acceptable to Mississippi is the following:
"AN ACCEPTABLE AGREEMENT TO MISSISSIPPI STATE BOARD OF HEALTH REGARDING RECIPROCITY IN THE MOVEMENT OF GRADE A MILK AND MILK PRODUCTS IN INTERSTATE SHIPMENT
"1. Each state shall be responsible for inspecting, sampling, and enforcing its regulations that apply to the dairies and milk plants located in its respective state, provided each state's regulation is substantially equivalent.
"2. The appropriate state regulatory agency shall certify to the receiving state agency that the dairies and plants involved in interstate shipment hold a valid Grade A permit from said agency.
"3. Milk and milk products received into each state shall meet the chemical and bacteriological standards, labeling and delivery vehicle requirements of the receiving state.
"4. Public health sanitation ratings shall be made by certified rating officials of the respective states of any milk supply involved in interstate shipment. The ratings shall be submitted to the FDA-PHS to be included and maintained on the Interstate Milk Shippers List and published by the FDA-PHS so that they can make spot check ratings of the supplies involved to determine if satisfactory sanitation surveillance is being carried out by the respective state. All sanitation ratings shall be 90% In compliance or above in order to be acceptable to the respective states.
"5. The regulatory agencies of each state shall sign reciprocity agreements containing the above stipulations."
10
On this record, we are not presented with and need not decide the question of the constitutionality under the Commerce Clause of a State's insistence on reinspection of milk originating in a foreign State where that insistence is not prompted by a health-related need to assure adequate standards but rather is prompted solely as a retaliatory measure because the foreign State refuses to accept the receiving State's standards as adequate.
11
Mississippi's regulations call for inspection of "each dairy farm, milk hauler, milk plant, receiving station, and transfer station whose milk or milk products are intended for consumption within the State of Mississippi" as a condition to the issuance of a permit, and for periodic inspection thereafter. Miss.Reg. § 5, Record 77. Although appellant's Kentwood plant is, of course, located outside Mississippi and would require out-of-state inspection by Mississippi officials, only six of 105 dairy farms from which A&P purchases raw milk are located outside Mississippi. Plaintiff's Exhibit 1, and Exhibit A.
Appellant represents that it has already offered to pay the reasonable expenses of required out-of-state inspection, Brief for Appellant 7, although evidence of that offer does not appear in the record.
12
"(W)e say this regulation is wiser and more productive for interstate commerce through all the States than having these picayune problems of how many square feet of floor space is in the milk parlor, or what the temperature of the milk is when it goes to the cooling truck." Tr. of Oral Arg. 20.
A&P agrees that reciprocity among States is a "laudable goal. Reciprocity, by eliminating hyper-technical standards peculiar to one state, may aid the free flow of milk." Jurisdictional Statement 9.
13
We are not called upon to decide in this case whether or at what point the diversionary effects upon trade occasioned by a given reciprocity agreement (even though voluntary and nondiscriminatory) between some but not all States might be such as to constitute an impermissible burdening of the national interests embodied in the Commerce Clause, or the Compact Clause. Cf. Bode v. Barrett, 344 U.S., at 586, 73 S.Ct. 468, 470, 97 L.Ed. 567; Wharton v. Wise, 153 U.S. 155, 171, 14 S.Ct. 783, 787, 38 L.Ed. 669 (1894).
| 78
|
424 U.S. 382
96 S.Ct. 943
47 L.Ed.2d 106
Alva FISHERv.The DISTRICT COURT OF the SIXTEENTH JUDICIAL DISTRICT OF MONTANA, IN AND FOR the COUNTY OF ROSEBUD. In the Matter of the ADOPTION OF Ivan FIRECROW, etc.
No. 75-5366.
March 1, 1976.
Rehearing Denied April 5, 1976.
See 425 U.S. 926, 96 S.Ct. 1524.
PER CURIAM.
1
Disagreeing with an advisory opinion of the Appellate Court of the Northern Cheyenne Tribe, the Montana Supreme Court held that the state court has jurisdiction over an adoption proceeding in which all parties are members of the Tribe and residents of the Northern Cheyenne Indian Reservation. We reverse.
2
Petitioner is the mother of Ivan Firecrow. On July 1, 1969, after petitioner and Ivan's father were divorced, the Tribal Court of the Northern Cheyenne Tribe found that petitioner had neglected Ivan, awarded temporary custody to Josephine Runsabove, and made Ivan a ward of the court.1 In 1973 the Tribal Court rejected petitioner's request to regain custody of her son.2 On August 30, 1974, however, the Tribal Court entered an order granting petitioner temporary custody of Ivan "for a period of six weeks during the summer months."3
3
Four days before the entry of that order, Josephine Runsabove and her husband initiated an adoption proceeding in the District Court for he Sixteenth Judicial District of Montana.4 Petitioner moved to dismiss for lack of subject-matter jurisdiction, asserting that the Tribal Court possessed exclusive jurisdiction. After a hearing, the District Court certified to the Appellate Court of the Northern Cheyenne Tribe the question whether an ordinance of the Northern Cheyenne Tribe5 conferred jurisdiction upon the District Court. The Appellate Court of the Tribe expressed the opinion that it did not,6 and the State District Court dismissed for lack of jurisdiction.
4
The Runsaboves then filed an original application in the Montana Supreme Court for a writ of supervisory control or other appropriate writ to set aside the order of dismissal. The Montana Supreme Court granted the requested relief, holding that the District Court possessed jurisdiction. The court reasoned that prior to the organization of the Northern Cheyenne Tribe in 1935, the Montana courts possessed jurisdiction over adoptions involving tribal members residing on the reservation and that this jurisdiction could not be unilaterally divested by tribal ordinance; that Congress recognized that jurisdiction of state courts over Indian adoptions in 25 U.S.C. § 372a; and that depriving the Montana courts of jurisdiction would deny equal protection to Indian plaintiffs, at least under the Montana Constitution. State ex rel. Firecrow v. District Court, Mont., 536 P.2d 190 (1975).7
5
In litigation between Indians and non-Indians arising out of conduct on an Indian reservation, resolution of conflicts between the jurisdiction of state and tribal courts has depended, absent a governing Act of Congress, on "whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them." Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 271, 3 L.Ed.2d 251 (1959); accord, Kennerly v. District Court of Montana, 400 U.S. 423, 426-427, 91 S.Ct. 480, 481-482, 27 L.Ed.2d 507 (1971) (Per curiam ). Since this litigation involves only Indians, at least the same standard must be met before the state courts may exercise jurisdiction. Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 114 (1973); McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 168-173, 179-180, 93 S.Ct. 1257, 1260-1263, 1266, 36 L.Ed.2d 129 (1973).
6
The right of the Northern Cheyenne Tribe to govern itself independently of state law has been consistently protected by federal statute. As early as 1877, Congress ratified an agreement between the Tribe and the United States providing that "Congress shall, by appropriate legislation, secure to (the Indians) an orderly government; they shall be subject to the laws of the United States, and each individual shall be protected in his rights of property, person, and life." 19 Stat. 256. This provision remained unaffected by the Act enabling Montana to enter the Union,8 and by the other statutes specifically concerned with the Northern Cheyenne Tribe.9 In 1935, the Tribe adopted a constitution and bylaws10 pursuant to § 16 of the Indian Reorganization Act, 48 Stat. 987, 25 U.S.C. § 476, a statute specifically intended to encourage Indian tribes to revitalize their self-government. Mescalero Apache Tribe, supra, 411 U.S. at 151, 93 S.Ct. at 1271. Acting pursuant to the constitution and bylaws, the Tribal Council of the Northern Cheyenne Tribe established the Tribal Court and granted it jurisdiction over adoptions "among members of the Northern Cheyenne Tribe."11
7
State-court jurisdiction plainly would interfere with the powers of self-government conferred upon the Northern Cheyenne Tribe and exercised through the Tribal Court. It would subject a dispute arising on the reservation among reservation Indians to a forum other than the one they have established for themselves.12 As the present record illustrates, it would create a substantial risk of conflicting adjudications affecting the custody of the child and would cause a corresponding decline in the authority of the Tribal Court.
8
No federal statute sanctions this interference with tribal self-government. Montana has not been granted, nor has it assumed, civil jurisdiction over the Northern Cheyenne Indian Reservation, either under the Act of Aug. 15, 1953, 67 Stat. 588, or under Title IV of the Civil Rights Act of 1968, 82 Stat. 78, 25 U.S.C. § 1321 Et seq. And contrary to the Runsaboves' contention, 25 U.S.C. § 372a13 manifests no congressional intent to confer jurisdiction upon state courts over adoptions by Indians. The statute is concerned solely with the documentation necessary to prove adoption by an Indian in proceedings before the Secretary of the Interior. It recognizes adoption "by a judgment or decree of a State court" as one means of documentation but nowhere addresses the jurisdiction of state courts to render such judgments or decrees. The statute does not confer jurisdiction upon the Montana courts. See McClanahan, supra, 411 U.S., at 174-175, 93 S.Ct., at 1263; Williams, supra, 358 U.S., at 220-221, 79 S.Ct., at 270-271.
9
Since the adoption proceeding is appropriately characterized as litigation arising on the Indian reservation, the jurisdiction of the Tribal Court is exclusive. The Runsaboves have not sought to defend the state court's jurisdiction by arguing that any substantial part of the conduct supporting the adoption petition took place off the reservation. Cf. DeCoteau v. District County Court, 420 U.S. 425, 428-430, and n. 3, 95 S.Ct. 1082, 1085-1086, 43 L.Ed.2d 300 (1975).14
10
The remaining points may be dealt with briefly. The Runsaboves argue that the ordinances of the Northern Cheyenne Tribe could not deprive the Montana courts of the jurisdiction they exercised over tribal matters prior to organization of the Tribe in 1935. The tribal ordinance conferring jurisdiction on the Tribal Court was authorized by § 16 of the Indian Reorganization Act, 25 U.S.C. § 476. Consequently, it implements an overriding federal policy which is clearly adequate to defeat state jurisdiction over litigation involving reservation Indians. Accordingly, even if we assume that the Montana courts properly exercised adoption jurisdiction prior to the organization of the Tribe, a question we do not decide, that jurisdiction has now been pre-empted.
11
Finally, we reject the argument that denying the Runsaboves access to the Montana courts constitutes impermissible racial discrimination. The exclusive jurisdiction of the Tribal Court does not derive from the race of the plaintiff but rather from the quasi-sovereign status of the Northern Cheyenne Tribe under federal law. Moreover, even if a jurisdictional holding occasionally results in denying an Indian plaintiff a forum to which a nonIndian has access, such disparate treatment of the Indian is justified because it is intended to benefit the class of which he is a member by furthering the congressional policy of Indian self-government. Morton v. Mancari, 417 U.S. 535, 551-555, 94 S.Ct. 2474, 2483-2485, 41 L.Ed.2d 290 (1974).
12
The motion of the Northern Cheyenne Tribe for leave to file a brief, as Amicus curiae, is granted. The petition for certiorari and the motion for leave to proceed In forma pauperis are granted. The judgment of the Supreme Court of Montana is reversed.
13
Motions and petition granted; judgment reversed.
14
It is so ordered.
1
See State ex rel. Firecrow v. District Court, Mont., 536 P.2d 190, 192 (1975).
2
In re Firecrow (Northern Cheyenne Tribal Ct., filed Aug. 1, 1973). Defendant's Exhibit C.
3
In re Firecrow (Northern Cheyenne Tribal Ct., filed Aug. 30, 1974). Defendant's Exhibit A.
4
They alleged that petitioner had voluntarily abandoned the child to Josephine Runsabove on June 2, 1969, and had not supported the child for over a year. The natural father consented to the adoption and waived further notice.
5
Chapter 3, § 2, of the Revised Law and Order Ordinances of the Northern Cheyenne Tribe of the Northern Cheyenne Reservation, approved by the Commissioner of Indian Affairs, June 9, 1966. The ordinance provides:
"The Tribal Court of the Northern Cheyenne Reservation shall have jurisdiction to hear, pass upon, and approve applications for adoptions among members of the Northern Cheyenne Tribe.
"Upon proper showing and decision by the court, such adoptions shall be binding upon all concerned and hereafter only adoptions so approved by the Tribal Court shall be recognized.
"On all adoptions involving non-members of the Northern Cheyenne Tribe or non-Indians or both who wish to adopt a member of the Northern Cheyenne Tribe, the Tribal Court of the Northern Cheyenne Reservation shall have concurrent jurisdiction to hear, pass upon, and approve applications for adoption and upon written consent of the court, adoption proceedings affecting members of the Northern Cheyenne Tribe of the Northern Cheyenne Reservation may be taken up and consummated in the State Courts."
6
The opinion of the Appellate Court of the Northern Cheyenne Tribe, reads, in relevant part:
"It is the opinion of this Court, and this Court so rules, that the Tribal Court has exclusive jurisdiction of all adoptions of members of the Northern Cheyenne Tribe of Indians where it appears that the minor who is being adopted and all other parties to the adoption proceedings, which is to say, the parent and/or parents of the minor and the person and/or persons adopting said minor are each and all members of the Northern Cheyenne Tribe and each and all reside within the exterior boundaries of the Northern Cheyenne Indian Reservation.
"This Court has not been called upon to decide any issue involving non-members of the Northern Cheyenne Tribe or non-Indians or both, who wish to adopt a member of the Northern Cheyenne Tribe. Therefore, this Court does not make any opinion or interpretation as to the provisions of the last (3rd) paragraph of said Section 1 of Chapter III of the Tribal Code." In re Firecrow, at 5 (filed Apr. 12, 1975).
7
The writ of supervisory control issued by the Montana Supreme Court is a final judgment within our jurisdiction under 28 U.S.C. § 1257(3). It is available only in original proceedings in the Montana Supreme Court, Mont. Const., Art. VII, §§ 2(1), (2); Mont.Rule App.Civ.Proc. 17(a), and although it may issue in a broad range of circumstances, it is not equivalent to an appeal. See Ibid. ; State ex rel. Amsterdam Lumber, Inc. v. District Court, 163 Mont. 182, 186-187, 516 P.2d 378, 380-381 (1973); Walker v. Tschache, 162 Mont. 213, 215-217, 510 P.2d 9, 10-11 (1973). A judgment that terminates original proceedings in a state appellate court, in which the only issue decided concerns the jurisdiction of a lower state court, is final even, if further proceedings are to be had in the lower court. Madruga v. Superior Court, 346 U.S. 556, 557 n. 1, 74 S.Ct. 298, 299, 98 L.Ed. 290 (1954); Rescue Army v. Municipal Court, 331 U.S. 549, 565-568, 67 S.Ct. 1409, 1417-1419, 91 L.Ed. 1666 (1947); Bandini Co. v. Superior Court, 284 U.S. 8, 14-15, 52 S.Ct. 103, 105-106, 76 L.Ed. 136 (1931); see Costarelli v. Massachusetts, 421 U.S. 193, 197-199, 95 S.Ct. 1534, 1536-1538, 44 L.Ed.2d 76 (1975) (Per curiam ).
8
Act of Feb. 22, 1889, 25 Stat. 676. Section 4(2) of the Act provides that "Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States . . . ." For an interpretation of this provision, and similar language in other statehood enabling Acts, see McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 175-176, and n. 15, 93 S.Ct. 1257, 1263-1264, 36 L.Ed.2d 129 (1973); Organized Village of Kake v. Egan, 369 U.S. 60, 69-71, 82 S.Ct. 562, 567-568, 7 L.Ed.2d 573 (1962).
9
The Northern Cheyenne Tribe first came under federal trusteeship by the Treaty of May 10, 1868, 15 Stat. 655, which was subsequently modified by the agreement quoted in text. The Northern Cheyenne Indian Reservation was created by Executive Orders on November 26, 1884, and March 19, 1900, 1 C. Kappler, Indian Affairs 860-861 (1904), and it was confirmed as property of the Tribe held in trust by the United States by the Act of June 3, 1926, c. 459, 44 Stat. pt. 2, 690. None of the cited sources grants jurisdiction to Montana.
10
Constitution and bylaws of the Northern Cheyenne Tribe of the Northern Cheyenne Indian Reservation, approved by the Secretary of the Interior, Nov. 23, 1935. These have since been superseded by the Amended Constitution and By-Laws of the Northern Cheyenne Tribe of the Northern Cheyenne Indian Reservation, approved by the Assistant Secretary of the Interior, July 8, 1960.
11
C. 3, § 2, of the Revised Law and Order Ordinances of the Northern Cheyenne Tribe of the Northern Cheyenne Reservation. Quoted at n. 5, Supra.
The third paragraph of § 2 does not confer jurisdiction over this case upon the Montana courts. By its express terms, it confers concurrent jurisdiction only over "adoptions involving non-members of the Northern Cheyenne Tribe or non-Indians or both who wish to adopt a member of the Northern Cheyenne Tribe," see n. 5, Supra, and only upon written consent of the Tribal Court.
12
Neither the constitution and bylaws nor the ordinance of the Northern Cheyenne Tribe manifests an intent to cede jurisdiction to Montana. This factor alone distinguishes the decisions upon which the Montana Supreme Court relied. Bad Horse v. Bad Horse, 163 Mont. 445, 450-451, 517 P.2d 893, 896, cert. denied, 419 U.S. 847, 95 S.Ct. 83, 42 L.Ed.2d 76 (1974); State ex rel. Iron Bear v. District Court, 162 Mont. 335, 337-338, 342-343, 512 P.2d 1292, 1294, 1297 (1973). We do not decide, however, whether an enactment of a tribal council prior to the effective date of Pub.L. 280, Act of Aug. 15, 1953, 67 Stat. 588, may be sufficient to confer jurisdiction upon the state courts. See Kennerly v. District Court of Montana, 400 U.S. 423, 426-429, 91 S.Ct. 480, 481-483, 27 L.Ed.2d 507 (1971) (Per curiam ); McClanahan v. Arizona State Tax Comm'n, supra, 411 U.S., at 179-180, 93 S.Ct., at 1266, 36 L.Ed.2d 129.
13
Act of July 8, 1940, c. 555, §§ 1, 2, 54 Stat. 746. The statute provides:
"(Sec. 1) (I)n probate matters under the exclusive jurisdiction of the Secretary of the Interior, no person shall be recognized as an heir of a deceased Indian by virtue of an adoption
"(1) Unless such adoption shall have been
"(a) by a judgment or decree of a State court;
"(b) by a judgment or decree of an Indian court;
"(c) by a written adoption approved by the superintendent of the agency having jurisdiction over the tribe of which either the adopted child or the adoptive parent is a member, and duly recorded in a book kept by the superintendent for that purpose; or
"(d) by an adoption in accordance with a procedure established by the tribal authority, recognized by the Department of the Interior, of the tribe either of the adopted child or the adoptive parent, and duly recorded in a book kept by the tribe for that purpose; or
"(2) Unless such adoption shall have been recognized by the Department of the Interior prior to the effective date of this Act or in the distribution of the estate of an Indian who has died prior to that date: Provided, That an adoption by Indian custom made prior to the effective date of this Act may be made valid by recordation with the superintendent if both the adopted child and the adoptive parent are still living, if the adoptive parent requests that the adoption be recorded, and if the adopted child is an adult and makes such a request or the superintendent on behalf of a minor child approves of the recordation.
"Sec. 2. This Act shall not apply with respect to the distribution of the estates of Indians of the Five Civilized Tribes or the Osage Tribe in the State of Oklahoma, or with respect to the distribution of estates of Indians who have died prior to the effective date of this Act."
14
The Runsaboves alleged as grounds for adoption that petitioner had abandoned Ivan and given custody to Josephine Runsabove and that petitioner had not supported the child for over a year. Since all parties resided on the reservation at all relevant times, and since the reservation has not been partially terminated, cf. DeCoteau v. District County Court, 420 U.S., at 429 n. 3, 95 S.Ct. 1082, 1085, 43 L.Ed.2d 300, it appears that none of the acts giving rise to the adoption proceedings occurred off the reservation. The Runsaboves do not contend otherwise. They do, however, point out that the birth of Ivan and the marriage and divorce of his parents occurred off the reservation. These facts do not affect our conclusion that the adoption proceeding is within the Tribal Court's exclusive jurisdiction. In a proceeding such as an adoption, which determines the permanent status of litigants, it is appropriate to predicate jurisdiction on the residence of the litigants rather than the location of particular incidents of marginal relevance, at best.
| 12
|
47 L.Ed.2d 114
96 S.Ct. 948
424 U.S. 392
UNITED STATES, Petitioner,v.Herman R. TESTAN and Francis L. Zarrilli.
No. 74-753.
Argued Nov. 12, 1975.
Decided March 2, 1976.
Motion Denied May 3, 1976.
See 425 U.S. 957, 96 S.Ct. 1736.
Syllabus
Respondent Government trial attorneys with civil service grade GS-13 classifications requested their employing agency to reclassify their positions to grade GS-14, contending that their duties and responsibilities met the requirements for the higher grade and were identical to those of other trial attorneys classified as GS-14 in another agency, and that under the principle of "equal pay for substantially equal work" prescribed in the Classification Act, they were entitled to the higher classification. But their agency, and the Civil Service Commission (CSC) on appeal, denied reclassification. Respondents then sued the Government in the Court of Claims, seeking reclassification as of the date of the first administrative denial of their request, and each seeking backpay, computed at the difference between his GS-13 salary and his claimed GS-14 salary, from that date. The trial judge denied backpay but held that the CSC's refusal to reclassify respondents to GS-14 was arbitrary and that respondents were entitled to an order remanding the case to the CSC with directions so to reclassify respondents. The court en banc, while disapproving the trial judge's recommendation that the court was empowered to direct reclassification, held that if the CSC were to determine that it had made an erroneous classification the court was authorized to award money damages for backpay lost, that the CSC's refusal to compare respondents' positions with those of the other trial attorneys was arbitrary and capricious, and that the court had power to order the CSC to reconsider its classification decision. Accordingly, the court remanded the case to the CSC to make the comparison and to report the result to the court. Held :
1. The Tucker Act, which merely confers jurisdiction upon the Court of Claims whenever a substantive right enforceable against the United States for money damages exists, does not in itself support the action taken by the Court of Claims in this case. Pp. 397-398.
2. Neither the Classification Act nor the Back Pay Act creates a substantive right in respondents to backpay for the period of the claimed wrongful classification. Pp. 398-407.
205 Ct.Cl. 330, 499 F.2d 690, reversed and remanded.
John. Rupp, Washington, D. C., for petitioner.
Edwin J. McDermott, Philadelphia, Pa., for respondents.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This is a suit for reclassification of federal civil service positions and for backpay. It presents a substantial issue concerning the jurisdiction of the Court of Claims and the relief available in that tribunal.
2
* The plaintiff-respondents, Herman R. Testan and Francis L. Zarrilli, are trial attorneys employed in the Office of Counsel, Defense Personnel Support Center, Defense Supply Agency, in Philadelphia. They represent the Government in certain matters that come before the Armed Services Board of Contract Appeals of the Department of Defense. Their positions are subject to the Classification Act, 5 U.S.C. § 5101 Et seq., and they are presently classified at civil service grade GS-13.
3
In December 1969 respondents, through their Chief Attorney, requested their employing agency to reclassify their positions to grade GS-14. The asserted ground was that their duties and responsibilities met the requirements for the higher grade under standards promulgated by the Civil Service Commission in General Attorney Series GS-905-0. In addition, they contended that their duties were identical to those of other trial attorneys in positions classified as GS-14 in the Contract Appeals Division, Office of the Staff Judge Advocate, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Dayton, Ohio, and that under the principle of "equal pay for substantially equal work," prescribed in § 5101(1)(A),1 they were entitled to the higher classification.
4
The agency, after an audit by a position classification specialist, concluded that the respondents' assigned duties were properly classified at the GS-13 level under the Commission's classification standards. On appeal, the Commission reached the same conclusion and denied reclassification. The Commission also ruled that comparison of the positions held by the respondents with those of attorneys employed by the referenced Logistics Command was not a proper method of classification.
5
The two respondents then instituted this suit in the Court of Claims.2 Each sought an order directing reclassification of his position as of the date (May 8, 1970) of the first administrative denial of his request, and backpay, computed at the difference between his salary and grade GS-14 (and the claimed appropriate within-grade step), from that date. The trial judge, in a long opinion, App. 43-117, concluded that the respondents were not entitled to backpay due to their allegedly wrongful classification. Id., at 57. But he also concluded that the Commission's refusal to reclassify respondents to GS-14 was arbitrary, discriminatory, and not supported by substantial evidence, ibid., and that as a matter of law the respondents were entitled to an order remanding the case to the Commission with direction so to reclassify the respondents. Id., at 58, 117.
6
The Court of Claims considered the case en banc and divided 4-3. The majority disapproved the trial judge's recommendation that the court was empowered to direct the reclassification of respondents to GS-14, for the Court of Claims is not authorized to create an entitlement to a governmental position. "If entitlement depends on the exercise of discretion by someone else we cannot substitute our own discretion." 499 F.2d 690, 691, 205 Ct.Cl. 330, 332 (1974). The majority felt, however, that if the Commission were to determine that it had made an erroneous classification, that determination "could create a legal right which we could then enforce by a money judgment." Id., 499 F.2d, at 691, 205 Ct.Cl., at 333.
7
The majority agreed with the trial judge that the Commission's failure to compare respondents' positions with those of the Logistics Command attorneys was arbitrary and capricious. Id., 499 F.2d, at 691, 205 Ct.Cl., at 331. The court observed: "Ordinarily . . . it is not arbitrary and capricious to refuse to consider the grade of employees other than the ones complaining." But it went on to say: "This case is peculiar in its facts," for the employees "all belong to a small readily manageable cadre, their jobs have a large nexus of duties shared in common, and the other employees are specifically pointed out by the complaining employees." Id., 499 F.2d, at 691, 205 Ct.Cl., at 332. The court ruled that it had the power under the remand statute, 86 Stat. 652, now codified as part of 28 U.S.C. s 1491 (1970 ed., Supp. IV), to order the Commission to reconsider its classification decision "under proper directions." Accordingly, and pursuant to its Rule 149(b), the court remanded the case to the Commission to make the comparison and to report the result to the court.3
8
The dissent argued that the jurisdiction of the Court of Claims is limited to money judgments and, since none had been or could be ordered in this case, the court was without jurisdiction even to remand the case to the Civil Service Commission. In addition, the respondents had not stated a claim upon which relief could be granted, for they were asking for positions, and pay, to which they had never been appointed. The dissent further argued that there is no constitutional right to a governmental position to which one has not been appointed; that the salary of a Government job is payable only to the person appointed to that position; and that the court has no authority to take over the appointing power that the Constitution, Art. II, § 2, has placed in the Executive Department. It asserted that the decision of the majority was but a declaratory judgment, a legal function not within the court's jurisdiction. Finally, the dissent argued that the classification decision of the Commission was neither arbitrary nor capricious and was supported by substantial evidence. 499 F.2d, at 692-694, 205 Ct.Cl., at 334-338.
9
We granted certiorari because of the importance of the issue in the measure of the Court of Claims' statutory jurisdiction, and because of the significance of the court's decision upon the Commission's administration of the civil service classification system. 420 U.S. 923, 95 S.Ct. 1116, 43 L.Ed.2d 392 (1975).
II
10
We turn to the respective statutes that are advanced as support for the action taken by the Court of Claims.
11
A. The Tucker Act. The central provision establishing the jurisdiction of the court is that part of the Tucker Act now codified as 28 U.S.C. § 1491:
12
"The Court of Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort."4
13
This Court recently had occasion to examine the jurisdiction of the Court of Claims under this statutory formulation. In United States v. King, 395 U.S. 1, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969), the Court reviewed a decision (390 F.2d 894, 182 Ct.Cl. 631) in which the Court of Claims had concluded that it was empowered to exercise jurisdiction under the Declaratory Judgment Act, 28 U.S.C. § 2201. This Court observed that the Court of Claims was established by Congress in 1855; that "(t)hroughout its entire history," until the King case was filed, "its jurisdiction has been limited to money claims against the United States Government"; that decided cases in this Court had "reaffirmed ts view of the limited jurisdiction of the Court of Claims," and "the passage of the Tucker Act in 1887 had not expanded that jurisdiction to equitable matters"; that "neither the Act creating the Court of Claims nor any amendment to it" granted that court jurisdiction of the case before it because King's claim was "not limited to actual, presently due money damages from the United States"; and that what King was requesting was "essentially equitable relief of a kind that the Court of Claims has held throughout its history . . . it does not have the power to grant." 395 U.S., at 2-3, 89 S.Ct., at 1502. The Court then went on to hold that the Declaratory Judgment Act did not grant the Court of Claims authority to issue declaratory judgments. Cited in support of all this were Glidden Co. v. Zdanok, 370 U.S. 530, 557, 82 S.Ct. 1459, 1476, 8 L.Ed.2d 671 (1962) (Harlan, J.) (plurality opinion); United States v. Jones, 131 U.S. 1, 9 S.Ct. 669, 33 L.Ed. 90 (1889); and United States v. Alire, 6 Wall. 573, 575, 18 L.Ed. 947 (1868). See Lee v. Thornton, 420 U.S. 139, 95 S.Ct. 853, 43 L.Ed.2d 85 (1975); Richardson v. Morris, 409 U.S. 464, 93 S.Ct. 629, 34 L.Ed.2d 647 (1973); United States v. Sherwood, 312 U.S. 584, 589-591, 61 S.Ct. 767, 771, 85 L.Ed. 1058 (1941).
14
The Tucker Act, of course, is itself only a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages. The Court of Claims has recognized that the Act merely confers jurisdiction upon it whenever the substantive right exists. Eastport S.S. Corp. v. United States, 372 F.2d 1002, 1007-1009, 178 Ct.Cl. 599, 605-607 (1967). We therefore must determine whether the two other federal statutes that are invoked by the respondents confer a substantive right to recover money damages from the United States for the period of their allegedly wrongful civil service classifications.
15
B. The Classification Act. Inasmuch as the trial judge proposed, App. 57, that the respondents were not entitled to backpay under the Back Pay Act, 5 U.S.C. § 5596, and the Court of Claims held that there was no need for it to reach and construe that Act, 499 F.2d, at 691, 205 Ct.Cl., at 333, it is implicit in the court's decision in favor of respondents that a violation of the Classification Act gives rise to a claim for money damages for pay lost by reason of the allegedly wrongful classifications.
16
It long has been established, of course, that the United States, as sovereign, "is immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S., at 586, 61 S.Ct., at 769. And it has been said, in a Court of Claims context, that a waiver of the traditional sovereign immunity "cannot be implied but must be unequivocally expressed." United States v. King, 395 U.S., at 4, 89 S.Ct., at 1503; Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306 (1957). Thus, except as Congress has consented to a cause of action against the United States, "there is no jurisdiction in the Court of Claims more than in any other court to entertain suits against the United States." United States v. Sherwood, 312 U.S., at 587-588, 61 S.Ct., at 770.
17
We find no provision in the Classification Act that expressly makes the United States liable for pay lost through allegedly improper classifications. To be sure, in the "purpose" section of the Act, 5 U.S.C. § 5101(1)(A), Congress stated that it was "to provide a plan for classification of positions whereby . . . the principle of equal pay for substantially equal work will be followed." And in subsequent sections, there are set forth substantive standards for grading particular positions, and provisions for procedures to ensure that those standards are met. But none of these several sections contains an express provision for an award of backpay to a person who has been erroneously classified.
18
In answer to this fact, the respondents and the Amici make two observations. They first argue that the Tucker Act fundamentally waives sovereign immunity with respect to any claim invoking a constitutional provision or a federal statute or regulation, and makes available any and all generally accepted and important forms of redress, including money damages. It is said that the Government has confused two very different issues, namely, whether there has been a waiver of sovereignty, and whether a substantive right has been created, and it is claimed that where there has been a violation of a substantive right, the Tucker Act waives sovereign immunity as to all measures necessary to redress that violation.
19
The argument does not persuade us. As stated above, the Tucker Act is merely jurisdictional, and grant of a right of action must be made with specificity. The respondents do not rest their claims upon a contract; neither do they seek the return of money paid by them to the Government. It follows that the asserted entitlement to money damages depends upon whether any federal statute "can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained." Eastport S.S. Corp. v. United States, 372 F.2d, at 1009, 178 Ct.Cl., at 607; Mosca v. United States, 417 F.2d 1382, 1386, 189 Ct.Cl. 283, 290 (1969), cert. denied, 399 U.S. 911, 90 S.Ct. 2197, 26 L.Ed.2d 565 (1970). We are not ready to tamper with these established principles because it might be thought that they should be responsive to a particular conception of enlightened governmental policy. See Brief for Amici Curiae 9-11. In a suit against the United States, there cannot be a right to money damages without a waiver of sovereign immunity, and we regard as unsound the argument of amici that all substantive rights of necessity create a waiver of sovereign immunity such that money damages are available to redress their violation.
20
We perceive nothing in the Regional Rail Reorganization Act Cases, 419 U.S. 102, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974), cited by the Amici with other cases centering in the Just Compensation Clause of the Fifth Amendment ("nor shall private property be taken for public use, without just compensation"), that lends support to the respondents. These Fifth Amendment cases are tied to the language, purpose, and self-executing aspects of that constitutional provision, Jacobs v. United States, 290 U.S. 13, 16, 54 S.Ct. 26, 27, 78 L.Ed. 142 (1933), and are not authority to the effect that the Tucker Act eliminates from consideration the sovereign immunity of the United States.
21
The respondents and the Amici next argue that the violation of any statute or regulation relating to federal employment automatically creates a cause of action against the United States for money damages because, if this were not so, the employee would then have a right without a remedy, inasmuch as he is denied access to the one forum where he may seek redress.5
22
Here again we are not persuaded. Where the United States is the defendant and the plaintiff is not suing for money improperly exacted or retained, the basis of the federal claim whether it be the Constitution, a statute, or a regulation does not create a cause of action for money damages unless as the Court of Claims has stated, that basis "in itself . . . can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained." Eastport S.S. Corp. v. United States, 372 F.2d, at 1008, 1009, 178 Ct.Cl., at 607. We see nothing akin to this in the Classification Act or in the context of a suit seeking reclassification.
23
The present action, of course, is not one concerning a wrongful discharge or a wrongful suspension. In that situation, at least since the Civil Service Act of 1883, the employee is entitled to the emoluments of his position until he has been legally disqualified. United States v. Wickersham, 201 U.S. 390, 26 S.Ct. 469, 50 L.Ed. 798 (1906). There is no claim here that either respondent has been denied the benefit of the position to which he was appointed. The claim, instead, is that each has been denied the benefit of a position to which he should have been, but was not, appointed. The established rule is that one is not entitled to the benefit of a position until he has been duly appointed to it. United States v. McLean, 95 U.S. 750, 24 L.Ed. 579 (1878); Ganse v. United States, 376 F.2d 900, 902, 180 Ct.Cl. 183, 186 (1967). The Classification Act does not purport by its terms to change that rule, and we see no suggestion in it or in its legislative history that Congress intended to alter it.
24
The case of Selman v. United States, 498 F.2d 1354, 204 Ct.Cl. 675 (1974), pressed upon us by the respondents,6 if correct, is clearly distinguishable. The pay claims there rested flatly upon the mandatory provision contained in 37 U.S.C. § 202(L ) to the effect that an officer "serving as Assistant Judge Advocate General of the Navy is entitled to the basic pay of a rear admiral (lower half) or brigadier general, as appropriate." Neither the Classification Act nor the Back Pay Act contains any mandatory provision of this kind.
25
The situation, as we see it, is not that Congress has left the respondents remediless, as they assert, for their allegedly wrongful civil service classification, but that Congress has not made available to a party wrongfully classified the remedy of money damages through retroactive classification. There is a difference between prospective reclassification, on the one hand, and retroactive reclassification resulting in money damages, on the other. See Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Respondents, of course, have an administrative avenue of prospective relief available to them under the elaborate and structured provisions of the Classification Act, 5 U.S.C. §§ 5101-5115. The Amici so recognize. Brief for Amici Curiae 13-15. Among the Act's provisions along this line are those requiring the Civil Service Commission to engage in supervisory review of an agency's classifications, and, where necessary, to review and reclassify individual positions, 5 U.S.C. § 5110; allowing the Commission to reclassify, § 5112; and allowing the Commission even to revoke or suspend the agency's authority to classify its own positions, § 5111. Indeed, as the Amici describe it: "(T)he Act is not merely a hortatory catalogue of high principles." Brief for Amici Curiae 15. The built-in avenue of administrative relief is one response to these statutory requirements. Review and reclassification may be brought into play at the request of an employee. 5 U.S.C. § 5112(b). And respondents, as has been noted, did just that. A second possible avenue of relief and it, too, seemingly, is only prospective is by way of mandamus, under 28 U.S.C. § 1361, in a proper federal district court. In this way, also, the respondents have asserted their claims. See n. 5, Supra.
26
The respondents, thus, are not entirely without remedy. They are without the remedies in the Court of Claims of retroactive classification and money damages to which they assert they are entitled. Additional remedies of this kind are for the Congress to provide and not for the courts to construct.
27
Finally, we note that if the respondents were correct in their claims to retroactive classification and money damages, many of the federal statutes such as the Back Pay Act that expressly provide money damages as a remedy against the United States in carefully limited circumstances would be rendered superfluous.
28
The Court of Claims, in the present case, sought to avoid all this by its remand to the Civil Service Commission for further proceedings. If, then, the Commission were to find that the respondents were entitled to a higher grade, the Court of Claims announced that it would be prepared on appropriate motion to enter an award of money damages for the respondents for whatever backpay they lost during the period of their wrongful classifications. See Chambers v. United States, 451 F.2d 1045, 196 Ct.Cl. 186 (1971). The remand statute, Pub.L. 92-415, 86 Stat. 652, now codified as part of 28 U.S.C. § 1491 (1970 ed., Supp. IV), authorizes the Court of Claims to "issue orders directing restoration to . . . position, placement in appropriate duty . . . status, and correction of applicable records" in order to complement the relief afforded by a money judgment, and also to "remand appropriate matters to any administrative . . . body" in a case "within its jurisdiction." The remand statute, thus, applies only to cases already within the court's jurisdiction. The present litigation is not such a case.7
29
Respondents cite Allison v. United States, 451 F.2d 1035, 196 Ct.Cl. 263 (1971), and Pettit v. United States, 488 F.2d 1026, 203 Ct.Cl. 207 (1973), as precedent for the remand order in this case. Those cases found the employees' "entitlement" to money damages in an Executive Order, and to that extent might be distinguishable from the instant case. But cf. Ogletree v. McNamara, 449 F.2d 93 (CA6 1971); Gnotta v. United States, 415 F.2d 1271 (CA8 1969), cert. denied, 397 U.S. 934, 90 S.Ct. 941, 25 L.Ed.2d 115 (1970); Manhattan-Bronx Postal Union v. Gronouski, 350 F.2d 451, 121 U.S.App.D.C. 321 (1965), cert. denied, 382 U.S. 978, 86 S.Ct. 548, 15 L.Ed.2d 469 (1966). To the extent, however, that Allison and Pettit rely on the concept that an admission of misclassification by an agency automatically gives rise to a cause of action for money damages against the United States, their reasoning is identical to the Court of Claims' reasoning in the instant case; and to the extent that analysis is now rejected, the analysis of Allison and Pettit is necessarily rejected. See also Chambers v. United States, supra.
30
C. The Back Pay Act. This statute, which the Court of Claims found unnecessary to evaluate in arriving at its decision, does not apply, in our view, to wrongful-classification claims. The Act does authorize retroactive recovery of wages whenever a federal employee has "undergone an unjustified or unwarranted personnel action that has resulted in the withdrawal or reduction of all or a part of" the compensation to which the employee is otherwise entitled. 5 U.S.C. § 5596(b). The statute's language was intended to provide a monetary remedy for wrongful reductions in grade, removals, suspensions, and "other unwarranted or unjustified actions affecting pay or allowances (that) could occur in the course of reassignments and change from full-time to part-time work." S.Rep.No.1062, 89th Cong., 2d Sess., 3 (1966), U.S.Code Cong. & Admin.News 1966, pp. 2097, 2099. The Commission consistently has so construed the Back Pay Act. See 5 CFR § 550.803(e) (1975). So has the Court of Claims. See Desmond v. United States, 201 Ct.Cl. 507, 527 (1973).
31
For many years federal personnel actions were viewed as entirely discretionary and therefore not subject to any judicial review, and in the absence of a statute eliminating that discretion, courts refused to intervene where an employee claimed that he had been wrongfully discharged. Compare Keim v. United States, 177 U.S. 290, 293-296, 20 S.Ct. 574, 575-576, 44 L.Ed. 774 (1900), with United States v. Wickersham, 201 U.S. 390, 26 S.Ct. 469, 50 L.Ed. 798 (1906). See Sampson v. Murray, 415 U.S. 61, 69-70, 94 S.Ct. 937, 942-943, 39 L.Ed.2d 166 (1974). Relief was invariably denied where the claim was that the employee had been denied a promotion on improper grounds. See Keim v. United States, 177 U.S., at 296, 20 S.Ct., at 576; United States v. McLean, 95 U.S., at 753, 24 L.Ed. 579.
32
Congress, of course, now has provided specifically in the Lloyd-LaFollette Act, 5 U.S.C. § 7501, for administrative review of a claim of wrongful adverse action, and in the Back Pay Act for the award of money damages for a wrongful deprivation of pay. But federal agencies continue to have discretion in determining most matters relating to the terms and conditions of federal employment. One continuing aspect of this is the rule, mentioned above, that the federal employee is entitled to receive only the salary of the position to which he was appointed, even though he may have performed the duties of another position or claims that he should have been placed in a higher grade. Congress did not override this rule, or depart from it, with its enactment of the Back Pay Act. It could easily have so provided had that been its intention.8
33
In support of their contention that the Back Pay Act authorizes a claim in the situation here presented, respondents and Amici cite only two cases other than the Court of Claims cases whose reasoning is directly in question here. Neither case supports the proposition. Walker v. Kleindienst, 357 F.Supp. 749 (D.C.1973) (cited by respondents), addressed the issue of the retroactivity of the Equal Employment Opportunity Act of 1972. Ainsworth v. United States, 399 F.2d 176, 185 Ct.Cl. 110 (1968) (cited by Amici ), involved the rights of an employee who had been discharged and subsequently reinstated.
34
Neither of these cases provides a reason for doubting that the Back Pay Act, as its words so clearly indicate, was intended to grant a monetary cause of action only to those who were subjected to a reduction in their duly appointed emoluments or position.
III
35
We therefore conclude that neither the Classification Act nor the Back Pay Act creates a substantive right in the respondents to backpay for the period of their claimed wrongful classifications. This makes it unnecessary for us to consider the additional argument advanced by the United States that the Classification Act does not require that positions held by employees of one agency be compared with those of employees in another agency.
36
The Court of Claims was in error when it remanded the case to the Civil Service Commission for further proceedings. That court's judgment is therefore reversed, and the case is remanded with directions to dismiss the respondents' suit.
37
Reversed and remanded.
38
It is so ordered.
39
Mr. Justice STEVENS took no part in the consideration or decision of this case.
1
Title 5, § 5101. "Purpose.
"It is the purpose of this chapter to provide a plan for classification of positions whereby
"(1) in determining the rate of basic pay which an employee will receive
"(A) the principle of equal pay for substantially equal work will be followed . . .."
2
There is no suggestion that the plaintiff-respondents have not properly pursued and exhausted their administrative remedies.
3
The decision of the Court of Claims in this case is not inconsistent, as to these issues, with other recent cases resolved by divided votes in that court. See Chambers v. United States, 451 F.2d 1045, 196 Ct.Cl. 186 (1971); Allison v. United States, 451 F.2d 1035, 196 Ct.Cl. 263, (1971); Small v. United States, 470 F.2d 1020, 200 Ct.Cl. 11 (1972); Pettit v. United States, 488 F.2d 1026, 203 Ct.Cl. 207 (1973). But see Applegate v. United States, 521 F.2d 1406, 207 Ct.Cl. 999 (1975); Roseman v. United States, 521 F.2d 1406, 207 Ct.Cl. 998 (1975); Kaeserman v. United States, 207 Ct.Cl. 983 (1975); Barnum v. United States, 529 F.2d 531, 207 Ct.Cl. 1024 (1975).
4
Title 28 U.S.C. § 1494 also grants the Court of Claims jurisdiction to determine the amount due from the United States "by reason of any unsettled account of any officer . . . of . . . the United States."
5
The Amici acknowledge that it is conceivable that the respondents will be able to obtain reclassification for the future through the mandamus action they instituted in 1971. See Testan v. Hampton, Civ. No. 71-2250 (E.D.Pa.). That suit apparently lies dormant subject to reactivation. The Government states that if respondents proceed with the action, the United States "will not contest the district court's jurisdiction to entertain respondents' claim for prospective equitable relief." Reply Brief for United States 17 n. 7.
6
Brief for Respondents 12; Tr. of Oral Arg. 25-28.
7
The committee reports relating to Pub.L. 92-415 expressly confirm the understanding that the remand statute "does not extend the class of cases over which the Court of Claims has jurisdiction." S.Rep.No.92-1066, p. 1 (1972); U.S.Code Cong. & Admin.News 1972, pp. 3116, 3117; H.R.Rep.No.92-1023, p. 3 (1972).
8
In 1972, Congress made Title VII of the Civil Rights Act of 1964 applicable to federal employees. 86 Stat. 103, 42 U.S.C. § 2000e(a) (1970 ed., Supp. IV). The nature of that explicit waiver of sovereign immunity is presently before the Court. See Brown v. General Services Administration, 507 F.2d 1300 (CA2 1974), cert. granted, 421 U.S. 987, 95 S.Ct. 1989, 44 L.Ed.2d 476 (1975).
| 89
|
424 U.S. 448
96 S.Ct. 958
47 L.Ed.2d 154
TIME, INC., Petitioner,v.Mary Alice FIRESTONE.
No. 74-944.
Argued Oct. 14, 1975.
Decided March 2, 1976.
Syllabus
After respondent had sought separate maintenance, her husband, the scion of a wealthy industrial family, filed a counterclaim for divorce on grounds of extreme cruelty and adultery. The court granted the counterclaim, stating that "neither party is domesticated, within the meaning of that term as used by the Supreme Court of Florida," and that "the marriage should be dissolved." On the basis of newspaper and wire service reports and information from a bureau chief and a "stringer," petitioner published in its magazine an item reporting that the divorce was granted "on grounds of extreme cruelty and adultery." After petitioner had declined to retract, respondent brought this libel action in the state court. A jury verdict for damages against petitioner was ultimately affirmed by the Florida Supreme Court. Petitioner claims that the judgment violates its rights under the First and Fourteenth Amendments. Held:
1. The standard enunciated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, as later extended, which bars media liability for defamation of a public figure absent proof that the defamatory statements were published with knowledge of their falsity or in reckless disregard of the truth, is inapplicable to the facts of this case. Pp. 452-457.
(a) Respondent was not a "public figure," since she did not occupy "(a role) of especial prominence in the affairs of society," and had not been "thrust . . . to the forefront of particular public controversies in order to influence the resolution of the issues involved." Gertz v. Robert Welch, Inc., 418 U.S. 323, 345, 94 S.Ct. 2997, 3009, 41 L.Ed.2d 789. Pp. 453-455.
(b) The New York Times Rule does not automatically extend to all reports of judicial proceedings regardless of whether the party plaintiff in such proceedings is a public figure who might be assumed to "have voluntarily exposed (himself) to increased risk of injury from defamatory falsehood." Gertz, supra, 418 U.S. at 345, 94 S.Ct. at 3009. There is no substantial reason why one involved in litigation should forfeit that degree of protection afforded by the law of defamation simply by virtue of being drawn into a courtroom. Pp. 455-457.
2. No finding was ever made by the divorce court that respondent was guilty of adultery as petitioner had reported, and though petitioner contends that it faithfully reproduced the precise meaning of the divorce judgment, the jury's verdict, upheld on appeal, rejected petitioner's contention that the report was accurate. Pp. 457-459.
3. In a case such as this, Gertz, supra, imposes the constitutional limitations that (1) compensatory awards "be supported by competent evidence concerning the injury" and (2) liability cannot be imposed without fault. Since Florida permits damages awards in defamation actions based on elements other than injury to reputation, and there was competent evidence here to permit the jury to assess the amount of such injury, the first of these conditions was satisfied. Pp. 459-461.
4. Since, however, there was no finding of fault on the part of the petitioner in its publication of the defamatory material, the second constitutional limitation imposed by Gertz was not met. Though the trial court's failure to submit the question of fault to the jury does not of itself establish noncompliance with the constitutional requirement, none of the Florida courts that considered this case determined that petitioner was at fault. Pp. 461-464.
Fla., 305 So.2d 172, vacated and remanded.
John H. Pickering, Washington, D. C., for petitioner.
Edna L. Caruso, West Palm Beach, Fla., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Petitioner is the publisher of Time, a weekly news magazine. The Supreme Court of Florida affirmed a $100,000 libel judgment against petitioner which was based on an item appearing in Time that purported to describe the result of domestic relations litigation between respondent and her husband. We granted certiorari, 421 U.S. 909, 95 S.Ct. 1557, 43 L.Ed.2d 773 (1975), to review petitioner's claim that the judgment violates its rights under the First and Fourteenth Amendments to the United States Constitution.
2
* Respondent, Mary Alice Firestone, married Russell Firestone, the scion of one of America's wealthier industrial families, in 1961. In 1964, they separated, and respondent filed a complaint for separate maintenance in the Circuit Court of Palm Beach County, Fla. Her husband counterclaimed for divorce on grounds of extreme cruelty and adultery. After a lengthy trial the Circuit Court issued a judgment granting the divorce requested by respondent's husband. In relevant part the court's final judgment read:
3
"This cause came on for final hearing before the court upon the plaintiff wife's second amended complaint for separate maintenance (alimony unconnected with the causes of divorce), the defendant husband's answer and counterclaim for divorce on grounds of extreme cruelty and adultery, and the wife's answer thereto setting up certain affirmative defenses. . . .
4
"According to certain testimony in behalf of the defendant, extramarital escapades of the plaintiff were bizarre and of an amatory nature which would have made Dr. Freud's hair curl. Other testimony, in plaintiff's behalf, would indicate that defendant was guilty of bounding from one bedpartner to another with the erotic zest of a satyr. The court is inclined to discount much of this testimony as unreliable. Nevertheless, it is the conclusion and finding of the court that neither party is domesticated, within the meaning of that term as used by the Supreme Court of Florida . . .
5
"In the present case, it is abundantly clear from the evidence of marital discord that neither of the parties has shown the least susceptibility to domestication, and that the marriage should be dissolved.
6
"The premises considered, it is thereupon
7
"ORDERED AND ADJUDGED as follows:
8
"1. That the equities in this cause are with the defendant; that defendant's counterclaim for divorce be and the same is hereby granted, and the bonds of matrimony which have heretofore existed between the parties are hereby forever dissolved.
9
"4. That the defendant shall pay unto the plaintiff the sum of $3,000 per month as alimony beginning January 1, 1968, and a like sum on the first day of each and every month thereafter until the death or remarriage of the plaintiff." App. 523-525, 528.
10
Time's editorial staff, headquartered in New York, was alerted by a wire service report and an account in a New York newspaper to the fact that a judgment had been rendered in the Firestone divorce proceeding. The staff subsequently received further information regarding the Florida decision from Time's Miami bureau chief and from a "stringer" working on a special assignment basis in the Palm Beach area. On the basis of these four sources, Time's staff composed the following item, which appeared in the magazine's "Milestones" section the following week:
11
"DIVORCED. By Russell A. Firestone Jr., 41, heir to the tire fortune: Mary Alice Sullivan Firestone, 32, his third wife; a onetime Palm Beach schoolteacher; on grounds of extreme cruelty and adultery; after six years of marriage, one son; in West Palm Beach, Fla. The 17-month intermittent trial produced enough testimony of extramarital adventures on both sides, said the judge, 'to make Dr. Freud's hair curl.' "
12
Within a few weeks of the publication of this article respondent demanded in writing a retraction from petitioner, alleging that a portion of the article was "false, malicious and defamatory." Petitioner declined to issue the requested retraction.1
13
Respondent then filed this libel action against petitioner in the Florida Circuit Court. Based on a jury verdict for respondent, that court entered judgment against petitioner for $100,000, and after review in both the Florida District Court of Appeal, 279 So.2d 389 and the Supreme Court of Florida, the judgment was ultimately affirmed. 305 So.2d 172 (1974). Petitioner advances several contentions as to why the judgment is contrary to decisions of this Court holding that the First and Fourteenth Amendments of the United States Constitution limit the authority of state courts to impose liability for damages based on defamation.
II
14
Petitioner initially contends that it cannot be liable for publishing any falsehood defaming respondent unless it is established that the publication was made "with actual malice," as that term is defined in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).2 Petitioner advances two arguments in support of this contention: that respondent is a "public figure" within this Court's decisions extending New York Times to defamation suits brought by such individuals, see, E. g., Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967); and that the Time item constituted a report of a judicial proceeding, a class of subject matter which petitioner claims deserves the protection of the "actual malice" standard even if the story is proved to be defamatorily false or inaccurate. We reject both arguments.
15
In Gertz v. Robert Welch, Inc., 418 U.S. 323, 345, 94 S.Ct. 2997, 3009, 41 L.Ed.2d 789 (1974), we have recently further defined the meaning of "public figure" for the purposes of the First and Fourteenth Amendments:
16
"For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved."
17
Respondent did not assume any role of especial prominence in the affairs of society, other than perhaps Palm Beach society, and she did not thrust herself to the forefront of any particular public controversy in order to influence the resolution of the issues involved in it.
18
Petitioner contends that because the Firestone divorce was characterized by the Florida Supreme Court as a "cause celebre," it must have been a public controversy and respondent must be considered a public figure. But in so doing petitioner seeks to equate "public controversy" with all controversies of interest to the public. Were we to accept this reasoning, we would reinstate the doctrine advanced in the plurality opinion in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), which concluded that the New York Times privilege should be extended to falsehoods defamatory of private persons whenever the statements concern matters of general or public interest. In Gertz, however, the Court repudiated this position, stating that "extension of the New York Times test proposed by the Rosenbloom plurality would abridge (a) legitimate state interest to a degree that we find unacceptable." 418 U.S., at 346, 94 S.Ct., at 3010.
19
Dissolution of a marriage through judicial proceedings is not the sort of "public controversy" referred to in Gertz, even though the marital difficulties of extremely wealthy individuals may be of interest to some portion of the reading public. Nor did respondent freely choose to publicize issues as to the propriety of her married life. She was compelled to go to court by the State in order to obtain legal release from the bonds of matrimony. We have said that in such an instance "(r)esort to the judicial process . . . is no more voluntary in a realistic sense than that of the defendant called upon to defend his interests in court." Boddie v. Connecticut, 401 U.S. 371, 376-377, 91 S.Ct. 780, 785, 28 L.Ed.2d 113 (1971). Her actions, both in instituting the litigation and in its conduct, were quite different from those of General Walker in Curtis Publishing Co., supra.3 She assumed no "special prominence in the resolution of public questions." Gertz, supra, 418 U.S., at 351, 94 S.Ct., at 3013. We hold respondent was not a "public figure" for the purpose of determining the constitutional protection afforded petitioner's report of the factual and legal basis for her divorce.
20
For similar reasons we likewise reject petitioner's claim for automatic extension of the New York Times privilege to all reports of judicial proceedings. It is argued that information concerning proceedings in our Nation's courts may have such importance to all citizens as to justify extending special First Amendment protection to the press when reporting on such events. We have recently accepted a significantly more confined version of this argument by holding that the Constitution precludes States from imposing civil liability based upon the publication of truthful information contained in official court records open to public inspection. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975).
21
Petitioner would have us extend the reasoning of Cox Broadcasting to safeguard even inaccurate and false statements, at least where "actual malice" has not been established. But its argument proves too much. It may be that all reports of judicial proceedings contain some informational value implicating the First Amendment, but recognizing this is little different from labeling all judicial proceedings matters of "public or general interest," as that phrase was used by the plurality in Rosenbloom. Whatever their general validity, use of such subject-matter classifications to determine the extent of constitutional protection afforded defamatory falsehoods may too often result in an improper balance between the competing interests in this area. It was our recognition and rejection of this weakness in the Rosenbloom test which led us in Gertz to eschew a subject-matter test for e focusing upon the character of the defamation plaintiff. See 418 U.S., at 344-346, 94 S.Ct., at 3009-3010. By confining inquiry to whether a plaintiff is a public officer or a public figure who might be assumed to "have voluntarily exposed (himself) to increased risk of injury from defamatory falsehoods," we sought a more appropriate accommodation between the public's interest in an uninhibited press and its equally compelling need for judicial redress of libelous utterances. Cf. Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).
22
Presumptively erecting the New York Times barrier against all plaintiffs seeking to recover for injuries from defamatory falsehoods published in what are alleged to be reports of judicial proceedings would effect substantial depreciation of the individual's interest in protection from such harm, without any convincing assurance that such a sacrifice is required under the First Amendment. And in some instances such an undiscriminating approach might achieve results directly at odds with the constitutional balance intended. Indeed, the article upon which the Gertz libel action was based purported to be a report on the murder trial of a Chicago police officer. See 418 U.S., at 325-326, 94 S.Ct., at 3000. Our decision in that case should make it clear that no such blanket privilege for reports of judicial proceedings is to be found in the Constitution.
23
It may be argued that there is still room for application of the New York Times protections to more narrowly focused reports of what actually transpires in the courtroom. But even so narrowed, the suggested privilege is simply too broad. Imposing upon the law of private defamation the rather drastic limitations worked by New York Times cannot be justified by generalized references to the public interest in reports of judicial proceedings. The details of many, if not most, courtroom battles would add almost nothing toward advancing the uninhibited debate on public issues thought to provide principal support for the decision in New York Times. See 376 U.S., at 270, 84 S.Ct., at 720; cf. Rosenblatt v. Baer, 383 U.S. 75, 86, 86 S.Ct. 669, 676, 15 L.Ed.2d 597 (1966). And while participants in some litigation may be legitimate "public figures," either generally or for the limited purpose of that litigation, the majority will more likely resemble respondent, drawn into a public forum largely against their will in order to attempt to obtain the only redress available to them or to defend themselves against actions brought by the State or by others. There appears little reason why these individuals should substantially forfeit that degree of protection which the law of defamation would otherwise afford them simply by virtue of their being drawn into a courtroom. The public interest in accurate reports of judicial proceedings is substantially protected by Cox Broadcasting Co., supra. As to inaccurate and defamatory reports of facts, matters deserving no First Amendment protection, see 418 U.S., at 340, 94 S.Ct., at 3007; we think Gertz provides an adequate safeguard for the constitutionally protected interests of the press and affords it a tolerable margin for error by requiring some type of fault.
III
24
Petitioner has urged throughout this litigation that it could not be held liable for publication of the "Milestones" item because its report of respondent's divorce was factually correct. In its view the Time article faithfully reproduced the precise meaning of the divorce judgment. But this issue was submitted to the jury under an instruction intended to implement Florida's limited privilege for accurate reports of judicial proceedings, App. 509; see 305 So.2d, at 177. By returning a verdict for respondent the jury necessarily found that the identity of meaning which petitioner claims does not exist even for laymen. The Supreme Court of Florida upheld this finding on appeal, rejecting petitioner's contention that its report was accurate as a matter of law. Because demonstration that an article was true would seem to preclude finding the publisher at fault, see Cox Broadcasting Co., 420 U.S., at 498-500, 95 S.Ct., at 1047 (Powell, J., concurring), we have examined the predicate for petitioner's contention. We believe the Florida courts properly could have found the "Milestones" item to be false.
25
For petitioner's report to have been accurate, the divorce granted Russell Firestone must have been based on a finding by the divorce court that his wife had committed extreme cruelty toward him And that she had been guilty of adultery. This is indisputably what petitioner reported in its "Milestones" item, but it is equally indisputable that these were not the facts. Russell Firestone alleged in his counterclaim that respondent had been guilty of adultery, but the divorce court never made any such finding. Its judgment provided that Russell Firestone's "counterclaim for divorce be and the same is hereby granted," but did not specify that the basis for the judgment was either of the two grounds alleged in the counterclaim. The Supreme Court of Florida on appeal concluded that the ground actually relied upon by the divorce court was "lack of domestication of the parties," a ground not theretofore recognized by Florida law. The Supreme Court nonetheless affirmed the judgment dissolving the bonds of matrimony because the record contained sufficient evidence to establish the ground of extreme cruelty. Firestone v. Firestone, 263 So.2d 223, 225 (1972).
26
Petitioner may well argue that the meaning of the trial court's decree was unclear,4 but this does not license it to choose from among several conceivable interpretations the one most damaging to respondent. Having chosen to follow this tack,5 petitioner must be able to establish not merely that the item reported was a conceivable or plausible interpretation of the decree, but that the item was factually correct. We believe there is ample support for the jury's conclusion, affirmed by the Supreme Court of Florida, that this was not the case. There was, therefore, sufficient basis for imposing liability upon petitioner if the constitutional limitations we announced in Gertz have been satisfied. These are a prohibition against imposing liability without fault, 418 U.S., at 347, 94 S.Ct., at 3010, and the requirement that compensatory awards "be supported by competent evidence concerning the injury." Id., at 350, 94 S.Ct., at 3012.
27
As to the latter requirement little difficulty appears. Petitioner has argued that because respondent withdrew her claim for damages to reputation on the eve of trial, there could be no recovery consistent with Gertz. Petitioner's theory seems to be that the only compensable injury in a defamation action is that which may be done to one's reputation, and that claims not predicated upon such injury are by definition not actions for defamation. But Florida has obviously decided to permit recovery for other injuries without regard to measuring the effect the falsehood may have had upon a plaintiff's reputation. This does not transform the action into something other than an action for defamation as that term is meant in Gertz. In that opinion we made it clear that States could base awards on elements other than injury to reputation, specifically listing "personal humiliation, and mental anguish and suffering" as examples of injuries which might be compensated consistently with the Constitution upon a showing of fault. Because respondent has decided to forgo recovery for injury to her reputation, she is not prevented from obtaining compensation for such other damages that a defamatory falsehood may have caused her.
28
The trial court charged, consistently with Gertz, that the jury should award respondent compensatory damages in "an amount of money that will fairly and adequately compensate her for such damages," and further cautioned that "(i)t is only damages which are a direct and natural result of the alleged libel which may be recovered." App. 509. There was competent evidence introduced to permit the jury to assess the amount of injury. Several witnesses6 testified to the extent of respondent's anxiety and concern over Time's inaccurately reporting that she had been found guilty of adultery, and she herself took the stand to elaborate on her fears that her young son would be adversely affected by this falsehood when he grew older. The jury decided these injuries should be compensated by an award of $100,000. We have no warrant for re-examining this determination. Cf. Lincoln v. Power, 151 U.S. 436, 14 S.Ct. 387, 38 L.Ed. 224 (1894).
IV
29
Gertz established, however, that not only must there be evidence to support an award of compensatory damages, there must also be evidence of some fault on the part of a defendant charged with publishing defamatory material. No question of fault was submitted to the jury in this case, because under Florida law the only findings required for determination of liability were whether the article was defamatory, whether it was true, and whether the defamation, if any, caused respondent harm.
30
The failure to submit the question of fault to the jury does not of itself establish noncompliance with the constitutional requirements established in Gertz, however. Nothing in the Constitution requires that assessment of fault in a civil case tried in a state court be made by a jury, nor is there any prohibition against such a finding being made in the first instance by an appellate, rather than a trial, court. The First and Fourteenth Amendments do not impose upon the States any limitations as to how, within their own judicial systems, factfinding tasks shall be allocated. If we were satisfied that one of the Florida courts which considered this case had supportably ascertained petitioner was at fault, we would be required to affirm the judgment below.
31
But the only alternative source of such a finding, given that the issue was not submitted to the jury, is the opinion of the Supreme Court of Florida. That opinion appears to proceed generally on the assumption that a showing of fault was not required,7 but then in the penultimate paragraph it recites:
32
"Furthermore, this erroneous reporting is clear and convincing evidence of the negligence in certain segments of the news media in gathering the news. Gertz v. Welch, Inc., Supra. Pursuant to Florida law in effect at the time of the divorce judgment (Section 61.08, Florida Statutes), a wife found guilty of adultery could not be awarded alimony. Since petitioner had been awarded alimony, she had not been found guilty of adultery nor had the divorce been granted on the ground of adultery. A careful examination of the final decree prior to publication would have clearly demonstrated that the divorce had been granted on the grounds of extreme cruelty, and thus the wife would have been saved the humiliation of being accused of adultery in a nationwide magazine. This is a flagrant example of 'journalistic negligence.' " 305 So.2d, at 178.
33
It may be argued that this is sufficient indication the court found petitioner at fault within the meaning of Gertz. Nothing in that decision or in the First or Fourteenth Amendment requires that in a libel action an appellate court treat in detail by written opinion all contentions of the parties, and if the jury or trial judge had found fault in fact, we would be quite willing to read the quoted passage as affirming that conclusion. But without some finding of fault by the judge or jury in the Circuit Court, we would have to attribute to the Supreme Court of Florida from the quoted language not merely an intention to affirm the finding of the lower court, but an intention to find such a fact in the first instance.
34
Even where a question of fact may have constitutional significance, we normally accord findings of state courts deference in reviewing constitutional claims here. See, E. g. Lyons v. Oklahoma, 322 U.S. 596, 602-603, 64 S.Ct. 1208, 1212-1213, 88 L.Ed. 1481 (1944); Gallegos v. Nebraska, 342 U.S. 55, 60-61, 72 S.Ct. 141, 144-145, 96 L.Ed. 86 (1951) (opinion of Reed, J.). But that deference is predicated on our belief that at some point in the state proceedings some factfinder has made a conscious determination of the existence or nonexistence of the critical fact. Here the record before us affords no basis for such a conclusion.
35
It may well be that petitioner's account in its "Milestones" section was the product of some fault on its part, and that the libel judgment against it was, therefore, entirely consistent with Gertz. But in the absence of a finding in some element of the state court system that there was fault, we are not inclined to canvass the record to make such a determination in the first instance. Cf. Rosenblatt v. Baer, 383 U.S., at 87-88, 86 S.Ct., at 676-677. Accordingly, the judgment of the Supreme Court of Florida is vacated and the case remanded for further proceedings not inconsistent with this opinion.
36
So ordered.
37
Mr. Justice STEVENS took no part in the consideration or decision of this case.
38
Mr. Justice POWELL, with whom Mr. Justice STEWART joins, concurring.
39
A clear majority of the Court adheres to the principles of Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 997, 41 L.Ed.2d 789 (1974). But it is evident from the variety of views expressed that perceptions differ as to the proper application of such principles to this bizarre case. In order to avoid the appearance of fragmentation of the Court on the basic principles involved, I join the opinion of the Court. I add this concurrence to state my reaction to the record presented for our review.
40
In Gertz we held that "so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual." Id., at 347, 94 S.Ct., at 3011. Thus, while a State may elect to hold a publisher to a lesser duty of care,1 there is no First Amendment constraint against allowing recovery upon proof of negligence. Theapplicability of such a fault standard was expressly limited to circumstances where, as here, "the substance of the defamatory statement 'makes substantial danger to reputation apparent.' "2 Id., at 348, 94 S.Ct., at 3011, quoting Curtis Publishing Co. v. Butts, 388 U.S. 130, 155, 87 S.Ct. 1975, 1991, 18 L.Ed.2d 1094 (1967). By requiring a showing of fault the Court in Gertz sought to shield the press and broadcast media from a rule of strict liability that could lead to intolerable self-censorship and at the same time recognize the legitimate state interest in compensating private individuals for wrongful injury from defamatory falsehoods.
41
In one paragraph near the end of its opinion, the Supreme Court of Florida cited Gertz in concluding that Time was guilty of "journalistic negligence." But, as the opinion of the Court recognizes, Ante, at 462 n. 7, and 463, it is not evident from this single paragraph that any type of fault standard was in fact applied. Assuming that Florida now will apply a negligence standard in cases of this kind, the ultimate question here is whether Time exercised due care under the circumstances: Did Time exercise the reasonably prudent care that a State may constitutionally demand of a publisher or broadcaster prior to a publication whose content reveals its defamatory potential?
42
The answer to this question depends upon a careful consideration of all the relevant evidence concerning Time's actions prior to the publication of the "Milestones" article. But in its conclusory paragraph finding negligence, the Supreme Court of Florida mentioned only the provision of Florida law that proscribed an award of alimony to a wife found guilty of adultery, arguing that the award of alimony to respondent clearly demonstrated that the divorce was granted on other grounds. There is no recognition in the opinion of the ambiguity of the divorce decree and no discussion of any of the efforts made by Time to verify the accuracy of its news report. Nor was there any weighing of the evidence to determine whether there was actionable negligence by Time under the Gertz standard.3
43
There was substantial evidence, much of it uncontradicted, that the editors of Time exercised considerable care in checking the accuracy of the story prior to its publication. The "Milestones" item appeared in the December 22, 1967, issue of Time. This issue went to press on Saturday, December 16, the day after the Circuit Court rendered its decision at about 4:30 in the afternoon. The evening of the 15th the Time editorial staff in New York received an Associated Press dispatch stating that Russell A. Firestone, Jr., had been granted a divorce from his third wife, whom "he had accused of adultery and extreme cruelty." Later that same evening, Time received the New York Daily News edition for December 16, which carried a special bulletin substantially to the same effect as the AP dispatch.
44
On the morning of December 16, in response to an inquiry sent to its Miami bureau, Time's New York office received a dispatch from the head of that bureau quoting excerpts from the Circuit Court's opinion that strongly suggested adultery on the part of both parties.4 Later that day the editorial staff received a message from Time's Palm Beach "stringer" that read, in part: "The technical grounds for divorce according to Joseph Farrish [Sic], Jr., attorney for Mary Alice Firestone, were given as extreme cruelty and adultry [Sic]." App. 532. The stringer's dispatch also included several quotations from the Circuit Court opinion.5 At trial the senior editor testified that although no member of the New York editorial staff had read the Circuit Court's opinion, he had believed that both the stringer and the chief of Time's Miami bureau had read it.
45
The opaqueness of the Circuit Court's decree is also a factor to be considered in assessing whether Time was guilty of actionable fault under the Gertz standard. Although it appears that neither the head of the Miami bureau nor the stringer personally read the opinion or order, the stringer testified at trial that respondent's attorney Farish and others read him portions of the decree over the telephone before he filed his dispatch with Time.6 The record does not reveal whether the limited portions of the decree that shed light on the grounds for the granting of the divorce were read to the stringer.7 But the ambiguity of the divorce decree may well have contributed to the stringer's view, and hence the Time editorial staff's conclusion, that a ground for the divorce was adultery by respondent.
46
However one may characterize it, the Circuit Court decision was hardly a model of clarity. Its opening sentence was as follows:
47
"This cause came on for final hearing before the court upon the plaintiff wife's second amended complaint for separate maintenance (alimony unconnected with the causes of divorce), the defendant husband's answer and counterclaim for divorce on grounds of extreme cruelty and adultery, and the wife's answer thereto setting up certain affirmative defenses." App. 523.
48
After commenting on the conflicting testimony as to respondent's "extra marital escapades" and her husband's "bounding from one bedpartner to another," the opinion states that "it is the conclusion and finding of the court that neither party is domesticated . . . ." Finally, the Circuit Court "ORDERED AND ADJUDGED":
49
"That the equities in this cause are with the defendants that defendant's counterclaim for divorcee and the same is hereby granted, and the bonds of matrimony which have heretofore existed between the parties are hereby forever dissolved." App. 528.
50
The remaining paragraphs in the order portion of the decision relate to child custody and support, disposition of certain property, attorney's fees, and the award of $3,000 per month to the wife (respondent) as alimony. There is no reference whatever in the "order" portion of the decision either to "extreme cruelty" or "adultery," the only grounds relied upon by the husband. But the divorce was granted to him following an express finding "that the equities . . . are with the defendant (the husband)."
51
Thus, on the face of the opinion itself, the husband had counterclaimed for divorce on the grounds of extreme cruelty and adultery, and the court had found the equities to be with him and had granted his counterclaim for divorce. Apart from the awarding of alimony to the wife there is no indication, either in the opinion or accompanying order, that the husband's counterclaim was not granted on both of the grounds asserted. This may be a redundant reading, as either ground would have sufficed. But the opinion that preceded the order was full of talk of adultery and made no explicit reference to any other type of cruelty. In these circumstances, the decision of the Circuit Court may have been sufficiently ambiguous to have caused reasonably prudent newsmen to read it as granting divorce on the ground of adultery.
52
As I join the opinion of the Court remanding this case, it is unnecessary to decide whether the foregoing establishes as a matter of law that Time exercised the requisite care under the circumstances. Nor have I undertaken to identify all of the evidence that may be relevant or to point out conflicts that arguably have been resolved against Time by the jury. My point in writing is to emphasize that, against the background of a notorious divorce case, see Curtis Publishing Co., 388 U.S., at 158-159, 87 S.Ct., at 1993-1994,8 and a decree that invited misunderstanding, there was substantial evidence supportive of Time's defense that it was not guilty of actionable negligence. At the very least the jury or court assessing liability in this case should have weighed these factors and this evidence before reaching a judgment.9 There is no indication in the record before us that this was done in accordance with Gertz10
53
Mr. Justice BRENNAN, dissenting.
54
In my view, the question presented by this case is the degree of protection commanded by the First Amendment's free expression guarantee where it is sought to hold a publisher liable under state defamation laws for erroneously reporting the results of a public judicial proceeding.
55
* In a series of cases beginning with New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), this Court has held that the laws of libel and defamation, no less than other legal modes of restraint on the freedoms of speech and press, are subject to constitutional scrutiny under the First Amendment. The Court has emphasized that the central meaning of the free expression guarantee is that the body politic of this Nation shall be entitled to the communications necessary for self-governance, and that to place restraints on the exercise of expression is to deny the instrumental means required in order that the citizenry exercise that ultimate sovereignty reposed in its collective judgment by the Constitution.1 Accordingly, we have held that laws governing harm incurred by individuals through defamation or invasion of privacy, although directed to the worthy objective of ensuring the "essential dignity and worth of every human being" necessary to a civilized society, Rosenblatt v. Baer, 383 U.S. 75, 92, 86 S.Ct. 669, 679, 15 L.Ed.2d 597 (1966) (Stewart, J., concurring), must be measured and limited by constitutional constraints assuring the maintenance and well-being of the system of free expression. Although "calculated falsehood" is no part of the expression protected by the central meaning of the First Amendment, Garrison v. Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964), error and misstatement is recognized as inevitable in any scheme of truly free expression and debate. New York Times, supra, 376 U.S., at 271-272, 84 S.Ct., at 721-722. Therefore, in order to avoid the self-censorship that would necessarily accompany strict or simple fault liability for erroneous statements, rules governing liability for injury to reputation are required to allow an adequate margin for error protecting some misstatements so that the "freedoms of expression . . . have the 'breathing space' that they 'need . . . to survive.' " Ibid. "(T)o insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones." St. Amant v. Thompson, 390 U.S. 727, 732, 88 S.Ct. 1323, 1326, 20 L.Ed.2d 262 (1968). For this reason, New York Times held that liability for defamation of a public official may not be imposed in the absence of proof of actual malice on the part of the person making the erroneous statement. 376 U.S., at 279-280, 84 S.Ct., at 725-726.2
56
Identical considerations led the Court last Term in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), to hold that the First Amendment commands an absolute privilege to truthfully report the contents of public records reflecting the subject matter of judicial proceedings. Recognizing the possibility of injury to legitimate privacy interests of persons affected by such proceedings, the Court was nevertheless constrained in light of the strong First Amendment values involved to conclude that no liability whatever could be imposed by the State for reports damaging to those concerns. Following the reasoning of New York Times and its progeny, the Court in Cox Broadcasting noted:
57
"(I)n a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring him in convenient form the facts of those operations. Great responsibility is accordingly placed upon the news media to report fully and accurately the proceedings of government, and official records and documents open to the public are the basic data of governmental operations. Without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government generally. With respect to judicial proceedings in particular, the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice. . . .
58
". . . Public records by their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media. The freedom of the press to publish that information appears to us to be of critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business." 420 U.S., at 491-492, 495, 95 S.Ct., at 1044.
59
Crucial to the holding in Cox Broadcasting was the determination that a "reasonable man" standard for imposing liability for invasion of privacy interests is simply inadequate to the task of safeguarding against "timidity and self-censorship" in reporting judicial proceedings. Id., at 496, 95 S.Ct., at 1046. Clearly, the inadequacy of any such standard is no less in the related area of liability for defamation resulting from inadvertent error in reporting such proceedings.
II
60
It is true, of course, that the Court in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2797, 41 L.Ed.2d 789 (1974), cut back on the scope of application of the New York Times privilege as it had evolved through the plurality opinion in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971). Rosenbloom had held the New York Times privilege applicable to "all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous." 403 U.S., at 44, 91 S.Ct., at 1821. But in light of the Court's perception of an altered balance between the conflicting values at stake where the person defamed is in some sense a "private individual," Gertz, supra, at 347, 349-350, 94 S.Ct., at 3010, 3011-3012, held First Amendment interests adequately protected in such circumstances so long as defamation liability is restricted to a requirement of "fault" and proof of "actual injury" resulting from the claimed defamation.3 418 U.S., at 349-350,94 S.Ct., at 3011-3012. However, the extension of the relaxed standard of Gertz to news reporting of events transpiring in and decisions arising out of public judicial proceedings is unwarranted by the terms of Gertz itself, is contrary to other well-established precedents of this Court and, most importantly, savages the cherished values encased in the First Amendment.
61
There is no indication in Gertz of any intention to overrule the Rosenbloom decision on its facts. Confined to those facts, Rosenbloom holds that in instances of erroneous reporting of the public actions of public officials, the New York Times actual-malice standard must be met before liability for defamation may be imposed in favor of persons affected by those actions. Although Gertz clearly altered the broader rationale of Rosenbloom, until the Court's decision today it could not have been supposed that Rosenbloom did not remain the law roughly to the extent of my Brother White's concurring statement therein:
62
"(I)n defamation actions, absent actual malice as defined in New York Times Co. v. Sullivan, the First Amendment gives the press and the broadcast media a privilege to report and comment upon the official actions of public servants in full detail, with no requirement that the reputation or the privacy of an individual involved in or affected by the official action be spared from public view." 403 U.S. at 62, 91 S.Ct., at 1829.4
63
At stake in the present case is the ability of the press to report to the citizenry the events transpiring in the Nation's judicial systems. There is simply no meaningful or constitutionally adequate way to report such events without reference to those persons and transactions that form the subject matter in controversy.5 This Court has long held:
64
"A trial is a public event. What transpires in the court room is public property. . . . Those who see and hear what transpired can report it with impunity. There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it." Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546 (1947).6
65
The Court has recognized that with regard to the judiciary, no less than other areas of government, the press performs an indispensable role by "subjecting the . . . judicial processes to extensive public scrutiny and criticism." Sheppard v. Maxwell, 384 U.S. 333, 350, 86 S.Ct. 1507, 1515, 16 L.Ed.2d 600 (1966). And it is critical that the judicial processes be open to such scrutiny and criticism, for, as the Court has noted in the specific context of labor disputes, the more acute public controversies are, "the more likely it is that in some aspect they will get into court." Bridges v. California, 314 U.S. 252, 268-269, 62 S.Ct. 190, 196, 86 L.Ed. 192 (1941).7 Indeed, slight reflection is needed to observe the insistent and complex interaction between controversial judicial proceedings and popular impressions thereof and fundamental legal and political changes in the Nation throughout the 200 years of evolution of our political system. With the judiciary as with all other aspects of government, the First Amendment guarantees to the people of this Nation that they shall retain the necessary means of control over their institutions that might in the alternative grow remote, insensitive, and finally acquisitive of those attributes of sovereignty not delegated by the Constitution.8
66
Also no less true than in other areas of government, error in reporting and debate concerning the judicial process is inevitable. Indeed, in view of the complexities of that process and its unfamiliarity to the laymen who report it, the probability of inadvertent error may be substantially greater.9
67
"There is perhaps no area of news more inaccurately reported factually, on the whole, though with some notable exceptions, than legal news.
68
'Some part of this is due to carelessness . . . . But a great deal of it must be attributed, in candor, to ignorance which frequently is not at all blameworthy. For newspapers are conducted by men who are laymen to the law. With too rare exceptions their capacity for misunderstanding the significance of legal events and procedures, not to speak of opinions, is great. But this is neither remarkable nor peculiar to newsmen. For the law, as lawyers best know, is full of perplexities.
69
"In view of these facts any standard which would require strict accuracy in reporting legal events factually or in commenting upon them in the press would be an impossible one. Unless the courts and judges are to be put above criticism, no such rule can obtain. There must be some room for misstatement of fact, as well as for misstatement, if the press and others are to function as critical agencies in our democracy concerning courts as for all other instruments of government." Pennekamp v. Florida, 328 U.S. 331, 371-372, 66 S.Ct. 1029, 1049, 90 L.Ed. 1295 (1946) (Rutledge, J., concurring).10
70
For precisely such reasons, we have held that the contempt power may not be used to punish the reporting of judicial proceedings merely because a reporter "missed the essential point in a trial or failed to summarize the issues to accord with the views of the judge who sat on the case." Craig v. Harney, 331 U.S., at 375, 67 S.Ct., at 1254. See also Pennekamp v. Florida, supra. And "(w)hat a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel." New York Times, 376 U.S., at 277, 84 S.Ct., at 724. The First Amendment insulates from defamation liability a margin for error sufficient to ensure the avoidance of crippling press self-censorship in the field of reporting public judicial affairs. To be adequate, that margin must be both of sufficient breadth and predictable in its application. In my view, therefore, the actual-malice standard of New York Times must be met in order to justify the imposition of liability in these circumstances.
71
Mr. Justice WHITE, dissenting.
72
I would affirm the judgment of the Florida Supreme Court because First Amendment values will not be furthered in any way by application to this case of the fault standards newly drafted and imposed by Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), upon which my Brother REHNQUIST relies, or the fault standards required by Roseloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), upon which my Brother BRENNAN relies; and because, in any event, any requisite fault was properly found below.
73
The jury found on ample evidence that the article published by petitioner Time, Inc., about respondent Firestone was false and defamatory. This Court has held, and no one seriously disputes, that, regardless of fault, "there is no constitutional value in false statements of fact." "They belong to that category of utterances which ' . . . are of such slight social value as' " to be worthy of no First Amendment protection. Gertz v. Robert Welch, Inc., supra, 418 U.S., at 340, 94 S.Ct., at 3007, quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). This Court's decisions from New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), through Gertz v. Robert Welch, Inc., supra, holding that the Constitution requires a finding of some degree of fault as a precondition to a defamation award, have done so for one reason and one reason alone: unless innocent falsehood is allowed as a defense, some true speech will also be deterred. Thus "(t)he First Amendment requires that we protect some falsehood In order to protect speech that matters," Gertz v. Robert Welch, Inc., supra, 418 U.S. at 341, 94 S.Ct. at 3007 (emphasis supplied), E. g., true fact statements. In light of these decisions, the threshold question in the instant case should be whether requiring proof of fault on the part of Time, Inc., as a precondition to recovery in this case and thereby possibly interfering with the State's desire to compensate respondent Firestone will contribute in any way to the goal of protecting "speech that matters." I think it would not.
74
At the time of the defamatory publication in this case December 1967 the law clearly authorized liability without fault in defamation cases of the sort involved here.* Whatever the chilling effect of that rule of law on publication of "speech that matters" in 1967 might have been, it has already occurred and is now irremediable. The goal of protecting "speech that matters" by announcing rules, as this Court did in Gertz v. Robert Welch, Inc., supra, and Rosenbloom v. Metromedia, Inc., supra, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296, requiring fault as a precondition to a defamation recovery under circumstances such as are involved here, is Fully achieved so long as fault is required for cases in which the publication occurred After the dates of those decisions. This is not such a case.
75
Therefore, to require proof of fault in this case or in any other case predating Gertz and Rosenbloom in which a private figure is defamed is to interfere with the State's otherwise legitimate policy of compensating defamation victims without furthering First Amendment goals In any way at all. In other areas in which the Court has developed a rule designed not to achieve justice in the case before it but designed to induce socially desirable conduct by some group in the future, the Court has declined to apply the rule to fact situations predating its announcement, E. g. Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388 (1971) (plurality opinion). The Court should follow a similar path here.
76
In any event, the judgment of the court below should be affirmed. My Brother REHNQUIST concludes that negligence is sufficient fault, under Gertz, to justify the judgment below, and that a finding of negligence may constitutionally be supplied by the Florida Supreme Court. I agree. Furthermore, the state court referred to Gertz v. Robert Welch, Inc., by name; noted the "convincing evidence of . . . negligence" in the case; pointed out that a careful examination of the divorce decree would have "clearly demonstrated" that the divorce was not grounded on adultery, as reported by Time, Inc.; and stated flatly: "This is a flagrant example of 'journalistic negligence.' " 305 So.2d 172, 178 (1974). It appears to me that the Florida Supreme Court has made a sufficiently "conscious determination," Ante, at 463, of the fact of negligence. If it is Gertz that controls this case and if that decision is to be applied retroactively, I would affirm the judgment.
77
Mr. Justice MARSHALL, dissenting.
78
The Court agrees with the Supreme Court of Florida that the "actual malice" standard of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), does not apply to this case. Because I consider the respondent, Mary Alice Firestone, to be a "public figure" within the meaning of our prior decisions, Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), I respectfully dissent.
79
* Mary Alice Firestone was not a person "first brought to public attention by the defamation that is the subject of the lawsuit." Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 78, 86, 91 S.Ct. 1811, 1841, 29 L.Ed.2d 296 (1971) (Marshall, J., dissenting). On the contrary, she was "prominent among the '400' of Palm Beach society," and an "active (member) of the sporting set," 271 So.2d 745, 751 (Fla.1972), whose activities predictably attracted the attention of a sizable portion of the public. Indeed, Mrs. Firestone's appearances in the press were evidently frequent enough to warrant her subscribing to a press-clipping service.
80
Mrs. Firestone brought suit for separate maintenance, with reason to know of the likely public interest in the proceedings. As the Supreme Court of Florida noted, Mr. and Mrs. Firestone's "marital difficulties were . . . well-known," and the lawsuit became "a veritable cause celebre in social circles across the country." Ibid. The 17-month trial and related events attracted national news coverage, and elicited no fewer than 43 articles in the Miami Herald and 45 articles in the Palm Beach Post and Palm Beach Times. Far from shunning the publicity, Mrs. Firestone held several press conferences in the course of the proceedings.
81
These facts are sufficient to warrant the conclusion that Mary Alice Firestone was a "public figure" for purposes of reports on the judicial proceedings she initiated. In Gertz v. Robert Welch, Inc., supra, 418 U.S., at 352, 94 S.Ct., at 1013, we noted that an individual can be a public figure for some purposes and a private figure for others. And we found two distinguishing features between public figures and private figures. First, we recognized that public figures have less need for judicial protection because of their greater ability to resort to self-help: "public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy." 418 U.S., at 344, 94 S.Ct., at 3009.
82
As the above recital of the facts makes clear, Mrs. Firestone is hardly in a position to suggest that she lacked access to the media for purposes relating to her lawsuit. It may well be that she would have had greater difficulty countering alleged falsehoods in the national press than in the Miami and Palm Beach papers that covered the proceedings so thoroughly. But presumably the audience Mrs. Firestone would have been most interested in reaching could have been reached through the local media. In any event, difficulty in reaching all those who may have read the alleged falsehood surely ought not preclude a finding that Mrs. Firestone was a public figure under Gertz. Gertz set no absolute requirement that an individual be able fully to counter falsehoods through self-help in order to be a public figure. We viewed the availability of the self-help remedy as a relative matter in Gertz, and set it forth as a minor consideration in determining whether an individual is a public figure.
83
The second, "more important," consideration in Gertz was a normative notion that public figures are less deserving of protection than private figures: That although "it may be possible for someone to become a public figure through no purposeful action of his own," generally those classed as public figures have "thrust themselves to the forefront of particular public controversies" and thereby "invite(d) attention and comment." Id., at 344-345, 94 S.Ct., at 3009. And even if they have not, "the communications media are entitled to act on the assumption that . . . public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them." Id., at 345, 94 S.Ct., at 3010.
84
We must assume that it was by choice that Mrs. Firestone became an active member of the "sporting set" a social group with "especial prominence in the affairs of society," Ibid., whose lives receive constant media attention. Certainly there is nothing in the record to indicate otherwise, and Mrs. Firestone's subscription to a press-clipping service suggests that she was not altogether uninterested in the publicity she received. Having placed herself in a position in which her activities were of interest to a significant segment of the public, Mrs. Firestone chose to initiate a lawsuit for separate maintenance, and most significantly, held several press conferences in the course of that lawsuit. If these actions for some reason fail to establish as a certainty that Mrs. Firestone "voluntarily exposed (herself) to increased risk of injury from defamatory falsehood," surely they are sufficient to entitle the press to act on the assumption that she did. Accordingly, Mrs. Firestone would appear to be a public figure under Gertz.
85
The Court resists this result by concluding that the subject matter of the alleged defamation was not a "public controversy" as that term was used in Gertz. In part, the Court's conclusion rests on what I view as an understatement of the degree to which Mrs. Firestone can be said to have voluntarily acted in a manner that invited public attention. But more fundamentally its conclusion rests on a reading of Gertz that differs from mine. The meaning that the Court attributes to the term "public controversy" used in Gertz resurrects the precise difficulties that I thought Gertz was designed to avoid.
86
It is not enough for the Court that, because of Mrs. Firestone's acquired prominence within a segment of society, her lawsuit had already attracted significant public attention and comment when the Time report was published. According to the Court, the controversy, already of interest to the public, was "not the sort of 'public controversy' referred to in Gertz." Ante, at 454. The only explanation I can discern from the Court's opinion is that the controversy was not of the sort deemed relevant to the "affairs of society," Ante, at 453, and the public's interest not of the sort deemed "legitimate" or worthy of judicial recognition.
87
If there is one thing that is clear from Gertz, it is that we explicitly rejected the position of the plurality in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), that the applicability of the New York Times standard depends upon whether the subject matter of a report is a matter of "public or general concern." We explained in Gertz that the test advanced by the Rosenbloom plurality
88
"would occasion the . . . difficulty of forcing state and federal judges to decide on an Ad hoc basis which publications address issues of 'general or public interest' and which do not to determine, in the words of Mr. Justice Marshall, 'what information is relevant to self-government.' Rosenbloom v. Metromedia, Inc., 403 U.S., at 79, 91 S.Ct., at 1837. We doubt the wisdom of committing this task to the conscience of judges." 418 U.S., at 346, 94 S.Ct., at 3010.
89
Having thus rejected the appropriateness of judicial inquiry into "the legitimacy of interest in a particular event or subject," Rosenbloom, supra, 403 U.S., at 79, 91 S.Ct., at 1837 (Marshall, J., dissenting), Gertz obviously did not intend to sanction any such inquiry by its use of the term "public controversy." Yet that is precisely how I understand the Court's opinion to interpret Gertz.1
90
If Gertz is to have any meaning at all, the focus of analysis must be on the actions of the individual, and the degree of public attention that had already developed, or that could have been anticipated, before the report in question. Under this approach, the class of public figures must include an individual like Mrs. Firestone, who acquired a social prominence that could be expected to attract public attention, initiated a lawsuit that predictably attracted more public attention, and held press conferences in the course of and in regard to the lawsuit.2 I would hold that, for purposes of this case, Mrs. Firestone is a public figure, who must demonstrate that the report in question was published with "actual malice" that is, with knowledge that it was false or with reckless disregard of whether it was false or not.
II
91
While the foregoing discussion is sufficient to dispose of the case under my reading of the law, two other aspects of the Court's opinion warrant comment. First, the Court appears to reject the contention that a rational interpretation of an ambiguous document is always entitled to some constitutional protection. The Court reads Time, Inc. v. Pape, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971), as providing such protection only under the rubric of the New York Times "actual malice" standard. Ante, at 459 n. 4. I disagree. While the precise holding in Pape was that the choice of one of several rational interpretations of an ambiguous document is not enough to create a jury issue of "actual malice," the Court's reasoning suggests that its holding ought not be so confined. In introducing its discussion, the Court noted:
92
"(A) vast amount of what is published in the daily and periodical press purports to be descriptive of what somebody Said rather than of what anybody Did. Indeed, perhaps the largest share of news concerning the doings of government appears in the form of accounts of reports, speeches, press conferences, and the like. The question of the 'truth' of such an indirect newspaper report presents rather complicated problems." 401 U.S., at 285-286, 91 S.Ct., at 637 (emphasis in original).
93
And in discussing the need for some protection for the publisher attempting to report the gist of a lengthy government document, the Court observed:
94
"Where the document reported on is so ambiguous as this one was, it is hard to imagine a test of 'truth' that would not put the publisher virtually at the mercy of the unguided discretion of a jury." Id. at 291, 91 S.Ct., at 640.
95
Surely the Court's evident concern that publishers be accorded the leeway to offer rational interpretations of ambiguous documents was not restricted to cases in which the New York Times standard is applicable. That concern requires that protection for rational interpretations be accorded under the fault standard contemplated in Gertz. Thus my Brothers POWELL and STEWART, while joining the opinion of the Court, recognize that the rationality of an interpretation of an ambiguous document must figure as a crucial element in any assessment of fault under Gertz. Ante, at 467-469. I agree. The choice of one of several rational interpretations of an ambiguous document, without more, is insufficient to support a finding of fault under Gertz.
96
Finally, assuming that the Court is correct in its assessment of the law in this case, I find the Court's disposition baffling. The Court quotes that portion of the Florida Supreme Court's opinion which, citing Gertz, states in no uncertain terms that Time's report was a "flagrant example of 'journalistic negligence.' " 305 So.2d 172, 178 (1974). But the Court is unwilling to read that statement as a "conscious determination" of fault, and accordingly the Court remands the case for an assessment of fault.
97
Sure the Court cannot be suggesting that the quoted portion of the Supreme Court of Florida's opinion, which contained a citation to Gertz, had no meaning at all. And if it did have meaning, it must have reflected either an intention to find fault or an intention to affirm a finding of fault. It is quite clear that the opinion was not intended to affirm any finding of fault, for as the Court observes there was no finding of fault to affirm. The question of fault had not been submitted to the jury, and the District Court of Appeal had explicitly noted the absence of any proof that Time had been negligent. 254 So.2d 386, 390 (1971). The absence of any prior finding of fault only reinforces what the Florida Supreme Court's language itself makes clear that the court was not simply affirming a finding of fault, but making such a finding in the first instance.
98
I therefore agree with my Brother WHITE that the Supreme Court of Florida made a conscious determination of fault. I would add, however, that it is a determination that is wholly unsupportable. The sole basis for that court's determination of fault was that under Florida law a wife found guilty of adultery cannot be, as Mrs. Firestone was, awarded alimony. Time, the court reasoned, should have realized that a divorce decree containing an award of alimony could not, consistent with Florida law, have been based on adultery. But that reasoning assumes that judicial decisions can always be squared with the prior state of the law. If we need be reminded that courts occasionally err in their assessment of the law, we need only refer to the subsequent history of the divorce decree involved in this case: When the divorce case reached the Supreme Court of Florida, that court found that the divorce had been granted for lack of "domestication" and pointed out that that was not one of the statutory grounds for divorce. Firestone v. Firestone, 263 So.2d 223 (1972). Time's responsibility was to report accurately what the trial court did, not what it could or should have done. If the trial court awarded alimony while basing the divorce on a finding of adultery by the wife, Time cannot be faulted for reporting that fact. Unless there is some basis for a finding of fault other than that given by the Supreme Court of Florida, I think it clear that there can be no liability.
1
Under Florida law the demand for retraction was a prerequisite for filing a libel action, and permits defendants to limit their potential liability to actual damages by complying with the demand. Fla.Stat.Ann. §§ 770.01-770.02 (1963).
2
The "actual malice" test requires that a plaintiff prove that the defamatory statement was made "with knowledge that it was false or with reckless disregard of whether it was false or not." 376 U.S., at 280, 84 S.Ct., at 726.
3
Nor do we think the fact that respondent may have held a few press conferences during the divorce proceedings in an attempt to satisfy inquiring reporters converts her into a "public figure." Such interviews should have had no effect upon the merits of the legal dispute between respondent and her husband or the outcome of that trial, and we do not think it can be assumed that any such purpose was intended. Moreover, there is no indication that she sought to use the press conferences as a vehicle by which to thrust herself to the forefront of some unrelated controversy in order to influence its resolution. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 345, 94 S.Ct. 2997, 3009, 41 L.Ed.2d 789 (1974).
4
Petitioner is incorrect in arguing that a rational interpretation of an ambiguous document is constitutionally protected under our decision in Time, Inc. v. Pape, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971). There we were applying the New York Times standard to test whether the defendant had acted in reckless disregard of the truth. Id., at 292, 91 S.Ct., at 640. But as we have concluded that the publication in this case need not be tested against the "actual malice" standard, Pape is of no assistance to petitioner.
5
In fact, it appears that none of petitioner's employees actually saw the decree prior to publication of the "Milestones" article. But we do not think this can affect the extent of constitutional protection afforded the statement. Moreover, petitioner has maintained throughout that it would have published an identical statement if its editorial staff had had an opportunity to peruse the judgment prior to their publication deadline, and has consistently contended that its article was true when compared to the words of that judgment.
6
These included respondent's minister, her attorney in the divorce proceedings, plus several friends and neighbors, one of whom was a physician who testified to having to administer a sedative to respondent in an attempt to reduce discomfort wrought by her worrying about the article.
7
After reiterating its conclusion that the article was false, the Florida court noted that falsely accusing a woman of adultery is libelous Per se and normally actionable without proof of damages. The court then recognized that our opinion in Gertz necessarily displaced this presumption of damages but ruled that the trial court's instruction was consistent with Gertz and that there was evidence to support the jury's verdict conclusions with which we have agreed. The court went on to reject a claim of privilege under state law, pointing out that the privilege shielded only "fair and accurate" reports and the jury had resolved these issues against petitioner. The court appears to have concluded its analysis of petitioner's legal claims with this statement, which immediately precedes the paragraph set out in the text:
"Careful examination and consideration of the record discloses that the judgment of the trial court is correct and should have been affirmed on appeal to the District Court." 305 So.2d, at 177-178.
There is nothing in the court's opinion which appears to make any reference to the relevance of some concept of fault in determining petitioner's liability.
1
A State, if it elected to do so, could require proof of gross negligence before holding a publisher or broadcaster liable for defamation. In Gertz, we concluded "that the States should retain substantial latitude in their efforts to enforce a legal remedy for defamatory falsehood injurious to the reputation of a private individual." 418 U.S., at 345-346, 94 S.Ct., at 3010.
2
In amplification of this limitation, we referred to the type of "factual misstatement whose content (does) not warn a reasonably prudent editor or broadcaster of its defamatory potential." Id., at 348, 94 S.Ct., at 3011.
3
The absence of any assessment of fault under the Gertz standard by the Supreme Court of Florida is fatal here because there was no such finding at any other level of judgment in this proceeding. Ante at 461-463, and n. 7.
4
The excerpts included: " 'According to certain testimony in behalf of the defendant (husband), extra marital escapades of the plaintiff (wife) were bizarre and of an amatory nature which would have made Dr. Freud's hair curl. Other testimony, in the plaintiff's behalf, would indicate that the defendant was guilty of bounding from one bed partner to another with the erotic zest of a satyr.' " App. 544.
5
Based on these news items and dispatches, the Time editorial team, consisting of a researcher, writer, and senior editor in charge of the "Milestones" section of the magazine, wrote, edited, and checked the article for accuracy. At trial they testified as to their complete belief in the truth of the news item at the time of publication.
6
Several hours after filing his dispatch, the stringer spoke with the divorce judge by telephone. According to testimony of the stringer at trial the divorce judge read him portions of the decree, and none of this information was inconsistent with that contained in his dispatch to Time; otherwise, he would have alerted Time's New York office immediately.
7
Time did not consider the stringer to be an employee. He worked for Time part time and was compensated at an hourly rate, although he was guaranteed a minimum amount of work each year. In this case, he was contacted by the chief of the Miami bureau and requested to investigate the Firestone divorce decree. There is thus a question whether the fault, if any, of the stringer in not personally reading the entire opinion and order, is even a factor that may be considered in assessing whether there was actionable fault by Time under Gertz. Cf. Cantrell v. Forest City Publishing Co., 419 U.S. 245, 253-254, 95 S.Ct. 465, 470-471, 42 L.Ed.2d 419 (1974).
8
In its first opinion remanding the case to the District Court of Appeal, after referring to the general prominence of the Firestones, the Supreme Court of Florida indicated that "their marital difficulties were equally well known; and the charges and countercharges of meretriciousness, flowing from both sides of the controversy, made their divorce action a veritable Cause celebre in social circles across the country." 271 So.2d 745, 751 (1972). The District Court of Appeal similarly observed that in part due to the sensational and colorful testimony the 17-month divorce trial had been the object of national news coverage. 254 So.2d 386, 389 (1971). The reports Time received that the decree was granted on the ground of adultery therefore were consistent with the well-publicized trial revelations.
9
Indeed, I agree with the view expressed by Mr. Justice MARSHALL in his dissenting opinion: Unless there exists some basis for a finding of fault other than that given by the Supreme Court of Florida there can be no liability.
10
The Florida District Court of Appeal, on the second appeal to it, reversed a judgment for respondent. In doing so, it applied the New York Times "actual malice" standard, but added: "Nowhere was there proof Time was even negligent, much less intentionally false or in reckless disregard of the truth." 254 So.2d, at 390. A problem infecting the various decisions in the Florida courts is the understandable uncertainty as to exactly what standard should be applied. This case was in litigation several years before Gertz was decided.
1
See Kalven, The New York Times Case: A Note on "The Central Meaning of the First Amendment," 1964 Sup.Ct.Rev. 191; Meiklejohn, The First Amendment Is An Absolute, 1961 Sup.Ct.Rev. 245. See also Bloustein, The First Amendment and Privacy: The Supreme Court Justice and the Philosopher, 28 Rutgers L.Rev. 41 (1974); Meiklejohn, Public Speech in the Supreme Court Since New York Times v. Sullivan, 26 Syracuse L.Rev. 819 (1975).
2
The protection of the actual-malice test extends to erroneous statements that in any way "might touch on . . . (the) fitness for office" of a public official, Garrison v. Louisiana, 379 U.S. 64, 77, 85 S.Ct., at 217 (1964), or a candidate for public office, Monitor Patriot Co. v. Roy, 401 U.S. 265, 274, 91 S.Ct. 621, 626, 28 L.Ed.2d 35 (1971). The actual malice standard has been applied "at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs," Rosenblatt v. Baer, 383 U.S. 75, 85, 86 S.Ct., at 676 (1966), and further to "public figures" who are "intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large." Curtis Publishing Co. v. Butts, 388 U.S. 130, 164, 87 S.Ct. 1975, 1996, 18 L.Ed.2d 1094 (1967) (Warren, C. J., concurring in result).
As an erroneous judgment of liability is, in view of the First Amendment values at stake of more serious concern than an erroneous judgment in the opposite direction, Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 50, 91 S.Ct. 1811, 1823, 29 L.Ed.2d 296 (1971), the Court has held that actual malice must be demonstrated with "convincing clarity." New York Times, 376 U.S., at 285-286, 84 S.Ct., at 728-729. The actual-malice standard requires a showing that the erroneous statements were made in knowing or reckless disregard of their falsity, Id., at 280, 84 S.Ct., at 726, and has been otherwise defined as requiring a showing that the statements were made by a person who in fact was entertaining "serious doubts" as to their truth. St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct., at 1325 (1968).
3
In this case, the $100,000 damage award was premised entirely on the injury of mental pain and anguish. All claims as to injury to reputation were withdrawn prior to trial, and no evidence concerning damage to reputation was presented at trial. (Indeed, it appears that petitioner was affirmatively precluded from offering evidence to refute any possible jury assumption in this regard by a pretrial order granting "Plaintiff's Motion to Limit Testimony," App. 77.) It seems clear that by allowing this type of recovery the State had subverted whatever protective influence the "actual injury" stricture may possess. Gertz would, of course, allow for an award of damages for such injury after proof of injury to reputation. 418 U.S., at 349-350, 94 S.Ct., at 3011-3012. But to allow such damages without proof "by competent evidence" of any other "actual injury" is to do nothing less than return to the old rule of presumed damages supposedly outlawed by Gertz in instances where the New York Times standard is not met. 418 U.S., at 349, 94 S.Ct., at 3011. See Anderson, Libel and Press Self-Censorship, 53 Tex.L.Rev. 422, 472-473 (1975); Eaton, The American Law of Defamation through Gertz v. Robert Welch, Inc. and Beyond: An Analytical Primer, 61 Va.L.Rev. 1349, 1436-1437 (1975). The result is clearly to invite "gratuitous awards of money damages far in excess of any actual injury" and jury punishment of "unpopular opinion rather than (compensation to) individuals for injury sustained by the publication of a false fact." Gertz, supra, at 349, 94 S.Ct., at 3012.
Furthermore, the allowance of damages for mental suffering alone will completely abrogate the use of summary judgment procedures in defamation litigation. Cf. Anderson, Supra, at 469 n. 218. The use of such summary procedures may be a critical factor enabling publishers to avoid large litigation expenses in marginal and frivolous defamation suits. The specter of such expenses may be as potent a force for self-censorship as any threat of an ultimate damages award. See generally Ibid.
4
Cf. Anderson, Supra, n. 3, at 450-451, concluding that the Gertz opinion suggests a "category of involuntary public figures" roughly equivalent to "individual(s) involved in or affected by . . . official action" as defined by my Brother White in Rosenbloom, 403 U.S., at 62, 91 S.Ct., at 1829.
5
Cf. Rosenbloom v. Metromedia, Inc., supra, 403 U.S., at 61, 91 S.Ct., at 1828 (White, J., concurring):
"Discussion of the conduct of public officials cannot . . . be subjected to artificial limitations designed to protect others involved in an episode with officials from unfavorable publicity. Such limitations would deprive the public of full information about the official action that took place."
6
Craig also refutes any contention that private civil litigation is somehow different in this respect. 331 U.S., at 378, 67 S.Ct., at 1256.
7
An early and sympathetic observer of our Nation's political system commented:
"The judicial organization of the United States is the institution which a stranger has the greatest difficulty in understanding. He hears the authority of a judge invoked in the political occurrences of every day, and he naturally concludes that in the United States the judges are important political functionaries; nevertheless, when he examines the nature of the tribunals, they offer at the first glance nothing that is contrary to the usual habits and privileges of those bodies; and the magistrates seem to him to interfere in public affairs only by chance, but by a chance that recurs every day.
"Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." 1 A. de Tocqueville, Democracy in America 98, 280 (P. Bradley Knoff ed. 1948).
8
Even those who would narrowly confine the central meaning of the First Amendment to "explicitly political speech" recognize that this must extend to all speech "concerned with governmental behavior, policy or personnel, whether the governmental unit involved is executive, legislative, judicial or administrative." Bork, Neutral Principles and Some First Amendment Problems, 47 Ind.L.J. 1, 27-28 (1971).
9
The difficulties encountered by laymen attempting to report in summarized form the results of judicial proceedings are surely illustrated in the instant case. Respondent's husband in counterclaiming for divorce had alleged grounds of "extreme cruelty and adultery," a fact reported in the subsequent judicial opinion. That opinion went on to state:
"According to certain testimony in behalf of the defendant, extramarital escapades of the plaintiff were bizarre and of an amatory nature which would have made Dr. Freud's hair curl. Other testimony, in plaintiff's behalf, would indicate that defendant was guilty of bounding from one bedpartner to another with the erotic zest of a satyr. The court is inclined to discount much of this testimony as unreliable. Nevertheless, it is the conclusion and finding of the court that neither party is domesticated, within the meaning of that term as used by the Supreme Court of Florida in the case of Chesnut v. Chesnut (160 Fla. 83), 33 So.2d 730, where the court, in holding that a divorce rather than separate maintenance should be granted, said:
" 'The big trouble was total incapacity on the part of either for domestication. Seventy-five per cent of successful marriage depends on tact to cushion and bypass domestic frictions. It is much better than meeting them head on and bearing the scars they leave. When the bride and the groom are both devoid of a yen for domestication, the marital bark puts out to sea with its jib pointed to the rocks. . . . We think the record reveals a complete allergy to the give and take essential to successful marriage.'
"In the present case, it is abundantly clear from the evidence of marital discord that neither of the parties has shown the least susceptibility to domestication, and that the marriage should be dissolved.
"The premises considered, it is thereupon
"ORDERED AND ADJUDGED as follows:
"1. That the equities in this cause are with the defendant; that defendant's counterclaim for divorce be and the same is hereby
granted, and the bonds of matrimony which have heretofore existed between the parties are hereby forever dissolved." App. 523-529.
The Florida Supreme Court in the instant action found the fault required by Gertz, 418 U.S., at 347, 94 S.Ct. 3010, to be present in the record by virtue of the fact that
"(p)ursuant to Florida law in effect at the time of the divorce judgment . . . a wife found guilty of adultery could not be awarded alimony. Since petitioner had been awarded alimony, she had not been found guilty of adultery nor had the divorce been granted on the ground of adultery. A careful examination of the final decree prior to publication would have clearly demonstrated that the divorce had been granted on the grounds of extreme cruelty . . . ." 305 So.2d 172, 178 (1974).
Surely the threat of press self-censorship in reporting judicial proceedings is obvious if liability is to be imposed on the basis of such "fault." Indeed, the impossibility of assuring against such errors in reporting is manifested by the fact that the same Florida Supreme Court, in reviewing the judgment of divorce some two and one-half years previous to the above-quoted statement, had found the divorce to have been granted by the trial judge on the erroneous grounds of "lack of domestication" rather than for either extreme cruelty or adultery. Firestone v. Firestone, 263 So.2d 223 (1972).
10
Judge Frank's opinion of the phenomenon and its cause appears to have been roughly comparable. J. Frank, Courts On Trial 1-3 (Atheneum ed. 1963).
*
Konigsberg v. State Bar of California, 366 U.S. 36, 49, 81 S.Ct. 997, 1005, 6 L.Ed.2d 105, and n. 10 (1961); Times Film Corp. v. Chicago, 365 U.S. 43, 48, 81 S.Ct. 391, 394, 5 L.Ed.2d 403 (1961); Roth v. United States, 354 U.S. 476, 486-487, 77 S.Ct. 1304, 1309-1310, 1 L.Ed.2d 1498 (1957); Beauharnais v. Illinois, 343 U.S. 250, 266, 72 S.Ct. 725, 735, 96 L.Ed. 919 (1952); Pennekamp v. Florida, 328 U.S. 331, 348-349, 66 S.Ct. 1029, 1038-1039, 90 L.Ed. 1295 (1946); Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942); Near v. Minnesota, ex rel. Olson, 283 U.S. 697, 715, 51 S.Ct. 625, 630, 75 L.Ed. 1357 (1931). The majority concludes that respondent Firestone was neither a "public official" nor a "public figure," New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), and therefore that this case does not fall within any exception, then announced, to the Court's statements that common-law defamation rules do not violate the First Amendment. In this respect I agree with the majority.
1
The Supreme Court of Florida's explanation of why the New York Times standard is inapplicable is equally inconsistent with Gertz. After referring to Mrs. Firestone's prominence in Palm Beach society, the widespread attention her lawsuit received, and her granting of interviews to the news media, the court reasoned as follows:
"That the public was curious, titillated or intrigued with the scandal in the Firestone divorce is beyond doubt. But we again emphasize the distinction we make between that genre of public interest and real public or general Concern.
". . . (W)e cannot find here any aspect of real public concern, and none has been shown to us, which would be furthered or enhanced by 'free discussion' and 'robust debate' about the divorce of Russell and Mary Alice Firestone.
"Nor did (Mrs. Firestone's) quoted interviews with the press raise the untidy affair to the dignity of true public concern. Unlike an actress who might grant interviews relating to the opening of her new play, (Mrs. Firestone) was not seeking public patronage. Publicity, or sympathy, perhaps, but not patronage. Irrespective of her subjective motives, objectively she was merely satiating the appetites of a curious press.
"In sum, the Firestone divorce action was unquestionably newsworthy, but reports thereof were not constitutionally protected as being matters of real public or general concern." 271 So.2d, at 752.
This language is from an opinion that issued before Gertz was decided, but the reasoning was reaffirmed in the Supreme Court of Florida's final opinion in the case, 305 So.2d 172, 174-175 (1974), which issued after our decision in Gertz.
2
The Court places heavy emphasis on the degree to which Mrs. Firestone attempted to "influence the resolution of" a particular controversy. In response to the observation that Mrs. Firestone held press conferences, for example, the Court notes that those conferences were not intended to influence the outcome of the trial or any other controversy. Ante, at 454-455, n. 3. Gertz did, of course, refer to the fact that persons often become public figures by attempting to influence the resolution of public questions. 418 U.S., at 345, 94 S.Ct., at 3009. But the reference must be viewed as but an example of how one becomes a public figure. Surely Gertz did not intend to establish a requirement that an individual attempt to influence the resolution of a particular controversy before he can be termed a public figure. If that were the rule, Athletic Director Butts in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), would not be a public figure. We held that Butts was a public figure, and in Gertz we specifically noted that that decision was "correct." 418 U.S., at 343, 94 S.Ct., at 3008.
| 23
|
424 U.S. 409
96 S.Ct. 984
47 L.Ed.2d 128
Paul Kern IMBLER, Petitioner,v.Richard PACHTMAN, District Attorney.
No. 74-5435.
Argued Nov. 3, 1975.
Decided March 2, 1976.
Syllabus
Petitioner, convicted of murder, unsuccessfully petitioned for state habeas corpus on the basis of respondent prosecuting attorney's revelation of newly discovered evidence, and charged that respondent had knowingly used false testimony and suppressed material evidence at petitioner's trial. Petitioner thereafter filed a federal habeas corpus petition based on the same allegations, and ultimately obtained his release. He then brought an action against respondent and others under 42 U.S.C. § 1983, seeking damages for loss of liberty allegedly caused by unlawful prosecution, but the District Court held that respondent was immune from liability under § 1983, and the Court of Appeals affirmed. Held: A state prosecuting attorney who, as here, acted within the scope of his duties in initiating and pursuing a criminal prosecution and in presenting the State's case, is absolutely immune from a civil suit for damages under § 1983 for alleged deprivations of the accused's constitutional rights. 988-996.
(a) Section 1983 is to be read in harmony with general principles of tort immunities and defenses rather than in derogation of them. Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019. 988-990.
(b) The same considerations of public policy that underlie the common-law rule of absolute immunity of a prosecutor from a suit for malicious prosecution likewise dictate absolute immunity under § 1983. Although such immunity leaves the genuinely wronged criminal defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty, the alternative of qualifying a prosecutor's immunity would disserve the broader public interest in that it would prevent the vigorous and fearless performance of the prosecutor's duty that is essential to the proper functioning of the criminal justice system and would often prejudice criminal defendants by skewing post-conviction judicial decisions that should be made with the sole purpose of insuring justice. 990-994.
9 Cir., 500 F.2d 1301, affirmed.
Roger S. Hanson, Woodlands Hills, Cal., for petitioner.
John P. Farrell, Los Angeles, Cal., for respondent.
Sol. Gen. Robert H. Bork, Washington, D. C., for United States, as amicus curiae, by special leave of Court.
Mr. Justice POWELL delivered the opinion of the Court.
1
The question presented in this case is whether a state prosecuting attorney who acted within the scope of his duties in initiating and pursuing a criminal prosecution is amendable to suit under 42 U.S.C. § 1983 for alleged deprivations of the defendant's constitutional rights. The Court of Appeals for the Ninth Circuit held that he is not. 500 F.2d 1301. We affirm.
2
* The events which culminated in this suit span many years and several judicial proceedings. They began in January 1961, when two men attempted to rob a Los Angeles market run by Morris Hasson. One shot and fatally wnded Hasson, and the two fled in different directions. Ten days later Leonard Lingo was killed while attempting a robbery in Pomona, Cal., but his two accomplices escaped. Paul Imbler, petitioner in this case, turned himself in the next day as one of those accomplices. Subsequent investigation led the Los Angeles District Attorney to believe that Imbler and Lingo had perpetrated the first crime as well, and that Imbler had killed Hasson. Imbler was charged with first-degree felony murder for Hasson's death.
3
The State's case consisted of eyewitness testimony from Hasson's wife and identification testimony from three men who had seen Hasson's assailants fleeing after the shooting. Mrs. Hasson was unable to identify the gunman because a hat had obscured his face, but from police photographs she identified the killer's companion as Leonard Lingo. The primary identification witness was Alfred Costello, a passerby on the night of the crime, who testified that he had a clear view both as the gunman emerged from the market and again a few moments later when the fleeing gunman after losing his hat turned to fire a shot at Costello1 and to shed his coat2 before continuing on. Costello positively identified Imbler as the gunman. The second identification witness, an attendant at a parking lot through which the gunman ultimately escaped, testified that he had a side and front view as the man passed. Finally, a customer who was leaving Hasson's market as the robbers entered testified that he had a good look then and as they exited moments later. All of these witnesses identified Imbler as the gunman, and the customer also identified the second man as Leonard Lingo. Rigorous cross-examination failed to shake any of these witnesses.3
4
Imbler's defense was an alibi. He claimed to have spent the night of the Hasson killing bar-hopping with several persons, and to have met Lingo for the first time the morning before the attempted robbery in Pomona. This testimony was corroborated by Mayes, the other accomplice in the Pomona robbery, who also claimed to have accompanied Imbler on the earlier rounds of the bars. The jury found Imbler guilty and fixed punishment at death.4 On appeal the Supreme Court of California affirmed unanimously over numerous contentions of error. People v. Imbler, 57 Cal.2d 711, 21 Cal.Rptr. 568, 371 P.2d 304 (1962).
5
Shortly thereafter Deputy District Attorney Richard Pachtman, who had been the prosecutor at Imbler's trial and who is the respondent before this Court, wrote to the Governor of California describing evidence turned up after trial by himself and an investigator for the state correctional authority. In substance, the evidence consisted of newly discovered corroborating witnesses for Imbler's alibi, as well as new revelations about prime witness Costello's background which indicated that he was less trustworthy than he had represented originally to Pachtman and in his testimony. Pachtman noted that leads to some of this information had been available to Imbler's counsel prior to trial but apparently had not been developed, that Costello had testified convincingly and withstood intense cross-examination, and that none of the new evidence was conclusive of Imbler's innocence. He explained that he wrote from a belief that "a prosecuting attorney had a duty to be fair and see that all true facts whether helpful to the case or not, should be presented."5
6
Imbler filed a state habeas corpus petition shortly after Pachtman's letter. The Supreme Court of California appointed one of its retired justices as referee to hold a hearing, at which Costello was the main attraction. He recanted his trial identification of Imbler, and it also was established that on cross-examination and redirect he had painted a picture of his own background that was more flattering than true. Imbler's corroborating witnesses, uncovered by prosecutor Pachtman's investigations, also testified.
7
In his brief to the Supreme Court of California on this habeas petition, Imbler's counsel described Pachtman's post-trial detective work as "(i)n the highest tradition of law enforcement and justice," and as a premier example of "devotion to duty."6 But he also charged that the prosecution had knowingly used false testimony and suppressed material evidence at Imbler's trial.7 In a thorough opinion by then Justice Traynor, the Supreme Court of California unanimously rejected these contentions and denied the writ. In re Imbler, Cal.2d 554, 35 Cal.Rptr. 293, 387 P.2d 6 (1963). The California court noted that the hearing record fully supported the referee's finding that Costello's recantation of his identification lacked credibility compared to the original identification itself, id., at 562, 35 Cal.Rptr., at 297-299, 387 P.2d, at 10-11, and that the new corroborating witnesses who appeared on Imbler's behalf were unsure of their stories or were otherwise impeached, id., at 569-570, 35 Cal.Rptr., at 301, 387 P.2d, at 14.
8
In 1964, the year after denial of his state habeas petition, Imbler succeeded in having his death sentence overturned on grounds unrelated to this case. In re Imbler, 61 Cal.2d 556, 39 Cal.Rptr. 375, 393 P.2d 687 (1964). Rather than resentence him, the State stipulated to life imprisonment. There the matter lay for several years, until in late 1967 or early 1968 Imbler filed a habeas corpus petition in Federal District Court based on the same contentions previously urged upon and rejected by the Supreme Court of California.
9
The District Court held no hearing. Instead, it decided the petition upon the record, including Pachtman's letter to the Governor and the transcript of the referee's hearing ordered by the Supreme Court of California. Reading that record quite differently than had the seven justices of the State Supreme Court, the District Court found eight instances of state misconduct at Imbler's trial, the cumulative effect of which required issuance of the writ. Imbler v. Craven, 298 F.Supp. 795, 812 (C.D.Cal.1969). Six occurred during Costello's testimony and amounted in the court's view to the culpable use by the prosecution of misleading or false testimony.8 The other two instances were suppressions of evidence favorable to Imbler by a police fingerprint expert who testified at trial and by the police who investigated Hasson's murder.9 The District Court ordered that the writ of habeas corpus issue unless California retried Imbler within 60 days, and denied a petition for rehearing.
10
The State appealed to the Court of Appeals for the Ninth Circuit, claiming that the District Court had failed to give appropriate deference to the factual determinations of the Supreme Court of California as required by 28 U.S.C. § 2254(d). The Court of Appeals affirmed, finding that the District Court had merely "reached different conclusions than the state court in applying federal constitutional standards to (the) facts," Imbler v. California, 424 F.2d 631, 632 and certiorari was denied, 400 U.S. 865, 91 S.Ct. 100, 27 L.Ed.2d 104 (1970). California chose not to retry Imbler, and he was released.
11
At this point, after a decade of litigation and with Imbler now free, the stage was set for the present suit. In April 1972, Imbler filed a civil rights action, under 42 U.S.C. § 1983 and related statutes, against respondent Pachtman, the police fingerprint expert, and various other officers of the Los Angeles police force. He alleged that a conspiracy among them unlawfully to charge and convict him had caused him loss of liberty and other grievous injury. He demanded.$2.7 million in actual and exemplary damages from each defendant, plus $15,000 attorney's fees.
12
Imbler attempted to incorporate into his complaint the District Court's decision granting the writ of habeas corpus, and for the most part tracked that court's opinion in setting out the overt acts in furtherance of the alleged conspiracy. The gravamen of his complaint against Pachtman was that he had "with intent, and on other occasions with negligence" allowed Costello to give false testimony as found by the District Court, and that the fingerprint expert's suppression of evidence was "chargeable under federal law" to Pachtman. In addition Imbler claimed that Pachtman had prosecuted him with knowledge of a lie detector test that had "cleared" Imbler, and that Pachtman had used at trial a police artist's sketch of Hasson's killer made shortly after the crime and allegedly altered to resemble Imbler more closely after the investigation had focused upon him.
13
Pachtman moved under Fed.Rule Civ.Proc. 12(b)(6) to have the complaint dismissed as to him. The District Court, noting that public prosecutors repeatedly had been held immune from civil liability for "acts done as part of their traditional official functions," found that Pachtman's alleged acts fell into that category and granted his motion. Following the entry of final judgment as to Pachtman under Fed.Rule Civ.Proc. 54(b), Imbler appealed to the Court of Appeals for the Ninth Circuit. That court, one judge dissenting, affirmed the District Court in an opinion finding Pachtman's alleged acts to have been committed "during prosecutorial activities which can only be characterized as an 'integral part of the judicial process,' " 500 F.2d, at 1302, quoting Marlowe v. Coakley, 404 F.2d 70 (C.A.9 1968). We granted certiorari to consider the important and recurring issue of prosecutorial liability under the Civil Rights Act of 1871. 420 U.S. 945, 95 S.Ct. 1324, 43 L.Ed.2d 423 (1975).
II
14
Title 42 U.S.C. § 1983 provides that "(e)very person" who acts under color of state law to deprive another of a constitutional right shall be answerable to that person in a suit for damages.10 The statute thus creates a species of tort liability that on its face admits of no immunities, and some have argued that it should be applied as stringently as it reads.11 But that view has not prevailed.
15
This Court first considered the implications of the statute's literal sweep in Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). There it was claimed that members of a state legislative committee had called the plaintiff to appear before them, not for a proper legislative purpose, but to intimidate him into silence on certain matters of public concern, and thereby had deprived him of his constitutional rights. Because legislators in both England and this country had enjoyed absolute immunity for their official actions, Tenney squarely presented the issue of whether the Reconstruction Congress had intended to restrict the availability in § 1983 suits of those immunities which historically, and for reasons of public policy, had been accorded to various categories of officials. The Court concluded that immunities "well grounded in history and reason" had not been abrogated "by covert inclusion in the general language" of § 1983. 341 U.S., at 376, 71 S.Ct. at 788. Regardless of any unworthy purpose animating their actions, legislators were held to enjoy under this statute their usual immunity when acting "in a field where legislators traditionally have power to act." Id., at 379, 71 S.Ct. at 789.
16
The decision in Tenney established that § 1983 is to be read in harmony with general principles of tort immunities and defenses rather than in derogation of them. Before today the Court has had occasion to consider the liability of several types of government officials in addition to legislators. The common-law absolute immunity of judges for "acts committed within their judicial jurisdiction," see Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872), was found to be preserved under § 1983 in Pierson v. Ray, 386 U.S. 547, 554-555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967).12 In the same case, local police officers sued for a deprivation of liberty resulting from unlawful arrest were held to enjoy under § 1983 a "good faith and probable cause" defense coextensive with their defense to false arrest actions at common law. 386 U.S., at 555-557, 87 S.Ct., at 1218. We found qualified immunities appropriate in two recent cases.13 In Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), we concluded that the Governor and other executive officials of a State had a qualified immunity that varied with "the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action. . . ." Id., at 247, 94 S.Ct., at 1692.14 Last Term in Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), we held that school officials, in the context of imposing disciplinary penalties, were not liable so long as they could not reasonably have known that their action violated students' clearly established constitutional rights, and provided they did not act with malicious intention to cause constitutional or other injury. Id., at 322, 95 S.Ct., at 1001; cf. O'Connor v. Donaldson, 442 U.S. 563, 577, 95 S.Ct. 2486, 2495, 45 L.Ed.2d 396 (1975). In Scheuer and in Wood, as in the two earlier cases, the considerations underlying the nature of the immunity of the respective officials in suits at common law led to essentially the same immunity under § 1983.15 See 420 U.S., at 318-321, 94 S.Ct., at 1000; 416 U.S., at 239-247, and n. 4, 94 S.Ct., at 1688.
III
17
This case marks our first opportunity to address the § 1983 liability of a state prosecuting officer. The Courts of Appeals, however, have confronted the issue many times and under varying circumstances. Although the precise contours of their holdings have been unclear at times, at bottom they are virtually unanimous that a prosecutor enjoys absolute immunity from § 1983 suits for damages when he acts within the scope of his prosecutorial duties.16 These courts sometimes have described the prosecutor's immunity as a form of "quasi-judicial" immunity and referred to it as derivative of the immunity of judges recognized in Pierson v. Ray, supra.17 Petitioner focuses upon the "quasi-judicial" characterization, and contends that it illustrates a fundamental illogic in according absolute immunity to a prosecutor. He argues that the prosecutor, as a member of the executive branch, cannot claim the immunity reserved for the judiciary, but only a qualified immunity akin to that accorded other executive officials in this Court's previous cases.
18
Petitioner takes an overly simplistic approach to the issue of prosecutorial liability. As noted above, our earlier decisions on § 1983 immunities were not products of judicial fiat that officials in different branches of government are differently amenable to suit under § 1983. Rather, each was predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it. The liability of a state prosecutor under § 1983 must be determined in the same manner.
A.
19
The function of a prosecutor that most often invites a common-law tort action is his decision to initiate a prosecution, as this may lead to a suit for malicious prosecution if the State's case misfires. The first American case to address the question of a prosecutor's amendability to such an action was Griffith v. Slinkard, 146 Ind. 117, 44 N.E. 1001 (1896).18 The complaint charged that a local prosecutor without probable cause added the plaintiff's name to a grand jury true bill after the grand jurors had refused to indict him, with the result that the plaintiff was arrested and forced to appear in court repeatedly before the charge finally was nolle prossed. Despite allegations of malice, the Supreme Court of Indiana dismissed the action on the ground that the prosecutor was absolutely immune. Id., at 122, 44 N.E., at 1002.
20
The Griffith view on prosecutorial immunity became the clear majority rule on the issue.19 The question eventually came to this Court on writ of certiorari to the Court of Appeals for the Second Circuit. In Yaselli v. Goff, 12 F.2d 396 (1926), the claim was that the defendant, a Special Assistant to the Attorney General of the United States, maliciously and without probable cause procured plaintiff's grand jury indictment by the willful introduction of false and misleading evidence. Plaintiff sought some $300,000 in damages for having been subjected to the rigors of a trial in which the court ultimately directed a verdict against the Government. The District Court dismissed the complaint, and the Court of Appeals affirmed. After reviewing the development of the doctrine of prosecutorial immunity, id., at 399-404, that court stated:
21
"In our opinion the law requires us to hold that a special assistant to the Attorney General of the United States, in the performance of the duties imposed upon him by law, is immune from a civil action for malicious prosecution based on an indictment and prosecution, although it results in a verdict of not guilty rendered by a jury. The immunity is absolute, and is grounded on principles of public policy." Id., at 406.
22
After briefing and oral argument, this Court affirmed the Court of Appeals in a per curiam opinion. Yaselli v. Goff, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927).
23
The common-law immunity of a prosecutor is based upon the same considerations that underlie the commonlaw immunities of judges and grant jurors acting within the scope of their duties.20 These include concern that harassment by unfounded litigation would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust. One court expressed both considerations as follows:
24
"The office of public prosecutor is one which must be administered with courage and independence. Yet how can this be if the prosecutor is made subject to suit by those whom he accuses and fails to convict? To allow this would open the way for unlimited harassment and embarrassment of the most conscientious officials by those who would profit thereby. There would be involved in every case the possible consequences of a failure to obtain a conviction. There would always be a question of possible civil action in case the prosecutor saw fit to move dismissal of the case. . . . The apprehension of such consequences would tend toward great uneasiness and toward weakening the fearless and impartial policy which should characterize the administration of this office. The work of the prosecutor would thus be impeded, and we would have moved away from the desired objective of stricter a fairer law enforcement." Pearson v. Reed, 6 Cal.App.2d 277, 287, 44 P.2d 592, 597 (1935).
25
See also Yaselli v. Goff, 12 F.2d, at 404-406.
B
26
The common-law rule of immunity is thus well settled.21 We now must determine whether the same considerations of public policy that underlie the common-law rule likewise countenance absolute immunity under § 1983. We think they do.
27
If a prosecutor had only a qualified immunity, the threat of § 1983 suits would undermine performance of his duties no less than would the threat of common-law suits for malicious prosecution. A prosecutor is duty bound to exercise his best judgment both in deciding which suits to bring and in conducting them in court. The public trust of the prosecutor's office would suffer if he were constrained in making every decision by the consequences in terms of his own potential liability in a suit for damages. Such suits could be expected with some frequency, for a defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State's advocate. Cf. Bradley v. Fisher, 13 Wall., at 348, 20 L.Ed. 646; Pierson v. Ray, 386 U.S., at 554, 87 S.Ct., at 1217. Further, if the prosecutor could be made to answer in court each time such a person charged him with wrongdoing, his energy and attention would be diverted from the pressing duty of enforcing the criminal law.
28
Moreover, suits that survived the pleadings would pose substantial danger of liability even to the honest prosecutor. The prosecutor's possible knowledge of a witness' falsehoods, the materiality of evidence not revealed to the defense, the propriety of a closing argument, and ultimately in every case the likelihood that prosecutorial misconduct so infected a trial as to deny due process, are typical of issues with which judges struggle in actions for post-trial relief, sometimes to differing conclusions.22 The presentation of such issues in a § 1983 action often would require a virtual retrial of the criminal offense in a new forum, and the resolution of some technical issues by the lay jury. It is fair to say, we think, that the honest prosecutor would face greater difficulty in meeting the standards of qualified immunity than other executive or administrative officials. Frequently acting under serious constraints of time and even information, a prosecutor inevitably makes many decisions that could engender colorable claims of constitutional deprivation. Defending these decisions, often years after they were made, could impose unique and intolerable burdens upon a prosecutor responsible annually for hundreds of indictments and trials. Cf. Bradley v. Fisher, supra, 13 Wall., at 349, 20 L.Ed. 646.
29
The affording of only a qualified immunity to the prosecutor also could have an adverse effect upon the functioning of the criminal justice system. Attaining the system's goal of accurately determining guilt or innocence requires that both the prosecution and the defense have wide discretion in the conduct of the trial and the presentation of evidence.23 The veracity of witnesses in criminal cases frequently is subject to doubt before and after they testify, as is illustrated by the history of this case. If prosecutors were hampered in exercising their judgment as to the use of such witnesses by concern about resulting personal liability, the triers of fact in criminal cases often would be denied relevant evidence.24
30
The ultimate fairness of the operation of the system itself could be weakened by subjecting prosecutors to § 1983 liability. Various post-trial procedures are available to determine whether an accused has received a fair trial. These procedures include the remedial powers of the trial judge, appellate review, and state and federal post-conviction collateral remedies. In all of these the attention of the reviewing judge or tribunal is focused primarily on whether there was a fair trial under law. This focus should not be blurred by even the subconscious knowledge that a post-trial decision in favor of the accused might result in the prosecutor's being called upon to respond in damages for his error or mistaken judgment.25
31
We conclude that the considerations outlined above dictate the same absolute immunity under § 1983 that the prosecutor enjoys at common law. To be sure, this immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty. But the alternative of qualifying a prosecutor's immunity would disserve the broader public interest. It would prevent the vigorous and fearless performance of the prosecutor's duty that is essential to the proper functioning of the criminal justice system.26 Moreover, it often would prejudice defendants in criminal cases by skewing post-conviction judicial decisions that should be made with the sole purpose of insuring justice. With the issue thus framed, we find ourselves in agreement with Judge Learned Hand, who wrote of the prosecutor's immunity from actions for malicious prosecution:
32
"As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation." Gregoire v. Biddle, 177 F.2d 579, 581 (C.A.2 1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950).
33
See Yaselli v. Goff, 12 F.2d, at 404; cf. Wood v. Strickland, 420 U.S., at 320, 95 S.Ct., at 1000.27
34
We emphasize that the immunity of prosecutors from liability in suits under § 1983 does not leave the public powerless to deter misconduct or to punish that which occurs. This Court has never suggested that the policy considerations which compel civil immunity for certain governmental officials also place them beyond the reach of the criminal law. Even judges, cloaked with absolute civil immunity for centuries, could be punished criminally for willful deprivations of constitutional rights on the strength of 18 U.S.C. § 242,28 the criminal analog of § 1983. O'Shea v. Littleton, 414 U.S. 488, 503, 94 S.Ct. 669, 679, 38 L.Ed.2d 674 (1974); cf. Gravel v. United States, 408 U.S. 606, 627, 92 S.Ct. 2614, 2628, 33 L.Ed.2d 583 (1972). The prosecutor would fare no better for his willful acts.29 Moreover, a prosecutor stands perhaps unique, among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers.30 These checks undermine the argument that the imposition of civil liability is the only way to insure that prosecutors are mindful of the constitutional rights of persons accused of crime.
IV
35
It remains to delineate the boundaries of our holding. As noted, Supra, at 416, the Court of Appeals emphasized that each of respondent's challenged activities was an "integral part of the judicial process." 500 F.2d, at 1302. The purpose of the Court of Appeals' focus upon the functional nature of the activities rather than respondent's status was to distinguish and leave standing those cases, in its Circuit and in some others, which hold that a prosecutor engaged in certain investigative activities enjoys, not the absolute immunity associated with the judicial process, but only a good-faith defense comparable to the policeman's.31 See Pierson v. Ray, 386 U. S., at 557, 87 S.Ct., at 1219. We agree with the Court of Appeals that respondent's activities were intimately associated with the judicial phase of the criminal process, and thus were functions to which the reasons for absolute immunity apply with full force.32 We have no occasion to consider whether like or similar reasons require immunity for those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate.33 We hold only that in initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages under § 1983.34 The judgment of the Court of Appeals for the Ninth Circuit accordingly is
36
Affirmed.
37
Mr. Justice STEVENS took no part in the consideration or decision of this case.
38
Mr. Justice WHITE, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, concurring in the judgment.
39
I concur in the judgment of the Court and in much of its reasoning. I agree with the Court that the gravamen of the complaint in this case is that the prosecutor knowingly used perjured testimony; and that a prosecutor is absolutely immune from suit for money damages under 42 U.S.C. § 1983 for presentation of testimony later determined to have been false, where the presentation of such testimony is alleged to have been unconstitutional solely because the prosecutor did not believe it or should not have believed it to be true. I write, however, because I believe that the Court's opinion may be read as extending to a prosecutor an immunity broader than that to which he was entitled at common law; broader than is necessary to decide this case; and broader than is necessary to protect the judicial process. Most seriously, I disagree with any implication that absolute immunity for prosecutors extends to suits based on claims of unconstitutional suppression of evidence because I believe such a rule would threaten to injure the judicial process and to interfere with Congress' purpose in enacting 42 U.S.C. § 1983, without any support in statutory language or history.
40
* Title 42 U.S.C. § 1983 provides:
41
"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 . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
42
As the language itself makes clear, the central purpose of § 1983 is to "give a remedy to parties deprived of constitutional rights, privileges and immunities by an Official's abuse of his position." Monroe v. Pape, 365 U.S. 167, 172, 81 S.Ct. 473, 476, 5 L.Ed.2d 492 (1961) (emphasis added). The United States Constitution among other things, places substantial limitations upon state action, and the cause of action provided in 42 U.S.C. § 1983 is fundamentally one for "(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." United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941). It is manifest then that all state officials as a class cannot be immune absolutely from damage suits under 42 U.S.C. § 1983 and that extend absolute immunity to any group of state officials is to negate Pro tanto the very remedy which it appears Congress sought to create. Scheuer v. Rhodes, 416 U.S. 232, 243, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Thus, as there is no language in § 1983 extending Any immunity to any state officials, the Court has not extended Absolute immunity to such officials in the absence of the most convincing showing that the immunity is necessary. Accordingly, we have declined to construe § 1983 to extend absolute immunity from damage suits to a variety of state officials, Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975) (school board members); Scheuer v. Rhodes, supra (various executive officers, including the State's chief executive officer); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) (policemen); and this notwithstanding the fact that, at least with respect to high executive officers, absolute immunity from suit for damages would have applied at common law. Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780 (1896); Alzua v. Johnson, 231 U.S. 106, 34 S.Ct. 27, 58 L.Ed. 142 (1913). Instead, we have construed the statute to extend only a qualified immunity to these officials, and they may be held liable for unconstitutional conduct absent "good faith." Wood v. Strickland, supra, 420 U.S. at 315, 95 S.Ct. at 1685. Any other result would "deny much of the promise of § 1983." Id., at 322, 95 S.Ct. at 1001. Nonetheless, there are certain absolute immunities so firmly rooted in the common law and supported by such strong policy reasons that the Court has been unwilling to infer that Congress meant to abolish them in enacting 42 U.S.C. § 1983. Thus, we have held state legislators to be absolutely immune from liability for damages under § 1983 for their legislative acts, Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951),1 and state judges to be absolutely immune from liability for their judicial acts, Pierson v. Ray, supra.2
43
In justifying absolute immunity for certain officials, both at common law and under 42 U.S.C. § 1983, courts have invariably rested their decisions on the proposition that such immunity is necessary to protect the decision-making process in which the official is engaged. Thus legislative immunity was justified on the ground that such immunity was essential to protect "freedom of speech and action in the legislature" from the dampening effects of threatened lawsuits. Tenney v. Brandhove, supra, 341 U.S. at 372, 71 S.Ct. at 786. Similarly, absolute immunity for judges was justified on the ground that no matter how high the standard of proof is set, the burden of defending damage suits brought by disappointed litigants would "contribute not to principled and fearless decision-making but to intimidation." Pierson v. Ray, supra, 386 U.S. at 554, 87 S.Ct. at 1218. In Bradley v. Fisher, 13 Wall. 335, 347, 20 L.Ed. 646 (1872), the Court stated:
44
"For it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself. Liability to answer to every one who might feel himself aggrieved by the action of the judge, would be inconsistent with the possession of this freedom, and would destroy that independence without which no judiciary can be either respectable or useful. . . ."
45
See also cases discussed in Yaselli v. Goff, 12 F.2d 396, 399-401 (C.A.2 1926), summarily aff'd, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927).
46
The majority articulates other adverse consequences which may result from permitting suits to be maintained against public officials. Such suits may expose the official to an unjust damage award, Ante, at 425; such suits will be expensive to defend even if the official prevails and will take the official's time away from his job, Ante, at 425; and the liability of a prosecutor for unconstitutional behavior might induce a federal court in a habeas corpus proceeding to deny a valid constitutional claim in order to protect the prosecutor, Ante, at 427. However, these adverse consequences are present with respect to suits against policemen, school teachers, and other executives, and have never before been thought sufficient to immunize an official absolutely no matter how outrageous his conduct. Indeed, these reasons are present with respect to suits against all state officials3 and must necessarily have been rejected by Congress as a basis for absolute immunity under 42 U.S.C. § 1983, for its enactment is a clear indication that at least some officials should be accountable in damages for their official acts. Thus, unless the threat of suit is also thought to injure the governmental decisionmaking process, the other unfortunate consequences flowing from damage suits against state officials are sufficient only to extend a qualified immunity to the official in question. Accordingly, the question whether a prosecutor enjoys an absolute immunity from damage suits under § 1983, or only a qualified immunity, depends upon whether the common law and reason support the proposition that extending absolute immunity is necessary to protect the Judicial process.
II
47
The public prosecutor's absolute immunity from suit at common law is not so firmly entrenched as a judge's, but it has considerable support. The general rule was, and is, that a prosecutor is absolutely immune from suit for malicious prosecution. 1 F. Harper & F. James, The Law of Torts § 4.3, p. 305 n. 7 (1956) (hereafter Harper & James), and cases there cited; Yaselli v. Goff, supra ; Gregoire v. Biddle, 177 F.2d 579 (C.A.2 1949); Kauffman v. Moss, 420 F.2d 1270 (C.A.3 1970); Bauers v. Heisel, 361 F.2d 581 (C.A.3 1965); Tyler v. Witkowski, 511 F.2d 449 (C.A.7 1975); Hampton v. City of Chicago, 484 F.2d 602 (C.A.7 1973); Barnes v. Dorsey, 480 F.2d 1057 (C.A.8 1973); Duba v. McIntyre, 501 F.2d 590 (C.A.8 1974); Robichaud v. Ronan, 351 F.2d 533 (C.A.9 1965). But see Leong Yau v. Carden, 23 Haw. 362 (1916). The rule, like the rule extending absolute immunity to judges, rests on the proposition that absolute immunity is necessary to protect the judicial process. Absent immunity, " 'it would be but human that they (prosecutors) might refrain from presenting to a grand jury or prosecuting a matter which in their judgment called for action; but which a jury might possibly determine otherwise.' " 1 Harper & James § 4.3, pp. 305-306, quoting Yaselli v. Goff, 8 F.2d 161, 162 (S.D.N.Y.1925). Indeed, in deciding whether or not to prosecute, the prosecutor performs a "quasi-judicial" function. 1 Harper & James 305; Yaselli v. Goff, 12 F.2d, at 404. Judicial immunity had always been extended to grand jurors with respect to their actions in returning an indictment, Id., at 403, and " 'the public prosecutor, in deciding whether a particular prosecution shall be instituted . . . performs much the same function as a grand jury.' " Id., at 404, quoting Smith v. Parman, 101 Kan. 115, 165 P. 663 (1917). The analogy to judicial immunity is a strong one. Moreover, the risk of injury to the judicial process from a rule permitting malicious prosecution suits against prosecutors is real. There is no one to sue the prosecutor for an erroneous decision Not to prosecute. If suits for malicious prosecution were permitted,4 the prosecutor's incentive would always be not to bring charges. Moreover, the "fear of being harassed by a vexatious suit, for acting according to their consciences" would always be the greater "where powerful" men are involved, 1 W. Hawkins, Pleas of the Crown, 349 (6th ed. 1787). Accordingly, I agree with the majority that, with respect to suits based on claims that the prosecutor's decision to prosecute was malicious and without probable cause at least where there is no independent allegation that the prosecutor withheld exculpatory information from a grand jury or the court, see Part III, Infra the judicial process is better served by absolute immunity than by any other rule.
48
Public prosecutors were also absolutely immune at common law from suits for defamatory remarks made during and relevant to a judicial proceeding, 1 Harper & James, §§ 5.21, 5.22; Yaselli v. Goff, 12 F.2d, at 402-403; and this immunity was also based on the policy of protecting the judicial process. Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9 Col.L.Rev. 463 (1909). The immunity was not special to public prosecutors but extended to lawyers accused of making false and defamatory statements, or of eliciting false and defamatory testimony from witnesses; and it applied to suits against witnesses themselves for delivering false and defamatory testimony. 1 Harper & James, § 5.22, pp. 423-424, and cases there cited; King v. Skinner, Lofft 55, 98 Eng.Rep. 529, 530 (K.B.1772) (Per Lord Mansfield); Yaselli v. Goff, 12 F.2d, at 403. The reasons for this rule are also substantial. It is precisely the function of a judicial proceeding to determine where the truth lies. The ability of courts, under carefully developed procedures, to separate truth from falsity, and the importance of accurately resolving factual disputes in criminal (and civil) cases are such that those involved in judicial proceedings should be "given every encouragement to make a full disclosure of all pertinent information within their knowledge." 1 Harper & James, § 5.22, p. 424. For a witness, this means he must be permitted to testify without fear of being sued if his testimony is disbelieved. For a lawyer, it means that he must be permitted to call witnesses without fear of being sued if the witness is disbelieved and it is alleged that the lawyer knew or should have known that the witness' testimony was false. Of course, witnesses should not be encouraged to testify falsely nor lawyers encouraged to call witnesses who testify falsely. However, if the risk of having to defend a civil damage suit is added to the deterrent against such conduct already provided by criminal laws against perjury and subornation of perjury, the risk of self-censorship becomes too great. This is particularly so because it is very difficult if not impossible for attorneys to be absolutely certain of the objective truth or falsity of the testimony which they present. A prosecutor faced with a decision whether or not to call a witness whom he believes, but whose credibility he knows will be in doubt and whose testimony may be disbelieved by the jury, should be given every incentive to submit that witness' testimony to the crucible of the judicial process so that the factfinder may consider it, after cross-examination, together with the other evidence in the case to determine where the truth lies.
49
"Absolute privilege has been conceded on obvious grounds of public policy to insure freedom of speech where it is essential that freedom of speech should exist. It is essential to the ends of justice that all persons participating in judicial proceedings (to take a typical class for illustration) should enjoy freedom of speech in the discharge of their public duties or in pursuing their rights, without fear of consequences." Veeder, Supra, 9 Col.L.Rev., at 469.
50
For the above-stated reasons, I agree with the majority that history and policy support an absolute immunity for prosecutors from suits based solely on claims5 that they knew or should have known that the testimony of a witness called by the prosecution was false; and I would not attribute to Congress an intention to remove such immunity in enacting 42 U.S.C. § 1983.
51
Since the gravamen of the complaint in this case is that the prosecutor knew or should have known that certain testimony of a witness called by him was untrue and since for reasons set forth below the other allegations in the complaint fail to state a cause of action on any other theory, I concur in the judgment in this case. However, insofar as the majority's opinion implies an absolute immunity from suits for constitutional violations other than those based on the prosecutor's decision to initiate proceedings or his actions in bringing information or argument to the court, I disagree. Most particularly I disagree with any implication that the absolute immunity extends to suits charging unconstitutional suppression of evidence. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
III
52
There was no absolute immunity at common law for prosecutors other than absolute immunity from suits for malicious prosecution and defamation. There were simply no other causes of action at common law brought against prosecutors for conduct committed in their official capacity.6 There is, for example, no reported case of a suit at common law against a prosecutor for suppression or nondisclosure of exculpatory evidence. Thus, even if this Court had accepted the proposition, which it has not, Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), that Congress incorporated in 42 U.S.C. § 1983 all immunities existing at common law, it would not follow that prosecutors are absolutely immune from suit for all unconstitutional acts committed in the course of doing their jobs. Secondly, it is by no means true that such blanket absolute immunity is necessary or even helpful in protecting the judicial process. It should hardly need stating that, ordinarily, liability in damages for unconstitutional or otherwise illegal conduct has the very desirable effect of deterring such conduct. Indeed, this was precisely the proposition upon which § 1983 was enacted. Absent special circumstances, such as those discussed in Part II, Supra, with respect to actions attacking the decision to prosecute or the bringing of evidence or argument to the court, one would expect that the judicial process would be protected and indeed its integrity enhanced by denial of immunity to prosecutors who engage in unconstitutional conduct.
53
The absolute immunity extended to prosecutors in defamation cases is designed to encourage them to bring information to the court which will resolve the criminal case. That is its single justification. Lest they withhold valuable but questionable evidence or refrain from making valuable but questionable arguments, prosecutors are protected from liability for submitting before the court information later determined to have been false to their knowledge.7 It would stand this immunity rule on its head, however, to apply it to a suit based on a claim that the prosecutor unconstitutionally withheld information from the court. Immunity from a suit based upon a claim that the prosecutor suppressed or withheld evidence would Discourage precisely the disclosure of evidence sought to be encouraged by the rule granting prosecutors immunity from defamation suits.Denial of immunity for unconstitutional withholding of evidence would encourage such disclosure. A prosecutor seeking to protect himself from liability for failure to disclose evidence may be induced to disclose more than is required. But, this will hardly injure the judicial process.8 Indeed, it will help it. Accordingly, lower courts have held that unconstitutional suppression of exculpatory evidence is beyond the scope of "duties constituting an integral part of the judicial process" and have refused to extend absolute immunity to suits based on such claims. Hilliard v. Williams, 465 F.2d 1212, 1218 (C.A.6) cert. denied, 409 U.S. 1029, 93 S.Ct. 461, 34 L.Ed.2d 322 (1972); Haaf v. Grams, 355 F.Supp. 542, 545 (Minn.1973); Peterson v. Stanczak, 48 F.R.D. 426 (N.D.Ill.1969). Contra, Barnes v. Dorsey, 480 F.2d 1057 (C.A.8 1973).
54
Equally important, unlike constitutional violations committed in the courtroom improper summations, introduction of hearsay evidence in violation of the Confrontation Clause, knowing presentation of false testimony which truly are an "integral part of the judicial process," Ante, at 416, the judicial process has no way to prevent or correct the constitutional violation of suppressing evidence. The judicial process will by definition be ignorant of the violation when it occurs; and it is reasonable to suspect that most such violations never surface. It is all the more important, then, to deter such violations by permitting damage actions under 42 U.S.C. § 1983 to be maintained in instances where violations do surface.
55
The stakes are high. In Hilliard v. Williams, supra, a woman was convicted of second-degree murder upon entirely circumstantial evidence. The most incriminating item of evidence was the fact that the jacket worn by the defendant at the time of arrest and some curtains appeared to have bloodstains on them. The defendant denied that the stains were bloodstains but was convicted and subsequently spent a year in jail. Fortunately, in that case, the defendant later found out that an FBI report of which the prosecutor had knowledge at the time of the trial and the existence of which he instructed a state investigator not to mention during his testimony concluded, after testing, that the stains were Not bloodstains. On retrial, the defendant was acquitted. She sued the prosecutor and the state investigator under 42 U.S.C. § 1983 claiming that the FBI report was unconstitutionally withheld under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and obtained a damage award against both after trial. The prosecutor's petition for certiorari is now pending before this Court. Hilliard v. Williams, 516 F.2d 1344 (C.A.6 1975). The state investigator's petition, in which he claimed that he had only followed the prosecutor's orders, has been denied. Clark v. Hilliard, 423 U.S. 1066, 96 S.Ct. 805, 46 L.Ed.2d 656 (1976). It is apparent that the injury to a defendant which can be caused by an unconstitutional suppression of exculpatory evidence is substantial, particularly if the evidence is never uncovered. It is virtually impossible to identify Any injury to the judicial process resulting from a rule permitting suits for such unconstitutional conduct, and it is very easy to identify an injury to the process resulting from a rule which do not permit such suits. Where the reason for the rule extending absolute immunity to prosecutors disappears, it would truly be "monstrous to deny recovery." Gregoire v. Biddle, 177 F.2d, at 581.
IV
56
The complaint in this case, while fundamentally based on the claim that the prosecutor knew or should have known that his witness had testified falsely in certain respects, does contain some allegations that exculpatory evidence and evidence relating to the witness' credibility had been suppressed. Insofar as the complaint is based on allegations of suppression or failure to disclose, the prosecutor should not, for the reasons set forth above, be absolutely immune. However, as the majority notes, the suppression of fingerprint evidence and the alleged suppression of information relating to certain pretrial lineups is not alleged to have been known in fact to the prosecutor it is simply claimed that the suppression is legally chargeable to him. While this may be so as a matter of federal habeas corpus law, it is untrue in a civil damage action. The result of a lie-detector test claimed to have been suppressed was allegedly known to respondent, but it would have been inadmissible at Imbler's trial and is thus not constitutionally required to be disclosed. The alteration of the police artist's composite sketch after Imbler was designated as the defendant is not alleged to have been suppressed and in fact appears not to have been suppressed. The opinion of the California Supreme Court on direct review of Imbler's conviction states that "the picture was modified later, following suggestions of Costello and other witnesses," and that court presumably had before it only the trial record. The other items allegedly suppressed all relate to background information about only one of the three eyewitnesses to testify for the State, and were in large part concededly known to the defense and thus may not be accurately described as suppressed. The single alleged fact not concededly known to the defense which might have been helpful to the defense was that the State's witness had written some bad checks for small amounts and that a criminal charge based on one check was outstanding against him. However, the witness had an extensive criminal record which was known to but not fully used by the defense. Thus, even taken as true, the failure to disclose the check charges is patently insufficient to support a claim of unconstitutional suppression of evidence.9 The Court has in the past, having due regard for the fact that the obligation of the government to disclose exculpatory evidence is an exception to the normal operation of an adversary system of justice, imposed on state prosecutors a constitutional obligation to turn over such evidence only when the evidence is of far greater significance than that involved here. See Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972). Thus, the only constitutional violation adequately alleged against the prosecutor is that he knew in his mind that testimony presented by him was false; and from a suit based on such a violation, without more, the prosecutor is absolutely immune. For this reason, I concur in the judgment reached by the majority in this case.
1
This shot formed the basis of a second count against Imbler for assault, which was tried with the murder count.
2
This coat, identified by Mrs. Hasson as that worn by her husband's assailant, yielded a gun determined by ballistics evidence to be the murder weapon.
3
A fourth man who saw Hasson's killer leaving the scene identified Imbler in a pretrial lineup, but police were unable to find him at the time of trial.
4
Imbler also received a 10-year prison term on the assault charge. See n. 1, Supra.
5
Brief for Respondent, App.A., p. 6. The record does not indicate what specific action was taken in response to Pachtman's letter. We do note that the letter was dated August 17, 1962, and that Imbler's execution, scheduled for September 12, 1962, subsequently was stayed. The letter became a part of the permanent record in the case available to the courts in all subsequent litigation.
6
Brief for Respondent 5.
7
See generally Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
8
The District Court found that Costello had given certain ambiguous or misleading testimony, and had lied flatly about his criminal record, his education, and his current income. As to the misleading testimony, the court found that either Pachtman or a police officer present in the courtroom knew it was misleading. As to the false testimony, the District Court concluded that Pachtman had "cause to suspect" its falsity although, apparently, no actual knowledge thereof. See 298 F.Supp., at 799-807. The Supreme Court of California earlier had addressed and rejected allegations based on many of the same parts of Costello's testimony. It found either an absence of falsehood or an absence of prosecutorial knowledge in each instance. See In re Imbler, 60 Cal.2d 554, 562-565, and n. 3, 35 Cal.Rptr. 293, 297-300, and n. 3, 387 P.2d 6, 10-12, and n. 3 (1963).
9
See 298 F.Supp., at 809-811. The Supreme Court of California earlier had rejected similar allegations. See In re Imbler, supra, 60 Cal.2d, at 566-568, 35 Cal.Rptr., at 299-301, 387 P.2d, at 12-13.
10
42 U.S.C. § 1983, originally passed as § 1 of the Civil Rights Act of 1871, 17 Stat. 13, reads in full:
"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."
11
See, e. g., Pierson v. Ray, 386 U.S. 547, 559, 87 S.Ct. 1213, 1220, 18 L.Ed.2d 288 (1967) (Douglas, J., dissenting); Tenney v. Brandhove, 341 U.S. 367, 382-383, 71 S.Ct. 783, 791, 95 L.Ed. 1019 (1951) (Douglas, J., dissenting).
12
The Court described the immunity of judges as follows:
"Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872). This immunity applies even when the judge is accused of acting maliciously and corruptly, and it 'is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.' " 386 U.S., at 553-554, 87 S.Ct., at 1217 (citation omitted).
13
The procedural difference between the absolute and the qualified immunities is important. An absolute immunity defeats a suit at the outset, so long as the official's actions were within the scope of the immunity. The fate of an official with qualified immunity depends upon the circumstances and motivations of his actions, as established by the evidence at trial. See Scheuer v. Rhodes, 416 U.S. 232, 238-239, 94 S.Ct. 1683, 1687, 40 L.Ed.2d 90 (1974); Wood v. Strickland, 420 U.S. 308, 320-322, 95 S.Ct. 992, 1000, 43 L.Ed.2d 214 (1975).
14
The elements of this immunity were described in Scheuer as follows:
"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 basis for qualified immunity of executive officers for acts performed in the course of official conduct." 416 U.S., at 247-248, 94 S.Ct., at 1692.
15
In Tenney v. Brandhove, of course, the Court looked to the immunity accorded legislators by the Federal and State Constitutions, as well as that developed by the common law. 341 U.S., at 372-375, 71 S.Ct., at 786. See generally Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973).
16
Fanale v. Sheehy, 385 F.2d 866, 868 (C.A.2 1967); Bauers v. Heisel, 361 F.2d 581 (C.A.3 1966), cert. denied, 386 U.S. 1021, 87 S.Ct. 1367, 18 L.Ed.2d 457 (1967); Carmack v. Gibson, 363 F.2d 862, 864 (C.A.5 1966); Tyler v. Witkowski, 511 F.2d 449, 450-451 (C.A.7 1975); Barnes v. Dorsey, 480 F.2d 1057, 1060 (C.A.8 1973); Kostal v. Stoner, 292 F.2d 492, 493 (C.A.10 1961), cert. denied, 369 U.S. 868, 82 S.Ct. 1032, 8 L.Ed.2d 87 (1962); cf. Guerro v. Mulhearn, 498 F.2d 1249, 1255-1256 (C.A.1 1974); Weathers v. Ebert, 505 F.2d 514, 515-516 (C.A.4 1974). But compare Hurlburt v. Graham, 323 F.2d 723 (C.A.6 1963), with Hilliard v. Williams, 465 F.2d 1212 (C.A.6), cert. denied, 409 U.S. 1029, 93 S.Ct. 461, 34 L.Ed.2d 322 (1972). See Part IV, infra.
17
E.g., Tyler v. Witkowski, supra, at 450; Kostal v. Stoner, supra, at 493; Hampton v. City of Chicago, 484 F.2d 602, 608 (C.A.7 1973), cert. denied, 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471 (1974). See n. 20, infra.
18
The Supreme Court of Indiana in Griffith cited an earlier Massachusetts decision, apparently as authority for its own holding. But that case, Parker v. Huntington, 68 Mass. 124 (1854), involved the elements of a malicious prosecution cause of action rather than the immunity of a prosecutor. See also Note, 73 U.Pa.L.Rev. 300, 304 (1925).
19
Smith v. Parman, 101 Kan. 115, 165 P. 663 (1917); Semmes v. Collins, 120 Miss. 265, 82 So. 145 (1919); Kittler v. Kelsch, 56 N.D. 227, 216 N.W. 898 (1927); Watts v. Gerking, 111 Or. 654, 228 P. 135 (1924) (on rehearing). Contra, Leong Yau v. Carden, 23 Haw. 362 (1916).
20
The immunity of a judge for acts within his jurisdiction has roots extending to the earliest days of the common law. See Floyd v. Barker, 12 Coke 23, 77 Eng.Rep. 1305 (1608). Chancellor Kent traced some of its history in Yates v. Lansing, 5 Johns. 282 (N.Y.1810), and this Court accepted the rule of judicial immunity in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872). See n. 12, supra. The immunity of grand jurors, an almost equally venerable common-law tenet, see Floyd v. Barker, supra, also has been adopted in this country. See, e. g., Turpen v. Booth, 56 Cal. 65 (1880); Hunter v. Mathis, 40 Ind. 356 (1872). Courts that have extended the same immunity to the prosecutor have sometimes remarked on the fact that all three officials judge, grand juror, and prosecutor exercise a discretionary judgment on the basis of evidence presented to them. Smith v. Parman, supra ; Watts v. Gerking, supra. It is the functional comparability of their judgments to those of the judge that has resulted in both grand jurors and prosecutors being referred to as "quasi-judicial" officers, and their immunities being termed "quasi-judicial" as well. See, e. g., Turpen v. Booth, supra, 56 Cal. at 69; Watts v. Gerking, supra, 111 Or., at 661, 228 P., at 138.
21
See e. g., Gregoire v. Biddle, 177 F.2d 579 (C.A.2 1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950); Cooper v. O'Connor, 69 App.D.C. 100, 99 F.2d 135, 140-141 (1938); Anderson v. Rohrer, 3 F.Supp. 367 (S.D.Fla.1933); Pearson v. Reed, 6 Cal.App.2d 277, 44 P.2d 592 (1935); Anderson v. Manley, 181 Wash. 327, 43 P.2d 39 (1935). See generally Restatement of Torts § 656 and comment b (1938); 1 F. Harper & F. James, The Law of Torts § 4.3, pp. 305-306 (1956).
22
This is illustrated by the history of the disagreement as to the culpability of the prosecutor's conduct in this case. We express no opinion as to which of the courts was correct. See nn. 8 and 9, supra.
23
In the law of defamation, a concern for the airing of all evidence has resulted in an absolute privilege for any courtroom statement relevant to the subject matter of the proceeding. In the case of lawyers the privilege extends to their briefs and pleadings as well. See generally 1 T. Cooley Law of Torts § 153 (4th ed. 1932); 1 F. Harper & F. James, supra, § 5.22. In the leading case of Hoar v. Wood, 44 Mass. 193 (1841), Chief Justice Shaw expressed the policy decision as follows:
"Subject to this restriction (of relevancy), it is, on the whole, for the public interest, and best calculated to subserve the purposes of justice, to allow counsel full freedom of speech, in conducting the causes and advocating and sustaining the rights, of their constituents; and this freedom of discussion ought not to be impaired by numerous and refined distinctions." Id., at 197-198.
24
A prosecutor often must decide, especially in cases of wide public interest, whether to proceed to trial where there is a sharp conflict in the evidence. The appropriate course of action in such a case may well be to permit a jury to resolve the conflict. Yet, a prosecutor understandably would be reluctant to go forward with a close case where an acquittal likely would trigger a suit against him for damages. Cf. American Bar Association Project on Standards for Criminal Justice, Prosecution and Defense Function § 3.9(c) (Approved Draft 1971).
25
The possibility of personal liability also could dampen the prosecutor's exercise of his duty to bring to the attention of the court or of proper officials all significant evidence suggestive of innocence or mitigation. At trial this duty is enforced by the requirements of due process, but after a conviction the prosecutor also is bound by the ethics of his office to inform the appropriate authority of after-acquired or other information that casts doubt upon the correctness of the conviction. Cf. ABA Code of Professional Responsibility § EC 7-13 (1969); ABA Standards, supra, § 3.11. Indeed, the record in this case suggests that respondent's recognition of this duty led to the post-conviction hearing which in turn resulted ultimately in the District Court's granting of the writ of habeas corpus.
26
In addressing the consequences of subjecting judges to suits for damages under § 1983, the Court has commented:
"Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation." Pierson v. Ray, 386 U.S., at 554, 87 S.Ct., at 1218.
27
Petitioner contends that his suit should be allowed, even if others would not be, because the District Court's issuance of the writ of habeas corpus shows that his suit has substance. We decline to carve out such an exception to prosecutorial immunity. Petitioner's success on habeas, where the question was the alleged misconduct by several state agents, does not necessarily establish the merit of his civil rights action where only the respondent's alleged wrongdoing is at issue. Certainly nothing determined on habeas would bind respondent, who was not a party. Moreover, using the habeas proceeding as a "door-opener" for a subsequent civil rights action would create the risk of injecting extraneous concerns into that proceeding. As we noted in the text, consideration of the habeas petition could well be colored by an awareness of potential prosecutorial liability.
28
"Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District 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 not more than $1,000 or imprisoned not more than one year, or both; and if death results shall be subject to imprisonment for any term of years or for life."
29
California also appears to provide for criminal punishment of a prosecutor who commits some of the acts ascribed to respondent by petitioner. Cal.Penal Code § 127 (1970); cf. In re Branch, 70 Cal.2d 200, 210-211, 74 Cal.Rptr. 238, 245, 449 P.2d 174, 181 (1969).
30
See ABA Code of Professional Responsibility § EC 7-13. See generally ABA, Standards, supra, n. 24, §§ 1.1(c), (e), and Commentary, pp. 44-45.
31
Guerro v. Mulhearn, 498 F.2d, at 1256; Hampton v. City of Chicago, 484 F.2d, at 608-609; Robichaud v. Ronan, 351 F.2d 533, 537 (C.A.9 1965); cf. Madison v. Purdy, 410 F.2d 99 (C.A.5 1969); Lewis v. Brautigam, 227 F.2d 124 (C.A.5 1955). But cf. Cambist Films, Inc. v. Duggan, 475 F.2d 887, 889 (C.A.3 1973).
32
Both in his complaint in District Court and in his argument to us, petitioner characterizes some of respondent's actions as "police-related" or investigative. Specifically, he points to a request by respondent of the police during a courtroom recess that they hold off questioning Costello about a pending bad-check charge until after Costello had completed his testimony. Petitioner asserts that this request was an investigative activity because it was a direction to police officers engaged in the investigation of crime. Seen in its proper light, however, respondent's request of the officers was an effort to control the presentation of his witness' testimony, a task fairly within his function as an advocate.
33
We recognize that the duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom. A prosecuting attorney is required constantly, in the course of his duty as such, to make decisions on a wide variety of sensitive issues. These include questions of whether to present a case to a grand jury, whether to file an information, whether and when to prosecute, whether to dismiss an indictment against particular defendants, which witnesses to call, and what other evidence to present. Preparation, both for the initiation of the criminal process and for a trial, may require the obtaining, reviewing, and evaluating of evidence. At some point, and with respect to some decisions, the prosecutor no doubt functions as an administrator rather than as an officer of the court. Drawing a proper line between these functions may present difficult questions, but this case does not require us to anticipate them.
34
Mr. Justice WHITE, concurring in the judgment, would distinguish between willful use by a prosecutor of perjured testimony and willful suppression by a prosecutor of exculpatory information. In the former case, Mr. Justice WHITE agrees that absolute immunity is appropriate. He thinks, however, that only a qualified immunity is appropriate where information relevant to the defense is "unconstitutionally Withheld . . . from the court." Post, at 443.
We do not accept the distinction urged by Mr. Justice WHITE for several reasons. As a matter of principle, we perceive no less an infringement of a defendant's rights by the knowing use of perjured testimony than by the deliberate withholding of exculpatory information. The conduct in either case is reprehensible, warranting criminal prosecution as well as disbarment. See Supra, at 429, nn. 29 and 30. Moreover, the distinction is not susceptible of practical application. A claim of using perjured testimony simply may be reframed and asserted as a claim of suppression of the evidence upon which the knowledge of perjury rested. That the two types of claims can thus be viewed is clear from our cases discussing the constitutional prohibitions against both practices. Mooney v. Holohan, 294 U.S. 103, 110, 55 S.Ct. 340, 341, 79 L.Ed. 791 (1935); Alcorta v. Texas, 355 U.S. 28, 31-32, 78 S.Ct. 103, 105, 2 L.Ed.2d 9 (1957); Brady v. Maryland, 373 U.S. 83, 86, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963); Miller v. Pate, 386 U.S. 1, 4-6, 87 S.Ct. 785, 786, 17 L.Ed.2d 690 (1967); Giglio v. United States, 405 U.S. 150, 151-155, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). It is also illustrated by the history of this case: at least one of the charges of prosecutorial misconduct discussed by the Federal District Court in terms of suppression of evidence had been discussed by the Supreme Court of California in terms of use of perjured testimony. Compare Imbler v. Craven, 298 F.Supp., at 809-811, with In re Imbler, 60 Cal.2d, at 566-567, 35 Cal.Rptr., at 299-301, 387 P.2d, at 12-13. Denying absolute immunity from suppression claims could thus eviscerate, in many situations, the absolute immunity from claims of using perjured testimony.
We further think Mr. Justice WHITE's suggestion, Post, at 440 n. 5, that absolute immunity should be accorded only when the prosecutor makes a "full disclosure" of all facts casting doubt upon the State's testimony, would place upon the prosecutor a duty exceeding the disclosure requirements of Brady and its progeny, see 373 U.S., at 87, 83 S.Ct. at 1196; Moore v. Illinois, 408 U.S. 786, 795, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706 (1972); cf. Donnelly v. DeChristoforo, 416 U.S. 637, 647-648, 94 S.Ct. 1868, 1874, 40 L.Ed.2d 431 (1974). It also would weaken the adversary system at the same time it interfered seriously with the legitimate exercise of prosecutorial discretion.
1
The Court emphasized that the immunity had a lengthy history at common law, and was written into the United States Constitution in the "Speech or Debate Clause" and into many state constitutions as well. 341 U.S., at 372-373, 71 S.Ct., at 786.
2
The Court concluded that "(f)ew doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872)." 386 U.S., at 553-554, 87 S.Ct., at 1217.
3
Even the risk that decisions in habeas corpus proceedings will be skewed is applicable in the case of policemen; and if it supplies a sufficient reason to extend absolute immunity to prosecutors, it should have been a sufficient reason to extend such immunity to policemen. Indeed, it is fair to say that far more habeas corpus petitions turn on the constitutionality of action taken by policemen than turn on the constitutionality of action taken by prosecutors. We simply rely on the ability of federal judges correctly to apply the law to the facts with the knowledge that the overturning of a conviction on constitutional grounds hardly dooms the official in question to payment of a damage award in light of the qualified immunity which he possesses, and the inapplicability of the res judicata doctrine, Ante, at 428 n. 27.
4
I agree with the majority that it is not sufficient merely to set the standard of proof in a malicious prosecution case very high. If this were done, it might be possible to eliminate the danger of an unjust damage award against a prosecutor. However, the risk of having to Defend a suit even if certain of ultimate vindication would remain a substantial deterrent to fearless prosecution.
5
For the reasons set forth in Part III, Infra, absolute immunity would not apply to independent claims that the prosecutor has withheld facts tending to demonstrate the falsity of his witness' testimony where the alleged facts are sufficiently important to justify a finding of unconstitutional conduct on the part of the prosecutor.
6
Immunity of public officials for false arrest was, unlike immunity of public officials for malicious prosecution, not absolute, 1 Harper & James, §§ 3.17 and 3.18; and when prosecutors were sued for that tort, they were not held absolutely immune. Schneider v. Shepherd, 192 Mich. 82, 158 N.W. 182 (1916). A similar result has obtained in the lower courts in suits under 42 U.S.C. § 1983 against prosecutors for initiating unconstitutional arrests. Robichaud v. Ronan, 351 F.2d 533 (C.A.9 1965); Hampton v. Chicago, 484 F.2d 602 (C.A.7 1973); Wilhelm v. Turner, 431 F.2d 177, 180-183 (C.A.8 1970) (dictum); Balistrieri v. Warren, 314 F.Supp. 824 (W.D.Wis.1970). See also Ames v. Vavreck, 356 F.Supp. 931 (Minn.1973).
7
The reasons for making a prosecutor absolutely immune from suits for defamation would apply with equal force to other suits based solely upon the prosecutor's conduct in the courtroom designed either to bring facts or arguments to the attention of the court. Thus, a prosecutor would be immune from a suit based on a claim that his summation was unconstitutional or that he deliberately elicited hearsay evidence in violation of the Confrontation Clause.
8
There may be circumstances in which ongoing investigations or even the life of an informant might be jeopardized by public disclosure of information thought possibly to be exculpatory. However, these situations may adequately be dealt with by In camera disclosure to the trial judge. These considerations do not militate against disclosure, but merely affect the manner of disclosure.
9
The majority points out that the knowing use of perjured testimony is as reprehensible as the deliberate suppression of exculpatory evidence. This is beside the point. The reason for permitting suits against prosecutors for suppressing evidence is not that suppression is especially reprehensible but that the only effect on the process of permitting such suits will be a beneficial one more information will be disclosed to the court; whereas one of the effects of permitting suits for knowing use of perjured testimony will be detrimental to the process prosecutors may withhold questionable but valuable testimony from the court.
The majority argues that any "claim of using perjured testimony simply may be reframed and asserted as a claim of suppression." Our treatment of the allegations in this case conclusively refutes the argument. It is relatively easy to allege that a government witness testified falsely and that the prosecutor did not believe the witness; and, if the prosecutor's subjective belief is a sufficient basis for liability, the case would almost certainly have to go to trial. If such suits were permitted, This case would have to go to trial. It is another matter entirely to allege specific objective facts known to the prosecutor of sufficient importance to justify a conclusion that he violated a constitutional duty to disclose. It is no coincidence that petitioner failed to make any such allegations in this case. More to the point and quite apart from the relative difficulty of pleading a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) a rule permitting suits based on withholding of specific facts unlike suits based on the prosecutor's disbelief of a witness' testimony will have no detrimental effect on the process. Risk of being sued for suppression will impel the prosecutor to err if at all on the side of overdisclosure. Risk of being sued for disbelieving a witness will impel the prosecutor to err on the side of withholding questionable evidence. The majority does not appear to respond to this point. Any suggestion that the distinction between suits based on suppression of facts helpful to the defense and suits based on other kinds of constitutional violations cannot be understood by district judges who would have to apply the rule is mystifying. The distinction is a simple one.
Finally, the majority states that the rule suggested in this concurring opinion "would place upon the prosecutor a duty exceeding the disclosure requirements of Brady and its progeny." The rule suggested in this opinion does no such thing. The constitutional obligation of the prosecutor remains utterly unchanged. We would simply not grant him Absolute immunity from suits for committing violations of pre-existing constitutional disclosure requirements, if he committed those violations in bad faith.
| 12
|
424 U.S. 554
96 S.Ct. 1048
47 L.Ed.2d 231
Charles A. HINES, etc., et al., Petitioners,v.ANCHOR MOTOR FREIGHT, INC., et al.
No. 74-1025.
Argued Nov. 12, 1975.
Decided March 3, 1976.
Syllabus
Petitioner employees were discharged by respondent employer for alleged dishonesty. Respondent union, claiming that petitioners were innocent, opposed the discharges, and pursuant to the collective-bargaining contract the matter was submitted to an arbitration committee, which upheld the discharges. The collective-bargaining contract provided that a decision by the arbitration committee would be final and binding on all parties, including the employees affected. However, when subsequent information indicated that the charges of dishonesty might have been false, petitioners brought a wrongful-discharge suit against the employer and union under § 301 of the Labor Management Relations Act, alleging that the falsity of the charges could have been discovered with a minimum of investigation, and that the union had made no effort to ascertain the truth and thereby had violated its duty of fair representation by arbitrarily and in bad faith depriving petitioners of their employment and permitting their discharge without sufficient proof. The District Court granted summary judgment for respondents on the ground that the arbitration committee's decision was final and binding absent a showing of bad faith, arbitrariness, or perfunctoriness on the union's part. Concluding that there were sufficient facts from which to infer bad faith or arbitrary conduct on the union's part and that petitioners should have been afforded an opportunity to prove their charges, the Court of Appeals reversed the District Court to that extent, but affirmed the judgment in the employer's favor on the ground that the finality provision of the collective-bargaining contract had to be observed unless evidence showed misconduct by the employer or a conspiracy between it and the union. Held : It was improper to dismiss petitioners' suit against respondent employer, since if petitioners prove an erroneous discharge and respondent union's breach of duty of fair representation tainting the arbitration committee's decision, they are entitled to an appropriate remedy against the employer as well as the union. Pp. 561-572.
(a) A union's breach of duty relieves the employee of an express or implied requirement that disputes be settled through contractual procedures and, if it seriously undermines the integrity of the arbitral process, also removes the bar of the finality provision of the contract. Pp. 567-569.
(b) Respondent employer, if the charges of dishonesty were in error, played its part in precipitating the dispute, and though the employer may not have knowingly or negligently relied on false evidence in discharging petitioners and may have prevailed before the arbitration committee after presenting its case by fair procedures, petitioners should not be foreclosed from their § 301 remedy otherwise available against the employer if the contractual processes have been seriously flawed by the union's breach of its duty. Pp. 569-570.
(c) While the grievance processes cannot be expected to be error-free, enforcement of the finality provision where the arbitrator has erred is conditioned upon the union's having satisfied its statutory duty fairly to represent the employees in connection with arbitration proceedings; otherwise, a wrongfully discharged employee would be left without a job and a fair opportunity to secure an adequate remedy. Pp. 570-571.
506 F.2d 1153, reversed in part.
Niki Z. Schwartz, Cleveland, Ohio, for petitioners.
Bernard S. Goldfarb, Cleveland, Ohio, for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
The issue here is whether a suit against an employer by employees asserting breach of a collective-bargaining contract was properly dismissed where the accompanying complaint against the union for breach of duty of fair representation has withstood the union's motion for summary judgment and remains to be tried.
2
* Petitioners,1 who were formerly employed as truck drivers by respondent Anchor Motor Freight, Inc. (Anchor), were discharged on June 5, 1967. The applicable collective-bargaining contract forbade discharges without just cause. The company charged dishonesty. The practice at Anchor was to reimburse drivers for money spent for lodging while the drivers were on the road overnight. Anchor's assertion was that petitioners had sought reimbursement for motel expenses in excess of the actual charges sustained by them. At a meeting between the company and the union, Local 377, International Brotherhood of Teamsters (Union), which was also attended by petitioners, Anchor presented motel receipts previously submitted by petitioners which were in excess of the charges shown on the motel's registration cards; a notarized statement of the motel clerk asserting the accuracy of the registration cards; and an affidavit of the motel owner affirming that the registration cards were accurate and that inflated receipts had been furnished petitioners. The Union claimed petitioners were innocent and opposed the discharges. It was then agreed that the matter would be presented to the joint arbitration committee for the area, to which the collective-bargaining contract permitted either party to submit an unresolved grievance.2 Pending this hearing, petitioners were reinstated. Their suggestion that the motel be investigated was answered by the Union representatives' assurances that "there was nothing to worry about" and that they need not hire their own attorney.
3
A hearing before the joint area committee was held on July 26, 1967. Anchor presented its case. Both the Union and petitioners were afforded an opportunity to present their case and to be heard. Petitioners denied their dishonesty, but neither they nor the Union presented any other evidence contradicting the documents presented by the company. The committee sustained the discharges. Petitioners then retained an attorney and sought rehearing based on a statement by the motel owner that he had no personal knowledge of the events, but that the discrepancy between the receipts and the registration cards could have been attributable to the motel clerk's recording on the cards less than was actually paid and retaining for himself the difference between the amount receipted and the amount recorded. The committee, after hearing, unanimously denied rehearing "because there was no new evidence presented which would justify a reopening of this case." App. 212.
4
There were later indications that the motel clerk was in fact the culprit; and the present suit was filed in June 1969, against Anchor, the Union, and its International. The complaint alleged that the charges of dishonesty made against petitioners by Anchor were false, that there was no just cause for discharge, and that the discharges had been in breach of contract. It was also asserted that the falsity of the charges could have been discovered with a minimum of investigation, that the Union had made no effort to ascertain the truth of the charges, and that the Union had violated its duty of fair representation by arbitrarily and in bad faith depriving petitioners of their employment and permitting their discharge without sufficient proof.
5
The Union denied the charges and relied on the decision of the joint area committee. Anchor asserted that petitioners had been properly discharged for just cause. It also defended on the ground that petitioners, diligently and in good faith represented by the Union, had unsuccessfully resorted to the grievance and arbitration machinery provided by the contract and that the adverse decision of the joint arbitration committee was binding upon the Union and petitioners under the contractual provision declaring that "(a) decision by a majority of a Panel of any of the Committees shall be final and binding on all parties, including the employee and/or employees affected."3 Discovery followed, including a deposition of the motel clerk revealing that he had falsified the records and that it was he who had pocketed the difference between the sums shown on the receipts and the registration cards. Motions for summary judgment filed by Anchor and the Unions were granted by the District Court on the ground that the decision of the arbitration committee was final and binding on the employees and 'for failure to show facts comprising bad faith, arbitrariness or perfunctoriness on the part of the Unions." 72 CCH Lab. Cas. P 13,987, p. 28,131 (ND Ohio 1973). Although indicating that the acts of the Union "may not meet professional standards of competency, and while it might have been advisable for the Union to further investigate the charges . . .," the District Court concluded that the facts demonstrated at most bad judgment on the part of the Union, which was insufficient to prove a breach of duty or make out a prima facie case against it. Id., at 28,132.
6
After reviewing the allegations and the record before it, the Court of Appeals concluded that there were sufficient facts from which bad faith or arbitrary conduct on the part of the local Union could be inferred by the trier of fact and that petitioners should have been afforded an opportunity to prove their charges.4 To this extent the judgment of the District Court was reversed. The Court of Appeals affirmed the judgment in favor of Anchor and the International. Saying that petitioners wanted to relitigate their discharges because of the recantation of the motel clerk, the Court of Appeals, quoting from its prior opinion in Balowski v. International Union, 372 F.2d 829 (CA 6 1967),5 concluded that the finality provision of collective-bargaining contracts must be observed because there was "(n)o evidence of any misconduct on the part of the employer . . . " and wholly insufficient evidence of any conspiracy between the Union and Anchor. 506 F.2d, at 1157, 1158.6
7
It is this judgment of the Court of Appeals with respect to Anchor that is now before us on our limited grant of the employees' petition for writ of certiorari. 421 U.S. 928, 95 S.Ct. 1654, 44 L.Ed.2d 85 (1975).7 We reverse that judgment.
II
8
Section 301 of the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U.S.C. § 185, provides for suits in the district courts for violation of collective-bargaining contracts between labor organizations and employers without regard to the amount in controversy.8 This provision reflects the interest of Congress in promoting "a higher degree of responsibility upon the parties to such agreements . . . ." S.Rep.No.105, 80th Cong., 1st Sess., 17 (1947). The strong policy favoring judicial enforcement of collective-bargaining contracts was sufficiently powerful to sustain the jurisdiction of the district courts over enforcement suits even though the conduct involved was arguably or would amount to an unfair labor practice within the jurisdiction of the National Labor Relations Board. Smith v. Evening News Assn., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962); Atkinson v. Sinclair Rfg. Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962); Teamsters, Chauffeurs, Warehousemen & Helpers of America v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962); Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483 (1962). Section 301 contemplates suits by and against individual employees as well as between unions and employers; and contrary to earlier indications § 301 suits encompass those seeking to vindicate "uniquely personal" rights of employees such as wages, hours, overtime pay, and wrongful discharge. Smith v. Evening News Assn., supra, 371 U.S., at 198-200, 83 S.Ct., at 269-270. Petitioners' present suit against the employer was for wrongful discharge and is the kind of case Congress provided for in § 301.
9
Collective-bargaining contracts, however, generally contain procedures for the settlement of disputes through mutual discussion and arbitration. These provisions are among those which are to be enforced under § 301. Furthermore, Congress has specified in § 203(d), 61 Stat. 154, 29 U.S.C. § 173(d), that "(f)inal adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes . . . ." This congressional policy "can be effectuated only if the means chosen by the parties for settlement of their differences under a collective bargaining agreement is given full play." Steelworkers v. American Mfg. Co., 363 U.S. 564, 566, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403, 1404 (1960). Courts are not to usurp those functions which collective-bargaining contracts have properly "entrusted to the arbitration tribunal." Id., at 569, 80 S.Ct., at 1347, 4 L.Ed.2d at 1405. They should not undertake to review the merits of arbitration awards but should defer to the tribunal chosen by the parties finally to settle their disputes. Otherwise "plenary review by a court of the merits would make meaningless the provisions that the arbitrator's decision is final, for in reality it would almost never be final." Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599, 80 S.Ct. 1358, 1362, 4 L.Ed.2d 1424, 1429 (1960).
10
Pursuant to this policy, we later held that an employee could not sidestep the grievance machinery provided in the contract and that unless he attempted to utilize the contractual procedures for settling his dispute with his employer, his independent suit against the employer in the District Court would be dismissed. Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965). Maddox nevertheless distinguished the situation where "the union refuses to press or only perfunctorily presses the individual's claim . . . . See Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370; National Labor Relations Board v. Miranda Fuel Co., 2 Cir., 326 F.2d 172." Id., at 652, 85 S.Ct., at 616, 13 L.Ed.2d, at 583 (footnote omitted).
11
The reservation in Maddox was well advised. The federal labor laws, in seeking to strengthen the bargaining position of the average worker in an industrial economy, provided for the selection of collective-bargaining agents with wide authority to negotiate and conclude collective-bargaining agreements on behalf of all employees in appropriate units, as well as to be the employee's agent in the enforcement and administration of the contract. Wages, hours, working conditions, seniority, and job security therefore became the business of certified or recognized bargaining agents, as did the contractual procedures for the processing and settling of grievances, including those with respect to discharge.
12
Necessarily "(a) wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents . . . ." Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73 S.Ct. 681, 686, L.Ed. 1048, 1058 (1953). The union's broad authority in negotiating and administering effective agreements is "undoubted," Humphrey v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 368, 11 L.Ed.2d 370, 377 (1964), but it is not without limits. Because "(t)he collective bargaining system as encouraged by Congress and administered by the NLRB of necessity subordinates the interests of an individual employee to the collective interests of all employees in a bargaining unit," Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 912, 17 L.Ed.2d 842, 853 (1967), the controlling statutes have long been interpreted as imposing upon the bargaining agent a responsibility equal in scope to its authority, "the responsibility and duty of fair representation." Humphrey v. Moore, supra, 375 U.S. at 342, 84 S.Ct., at 368, 11 L.Ed.2d, at 377. The union as the statutory representative of the employees is "subject always to complete good faith and honesty of purpose in the exercise of its discretion." Ford Motor Co. v. Huffman, supra, 345 U.S., at 338, 73 S.Ct., at 686, 97 L.Ed., at 1058. Since Steele v. Louisville & N. R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944), with respect to the railroad industry, and Ford Motor Co. v. Huffman, supra, and Syres v. Oil Workers, 350 U.S. 892, 76 S.Ct. 152, 100 L.Ed. 785 (1955), with respect to those industries reached by the National Labor Relations Act, the duty of fair representation has served as a "bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law." Vaca v. Sipes, supra, 386 U.S., at 182, 87 S.Ct., at 912, 17 L.Ed.2d, at 853.
13
Claims of union breach of duty may arise during the life of a contract when individual employees claim wrongful discharge or other improper treatment at the hands of the employer. Contractual remedies, at least in their final stages controlled by union and employer, are normally provided; yet the union may refuse to utilize them or, if it does, assertedly may do so discriminatorily or in bad faith. "The problem then is to determine under what circumstances the individual employee may obtain judicial review of his breach-of-contract claim despite his failure to secure relief through the contractual remedial procedures." Vaca v. Sipes, supra, at 185, 87 S.Ct., at 914, 17 L.Ed.2d, at 854.
14
Humphrey v. Moore, supra, involved a seniority dispute between the employees of two transportation companies whose operating authorities had been combined. The employees accorded lesser seniority were being laid off. Their grievances were presented to the company and taken by the union to the joint arbitration committee pursuant to contractual provisions very similar to those now before us. The decision was adverse. The employees then brought suit in the state court against the company, the union, and the favored employees, asserting breach of contract by the company and breach of its duty of fair representation by the union. They sought damages and an injunction to prevent implementation of the decision of the joint arbitration committee. The union was charged with dishonest and bad-faith representation of the employees before the joint committee. The unions and the defendant employees asserted the finality of the joint committee's decision, if not as a final resolution of a dispute in the administration of a contract, as a bargained-for accommodation between the two parties. The state courts issued the injunction. Respondents argued here that "the decision of the Committee was obtained by dishonest union conduct in breach of its duty of fair representation and that a decision so obtained cannot be relied upon as a valid excuse for (their) discharge under the contract." 375 U.S., at 342, 84 S.Ct., at 368, 11 L.Ed.2d, at 377. We reversed the judgment of the state court but only after independently determining that the union's conduct was not a breach of its statutory duties and that the joint committee's decision was not infirm for that reason. Our conclusion was that the disfavored employees had not proved their case: "Neither the parties nor the Joint Committee exceeded their power under the contract and there was no fraud or breach of duty by the exclusive bargaining agent. The decision of the committee, reached after proceedings adequate under the agreement, is final and binding upon the parties, just as the contract says it is." Id., at 351, 84 S.Ct., at 372, 11 L.Ed.2d, at 382.
15
In Vaca v. Sipes, supra, the discharged employees sued the union alleging breach of its duty of fair representation in that it had refused in bad faith to take the employee's grievance to arbitration as it could have under the contract. In the course of rejecting the claim that the alleged conduct was arguably an unfair practice within the exclusive jurisdiction of the Labor Board, we ruled that "the wrongfully discharged employee may bring an action against his employer in the face of a defense based upon the failure to exhaust contractual remedies, provided the employee can prove that the union as bargaining agent breached its duty of fair representation in its handling of the employee's grievance." 386 U.S., at 186, 87 S.Ct., at 914, 17 L.Ed.2d, at 855 (footnote omitted). This was true even though "the employer in such a situation may have done nothing to prevent exhaustion of the exclusive contractual remedies . . . ," for "the employer has committed a wrongful discharge in breach of that agreement, a breach which could be remedied through the grievance process . . . were it not for the union's breach of its statutory duty of fair representation . . . ." Id., at 185, 87 S.Ct., at 914, 17 L.Ed.2d, at 855. We could not "believe that Congress, in conferring upon employers and unions the power to establish exclusive grievance procedures, intended to confer upon unions such unlimited discretion to deprive injured employees of all remedies for breach of contract." Id., at 186, 87 S.Ct., at 914, 17 L.Ed.2d, at 855. Nor did we "think that Congress intended to shield employers from the natural consequences of their breaches of bargaining agreements by wrongful union conduct in the enforcement of such agreements." Ibid. At the same time "we conclude(d) that a union does not breach its duty of fair representation . . . merely because it settled the grievance short of arbitration." Id., at 192, 87 S.Ct., at 918, 17 L.Ed.2d, at 859. "If the individual employee could compel arbitration of his grievance regardless of its merit," that is, compel both employers and unions to make full use of the contractual provisions for settling disputes by arbitration, "the settlement machinery provided by the contract would be substantially undermined," for curtailing the "power to settle the majority of grievances short of the costlier and more time-consuming steps" might deter the parties to collective-bargaining agreements from making "provi(sion) for detailed grievance and arbitration procedures of the kind encouraged by L.M.R.A. § 203(d)." Id., at 191-192, 87 S.Ct., at 917, 918, 17 L.Ed.2d, at 858, 859. We also expressly indicated that suit against the employer and suit against the union could be joined in one action. Id., at 187, 87 S.Ct., at 915, 17 L.Ed.2d, at 856.
III
16
Even though under Vaca the employer may not insist on exhaustion of grievance procedures when the union has breached its representation duty, it is urged that when the procedures have been followed and a decision favorable to the employer announced, the employer must be protected from relitigation by the express contractual provision declaring a decision to be final and binding. We disagree. The union's breach of duty relieves the employee of an express or implied requirement that disputes be settled through contractual grievance procedures; if it seriously undermines the integrity of the arbitral process the union's breach also removes the bar of the finality provisions of the contract.
17
It is true that Vaca dealt with a refusal by the union to process a grievance. It is also true that where the union actually utilizes the grievance and arbitration procedures on behalf of the employee, the focus is no longer on the reasons for the union's failure to act but on whether, contrary to the arbitrator's decision, the employer breached the contract and whether there is substantial reason to believe that a union breach of duty contributed to the erroneous outcome of the contractual proceedings. But the judicial remedy in Humphrey v. Moore was sought after the adverse decision of the joint arbitration committee. Our conclusion in that case was not that the committee's decision was unreviewable. On the contrary, we proceeded on the basis that it was reviewable and vulnerable if tainted by breach of duty on the part of the union, even though the employer had not conspired with the union. The joint committee's decision was held binding on the complaining employees only after we determined that the union had not been guilty of malfeasance and that its conduct was within the range of acceptable performance by a collective-bargaining agent, a wholly unnecessary determination if the union's conduct was irrelevant to the finality of the arbitral process.9
18
In Vaca "we accept(ed) the proposition that a union may not arbitrarily ignore a meritorious grievance or process it in a perfunctory fashion," 386 U.S., at 191, 87 S.Ct., at 917, 17 L.Ed.2d, at 856; and our ruling that the union had not breached its duty of fair representation in not pressing the employee's case to the last step of the grievance process stemmed from our evaluation of the manner in which the union had handled the grievance in its earlier stages. Although "the Union might well have breached its duty had it ignored (the employee's) complaint or had it processed the grievance in a perfunctory manner," "the Union conclude(d) both that arbitration would be fruitless and that the grievance should be dismissed" only after it had "processed the grievance into the fourth step, attempted to gather sufficient evidence to prove (the employee's) case, attempted to secure for (him) less vigorous work at the plant, and joined in the employer's efforts to have (him) rehabilitated." Id., at 194, 87 S.Ct., at 919, 17 L.Ed.2d, at 860.
19
Anchor would have it that petitioners are foreclosed from judicial relief unless some blameworthy conduct on its part disentitles it to rely on the finality rule. But it was Anchor that originated the discharges for dishonesty. If those charges were in error, Anchor has surely played its part in precipitating this dispute. Of course, both courts below held there were no facts suggesting that Anchor either knowingly or negligently relied on false evidence. As far as the record reveals it also prevailed before the joint committee after presenting its case in accordance with what were ostensibly wholly fair procedures. Nevertheless there remains the question whether the contractual protection against relitigating an arbitral decision binds employees who assert that the process has fundamentally malfunctioned by reason of the bad-faith performance of the union, their statutorily imposed collective-bargaining agent.
20
Under the rule announced by the Court of Appeals, unless the employer is implicated in the Union's malfeasance or has otherwise caused the arbitral process to err, petitioners would have no remedy against Anchor even though they are successful in proving the Union's bad faith, the falsity of the charges against them, and the breach of contract by Anchor by discharging without cause. This rule would apparently govern even in circumstances where it is shown that a union has manufactured the evidence and knows from the start that it is false; or even if, unbeknownst to the employer, the union has corrupted the arbitrator to the detriment of disfavored union members. As is the case where there has been a failure to exhaust, however, we cannot believe that Congress intended to foreclose the employee from his § 301 remedy otherwise available against the employer if the contractual processes have been seriously flawed by the union's breach of its duty to represent employees honestly and in good faith and without invidious discrimination or arbitrary conduct.
21
It is urged that the reversal of the Court of Appeals will undermine not only the finality rule but the entire collective-bargaining process. Employers, it is said, will be far less willing to give up their untrammeled right to discharge without cause and to agree to private settlement procedures. But the burden on employees will remain a substantial one, far too heavy in the opinion of some.10 To prevail against either the company or the Union, petitioners must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating breach of duty by the Union. As the District Court indicated, this involves more than demonstrating mere errors in judgment.
22
Petitioners are not entitled to relitigate their discharge merely because they offer newly discovered evidence that the charges against them were false and that in fact they were fired without cause. The grievance processes cannot be expected to be error-free. The finality provision has sufficient force to surmount occasional instances of mistake. But it is quite another matter to suggest that erroneous arbitration decisions must stand even though the employee's representation by the Union has been dishonest, in bad faith, or discriminatory; for in that event error and injustice of the grossest sort would multiply. The contractual system would then cease to qualify as an adequate mechanism to secure individual redress for damaging failure of the employer to abide by the contract. Congress has put its blessing on private dispute settlement arrangements provided in collective agreements, but it was anticipated, we are sure, that the contractual machinery would operate within some minimum levels of integrity. In our view, enforcement of the finality provision where the arbitrator has erred is conditioned upon the union's having satisfied its statutory duty fairly to represent the employee in connection with the arbitration proceedings. Wrongfully discharged employees would be left without jobs and without a fair opportunity to secure an adequate remedy.
23
Except for this case the Courts of Appeals have arrived at similar conclusions.11 As the Court of Appeals for the Ninth Circuit put it in Margetta v. Pam Pam Corp., 501 F.2d 179, 180 (1974): "To us, it makes little difference whether the union subverts the arbitration process by refusing to proceed as in Vaca or follows the arbitration trail to the end, but in so doing subverts the arbitration process by failing to fairly represent the employee. In neither case, does the employee receive fair representation."
24
Petitioners, if they prove an erroneous discharge and the Union's breach of duty tainting the decision of the joint committee, are entitled to an appropriate remedy against the employer as well as the Union. It was error to affirm the District Court's final dismissal of petitioners' action against Anchor. To this extent the judgment of the Court of Appeals is reversed.
25
So ordered.
26
Judgment reversed.
27
Mr. Justice STEVENS took no part in the consideration or decision of this case.
28
Mr. Justice STEWART, concurring.
29
I agree with the Court that proof of breach of the Union's duty of fair representation will remove the bar of finality from the arbitral decision that Anchor did not wrongfully discharge the petitioners. See Vaca v. Sipes, 386 U.S. 171, 194, 87 S.Ct. 903, 918-919, 17 L.Ed.2d 842; Humphrey v. Moore, 375 U.S. 335, 348-351, 84 S.Ct. 363, 371-373, 11 L.Ed.2d 370. But this is not to say that proof of breach of the Union's representation duty would render Anchor potentially liable for backpay accruing between the time of the "tainted" decision by the arbitration committee and a subsequent "untainted" determination that the discharges were, after all, wrongful.
30
If an employer relies in good faith on a favorable arbitral decision, then his failure to reinstate discharged employees cannot be anything but rightful, until there is a contrary determination. Liability for the intervening wage loss must fall not on the employer but on the union. Such an apportionment of damages is mandated by Vaca's holding that "damages attributable solely to the employer's breach of contract should not be charged to the union, but increases if any in those damages caused by the union's refusal to process the grievance should not be charged to the employer." 386 U.S., at 197-198, 87 S.Ct., at 920, 17 L.Ed.2d, at 862. To hold an employer liable for back wages for the period during which he rightfully refuses to rehire discharged employees would be to charge him with a contractual violation on the basis of conduct precisely in accord with the dictates of the collective agreement.
31
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting.
32
Petitioners seek $1 million damages from their employer and their union on the grounds that they were wrongfully discharged from their jobs. The District Court granted summary judgment for respondents, finding that the issues had been finally decided as to respondent Anchor Motor by the arbitration committee and that petitioners had failed "to show facts comprising bad faith, arbitrariness or perfunctoriness on the part of the Unions." The Court of Appeals reversed the summary judgment as to the local Union, holding that the issue of bad faith should not have been summarily decided. However, as to respondent Anchor Motor the Court of Appeals affirmed, holding that where, as here, the collective-bargaining agreement provided that arbitration would be final and binding, the decision of the arbitrator would not be upset, "absent a showing of fraud, misrepresentation, bad faith, dishonesty of purpose, or such gross mistake or inaction as to imply bad faith on the part of the Union or the employer." 506 F.2d 1153, 1157 (1974). This Court, assuming arguendo that the union breached its duty of fair representation for the reasons set forth in the opinion, reverses as to Anchor Motor, holding that the Union's breach of its duty to its members voided an otherwise valid arbitration decision in favor of the company. I find this result to be anomalous and contrary to the longstanding policy of this Court favoring the finality of arbitration awards.
33
In Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), this Court held that, where the union has prevented the employee from taking his grievance to arbitration, as provided in the collective-bargaining agreement, he may then turn to the courts for relief. This decision bolstered the consistent policy of this Court of encouraging the parties to settle their differences according to the terms of their collective-bargaining agreement. Steelworkers v. American Mfg. Co., 363 U.S. 564, 566, 80 S.Ct. 1343, 1345-1346, 4 L.Ed.2d 1403 (1960). By subjecting the employer to a damages suit due to the union's failure to utilize the arbitration process on behalf of the employees, the Vaca decision put pressure on both employers and unions to make full use of the contractual provisions for settling disputes by arbitration.
34
The decision in this case will have the exact opposite result. Here the Court has cast aside the policy of finality of arbitration decisions and established a new policy of encouraging challenges to arbitration decrees by the losing party on the ground that he was not properly represented.
35
The majority cites Margetta v. Pam Pam Corp., 501 F.2d 179, 180 (CA9 1974), for the proposition that "it makes little difference whether the union subverts the arbitration process by refusing to proceed as in Vaca or follows the arbitration trail to the end, but in so doing subverts the arbitration process by failing to fairly represent the employee." Ante, at 572. To the contrary, I believe that the existence of a final arbitration decision is the crucial difference between this case and Vaca. The duty of "fair representation" discussed in Vaca was the duty of the union to put the case to a fair and neutral arbitrator, a step which the employee could not take by himself. 386 U.S., at 185, 87 S.Ct., at 914.
36
Here the case Was presented to a concededly fair and neutral arbitrator but the claim is that that arbitration decision should be vacated because the employee did not receive "fair representation" from the Union in the sense of representation by counsel at a trial. Obviously this stretches Vaca far beyond its original meaning and adopts the novel notion that one may vacate an otherwise valid arbitration award because his "counsel" was ineffective.
37
As noted, such a principle violates this Court's policy favoring the finality of arbitration awards. It also has no basis in the statutory provisions respecting arbitration. Section 12 of the Uniform Arbitration Act, which is in use in many States, sets forth the grounds for vacating an award. These include awards having been procured by corruption or fraud, and arbitrators' exceeding their powers or exhibiting evident partiality. The federal statute governing arbitration, 9 U.S.C. §§ 1-14, provides similarly narrow grounds for vacating an award. § 10. Nowhere is any provision made for vacation of an award due to ineffective presentation of the case by a party's attorney or representative.
38
The Court's decision is particularly vexing on the facts of this case. Petitioners had at their own disposal all of the information necessary to present their case. If they had felt that the Union had not brought this information fully to the attention of the arbitration committee or that further investigation was necessary they could have so informed the committee. There is no indication that they did so. Rather, they allowed, without protest, the arbitration to proceed to a decision and when that decision was adverse they brought suit against the company and the Union.
39
Now the employer, which concededly acted in good faith throughout these proceedings, is to be subjected to a damages suit because of the Union's alleged misconduct. In view of the fact that petitioners have an action for damages against the Union, see Czosek v. O'Mara, 397 U.S. 25, 90 S.Ct. 770, 25 L.Ed.2d 21 (1970), this additional remedy against the employer seems both undesirable and unnecessary.
40
For the reasons stated I would affirm the judgment of the Court of Appeals.
1
Two of the original petitioners, Burtice A. Hines and Arthur D. Cartwright, are deceased. Charles A. Hines and Chyra J. Cartwright have been substituted as party petitioners. 423 U.S. 816, 982, 96 S.Ct. 28, 390, 46 L.Ed.2d 34, 300 (1975).
2
The contractual grievance procedure is set out in Art. 7 of the Central Conference Area Supplement to the National Master Automobile Transporters Agreement. App. 226-233. Grievances were to be taken up by the employee involved and if no settlement was reached, were then to be considered by the business agent of the local union and the employer representative. If the dispute remained unresolved, either party had the right to present the case for decision to the appropriate joint area arbitration committee. These committees are organized on a geographical area basis and hear grievances in panels made up of an equal number of representatives of the parties to the collective-bargaining agreement. Cases that deadlocked before the joint area committee could be taken to a panel of the national joint arbitration committee, composed like the area committee panels of an equal number of representatives of the parties to the agreement. If unresolved there, they would be resolved by a panel including an impartial arbitrator. The joint arbitration committee for the Detroit area is involved in this case.
3
The provision is contained in § 5 of Art. 7. App. 231. In addition, § 7(c) of the same article provides that all decisions of the national and area committees with respect to the interpretation of the contract "shall be final and conclusive and binding upon the Employer and the Union, and the employees involved." App. 232.
4
As summarized by the Court of Appeals, the allegations relied on were:
"They consist of the motel clerk's admission, made a year after the discharge was upheld in arbitration, that he, not plaintiffs, pocketed the money; the claim of the union's failure to investigate the motel clerk's original story implicating plaintiffs despite their requests; the account of the union officials' assurances to plaintiffs that 'they had nothing to worry about' and 'that there was no need for them to investigate;' the contention that no exculpatory evidence was presented at the hearing; and the assertion that there existed political antagonism between local union officials and plaintiffs because of a wildcat strike led by some of the plaintiffs and a dispute over the appointment of a steward, resulting in denunciation of plaintiffs as 'hillbillies' by Angelo, the union president." 506 F.2d 1153, 1156 (CA 6 1974).
5
The quoted segment of the opinion in Balowski v. International Union, 372 F.2d, at 833, was:
" 'It is apparent that what plaintiff is attempting to do is to relitigate his grievance in this proceeding. This he cannot do when the collective bargaining agreement provides for final and binding arbitration of all disputes, absent a showing of fraud, misrepresentation, bad faith, dishonesty of purpose, or such gross mistake or inaction as to imply bad faith on the part of the Union or the employer.' " 506 F.2d, at 1157 (citation omitted).
The rule in the Sixth Circuit, under Balowski, would appear to have been that an employee could litigate his discharge in court if he proved bad faith or gross mistake on the part of Either the union or the employer.
6
One judge, otherwise concurring, dissented as to affirming summary judgment against Anchor because "issues of fact . . . presented by the pleadings concerning plaintiffs' charges against the employer . . . should not have been dealt with on summary judgment." 506 F.2d, at 1158.
7
Our order of April 21, 1975, was as follows:
"Certiorari granted limited to Question 1 presented by the petition which reads as follows:
" '1. Whether petitioners' claim under LMRA § 301 for wrongful discharge is barred by the decision of a joint grievance committee upholding their discharge, notwithstanding that their union breached its duty of fair representation in processing their grievance so as to deprive them and the grievance committee of overwhelming evidence of their innocence of the alleged dishonesty for which they were discharged?' " Mr. Justice Douglas took no part in the consideration or decision of this petition."
The affirmance of summary judgment in favor of the International is therefore not before us. Nor is the judgment of the Court of Appeals reversing the summary judgment in favor of Local 377, since the Union has not sought review of this ruling.
8
§ 301(a), 29 U.S.C. § 185(a);
"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."
9
Czosek v. O'Mara, 397 U.S. 25, 90 S.Ct. 770, 25 L.Ed.2d 21 (1970), which arose under the Railway Labor Act, 44 Stat. 577, as amended, 45 U.S.C. § 151 Et seq., involved a claim that a railroad had wrongfully deprived plaintiff of his seniority and that the union had failed in its duty to protest. The suit against the union was sustained by the Court of Appeals, but dismissal of the claim against the railroad was affirmed absent allegation that the company had participated in the union's breach. In affirming the judgment we upheld the Court of Appeals' ruling against the union, but did not reach the question whether the railroad was properly dismissed over the employee's objections, since the latter did not challenge the judgment in this respect.
10
Mr. Justice Black, for one, was of the view that where the union refused to process a grievance, the employee should be allowed his suit in court without proof of the union's breach of duty. Vaca v. Sipes, 386 U.S. 171, 203, 87 S.Ct. 903, 923-924, 17 L.Ed.2d 842 (1967) (dissenting opinion).
11
Steinman v. Spector Freight System, Inc., 441 F.2d 599 (CA 2 1971); Butler v. Local Union 823, International Brotherhood of Teamsters, 514 F.2d 442 (CA 8), cert. denied, 423 U.S. 924, 96 S.Ct. 265, 46 L.Ed.2d 249 (1975); Margetta v. Pam Pam Corp., 501 F.2d 179 (CA 9 1974); Local 13, International Longshoremen's & Warehousemen's Union v. Pacific Maritime Assn., 441 F.2d 1061 (CA 9 1971), cert. denied, 404 U.S. 1016, 92 S.Ct. 677, 30 L.Ed.2d 664 (1972). See also Bieski v. Eastern Automobile Forwarding Co., 396 F.2d 32, 38 (CA 3 1968); Rothlein v. Armour & Co., 391 F.2d 574, 579-580 (CA 3 1968); Harris v. Chemical Leaman Tank Lines, Inc., 437 F.2d 167, 171 (CA 5 1971); Andrus v. Convoy Co., 480 F.2d 604, 606 (CA 9), cert. denied, 414 U.S. 989, 94 S.Ct. 286, 38 L.Ed.2d 228 (1973).
| 67
|
424 U.S. 494
96 S.Ct. 1003
47 L.Ed.2d 186
FEDERAL POWER COMMISSION, Petitioner,v.John E. MOSS et al.
No. 74-883.
Argued Dec. 3, 1975.
Decided March 3, 1976.
Syllabus
The Federal Power Commission (FPC), for the purpose of "stimulat(ing) and accelerat(ing) domestic exploration and development of natural gas reserves," by order established an "optional procedure for certificating new producer sales of natural gas." Under the order producers may tender for FPC approval contracts for the sale of new natural gas at rates exceeding the maximum authorized by the applicable rate order; the FPC will determine in a single proceeding whether the "public convenience and necessity" under § 7(c) of the Natural Gas Act (Act) warrants the issuance of a certificate authorizing the sale and whether the contract rates are "just and reasonable" under § 4(a); and a permanent certificate issued by the FPC and accepted by the producer is not subject to change in later proceedings under § 4, and the rates may be collected without risk of refund obligations. At the time it issues the certificate the FPC may also authorize the producer to abandon the sale at the end of the contract term if such abandonment is warranted by the "public convenience or necessity" under § 7(b), and the producer when the contract expires is then free to discontinue deliveries to the original purchaser without having to demonstrate again that abandonment comports with the public convenience or necessity. Petitions for review were filed attacking the entire optional procedure, but the Court of Appeals upheld the order except for the pregranted abandonment authority, which the court held contravened § 7(b) of the Act. Under that provision no natural gas company shall abandon its facilities or service subject to the FPC's jurisdiction without FPC approval, based upon a finding by the FPC that "the present or future public convenience or necessity permit such abandonment." Held: An optional procedure encompassing pregranted abandonment authority intended to draw new gas supplies to the interstate market is clearly within the FPC's authority under § 7(b) to permit abandonments justified by Present Or Future public convenience or necessity, the timing of the abandonment approval being within the FPC's discretion.
The order, which does not authorize specific abandonments, merely establishes an optional procedure under which pregranted abandonments, subject to judicial review, may be granted in appropriate cases, and the question whether particular abandonment authorizations are beyond the FPC's expertise should await resolution in concrete cases. In both the case of the limited-time certificate (which the Court of Appeals by an erroneous construction of Sunray Mid-Continent Oil Co. v. FPC, 364 U.S. 137, 80 S.Ct. 1392, 4 L.Ed.2d 1623, thought was barred by the Act) and the case of the permanent certificate with pregranted abandonment, the FPC properly can determine at the time of certification that the present or future public convenience or necessity justifies the issuance of the certificate allowing discontinuance of service at a future date without need for further proceedings. Pp. 499-504.
164 U.S.App.D.C. 1, 502 F.2d 461, reversed in part and remanded.
Mark L. Evans, Washington, D. C., for petitioner.
Morton L. Simons, Washington, D. C., for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Section 7(b) of the Natural Gas Act, 52 Stat. 824, as amended, 15 U.S.C. § 717f(b), provides that "(n)o natural-gas company shall abandon all or any portion of its facilities subject to the jurisdiction of the (Federal Power) Commission, or any service rendered by means of such facilities, without the permission and approval of the Commission first had and obtained, after due hearing, and a finding by the Commission . . . that the present or future public convenience or necessity permit such abandonment."1 The question presented in this case is whether the FPC may, upon a proper finding of public convenience or necessity, simultaneously authorize both the sale of natural gas in interstate commerce by a producer and the abandonment of the sale at a future date certain. The Court of Appeals for the District of Columbia Circuit construed § 7(b) to empower the FPC to authorize abandonment only when and if proposed at the end of the contract term, thus precluding power to authorize abandonment simultaneously with certificating new producer sales. Accordingly, the Court of Appeals set aside the FPC order involved in this case insofar as it permits the Commission, at the time it issues a certificate of public convenience and necessity, to authorize the producer to terminate the sale at the end of the contract term. 164 U.S.App.D.C. 1, 502 F.2d 461 (1974). We granted certiorari. 422 U.S. 1006, 95 S.Ct. 2627, 45 L.Ed.2d 668 (1975). We reverse.
2
* C Order No. 455, 48 F.P.C. 218, issued August 3, 1972, is the order involved. The order was promulgated under FPC rulemaking authority pursuant to a notice of April 6, 1972, 37 Fed.Reg. 7345, as an addition to the F's general rules of practice and procedure, 18 CFR § 2.75 (1975). Order No. 455 established an "optional procedure for certificating new producer sales of natural gas." 48 F.P.C., at 218. The new procedure did not displace area pricing, but instead provided an alternative to "stimulate and accelerate domestic exploration and development of natural gas reserves." Id., at 225. The procedure was necessary, the Commission found, because natural gas producers were frequently unable, due to hazards of area price revisions in lengthy appellate review proceedings, to rely upon rates established by the FPC in its area rate orders, and thus were discouraged from exploring for new gas and committing it to the interstate market. For "there is no assurance at the present time that a producer may not ultimately have to refund some of an initial rate . . . upon which the producer relied when it dedicated a new gas supply to the interstate market." Id., at 222-223. "(T)he producer does not know . . . how much it will get if it develops and sells new gas to the interstate market. The producer knows for sure only that once it sells in interstate commerce it cannot stop deliveries." Id., at 223. "This uncertainty," the Commission found, "has impeded domestic exploration and development." Ibid.
3
The optional procedure introduced by Order No. 455 was designed to "lessen rate uncertainty which has prevailed since the early 1960's." Id., at 219. The procedure has several features. First, it permits producers to tender for FPC approval contracts for the sale of new natural gas2 at rates that may exceed the maximum authorized by the applicable rate order3 Second, the FPC will determine in a single proceeding whether the "public convenience and necessity" under § 7(c) of the Act, 15 U.S.C. § 717f(c), warrants the issuance of a certificate authorizing the sale and whether the rates called for by the contract are "just and reasonable" under § 4(a), 15 U.S.C. § 717c(a). Third, a permanent certificate issued by the Commission and accepted by the producer is not subject to change in later proceedings under § 4 of the Act,4 15 U.S.C. § 717c, and the rates may be collected without risk of refund obligations. 48 F.P.C., at 226. See 18 CFR § 2.75(d) (1975). Fourth, Order No. 455 authorizes inclusion in the permanent certificate of the abandonment assurance or "pregranted abandonment" called in question in this case. 18 CFR § 2.75(e) (1975).5 The authority to include assurance that the producer may abandon the sale at the end of the contract term is, however, to be exercised only upon appropriate findings by the FPC of public convenience or necessity, as required by § 7(b). Order No. 455-A, 48 F.P.C. 477, 481 (1972).
4
The importance to the producer of the pregranted abandonment provision is obvious. Pregranted abandonment gives the producer assurance that his present sale will not indefinitely commit the gas to what may be a lower priced interstate market: he will be free on the contract expiration date to discontinue deliveries to the purchaser without having to demonstrate again that abandonment is consistent with the public convenience or necessity.
II
5
The entire optional procedure of Order No. 455 was attacked in petitions for review before the Court of Appeals, which upheld the order in all respects save the pregranted abandonment authority.6 In holding that § 7(b) requires a public-convenience-or-necessity finding by the FPC at the time of the proposed abandonment, thus precluding such finding at the time of certification, the Court of Appeals stated, 164 U.S.App.D.C., at 12, 502 F.2d, at 472:
6
"Pregranted abandonment would leave a producer free to discontinue service to the interstate market, perhaps years after the original certification, with no contemporaneous obligation on the producer to justify withdrawal of service as consistent with the public convenience and necessity. We think Section 7(b) does not contemplate or authorize such procedure.
7
". . . It appears to us . . . that pregranted abandonment requires more clairvoyance than even the Commission's expertise reasonably encompasses."
8
We find nothing on the face of § 7(b) to support the holding that the section "does not contemplate or authorize such procedure." There is no express provision prescribing the timing of the finding of public convenience or necessity that is prerequisite to FPC authority to allow the producer to abandon a sale. In the absence of an explicit direction, the inference may reasonably be made that Congress left the timing of the finding within the general discretionary power granted the FPC "to regulate the abandonment of service," S.Rep.No.1162, 75th Cong., 1st Sess., 2 (1937); H.R.Rep.No.709, 75th Cong., 1st Sess., 2 (1937). "(T)he Commission's broad responsibilities . . . demand a generous construction of its statutory authority," Permian Basin Area Rate Cases, 390 U.S. 747, 776, 88 S.Ct. 1344, 1365, 20 L.Ed.2d 312 (1968) (footnote omitted), and that inference is plainly consistent with Congress' regulatory goals.
9
The reasoning of the Court of Appeals that pregranted abandonment requires "clairvoyance" overlooks the express power granted to the FPC in § 7(b) to allow abandonment upon a proper finding that the "Present Or Future " public convenience or necessity warrants permission to abandon. The power to authorize an abandonment upon finding that it is justified by Future public convenience or necessity clearly encompasses advance authorization warranted by consideration of future circumstances and the necessary estimation of tomorrow's needs. That has been our conclusion when FPC authority to make forecasts of future events has been challenged in other contexts. For example, in rejecting the contention that the FPC could not consider forecasts of the future under the nearly identical standard of § 7(e), FPC v. Transcontinental Gas Corp., 365 U.S. 1, 29, 81 S.Ct. 435, 450, 5 L.Ed.2d 377 (1961), stated that "a forecast of the direction in which future public interest lies necessarily involves deductions based on the expert knowledge of the agency." Similarly, as to another agency, we have stated our unwillingness to let "uncertainties as to the future . . . paralyze the (Interstate Commerce) Commission into inaction." United States v. Detroit & Cleveland Nav. Co., 326 U.S. 236, 241, 66 S.Ct. 75, 77, 90 L.Ed. 38 (1945). Thus, to the extent that exercising the pregranted abandonment authority entails forecasting future developments affecting supply and demand, we cannot say that requiring this degree of "clairvoyance" renders the provision beyond FPC authority.
10
Furthermore, the FPC may determine that Present supply and demand conditions require that pregranted abandonment be authorized in appropriate cases to encourage exploration for new gas and its dedication to the interstate market, since the unwillingness of producers to make indefinite commitments has made potentially available supplies inaccessible to the interstate market. We conclude therefore that an optional procedure encompassing pregranted authority intended to draw new gas supplies to the interstate market is clearly within FPC authority to permit abandonments justified by either Present or Future public convenience or necessity.7
11
Order No. 455 does not authorize specific abandonments. It merely establishes an optional procedure under which pregranted abandonment may be authorized in appropriate cases. Any pregranted abandonments approved under this procedure are subject to judicial review under the Act. See § 19(b), 15 U.S.C. § 717r(b). We should not presume, as the Court of Appeals did, that the Commission is not competent to make proper findings supported by substantial evidence and consistent with § 7(b) in approving pregranted abandonment. Rather, the question whether particular pregranted abandonment authorizations are beyond the Commission's expertise should await resolution in concrete cases. See FPC v. Texaco, Inc., 417 U.S. 380, 392, 94 S.Ct. 2315, 2323, 41 L.Ed.2d 141 (1974).8 It suffices for the purposes of this case that we read § 7(b) as leaving the timing of approval of abandonments to FPC discretion.9
III
12
The Court of Appeals stated that its construction of § 7(b) as denying FPC authority to authorize abandonment on a future date certain at the time of certification was "fortified" by Sunray Mid-Continent Oil Co.. FPC, 364 U.S. 137, 80 S.Ct. 1392, 4 L.Ed.2d 1623 (1960) (Sunray II). Sunray II held that the FPC had authority to tender a certificate of public convenience and necessity without time limitation to a producer who applied for a certificate authorizing sales for 20 years only. The Court reasoned, id., at 142, 80 S.Ct. at 1396:
13
"If petitioners' contentions, as to the want of authority in the Commission to grant a permanent certificate where one of limited duration has been sought for, were to be sustained, the way would be clear for every independent producer of natural gas to seek certification only for the limited period of its initial contract with the transmission company, and thus automatically be free at a future date, untrammeled by Commission regulation, to reassess whether it desired to continue serving the interstate market."
14
We understand the Court of Appeals to read this passage as implying that a limited-term certificate would be barred by the Act, and that a permanent certificate with pregranted abandonment would also be barred since such a certificate, as the FPC concedes, Brief for FPC 22, is legally and functionally indistinguishable from a limited-term certificate.10 But the Court of Appeals' reading of Sunray II was patently erroneous. Sunray II in fact indicated that the FPC is authorized to issue limited-term certificates. The Court of Appeals for the Tenth Circuit had addressed that question at an earlier stage of the litigation and had held that the FPC was authorized to issue such certificates. Sunray Mid-Continent Oil Co. v. FPC, 239 F.2d 97 (1956), rev'd on other grounds, 353 U.S. 944, 77 S.Ct. 792, 1 L.Ed.2d 794 (1957) (Sunray I).11 Sunray II implicitly approved this holding in stating, 364 U.S., at 157, 80 S.Ct., at 1404: "There is no contention that the Commission was again indulging in the erroneous notion that it had no power to issue a limited certificate."
15
Thus, rather than imply that the Act forbids the issuance of a limited-term certificate, Sunray II approved the holding of the Court of Appeals for the Tenth Circuit that the Act permits the issuance of such a certificate.12 Sunray II therefore supports the conclusion we have reached and does not fortify the Court of Appeals' construction of § 7(b). In both the case of the limited-term certificate and the case of the permanent certificate with pregranted abandonment, the FPC determines at the time of certification that the present or future public convenience or necessity justifies the issuance of a certificate that allows discontinuance of service at a future date certain without need for further proceedings.
16
The judgment of the Court of Appeals is reversed insofar as it set aside the pregranted abandonment provision of Order No. 455, and the case is remanded for further proceedings consistent with this opinion.
17
Reversed and remanded.
18
It is so ordered.
19
Mr. Justice STEWART, Mr. Justice POWELL, and Mr. Justice STEVENS took no part in the consideration or decision of this case.
20
Mr. Chief Justice BURGER, concurring in the judgment.
21
I concur in the judgment of the Court, but with respect I cannot agree that the holding in Sunray Mid-Continent Oil Co. v. FPC, 364 U.S. 137, 80 S.Ct. 1392, 4 L.Ed.2d 1623 (1960) (Sunray II ), is as categorical as the Court suggests. I therefore do not agree that the Court of Appeals' reading of Sunray II is "patently erroneous." Ante, at 503.
22
The optional procedure established by Order No. 455 does not appear to be precisely the same as a limited-term certificate. Under the new procedure, the Commission issues a Permanent certificate to the producer. The producer is therefore authorized to supply the interstate market indefinitely. The additional and novel feature is that the producer is apparently given a free choice at the end of the contract term; he can continue to supply the interstate market pursuant to his permanent certificate, or he can abandon any further sales at the end of the particular contract term. This decision is left entirely in the hands of the producer. The Commission has no voice whatever in this critical decision; and it does not know in advance what the producer will do. This seems to me far different from granting a limited-term certificate; in that instance, the FPC knows that the particular supplies of gas will end at a date certain, unless both the producer and the Commission decide that the supply should continue.
23
This factor of unregulated choice by the producer raises the very evils which the Court pointed out in Sunray II, supra:
24
"(E)very independent producer of natural gas . . . (would) be free at a future date, untrammeled by Commission regulation, To reassess whether it desired to continue serving the interstate market." 364 U.S., at 142, 80 S.Ct., at 1396.
25
The evil seems even more acute here. For the Commission has abdicated entirely to the producer the eventual choice of supplying or cutting off gas to interstate markets. This relinquishment of regulatory authority seems to me inconsistent with the purposes and design of the Natural Gas Act.
26
However, the Court accepts Sunray II as affording broad discretion to the Commission in such matters, and Stare decisis compels me to accept the result.
1
Section 7(b) of the Act provides in full text:
"No natural-gas company shall abandon all or any portion of its facilities subject to the jurisdiction of the Commission, or any service rendered by means of such facilities, without the permission and approval of the Commission first had and obtained, after due hearing, and a finding by the Commission that the available supply of natural gas is depleted to the extent that the continuance of service is unwarranted, or that the present or future public convenience or necessity permit such abandonment."
2
The optional procedure is available for sales of gas produced from wells commenced after April 6, 1972, and gas that has not previously been sold in the interstate market. 18 CFR § 2.75(b)(5) (1975).
3
After adoption of the optional procedure, the FPC established a national ceiling rate for some sales of natural gas. Opinion No. 699, 51 F.P.C. 2212 (1974). The optional procedure was then amended to permit producers to tender contracts for certification including rates exceeding the national ceiling, as well as area rates. Order No. 455-B, 52 F.P.C. 1416 (1974).
4
The procedure does not, however, limit the applicability of § 5, 15 U.S.C. § 717d. See 18 CFR § 2.75(d) (1975). The Commission noted in Order No. 455 that it was unable to "bind a future Commission not to invoke the prospective operation of Section 5"; the Commissioners further stated that "(t)o the extent that this Commission can grant certainty of rates, we do so." 48 F.P.C. 218, 223 (1972).
5
This provision reads as follows:
"Applications presented hereunder will be considered for permanent certification, either with or without pregranted abandonment, notwithstanding that the contract rate may be in excess of an area ceiling rate established in a prior opinion or order of this Commission."
6
Respondents' cross-petition seeking review of the Court of Appeals' decision to the extent that it adversely resolved their contentions was denied. 422 U.S. 1020, 95 S.Ct. 2642, 45 L.Ed.2d 680 (1975).
7
The FPC has disclaimed any reliance on the ground, permitted under § 7(b), that "the available supply of natural gas is depleted to the extent that the continuance of service is unwarranted." We therefore have no occasion to address the question whether pregranted abandonment on that ground would exceed FPC authority.
8
Paradoxically, similar considerations led the Court of Appeals to reject respondents' challenge to a provision of the optional procedure requiring the Commission to determine the reasonableness of future rate escalations included in contracts submitted pursuant to the procedure. Yet no attempt was made to distinguish the case of future rate escalations from that of pregranted abandonment in this respect. The Court said:
"We cannot say as an abstract proposition of law that it is impossible for the Commission to make an advance determination of 'reasonableness' in proceedings under Section 4. Although as a practical matter one may be skeptical about the ability of the Commission to succeed in this endeavor, we think it may make the attempt. Whether it succeeds will depend upon the evidentiary basis for the escalations proposed in a given contract and the reasonableness of Commission findings and projections supporting and approving such escalations. The question is one of proof which can be answered only on a record setting out a particular proposal and the evidence supporting it." 164 U.S.App.D.C., at 8, 502 F.2d, at 468.
9
Respondents claim that the pregranted abandonment provision amounts to deregulation akin to that condemned in FPC v. Texaco, Inc., 417 U.S. 380, 400, 94 S.Ct. at 2327 (1974). But, unlike the small-producer exemption involved there, the FPC in the optional procedure retains full control over its regulatory jurisdiction.
10
The Court of Appeals found that pregranted abandonment has "the same potentiality of prejudice to consumers" that this Court was concerned about in Sunray II. 164 U.S.App.D.C., at 12, 502 F.2d, at 472. In that case, however, Sunray's position would have removed FPC discretion not to issue limited-term certificates whenever a producer sought a limited certificate. Both Sunray II and today's decision maintain FPC discretion in this regard, while the Court of Appeals' conclusion reduces the FPC's ability to exercise its regulatory responsibility.
11
The first decision of the Court of Appeals for the Tenth Circuit was reversed in Sunray I on the ground that the Court had itself decided whether the FPC should have issued a limited-term certificate, rather than remanding to the Commission to resolve this question in the first instance, 353 U.S. 944, 77 S.Ct. 792, 1 L.Ed.2d 794. Sunray II sustained the Court of Appeals' later affirmance of the FPC's issuance of an unlimited certificate, 267 F.2d 471 (1959).
12
Moreover, if issuance of limited-term certificates were barred by the Act, there would have been no need to decide Sunray II. In that circumstance the producer could hardly have complained that the FPC failed to recognize its request for only a limited certificate, since such a reading of the Act requires the FPC in all cases to issue unlimited-term certificates.
| 78
|
424 U.S. 507
96 S.Ct. 1029
47 L.Ed.2d 196
Scott HUDGENS, Petitioner,v.NATIONAL LABOR RELATIONS BOARD et al.
No. 74-773.
Argued Oct. 14, 1975.
Decided March 3, 1976.
Syllabus
When striking members of respondent union picketed in front of their employer's leased store located in petitioner's shopping center, the shopping center's general manager threatened them with arrest for criminal trespass if they did not depart, and they left. The union then filed unfair labor practice charges against petitioner, alleging that the threat constituted interference with rights protected by § 7 of the National Labor Relations Act (NLRA). The National Labor Relations Board (NLRB), concluding that the NLRA had been violated, issued a cease-and-desist order against petitioner, and the Court of Appeals enforced the order. Petitioner and respondent union contend that the respective rights and liabilities of the parties are to be decided under the criteria of the NLRA alone, whereas the NLRB contends that such rights and liabilities must be measured under a First Amendment standard. Held:
1. Under the present state of the law the constitutional guarantee of free expression has no part to play in a case such as this, and the pickets here did not have a First Amendment right to enter the shopping center for the purpose of advertising their strike against their employer. Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131. Pp. 512-521.
2. The rights and liabilities of the parties are dependent exclusively upon the NLRA, under which it is the NLRB's task, subject to judicial review, to resolve conflicts between § 7 rights and private property rights and to seek accommodation of such rights "with as little destruction of one as is consistent with the maintenance of the other," NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112, 76 S.Ct. 679, 684, 100 L.Ed. 975. Hence, the case is remanded so that the NLRB may reconsider the case under the NLRA's statutory criteria alone. Pp. 521-523.
501 F.2d 161, vacated and remanded.
Lawrence M. Cohen, Chicago, Ill., for petitioner.
Norton J. Come, Washington, D. C., for respondent N. L. R. B.
Laurence Gold, Washington, D. C., for respondent Local 315, Retail and Wholesale Department Store Union, AFL-CIO.
Mr. Justice STEWART delivered the opinion of the Court.
1
A group of labor union members who engaged in peaceful primary picketing within the confines of a privately owned shopping center were threatened by an agent of the owner with arrest for criminal trespass if they did not depart. The question presented is whether this threat violated the National Labor Relations Act, 49 Stat. 449, as amended, 61 Stat. 136, 29 U.S.C. § 151 Et seq. The National Labor Relations Board concluded that it did, 205 N.L.R.B. 628, and the Court of Appeals for the Fifth Circuit agreed. 501 F.2d 161. We granted certiorari because of the seemingly important questions of federal law presented. 420 U.S. 971, 95 S.Ct. 1391, 43 L.Ed.2d 651.
2
* The petitioner, Scott Hudgens, is the owner of the North DeKalb Shopping Center, located in suburban Atlanta, Ga. The center consists of a single large building with an enclosed mall. Surrounding the building is a parking area which can accommodate 2,640 automobiles. The shopping center houses 60 retail stores leased to various businesses. One of the lessees is the Butler Shoe Co. Most of the stores, including Butler's, can be entered only from the interior mall.
3
In January 1971, warehouse employees of the Butler Shoe Co. went on strike to protest the company's failure to agree to demands made by their union in contract negotiations.1 The strikers decided to picket not only Butler's warehouse but its nine retail stores in the Atlanta area as well, including the store in the North DeKalb Shopping Center. On January 22, 1971, four of the striking warehouse employees entered the center's enclosed mall carrying placards which read: "Butler Shoe Warehouse on Strike, AFL-CIO, Local 315." The general manager of the shopping center informed the employees that they could not picket within the mall or on the parking lot and threatened them with arrest if they did not leave. The employees departed but returned a short time later and began picketing in an area of the mall immediately adjacent to the entrances of the Butler store. After the picketing had continued for approximately 30 minutes, the shopping center manager again informed the pickets that if they did not leave they would be arrested for trespassing. The pickets departed.
4
The union subsequently filed with the Board an unfair labor practice charge against Hudgens, alleging interference with rights protected by § 7 of the Act, 29 U.S.C. § 157.2 Relying on this Court's decision in Food Employees v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603, the Board entered a cease-and-desist order against Hudgens, reasoning that because the warehouse employees enjoyed a First Amendment right to picket on the shopping center property, the owner's threat of arrest violated § 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1).3 Hudgens filed a petition for review in the Court of Appeals for the Fifth Circuit. Soon thereafter this Court decided Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131, and Central Hardware Co. v. NLRB, 407 U.S. 539, 92 S.Ct. 2238, 33 L.Ed.2d 122, and the Court of Appeals remanded the case to the Board for reconsideration in light of those two decisions.
5
The Board, in turn, remanded to an Administrative Law Judge, who made findings of fact, recommendations, and conclusions to the effect that Hudgens had committed an unfair labor practice by excluding the pickets. This result was ostensibly reached under the statutory criteria set forth in NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975, a case which held that union organizers who seek to solicit for union membership may intrude on an employer's private property if no alternative means exist for communicating with the employees. But the Administrative Law Judge's opinion also relied on this Court's constitutional decision in Logan Valley for a "realistic view of the facts." The Board agreed with the findings and recommendations of the Administrative Law Judge, but departed somewhat from his reasoning. It concluded that the pickets were within the scope of Hudgens' invitation to members of the public to do business at the shopping center, and that it was, therefore, immaterial whether or not there existed an alternative means of communicating with the customers and employees of the Butler store.4
6
Hudgens again petitioned for review in the Court of Appeals for the Fifth Circuit, and there the Board changed its tack and urged that the case was controlled not by Babcock & Wilcox, but by Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372, a case which held that an employer commits an unfair labor practice if he enforces a no-solicitation rule against employees on his premises who are also union organizers, unless he can prove that the rule is necessitated by special circumstances. The Court of Appeals enforced the Board's cease-and-desist order but on the basis of yet another theory. While acknowledging that the source of the pickets' rights was § 7 of the Act, the Court of Appeals held that the competing constitutional and property right considerations discussed in Lloyd Corp. v. Tanner, supra, "burde(n) the General Counsel with the duty to prove that other locations less intrusive upon Hudgens' property rights than picketing inside the mall were either unavailable or ineffective," 501 F.2d, at 169, and that the Board's General Counsel had met that burden in this case.
7
In this Court the petitioner Hudgens continues to urge that Babcock & Wilcox Co. is the controlling precedent, and that under the criteria of that case the judgment of the Court of Appeals should be reversed. The respondent union agrees that a statutory standard governs, but insists that, since the § 7 activity here was not organizational as in Babcock but picketing in support of a lawful economic strike, an appropriate accommodation of the competing interests must lead to an affirmance of the Court of Appeals' judgment. The respondent Board now contends that the conflict between employee picketing rights and employer property rights in a case like this must be measured in accord with the commands of the First Amendment, pursuant to the Board's asserted understanding of Lloyd Corp. v. Tanner, supra, and that the judgment of the Court of Appeals should be affirmed on the basis of that standard.
II
8
As the above recital discloses, the history of this litigation has been a history of shifting positions on the part of the litigants, the Board, and the Court of Appeals. It has been a history, in short, of considerable confusion, engendered at least in part by decisions of this Court that intervened during the course of the litigation. In the present posture of the case the most basic question is whether the respective rights and liabilities of the parties are to be decided under the criteria of the National Labor Relations Act alone, under a First Amendment standard, or under some combination of the two. It is to that question, accordingly, that we now turn.
9
It is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state. See Columbia Broadcasting System, Inc. v. Democratic National Comm., 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772. Thus, while statutory or common law may in some situations extend protection or provide redress against a private corporation or person who seeks to abridge the free expression of others, no such protection or redress is provided by the Constitution itself.
10
This elementary proposition is little more than a truism. But even truisms are not always unexceptionably true, and an exception to this one was recognized almost 30 years ago in Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265. In Marsh, a Jehovah's Witness who had distributed literature without a license on a sidewalk in Chickasaw, Ala., was convicted of criminal trespass. Chickasaw was a so-called company town, wholly owned by the Gulf Shipbuilding Corp. It was described in the Court's opinion as follows:
11
"Except for (ownership by a private corporation) it has all the characteristics of any other American town. The property consists of residential buildings, streets, a system of sewers, a sewage disposal plant and a 'business block' on which business places are situated. A deputy of the Mobile County Sheriff, paid by the company, serves as the town's policeman. Merchants and service establishments have rented the stores and business places on the business block and the United States uses one of the places as a post office from which six carriers deliver mail to the people of Chickasaw and the adjacent area. The town and the surrounding neighborhood, which can not be distinguished from the Gulf property by anyone not familiar with the property lines, are thickly settled, and according to all indications the residents use the business block as their regular shopping center. To do so, they now, as they have for many years, make use of a company-owned paved street and sidewalk located alongside the store fronts in order to enter and leave the stores and the post office. Intersecting company-owned roads at each end of the business block lead into a four-lane public highway which runs parallel to the business block at a distance of thirty feet. There is nothing to stop highway traffic from coming onto the business block and upon arrival a traveler may make free use of the facilities available there. In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation." Id., at 502-503, 66 S.Ct., at 277.
12
The Court pointed out that if the "title" to Chickasaw had "belonged not to a private but to a municipal corporation and had appellant been arrested for violating a municipal ordinance rather than a ruling by those appointed by the corporation to manage a company town it would have been clear that appellant's conviction must be reversed." Id., at 504, 66 S.Ct., at 277. Concluding that Gulf's "property interests" should not be allowed to lead to a different result in Chickasaw, which did "not function differently from any other town," Id., at 506-508, 66 S.Ct., at 279, the Court invoked the First and Fourteenth Amendments to reverse the appellant's conviction.
13
It was the Marsh case that in 1968 provided the foundation for the Court's decision in Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603. That case involved peaceful picketing within a large shopping center near Altoona, Pa. One of the tenants of the shopping center was a retail store that employed a wholly nonunion staff. Members of a local union picketed the store, carrying signs proclaiming that it was nonunion and that its employees were not receiving union wages or other union benefits. The picketing took place on the shopping center's property in the immediate vicinity of the store. A Pennsylvania court issued an injunction that required all picketing to be confined to public areas outside the shopping center, and the Supreme Court of Pennsylvania affirmed the issuance of this injunction. This Court held that the doctrine of the Marsh case required reversal of that judgment.
14
The Court's opinion pointed out that the First and Fourteenth Amendments would clearly have protected the picketing if it had taken place on a public sidewalk:
15
"It is clear that if the shopping center premises were not privately owned but instead constituted the business area of a municipality, which they to a large extent resemble, petitioners could not be barred from exercising their First Amendment rights there on the sole ground that title to the property was in the municipality. Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938); Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939); Schneider v. State of New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939); Jamison v. Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869 (1943). The essence of those opinions is that streets, sidewalks, parks, and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely." 391 U.S., at 315, 88 S.Ct., at 1607.
16
The Court's opinion then reviewed the Marsh case in detail, emphasized the similarities between the business block in Chickasaw, Ala., and the Logan Valley shopping center and unambiguously concluded:
17
"The shopping center here is clearly the functional equivalent of the business district of Chickasaw involved in Marsh." 391 U.S., at 318, 88 S.Ct., at 1608.
18
Upon the basis of that conclusion, the Court held that the First and Fourteenth Amendments required reversal of the judgment of the Pennsylvania Supreme Court.
19
There were three dissenting opinions in the Logan Valley case, one of them by the author of the Court's opinion in Marsh, Mr. Justice Black. His disagreement with the Court's reasoning was total:
20
"In affirming petitioners' contentions the majority opinion relies on Marsh v. State of Alabama, supra, and holds that respondents' property has been transformed to some type of public property. But Marsh was never intended to apply to this kind of situation. Marsh dealt with the very special situation of a company-owned town, complete with streets alleys, sewers, stores, residences, and everything else that goes to make a town. . . . I can find very little resemblance between the shopping center involved in this case and Chickasaw, Alabama. There are no homes, there is no sewage disposal plant, there is not even a post office on this private property which the Court now considers the equivalent of a 'town.' " 391 U.S., at 330-331, 88 S.Ct., at 1615 (footnote omitted).
21
"The question is, Under what circumstances can private property be treated as though it were public? The answer that Marsh gives is when that property has taken on All the attributes of a town, I. e., 'residential buildings, streets, a system of sewers, a sewage disposal plant and a "business block" on which business places are situated.' 326 U.S., at 502, 66 S.Ct., at 277. I can find nothing in Marsh which indicates that if one of these features is present, e. g., a business district, this is sufficient for the Court to confiscate a part of an owner's private property and give its use to people who want to picket on it." Id., at 332, 88 S.Ct., at 1615.
22
"To hold that store owners are compelled by law to supply picketing areas for pickets to drive store customers away is to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country. . . . " Id., at 332-333, 88 S.Ct., at 1616.
23
Four years later the Court had occasion to reconsider the Logan Valley doctrine in Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131. That case involved a shopping center covering some 50 acres in downtown Portland, Ore. On a November day in 1968 five young people entered the mall of the shopping center and distributed handbills protesting the then ongoing American military operations in Vietnam. Security guards told them to leave, and they did so, "to avoid arrest." Id., at 556, 92 S.Ct., at 2223. They subsequently brought suit in a Federal District Court, seeking declaratory and injunctive relief. The trial court ruled in their favor, holding that the distribution of handbills on the shopping center's property was protected by the First and Fourteenth Amendments. The Court of Appeals for the Ninth Circuit affirmed the judgment, 446 F.2d 545, expressly relying on this Court's Marsh and Logan Valley decisions. This Court reversed the judgment of the Court of Appeals.
24
The Court in its Lloyd opinion did not say that it was overruling the Logan Valley decision. Indeed a substantial portion of the Court's opinion in Lloyd was devoted to pointing out the differences between the two cases, noting particularly that, in contrast to the hand-billing in Lloyd, the picketing in Logan Valley had been specifically directed to a store in the shopping center and the pickets had had no other reasonable opportunity to reach their intended audience. 407 U.S., at 561-567, 92 S.Ct., at 2225-2228.5 But the fact is that the reasoning of the Court's opinion in Lloyd cannot be squared with the reasoning of the Court's opinion in Logan Valley.
25
It matters not that some Members of the Court may continue to believe that the Logan Valley case was rightly decided.6 Our institutional duty is to follow until changed the law as it now is, not as some Members of the Court might wish it to be. And in the performance of that duty we make clear now, if it was not clear before, that the rationale of Logan Valley did not survive the Court's decision in the Lloyd case.7 Not only did the Lloyd opinion incorporate lengthy excerpts from two of the dissenting opinions in Logan Valley, 407 U.S., at 562-563, 565, 92 S.Ct., at 2225-2226, 2227; the ultimate holding in Lloyd amounted to a total rejection of the holding in Logan Valley :
26
"The basic issue in this case is whether respondents, in the exercise of asserted First Amendment rights, may distribute handbills on Lloyd's private property contrary to its wishes and contrary to policy enforced against All handbilling. In addressing this issue, it must be remembered that the First and Fourteenth Amendments safeguard the rights of free speech and assembly by limitations on State action, not on action by the owner of private property used nondiscriminatorily for private purposes only. . . . " 407 U.S., at 567, 92 S.Ct., at 2228.
27
"Respondents contend . . . that the property of a large shopping center is 'open to the public,' serves the same purposes as a 'business district' of a municipality, and therefore has been dedicated to certain types of public use. The argument is that such a center has sidewalks, streets, and parking areas which are functionally similar to facilities customarily provided by municipalities. It is then asserted that all members of the public, whether invited as customers or not, have the same right of free speech as they would have on the similar public facilities in the streets of a city or town.
28
"The argument reaches too far. The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use. The closest decision in theory, Marsh v. Alabama, supra, involved the assumption by a private enterprise of all of the attributes of a state-created municipality and the exercise by that enterprise of semi-official municipal functions as a delegate of the State. In effect, the owner of the company town was performing the full spectrum of municipal powers and stood in the shoes of the State. In the instant case there is no comparable assumption or exercise of municipal functions or power." Id., at 568-569, 92 S.Ct., at 2229 (footnote omitted).
29
'We hold that there has been no such dedication of Lloyd's privately owned and operated shopping center to public use as to entitle respondents to exercise therein the asserted First Amendment rights. . . . " Id.%, at 570, 92 S.Ct., at 2229.
30
If a large self-contained shopping center Is the functional equivalent of a municipality, as Logan Valley held, then the First and Fourteenth Amendments would not permit control of speech within such a center to depend upon the speech's content.8 For while a municipality may constitutionally impose reasonable time, place, and manner regulations on the use of its streets and sidewalks for First Amendment purposes, see Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049; Poulos v. New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105, and may even forbid altogether such use of some of its facilities, see Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149; what a municipality may Not do under the First and Fourteenth Amendments is to discriminate in the regulation of expression on the basis of the content of that expression, Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125. "(A)bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212.9 It conversely follows, therefore, that if the respondents in the Lloyd case did not have a First Amendment right to enter that shopping center distribute handbills concerning Vietnam, then the pickets in the present case did not have a First Amendment right to enter this shopping center for the purpose of advertising their strike against the Butler Shoe Co.
31
We conclude, in short, that under the present state of the law the constitutional guarantee of free expression has no part to play in a case such as this.
III
32
From what has been said it follows that the rights and liabilities of the parties in this case are dependent exclusively upon the National Labor Relations Act. Under the Act the task of the Board, subject to review by the courts, is to resolve conflicts between § 7 rights and private property rights, "and to seek a proper accommodation between the two." Central Hardware Co. v. NLRB, 407 U.S., at 543, 92 S.Ct., at 2241. What is "a proper accommodation" in any situation may largely depend upon the content and the context of the § 7 rights being asserted. The task of the Board and the reviewing courts under the Act, therefore, stands in conspicuous contrast to the duty of a court in applying the standards of the First Amendment, which requires "above all else" that expression must not be restricted by government "because of its message, its ideas, its subject matter, or its content."
33
In the Central Hardware Case, and earlier in the case of NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975, the Court considered the nature of the Board's task in this area under the Act. Accommodation between employees' § 7 rights and employers' property rights, the Court said in Babcock & Wilcox, "must be obtained with as little destruction of one as is consistent with the maintenance of the other." 351 U.S., at 112, 76 S.Ct., at 684.
34
Both Central Hardware and Babcock & Wilcox involved organizational activity carried on by nonemployees on the employers' property.10 The context of the § 7 activity in the present case was different in several respects which may or may not be relevant in striking the proper balance. First, it involved lawful economic strike activity rather than organizational activity. See Steelworkers v. NLRB, 376 U.S. 492, 499, 84 S.Ct. 899, 904, 11 L.Ed.2d 863; Bus Employees v. Missouri, 374 U.S. 74, 82, 83 S.Ct. 1657, 1662, 10 L.Ed.2d 763; NLRB v. Erie Resistor Corp., 373 U.S. 221, 234, 83 S.Ct. 1139, 1148, 10 L.Ed.2d 308. Cf. Houston Insulation Contractors Assn. v. NLRB, 386 U.S. 664, 668-669, 87 S.Ct. 1278, 1280-1281, 18 L.Ed.2d 389. Second, the § 7 activity here was carried on by Butler's employees (albeit not employees of its shopping center store), not by outsiders. See NLRB v. Babcock & Wilcox Co., supra, 351 U.S., at 111-113, 76 S.Ct. at 683-685. Third, the property interests impinged upon in this case were not those of the employer against whom the § 7 activity was directed, but of another11
35
The Babcock & Wilcox opinion established the basic objective under the Act: accommodation of § 7 rights and private property rights "with as little destruction of one as is consistent with the maintenance of the other."12 The locus of that accommodation, however, may fall at differing points along the spectrum depending on the nature and strength of the respective § 7 rights and private property rights asserted in any given context. In each generic situation, the primary responsibility for making this accommodation must rest with the Board in the first instance. See NLRB v. Babcock & Wilcox, supra, 351 U.S., at 112, 76 S.Ct., at 684; cf. NLRB v. Erie Resistor Corp., supra, 373 U.S., at 235236, 83 S.Ct., at 49-1150; NLRB v. Truckdrivers Union, 353 U.S. 87, 97, 77 S.Ct. 643, 648, 1 L.Ed.2d 676. "The responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board." NLRB v. Weingarten, Inc., 420 U.S. 251, 266, 95 S.Ct. 959, 968, 43 L.Ed.2d 171.
36
For the reasons stated in this opinion, the judgment is vacated and the case is remanded to the Court of Appeals with directions to remand to the National Labor Relations Board, so that the case may be there considered under the statutory criteria of the National Labor Relations Act alone.
37
It is so ordered.
38
Vacated and remanded.
39
Mr. Justice STEVENS took no part in the consideration or decision of this case.
40
Mr. Justice POWELL, with whom THE CHIEF JUSTICE joins, concurring.
41
Although I agree with Mr. Justice WHITE's view concurring in the result that Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972), did not overrule Food Employees v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), and that the present case can be distinguished narrowly from Logan Valley, I nevertheless have joined the opinion of the Court today.
42
The law in this area, particularly with respect to whether First Amendment or labor law principles are applicable, has been less than clear since Logan Valley analogized a shopping center to the "company town" in Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946). Mr. Justice Black, the author of the Court's opinion in Marsh, thought the decisions were irreconcilable.1 I now agree with Mr. Justice Black that the opinions in these cases cannot be harmonized in a principled way. Upon more mature thought, I have concluded that we would have been wiser in Lloyd Corp. to have confronted this disharmony rather than draw distinctions based upon rather attenuated factual differences.2
43
The Court's opinion today clarifies the confusion engendered by these cases by accepting Mr. Justice Black's reading of Marsh and by recognizing more sharply the distinction between the First Amendment and labor law issues that may arise in cases of this kind. It seems to me that this clarification of the law is desirable.
44
Mr. Justice WHITE, concurring in the result.
45
While I concur in the result reached by the Court, I find it unnecessary to inter Food Employees v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), and therefore do not join the Court's opinion. I agree that "the constitutional guarantee of free expression has no part to play in a case such as this," Ante, at 521; but Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972), did not overrule Logan Valley, either expressly or implicitly, and I would not, somewhat after the fact, say that it did.
46
One need go no further than Logan Valley itself, for the First Amendment protection established by Logan Valley was expressly limited to the picketing of a specific store for the purpose of conveying information with respect to the operation in the shopping center of That store:
47
"The picketing carried on by petitioners was directed specifically at patrons of the Weis Maet located within the shopping center and the message sought to be conveyed to the public concerned the manner in which that particular market was being operated. We are, therefore, not called upon to consider whether respondents' property rights could, consistently with the First Amendment, justify a bar on picketing which was not thus directly related in its purpose to the use to which the shopping center property was being put." 391 U.S., at 320 n. 9, 88 S.Ct., at 1609.
48
On its face, Logan Valley does not cover the facts of this case. The pickets of the Butler Shoe Co. store in the North DeKalb Shopping Center were not purporting to convey information about the "manner in which that particular (store) was being operated" but rather about the operation of a warehouse not located on the center's premises. The picketing was thus not "directly related in its purpose to the use to which the shopping center property was being put."
49
The First Amendment question in this case was left open in Logan Valley. I dissented in Logan Valley, 391 U.S., p. 337, 88 S.Ct., at 1618, and I see no reason to extend it further. Without such extension, the First Amendment provides no protection for the picketing here in issue and the Court need say no more. Lloyd v. Tanner is wholly consistent with this view. There is no need belatedly to overrule Logan Valley, only to follow it as it is.
50
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
51
The Court today holds that the First Amendment poses no bar to a shopping center owner's prohibiting speech within his shopping center. After deciding this far-reaching constitutional question, and overruling Food Employees v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), in the process, the Court proceeds to remand for consideration of the statutory question whether the shopping center own in this case unlawfully interfered with the Butler Shoe Co. employees' rights under § 7 of the National Labor Relations Act, 29 U.S.C. § 157.
52
In explaining why it addresses any constitutional issue at all, the Court observes simply that the history of the litigation has been one of "shifting positions on the part of the litigants, the Board, and the Court of Appeals," Ante, at 512, as to whether relief was being sought, or granted, under the First Amendment, under § 7 of the Act, or under some combination of the two. On my reading, the Court of Appeals' decision and, even more clearly, the Board's decision here for review, were based solely on § 7, not on the First Amendment; and this Court ought initially consider the statutory question without reference to the First Amendment the question without reference to the First Amendment the question on which the Court remands. But even under the Court's reading of the opinions of the Board and the Court of Appeals, the statutory question on which it remands is now before the Court. By bypassing that question and reaching out to overrule a constitutionally based decision, the Court surely departs from traditional modes of adjudication.
53
I would affirm the judgment of the Court of Appeals on purely statutory grounds. And on the merits of the only question that the Court decides, I dissent from the overruling of Logan Valley.
54
* The Court views the history of this litigation as one of "shifting positions" and "considerable confusion." To be sure, the Board's position has not been constant. But the ultimate decisions by the Administrative Law Judge and by the Board rested solely on § 7 of the NLRA, not on the First Amendment.
55
As the Court indicates, the Board's initial determination that petitioner violated § 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1), was based on its reading of Logan Valley, a First Amendment case. But before the Court of Appeals reviewed this initial determination, this Court decided Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972), and Central Hardware Co. v. NLRB, 407 U.S. 539, 92 S.Ct. 2238, 33 L.Ed.2d 122 (1972), and the Board moved to have the case remanded for reconsideration in light of these two decisions. The Court of Appeals granted the motion.
56
Lloyd and Central Hardware demonstrated, each in its own way, that Logan Valley could not be read as broadly as some Courts of Appeals had read it. And together they gave a signal to the Board and to the Court of Appeals that it would be wise to pass upon statutory contentions in cases of this sort before turning to broad constitutional questions, the answers to which could no longer be predicted with certainty. See Central Hardware, supra, 407 U.S., at 548, 549, 92 S.Ct., at 2243, 2244 (Marshall, J., dissenting); Lloyd, supra, 407 U.S., at 584, 92 S.Ct., at 2236 (Marshall, J., dissenting). Taking heed of this signal, the Administrative Law Judge and the Board proceeded on remand to assess the conflicting rights of the employees and the shopping center owner within the framework of the NLRA. The Administrative Law Judge's recommendation that petitioner be found guilty of a § 8(a)(1) violation rested explicitly on the statutory test enunciated by this Court in NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956). That the Administrative Law Judge supported his "realistic view of the facts" by referring to this Court's "factual view" of the Logan Valley case surely cannot be said to alter the judge's explicitly stated legal theory, which was a statutory one.
57
Even more clearly, the Board's rationale in agreeing with the Administrative Law Judge's recommendation was exclusively a statutory one. Nowhere in the Board's decision, Hudgens v. Local 315, Retail, Wholesale & Dept. Store Union, 205 N.L.R.B. 628 (1973), is there any reference to the First Amendment or any constitutionally based decision. The Board reached its result "for the reasons specifically set forth in Frank Visceglia and Vincent Visceglia, t/a Peddie Buildings,1 Ibid., a case decided solely on § 7 grounds. In Visceglia the Board had specifically declined to treat the picketing area in question as the functional equivalent of a business block and rejected the applicability of Logan Valley's First Amendment analysis, finding an interference with § 7 rights under a "modified" Babcock & Wilcox.2 When the Board in this case relied upon the rationale of Visceglia, it was evidently proceeding under the assumption that the First Amendment had no application. Its ultimate conclusion that petitioner violated § 8(a)(1) of the Act was purely the result of an "accommodation between (his) property rights and the employees' Section 7 rights." 205 N.L.R.B. 628.
58
The Court acknowledges that the Court of Appeals' enforcement of the Board's order was based on its view of the employees' § 7 rights. But the Court suggests that the following reference to Lloyd, a constitutional case, indicates that the Court of Appeals' decision was infected with constitutional considerations:
59
"Lloyd burdens the General Counsel with the duty to prove that other locations less intrusive upon Hudgens' property rights than picketing inside the mall were either unavailable or ineffective." 501 F.2d 161, 169.
60
A reading of the entire Court of Appeals' opinion, however, demonstrates that this language was not intended to inject any constitutional considerations into the case. The Court of Appeals' analysis began with an evaluation of the statutory criteria urged by the parties.3 Rejecting both parties' formulations of the appropriate statutory standard, the Court of Appeals adopted a modified version of an approach, suggested by an Amicus, that incorporates a consideration of the relationship of the protest to the use to which the private property in question is put, and the availability of reasonably effective alternative means of communicating with the intended audience. While the Amicus had derived its approach from Lloyd and Logan Valley, two constitutional cases, the Court of Appeals was careful to note that the approach it applied was a statutory, not a constitutional one:
61
"Section 7 rights are not necessarily coextensive with constitutional rights, see Central Hardware v. NLRB, supra ((Marshall), J., dissenting). Nevertheless, we agree that the rule suggested by amicus, although having its genesis in the constitutional issues raised in Lloyd, isolates the factors relevant to determining when private property rights of a shopping center owner should be required to yield to the section 7 rights of labor picketers." 501 F.2d, at 167.
62
With that explanation of the Court of Appeals' view of the relevance of Lloyd, it is evident that the subsequent reference to Lloyd, quoted out of context by the Court, was not intended to alter the purely statutory basis of the Court of Appeals' decision.4
63
In short, the Board's decision was clearly unaffected by constitutional considerations, and I do not read the Court of Appeals' opinion as intimating that its statutory result was constitutionally mandated. In its present posture, the case presents no constitutional question to the Court. Surely it is of no moment that the Board through its counsel now urges this Court to decide, as part of its statutory analysis, what result is compelled by the First Amendment. The posture of the case is determined by the decisions of the Board and the Court of Appeals, not by the arguments advanced in the Board's brief. Since I read those decisions as purely statutory ones, I would proceed to consider the purely statutory question whether, assuming that petitioner is not restricted by the First Amendment, his actions nevertheless violated § 7 of the Act. This is precisely the issue on which the Court remands the case.
64
At the very least it is clear that neither the Board nor the Court of Appeals decided the case Solely on First Amendment grounds. The Court itself acknowledges that both decisions were based on § 7. The most that can be said, and all that the Court suggests, is that the Court of Appeals' view of § 7 was colored by the First Amendment. But even if that were the case, this Court ought not decide any First Amendment question particularly in a way that requires overruling one of our decisions without first considering the statutory question without reference to the First Amendment. It is a well-established principle that constitutional questions should not be decided unnecessarily. See, E. g., Hagans v. Lavine, 415 U.S. 528, 543, 549, 94 S.Ct. 1372, 1382, 1385, 39 L.Ed.2d 577 (1974); Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963); Ashwander v. TVA, 297 U.S. 288, 346-347, 56 S.Ct. 466, 482-483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). If the Court of Appeals disregarded that principle, that is no excuse for this Court's doing so.
65
As already indicated, the Board, through its counsel, urges the Court to apply First Amendment considerations in defining the scope of § 7 of the Act. The Board takes this position because it is concerned that the scope of § 7 not fall short of the scope of the First Amendment, the result of which would be that picketing employees could obtain greater protection by court suits than by invoking the procedures of the NLRA. While that general concern is a legitimate one, it does not justify the constitutional adjudication undertaken by the Court. If it were undisputed that the pickets in this case enjoyed some degree of First Amendment protection against interference by petitioner, it might be difficult to separate a consideration of the scope of that First Amendment protection from an analysis of the scope of protection afforded by § 7. But the constitutional question that the Court decides today is whether the First Amendment operates to restrict petitioner's actions in any way at all, and that question is clearly severable, at least initially, from a consideration of § 7's scope as proved by the Court's remand of the case.
66
Thus even if, as the Court suggests, the Court of Appeals' view of § 7 was affected by the First Amendment, the Court still could have proceeded initially to decide the statutory question divorced of constitutional considerations. I cannot understand the Court's bypassing that purely statutory question to overrule a First Amendment decision less than 10 years old. And I certainly cannot understand the Court's remand of the purely statutory question to the Board, whose decision was so clearly unaffected by any constitutional considerations that the Court does not even suggest otherwise.
II
67
On the merits of the purely statutory question that I believe is presented to the Court, I would affirm the judgment of the Court of Appeals. To do so, one need not consider whether consumer picketing by employees is subject to a more permissive test under § 7 than the test articulated in Babcock & Wilcox for organizational activity by nonemployees. In Babcock & Wilcox we stated that an employer "must allow the union to approach his employees on his property"5 if the employees are "beyond the reach of reasonable efforts to communicate with them," 351 U.S., at 113, 76 S.Ct., at 685 that is, if "other means" of communication are not "readily available." Id., at 114, 76 S.Ct., at 685. Thus the general standard that emerges from Babcock & Wilcox is the ready availability of reasonably effective alternative means of communication with the intended audience.
68
In Babcock & Wilcox itself, the intended audience was the employees of a particular employer, a limited identifiable group; and it was thought that such an audience could be reached effectively by means other than entrance onto the employer's property for example, personal contact at the employees' living quarters, which were "in reasonable reach." Id., at 113, 76 S.Ct., at 685. In this case, of course, the intended audience was different, and what constitutes reasonably effective alternative means of communication also differs. As the Court of Appeals noted, the intended audience in this case "was only identifiable as part of the citizenry of greater Atlanta until it approached the store, and thus for the picketing to be effective, the location chosen was crucial unless the audience could be known and reached by other means." 501 F.2d at 168. Petitioner contends that the employees could have utilized the newspapers, radio, television, direct mail, handbills, and billboards to reach the citizenry of Atlanta. But none of those means is likely to be as effective as on-location picketing: the initial impact of communication by those means would likely be less dramatic, and the potential for dilution of impact significantly greater. As this Court has observed:
69
"Publication in a newspaper, or by distribution of circulars, may convey the same information or make the same charge as do those patrolling a picket line. But the very purpose of a picket line is to exert influences, and it produces consequences, different from other modes of communication. The loyalties and responses evoked and exacted by picket lines are unlike those flowing from appeals by printed word." Hughes v. Superior Court, 339 U.S. 460, 465, 70 S.Ct. 718, 721, 94 L.Ed. 985 (1950).
70
In addition, all of the alternatives suggested by petitioner are considerably more expensive than on-site picketing. Certainly Babcock & Wilcox did not require resort to the mass media,6 or to more individualized efforts on a scale comparable to that which would be required to reach the intended audience in this case.
71
Petitioner also contends that the employees could have picketed on the public rights-of-way, where vehicles entered the shopping center. Quite apart from considerations of safety, that alternative was clearly inadequate: prospective customers would have had to read the picketers' placards while driving by in their vehicles a difficult task indeed. Moreover, as both the Board and the Court of Appeals recognized, picketing at an entrance used by customers of all retail establishments in the shopping center, rather than simply customers of the Butler Shoe Co. store, may well have invited undesirable secondary effects.
72
In short, I believe the Court of Appeals was clearly correct in concluding that "alternatives to picketing inside the mall were either unavailable or inadequate." 501 F.2d at 169. Under Babcock & Wilcox, then, the picketing in this case was protected by § 7. I would affirm the judgment of the Court of Appeals on that basis.
III
73
Turning to the constitutional issue resolved by the Court, I cannot escape the feeling that Logan Valley has been laid to rest without ever having been accorded a proper burial. The Court today announces that "the ultimate holding in Lloyd amounted to a total rejection of the holding in Logan Vall." Ante, at 518. To be sure, some Members of the Court, myself included, believed that Logan Valley called for a different result in Lloyd and alluded in dissent to the possibility that "it is Logan Valley itself that the Court finds bothersome." 407 U.S., at 570, 584, 92 S.Ct., at 2236 (Marshall, J., dissenting). But the fact remains that Logan Valley explicitly reserved the question later decided in Lloyd and Lloyd carefully preserved the holding of Logan Valley. And upon reflection, I am of the view that the two decisions are reconcilable.
A.
74
In Logan Valley the Court was faced with union picketing against a nonunion supermarket located in a large shopping center. Our holding was a limited one:
75
"All we decide here is that because the shopping center serves as the community business block 'and is freely accessible and open to the people in the area and those passing through,' Marsh v. State of Alabama, 326 U.S., at 508, 66 S.Ct., at 279, the State may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which the property is actually put." 391 U.S., at 319-320, 88 S.Ct., at 1609 (footnote omitted).
76
We carefully noted that we were "not called upon to consider whether respondents' property rights could, consistently with the First Amendment, justify a bar on picketing which was not . . . directly related in its purpose to the use to which the shopping center property was being put." Id., at 320, n. 9, 88 S.Ct., at 1609.
77
Lloyd involved the distribution of antiwar handbills in a large shopping center, and while some of us viewed the case differently, 407 U.S., at 570, 577-579, 92 S.Ct., at 2229, 2233-2234 (Marshall, J., dissenting the Court treated it as presenting the question left open in Logan Valley. But the Court did no more than decide that question. It preserved the holding of Logan Valley, as limited to cases in which (1) the picketing is directly related in its purpose to the use to which the shopping center property is put, and (2) "no other reasonable opportunities for the pickets to convey their message to their intended audience (are) available." 407 U.S., at 563, 92 S.Ct., at 2226.
78
The Court today gives short shrift to the language in Lloyd preserving Logan Valley, and quotes extensively from language that admittedly differs in emphasis from much of the language of Logan Valley. But even the language quoted by the Court says no more than that the dedication of the Lloyd Center to public use was more limited than the dedication of the company town in Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. (1946), and that the pickets in Lloyd were not entitled to exercise "the asserted First Amendment rights" that is, the right to distribute antiwar handbills.
79
Any doubt about the limited scope of Lloyd is removed completely by a consideration of Central Hardware Co. v. NLRB, 407 U.S. 539, 92 S.Ct. 2238, 33 L.Ed.2d 122 (1972), decided the same day as Lloyd. In Central Hardware the Court was faced with solicitation by nonemployee union organizers on a parking lot of a retail store that was not part of a shopping center complex activity clearly related to the use to which the private property had been put. The Court found the activity unprotected by the First Amendment, but in a way that explicitly preserved the holding in Logan Valley. The Court could have held that the First Amendment has no application to use-related activity on privately owned business property, thereby rejecting Logan Valley, but instead the Court chose to distinguish the parking lot in Central Hardware from the shopping center complex in Logan Valley. Rejecting the argument that the opening of property to the general public suffices to activate the prohibition of the First Amendment, the Court explained:
80
"This analysis misconceives the rationale of Logan Valley. Logan Valley involved a large commercial shopping center which the Court found had displaced, in certain relevant respects, the functions of the normal municipal 'business block.' First and Fourteenth Amendment free-speech rights were deemed infringed under the facts of that case when the property owner invoked the trespass laws of the State against the pickets.
81
"Before an owner of private property can be subjected to the commands of the First and Fourteenth Amendments the privately owned property must assume to some significant degree the functional attributes of public property devoted to public use. . . . The only fact relied upon for the argument that Central's parking lots have acquired the characteristics of a public municipal facility is that they are 'open to the public.' Such an argument could be made with respect to almost every retail and service establishment in the country, regardless of size or location. To accept it would cut Logan Valley entirely away from its roots in Marsh." 407 U.S., at 547, 92 S.Ct., at 2243 (footnote omitted).
82
If, as the Court tells us, "the rationale of Logan Valley did not survive the Court's decision in the Lloyd Case," Ante, at 518, one wonders why the Court in Central Hardware, decided the same day as Lloyd, implicitly reaffirmed Logan Valley's rationale.
B
83
It is inescapable that after Lloyd, Logan Valley remained "good law," binding on the state and federal courts. Our institutional duty in this case, if we consider the constitutional question at all, is to examine whether Lloyd and Logan Valley can continue to stand side by side, and, if they cannot, to decide which one must fall. I continue to believe that the First Amendment principles underlying Logan Valley are sound, and were unduly limited in Lloyd. But accepting Lloyd, I am not convinced that Logan Valley must be overruled.
84
The foundation of Logan Valley consisted of this Court's decisions recognizing a right of access to streets, sidewalks, parks, and other public places historically associated with the exercise of First Amendment rights. E. g., Hague v. CIO, 307 U.S. 496, 515-516, 59 S.Ct. 954, 963-964, 83 L.Ed. 1423 (1939) (opinion of Roberts, J.); Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939); Cantwell v. Connecticut, 310 U.S. 296, 308, 60 S.Ct. 900, 905, 84 L.Ed. 1213 (1940); Cox v. New Hampshire, 312 U.S. 569, 574, 61 S.Ct. 762, 765, 85 L.Ed. 1049 (1941); Jamison v. Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869 (1943); Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948). Thus, the Court in Logan Valley observed that access to such forums "cannot constitutionally be denied broadly and absolutely." 391 U.S., at 315, 88 S.Ct., at 1607. The importance of access to such places for speech-related purposes is clear, for they are often the only places for effective speech and assembly.
85
Marsh v. State of Alabama, supra, which the Court purports to leave untouched, made clear that in applying those cases granting a right of access to streets, sidewalks, and other public places, courts ought not let the formalities of title put an end to analysis. The Court in Marsh observed that "the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation." 326 U.S., at 503, 66 S.Ct., at 277. That distinction was not determinative:
86
"Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it." Id., at 506, 66 S.Ct., at 278.
87
Regardless of who owned or possessed the town in Marsh, the Court noted, "the public . . . has an identical interest in the functioning of the community in such manner that the channels of communication remain free," Id., at 507, 66 S.Ct., at 279, and that interest was held to prevail.
88
The Court adopts the view that Marsh has no bearing on this case because the privately owned property in Marsh involved all the characteristics of a typical town. But there is nothing in Marsh to suggest that its general approach was limited to the particular facts of that case. The underlying concern in Marsh was that traditional public channels of communication remain free, regardless of the incidence of ownership. Given that concern, the crucial fact in Marsh was that the company owned the traditional forums essential for effective communication; it was immaterial that the company also owned a sewer system and that its property in other respects resembled a town.
89
In Logan Valley we recognized what the Court today refuses to recognize that the owner of the modern shopping center complex, by dedicating his property to public use as a business district, to some extent displaces the "State" from control of historical First Amendment forums, and may acquire a virtual monopoly of places suitable for effective communication. The roadways, parking lots, and walkways of the modern shopping center may be as essential for effective speech as the streets and sidewalks in the municipal or company-owned town.7 I simply cannot reconcile the Court's denial of any role for the First Amendment in the shopping center with Marsh's recognition of a full rule for the First Amendment on the streets and sidewalks of the company-owned town.
90
My reading of Marsh admittedly carried me farther than the Court in Lloyd, but the Lloyd Court remained responsive in its own way to the concerns underlying Marsh. Lloyd retained the availability of First Amendment protection when the picketing is related to the function of the shopping center, and when there is no other reasonable opportunity to convey the message to the intended audience. Preserving Logan Valley subject to Lloyd's two related criteria guaranteed that the First Amendment would have application in those situations in which the shopping center owner had most clearly monopolized the forums essential for effective communication. This result, although not the optimal one in my view, Lloyd Corp. v. Tanner, 407 U.S., at 579-583, 92 S.Ct. 2219, 2229, 2234-2236, 33 L.Ed.2d 131 (Marshall, J., dissenting), is nonetheless defensible.
91
In Marsh, the private entity had displaced the "state" from control of all the places to which the public had historically enjoyed access for First Amendment purposes, and the First Amendment was accordingly held fully applicable to the private entity's conduct. The shopping center owner, on the other hand, controls only a portion of such places, leaving other traditional public forums available to the citizen. But the shopping center owner may nevertheless control all places essential for the effective undertaking of some speech-related activities namely, those related to the activities of the shopping center. As for those activities, then, the First Amendment ought to have application under the reasoning of Marsh, and that was precisely the state of the law after Lloyd.
92
The Court's only apparent objection to this analysis is that it makes the applicability of the First Amendment turn to some degree on the subject matter of the speech. But that in itself is no objection, and the cases cited by the Court to the effect that government may not "restrict expression because of its message, its ideas, its subject matter, or its content," Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972), are simply inapposite. In those cases, it was clearly the government that was acting, and the First Amendment's bar against infringing speech was unquestionably applicable; the Court simply held that the government, faced with a general command to permit speech, cannot choose to forbid some speech because of its message. The shopping center cases are quite different; in these cases the primary regulator is a private entity whose property has "assume(d) to some significant degree the functional attributes of public property devoted to public use." Central Hardware Co. v. NLRB, 407 U.S., at 547, 92 S.Ct., at 2243. The very question in these cases is whether, and under what circumstances, the First Amendment has any application at all. The answer to that question, under the view of Marsh described above, depends to some extent on the subject of the speech the private entity seeks to regulate, because the degree to which the private entity monopolizes the effective channels of communication may depend upon what subject is involved.8 This limited reference to the subject matter of the speech poses none of the dangers of government suppression or censorship that lay at the heart of the cases cited by the Court. See, E. g., Police Dept. of Chicago v. Mosley, supra, 408 U.S. 92, at 95-96, 92 S.Ct. 2286, 2289-2290, 33 L.Ed.2d 212. It is indeed ironic that those cases, whose obvious concern was the promotion of free speech, are cited today to require its surrender.
93
In the final analysis, the Court's rejection of any role for the First Amendment in the privately owned shopping center complex stems, I believe, from an overly formalistic view of the relationship between the institution of private ownership of property and the First Amendment's guarantee of freedom of speech. No one would seriously question the legitimacy of the values of privacy and individual autonomy traditionally associated with privately owned property. But property that is privately owned is not always held for private use, and when a property owner opens his property to public use the force of those values diminishes. A degree of privacy is necessarily surrendered; thus, the privacy interest that petitioner retains when he leases space to 60 retail businesses and invites the public onto his land for the transaction of business with other members of the public is small indeed. Cf. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65-67, 93 S.Ct. 2628, 2639-2640, 37 L.Ed.2d 446 (1973). And while the owner of property open to public use may not automatically surrender any of his autonomy interest in managing the property as he sees fit, there is nothing new about the notion that that autonomy interest must be accommodated with the interests of the public. As this Court noted some time ago, albeit in another context:
94
"Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created." Munn v. Illinois, 94 U.S. 113, 126, 24 L.Ed. 77 (1877).
95
The interest of members of the public in communicating with one another on subjects relating to the businesses that occupy a modern shopping center is substantial. Not only employees with a labor dispute, but also consumers with complaints against business establishments, may look to the location of a retail store as the only reasonable avenue for effective communication with the public. As far as these groups are concerned, the shopping center owner has assumed the traditional role of the state in its control of historical First Amendment forums. Lloyd and Logan Valley recognized the vital role the First Amendment has to play in such cases, and I believe that this Court errs when it holds otherwise.
1
The Butler warehouse was not located within the North DeKalb Shopping Center.
2
Section 7, 29 U.S.C. § 157, provides:
"Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title."
3
Hudgens v. Local 315, Retail, Wholesale & Dept. Store Union, 192 N.L.R.B. 671. Section 8(a)(1) makes it an unfair labor practice for "an employer" to "restrain, or coerce employees" in the exercise of their § 7 rights. While Hudgens was not the employer of the employees involved in this case, it seems to be undisputed that he was an employer engaged in commerce within the meaning of §§ 2(6) and (7) of the Act, 29 U.S.C. §§ 152(6) and (7). The Board has held that a statutory "employer" may violate § 8(a)(1) with respect to employees other than his own. See Austin Co., 101 N.L.R.B. 1257, 1258-1259. See also § 2(13) of the Act, 29 U.S.C. § 152(13).
4
Hudgens v. Local 315, Retail, Wholesale & Dept. Store Union, 205 N.L.R.B. 628.
5
Insofar as the two shopping centers differed as such, the one in Lloyd more closely resembled the business section in Chickasaw, Ala.:
"The principal differences between the two centers are that the Lloyd Center is larger than Logan Valley, that Lloyd Center contains more commercial facilities, that Lloyd Center contains a range of professional and nonprofessional services that were not found in Logan Valley, and that Lloyd Center is much more intertwined with public streets than Logan Valley. Also, as in Marsh, supra, Lloyd's private police are given full police power by the city of Portland, even though they are hired, fired, controlled, and paid by the owners of the Center. This was not true in Logan Valley." 407 U.S., at 575, 92 S.Ct., at 2232 (Marshall, J., dissenting).
6
See Id., at 570, 92 S.Ct., at 2229 (Marshall, J., dissenting).
7
This was the entire thrust of Mr. Justice Marshall's dissenting opinion in the Lloyd case. See Id., at 584, 92 S.Ct., at 2236.
8
Mr. Justice White clearly recognized this principle in his Logan Valley dissenting opinion. 391 U.S., at 339, 88 S.Ct., at 1619.
9
The Court has in the past held that some expression is not protected "speech" within the meaning of the First Amendment. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031.
10
A wholly different balance was struck when the organizational activity was carried on by employees already rightfully on the employer's property, since the employer's management interests rather than his property interests were there involved. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372. This difference is "one of substance." NLRB v. Babcock & Wilcox Co., 351 U.S., at 113, 76 S.Ct., at 685.
11
This is not to say that Hudgens was not a statutory "employer" under the Act. See n. 3, Supra.
12
351 U.S., at 112, 76 S.Ct., at 684. This language was explicitly reaffirmed as stating "the guiding principle" in Central Hardware Co. v. NLRB, 407 U.S. 539, 544, 92 S.Ct. 2238, 2241, 33 L.Ed.2d 122.
1
In his dissent in Logan Valley, Mr. Justice Black stated that "Marsh was never intended to apply to this kind of situation. . . . (T)he basis on which the Marsh decision rested was that the property involved encompassed an area that for all practical purposes had been turned into a town; the area had all the attributes of a town and was exactly like any other town in Alabama. I can find very little resemblance between the shopping center involved in this case and Chickasaw, Alabama." 391 U.S., at 330, 331, 88 S.Ct., at 1615.
2
The editorial "we" above is directed primarily to myself as the author of the Court's opinion in Lloyd Corp.
1
203 N.L.R.B. 265 (1973), enforcement denied, NLRB v. Visceglia, 498 F.2d 43 (CA 3 1974).
2
The Board found the "principles of Babcock & Wilcox . . . to be applicable," 203 N.L.R.B., at 266-267, but seized upon a factual distinction that the Babcock & Wilcox Court had itself suggested namely, the distinction between activity by employees, as in Visceglia, and activity by nonemployees, as in Babcock & Wilcox.
3
The Board's General Counsel urged a rule, based upon Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945), that the employee pickets could not be excluded from the shopping center unless it could be shown that the picketing interfered with the center's normal functioning. While the Board's General Counsel thus did not rely on Babcock & Wilcox, the basis for the Board's decision, he still relied on a statutory case, not a constitutional one.
Petitioner argued in the Court of Appeals that under Babcock & Wilcox the picketing could be prohibited unless it could be shown that there were no other available channels of communication with the intended audience.
4
Indeed, the Court of Appeals quite clearly viewed the Administrative Law Judge's recommendation and the Board's decision as statutorily based. And the court did not even make the factual finding of functional equivalence to a business district that it recognized as a prerequisite to the application of the First Amendment. 501 F.2d, at 164.
5
It is irrelevant, in my view, that the property in this case was owned by the shopping center owner rather than by the employer. The nature of the property interest is the same in either case.
6
The only alternative means of communication referred to in Babcock & Wilcox Were "personal contacts on streets or at home, telephones, letters or advertised meetings to get in touch with the employees." 351 U.S., at 111, 76 S.Ct., at 684.
7
No point would be served by adding to the observations in Logan Valley and my dissent in Lloyd with respect to the growth of suburban shopping centers and the proliferation of activities taking place in such centers. See Logan Valley, 391 U.S., at 324, 88 S.Ct., at 1611; Lloyd, 407 U.S., at 580, 585-586, 92 S.Ct., at 2234, 2237. See also Note, Lloyd Corp. v. Tanner: The Demise of Logan Valley and the Disguise of Marsh, 61 Geo.L.J. 1187, 1216-1219 (1973).
8
See The Supreme Court, 1967 Term, 82 Harv.L.Rev. 63, 135-138 (1968).
| 23
|
424 U.S. 544
96 S.Ct. 1023
47 L.Ed.2d 222
UNITED STATES, Petitioner,v.Bobby Gene GADDIS and Billy Sunday Birt.
No. 74-1141.
Argued Dec. 15, 1975.
Decided March 3, 1976.
Syllabus
Respondents were indicted for entering a federally insured bank with intent to rob it by force and violence (Count 1) and robbing the bank by force and violence (Count 2), in violation of 18 U.S.C. § 2113(a), with possessing the funds stolen in the robbery (Count 3), in violation of § 2113(c), and with assaulting four people with dangerous weapons during the robbery (Counts 4-8), in violation of § 2113(d), and thereafter found guilty and sentenced on all counts. The Court of Appeals reversed, and ordered a new trial on the ground that, as held in Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407, it was plain error to allow a jury to convict the accused of receiving and possessing the same money taken in the same bank robbery, and that under Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773, remanding the case for a new trial was the appropriate appellate remedy. Held:
1. A person convicted of violating 18 U.S.C. §§ 2113(a), (b), and (d) cannot also be convicted of receiving or possessing the robbery proceeds in violation of § 2113(c). Heflin, supra, 358 U.S., at 419-420, 79 S.Ct. 451. Pp. 547-548.
2. The Court of Appeals was mistaken in requiring a new trial as the remedy for the trial court's not having dismissed Count 3 for lack of proof, since the error can be corrected by vacating the convictions and sentences under that count. Milanovich, supra, distinguished. Pp. 548-549.
3. The sentences under Counts 1 and 2 should also be vacated. Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370. P. 549 n. 12.
5 Cir., 506 F.2d 352, vacated and remanded.
Andrew L. Frey, Washington, D.C., for petitioner.
Tommy Day Wilcox, Macon, Ga., for respondents, Pro hac vice, by special leave of Court.
Mr. Justice STEWART delivered the opinion of the Court.
1
A federal grand jury in Georgia, returned an eight-count indictment against the respondents Gaddis and Birt, charging them with entering a federally insured bank with intent to rob it by force and violence (Count 1) and robbing the bank by force and violence (Count 2), in violation of 18 U.S.C. § 2113(a);1 with possessing the funds stolen in the robbery (Count 3), in violation of 18 U.S.C. § 2113(c);2 and with assaulting four people with dangerous weapons during the course of the robbery (Counts 4 to 8), in violation of 18 U.S.C. § 2113(d).3 At the ensuing trial the Government's evidence showed that three armed men had on March 6, 1974, robbed the National Bank of Walton County in Loganville, Ga.,4 and that the robbers in making their getaway had engaged in an exchange of gunfire with Loganville's lone police officer. The Government's evidence further showed that two of the three robbers had been Gaddis and Birt.5 The jury found the respondents guilty on all counts of the indictment, and the trial judge sentenced each of them to aggregate prison terms of 25 years.6 In imposing the prison sentences, the judge stated:
2
"(T)he Court realizes that twenty-five years is the maximum, and the cases say that there is a merger of all of those offenses. If there is any question as to the legality of that sentence, that's the Court's intention."
3
The Court of Appeals for the Fifth Circuit reversed the judgments of conviction and ordered a new trial upon the ground that the District Judge had been in error in permitting the jury to convict the respondents on all eight counts of the indictment. Specifically, the appellate court held that this Court's decision in Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407, had made it clear that "it is plain error to all a jury to convict an accused of taking and possessing the same money obtained in the same bank robbery," and that under this Court's decision in Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773, "the proper appellate remedy is to remand for a new trial." 506 F.2d 352, 354. We granted certiorari because of the discordant views in the Circuits regarding the proper application of the Heflin and Milanovich decisions.7 421 U.S. 987, 95 S.Ct. 1989, 44 L.Ed.2d 476.
4
The Court of Appeals was correct in holding that a person convicted of robbing a bank in violation of 18 U.S.C. §§ 2113(a), (b), and (d), cannot also be convicted of receiving or possessing the proceeds of that robbery in violation of 18 U.S.C. § 2113(c). This much was clearly settled in the Heflin case. The Court there held that "subsection (c) was not designed to increase the punishment for him who robs a bank but only to provide punishment for those who receive the loot from the robber." 358 U.S., at 419, 79 S.Ct. at 454. In "subsection (c) . . . Congress was trying to reach a new group of wrongdoers, not to multiply the offense of the bank robbers themselves." Id., at 420, 79 S.Ct., at 454. Thus, while there was in the present case a "merger" of the convictions under §§ 2113(a) and (d), Prince v. United States, 352 U.S. 2, 77 S.Ct. 403, 1 L.Ed.2d 370, the merger could not include the conviction under § 2113(c). Receipt or possession of the proceeds of a bank robbery in violation of § 2113(c) is simply not a lesser included offense within the total framework of the bank robbery provisions of § 2113. Rather, § 2113(c) reaches a different "group of wrongdoers," i. e., "those who receive the loot from the robber."
5
The Court of Appeals was mistaken, however, in supposing that our decision in Milanovich required the ordering of a new trial as the "proper appellate remedy" for the District Judge's error in this case. The very unusual facts in that case were wholly different from those presented here.
6
In Milanovich there was evidence that the petitioner and her husband, "as owners of an automobile, transported three others under an arrangement whereby the three were to break into a United States naval commissary building with a view to stealing government funds," that she and her husband "were to remain outside for the return of their accomplices after the accomplishment of the theft," but that they "drove off without awaiting the return of their friends."8 If believed by the jury, this evidence was clearly sufficient to support a verdict that the petitioner was guilty of robbing the naval commissary.9 There was also evidence in Milanovich, however, of other and different conduct on the part of the petitioner that about 17 days after the naval commissary robbery she had obtained and appropriated silver currency taken in the robbery and concealed the same in a suitcase in her home.10 If believed by the jury, this evidence was clearly sufficient to support a verdict that the petitioner was guilty of receiving and concealing the stolen property.11 The trial judge refused to instruct the jury that the petitioner could not be convicted for both stealing and receiving the same currency, and she was convicted and separately sentenced on both counts. This Court held that under Heflin the jury should have been instructed that the petitioner could not be separately convicted for stealing and receiving the proceeds of the same theft. Since it was impossible to say upon which count, if either, a properly instructed jury would have convicted the petitioner, and in view of the grossly disparate sentences imposed upon the petitioner and upon her husband (who was convicted only upon the larceny count), her convictions were set aside and the case was remanded for a new trial.
7
The present case is of a very different order. While the evidence was certainly sufficient to support a jury verdict that the respondents were guilty beyond a reasonable doubt of aggravated bank robbery, there was no evidence whatever that they were guilty of receiving the proceeds "from the robber." Indeed, except for the evidence of asportation during the robbery itself, there was nothing to show that the respondents had ever received or possessed the bank's funds. Their share of the loot was, in fact, never found. Accordingly, the trial judge should have dismissed Count 3 of the indictment. His error in not doing so can be fully corrected now by the simple expedient of vacating the convictions and sentences under that count.12
8
In many prosecutions under 18 U.S.C. § 2113 the evidence will not, of course, be so clearcut as in the present case. Situations will no doubt often exist where there is evidence before a grand jury or prosecutor that a certain person participated in a bank robbery and also evidence that that person, though not himself the robber, at least knowingly received the proceeds of the robbery.13 In such a case there can be no impropriety for a grand jury to return an indictment or for a prosecutor to file an information containing counts charging violations of 18 U.S.C. § 2113(a), (b), or (d), as well as of § 2113(c).14 If, upon the trial of the case the District Judge is satisfied that there is sufficient evidence to go to the jury upon both counts, he must, under Heflin and Milanovich, instruct the members of the jury that they may not convict the defendant both for robbing a bank and for receiving the proceeds of the robbery. He should instruct them that they must first consider the charges under § 2113(a), (b), or (d), and should consider the charge under § 2113(c) only if they find insufficient proof that the defendant himself was a participant in the robbery.15
9
For the reasons stated, the judgment of the Court of Appeals is vacated, and the case is remanded to that court for further proceedings consistent with this opinion.
10
It is so ordered.
11
Judgment vacated and case remanded.
12
Mr. Justice STEVENS took no part in the consideration or decision of this case.
13
Mr. Justice WHITE, with whom THE CHIEF JUSTICE joins, concurring.
14
Because the Court deems this case distinguishable from Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961), it sees no occasion to consider the continuing validity of that decision; and I do not read the Court's opinion as reaffirming, in addition to describing, the Milanovich rule that a new trial is required when (1) a jury is erroneously permitted to convict a defendant both of bank robbery, 18 U.S.C. § 2113(a), (b), or (d), and of knowing possession of the proceeds of that robbery, 18 U.S.C. § 2113(c), and (2) there is evidence to support both convictions.
15
As the Court states, a jury, having convicted on the robbery count, should stop there without going on to consider the possession count. If the jury is erroneously permitted, however, to consider and convict on the possession count as well, such a conviction casts absolutely no doubt on the validity of the robbery conviction. Under such circumstances it is not impossible to say upon which count, if either, a properly instructed jury would have convicted the defendant. It may be concluded with satisfactory certainty that the jury, having convicted for both offenses, would have convicted of robbery if it had been properly instructed. The verdict on the robbery count shows that the jury found each element of that offense to have been established beyond a reasonable doubt. That the jury went on to find that the defendant also possessed the proceeds of the robbery whether on a different date and on different proof or not casts no doubt on the trustworthiness of the findings on the robbery count. The problem of erroneously permitting the jury to consider and convict on two counts on each of which, considered separately, the jury was properly instructed when they should have considered and convicted on only one bears no relation to that presented in Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), in which the jury was permitted to convict on a single count on both a valid and an invalid theory. In Stromberg, it was impossible to know whether a properly instructed jury would have convicted the defendant of anything. In the class of cases governed by Milanovich, the robbery count is untainted by the fact that in addition to its finding of guilty on that count the jury also made findings on the possession count, for those findings are factually consistent with the findings on the robbery count.
16
In all cases in which the court correctly instructs the jury on the elements of the crime of robbery, any resulting conviction and sentence should be sustained. In those cases in which the jury also convicts of possession, that conviction and any sentence on it should simply be vacated.* A new trial on the robbery count in any such case would result in an expenditure of court resources and the possibility of an acquittal through loss of evidence or other causes of a reliably convicted defendant for no reason.
1
"(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or
"Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank, credit union, or such savings and loan association and in violation of any statute of the United States, or any larceny
"Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both."
2
"(c) Whoever receives, possesses, conceals, stores, barters, sells, or disposes of, any property or money or other thing of value knowing the same to have been taken from a bank, credit union, or a savings and loan association, in violation of subsection (b) of this section shall be subject to the punishment provided by said subsection (b) for the taker."
3
"(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both."
4
Two of the men had entered the bank, brandishing pistols, while the third man had remained in the getaway car outside.
5
A third man indicted, Billy Wayne Davis, had pleaded guilty and was a principal witness for the Government at the respondents' trial.
6
The judge imposed 20-year sentences for aggravated bank robbery (18 U.S.C. § 2113(a)), 25-year sentences for assaults in the course of the bank robbery (§ 2113(d)), and 10-year sentences for possession of the proceeds of the robbery (§ 2113(c)), all of the sentences to run concurrently.
7
See, E. g., United States v. Sharpe, 452 F.2d 1117, 1119 (CA1); United States v. Ploof, 464 F.2d 116, 119-120 (CA2); United States v. Roach, 321 F.2d 1, 6 (CA3); Phillips v. United States, 518 F.2d 108, 110 (CA4); United States v. Sellers, 520 F.2d 1281, 1286 (CA4); United States v. Harris, 346 F.2d 182, 184 (CA4); United States v. Abercrombie, 480 F.2d 961, 964-965 (CA5); Ethridge v. United States, 494 F.2d 351 (CA6); United States v. Dixon, 507 F.2d 683 (CA8); United States v. Tyler, 466 F.2d 920 (CA9); Keating v. United States, 413 F.2d 1028 (CA9); Glass v. United States, 351 F.2d 678 (CA10).
8
365 U.S., at 557, 81 S.Ct., at 731 (dissenting opinion).
9
18 U.S.C. §§ 641, 2.
10
365 U.S., at 554-555, n. 5, 81 S.Ct., at 729-730.
11
18 U.S.C. § 641.
12
In light of Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370, the concurrent sentences under Counts 1 and 2 should also be vacated, leaving the respondents under single 25-year prison sentences for violating 18 U.S.C. § 2113(d).
13
Such a case is not hard to hypothesize. A grand jury or prosecutor may often possess clear evidence that the proceeds of a bank robbery were found in a certain person's possession, and less certain eyewitness or circumstantial evidence that that person was an actual participant in the robbery.
14
The statement to the contrary in a dissenting opinion in Milanovich, 365 U.S., at 558, 81 S.Ct., at 731-732, is incorrect.
15
If, on the other hand, the indictment or information charges only a violation of § 2113(c), it is incumbent upon the prosecution at trial to prove beyond a reasonable doubt only the elements of that offense, and the identity of the participant or participants in the robbery or theft is irrelevant to the issue of the defendant's guilt. While a mechanistic reading of Heflin's language might not wholly support this rule, it is to be remembered that Heflin ultimately held no more than that a person could not be convicted and separately sentenced under § 2113(a), (b), or (d) And under § 2113(c) because § 2113(c) could not be used to "pyramid penalties." 358 U.S., at 419, 79 S.Ct., at 453-454. Heflin did not purport to, and did not, add to or alter the statutory elements of the offense under § 2113(c).
*
If district judges instruct juries as the majority opinion requires, this problem will not arise. However, since this Court's decision in Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961), district judges should have been instructing juries not to consider possession counts, if they convict of robbery. As this case and others attest, E. g., United States v. Sellers, 520 F.2d 1281 (CA4 1975), cert. pending, Nos. 74-1476 and 74-6503; Phillips v. United States, 518 F.2d 108 (CA4 1975) (en banc), cert. pending, Nos. 75-167 and 75-5457; United States v. Dixon, 507 F.2d 683 (CA8 1974), cert. pending, No. 74-5869, district judges have nonetheless made mistakes, and there is no reason to believe that the mistakes will completely cease just because the Court today reiterates the correct instructions.
| 01
|
424 U.S. 589
96 S.Ct. 1017
47 L.Ed.2d 258
Theodore RISTAINO et al., Petitioners,v.James ROSS, Jr.
No. 74-1216.
Argued Dec. 8-9, 1975.
Decided March 3, 1976.
Syllabus
Absent circumstances comparable in significance to those existing in Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46, examination of veniremen during Voir dire about racial prejudice is Held not constitutionally required. In the instant case, which involved the prosecution of respondent, a Negro, for violent crimes against a white security guard, respondent did not show such circumstances. There was thus no error of constitutional dimensions when the state trial judge questioned veniremen about general bias or prejudice but declined to question them specifically about racial prejudice. Pp. 594-598.
508 F.2d 754, reversed.
Barbara A. H. Smith, Asst. Atty. Gen., Boston, Mass., for petitioners.
Michael G. West, Cambridge, Mass., for respondent.
Mr. Justice POWELL delivered the opinion of the Court.
1
Respondent is a Negro convicted in a state court of violent crimes against a white security guard. The trial judge denied respondent's motion that a question specifically directed to racial prejudice be asked during voir dire in addition to customary questions directed to general bias or prejudice. The narrow issue is whether, under our recent decision in Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973), respondent was constitutionally entitled to require the asking of a question specifically directed to racial prejudice. The broader issue presented is whether Ham announced a requirement applicable whenever there may be a confrontation in a criminal trial between persons of different races or different ethnic origins. We answer both of these questions in the negative.
2
* Respondent, James Ross, Jr., was tried in a Massachusetts court with two other Negroes for armed robbery, assault and battery by means of a dangerous weapon, and assault and battery with intent to murder. The victim of the alleged crimes was a white man employed by Boston University as a uniformed security guard. The Voir dire of prospective jurors was to be conducted by the court, which was required by statute to inquire generally into prejudice. See n. 3, Infra. Each defendant, represented by separate counsel, made a written motion that the prospective jurors also be questioned specifically about racial prejudice.1 Each defendant also moved that the veniremen be asked about affiliations with law enforcement agencies.
3
The trial judge consulted counsel for the defendants about their motions. After tentatively indicating that he "(felt) that no purpose would be accomplished by asking such questions in this instance," the judge invited e views of counsel:
4
"THE COURT: . . . I thought from something Mr. Donnelly (counsel for a codefendant) said, he might have wanted on the record something which was peculiar to this case, or peculiar to the circumstances which we are operating under here which perhaps he didn't want to say in open court.
5
"Is there anything peculiar about it, Mr. Donnelly?
6
"MR. DONNELLY: No, just the fact that the victim is white, and the defendants are black.
7
"THE COURT: This, unfortunately, is a problem with us, and all we can hope and pray for is that the jurors and all of them take their oaths seriously and understand the spirit of their oath and understand the spirit of what the Court says to them this Judge anyway and I am sure all Judges of this Court would take the time to impress upon them before, during, and after the trial, and before their verdict, that their oath means just what it says, that they are to decide the case on the evidence, with no extraneous considerations.
8
"I believe that that is the best that can be done with respect to the problems which as I said, I regard as extremely important . . . ." App. 29-30.
9
Further discussion persuaded the judge that a question about law enforcement affiliations should be asked because of the victim's status as a security guard.2 But he adhered to his decision not to pose a question directed specifically to racial prejudice.
10
The Voir dire of five panels of prospective jurors then commenced. The trial judge briefly familiarized each panel with the facts of the case, omitting any reference to racial matters. He then explained to the panel that the clerk would ask a general question about impartiality and a question about affiliations with law enforcement agencies.3 Consistently with his announced intention to "impress upon (the jurors) . . . that they are to decide the case on the evidence, with no extraneous considerations," the judge preceded the questioning of the panel with an extended discussion of the obligations of jurors.4 After these remarks the clerk posed the questions indicated to the panel. Panelists answering a question affirmatively were questioned individually at the bench by the judge, in the presence of counsel. This procedure led to the excusing of 18 veniremen for cause on grounds of prejudice, including one panelist who admitted a racial bias.5
11
The jury eventually impaneled convicted each defendant of all counts. On direct appeal Ross contended that his federal constitutional rights were violated by the denial of his request that prospective jurors be questioned specifically about racial prejudice. This contention was rejected by the Supreme Judicial Court of Massachusetts, Commonwealth v. Ross, 361 Mass. 665, 282 N.E.2d 70 (1972), and Ross sought a writ of certiorari. While his petition was pending, we held in Ham that a trial court's failure on request to question veniremen specifically about racial prejudice had denied Ham due process of law. We granted Ross' petition for certiorari and remanded for reconsideration in light of Ham, 410 U.S. 901, 93 S.Ct. 968, 35 L.Ed.2d 265 (1973); the Supreme Judicial Court again affirmed Ross' conviction. Commonwealth v. Ross, 363 Mass. 665, 296 N.E.2d 810 (1973). The court reasoned that Ham turned on the need for questions about racial prejudice presented by its facts and did not announce "a new broad constitutional principle requiring that (such) questions . . . be put to prospective jurors in all State criminal trials when the defendant is black . . .." Id., at 671, 296 N.E.2d, at 815. Ross again sought certiorari, but the writ was denied. 414 U.S. 1080, 94 S.Ct. 599, 38 L.Ed.2d 486 (1973).
12
In the present case Ross renewed his contention on collateral attack in federal habeas corpus. Relying on Ham, the District Court granted a writ of habeas corpus, and the Court of Appeals for the First Circuit affirmed. 508 F.2d 754 (1974). The Court of Appeals assumed that Ham turned on its facts. But it held that the facts of Ross' case, involving "violence against a white" with "a status close to that of a police officer," presented a need for specific questioning about racial prejudice similar to that in Ham. Id., at 756. We think the Court of Appeals read Ham too broadly.
II
13
The Constitution does not always entitle a defendant to have questions posed during Voir dire specifically directed to matters that conceivably might prejudice veniremen against him. Ham, supra, 409 U.S., at 527-528, 93 S.Ct., at 850. Voir dire "is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion." Connors v. United States, 158 U.S. 408, 413, 15 S.Ct. 951, 953, 39 L.Ed. 1033 (1895); see Ham, supra, 409 U.S., at 527-528, 93 S.Ct., at 850; Aldridge v. United States, 283 U.S. 308, 310, 51 S.Ct. 470, 471, 75 L.Ed. 1054 (1931). This is so because the "determination of impartiality, in which demeanor plays such an important part, is particularly within the province of the trial judge." Rideau v. Louisiana, 373 U.S. 723, 733, 83 S.Ct. 1417, 1423, 10 L.Ed.2d 663 (1963) (Clark, J., dissenting). Thus, the State's obligation to the defendant to impanel an impartial jury6 generally can be satisfied by less than an inquiry into a specific prejudice feared by the defendant. Ham, supra, 409 U.S., at 527-528, 93 S.Ct., at 850.
14
In Ham, however, we recognized that some cases may present circumstances in which an impermissible threat to the fair trial guaranteed by due process is posed by a trial court's refusal to question prospective jurors specifically about racial prejudice during Voir dire. Ham involved a Negro tried in South Carolina courts for possession of marihuana. He was well known in the locale of his trial as a civil rights activist, and his defense was that law enforcement officials had framed him on the narcotics charge to "get him" for those activities. Despite the circumstances, the trial judge denied Ham's request that the court-conducted Voir dire include questions specifically directed to racial prejudice.7 We reversed the judgment of conviction because "the essential fairness required by the Due Process Clause of the Fourteenth Amendment requires that under the facts shown by this record the (defendant) be permitted to have the jurors interrogated (during voir dire ) on the issue of racial bias." 409 U.S., at 527, 93 S.Ct., at 850.
15
By its terms Ham did not announce a requirement of universal applicability.8 Rather, it reflected an assessment of whether under all of the circumstances presented there was a constitutionally significant likelihood that, absent questioning about racial prejudice, the jurors would not be as "indifferent as (they stand) unsworne." Coke on Littleton 155b (19th ed. 1832). In this approach Ham was consistent with other determinations by this Court that a State had denied a defendant due process by failing to impanel an impartial jury. See Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Rideau v. Louisiana, supra; Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965); cf. Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953).
16
The circumstances in Ham strongly suggested the need for Voir dire to include specific questioning about racial prejudice. Ham's defense was that he had been framed because of his civil rights activities. His prominence in the community as a civil rights activist, if not already known to veniremen, inevitably would have been revealed to the members of the jury in the course of his presentation of that defense. Racial issues therefore were inextricably bound up with the conduct of the trial. Further, Ham's reputation as a civil rights activist and the defense he interposed were likely to intensify any prejudice that individual members of the jury might harbor. In such circumstances we deemed a Voir dire that included questioning specifically directed to racial prejudice, when sought by Ham, necessary to meet the constitutional requirement that an impartial jury be impaneled.
17
We do not agree with the Court of Appeals that the need to question veniremen specifically about racial prejudice also rose to constitutional dimensions in this case.9 The mere fact that the victim of the crimes alleged was a white man and the defendants were Negroes was less likely to distort the trial than were the special factors involved in Ham. The victim's status as a security officer, also relied upon by the Court of Appeals, was cited by respective defense counsel primarily as a separate source of prejudice, not as an aggravating racial factor, see n. 2, supra, and the trial judge dealt with it by his question about law-enforcement affiliations.10 The circumstances thus did not suggest a significant likelihood that racial prejudice might infect Ross' trial. This was made clear to the trial judge when Ross was unable to support his motion concerning Voir dire by pointing to racial factors such as existed in Ham or others of comparable significance. In these circumstances, the trial judge acted within the Constitution in determining that the demands of due process could be satisfied by his more generalized but thorough inquiry into the impartiality of the veniremen. Accordingly, the judgment is
18
Reversed.
19
Mr. Justice STEVENS took no part in the consideration or decision of this case.
20
Mr. Justice WHITE concurs in the result on the ground that Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973), announced a new constitutional rule applicable to federal and state criminal trials and that this rule should not be applied retroactively to cases such as this involving trials which occurred prior to the decision in Ham.
21
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
22
In 1973, the Court refused to review the affirmance on direct appeal of Mr. Ross' conviction. 414 U.S. 1080, 94 S.Ct. 599, 38 L.Ed.2d 486. In dissenting from that refusal, I observed that "(t)o deny this petition for certiorari is to see our decision in Ham v. South Carolina (409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973)) stillborn and to write an epitaph for those 'essential demands of fairness' recognized by this Court 40 years ago in Aldridge (V. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931))." Id., 414 U.S., at 1085, 94 S.Ct., at 602. Today, in reversing the Court of Appeals' affirmance of the District Court's grant of a writ of habeas corpus, the Court emphatically confirms that the promises inherent in Ham and Aldridge will not be fulfilled. For the reasons expressed in my dissent from the earlier denial of certiorari, I cannot join in this confirmation. Accordingly, I respectfully dissent.
1
The question proposed by Ross, who did not adopt as his own various other questions proposed by his codefendants, was: "5. Are there any of you who believe that a white person is more likely to be telling the truth than a black person?" App. 23.
2
"MR. DONNELLY: There is only one thing. The only reference I would make to the facts in this case the victim(')s being white, and that he was a security guard in uniform and acting as a policeman.
"MR. NEWMAN (counsel for Ross): I think that factor might suggest the question this was my series of questions asking the jurors whether any of their relatives are policemen.
"THE COURT: I am going to adopt Mr. Newman's suggestion that we have a double problem here, not only the problem of skin color, but we also have the problem of someone who is a quasi policeman, so I am going to ask . . . (a question) in the area of relations to police . . . ." Id., at 30-31.
3
The questions were, in substance, the following:
"If any of you are related to the defendants or to the victim, or if any of you have any interest in this case, or have formed an opinion or is sensible of any bias or prejudice, you should make it known to the court at this time.
" . . . Are you presently, or have you in the past worked for a police department or a district attorney's office, or do you have any relative who is or was engaged in such work." Id., at 71.
The first question was required by Mass.Gen.Laws Ann., c. 234, § 28 (1959).
4
He addressed one panel in part as follows:
"(THE COURT:) . . . (U)nder your oath, you have an absolute duty to render a fair and impartial verdicts (Sic) based upon the evidence that you hear in the courtroom, and no extraneous factors.
"The Clerk in asking you the first question is giving you an opportunity to inform the Court, if you believe that you cannot render a fair and impartial verdict on the evidence in this case; giving you an opportunity to inform the Court if you have serious doubt as to whether you can render a fair and impartial verdict on the evidence in the case.
"Under this question, and under your oath, when this question is asked, if you believe that you cannot render a fair and impartial verdict on the evidence in this case, or if you have a doubt as to whether you can so render a fair and impartial verdict on the evidence in the case, you have a duty to inform the Court when that question is asked by standing or raising your hand." App. 72.
5
At least this venireman knew that the defendants were Negroes. See Id., at 42. He was a member of the first panel questioned, and the record shows that immediately before the questioning of that panel the defendants were directed to stand and were "set at the bar to be tried." Id., at 39. It appears that this formality was pursued only before the questioning of the first panel. Cf. Id., at 49-50, 73-74, 84, 97. Nothing in the record lodged in this Court indicates whether the veniremen from other panels knew that the defendants were Negroes, although presumably the defendants remained in the courtroom throughout the questioning.
6
A criminal defendant in a state court is guaranteed an "impartial jury" by the Sixth Amendment as applicable to the States through the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). Principles of due process also guarantee a defendant an impartial jury. See, E. g., Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961).
7
The questions proposed by Ham were:
"1. Would you fairly try this case on the basis of the evidence and disregarding the defendant's race?
"2. You have no prejudice against negroes? Against black people? You would not be influenced by the use of the term 'black'?" 409 U.S., at 525, 93 S.Ct., 849, 35 L.Ed.2d 46 n. 2.
8
In defending the judgment of the Court of Appeals Ross argues for a sweeping Per se rule. At least where crimes of violence are involved, he would require defense motions for Voir dire on racial prejudice to be granted in any case where the defendant was of a different race from the victim. He would require a similar result whenever any defendant sought Voir dire on racial prejudice because of the race of his own or adverse witnesses. Tr. of Oral Arg. 29-34. We note that such a Per se rule could not, in principle, be limited to cases involving possible racial prejudice. It would apply with equal force whenever Voir dire questioning about ethnic origins was sought, and its logic could encompass questions concerning other factors, such as religious affiliation or national origin. See Aldridge v. United States, 283 U.S. 308, 313, 51 S.Ct. 470, 472, 75 L.Ed. 1054 (1931). In our heterogeneous society policy as well as constitutional considerations militate against the divisive assumption as a Per se rule that justice in a court of law may turn upon the pigmentation of skin, the accident of birth, or the choice of religion. See Connors v. United States, 158 U.S. 408, 415, 15 S.Ct. 951, 953, 39 L.Ed. 1033 (1895).
9
Although we hold that Voir dire questioning directed to racial prejudice was not constitutionally required, the wiser course generally is to propound appropriate questions designed to identify racial prejudice if requested by the defendant. Under our supervisory power we would have required as much of a federal court faced with the circumstances here. See Aldridge v. United States, supra ; cf. United States v. Walker, 491 F.2d 236 (CA9), cert. denied, 416 U.S. 990, 94 S.Ct. 2399, 40 L.Ed.2d 768 (1974); United States v. Booker, 480 F.2d 1310 (CA7 1973). The States also are free to allow or require questions not demanded by the Constitution. In fact, the Supreme Judicial Court of Massachusetts has suggested guidelines to Massachusetts trial courts for questioning about racial prejudice on Voir dire. Commonwealth v. Lumley, 327 N.E.2d 683 (Mass.1975); Commonwealth v. Ross, 363 Mass. 665, 673, 296 N.E.2d 810, 816 (1973).
10
The facts here resemble in many respects those in Aldridge, supra, where the Court overturned the conviction of a Negro for the murder of a white policeman because the federal trial judge had refused the defendant's request that the venire be questioned about racial prejudice. Ham relied in part on Aldridge in finding that the inquiry into racial prejudice on Voir dire sought in Ham had "constitutional stature." 409 U.S., at 528, 93 S.Ct., at 851. While Aldridge was one factor relevant to the constitutional decision in Ham, we did not rely directly on its precedential force. Rather, we noted that Aldridge "was not expressly grounded upon any constitutional requirement." 409 U.S., at 526, 93 S.Ct., at 850. In light of our holding today, the actual result in Aldridge should be recognized as an exercise of our supervisory power over federal courts. Cf. n. 9, Supra.
| 01
|
424 U.S. 577
96 S.Ct. 1010
47 L.Ed.2d 249
Abe LAVINE, etc., Appellant,v.Ronald MILNE et al.
No. 74-1137.
Argued Dec. 2, 1975.
Decided March 3, 1976.
Syllabus
A New York welfare statute disqualifies from the receipt of Home Relief benefits for 75 days anyone who voluntarily terminates his employment or reduces his earning capacity for the purpose of qualifying for benefits, and further provides, by way of a "rebuttable presumption," that a person who applies for assistance within 75 days after so voluntarily terminating his employment or reducing his earning capacity shall be "deemed" to have done so "for the purpose of qualifying for such assistance or a larger amount thereof, in the absence of evidence to the contrary supplied by such person." In this action challenging the constitutionality of the latter provision, a three-judge District Court held the provision to be violative of due process. Held: The "rebuttable presumption" provision does not deny due process of law under the Fourteenth Amendment. Pp. 582-587.
(a) The provision's sole purpose is to indicate that, as with other eligibility requirements, the applicant rather than the State must establish that he did not leave employment for the purpose of qualifying for benefits, and the only "rebuttable presumption," if it can be so called, is the normal assumption that an applicant is not entitled to benefits unless and until he proves his eligibility. Pp. 583-585.
(b) The fact that under the prescribed procedure a decision, even one favorable to an applicant, ensuing from a hearing at which the applicant may appeal an adverse decision by the local welfare official need not be handed down until 90 days from the date the hearing was requested, thus extending beyond the 75-day waiting period, does not render such hearing procedure meaningless. The procedure for ascertaining the applicant's purpose in quitting his job is no different from the procedure for determining any of the other substantive requirements for welfare eligibility, and nothing in the Constitution requires that benefits be initiated prior to the determination of an applicant's qualifications at an adjudicatory hearing. Even if an inordinately large number of applicants are initially denied benefits incorrectly because of a false evaluation of their motives in resigning jobs, the constitutionality of the procedure is not placed in doubt, since the Fourteenth Amendment does not guarantee that all state officials' decisions will be correct, and New York would seem to have no incentive to deny benefits wrongfully. P. 586-587.
(c) Even if the benefits are so small no one would be tempted to leave a job to receive them and the practical difficulty of proving one's state of mind may frequently lead to incorrect denial of benefits, and even assuming, Arguendo, that the burden of the "rebuttable presumption" provision on the industrious indigent far outweighs any conceivable gain to the State from screening out the indolent few, New York nevertheless prefers its chosen course, and it is not for this Court to assay the wisdom of that determination. P. 587.
384 F.Supp. 206, reversed and remanded.
Amy Juviler, New York City, for appellant
Gerald A. Norlander, New York City, for appellees, Pro hac vice, by special leave of Court.
Mr. Justice WHITE delivered the opinion of the Court.
1
A New York welfare statute, N. Y. Soc. Serv. Law § 131(11) (Supp.1975),1 disqualifies from receipt of welfare for 75 days anyone who voluntarily terminates his employment or reduces his earning capacity for the purpose of qualifying for Home Relief or Aid to Families with Dependent Children. A further provision that at issue in this case states that a person who applies for assistance within 75 days after voluntarily terminating his employment or reducing his earning capacity shall be "deemed" to have done so "for the purpose of qualifying for such assistance or a larger amount thereof, in the absence of evidence to the contrary supplied by such person." The question raised by this appeal from the judgment of a three-judge court is whether this "presumption" denies due process of law.
2
Appellee Milne and the appellee intervenors are all applicants for New York Home Relief a residual category of aid for needy individuals unable to qualify for other types of state or federal relief.2 In addition to meeting substantive financial eligibility requirements, see, E. g., 18 NYCRR §§ 352.27, 352.28, Home Relief applicants must meet the requirements of N. Y. Soc. Serv. Law § 131(11) (Supp.1975) and 18 NYCRR § 385.7 promulgated pursuant thereto. Section 131(11) provides:
3
"Any person who voluntarily terminated his employment or voluntarily reduced his earning capacity for the purpose of qualifying for home relief or aid to dependent children or a larger amount thereof shall be disqualified from receiving such assistance for seventy-five days from such termination or reduction, unless otherwise required by federal law or regulation. Any person who applies for home relief or aid to dependent children or requests an increase in his grant within seventy-five days after voluntarily terminating his employment or reducing his earning capacity shall, unless otherwise required by federal law or regulation, be deemed to have voluntarily terminated his employment or reduced his earning capacity for the purpose of qualifying for such assistance or a larger amount thereof, in the absence of evidence to the contrary supplied by such person."3
4
Each of the appellees was denied relief on the ground that his voluntary cessation of employment was "for the purpose of qualifying" for Home Relief; each was therefore barred from receiving aid for 75 days.
5
Contending that this statute and regulation violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment, appellee Milne brought a class suit in the District Court seeking declaratory and injunctive relief and damages against the Commissioner of the New York State Department of Social Services and the Commissioner of the Westchester County Department of Social Services. Jurisdiction was predicated upon 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983. Since appellees sought an injunction against the enforcement of a state statute on the ground of its unconstitutionality, a three-judge court was convened pursuant to 28 U.S.C. §§ 2281, 2284.
6
Upon cross-motions for summary judgment the three-judge court certified the class and held that the second sentence of § 131(11) and the supporting provision of 18 NYCRR § 385.7 were unconstitutional.4 Injunctive relief followed.5 The court found that § 131(11) created a "rebuttable presumption" that an applicant who voluntarily terminated his employment did so for a wrongful purpose. Relying upon decisions of this Court holding that presumptions are permissible unless they are unreasonable, arbitrary, or invidiously discriminatory, see, E. g., Bandini Petroleum Co. v. Superior Court, 284 U.S. 8, 52 S.Ct. 103, 76 L.Ed. 136 (1931); Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), the court held the rebuttable presumption irrational in violation of the Due Process Clause. "(T)here is an insufficient connection between the known fact, that is, application for public assistance within 75 days of an applicant's termination of employment, and the fact presumed by the statute, that is, that the applicant terminated his employment for the purpose of qualifying for public assistance."6 First, it found that the limits of relief were so low that no substantial number of people would leave work merely to obtain welfare benefits. Second, it determined that the poor have "the same desire to work and to obtain the fruits of work as the non-poor." Although the court recognized that the presumption could be rebutted, it found that the fair-hearing procedure of New York took so long frequently in excess of 75 days that it was "meaningless" in that even a determination favorable to the applicant would usually come after the 75-day penalty period had passed.
7
Appellant Lavine, the Commissioner of the New York State Department of Social Services, appealed pursuant to 28 U.S.C. § 1253, and we noted probable jurisdiction, 422 U.S. 1054, 95 S.Ct. 2676, 45 L.Ed.2d 706 (1975). We reverse.
8
As with any other welfare scheme, New York Home Relief imposes a host of requirements; and as is the case when applying for most governmental benefits, applicants for Home Relief bear the burden of showing their eligibility in all respects. See, e. g., 18 NYCRR §§ 351.1(b)(2)ii, 351.6, 351.8, and 370.4(a).7 An applicant may not earn income or hold assets that exceed minimal levels. See 18 NYCRR §§ 352.16, 352.22, 352.28. He may be required in certain circumstances to dispose of any equity in his house, N. Y. Soc. Serv. Law §§ 104, 360 (1966 and Supp. 1975); 18 NYCRR § 352.27, or to sell his automobile, 18 NYCRR §§ 352.15(d), 352.28(b). If assistance is initially denied, the applicant may reapply on the basis of new evidence or may invoke his right to have his eligibility reviewed in a full administrative hearing. 18 NYCRR §§ 358.4-358.5. To the requirements found elsewhere in the New York welfare statutes and regulations, the first sentence of § 131(11) imposes an additional qualification: applicants who voluntarily terminate their employment with the purpose of obtaining Home Relief are ineligible to receive such benefits for 75 days. No challenge to this provision was raised or entertained in the court below.8
9
The second sentence of § 131(11), at issue here, provides that a person who applies for benefits within 75 days after the voluntary cessation of his employment is "deemed" to have quit "for the purpose of qualifying" for benefits, "in the absence of evidence to the contrary supplied by such person." Although the District Court found this to be an unconstitutional "rebuttable presumption," the sole purpose of the provision is to indicate that, as with other eligibility requirements, the applicant rather than the State must establish that he did not leave employment for the purpose of qualifying for benefits. The provision carries with it no procedural consequence; it shifts to the applicant neither the burden of going forward nor the burden of proof, for he appears to carry the burden from the outset.
10
The offending sentence could be interpreted as a rather circumlocutory direction to welfare authorities to employ a standardized inference that if the Home Relief applicant supplies no information on the issue, he will be presumed to have quit his job to obtain welfare benefits. However, such an instruction would be superfluous for the obvious reason that the failure of an applicant to prove an essential element of eligibility will always result in the denial of benefits, much as the failure of a tort or contract plaintiff to prove an essential element of his case will always result in a nonsuit. The only "rebuttable presumption" if, indeed, it can be so called at work here is the normal assumption that an applicant is not entitled to benefits unless and until he proves his eligibility.
11
Despite the rebuttable presumption aura that the second sentence of § 131(11) radiates, it merely makes absolutely clear the fact that the applicant bears the burden of proof on this issue, as he does on all others. And since appellees do not object to the substantive requirement that Home Relief applicants must be free of the impermissible benefit-seeking motive,9 their underlying complaint may be that the burden of proof on this issue has been unfairly placed on welfare applicants rather than on the State.
12
Where the burden of proof lies on a given issue is, of course, rarely without consequence and frequently may be dispositive to the outcome of the litigation or application. It may be that establishing the absence of an illicit motive as § 131(11) requires appellees to do is difficult, although as appellant argues, an applicant's motive should be best known by the applicant himself. However that may be, it is not for us to resolve the question of where the burden ought to lie on this issue. Outside the criminal law area, where special concerns attend, the locus of the burden of persuasion is normally not an issue of federal constitutional moment.10
13
In both their brief and during oral argument, appellees made much of the fact that their only real opportunity to rebut the "presumption" comes at a hearing the decision of which need not be handed down until 90 days from the date the hearing was requested by the applicant. See 18 NYCRR § 358.18. Because even a decision favorable to the applicant may be issued more than 15 days after the end of the 75-day waiting period when the applicant's motive in quitting his job is no longer relevant, appellees claim the hearing procedure is meaningless. Thus, they contend that a hearing must be held prior to the imposition of the 75-day "sanction." Brief for Appellees 96. There are at least two answers to their contention.
14
First, the State's procedure in ascertaining the applicant's purpose in quitting his job is no different from its procedure in determining any of the other substantive requirements for eligibility. An applicant visits the local agency, is informed of the eligibility criteria, and in response to questions posited by the local official is afforded an opportunity to demonstrate his eligibility. 18 NYCRR § 351.1. The answers to these questions determine whether the applicant receives Home Relief. If an adverse determination is made, the applicant has the right to appeal and to receive a full hearing. 18 NYCRR §§ 358.4, 358.5. Certainly nothing in the Constitution requires that benefits be initiated prior to the determination of an applicant's qualifications at an adjudicatory hearing. Second, even if it is true that an inordinately large number of Home Relief applicants are initially denied benefits incorrectly because of a false evaluation of their motives in resigning jobs, this in no way places in doubt the constitutionality of the application procedure. The Fourteenth Amendment does not guarantee that all decisions by state officials will be correct, and New York would seem to have no incentive to deny benefits wrongfully. If on appeal the initial decision to deny benefits is overturned, payments retroactive to the date of application appear to be required. 18 NYCRR § 351.8. Each wrongful decision that is successfully appealed gains the State no substantive advantage and, indeed, costs the State by way of procedural waste.
15
Appellees cite much data that suggest that the poor no more than the wealthy quit jobs to obtain welfare benefits. Their argument that Home Relief benefits are so small about $3.10 per day,11 not including shelter allowance12 that no one would be tempted to leave a job to receive them has force. It is also asserted that the practical difficulty in satisfactorily proving one's state of mind frequently leads to the incorrect denial of benefits to qualified individuals. Even so, and even assuming, Arguendo, that the burden of § 131(11) on the industrious indigent far outweighs any conceivable gain to the State from screening out the indolent few, New York nevertheless prefers its chosen course; and it is not for this Court to assay the wisdom of that determination. The purpose of § 131(11) is permissible, and the procedure for fulfilling that purpose, far from being unconstitutional, is one conventionally applied to applicants for governmental benefits.
16
For the reasons stated herein, the judgment of the District Court is reversed, and the case is remanded for proceedings consistent with this opinion.
17
So ordered.
18
Reversed and remanded.
19
Mr. Justice STEVENS took no part in the consideration or decision of this case.
1
This law was formerly numbered N. Y. Soc. Serv. Law § 131(10) (Supp.1973). The law was renumbered without change in language by a 1974 amendment to the New York Social Services Law, N. Y. Laws 1974, c. 621, § 2.
2
See N. Y. Soc. Serv. Law § 158(a) (Supp.1975), which provides in part:
"Any person unable to provide for himself, or who is unable to secure support from a legally responsible relative, who is not receiving needed assistance or care under other provisions of this chapter, or from other sources, shall be eligible for home relief."
3
Title 18 NYCRR § 385.7 provides:
"(a) A person who:
(1) voluntarily terminates employment or reduces his earning capacity for the purpose of qualifying for assistance or a larger amount thereof, or (2) without good cause fails or refuses to undergo a necessary medical examination or treatment; (3) is required under this Part to receive manpower services and certification and without good cause fails or refuses to accept manpower services and certification; or (4) is required under this Part to pick up his check semi-monthly at the State Employment Service and without good cause fails or refuses to do so; or (5) without good cause fails or refuses to accept referral to and participate in a vocational rehabilitation program,
shall be disqualified from receiving assistance for 30 days thereafter and until such time as he is willing to comply with the requirements of this Part, except that an applicant for or recipient of HR who voluntarily terminated employment or reduced his earning capacity shall be disqualified from receiving assistance for 75 days thereafter and until such time as he is willing to comply with the requirements of this Part.
"(b) Any person who applies for HR or requests an increase in his grant, within 75 days after voluntarily terminating employment or reducing his earning capacity or similarily within 30 days for ADC, shall be deemed to have voluntarily terminated employment or reduced his earning capacity for the purpose of qualifying for such or larger amount thereof in the absence of evidence to the contrary supplied by such person.
"(c) In the event a person is subject at the same time to the requirements of this Part and the requirements of the WIN program, the requirements of the WIN program shall take priority, and where a sanction is required to be imposed against a person under this Part and the WIN requirements, the WIN sanction shall be imposed."
4
The opinion below is reported Sub nom. Milne v. Berman, 384 F.Supp. 206 (S.D.N.Y. 1974) (three-judge court).
5
The Court remanded the question of damages to the single-judge court. Id., at 213 n. 8.
The court below enjoined enforcement of § 131(11) and 18 NYCRR § 385.7 with respect not only to Home Relief applicants, but also to applicants for Aid to Families with Dependent Children, despite the fact that no applicants for AFDC were before the court. Both appellant and appellees agree, though for different reasons, that the court below erred in adjudicating the constitutionality of the presumption as applied to AFDC applicants. Our disposition of this case obviates any need to pass on this issue.
6
384 F.Supp., at 210.
7
Section 370.4(a), E. g., provides in part that:
"Insofar as practicable, responsibility shall be placed upon the applicant for home relief to provide verified information concerning his previous maintenance, loss of income and the extent and duration of current need."
8
See n. 9, Infra.
9
Nor could the constitutionality of this substantive requirement be seriously questioned. Welfare benefits are not a fundamental right, and neither the State nor Federal Government is under any sort of constitutional obligation to guarantee minimum levels of support. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). A provision denying benefits to those who quit their jobs to obtain relief is a perfectly legitimate and reasonable legislative response to the risk that the availability of welfare benefits might undermine the incentive to work.
Since nothing is conclusively presumed against the applicant, who is clearly required to prove his eligibility if he is to receive relief, this Court's prior cases dealing with so-called irrebuttable presumptions are not in point. See, E. g., United States Department of Agriculture v. Murry, 413 U.S. 508, 93 S.Ct. 2832, 37 L.Ed.2d 767 (1973); Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973).
Also wide of the mark are those cases such as Western & Atlantic R. Co. v. Henderson, 279 U.S. 639, 644, 49 S.Ct. 445, 447, 73 L.Ed. 884 (1929), which invalidated statutory "rebuttable presumptions" in the civil area for lack of rational connection between the ultimate fact presumed and the fact actually placed in evidence. Without examining whether such cases would today be decided as they were, it is evident that they involved easing the burden of proof of one party or shifting it to another. Here, as we have said, no easing or shifting takes place. Section 131(11) places and leaves the burden of proof on the applicant from the outset.
10
The cases from the criminal law relied on by the District Court, see, E. g., Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), are not in point; they reflect the standard rule that the State Does bear the burden of proving criminal guilt, Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and that statutory presumptions aimed at assisting in that burden must satisfy certain standards of reliability indicated in the cases. See, E. g., Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970). These cases are not helpful where the burden is, as it may be, placed on the applicant for Home Relief.
11
N. Y. Soc. Serv. Law § 131-a (Supp. 1975).
12
Shelter allowances are provided on an "as paid" basis, up to maximums established in each welfare district. See 18 NYCRR § 352.3.
| 12
|
424 U.S. 600
96 S.Ct. 1075
47 L.Ed.2d 267
UNITED STATES, Petitioner,v.Nathan George DINITZ.
No. 74-928.
Argued Dec. 2, 1975.
Decided March 8, 1976.
Syllabus
For repeated misconduct by respondent's counsel (Wagner) during the opening-statement period in respondent's criminal trial, the trial judge expelled Wagner and asked respondent's co-counsel (Meldon) if he was prepared to proceed with the trial. Upon being advised that Meldon had not discussed the case with witnesses, the judge gave him until the next morning to prepare. At that time Meldon advised the judge that respondent wanted Wagner to try the case. After the judge had set forth the alternatives of (1) a delay pending appellate review of the propriety of Wagner's expulsion, (2) continuation of the trial with Meldon as respondent's main counsel, or (3) declaring a mistrial to permit respondent to obtain other counsel, Meldon made a motion for a mistrial, which the judge granted. Before his second trial respondent filed a motion on double jeopardy grounds to dismiss the indictment, which the judge denied. Respondent represented himself at the second trial, which resulted in his conviction. The Court of Appeals reversed, holding that the exclusion of Wagner and the judge's questioning of Meldon left respondent with "no choice" but to request a mistrial; that under the circumstances respondent could not be said to have voluntarily relinquished his right to proceed before the first jury; and that the Double Jeopardy Clause barred the second trial because there had been no manifest necessity for Wagner's expulsion. Held: The Double Jeopardy Clause does not bar respondent's retrial. Pp. 606-612.
(a) Though this Court has held that whether there can be a new trial after a mistrial has been declared without the defendant's request depends on whether "there is a manifest necessity for the (mistrial), or the ends of public justice would otherwise be defeated," United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165, different considerations obtain when the mistrial has been declared at the instance of the defendant, whose request for a mistrial ordinarily removes any barrier to reprosecution even if necessitated by prosecutorial or judicial error. Pp. 606-618.
(b) The Court of Appeals erred in holding that the manifest-necessity standard should be applied to a mistrial motion when the defendant has "no choice" but to request a mistrial. Though the Double Jeopardy Clause bars retrials where "bad-faith conduct by judge or prosecutor," United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543, 556 (plurality opinion), threatens the "(h)arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict" the defendant, Downum v. States, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100, here there is no contention or record showing that the trial judge's expulsion of Wagner was in bad faith to goad respondent into requesting a mistrial or to prejudice his acquittal prospects. Pp. 608-611.
504 F.2d 854, reversed and remanded.
John P. Rupp, Washington, D. C., for petitioner.
Fletcher N. Baldwin, Jr., Gainesville, Fla., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The question in this case is whether the Double Jeopardy Clause of the Fifth Amendment was violated by the retrial of the respondent after his original trial had ended in a mistrial granted at his request.
2
* The respondent, Nathan Dinitz, was arrested on December 8, 1972, following the return of an indictment charging him with conspiracy to distribute LSD and with distribution of that controlled substance in violation of 84 Stat. 1260, 1265, 21 U.S.C. §§ 841(a)(1), 846. On the day of his arrest, the respondent retained a lawyer named Jeffrey Meldon to represent him. Meldon appeared with the respondent at his arraignment, filed numerous pretrial motions on his behalf, and was completely responsible for the preparation of the case until shortly before trial. Some five days before the trial was scheduled to begin, the respondent retained another lawyer, Maurice Wagner, to conduct his defense. Wagner had not been admitted to practice before the United States District Court for the Northern District of Florida, but on the first day of the trial the court permitted him to appear pro hac vice. In addition to Meldon and Wagner, Fletcher Baldwin, a professor of law at the University of Florida, also appeared on the respondent's behalf.1
3
The jury was selected and sworn on February 14, 1973, and opening statements by counsel began on the following afternoon. The prosecutor's opening statement briefly outlined the testimony that he expected an undercover agent named Steve Cox to give regarding his purchase of LSD from the respondent. Wagner then began his opening statement for the defense. After introducing himself and his co-counsel, Wagner turned to the case against the respondent:
4
"Mr. Wagner: After working on this case over a period of time it appeared to me that if we would have given nomenclature, if we would have named this case so there could be no question about identifying it in the future, I would have called it The Case
5
"Mr. Reed (Asst. U. S. Attorney): Your Honor, we object to personal opinions.
6
'The Court: Objection sustained. The purpose of the opening statement is to summarize the facts the evidence will show, state the issues, not to give personal opinions. Proceed, Mr. Wagner.
7
"Mr. Wagner: Thank you, Your Honor. I call this the Case of the Incredible Witness." App. 20.
8
The prosecutor again objected and the judge excused the jury. The judge then warned Wagner that he did not approve of his behavior and cautioned Wagner that he did not want to have to remind him again about the purpose of the opening statement.
9
Following this initial incident, the trial judge found it necessary twice again to remind Wagner of the purpose of the opening statement and to instruct him to relate "the facts that you expect the evidence to show, the admissible evidence." Id., at 82. Later on in his statement, Wagner started to discuss an attempt to extort money from the respondent that had occurred shortly after his arrest. The prosecutor objected and the jury was again excused. Wagner informed the trial judge of some of the details of the extortion attempt and assured the court that he would connect it with the prospective Government witness Cox. But it soon became apparent that Wagner had no information linking Cox to the extortion attempt, and the trial judge then excluded Wagner from the trial and ordered him to leave the courthouse.2
10
The judge then asked Meldon if he was prepared to proceed with the trial.3 Upon learning that Meldon had not discussed the case with the witnesses, the judge gave Meldon until 9 o'clock the following morning to prepare. Meldon informed the judge that the respondent was "in a quandary because he hired Mr. Wagner to argue the case and he feels he needs more time to obtain outside counsel to argue the case for him. The judge responded that "(y)ou are his counsel and have been" but stated that he would consider the matter "between now and 9:00 o'clock tomorrow morning." Id., at 35.
11
The next morning, Meldon told the judge that the respondent wanted Wagner and not himself or Baldwin to try the case. The judge then set forth three alternative courses that might be followed (1) a stay or recess pending application to the Court of Appeals to review the propriety of expelling Wagner, (2) continuation of the trial with Meldon and Baldwin as counsel, or (3) a declaration of a mistrial which would permit the respondent to obtain other counsel. Following a short recess, Meldon moved for a mistrial, stating that, after "full consideration of the situation and an explanation of the alternatives before him, (the respondent) feels that he would move for a mistrial and that this would be in his best interest." Id., at 41. The Government prosecutor did not oppose the motion. The judge thereupon declared a mistrial, expressing his belief that such a course would serve the interest of justice.
12
Before his second trial, the respondent moved to dismiss the indictment on the ground that a retrial would violate the Double Jeopardy Clause of the Constitution. This motion was denied. The respondent represented himself at the new trial, and he was convicted by the jury on both the conspiracy and distribution counts.4 A divided panel of the Court of Appeals for the Fifth Circuit reversed the conviction, holding that the retrial violated the respondent's constitutional right not to be twice put in jeopardy.5 492 F.2d 53. The appellate court took the view that the trial judge's exclusion of Wagner and his questioning of Meldon had left the respondent no choice but to move for a mistrial. Id., at 59. On that basis, the court concluded that the respondent's request for a mistrial should be ignored and the case should be treated as though the trial judge had declared a mistrial over the objection of the defendant. Ibid. So viewing the case, the court held that the Double Jeopardy Clause barred the second trial of the respondent, because there had been no manifest necessity requiring the expulsion of Wagner.6 The Court of Appeals granted rehearing en banc and, by a vote of 8-7, affirmed the decision of the panel.7 504 F.2d 854. We granted certiorari to consider the constitutional question thus presented. 420 U.S. 1003, 95 S.Ct. 1445, 43 L.Ed.2d 761.
II
13
The Double Jeopardy Clause of the Fifth Amendment protects a defendant in a criminal proceeding against multiple punishments or repeated prosecutions for the same offense.8 See United States v. Wilson, 420 U.S. 332, 343, 95 S.Ct. 1013, 1021, 43 L.Ed.2d 232, 241; North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664. Underlying this constitutional safeguard is the belief that "the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199, 204. Where, as here, a mistrial has been declared, the defendant's "valued right to have his trial completed by a particular tribunal" is also implicated. Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974, 978; United States v. Jorn, 400 U.S. 470, 484-485, 91 S.Ct. 547, 556-557, 27 L.Ed.2d 543, 556 (plurality opinion); Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100, 102.
14
Since Mr. Justice Story's 1824 opinion for the Court in United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165, this Court has held that the question whether under the Double Jeopardy Clause there can be a new trial after a mistrial has been declared without the defendant's request or consent depends on whether "there is a manifest necessity for the (mistrial), or the ends of public justice would otherwise be defeated." Illinois v. Somerville, 410 U.S. 458, 461, 93 S.Ct. 1066, 1069, 35 L.Ed.2d 425, 429; United States v. Jorn, supra, 400 at 481, 91 S.Ct. at 555, 27 L.Ed.2d at 554; Gori v. United States, 367 U.S. 364, 368-369, 81 S.Ct. 1523, 1526, 6 L.Ed.2d 901, 904-905; Wade v. Hunter, supra, 336 at 689-690, 69 S.Ct. at 837, 93 L.Ed. at 978; Simmons v. United States, 142 U.S. 148, 153-154, 12 S.Ct. 171, 172, 35 L.Ed. 968, 970, 971. Different considerations obtain, however, when the mistrial has been declared at the defendant's request.9 The reasons for the distinction were discussed in the plurality opinion in the Jorn case:
15
"If that right to go to a particular tribunal is valued, it is because, independent of the threat of bad-faith conduct by judge or prosecutor, the defendant has a significant interest in the decision whether or not to take the case from the jury when circumstances occur which might be thought to warrant a declaration of mistrial. Thus, where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by prosecutorial or judicial error. In the absence of such a motion, the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant's option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.
16
See United States v. Perez, 9 Wheat., at 580, 6 L.Ed. at 166." 400 U.S., at 485, 91 S.Ct. at 557, 27 L.Ed.2d at 556 (footnote omitted).
17
The distinction between mistrials declared by the court Sua sponte and mistrials granted at the defendant's request or with his consent is wholly consistent with the protections of the Double Jeopardy Clause. Even when judicial or prosecutorial error prejudices a defendant's prospects of securing an acquittal, he may nonetheless desire "to go to the first jury and, perhaps, end the dispute then and there with an acquittal." United States v. Jorn, supra, at 484, 91 S.Ct. at 557, 27 L.Ed.2d at 556. Our prior decisions recognize the defendant's right to pursue this course in the absence of circumstances of manifest necessity requiring a sua sponte judicial declaration of mistrial. But it is evident that when judicial or prosecutorial error seriously prejudices a defendant, he may have little interest in completing the trial and obtaining a verdict from the first jury. The defendant may reasonably conclude that a continuation of the tainted proceeding would result in a conviction followed by a lengthy appeal and, if a reversal is secured, by a second prosecution. In such circumstances, a defendant's mistrial request has objectives not unlike the interests served by the Double Jeopardy Clause the avoidance of the anxiety, expense, and delay occasioned by multiple prosecutions.
18
The Court of Appeals viewed the doctrine that permits a retrial following a mistrial sought by the defendant as resting on a waiver theory. The court concluded, therefore, that "something more substantial than a Hobson's choice" is required before a defendant can "be said to have relinquished voluntarily his right to proceed before the first jury."10 See 492 F.2d, at 59. The court thus held that no waiver could be imputed to the respondent because the trial judge's action in excluding Wagner left the respondent with "no choice but to move for or accept a mistrial." Ibid. But traditional waiver concepts have little relevance where the defendant must determine whether or not to request or consent to a mistrial in response to judicial or prosecutorial error. See United States v. Jorn, 400 U.S. at 484-485, n. 11, 91 S.Ct. at 556-557, 27 L.Ed.2d at 556; United States v. Jamison, 164 U.S.App.D.C. 300, 305-306, 505 F.2d 407, 412-413. In such circumstances, the defendant generally does face a "Hobson's choice" between giving up his first jury and continuing a trial tainted by prejudicial judicial or prosecutorial error. The important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of such error.11
19
The Court of Appeals' determination that the manifest necessity standard should be applied to a mistrial motion when the defendant has "no choice" but to request a mistrial undermines rather than furthers the protections of the Double Jeopardy Clause. In the event of severely prejudicial error a defendant might well consider an immediate new trial a preferable alternative to the prospect of a probable conviction followed by an appeal, a reversal of the conviction, and a later retrial. Yet the Court of Appeals' decision, in effect, instructs trial judges to reject the most meritorious mistrial motion in the absence of manifest necessity and to require, instead, that the trial proceed to its conclusion despite a legitimate claim of seriously prejudicial error.12 For if a trial judge follows that course, the Double Jeopardy Clause will present no obstacle to a retrial if the conviction is set aside by the trial judge or reversed on appeal. United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300.13
20
The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where "bad-faith conduct by judge or prosecutor," United States v. Jorn, supra, 400 U.S., at 485, 91 S.Ct., at 557, threatens the "(h)arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict" the defendant. Downum v. United States, 372 U.S. at 736, 83 S.Ct., at 1034, 10 L.Ed.2d, at 102. See Gori v. United States, 367 U.S., at 369, 81 S.Ct., at 1526, 6 L.Ed.2d 905; United States v. Jorn, supra, 400 U.S., at 489, 91 S.Ct. at 559, 27 L.Ed.2d at 558 (Stewart, J., dissenting); cf. Wade v. Hunter, 336 U.S. at 692, 69 S.Ct., at 838, 93 L.Ed., at 979.
21
But here the trial judge's banishment of Wagner from the proceedings was not done in bad faith in order to goad the respondent into requesting a mistrial or to prejudice his prospects for an acquittal. As the Court of Appeals noted, Wagner "was guilty of improper conduct" during his opening statement which "may have justified disciplinary action," 492 F.2d, at 60-61. Even accepting the appellate court's conclusion that the trial judge overreacted in expelling Wagner from the courtroom, Ibid., the court did not suggest, the respondent has not contended, and the record does not show that the judge's action was motivated by bad faith or undertaken to harass or prejudice the respondent.14
22
Under these circumstances we hold that the Court of Appeals erred in finding that the retrial violated the respondent's constitutional right not to be twice put in jeopardy. Accordingly, the judgment before us is reversed, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion.
23
It is so ordered.
24
Judgment reversed.
25
Mr. Justice STEVENS took no part in the consideration or decision of this case.
26
Mr. Chief Justice BURGER, concurring.
27
I concur fully with Mr. Justice STEWART's opinion for the Court. I add an observation only to emphasize what is plainly implicit in the opinion, i. e., a trial judge's plenary control of the conduct of counsel particularly in relation to addressing the jury.
28
An opening statement has a narrow purpose and scope. It is to state what evidence will be presented, to make it easier for the jurors to understand what is to follow, and to relate parts of the evidence and testimony to the whole; it is not an occasion for argument. To make statements which will not or cannot be supported by proof is, if it relates to significant elements of the case, professional misconduct. Moreover, it is fundamentally unfair to an opposing party to allow an attorney, with the standing and prestige inherent in being an officer of the court, to present to the jury statements not susceptible of proof but intended to influence the jury in reaching a verdict.
29
A trial judge is under a duty, in order to protect the integrity of the trial, to take prompt and affirmative action to stop such professional misconduct. Here the misconduct of the attorney, Wagner, was not only unprofessional Per se but contemptuous in that he defied the court's explicit order.
30
Far from "overreacting" to the misconduct of Wagner, in my view, the trial judge exercised great restraint in not citing Wagner for contempt then and there.*
31
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL concurs, dissenting.
32
The Court's premise is that the mistrial was directed at respondent's request or with his consent. I agree with the Court of Appeals that, for purposes of double jeopardy analysis, it was not, but rather that "the trial judge's response to the conduct of defense counsel deprived Dinitz's motion for a mistrial of its necessary consensual character." 492 F.2d 53, 59 n. 9 (1974). Therefore the rule that "a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution," United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) (plurality opinion), is inapplicable. Accordingly, I agree that respondent's motion, for the reasons expressed in the panel and en banc opinions of the Court of Appeals, did not remove the bar of double jeopardy to reprosecution in "the extraordinary circumstances of the present case, in which judicial error alone, rather than (respondent's) exercise of any option to stop or go forward, took away his 'valued right to have his trial completed by a particular tribunal.' " 504 F.2d 854-855 (1974). I also agree with the holding in the panel opinion that "(i)n view of . . . (the) alternatives which would not affect the ability to continue the trial, we cannot say that there was manifest necessity for the trial judge's actions." 492 F.2d, at 61. I would affirm.
1
Wagner informed the trial judge that he would try the facts of the respondent's case and Baldwin would make arguments of law.
2
Shortly after the arrest of the respondent, someone had telephoned him and said that for $2,000 he would make sure that the case never came to court. The respondent and FBI agents set up a trap to catch the caller, but the unidentified man got away with the "bait envelope."
During the discussion of the incident at the bench, Wagner claimed that, if the description of the man fit Cox, the credibility of the chief Government witness would be placed in doubt. The judge then ordered that the FBI agents be called to determine if the person taking the envelope resembled Cox. When they arrived, Wagner admitted that he had never seen or talked to the agents. The FBI agents later informed the judge In camera that the person who picked up the "bait envelope" containing the fake money bore no resemblance to Agent Cox.
3
After the judge excluded Wagner, he examined Meldon about his role in the preparation of the opening statement. Meldon responded that he had conveyed information about the extortion attempt to Wagner but had not represented that Cox was involved and had not worked with Wagner on the opening statement.
4
The respondent was a third-year law student at the time of his arrest.
5
The Court of Appeals dealt only with the respondent's double jeopardy claim and did not reach any of his other claims of error. 492 F.2d 53, at 54.
6
The Court of Appeals held that the trial judge failed to consider adequate alternatives available to deal with Wagner's conduct. Among the alternatives the court suggested were a warning that he would be cited for contempt if the practices continued, an actual citation for contempt, filing of a complaint with the grievance committee of the state bar, and taking action to prevent him from practicing again in the United States District Court for the Northern District of Florida. Id., at 60-61.
7
The court's en banc Per curiam opinion employed reasoning similar to that of the panel majority. See n. 10, Infra.
8
The Double Jeopardy Clause of the Fifth Amendment was held to be applicable to the States through the Fourteenth Amendment in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707.
9
See United States v. Tateo, 377 U.S. 463, 467, 84 S.Ct. 1587, 1590, 12 L.Ed.2d 448, 452: "If Tateo had Requested a mistrial on the basis of the judge's comments, there would be no doubt that if he had been successful, the Government would not have been barred from retrying him." (Emphasis in original.)
10
The brief Per curiam opinion of the Court of Appeals en banc concluded:
"In order for a defendant's motion for a mistrial to constitute a bar to a later plea of double jeopardy, some choice to proceed or start over must remain with the defendant at the time his motion is made. The dicta from United States v. Jorn . . . does not encompass the extraordinary circumstances of the present case, in which judicial error alone, rather than defendant's exercise of any option to stop or go forward, took away his 'valued right to have his trial completed by a particular tribunal.' " 504 F.2d 854-855 (footnote omitted).
11
The respondent characterizes a defendant's mistrial motion as a waiver of "his right not to be placed twice in jeopardy" and argues that to be valid the waiver must meet the knowing, intelligent, and voluntary standard set forth in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1692, 82 L.Ed. 1461. This approach erroneously treats the defendant's interest in going forward before the first jury as a constitutional right comparable to the right to counsel. It fails to recognize that the protection against the burden of multiple prosecutions underlying the constitutional prohibition against double jeopardy may be served by a mistrial declaration and the concomitant relinquishment of the opportunity to obtain a verdict from the first jury. This Court has implicitly rejected the contention that the permissibility of a retrial following a mistrial or a reversal of a conviction on appeal depends on a knowing, voluntary, and intelligent waiver of a constitutional right. See Breed v. Jones, 421 U.S. 519, 534, 95 S.Ct. 1779, 1788, 44 L.Ed.2d 346, 358; United States v. Wilson, 420 U.S. 332, 343-344, n. 11, 95 S.Ct. 1013, 1021-1023, 43 L.Ed.2d 232, 242-243; United States v. Jorn, 400 U.S. 470, 484-485, n. 11, 91 S.Ct. 547, 556-557, 27 L.Ed.2d 543, 556-557 (plurality opinion); United States v. Tateo, 377 U.S., at 466, 84 S.Ct., at 1589, 12 L.Ed.2d, at 450.
12
As the dissenting judge on the original Court of Appeals panel noted, the court's decision would "give rise to much reluctance in granting mistrials" because "(t)he trial courts will understand that society will be better served by completing a trial, even after clear error has arisen and the defendant seeks the mistrial, than the alternative of a mistrial and the possible bar of double jeopardy based on the error." 492 F.2d, at 63 (Bell, J., dissenting).
13
This Court's decisions permitting retrials after convictions have been set aside at the defendant's behest clearly indicate "that the defendant's double jeopardy interests, however defined, do not go so far as to compel society to so mobilize its decisionmaking resources that it will be prepared to assure the defendant a single proceeding free from harmful governmental or judicial error." United States v. Jorn, supra, 400 U.S. at 484, 91 S.Ct. at 556, 27 L.Ed.2d at 556. See United States v. Tateo, supra, 377 U.S. at 466, 84 S.Ct. at 1589, 12 L.Ed.2d at 450; cf. Wade v. Hunter, 336 U.S. 684, at 688-689, 69 S.Ct. 834, at 836-837, 93 L.Ed. 974, at 977-978.
14
The record indicates that the judge expected the trial to continue with Meldon representing the respondent in Wagner's absence. The judge knew that Meldon was an attorney of record who had represented the respondent from the outset of the case. It was not until after Wagner was excluded that the trial judge learned that the respondent would not permit Meldon to represent him.
*
A bar association conscious of its public obligations would Sua sponte call to account an attorney guilty of the misconduct shown here. See Report of American Bar Association Special Committee on Evaluation of Disciplinary Enforcement, Problems and Recommendations in Disciplinary Enforcement 60-66 (Final Draft 1970); American Bar Association Project on Standards for Criminal Justice, Administration of Criminal Justice The Defense Function, § 7.4, p. 131 (1974 Compilation).
| 01
|
424 U.S. 636
96 S.Ct. 1083
47 L.Ed.2d 296
EAST CARROLL PARISH SCHOOL BOARD and East Carroll Parish Police Jury, Petitioners,v.Stewart MARSHALL.
No. 73-861.
March 8, 1976.
PER CURIAM.
1
The sole issue raised by this case is how compliance with the one-man, one-vote principle should be achieved in a parish (county) that is admittedly malapportioned.
2
Plaintiff Zimmer, a white resident of East Carroll Parish, La., brought suit in 1968 alleging that population disparities among the wards of the parish had unconstitutionally denied him the right to cast an effective vote in elections for members of the police jury1 and the school board. See Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968). After a hearing the District Court agreed that the wards were unevenly apportioned and adopted a reapportionment plan suggested by the East Carroll police jury calling for the at-large election of members of both the police jury and the school board.2 The 1969 and 1970 elections were held under this plan.
3
The proceedings were renewed in 1971 after the District Court, apparently Sua sponte, instructed the East Carroll police jury and school board to file reapportionment plans revised in accordance with the 1970 census. In response, the jury and board resubmitted the at-large plan. Respondent Marshall was permitted to intervene on behalf of himself and all other black voters in East Carroll. Following a hearing the District Court again approved the multimember arrangement. The intervenor appealed,3 contending that at-large elections would tend to dilute the black vote in violation of the Fourteenth and Fifteenth Amendments and the Voting Rights Act of 1965.
4
Over a dissent, a panel of the Court of Appeals affirmed,4 but on rehearing en banc, the court reversed.5 It found clearly erroneous the District Court's ruling that at-large elections would not diminish the black voting strength of East Carroll Parish. Relying upon White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), it seemingly held that multimember districts were unconstitutional, unless their use would afford a minority greater opportunity for political participation, or unless the use of single-member districts would infringe protected rights.
5
We granted certiorari, 422 U.S. 1055, 95 S.Ct. 2677, 45 L.Ed.2d 707 (1975), and now affirm the judgment below, but without approval of the constitutional views expressed by the Court of Appeals.6 See Ashwander v. TVA, 297 U.S. 288, 346-347, 56 S.Ct. 466, 482, 80 L.Ed. 688, 710 (1936) (Brandeis, J., concurring).
6
The District Court, in adopting the multimember, at-large reapportionment plan, was silent as to the relative merits of a single-member arrangement. And the Court of Appeals, inexplicably in our view, declined to consider whether the District Court erred under Connor v. Johnson, 402 U.S. 690, 91 S.Ct. 1760, 29 L.Ed.2d 268 (1971), in endorsing a multimember plan, resting its decision instead upon constitutional grounds. We have frequently reaffirmed the rule that when United States district courts are put to the task of fashioning reapportionment plans to supplant concededly invalid state legislation, single-member districts are to be preferred absent unusual circumstances. Chapman v. Meier, 420 U.S. 1, 17-19, 95 S.Ct. 751, 761-762, 42 L.Ed.2d 766, 778-780 (1975); Mahan v. Howell, 410 U.S. 315, 333, 93 S.Ct. 979, 989, 35 L.Ed.2d 320, 335 (1973); Connor v. Williams, 404 U.S. 549, 551, 92 S.Ct. 656, 658, 30 L.Ed.2d 704, 707 (1972); Connor v. Johnson, supra, 402 U.S. at 692, 91 S.Ct. at 1762, 29 L.Ed.2d at 271. As the en banc opinion of the Court of Appeals amply demonstrates, no special circumstances here dictate the use of multimember districts. Thus, we hold that in shaping remedial relief the District Court abused its discretion in not initially ordering a single-member reapportionment plan.
7
On this basis, the judgment is Affirmed.
8
Judgment affirmed.
9
Mr. Chief Justice BURGER, concurring.
10
I consider it unnecessary to reach the question discussed ante, at 638-639, n. 6. It was, as the Court observes in n. 6, "not raised by the petitioners, nor did respondent file a cross-petition." The scope of § 5 of the Voting Rights Act is an important matter and I would not undertake to express any view on what the Court discusses by way of dicta in n. 6.
1
In Louisiana, the police jury is the governing body of the parish. Its authority includes construction and repair of roads, levying taxes to defray parish expenses, providing for the public health, and performing other duties related to public health and welfare. La.Rev.Stat.Ann. § 33:1236 (1950 and Supp. 1975).
2
Prior to 1968, Louisiana law prohibited at-large elections of members of police juries and school boards. In July 1968, the Governor of Louisiana approved enabling legislation permitting the at-large election of parish police juries and school boards. La. Laws 1968, Act No. 445, codified at La.Rev.Stat.Ann. §§ 33:1221, 33:1224 (Supp. 1975); La. Laws 1968, Act No. 561, codified at La.Rev.Stat.Ann. §§ 17:71.1-17:71.6 (Supp. 1975).
Both Acts were submitted to the United States Attorney General pursuant to § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U.S.C. § 1973c, and both were rejected because of their discriminatory effect on Negro voters. See letters, June 26, 1969, and Sept. 10, 1969, from Jerris Leonard, Assistant Attorney General, Civil Rights Division, to Jack P. F. Gremillion, Attorney General of Louisiana. Indeed, East Carroll Parish was cited as exemplifying the dilution in black ballot strength that at-large voting may cause. Letter of Sept. 10, 1969, Supra.
3
The original plaintiff, Zimmer, was allowed to withdraw from the case.
4
Zimmer v. McKeithen, 467 F.2d 1381 (CA5 1972).
During pendency of the appeal in the court below, the District Court purported to withdraw its order approving the at-large plan and to substitute in its stead a complex redistricting plan submitted by intervenor Marshall. The Court of Appeals vacated the order on the ground that when the appeal was filed, the District Court lost jurisdiction over the case. Id., at 1382.
5
Zimmer v. McKeithen, 485 F.2d 1297 (CA5 1973).
6
The Government has filed an Amicus brief, in which it argues that the preclearance procedures of § 5 of the Voting Rights Act of 1965, must be complied with prior to adoption by a federal district court of a reapportionment plan submitted to it on behalf of a local legislative body that is covered by the Act. This issue was not raised by the petitioners, nor did respondent file a cross-petition. In any event, we agree with the Court of Appeals, Zimmer v. McKeithen, 467 F.2d, at 1383; Zimmer v. McKeithen, 485 F.2d, at 1302 n. 9, that court-ordered plans resulting from equitable jurisdiction over adversary proceedings are not controlled by § 5. Had the East Carroll police jury reapportioned itself on its own authority, clearance under § 5 of the Voting Rights Act would clearly have been required. Connor v. Waller, 421 U.S. 656, 95 S.Ct. 2003, 44 L.Ed.2d 486 (1975). However, in submitting the plan to the District Court, the jury did not purport to reapportion itself in accordance with the 1968 enabling legislation, see n. 2, Supra, and statutes cited therein, which permitted police juries and school boards to adopt at-large elections. App., 56. Moreover, since the Louisiana enabling legislation was opposed by the Attorney General of the United States under § 5 of the Voting Rights Act, the jury did not have the authority to reapportion itself. See n. 2, Supra ; Tr. of Oral Arg. 13-14, 31-32, 43-44. Since the reapportionment scheme was submitted and adopted pursuant to court order, the preclearance procedures of § 5 do not apply. Connor v. Johnson, 402 U.S. 690, 691, 91 S.Ct. 1760, 1761, 29 L.Ed.2d 268, 270 (1971).
| 12
|
47 L.Ed.2d 278
96 S.Ct. 1062
424 U.S. 614
COMMISSIONER OF INTERNAL REVENUE, Petitioner,v.Samuel SHAPIRO et ux.
No. 74-744.
Argued Nov. 5, 1975.
Decided March 8, 1976.
Syllabus
Finding that the imminent departure of respondent taxpayer Samuel Shapiro (hereinafter respondent) for Israel under an extradition order to stand trial there on criminal charges jeopardized the collection of income taxes claimed owed by respondent for 1970 and 1971, petitioner Commissioner of Internal Revenue made a jeopardy assessment, filed liens against respondent, and served notices of levy on various banks in which respondent had accounts or safe-deposit boxes. Respondent then brought suit, claiming that he owed no taxes, that he could not litigate the issue while jailed in Israel, and that he would be in jail there unless he could use the levied bank accounts as bail money, and seeking an order enjoining his extradition until he could litigate whether he owed taxes or directing the Internal Revenue Service to lift the levy notices. After the Commissioner, in response to interrogatories, furnished deficiency notices disclosing that the claimed bases for the assessments were for 1970 unexplained cash bank deposits and for 1971 income derived from alleged narcotics sales, the District Court dismissed the complaint on the ground, inter alia, that the Anti-Injunction Act (Act), § 7421(a) of the Internal Revenue Code, which prohibits suits for the purpose of restraining the assessment or collection of taxes, withdrew its jurisdiction to order levies lifted. The Court of Appeals disagreed and remanded for further proceedings, holding that an unresolved fact issue existed as to whether the case fell within the exception to the Act formulated in Enochs v. Williams Packing Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292, 296, whereby an injunction may be obtained against the collection of any tax if (1) it is "clear that under no circumstances could the Government ultimately prevail" and (2) "equity jurisdiction" otherwise exists in that the taxpayer shows that he would otherwise suffer irreparable injury. The court found that respondent had satisfied the second test because he would be incarcerated until his bank accounts could be used for bail money, and that as to the first test the District Court should not have dismissed the complaint without a further inquiry into whether upon viewing the law and the facts most favorably to the Commissioner there was no "factual foundation" for his claim that respondent was a tax-delinquent narcotics dealer during 1971 and thus no basis for the assessment. Held: The Act did not require dismissal of respondent's complaint. Pp. 624-633.
(a) Whether the Commissioner has a chance of ultimately prevailing for purposes of the Williams Packing exception is a question to be resolved on the basis of the information available to the Commissioner at the time of the suit. Hence, the Court of Appeals did not err in declining to specify the precise manner in which the relevant facts would be revealed on remand, since whether the Commissioner discloses such facts because he has the technical burden of proof or discloses them in response to a discovery motion or interrogatories, under Williams Packing the relevant facts are those in the Commissioner's possession and must somehow be obtained from him. Pp. 624-628.
(b) The Act's primary purpose is not interfered with by not requiring the taxpayer to plead specific facts which, if true, would establish that the Commissioner cannot ultimately prevail, since the collection of taxes will not be restrained unless the District Court is persuaded from the evidence eventually adduced that the Commissioner will under no circumstances prevail. Moreover, the Act's "collateral objective" to protect the collector from tax litigation outside the statutory scheme is not undercut, since the taxpayer himself must still plead and prove facts establishing that his remedy in the Tax Court or in a refund suit is inadequate to repair any injury caused by an erroneous assessment or collection, in which case the Commissioner is required simply to litigate the question whether his assessment has a basis in fact. Pp. 628-629.
(c) While to permit the Commissioner to seize and hold property on the mere good-faith allegation of an unpaid tax would raise serious due process problems in cases like this one, where it is asserted that seizure of assets pursuant to a jeopardy assessment is causing irreparable injury, the case may be resolved, under the Williams Packing exception, solely by reference to the Act, whose required standard as to affording the taxpayer an opportunity for a hearing and as to the evidence necessary to show that an assessment has a basis in fact is at least as favorable to the taxpayer as that required by the Constitution. Pp. 629-633.
162 U.S.App.D.C. 391, 499 F.2d 527, affirmed.
MyroC. Baum, Washington, D. C., for petitioner.
Nathan Lewin, Washington, D. C., for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
This case presents questions relating to the scope of the Internal Revenue Code's Anti-Injunction Act, 26 U.S.C. § 7421(a),1 in the context of a summary seizure of a taxpayer's assets pursuant to a jeopardy assessment. §§ 6861, 6331, 6213.
2
* Normally, the Internal Revenue Service may not "assess" a tax or collect it, by levying on or otherwise seizing a taxpayer's assets, until the taxpayer has had an opportunity to exhaust his administrative remedies, which include an opportunity to litigate his tax liability fully in the Tax Court, 26 U.S.C. §§ 6212, 6213;2 and if the Internal Revenue Service does attempt to collect the tax by levy or otherwise, before such exhaustion of remedies in violation of § 6213, the collection is not protected by the Anti-Injunction Act and may be restrained by a United States district court at the instance of the taxpayer. §§ 6213(a), 7421(a). The rule is otherwise when the Commissioner proceeds under § 6861 and finds that collection of a tax due and owing from a taxpayer will be "jeopardized by delay" in collection. In such a case, the Commissioner may immediately assess the tax and, upon "notice and demand . . . for payment thereof" followed by the taxpayer's "failure or refusal to pay such tax," may immediately levy on the taxpayer's assets. §§ 6861, 6331.3 When the Commissioner follows this procedure, the Anti-Injunction Act applies in full force and "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person." § 7421(a).
3
In this case, the Commissioner found, on December 6, 1973, that the imminent departure of respondent Samuel Shapiro (hereinafter Shapiro or respondent) for Israel and the probable departure with him of the assets in his New York bank accounts and safe-deposit boxes jeopardized the collection of income taxes claimed to be due and owing by him for the tax years 1970 and 1971. Accordingly, he assessed income taxes against respondent in the amount of $92,726.41 for the tax years 1970 and 1971. On the same day, he filed liens against respondent and served notices of levy upon various banks in New York State in which respondent maintained accounts or had safe-deposit boxes. These notices of levy effectively froze the money in the accounts totaling about $35,000 and the contents of the safe-deposit boxes.
4
At that time respondent Shaprio was under a final order of extradition to Israel, for trial on criminal fraud charges, issued by the United States District Court for the Southern District of New York, and was scheduled to leave for Israel on December 9, 1973 three days later. That date had been set as a result of an agreement between Shapiro and the State of Israel pursuant to which he had withdrawn a petition for writ of certiorari seeking review by this Court of the affirmance of the extradition order by the Court of Appeals for the Second Circuit, Shapiro v. Ferrandina, 478 F.2d 894 (1973), and the State of Israel had agreed to grant him a speedy trial when he arrived in Israel and to release him on $60,000 bail pending such trial.
5
Upon learning of the notices of levy, respondent obtained the consent of the State of Israel to postpone his extradition date until December 16, 1973; and then on December 13, 1973, he initiated the instant lawsuit. Claiming that he owed no taxes; that he could not litigate the issue with the Internal Revenue Service while in jail in Israel; that he would be in jail in Israel, unless he could use the frozen $35,000 as bail money; and that the Internal Revenue Service had deliberately and in bad faith waited until December 6, 1973, before filing its notices of levy precisely in order to place him in this predicament, respondent requested in his complaint an order enjoining his extradition until he had an opportunity to litigate the question whether he owed the Internal Revenue Service any taxes or, in the alternative, an order directing the Internal Revenue Service to lift the notices of levy.
6
Over the Government's claim that the court lacked jurisdiction over the case by reason of the Anti-Injunction Act and because the timing of an extradition is a matter within the exclusive jurisdiction of the Executive Branch, the District Court granted a temporary restraining order against extradition on December 13, 1973, and set argument on the motion for a preliminary injunction for December 19, 1973, later postponed until December 21, 1973. Interrogatories were then served on the Government inquiring, Inter alia, into the basis for the assessments. In partial, expedited, response to the interrogatories, the Government stated on December 19, 1973, that respondent was not yet entitled to know the basis for the assessments. Then on December 21, 1973, the Commissioner served counsel for respondent with supplements to the responses to the interrogatories to which were appended notices of deficiency, see 26 U.S.C. § 6212. The notices of deficiency disclosed that the 1970 assessment was based on unexplained cash bank deposits of $18,000 and that the 1971 assessment was based on income in the amount of $137,280 derived from respondent's alleged activities as a dealer in narcotics.4 On that date, the District Court dissolved the temporary restraining order and granted the Commissioner's motion to dismiss the complaint. The court concluded that the Anti-Injunction Act withdrew its jurisdiction to order the levies to be lifted, and that the timing of the extradition, validly ordered by the United States District Court for the Southern District of New York under a treaty with Israel, was a matter within the exclusive jurisdiction of the State Department.
7
On December 26, 1973, after respondent had filed a notice of appeal, the Court of Appeals for the District of Columbia Circuit stayed the extradition pending resolution of that appeal.5 The stay was lifted by the Court of Appeals on February 12, 1974. On May 15, 1974, the Court of Appeals affirmed the District Court's holding that it had no jurisdiction over the extradition order and respondent was extradited several days thereafter.6 The Court of Appeals, however, disagreed with the District Court that it had no jurisdiction to consider the claim for relief from the levies and remanded for further proceedings. Shapiro v. Secretary of State, 162 U.S.App.D.C. 391, 499 F.2d 527 (1974).
8
The Court of Appeals held that an unresolved fact issue existed on the question whether this case falls within the narrow exception to the Anti-Injunction Act formulated in this Court's decision in Enochs v. Williams Packing Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962).7 As the court understood the Williams Packing decision, the Anti-Injunction Act does not deprive the District Court of jurisdiction to restrain collection of a tax, if (1) the taxpayer shows "extraordinary circumstances causing irreparable harm" for which he has no "adequate remedy at law," and (2) it is apparent that, under the most liberal view of the law and the facts, the United States " 'cannot establish its claim.' " 162 U.S.App.D.C., at 396, 499 F.2d, at 532. The court found that Shapiro had satisfied the first test: the money frozen in his New York banks was to be used as bail money in Israel, and without it Shapiro would be incarcerated. Accordingly, his remedy at law I. e., his ability later to contest the validity of the assessment in the Tax Court or in a suit for a refund was inadequate. As for the second test, the court concluded that the District Court should not have dismissed the complaint without further inquiry into the factual foundation for the jeopardy assessment and that further proceedings were necessary before finally determining whether upon viewing the law and the facts most favorably to the Government there was "no factual foundation" for the Government's claim that Shapiro was a tax-delinquent narcotics dealer during 1971 and thus no basis for the assessment. Accordingly, the court remanded in order to "allow the District Court . . . to develop a record" and to determine in light of it whether the asserted deficiency was "so arbitrary and excessive"8 as to be an exaction in the guise of a tax.9 Id., at 399, 499 F.2d, at 535.
II
9
The Government argues that the order of the Court of Appeals was erroneous because it placed a burden on the Government to prove a factual basis for its assessment instead of requiring the taxpayer to prove that "under no circumstances could the Government ultimately prevail." Enochs v. Williams Packing Co., 370 U.S. at 7, 82 S.Ct. at 1129, 8 L.Ed.2d at 296. The Government argues further that since the taxpayer had and still has wholly failed to prove or even plead specific facts establishing that the Government can under no circumstances prevail, the Court of Appeals should have affirmed the District Court's initial dismissal and its decision to the contrary should be reversed.
10
Respondent argues on the other hand that unless the Government has some obligation to disclose the factual basis for its assessments, either in response to a discovery request or on direct order of the court, the exception to the Anti-Injunction Act provided in Enochs v. Williams Packing Co., supra, is meaningless. The taxpayer can never know, unless the Government tells him, what the basis for the assessment is and thus can never show that the Government will certainly be unable to prevail. We agree with Shapiro.
11
In Enochs v. Williams Packing Co., supra, the Court held that an injunction may be obtained against the collection of any tax if (1) it is "clear that under no circumstances could the government ultimately prevail" and (2) "equity jurisdiction" otherwise exists, i. e., The taxpayer shows that he would otherwise suffer irreparable injury. 370 U.S. at 7, 82 S.Ct. at 1129, 8 L.Ed.2d at 296. The Court also said that "the question of whether the Government has a chance of ultimately prevailing is to be determined on the basis of the information available to it at the time of the suit," Ibid. The Government's claim that the Court of Appeals placed on it the burden of justifying its assessment and thereby erroneously applied the Williams Packing rule is wrong. Williams Packing did not hold that the taxpayer's burden of persuading the District Court that the Government will under no circumstances prevail must be accomplished without any disclosure of information by the Government. It says instead that the question will be resolved on the basis of the information available to the Government at the time of the suit. Since it is absolutely impossible to determine what information is available to the Government at the time of the suit, unless the Government discloses such information in the District Court pursuant to appropriate procedures, it is obvious that the Court in Williams Packing intended some disclosure by the Government. Although the Government casts its argument in terms of "burden of proof," the Court of Appeals did not place any technical burden of producing evidence on the Government and it would appear to matter little whether the Government discloses such information because it is said to have the burden of producing evidence on the question or whether it discloses such evidence by responding to a discovery motion made or interrogatories served by the taxpayer in which case the burden of producing evidence may be said to have rested with the taxpayer. Thus the Court of Appeals cannot be said to have erred in declining to specify the precise manner in which the relevant facts would be revealed on remand. In either event, under Williams Packing the relevant facts are those in the Government's possession and they must somehow be obtainable from the Government.10
12
The Government argues, however, that unless the taxpayer is required to plead specific facts which, if true, would establish that the Government cannot ultimately prevail, then the Anti-Injunction Act is eviscerated. Any taxpayer can allege in conclusory fashion that he owes no tax and, therefore, under the Court of Appeals' decision, any taxpayer may in effect force the Government to justify its assessment in a United States District Court thereby interfering with a "collateral objective" of the Act, Enochs v. Williams Packing Co., supra, 370 U.S., at 7-8, 82 S.Ct., at 1129-1130, 8 L.Ed.2d, at 296-297, i. e., to protect the collector from tax litigation outside of the statutory scheme provided by Congress. As the Government's argument itself implicitly concedes, the primary purpose of the Act is not interfered with, since the collection of taxes will not be restrained unless the District Court is persuaded from the evidence eventually adduced that the Government will under no circumstances prevail. We do not understand the Court of Appeals to have departed from this standard enunciated in Williams Packing, or to have removed from the taxpayer the ultimate burden, which that decision appears to place on him, of persuading the District Court that it has been met. Moreover, the "collateral objective" of the Act is undercut no more than was contemplated by Williams Packing. The taxpayer himself must still plead and prove facts establishing that his remedy in the Tax Court or in a refund suit is inadequate to repair any injury that might be caused by an erroneous assessment or collection of an asserted tax liability. Even then, the Government is not required to litigate fully the taxpayer's liability, outside the statutory scheme provided by Congress. It is required simply to litigate the question whether its assessment has a basis in fact.
13
Our conclusion that the Court of Appeals correctly reversed the judgment of the District Court and remanded for further proceedings is fortified by the fact that construing the Act to permit the Government to seize and hold property on the mere good-faith allegation of an unpaid tax would raise serious constitutional problems in cases, such as this one, where it is asserted that seizure of assets pursuant to a jeopardy assessment is causing irreparable injury. This Court has recently and repeatedly held that, at least where irreparable injury may result from a deprivation of property pending final adjudication of the rights of the parties, the Due Process Clause requires that the party whose property is taken be given an opportunity for some kind of predeprivation or prompt post-deprivation hearing at which some showing of the probable validity of the deprivation must be made.11 Here the Government seized respondent's property and contends that it has absolutely no obligation to prove that the seizure has any basis in fact no matter how severe or irreparable the injury to the taxpayer and no matter how inadequate his eventual remedy in the Tax Court.12
14
It is true that in Phillips v. Commissioner, supra, is Court sustained against constitutional challenge the statutory scheme created by Congress for the litigation of tax disputes and in so doing referred both to the jeopardy assessment provisions and the Anti-Injunction Act, Id., 283 U.S. at 596 n. 6, 51 S.Ct. at 611, 75 L.Ed. at 1296. However, the Phillips Case itself did not involve a jeopardy assessment and the taxpayer's assets could not have been taken or frozen in that case until he had either had, or waived his right to, a full and final adjudication of his tax liability before the Tax Court (then the Board of Tax Appeals). The taxpayer's claim in that case was simply that a statutory scheme which would permit the tax to be assessed and collected prior to any Judicial determination of his liability by way of a refund suit or review of the Board of Tax Appeals' decision was unconstitutional.13 Thus, insofar as Phillips may be said to have sustained the constitutionality of the Anti-Injunction Act, as applied to a jeopardy assessment and consequent levy on a taxpayer's assets without prompt opportunity for final resolution of the question of his liability by the Tax Court, it did so only by way of dicta. The dicta were carefully expressed. The Court said:
15
"Where, as here, adequate opportunity is afforded for a later judicial determination of the legal rights, summary proceedings to secure prompt performance of pecuniary obligations to the government have been consistently sustained.
16
"Where only property rights are involved, mere postponement of the judicial enquiry is not a denial of due process, if the opportunity given for the ultimate judicial determination of the liability is adequate. . . ." Id., at 595, 596-597, 51 S.Ct., at 611. (Emphasis supplied.)
17
Accordingly, neither the holding nor the dicta in Phillips support the proposition that the tax collector may constitutionally seize a taxpayer's assets without showing some basis for the seizure under circumstances in which the seizure will injury the taxpayer in a way that cannot be adequately remedied by a Tax Court judgment in his favor. Instead it would appear to be entirely consistent with our more recent holdings.
18
In any event we are satisfied that under the exception to the Anti-Injunction Act described in the Williams Packing case this case may be resolved by reference to that Act alone. At the time the District Court dismissed the complaint, the Government had done little more than assert that respondent owed taxes in an amount greater than the value of the property levied it had alleged that respondent had made an unexplained bank deposit of $18,000 in 1970 and, in a wholly conclusory fashion, that he had received $137,280 in income from selling hashish.14 Before the taxpayer had an opportunity to inquire into the factual basis for this conclusory allegation, it was not possible to tell whether the Government had any chance of ultimately prevailing. Accordingly, the Court of Appeals properly concluded that the Anti-Injunction Act did not require dismissal of the taxpayer's complaint.
19
Moreover, we are satisfied that the standard required by the Anti-Injunction Act is at least as favorable to the taxpayer as that required by the Constitution; and that the standard to be applied by the District Court will therefore not be affected by the resolution of the constitutional issue. The Government may defeat a claim by the taxpayer that its assessment has no basis in fact and therefore render applicable the Anti-Injunction Act without resort to oral testimony and cross-examination. Affidavits are sufficient so long as they disclose basic facts from which it appears that the Government may prevail. The Constitution does not invariably require more, Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and we would not hold that it does where collection of the revenues is involved.
20
Finally, it seems apparent that if the facts do not even disclose "probable cause," North Georgia Finishing Inc. v. Di-Chem, Inc., 419 U.S. 601, 607, 95 S.Ct. 719, 722, 42 L.Ed.2d 751, 757 (1975); Gerstein v. Pugh, supra, to support the assessment, the Government would certainly be unable to prevail at trial. Thus the Williams Packing standard is consistent with the applicable constitutional standard.
21
We point out also that a preliminary issue would appear to require resolution on remand. Irreparable injury was, of course, quite properly found by the Court of Appeals. At the time of that court's decision, it appeared that respondent Shapiro had been deprived by the levies of the money needed to post bail in Israel and thereby avoid incarceration. However, it would appear that the basis for the Court of Appeals' finding of irreparable injury has since disappeared. Thus, the District Court's preliminary task on remand will be to determine whether this is so and, if so, whether respondent can establish some other sort of irreparable injury flowing from the levies.15
The judgment of the Court of Appeals is
22
Affirmed.
23
Mr. Justice STEVENS took no part in the consideration or decision of this case.
24
Mr. Justice BLACKMUN, with whom Mr. Justice REHNQUIST joins, dissenting.
25
I would have thought that when the Commissioner of Internal Revenue, on December 21, 1973, provided respondent Samuel Shapiro with supplements to the responses to the interrogatories, at that time, if not before, he surely satisfied and met all that was required to bring the Anti-Injunction Act, 26 U.S.C. § 7421(a), and the principle of Enochs v. Williams Packing Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962), into full and effective application. It would follow that the District Court's dismissal of the complaint at that point was entirely proper and should have been affirmed.
26
Given, however, the result the Court very recently reached in Laing v. United States, 423 U.S. 161, 96 S.Ct. 473, 46 L.Ed.2d 416 (1976), the decision today, shored up by what seem to me to be the inapposite cases cited ante, at 629-630, n. 11, is not unexpected. I am far from certain that the Cot is correct, and I am confused by the Court's failure even to cite Bob Jones University v. Simon, 416 U.S. 725, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974), and Commissioner v. "Americans United," Inc., 416 U.S. 752, 94 S.Ct. 2053, 40 L.Ed.2d 518 (1974), two cases heavily relied upon by the Commissioner here and, I think, of some significance. I observe only that, with Laing And the present decision, the Court now has traveled a long way down the road to the emasculation of the Anti-Injunction Act, and down the companion pathway that leads to the blunting of the strict requirements of Williams Packing and, now, of Mr. Justice Brandeis' opinion for a unanimous Court in Phillips v. Commissioner, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed.2d 1289 (1931). The Court has taken this Laing-Shapiro tack, I suspect, as a response to what it deems to be administrative excesses with respect to suspected narcotics operatives who also are, or should be, taxpayers. Whether all this will prove to be stultifying or embarrassing to the collection of the revenues in a more temperate and untroubled time, I do not know. Perhaps, up to a point, the Congress will come to the rescue.
27
The Court, Ante, at 624-626, n. 9, demonstrates, of course, that the present case is in a most unsatisfactory posture for review here. It is unfortunate that a case so posed occasions the pronouncement of new and, so far as tax collection efforts are concerned, regressive law.
28
I would reverse the judgment of the Court of Appeals.
1
Title 26 U.S.C. § 7421(a) provides in full:
"(a) Tax.
"Except as provided in sections 6212(a) and (c), 6213(a), and 7426(a) and (b) (1), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed."
2
Title 26 U.S.C. § 6212 provides in relevant part:
"(a) In general.
"If the Secretary or his delegate determines that there is a deficiency in respect of any tax imposed by subtitles A or B or chapter 42, he is authorized to send notice of such deficiency to the taxpayer by certified mail or registered mail."
Title 26 U.S.C. § 6213 provides in relevant part:
"(a) Time for filing petition and restriction on assessment.
"Within 90 days, or 150 days if the notice is addressed to a person outside the States of the Union and the District of Columbia, after the notice of deficiency authorized in section 6212 is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day), the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency. Except as otherwise provided in section 6861 no assessment of a deficiency in respect of any tax imposed by subtitle A or B or chapter 42 or chapter 43 and no levy or proceeding in court for its collection shall be made, begun, or prosecuted until such notice has been mailed to the taxpayer, nor until the expiration of such 90-day or 150-day period, as the case may be, nor, if a petition has been filed with the Tax Court, until the decision of the Tax Court has become final. Notwithstanding the provisions of section 7421(a), the making of such assessment or the beginning of such proceeding or levy during the time such prohibition is in force may be enjoined by a proceeding in the proper court."
3
Title 26 U.S.C. § 6331 provides in relevant part:
"(a) Authority of Secretary or delegate.
"If any person liable to pay any tax neglects or refuses to pay the same within 10 days after notice and demand, it shall be lawful for the Secretary or his delegate to collect such tax (and such further sum as shall be sufficient to cover the expenses of the levy) by levy upon all property and rights to property (except such property as is exempt under section 6334) belonging to such person or on which there is a lien provided in this chapter for the payment of such tax. Levy may be made upon the accrued salary or wages of any officer, employee, or elected official, of the United States, the District of Columbia, or any agency or instrumentality of the United States or the District of Columbia, by serving a notice of levy on the employer (as defined in section 3401(d)) of such officer, employee, or elected official. If the Secretary or his delegate makes a finding that the collection of such tax is in jeopardy, notice and demand for immediate payment of such tax may be made by the Secretary or his delegate and, upon failure or refusal to pay such tax, collection thereof by levy shall be lawful without regard to the 10-day period provided in this section.
"(b) Seizure and sale of property.
"The term 'levy' as used in this title includes the power of distraint and seizure by any means. A levy shall extend only to property possessed and obligations existing at the time thereof. In any case in which the Secretary or his delegate may levy upon property or rights to property, he may seize and sell such property or rights to property (whether real or personal, tangible or intangible)."
Title 26 U.S.C. § 6861 provides in relevant part:
"(a) Authority for Making.
"If the Secretary or his delegate believes that the assessment or collection of a deficiency, as defined in section 6211, will be jeopardized by delay, he shall, notwithstanding the provisions of section 6213(a), immediately assess such deficiency (together with all interest, additional amounts, and additions to the tax provided for by law), and notice and demand shall be made by the Secretary or his delegate for the payment thereof.
"(b) Deficiency Letters.
"If the jeopardy assessment is made before any notice in respect of the tax to which the jeopardy assessment relates has been mailed under section 6212(a), then the Secretary or his delegate shall mail a notice under such subsection within 60 days after the making of the assessment."
4
The relevant part of the deficiency notice for the year 1970 provided:
"It is determined that you realized unreported taxable income from unexplained bank deposits at the 1st National City Bank in the amount of $18,000.00." App. 135.
The relevant part of the deficiency notice for the year 1971 provided, Id., at 136:
"It is determined that you realized unreported taxable income in the amount of $137,280.00 for the taxable year ended December 31, 1971 from your activities as a dealer in narcotics, computed as follows:
"Gross income from
hashish sales....... $381,680.00
"Less: costs......... 244,400.00
"Net income......... $137,280.00"
5
On January 3, 1974, respondent, armed with his deficiency notice, filed in the Tax Court for a redetermination of the deficiency. 26 U.S.C. § 6213(a).
6
The extradition issue is therefore no longer in this case.
7
The Court of Appeals rejected on the record before it, and on the authority of Phillips v. Commissioner, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 1289 (1931), respondent's claim that the assessment absent a hearing violated the Due Process Clause. It noted, however, that if respondent could establish on remand that his extradition would prevent him from litigating effectively before the Tax Court, then one of the predicates for the Phillips Decision would be lacking. The court also noted, but did not resolve, a factual dispute as to whether the levy was in conformity with the statute. Shapiro had alleged, for the first time on appeal, that no notice had been given to him or demand made of him to pay the taxes at the time the levies were served. Such notice and demand are required by 26 U.S.C. § 6861, compliance with which is necessary under § 6213(a), if the Anti-Injunction Act is to apply. The Commissioner claimed that he had mailed a deficiency notice to Shapiro on December 6, 1973.
It is clear that a demand has now been made for payment of the tax assessed and that the levies are now in compliance with § 6213. A notice of deficiency was served on Shapiro's attorney in the District Court on December 21, 1973. The Internal Revenue Service, conceding that it could not be sure whether the original notice of deficiency was mailed before or after the notices of levy were served, served new notices of levy on October 11 and 15,
1974. This moots both the question whether the IRS mailed a notice of deficiency to Shapiro on December 6, 1973, and whether the notice preceded the levies. There can be no question at this point, therefore, that in these respects the levies are in technical compliance with the provisions of § 6861.
8
This standard, considered by the Court of Appeals to be con-
sistent with Enochs v. Williams Packing, was based on cases decided by other Courts of Appeals, primarily Pizzarello v. United States, 408 F.2d 579 (C.A.2 1969), and Lucia v. United States, 474 F.2d 565 (C.A.5 1973) (en banc).
9
Subsequent to the time of the Court of Appeals' order and prior to argument of this case before this Court, several things have concededly occurred of arguable relevance to this lawsuit. First, respondent Shapiro has been extradited, the State of Israel has reduced the amount of his bail and he has been able to meet it. Accordingly, he is not as the Court of Appeals assumed he would be incarcerated as a result of the fact that the levies have put the money in the New York banks beyond his reach. Second, the District Court interpreted the Court of Appeals' order in this case to require the Government to come forward with proof sufficient to establish a factual foundation for the tax assessment and to negative a finding that the assessment is "entirely excessive, arbitrary, capricious, and without factual foundation." The Government then made an effort at compliance with the District Court's order, consisting of the filing of an affidavit by the revenue agent who investigated respondent's income tax liabilities. The affidavit states that the basis for the assessments is as follows:
"a. There was no record that Samuel Shapiro had filed an income tax return for 1970.
"b. That Samuel Shapiro had filed an income tax return for 1971 reporting no tax liability based upon $1,600 in adjusted gross income, consisting of $2,600 miscellaneous income from private tutoring and net short-term losses from commodity transactions of $1,450 (limited to $1,000 in computing adjusted gross income).
"c. That deposits were credited to two accounts in the name of Samuel Shapiro at the First National City Bank, New York, Nos.: 04993564 and 05008773, in the amounts of $18,000 in 1970 and $36,735 in 1971.
"d. That . . . Samuel Shapiro paid in excess of $3,000 in currency for the purchase of an automobile.
"e. That information available to the Internal Revenue Service
indicated that early in 1973 Samuel Shapiro paid over $40,000 for a home purchased for over $60,000.
"f. That information supplied to the Internal Revenue Service indicated that Samuel Shapiro had been smuggling into the United States substantial amounts of an illegal substance, hashish, every six days from Israel, presumably for resale within the United States, and also supported a conclusion that Samuel Shapiro was dealing in hashish, during 1971.
"g. That included in the 1971 bank deposits referred to in subparagraph (c) above, were money transfers from an individual since convicted of selling hashish, who stated that the transfers were for hashish supplied to him by Samuel Shapiro as follows:
"April 19, 1971....... $2,000
"April 23, 1971........ 2,300
"May 6, 1971........... 2,000
"May 11, 1971.......... 1,500
"June 8, 1971.......... 1,500
"August 18, 1971....... 5,600
"h. That information available to the Internal Revenue Service indicated that the known practice in hashish trafficking was to deal in full kilos (kilograms), equal to 2.2 pounds; that during 1971 the retail price of hashish was $1,360 to $1,980 per pound, or $2,992 to $4,356 per kilo; and that the wholesale cost to a dealer would approximate $2,350 per kilo; and that the common practice in hashish dealing was to receive payment in two parts the first for cost and the second for profit.
"i. That on the basis of the information set forth in subparagraphs g. and h. above (the revenue agent) concluded that during 1971 Samuel Shapiro was dealing in at least 2 kilos of hashish per week, and that his taxable profit therefrom was $137,280, computed as follows
"Selling price......... $7,340
"Cost................... 4,700
"Weekly profit.......... 2,640
1971 profit (52 weeks). $137,280
"j. That unexplained deposits of $18,000 during 1970 should be deemed to be taxable income."
At a hearing held by the District Court on November 12, 1974, respondent submitted two affidavits (which had been filed in the Tax Court) denying that he was or ever had been a dealer in narcotics. Respondent's affidavits further stated that his 1971 income tax return was correct. Respondent also submitted an affidavit of Rachel Laub, a resident of Switzerland, which stated that at respondent's request in 1970, she held for him in safekeeping $50,000 in cash and approximately 18 to 20 kilos of gold bars. That affidavit further stated that at respondent's request, she transmitted the cash to him in 1971, and the proceeds of the sale of the gold bars ($32,000 and $35,000) in 1971 and 1972, respectively. Finally the District Judge has tentatively ruled that the Government must, if the court is to deny injunctive relief, submit its informant for In camera Examination by the court. Following the Court's granting of the Government's petition for a writ of certiorari, 420 U.S. 923, 95 S.Ct. 1116, 43 L.Ed.2d 392 (1975), no further proceedings have taken place below.
The proceedings before the District Court on remand and the other events just described are, of course, not before us at this time. These proceedings occurred after the decision of the Court of Appeals which we review. However, the parties appear to agree that these events have occurred as described, and we mention them because they are relevant to the question of what proceedings must eventually be conducted by the District Court following our decision in this case.
10
We believe that it is consistent with Williams Packing to place the burden of producing evidence with the taxpayer, and to require, if the Government insists, that facts in its sole possession be obtained through discovery. However, nothing we say here should prevent the Government from voluntarily and immediately disclosing the basis for its assessment, which, if sufficient, would terminate discovery proceedings and justify judgment for the Government.
11
Goldberg v. Kelly, 397 U.S. 254, 264, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287, 296 (1970) (temporary deprivation of welfare payments may deprive recipient of "the very means by which to live while he waits"); Sniadach v. Family Finance Corp., 395 U.S. 337, 341-342, 89 S.Ct. 1820, 1823, 23 L.Ed.2d 349, 354 (1969) (temporary deprivation of wages may "drive a wage-earning family to the wall"); North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 608, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975) ("probability of irreparable injury" sufficient to warrant preseizure probable-validity hearing); see also Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (incarceration must be preceded by probable-cause finding or promptly followed by probable-cause hearing); cf. Regional Rail Reorganization Act Cases, 419 U.S. 102, 156, 95 S.Ct. 335, 365, 42 L.Ed.2d 320, 360 (1974) (no probable-cause hearing required where complainant eventually will be "made whole" for any inadequacy in compensation for confiscated property).
12
We have often noted that, in resolving a claimed violation of procedural due process, a careful weighing of the respective interests is required, Goss v. Lopez, 419 U.S. 565, 579, 95 S.Ct. 729, 738, 42 L.Ed.2d 725, 737 (1975); and we have noted that the Government's interest in collecting the revenues is an important one, Fuentes v. Shevin, 407 U.S. 67, 92, 92 S.Ct. 1983, 2000, 32 L.Ed.2d 556, 557 (1972). This interest is clearly sufficient to justify seizure of a taxpayer's assets without a Pre seizure hearing, Fuentes v. Shevin, supra, and to remove any need to subject the Commissioner to the burden of an inquiry into the basis for his assessment absent factual allegations of irreparable injury by the taxpayer. Phillips v. Commissioner, 283 U.S. 589, 595-597, 51 S.Ct. 608, 611, 75 L.Ed. 1289, 1296-1297 (1931). However, it is very doubtful that the need to collect the revenues is a sufficient reason to justify seizure causing irreparable injury without a prompt post-seizure inquiry of any kind into the Commissioner's basis for his claim.
The taxpayer has no right to start a proceeding before the Tax Court for 60 days following a jeopardy seizure: the IRS may under the statute wait 60 days before it issues the deficiency notice which gives the taxpayer his "ticket to the Tax Court." 26 U.S.C. § 6861. The record does not indicate how quickly a hearing on the merits can be obtained there. Preliminary relief is not there available. Nothing we hold today, of course, would prevent the Government from providing an administrative or other forum outside the Art. III judicial system for whatever preliminary inquiry is to be made as to the basis for a jeopardy assessment and levy.
13
The taxpayer also challenged unsuccessfully the provision requiring a court of appeals to give deference to a fact determination by the Board of Tax Appeals on review of the Board's decision.
14
We do not decide whether the allegation of an $18,000 unexplained bank deposit is insufficient to establish income in that amount for the purposes of the Williams Packing test for the year 1970. The levies, being greatly in excess of the tax due for 1970 in any event, may not be sustained unless the allegations with respect to respondent's tax liability for 1971 are sufficient.
15
We note that it has now been over two years since respondent filed his petition before the Tax Court, and so far as we are informed, there has been no final determination by that court. It may be that for some reason it has been impossible despite the respondent's best efforts to obtain a decision by the Tax Court. However, it is also possible that the taxpayer has not vigorously sought such a determination, and has chosen instead to devote most of his energies litigating in the federal courts. If, on remand, the District Court concludes that the absence of a remedy at law at this time is due to respondent's failure to pursue that remedy, then equity will not intervene and the complaint should be dismissed. The inadequacy of his legal remedy would then be due to his own choice not to pursue it.
| 34
|
424 U.S. 641
96 S.Ct. 1086
47 L.Ed.2d 301
William BUCOLO et al.v.James ADKINS, Chief Justice, et al.
No. 75-369.
March 8, 1976.
PER CURIAM.
1
Petitioners were convicted in the Circuit Court of Palm Beach County, Fla., of publishing certain comic strips and pictures in violation of the Florida obscenity statute.1 On appeal, the Supreme Court of Florida affirmed.2 In April 1975, we granted certiorari and summarily reversed the judgment of the Supreme Court of Florida, citing Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974), and Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972).3
2
The Supreme Court of Florida sent the case to the trial court "for further proceedings in which the standards established in Miller v. California4 can be applied."5 Petitioners thereupon applied to us for a writ of mandamus directing respondents "to vacate and expunge from the record" the opinion and mandate on remand of the Supreme Court of Florida. They complained that, in subjecting them to a second trial, the state court ignored this Court's determination that the published materials were not obscene.6
3
On November 4, 1975, while petitioners' request for mandamus was pending before us, the State Attorney of Palm Beach County, at the direction of the State's Attorney General, Nolle prossed the charges. Florida follows the common law with respect to Nolle prosequi and vests in its Attorney General exclusive discretion to determine that the State is "unwilling to prosecute." See 9 Fla.Jur., Criminal Law § 378 (1972). Nolle prosequi, if entered before jeopardy attaches, neither operates as an acquittal nor prevents further prosecution of the offense. See Id., § 438; Smith v. State, 135 Fla. 835, 186 So. 203 (1939). We are informed by the Florida Attorney General that, in the instant case, Florida's speedy-trial rule precludes renewed prosecution of petitioners. Therefore, the threatened injury which impelled petitioners to invoke our extraordinary jurisdiction would appear to be obviated. But, petitioners take the position that the entry of the Nolle prosequi Does not eliminate the necessity that we act to insure that the Supreme Court of Florida will conform its decision to the determination reached in this Court.
4
Petitioners further contend that in these circumstances the prosecutor's exercise of discretionary authority to forgo further prosecution serves to deprive them of the exoneration to which this Court's reversal otherwise entitles them. They find support for this claim in the language of the nolle prosequi itself, which is, presumably, now a part of the permanent trial court record in this case. That document erroneously suggests that further proceedings applying Miller standards were ordered by this Court.7 It also suggests that the State had become unwilling to prosecute solely as a result of the passage of time. We agree with petitioners that nothing in the state-court record, as it now stands, recognizes that the State was foreclosed by this Court's decision from seeking to convict petitioners of obscenity violations. We are unable to dismiss as insignificant petitioners' plaint that the judgment of the Supreme Court of Florida, as it now stands, obscures this Court's favorable adjudication on the merits an adjudication which requires full recognition by the state courts in order effectively to dispel any opprobrium resulting from the accusation of obscenity.
5
Observation of the disposition of this case following our summary reversal reveals that the Supreme Court of Florida has attributed to this Court a decision which it never made. Further proceedings pursuant to the information charging petitioners with violating Florida's obscenity statute were clearly foreclosed. In that circumstance, the state court's failure to give effect to that judgment was not cured by the intervening exercise of prosecutorial discretion. Accordingly, the motion for leave to file a petition for a writ of mandamus ordering the Supreme Court of Florida to conform its decision to our mandate is granted. Assuming as we do that the Supreme Court of Florida will conform to the disposition we now make, we do not now issue the writ of mandamus. Deen v. Hickman, 358 U.S. 57, 79 S.Ct. 1, 3 L.Ed.2d 28 (1958).
6
Mr. Justice STEVENS, with whom Mr. Justice REHNQUIST joins, dissenting.
7
In Deen v. Hickman, 358 U.S. 57, 79 S.Ct. 1, 3 L.Ed.2d 28, it was necessary to require the Texas Supreme Court to conform its decision to our mandate in order to make sure that further proceedings in the underlying litigation would be properly conducted. In this case no matter what we do, there will be no further proceedings in the underlying litigation. The circumstances recited in the opinion of the Court, therefore, would not justify the issuance of an extraordinary writ. Since I would not vote in favor of such a writ, I would also deny the motion for leave to file.
1
Fla.Stat.Ann. § 847.011 (Supp. 1975).
2
Bucolo v. State, 303 So.2d 329 (1974).
3
Bucolo v. Florida, 421 U.S. 927, 95 S.Ct. 1651, 44 L.Ed.2d 84.
4
413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).
5
Bucolo v. State, 316 So.2d 551 (1975).
6
In his response to petitioners' request for mandamus, the Attorney General of Florida concedes that "there is no question but that this Court in reversing (p)etitioners' conviction on April 21, 1975, by referring to (Jenkins and Kois ), conclusively determined that the materials disseminated by petitioners were not obscene as a matter of law." He urges us, however, to deny relief on other grounds.
7
Petitioners direct our attention to the document filed by the prosecutor in support of his decision to nolle prosse the charges. It contains the following notation:
"SUPREME COURT OF THE UNITED STATES REMANDED THIS CASE UNDER GUIDELINES OF MILLER V. CALIFORNIA. THIS CASE NOLLE PROSSED USING PROSECUTORIAL DISCRETION REGARDING ITS AGE AND LOCATION OF WITNESSES."
| 89
|
424 U.S. 645
96 S.Ct. 1154
47 L.Ed.2d 366
Francis McCARTHY,v.PHILADELPHIA CIVIL SERVICE COMMISSION.
No. 75-783.
March 22, 1976.
PER CURIAM.
1
After 16 years of service, appellant's employment in the Philadelphia Fire Department was terminated because he moved his permanent residence from Philadelphia to New Jersey in contravention of a municipal regulation requiring employees of the city of Philadelphia to be residents of the city. He challenges the constitutionality of the regulation and the authorizing ordinances1 as violative of his federally protected right of interstate travel. The regulation was sustained by the Commonwealth Court of Pennsylvania2 and review was denied by the Pennsylvania Supreme Court.3 His timely appeal is here pursuant to 28 U.S.C. § 1257(2).
2
The Michigan Supreme Court held that Detroit's similar requirement for police officers was not irrational and did not violate the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment.4 We dismissed the appeal from that judgment because no substantial federal question was presented. Detroit Police Officers Ass'n v. City of Detroit, 405 U.S. 950, 92 S.Ct. 1173, 31 L.Ed.2d 227 (1972). We have therefore held that this kind of ordinance is not irrational. Hicks v. Miranda, 422 U.S. 332, 343-345, 95 S.Ct. 2281, 2288-2289, 45 L.Ed.2d 223 (1975); see Wardwell v. Board of Education of Cincinnati, 529 F.2d 625, 628 (CA6 1976).
3
We have not, however, specifically addressed the contention made by appellant in this case that his constitutionally recognized right to travel interstate as defined in Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); and Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974), is impaired. Each of those cases involved a statutory requirement of residence in the State for at least one year before becoming eligible either to vote, as in Dunn, or to receive welfare benefits, as in Shapiro and Memorial Hospital.5 Neither in those cases, nor in any others, have we questioned the validity of a condition placed upon municipal employment that a person be a resident At the time of his application.6 In this case appellant claims a constitutional right to be employed by the city of Philadelphia while he is living elsewhere.7 There is no support in our cases for such a claim.
4
We have previously differentiated between a requirement of continuing residency and a requirement of prior residency of a given duration. Thus in Shapiro, supra, 394 U.S. at 636, 89 S.Ct. at 1332, 22 L.Ed.2d at 616, we stated: "The residence requirement and the one-year waiting-period requirement are distinct and independent prerequisites." And in Memorial Hospital, supra, 415 U.S. at 255, 94 S.Ct. at 1081, 39 L.Ed.2d at 313, quoting Dunn, supra, 405 U.S. at 342 n. 1392 S.Ct. at 1003, 31 L.Ed.2d at 284, the Court explained that Shapiro and Dunn did not question " 'the validity of appropriately defined and uniformly applied bona fide residence requirements.' "
5
This case involves that kind of bona fide continuing-residence requirement. The judgment of the Commonwealth Court of Pennsylvania is therefore affirmed.
6
Affirmed.
7
THE CHIEF JUSTICE, Mr. Justice BRENNAN, and Mr. Justice BLACKMUN would note probable jurisdiction and set the case for argument.
1
§ 7-401(u) of the Philadelphia Home Rule Charter of 1951; § 20-101 of the Philadelphia Code (as amended); and § 30.01 of the Philadelphia Civil Service Regulations.
2
19 Pa.Cmwlth. 383, 339 A.2d 634 (1975).
3
In an unreported order entered on September 2, 1975, that court denied a petition for review.
4
Detroit Police Officers Ass'n v. City of Detroit, 385 Mich. 519, 190 N.W.2d 97 (1971).
5
Although there is a durational residence requirement in the Philadelphia ordinances, appellant does not have standing to challenge that requirement.
6
Nor did any of those cases involve a public agency's relationship with its own employees which, of course, may justify greater control than that over the citizenry at large. Cf. Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811, 817 (1968); CSC v. National Ass'n of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973); Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).
7
Appellant seeks review of other alleged errors as if presented in a petition for a writ of certiorari. We decline to review those issues.
| 12
|
424 U.S. 693
96 S.Ct. 1155
47 L.Ed.2d 405
Edgar PAUL, etc., et al., Petitioners,v.Edward Charles DAVIS, III.
No. 74-891.
Argued Nov. 4, 1975.
Decided March 23, 1976.
Rehearing Denied May 19, 1976.
See 425 U.S. 985, 96 S.Ct. 2194.
Syllabus
A photograph of respondent bearing his name was included in a "flyer" of "active shoplifters," after he had been arrested on a shoplifting charge in Louisville, Ky. After that charge had been dismissed respondent brought this action under 42 U.S.C. § 1983 against petitioner police chiefs, who had distributed the flyer to area merchants, alleging that petitioners' action under color of law deprived him of his constitutional rights. The District Court granted petitioners' motion to dismiss. The Court of Appeals reversed, relying on Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515. Held:
1. Petitioners' action in distributing the flyer did not deprive respondent of any "liberty" or "property" rights secured against state deprivation by the Due Process Clause of the Fourteenth Amendment. Pp. 699-710.
(a) The Due Process Clause does not Ex proprio vigore extend to a person a right to be free of injury wherever the State may be characterized as the tortfeasor. Pp. 699-701.
(b) Reputation alone, apart from some more tangible interests such as employment, does not implicate any "liberty" or "property" interests sufficient to invoke the procedural protection of the Due Process Clause; hence to establish a claim under § 1983 and the Fourteenth Amendment more must be involved than simply defamation by a state official. Wisconsin v. Constantineau, supra, distinguished. Pp. 701-710.
(c) Kentucky law does not extend to respondent any legal guarantee of present enjoyment of reputation that has been altered by petitioners' actions, and the interest in reputation alone is thus quite different from the "liberty" or "property" recognized in such decisions as Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90, and Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, where the guarantee of due process required certain procedural safeguards before the State could alter the status of the complainants. Pp. 710-712.
2. Respondent's contention that petitioners' defamatory flyer deprived him of his constitutional right to privacy is without merit, being based not upon any challenge to the State's ability to restrict his freedom of action in a sphere contended to be "private" but on a claim that the State may not publicize a record of an official act like an arrest. Pp. 712-713.
6 Cir., 505 F.2d 1180, reversed.
Carson P. Porter, Louisville, Ky., for petitioners.
Daniel T. Taylor, III, Louisville, Ky., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
We granted certiorari, 421 U.S. 909, 95 S.Ct. 1556, 43 L.Ed.2d 773 (1975), in this case to consider whether respondent's charge that petitioners' defamation of him, standing alone and apart from any other governmental action with respect to him, stated a claim for relief under 42 U.S.C. § 1983 and the Fourteenth Amendment. For the reasons hereinafter stated, we conclude that it does not.
2
Petitioner Paul is the Chief of Police of the Louisville, Ky., Division of Police, while petitioner McDaniel occupies the same position in the Jefferson County, Ky., Division of Police. In late 1972 they agreed to combine their efforts for the purpose of alerting local area merchants to possible shoplifters who might be operating during the Christmas season. In early December petitioners distributed to approximately 800 merchants in the Louisville metropolitan area a "flyer," which began as follows:
3
"TO: BUSINESS MEN IN THE METROPOLITAN AREA
4
"The Chiefs of The Jefferson County and City of Louisville Police Departments, in an effort to keep their officers advised on shoplifting activity, have approved the attached alphabetically arranged flyer of subjects known to be active in this criminal field.
5
"This flyer is being distributed to you, the business man, so that you may inform your security personnel to watch for these subjects. These persons have been arrested during 1971 and 1972 or have been active in various criminal fields in high density shopping areas.
6
"Only the photograph and name of the subject is shown on this flyer, if additional information is desired, please forward a request in writing . . . ."
7
The flyer consisted of five pages of "mug shot" photos, arranged alphabetically. Each page was headed:
8
"NOVEMBER 1972
CITY OF LOUISVILLE
JEFFERSON COUNTY
POLICE DEPARTMENTS
9
ACTIVE SHOPLIFTERS"
10
In approximately the center of page 2 there appeared photos and the name of the respondent, Edward Charles Davis III.
11
Respondent appeared on the flyer because on June 14, 1971, he had been arrested in Louisville on a charge of shoplifting. He had been arraigned on this charge in September 1971, and, upon his plea of not guilty, the charge had been "filed away with leave (to reinstate)," a disposition which left the charge outstanding. Thus, at the time petitioners caused the flyer to be prepared and circulated respondent had been charged with shoplifting but his guilt or innocence of that offense had never been resolved. Shortly after circulation of the flyer the charge against respondent was finally dismissed by a judge of the Louisville Police Court.
12
At the time the flyer was circulated respondent was employed as a photographer by the Louisville Courier-Journal and Times. The flyer, and respondent's inclusion therein, soon came to the attention of respondent's supervisor, the executive director of photography for the two newspapers. This individual called respondent in to hear his version of the events leading to his appearing in the flyer. Following this discussion, the supervisor informed respondent that although he would not be fired, he "had best not find himself in a similar situation" in the future.
13
Respondent thereupon brought this § 1983 action in the District Court for the Western District of Kentucky, seeking redress for the alleged violation of rights guaranteed to him by the Constitution of the United States. Claiming jurisdiction under 28 U.S.C. § 1343(3), respondent sought damages as well as declaratory and injunctive relief. Petitioners moved to dismiss this complaint. The District Court granted this motion, ruling that "(t)he facts alleged in this case do not establish that plaintiff has been deprived of any right secured to him by the Constitution of the United States."
14
Respondent appealed to the Court of Appeals for the Sixth Circuit which recognized that, under our decisions, for respondent to establish a claim cognizable under § 1983 he had to show that petitioners had deprived him of a right secured by the Constitution1 of the United States, and that any such deprivation was achieved under color of law.2 Adickes v. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 2, 150 (1970). The Court of Appeals concluded that respondent had set forth a § 1983 claim "in that he has alleged facts that constitute a denial of due process of law." 505 F.2d 1180, 1182 (1974). In its view our decision in Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), mandated reversal of the District Court.
15
* Respondent's due process claim is grounded upon his assertion that the flyer, and in particular the phrase "Active Shoplifters" appearing at the head of the page upon which his name and photograph appear, impermissibly deprived him of some "liberty" protected by the Fourteenth Amendment. His complaint asserted that the "active shoplifter" designation would inhibit him from entering business establishments for fear of being suspected of shoplifting and possibly apprehended, and would seriously impair his future employment opportunities. Accepting that such consequences may flow from the flyer in question, respondent's complaint would appear to state a classical claim for defamation actionable in the courts of virtually every State. Imputing criminal behavior to an individual is generally considered defamatory Per se, and actionable without proof of special damages.
16
Respondent brought his action, however, not in the state courts of Kentucky, but in a United States District Court for that State. He asserted not a claim for defamation under the laws of Kentucky, but a claim that he had been deprived of rights secured to him by the Fourteenth Amendment of the United States Constitution. Concededly if the same allegations had been made about respondent by a private individual, he would have nothing more than a claim for defamation under state law. But, he contends, since petitioners are respectively an official of city and of county government, his action is thereby transmuted into one for deprivation by the State of rights secured under the Fourteenth Amendment.
17
In Greenwood v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966), in the course of considering an important and not wholly dissimilar question of the relationship between the National and the State Governments, the Court said that "(i)t is worth contemplating what the result would be if the strained interpretation of § 1443(1) urged by the individual petitioners were to prevail." Id., at 832, 86 S.Ct., at 1814, 16 L.Ed.2d, at 959. We, too, pause to consider the result should respondent's interpretation of § 1983 and of the Fourteenth Amendment be accepted.
18
If respondent's view is to prevail, a person arrested by law enforcement officers who announce that they believe such person to be responsible for a particular crime in order to calm the fears of an aroused populace, presumably obtains a claim against such officers under § 1983. And since it is surely far more clear from the language of the Fourteenth Amendment that "life" is protected against state deprivation than it is that reputation is protected against state injury, it would be difficult to see why the survivors of an innocent bystander mistakenly shot by a policeman or negligently killed by a sheriff driving a government vehicle, would not have claims equally cognizable under 1983.
19
It is hard to perceive any logical stopping place to such a line of reasoning. Respondent's construction would seem almost necessarily to result in every legally cognizable injury which may have been inflicted by a state official acting under "color of law" establishing a violation of the Fourteenth Amendment. We think it would come as a great surprise to those who drafted and shepherded the adoption of that Amendment to learn that it worked such a result, and a study of our decisions convinces us they do not support the construction urged by respondent.
II
20
The result reached by the Court of Appeals, which respondent seeks to sustain here, must be bottomed on one of two premises. The first is that the Due Process Clause of the Fourteenth Amendment and § 1983 make actionable many wrongs inflicted by government employees which had heretofore been thought to give rise only to state-law tort claims. The second premise is that the infliction by state officials of a "stigma" to one's reputation is somehow different in kind from the infliction by the same official of harm or injury to other interests protected by state law, so that an injury to reputation is actionable under § 1983 and the Fourteenth Amendment even if other such harms are not. We examine each of these premises in turn.
A.
21
The first premise would be contrary to pronouncements in our cases on more than one occasion with respect to the scope of § 1983 and of the Fourteenth Amendment. In the leading case of Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), the Court considered the proper application of the criminal counterpart of § 1983, likewise intended by Congress to enforce the guarantees of the Fourteenth Amendment. In his opinion for the Court plurality in that case, Mr. Justice Douglas observed:
22
"Violation of local law does not necessarily mean that federal rights have been invaded. The fact that a prisoner is assaulted, injured, or even murdered by state officials does not necessarily mean that he is deprived of any right protected or secured by the Constitution or laws of the United States," 325 U.S., at 108-109, 65 S.Ct., at 1039, 89 L.Ed., at 1506.
23
After recognizing that Congress' power to make criminal the conduct of state officials under the aegis of the Fourteenth Amendment was not unlimited because that Amendment "did not alter the basic relations between the States and the national government," the plurality opinion observed that Congress should not be understood to have attempted
24
"to make all torts of state officials federal crimes. It brought within (the criminal provision) only specified acts 'under color' of law and then only those acts which deprived a person of some right secured by the Constitution or laws of the United States." Id., at 109, 65 S.Ct., at 1039, 89 L.Ed., at 1507.
25
This understanding of the limited effect of the Fourteenth Amendment was not lost in the Court's decision in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). There the Court was careful to point out that the complaint stated a cause of action under the Fourteenth Amendment because it alleged an unreasonable search and seizure violative of the guarantee "contained in the Fourth Amendment (and) made applicable to the States by Reason of the Due Process Clause of the Fourteenth Amendment." Id., at 171, 81 S.Ct., at 476, 5 L.Ed.2d, at 496. Respondent, however, has pointed to no specific constitutional guarantee safeguarding the interest he asserts has been invaded. Rather, he apparently believes that the Fourteenth Amendment's Due Process Clause should ex proprio vigore extend to him a right to be free of injury wherever the State may be characterized as the tortfeasor. But such a reading would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States. We have noted the "constitutional shoals" that confront any attempt to derive from congressional civil rights statutes a body of general federal tort law, Griffin v. Breckenridge, 403 U.S. 88, 101-102, 91 S.Ct. 1790, 1797-98, 29 L.Ed.2d 338, 347-48 (1971); A fortiori, the procedural guarantees of the Due Process Clause cannot be the source for such law.
B
26
The second premise upon which the result reached by the Court of Appeals could be rested that the infliction by state officials of a "stigma" to one's reputation is somehow different in kind from infliction by a state official of harm to other interests protected by state law is equally untenable. The words "liberty" and "property" as used in the Fourteenth Amendment do not in terms single out reputation as a candidate for special protection over and above other interests that may be protected by state law. While we have in a number of our prior cases pointed out the frequently drastic effect of the "stigma" which may result from defamation by the government in a variety of contexts, this line of cases does not establish the proposition that reputation alone, apart from some more tangible interests such as employment, is either "liberty" or "property" by itself sufficient to invoke the procedural protection of the Due Process Clause. As we have said, the Court of Appeals, in reaching a contrary conclusion, relied primarily upon Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). We think the correct import of that decision, however, must be derived from an examination of the precedents upon which it reed, as well as consideration of the other decisions by this Court, before and after Constantineau, which bear upon the relationship between governmental defamation and the guarantees of the Constitution. While not uniform in their treatment of the subject, we think that the weight of our decisions establishes no constitutional doctrine converting every defamation by a public official into a deprivation of liberty within the meaning of the Due Process Clause of the Fifth3 or Fourteenth Amendment.
27
In United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946), the Court held that an Act of Congress which specifically forbade payment of any salary or compensation to three named Government agency employees was an unconstitutional bill of attainder. The three employees had been proscribed because a House of Representatives subcommittee found them guilty of "subversive activity," and therefore unfit for Government service. The Court, while recognizing that the underlying charges upon which Congress' action was premised "stigmatized (the employees') reputation and seriously impaired their chance to earn a living," Id., at 314, 66 S.Ct., at 1078, 90 L.Ed., at 1259, also made it clear that "(w)hat is involved here is a Congressional proscription of (these employees), prohibiting their ever holding a government job." Ibid.
28
Subsequently, in Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (1951), the Court examined the validity of the Attorney General's designation of certain organizations as "Communist" on a list which he furnished to the Civil Service Commission. There was no majority opinion in the case; Mr. Justice Burton, who announced the judgment of the Court, wrote an opinion which did not reach the petitioners' constitutional claim. Mr. Justice Frankfurter, who agreed with Mr. Justice Burton that the petitioners had stated a claim upon which relief could be granted, noted that "publicly designating an organization as within the proscribed categories of the Loyalty Order does not directly deprive anyone of liberty or property." Id., at 164, 71 S.Ct., at 644, 95 L.Ed., at 849. Mr. Justice Douglas, who likewise concluded that petitioners had stated a claim, observed in his separate opinion:
29
"This is not an instance of name calling by public officials. This is a determination of status a proceeding to ascertain whether the organization is or is not 'subversive.' This determination has consequences that are serious to the condemned organizations. Those consequences flow in part, of course, from public opinion. But they also flow from actions of regulatory agencies that are moving in the wake of the Attorney General's determination to penalize or police these organizations." Id., at 175, 71 S.Ct., at 650, 95 L.Ed., at 855.
30
Mr. Justice Jackson, who likewise agreed that petitioners had stated a claim, commented:
31
"I agree that mere designation as subversive deprives the organizations themselves of no legal right or immunity. By it they are not dissolved, subjected to any legal prosecution, punished, penalized, or prohibited from carrying on any of their activities. Their claim of injury is that they cannot attract audiences, enlist members, or obtain contributions as readily as before. These, however, are sanctions applied by public disapproval, not by law." Id., at 183-184, 71 S.Ct., at 655, 95 L.Ed., at 860.
He went on to say:
32
"(T)he real target of all this procedure is the government employee who is a member of, or sympathetic to, one or more accused organizations. He not only may be discharged, but disqualified from employment, upon no other ground than such membership or sympathetic affiliation. . . . To be deprived not only of present government employment but of future opportunity for it certainly is no small injury when government employment so dominates the field of opportunity." Id., at 184-185, 71 S.Ct., at 655, 95 L.Ed., at 860.
33
Mr. Justice Reed, writing for himself, The Chief Justice, and Mr. Justice Minton, would have held that petitioners failed to state a claim for relief. In his dissenting opinion, after having stated petitioners' claim that their listing resulted in a deprivation of liberty or property contrary to the procedure required by the Fifth Amendment, he said:
34
"The contention can be answered summarily by saying that there is no deprivation of any property or liberty of any listed organization by the Attorney General's designation. It may be assumed that the listing is hurtful to their prestige, reputation and earning power. It may be such an injury as would entitle organizations to damages in a tort action against persons not protected by privilege. . . . This designation, however, does not prohibit any business of the organizations, subject them to any punishment or deprive them of liberty of speech or other freedom." Id., at 202, 71 S.Ct., at 664, 95 L.Ed., at 869.
35
Thus at least six of the eight Justices who participated in that case viewed any "stigma" imposed by official action of the Attorney General of the United States, divorced from its effect on the legal status of an organization or a person, such as loss of tax exemption or loss of government employment, as an insufficient basis for invoking the Due Process Clause of the Fifth Amendment.
36
In Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952), the Court again recognized the potential "badge of infamy" which might arise from being branded disloyal by the government. Id., at 191, 73 S.Ct., at 218, 97 L.Ed., at 222. But it did not hold this sufficient by itself to invoke the procedural due process guarantees of the Fourteenth Amendment; indeed, the Court expressly refused to pass upon the procedural due process claims of petitioners in that case. Id., at 192, 73 S.Ct. at 219, 97 L.Ed. at 222. The Court noted that petitioners would, as a result of their failure to execute the state loyalty oath, lose their teaching positions at a state university. It held such state action to be arbitrary because of its failure to distinguish between innocent and knowing membership in the associations named in the list prepared by the Attorney General of the United States. Id., at 191, 73 S.Ct., at 218, 97 L.Ed., at 222. See also Peters v. Hobby, 349 U.S. 331, 347, 75 S.Ct. 790, 99 L.Ed. 1129 (1955).
37
A decade after Joint Anti-Fascist Refugee Comm. v. McGrath, supra, the Court returned to consider further the requirements of procedural due process in this area in the case of Cafeteria Workers v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). Holding that the discharge of an employee of a Government contractor in the circumstances there presented comported with the due process required by the Fifth Amendment, the Court observed:
38
"Finally, it is to be noted that this is not a case where government action has operated to bestow a badge of disloyalty or infamy, with an attendant foreclosure from other employment opportunity. See Wien v. Updegraff, 344 U.S. 183, 190-191, 73 S.Ct. 215, 218-219, 97 L.Ed. 216; Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 140-141, 71 S.Ct. 624, 632, 95 L.Ed. 817 . . . ." Id., at 898, 81 S.Ct., at 1750, 6 L.Ed.2d, at 1238. (Emphasis supplied.)
39
Two things appear from the line of cases beginning with Lovett. The Court has recognized the serious damage that could be inflicted by branding a government employee as "disloyal," and thereby stigmatizing his good name. But the Court has never held that the mere defamation of an individual, whether by branding him disloyal or otherwise, was sufficient to invoke the guarantees of procedural due process absent an accompanying loss of government employment.4
40
It is noteworthy that in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), and Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed.2d 1454 (1959), this Court had before it two actions for defamation brought against federal officers. But in neither opinion is there any intimation that any of the parties to those cases, or any of the Members of this Court, had the remotest idea that the Due Process Clause of the Fifth Amendment might itself form the basis for a claim for defamation against federal officials.
41
It was against this backdrop that the Court in 1971 decided Constantineau. There the Court held that a Wisconsin statute authorizing the practice of "posting" was unconstitutional because it failed to provide procedural safeguards of notice and an opportunity to be heard, prior to an individual's being "posted." Under the statute "posting" consisted of forbidding in writing the sale or delivery of alcoholic beverages to certain persons who were determined to have become hazards to themselves, to their family, or to the community by reason of their "excessive drinking." The statute also made it a misdemeanor to sell or give liquor to any person so posted. See 400 U.S., at 434 n. 2, 91 S.Ct., at 508, 27 L.Ed.2d, at 517.
42
There is undoubtedly language in Constantineau, which is sufficiently ambiguous to justify the reliance upon it by the Court of Appeals:
43
"Yet certainly where the State attaches 'a badge of infamy' to the citizen due process comes into play.
44
Wieman v. Updegraff, 344 U.S. 183, 191, 73 S.Ct. 215, 218-219, 97 L.Ed. 216. '(T)he 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.' Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 646, 95 L.Ed. 817 (Frankfurter, J., concurring).
45
"Where a person's good name, reputation, honor, or integrity is at stake Because of what the government is doing to him, notice and an opportunity to be heard are essential." 400 U.S. 433, 437, 91 S.Ct. 507, at 510, 27 L.Ed.2d 515, at 519 (emphasis supplied).
46
The last paragraph of the quotation could be taken to mean that if a government official defames a person, without more, the procedural requirements of the Due Process Clause of the Fourteenth Amendment are brought into play. If read that way, it would represent a significant broadening of the holdings of Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952), and Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (1951), relied upon by the Constantineau Court in its analysis in the immediately preceding paragraph. We should not read this language as significantly broadening those holdings without in any way adverting to the fact if there is any other possible interpretation of Constantineau's language. We believe there is.
47
We think that the italicized language in the last sentence quoted, "because of what the government is doing to him," referred to the fact that the governmental action taken in that case deprived the individual of a right previously held under state law the right to purchase or obtain liquor in common with the rest of the citizenry. "Posting," therefore, significantly altered her status as a matter of state law, and it was that alteration of legal status which, combined with the injury resulting from the defamation, justified the invocation of procedural safeguards. The "stigma" resulting from the defamatory character of the posting was doubtless an important factor in evaluating the extent of harm worked by that act, but we do not think that such defamation, standing alone, deprived Constantineau of any "liberty" protected by the procedural guarantees of the Fourteenth Amendment.
48
This conclusion is reinforced by our discussion of the subject a little over a year later in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). There we noted that "the range of interests protected by procedural due process is not infinite," Id., at 570, 92 S.Ct., at 2705, 33 L.Ed.2d at 556, and that with respect to property interests they are,
49
"of course, . . . 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." Id., at 577, 92 S.Ct., at 2709, 33 L.Ed.2d, at 561.
50
While Roth recognized that governmental action defaming an individual in the course of declining to rehire him could entitle the person to notice and an opportunity to be heard as to the defamation, its language is quite inconsistent with any notion that a defamation perpetrated by a government official but unconnected with any refusal to rehire would be actionable under the Fourteenth Amendment:
51
"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. . . .
52
"Similarly, there is no suggestion that the State, In declining to re-employ the respondent, imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities." Id., at 573, 92 S.Ct., at 2707, 33 L.Ed.2d, at 558 (emphasis supplied).
53
Thus it was not thought sufficient to establish a claim under § 1983 and the Fourteenth Amendment that there simply be defamation by a state official; the defamation had to occur in the course of the termination of employment. Certainly there is no suggestion in Roth to indicate that a hearing would be required each time the State in its capacity as employer might be considered responsible for a statement defaming an employee who continues to be an employee.
54
This conclusion is quite consistent with our most recent holding in this area, Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), that suspension from school based upon charges of misconduct could trigger the procedural guarantees of the Fourteenth Amendment. While the Court noted that charges of misconduct could seriously damage the student's reputation, Id., at 574-575, 95 S.Ct., at 736-737, 42 L.Ed.2d, at 734-735, it also took care to point out that Ohio law conferred a right upon all children to attend school, and that the act of the school officials suspending the student there involved resulted in a denial or deprivation of that right.
III
55
It is apparent from our decisions that there exists a variety of interests which are difficult of definition but are nevertheless comprehended within the meaning of either "liberty" or "property" as meant in the Due Process Clause. These interests attain this constitutional status by virtue of the fact that they have been initially recognized and protected by state law,5 and we have repeatedly ruled that the procedural guarantees of the Fourteenth Amendment apply whenever the State seeks to remove or significantly alter that protected status. In Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), for example, the State by issuing drivers' licenses recognized in its citizens a right to operate a vehicle on the highways of the State. The Court held that the State could not withdraw this right without giving petitioner due process. In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the State afforded parolees the right to remain at liberty as long as the conditions of their parole were not violated. Before the State could alter the status of a parolee because of alleged violations of these conditions, we held that the Fourteenth Amendment's guarantee of due process of law required certain procedural safeguards.
56
In each of these cases, as a result of the state action complained of, a right or status previously recognized by state law was distinctly altered or extinguished. It was this alteration, officially removing the interest from the recognition and protection previously afforded by the State, which we found sufficient to invoke the procedural guarantees contained in the Due Process Clause of the Fourteenth Amendment. But the interest in reputation alone which respondent seeks to vindicate in this action in federal court is quite different from the "liberty" or "property" recognized in those decisions. Kentucky law does not extend to respondent any legal guarantee of present enjoyment of reputation which has been altered as a result of petitioners' actions. Rather his interest in reputation is simply one of a number which the State may protect against injury by virtue of its tort law, providing a forum for vindication of those interests by means of damages actions. And any harm or injury to that interest, even where as here inflicted by an officer of the State, does not result in a deprivation of any "liberty" or "property" recognized by state or federal law, nor has it worked any change of respondent's status as theretofore recognized under the State's laws. For these reasons we hold that the interest in reputation asserted in this case is neither "liberty" nor "property" guaranteed against state deprivation without due process of law.
57
Respondent in this case cannot assert denial of any right vouchsafed to him by the State and thereby protected under the Fourteenth Amendment. That being the case, petitioners' defamatory publications, however seriously they may have harmed respondent's reputation, did not deprive him of any "liberty" or "property" interests protected by the Due Process Clause.
IV
58
Respondent's complaint also alleged a violation of a "right to privacy guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments." The Court of Appeals did not pass upon this claim since it found the allegations of a due process violation sufficient to require reversal of the District Court's order. As we have agreed with the District Court on the due process issue, we find it necessary to pass upon respondent's other theory in order to determine whether there is any support for the litigation he seeks to pursue.
59
While there is no "right of privacy" found in any specific guarantee of the Constitution, the Court has recognized that "zones of privacy" may be created by more specific constitutional guarantees and thereby impose limits upon government power. See Roe v. Wade, 410 U.S. 113, 152-153, 93 S.Ct. 705, 726, 35 L.Ed.2d 14 176-178 (1973). Respondent's case, however, comes within none of these areas. He does not seek to suppress evidence seized in the course of an unreasonable search. See Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 581 (1967); Terry v. Ohio, 392 U.S. 1, 8-9, 88 S.Ct. 1868, 1872-1873, 20 L.Ed.2d 889, 898 (1968). And our other "right of privacy" cases, while defying categorical description, deal generally with substantive aspects of the Fourteenth Amendment. In Roe the Court pointed out that the personal rights found in this guarantee of personal privacy must be limited to those which are "fundamental" or "implicit in the concept of ordered liberty" as described in Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288, 292 (1937). The activities detailed as being within this definition were ones very different from that for which respondent claims constitutional protection matters relating to marriage, procreation, contraception, family relationships, and child rearing and education. In these areas it has been held that there are limitations on the States' power to substantively regulate conduct.
60
Respondent's claim is far afield from this line of decisions. He claims constitutional protection against the disclosure of the fact of his arrest on a shoplifting charge. His claim is based, not upon any challenge to the State's ability to restrict his freedom of action in a sphere contended to be "private," but instead on a claim that the State may not publicize a record of an official act such as an arrest. None of our substantive privacy decisions hold this or anything like this, and we decline to enlarge them in this manner.
61
None of respondent's theories of recovery were based upon rights secured to him by the Fourteenth Amendment. Petitioners therefore were not liable to him under § 1983. The judgment of the Court of Appeals holding otherwise is
62
Reversed.
63
Mr. Justice STEVENS took no part in the consideration or decision of this case.
64
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL concurs and Mr. Justice WHITE concurs in part, dissenting.
65
I dissent. The Court today holds that police officials, acting in their official capacities as law enforcers, may on their own initiative and without trial constitutionally condemn innocent individuals as criminals and thereby brand them with one of the most stigmatizing and debilitating labels in our society. If there are no constitutional restraints on such oppressive behavior, the safeguards constitutionally accorded an accused in a criminal trial are rendered a sham, and no individual can feel secure that he will not be arbitrarily singled out for similar Ex parte punishment by those primarily charged with fair enforcement of the law. The Court accomplishes this result by excluding a person's interest in his good name and reputation from all constitutional protection, regardless of the character of or necessity for the government's actions. The result, which is demonstrably inconsistent with our prior case law and unduly restrictive in its construction of our precious Bill of Rights, is one in which I cannot concur.
66
To clarify what is at issue in this case, it is first necessary to dispel some misconceptions apparent in the Court's opinion. 42 U.S.C. § 1983 provides:
67
"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 prop proceeding for redress."
68
Thus, as the Court indicates, Ante, at 696-697, respondent's complaint, to be cognizable under § 1983, must allege both a deprivation of a constitutional right1 and the effectuation of that deprivation under color of law. See, E. g., Adickes v. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142, 150 (1970). But the implication, see Ante, at 697-699, that the existence Vel non of a state remedy for example, a cause of action for defamation is relevant to the determination whether there is a cause of action under § 1983, is wholly unfounded. "It is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked." Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492, 503 (1961). See also, E. g., McNeese v. Board of Education, 373 U.S. 668, 671-672, 83 S.Ct. 1433, 1435, 10 L.Ed.2d 622, 624-625 (1963). Indeed, even if the Court were creating a novel doctrine that state law is in any way relevant, it would be incumbent upon the Court to inquire whether respondent has an adequate remedy under Kentucky law or whether petitioners would be immunized by state doctrines of official or sovereign immunity. The Court, however, undertakes no such inquiry.
69
Equally irrelevant is the Court's statement that "(c)oncededly if the same allegations had been made about respondent by a private individual, he would have nothing more than a claim for defamation under state law." Ante, at 698. The action complained of here is "state action" allegedly in violation of the Fourteenth Amendment, and that Amendment, which is Only designed to prohibit "state" action, clearly renders unconstitutional actions taken by state officials that would merely be criminal or tortious if engaged in by those acting in their private capacities. Of course, if a private citizen enters the home of another, manacles and threatens the owner, and searches the house in the course of a robbery, he would be criminally and civilly liable under state law, but no constitutional rights of the owner would be implicated. However, if state police officials engage in the same acts in the course of a narcotics investigation, the owner may maintain a damages action against the police under § 1983 for deprivation of constitutional rights "under color of" state law. Cf. Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 390-392, 91 S.Ct. 1999, 2001-2002, 29 L.Ed.2d 619, 623-624 (1971). See also, E. g., Monroe v. Pape, supra. In short, it is difficult to believe that the Court seriously suggests, see Ante, at 697-698, that there is some anomaly in the distinction, for constitutional purposes, between tortious conduct committed by a private citizen and the same conduct committed by state officials under color of state law.
70
It may be that I misunderstand the thrust of Part I of the Court's opinion. Perhaps the Court is not questioning the involvement of a constitutional "liberty" or "property" interest in this case, but rather whether the deprivation of those interests was accomplished "under color of" state law. The Court's expressed concern that but for today's decision, negligent tortious behavior by state officials might constitute a § 1983 violation, see Ante, at 698, suggests this reading.2 But that concern is groundless. An official's actions are not "under color of" law merely because he is an official; an off-duty policeman's discipline of his own children, for example, would not constitute conduct "under color of" law. The essential element of this type of § 1983 action3 is Abuse of his Official position. "Congress, in enacting (§ 1983), meant to give a remedy to parties deprived of constitutional rights, privileges and immunities by an official's Abuse of his position." Monroe v. Pape, supra, 365 U.S., at 172, 81 S.Ct., at 476, 5 L.Ed.2d, at 497 (emphasis supplied). Section 1983 focuses on "(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." United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368, 1383 (1941) (emphasis supplied). Moreover, whether or not mere negligent official conduct in the course of duty can ever constitute such abuse of power, the police officials here concede that their conduct was intentional and was undertaken in their official capacities. Therefore, beyond peradventure, it is action taken under color of law, see Ante, at 697, and n. 2, and it is disingenuous for the Court to argue, see Ante, at 700-701, that respondent is seeking to convert § 1983 into a generalized font of tort law. The only issue properly presented by this case is whether petitioners' intentional conduct infringed any of respondent's "liberty" or "property" interests without due process of law, and that is the question to be addressed. I am persuaded that respondent has alleged a case of such infringement, and therefore of a violation of § 1983.
71
The stark fact is that the police here have officially imposed on respondent the stigmatizing label "criminal" without the salutary and constitutionally mandated safeguards of a criminal trial. The Court concedes that this action will have deleterious consequences for respondent. For 15 years, the police had prepared and circulated similar lists, not with respect to shoplifting alone, but also for other offenses. App., 19, 27-28. Included in the five-page list in which respondent's name and "mug shot" appeared were numerous individuals who, like respondent, were never convicted of any criminal activity and whose only "offense" was having once been arrested.4 Indeed, respondent was arrested over 17 months before the flyer was distributed,5 not by state law enforcement authorities, but by a store's private security police, and nothing in the record appears to suggest the existence at that time of even constitutionally sufficient probable cause for that single arrest on a shoplifting charge.6 Nevertheless, petitioners had 1,000 flyers printed (800 were distributed widely throughout the Louisville business community) proclaiming that the individuals identified by name and picture were "subjects known to be active in this criminal field (shoplifting)," and trumpeting the "fact" that each page depicted "Active Shoplifters" (emphasis supplied).7[n]
72
Although accepting the truth of the allegation, as we must on the motion to dismiss, see, E. g., Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 174-175, 86 S.Ct. 347, 348-349, 15 L.Ed.2d 247, 249-250 (1965); cf. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that dissemination of this flyer would "seriously impair (respondent's) future employment opportunities" and "inhibit him from entering business establishments for fear of being suspected of shoplifting and possibly apprehended," Ante, at 697, the Court characterizes the allegation as "mere defamation" involving no infringement of constitutionally protected interests. E. g., ante, at 706. This is because, the Court holds neither a "liberty" nor a "property" interest was invaded by the injury done respondent's reputation and therefore no violation of § 1983 or the Fourteenth Amendment was alleged. I wholly disagree.
73
It is important, to paraphrase the Court, that "(w)e, too, (should) pause to consider the result should (the Court's) interpretation of § 1983 and of the Fourteenth Amendment be accepted." Ante, at 698. There is no attempt by the Court to analyze the question as one of reconciliation of constitutionally protected personal rights and the exigencies of law enforcement. No effort is made to distinguish the "defamation" that occurs when a grand jury indicts an accused from the "defamation" that occurs when executive officials arbitrarily and without trial declare a person an "active criminal."8 Rather, the Court by mere fiat and with no analysis wholly excludes personal interest in reputation from the ambit of "life, liberty, or property" under the Fifth and Fourteenth Amendments, thus rendering due process concerns never applicable to the official stigmatization, however arbitrary, of an individual. The logical and disturbing corollary of this holding is that no due process infirmities would inhere in a statute constituting a commission to conduct ex parte trials of individuals, so long as the only official judgment pronounced was limited to the public condemnation and branding of a person as a Communist, a traitor, an "active murderer," a homosexual, or any other mark that "merely" carries social opprobrium. The potential of today's decision is frightening for a free people.9 That decision surely finds no support in our relevant constitutional jurisprudence.
74
"In Constitution for a free people, there can be no doubt that the meaning of 'liberty' must be broad indeed. See, E. g., Bolling v. Sharpe, 347 U.S. 497, 499-500, 74 S.Ct. 693, 694, 98 L.Ed. 884; Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551." Board of Regents v. Roth, 408 U.S. 564, 572, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548, 558 (1972). "Without doubt it denotes not merely freedom from bodily restraint but also the right of the individual . . . generally 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, 626, 67 L.Ed. 1042, 1045 (1923).10 Certainly the enjoyment of one's good name and reputation has been recognized repeatedly in our cases as being among the most cherished of rights enjoyed by a free people, and therefore as falling within the concept of personal "liberty."
75
"(A)s Mr. Justice Stewart has reminded us, the individual's right to the protection of his own good name
76
" 'reflects no more than our basic concept of the essential dignity and worth of every human being a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system.' Rosenblatt v. Baer, 383 U.S. 75, 92, 86 S.Ct. 669, 679, 15 L.Ed.2d 597 (1966) (concurring opinion)." Gertz v. Robert Welch, Inc., 418 U.S. 323, 341, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789, 806 (1974).11
We have consistently held that
77
" '(W)here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.' Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515; Wieman v. Updegraff, 344 U.S. 183, 191, 73 S.Ct. 215, 219, 97 L.Ed. 216; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817; United States v. Lovett, 328 U.S. 303, 316-317, 66 S.Ct. 1073, 1079, 90 L.Ed. 1252; Peters v. Hobby, 349 U.S. 331, 352, 75 S.Ct. 790, 801, 99 L.Ed. 1129 (Douglas, J., concurring). See Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 898, 81 S.Ct. 1743, 1750, 6 L.Ed.2d 1230." Board of Regents v. Roth, supra, 408 U.S. at 573, 92 S.Ct. at 2707, 33 L.Ed.2d at 558.
78
See also, E. g., Greene v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377, 1390 (1959); Cafeteria Workers v. McElroy, 367 U.S. 886, 899-902, 81 S.Ct. 1743, 1750-1752, 6 L.Ed.2d 1230, 1238-1240 (1961) (Brennan, J., dissenting); Goss v. Lopez, 419 U.S. 565, 574-575, 95 S.Ct. 729, 736-737, 42 L.Ed.2d 725 (1975). In the criminal justice system, this interest is given concrete protection through the presumption of innocence and the prohibition of state-imposed punishment unless the State can demonstrate beyond a reasonable doubt, at a public trial with the attendant constitutional safeguards, that a particular individual has engaged in proscribed criminal conduct. "(B)ecause of the certainty that (one found guilty of criminal behavior) would be stigmatized by the conviction . . . a society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt." In re Winship, 397 U.S. 358, 363-364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368, 375 (1970). "It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty." Id., at 364, 90 S.Ct., at 1073, 25 L.Ed.2d, at 375.12
79
Today's decision marks a clear retreat from Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969), a case closely akin to the factual pattern of the instant case, and yet essentially ignored by the Court. Jenkins, which was also an action brought under § 1983, both recognized that the public branding of an individual implicates interests cognizable as either "liberty" or "property," and held that such public condemnation cannot be accomplished without procedural safeguards designed to eliminate arbitrary or capricious executive action. Jenkins involved the constitutionality of the Louisiana Labor-Management Commission of Inquiry, an executive agency whose "very purpose . . . is to find persons guilty of violating criminal laws without trial or procedural safeguards, and to publicize those findings." 395 U.S., at 424, 89 S.Ct., at 1850, 23 L.Ed.2d, at 418.
80
"(T)he personal and economic consequences alleged to flow from such actions are sufficient to meet the requirement that appellant prove a legally redressable injury. Those consequences would certainly be actionable if caused by a private party and thus should be sufficient to accord appellant standing. See Greene v. McElroy, 360 U.S. 474, 493, n. 22, 79 S.Ct. 1400, 1411, 3 L.E2d 1377(1959); Joint Anti-Fascist Refugee Committee v. McGrath, supra, 341 U.S. at 140-141, 71 S.Ct. (624), at 632 (95 L.Ed. 817) (opinion of Burton, J.); Id., at 151-160, 71 S.Ct. (624), at 637-642 (95 L.Ed. 817) (Frankfurter, J., concurring). It is no answer that the Commission has not itself tried to impose any direct sanctions on appellant; it is enough that the Commission's alleged actions will have a substantial impact on him. . . . Appellant's allegations go beyond the normal publicity attending criminal prosecution; he alleges a concerted attempt publicly to brand him a criminal without a trial." Id., at 424-425, 89 S.Ct., at 1850, 23 L.Ed.2d, at 418.
81
Significantly, we noted that one defect in the Commission was that it "exercises a function very much akin to making an official adjudication of criminal culpability," and that it was "concerned only with exposing violations of criminal laws by specific individuals." Id., at 427, 89 S.Ct., at 1852, 23 L.Ed.2d, at 420. "(I)t is empowered to be used and allegedly is used to find named individuals guilty of violating the criminal laws of Louisiana and the United States and to brand them as criminals in public." Id., at 428, 89 S.Ct., at 1852, 23 L.Ed.2d, at 420. See also Ibid., quoting Hannah v. Larche, 363 U.S. 420, 488, 80 S.Ct. 1502, 1543, 4 L.Ed.2d 1307, 1353 (1960) (Frankfurter, J., concurring in result). Although three Justices in dissent would have dismissed the complaint for lack of standing, since there were no allegations that the appellant would be investigated, called as a witness, or named in the Commission's findings, 395 U.S., at 436, 80 S.Ct., at 1512, 4 L.Ed.2d, at 1318 (Harlan, J., dissenting), they nevertheless observed, Id., at 438, 80 S.Ct., at 1857, 4 L.Ed.2d, at 1318:
82
"(There is) a constitutionally significant distinction between two kinds of governmental bodies. The first is an agency whose sole or predominant function, without serving any other public interest, is to expose and publicize the names of persons it finds guilty of wrongdoing. To the extent that such a determination whether called a 'finding' or an 'adjudication' finally and directly affects the substantial personal interests, I do not doubt that the Due Process Clause may require that it be accompanied by many of the traditional adjudicatory procedural safeguards. Cf. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (1951)."
83
See also Id., at 442, 89 S.Ct., at 1859, 23 L.Ed.2d, at 428. Thus, although the Court was divided on the particular procedural safeguards that would be necessary in particular circumstances, the common point of agreement, and the one that the Court today inexplicably rejects, was that the official characterization of an individual as a criminal affects a constitutional "liberty" interest.
84
The Court, however, relegates its discussion of Jenkins to a dissembling footnote. First, the Court ignores the fact that the Court in Jenkins clearly recognized a constitutional "liberty" or "property" interest in reputation sufficient to invoke the strictures of the Fourteenth Amendment.13 It baffles me how, in the face of that holding, the Court can come to today's conclusion by reliance on the fact that the conduct in question does not "come within the language" of the Dissent in Jenkins, ante, at 706 n. 4. Second, and more important, the Court's footnote manifests the same confusion that pervades the remainder of its opinion; it simply fails to recognize the crucial difference between the question whether there is a personal interest in one's good name and reputation that is constitutionally cognizable as a "liberty" or "property" interest within the Fourteenth and Fifth Amendment Due Process Clauses, and the totally separate question whether particular government action with respect to that interest satisfies the mandates of due process. See, e. g., supra, at 720-721, and n. 8. Although the dissenters in Jenkins thought that the Commission's procedures complied with due process, they clearly believed that there was a personal interest that had to be weighed in reaching that conclusion.14 The dissenters in Jenkins, like the Court in Hannah v. Larche, supra, held the view that in the context of a purely investigatory, factfinding agency, full trial safeguards are not required to comply with due process. But that question would never have been reached unless there were some constitutionally cognizable personal interest making the inquiry necessary the interest in reputation that is affected by public "exposure." The Court, by contrast, now implicitly repudiates a substantial body of case law and finds no such constitutionally cognizable interest in a person's reputation, thus foreclosing any inquiry into the procedural protections accorded that interest in a given situation.
85
In short, it is difficult to fathom what renders respondent's interest in his reputation somehow different from the personal interest affected by " 'an agency whose sole or predominant function, without serving any other public interest, is to expose and publicize the names of persons it finds guilty of wrongdoing.' " Ante, at 706 n. 4, quoting 395 U.S., at 438, 89 S.Ct., at 1857, 23 L.Ed.2d, at 426. Surely the difference cannot be found in the fact that police officials rather than a statutory "agency" engaged in the stigmatizing conduct, for both situations involve the requisite action "under color of" law. Ante, at 697 n. 2. Nor can the difference be found in the argument that petitioners' actions were "serving any other public interest," for that consideration Only affects the outcome of the due process balance in a particular case, not whether there is a personal "liberty" interest to be weighed against the government interests supposedly justifying the State's official actions. It is remarkable that the Court, which is so determined to parse the language of other cases, see generally Ante, Part II, can be thus oblivious to the fact that Every Member of the Court so recently felt that the intentional, public exposure of alleged wrongdoing like the branding of an individual as an "active shoplifter" implicates a constitutionally protected "liberty" or "property" interest and requires analysis as to whether procedures adequate to satisfy due process were accorded the accused by the State.
86
Moreover, Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), which was relied on by the Court of Appeals in this case, did not rely at all on the fact asserted by the Court today as controlling namely, upon the fact that "posting" denied Ms. Constantineau the right to purchase alcohol for a year, ante, at 708-709. Rath, Constantineau stated: "The Only issue present here is whether the label or characterization given a person by 'posting,' though a mark of serious illness to some, is to others such a stigma or badge of disgrace that procedural due process requires notice and an opportunity to be heard." 400 U.S., at 436, 91 S.Ct., at 509, 27 L.Ed.2d, at 518 (emphasis supplied). In addition to the statements quoted by the Court, Ante, at 707-708, the Court in Constantineau continued: " 'Posting' under the Wisconsin Act may to some be merely the mark of illness, to others it is a stigma, an official branding of a person. The label is a degrading one. Under the Wisconsin Act, a resident of Hartford is given no process at all. This appellee was not afforded a chance to defend herself. She may have been the victim of an official's caprice. Only when the whole proceedings leading to the pinning of an unsavory label on a person are aired can oppressive results be prevented." 400 U.S., at 437, 91 S.Ct., at 510, 27 L.Ed.2d, at 519. " '(T)he 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.' " Ibid., quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 646, 95 L.Ed. 817, 852 (1951) (Frankfurter, J., concurring) (emphasis supplied). There again, the fact that government stigmatization of an individual implicates constitutionally protected interests was made plain.15
87
Thus Jenkins and Constantineau, and the decisions upon which they relied, are cogent authority that a person's interest in his good name and reputation falls within the broad term "liberty" and clearly require that the government afford procedural protections before infringing that name and reputation by branding a person as a criminal. The Court is reduced to discrediting the clear thrust of Constantineau and Jenkins by excluding the interest in reputation from all constitutional protection "if there is any other possible interpretation" by which to deny their force as precedent according constitutional protection for the interest in reputation.16 Ante, at 708. The Court's approach oblivious both to Mr. Chief Justice Marshall's admonition that "we must never forget, that it is A constitution we are expounding," McCulloch v. Maryland, 4 Wheat. 316, 407, 4 L.Ed. 579, 601 (1819), and to the teaching of cases such as Roth and Meyer, which were attentive to the necessary breadth of constitutional "liberty" and "property" interests, see nn. 10, 15, supra—is to water down our prior precedents by reinterpreting them as confined to injury to reputation that affects an individual's employment prospects or, as "a right or status previously recognized by state law (that the State) distinctly altered or extinguished." Ante, at 711. See also, E. g., ante, at 701, 704-706, 709-710, 710-712. The obvious answer is that such references in those cases (when there even were such references) concerned the particular fact situations presented, and in nowise implied any limitation upon the application of the principles announced. E. g., ante, at 709-710, quoting Board of Regents v. Roth, 408 U.S., at 573, 92 S.Ct., at 2707, 33 L.Ed.2d, at 558. See n. 15, Supra. Discussions of impact upon future employment opportunities were nothing more than recognition of the logical and natural consequences flowing from the stigma condemned. E. g., ante, at 705-706, quoting Cafeteria Workers v. McElroy, 367 U.S., at 898, 81 S.Ct. 1743, 6 L.Ed.2d 1230, 1238.17
88
Moreover, the analysis has a hollow ring in light of the Court's acceptance of the truth of the allegation that the "active shoplifter" label would "seriously impair (respondent's) future employment opportunities." Ante, at 697. This is clear recognition that an official "badge of infamy" affects tangible interests of the defamed individual and not merely an abstract interest in how people view him; for the "badge of infamy" has serious consequences in its impact on no less than the opportunities open to him to enjoy life, liberty, and the pursuit of happiness. It is inexplicable how the Court can say that a person's status is "altered" when the State suspends him from school, revokes his driver's license, fires him from a job, or denies him the right to purchase a drink of alcohol, but is in no way "altered" when it officially pins upon him the brand of a criminal, particularly since the Court recognizes how deleterious will be the consequences that inevitably flow from its official act. See, E. g., ante, at 708-709, 711-712. Our precedents clearly mandate that a person's interest in his good name and reputation is cognizable as a "liberty" interest within the meaning of the Due Process Clause, and the Court has simply failed to distinguish those precedents in any rational manner in holding that no invasion of a "liberty" interest was effected in the official stigmatizing of respondent as a criminal without any "process" whatsoever.
89
I have always thought that one of this Court's most important roles is to provide a formidable bulwark against governmental violation of the constitutional safeguards securing in our free society the legitimate expectations of every person to innate human dignity and sense of worth. It is a regrettable abdication of that role and a saddening denigration of our majestic Bill of Rights when the Court tolerates arbitrary and capricious official conduct branding an individual as a criminal without compliance with constitutional procedures designed to ensure the fair and impartial ascertainment of criminal culpability. Today's decision must surely be a short-lived aberration.18
1
The "and laws" provision of 42 U.S.C. § 1983 is not implicated in this case.
2
It is not disputed that petitioners' actions were a part of their official conduct and that this element of a § 1983 cause of action is satisfied here.
3
If respondent is correct in his contention that defamation by a state official is actionable under the Fourteenth Amendment, it would of course follow that defamation by a federal official should likewise be actionable under the cognate Due Process Clause of the Fifth Amendment. Surely the Fourteenth Amendment imposes no more stringent requirements upon state officials than does the Fifth upon their federal counterparts. We thus consider this Court's decisions interpreting either Clause as relevant to our examination of respondent's claim.
4
We cannot agree with the suggestion of our Brother BRENNAN, dissenting, Post, at 727, that the actions of these two petitioner law enforcement officers come within the language used by Mr. Justice Harlan in his dissenting opinion in Jenkins v. McKeithen, 395 U.S. 411, 433, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). They are not by any conceivable stretch of the imagination, either separately or together, "an agency whose sole or predominant function, without serving any other public interest, is to expose and publicize the names of persons it finds guilty of wrongdoing." Id., at 438, 89 S.Ct., at 1857, 23 L.Ed.2d, at 426. Indeed, the actions taken by these petitioners in this case fall far short of the more formalized proceedings of the Commission on Civil Rights established by Congress in 1957, the procedures of which were upheld against constitutional challenge by this Court in Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960). There the Court described the functions of the Commission in this language:
"It does not adjudicate. It does not hold trials or determine anyone's civil or criminal liability. It does not issue orders. Nor does it indict, punish, or impose any Legal sanctions. It does not make determinations depriving anyone of his life, liberty, or property. In short, the Commission does not and cannot take any affirmative action which will affect an individual's Legal rights. The only purpose of its existence is to find facts which may subsequently be used as the basis for legislative or executive action." Id., at 441, 80 S.Ct., at 1514, 4 L.Ed.2d, at 1321 (emphasis supplied).
Addressing itself to the question of whether the Commission's "proceedings might irreparably harm those being investigated by subjecting them to public opprobrium and scorn, the distinct likelihood of losing their jobs, and the possibility of criminal prosecutions," the Court said that "even if such collateral consequences were to flow from the Commission's investigations, they would not be the result of any affirmative determinations made by the Commission, and they would not affect the legitimacy of the Commission's investigative function." Id., at 443, 80 S.Ct., at 1515, 4 L.Ed.2d, at 1322.
5
There are other interests, of course, protected not by virtue of their recognition by the law of a particular State but because they are guaranteed in one of the provisions of the Bill of Rights which has been "incorporated" into the Fourteenth Amendment. Section 1983 makes a deprivation of such rights actionable independently of state law. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).
Our discussion in Part III is limited to consideration of the procedural guarantees of the Due Process Clause and is not intended to describe those substantive limitations upon state action which may be encompassed within the concept of "liberty" expressed in the Fourteenth Amendment. Cf. Part IV, Infra.
1
Deprivations of rights secured by "laws" as well as by the Constitution are actionable under § 1983. Only an alleged constitutional violation is involved in this case. Ante, at 697 n. 1.
2
Indeed, it would be difficult to interpret that discussion as anything but a discussion of the "under color of" law requirement of § 1983, which is not involved in this case and which has no relationship to the question whether a "liberty" or "property" interest is involved here. There is simply no way in which the Court, despite today's treatment of the terms "liberty" and "property," could declare that the loss of a person's life is not an interest cognizable within the "life" portion of the Due Process Clause. See Ante, at 698-699.
3
Of course, in addition to providing a remedy when an official abuses his position, § 1983 is designed to provide a remedy when a state statute itself abridges constitutional rights, when a remedy under state law is inadequate to protect constitutional rights, and when a state remedy, though adequate in theory, is unavailable in practice. See, E. g., Monroe v. Pape, 365 U.S. 167, 173-174, 81 S.Ct. 473, 476-477, 5 L.Ed.2d 492, 497-498 (1961).
4
Petitioners testified:
"Q. And you didn't limit this to persons who had been convicted of the offense of shoplifting, is that correct?
"A. That's correct.
"Q. Now, my question is what is the basis for your conclusion that a person a person who has been arrested for the offense of shoplifting is an active shoplifter?
"A. The very fact that he's been arrested for the charge of shoplifting and evidence presented to that effect.
"Q. And this is not based on any finding of the court?
"A. No, sir." App. 26.
"Q. All right. So that if my understanding is correct, this included all persons who were arrested in '71 and '72?
"A. That's true.
"Q. And selected persons from who were arrested in previous years?
"A. . . . I assume from the number of persons here that many of these have been arrested many years back down the line consecutively . . . .
"Q. So there's no distinction made between persons whose arrest terminated in convictions and persons whose arrest did not terminate in convictions?
"A. No, sir." Id. 29.
5
Respondent was arrested on June 14, 1971. He pleaded not guilty and the charge was "filed away with leave (to reinstate)" on September 22, 1971. The distribution of the flyer was on December 5, 1972. The shoplifting charge was dismissed on December 11, 1972, and respondent filed his complaint the following day. He sought compensatory and punitive damages, and an injunction prohibiting similar dissemination of such flyers in the future and ordering petitioners to obtain the return of the flyers and to instruct those who received them that respondent and the others pictured in the flyers were not "active shoplifters," and had not been convicted of shoplifting or any similar offense. Respondent's only other arrest took place five years previously for a speeding offense.
6
The Court, by totally excluding a person's interest in his reputation from any cognizance under the Due Process Clause, would be forced to reach the same conclusion that there is no cause of action under § 1983 even to obtain injunctive relief if petitioners had randomly selected names from the Louisville telephone directory for inclusion in the "active shoplifters" flyer. Of course, even if a person has been arrested on a constitutionally sufficient basis, that does not justify the State's treating him as a criminal.
"The mere fact that a man has been arrested has very little, if any, probative value in showing that he has engaged in any misconduct. An arrest shows nothing more than that someone probably suspected the person apprehended of an offense. When formal charges are not filed against the arrested person and he is released without trial, whatever probative force the arrest may have had is normally dissipated." Schware v. Board of Bar Examiners, 353 U.S. 232, 241, 77 S.Ct. 752, 757, 1 L.Ed.2d 796, 803 (1957). The constitutional presumption of innocence, the requirement that conviction for a crime must be based on proof beyond a reasonable doubt, and the other safeguards of a criminal trial are obviously designed at least in part to give concrete meaning to this fact.
7
At one point in the flyer, there was also an indication that "(t)hese persons have been arrested during 1971 and 1972 Or have been active in various criminal fields in high density shopping areas." The stated purpose of the flyer was "so that you, the businessman . . . may inform your security personnel to Watch for these subjects." Ante, at 695 (emphasis supplied).
8
Indeed, the Court's opinion confuses the two separate questions of whether reputation is a "liberty" or "property" interest and whether, in a particular context, state action with respect to that interest is a violation of due process. E. g., ante, at 698-699, 701-702, and n. 3 (assuming that if reputation is a cognizable liberty or property interest, every defamation by a public official would be an offense against the Due Process Clause of the Fifth or Fourteenth Amendment).
9
Today's holding places a vast and arbitrary power in the hands of federal and state officials. It is not difficult to conceive of a police department, dissatisfied with what it perceives to be the dilatory nature or lack of efficacy of the judicial system in dealing with criminal defendants, publishing periodic lists of "active rapists," "active larcenists," or other "known criminals." The hardships resulting from this official stigmatization loss of employment and educational opportunities, creation of impediments to professional licensing, and the imposition of general obstacles to the right of all free men to the pursuit of happiness will often be as severe as actual incarceration, and the Court today invites and condones such lawless action by those who wish to inflict punishment without compliance with the procedural safeguards constitutionally required of the criminal justice system.
10
One of the more questionable assertions made by the Court suggests that "liberty" or "property" interests are protected only if they are recognized under state law or protected by one of the specific guarantees of the Bill of Rights. Ante, at 710 and n. 5. To be sure, the Court has held that "(p) roperty interests . . . 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." Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548, 561 (1972) (emphasis supplied). See also, E. g., Goss v. Lopez, 419 U.S. 565, 572-573, 95 S.Ct. 729, 734, 42 L.Ed.2d 725, 733 (1975). However, it should also be clear that if the Federal Government, for example, creates an entitlement to some benefit, the States cannot infringe a person's enjoyment of that "property" interest without compliance with the dictates of due process. Moreover, we have never restricted "liberty" interests in the manner the Court today attempts to do. The Due Process Clause of the Fifth Amendment, like the Due Process Clause of the Fourteenth Amendment, protects "liberty" interests. But the content of "liberty" in those Clauses has never been thought to depend on recognition of an interest by the State or Federal Government, and has never been restricted to interests explicitly recognized by other provisions of the Bill of Rights:
" 'While this Court has not attempted to define with exactness the liberty . . . guaranteed (by the Fourteenth Amendment), the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally 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, 626, 67 L.Ed. 1042." Board of Regents v. Roth, supra, 408 U.S. at 572, 92 S.Ct. at 2706, 33 L.Ed.2d at 558.
See also, E. g., Arnett v. Kennedy, 416 U.S. 134, 157, 94 S.Ct. 1633, 1645, 40 L.Ed.2d 15, 35 (1974) (opinion of Rehnquist, J.). It should thus be clear that much of the content of "liberty" has no tie whatsoever to particular provisions of the Bill of Rights, and the Court today gives no explanation for its narrowing of that content.
11
It is strange that the Court should hold that the interest in one's good name and reputation is not embraced within the concept of "liberty" or "property" under the Fourteenth Amendment, and yet hold that that same interest, when recognized under state law, is sufficient to overcome the specific protections of the First Amendment. See, E. g., Gertz v. Robert Welch, Inc.; Time, Inc. v. Firestone, ante, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976).
12
The Court's insensitivity to these constitutional dictates is particularly evident when it declares that because respondent had never been brought to trial, "his guilt or innocence of that offense (shoplifting) had never been resolved." Ante, at 696. It is hard to conceive of a more devastating flouting of the presumption of innocence, 25 L.Ed.2d, at 375, "that bedrock 'axiomatic and elementary' principle whose 'enforcement lies at the foundation of the administration of our criminal law.' " In re Winship, 397 U.S., at 363, 90 S.Ct., at 1072, quoting Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 402, 39 L.Ed. 481, 491 (1895). Moreover, even if a person was once convicted of a crime, that does not mean that he is "actively engaged" in that activity now.
13
Of course, such oversights are typical of today's opinion. Compare, E. g., the discussions of Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), Ante, at 710 and n. 15, Infra; the discussions of Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), Ante, at 707-709, and Infra, at 729-730.
14
For example, in addition to the statements already quoted in text, the dissenters observed:
The Commission thus bears close resemblance to certain federal administrative agencies . . .. These agencies have one salient feature in common, which distinguishes them from those designed simply to 'expose.' None of them is the Final arbiter of anyone's guilt or innocence. Each, rather, plays only a Preliminary role designed, in the usual course of events, to Initiate a subsequent formal proceeding in which the accused will enjoy the full panoply of procedural safeguards. For this reason, and because such agencies could not otherwise practicably pursue their investigative functions, they have not been required to follow 'adjudicatory' procedures. 395 U.S., at 439, 442, 89 S.Ct., at 858, 23 L.Ed.2d at 427.
"Although in this respect the Commission is not different from the federal agencies discussed above, I am not ready to say that the collateral consequences of government-sanctioned opprobrium may not under some circumstances entitle a person to some right, consistent with the Commission's efficient performance of its investigatory duties, to have his public say in rebuttal. However, the Commission's procedures are far from being niggardly in this respect. . . .
" . . . It may be that some of my Brethren understand the complaint to allege that in fact the Commission acts primarily as an agency of 'exposure,' rather than one which serves the ends required by the state statutes. If so although I do not believe that the complaint can be reasonably thus construed the area of disagreement between us may be small or nonexistent." Id., at 442, 89 S.Ct., at 858.
15
Even more recently, in Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), we recognized that students may not be suspended from school without being accorded due process safeguards. We explicitly referred to "the liberty interest in reputation" implicated by such suspensions, Id., at 576, 95 S.Ct., at 737, 42 L.Ed.2d, at 735, based upon the fact that suspension for certain actions would stigmatize the student, Id., at 574-575, 95 S.Ct., at 736, 42 L.Ed.2d, at 735:
"The Due Process Clause also forbids arbitrary deprivations of
liberty. 'Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him,' the minimal requirements of the Clause must be satisfied. Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971); Board of Regents v. Roth, supra, 408 U.S. at 573, 92 S.Ct. (2701) at 2707 (33 L.Ed.2d 548). School authorities here suspended appellees from school for periods of up to 10 days based on charges of misconduct. If sustained and recorded, those charges could seriously damage the students' standing with their fellow pupils and their teachers as well as interfere with later opportunities for higher education and employment. It is apparent that the claimed right of the State to determine unilaterally and without process whether that misconduct has occurred immediately collides with the requirements of the Constitution."
The Court states that today's holding is "quite consistent" with Goss because "Ohio law conferred a right upon all children to attend school, and . . . the act of the school officials suspending the student there involved resulted in a denial or deprivation of that right." Ante, at 710. However, that was only one-half of the holding in Goss. The Ohio law established a Property interest of which the Court held a student could not be deprived without being accorded due process. 419 U.S., at 573-574, 95 S.Ct., at 735, 42 L.Ed.2d, at 733-734. However, the Court also specifically recognized that there was an independent Liberty interest implicated in the case, not dependent upon the statutory right to attend school, but based, as noted above, on the fact that suspension for certain conduct could affect a student's "good name, reputation, honor, or integrity." Id., at 574-575, 95 S.Ct., at 736, 42 L.Ed.2d, at 735.
Similarly, the idea that the language in Board of Regents v. Roth, supra, is "quite inconsistent with any notion that a defamation perpetrated by a government official but unconnected with any refusal to rehire would be actionable," Ante, at 709, borders on the absurd. The Court in Roth, like the Court in Goss, explicitly quoted the language from Constantineau that the Court today denigrates, Ante, at 707-709, and it was clear that Roth was focusing on stigmatization as such. We said there that when due process safeguards are required in such situations, the "purpose of such notice and hearing is to provide the person an opportunity To clear his name," 408 U.S., at 573 n. 12, 92 S.Ct., at 2707, 33 L.Ed.2d, at 558 (emphasis supplied), and only found no requirement for due process safeguards because "(i)n the present case . . . there
is no suggestion whatever that the respondent's 'good name, reputation, honor, or integrity' is at stake." Id., at 573, 92 S.Ct., at 2707, 33 L.Ed.2d, at 558. See also Arnett v. Kennedy, 416 U.S., at 157, 94 S.Ct., at 1646, 40 L.Ed.2d 15 (opinion of Rehnquist, J.) ("(L)iberty 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 . . . . (T)he purpose of the hearing in such a case is to provide the person 'an opportunity to clear his name' . . ."). The fact that a stigma is imposed by the government in terminating the employment of a government employee may make the existence of state action unquestionable, but it surely does not detract from the fact that the operative "liberty" concept relates to the official stigmatization of the individual, whether imposed by the government in its status as an employer or otherwise.
16
Similar insensitivity is exhibited by the Court when it declares that respondent "has pointed to no specific constitutional guarantee safeguarding the interest he asserts has been invaded." Ante, at 700. The gravamen of respondent's complaint is that he has been stigmatized as a criminal without Any of the constitutional protections designed to prevent an erroneous determination of criminal culpability.
17
The import of these cases and the obvious impact of official stigmatization as a criminal were not lost on the Court of Appeals in this case:
"This label ("active shoplifter") carries with it the badge of disgrace of a criminal conviction. Moreover, it is a direct statement by law enforcement officials that the persons included in the flyer are presently pursuing an active course of criminal conduct. All of this was done without the slightest regard for due process. There was no notice nor opportunity to be heard prior to the distribution of the flyer, and appellant and others have never been accorded the opportunity to refute the charges in a criminal proceeding. It goes without saying that the Police Chiefs cannot determine the guilt or innocence of an accused in an administrative proceeding. Such a determination can be made only in a court of law.
"The harm is all the more apparent because the branding has been done by law enforcement officials with the full power, prestige and authority of their positions. There can be little doubt that a person's standing and associations in the community have been damaged seriously when law enforcement officials brand him an active shoplifter, accuse him of a continuing course of criminal conduct, group him with criminals and distribute his name and photograph to the merchants and businessmen of the community. Such acts are a direct and devastating attack on the good name, reputation, honor and integrity of the person involved. The fact of an arrest without more may impair or cloud a person's reputation. Michelson v. United States, 335 U.S. 469, 482, 69 S.Ct. 213, 93 L.Ed. 168 (1948). Such acts on the part of law enforcement officials may result in direct economic loss and restricted opportunities for schooling, employment and professional licenses. Menard v. Mitchell, 139 U.S.App.D.C. 113, 430 F.2d 486, 490 (1970)." 505 F.2d 1180, 1183 (1974).
18
In light of my conviction that the State may not condemn an individual as a criminal without following the mandates of the trial process, I need not address the question whether there is an independent right of privacy which would yield the same result. Indeed, privacy notions appear to be inextricably interwoven with the considerations which require that a State not single an individual out for punishment outside the judicial process. Essentially, the core concept would be that a State cannot broadcast even such factual events as the occurrence of an arrest that does not culminate in a conviction when there are no legitimate law enforcement justifications for doing so, since the State is chargeable with the knowledge that many employers will treat an arrest the same as a conviction and deny the individual employment or other opportunities on the basis of a fact that has no probative value with respect to actual criminal culpability. See, E. g., Michelson v. United States, 335 U.S. 469, 482, 69 S.Ct. 213, 221, 93 L.Ed. 168, 177 (1948); Schware v. Board of Bar Examiners, 353 U.S., at 241, 77 S.Ct., at 757, 1 L.Ed.2d, at 802. A host of state and federal courts, relying on both privacy notions and the presumption of innocence, have begun to develop a line of cases holding that there are substantive limits on the power of the government to disseminate unresolved arrest records outside the law enforcement system, see, E. g., Utz v. Cullinane, 172 U.S.App.D.C. 67, 520 F.2d 467 (1975); Tarlton v. Saxbe, 165 U.S.App.D.C. 293, 507 F.2d 1116 (1974); United States v. Dooley, 364 F.Supp. 75 (E.D.Pa.1973); Menard v. Mitchell, 328 F.Supp. 718, 725-726 (D.C.1971), rev'd on other grounds, 162 U.S.App.D.C. 284, 498 F.2d 1017 (1974); United States v. Kalish, 271 F.Supp. 968 (P.R.1967); Davidson v. Dill, 180 Colo. 123, 503 P.2d 157 (1972); Eddy v. Moore, 5 Wash.App. 334, 487 P.2d 211 (1971). I fear that after today's decision, these nascent doctrines will never have the opportunity for full growth and analysis. Since the Court of Appeals did not address respondent's privacy claims, and since there has not been substantial briefing or oral argument on that point, the Court's pronouncements are certainly unnecessary. Of course, States that are more sensitive than is this Court to the privacy and other interests of individuals erroneously caught up in the criminal justice system are certainly free to adopt or adhere to higher standards under state law. See, E. g., Michigan v. Mosley, 423 U.S. 96, 111, 120-121, 96 S.Ct. 321, 330, 334-335, 46 L.Ed.2d 313, 326, 331-332 (1975) (Brennan, J., dissenting).
Mr. Justice WHITE does not concur in this footnote.
| 12
|
424 U.S. 737
96 S.Ct. 1202
47 L.Ed.2d 435
LIBERTY MUTUAL INSURANCE COMPANY, Petitioner,v.Sandra WETZEL et al.
No. 74-1245.
Argued Jan. 19, 1976.
Decided March 23, 1976.
Syllabus
Respondents filed a complaint alleging that petitioner's employee insurance benefits and maternity leave regulations discriminated against its women employees in violation of Title VII of the Civil Rights Act of 1964, and seeking injunctive relief, damages, costs, and attorneys' fees. After ruling in respondents' favor on their motion for a partial summary judgment on the issue of petitioner's liability under the Act, the District Court, upon denying petitioner's motion for reconsideration, issued an amended order stating that injunctive relief would be withheld because petitioner had filed an appeal and had asked for a stay of any injunction, and directing that, pursuant to Fed.Rule Civ.Proc. 54(b), final judgment be entered for respondents, there being no just reason for delay. The Court of Appeals, holding that it had jurisdiction of petitioner's appeal under 28 U.S.C. § 1291, affirmed on the merits. Held:
1. The District Court's order was not appealable as a final decision under § 1291. Pp. 742-744.
(a) Even assuming that the order was a declaratory judgment on the issue of liability, it nevertheless left unresolved and did not finally dispose of any of the respondents' prayers for relief. P. 742.
(b) The order did not become appealable as a final decision pursuant to § 1291 merely because it made the recital required by Rule 54(b), since that Rule applies only to multiple-claim actions in which one or more but less than all of the claims have been finally decided and are found otherwise ready for appeal, and does not apply to a single-claim action such as this one where the complaint advanced a single legal theory that was applied to only one set of facts. Pp. 742-744.
(c) The order, apart from its reference to Rule 54(b), constitutes a grant of partial summary judgment limited to the issue of petitioner's liability, is by its terms interlocutory, and, where damages or other relief remain to be resolved, cannot be considered "final" within the meaning of § 1291. P. 744.
2. Nor was the order appealable pursuant to 28 U.S.C. § 1292's provisions for interlocutory appeals. Pp. 744-745.
(a) Even if the order insofar as it failed to include the requested injunctive relief could be considered an interlocutory order refusing an injunction within the meaning of § 1292(a)(1), and thus would have allowed Respondents then to obtain review in the Court of Appeals, there was no denial of any injunction sought by Petitioner and it could not avail itself of that grant of jurisdiction. Pp. 744-745.
(b) Even if the order could be considered as an order that the District Court certified for immediate appeal pursuant to § 1292(b) as involving a controlling question of law as to which there was substantial ground for difference of opinion, it does not appear that petitioner applied to the Court of Appeals for permission to appeal within 10 days as required by § 1292(b); moreover, there can be no assurance had the other requirements of § 1292(b) been met that the Court of Appeals would have exercised its discretion to entertain the interlocutory appeal. P. 745.
3 Cir., 511 F.2d 199, vacated and remanded.
Kalvin M. Grove, Chicago, Ill., for petitioner.
Howard A. Specter, Pittsburgh, Pa., for respondents.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Respondents filed a complaint in the United States District Court for the Western District of Pennsylvania in which they asserted that petitioner's employee insurance benefits and maternity leave regulations discriminated against women in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e Et seq. (1970 ed. and Supp. IV). The District Court ruled in favor of respondents on the issue of petitioner's liability under that Act, and petitioner appealed to the Court of Appeals for the Third Circuit. That court held that it had jurisdiction of petitioner's appeal under 28 U.S.C. § 1291, and proceeded to affirm on the merits the judgment of the District Court. We
2
[Amicus Curiae Information from page 739 intentionally omitted] granted certiorari, 421 U.S. 987, 95 S.Ct. 1989, 44 L.Ed.2d 476 (1975), and heard argument on the merits. Though neither party has questioned the jurisdiction of the Court of Appeals to entertain the appeal, we are obligated to do so on our own motion if a question thereto exists. Mansfield, Coldwater & Lake Michigan R. Co. v. Swan, 111 U.S. 379, 4 S.Ct. 510, L.Ed. 462 (1884). Because we conclude that the District Court's order was not appealable to the Court of Appeals, we vacate the judgment of the Court of appeals with instructions to dismiss petitioner's appeal from the order of the District Court.
3
Respondents' complaint, after alleging jurisdiction and facts deemed pertinent to their claim, prayed for a judgment against petitioner embodying the following relief:
4
"(a) requiring that defendant establish non-discriminatory hiring, payment, opportunity, and promotional plans and programs;
5
"(b) enjoining the continuance by defendant of the illegal acts and practices alleged herein;
6
"(c) requiring that defendant pay over to plaintiffs and to the members of the class the damages sustained by plaintiffs and the members of the class by reason of defendant's illegal acts and practices, including adjusted backpay, with interest, and an additional equal amount as liquidated damages, and exemplary damages;
7
"(d) requiring that defendant pay to plaintiffs and to the members of the class the costs of this suit and a reasonable attorneys' fee, with interest; and
8
"(e) such other and further relief as the Court deems appropriate." App. 19.
9
After extensive discovery, respondents moved for partial summary judgment only as to the issue of liability. Fed.Rule Civ.Proc. 56(c). The District Court on January 9, 1974, 372 F.Supp. 1146, finding no issues of material fact in dispute, entered an order to the effect that petitioner's pregnancy-related policies violated Title VII of the Civil Rights Act of 1964. It also ruled that Liberty Mutual's hiring and promotion policies violated Title VII.1 Petitioner thereafter filed a motion for reconsideration which was denied by the District Court. Its order of February 20, 1974, 372 F.Supp. at 1163, denying the motion for reconsideration, contains the following concluding language:
10
"In its Order the court stated it would enjoin the continuance of practices which the court found to be in violation of Title VII. The Plaintiffs were invited to submit the form of the injunction order and the Defendant has filed Notice of Appeal and asked for stay of any injunctive order. Under these circumstances the court will withhold the issuance of the injunctive order and amend the Order previously issued under the provisions of Fed.R.Civ.P. 54(b), as follows:
11
"And now this 20th day of February, 1974, it is directed that final judgment be entered in favor of Plaintiffs that Defendant's policy of requiring female employees to return to work within three months of delivery of a child or be terminated is in violation of the provisions of Title VII of the Civil Rights Act of 1964; that Defendant's policy of denying disability income protection plan benefits to female employees for disabilities related to pregnancies or childbirth are (Sic ) in violation of Title VII of the Civil Rights Act of 1964 and that it is expressly directed that Judgment be entered for the Plaintiffs upon these claims of Plaintiffs' Complaint; there being no just reason for delay." 372 F.Supp. 1146, 1164.
12
It is obvious from the District Court's order that respondents, although having received a favorable ruling on the issue of petitioner's liability to them, received none of the relief which they expressly prayed for in the portion of their complaint set forth above. They requested an injunction, but did not get one; they requested damages, but were not awarded any; they requested attorneys' fees, but received none.
13
Counsel for respondents when questioned during oral argument in this Court suggested that at least the District Court's order of February 20 amounted to a declaratory judgment on the issue of liability pursuant to the provisions of 28 U.S.C. § 2201. Had respondents sought Only a declaratory judgment, and no other form of relief, we would of course have a different case. But even if we accept respondents' contention that the District Court's order was a declaratory judgment on the issue of liability, it nonetheless left unresolved respondents' requests for an injunction, for compensatory and exemplary damages, and for attorneys' fees. It finally disposed of none of respondents' prayers for relief.
14
The District Court and the Court of Appeals apparently took the view that because the District Court made the recital required by Fed.Rule Civ.Proc. 54(b) that final judgment be entered on the issue of liability, and that there was no just reason for delay, the orders thereby became appealable as a final decision pursuant to 28 U.S.C. § 1291. We cannot agree with this application of the Rule and statute in question.
15
Rule 54(b)2 "does not apply to a single claim action . . . . It is limited expressly to multiple claims actions in which 'one or more but less than all' of the multiple claims have been finally decided and are found otherwise to be ready for appeal." Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 435, 76 S.Ct. 895, 899, 100 L.Ed. 1297, 1306 (1956).3 Here, however, respondents set forth but a single claim: that petitioner's employee insurance benefits and maternity leave regulations discriminated against its women employees in violation of Title VII of the Civil Rights Act of 1964. They prayed for several different types of relief in the event that they sustained the allegations of their complaint, see Fed.Rule Civ.Proc. 8(a)(3), but their complaint advanced a single legal theory which was applied to only one set of facts.4 Thus, despite the fact that the District Court undoubtedly made the findings required under the Rule had it been applicable, those findings do not in a case such as this make the order appealable pursuant to 28 U.S.C. § 1291. See Mackey, supra, at 437-438, 76 S.Ct. at 900-901, 100 L.Ed. at 1307-1308.
16
We turn to consider whether the District Court's order might have been appealed by petitioner to the Court of Appeals under any other theory. The order, viewed apart from its discussion of Rule 54(b), constitutes a grant of partial summary judgment limited to the issue of petitioner's liability. Such judgments are by their terms interlocutory, see Fed.Rule Civ.Proc. 56(c), and where assessment of damages or awarding of other relief remains to be resolved have never been considered to be "final" within the meaning of 28 U.S.C. § 1291. See, E. g., Borges v. Art Steel Co., 243 F.2d 350 (CA2 1957); Leonidakis v. International Telecoin Corp., 208 F.2d 934 (CA2 1953); Tye v. Hertz Drivurself Stations, 173 F.2d 317 (CA3 1949); Russell v. Barnes Foundation, 136 F.2d 654 (CA3 1943). Thus the only possible authorization for an appeal from the District Court's order would be pursuant to the provisions of 28 U.S.C. § 1292.
17
If the District Court had granted injunctive relief but had not ruled on respondents' other requests for relief, this interlocutory order would have been appealable under § 1292(a)(1).5 But, as noted above, the court did not issue an injunction. It might be argued that the order of the District Court, insofar as it failed to include the injunctive relief requested by respondents, is an interlocutory order refusing an injunction within the meaning of § 1292(a)(1). But even if this would have allowed respondents to then obtain review in the Court of Appeals, there was no denial of any injunction sought by Petitioner and it could not avail itself of that grant of jurisdiction.
18
Nor was this order appealable pursuant to 28 U.S.C. § 1292(b).6 Although the District Court's findings made with a view to satisfying Rule 54(b) might be viewed as substantial compliance with the certification requirement of that section, there is no showing in this record that petitioner made application to the Court of Appeals within the 10 days therein specified. And that court's holding that its jurisdiction was pursuant to § 1291 makes it clear that it thought itself obliged to consider on the merits petitioner's appeal. There can be no assurance that had the other requirements of § 1292(b) been complied with, the Court of Appeals would have exercised its discretion to entertain the interlocutory appeal.
19
Were we to sustain the procedure followed here, we would condone a practice whereby a district court in virtually any case before it might render an interlocutory decision on the question of liability of the defendant, and the defendant would thereupon be permitted to appeal to the court of appeals without satisfying any of the requirements that Congress carefully set forth. We believe that Congress, in enacting present §§ 1291 d 1292 of Title 28, has been well aware of the dangers of an overly rigid insistence upon a "final decision" for appeal in every case, and has in those sections made ample provision for appeal of orders which are not "final" so as to alleviate any possible hardship. We would twist the fabric of the statute more than it will bear if we were to agree that the District Court's order of February 20, 1974, was appealable to the Court of Appeals.
20
The judgment of the Court of Appeals is therefore vacated, and the case is remanded with instructions to dismiss the petitioner's appeal.
21
It is so ordered.
22
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
1
The portion of the District Court's order concerning petitioner's hiring and promotion policies was separately appealed to a different panel of the Court of Appeals. The judgment rendered by the Third Circuit upon that appeal is not before us in this case. See Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239, cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975).
2
"Judgment upon multiple claims or involving multiple parties.
"When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties."
3
Following Mackey, the Rule was amended to insure that orders finally disposing of some but not all of the parties could be appealed pursuant to its provisions. That provision is not implicated in this case, however, to which Mackey's exposition of the Rule remains fully accurate.
4
We need not here attempt any definitive resolution of the meaning of what constitutes a claim for relief within the meaning of the Rules. See 6 J. Moore, Federal Practice P P 54.24, 54.33 (2d ed. 1975). It is sufficient to recognize that a complaint asserting only one legal right, even if seeking multiple remedies for the alleged violation of that right, states a single claim for relief.
5
"The courts of appeals shall have jurisdiction of appeals from:
"(1) Interlocutory orders of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court."
6
"When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order."
| 89
|
424 U.S. 669
96 S.Ct. 1189
47 L.Ed.2d 387
Chester McKINNEY, Petitioner,v.State of ALABAMA.
No. 74-532.
Argued Dec. 15, 1975.
Decided March 23, 1976.
Syllabus
Pursuant to an Alabama statutory procedure, a prosecuting attorney brought an in rem equity action in state court against four magazines named as "respondents," and two other parties, seeking an adjudication of the magazines' obscenity, which resulted in the court's decree that the magazines were "judicially declared to be obscene." Petitioner, a bookstall operator who had not been given notice of or made a party to the equity proceeding, was officially advised of the decree concerning the specific magazines. After officers later bought one of the magazines (New Directions) from petitioner's bookstall, he was charged with violating a criminal statute by selling "mailable matter known . . . to have been judicially found to be obscene." At petitioner's trial, which resulted in his conviction, later upheld on appeal, petitioner was not allowed to have the issue of New Direction's obscenity presented to the jurors, who were instructed that they were not to be concerned with determining obscenity but only with whether or not petitioner had sold material judicially declared to be obscene. Held: The Alabama procedures, insofar as they precluded petitioner for litigating the obscenity vel non of New Directions as a defense to his criminal prosecution, violated the First and Fourteenth Amendments. Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649; Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745. The constitutional infirmity of those procedures cannot be avoided on the ground urged by the State that the equity action constituted an "adversary judicial proceeding," since the respondents in that action were not in privity with the petitioner and cannot be presumed to have had interests sufficiently identical to petitioner's as adequately to protect his First Amendment rights, which he had a right to assert in his own behalf in a proceeding to which he was a party. Pp. 673-676.
292 Ala. 484, 296 So.2d 228, reversed and remanded.
Robert Eugene Smith, Atlanta, Ga., for petitioner.
Joseph G. L. Marston, III, Montgomery, Ala., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Petitioner was convicted of selling material which had been judicially declared obscene. At his trial he was not permitted to litigate the obscenity vel non of the publication which was the basis of his prosecution, even though he had not been a party to the earlier civil adjudication in which it was held obscene. We granted certiorari, 422 U.S. 1040, 95 S.Ct. 2654, 45 L.Ed.2d 692 (1975), to consider whether this procedure comported with our decisions delineating the safeguards which must attend attempts by the States to prohibit dissemination of expression asserted to be protected by the First and Fourteenth Amendments against such interference. We reverse.
2
* Pursuant to the authority conferred upon him by Ala.Code, Tit. 14, c. 64A (Supp.1973),1 the District Attorney of the 13th Judicial Circuit of Alabama instituted an action in equity in the Circuit Court of Mobile County seeking an adjudication of the obscenity of certain mailable matter. On February 26, 1970, the Circuit Court entered a decree which announced that the four magazines named in the action were "judicially declared to be obscene." Twelve days later two officers of the State Attorney General's office went to the Paris Bookstall in Birmingham, Ala., a place of business operated by petitioner. They personally delivered to petitioner a letter from the Attorney General informing him of the decree of the Circuit Court of Mobile County and specifying the magazines which had been declared obscene.
3
On March 31, these officers returned to the Paris Bookstall and there purchased, from petitioner, a copy of the magazine New Directions, which had been specified in the Circuit Court decree and listed in the letter delivered to petitioner. Petitioner was thereafter charged with violating Ala.Code, Tit. 14, § 374(4) (Supp.1973),2 by selling "mailable matter known . . . to have been judicially found to be obscene."
4
At petitioner's trial for this offense he asserted as a defense his claim that the magazine was not obscene and sought to have this issue submitted to the jury. Petitioner claimed that he could not be found guilty unless the trier of fact in his case made its own determination that the magazine was obscene according to contemporary community standards. The trial court declined to submit this issue to the jury and instructed the jurors that they were not to be concerned with any determination of obscenity, and that they need only decide whether petitioner had sold material judicially declared to be obscene. The jury returned a verdict of guilty.
5
Petitioner unsuccessfully appealed this judgment to the Alabama Court of Criminal Appeals, whereupon the Alabama Supreme Court granted his petition for certiorari. That court, by a divided vote, also affirmed the judgment of conviction. It ruled that the trial court had properly restricted the issues presented to the jury because the decree of the Mobile County Circuit Court was one in rem, conclusively establishing the obscenity of the magazines against all the world. The determination of obscenity in that action was therefore held binding upon petitioner in his subsequent criminal prosecution even though he had not been a party to the earlier equity proceeding. 292 Ala. 484, 296 So.2d 228 (1974).
II
6
Petitioner contends that the procedures utilized by the State of Alabama, insofar as they precluded him from litigating the obscenity vel non of New Directions as a defense to his criminal prosecution, violated the First and Fourteenth Amendments. We agree. While there can be no doubt under our cases that obscene materials are beyond the protection of the First Amendment, Rothv. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); those decisions have also consistently recognized that the procedures by which a State ascertains whether certain materials are obscene must be ones which ensure "the necessary sensitivity to freedom of expression," Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 739, 13 L.Ed.2d 649, 654 (1965); Heller v. New York, 413 U.S. 483, 489, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973). The Alabama statutory scheme at issue here, as applied to petitioner, fails to meet this requirement.
7
It is undisputed that petitioner received no notice of the Mobile Circuit Court equity proceeding, and that he therefore had no opportunity to be heard therein regarding the adjudication of the obscenity vel non of New Directions.3 Yet the State nevertheless seeks to finally bind him, as well as all other potential purveyors of the magazines described in the Mobile proceeding, to the result reached in that proceeding. There is nothing in the opinion of the Supreme Court of Alabama indicating that petitioner had available to him any judicial avenue for initiating a challenge to the Mobile declaration as to the obscenity of New Directions. Decrees resulting from in rem proceedings initiated under Chapter 64A of the Alabama Code could in some cases therefore have the same effect as would the ex parte determination of a state censorship authority which unilaterally found material offensive and proscribed its distribution. Such a procedure, without any provision for subsequent re-examination of the determination of the censor, would clearly be constitutionally infirm.
8
The State asserts, however, that the Mobile proceeding was an "adversary judicial proceeding" as contemplated by our decisions, Freedman, supra, 380 U.S., at 58, 85 S.Ct. at 738, 13 L.Ed.2d at 654; Heller, supra, 413 U.S., at 489, 93 S.Ct. at 2793, 37 L.Ed.2d at 752, and that relevant First Amendment values have thereby been adequately safeguarded. We cannot agree. The Chapter 64A proceeding was indeed "judicial" in the sense that it was presided over by a judge rather than an administrative official. But the State's claim regarding the adversary nature of the In rem proceeding is somewhat wide of the mark.
9
It is not altogether clear from this record precisely what transpired at the hearing in which New Directions was declared obscene. It does appear that there were, in addition to the several magazines named as "respondents" in the proceeding,4 an individual and a corporate respondent: "Chris Zarocastas, individually and d/b/a Nelson's News Stand; (and) Nelson's News Stand, Inc., a Corporation, d/b/a Nelson's News Stand." The State contends that the existence5 of these named parties provides sufficient adverseness in the proceedings to permit its use of the adjudication thus obtained to bind nonparties such as petitioner.
10
Our difficulty with this argument is its assumption that the named parties' interests are sufficiently identical to those of petitioner that they will adequately protect his First Amendment rights. There is no indication that they are in privity with him, as that term is used in determining the binding effects of judgments. See Litchfield v. Goodnow's Adm'r, 123 U.S. 549, 551, 8 S.Ct. 210, 211, 31 L.Ed. 199, 201 (1887). And we recognized in Freedman that individual exhibitors as well as distributors may be unwilling, for various reasons, to oppose a state claim of obscenity regarding certain material. 380 U.S., at 59, 85 S.Ct. at 739, 13 L.Ed.2d at 655. Such parties may, of course, make their own determination whether and how vigorously to assert their own First Amendment rights. The Constitution obviously cannot force anyone to exercise the freedom of expression which it guarantees. Those who are accorded an opportunity to be heard in a judicial proceeding established for determining the extent of their rights are properly bound by its outcome, either because they chose not to contest the State's claim or because they chose to do so and lost.
11
But it does not follow that a decision reached in such proceedings should conclusively determine the First Amendment rights of others. Nonparties like petitioner may assess quite differently the strength of their constitutional claims and may, of course, have very different views regarding the desirability of disseminating particular materials. We think they must be given the opportunity to make these assessments themselves, as well as the chance to litigate the issues if they so choose.
12
The State asserts that invalidation of petitioner's conviction will seriously undermine the use of civil proceedings to examine the protected character of specific materials, procedures which according to respondent offer marked advantages for all concerned over dealing with obscenity only in case-by-case criminal prosecutions. Petitioner, however, was convicted and sentenced in a criminal proceeding wherein the issue of obscenity Vel non was held to be concluded against him by the decree in a civil proceeding to which he was not a party and of which he had no notice. Thus we need not condemn civil proceedings in general, see Paris Adult Theatre I v. Slaton, 413 U.S. 49, 55, 93 S.Ct. 2628, 2633, 37 L.Ed.2d 446, 455 (1973), to conclude that this procedure fails to meet the standards required where First Amendment interests are at stake.
13
Petitioner's conviction must be vacated so that he may be afforded the opportunity to litigate in some forum the issue of the obscenity of New Directions before he may be convicted of selling obscene material.6 The judgment of the Supreme Court of Alabama is therefore reversed and the cause remanded for further proceedings not inconsistent with this opinion.
14
So ordered.
15
Judgment reversed and cause remanded.
16
Mr. Justice STEVENS took no part in the consideration or decision of this case.
17
Mr. Justice BLACKMUN, concurring.
18
I concur in the judgment of the Court and I join its opinion on the assumption that the Court is not deciding either of the following propositions:
19
1. Whether a State may institute in some state court a civil proceeding to adjudicate obscenity and then, merely by notifying publishers and exhibitors of the pendency of such adjudication, thereby bind them everywhere throughout the jurisdiction. I take it, specifically, that the concluding sentence of the fourth-to-last paragraph of the Court's opinion, Ante, at 676, does not resolve that question. If it does, I refrain from joining that resolution.
20
2. Whether a system which merely allows one to initiate a challenge to an ex parte determination of obscenity is constitutionally proper. I take it that the second paragraph in Part II of the Court's opinion, Ante, at 674, does not resolve that question. If it does, I refrain from joining it. I had believed, in this connection, that it is settled that the burden of proving that a particular expression is unprotected rests on the censor, Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 738, 13 L.Ed.2d 649, 654 (1965); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 560, 95 S.Ct. 1239, 1247, 43 L.Ed.2d 448, 460 (1975), and is not to be shifted to the other side by a mere "avenue for initiating a challenge."
21
I specify these reservations because I feel that each of the stated propositions in the First Amendment area may well be a close and difficult one, that neither has been resolved by this Court, and that, surely, neither needs to be decided in this case.
22
Mr. Justice BRENNAN, concurring.
23
I concur insofar as the judgment of conviction is reversed. I have frequently stated my view that "at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly 'obscene' contents." See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73, 113, 93 S.Ct. 2628, 2642, 2662, 37 L.Ed.2d 446, 467, 490 (1973) (BRENNAN, J., dissenting). Upon that view the Alabama Law on Obscenity, which forbids such dissemination of explicit sexual material to consenting adults, is facially unconstitutional in both its civil and criminal aspects. Therefore, while I agree that petitioner could not constitutionally be convicted and sentenced in a criminal proceeding wherein the issue of obscenity Vel non was held to be concluded against him by the decree in a civil proceeding to which he was not a party and of which he had no notice, rather than remand for further proceedings not inconsistent with the Court's opinion, I would declare the Alabama law unconstitutional and hold that petitioner cannot be criminally prosecuted for its violation.
24
However, since presently prevailing constitutional jurisprudence accords States a broader power to regulate obscenity than I concede, it is appropriate in that circumstance that I state my concern that the Alabama law contains provisions that violate the First and Fourteenth Amendments because they impermissibly create the risk that citizens will shy away from disseminating or possessing literature and materials that the entire Court would agree are constitutionally protected. See Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974).
25
* The Alabama Law on Obscenity takes a form that it is gaining increasing favor among the States. It permits a test of the issue of obscenity in a civil action prior to any exposure to a criminal penalty. This Court has acknowledged the value of this approach to the solution of the vexing problem of reconciling state efforts to suppress sexually oriented expression with the prohibitions of the First Amendment, as applied to the States through the Fourteenth Amendment. "Instead of requiring the bookseller to dread that the offer for sale of a book may, without prior warning, subject him to a criminal prosecution with the hazard of imprisonment, the civil procedure assures him that such consequences cannot follow unless he ignores a court order specifically directed to him for a prompt and carefully circumscribed determination of the issue of obscenity." Kingsley Books, Inc. v. Brown, 354 U.S. 436, 442, 77 S.Ct. 1325, 1328, 1 L.Ed.2d 1469, 1474 (1957). "(S)uch a procedure provides an exhibitor or purveyor of materials the best possible notice, prior to any criminal indictments, as to whether the materials are unprotected by the First Amendment and subject to state regulation." Paris Adult Theatre I v. Slaton, supra, 413 U.S., at 55, 93 S.Ct. at 2634, 37 L.Ed.2d at 455. See generally Lockhart, Escape from the Chill of Uncertainty: Explicit Sex and the First Amendment, 9 Ga.L.Rev. 533, 569-587 (1975).
26
The Alabama statute, enacted in 1961 and expressly styled the Alabama Law on Obscenity, Ala. Act No. 856, Ala.Code, Tit. 14, c. 64A (Supp.1973), recites in § 2 that the Act's purpose is to provide public prosecutors with both a speedy civil remedy for obtaining a judicial determination of the character and contents of publications and an effective power to reach persons responsible for the composition, publication, and distribution of obscene publications within the State. To that end, the statute distinguishes between "mailable" and "nonmailable" matter. This case concerns only the provisions governing "mailable" matter, defined as printed or written material "having second class mailing privileges under the laws of the United States," or which has not been "determined to be nonmailable" under such laws. § 3.1 A criminal prosecution based upon "mailable" matter may be brought only when such matter has been, to the defendant's knowledge, "judicially found to be obscene" in a prior civil proceeding under the Act. § 4. A prosecuting attorney (solicitor for any judicial circuit or county solicitor) may commence "an action In Equity . . . for an adjudication of the obscenity of the mailable matter" if he has "reasonable cause to believe that any person, with knowledge of its contents," is shipping mailable obscene publications into Alabama or is selling such publications in the State. § 5. The action is "directed against the mailable matter by name or description" and the respondents are the "author, publisher and any other person" responsible for offering the matter "for sale or commercial distribution" in the State or "giving it away or offering to give it away, or possessing it with the intent to sell or commercially distribute or exhibit or give away or offer to give it away." § 6. Upon the filing of the complaint and the exhibits, the court "as soon as practicable" must examine the materials and Ex parte dismiss the complaint "(i)f there is no probable cause to believe that the mailable matter . . . is obscene." § 7. If, however, the court finds probable cause, "it may forthwith issue an order temporarily restraining and prohibiting the sale or distribution of such matter" and issue an order to show cause, "returnable not less than ten days after its service," why the matter shall not be adjudicated obscene. Ibid. A full adversary hearing follows, to "be heard and disposed of with the maximum promptness and dispatch commensurate with constitutional requirements, including due process, freedom of press and freedom of speech." § 9.2 The proceeding is to be conducted under the Rules of Civil Procedure in equity cases.3 If, after a full hearing, a publication is found obscene, the respondents may be enjoined from further distribution of that publication in Alabama, and respondents residing in Alabama may be required to dispose of such publications in their possession. § 10. An injunction is binding "only upon the Respondents, to the action and upon those persons in active concert or participation . . . with such Respondents who receive actual notice . . . ." § 11. Disobedience of an injunction constitutes contempt of court by any respondent or by "any person in active concert or participation by contract or agreement with such respondent, (who receives) actual notice" of the injunction. § 13. If any respondent fails to comply with an order to dispose of the matter, the court may direct the sheriffs in the State to "seize and destroy all such obscene mailable matter." § 10(c).
27
The civil provisions are so interwoven with the Act's criminal and other general provisions, § 4, that the constitutional questions raised by them cannot be properly addressed, in my view, without considering the entire Act as it bears upon "mailable" material. This conclusion is underscored by a "cumulative" obscenity law addressed to "hard-core" pornography enacted by Alabama in 1969. Ala.Code, Tit. 14, c. 64C, §§ 374 (16j-16O ) (Supp.1973). Section 374 (16k)(c) of that statute provides that the prohibition against selling, exhibiting, or possessing such materials shall not "be deemed to apply to mailable matter unless such mailable matter is known by such person to have been judicially found to be obscene or to represent hard-core pornography under this chapter or under the provisions of any other Alabama statutes."
28
I shall not discuss all of the provisions that raise questions but only those that appear to me most clearly to be vulnerable to constitutional challenge.
II
Burden of Proof
29
There can be no question that uncertainty inheres in the definition of obscenity. It is therefore to be expected that those who market written material pertaining to sex should, from fear of criminal prosecution, refrain from handling what may be constitutionally protected literature on that subject. It is this hazard to material protected by the First Amendment which commends Alabama's efforts to minimize that hazard by its regulatory scheme. A civil procedure that complies with the commands of the First Amendment and due process may serve the public interest in controlling obscenity without exposing the marketer to the risks and the stigma of a criminal prosecution, and thus protect, by minimizing the risk of marketer self-censorship, the right to the free publication and dissemination of constitutionally protected literature. But by shifting the determination of obscenity Vel non to the civil context, the Alabama scheme creates another potential danger that the dissemination of constitutionally protected material will be suppressed.
30
Although the Act does not specify which party has the burden of proof in the civil proceeding, the Supreme Court of Alabama has held that the burden is on the State to prove the obscenity of the magazines, 292 Ala. 484, 487, 296 So.2d 228, 231 (1974), and it appears that the State may do so by a mere preponderance of the evidence. Tr. of Oral Arg. 4-5. However, I think that the hazards to First Amendment freedoms inhering in the regulation of obscenity require that even in such a civil proceeding, the State comply with the more exacting standard of proof beyond a reasonable doubt.
31
Inherent in all factfinding procedures is the potential for erroneous judgments and, when First Amendment values are implicated, the selection of a standard of proof of necessity implicates the relative Constitutional acceptability of erroneous judgments. "There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value . . . this margin of error is reduced as to him by the process of placing on the other party the burden . . . of persuading the factfinder at the conclusion of the trial of (the existence of the fact) beyond a reasonable doubt." Speiser v. Randall, 357 U.S. 513, 525-526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460, 1472 (1958). See, e. g., In re Winship, 397 U.S. 358, 369-372, 90 S.Ct. 1068, 1075-76, 25 L.Ed.2d 368, 378-380 (1970) (Harlan, J., concurring); cf. Rosenbloom v. Metromedia, 403 U.S. 29, 49-51, 91 S.Ct. 1811, 1823, 29 L.Ed.2d 296, 315 (1971) (opinion of Brennan, J.). In the civil adjudication of obscenity Vel non, the bookseller has at stake such an "interest of transcending value"—protection of his right to disseminate and the public's right to receive material protected by the First Amendment. Protection of those rights demands that the factfinder be almost certain—convinced beyond a reasonable doubt—that the materials are not constitutionally immune from suppression. Although Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), held that the concept of obscenity as defined in that case is not unconstitutionally vague, we have "expressly recognized the complexity of the test of obscenity . . . and the vital necessity in its application of safeguards to prevent denial of 'the protection of freedom of speech and press' " for nonobscene material. Marcus v. Search Warrant, 367 U.S. 717, 730, 81 S.Ct. 1708, 1715, 6 L.Ed.2d 1127, 1135 (1961). "(T)he Fourteenth Amendment requires that regulation by the States of obscenity conform to procedures that will ensure against the curtailment of constitutionally protected expression, which is often separated from obscenity only by a dim and uncertain line." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66, 83 S.Ct. 631, 637, 9 L.Ed.2d 584, 590 (1963). The uncertainty of that line means that erroneous judgments as to whether material is obscene or not are likely in any event, and are particularly so if the factfinder is only marginally confident that the material falls on the unprotected side of the line. In light of the command of the First Amendment, a standard of proof by a mere preponderance of the evidence poses too substantial a danger that protected material will be erroneously suppressed. Moreover, the potential danger of such erroneous determinations is especially acute in light of the fact that the civil proceeding and the interim restraint pending adjudication on the merits operate as a prior restraint; indeed, the possibility of an erroneous determination is heightened by the fact that the material may never be available to the public and thus need never have truly faced the acid test of acceptance under prevailing community standards.4 Furthermore, in light of the definition of obscenity incorporating, as it does under current law, the notion of patent offensiveness to the average member of the community—there is an even greater need for the Judge operating as sole factfinder to be convinced beyond a reasonable doubt that the material is obscene, for his determination is made without a jury's assessment of community values.
32
Moreover, the possible erroneous imposition of civil sanctions under the preponderance-of-the-evidence standard simply creates too great a risk of self-censorship by those engaged in dissemination of printed material pertaining to sex. Cf. Smith v.California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959). Just as the improper allocation of the burden of proof "will create the danger that the legitimate utterance will be penalized" and may thus cause persons to "steer far wider of the unlawful zone," Speiser v. Randall, supra, 357 U.S., at 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460, 1473, the application of a preponderance-of-the-evidence standard rather than proof beyond a reasonable doubt could cause affected persons to be overly careful about the material in which they deal. While the threat of prosecution and punishment in a criminal proceeding may be greater than the threat of economic loss in civil proceedings, the difference is one of degree. Cf. New York Times Co. v. Sullivan, 376 U.S. 254, 277-278, 84 S.Ct. 710, 724, 11 L.Ed.2d 686, 704-705, (1964). The inevitable tendency of the preponderance-of-the-evidence standard—by forcing persons dealing in marginal material to make hard judgments as to whether such material is obscene in order to avoid civil sanctions—would be to limit the volume of at least the marginal material a bookseller could permissibly handle, and thus "restrict the public's access to forms of the printed word which the State could not constitutionally suppress directly." Smith v. California, supra, 361 U.S. at 154, 80 S.Ct. at 219, 4 L.Ed.2d at 211. This "self-censorship, compelled by the State, would be a censorship affecting the whole public, hardly less virulent for being privately administered." Ibid.
33
Related to these arguments is another consideration which has particular force in the context where a State purports to make a civil determination of obscenity conclusively binding in a subsequent criminal trial, such as is the case under Alabama's Law on Obscenity. The First Amendment proscribes criminalizing the sale of literature in general. However, criminal statutes prohibiting the sale of obscene literature have been held to be constitutionally permissible. At least two elements must coalesce to constitute such a crime: (1) some overt act or intent to perform some act beyond mere possession concerning (2) obscene material. Each of these two elements would otherwise have to be proved beyond a reasonable doubt in a criminal proceeding, for it is settled that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S at 364, 90 S.Ct. at 1073, 25 L.Ed.2d at 375. The requirement that obscenity be proved beyond a reasonable doubt may not be diluted by transporting the determination to a prior civil proceeding, for the essence of the "crime" in reality remains the sale of obscene literature rather than disobedience of a court injunction.
34
The dangers emanating from the increased likelihood of error resulting from a preponderance-of-the-evidence standard—the likelihood of self-censorship and the erroneous proscription of constitutionally protected material—are no less great in civil than in criminal regulation; if anything, the actual margin of error even under the beyond-a-reasonable-doubt standard may be greater in civil proceedings since judges and juries may be more reluctant to declare material obscene in a criminal proceeding where incarceration will follow as a consequence. Both proceedings thus present the same hazards to First Amendment freedoms, and those hazards may only be reduced to a tolerable level by applying the same rigorous burden of proof.
III
Jury Trial
35
This Court has held that a jury trial is not a constitutional requirement in a state civil proceeding determining the obscenity Vel non of written materials. Alexander v. Virginia, 413 U.S. 836, 93 S.Ct. 2803, 37 L.Ed.2d 993 (1973). However, in light of the Court's definition of those materials which are beyond the pale of constitutional protection, a jury trial even in civil proceedings serves a salutary function.
36
"The jury represents a cross-section of the community and has a special aptitude for reflecting the view of the average person. Jury trial of obscenity therefore provides a peculiarly competent application of the standard for judging obscenity which, by its definition, calls for an appraisal of material according to the average person's application of contemporary community standards. A statute which does not afford the defendant, of right, a jury determination of obscenity falls short, in my view, of giving proper effect to the standard fashioned as the necessary safeguard demanded by the freedoms of speech and press for material which is not obscene. Of course, as with jury questions generally, the trial judge must initially determine that there is a jury question, I. e., that reasonable men may differ whether the material is obscene." Kingsley Books, Inc. v. Brown, 354 U.S. 436, 448, 77 S.Ct. 1325, 1331, 1 L.Ed.2d 1469, 1478 (1957) (Brennan, J., dissenting).
37
Although the Court has rejected the contention that the Federal Constitution imposes the requirement of such a jury trial on a State conducting a civil proceeding, it is nevertheless clear that a jury is the most appropriate factfinder on the issue of obscenity, assuming the judge, as he must, has initially determined that the material is not protected as a matter of law. See, e. g., Miller v. California, 413 U.S., at 25-26, 93 S.Ct. at 2615, 2616, 37 L.Ed.2d at 431. Trial by jury is particularly appropriate if the State chooses to enact a statute such as Alabama's which makes the civil determination of obscenity conclusive in a later criminal proceeding involving the parties to the civil action, and States are of course free to adopt such a factfinding procedure as the fairest and most accurate reflection of community standards.
IV
38
Effect of the Obscenity Determination in Civil Proceedings on the Criminal Proceeding
39
Accepting as I must for present purposes the Court's current view of the constitutional permissibility of laws forbidding the dissemination of obscene materials, I do not perceive any constitutional defect in a State's criminalizing the knowing sale of material judicially determined to be obscene, provided, of course, that obscenity was determined beyond a reasonable doubt at a proceeding in which the accused was a party and of which he received adequate notice.5 However, one problem with such a scheme deserves comment. Under prevailing constitutional doctrine, material cannot be proscribed unless, Inter alia, " 'the average person, applying Contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest . . . (and) describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law". Miller v. California, supra, 413 U.S., at 24, 93 S.Ct. at 2615, 37 L.Ed.2d at 431 (emphasis supplied). Community standards are inherently in a state of flux, and there is a substantial danger that a civil proceeding declaring given printed matter obscene will forever preclude its introduction into the community, even if the community would no longer view it as "patently offensive" or appealing to the "prurient interest." Some of the most celebrated works of our generation would likely have been the pornography of a prior generation. Thus, I would require that, at a minimum, a person charged with dissemination of material knowing it to have been judicially determined to be obscene in a civil proceeding to which he was a party should be permitted to interject into the criminal trial a claim that community standards had evolved from the time of the civil proceeding to the time the acts for which he was charged were committed. If there is some colorable showing of such a change, I believe that the First Amendment and due process would require that the State again demonstrate beyond a reasonable doubt, in the criminal proceeding, that the material was contemporaneously constitutionally "obscene." Cf. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 41 L.Ed.2d 508 (1975).6
V
The Possession Provisions
40
Another potential effect of civil determinations under the Alabama law will be to deter all the acts proscribed by the statute with respect to the material declared obscene. This is precisely what the statute is meant to do, and generally the Constitution does not assure that acts may be performed with safety in connection with material judicially declared obscene. This is not true, however, with respect to the mere "possession" of obscene material.
41
The Act has two provisions that affect possession of obscene material. One provision renders possession of "mailable matter known . . . to have been judicially found to be obscene under this chapter" a misdemeanor subject to a possible fine of $500 and up to six months' imprisonment, or both. § 4(2). This provision is invalid because the First Amendment prohibits States from regulating possession unrelated to distribution or public exhibition. Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969).
42
The other provision affecting possession of obscene material, § 15, provides that the possession of "any three of the things enumerated in . . . (§ 4) (except the possession of them for the purpose of return to the person from whom received)" creates a rebuttable presumption that they are intended for dissemination, and the burden of proof that their possession is for the purpose of return is on the possessor. At the least this presumption shifts to defendants the burden of going forward with the evidence on the issue of possession for the purpose of distribution; and if the possessor seeks to explain possession on the ground that he is holding the materials for return, he has the burden of proof on the issue. Mere possession of obscene material for personal use may not be penalized. The obvious danger in creating a presumption that possession is for the purpose of dissemination is that lawful possession will be penalized or that persons will refrain from lawfully possessing arguably protected material. "The man who knows that he must bring forth proof and persuade another of the lawfulness of his conduct necessarily must steer far wider of the unlawful zone than if the State must bear these burdens." Speiser v. Randall, 357 U.S. 513, at 526, 78 S.Ct. at 1342, 2 L.Ed.2d at 1473 (1958). The Alabama law poses particular hazard in this regard, because the presumption takes effect once the defendant is shown to have possessed "any three of the things enumerated in" § 4. The "things" enumerated in § 4 are nonmailable obscene matter and mailable matter judicially declared obscene under the Act. Apparently, the presumption would come into play if a person possessed one copy of three different works which fit the statute's description. This would in effect limit persons to the unregulated possession of a maximum of two "things" in their libraries. But even if the presumption were to apply only upon proof of possession of three copies of the same item, it might result in punishment and deterrence of lawful activity, since the right to possess obscene material for personal use is not limited to one or two copies of each item. Juries are not so ingenuous that they will fail to draw reasonable inferences from the possession of multiple copies of obscene works. There is no necessity to add to the weight of such evidence presumptions and shifts in the burden of proof which jeopardize the exercise of free speech.
43
I concur insofar as the conviction of petitioner is reversed.
44
Mr. Justice MARSHALL joins this opinion.
45
Mr. Justice STEWART joins all but Part III of this opinion.
1
Chapter 64A provides in pertinent part:
"s 374(5). Equitable action to adjudicate obscenity of mailable matter imported, sold or possessed. Whenever the solicitor for any judicial circuit or county solicitor has reasonable cause to believe that any person, with knowledge of its contents, is (1) engaged in sending or causing to be sent, bringing or causing to be brought, into this state for sale or commercial distribution, or is (2) in this state,
preparing, selling, exhibiting or commercially distributing or giving away, or offering to give away, or has in his possession with intent to sell, or commercially distribute, or to exhibit or give away or offer to give away, any obscene mailable matter, the solicitor for the judicial circuit or county into which such mailable matter is sent or caused to be sent, brought or caused to be brought, or in which it is prepared, sold, exhibited or commercially distributed or given away or offered to be given away, or possessed, may institute an action in equity in the circuit court or any court having equity jurisdiction of the affected county for an adjudication of the obscenity of the mailable matter.
"s 374(6). Same; complaint. The action authorized by section 374(5) shall be commenced by the filing of a complaint to which shall be attached, as an exhibit, a true copy of the allegedly obscene mailable matter. The complaint shall:
"(a) be directed against the mailable matter by name or description;
"(b) allege its obscene nature;
"(c) designate as respondents and list the names and addresses, as known, of its author, publisher and any other person sending or causing it to be sent, bringing or causing it to be brought into this state for sale or commercial distribution, and of any person in this state preparing, selling, exhibiting or commercially distributing it, or giving it away or offering to give it away, or possessing it with the intent to sell or commercially distribute or exhibit or give away or offer to give it away;
"(d) pray for an adjudication that it is obscene;
"(e) pray for a permanent injunction against any person sending or causing it to be sent, bringing or causing it to be brought, into this State for sale or commercial distribution, or in this state preparing, selling, exhibiting or commercially distributing it, giving away or offering to give it away, or possessing it with the intent to sell or commercially distribute or exhibit or give away or offer to give it away; and
"(f) pray for its surrender, seizure and destruction."
2
"s 374(4). Importation, sale or possession of obscene printed or written matter; penalties. (1) Every person who, with knowledge of its contents, sends or causes to be sent, or brings or causes to be brought, into this state for sale or commercial distribution, or in this state prepares, sells, exhibits or commercially distributes, or gives away or offers to give away, or has in his possession with intent to sell or commercially distribute, or to give away or offer to give away, any obscene printed or written matter or material, other than mailable matter, or any mailable matter known by such person to have been judicially found to be obscene under this chapter, shall be guilty of a misdemeanor and, upon conviction, shall be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than one year, and may be fined not more than two thousand dollars for each offense, or be both so imprisoned and fined in the discretion of the court.
"(2) Every person who, with knowledge of its contents, has in his possession any obscene printed or written matter or material, other than mailable matter, or any mailable matter known by such person to have been judicially found to be obscene under this chapter shall be guilty of a misdemeanor and, upon conviction, shall be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than six months, or may be fined not more than five hundred dollars for each offense, or be both so imprisoned and fined in the discretion of the court."
3
Indeed, there is nothing in the record to indicate that he even possessed any copies of that magazine at the time the equity proceeding was commenced. If he did not, it would certainly be quixotic to expect him to anticipate later developing such an interest in the outcome of those proceedings as to prompt him to seek an opportunity to be heard therein.
4
The publishers of the named magazines were presumably served with notice of the injunctive action in accordance with Ala.Code, Tit. 14, § 374(7) (Supp.1973).
5
The decree recites that "all parties (were) present and represented by counsel," but does not name them, and the record does not otherwise indicate the extent of their participation. App. 100.
6
Because we conclude that the obscenity Vel non of the publication for the sale of which petitioner was convicted has not yet been properly considered by the state courts, we need not pass upon petitioner's claims that the publication was not obscene as a matter of law and that the Alabama statute defining obscenity is impermissibly vague.
1
Persons may be criminally prosecuted with respect to "nonmailable" matter without a prior declaration of obscenity in a civil proceeding. § 4. The term "nonmailable" is used in 18 U.S.C. § 1461 to include far more than merely things obscene, and it is still unsettled who is empowered to make findings of nonmailability and under what circumstances, see Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962). Since this case involves only "mailable" matter, however, it is unnecessary to decide here whether the term "nonmailable," despite its uncertain content, may constitutionally be used in any degree to prove obscenity or a defendant's requisite state of mind.
2
Compliance with this provision should limit the duration of any Ex parte interim restraint granted pursuant to § 7, although in my view explicit time limits would be preferable. For example, the provision for interim restraints in the New York statute approved in Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957), was in the context of a statute that specified that "(t)he person . . . sought to be enjoined shall be entitled to a trial of the issues within one day after joinder of issue and a decision shall be rendered by the court within two days of the conclusion of the trial." Id., at 438 n. 1, 77 S.Ct. at 1326, 1 L.Ed.2d at 1472. And this Court construed 19 U.S.C. § 1305(a), which prohibits importation of obscene material, as requiring administrative and judicial action within time limits specified by the Court, thus avoiding the constitutional issue that would be presented under the principle applied in such decisions as Freedman v. Maryland, 380 U.S. 51, 58-59, 85 S.Ct. 734, 738-739, 13 L.Ed.2d 649, 654-655 (1965), and Bount v. Rizzi, 400 U.S. 410, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971). United States v. Thirty-seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed. 822 (1971).
3
While the Alabama law provides that the action shall be filed "in equity," § 5, the Alabama Supreme Court on July 3, 1973, adopted Rules of Civil Procedure under which there is now only one form of action known as a "Civil Action." 292 Ala. 484, 487, 296 So.2d 228, 230 (1974).
4
Indeed, one of the problems with erroneous determinations that prevent marginal material from ever reaching the public is that such material, which is by definition at the fringe of what is currently patently offensive to community standards, will never be able to exert an influence on those inherently evolving standards.
5
I fully agree with the Court that a State may not make any civil proceeding binding in a criminal proceeding involving an individual who was not a party to and who did not receive notice of the civil proceeding. Moreover, a State cannot use the result in a civil proceeding to bind a criminal defendant on any Element of a crime as a matter of collateral estoppel. However, I do not think the Constitution prohibits a State from making it a crime to disseminate material which was judicially determined to be obscene beyond a reasonable doubt in a prior civil proceeding in which the criminal accused participated. In such a case, the State will still be proving every element of the crime at the criminal trial.
6
Similarly, a State would of course have to prove obscenity beyond a reasonable doubt at the criminal trial if the civil proceeding was brought in a jurisdiction that applied a different "community standard" from the one in which the alleged crime occurred. This Court has held that obscenity must be determined by applying "contemporary community standards" and that a State may adopt a "state" rather than a "national" community standard. E. g., Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974). When a State adopts such a "state" or "national" community standard, a civil proceeding brought in one part of the State could constitutionally be employed as a conclusive determination anywhere in the State with respect to an accused who was a party to that proceeding. Since Alabama has adopted such a "state" standard, see, e. g., 292 Ala. 484, 487, 296 So.2d 228, 230 (1974), its statutory scheme is not constitutionally defective in this regard. However, a State might adopt the standard of a smaller community for example, a city-wide community; it could not then make it a crime to disseminate material judicially determined to be obscene in a civil proceeding in which the accused participated, unless the civil proceeding also transpired in the same "community" as the criminal proceeding.
| 23
|
424 U.S. 648
96 S.Ct. 1178
47 L.Ed.2d 370
Roy D. GARNER, Petitioner,v.UNITED STATES.
No. 74-100.
Argued Nov. 4, 1975.
Decided March 23, 1976.
Syllabus
Petitioner's income tax returns, in which he revealed himself to be a gambler, were introduced in evidence, over his Fifth Amendment objection, as proof of the federal gambling conspiracy offense with which he was charged. Held: Petitioner's privilege against compulsory self-incrimination was not violated. Since petitioner made incriminating disclosures on his tax returns instead of claiming the privilege, as he had the right to do, his disclosures were not compelled incriminations. Here, where there is no factor depriving petitioner of the free choice to refuse to answer, the general rule applies that if a witness does not claim the privilege his disclosures will not be considered as having been "compelled" within the meaning of the Fifth Amendment. United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160, 28 L.Ed.2d 404; Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562, distinguished. Pp. 650-655.
501 F.2d 228, affirmed.
Burton Marks, Beverly Hills, for petitioner.
Keith A. Jones, Washington, D. C., for respondent.
Mr. Justice POWELL delivered the opinion of the Court.
1
This case involves a nontax criminal prosecution in which the Government introduced petitioner's income tax returns to prove the offense against him. The question is whether the introduction of this evidence, over petitioner's Fifth Amendment objection, violated the privilege against compulsory self-incrimination when petitioner made the incriminating disclosures on his returns instead of then claiming the privilege.
2
* Petitioner, Roy Garner, was indicted for a conspiracy involving the use of interstate transportation and communication facilities to "fix" sporting contests, to transmit bets and information assisting in the placing of bets, and to distribute the resultant illegal proceeds. 18 U.S.C. §§ 371, 224, 1084, 1952.1 The Government's case was that conspirators bet on horse races either having fixed them or while in possession of other information unavailable to the general public. Garner's role in this scheme was the furnishing of inside information. The case against him included the testimony of other conspirators and telephone toll records that showed calls from Garner to other conspirators before various bets were placed.
3
The Government also introduced, over Garner's Fifth Amendment objection, the Form 1040 income tax returns that Garner had filed for 1965, 1966, and 1967. In the 1965 return Garner had reported his occupation as "professional gambler," and in each return he reported substantial income from "gambling" or "wagering." The prosecution relied on Garner's familiarity with "the business of wagering and gambling," as reflected in his turns, to help rebut his claim that his relationships with other conspirators were innocent ones.
4
The jury returned a guilty verdict. Garner appealed to the Court of Appeals for the Ninth Circuit, contending that the privilege against compulsory self-incrimination entitled him to exclude the tax returns despite his failure to claim the privilege on the returns instead of making disclosures. Sitting en banc the Court of Appeals held that Garner's failure to assert the privilege on his returns defeated his Fifth Amendment claim. 501 F.2d 236.2 We agree.
II
5
In United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037 (1927), the Court held that the privilege against compulsory self-incrimination is not a defense to prosecution for failing to file a return at all. But the Court indicated that the privilege could be claimed against specific disclosures sought on a return, saying:
6
"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." Id., at 263, 47 S.Ct., at 607, 71 L.Ed., at 1039.3
7
Had Garner invoked the privilege against compulsory self-incrimination on his tax returns in lieu of supplying the information used against him, the Internal Revenue Service could have proceeded in either or both of two ways. First, the Service could have sought to have Garner criminally prosecuted under § 7203 of the Internal Revenue Code of 1954 (Code), 26 U.S.C. § 7203, which proscribes, among other things, the willful failure to make a return.4 Second, the Service could have sought to complete Garner's returns administratively "from (its) own knowledge and from such information as (it could) obtain through testimony or otherwise." 26 U.S.C. § 6020(b)(1). Section 7602(2) of the Code authorizes the Service in such circumstances to summon the taxpayer to appear and to produce records or give testimony. 26 U.S.C. § 7602(2).5 If Garner had persisted in his claim when summoned, the Service could have sued for enforcement in district court, subjecting Garner to the threat of the court's contempt power. 26 U.S.C. § 7604.6
8
Given Sullivan, it cannot fairly be said that taxpayers are "volunteers" when they file their tax returns. The Government compels the filing of a return much as it compels, for example, the appearance of a "witness"7 before a grand jury. The availability to the Service of § 7203 prosecutions and the summons procedure also induces taxpayers to disclose unprivileged information on their returns. The question, however, is whether the Government can be said to have compelled Garner to incriminate himself with regard to specific disclosures made on his return when he could have claimed the Fifth Amendment privilege instead.
III
We start from the fundamental proposition:
9
"(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, (168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897)); Boyd v. United States, (116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886))." Lefkowitz v. Turley, 414 U.S. 70, 78, 94 S.Ct. 316, 322, 38 L.Ed.2d 274, 282 (1973).
10
See Murphy v. Waterfront Comm'n, 378 U.S. 52, 57 n. 6, 84 S.Ct. 1594, 1598, 12 L.Ed.2d 678, 682 (1964).
11
Because the privilege protects against the use of compelled statements as well as guarantees the right to remain silent absent immunity, the inquiry in a Fifth Amendment case is not ended when an incriminating statement is made in lieu of a claim of privilege. Nor, however, is failure to claim the privilege irrelevant.
12
The Court has held that an individual under compulsion to make disclosures as a witness who revealed information instead of claiming the privilege lost the benefit of the privilege. United States v. Kordel, 397 U.S. 1, 7-10, 90 S.Ct. 763, 766-769, 25 L.Ed.2d 1, 7-9 (1970). Although Kordel appears to be the only square holding to this effect, the Court frequently has recognized the principle in dictum. Maness v. Meyers, 419 U.S. 449, 466, 95 S.Ct. 584, 42 L.Ed.2d 574, 587 (1975); Rogers v. United States, 340 U.S.67, 370-371, 71 S.Ct. 438, 440-441, 95 L.Ed. 344, 347-348 (1951); Smith v. United States, 337 U.S. 137, 150, 69 S.Ct. 1000, 1007, 93 L.Ed. 1264, 1273 (1949); United States v. Monia, 317 U.S. 424, 427, 63 S.Ct. 409, 410, 87 L.Ed. 376, 379 (1943); United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 112-113, 47 S.Ct. 302, 306, 71 L.Ed. 560, 565-566 (1927).8 These decisions stand for the proposition that, in the ordinary case, if a witness under compulsion to testify makes disclosures instead of claiming the privilege, the government has not "compelled" him to incriminate himself.9
13
"The Amendment speaks of compulsion. It does not preclude a witness from testifying voluntarily in matters which may incriminate him. If, therefore, he desires the protection of the privilege, he must claim it or he will not be considered to have been 'compelled' within the meaning of the Amendment." United States v. Monia, supra, 317 U.S., at 427, 63 S.Ct. at 410, 87 L.Ed. at 380 (footnote omitted).
14
In their insistence upon a claim of privilege, Kordel and the older witness cases reflect an appropriate accommodation of the Fifth Amendment privilege and the generally applicable principle that governments have the right to everyone's testimony. Mason v. United States, 244 U.S. 362, 364-365, 37 S.Ct. 621, 622, 61 L.Ed. 1198, 1199 (1917); see, E. g., Branzburg v. Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 2660, 33 L.Ed.2d 626, 643 (1972); Kastigar v. United States, supra, 406 U.S. 441, 443-445, 92 S.Ct. 1653, 1655-1656, 32 L.Ed.2d 212, 215-217 (1972). Despite its cherished position, the Fifth Amendment addresses only a relatively narrow scope of inquiries. Unless the government seeks testimony that will subject its giver to criminal liability, the constitutional right to remain silent absent immunity does not arise. An individual therefore properly may be compelled to give testimony, for example, in a noncriminal investigation of himself. See, E. g., Gardner v. Broderick, 392 U.S. 273, 278, 88 S.Ct. 1913, 1916, 20 L.Ed.2d 1082, 1086 (1968). Unless a witness objects, a government ordinarily may assume that its compulsory processes are not eliciting testimony that he deems to be incriminating. Only the witness knows whether the apparently innocent disclosure sought may incriminate him, and the burden appropriately lies with him to make a timely assertion of the privilege. If, instead, he discloses the information sought, any incriminations properly are viewed as not compelled.
15
In addition, the rule that a witness must claim the privilege is consistent with the fundamental purpose of the Fifth Amendment the preservation of an adversary system of criminal justice. See Tehan v. United States ex rel. Shott, 382 U.S. 406, 415, 86 S.Ct. 459, 464, 15 L.Ed.2d 453, 459 (1966). That system is undermined when a government deliberately seeks to avoid the burdens of independent investigation by compelling self-incriminating disclosures. In areas where a government cannot be sd to be compelling such information, however, there is no such circumvention of the constitutionally mandated policy of adversary criminal proceedings. Cf. Counselman v. Hitchcock, 142 U.S. 547, 562-565, 12 S.Ct. 195, 198-199, 35 L.Ed. 1110, 1113-1115 (1892); California v. Byers, 402 U.S. 424, 456-458, 91 S.Ct. 1535, 1552-1553, 29 L.Ed.2d 9, 33-35 (1971) (Harlan, J., concurring in judgment).
IV
16
The information revealed in the preparation and filing of an income tax return is, for purposes of Fifth Amendment analysis, the testimony of a "witness," as that term is used herein. Since Garner disclosed information on his returns instead of objecting, his Fifth Amendment claim would be defeated by an application of the general requirement that witnesses must claim the privilege. Garner, however, resists the application of that requirement, arguing that incriminating disclosures made in lieu of objection are "compelled" in the tax-return context. He relies specifically on three situations in which incriminatory disclosures have been considered compelled despite a failure to claim the privilege.10 But in each of these narrowly defined situations, some factor not present here made inappropriate the general rule that the privilege must be claimed. In each situation the relevant factor was held to deny the individual a "free choice to admit, to deny, or to refuse to answer." Lisenba v. California, 314 U.S. 219, 241, 62 S.Ct. 280, 292, 86 L.Ed. 166, 182 (1941). For the reasons stated below, we conclude that no such factor deprived Garner of that free choice.
17
Garner relies first on cases dealing with coerced confessions, E. g., Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), where the Court has required the exclusion of incriminating statements unless there has been a knowing and intelligent waiver of the privilege regardless of whether the privilege has been claimed. Id., at 467-469, 475-477, 86 S.Ct. at 1624-1625, 1628-1629, 16 L.Ed.2d at 719-721, 724-725. Garner notes that it has not been shown that his failure to claim the privilege was such a waiver.
18
It is evident that these cases have little to do with disclosures on a tax return. The coerced-confession cases present the entirely different situation of custodial interrogation. See Id., at 467, 86 S.Ct. at 1624, 16 L.Ed.2d at 719. It is presumed that without proper safeguards the circumstances of custodial interrogation deny an individual the ability freely to choose to remain silent. See Ibid. At the same time, the inquiring government is acutely aware of the potentially incriminatory nature of the disclosures sought. Thus, any pressures inherent in custodial interrogation are compulsions to incriminate, not merely compulsions to make unprivileged disclosures. Because of the danger that custodial interrogation posed to the adversary system favored by the privilege, the Court in Miranda was impelled to adopt the extraordinary safeguard of excluding statements made without a knowing and intelligent waiver of the privilege. Id., at 467, 475-476, 86 S.Ct., at 1624, 1628-1629, 16 L.Ed.2d at 719, 724-725; see Michigan v. Mosley, 423 U.S. 96, 97, 96 S.Ct. 321, 324, 46 L.Ed.2d 313, 319 (1975); Schneckloth v. Bustamonte, 412 U.S. 218, 246-247, 93 S.Ct. 2041, 2057-2058, 36 L.Ed.2d 854, 873-874 (1973). Nothing in this case suggests the need for a similar presumption that a taxpayer makes disclosures on his return rather than claims the privilege because his will is overborne. In fact, a taxpayer, who can complete his return at leisure and with legal assistance, is even less subject to the psychological pressures at issue in Miranda than a witness who has been called to testify in judicial proceedings. Cf. United States v. Kordel, 397 U.S., at 9-10, 90 S.Ct., at 768-769, 25 L.Ed.2d, at 8-10; Miranda, supra, 384 U.S., at 461, 86 S.Ct. at 1620, 16 L.Ed.2d at 716.
B
19
Garner relies next on Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971), the relevance of which can be understood only in light of 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). In the latter cases the Court considered whether the Fifth Amendment was a defense in prosecutions for failure to file the returns required of gamblers in connection with the federal occupational and excise taxes on gambling. The Court found that any disclosures made in connection with the payment of those taxes tended to incriminate because of the pervasive criminal regulation of gambling activities. Marchetti, supra, 390 U.S., at 48-49, 88 S.Ct. at 702-703, 19 L.Ed.2d at 897-898; Grosso, supra, 390 U.S., at 66-67, 88 S.Ct. at 712-713, 19 L.Ed.2d at 911-912. Since submitting a claim of privilege in lieu of the returns also would incriminate, the Court held that the privilege could be exercised by simply failing to file.11
20
In Mackey, the disclosures required in connection with the gambling excise tax had been made before Marchetti and Grosso were decided. Mackey's returns were introduced in a criminal prosecution for income tax evasion. Although a majority of the Court considered the disclosures on the returns to have been compelled incriminations, 401 U.S., at 672, 91 S.Ct., at 1163, 28 L.Ed.2d, at 408 (plurality opinion); Id., at 704-705, 91 S.Ct. 1165-1166, 28 L.Ed.2d 427-428 (Brennan, J., concurring in judgment); Id., at 713, 91 S.Ct. 1170, 28 L.Ed.2d 432 (Douglas, J., dissenting), Mackey was not immunized against their use because Marchetti and Grosso were held nonretroactive. 401 U.S., at 674-675, 91 S.Ct., at 1164-1165, 28 L.Ed.2d, at 409-410 (plurality opinion); Id., at 700-701, 91 S.Ct. 1184, 28 L.Ed.2d 425-426 (Harlan, J., concurring in judgment).12 Garner assumes that if Mackey had made his disclosures after Marchetti and Grosso, they could not have been used against him. He then concludes that since Mackey would have been privileged to file no returns at all, Mackey stands for the proposition that an objection at trial always suffices to preserve the privilege even if disclosures have been made previously.
21
Assuming that Garner otherwise reads Mackey correctly,13 we do not think that case should be applied in this context. The basis for the holdings in Marchetti and Grosso was that the occupational and excise taxes on gambling required disclosures only of gamblers, the great majority of whom were likely to incriminate themselves by responding. Marchetti, supra, 390 U.S., at 48-49, 57, 88 S.Ct. at 702-703, 707, 19 L.Ed.2d at 897-898, 902; Grosso, supra, 390 U.S., at 66-68, 88 S.Ct., at 712-714, 19 L.Ed.2d at 911-912. Therefore, as in the coerced-confession cases, any compulsion to disclose was likely to compel self-incrimination.14 Garner is differently situated. Although he disclosed himself to be a gambler, federal income tax returns are not directed at those " 'inherently suspect of criminal activities.' " Marchetti, supra, 390 U.S. at 52, 88 S.Ct., at 704, 19 L.Ed.2d, at 900. As noted in Albertson v. SACB, 382 U.S. 70, 79, 86 S.Ct. 194, 199, 15 L.Ed.2d 165, 172 (1965), "the questions in (an) income tax return (are) neutral on their face and directed at the public at large." The great majority of persons who file income tax returns do not incriminate themselves by disclosing their occupation. The requirement that such returns be completed and filed simply does not involve the compulsion to incriminate considered in Mackey.15
C
22
Garner's final argument relies on Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). There policemen summoned during an investigation of police corruption were informed that they could claim the privilege but that they would be discharged for doing so. The disclosures they made were introduced against them in subsequent criminal prosecutions. The Court held that the penalty of discharge for reliance on the privilege foreclosed a free choice to remain silent, and therefore had the effect of compelling the incriminating testimony given by the policemen. Garner notes that a taxpayer who claims the privilege on his return faces the possibility of a criminal prosecution under § 7203 for failure to make a return. He argues that the possibility of prosecution, like the threat of discharge in Garrity, compels a taxpayer to make incriminating disclosures rather than claim the privilege. This contention is not entirely without force, but we find it unpersuasive.
23
The policemen in Garrity were threatened with punishment for a concededly valid exercise of the privilege, but one in Garner's situation is at no such disadvantage. A § 7203 conviction cannot be based on a valid exercise of the privilege. This is implicit in the dictum of United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037 (1927), that the privilege may be claimed on a return.16 Furthermore, the Court has held that an individual summoned by the Service to provide documents or testimony can rely on the privilege to defend against a § 7203 prosecution for failure to "supply any information." See United States v. Murdock, 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381 (1933) (Murdock II ); United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210 (1931) (Murdock I ), disapproved on other grounds, Murphy v. Waterfront Comm'n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964).17 The Fifth Amendment itself guarantees the taxpayer's insulation against liability imposed on the basis of a valid and timely claim of privilege, a protection broadened by § 7203's statutory standard of "willfulness."18
24
Since a valid claim of privilege cannot be the basis for a § 7203 conviction. Garner can prevail only if the possibility that a claim made on the return will be tested in a criminal prosecution suffices in itself to deny him freedom to claim the privilege. He argues that it does so, noting that because of the threat of prosecution under § 7203 a taxpayer contemplating a claim of privilege on his return faces a more difficult choice than does a witness contemplating a claim of privilege in a judicial proceeding. If the latter claims the protection of the Fifth Amendment, he receives a judicial ruling at that time on the validity of his claim, and he has an opportunity to reconsider it before being held in contempt for refusal to answer. Cf. Maness v. Meyers, 419 U.S., at 460-461, 95 S.Ct., at 592-593, 42 L.Ed.2d, at 584-585. A § 7203 prosecution, however, may be brought without a preliminary judicial ruling on a claim of privilege that would allow the taxpayer to reconsider.19
25
In essence, Garner contends that the Fifth Amendment guarantee requires such a preliminary-ruling procedure for testing the validity of an asserted privilege. It may be that such a procedure would serve the best interests of the Government as well as of the taxpayer, cf. Emspak v. United States, 349 U.S. 190, 213-214, 75 S.Ct. 687, 709-710, 99 L.Ed. 997, 1013-1014 (1955) (Harlan, J., dissenting), but we certainly cannot say that the Constitution requires it. The Court previously has considered Fifth Amendment claims in the context of a criminal prosecution where the defendant did not have the benefit of a preliminary judicial ruling on a claim of privilege. It has never intimated that such a procedure is other than permissible. Indeed, the Court has given some measure of endorsement to it. In Murdock I, supra, an individual was prosecuted under predecessors of § 7203 for refusing to make disclosures after being summoned by the Bureau of Internal Revenue.20 In this Court he contended, apparently on statutory grounds, that there could be no prosecution without a prior judicial enforcement suit to allow presentation of his claim of privilege to a court for a preliminary ruling. The Court said:
26
"While undoubtedly the right of a witness to refuse to answer lest he incriminate himself may be tested in proceedings to compel answer, there is no support for the contention that there must be such a determination of that question before prosecution for the willful failure so denounced." 284 U.S., at 148, 52 S.Ct., at 64, 76 L.Ed., at 213.
27
See also Quinn v. United States, 349 U.S. 155, 167-170, 75 S.Ct. 668, 675-677, 99 L.Ed. 964, 974-976 (1955); Emspak v. United States, supra, 349 U.S., at 213-214, 75 S.Ct., at 709-710, 99 L.Ed., at 1013-1014 (Harlan, J., dissenting).
28
We are satisfied that Murdock I states the constitutional standard. What is at issue here is principally a matter of timing and procedure. As long as a valid and timely claim of privilege is available as a defense to a taxpayer prosecuted for failure to make a return, the taxpayer has not been denied a free choice to remain silent merely because of the absence of a preliminary judicial ruling on his claim. We therefore do not agree that Garner was deterred from claiming the privilege in the sense that was true of the policemen in Garrity.
V
29
In summary, we conclude that since Garner made disclosures instead of claiming the privilege on his tax returns his disclosures were not compelled incriminations.21 He therefore was foreclosed from invoking the privilege when such information was later introduced as evidence against him in a criminal prosecution.
The judgment is
30
Affirmed.
31
Judgment affirmed.
32
Mr. Justice STEVENS took no part in the consideration or decision of this case.
33
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, concurring in the judgment.
34
I agree with the Court that petitioner, having made incriminating disclosures on his income tax returns rather than having claimed the privilege against self-incrimination, cannot thereafter assert the privilege to bar the introduction of his returns in a criminal prosecution. I disagree, however, with the Court's rationale, which is far broader than is either necessary or appropriate to dispose of this case.
35
This case ultimately turns on a simple question whether the possibility of being prosecuted under 26 U.S.C. § 7203 for failure to make a return compels a taxpayer to make an incriminating disclosure rather than claim the privilege against self-incrimination on his return. In discussing this question, the Court notes that only a "willful" failure to make a return is punishable under § 7203, and that "a defendant could not properly be convicted for an erroneous claim of privilege asserted in good faith." Ante, at 663, n. 18. Since a good-faith erroneous assertion of the privilege does not expose a taxpayer to criminal liability, I would hold that the threat of prosecution does not compel incriminating disclosures in violation of the Fifth Amendment. The protection accorded a good-faith assertion of the privilege effectively preserves the taxpayer's freedom to choose between making incriminating disclosures and claiming his Fifth Amendment privilege, and I would affirm the judgment of the Court of Appeals for that reason.
36
Not content to rest its decision on that ground, the Court decides that even if a good-faith erroneous assertion of the privilege could form the basis for criminal liability, the threat of prosecution does not amount to compulsion. It is constitutionally sufficient, according to the Court, that a valid claim of privilege is a defense to a § 7203 prosecution. Ante, at 1186-1188. In so holding, the Court answers a question that by its own admission is not presented by the facts of this case. And, contrary to the implication contained in the Court's opinion, the question is one of first impression in this Court.
37
Citing United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210 (1931) (Murdock I ), the Court observes that a taxpayer who claims the privilege on his return can be convicted of a § 7203 violation without having been given a preliminary ruling on the validity of his claim and a "second chance" to complete his return after his claim is rejected. The Court then leaps to the conclusion that the Fifth Amendment is satisfied as long as a valid claim of privilege is a defense to a § 7203 prosecution.
38
I accept the proposition that a preliminary ruling is not a prerequisite to a § 7203 prosecution. But cf. Quinn v. United States, 349 U.S. 155, 165-170, 75 S.Ct. 668, 674-677, 99 L.Ed. 964, 973-976 (1955). But it does not follow, and Murdock I does not hold, that the absence of a preliminary ruling is of no import in considering whether a defense of good-faith assertion of the privilege is constitutionally required.* It is one thing to deny a good-faith defense to a witness who is given a prompt ruling on the validity of his claim of privilege and an opportunity to reconsider his refusal to testify before subjecting himself to possible punishment for contempt. See, E. g., Maness v. Meyers, 419 U.S. 449, 460-461, 95 S.Ct. 584, 592-593, 42 L.Ed.2d 574, 584-585 (1975). It would be quite another to deny a good-faith defense to someone like petitioner, who may be denied a ruling on the validity of his claim of privilege until his criminal prosecution, when it is too late to reconsider. If, contrary to the undisputed fact, a taxpayer had no assurance of either a preliminary ruling or a defense of good-faith assertion of the privilege, he could claim the privilege only at the risk that an erroneous assessment of the law of self-incrimination would subject him to criminal liability. In that event, I would consider the taxpayer to have been denied the free choice to claim the privilege, and would view any incriminating disclosures on his tax return as "compelled" within the meaning of the Fifth Amendment. Only because a good-faith erroneous claim of privilege entitles a taxpayer to acquittal under § 7203 can I conclude that petitioner's disclosures are admissible against him.
1
Garner was also indicted for aiding and abetting the violation of 18 U.S.C. § 1084, the substantive offense involving transmission of bets and betting information. The trial judge acquitted him on this count at the close of the Government's case.
2
The panel of the Court of Appeals that originally heard the case had accepted Garner's contention and reversed, one judge dissenting. 501 F.2d 228. The en banc court affirmed the conviction by a 7-to-5 vote.
3
In Sullivan, Mr. Justice Holmes, writing for the Court, said: "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." 274 U.S., at 263-264, 47 S.Ct., at 607-608, 71 L.Ed., at 1040.
We have no occasion in this case to decide what types of information are so neutral that the privilege could rarely, if ever, be asserted to prevent their disclosure. See also California v. Byers, 402 U.S. 424, 91 S.Ct. 1535, 29 L.Ed.2d 9 (1971). Further, the claims of privilege we consider here are only those justified by a fear of self-incrimination other than under the tax laws. Finally, nothing we say here questions the continuing validity of Sullivan's holding that returns must be filed.
4
Title 26 U.S.C. § 7203 reads in full:
"Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to make a return (other than a return required under authority of section 6015), keep any records, or supply any information, who willfully fails to pay such estimated tax or tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 1 year, or both, together with the costs of prosecution."
5
Title 26 U.S.C. § 7602 reads in part:
"For the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax . . ., or collecting any such liability, the Secretary or his delegate is authorized
"(2) To summon the person liable for tax or required to perform the act, or any officer or employee of such person, or any person having possession, custody, or care of books of account containing entries relating to the business of the person liable for tax or required to perform the act, or any other person the Secretary or his delegate may deem proper, to appear before the Secretary or his delegate at a time and place named in the summons and to produce such books, papers, records, or other data, and to give such testimony, under oath, as may be relevant or material to such inquiry . . . ."
6
Title 18 U.S.C. § 6004 would appear to authorize the Service, as an alternative to an enforcement suit, to order a summoned taxpayer to make disclosures in exchange for immunity. We are informed, however, that it has not been the Service's practice to utilize § 6004. Brief for United States 19, and n. 11.
7
The term "witness" is used herein to identify one who, at the time disclosures are sought from him, is not a defendant in a criminal proceeding. The more frequent situations in which a witness' disclosures are compelled, subject to Fifth Amendment rights, include testimony before a grand jury, in a civil or criminal case or proceeding, or before a legislative or administrative body possessing subpoena power.
8
The Court also has held, analogously, that a witness loses the privilege by failing to claim it promptly even though the information being sought remains undisclosed when the privilege is claimed. United States v. Murdock, 284 U.S. 141, 148, 52 S.Ct. 63, 64, 76 L.Ed. 210, 212 (1931), disapproved on other grounds, Murphy v. Waterfront Comm'n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964); see Rogers v. United States, 340 U.S., at 371, 71 S.Ct., at 440, 95 L.Ed., at 348.
9
This conclusion has not always been couched in the language used here. Some cases have indicated that a nonclaiming witness has "waived" the privilege, see, E. g., United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 113, 47 S.Ct. 302, 306, 71 L.Ed. 560, 566 (1927). Others have indicated that such a witness testifies "voluntarily," see, E. g., Rogers v. United States, supra, 340 U.S., at 371, 71 S.Ct., at 440, 95 L.Ed., at 348. Neither usage seems analytically sound. The cases do not apply a "waiver" standard as that term was used in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and we recently have made clear that an individual may lose the benefit of the privilege without making a knowing and intelligent waiver. See Schneckloth v. Bustamonte, 412 U.S. 218, 222-227, 235-240, 246-247, 93 S.Ct. 2041, 2045-2047, 2051-2054, 2057-2058, 36 L.Ed.2d 854, 859-862, 867-870, 873-874 (1973). Moreover, it seems desirable to reserve the term "waiver" in these cases for the process by which one affirmatively renounces the protection of the privilege, see, E. g., Smith v. United States, 337 U.S. 137, 150, 69 S.Ct. 1000, 1007, 93 L.Ed. 1264, 1273 (1949). The concept of "voluntariness" is related to the concept of "compulsion." But it may promote clarity to use the latter term in cases where disclosures are required in the face of a claim of privilege, while reserving "voluntariness" for the concerns discussed in Part IV, Infra, at 656-665, where we consider whether some factor prevents a taxpayer desiring to claim the privilege from doing so.
10
These arguments were in fact advanced in the dissent from the en banc decision below, which Garner adopted as his brief on the self-incrimination issue. Brief for Petitioner 8. Garner's brief itself principally advances two other claims of error. The facts underlying these claims were not presented in the petition for certiorari, see this Court's Rule 23(1)(e), which alone would have merited a denial of a petition not containing the self-incrimination claim. Rule 23(4). Further, these contentions were not deemed of sufficient merit to warrant discussion below. In these circumstances we consider it inappropriate to reach them.
11
As we have noted, the privilege is an exception to the general principle that the Government has the right to everyone's testimony. A corollary to that principle is that the claim of privilege ordinarily must be presented to a "tribunal" for evaluation at the time disclosures are initially sought. See Albertson v. SACB, 382 U.S. 70, 78-79, 86 S.Ct. 194, 198-199, 15 L.Ed.2d 165, (1965); United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S., at 113, 47 S.Ct., at 306, 71 L.Ed., at 566; Mason v. United States, 244 U.S. 362, 364-365, 37 S.Ct. 621, 622, 61 L.Ed. 1198, 1199-1200 (1917). This early evaluation of claims allows the Government to compel evidence if the claim is invalid or if immunity is granted and therefore assures that the Government obtains all the information to which it is entitled. In the gambling tax cases, however, making a claim of privilege when the disclosures were requested, I. e., when the returns were due, would have identified the claimant as a gambler. The Court therefore forgave the usual requirement that the claim of privilege be presented for evaluation in favor of a "claim" by silence. See Marchetti, supra, 390 U.S., at 50, 88 S.Ct., at 703, 19 L.Ed.2d at 898. Nonetheless, it was recognized that one who "claimed" the privilege by refusing to file could be required subsequently to justify his claim of privilege. See Id., at 61, 88 S.Ct., at 709, 19 L.Ed.2d at 905. If a particular gambler would not have incriminated himself by filing the tax returns, the privilege would not justify a failure to file.
12
Mr. Justice BRENNAN, joined by Mr. Justice MARSHALL, concurred in the judgment on the ground that the compelled disclosure of the amount of Mackey's gambling income could be used in a prosecution for income tax evasion. See 401 U.S., at 702, 91 S.Ct., at 1185, 28 L.Ed.2d, at 426.
13
It does not follow necessarily that a taxpayer would be immunized against use of disclosures made on gambling tax returns when the Fifth Amendment would have justified a failure to file at all. If Marchetti and Grosso had been held retroactive, immunization might have been appropriate in Mackey's case. But at the time Mackey filed there was in fact no privilege not to file. Not only had Marchetti and Grosso not yet been decided, but United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754 (1953), and Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475 (1955), previously had held that the privilege was not a defense to prosecution for failure to file the occupational tax returns. Mackey therefore was compelled to file his returns, thereby necessarily identifying himself as a gambler and thus risking self-incrimination. Accordingly, there were two related reasons to view the disclosures made in Mackey as compelled incriminations. The first was the inherently incriminating nature of the information demanded by the Government. See Supra, at 658. The second was the gambler's inability to claim the privilege by refusing to file at the time Mackey's disclosures were required. Cf. Mackey, supra, 401 U.S., at 704, 91 S.Ct., at 1165, 28 L.Ed.2d, at 427 (Brennan, J., concurring in judgment); Leary v. United States, 395 U.S. 6, 27-28, 89 S.Ct. 1532, 1543-1544, 23 L.Ed.2d 57, 76-77 (1969); Grosso, supra, 390 U.S., at 70-71, 88 S.Ct. at 714-715, 19 L.Ed.2d at 913-914. In the case of gambling tax returns filed after Marchetti and Grosso, the second factor would not be present.
14
Marchetti and Grosso, of course, removed the threat of a criminal conviction when one validly claims the privilege by failing to file gambling tax returns. We do not pause here to consider whether there may be circumstances that would deprive a gambler of the free choice to claim the privilege by failing to file such returns, and therefore allow him to exclude a completed gambling tax return by claiming the privilege at trial. Cf. n. 13, Supra.
15
Garner contends that whatever the case may be with regard to taxpayers in general, a gambler who might be incriminated by revealing his occupation cannot claim the privilege on the return effectively. This contention stems from the fact that certain specialized tax calculations are required only of gamblers. See § 165(d) of the Code, 26 U.S.C. § 165(d); Recent Cases, 86 Harv.L.Rev. 914, 916 n. 13 (1973). Garner argues that the process of claiming the privilege with respect to these calculations will reveal a gambler's occupation. We need not address this contention, since Garner found it unnecessary to make any such special calculations. 501 F.2d, at 237 n. 3.
16
Garner contends that California v. Byers, 402 U.S. 424, 91 S.Ct. 1535, 29 L.Ed.2d 9 (1971), cast doubt on Sullivan's dictum. The Court held in Byers that the privilege against compulsory self-incrimination was not violated by a statute requiring motorists involved in automobile accidents to stop and identify themselves. Garner argues that Byers suggests that governments always can compel answers to neutral regulatory inquiries in a self-reporting scheme and that the protection of the Fifth Amendment should be afforded in such cases solely through use immunity.
We cannot agree that Byers undercut Sullivan's dictum. Although there was not a majority of the Court for any rationale for the Byers holding, the Court addressed there only the basic requirement that one's name and address be disclosed. The opinions upholding the requirement suggested that the privilege might be claimed appropriately against other questions. 402 U.S., at 434 n. 6, 91 S.Ct., at 1541, 29 L.Ed.2d, at 21 (plurality opinion); Id., at 457-458, 91 S.Ct., 1552-1553, 29 L.Ed.2d 34-35 (Harlan, J., concurring in judgment). Byers is thus analogous to Sullivan, holding only that requiring certain basic disclosures fundamental to a neutral reporting scheme does not violate the privilege.
17
The Murdock cases involved predecessor statutes to § 7203, but they were identical to it in all material respects. See Internal Revenue Act of 1926, § 1265, 44 Stat. 850-851; Internal Revenue Act of 1928, § 146(a), 45 Stat. 835.
18
Because § 7203 proscribes "willful" failures to make returns, a taxpayer is not at peril for every erroneous claim of privilege. The Government recognizes that a defendant could not properly be convicted for an erroneous claim of privilege asserted in good faith. This concession simply reflects our holding in Murdock II. There Murdock's claim of privilege was considered unjustified (because of the holding in Murdock I disapproved in Murphy v. Waterfront Comm'n ). But the Court recognized that "good faith" in its assertion would entitle Murdock to acquittal.
"(T)he Government, . . . we think correctly, assumed that it carried the burden of showing more than a mere voluntary failure to supply information, with intent, in good faith, to exercise a privilege granted the witness by the Constitution." 290 U.S. at 397, 54 S.Ct., at 226, 78 L.Ed. at 386.
See United States v. Bishop, 412 U.S. 346, 93 S.Ct. 2008, 36 L.Ed.2d 941 (1973). In this respect, the protection for the taxpayer in a § 7203 prosecution is broader than that for a witness who risks contempt to challenge a judicial order to disclose. In the latter case, a mere erroneous refusal to disclose warrants a sanction. See Maness v. Meyers, 419 U.S. 449, 460-461, 95 S.Ct. 584, 592-593, 42 L.Ed.2d 574, 584-585 (1975).
19
The Government advised us at oral argument that a claim of privilege would stimulate rulings by the Service. It is doubtful, therefore, that a claimant would find himself prosecuted with no prior indication that the Service considered his claim invalid. The claimant, however, would not have a judicial assessment of his claim.
20
See n. 17, Supra.
21
No language in this opinion is to be read as allowing a taxpayer desiring the protection of the privilege to make disclosures concurrently with a claim of privilege and thereby to immunize himself against the use of such disclosures. If a taxpayer desires the protection of the privilege, he must claim it instead of making disclosures. Any other rule would deprive the Government of its choice between compelling the evidence from the claimant in exchange for immunity and avoiding the burdens of immunization by obtaining the evidence elsewhere. See Mackey v. United States, 401 U.S., at 711-713, 91 S.Ct., at 1169-1171, 28 L.Ed.2d, at 431-433 (Brennan, J., concurring in judgment).
*
Indeed, as the Court notes, Ante, at 663, n. 18, the Court held that Murdock was entitled to acquittal if his assertion of the privilege was in good faith. United States v. Murdock, 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381 (1933) (Murdock II ).
| 01
|
424 U.S. 828
96 S.Ct. 1211
47 L.Ed.2d 505
Thomas U. GREER, Commander, Fort Dix Military Reservation, et al., Petitioners,v.Benjamin SPOCK et al.
No. 74-848.
Argued Nov. 5, 1975.
Decided March 24, 1976.
Syllabus
Fort Dix, a federal military reservation devoted primarily to basic training for newly inducted Army personnel, and over which the Government exercises exclusive jurisdiction, permits free civilian access to certain unrestricted areas. However, post regulations ban speeches and demonstrations of a partisan political nature and also prohibit the distribution of literature without prior approval of post headquarters. Pursuant to these regulations the commanding officer of Fort Dix rejected the request of respondent candidates for President and Vice President to distribute campaign literature and hold a political meeting on the post, and the other respondents, who had been evicted on several occasions for distributing literature not previously approved, were barred from re-entering the post. Respondents brought suit to enjoin enforcement of these regulations on the ground that they violated the First and Fifth Amendments. The District Court issued an injunction prohibiting the military authorities from interfering with the making of political speeches or the distribution of leaflets in areas of Fort Dix open to the general public, and the Court of Appeals affirmed. Held:
1. The regulations are not constitutionally invalid on their face. Since under the Constitution it is the basic function of a military installation like Fort Dix to train soldiers, not to provide a public forum, and since, as a necessary concomitant to this basic function, a commanding officer has the historically unquestioned power to exclude civilians from the area of his command, any notion that federal military installations, like municipal streets and parks, have traditionally served as a place for free public assembly and communication of thoughts by private citizens is false, and therefore respondents had no generalized constitutional right to make political speeches or distribute leaflets at Fort Dix. Flower v. United States, 407 U.S. 197, 92 S.Ct. 1842, 32 L.Ed.2d 653, distinguished. Pp. 834-838.
2. Nor were the regulations unconstitutionally applied under the circumstances of this case. Pp. 838-840.
(a) As to the regulation banning political speeches and demonstrations, there is no claim that the military authorities discriminated in any way among candidates based upon the candidates' supposed political views; on the contrary it appears that Fort Dix has a policy, objectively and evenhandedly applied, of keeping official military activities there wholly free of entanglement with any partisan political campaigns, a policy that the post was constitutionally free to pursue. Pp. 838-839.
(b) As to the regulation governing the distribution of literature, a military commander may disapprove only those publications that he perceives clearly endanger the loyalty, discipline, or morale of troops on the base under his command, and, while this regulation might in the future be applied irrationally, invidiously, or arbitrarily, none of the respondents even submitted any material for review, and the noncandidate respondents had been excluded from the post because they had previously distributed literature there without attempting to obtain approval. P. 840.
502 F.2d 953, reversed.
Sol. Gen. Robert H. Bork, Washington, D. C., for petitioners.
David Kairys, Philadelphia, Pa., for respondents.
Mr. Justice STEWART delivered the opinion of the Court.
1
The Fort Dix Military Reservation is a United States Army post located in a predominantly rural area of central New Jersey. Its primary mission is to provide basic combat training for newly inducted Army personnel. Accordingly, most of its 55 square miles are devoted to military training activities. The Federal Government exercises exclusive jurisdiction over the entire area within Fort Dix, including the state and county roads that pass through it.1 Civilian vehicular traffic is permitted on paved roads within the reservation, and civilian pedestrian traffic is permitted on both roads and footpaths. Military police regularly patrol the roads within the reservation, and they occasionally stop civilians and ask them the reason for their presence. Signs posted on the roads leading into the reservation state: "All vehicles are subject to search while on the Fort Dix Military Reservation" and "Soliciting prohibited unless approved by the commanding general." The main entrances to Fort Dix are not normally guarded, and a sign at one of the entrances says "Visitors Welcome." Civilians are freely permitted to visit unrestricted areas of the reservation.
2
Civilian speakers have occasionally been invited to the base to address military personnel. The subjects of their talks have ranged from business management to drug abuse. Visiting clergymen have, by invitation, participated in religious services at the base chapel. Theatrical exhibitions and musical productions have also been presented on the base. Speeches and demonstrations of a partisan political nature, however, are banned by Fort Dix Reg. 210-26 (1968), which provides that "(d)emonstrations, picketing, sit-ins, protest marches, political speeches and similar activities are prohibited and will not be conducted on the Fort Dix Military Reservation." The regulation has been rigidly enforced: Prior to this litigation, no political campaign speech had ever been given at Fort Dix. Restrictions are also placed on another type of expressive activity. Fort Dix Reg. 210-27 (1970) provides that "(t)he distribution or posting of any publication, including newspapers, magazines, handbills, flyers, circulars, pamphlets or other writings, issued, published or otherwise prepared by any person, persons, agency or agencies . . . is prohibited on the Fort Dix Military Reservation without prior written approval of the Adjutant General, this headquarters."2
3
In 12, the respondents Benjamin Spock and Julius Hobson were the candidates of the People's Party for the offices of President and Vice President of the United States, and Linda Jenness and Andrew Pulley were the candidates of the Socialist Workers Party for the same offices. On September 9, 1972, Spock, Hobson, Jenness, and Pulley wrote a joint letter to Major General Bert A. David, then commanding officer of Fort Dix, informing him of their intention to enter the reservation on September 23, 1972, for the purpose of distributing campaign literature and holding a meeting to discuss election issues with service personnel and their dependents. On September 18, 1972, General David rejected the candidates' request, relying on Fort Dix Regs. 210-26 and 210-27.3 Four of the other respondents, Ginaven, Misch, Hardy, and Stanton, were evicted from Fort Dix on various occasions between 1968 and 1972 for distributing literature not previously approved pursuant to Fort Dix Reg. 210-27. Each was barred from re-entering Fort Dix and advised that re-entry could result in criminal prosecution.4
4
On September 29, 1972, the respondents filed this suit in the United States District Court for the District of New Jersey to enjoin the enforcement of the Fort Dix regulations governing political campaigning and the distribution of literature, upon the ground that the regulations violated the First and Fifth Amendments of the Constitution. The District Court denied a preliminary injunction, Spock v. David, 349 F.Supp. 179, but the Court of Appeals reversed that order and directed that preliminary injunctive relief be granted to the respondents Spock, Hobson, Jenness, and Pulley. Spock v. David, 469 F.2d 1047.5 Pursuant to this judgment the respondent Spock conducted a campaign rally at a Fort Dix parking lot on November 4, 1972. The District Court subsequently issued a permanent injunction prohibiting the military authorities from interfering with the making of political speeches or the distribution of leaflets in areas of Fort Dix open to the general public,6 and the Court of Appeals affirmed this final judgment. Spock v. David, 502 F.2d 953. We granted certiorari to consider the important federal questions presented. 421 U.S. 908, 95 S.Ct. 1556, 43 L.Ed.2d 773.
5
In reaching the conclusion that the respondents could not be prevented from entering Fort Dix for the purpose of making political speeches or distributing leaflets, the Court of Appeals relied primarily on this Court's Per curiam opinion in Flower v. United States, 407 U.S. 197, 92 S.Ct. 1842, 32 L.Ed.2d 653. In the Flower case the Court summarily reversed the conviction of a civilian for entering a military reservation after his having been ordered not to do so. At the time of his arrest the petitioner in that case had been "quietly distributing leaflets on New Braunfels Avenue at a point within the limits of Fort Sam Houston, San Antonio, Texas." Ibid. The Court's decision reversing the conviction, made without the benefit of briefing or oral argument, rested upon the premise that " 'New Braunfels Avenue was a completely open street,' " and that the military had "abandoned any claim that it has special interests in who walks, talks, or distributes leaflets on the avenue." Id., at 198, 92 S.Ct., at 1843, 32 L.Ed.2d, at 655. Under those circumstances, the "base commandant" could "no more order petitioner off this public street because he was distributing leaflets than could the city police order any leaflete(e)r off any public street." Ibid.
6
The decision in Flower was thus based upon the Court's understanding that New Braunfels Avenue was a public thoroughfare in San Antonio no different from all the other public thoroughfares in that city, and that the military had not only abandoned any right to exclude civilian vehicular and pedestrian traffic from the avenue, but also any right to exclude leaflete(e)rs "any claim (of) special interests in who walks, talks, or distributes leaflets on the avenue ."
7
That being so, the Court perceived the Flower case as one simply falling under the long-established constitutional rule that there cannot be a blanket exclusion of First Amendment activity from a municipality's open streets, sidewalks, and parks for the reasons stated in the familiar words of Mr. Justice Roberts in Hague v. CIO, 307 U.S. 496, 515-516, 59 S.Ct. 954, 964, 83 L.Ed. 1423, 1436:
8
"Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied."
9
See, E. g., Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, 328, 95 L.Ed. 267, 280; Saia v. New York, 334 U.S. 558, 561 n. 2, 68 S.Ct. 1148, 1150, 92 L.Ed. 1574, 1578; Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292; Jamison v. Texas, 318 U.S. 413, 416, 63 S.Ct. 669, 671, 87 L.Ed. 869, 872; Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213; Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155.
10
The Court of Appeals was mistaken, therefore, in thinking that the Flower case is to be understood as announcing a new principle of constitutional law, and mistaken specifically in thinking that Flower stands for the principle that whenever members of the public are permitted freely to visit a place owned or operated by the Government, then that place becomes a "public forum" for purposes of the First Amendment. Such a principle of constitutional law has never existed, and does not exist now. The guarantees of the First Amendment have never meant "that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please." Adderley v. Florida, 385 U.S. 39, 48, 87 S.Ct. 242, 247, 17 L.Ed.2d 149, 156. "The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated." Id., at 47, 87 S.Ct., at 247, 17 L.Ed.2d, at 156. See also Cox v. Louisiana, 379 U.S. 559, 560-564, 85 S.Ct. 476, 478-481, 13 L.Ed.2d 487, 489-492. Cf. Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495.
11
The Court of Appeals in the present case did not find, and the respondents do not contend, that the Fort Dix authorities had abandoned any claim of special interest in regulating the distribution of unauthorized leaflets or the delivery of campaign speeches for political candidates within the confines of the military reservation. The record is, in fact, indisputably to the contrary.7 The Flower decision thus does not support the judgment of the Court of Appeals in this case.
12
Indeed, the Flower decision looks in precisely the opposite direction. For if the Flower case was decided the way it was because the military authorities had "abandoned any claim (of) special interests in who walks, talks, or distributes leaflets on the avenue," then the implication surely is that a different result must obtain on a military reservation where the authorities have Not abandoned such a claim. And if that is not the conclusion clearly to be drawn from Flower, it most assuredly is the conclusion to be drawn from almost 200 years of American constitutional history.
13
One of the very purposes for which the Constitution was ordained and established was to "provide for the common defence,"8 and this Court over the years has on countless occasions recognized the special constitutional function of the military in our national life, a function both explicit and indispensable.9 In short, it is "the prima business of armies and navies to fight or be ready to fight wars should the occasion arise." United States ex rel. Toth v. Quarles, 350 U.S. 11, 17, 76 S.Ct. 1, 5, 100 L.Ed. 8, 14. And it is consequently the business of a military installation like Fort Dix to train soldiers, not to provide a public forum.
14
A necessary concomitant of the basic function of a military installation has been "the historically unquestioned power of (its) commanding officer summarily to exclude civilians from the area of his command." Cafeteria Workers v. McElroy, 367 U.S. 886, 893, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230, 1235. The notion that federal military reservations, like municipal streets and parks, have traditionally served as a place for free public assembly and communication of thoughts by private citizens is thus historically and constitutionally false.
15
The respondents, therefore, had no generalized constitutional right to make political speeches or distribute leaflets at Fort Dix, and it follows that Fort Dix Regs. 210-26 and 210-27 are not constitutionally invalid on their face. These regulations, moreover, were not unconstitutionally applied in the circumstances disclosed by the record in the present case.10
16
With respect to Reg. 210-26, there is no claim that the military authorities discriminated in any way among candidates for public office based upon the candidates' supposed political views.11 It is undisputed that, until the appearance of the respondent Spock at Fort Dix on November 4, 1972, as a result of a court order, no candidate of any political stripe had ever been permitted to campaign there.
17
What the record shows, therefore, is a considered Fort Dix policy, objectively and evenhandedly applied, of keeping official military activities there wholly free of entanglement with partisan political campaigns of any kind. Under such a policy members of the Armed Forces stationed at Fort Dix are wholly free as individuals to attend political rallies, out of uniform and off base. But the military as such is insulated from both the reality and the appearance of acting as a handmaiden for partisan political causes or candidates.
18
Such a policy is wholly consistent with the American constitutional tradition of a politically neutral military establishment under civilian control. It is a policy that has been reflected in numerous laws and military regulations throughout our history.12 And it is a policy that the military authorities at Fort Dix were constitutionally free to pursue.
19
With respect to Reg. 210-27, it is to be emphasized that it does not authorize the Fort Dix authorities to prohibit the distribution of conventional political campaign literature. The only publications that a military commander may disapprove are those that he finds constitute "a clear danger to (military) loyalty, discipline, or morale," and he "may not prevent distribution of a publication simply because he does not like its contents," or because it "is critical even unfairly critical of government policies or officials . . . ."13 There is nothing in the Constitution that disables a military commander from acting to avert what he perceives to be a clear danger to the loyalty, discipline, or morale of troops on the base under his command.
20
It is possible, of course, that Reg. 210-27 might in the future be applied irrationally, invidiously, or arbitrarily. But none of the respondents in the present case even submitted any material for review. The noncandidate respondents were excluded from Fort Dix because they had previously distributed literature there without even attempting to obtain approval for the distribution. This case, therefore, simply does not raise any question of unconstitutional application of the Regulation to any specific situation. Cf. Rescue Army v. Municipal Court, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 666.
21
For the reasons set out in this opinion the judgment is reversed.
22
It is so ordered.
23
Judgment reversed.
24
Mr. Justice STEVENS took no part in the consideration or decision of this case.
25
Mr. Chief Justice BURGER, concurring.
26
I concur in the Court's opinion, and also in Part III of Mr. Justice POWELL's concurring opinion.
27
Permitting political campaigning on military bases cuts against a 200-year tradition of keeping the military separate from political affairs, a tradition that in my view is a constitutional corollary to the express provision for civilian control of the military in Art. II, § 2, of the Constitution.
28
As Mr. Justice POWELL notes, however, Fort Dix Reg. 210-27 at least to the extent that it permits distribution of some political leaflets on military bases cannot be justified as implementing this policy of separation or even as consistent with our tradition of separation. I agree that the regulation insofar as it permits a military commander to avert a clear threat to the loyalty, discipline, or morale of his command, is justified by the requirements of military life and the mission of the Armed Forces. But a commander could achieve this goal in another way as well, by banning the distribution on base of All political leaflets; the hard question for me is whether the Constitution requires a ban on all distributions in order to preserve the separation of the military from politics. Although there are dangers in permitting any distribution of political materials on a military base, those dangers are of less magnitude and narrower in scope than the dangers involved in requiring the military to permit political rallies and campaigning on a base; the risk that soldiers will become identified with a particular candidate is, for example, less when a leaflet is handed out than when meetings or political rallies are held. The differences are substantial enough that the decision whether to permit conventional political material to be distributed is one properly committed to the judgment of the military authorities whether or not they have exercised that judgment wisely in promulgating the regulation before us.
29
I would add only a note of caution. History demonstrates, I think, that the real threat to the independence and neutrality of the military and the need to maintain as nearly as possible a true "wall" of separation comes not from the kind of literature that would fall within the prohibition of Reg. 210-27, but from the risk that a military commander might attempt to "deliver" his men's votes for a major-party candidate. This record, as the Court notes, presents no issue of discriminatory or improper enforcement, but that should not be taken as an indication that the issue is not one of serious dimensions. It is only a little more than a century ago that some officers of the Armed Forces, then in combat, sought to exercise undue influence either for President Lincoln or for his opponent, General McClellan, in the election of 1864.
30
Mr. Justice POWELL, concurring.
31
I join the Court's opinion, and express these additional thoughts.
32
* This case presents the question whether campaign activities and face-to-face distribution of literature for other causes on a military base can be regulated and even prohibited because of the unique character of the Government property upon which the expression is to take place. Candidate respondents propose to use streets and other areas of Fort Dix that are open to the public for partisan political rallies and handbilling. Noncandidate respondents seek to distribute literature in these areas without prior approval by Fort Dix officials.
33
Although no prior decision of the Court is directly in point, the appropriate framework of analysis is settled. As Mr. Justice BRENNAN's dissenting opinion today recognizes, First Amendment rights are not absolute under all circumstances. They may be circumscribed when necessary to further a sufficiently strong public interest. See Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966); Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965). But our decisions properly emphasize that any significant restriction of First Amendment freedoms carries a heavy burden of justification. See, E. g., Buckley v. Valeo, 424 U.S., at 64-65, 96 S.Ct., at 656; Grayned v. City of Rockford, 408 U.S. 104, 116-117, 92 S.Ct. 2294, 2303-2304, 33 L.Ed.2d 222, 232-233 (1972).
34
An approach analogous to that which must be employed in this case was described in Grayned v. City of Rockford, supra. The Court is to inquire "whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time." 408 U.S., at 116, 92 S.Ct., at 2303, 33 L.Ed.2d, at 232. See also Pell v. Procunier, supra, 417 U.S., at 822, 94 S.Ct., at 2804, 41 L.Ed.2d, at 501; Tinker v. Des Moines School District, 393 U.S. 503, 509, 89 S.Ct. 733, 737-738, 21 L.Ed.2d 731, 739 (1969). As Tinker demonstrates, it is not sufficient that the area in which the right of expression is sought to be exercised be dedicated to some purpose other than use as a "public forum," or even that the primary business to be carried on in the area may be disturbed by the unpopular viewpoint expressed. Id., at 508-509, 89 S.Ct., at 737-738, 21 L.Ed.2d, at 738-739. Our inquiry must be more carefully addressed to the intrusion on the specific activity involved and to the degree of infringement on the First Amendment rights of the private parties. Some basic incompatibility must be discerned between the communication and the primary activity of an area.
35
In this case we deal with civilian expression in the domain of the military. Fort Dix is not only an area of property owned by the Government and dedicated to a public purpose. It is also the enclave of a system that stands apart from and outside of many of the rules that govern ordinary civilian life in our country:
36
"A military organization is not constructed along democratic lines and military activities cannot be governed by democratic procedures. Military institutions are necessarily far more authoritarian; military decisions cannot be made by vote of the interested participants. . . . (T)he existence the two systems (military and civilian does not) mean that constitutional safeguards, including the First Amendment, have no application at all within the military sphere. It only means that the rules must be somewhat different." T. Emerson, The System of Freedom of Expression 57 (1970).
37
In this context our inquiry is not limited to claims that the exercise of First Amendment rights is disruptive of base activity. We also must consider their functional and symbolic incompatibility with the "specialized society separate from civilian society," Parker v. Levy, 417 U.S. 733, 743, 94 S.Ct. 2547, 2555, 41 L.Ed.2d 439, 450 (1974), that has its home on the base.1
II
38
I turn first to Fort Dix's ban on political activities, such as rallies, within the environs of the base.2 With the majority, have concluded that the legitimate interests of the public in maintaining the reality and appearance of the political neutrality of the Armed Services in this case outweigh the interests of political candidates and their servicemen audience in the availability of a military base for campaign activities. It may be useful to elaborate on the Court's identification of these interests.
39
This case bears some similarity to that before the Court in CSC v. Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973). In that case the Court held that limitations on partisan political activities by federal employees were justified because it was necessary to insure that "the Government and its employees" in fact execute the laws impartially and that they appear to the public to be doing so, "if confidence in the system of representative Government is not to be eroded to a disastrous extent." Id., at 565, 93 S.Ct., at 2890, 37 L.Ed.2d, at 804. We emphasized that the limitations were narrowly drawn, leaving federal employees free to vote as they choose and to "express (their opinions) on political subjects and candidates." Id., at 575-576, 93 S.Ct., at 2896, 37 L.Ed.2d, at 815.
40
In this case we are mindful of an equally strong tradition, now nearly two centuries old, of maintaining noninvolvement by the military in politics. As the Court has pointed out, this tradition is buttressed by numerous federal laws and military regulations. Ante, at 839 n.12. The overriding reason for preserving this neutrality is noted in Mr. Justice BRENNAN's dissenting opinion:
41
"It is the lesson of ancient and modern history that the major socially destabilizing influence in many European and South American countries has been a highly politicized military." Post, at 867.
42
This lesson may have prompted the constitutional requirement that the President be the Commander in Chief of the Armed Forces. U.S.Const., Art. II, § 2. Command of the Armed Forces placed in the political head of state, elected by the people, assures civilian control of the military. Few concepts in our history have remained as free from challenge as this one. But complete and effective civilian control could compromised by participation of the military Qua military in the political process. There is also a legitimate public concern with the preservation of the appearance of political neutrality and nonpartisanship. There must be public confidence that civilian control remains unimpaired, and that undue military influence on the political process is not even a remote risk.
43
The exclusion of political rallies and face-to-face campaigning from a military base furthers both the appearance and the reality of political neutrality on the part of the military. Such an exclusion, for example, makes it less likely that candidates will fashion partisan appeals addressed to members of the Armed Services rather than to the public at large, whereas compelling bases to be open to campaigning would invite such appeals. Traditionally, candidates for office have observed scrupulously the principle of a politically neutral military and have not sought to identify or canvass a "military vote." If one candidate commences to tour military bases or sends supporters for that purpose others may feel compelled to follow. The temptation to focus on issues that specifically appeal to military personnel would be difficult to resist.
44
Even if no direct appeals to the military audience were made, the mere fact that one party or candidate consistently draws large crowds on military bases while another attracts only spotty attendance could and probably would be interpreted by the news media and the civilian public as indicating that the military supports one as opposed to the other. Questions also could arise as to whether pressures, direct or indirect, to support one candidate or rally more generously than another were being exerted by commanders over enlisted personnel. And partisan political organizing and soliciting by soldiers within the base may follow.
45
The public interest in preserving the separation of the military from partisan politics places campaign activities on bases in a unique position. Unlike the normal civilian pedestrian and vehicular traffic that is permitted freely in Fort Dix, person-to-person campaigning may seriously impinge upon the separate and neutral status of the Armed Services in our society.
46
At the same time, the infringement on the individual First Amendment rights of the candidates and the servicemen is limited narrowly to the protection of the particular Government interest involved. Political communications reach military personnel on bases in every form except when delivered in person by the candidate or his supporters and agents. The prohibition does not apply to television, radio, newspapers, magazines, and direct mail. Nor could there be any prohibition on handing out leaflets and holding campaign rallies outside the limits of the base. Soldiers may attend off-base rallies as long as they do so out of uniform. The candidates, therefore, have alternative means of communicating with those who live and work on the Fort; and servicemen are not isolated from the information they need to exercise their responsibilities as citizens and voters. Our national policy has been to preserve a distinction between the role of the soldier and that of the citizen. See regulations cited Ante, at 839 n. 12. A reasonable place to draw the line is between political activities on military bases and elsewhere. The military enclave is kept free of partisan influences, but individual servicemen are not isolated from participation as citizens in our democratic process.
47
In sum, the public interest in insuring the political neutrality of the military justifies the limited infringement on First Amendment rights imposed by Fort Dix authorities.3
III
48
The noncandidate respondents contest the Fort Dix regulation requiring prior approval of all handbill, pamphlet, and leaflet literature (even if nonpartisan) before distribution on the base. The public interest in military neutrality is not at issue here, but the restriction is more limited and is directed to another concern. Under Army Reg. 210-10 P 5-5(c) (1970), permission is to be denied only where dissemination of the literature poses a danger "to the loyalty, discipline, or morale of troops." This regulation is responsive to the unique need of the military to "insist upon a respect for duty and a discipline without counterpart in civilian life." Schlesinger v. Councilman, 420 U.S. 738, 757, 95 S.Ct. 1300, 1313, 43 L.Ed.2d 591, 609 (1975). We have said, in Parker v. Levy, 417 U.S., at 758, 94 S.Ct., at 2563, 41 L.Ed.2d, at 459, that "(t)he fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it."
49
Concern for morale and discipline is particularly strong where, as here, the primary function of the base is to provide basic combat training for new recruits. The basic training period is an especially difficult one for the newly inducted serviceman, for he must learn "the subordination of the desires and interests of the individual to the needs of the service." Orloff v. Willoughby, 345 U.S. 83, 92, 73 S.Ct. 534, 539, 97 L.Ed. 842, 849 (1953) For the first four weeks of the program the recruit must remain on the base. The military interest in preserving a relatively isolated sanctuary during this period justifies the limited restraints placed upon distribution of literature. Although the recruits may be exposed through the media and, perhaps, the mail to all views in civilian circulation, face-to-face persuasion by someone who urges, say, refusal to obey a superior officer's command, has an immediacy and impact not found in reading papers and watching television.
50
As the Court points out, there is no occasion to consider whether the regulation has been misapplied or whether there are adequate procedural safeguards in the case of an adverse decision for the noncandidate respondents have made no effort to obtain approval.
51
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL concurs, dissenting.
52
Only four years ago, in a summary decision that presented little difficulty for most Members of this Court, we held that a peaceful leafleteer could not be excluded from the main street of a military installation to which the civilian public had been permitted virtually unrestricted access. Despite that decision in Flower v. United States, 407 U.S. 197, 92 S.Ct. 1842, 32 L.Ed.2d 653 (1972), the Court today denies access to those desirous of distributing leaflets and holding a political rally on similarly unrestricted streets and parking lots of another military base. In so doing, the Court attempts to distinguish Flower from this case. That attempt is wholly unconvincing, both on the facts and in its rationale. I, therefore, dissent.
53
According to the Court, the record here is "indisputably to the contrary" of that in Flower. Ante,at 837.1 But in Flower, this Court relied on the following characterization of Fort Sam Houston the military fort involved there and its main street in holding that a peaceful leafleteer could not be excluded from that street.
54
" 'There is no sentry post or guard at either entrance or anywhere along the route. Traffic flows through the post on this and other streets 24 hours a day. A traffic count conducted on New Braunfels Avenue on January 22, 1968, by the Director of Transportation of the city of San Antonio, shows a daily (24-hour) vehicular count of 15,110 south of Grayson Street (the place where the street enters the post boundary) and 17,740 vehicles daily north of that point. The street is an important traffic artery used freely by buses, taxi cabs and other public transportation facilities as well as by private vehicles, and its sidewalks are used extensively at all hours of the day by civilians as well as by military personnel. Fort Sam Houston was an open post; the street, New Braunfels Avenue, was a completely open street.' " 407 U.S., at 198, 92 S.Ct., at 1843, 32 L.Ed.2d, at 655, quoting United States v. Flower, 452 F.2d 80, 90 (CA5 1971) (Simpson, J., dissenting).
55
Fort Dix, at best, is no less open than Fort Sam Houston. No entrance to the Fort is manned by a sentry or blocked by any barrier. The reservation is crossed by 10 paved roads, including a major state highway. Civilians without any prior authorization are regular visitors to unrestricted areas of the Fort or regularly pass through it, either by foot or by auto, at all times of the day and night. Civilians are welcome to visit soldiers and are welcome to visit the Fort as tourists. They eat at the base and freely talk with recruits in unrestricted areas. Public service buses, carrying both civilian and military passengers, regularly serve the base. A 1970 traffic survey indicated that 66,000 civilian and military vehicles per day entered and exited the Fort. Indeed, the reservation is so open as to create a danger of muggings after payday and a problem with prostitution. There is, therefore, little room to dispute the Court of Appeals' finding in this case that "Fort Dix, when compared to Fort Sam Houston, is A fortiori an open post." Spock v. David, 469 F.2d 1047, 1054 (CA3 1972). See Appendix to this opinion for photographic comparison of both forts.
56
The inconsistent results in Flower and this case notwithstanding, it is clear from the rationale of today's decision that despite Flower there is no longer room, under any circumstance, for the unapproved exercise of public expression on a military base. The Court's opinion speaks in absolutes, exalting the need for military preparedness and admitting of no careful and solicitous accommodation of First Amendment interests to the competing concerns that all concede are substantial. It parades general propositions useless to precise resolution of the problem at hand. According to the Court, "it is 'the primary business of armies and navies to fight or be ready to fight wars should the occasion arise,' United States ex rel. Toth v. Quarles, 350 U.S. 11, 17, 76 S.Ct. 1, 5, 100 L.Ed. 8, 14," Ante, at 837-838, and "it is consequently the business of a military installation like Fort Dix to train soldiers, not to provide a public forum," Ante, at 838. But the training of soldiers does not as a practical matter require exclusion of those who would publicly express their views from streets and theater parking lots open to the general public. Nor does readiness to fight require such exclusion, unless, of course, the battlefields are the streets and parking lots, or the war is one of ideologies and not men.
57
With similar unenlightening generality, the Court observes: "One of the very purposes for which the Constitution was ordained and established was to 'provide for the common defence,' and this Court over the years has on countless occasions recognized the special constitutional function of the military in our national life, a function both explicit and indispensable." Ante, at 837. But the Court overlooks the equally, if not more, compelling generalization that to paraphrase the Court one of the very purposes for which the First Amendment was adopted was to "secure the Blessings of Liberty to ourselves and our Posterity,"2 and this Court over the years has on countless occasions recognized the special constitutional function of the First Amendment in our national life, a function both explicit and indispensable.3 Despite the Court's oversight, if the recent lessons of history mean anything, it is that the First Amendment does not evaporate with the mere intonation of interests such as national defense, military necessity, or domestic security. Those interests "cannot be invoked as a talismanic incantation to support any exercise of . . . power." United States v. Robel, 389 U.S. 258, 263, 88 S.Ct. 419, 423, 19 L.Ed.2d 508, 514 (1967).4 See New York Times C v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971). In all cases where such interests have been advanced, the inquiry has been whether the exercise of First Amendment rights necessarily must be circumscribed in order to secure those interests.
58
This principle was reaffirmed as recently as Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659, where we permitted significant interference with First Amendment freedoms in order to secure this country's eminent interest in the integrity of the political process. But even there, we required the employment of "means closely drawn to avoid unnecessary abridgement." Id., at 25, 96 S.Ct., at 638. This requirement was cogently expressed and supported by Mr. Chief Justice Burger, writing separately in Buckley :
59
"We all seem to agree that whatever the legitimate public interests in this area, proper analysis requires us to scrutinize the precise means employed to implement that interest. The balancing test used by the Court requires that fair recognition be given to competing interests. With respect, I suggest the Court has failed to give the traditional standing to some of the First Amendment values at stake here.
60
Specifically, it has failed to confine the particular exercise of governmental power within limits reasonably required.
61
" 'In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.' Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S.Ct. 900, 84 L.Ed. 1213 (1940).
62
" 'Unduly' must mean not more than necessary, and until today, the Court has recognized this criterion in First Amendment cases:
63
" 'In the area of First Amendment freedoms government has the duty to confine itself to The least intrusive regulations which are adequate for the purpose.' Lamont v. Postmaster General, 381 U.S. 301, 310, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965) (Brennan, J., concurring). (Emphasis added.)
64
"Similarly, the Court has said:
65
" '(E)ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.' Shelton v. Tucker, (364 U.S. 479, 488, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960) (Stewart, J.))." Id., at 238-239, 96 S.Ct., at 735 (concurring and dissenting).
66
Similarly, in United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972), this Court held that the concededly legitimate Government need to safeguard domestic security through wiretapping did not Ipso facto vitiate protections vouchsafed by the Fourth Amendment, especially because such surveillance posed a threat to First Amendment interests. In particular, we held:
67
"As the Fourth Amendment is not absolute in its terms, our task is to examine and balance the basic values at stake in this case: the duty of Government to protect the domestic security, and the potential danger posed by unreasonable surveillance to individual privacy and free expression. If the legitimate need of Government to safeguard domestic security requires the use of electronic surveillance, the question is whether the needs of citizens for privacy and free expression may not be better protected by requiring a warrant before such surveillance is undertaken. We must also ask whether a warrant requirement would unduly frustrate the efforts of Government to protect itself from acts of subversion and overthrow directed against it." Id., at 314-315, 92 S.Ct., at 2135, 32 L.Ed.2d, at 765 (emphasis supplied).5
68
If such is the necessary inquiry in the face of a critical Government interest where the First Amendment is only indirectly implicated, then no less careful an inquiry is compelled in this case where the First Amendment is directly implicated and the Government interest is no more important.
69
Finally, in Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974), this Court required that even in a penal institutions "First Amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system." Id., at 822, 94 S.Ct., at 2804, 41 L.Ed.2d, at 501. Accordingly, the Court did not abandon extensive analysis of the need for the restrictive prison regulation challenged there, even though "central to all other corrections goals (was) the institutional consideration of internal security within the corrections facilities themselves." Id., at 823, 94 S.Ct., at 2804, 41 L.Ed.2d, at 502. Today, however, the Court gives no consideration to whether it is actually necessary to exclude all unapproved public expression from a military installation under all circumstances and, more particularly, whether exclusion is required of the expression involved here. It requires no careful composition of the interests at stake. Yet, as the Court also observed in Pell, "(c)ourts cannot . . . abdicate their constitutional responsibility to delineate and protect fundamental liberties." Id., at 827, 94 S.Ct., at 2806, 41 L.Ed.2d, at 504. First Amendment principles especially demand no less.6
70
True to these principles and unlike the Court's treatment of military interests, respondents' position is not that the First Amendment is unbending. Contrary to the intimations of today's decision, they do not contend that "(t)he guarantees of the First Amendment . . . (mean) 'that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please.' " Ante, at 836. Respondents Spock and Hobson's initial letter to the Fort Dix commander indicating their intent to campaign on the base also indicated in unequivocal terms their willingness to confine the rally to such times and places as might reasonably be designated by petitioners.7 The other respondents sought only to distribute leaflets in unrestricted areas. And, contrary to further intimations by today's decision, respondents do not go so far as to contend, nor did the Court of Appeals think, that "whenever members of the public are permitted freely to visit a place owned or operated by the Government, then that place becomes a 'public forum' for purposes of the First Amendment," Ante, at 836, or that "federal military reservations, like municipal streets and parks, have traditionally served as a place for free public assembly and communication of thoughts by private citizens," Ante, at 838. Respondents carefully and appropriately distinguish between a military base considered as a whole and those portions of a military base open to the public.8 And not only do respondents not go so far as to contend that open places constitute a "public forum,"9 but also they need not go so far. Flower never went so far as to find that Fort Sam Houston or its public streets were a public forum. Moreover, the determination that a locale is a "public forum" has never been erected as an absolute prerequisite to all forms of demonstrative First Amendment activity. In short, then, today's decision only serves to answer a set of broad, falsely formulated issues, and fails to provide the careful consideration of interests deserved by the First Amendment.
71
It bears special note that the notion of "public forum" has never been the touchstone of public expression, for a contrary approach blinds the Court to any possible accommodation of First Amendment values in this case. In Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966), for example, the First Amendment protected the use of a public library as a site for a silent and peaceful protest by five young black men against discrimination. There was no finding by the Court that the library was a public forum. Similarly, in Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963), the First Amendment protected a demonstration on the grounds of a state capitol building. Again, the Court never expressly determined that those grounds constituted a public forum. And in Tinker v. Des Moines School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), the First Amendment shielded students' schoolroom antiwar protest, consisting of the wearing of black armbands.10 Moreover, none of the opinions that have expressly characterized locales as public forums has really gone that far, for a careful reading of those opinions reveals that their characterizations were always qualified, indicating that not every conceivable form of public expression would be protected. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975); Police Dept. of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972); Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941); Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939).
72
Those cases permitting public expression without characterizing the locale involved as a public forum, together with those cases recognizing the existence of a public forum, albeit qualifiedly, evidence the desirability of a flexible approach to determining when public expression should be protected. Realizing that the permissibility of a certain form of public expression at a given locale may differ depending on whether it is asked if the locale is public forum or if the form of expression is compatible with the activities occurring at the locale, it becomes apparent that there is need for a flexible approach. Otherwise, with the rigid characterization of a given locale as not a public forum, there is the danger that certain forms of public speech at the locale may be suppressed, even though they are basically compatible with the activities otherwise occurring at the locale.
73
Not only does the Court's forum approach to public speech blind it to proper regard for First Amendment interests, but also the Court forecloses such regard by studied misperception of the nature of the inquiry required in Flower. In particular, this Court found controlling in Flower the determination that the military command of Fort Sam Houston had "abandoned any claim that it has special interests in who walks, talks, or distributes leaflets on the avenue." 407 U.S., at 198, 92 S.Ct., at 1843, 32 L.Ed.2d, at 655. That was to say, that the virtually unrestricted admission of the public to certain areas of the Fort indicated that an exercise of public expression in those areas, such as distributing pamphlets, would not interfere with any military interests. Absent any interference, there could be no justification for selectively excluding every form of public expression, particularly a form no more disruptive than the civilian traffic already permitted. The abandonment required by Flower was not tantamount to a wholesale abdication of control, but rather was the yielding of base property to a use with which the exercise of the challenged form of public expression was not inconsistent. Thus, contrary to the Court's inaccurate reformulation, Flower did not go so far as to require that the military "(abandon) any right to exclude civilian vehicular and pedestrian traffic," Ante, at 835, or "(abandon) any claim of special interest in regulating" public expression before such expression would be permitted, Ante, at 837. The military certainly could retain the right to exclude civilian traffic, but it could not choose freely to admit all such traffic save for the traffic in ideas. And the military certainly could retain an interest in reasonably regulating, but not in absolutely excluding, public expression. The Government does have the power "to preserve the property under its control for the use to which it is lawfully dedicated," Adderley v. Florida, 385 U.S. 39, 47, 87 S.Ct. 242, 247, 17 L.Ed.2d 149, 156 (1966) (quoted Ante, at 836), provided the property remains so dedicated.
74
As applied in this case, the foregoing considerations require that the leaflet-distribution activities proposed by respondents be permitted in those streets and lots unrestricted to civilian traffic. Those areas do not differ in their nature and use from city streets and lots where open speech long has been protected. Hague v. CIO, supra, 307 U.S., at 515, 59 S.Ct., at 963, 83 L.Ed. at 1436. There is no credible claim here that distributing leaflets in those areas would impair to any significant degree the Government's interests in training recruits or, broadly, national defense.11 See United States v. United States District Court, 407 U.S., at 321, 92 S.Ct., at 2138, 32 L.Ed.2d at 768. This case, therefore, is unlike Adderley v. Florida, supra. There, though this Court held that the First Amendment did not protect a civil rights demonstration conducted on a jailhouse driveway, the Court was careful to observe that the "particular jail entrance and driveway were not normally used by the public," 385 U.S., at 45, 87 S.Ct., at 246, 17 L.Ed.2d, at 154, and that the jail custodian "objected only to (the demonstrators') presence on that part of the jail grounds reserved for jail uses," Id., at 47, 87 S.Ct. at 247, 17 L.Ed.2d at 155.
75
Unlike distributing leaflets, political rallies present some difficulty because of their potential for disruption even in unrestricted areas. But that a rally is disruptive of the usual activities in an unrestricted area is not to say that it is necessarily disruptive so as significantly to impair training or defense, thereby requiring its prohibition. Additionally, this Court has recognized that some quite disruptive forms of public expression are protected by the First Amendment. See Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). In view of respondents' willingness to submit to reasonable regulation as to time, place, and manner, it hardly may be argued that Fort Dix's purpose was threatened here. Without more, it cannot be said that respondents' proposed rally was impermissible.
76
It is no answer to say that the commander of a military installation has the "historically unquestioned power . . . to exclude civilians from the area of his command." Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 893, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230, 1235 (1961). The Court's reliance on this proposition from Cafeteria Workers is misplaced. That case was only concerned with the procedural requisites for revocation of a security clearance on a military base, not with the range of permissible justifications for such revocation and, thereby, exclusion. Indeed, the "privilege" doctrine upon which rested the sweeping powers suggested by that case has long since been repudiated. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). But more important, that decision specifically recognized that the Government was constrained by specific constitutional limitations, even in the exercise of its proprietary military functions. 367 U.S., at 897, 81 S.Ct., at 1750, 6 L.Ed.2d, at 1237. Where the interference with Fort functions by public expression does not differ from that presented by other activities in unrestricted areas, the Fort command may no more preclude such expression, than " 'Congress may . . . "enact a regulation providing that no Republican, Jew or Negro shall be appointed to federal office." ' " Ibid., quoting United Public Workers v. Mitchell, 330 U.S. 75, 100, 67 S.Ct. 556, 569, 91 L.Ed. 754, 773 (1947).
77
Similarly, it is no answer to say that the proposed activities in this case may be excluded because similar forms of expression have been evenhandedly excluded. An evenhanded exclusion of all public expression would no more pass constitutional muster than an evenhanded exclusion of all Roman Catholics. In any event, there can be no assertion that evenhanded exclusion here has in fact been the case because, as the Court implicitly concedes, Ante, at 839, there have been no other instances where the privilege of engaging in public expression on the Fort was advanced.
78
Additionally, prohibiting the distribution of leaflets cannot be justified on the ground that that expression presents a "clear danger to (military) loyalty, discipline, or morale." Ante, at 840. This standard for preclusion is, in the face of a well-developed line of precedents, constitutionally inadequate. This Court long ago departed from "clear and present danger" as a test for limiting free expression. See Hess v. Indiana, 414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303 (1973); Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969); Edwards v. South Carolina, supra; 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); Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951). Yet the Court today, without reason, would fully reinstate that test and, indeed, would only require that the danger be clear, not even present. Ante, at 121 As Mr. Justice Holmes observed in dissent better than a half century ago: "It is only the present danger of immediate evil or an intent to bring it about that warrants . . . setting a limit to the expression of opinion." Abrams v. United States, 250 U.S. 616, 628, 40 S.Ct. 17, 21, 63 L.Ed. 1173, 1179 (1919). "Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the (First Amendment)." Id., at 630-631, 40 S.Ct., at 22, 63 L.Ed., at 1180. Accepting for the moment however, the validity of a "clear danger" test, I do not see, nor does the Court's opinion demonstrate, how a clear danger is presented in this case. No one has seriously contended that the activities involved here presented such a danger to military loyalty, discipline, or morale.
79
The response that no such showing was required in this case because respondents failed to furnish for prior approval the material they proposed for distribution will not suffice.12 I first note that in view of the Court's essentially blanket preclusion of public expression from military installations, it is unnecessary for the Court to reach this issue save to the extent the Court unwittingly concedes the tenuousness of its total ban. Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct.221, 31 L.Ed.2d 536 (1972); Ashwander v. TVA, 297 U.S. 288, 346-348, 56 S.Ct. 466, 482, 483, 80 L.Ed. 688, 710-711 (1936) (Brandeis, J., concurring). See Rescue Army v. Municipal Court, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 666 (1947). Most important, however, in advancing such a justification, the Court engages in a rude refusal even to acknowledge the firmly fixed limitation on governmental control of First Amendment activity afforded by the doctrine against prior restraints. The illegality of the restraint sought to be imposed in this case obviated any requirement that respondents submit to it, thereby risking irreparable injury to First Amendment interests. See New York Times Co. v. United States, 403 U.S., at 725-726, and n., 91 S.Ct., at 2147, and n., 29 L.Ed.2d at 831, and n. (1971) (Brennan, J., concurring); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965).
80
Requiring prior approval of expressive material before it may be distributed on base constitutes a system of prior restraint,13 Freedman v. Maryland, supra; Times Film Corp. v. Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403 (1961); a system "bearing a heavy presumption against its constitutional validity." Southeastern Promotions, Ltd. v. Conrad, 420 U.S., at 558, 95 S.Ct., at 1246, 43 L.Ed.2d, at 459; New York Times Co. v. United States, supra, 403 U.S., at 714, 91 S.Ct., at 2141, 29 L.Ed.2d, at 824; Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357, 1366 (1931). "Our distaste for censorship reflecting the natural distaste of a free people is deep-written in our law." Southeastern Promotions, Ltd. v. Conrad, supra, 420 U.S., at 553, 95 S.Ct., at 1244, 43 L.Ed.2d, at 456. The Court's tacit approval of the prior restraint imposed under Fort Dix Reg. 210-27 is therefore deeply disturbing. Not only does the Court approve a procedure whose validity need not even be considered in this case, but also it requires no rebuttal of the heavy presumption against that validity. And I seriously doubt that the presumption would fall in this case.
81
First, while not every prior restraint is Per se unconstitutional, the permissibility of such restraints has thus far been confined to a limited number of contexts. Southeastern Promotions, Ltd. v. Conrad, supra, at 559, 95 S.Ct., at 1246, 43 L.Ed.2d, at 459. The imposition of prior restraints on speech or the distribution of literature in public areas has been consistently rejected, except to the extent such restraints sought to control time, place, and circumstance rather than content. See Police Dept. of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972); Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939); Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938). Similarly, the content-oriented prior restraint of Reg. 210-27 has no place in the open areas of Fort Dix.
82
Second, "(t)he settled rule is that a system of prior restraint 'avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system.' " Southeastern Promotions, Ltd. v. Conrad, supra, 420 U.S., at 559, 95 S.Ct., at 1247, 43 L.Ed.2d, at 459, quoting Freedman v. Maryland, supra, 380 U.S., at 58, 85 S.Ct., at 738, 13 L.Ed.2d, at 654. But neither Fort Dix regulations nor any other applicable Army or Department of Defense guidelines require a prompt determination that publications may be distributed on the Fort. At the very least, therefore, there should be a requirement that the Fort commander promptly approve or disapprove publications proposed for distribution, lest failure to make a determination effectively result in censorship. See Blount v. Rizzi, 400 U.S. 410, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971); Southeastern Promotions, Ltd. v. Conrad, supra; Freedman v. Maryland, supra.
83
The Court's final retreat in justifying the prohibitions upheld today is the principle of military neutrality. According to the Court, the military authorities of Fort Dix were free to pursue "the American constitutional tradition of a politically neutral military." Ante, at 839. I could not agree more that the military should not become a political faction in this country. It is the lesson of ancient and modern history that the major socially destabilizing influence in many European and South American countries has been a highly politicized military. But it borders on casuistry to contend that by evenhandedly permitting public expression to occur in unrestricted portions of a military installation, the military will be viewed as sanctioning the causes there espoused.14 If there is any risk of partisan involvement, real or apparent, it derives from the exercise of a choice, in this case, the Fort commander's choice to exclude respondents, while, for example, inviting speakers in furtherance of the Fort's religious program.15 Additionally, the Court would do well to consider the very real system of prior restraint operative at Fort Dix, for the very fact that literature distributed on the Fort is subject to that system fosters the impression that it is disseminated with a military imprimatur.
84
More fundamentally, however, the specter of partiality does not vanish with the severing of all partisan contact. It is naive to believe that any organization, including the military, is value neutral. More than this, where the interests and purpose of an organization are peculiarly affected by national affairs, it becomes highly susceptible of politicization. For this reason, it is precisely the nature of a military organization to tend toward that end.16 That tendency is only facilitated by action that serves to isolate the organization's members from the opportunity for exposure to the moderating influence of other ideas, particularly where, as with the military, the organization's activities pervade the lives of its members. For this reason, any unnecessary isolation only erodes neutrality and invites the danger that neutrality seeks to avoid.
85
In Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976), as in today's decision, this Court recently moved to narrow the opportunities for free expression in our society. In Hudgens, the Court also preached of its institutional duty to declare overruled a case whose rationale did not survive that of a succeeding case. I would maintain that the Court's duty is to recognize the irreconcilability of two decisions and then to explain why it chooses one over the other. But accepting for the moment the Court's perception of its duty. I note that the Court today declines to overrule Flower. I presume, therefore, that some meaningful distinction must exist between that decision and today's. But if any significant distinction remains between the cases, it is that in Flower the private party was an innocuous leafleteer and here the private parties include one of this country's most vociferous opponents of the exercise of military power.17 That is hardly a distinction upon which to render a decision circumscribing First Amendment protections.
86
I would for these reasons, affirm the judgment of the Court of Appeals.
APPENDIX TO OPINION OF BRENNAN, J., DISSENTING
87
[NOTE: MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE (GRAPHIC OR TABULAR MATERIAL)]
88
'Visitors Welcome' sign on roadside adjacent to New Jersey Route 68 entrance to Fort Dix.
89
[NOTE: MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE (GRAPHIC OR TABULAR MATERIAL)]
90
Main entrance to Fort Sam houston in Flower (arrow indicates side walk on which defendant was arrested). [NOTE: MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE (GRAPHIC OR TABULAR MATERIAL)]
91
Respondents Ginaven and Misch distributing pamphlets, just prior to their arrest, inside Wrightstown, N.J., entrance to Fort Dix.
92
Mr. Justice MARSHALL, dissenting.
93
While I concur fully in Mr. Justice BRENNAN's dissent, I wish to add a few separate words. I am deeply concerned that the Court has taken its second step in a single day toward establishing a doctrine under which any military regulation can evade searching constitutional scrutiny simply because of the military's belief however unsupportable it may be that the regulation is appropriate. We have never held and, if we remain faithful to our duty, never will hold that the Constitution does not apply to the military. et the Court's opinions in this case and in Middendorf v. Henry, 425 U.S. 25, 96 S.Ct. 1281, 47 L.Ed.2d 556, holding the right to counsel inapplicable to summary court-martial defendants, go distressingly far toward deciding that fundamental constitutional rights can be denied to both civilians and servicemen whenever the military thinks its functioning would be enhanced by so doing.
94
The First Amendment infringement that the Court here condones is fundamentally inconsistent with the commitment of the Nation and the Constitution to an open society. That commitment surely calls for a far more reasoned articulation of the governmental interests assertedly served by the challenged regulations than is reflected in the Court's opinion. The Court, by its unblinking deference to the military's claim that the regulations are appropriate, has sharply limited one of the guarantees that makes this Nation so worthy of being defended. I dissent.
1
See N.J.Stat.Ann. 52:30-2 (1955):
"Exclusive jurisdiction in and over any land . . . acquired by the United States is hereby ceded to the United States for all purposes except the service of process issued out of any of the courts of this state in any civil or criminal proceeding."
See also N.J.Stat.Ann. 27:5A-1 (1966):
"Whenever any public road or highway is located wholly or in part within the limits of a United States military reservation, the United States military authorities shall have the power, within the limits of such reservations, to police such roads and highways, to regulate traffic thereon, and to exercise such supervisory powers over such roads and highways as they may deem necessary to protect life and property on such military reservations."
2
This regulation does not permit the Fort Dix authorities to prohibit the distribution of conventional political campaign literature. The post regulation was issued in conformity with Army Reg. 210-10, P 5-5(c) (1970), which states that permission to distribute a publication may be withheld only where "it appears that the dissemination of (the) publication presents a clear danger to the loyalty, discipline, or morale of troops at (the) installation. . . ." The Army regulation further provides that if a base commander decides to withhold permission to distribute a publication, he shall "inform the next major commander and Headquarters, Department of the Army . . . and request . . . approval to prohibit the distribution of that publication or the particular issue thereof." P 5-5(d). The base commander may delay distribution of the publication in
question pending approval or disapproval of his request by Army headquarters. Ibid.
A Department of the Army letter, dated June 23, 1969, entitled Guidance on Dissent, P 5(a)(3), gives as examples of materials which a commander need not allow to be distributed "publications which are obscene or otherwise unlawful (e. g., counselling disloyalty, mutiny, or refusal of duty)."
Commercial magazines and newspapers distributed through regular outlets such as post exchange newsstands need not be approved before distribution. Army Reg. 210-10, PP 5-5(c), (d), does provide that a commander may delay, and the Department of the Army may prohibit, the distribution of particular issues of such publications through official outlets. See Department of the Army letter, Supra, P 5(a)(1). The substantive standards for such restrictions are the same as those applicable to publications distributed other than through official outlets. Id., PP 5(a)(1), (2); Army Reg. 210-10, P 5-5(e). This provision of Army Reg. 210-10, P 5-5, allowing commanders to halt the distribution of particular issues of publications through regular outlets appears to be inconsistent with Department of Defense Directive 1325.6, P III(A)(1) (1969) which provides that "(a) Commander is not authorized to prohibit the distribution of a specific issue of a publication through official outlets such as post exchanges and military libraries." See Note, Prior Restraints in the Military, 73 Col.L.Rev. 1089, 1106 n. 127 (1973).
3
General David's letter stated, in pertinent part:
"Your request to visit Fort Dix and campaign among our servicemen and women is denied.
"There are several compelling reasons for this denial which I shall enumerate. First, there are lawful regulations in effect which prohibit political speeches and similar activities on all of the Fort Dix Military Reservation (Fort Dix Regulation 210-26). The distribution of literature without prior approval of this headquarters is also prohibited (Fort Dix Regulation 210-27). Also, Department of the Army Regulations prohibit military personnel from participating in any partisan political campaign and further prohibits (Sic ) them from appearing at public demonstrations in uniform.
"The mission assigned to me as Commanding General of Fort Dix is to administer basic combat training to approximately 15,000 men at any given time. These men spend a period of eight weeks here during which they perform their training on very vigorous schedules occupying virtually all of their time. I am not in a position to dilute the quality of this training by expanding these schedules to include time to attend political campaigning and speeches. Political campaigning on Fort Dix cannot help but interfere with our training and other military missions.
"To decide otherwise could also give the appearance that you or your campaign is supported by me in my official capacity. I feel that I am prohibited from doing this for any candidate for public office."
4
Title 18 U.S.C. § 1382, provides that "(w)hoever reenters or is found within (a military) reservation . . . after having been removed therefrom or ordered not to reenter by any officer or person in command or charge thereof Shall be fined not more than $500 or imprisoned not more than six months, or both."
5
The Court of Appeals did not disturb the denial of preliminary relief to the four noncandidate respondents because their interests were not viewed as "so directly connected with (the upcoming Presidential) election, (or) so promptly and diligently pursued in the courts, as are the interests of the candidates. They make a lesser showing of immediate irreparable injury and possibly a lesser showing of likelihood of meeting the jurisdictional amount." 469 F.2d at 1056.
6
The District Court dismissed the complaint as to Jenness and Pulley because they were below the constitutional age limits for the offices they sought. There was no appeal from that part of the District Court's judgment.
7
See n. 3, Supra.
8
U. S. Const., Preamble. See also U. S. Const., Art. I, § 8; Art. II, § 2.
9
For illustrative recent decisions of this Court see, E. g., Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591; Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610; Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439; Bell v. United States, 366 U.S. 393, 81 S.Ct. 1230, 6 L.Ed.2d 365; United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8; Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508; Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842; Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146.
10
The fact that other civilian speakers and entertainers had sometimes been invited to appear at Fort Dix did not of itself serve to convert Fort Dix into a public forum or to confer upon political candidates a First or Fifth Amendment right to conduct their campaigns there. The decision of the military authorities that a civilian lecture on drug abuse, a religious service by a visiting preacher at the base chapel, or a rock musical concert would be supportive of the military mission of Fort Dix surely did not leave the authorities powerless thereafter to prevent any civilian from entering Fort Dix to speak on any subject whatever.
11
Cf. Jenness v. Forbes, 351 F.Supp. 88 (D.C.R.I.).
12
Members of the Armed Forces may not be polled by any person or political party to determine their choice among candidates for elective office, 18 U.S.C. § 596; it is unlawful to solicit political contributions in any fort or arsenal, 18 U.S.C. § 603; candidates for federal office are prohibited from soliciting contributions from military personnel, 18 U.S.C. § 602; no commissioned or noncommissioned officer in the Armed Forces may attempt to influence any member of the Armed Forces to vote for any particular candidate, 50 U.S.C. § 1475; no officer of the Armed Forces may "in any manner interfere with the freedom of any election in any State," 42 U.S.C. § 1972; a military officer may not have troops under his control at any place where a general or special election is held, 18 U.S.C. § 592. See also Army Reg. 600-20 (1971); Army Reg. 670-5 (1975).
13
Department of the Army letter, Supra, n. 2, PP 5(a)(1), (3).
1
I agree with the Court that the holding today is not inconsistent with our decision in Flower v. United States, 407 U.S. 197, 92 S.Ct. 1842, 32 L.Ed.2d 653 (1972). We stressed there that the area in which the petitioner had distributed leaflets was an " 'important traffic artery' " in the city of San Antonio, equivalent in every relevant respect to a city street. Under the circumstances, the exercise of First Amendment activities along the thoroughfare was not incompatible with the neutrality or the disciplinary goals of the base proper. Fort Dix, in contrast, is a discrete military training enclave in a predominately rural area.
2
Fort Dix Reg. 210-26 (1968) prohibits "(d)emonstrations, picketing, sit-ins, protest marches, political speeches and similar activities." It is not clear whether "similar activities" include the distribution of leaflets with a partisan political content. I find it difficult to draw a principled distinction, in terms of the neutrality interests outlined below, between a small rally, a "street walking" campaign by a candidate, and the handing out of campaign literature by a candidate or his supporter. Therefore, I will assume for purposes of this discussion that Reg. 210-26 applies to all partisan activity.
3
Of course, if the base authorities were to permit any candidate or his supporters to engage in personal politicking on the base, the interest in military neutrality would then require that all candidates and their supporters be allowed. The base authorities cannot select among candidates and permit the supporters of some to canvass the base without engaging in improper partiality. There is no indication in the record, however, that the Fort Dix authorities ever have permitted partisan appeals to take place on the base.
1
In support of its characterization of the record as "indisputably to the contrary," the Court points to the Fort commander's response to respondent Spock's initial request to campaign at the Fort. Ante, at 837 n. 7. According to the Court, the commander's refusal to permit Spock's rally indicated that the military authorities had not " 'abandoned any claim (of) special interests in who walks, talks, or distributes leaflets . . . .' " See Ante, at 837, quoting Flower v. United States, 407 U.S., at 198, 92 S.Ct., at 1843, 32 L.Ed.2d, at 655. The commander's response, however, came subsequent to a history of unimpeded civilian access to Fort Dix. Thus its after-the-fact, self-serving nature no more supports the assertion that the military authorities had not "abandoned any claim" than did the arrest of the defendant in Flower.
2
U.S.Const., Preamble. See also U.S.Const., Amdt. 1.
3
See, E. g., Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975); New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971); Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969); New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931).
4
Indeed, as Mr. Chief Justice Warren observed in invalidating a portion of the Subversive Activities Control Act of 1950 as an unconstitutional abridgment of the First Amendment right of association:
"(T)his concept of 'national defense' cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. Implicit in the term 'national defense' is the notion of defending those values and ideals which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties the freedom of association which makes the defense of the Nation worthwhile." United States v. Robel, 389 U.S., at 264, 88 S.Ct., at 423.
5
The Court went on to observe and conclude:
"These contentions in behalf of a complete exemption from the warrant requirement, when urged on behalf of the President and the national security in its domestic implications, merit the most careful consideration. We certainly do not reject them lightly, especially at a time of worldwide ferment and when civil disorders in this country are more prevalent than in the less turbulent periods of our history. There is, no doubt, pragmatic force to the Government's position.
"But we do not think a case has been made for the requested departure from Fourth Amendment standards. . . . We recognize, as we have before, the constitutional basis of the President's domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure.
"Thus, we conclude that the Government's concerns do not justify departure in this case from the customary Fourth Amendment requirement of judicial approval prior to initiation of a search or surveillance. Although some added burden will be imposed upon the Attorney General, this inconvenience is justified in a free society to protect constitutional values. Nor do we think the Government's domestic surveillance powers will be impaired to any significant degree. . . ." 407 U.S., at 319-321, 92 S.Ct., at 2138-2139, 32 L.Ed.2d, at 767-768.
6
The concurring opinion of my Brother POWELL properly recognizes at least the need for careful inquiry in such cases. But I completely disagree with his characterization of the need to secure the Government's interest in a politically neutral military as an interest protected by prohibiting conduct of "symbolic incompatibility" with a military base. Concurrence, Ante, at 844. I gather that by this notion of "symbolic incompatibility," my Brother POWELL means only to accord recognition to the interest in neutrality, an interest qualitatively different from the more immediate functional interest in training recruits. I, of course, have no quarrel with recognition of the interest. See Infra, at 867. But that recognition as articulated by my Brother POWELL is so devoid of limiting principle as to contravene fundamentals of First Amendment jurisprudence. This Court many times has held protected by the First Amendment conduct which was "symbolically incompatible" with the activity upon which it impacted. See Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974); Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974); West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). Indeed, the very symbolisms of many of our institutions have been the subject of criticisms held to be unassailably protected by the First Amendment.
7
Spock and Hobson's letter, dated September 9, 1972, stated in pertinent part:
"As presidential and vice-presidential candidates, we intend to visit Fort Dix to campaign among the servicemen and servicewomen there. Both the Peoples Party and the Socialist Workers Party are addressing themselves to the special issues facing U. S. soldiers. For this reason we are bringing our respective campaigns wherever possible directly to the American G. I.
"The recent decision allowing G. I.'s stationed in New Jersey to register and vote there will undoubtedly result in an increased number of registered voters at the base, and an increased interest in the presidential contest. For that reason we are especially looking forward to campaigning at Fort Dix.
"It is not our intention to disrupt the normal functioning of the base and we will of course abide by any reasonable restrictions as to the time and places of our campaigning. Perhaps you would like to furnish us with a meeting hall or other such facility while we are on the post, where we might address interested soldiers. We will want to distribute our literature and talk to the soldiers about the issues that concern them.
"Our visit will take place on September 23, from about 10:30 A.M. to 2:00 P.M. If you have any questions concerning our plans, please contact us through our campaign offices." 1 App. 12-13.
8
Brief for Respondents 23, 25-26.
9
See Id., at 25-26.
10
Significantly, the Court observed in Tinker: "There is here no evidence whatever of petitioners' interference, actual or nascent, with the schools' work or of collision with the rights of other students to be secure and to be let alone." 393 U.S., at 508, 89 S.Ct., at 737, 21 L.Ed.2d, at 738.
11
The only threat to their "mission" that military officials were able to articulate consisted of concerns that distributing leaflets or having a rally could possibly create crowds, engender partisan discussion, start an argument, or incite riots. E. g., 1 App. 43-46, 48-49, 50-51, 64. "But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." Tinker v. Des Moines School Dist., 393 U.S., at 508, 89 S.Ct., at 737, 21 L.Ed.2d at 739.
12
The Court further observes that the noncandidate respondents were also "excluded from Fort Dix because they had previously distributed literature there without even attempting to obtain approval for the distribution." Ante, at 840. This justification is wholly inadequate. It assumes that prior approval could have been validly required the first time respondents were excluded. As argued in the text, at this page and 865-866, that assumption is incorrect. But even if it is correct, failure once to have sought approval clearly may not of itself justify exclusion when approval is sought on a subsequent occasion. First, 18 U.S.C. § 1382 only prohibits Unapproved re-entry of those who have once been excluded from a military base; it does not give a base commander warrant for excluding such individuals on all future occasions. Second, if the activity for which those individuals seek subsequent approval is protected by the First Amendment, the fort commander may no more disapprove that activity because of the past transgression, than prohibit a person once convicted of selling obscene material from future sales of Lady Chatterley's Lover.
13
Where a demonstrator seeks use of an area serving an inconsistent use, however, the restraint then permissible is, of course, not only prior, but absolute.
14
As I observed in dissenting from this Court's decision upholding the preclusion of political, but not commercial, advertisement from municipally run buses:
" 'The endorsement of an opinion expressed in an advertisement on a motor coach is no more attributable to the transit district than the view of a speaker in a public park is to the city administration or the tenets of an organization using school property for meetings is to the local school board.' Wirta v. Alameda-Contra Costa Transit District, 68 Cal.2d 51, 61, 64 Cal.Rptr. 430, 437, 434 P.2d 982, 989 (1967). The city has introduced no evidence demonstrating that its rapid transit passengers would naively think otherwise. And though there may be 'lurking doubts about favoritism,' Ante, at 304 (94 S.Ct.) 2718, the Court has held that '(n)o such remote danger can justify the immediate and crippling impact on the basic constitutional rights involved in this case.' Williams v. Rhodes, 393 U.S., at 33." Lehman v. City of Shaker Heights, 418 U.S. 298, 321, 94 S.Ct. 2714, 2726, 41 L.Ed.2d 770, 787 (1974).
15
1 App. 54-55.
16
The testimony in the District Court of the officer representing the commanding officer of Fort Dix is exemplary:
"Q I see. Well, doesn't the war with Vietnam deal with your mission?
"A Oh, yes.
"Q Well, what I guess I am trying to get at is isn't it true that the content of what a proposed visitor intends to say is the basis for whether he is allowed to come on or not? If, for instance, he says 'I intend to urge the soldiers not to use drugs,' that, from what you have said, would be something that the Base might favorably look on. If he is going to inform them of some management principle that they are not aware of
"A That would further our mission, yes.
"Q But if they are to speak against the war in Vietnam
"A That certainly wouldn't forward our mission, would it?
"Q So the content of what they are to say, that is the basis of whether or not they are approved?
"A Yes, to a great extent." 1 App. 64.
"It appears highly likely . . . that the military in the post-Vietnam period will increasingly diverge along a variety of dimensions from the mainstream of developments in the general society." Moskos, Armed Forces and American Society: Convergence or Divergence?, in Public Opinion and the Military Establishment 271, 277 (C. Moskos ed. 1971). "(T)he military is undergoing a fundamental turning inward in its relations to the civilian structures of American society." Ibid.
"(T)he probability of sustained internal agitation or even questioning of the military system is unlikely once the war in Southeast Asia ends. With the advent of a curtailed draft or all-volunteer force, the military will find its membership much more
acquiescent to established procedures and organizational goals. Without broadly based civilian representation, the leavening effect of recalcitrant servicemen drafted enlisted men and ROTC officers will be no more. It appears that while our civilian institutions are heading toward more participative definition and control, the post-Vietnam military will follow a more conventional and authoritarian social organization. . . ." Id., at 292.
17
My Brother POWELL's concurrence correctly so highlights this case: "Traditionally, candidates for office have observed scrupulously the principle of a politically neutral military and have not sought to identify or canvass a 'military vote.' " Ante, at 846. I do not believe, however, that the principle of military neutrality goes so
far as to control the content or the audience of address of political speech. And I can think of no poorer warrant for abridging the values protected by the First Amendment than tradition. The principle of military neutrality is concerned, not with precluding exposure of the military to political issues, but with preventing the military from becoming a political faction by its very isolation from political discourse or selective exposure to such discourse. See n. 16, Supra. To be sure, "(a)lthough the recruits may be exposed through the media and, perhaps, the mail to all views in civilian circulation, face-to-face persuasion by someone who urges, say, refusal to obey a superior officer's command, has an immediacy and impact not found in reading papers and watching television." Ante, at 849. But there is here no allegation of such an immediate threat to base order. Nor do I perceive any basis for properly imputing the threat of such illegal conduct to respondent Spock or any of the other respondents.
| 23
|
47 L.Ed.2d 537
96 S.Ct. 1305
425 U.S. 1
ABBOTT LABORATORIES et al., Petitioners,v.PORTLAND RETAIL DRUGGISTS ASSOCIATION, INC., etc.
No. 74-1274.
Argued Dec. 16, 1975.
Decided March 24, 1976.
Syllabus
Respondent, as assignee of more than 60 commercial pharmacies, brought this antitrust action against petitioner manufacturers, charging that by selling drugs to certain hospitals, each of which has a pharmacy, at prices lower than those charged to respondent's assignors, petitioners violated the Robinson-Patman Act, which makes it unlawful for one engaged in commerce to discriminate in price between different purchasers of like commodities where "the effect . . . may be substantially to lessen competition." 15 U.S.C. § 13(a). Petitioners claimed that the challenged sales were exempt under the Nonprofit Institutions Act, which, inter alia, excludes from the application of the Robinson-Patman Act nonprofit hospitals' "purchases of their supplies for their own use." § 13c. The District Court ruled on the basis of the evidence adduced that the hospitals involved were nonprofit and that their drug purchases were "for their own use" within the meaning of § 13c, and granted summary judgment in favor of petitioners. The Court of Appeals vacated and remanded. While agreeing that the designated hospitals were nonprofit, that court concluded that a hospital's drugs are purchased for its "own use" only where the hospital can be said to be the consumer, i. e., where dispensations are to inpatients and emergency facility patients. Held :
1. Section 13c does not exempt all of a nonprofit hospital's drug purchases from the Robinson-Patman Act but the exempting language must be construed as applying to what reasonably may be regarded as use by the hospital in the sense that such use is part of and promotes the hospital's intended institutional operation in the care of its patients. Pp. 8-14.
2. Applying the foregoing rule, drug purchases by a nonprofit hospital are exempt as being for the hospital's "own use" if the drugs are dispensed:
(a) To the inpatient for use in his treatment at the hospital; to the patient admitted to the hospital's emergency facility for use in his treatment there; or to the outpatient for personal use on the hospital premises. Such dispensations are part of the hospital's basic function. P. 14.
(b) To the inpatient, or to the emergency facility patient, upon his discharge, and to the outpatient, all for off-premises personal use, provided these take-home dispensations are for a limited and reasonable time, as a continuation of, or supplement to, hospital treatment. Pp. 14-15.
(c) To the hospital employee or student for personal use, or for the use of his dependent. Each is a member of the hospital family and dispensation to him furthers the hospital's functions. P. 16.
(d) To the physician staff member for his personal use or the use of his dependent. Here the considerations are similar to those in (c) supra. Pp. 16-17.
3. Purchases for the following types of dispensation are not exempt since they are not for the hospital's "own use":
(a) To the former patient, by way of a renewal of a prescription given when he was an inpatient, an emergency facility patient, or an outpatient. The purpose of the exemption has been exceeded where the connection with the hospital has reached the refill stage. P. 15-16.
(b) To nondependents of those covered in PP 2(c) and (d), supra. These relationships are too attenuated for the statutory benefit. Pp. 16, 17.
(c) To the walk-in customer, who has no present connection with the hospital or its pharmacy (except in the occasional emergency situation, which can be viewed as de minimis ). P. 17-18.
4. Under these standards the hospital can either put all the drugs it purchases to its "own use" exclusively, or can keep separate records for the drugs put to its "own use" and for those otherwise dispensed, making accounting submissions to the supplier for price adjustments. The supplier is protected from antitrust liability if he reasonably and noncollusively relies upon the hospital's certification as to its dispensation of drugs purchased from the supplier. P. 19-21.
9 Cir., 510 F.2d 486, vacated and remanded.
James H. Clarke, Portland, Or., for petitioners.
Roger Tilbury, Portland, Or., for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
The Robinson-Patman Price Discrimination Act (Robinson-Patman), adopted in 1936, 49 Stat. 1526, amending § 2 of the Clayton Act, 38 Stat. 730, in general makes it unlawful for one engaged in commerce to discriminate in price between different purchasers of like commodities where, among other things, "the effect of such discrimination may be substantially to lessen competition." 15 U.S.C. § 13(a). The Nonprofit Institutions Act, adopted only two years later, in 1938, c. 283, 52 Stat. 446, exempts from the application of Robinson-Patman "purchases of their supplies for their own use by schools . . . hospitals, and charitable institutions not operated for profit." 15 U.S.C. § 13c.1
2
This case concerns nonprofit hospitals' purchases of products at favored prices from pharmaceutical companies. The issue is the proper construction of the phrase "purchases of their supplies for their own use," as it appears in the Nonprofit Institutions Act, and the consequent extent the hospitals' purchases are exempt from the proscription of Robinson-Patman.
3
* Petitioners are 12 manufacturers of pharmaceutical products. Respondent, an Oregon nonprofit corporation and assignee of more than 60 commercial pharmacies doing business in the metropolitan Portland, Ore. area, instituted this action against petitioners in the United States District Court for the District of Oregon for violations of the federal antitrust laws. Treble damages and injunctive relief were sought.
4
The amended complaint asserted five causes of action. Only one of the five (the second) is presently before us.2 In this claim the respondent alleged that in selling pharmaceutical products petitioners discriminated between nonprofit hospitals, on the one hand, and commercial pharmacies (regular drugstores), including respondent's assignors, on the other. As an affirmative defense, petitioners pleaded that their sales of pharmaceutical products to nonprofit hospitals were exempt from Robinson-Patman under the Nonprofit Institutions Act.
5
The parties engaged in discovery as to the nonprofit status and drug-dispensing practices of 14 designated metropolitan Portland area institutions that operate as nonprofit hospitals. Affidavits were obtained and filed. Petitioners, as defendants, pursuant to Fed.Rule Civ.Proc. 56(b), then moved for summary judgment on the amended complaint's second cause of action. App. 68.
6
The District Court, by an opinion delivered orally, ruled that all the designated institutions were nonprofit hospitals, and that their purchases of pharmaceutical products from petitioners were purchases of supplies "for their own use," within the language of 15 U.S.C. § 13c, and thus were exempt from the restrictions of Robinson-Patman. The court concluded, accordingly, that there was no issue as to any material fact with respect to the hospitals' nonprofit status or their use of the pharmaceutical products they purchased, and granted summary judgment in favor of the petitioners on the respondent's second cause of action. App. 278-288, 290-292.
7
The District Court, Id., at 292, certified its judgment under 28 U.S.C. § 1292(b), and the United States Court of Appeals for the Ninth Circuit permitted the interlocutory appeal to be taken. The Court of Appeals, while rejecting respondent's contentions that the designated hospitals did not qualify for exemption under § 13c,3 nevertheless vacated the District Court's judgment and remanded the case for further proceedings. 510 F.2d 486 (1974).
8
Because of the importance of the issue in the context of the modern nonprofit hospital, with its expanding service to the community, as compared with hospital operations of some years ago, and because of the obvious need for a definitive construction of language in the Nonprofit Institutions Act,4 we granted certiorari. 422 U.S. 1040, 95 S.Ct. 2655, 45 L.Ed.2d 692 (1975).
II
9
The pertinent facts are not really in dispute. The petitioners, admittedly, sell their pharmaceutical products to the designated Portland hospitals at prices less than those that govern petitioners' sales of like products to the respondent's assignors who are commercial pharmacists in Portland. The respective hospitals in turn dispense the pharmaceutical products they have so purchased from the petitioners. The application of Robinson-Patman to this situation is conceded except to the extent the exemption provision of the Nonprofit Institutions Act applies. The controversy, thus, comes into clear focus.
10
Each of the designated hospitals has a pharmacy. It is a separate department of the hospital. Its operation produces revenue in excess of costs. The net accrues to the hospital's benefit, is utilized for the institution's general purposes, and thus supports other activities of the hospital.
11
The District Court, App. 283-285, and the Court of Appeals, 510 F.2d, at 489, each perceived various categories of dispensations by the hospital pharmacies of the pharmaceutical products purchased from petitioners. But the District Court, in sustaining petitioners' motion for summary judgment, observed that "the vast majority" of the products purchased (85% To 95%), namely, those for the bed patient and for the patient receiving treatment in the hospitals' emergency facilities, were "clearly" for the hospitals' use, within the meaning of the Nonprofit Institutions Act, App. 283; that "out-patient treatment," whether "initial or repeated," was not outside that Act merely because there has been a "change in the distribution of health care" whereby the percentage of outpatient treatment increased since the statute was passed in 1938, Id., at 284; that "take-home drugs" were within the "clear meaning" of the statute, Ibid.; that drugs furnished to employees, staff physicians, and other members of the staff, while presenting "some mild degree of question," nevertheless were "for the use of the hospital," Id., at 285; and that the situation with respect to walk-in patients was insufficient in amount to "justify withdrawing" the statute's exemption, Ibid.
12
The Court of Appeals agreed that the inpatient and emergency facility situations "cover by far the greater part of hospital distribution," and that "such dispensing of drugs in the course of treatment in the hospital is the hospitals' (Sic ) own use." 510 F.2d, at 489. The court recited petitioners' asserted justifications for the other types of sales "as proper hospital functions": the need of the departing inpatient for take-home drugs; the continuation at home of the patient's treatment begun earlier in the hospital; the sales to employees as beg pursuant to collective-bargaining agreements; the sales to students as being aspects of the hospital's educational programs; the sales to physicians as being perquisites of hospital staff membership; the limitation of walk-in sales to instances where, at the time, the needed drugs could not be obtained elsewhere; the hospital's position "as a center for the provision of a full range of health services"; and "a decent regard for the needs of the community." Ibid.
13
But conceding that "distribution by the hospitals can be justified as a proper and useful community service and thus can be regarded as a proper hospital function," the Court of Appeals concluded that this was not necessarily "the hospitals' 'own use.' " Instead, said the court, hospital use under § 13c was limited to cases where the hospital can be said to be the consumer, that is, to those cases where the dispensations of drugs were to inpatients and emergency facility patients. The concept could not apply "to cases of resale by the hospital to a private consumer." Accordingly, as to such sales, the hospital may not acquire the pharmaceutical products "at an acquisition price that discriminates against local retail druggists." Ibid.
III
14
We, too, find it convenient to view the hospitals' sales and dispensations of the pharmaceutical products purchased from petitioners as falling into several categories.5 We divide them as follows: 1. To the inpatient for use in his treatment at the hospital. For present purposes, we define an inpatient as one admitted to the hospital for at least overnight bed occupancy.6
15
2. To the patient admitted to the hospital's emergency facility for use in the patient's treatment there. A patient in this category may or may not become an inpatient, as defined in the preceding paragraph.
16
3. To the outpatient for personal use on the hospital premises. For present purposes, we define an outpatient as one (other than an inpatient or a patient admitted to the emergency facility) who receives treatment or consultation on the premises.
17
4. To the inpatient, or to the emergency facility patient, upon his discharge and for his personal use away from the premises.
18
5. To the outpatient for personal use away from the premises.
19
6. To the former patient, by way of a renewal of a prescription given when he was an inpatient, an emergency facility patient, or an outpatient.
20
7. To the hospital's employee or student for personal use or for the use of his dependent.7
21
8. To the physician who is a member of the hospital's staff, but who is not its employee, for personal use or for the use of his dependent.
22
9. To the physician, who is a member of the hospital's staff, for dispensation in the course of the physician's private practice away from the hospital.
23
10. To the walk-in customer who is not a patient of the hospital.8
24
This division into categories reveals, of course, that we are concerned with linedrawing. The demarcation is somewhat simplified,on this record, by a concession on the part of the respondent. The respondent agrees with the Court of Appeals that the dispensing of drugs " 'in the course of treatment in the hospital is the hospitals' (Sic ) own use,' " regardless of whether the patient is technically described as an outpatient or as an inpatient. It does not matter, the respondent says, "whether the patient is occupying a bed or not"; thus, a "day surgery patient receiving medication while being treated in the hospital would be covered (that is, the sale to him would be exempt) whether in bed or not, as would one receiving a shot or pill while standing upright or otherwise in the outpatient clinic." Brief for Respondent 11. See also Tr. of Oral Arg. 29.
25
This concession, then, covers the above-listed categories 1, 2, and 3. We hasten to add, however, that if the respondent had made no concession as to these three categories, we would have reached the same result, for it seems to us to be very clear that a hospital's purchase of pharmaceutical products that are dispensed to and consumed by a patient on the hospital premises, whether that patient is bedded, or is seen in the emergency facility, or is only an outpatient, is a purchase of supplies for the hospital's "own use," within § 13c. In our view, as the respondent's concession indicates, this is so clear that it needs no further explication.
26
Before we turn to the remaining categories, we should state that we recognize, as the parties do, that the concept of the nonprofit hospital and its appropriate and necessary activity has vastly changed and developed since the enactment of the Nonprofit Institutions Act in 1938. The intervening decades have seen the hospital assume a larger community character. Some hospitals, indeed, truly have become centers for the "delivery" of health care. The nonprofit hospital no longer is a receiving facility only for the bedridden, the surgical patient, and the critical emergency. It has become a place where the community is readily inclined to turn, and because of increasing costs, physician specialization, shortage of general practitioners, and other factors is often compelled to turn, whenever a medical problem of import presents itself. The emergency room has become a facility for all who need it and it no longer is restricted to cases previously authorized by members of the staff. And patients that not long ago required bed care are often now treated on an ambulatory and outpatient basis. See Eastern Kentucky Welfare Rights Organization v. Simon, 165 U.S.App.D.C. 239, 249, 506 F.2d 1278, 1288 (1974), cert. granted, 421 U.S. 975, 95 S.Ct. 1974, 44 L.Ed.2d 466 (1975); Brodie & Graber, Institutional Pharmacy Practice in the 1970's, 28 Am.J.Hosp.Pharm. 240, 241 (1971).
IV
27
It has been said, of course, that the antitrust laws, and Robinson-Patman in particular, are to be construed liberally, and that the exceptions from their application are to be construed strictly. United States v. McKesson & Robbins, 351 U.S. 305, 316, 76 S.Ct. 937, 943, 100 L.Ed. 1209, 1218 (1956); FMC v. Seatrain Lines, Inc., 411 U.S. 726, 733, 93 S.Ct. 1773, 1778, 36 L.Ed.2d 620, 626 (1973); Perkins v. Standard Oil Co., 395 U.S. 642, 646-647, 89 S.Ct. 1871, 1873-1874, 23 L.Ed.2d 599, 605-606 (1969). The Court has recognized, also, that Robinson-Patman "was enacted in 1936 to curb and prohibit all devices by which large buyers gained discriminatory preferences over smaller ones by virtue of their greater purchasing power." FTC v. Broch & Co., 363 U.S. 166, 168, 80 S.Ct. 1158, 1160, 4 L.Ed.2d 1124, 1127 (1960); FTC v. Fred Meyer, Inc., 390 U.S. 341, 349, 88 S.Ct. 904, 908, 19 L.Ed.2d 1222, 1228 (1968). Because the Act is remedial, it is to be construed broadly to effectuate its purposes. See Tcherepnin v. Knight, 389 U.S. 332, 336, 88 S.Ct. 548, 553, 19 L.Ed.2d 564, 569 (1967); Peyton v. Rowe, 391 U.S. 54, 65, 88 S.Ct. 1549, 1555, 20 L.Ed.2d 426, 433 (1968). Implied antitrust immunity is not favored. United States v. National Assn. Securities Dealers, 422 U.S. 694, 719, 95 S.Ct. 2427, 2443, 45 L.Ed.2d 486, 505 (1975). "(O)ur cases have repeatedly established that there is a heavy presumption against implicit (antitrust) exemptions." Goldfarb v. Virginia State Bar, 421 U.S. 773, 787, 95 S.Ct. 2004, 2013, 44 L.Ed.2d 572, 585 (1975); United States v. Philadelphia Nat. Bank, 374 U.S. 321, 350-351, 83 S.Ct. 1715, 1734-1735, 10 L.Ed.2d 915, 937-938 (1963). And the focus of Robinson-Patman is on competition "at the same functional level." FTC v. Sun Oil Co., 371 U.S. 505, 520, 83 S.Ct. 358, 367, 9 L.Ed.2d 466, 479 (1963).
28
But the legislative history of the Nonprofit Institutions Act indicates clearly that that Act was concerned with the suspicion that Robinson-Patman, at the time just recently enacted, actually might operate to outlaw price favors that sellers would wish to grant to eleemosynary institutions. S.Rep. No. 1769, 75th Cong., 3d Sess., 1 (1938); H.R.Rep. No. 2161, 75th Cong., 3d Sess., 1 (1938). The parties here seek to utilize this legislative history in opposite ways. The respondent asserts that the statutory assurance of exemption "was never intended to countenance a mass invasion of the retail drug sale market by hospitals," Brief for Respondent 34, and that what Congress had in mind was "the role traditionally occupied by hospitals," Id., at 35. The petitioners assert that the 1938 statute "was written to assist a wide range of nonprofit institutions to operate at the lowest possible cost in the public interest," Brief for Petitioners 17, and that the focus was on the character of the institution, not on the particular features of its program, and not only on those institutions that operated at a loss, Id., at 17-18.
29
We are not fully persuaded by either view. The modern American hospital developed from an institution originally intended for the sick poor. See Eastern Kentucky Welfare Rights Organization v. Simon, 165 U.S.App.D.C., at 249, 506 F.2d, at 1288; E. Fisch, D. Freed, & E. Schachter, Charities and Charitable Foundations § 322 (1974); Bromberg, The Charitable Hospital, 20 Cath.U.L.Rev. 237, 238-240 (1970). Language in the bill which became the 1938 Act, that would have exempted only sales to nonprofit institutions "supported in whole or in part by public subscriptions," was deleted, 83 Cong.Rec. 6065 (1938), and the Act's exemption provision was not so restricted and confined. We thus do not relate the exemption to what might be described as the nonprofit hospital's original or "traditional" status. On the other hand, there is nothing in the Act that indicates that its exemption provision is to be applied and expanded automatically to whatever new venture the nonprofit hospital finds attractive in these changing days. The Congress surely did not intend to give the hospital a blank check. Had it so intended, it would not have qualified purchases by nonprofit institutions in the way it did in § 13c. See H.R.Rep. No. 1983, 90th Cong., 2d Sess., 78-79 (1968). We are concerned, after all, with an exemption from an antitrust statute, and the accepted general principles, hereinabove set forth, do have application even in the nonprofit hospital context.
30
We therefore conclude that the exemption provision of the Nonprofit Institutions Act is a limited one; that just because it is a nonprofit hospital that is purchasing pharmaceutical products does not mean that all its purchases are exempt from Robinson-Patman; that the test is the obvious one inherent in the language of the statute, namely, "purchases of their supplies for their own use"; and that "their own use" is what reasonably may be regarded as use By the hospital in the sense that such use is a part of and promotes the hospital's intended institutional operation in the care of persons who are its patients. This implies the limitation and it turns the measure naturally from the purchase to the use, as § 13c requires. In this focus we consider the several categories listed above.
V
31
1, 2, and 3. As to these three categories, we reiterate our conclusions already enunciated in the light of the concession by the respondent. Dispensation to the bed-occupying inpatient and to the patient at the hospital's emergency facility, in either case for use on the hospital premises, is a part of the institution's basic function, and is dispensation for the hospital's "own use." That it is the patient rather than the hospital that consumes is not determinative, and, indeed, the respondent here does not contend otherwise. A like result follows with respect to dispensation to the hospital's outpatient when that patient uses the pharmaceutical product on the hospital's premises.
32
4 and 5. The take-home prescription, usually a continuance of, or supplement to, what has been prescriptively administered at the hospital while the recipient was an inpatient, emergency facility patient, or outpatient, takes us, to be sure, one small step beyond and outside the hospital's door. The patient is released from care to continue his treatment and recuperation under something less than the hospital's emergency or routine intensive, regular, or, even, more casual care (if it offers that type), and less than its consultative service at its outpatient facility. The release from the hospital environment into the home is the next step in the chain of treatment on the patient's way to his resumption of normal activity completely free of treatment. The medical supervision and the hospital's participation in it to this point, at least, although approaching an end, are continuous and real, and are distinct parts of the transition from hospital care to home care. We therefore conclude that the genuine take-home prescription, intended, for a limited and reasonable time, as a continuation of, or supplement to, the treatment that was administered at the hospital to the patient who needed, and now continues to need, that treatment, is for the hospital's "own use." We therefore disagree with the Court of Appeals as to categories 4 and 5. We feel that a contrary ruling on our part would unduly and undeservedly emphasize the doorsill of the hospital, and that to draw a line at that threshold would be arbitrary and not consistent with congressional intent. In these instances, the hospital's "own use" of the pharmaceutical products extends realistically and not inappropriately somewhat beyond that threshold.
33
6. We conclude, however, that the refill for the hospital's former patient is on the other side of the line that divides that which is in the hospital's "own use" from that which is not. Inevitably, in accord with the test above set forth, there comes a point where the dispensation of pharmaceutical products is not for the institution's "own use." That point, we feel, is positioned short of the refill. Continuation of a drug's use for some time after initial prescription at the hospital may well be indicated for the particular patient, but, except for the limited take-home prescription referred to above, it is not the hospital's "own use," and it certainly is not for its "own use" forever just because it originated under hospital auspices. We conclude that the statute's limitation has been exceeded when the connection with the hospital has become as attenuated as it is at the refill stage.
34
7. Dispensation to the hospital's employee or to its student for the purchaser's personal use or for the use of his dependent poses a somewhat different problem. A hospital is an organization populated by persons rendering essential services of various kinds. The hospital's employees enable it to function. The hospital pharmacy is but a part of the whole; the employee and his services are other parts. And to the extent the institution has students on the medical and hospital scene interns, persons in the hospital's nursing, practical nursing, and nurse's aide programs, those in paramedical, chaplaincy, and administrative fields, and the like the connection with the hospital's purposes and its activities is obvious and institutionally intimate. We conclude, therefore, that dispensation by the pharmacy to the hospital's employee or student, each of whom, literally, is a member of the hospital family, for his own use or for the use of his dependent, enhances the hospital function and qualifies as being in the hospital's "own use," within the meaning of § 13c.9 But we draw the line between dispensation for the employee's or the student's personal use, or for the use of his dependent, on the one hand, and that for the use of another, even a nondependent family member, on the other.
35
8 and 9. What we have said in the preceding paragraph applies with equal force to dispensation to a physician member of the staff for his personal use or for the personal use of his dependent. The physician staff member, though not an employee in the technical sense of being full time in the hospital's service and on its payroll, nevertheless is vital to its existence. It is he who supplies the patient and who engages, perhaps directly and at least to some extent through the staff organization, in the formulation of the hospital's professional and operative policies. His activity at the hospital is in the hospital's use its very purpose for existence and dispensation to the physician and his dependent, we think, is for the hospital's "own use," within § 13c.
36
We again draw the line, however, when the physician's acquisition from the hospital pharmacy is not for his personal use or that of his dependent, or is not for the hospital. To the extent that the physician utilizes his proximity to the hospital pharmacy, and it permits him so to do, for other persons or other uses even, as this record occasionally intimates, for dispensation in that portion of his private practice unconnected with the hospital the requirement of the hospital's "own use" is not fulfilled. Here again the relationship is too attenuated for the statutory benefit, and we hold that § 13c definitely is not satisfied.
37
10. The walk-in prescription buyer for the most part affords little difficulty for us in the context of § 13c. Even though one acknowledges the full weight of the argument that the modern hospital is a different institution from what it was when the Nonprofit Institutions Act was adopted in 1938, and that increasingly it has become a focus of health care in the community, the extension of § 13c to the walk-in customer, who has no present connection with the hospital and its pharmacy other than as a place to have his prescription filled, would make the commercially advantaged hospital pharmacy just another community drug store open to all comers for prescription services and devastatingly positioned with respect to competing commercial pharmacies. This would extend the hospital's "own use" concept beyond that contemplated by Congress in § 13c.
38
We therefore hold that the walk-in buyer generally is not within the statute's exemption. We recognize, however, that there may be an occasion when the hospital pharmacy is the only one available in the community to meet a particular emergency situation. The respondent seeks to counter this possibility with a telephone book yellow-page reference to the providing of 24-hour service, and of some emergency or delivery service, by certain metropolitan Portland retail pharmacies. Brief for Respondent 56. That may be. We are content, however, to conclude that the occasional emergency is De minimis, in any event, and that its presence solitarily would not trigger litigation of the present kind. So long as the hospital pharmacy holds the emergency situation within bounds, and entertains it only as a humanitarian gesture, we shall not condemn the hospital and its suppliers to a Robinson-Patman violation because of the presence of the occasional walk-in dispensation of that type.10
VI
39
The petitioners suggest that a decision holding some dispensations by the nonprofit hospital not to be exempt establishes an objectionable and unworkable standard for hospitals and their suppliers because it "requires a segregation of drugs or accounting of their use that can be achieved only through the institution of clumsy and expensive dual supply or tracing systems to regulate and account for the use of drugs." Brief for Petitioners 28. They suggest the undesirability of a supplier's "controlling the disposition of merchandise the hands of a purchaser," citing United States v. Arnold, Schwinn & Co., 388 U.S. 365, 379, 87 S.Ct. 1856, 1865, 18 L.Ed.2d 1249, 1260 (1967), and they speak of the supplier's "retroactive exposure to claims." Brief for Petitioners 29.
40
Petitioners' concern is understandable, but we feel that it is overstated. Looking at the problem from the point of view of the purchasing hospital, two alternatives, and perhaps more,11 are presented. The first, and easier, is for the hospital pharmacy Not to dispense in any way hereinabove held to be outside the exemption of § 13c. The second is for the pharmacy to do exactly what the petitioners deplore, namely to establish a recordkeeping procedure that segregates the nonexempt use from the exempt use. This would be supplemented by the hospital's submission to its supplier of an appropriate accounting followed by the price adjustment that is indicated. This, to be sure, is cumbersome, but it obviously is the price the Congress has exacted for the benefits bestowed by the controlling legislation, and it should be no more cumbersome than the accounting demands that are made on commercial enterprises of all kinds in our complex society of today.
41
The supplier, on the other hand, properly may expect to be protected from antitrust liability for reasonable and noncollusive reliance upon its hospital customer's certification as to its dispensation of the products it purchases from the supplier. But it is not unreasonable to expect the supplier to assume the burden of obtaining the certification when it seeks to enjoy, with the institutional purchaser, the benefits provided by § 13c. It clearly does this with respect to responsibility for identification of its purchaser under that statute's standard, and little additional burden is imposed if it is required to take the small second step of routinely obtaining a representation from its hospital customer as to the use of the products purchased.
42
The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. Costs are allowed to petitioners to the extent of 50%.
43
It is so ordered.
44
Vacated and remanded.
45
Mr. Justice STEVENS took no part in the consideration or decision of this case.
46
Mr. Justice MARSHALL, concurring.
47
While I join the Court's opinion, I wish to add a word about the applicability of the exemption provided by the Nonprofit Institutions Act. To my mind, the key to the Act is that it exempts from the Robinson-Patman Act not only an itemized list of institutions, but also all "charitable institutions not operated for profit." 15 U.S.C. § 13c. This suggests to me that the named institutions schools, colleges, universities, public libraries, churches, and hospitals were not intended to be limited to their traditional activities in qualifying for the exemption, but may expand those activities and still qualify so long as any new activities for which exempted supplies are purchased are charitable and not operated for profit.
48
I agree with the Court that the exemption is not "to be applied and expanded automatically to whatever new venture the nonprofit hospital finds attractive in these changing days." Ante, at 13. But I believe the exemption is applicable to any new venture the hospital finds attractive and that is both charitable and not operated for profit. There is no suggestion nor could one be made that the activities the Court today finds outside the exemption fall within this category,* so there is no need to address this problem here. But I write to emphasize that I do not read the Court's opinion as foreclosing hospitals or other exempted institutions from expanding their charitable activities in highly untraditional ways and still qualifying for the exemption.
49
Likewise, I agree with the Court that the proper inquiry in this case is whether each kind of drug sale by the hospital "is a part of and promotes the hospital's intended institutional operation in the care of persons who are its patients." Ante, at 14. However, when a nonprofit institution makes sales for profit, as here, analysis is furthered, I suggest, by recognition of the purpose of the "own use" limitation.
50
Since all charitable institutions are covered by the Act, the purpose quite obviously is not to freeze a particular charitable institution into a particular kind of charity. Rather, as I understand it, the purpose of the limitation is generally to preclude the institution from taking advantage of its antitrust exemption by buying low-cost supplies solely for the purpose of reselling them at a profit. That is, Congress was primarily interested in directly aiding nonprofit institutions by lowering their operating expenses, but not interested in indirectly aiding such institutions by providing them with the means of raising additional money particularly when such resales of supplies would put the institution in competition with retail businesses not eligible for the exemption. While I do not believe Congress meant to preclude profit-making sales in the course of the institution's charitable activities and so I agree that the Court's inquiry is the correct one I suggest that the nexus between particular sales and those activities should be particularly closely scrutinized when a profit is made to assure that the sales are not made primarily for moneymaking purposes. Thus, sales only arguably within the scope of the institution's charitable activities might be exempted when made on a nonprofit basis and not exempted when made for profit. After analysis with this balancing factor in mind, I agree with the lines drawn by the Court and concur in its opinion.
51
Mr. Justice STEWART, with whom Mr. Justice BRENNAN joins, dissenting.
52
It is common ground in this case that the dispensation of pharmaceutical products for consumption by a hospital's patients upon the hospital's premises constitutes the hospital's "own use" of the products within the meaning of 15 U.S.C. § 13c. The controversy concerns the various other "uses" of these products catalogued in the Court's opinion. Ante, at 8-10. As to those uses the Court of Appeals expressed its views as follows:
53
"We may concede that in these respects distribution by the hospitals can be justified as a proper and useful community service and thus can be regarded as a proper hospital function. It is not, however, the hospitals' 'own use.' . . . The purpose for which these supplies are purchased the use to which they are to be put is their consumption. Section 13c can apply here only to cases in which a hospital can be said to be the consumer. It cannot apply to cases of resale by the hospital to a private consumer.
54
"The hospitals here are (quite properly) accommodating patients, staff and strangers with means whereby they can conveniently purchase for Their use. The question is not whether the hospitals can continue to provide this useful community service. The question is whether in providing it they may acquire the drugs for such resale at an acquisition price that discriminates against local retail druggists. We hold that they may not." 510 F.2d 486, 489.
55
I agree with the Court of Appeals and would affirm its judgment.
1
"Nothing in sections 13 to 13b and 21a of this title, shall apply to purchases of their supplies for their own use by schools, colleges, universities, public libraries, churches, hospitals, and charitable institutions not operated for profit."
2
Causes of action based on discrimination in sales to city, county, and state governments, and to the Federal Government (the third and fourth causes of action asserted in the amended complaint, Record 61-62) were dismissed for failure to state a claim. App. 292. A cause of action based on discrimination in sales to proprietary hospitals and commercial entities, and one that the alleged discriminations were the product of a conspiracy (the amended complaint's first and fifth causes of action, Record 52-61, 62-63), remain pending.
3
The sole exception was Bess Kaiser Hospital. As to this institution, the Court of Appeals concluded that certain factors "appear to present disputed issues of fact," and that the "proper legal standard" for determining whether that hospital was " 'not operated for profit' " could not be developed "on the limited record" before the court. The issue, therefore, was to be resolved on remand. 510 F.2d 486, 488 (1974). No review of this aspect of the Court of Appeals' judgment has been sought, and that detail is not before us. Neither are we confronted here with an issue as to the nonprofit status, within § 13c, of the other 13 hospitals.
4
See the same Court of Appeals' decision in Logan Lanes Inc. v. Brunswick Corp., 378 F.2d 212, cert. denied, 389 U.S. 898, 83 S.Ct. 219, 19 L.Ed.2d 216 (1967).
5
The record does not show that each of the designated hospitals made dispensations in each category. It does indicate that dispensations in each category were made by the hospitals considered as a group. Some hospitals refused to make certain types of dispensations. It would serve no useful purpose for us to describe the extent to which each individual hospital made dispensations in the several categories.
6
A patient admitted for overnight bed occupancy, in the estimation of the several affiants whose affidavits appear in the record, clearly is an "inpatient." Some would carry the description further to include a patient admitted only for day surgery, or one who remains 12 hours or more, irrespective of overnight bed occupancy. In view of our disposition of the case, these distinctions are of no consequence here.
7
The record seemingly contains no reference to a dispensation to a special duty nurse, chaplain, or similar nonemployee professional, on duty at the hospital. We place any dispensation of this type in the same category as one to the hospital's employee or student.
8
This division into 10 categories may not be exhaustive. It appears to cover, however, the several types of dispensations indicated by the record.
9
The fact that, with respect to employees, the availability of the hospital pharmacy might be the compelled subject of a collective-bargaining agreement, in our view, cannot be controlling.
10
We referred above, in n. 4 to Logan Lanes, Inc. v. Brunswick Corp. The parties, in their respective ways, seek to make as much as possible of that decision. Logan Lanes was a treble-damages suit centering in the sale by Brunswick, to a Utah State Board, of bowling lanes and related equipment at prices lower than Brunswick charged Logan for similar equipment. The items purchased by the board were installed in a state university's student union building, and, while they were "primarily for the use of students, faculty and staff of the University," were also used by members of the public. 378 F.2d, at 214. The public use during the 20 months following installation, according to affidavits presented by Brunswick, amounted to 2,934 lines bowled out of a total of 128,349. The trial court
granted Brunswick's motion for summary judgment. One ground for this ruling was that the purchase was exempt under § 13c. The Ninth Circuit affirmed. It refused to restrict the statute's use of the term "supplies" to consumables and noncapital items and, instead, held that the term embraced anything required to meet the qualified institution's needs. It concluded that the exact amount of public use was immaterial and that, even assuming "the public made substantial use of the University bowling facilities," 378 F.2d, at 217, the purchases in question were made by the nonprofit university for its own use. The situation presented by Students Book Co. v. Washington Law Book Co., 98 U.S.App.D.C. 49, 232 F.2d 49 (1955), cert. denied, 350 U.S. 988, 76 S.Ct. 474, 100 L.Ed. 854 (1956), also cited by the parties here, was distinguished.
The latter case concerned sales of lawbooks to self-sustaining campus bookstores for resale at a profit. The Court of Appeals held, 98 U.S.App.D.C., at 50-51, n. 5, 232 F.2d, at 50-51, n. 5, that these were not sales to universities "for their own use," within the meaning of § 13c. The defendant, however, prevailed on another ground.
We agree with the court in the Students Book Co. case that the purchases challenged there were not purchases by a nonprofit institution of the type to which § 13c relates. Those in Logan Lanes, in contrast, were. The Ninth Circuit apparently would distinguish Logan Lanes from the present case on the ground that "(p)lant equipment acquired for a university's own use cannot be segregated from that acquired for use by others, since the same equipment serves both uses." 510 F.2d, at 490. It went on to say that the situation "of supplies acquired for consumption . . . is otherwise." Ibid. The court regarded the present case as factually similar to Students Book Co. As we have just stated, however, we are in accord with the District of Columbia Circuit's characterization of the bookstore purchases as not being transactions with the universities at all, but with the campus bookstores for resale at the latter's profit.
11
Our reference to two alternatives is not meant to be exclusive. Imaginative suppliers and purchasers may well come up with other and better means to alleviate whatever routine recordkeeping details and burdens may exist.
*
This case would be much more difficult for me if the hospitals involved did not make profits on the sale of drugs to outsiders. Ante, at 7. If they did not, we would have to determine in each case whether such sales, even if not within the hospital's institutional function, nonetheless constituted a "charitable" venture of their own.
| 78
|
425 U.S. 25
96 S.Ct. 1281
47 L.Ed.2d 556
J. William MIDDENDORF, II, et al., Petitioners,v.Daniel Edward HENRY et al. Daniel Edward HENRY et al., Petitioners, v. J. William MIDDENDORF, II, Individually and in his Capacity as Secretary of the Navy, et al.
Nos. 74-175, 74-5176.
Argued Jan. 22, 1975.
Decided March 24, 1976.
Syllabus
The Uniform Code of Military Justice (UCMJ) provides four methods of disposing of cases involving servicemen's offenses: general, special, and summary courts-martial, and disciplinary punishment pursuant to Art. 15 of the UCMJ. General courts-martial and special courts-martial, which may impose substantial penalties, resemble judicial proceedings, nearly always presided over by lawyer judges, with lawyer counsel for both sides. Article 15 punishment, conducted personally by the accused's commanding officer, is an administrative method of dealing with most minor offenses. A summary court-martial, lying in between the informal Art. 15 procedure and the judicial procedures of general and special courts-martial, is designed "to exercise justice promptly for relatively minor offenses" in an informal proceeding conducted by a single commissioned officer, acting as judge, factfinder, prosecutor, and defense counsel (with jurisdiction only over noncommissioned officers and other enlisted personnel), who can impose as maximum sentences: 30 days' confinement at hard labor or 45 days' hard labor without confinement; two months' restriction to specified limits; reduction to the lowest enlisted pay grade; and forfeiture of two-thirds pay for one month. If the accused does not consent to trial by summary court-martial, the case will either be referred to a special or general court-martial, or be dismissed. Various enlisted members of the Marine Corps (hereinafter plaintiffs) charged for the most part with "unauthorized absences" brought this class action in District Court challenging the authority of the military to try them at summary courts-martial without providing them with counsel. All the plaintiffs had consented in writing to be tried by summary court-martial, without counsel, after having been advised that they could be tried by special court-martial with counsel provided and having been apprised of the maximum sentences imposable under the two procedures. The District Court entered a judgment for the plaintiffs. The Court of Appeals vacated the judgment and remanded the case for reconsideration in the light of its opinion in Daigle v. Warner, 490 F.2d 358, wherein it had held that there is no right to counsel under the Sixth Amendment in summary courts-martial and no absolute Fifth Amendment due process right in every case in which a military defendant might be imprisoned, but that, in line with Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656, counsel is required where the accused makes a request based on a timely and colorable claim (1) that he has a defense and (2) that there are mitigating circumstances, and the assistance of counsel is necessary in order adequately to present his defense. Held:
1. There is no Sixth Amendment right to counsel in a summary court-martial, since that proceeding is not a "criminal prosecution" as that term is used in the Amendment. Pp. 33-42.
(a) Even in a civilian context the fact that a proceeding will result in the loss of liberty does not Ipso facto mean that the proceeding is a "criminal prosecution" for Sixth Amendment purposes, Gagnon v. Scarpelli, supra, at 788-789, 93 S.Ct. at 1762-1763, 36 L.Ed.2d at 665; In re Gault, 387 U.S. 1, 30, 87 S.Ct. 1428, 1445, 18 L.Ed.2d 527, 547; and when it is taken into account that a summary court-martial occurs in the military rather than a civilian community the considerations supporting the conclusion that it is not a "criminal prosecution" are at least as strong as the factors that were held dispositive in those cases. The charges against most of the plaintiffs here have no common-law counterpart and carry little popular opprobrium; nor are the penalties comparable to civilian sanctions. Pp. 34-40.
(b) A summary court-martial, unlike a criminal trial, is not an adversary proceeding. Pp. 40-42.
2. Nor does the Due Process Clause of the Fifth Amendment require that counsel be provided the accused in a summary court-martial proceeding. Pp. 42-48.
(a) Though the loss of liberty which may result from a summary court-martial implicates due process, the question whether that embodies a right to counsel depends upon an analysis of the interests of the accused and those of the regime to which he is subject, and in making that analysis deference must be given to Congress' determination under Art. I, § 8, of the Constitution, that counsel should not be provided in that type of proceeding. P. 43.
(b) Supporting Congress' decision is the fact that the presence of counsel would convert a brief, informal hearing, which may be readily convened and concluded, into an attenuated proceeding, pre-empting the time of military personnel and thus consuming military resources to an unwarranted degree. See U. S. ex rel. Toth v. Quarles, 350 U.S. 11, 17, 76 S.Ct. 1, 100 L.Ed. 8. Pp. 45-46.
(c) The accused who feels that counsel is essential in the situation envisaged by the Court of Appeals in reliance on Daigle v. Warner, supra, may elect trial, with counsel provided, in a special court-martial proceeding, and though he would thus expose himself to the possibility of greater penalties, a decision involving that kind of choice, which often occurs in civilian criminal cases, is not constitutionally decisive. Pp. 46-48.
493 F.2d 1231, reversed.
Nathan R. Zahm, Sherman Oaks, Cal., for Daniel Edward Henry and others.
Harvey M. Stone, Dept. of Justice, Washington, D.C., for J. William Middendorf, II, et al., pro hac vice, by special leave of Court.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
In February 1973 plaintiffs1 then enlisted members of the United States Marine Corps brought this class action in the United States District Court for the Central District of California challenging the authority of the military to try them at summary courts-martial without providing them with counsel. Five plaintiffs2 had been charged with "unauthorized absences"3 in violation of Art. 86 UCMJ, 10 U.S.C. § 886, convicted at summary courts-martial, and sentenced, Inter alia, to periods of confinement ranging from 20 to 30 days at hard labor. The other three plaintiffs, two of whom were charged, Inter alia, with unauthorized absence and one with assault, Art. 128, UCMJ, 10 U.S.C. § 928, had been ordered to stand trial at summary courts-martial which had not been convened. Those who were convicted had not been provided counsel those who were awaiting trial had been informed that counsel would not be provided. All convicted plaintiffs were informed prior to trial that they would not be afforded counsel and that they could refuse trial by summary court-martial if they so desired. In the event of such refusal their cases would be referred to special courts-martial at which counsel would be provided. All plaintiffs consented in writing to proceed to trial by summary court-martial, without counsel.4 Plaintiffs' court-martial records were reviewed and approved5 by the Staff Judge Advocate pursuant to Art. 65(c), UCMJ, 10 U.S.C. § 865(c). Plaintiffs did not file a petition for review with the Judge Advocate General of the Navy pursuant to Art. 69, UCMJ, 10 U.S.C. § 869.6
2
In the District Court, plaintiffs brought a class action seeking habeas corpus (release from confinement), an injunction against future confinement resulting from uncounseled summary court-martial convictions, and an order vacating the convictions of those previously convicted.
3
The District Court allowed the suit to proceed as a class action, expunged all of plaintiffs' convictions, released all plaintiffs and all other members of their class7 from confinement, and issued a worldwide injunction against summary courts-martial without counsel. Because of our disposition of this case on the merits, we have no occasion to reach the question of whether Fed.Rule Civ.Proc. 23, providing for class actions, is applicable to petitions for habeas corpus, see Harris v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969), or whether the District Court properly determined that its remedial order was entitled to be enforced outside of the territorial limits of the district in which the court sat.
4
The Court of Appeals vacated the judgment of the District Court, and remanded the case for reconsideration in light of the Court of Appeals' opinion in Daigle v. Warner, 490 F.2d 358 (CA9 1973). Daigle had held that there was no Sixth Amendment right to counsel in summary courts-martial, and likewise held that there was no absolute Fifth Amendment due process right to counsel in every case in which a military defendant might be imprisoned. However, citing Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), it did hold that counsel was required where the "accused makes a request based on a timely and colorable claim (1) that he has a defense, or (2) that there are mitigating circumstances, and the assistance of counsel is necessary in order adequately to present the defense or mitigating circumstances." Daigle made an exception from this general rule for cases in which counsel "is not reasonably available," in which instance it would not be required. 490 F.2d at 365. We granted certiorari. 419 U.S. 895, 95 S.Ct. 173, 42 L.Ed.2d 139 (1974).
5
* The UCMJ provides four methods for disposing of cases involving offenses committed by servicemen: the general, special, and summary courts-martial, and disciplinary punishment administered by the commanding officer pursuant to Art. 15 UCMJ, 10 U.S.C. § 815. General and special courts-martial resemble judicial proceedings, nearly always presided over by lawyer judges with lawyer counsel for both the prosecution and the defense.8 General courts-martial are authorized to award any lawful sentence, including death. Art. 18 UCMJ, 10 U.S.C. § 818. Special courts-martial may award a bad-conduct discharge, up to six months' confinement at hard labor, forfeiture of two-thirds pay per month for six months, and in the case of an enlisted member, reduction to the lowest pay grade, Art. 19, UCMJ, 10 U.S.C. § 819. Article 15 punishment, conducted personally by the accused's commanding officer, is an administrative method of dealing with the most minor offenses. Parker v. Levy, 417 U.S. 733, 750, 94 S.Ct. 2547, 2558, 41 L.Ed.2d 439, 454 (1974).9
6
The summary court-martial occupies a position between informal nonjudicial disposition under Art. 15 and the courtroom-type procedure of the general and special courts-martial. Its purpose, "is to exercise justice promptly for relatively minor offenses under a simple form of procedure." Manual for Courts-Martial P 79A (1969) (MCM). It is an informal proceeding conducted by a single commissioned officer with jurisdiction only over noncommissioned officers and other enlisted personnel. Art. 20, UCMJ, 10 U.S.C. § 820. The presiding officer acts as judge, factfinder, prosecutor, and defense counsel. The presiding officer must inform the accused of the charges and the name of the accuser and call all witnesses whom he or the accused desires to call.10 M P 79D (1). The accused must consent to trial by summary court-martial; if he does not do so trial may be ordered by special or general court-martial, or the case will be either dismissed or referred to a special or general court-martial.
7
The maximum sentence elements which may be imposed by summary courts-martial are: one month's confinement at hard labor; 45 days' hard labor without confinement; two months' restriction to specified limits; reduction to the lowest enlisted pay grade; and forfeiture of two-thirds pay for one month. Art. 20, UCMJ, 10 U.S.C. § 820.11
II
8
The question of whether an accused in a court-martial has a constitutional right to counsel has been much debated12 and never squarely resolved. See Reid v. Covert, 354 U.S. 1, 37, 77 S.Ct. 1222, 1241, 1 L.Ed.2d 1148, 1174 (1957). Dicta in Ex parte Milligan, 4 Wall. 2, 123, 18 L.Ed. 281 (1866), said that "the framers of the Constitution, doubtless, meant to limit the right of trial by jury, in the sixth amendment, to those persons who were subject to indictment or presentment in the fifth." In Ex parte Quirin 317 U.S. 1, 40, 63 S.Ct. 2, 17, 87 L.Ed. 3, 19 (1942), it was said that " 'cases arising in the land or naval forces' . . . are expressly excepted from the Fifth Amendment, and are deemed excepted by implication from the Sixth."
9
We find it unnecessary in this case to finally resolve the broader aspects of this question, since we conclude that even were the Sixth Amendment to be held applicable to court-martial proceedings, the summary court-martial provided for in these cases was not a "criminal prosecution" within the meaning of that Amendment.13
10
This conclusion, of course, does not answer the ultimate question of whether the plaintiffs are entitled to counsel at a summary court-martial proceeding, but it does shift the frame of reference from the Sixth Amendment's guarantee of counsel "(i)n all criminal prosecutions" to the Fifth Amendment's prohibition against the deprivation of "life, liberty, or property, without due process of law."
11
Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), held that the Sixth Amendment's provision for the assistance of counsel extended to misdemeanor prosecutions in civilian courts if conviction would result in imprisonment. A summary court-martial may impose 30 days' confinement at hard labor, which is doubtless the military equivalent of imprisonment. Yet the fact that the outcome of a proceeding may result in loss of liberty does not by itself, en in civilian life, mean that the Sixth Amendment's guarantee of counsel is applicable. In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the respondent faced the prospect of being sent to prison as a result of the revocation of his probation, but we held that the revocation proceeding was nonetheless not a "criminal proceeding." We took pains in that case to observe:
12
"(T)here are critical differences between criminal trials and probation or parole revocation hearings, and both society and the probationer or parolee have stakes in preserving these differences.
13
"In a criminal trial, the State is represented by a prosecutor; formal rules of evidence are in force; a defendant enjoys a number of procedural rights which may be lost if not timely raised; and, in a jury trial, a defendant must make a presentation understandable to untrained jurors. In short, a criminal trial under our system is an adversary proceeding with its own unique characteristics. In a revocation hearing, on the other hand, the State is represented, not by a prosecutor, but by a parole officer with the orientation described above; formal procedures and rules of evidence are not employed; and the members of the hearing body are familiar with the problems and practice of probation or parole." Id., at 788-789, 93 S.Ct. at 1763, 36 L.Ed.2d at 665.
14
In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), involved a proceeding in which a juvenile was threatened with confinement. The Court, although holding counsel was required, went on to say:
15
" 'We do not mean . . . to indicate that the hearing to be held must conform with a of the requirements of a criminal trial or even of the usual administrative hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment.' " Id., at 30, 87 S.Ct. at 1445, 18 L.Ed.2d at 548.
16
The Court's distinction between various civilian proceedings, and its conclusion that, notwithstanding the potential loss of liberty, neither juvenile hearings nor probation revocation hearings are "criminal proceedings," are equally relevant in assessing the role of the summary court-martial in the military.
17
The summary court-martial is, as noted above, one of four types of proceedings by which the military imposes discipline or punishment. If we were to remove the holding of Argersinger from its civilian context and apply it to require counsel before a summary court-martial proceeding simply because loss of liberty may result from such a proceeding, it would seem all but inescapable that counsel would likewise be required for the lowest level of military proceeding for dealing with the most minor offenses. For even the so-called Art. 15 "nonjudicial punishment," which may be imposed administratively by the commanding officer, may result in the imposition upon an enlisted man of "correctional custody" with hard labor for not more than 30 consecutive days.14 10 U.S.C. § 815(b).15 But we think that the analysis made in cases such as Gagnon and Gault, as well as considerations peculiar to the military, counsel against such a mechanical application of Argersinger.
18
Admittedly Gagnon is distinguishable in that there the defendant had been earlier sentenced at the close of an orthodox criminal prosecution. But Gault is not so distinguishable: there the juvenile faced possible initial confinement as a result of the proceeding in question, but the Court nevertheless based its conclusion that counsel was required on the Due Process Clause of the Fourteenth Amendment, rather than on any determination that the hearing was a "criminal prosecution" within the meaning of the Sixth Amendment.
19
It seems to us indisputably clear, therefore, that even in a civilian context the fact that a proceeding will result in loss of liberty does not Ipso facto mean that the proceeding is a "criminal prosecution" for purposes of the Sixth Amendment. Nor does the fact that confinement will be imposed in the first instance as a result of that proceeding make it a "criminal prosecution." When we consider in addition the fact that a summary court-martial occurs in the military community, rather than the civilian community, we believe that the considerations supporting the conclusion that it is not a "criminal prosecution" are at least as strong as those which were held dispositive in Gagnon and Gault.
20
The dissent points out, Post, at 56-57, n. 6, that in Gault the Court gave weight to the rehabilitative purpose of the juvenile proceedings there involved, and that no such factor is present in summary courts-martial. Undoubtedly both Gault and Gagnon are factually distinguishable from the summary court-martial proceeding here. But together they surely stand for the proposition that even in the civilian community a proceeding which may result in deprivation of liberty is nonetheless not a "criminal proceeding" within the meaning of the Sixth Amendment if there are elements about it which sufficiently distinguish it from a traditional civilian criminal trial. The summary court-martial proceeding here is likewise different from a traditional trial in many respects, the most important of which is that it occurs within the military community. This latter factor, under a long line of decisions of this Court, is every bit as significant, and every bit as entitled to be given controlling weight, as the fact in Gagnon that the defendant had been previously sentenced, or the fact in Gault that the proceeding had a rehabilitative purpose.
21
We have only recently noted the difference between the diverse civilian community and the much more tightly regimented military community in Parker v. Levy, 417 U.S. 733, 749, 94 S.Ct. 2547, 2558, 41 L.Ed.2d 439, 453 (1974). We said there that the UCMJ "cannot be equated to a civilian criminal code. It, and the various versions of the Articles of War which have preceded it, regulate aspects of the conduct of members of the military which in the civilian sphere are left unregulated. While a civilian criminal code carves out a relatively small segment of potential conduct and declares it criminal, the Uniform Code of Military Justice essays more varied regulation of a much larger segment of the activities of the more tightly knit military community." Ibid. Much of the conduct proscribed by the military is not "criminal" conduct in the civilian sense of the word. Id., at 749-751, 94 S.Ct. at 2558, 41 L.Ed.2d at 454.
22
Here for example, most of the plaintiffs were charged solely with "unauthorized absence," an offense which has no common-law counterpart and which carries little popular opprobrium. Conviction of such an offense would likely have no consequences for the accused beyond the immediate punishment meted out by the military, unlike conviction for such civilian misdemeanors as vagrancy or larceny which could carry a stamp of "bad character" with conviction.16
23
By the same token, the penalties which may be meted out in summary courts-martial are limited to one month's confinement at hard labor, 45 days' hard labor without confinement, or two months' restriction to a specified limits.17 Sanctions which may be imposed affecting a property interest are limited to reduction in grade with attendant loss of pay, or forfeiture or detention of a portion of one month's pay.
24
Finally, a summary court-martial is procedurally quite different from a criminal trial. In the first place, it is not an adversary proceeding. Yet the adversary nature of civilian criminal proceedings is one of the touchstones of the Sixth Amendment's right to counsel18 which we extended petty offenses in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).
25
Argersinger relied on Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), where we held:
26
"(I)n our adversary system of criminal justice, any person haled into court . . . cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. . . . " Id., at 344, 83 S.Ct. at 796, 9 L.Ed.2d at 805.
27
The function of the presiding officer is quite different from that of any participant in a civilian trial. He is guided by the admonition in P 79A of the MCM: "The function of a summary court-martial is to exercise justice promptly for relatively minor offenses under a simple form of procedure. The summary court will thoroughly and impartially inquire into both sides of the matter and will assure that the interests of both the Government and the accused are safeguarded." The presiding officer is more specifically enjoined to attend to the interests of the accused by these provisions of the same paragraph:
28
"The accused will be extended the right to cross-examine these witnesses. The summary court will aid the accused in the cross-examination, and, if the accused desires, will ask questions suggested by the accused. On behalf of the accused, the court will obtain the attendance of witnesses, administer the oath and examine them, and obtain such other evidence as may tend to disprove or negative guilt of the charges, explain the acts or omissions charged, show extenuating circumstances, or establish grounds for mitigation. Before determining the findings, he will explain to the accused his right to testify on the merits or to remain silent and will give the accused full opportunity to exercise his election." MCM P 79D (3).
29
We believe there are significant parallels between the Court's description of probation and parole revocation proceedings in Gagnon and the summary court-martial, which parallels tend to distinguish both of these proceedings from the civilian misdemeanor prosecution upon which Argersinger focused. When we consider in addition that the court-martial proceeding takes place not in civilian society, as does the parole revocation proceeding, but in the military community with all of its distinctive qualities, we conclude that a summary court-martial is not a "criminal prosecution" for purposes of the Sixth Amendment.19
III
30
The Court of Appeals likewise concluded that there was no Sixth Amendment right to counsel in summary court-martial proceedings such as this, but applying the due process standards of the Fifth Amendment adopted a standard from Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), which would have made the right to counsel depend upon the nature of the serviceman's defense. We are unable to agree that the Court of Appeals property applied Gagnon in this military context.
31
We recognize that plaintiffs, who have either been convicted or are due to appear before a summary court-martial, may be subjected to loss of liberty or property, and consequently are entitled to the due process of law guaranteed by the Fifth Amendment.
32
However, whether this process embodies a right to counsel depends upon an analysis of the interests of the individual and those of the regime to which he is subject. Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935, 950 (1974).
33
In making such an analysis we must give particular deference to the determination of Congress, made under its authority to regulate the land and naval forces, U.S.Const., Art. I, § 8, that counsel should not be provided in summary courts-martial. As we held in Burns v. Wilson, 346 U.S. 137, 140, 73 S.Ct. 1045, 1048, 97 L.Ed. 1508, 1514 (1953):
34
"(T)he rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty, and the civil courts are not the agencies which must determine the precise balance to be struck in this adjustment. The Framers especially entrusted that task to Congress." (Footnote omitted.)
35
The United States Court of Military Appeals has held that Argersinger is applicable to the military and requires counsel at summary courts-martial. United States v. Alderman, 22 U.S.C.M.A. 298, 46 C.M.R. 298 (1973). Dealing with areas of law peculiar to the military branches, the Court of Military Appeals' judgments are normally entitled to great deference. But the 2-to-1 decision, in which the majority itself was sharply divided in theory, does not reject the claim of military necessity. Judge Quinn was of the opinion that Argersinger's expansion of the Sixth Amendment right to counsel was binding on military tribunals equally with civilian courts.20 Alderman, Supra, at 300, 46 C.M.R., at 300. Judge Duncan, concurring in part, disagreed, reasoning that decisions such as Argersinger were not binding precedent if "there is demonstrated a military necessity demanding nonapplicability." Id., at 303, 46 C.M.R., at 303. He found no convincing evidence of military necessity which would preclude application of Argersinger. Chief Judge Darden, dissenting, disagreed with Judge Quinn, and pointed to that court's decisions recognizing "the need for balancing the application of the constitutional protection against military needs." Id., at 307, 46 C.M.R., at 307. Taking issue as well with Judge Duncan, he stated his belief that the Court of Military Appeals "possesses no special competence to evaluate the effect of a particular procedure on morale and discipline and to require its implementation over and above the balance struck by Congress." Id., at 308, 46 C.M.R., at 308.
36
Given that only one member of the Court of Military Appeals took issue with the claim of military necessity, and taking the latter of Chief Judge Darden's statements as applying with at least equal force to the Members of this Court, we are left with Congress' previous determination that counsel is not required. We thus need only decide whether the factors militating in favor of counsel at summary courts-martial are so extraordinarily weighty as to overcome the balance struck by Congress.21
37
We first consider the effect of providing counsel at summary courts-martial. As we observed in Gagnon v. Scarpelli, supra, 411 U.S. at 787, 93 S.Ct. at 175, 36 L.Ed.2d at 665:
38
"The introduction of counsel into a . . . proceeding will alter significantly the nature of the proceeding. If counsel is provided for the (accused), the State in turn will normally provide its own counsel; lawyers, by training and disposition, are advocates and bound by professional duty to present all available evidence and arguments in support of their clients' positions and to contest with vigor all adverse evidence and views."
39
In short, presence of counsel will turn a brief, informal hearing which may be quickly convened and rapidly concluded into an attenuated proceeding which consumes the resources of the military to a degree which Congress could properly have felt to be beyond what is warranted by the relative insignificance of the offenses being tried. Such a lengthy proceeding is a particular burden to the Armed Forces because virtually all the participants, including the defendant and his counsel, are members of the military whose time may be better spent than in possibly protracted disputes over the imposition of discipline.22
40
As we observed in U. S. ex rel. Toth v. Quarles, 350 U.S. 11, 17, 76 S.Ct. 1, 5, 100 L.Ed. 8, 15 (1955):
41
"(I)t is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise. But trial of soldiers to maintain discipline is merely incidental to an army's primary fighting function. To the extent that those responsible for performance of this primary function are diverted from it by the necessity of trying cases, the basic fighting purpose of armies is not served. . . . (M)ilitary tribunals have not been and probably never can be constituted in such way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in federal courts."
42
However, the Court of Appeals did not find counsel necessary in all proceedings but only, pursuant to Daigle v. Warner, where the accused makes
43
"a timely and colorable claim (1) that he has a defense, or (2) that there are mitigating circumstances, and the assistance of counsel is necessary in order adequately to present the defense or mitigating circumstances." 490 F.2d at 365.
44
But if the accused has such a claim, if he feels that in order to properly air his views and vindicate his rights, a formal, counseled proceeding is necessary he may simply refuse trial by summary court-martial and proceed to trial by special court-martial at which may have counsel.23 Thus, he stands in a considerably more favorable position than the probationer in Gagnon who, though subject to the possibility of longer periods of incarceration, had no such absolute right to counsel.24
45
It is true that by exercising this option the accused subjects himself to greater possible penalties imposed in the special court-martial proceeding. However, we do not find that possible detriment to be constitutionally decisive. We have frequently approved the much more difficult decision, daily faced by civilian criminal defendants, to plead guilty to a lesser included offense. E. g., Brady v. United States, 397 U.S. 742, 749-750, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747, 757 (1970). In such a case the defendant gives up not only his right to counsel but his right to any trial at all. Furthermore, if he elects to exercise his right to trial he stands to be convicted of a more serious offense which will likely bear increased penalties.25
46
Such choices are a necessary part of the criminal justice system:
47
"The criminal process, like the rest of the legal system, is replete with situations requiring 'the making of difficult judgments' as to which course to follow. McMann v. Richardson, 397 U.S. (759) at 769, (90 S.Ct. 1441, 25 L.Ed.2d 763). Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose." McGautha v. California, 402 U.S. 183, 213, 91 S.Ct. 1454, 1470, 28 L.Ed.2d 711, 729 (1971).
48
We therefore agree with the defendants that neither the Sixth nor the Fifth Amendment to the United States Constitution empowers us to overturn the congressional determination that counsel is not required in summary courts-martial. The judgment of the Court of Appeals is therefore reversed.
49
Reversed.
50
Mr. Justice STEVENS took no part in the consideration or decision of these cases.
51
Mr. Justice STEWART dissents, believing that the Due Process Clause of the Fifth Amendment requires that a defendant be accorded the assistance of counsel in a summary court-martial proceeding.
52
Mr. Justice POWELL, with whom Mr. Justice BLACKMUN joins, concurring.
53
As I agree with the substance and holding of the Court's opinion, I join it. I write separately to emphasize the factor which, in my view, distinguishes this case from Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). One sentence expresses the fundamental basis for the distinction:
54
"This Court has long recognized that the military is, by necessity, a specialized society separate from civilian society." Parker v. Levy, 417 U.S. 733, 743, 94 S.Ct. 2547, 2555, 41 L.Ed.2d 439, 451 (1974).
55
In Parker, the Court went on to say that we also have recognized that "the military has, again by necessity, developed laws and traditions of its own during its long history." Ibid. Only last Term in Schlesinger v. Councilman, 420 U.S. 738, 757, 95 S.Ct. 1300, 1313, 43 L.Ed.2d 591, 609 (1975), we said:
56
"The laws and traditions governing (military) discipline have a long history; . . . they are founded on unique military exigencies as powerful now as in the past. Their contemporary vitality repeatedly has been recognized by Congress."
57
The Constitution expressly authorized the Congress to "make Rules for the Government and Regulation of the land and naval Forces." Art. I, § 8. Court-martial proceedings, as a primary means for the regulation and discipline of the Armed Forces, were well known to the Founding Fathers. The procedures in such courts were never deemed analogous to, or required to conform with, procedures in civilian courts. One must ignore history, tradition, and practice for two centuries to read into the Constitution, at this late date, a requirement for counsel in the discipline of minor violations of military law.1
58
I recognize, of course, that one's constitutional rights are not surrendered upon entering the Armed Services. But the rights are applied, as this Court often has held, in light of the "unique military exigencies" that necessarily govern many aspects of military service. See Parker v. Levy, supra, 417 U.S. at 758, 94 S.Ct. at 2562, 41 L.Ed.2d at 458. In recognition of this, since the founding of the Republic Congress has enacted special legislation applicable only to the Armed Services,2 including the current provisions in the Uniform Code of Military Justice for summary courts-martial. Art. 16(3)UCMJ, 10 U.S.C. § 816(3).
59
I find no basis for holding now that the Constitution compels the equating, for purposes of requiring that counsel be provided, of military summary courts with civilian criminal courts.
60
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
61
We only recently held that, absent a waiver, "no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial." Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32 L.Ed.2d 530, 538 (1972). Today the Court refuses to apply Argersinger's holding to defendants in summary court-martial proceedings. Assuming for purposes of its opinion that the Sixth Amendment applies to courts-martial in general, the Court holds that, because of their special characteristics, summary courts-martial in particular are simply not "criminal prosecutions" within the meaning of the Sixth Amendment, and that the right to counsel is therefore inapplicable to them. I dissent.
62
* Preliminarily, summary courts-martial aside, it is clear to me that a citizen does not surrender all right to appointed counsel when he enters the military. It is inconceivable, for example, that this Court could conclude that a defendant in a general court-martial proceeding, where sentences as severe as life imprisonment may be imposed, is not entitled to the same protection our Constitution affords a civilian defendant facing even a day's imprisonment. See Argersinger v. Hamlin, supra. Surely those sworn to risk their lives to defend the Constitution should derive some benefit from the right to counsel, a right that has become even more firmly entrenched in our jurisprudence over the past several generations. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932).
63
The only question that might arise is whether the general guarantee of counsel to court-martial defendants is to be placed under the Fifth Amendment or under the Sixth Amendment. It is my conviction that it is a Sixth Amendment guarantee. That Amendment provides an explicit guarantee of counsel "in all criminal prosecutions." Since, as we recently observed, courts-martial are "convened to adjudicate charges of criminal violations of military law," Parisi v. Davidson, 405 U.S. 34, 42, 92 S.Ct. 815, 820, 31 L.Ed.2d 17, 27 (1972), it would seem that courts-martial are criminal prosecutions and that the Sixth Amendment therefore applies on its face.
64
There is legitimate dispute among scholars, it is true, about whether the Framers expressly intended the Sixth Amendment right to counsel to apply to the military. See Ante, at 1286-1287, and n. 12.1 While the historical evidence is somewhat ambiguous, my reading of the sources suggests that the Sixth Amendment right to counsel was intended by the Framers to apply to courts-martial. But even if the historical evidence plainly showed to the contrary and it certainly does not that would not be determinative of the contemporary scope of the Sixth Amendment. As Mr. Chief Justice Hughes observed:
65
"If by the statement that what the Constitution meant at the time of its adoption it means to-day, it is intended to say that the great clauses of the Constitution must be confined to the interpretation which the framers, with the conditions and outlook of their time, would have placed upon them, the statement carries its own refutation." Home Bldg. & Loan Assn. v. Blaisdell, 290 U.S. 398, 442-443, 54 S.Ct. 231, 241, 78 L.Ed. 413, 431 (1934).
66
Application of the Sixth Amendment right to counsel to the military follows logically and naturally from the modern right-to-counsel decisions, in which the right has been held fully applicable in every case in which a defendant faced conviction of a criminal offense and potential incarceration.2 See, E. g., Argersinger v. Hamlin, supra; Gideon v. Wainwright, supra. The due process right to counsel, usually applied on a case-by-case basis, extends a qualified right to counsel to persons not involved in criminal proceedings, see Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), but has not been viewed as a replacement for the Sixth Amendment right to counsel in situations in which a defendant stands to be convicted of a criminal offense.
67
In short, it is my belief that the Sixth Amendment demands that court-martial defendants ordinarily be accorded counsel.3 Only if the Special characteristics of summary courts-martial in particular deprive them of the status of "criminal prosecutions" is the Sixth Amendment inapplicable in the cases before us today. It is, of course, this proposition to which the major part of the Court's opinion is addressed and to which I now turn.
II
68
The Court's conclusion that summary courts-martial are not "criminal prosecutions" is, on its face, a surprising one. No less than in the case of other courts-martial, summary courts-martial are directed at adjudicating "charges of criminal violations of military law," and conviction at a summary court-martial can lead to confinement for one month. Nevertheless, the Court finds its conclusion mandated by a combination of four factors:4 the limitations on the punishment that can be meted out by a summary court-martial, the nature of the offenses for which a defendant can be tried, the nature of the summary court-martial proceeding itself, and "the distinctive nature of military life and discipline." Ante, at 42 n. 19. I am totally unpersuaded that these considerations or any others whether taken singly or in combination, justify dying to summary court-martial defendants the right to the assistance of counsel, "one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty." Johnson v. Zerbst, 302 U.S. 458, 462, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461, 1465 (1938).
69
It is of course true, as the Court states, that a summary court-martial may not adjudge confinement in excess of one month. Manual for Courts-Martial P 16B (1969) (MCM).5 But Argersinger itself held the length of confinement to be wholly irrelevant in determining the applicability of the right to counsel. Aware that "the prospect of imprisonment for however short a time will seldom be viewed by the accused as a trivial or 'petty' matter" Baldwin v. New York, 399 U.S. 66, 73, 90 S.Ct. 1886, 1890, 26 L.Ed.2d 437, 443 (1970) (plurality opinion), we held in Argersinger that the fact of confinement, not its duration, is determinative of the right to counsel. Insofar as the Court today uses the 30-day ceiling on a summary court-martial defendant's sentence as support for its holding, it is not so much finding Argersinger "inapplicable" as rejecting the very basis of Argersinger's holding.6
B
70
In further support of its holding, the Court observes that "(m)uch of the conduct proscribed by the military is not 'criminal' conduct in the civilian sense of the word," Ante, at 38, and intimates that conviction for many offenses normally tried at summary court-martial would have no consequences "beyond the immediate punishment meted out by the military." Ante, at 39. The Court's observations are both misleading and irrelevant.
71
While the summary court-martial is generally designed to deal with relatively minor offenses, see MCM P 79, as a statutory matter the summary proceeding can be used to try Any noncapital offense triable by general or special court-martial. Art. 20, UCMJ, 10 U.S.C. § 820.7 See United States v. Moore, 5 U.S.C.M.A. 687, 697, 18 C.M.R. 311, 321 (1955). And while the offense for which most of the plaintiffs here were tried unauthorized absence has no common-law counterpart, a substantial proportion of the offenses actually tried by summary court-martial are offenses, such as larceny and assault, that would also constitute criminal offenses if committed by a civilian.8 Indeed, one of the servicemen in these cases was charged with assault. It is therefore misleading to suggest, as the Court does, that there is a fundamental difference between the type of conduct chargeable at summary court-martial and the type of conduct deemed criminal in the civilian sector.
72
The Court's further implication that a summary court-martial conviction has no consequences beyond "the immediate punishment" Ante, at ——, is also inaccurate. One of the central distinctions between Art. 15 nonjudicial punishment and a summary court-martial conviction is that the latter is regarded as a criminal conviction.9 And that criminal conviction has collateral consequences both in military and civilian life. As the Army itself has readily acknowledged:
73
"Conviction by (any) court-martial creates a criminal record which will color consideration of any subsequent misconduct by the soldier. A noncommissioned officer may survive one summary court-martial without reduction being effected, but it is unlikely that, with one conviction on his record, he will survive a second trial and retain his status. A conviction of an officer by any court-martial could have a devastating after effect upon his career. It could be described in some cases as a sentence to a passover on a promotion list and may serve as a basis for initiation of administrative elimination action.
74
"For any man, the fact of a criminal conviction on his record is a handicap in civilian life. It may interfere with his job opportunities; it may be counted against him if he has difficulty with a civilian law enforcement agency; and in general he tends to be a marked man."10
75
The MCM itself belies any claim that no significant consequences beyond immediate punishment attach to a summary court-martial conviction. Paragraph 127C of the MCM establishes a comprehensive scheme by which an offender is made subject to increased punishment if he has a record of previous convictions even if all of those previous convictions were by summary court-martial.
76
It is therefore wholly unrealistic to suggest that the impact of a summary court-martial conviction lies exclusively in the immediate punishment that is meted out.11 Summary court-martial convictions carry with them a potential of stigma, injury to career, and increased punishment for future offenses in the same way as do convictions after civilian criminal trials and convictions after general and special courts-martial.
77
Quite apart from their flimsy factual basis, the Court's observations as to both the nature of the offenses tried at summary court-martial and the lack of collateral consequences of convictions have already been determined by Argersinger to be irrelevant to the applicability of the Sixth Amendment's right to counsel. Argersinger teaches that the right to counsel is triggered by the potential of confinement, regardless of how trivial or petty the offense may seem. See 407 U.S. at 37, 92 S.Ct. at 2012, 32 L.Ed.2d at 538. Logic itself would therefore preclude the suggestion that the right to counsel, activated by the potential of confinement, is deactivated by the absence of collateral consequences of conviction.
C
78
The nature of the summary court-martial proceeding the proceeding's nonadversary nature and, relatedly, the protective functions of its presiding officer is a third factor which, according to the Court, helps to make unnecessary the provision of counsel to the accused. Again, the Court's reliance is without substantial foundation.
79
The Court characterizes summary courts-martial as "nonadversary," but offers little explanation as to how that characterization advances the contention that the right to counsel is inapplicable. If the Court's argument is simply that furnishing counsel will transform the proceeding into an adversary proceeding, it is no argument at all, but simply an observation. The argument must be either that there is something peculiar about the goal of the summary court-martial proceeding that makes the right to counsel inapplicable, or that there are elements in the conduct of the proceeding itself that render counsel unnecessary.
80
To the extent that the Court's characterization of summary courts-martial as "nonadversary" is meant to convey something about the goal or purpose of the proceeding, it is totally unpersuasive. In this sense the summary court-martial proceeding is far less "nonadversary" than the juvenile delinquency proceedings to which we held the right to counsel applicable in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). The Court in Gault did not dispute that the proper purpose of the juvenile justice system is rehabilitative rather than punitive, that all parties to a juvenile delinquency proceeding might be striving for an adjudication a disposition that is in "the best interests of the child," and that the traditional notion of the "kindly juvenile judge" is a highly appropriate one. See Id., at 27, 87 S.Ct. at 1443, 18 L.Ed.2d at 545. Yet the Court in Gault confronted the reality that, however beneficial the goal of delinquency proceedings, they have as their potential result the confinement of an individual in an institution. Ibid. This factor mandated that accused juvenile offenders be entitled to the representation of counsel.12
81
As distinguished from the situation in Gault, summary courts-martial have no special rehabilitative purpose; rather, their central immediate purpose is to discipline those who have violated the UCMJ.13 If the goals of juvenile delinquency proceedings are an insufficient justification for the denial of counsel, it follows A fortiori that the goals of the summary court-martial are similarly insufficient.
82
The second possible meaning conveyed by characterizing the summary court-martial as "nonadversary" the presence of elements in the conduct of the proceeding itself which render independent counsel unnecessary is reflected in the Court's observation that the "function of the presiding officer is quite different from that of any participant in a civilian trial." Ante, at 41. It is the responsibility of the presiding officer to act as judge, jury, prosecutor, and defense counsel combined. The Court intimates that the presiding officer's duty to advise the accused of his rights and his ability to help the accused assemble facts, examine witnesses, and cross-examine his accusers make defense counsel unnecessary, particularly in light of the absence of a formal prosecutor in the proceeding. I find this argument unpersuasive. In Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), we rejected the notion that a judge could "effectively discharge the obligations of counsel for the accused," largely because a judge "cannot . . . participate in those necessary conferences between counsel and accused which sometimes partake of the inviolable character of the confessional." Id., at 61, 55 S.Ct. at 61, 77 L.Ed. at 166.
83
It is true that in Powell the unrepresented defendant was opposed by a traditional prosecutor. But in Gault, supra, there was no prosecutor; the only participants in the delinquency proceedings were the juvenile, his mother, the probation officers, and the judge. All participants were presumably interested in the welfare of the juvenile. Yet we held that no matter how protective the judge or the other participants might have been, the juvenile was entitled to independent counsel.
84
The irreconcilable conflict among the roles of the summary court-martial presiding officer inevitably prevents him from functioning effectively as a substitute for defense counsel. For instance, a defendant has a right to remain silent and not testify at his court-martial. See Art. 31 UCMJ, 10 U.S.C. § 831; MCM P 53H. An intelligent decision whether to exercise that right requires consultation as to whether testifying would hurt or help his case and inevitably involves the sharing of confidences with counsel. Full consultation cannot possibly take place when "defense counsel" is also playing the role of judge and prosecutor. The defense counsel who also serves as prosecutor and judge is effectively unavailable for many of the "necessary conferences between counsel and accused," Powell v. Alabama, supra, at 61, 53 S.Ct., at 61, 77 L.Ed., at 166, as well as for the making and implementation of critical, tactical and strategic trial decisions. As helpful as the presiding officer might be to the defendant, his inconsistent roles bar him from being an adequate substitute for independent defense counsel.
85
In sum, there is nothing about the assertedly "non-adversary" nature of the summary court-martial either in terms of its goals or alternative safeguards that renders unnecessary the assistance of counsel.
D
86
Finally, the Court draws on notions of military necessity to justify its conclusion that the right to counsel is inapplicable to summary court-martial proceedings. Concerns for discipline and obedience will on occasion, it is true, justify imposing restrictions on the military that would be unconstitutional in a civilian context. See Parker v. Levy, 417 U.S. 733, 758, 94 S.Ct. 2547, 2562, 41 L.Ed.2d 439, 458 (1974). But denials of traditional rights to any group should not be approved without examination, especially when the group comprises members of the military, who are engaged in an endeavor of national service, frequently fraught with both danger and sacrifice. After such examination, I am persuaded that the denial of the right to counsel at summary courts-martial cannot be justified by military necessity.
87
The substance of the asserted justification here is that discipline, efficiency, and morale demand the utilization of an expeditious disciplinary procedure for relatively minor offenses. It would seem, however, that Art. 15 nonjudicial punishment which can be speedily imposed by a commander, but which does not carry with it the stigma of a criminal conviction provides just such a procedure.14 Indeed, the 1962 amendments to Art. 15, 10 U.S.C. § 815, greatly expanded the availability of nonjudicial punishment and resulted in a sharp decrease in the utilization of the summary court-martial.15 There is, therefore no pressing need to have a streamlined summary court-martial proceeding in order to supply an expeditious disciplinary procedure. Moreover, it is by no means clear that guaranteeing counsel to summary court-martial defendants would result in significantly longer time periods from preferral of charges to punishment than Fairly conducted proceedings in the absence of counsel;16 any timesaving that is now enjoyed might well result from the presiding officer's being something less than an adequate substitute for independent defense counsel.
88
It is especially difficult to accept the federal parties' claim of "military necessity" in view of the fact that well Before our decision in Argersinger, each of the services allowed summary court-martial defendants to retain counsel at their own expense.17 Given this fact, the federal parties' argument is reduced to a contention that only those defendants who cannot afford to retain counsel must, as a matter of "military necessity," be denied counsel at summary court-martial proceedings. Sustaining that contention means a defeat for those very principles of equality and justice that the military is sworn to defend; the most fundamental notions of fairness are subverted when the rights of the poor alone are sacrificed to the cause of "military necessity."
89
It is also significant that the United States Court of Military Appeals (USCMA), a body with recognized expertise in dealing with military problems,18 has applied Argersinger to summary courts-martial without giving any hint that military necessity posed a problem. United States v. Alderman, 22 U.S.C.M.A. 298, 46 C.M.R. 298 (1973).19 Indeed, Judge Duncan of that court explicitly noted that "the record contains no evidence which convinces me that application of the Argersinger rule should not be followed in our system because of military necessity." Id., at 303, 46 C.M.R., at 303 (concurring in part and dissenting in part).20 And even before Alderman was decided, both the Air Force and the Army applied Argersinger to summary courts-martial21 rather than advancing the theoretically available "military necessity" argument. See United States v. Priest, 21 U.S.C.M.A. 564, 45 C.M.R. 338 (1972). That they did so leads me to doubt whether even the military was then of the opinion that military necessity dictated the denial of counsel.
90
Virtually ignoring all the factors that cast doubt on the military-necessity justification, the Court defers to an asserted congressional judgment that "counsel should not be provided in summary courts-martial." Ante, at 43. While Congress' evaluation of military necessity is clearly entitled to deference, it would be a departure from our position in the past to suggest that the Court need not come to its own conclusion as to the validity of any argument based on military necessity. See, E. g., United States v. Robel, 389 U.S. 258, 264, 88 S.Ct. 419, 423, 19 L.Ed.2d 508, 514 (1967); Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974); cf. New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971). But regardless of what weight is properly accorded a clear congressional determination of military necessity, there has been no such determination in this case.
91
The only congressional action referred to by the Court is Congress' refusal in 1956 and 1968 to abolish summary courts-martial altogether and its concurrent extending of the serviceman's opportunity to reject trial by summary cot-martial. The Court refers to that action as evidence that Congress has considered "in some depth" the matter whether counsel is required in summary courts-martial. Ante, at 45 n. 21. But there is no evidence offered of any detailed congressional consideration of the specific question of the feasibility of providing counsel at summary courts-martial. And, more importantly, there is no indication that Congress made a judgment that military necessity requires the denial of the constitutional right to counsel to summary court-martial defendants.
92
If Congress' lack of discussion of military necessity is not enough to throw substantial doubt on the Court's inferences, the timing of the congressional action cited by the Court should certainly do so. All that action occurred substantially before our decision in Argersinger. Thus, even if we assume that Congress' decision to retain the summary court-martial represents a considered conclusion that "counsel should not be provided," that judgment was made at a time when even civilian defendants subject to prison terms of less than six months had no recognized constitutional right to counsel. There would, therefore, have been little reason for Congress in 1956 or 1968 to undertake the detailed consideration necessary to make a finding of "military necessity" before concluding that counsel need not be provided to summary court-martial defendants.
93
In sum, there is simply no indication that Congress ever made a clear determination that "military necessity" precludes applying the Sixth Amendment's right to counsel to summary court-martial proceedings. Indeed, the Court characterizes the congressional determination in the vaguest of terms, and never expressly claims that Congress made a determination of military necessity. Thus, I can only read the Court's opinion as a grant of almost total deference to any Act of Congress dealing with the military.
III
94
The Court rejects even the limited holding of the Court of Appeals that the provision of counsel in summary court-martial proceedings should be evaluated as a matter of due process on the basis of the accused's defense in any particular case. The Court explains that summary court-martial defendants can have counsel appointed by refusing trial by summary court-martial and then proceeding to trial by special court-martial the acknowledged consequence of which is exposure to greater possible penalties. Given my conviction that a summary court-martial is a criminal prosecution under the Sixth Amendment, it is unnecessary for me to deal in detail with this due process question.22 In the event, however, that the special court-martial option may be offered as additional support for the Court's treatment of the Sixth Amendment issue, I shall briefly assess its significance.
95
The Court analogizes the decision whether to expose oneself to special court-martial with counsel or to proceed by summary court-martial without counsel to the decision faced by a civilian defendant whether to proceed to trial or plead guilty to a lesser included offense. According to the Court, the right given up by such civilian defendant is "not only his right to counsel but his right to any trial at all." Ante, at 47. The analogy is a flawed one. The civilian defendant who pleads guilty Necessarily gives up whatever rights he might thereafter have been accorded to enable him to protect a claim of innocence; the conditions on his pleading guilty are logically mandated ones. By contrast, the condition on the military defendant's opting to be tried by summary court-martial I. e., the denial of counsel is an imposed one, and must therefore be viewed with suspicion.
96
Indeed, the force of the Court's analogy is entirely dissipated by the fact that a civilian defendant who pleads guilty forfeits only so much of his right to counsel as is a necessary consequence of his plea. He is fully entitled to counsel in the process leading up to the plea including negotiations with the Government as to the possibility of a plea and the actual decision to plead. The defendant is also entitled to counsel in any sentencing proceeding that might follow the making of his plea. I have no doubt that a scheme in which the acceptance of guilty pleas was conditioned on a full abandonment of the right to counsel would be unconstitutional.
97
By contrast, the Court today approves the denial of counsel to the summary court-martial defendant at all stages and for all purposes including, at least as regards sailors and marines,23 the very decision whether to reject trial by summary court-martial. And if the accused opts for the summary court-martial the Court's parallel to the accepted guilty plea he has no right to counsel either at the adjudicative or sentencing phase of the proceeding.24
98
Conditioning the provision of counsel on a defendant's subjecting himself to the risk of additional punishment suffers from the same defect as the scheme disapproved by the Court in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), in which the right to a trial by jury was conditioned on a defendant's subjecting himself to the possibility of capital punishment. If the Court's analysis is correct as applied to the Sixth Amendment, then Argersinger's guarantee of counsel for the trial of any offense carrying with it the potential of imprisonment could be reduced to a nullity; a State could constitutionally establish two levels of imprisonment for the same offense a lower tier for defendants who are willing to proceed to trial without counsel, and a higher one for those who insist on having the assistance of counsel.25 It is inconceivable to me that the Sixth Amendment would tolerate such a result.
IV
99
The right to counsel has been termed "the most pervasive"26 of all the rights accorded an accused. As a result of the Court's action today, of all accused persons protected by the United States Constitution federal defendants and state defendants, juveniles and adults, civilians and soldiers only those enlisted men27 tried by summary court-martial can be imprisoned without having been accorded the right to counsel. I would have expected that such a result would have been based on justifications far more substantial than those relied on by the Court. I respectfully dissent.
1
Both parties have petitioned from the judgment of the court below. For simplicity we refer to the servicemen as "plaintiffs" and the federal parties as "defendants."
2
Including two who were not among the original six plaintiffs but later intervened.
3
One of these plaintiffs was also charged with several other offenses, including assault on a superior noncommissioned officer, Art. 91, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 891.
4
Plaintiffs were so informed and consented pursuant to the terms of (Navy) Staff Judge Advocate Memorandum 10-72 which was in force at El Toro Marine Corps Air Station where all plaintiffs were stationed. Record 18.
For example, as to plaintiff Henry, the following entry appears in the record of his court-martial:
"The accused was advised that, if tried by Summary Court-Martial, he would not be represented by appointed military counsel; that instead, that Summary Court-Martial Officer would thoroughly and impartially inquire into both sides of the matter, and would assure that the interests of both the Government and the accused are safeguarded; that, if his case were that referred to a Special Courts-Martial (Sic ), he would be provided counsel. In addition, the accused, after being informed of the maximum punishment imposable in his case both by a Summary Courts-Martial (Sic ) and Special Courts-Martial (Sic ), he would be foregoing his statutory rights to counsel at a Special Courts-Martials (Sic )." Id., at 114.
5
At least one plaintiff, McLean, was found not guilty as to certain charges at the summary court-martial. Upon review at the supervisory authority level, guilty findings on certain other charges upon which he had been convicted were reversed.
6
These plaintiffs arguably failed to exhaust their military remedies. However, the defendants urge that exhaustion not be required here because the practice of the Judge Advocate General has been to defer consideration of any petitions on the right-to-counsel issue pending the completion of litigation on this issue in the federal courts.
Since the exhaustion requirement is designed to protect the military from undue interference by the federal courts, Schlesinger v. Councilman, 420 U.S. 738, 758, 95 S.Ct. 1300, 1313, 43 L.Ed.2d 591, 609 (1975), the military can waive that requirement where it feels that review in the federal courts is necessary. See Sosna v. Iowa, 419 U.S. 393, 396-397, n. 3, 95 S.Ct. 553, 555-556, 42 L.Ed.2d 532, 538-539 (1975).
7
The class included all members of the Navy and Marine Corps who "were or are now or will be required after (the date of the order) to stand trial by summary courts-martial" and who had not been afforded counsel. 357 F.Supp. 495, 499 (1973).
8
These features are mandatory for general courts-martial. Special courts-martial may be, but seldom are, convened without a military judge; in such cases, the senior member of the court presides. Appointed defense counsel at a special court-martial is required to be an attorney, unless an attorney cannot be obtained because of physical conditions or military exigencies. In addition to the appointed counsel at a general or special court-martial, the accused may retain civilian counsel at his own expense, or he may be represented by a military lawyer of his own selection, if such lawyer is "reasonably available." Arts. 16, 25, 27(b), 27(c), 38(b), UCMJ, 10 U.S.C. §§ 816, 825, 827(b), 827(c), 838(b).
9
The maximum punishments which may be imposed under Art. 15 are: 30 days' correctional custody; 60 days' restriction to specified limits; 45 days' extra duties; forfeiture of one-half of one month's pay per month for two months; detention of one-half of one month's pay per month for three months; reduction in grade. Enlisted members attached to or embarked on a vessel may be sentenced to three days' confinement on bread and water or diminished rations. Correctional custody is not necessarily the same as confinement. It is intended to be served in a way which allows normal performance of duty, together with intensive counseling. Persons serving correctional custody, however, may be confined. Art. 15(b). See Department of the Navy, SECNAV Inst. 1640.9, Corrections Manual, c. 7, June 1972; Department of the Army, Pamphlet No. 27-4, Correctional Custody, 1 June 1972; Department of the Air Force, Reg. 125-35, Correctional Custody, 7 Oct. 1970.
10
Additionally, the officer must inform the accused of his right to remain silent and allow him to cross-examine witnesses or have the summary court officer cross-examine them for him. The accused may testify and present evidence in his own behalf. If the accused is found guilty he may make a statement, sworn or unsworn, in extenuation or mitigation. MCM P 79D.
The record of the trial is then reviewed by the convening officer, Art. 60, UCMJ, 10 U.S.C. § 860, and thereafter by a judge advocate. Art. 65(c), UCMJ, 10 U.S.C. § 865(c).
11
Not all these sentence elements may be imposed in one sentence, and enlisted persons above the fourth enlisted pay grade may not be sentenced to confinement or hard labor by summary courts-martial, or reduced except to the next inferior grade. MCM PP 16B and 127C.
12
Compare, Wiener, Courts-Martial and the Bill of Rights: The Original Practice, 72 Harv.L.Rev. 1 (1958), which finds that there is no historic precedent for application of the right to counsel to courts-martial, with Henderson, Courts-Martial and the Constitution: The Original Understanding, 71 Harv.L.Rev. 293 (1957), which concludes that the original intent of the Framers was to apply the Sixth Amendment right to counsel to the military. Compare Daigle v. Warner, 490 F.2d 358 (CA9 1973), with Betonie v. Sizemore, 496 F.2d 1001 (CA5 1974).
13
Since under our Brother MARSHALL's analysis the Sixth Amendment applies to the military, it would appear that not only the right to counsel but the right to jury trial, which is likewise guaranteed by that Amendment, would come with it. While under Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), such a right would presumably not obtain in cases of summary courts-martial because of the short periods of confinement which they may impose, it would surely apply to special and general courts-martial, which are empowered to impose sentences far in excess of those held in Duncan to be the maximum which could be imposed without a jury. Whatever may be the merits of "selective incorporation" under the Fourteenth Amendment, the Sixth Amendment makes absolutely no distinction between the right to jury trial and the right to counsel.
14
Chief Judge Darden, dissenting in United States v. Alderman, 22 U.S.C.M.A. 298, 46 C.M.R. 298 (1973), made a similar observation:
"While it may be argued that counsel should be required for summary courts-martial since they constitute criminal convictions and not for Article 15 proceedings as they are nonjudicial and corrective in nature, the effect of confinement under the former and correctional custody under the latter is difficult to distinguish. See In re Gault, 387 U.S. 1 (87 S.Ct. 1428, 18 L.Ed.2d 527) (1967). Consequently, I would have difficulty in sustaining the position that while counsel must be provided before summary courts-martial, they may be dispensed with in Article 15 proceedings that may result in correctional custody." Id., at 308 n. 1, 46 C.M.R., at 308 n. 1.
15
This section provides that a commanding officer (of the grade of major or lieutenant commander or above) may impose, Inter alia, not more than 30 consecutive days of "correctional custody," § 815(b)(2)(H)(ii), during duty or non-duty hours and may include "hard labor." § 815(b).
16
Our Brother MARSHALL argues, Post, at 57-58, and nn. 8 and 9, that the military considers a summary court-martial conviction as "criminal." But Admiral Hearn, the Navy Judge Advocate General, did not describe the convictions as "criminal"; he did state that a commanding officer's decision to utilize a summary court-martial, as opposed to an Art. 15 administrative punishment, might turn on his judgment that it was "in the best interests of the service to begin to put on the record (the) infractions" of a serviceman who had accumulated several Art. 15 punishments for the same type of offense. Joint Hearings on Military Justice before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary and a Special Subcommittee of the Senate Committee on Armed Services, 89th Cong., 2d Sess., 34 (1966) (1966 Hearings). The Army Assistant Judge Advocate General then pointed out that one advantage a summary court-martial held for the accused, over an Art. 15 proceeding, was that the latter was adjudged by the company commander, the "nominal accuser," whereas "the summary court knows nothing about the case at all." Ibid.
The dissent also refers us to the Army's acknowledgment of "collateral consequences" flowing from a summary court-martial conviction. Post, at 58-59. But that which is quoted in the text is a portion of the Army's written response in 1962 to the following question: "What are the effects on a serviceman's career of conviction by summary or special court-martial?" The disjunctive in the question makes it impossible to tell whether the portion quoted is addressed to special or summary court-martial, or both.
Finally, whatever conclusions may have been drawn by the author of the article in 39 Va.L.Rev. 319 cited by the dissent, Post, at 59 n. 11, as to the "impact of a summary court-martial conviction," are of little aid to present considerations. The article was written at the inception of the UCMJ, then in operation for a year, and discusses sentencing in terms of the interaction between the Code and the corresponding 1951 Manual for Courts-Martial. Both, of course, have undergone substantial revision in the intervening 23 years. It should not be lightly assumed that the author's conclusions drawn at that time are valid with respect to the present UCMJ and MCM, or the manner in which they are currently implemented by the various services.
17
Our Brother MARSHALL notes, Post, at 57, that technically even the most serious noncapital UCMJ offenses may be tried before a summary court-martial. But that is of little practical effect upon the serviceman accused, given the ceilings on punishments imposed by Art. 20. It would seem inconceivable that a serious charge such as striking a commissioned officer, Art. 90(1), UCMJ, 10 U.S.C. § 890(1) for which a general court-martial could impose a 10-year sentence would ever be prosecuted before a court which could impose maximum confinement at hard labor for only one month. But if that occurred, an accused so charged before a summary court-martial would no doubt be delighted at his good fortune. The fact is, as the dissent notes, Post, at 57-58 n. 8, that only 14% Of the summary courts-martial conducted by the Navy are for "nonmilitary" offenses. We do not regard this figure as "substantial" in the sense that the dissent apparently does.
18
As we held in Johnson v. Zerbst, 304 U.S. 458, 462-463, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461, 1465 (1938):
"The Sixth Amendment . . . embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel."
19
No one of the factors discussed above the nature of the proceedings, of the offenses, and of the punishments is necessarily dispositive. Rather, all three combine with the distinctive nature of military life and discipline to lead to our conclusion. The dissent, by discussing these factors independently and attempting to demonstrate that each factor cannot stand by its own force does not come to grips with this analysis.
20
Judge Quinn's broad view of the applicability of the Bill of Rights to members of the military is well established. Concurring in United States v. Culp, 14 U.S.C.M.A. 199, 216-217, 33 C.M.R. 411, 428-429 (1963), he stated that its protections run to the Armed Forces " 'unless excluded directly or by necessary implication, by the provisions of the Constitution itself.' " See also United States v. Jacoby, 11 U.S.C.M.A. 428, 430-431, 29 C.M.R. 244, 246-247 (1960).
21
Prior to the enactment of the UCMJ into positive law in 1956 it was suggested that summary courts-martial be abolished. Congress rejected this suggestion and instead provided that no person could be tried by summary court-martial if he objected thereto (unless he had previously refused Art. 15 punishment). 70A Stat. 43. Prior to the 1968 amendments to the Code the elimination of summary courts-martial was again proposed and rejected. E. g., Subcommittee on Constitutional Rights of Senate Committee on the Judiciary, 88th Cong., 1st Sess., Summary Report of Hearings on Constitutional Rights of Military Personnel, 34-36 (1963). Instead the Art. 15 exception to the right to refuse was eliminated as a compromise between those favoring retention of summary courts-martial and those who would abolish them. S.Rep. No. 1601, 90th Cong., 2d Sess., 6 (1968), U.S.Code Cong. & Admin.News 1968, p. 4501. It is thus apparent that Congress has considered the matter in some depth.
22
The one-month period of confinement which may be imposed by a summary court-martial stands in marked contrast with the period of confinement for a minimum of three years which could have been imposed in a juvenile proceeding in In re Gault, 387 U.S. 1, 37 n. 60, 87 S.Ct. 1428, 1448, 18 L.Ed.2d 527, 551 (1967).
23
Article 20 UCMJ, 10 U.S.C. § 820, provides in pertinent part that "(N)o person with respect to whom summary courts-martial have jurisdiction may be brought to trial before a summary court-martial if he objects thereto. . . ."
Article 38(b) UCMJ, 10 U.S.C. § 838(b) provides:
"The accused has the right to be represented in his defense before a general or special court-martial by civilian counsel if provided by him, or by military counsel of his own selection if reasonably available, or by the defense counsel detailed under section 827 of this title."
24
The dissent criticizes our failure to discuss Gault, supra, as to this point. Gault is inapposite. Contrary to the assertion of the dissent, Post, at 69 n. 22, Gault, had he been tried in the adult courts, would have been subject to a maximum sentence of two Months rather than the six years he actually received. 387 U.S., at 29, 87 S.Ct. at 1444, 18 L.Ed.2d at 547. We cannot speculate what the result in Gault would have been if there had been a waiver available and if the adult sentence had been greater rather than less than the juvenile.
25
It by no means follows, as the dissent suggests, Post, at 71-72, that the same result would obtain with such a two-tier system in the civilian context, where Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), have held the Sixth Amendment's right to counsel applicable. In such a context, the reasoning of United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), that one cannot be penalized for exercising a constitutional right would come into play. Here, however, we have held that there is no constitutional right to counsel at summary court-martial, so the issue of being penalized for the exercise of such a right is not presented.
1
As noted in the Court's opinion, the relatively petty offenses that customarily come before summary courts-martial most often involve military offenses unknown in civilian society. In this case, for example, most of the plaintiffs were charged only with "unauthorized absence." To be sure, such courts also try some offenses that would be violations of civilian criminal law. But these are typically petty offenses and are committed by defendants subject to military discipline. The Court has no occasion in this case to address whether the Constitution requires the providing of counsel in special and general court-martial proceedings where serious, civil felonies are often charged. Indeed, all of the Armed Services now are required by statute to provide counsel in such cases. Art. 27, UCMJ, 10 U.S.C. § 827.
2
In Schlesinger v. Councilman, referring to the Uniform Code, the Court said:
"Congress attempted to balance these military necessities (governing discipline) against the equally significant interest of ensuring fairness to servicemen charged with military offenses, and to formulate a mechanism by which these often competing interests can be adjusted. As a result, Congress created an integrated system of military courts and review procedures . . . ." 420 U.S. 738, 757-758, 95 S.Ct. 1300, 1313, 43 L.Ed.2d 591, 609 (1975).
1
Those who argue that the Framers did intend the Sixth Amendment right to counsel to apply point both to congressional proceedings which seem to assume the right's applicability, see Henderson, Courts-Martial and the Constitution: The Original Understanding, 71 Harv.L.Rev. 293, 303-315 (1957), and materials cited therein, and to the fact that it was traditional in the late 18th century to allow an accused serviceman legal assistance. Id., at 318. Those who take the opposite position point, Inter alia, to contemporary treatises, see Wiener, Courts-Martial and the Bill of Rights: The Original Practice I, 72 Harv.L.Rev. 1, 23-26 (1958), and materials cited therein, to the lack of mention of any right to counsel in the first military codes under the Constitution, Id., at 22-23, and to the fact that any counsel who did appear in military proceedings was allowed only a limited role. Id., at 27-32.
2
In any given case, whether there is a Sixth Amendment right to trial by jury is, of course, not at all determinative of whether there is a Sixth Amendment right to counsel. Indeed, in Argersinger itself we stated that "(w) e reject, therefore, the premise that since prosecutions for crimes punishable by imprisonment for less than six months may be tried without a jury, they may also be tried without a lawyer." 407 U.S. 25, 30-31, 92 S.Ct. 2006, 2009, 32 L.Ed.2d 530, 535 (1972). Compare, Id., at 37, 92 S.Ct. at 2012, 32 L.Ed.2d at 538, with Duncan v. Louisiana, 391 U.S. 145, 159, 88 S.Ct. 1444, 1452, 20 L.Ed.2d 491, 501 (1968).
This Court has indicated that the Fifth Amendment's express exemption of the military from the requirement of indictment by grand jury also exempts the military "inferentially, from the (Sixth Amendment) right to trial by jury." O'Callahan v. Parker, 395 U.S. 258, 261, 89 S.Ct. 1683, 1685, 23 L.Ed.2d 291, 296 (1969). But there is no reason to assume that the same inferences from the Fifth Amendment exemption should be drawn with regard to the Sixth Amendment right to counsel. Not even the federal parties suggest that the settling of the jury-trial issue with regard to the military has Ipso facto settled all other Sixth Amendment issues as well.
3
Even if a pure due process analysis were to be used, however, counsel, to my mind, would still be required for courts-martial. Many of the factors analyzed below in a Sixth Amendment context, see Part II, Infra, are fully relevant to a due process analysis. See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). And, while Gagnon adopts a case-by-case approach to the right to counsel in probation revocation proceedings, the fact that in courts-martial we are dealing with a trial which can result in a criminal conviction mandates that counsel be made available in every case. See Gagnon, supra, 411 U.S., at 789 n. 12, 93 S.Ct., at 1763, 36 L.Ed.2d, at 665.
4
The Court looks to our analysis in Gagnon v. Scarpelli, supra, as support in the distinctions it draws between "criminal prosecutions" under the Sixth Amendment and summary courts-martial. I find that reliance questionable, to say the least.
The Court intimates, Ante, at 35, that our holding in Gagnon that a probation revocation hearing is not part of a criminal prosecution was based on factors relating to the manner in which such hearings are conducted factors such as the absence of a prosecutor and the informality of the proceedings. This, however, is an inaccurate reflection of what we said in Gagnon. Gagnon's conclusion, stated earlier in the opinion, 411 U.S. at 782, 93 S.Ct. at 1759, 36 L.Ed.2d at 662, that a probation revocation hearing is "not a stage of a criminal prosecution" was not at all dependent on the manner in which such proceedings are conducted. Rather, it was held to follow from the conclusion in Morrissey v. Brewer, supra, that revocation of parole was not part of a criminal prosecution, with the following analysis in Morrissey held to be determinative:
" 'Parole arises after the end of the criminal prosecution, including imposition of sentence. . . . Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.' (408 U.S.), at 480, 92 S.Ct. (2593) at 2603 (33 L.Ed.2d 484)." 411 U.S. at 781, 93 S.Ct. at 1759, 36 L.Ed.2d at 661. The manner in which the hearing was conducted was simply not a factor in our conclusion that such a hearing is not part of a "criminal prosecution." Only After we reached this conclusion did we refer to the manner in which the hearing was conducted in considering the Secondary question whether the right to appointed counsel was nevertheless required as a matter of due process. Thus, even assuming there are "parallels" between the manner in which probation-revocation hearings are conducted and the manner in which summary courts-martial are conducted, Ante, at 41-42, Gagnon lends no support to the conclusion that summary courts-martial are not "criminal prosecutions" within the meaning of the Sixth Amendment.
5
The MCM was prescribed by Executive Order of September 11, 1968, to supplement the Uniform Code of Military Justice (UCMJ).
6
The Court attempts to evade Argersinger's clear mandate by relying on our decisions in Gagnon v. Scarpelli, supra, and In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). As for Gagnon, I have already observed, Supra, n. 4, that it lends no support to the Court's Sixth Amendment analysis in this case. As for Gault, it is true that we have held that juvenile delinquency proceedings, even though they might result in confinement, are not "criminal prosecutions" under the Sixth Amendment. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971); see Id., at 553, 91 S.Ct. at 1990, 29 L.Ed.2d at 648 (opinion of Brennan, J.). However, that conclusion was undoubtedly based on the predominantly rehabilitative purpose of the juvenile justice system, a factor which, as shown, Infra, at 61, is manifestly not present in the summary court-martial context. And, while Gault did not apply the Sixth Amendment, it did, of course, hold a due process right to counsel applicable to All juvenile delinquency proceedings which pose a threat of confinement.
7
Of course the punishment ceilings imposed by 10 U.S.C. § 820 on summary courts-martial are applicable no matter what offense is being tried. But the "popular opprobrium" resulting from conviction of a serious crime a factor in which the Court places considerable stock, Ante, at 39, is likely to be severe whatever the magnitude of the punishment; that "popular opprobrium" could, of course, have significant "practical effect," Ante, at 40 n. 17, on a serviceman's future.
8
See 10 U.S.C. §§ 921, 928. Figures supplied by the federal parties indicate that in 1973, 14% Of the summary courts-martial conducted by the Navy were for "nonmilitary offenses." Brief for Federal Parties 33; see also Fidell, The Summary Court-Martial: A Proposal, 8 Harv.J.Legis. 571, 599 n. 121 (1971). See also Joint Hearings on Military Justice before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary and a Special Subcommittee of the Senate Committee on Armed Services, 89th Cong., 2d Sess., 1056 (1966) (hereinafter cited as 1966 Hearings).
9
In Senate testimony, the Judge Advocate General of the Navy observed that a serviceman convicted by a summary court-martial, as opposed to one punished under Art. 15, "begins to acquire a record of convictions." 1966 Hearings 33. See also Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, Summary Report of Hearings on the Constitutional Rights of Military Personnel, 88th Cong., 1st Sess., 35 (1963).
10
Hearings on Constitutional Rights of Military Personnel before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 87th Cong., 2d Sess., 838 (1962).
11
See also Fidell, Supra, n. 8, at 594-596; Feld, The Court Martial Sentence: Fair or Foul, 39 Va.L.Rev. 319, 322 (1953).
12
The Court intimates that our decision in Gault might have been different had Gerald Gault been faced with a period of confinement significantly less than three years in duration. Ante, at 46 n. 22. However, our opinion contained no hint of any such limitation and held the right to counsel applicable Whenever a juvenile is faced with proceedings "which may result in commitment to an institution in which the juvenile's freedom is curtailed." 387 U.S. at 41, 87 S.Ct. at 1451, 18 L.Ed.2d at 554.
13
In general, "a military trial is marked by the age-old manifest destiny of retributive justice. . . . '(M)ilitary law has always been and continues to be primarily an instrument of discipline, not justice.' Glasser, Justice and Captain Levy, 12 Columbia Forum 46, 49 (1969)." O'Callahan v. Parker, 395 U.S. 258, 266, 89 S.Ct. 1683, 1687, 23 L.Ed.2d 291, 298 (1969).
14
Differences have been advanced to distinguish the punishment that can be imposed under Art. 15 from the "confinement" that can result from a summary court-martial. See United States v. Shamel, 22 U.S.C.M.A. 361, 47 C.M.R. 116 (1973) (Quinn, J.).
15
Between 1962 and 1969, the number of summary courts-martial per year in the Armed Services dropped from 85,166 to 28,281, and their percentage of the total military caseload dropped from 64% To 26%. Fidell, Supra, n. 8, at 573. "The chief explanation for this phenomenon lies in the expansion of nonjudicial punishment powers accomplished in 1963." Id., at 572.
16
While, according to the federal parties to these cases, the average time period between preferral of charges and final review in summary courts-martial has increased by 13 days since the United States Court of Military Appeals applied Argersinger to the military in United States v. Alderman, 22 U.S.C.M.A. 298, 46 C.M.R. 298 (1973), Supp. Mem. for Federal Parties 3-4, the parties themselves concede that "it is not possible to ascribe the changed experience . . . exclusively to the injection of counsel into summary court proceedings." Ibid. Nothing is offered by the federal parties to indicate that the average time of the summary court-martial proceeding itself has been lengthened as a result of providing counsel to defendants.
17
See 1966 Hearings 34 (testimony of Brig. Gen. Kenneth J. Hodson, Asst. Judge Adv. Gen., for Military Justice, Department of the Army); 38 (testimony of Maj. Gen. R. W. Manss, Judge Adv. Gen. of the Air Force); 39 (testimony of Rear Adm. Wilfred A. Hearn, Judge Adv. Gen. of the Navy); 626 (letter of June 7, 1965, to the Chairman of the Senate Committee on Armed Services from the Acting General Counsel of the Department of the Treasury).
Indeed, while acknowledging that "(t)here is no provision either in law or regulation for the appointment of counsel before a summary court-martial," the Department of the Treasury indicated, six years Before Argersinger was decided, that "it is Treasury Department policy (in the Coast Guard) that military counsel for a summary court-martial will be supplied upon request if reasonably available." Id., at 627.
Moreover, the following question-and-answer exchange took place in 1966 by letter between the Senate Subcommittee on Constitutional Rights and the Navy Judge Advocate General Corps:
"Question: Are defendants permitted by official Defense Department or service policy or regulation to have counsel assist them in summary courts?
"Answer: . . . (A)lthough the right to individual representation is not extended to an accused before a summary court-martial by policy or regulation, the general practice in the naval service is to accord such representation on the request of the accused.
"Question: . . . If a man requests the appointment of counsel, legal or otherwise, is it the practice to grant such requests?
"Answer: Yes, dependent upon the reasonable availability of the requested counsel." Id., at 939.
18
See Schlesinger v. Councilman, 420 U.S. 738, 758, 95 S.Ct. 1300, 1313, 43 L.Ed.2d 591, 609 (1975); Noyd v. Bond, 395 U.S. 683, 694, 89 S.Ct. 1876, 1882, 23 L.Ed.2d 631, 643 (1969).
19
The decisions of the USCMA are final, 10 U.S.C. § 876. It is indeed ironic that the federal parties statutorily barred from appealing Alderman have now secured its rejection through this lawsuit, originally brought in federal court by servicemen seeking the very protections later accorded them by Alderman.
20
See also Daigle v. Warner, 490 F.2d 358 (1974), cert. pending, No. 73-6642, in which the Court of Appeals for the Ninth Circuit noted that "(w)hile the Navy argues with some vigor that naval discipline will suffer severely if appointed counsel are required (in summary courts-martial), there is scant support for this in the record." Id., at 366.
The Court, relying on previously stated views of Judge Quinn, one of the members of the Alderman majority, and on Judge Quinn's failure in his Alderman opinion to explicitly mention the military-necessity argument, declines to view Alderman as a rejection of that argument. I disagree. In United States v. Priest, 21 U.S.C.M.A. 564, 45 C.M.R. 338 (1972) decided only 10 months before Alderman the USCMA had recognized, albeit in another context, that military necessity may affect the application of traditional constitutional rights to members of the military, and the parties in Alderman briefed the military-necessity argument in great detail. Judge Quinn concurred in the Priest opinion. These factors, plus Judge Duncan's explicit reference to the argument, lead me to read Alderman as a rejection of the military-necessity argument.
21
United States v. Alderman, supra, at 303, 46 C.M.R., at 303 (Duncan, J., concurring in part and dissenting in part).
22
It does seem to me, however, that the serviceman's "option" of subjecting himself to the possibility of a special court-martial lends little support to the Court's due process analysis. We held in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) a decision left unmentioned in the Court's treatment of the Fifth Amendment question that, as a matter of due process accused offenders have an absolute right to counsel at juvenile delinquency proceedings. Surely that holding would be no different in the case of a juvenile given the opportunity "voluntarily" to subject himself to adult criminal proceedings, in which he would have counsel, but at which he would be subject to harsher punishment.
23
Neither the UCMJ nor the MCM contains any indication that a serviceman must be provided with counsel to assist him in making his determination as to whether to consent or object to trial by summary court-martial. While internal Army guidelines do appear to allow consultation with counsel in making this determination, see Military Justice Handbook, Guide for Summary Court-Martial Trial Procedure, 3-3 to 3-5, Department of the Army Pamphlet No. 27-7 (1973), Navy guidelines contain no such provision.
24
Assuming the "option scheme" presents the serviceman with any sort of realistic choice, its availability also substantially undercuts the federal parties' military-necessity argument. See, Supra, at 63-69. The federal parties argue that as a matter of "military necessity" minor offenses must be disposed of at summary court-martial proceedings without giving defendants the benefit of counsel. Yet, under the option scheme Any serviceman can be assured of counsel simply by rejecting trial by summary court-martial. Thus the scheme itself could render unattainable a goal which is claimed to be a matter of military necessity.
25
While we sustained the Kentucky two-tier system against due process and double jeopardy attacks in Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), we were careful to note that under that system a defendant "cannot, and will not, face the realistic threat of a prison sentence in the inferior court without having the help of counsel." Id., at 119, 92 S.Ct. at 1961, 32 L.Ed.2d at 594.
26
Schaefer, Federalism and State Criminal Procedure, 70 Harv.L.Rev. 1, 8 (1956).
27
Officers are not subject to summary courts-martial. 10 U.S.C. § 820.
| 01
|
424 U.S. 747
96 S.Ct. 1251
47 L.Ed.2d 444
Harold FRANKS and Johnnie Lee, Petitioners,v.BOWMAN TRANSPORTATION COMPANY, INC., et al.
No. 74-728.
Argued Nov. 3, 1975.
Decided March 24, 1976.
Syllabus
In a class action against respondent employer and certain labor unions (of which respondent union is the successor) petitioners alleged various racially discriminatory employment practices in violation of Title VII of the Civil Rights Act of 1964 (Act), especially with respect to employment of over-the-road (OTR) truck drivers. After certifying the action as a class action and, Inter alia, designating one of the classes represented by petitioner Lee as consisting of black nonemployee applicants who applied for and were denied OTR positions prior to January 1, 1972, the District Court permanently enjoined the respondents from perpetuating the discriminatory practices found to exist, and, in regard to the black applicants for OTR positions, ordered the employer to notify the members of the designated class of their right to priority consideration for such jobs. But the court declined to grant the unnamed members of the class any specific relief sought, which included an award of backpay and seniority status retroactive to the date of individual application for an OTR position. While vacating the District Court's judgment insofar as it failed to award backpay to unnamed members of the class and reversing on other grounds, the Court of Appeals affirmed the District Court's denial of any form of seniority relief, holding that such relief was barred, as a matter of law, by § 703(h) of Title VII, which provides that it shall not be an unlawful employment practice for an employer, Inter alia, to apply different conditions of employment pursuant to a bona fide seniority system. Held:
1. That petitioner Lee, the named plaintiff representing the class in question, no longer has a personal stake in the outcome of the action because he had been hired by respondent employer and later was properly discharged for cause, does not moot the case. An adverse relationship sufficient to meet the requirement that a "live controversy" remain before this Court not only obtained as to unnamed members of the class with respect to the underlying cause of action but also continues with respect to their assertion that the relief they have received in entitlement to consideration for hiring and backpay is inadequate without further award of entitlement to seniority benefits. Pp. 752-757.
2. Section 703(h) does not bar seniority relief to unnamed members of the class in question, who are not seeking modification or elimination of the existing seniority system but only an award of the seniority status they would have individually enjoyed under the present system but for the illegal discriminatory refusal to hire. The thrust of § 703(h) is directed toward defining what is and what is not an illegal discriminatory employment practice in instances in which the post-Act operation of a seniority system is challenged as perpetuating the effects of discrimination occurring prior to the Act's effective date, and there is no indication in the legislative materials concerning it that § 703(h) was intended to modify or restrict relief otherwise appropriate under the Act once an illegal discriminatory practice occurring after the Act's effective date is proved, such as a discriminatory refusal to hire as in this case. Pp. 757-762.
3. An award of seniority retroactive to the date of the individual job application is appropriate under § 706(g) of Title VII, which, to effectuate Title VII's objective of making persons whole for injuries suffered on account of unlawful employment discrimination, vests broad equitable discretion in the federal courts to "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 relief as the court deems appropriate." Merely to require respondent employer to hire the class victim of discrimination falls far short of a "make whole" remedy, and a concomitant award of the seniority credit he presumptively would have earned but for the wrongful treatment would also seem necessary absent justification for denying that relief. Without a seniority award dating from the time when he was discriminatorily refused employment, an individual who applies for and obtains employment as an OTR driver pursuant to the District Court's order will never obtain his rightful place in the hierarchy of seniority according to which various employment benefits are distributed. Pp. 762-770.
4. denial of seniority relief for the unnamed class members cannot be justified as within the District Court's discretion on the grounds given by that court that such individuals had not filed administrative charges with the Equal Employment Opportunity Commission under Title VII and that there was no evidence of a "vacancy, qualification, and performance" for every individual member of the class. Nor can the denial of such relief be justified as within the District Court's discretion on the ground that an award of retroactive seniority to the class of discriminatees will conflict with the economic interests of other employees of respondent employer. The District Court made no mention of such considerations in denying relief, and to deny relief on such a ground would, if applied generally, frustrate the "make whole" objective of Title VII. Pp. 770-779.
495 F.2d 398, reversed and remanded.
Morris J. Baller, New York City, for petitioners.
Michael H. Gottesman, Washington, D. C., for respondent United Steelworkers of America.
William M. Pate, Atlanta, Ga., for respondent Bowman Transportation Co., Inc.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This case presents the question whether identifiable applicants who were denied employment because of race after the effective date and in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e Et seq. (1970 ed. and Supp. IV), may be awarded seniority status retroactive to the dates of their employment applications.1
2
Petitioner Franks brought this class action in the United States District Court for the Northern District of Georgia against his former employer, respondent Bowman Transportation Co., and his unions, the International Union of District 50, Allied and Technical Workers of the United States and Canada, and its local, No. 13600,2 alleging various racially discriminatory employment practices in violation of Title VII. Petitioner Lee intervened on behalf of himself and others similarly situated alleging racially discriminatory hiring and discharge policies limited to Bowman's employment of over-the-road (OTR) truck drivers. Following trial, the District Court found that Bowman had engaged in a pattern of racial discrimination in various company policies, including the hiring, transfer, and discharge of employees, and found further that the discriminatory practices were perpetrated in Bowman's collective-bargaining agreement with the unions. The District Court certified the action as a proper class action under Fed.Rule Civ.Proc. 23(b)(2), and of import to the issues before this Court, found that petitioner Lee represented all black applicants who sought to be hired or to transfer to OTR driving positions prior to January 1, 1972. In its final order and decree, the District Court subdivided the class represented by petitioner Lee into a class of black nonemployee applicants for OTR positions prior to January 1, 1972 (class 3), and a class of black employees who applied for transfer to OTR positions prior to the same date (class 4).
3
In its final judgment entered July 14, 1972, the District Court permanently enjoined the respondents from perpetuating the discriminatory practices found to exist, and, in regard to the black applicants for OTR positions, ordered Bowman to notify the members of both subclasses within 30 days of their right to priority consideration for such jobs. The District Court declined, however, to grant to the unnamed members of classes 3 and 4 any other specific relief sought, which included an award of backpay and seniority status retroactive to the date of individual application for an OTR position.
4
On petitioners' appeal to the Court of Appeals for the Fifth Circuit, raising for the most part claimed inadequacy of the relief ordered respecting unnamed members of the various subclasses involved, the Court of Appeals affirmed in part, reversed in part, and vacated in part. 495 F.2d 398 (1974). The Court of Appeals held that the District Court had exercised its discretion under an erroneous view of law insofar as it failed to award backpay to the unnamed class members of both classes 3 and 4, and vacated the judgment in that respect. The judgment was reversed insofar as it failed to award any seniority remedy to the members of class 4 who after the judgment of the District Court sought and obtained priority consideration for transfer to OTR positions.3 As respects unnamed members of class 3 nonemployee black applicants who applied for and were denied OTR positions prior to January 1, 1972 the Court of Appeals affirmed the District Court's denial of any form of seniority relief. Only this last aspect of the Court of Appeals' judgment is before us for review under our grant of the petition for certiorari. 420 U.S. 989, 95 S.Ct. 1421, 43 L.Ed.2d 669 (1975).
5
* Respondent Bowman raises a threshold issue of mootness. The District Court found that Bowman had hired petitioner Lee, the sole-named representative of class 3, and had subsequently properly discharged him for cause,4 and the Court of Appeals affirmed. Bowman argues that since Lee will not in any event be eligible for any hiring relief in favor of OTR nonemployee discriminatees, he has no personal stake in the outcome and therefore the question whether nonemployee discriminatees are entitled to an award of seniority when hired in compliance with the District Court order is moot. Bowman relies on Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), and Board of School Comm'rs v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975). That reliance is misplaced.
6
Sosna involved a challenge to a one-year residency requirement in a state divorce statute. The District Court properly certified the action as a class action. However, before the case reached this Court, the named representative satisfied the state residency requirement (and had in fact obtained a divorce in another State). 419 U.S., at 398, and n. 7, 95 S.Ct. at 557, 42 L.Ed.2d, at 540. Although the named representative no longer had a personal stake in the outcome, we held that "(w)hen the District Court certified the propriety of the class action, the class of unnamed persons described in the certification acquired a legal status separate from the interest asserted by (the named representative)," Id., at 399, 95 S.Ct., at 557, 42 L.Ed.2d, at 540, and, accordingly the "cases or controversies" requirement of Art. III of the Constitution was satisfied. Id., at 402, 95 S.Ct., at 559, 42 L.Ed.2d at 542.5
7
It is true as Bowman emphasizes that Sosna was an instance of the "capable of repetition, yet evading review" aspect of the law of mootness. Id., at 399-401, 95 S.Ct., at 557, 42 L.Ed.2d., at 540. And that aspect of Sosna was remarked in Board of School Comm'rs v. Jacobs, supra, a case which was held to be moot.6 But nothing in our Sosna or Board of School Comm'rs opinions holds or even intimates that the fact that the named plaintiff no longer has a personal stake in the outcome of a certified class action renders the class action moot unless there remains an issue "capable of repetition, yet evading review."7 Insofar as the concept of mootness defines constitutionally minimal conditions for the invocation of federal judicial power, its meaning and scope, as with all concepts of justiciability, must be derived from the fundamental policies informing the "cases or controversies" limitation imposed by Art. III.
8
"As is so often the situation in constitutional adjudication, those two words have an iceberg quality, containing beneath their surface simplicity submerged complexities which go to the very heart of our constitutional form of government. Embodied in the words 'cases' and 'controversies' are two complementary but somewhat different limitations. In part those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government." Flast v. Cohen, 392 U.S. 83, 94-95, 88 S.Ct. 1942, 1949-1950, 20 L.Ed.2d 947, 958-959 (1968).
9
There can be no question that this certified class action "clearly presented" the District Court and the Court of Appeals "with a case or controversy in every sense contemplated by Art. III of the Constitution." Sosna, supra, 419 U.S. at 398, 95 S.Ct., at 557, 42 L.Ed.2d, at 540. Those courts were presented with the seniority question "in an adversary context and in a form historically viewed as capable of resolution through the judicial process." Flast, supra, 392 U.S., at 95, 88 S.Ct., at 1950, 20 L.Ed.2d, at 958. The only constitutional mootness question is therefore whether, with regard to the seniority issues presented, "a live controversy (remains) at the time this Court reviews the case." Sosna, supra, 419 U.S., at 402, 95 S.Ct., at 559, 42 L.Ed.2d, at 542.
10
The unnamed members of the class are entitled to the relief already afforded Lee, hiring and backpay, and thus to that extent have "such a personal stake in the outcome of the controversy (whether they are also entitled to seniority relief) as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult . . . questions." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663, 678 (1962). Given a properly certified class action, Sosna contemplates that mootness turns on whether, in the specific circumstances of the given case at the time it is before this Court, an adversary relationship sufficient to fulfill this function exists.8 In this case, that adversary relationship obviously obtained as to unnamed class members with respect to the underlying cause of action and also continues to obtain as respects their assertion that the relief they have received in entitlement to consideration for hiring and backpay is inadequate without further award of entitlement to seniority benefits. This becomes crystal clear upon examination of the circumstances and the record of this case.
11
The unnamed members of the class involved are identifiable individuals, individually named in the record. Some have already availed themselves of the hiring relief ordered by the District Court and are presently employed as OTR drivers by Bowman. Tr. of Oral Arg. 23. The conditions of that employment are now and so far as can be foreseen will continue to be partially a function of their status in the seniority system. The rights of other members of the class to employment under the District Court's orders are currently the subject of further litigation in that court. Id., at 15. No questions are raised concerning the continuing desire of any of these class members for the seniority relief presently in issue. No questions are raised concerning the tenacity and competence of their counsel in pursuing that mode of legal relief before this Court. It follows that there is no meaningful sense in which a "live controversy" reflecting the issues before the Court could be found to be absent.9 Accordingly, Bowman's mootness argument has no merit.
II
12
In affirming the District Court's denial of seniority relief to the class 3 group of discriminatees, the Court of Appeals held that the relief was barred by § 703(h) of Title VII, 42 U.S.C. § 2000e-2(h). We disagree. Section 703(h) provides in pertinent part:
13
"Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system . . . provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin . . . ."
14
The Court of Appeals reasoned that a discriminatory refusal to hire "does not affect the bona fides of the seniority system. Thus, the differences in the benefits and conditions of employment which a seniority system accords to older and newer employees is protected (by § 703(h)) as 'not an unlawful employment practice'. 495 F.2d, at 417. Significantly, neither Bowman nor the unions undertake to defend the Court of Appeals' judgment on that ground. It is clearly erroneous.
15
The black applicants for OTR positions composing class 3 are limited to those whose applications were put in evidence at the trial.10 The underlying legal wrong affecting them is not the alleged operation of a racially discriminatory seniority system but of a racially discriminatory hiring system. Petitioners do not ask for modification or elimination of the existing seniority system, but only an award of the seniority status they would have individually enjoyed under the present system but for the illegal discriminatory refusal to hire. It is this context that must shape our determination as to the meaning and effect of § 703(h).
16
On its face, § 703(h) appears to be only a definitional provision; as with the other provisions of § 703, subsection (h) delineates which employment practices are illegal and thereby prohibited and which are not.11 Section 703(h) certainly does not expressly purport to qualify or proscribe relief otherwise appropriate under the remedial provisions of Title VII, § 706(g), 42 U.S.C. § 2000e-5(g), in circumstances where an illegal discriminatory act or practice is found. Further, the legislative history of § 703(h) plainly negates its reading as limiting or qualifying the relief authorized under § 706(g). The initial bill reported by the House Judiciary Committee as H.R. 715212 and passed by the full House on February 10, 1964,13 did not contain § 703(h). Neither the House bill nor the majority Judiciary Committee Report14 even mentioned the problem of seniority. That subject thereafter surfaced during the debate of the bill in the Senate. This debate prompted Senators Clark and Case to respond to criticism that Title VII would destroy existing seniority systems by placing an interpretive memorandum in the Congressional Record. The memorandum stated: "Title VII would have no effect on established seniority rights. Its effect is prospective and not retrospective." 110 Cong.Rec. 7213 (1964).15 Senator Clark also placed in the Congressional Record a Justice Department statement concerning Title VII which stated: "(I)t has been asserted that Title VII would undermine vested rights of seniority. This is not correct. Title VII would have no effect on seniority rights existing at the time it takes effect." Id., at 7207.16 Several weeks thereafter, following several informal conferences among the Senate leadership the House leadership, the Attorney General and others, see Vaas, Title VII: Legislative History, 7 B.C.Ind. & Com.L.Rev. 431, 445 (1966), a compromise substitute bill prepared by Senators Mansfield and Dirksen, Senate majority and minority leaders respectively, containing § 703(h) was introduced on the Senate floor.17 Although the Mansfield-Dirksen substitute bill, and hence § 703(h), was not the subject of a committee report, see generally Vaas, Supra, Senator Humphrey, one of the informal conferees, later stated during debate on the substitute that § 703(h) was not designed to alter the meaning of Title VII generally but rather "merely clarifies its present intent and effect." 110 Cong.Rec. 12723 (1964). Accordingly, whatever the exact meaning and scope of § 703(h) in light of its unusual legislative history and the absence of the usual legislative materials, see Vaas, Supra, at 457-458, it is apparent that the thrust of the section is directed toward defining what is and what is not an illegal discriminatory practice in instances in which the post-Act operation of a seniority system is challenged as perpetuating the effects of discrimination occurring prior to the effective date of the Act. There is no indication in the legislative materials that § 703(h) was intended to modify or restrict relief otherwise appropriate once an illegal discriminatory practice occurring after the effective date of the Act is proved as in the instant case, a discriminatory refusal to hire. This accords with the apparently unanimous view of commentators, see Cooper & Sobol, Seniority and Testing Under Fair Employment Laws: A General Approach to Objective Criteria of Hiring and Promotion, 82 Harv.L.Rev. 1598, 1632 (1969); Stacy, Title VII Seniority Remedies in a Time of Economic Downturn, 28 Vand.L.Rev. 487, 506 (1975).18 We therefore hold that the Court of Appeals erred in concluding that, as a matter of law, § 703(h) barred the award of seniority relief to the unnamed class 3 members.
III
17
There remains the question whether an award of seniority relief is appropriate under the remedial provisions of Title VII, specifically, § 706(g).19
18
We begin by repeating the observation of earlier decisions that in enacting Title VII of the Civil Rights Act of 1964, Congress intended to prohibit all practices in whatever form which create inequality in employment opportunity due to discrimination on the basis of race, religion, sex, or national origin, Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147, 155 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668, 676 (1973); Griggs v. Duke Power Co., 401 U.S. 424, 429-430, 91 S.Ct. 849, 852-853, 28 L.Ed.2d 158, 163-164 (1971), and ordained that its policy of outlawing such discrimination should have the "highest priority," Alexander, supra, 415 U.S., at 47, 94 S.Ct. at 1019, 39 L.Ed.2d at 158; Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263, 1265 (1968). Last Term's Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), consistently with the congressional plan, held that one of the central purposes of Title VII is "to make persons whole for injuries suffered on account of unlawful employment discrimination." Id., at 418, 95 S.Ct., at 2372, 45 L.Ed.2d, at 297. To effectuate this "make whole" objective, Congress in § 706(g) vested broad equitable discretion in the federal courts to "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." The legislative history supporting the 1972 amendments of § 706(g) of Title VII20 affirms the breadth of this discretion. "The provisions of (§ 706(g)) are intended to give the courts wide discretion exercising their equitable powers to fashion the most complete relief possible. . . . (T)he Act is intended to make the victims of unlawful employment discrimination whole, and . . . the attainment of this objective . . .requires that persons aggrieved by the consequences and effects of the unlawful employment practice be, so far as possible, restored to a position where they would have been were it not for the unlawful discrimination." Section-by-Section Analysis of H.R. 1746, accompanying the Equal Employment Opportunity Act of 1972 Conference Report, 118 Cong.Rec. 7166, 7168 (1972). This is emphatic confirmation that federal courts are empowered to fashion such relief as the particular circumstances of a case may require to effect restitution, making whole insofar as possible the victims of racial discrimination in hiring.21 Adequate relief may be well be denied in the absence of a seniority remedy slotting the victim in that position in the seniority system that would have been his had he been hired at the time of his application. It can hardly be questioned that ordinarily such relief will be necessary to achieve the "make-whole" purposes of the Act.
19
Seniority systems and the entitlements conferred by credits earned thereunder are of vast and increasing importance in the economic employment system of this Nation. S. Slichter, J. Healy, & E. Livernash, The Impact of Collective Bargaining on Management 104-115 (1960). Seniority principles are increasingly used to allocate entitlements to scarce benefits among competing employees ("competitive status" seniority) and to compute noncompetitive benefits earned under the contract of employment ("benefit" seniority). Ibid. We have already said about "competitive status" seniority that it "has become of overriding importance, and one of its major functions is to determine who gets or who keeps an available job." Humphrey v. Moore, 375 U.S. 335, 346-347, 84 S.Ct. 363, 370, 11 L.Ed.2d 370, 380 (1964). "More than any other provision of the collective(-bargaining) agreement . . . seniority affects the economic security of the individual employee covered by its terms." Aaron, Reflections on the Legal Nature and Enforceability of Seniority Rights, 75 Harv.L.Rev. 1532, 1535 (1962). "Competitive status" seniority also often plays a broader role in modern employment systems, particularly systems operated under collective-bargaining agreements:
20
"Included among the benefits, options, and safeguards affected by competitive status seniority, are not only promotion and layoff, but also transfer, demotion, rest days, shift assignments, prerogative in scheduling vacation, order of layoff, possibilities of lateral transfer to avoid layoff, 'bumping' possibilities in the face of layoff, order of recall, training opportunities, working conditions, length of layoff endured without reducing seniority, length of layoff recall rights will withstand, overtime opportunities, parking privileges, and, in one plant, a preferred place in the punch-out line." Stacy, 28 Vand.L.Rev., supra, at 490 (footnotes omitted).
21
Seniority standing in employment with respondent Bowman, computed from the departmental date of hire, determines the order of layoff and recall of employees.22 Further, job assignments for OTR drivers are posted for competitive bidding and seniority is used to determine the highest bidder.23 As OTR drivers are paid on a per-mile basis,24 earnings are therefore to some extent a function of seniority. Additionally, seniority computed from the company date of hire determines the length of an employee's vacation25 and pension benefits.26 Obviously merely to require Bowman to hire the class 3 victim of discrimination falls far short of a "make whole" remedy.27 A concomitant award of the seniority credit he presumptively would have earned but for the wrongful treatment would also seem necessary in the absence of justification for denying that relief. Without an award of seniority dating from the time when he was discriminatorily refused employment, an individual who applies for and obtains employment as an OTR driver pursuant to the District Court's order will never obtain his rightful place in the hierarchy of seniority according to which these various employment benefits are distributed. He will perpetually remain subordinate to persons who, but for the illegal discrimination, would have been in respect to entitlement to these benefits his inferiors.28
22
The Court of Appeals apparently followed this reasoning in holding that the District Court erred in not granting seniority relief to class 4 Bowman employees who were discriminatorily refused transfer to OTR positions. Yet the class 3 discriminatees in the absence of a comparable seniority award would also remain subordinated in the seniority system to the class 4 discriminatees. The distinction plainly finds no support anywhere in Title VII or its legislative history. Settled law dealing with the related "twin" areas of discriminatory hiring and discharges violative of the National Labor Relations Act, 49 Stat. 449, as amended, 29 U.S.C. § 151 Et seq., provides a persuasive analogy. "(I)t would indeed be surprising if Congress gave a remedy for the one which it denied for the other." Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 187, 61 S.Ct. 845, 849, 85 L.Ed. 1271, 1279 (1941). For courts to differentiate without justification between the classes of discriminatees "would be a differentiation not only without substance but in defiance of that against which the prohibition of discrimination is directed." Id., at 188, 61 S.Ct., at 850, 85 L.Ed., at 1280.
23
Similarly, decisions construing the remedial section of the National Labor Relations Act, § 10(c), 29 U.S.C. § 160(c) the model for § 706(g), Albemarle Paper, 422 U.S., at 419, 95 S.Ct., at 2372, 45 L.Ed.2d, at 29729 make clear that remedies constituting authorized "affirmative action" include an award of seniority status, for the thrust of "affirmative action" redressing the wrong incurred by an unfair labor practice is to make "the employees whole, and thus restor(e) the economic status quo that would have obtained but for the company's wrongful (act)." NLRB v. Rutter-Rex Mfg. Co., 396 U.S. 258, 263, 90 S.Ct. 417, 420, 24 L.Ed.2d 405, 411 (1969). The task of the NLRB in applying § 10(c) is "to take measures designed to recreate the conditions and relationships that would have been had there been no unfair labor practice." Carpenters v. NLRB, 365 U.S. 651, 657, 81 S.Ct. 875, 879, 6 L.Ed.2d 1, 5 (1961) (Harlan, J., concurring). And the NLRB has often required that the hiring of employees who have been discriminatorily refused employment be accompanied by an award of seniority equivalent to that which they would have enjoyed but for the illegal conduct. See, e. g., In re Phelps Dodge Corp., 19 N.L.R.B. 547, 600, and n. 39, 603-604 (1940), modified on other grounds, 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271 (1941) (ordering persons discriminatorily refused employment hired "without prejudice to their seniority or other rights and privileges"); In re Nevada Consolidated Copper Corp., 26 N.L.R.B. 1182, 1235 (1940), enforced, 316 U.S. 105, 62 S.Ct. 960, 86 L.Ed. 1305 (1942) (ordering persons discriminatorily refused employment hired with "any seniority or other rights and privileges they would have acquired, had the respondent not unlawfully discriminated against them"). Plainly the "affirmative action" injunction of § 706(g) has no lesser reach in the district courts. "Where racial discrimination is concerned, 'the (district) court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.' " Albemarle Paper, supra, 422 U.S., at 418, 95 S.Ct., at 2372, 45 L.Ed.2d at 297.
IV
24
We are not to be understood as holding that an award of seniority status is requisite in all circumstances. The fashioning of appropriate remedies invokes the sound equitable discretion of the district courts. Respondent Bowman attempts to justify the District Court's denial of seniority relief for petitioners as an exercise of equitable discretion, but the record is its own refutation of the argument.
25
Albemarle Paper, supra, at 416, 95 S.Ct., at 2371, 45 L.Ed.2d, at 296, made clear that discretion imports not the court's " 'inclination, but . . . its judgment; and its judgment is to be guided by sound legal principles.' " Discretion is vested not for purposes of "limit(ing) appellate review of trial courts, or . . . invit(ing) inconsistency and caprice," but rather to allow the most complete achievement of the objectives of Title VII that is attainable under the facts and circumstances of the specific case. 422 U.S., at 421, 95 Ct., at 2373, 45 L.Ed.2d, at 298. Accordingly, the District Court's denial of any form of seniority remedy must be reviewed in terms of its effect on the attainment of the Act's objectives under the circumstances presented by this record. No less than with the denial of the remedy of backpay, the denial of seniority relief to victims of illegal racial discrimination in hiring is permissible "only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination." Ibid.
26
The District Court stated two reasons for its denial of seniority relief for the unnamed class members.30 The first was that those individuals had not filed administrative charges under the provisions of Title VII with the Equal Employment Opportunity Commission and therefore class relief of this sort was not appropriate. We rejected this justification for denial of class-based relief in the context of backpay awards in Albemarle Paper, and for the same reasons reject it here. This justification for denying class-based relief in Title VII suits has been unanimously rejected by the courts of appeals, and Congress ratified that construction by the 1972 amendments. Albemarle Paper, supra, at 414 n. 8, 95 S.Ct., at 2370, 45 L.Ed.2d, at 294.
27
The second reason stated by the District Court was that such claims "presuppose a vacancy, qualification, and performance by every member. There is no evidence on which to base these multiple conclusions." Pet. forert. A54. The Court of Appeals rejected this reason insofar as it was the basis of the District Court's denial of backpay, and of its denial of retroactive seniority relief to the unnamed members of class 4. We hold that it is also an improper reason for denying seniority relief to the unnamed members of class 3.
28
We read the District Court's reference to the lack of evidence regarding a "vacancy, qualification, and performance" for every individual member of the class as an expression of concern that some of the unnamed class members (unhired black applicants whose employment applications were summarized in the record) may not in fact have been actual victims of racial discrimination. That factor will become material however only when those persons reapply for OTR positions pursuant to the hiring relief ordered by the District Court. Generalizations concerning such individually applicable evidence cannot serve as a justification for the denial of relief to the entire class. Rather, at such time as individual class members seek positions as OTR drivers, positions for which they are presumptively entitled to priority hiring consideration under the District Court's order,31 evidence that particular individuals were not in fact victims of racial discrimination will be material. But petitioners here have carried their burden of demonstrating the existence of a discriminatory hiring pattern and practice by the respondents and, therefore, the burden will be upon respondents to prove that individuals who reapply were not in fact victims of previous hiring discrimination. Cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668, 677 (1973); Baxter v. Savannah Sugar Rfg. Corp., 495 F.2d 437, 443-444 (C.A. 5), cert. denied, 419 U.S. 1033, 95 S.Ct. 515, 42 L.Ed.2d 308 (1974).32 Only if this burden is met may retroactive seniority if otherwise determined to be an appropriate form of relief under the circumstances of the particular case be denied individual class members.
29
Respondent Bowman raises an alternative theory of justification. Bowman argues that an award of retroactive seniority to the class of discriminatees will conflict with the economic interests of other Bowman employees. Accordingly, it is argued, the District Court acted within its discretion in denying this form of relief as an attempt to accommodate the competing interests of the various groups of employees.33
30
We reject this argument for two reasons. First, the District Court made no mention of such considerations in its order denying the seniority relief. As we noted in Albemarle Paper, 422 U.S., at 421 n. 14, 95 S.Ct., at 2373, 45 L.Ed.2d, at 299, if the district court declines, due to the peculiar circumstances of the particular case, to award relief generally appropriate under Title VII, "(i)t is necessary . . . that . . . it carefully articulate its reasons" for so doing. Second, and more fundamentally, it is apparent that denial of seniority relief to identifiable victims of racial discrimination on the sole ground that such relief diminishes the expectations of other, arguably innocent, employees would if applied generally frustrate the central "make whole" objective of Title VII. These conflicting interests of other employees will, of course, always be present in instances where some scarce employment benefit is distributed among employees on the basis of their status in the seniority hierarchy. But, as we have said, there is nothing in the language of Title VII, or in its legislative history, to show that Congress intended generally to bar this form of relief to victims of illegal discrimination, and the experience under its remedial model in the National Labor Relations Act points to the contrary.34 Accordingly, we find untenable the conclusion that this form of relief may be denied merely because the interests of other employees may thereby be affected. "If relief under Title VII can be denied merely because the majority group of employees, who have not suffered discrimination, will be unhappy about it, there will be little hope of correcting the wrongs to which the Act is directed." United States v. Bethlehem Steel Corp., 446 F.2d 652, 663 (C.A. 2 1971).35 With reference to the problems of fairness or equity respecting the conflicting interests of the various groups of employees, the relief which petitioners seek is only seniority status retroactive to the date of individual application, rather than some form of arguably more complete relief.36 No claim is asserted that nondiscriminatee employees holding OTR positions they would not have obtained but for the illegal discrimination should be deprived of the seniority status they have earned. It is therefore clear that even if the seniority relief petitioners seek is awarded, most if not all discriminatees who actually obtain OTR jobs under the court order will not truly be restored to the actual seniority that would have existed in the absence of the illegal discrimination. Rather, most discriminatees even under an award of retroactive seniority status will still remain subordinated in the hierarchy to a position inferior to that of a greater total number of employees than would have been the case in the absence of discrimination. Therefore, the relief which petitioners seek, while a more complete form of relief than that which the District Court accorded, in no sense constitutes "complete relief."37 Rather, the burden of the past discrimination in hiring is with respect to competitive status benefits divided among discriminatee and nondiscriminatee employees under the form of relief sought. The dissent criticizes the Court's result as not sufficiently cognizant that it will "directly implicate the rights and expectations of perfectly innocent employees." Post, at 788. We are of the view, however, that the result which we reach today which, standing alone,38 establishes that a sharing of the burden of the past discrimination is presumptively necessary is entirely consistent with any fair characterization of equity jurisdiction,39 particularly when considered in light of our traditional view that "(a)ttainment of a great national policy . . . must not be confined within narrow canons for equitable relief deemed suitable by chancellors in ordinary private controversies." Phelps Dodge Corp. v. NLRB, 313 U.S., at 188, 61 S.Ct., at 850, 85 L.Ed., at 1280.
31
Certainly there is no argument that the award of retroactive seniority to the victims of hiring discrimination in any way deprives other employees of indefeasibly vested rights conferred by the employment contract. This Court has long held that employee expectations arising from a seniority system agreement may be modified by statutes furthering a strong public policy interest.40 Tilton v. Missouri Pacific R. Co., 376 U.S. 169, 84 S.Ct. 595, 11 L.Ed.2d 590 (1964) (construing §§ 9(c)(1) and 9(c)(2) of the Universal Military Training and Service Act, 1948, 50 U.S.C. App. §§ 459(c)(1) and (2), which provided that a re-employed returning veteran should enjoy the seniority status he would have acquired but for his absence in military service); Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230 (1946) (construing the comparable provision of the Selective Training and Service Act of 1940). The Court has also held that a collective-bargaining agreement may go further, enhancing the seniority status of certain employees for purposes of furthering public policy interests beyond what is required by statute, even though this will to some extent be detrimental to the expectations acquired by other employees under the previous seniority agreement. Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953). And the ability of the union and employer voluntarily to modify the seniority system to the end of ameliorating the effects of past racial discrimination, a national policy objective of the "highest priority," is certainly no less than in other areas of public policy interests. Pellicer v. Brotherhood of Ry. & S.S. Clerks, 217 F.2d 205 (C.A.5 1954), cert. denied, 349 U.S. 912, 75 S.Ct. 601, 99 L.Ed. 1246 (1955). See also Cooper & Sobol, 82 Harv.L.Rev. at 1605.
V
32
In holding that class-based seniority relief for identifiable victims of illegal hiring discrimination is a form of relief generally appropriate under § 706(g), we do not in any way modify our previously expressed view that the statutory scheme of Title VII "implicitly recognizes that there may be cases calling for one remedy but not another, and owing to the structure of the federal judiciary these choices are, of course, left in the first instance to the district courts." Albemarle Paper, 422 U.S., at 416, 95 S.Ct., at 2370, 45 L.Ed.2d at 295. Circumstances peculiar to the individual case may, of course, justify the modification or withholding of seniority relief for reasons that would not if applied generally undermine the purposes of Title VII.41 In the instant case it appears that all new hirees establish seniority only upon completion of a 45-day probationary period, although upon completion seniority is retroactive to the date of hire. Certainly any seniority relief ultimately awarded by the District Court could properly be cognizant of this fact. Amici and the respondent union point out that there may be circumstances where an award of full seniority should be deferred until completion of a training or apprenticeship program, or other preliminaries required of all new hirees.42 We do not undertake to delineate all such possible circumstances here. Any enumeration must await particular cases and be determined in light of the trial courts' "keener appreciation" of peculiar facts and circumstances. Albemarle Paper, supra, at 421-422, 95 S.Ct., at 2373, 45 L.Ed.2d, at 299.
33
Accordingly, the judgment of the Court of Appeals affirming the District Court's denial of seniority relief to class 3 is reversed, and the case is remanded to the District Court for further proceedings consistent with this opinion.
34
It is so ordered.
35
Reversed and remanded.
36
Mr. Justice STEVENS took no part in the consideration or decision of this case.
37
Mr. Chief Justice BURGER, concurring in part and dissenting in part.
38
I agree generally with Mr. Justice POWELL, but I would stress that although retroactive benefit-type seniority relief may sometimes be appropriate and equitable, competitive-type seniority relief at the expense of wholly innocent employees can rarely, if ever, be equitable if that term retains traditional meaning. More equitable would be a monetary award to the person suffering the discrimination. An award such as "front pay" could replace the need for competitive-type seniority relief. See, Ante, at 777, n. 38. Such monetary relief would serve the dual purpose of deterring wrongdoing by the employer or union or both as well as protecting the rights of innocent employees. In every respect an innocent employee is comparable to a "holder-in-due-course" of negotiable paper or a bona fide purchaser of property without notice of any defect in the seller's title. In this setting I cannot join in judicial approval of "robbing Peter to pay Paul."
39
I would stress that the Court today does not foreclose claims of employees who might be injured by this holding from securing equitable relief on their own behalf.
40
Mr. Justice POWELL, with whom Mr. Justice REHNQUIST joins, concurring in part and dissenting in part.
41
I agree that this controversy is not moot, and that in the context of a duly certified class action the "capable of repetition, yet evading review" criterion discussed last Term in Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), is only a factor in our discretionary decision whether to reach the merits of an issue, rather than an Art. III "case or controversy" requirement. I therefore concur in Part I of the Court's opinion.
42
I also agree with Part II of the opinion insofar as it determines the "thrust" of § 703(h) of Title VII to be the insulation of an otherwise bona fide seniority system from a challenge that it amounts to a discriminatory practice because it perpetuates the effects of pre-Act discrimination. Ante, at 761. Therefore, I concur in the precise holding of Part II, which is that the Court of Appeals erred in interpreting § 703(h) as a bar, in every instance, to the award of retroactive seniority relief to persons discriminatorily refused employment after the effective date of Title VII. Ante, at 762.
43
Although I am in accord with much of the Court's discussion in Parts III and IV, I cannot accept as correct its basic interpretation of § 706(g) as virtually requiring a district court, in determining appropriate equitable relief in a case of this kind, to ignore entirely the equities that may exist in favor of innocent employees. Its holding recognizes no meaningful distinction, in terms of the equitable relief to be granted, between "benefit"-type seniority and "competitive"-type seniority.1 The Court reaches this result by taking an absolutist view of the "make whole" objective of Title VII, while rendering largely meaningless the discretionary authority vested in district courts by § 706(g) to weigh the equities of the situation. Accordingly, I dissent from Parts III and IV.
44
* My starting point, as it is for the Court, is the decision last Term in Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). One of the issues there was the standards a federal district court should follow in determining whether victims of a discriminatory employment practice should be awarded backpay. The Court began with an observation about the nature of backpay awards and other relief under § 706(g), the basic remedial section of Title VII:
45
"It is true that backpay is not an automatic or mandatory remedy; like all other remedies under the Act, it is one which the courts 'may' invoke. The scheme implicitly recognizes that there may be cases calling for one remedy but not another, and owing to the structure of the federal judiciary these choices are, of course, left in the first instance to the district courts." 422 U.S., at 415-416, 95 S.Ct., at 2370-2371, 45 L.Ed.2d, at 295-296.
46
Backpay is the only remedy accompanying reinstatement that is mentioned specifically in Title VII. Moreover, as noted below, backpay is a remedy central to achieving the purposes of the Act. The Court in Albemarle, recognizing that equitable discretion under § 706(g) should not be left "unfettered by meaningful standards or shielded from thorough appellate review," 422 U.S., at 416, 95 S.Ct. at 2371, 45 L.Ed.2d, at 296, required of district courts the "principled application of standards (in determining backpay awards) consistent with (congressional) purposes," Id., at 417, 95 S.Ct., at 2371, 45 L.Ed.2d at 296. It identified two distinct congressional purposes implicit in Title VII. The "primary objective" was "prophylactic": " 'to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees.' " Ibid., quoting Griggs v. Duke Power Co., 401 U.S. 424, 429-430, 91 S.Ct. 849, 852-853, 28 L.Ed.2d 158, 163-164 (1971). The second purpose was "to make persons whole for injuries suffered on account of unlawful employment discrimination." 422 U.S., at 418, 95 S.Ct., at 2372, 45 L.Ed.2d, at 297. Because backpay served both objectives,2 The Court concluded that "given a finding of unlawful discrimination, backpay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination." Id., at 421, 95 S.Ct., at 2373, 45 L.Ed.2d, at 298-299.
47
The Court today, relying upon Albemarle's holding as to the "make whole" purpose of Title VII, reasons that adequate relief for a victim of discrimination ordinarily will require "slotting the victim in that position in the seniority system that would have been his had he been hired at the time of his application." Ante, at 765-766. Accordingly, the Court concludes that complete retroactive seniority should be treated like backpay and denied by a district court only for reasons which, applied generally, could not "frustrate" the congressional intent. Ante, at 771. Although the Court recognizes important differences between benefit-type seniority and competitive-type seniority, it expressly includes both in its conclusion that seniority relief presumptively should be available.3 For the reasons that follow, I think the Court's holding cannot be reconciled with 706(g) or with fundamental fairness.
II
48
When a district court orders an award of backpay or retroactive seniority, it exercises equity powers expressly conferred upon it by Congress. The operative language of § 706(g) states that upon a finding of an unlawful employment practice the district court may enjoin the practice and, further, may
49
"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 (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate." 42 U.S.C. 2000e-5(g) (1970 ed., Supp. IV).
50
The last phrase speaking to "other equitable relief" was added by a 1972 amendment, Pub.L. No. 92-261, 86 Stat. 103. As noted in Albemarle, supra, at 420-421, 95 S.Ct., at 2372-2373, 45 L.Ed.2d, at 298-299, and again by the Court today, Ante, at 764, a Section-by-Section Analysis accompanying the Conference Report on that amendment stated that it was Congress' intention in § 706(g) "to give the courts wide discretion exercising their equitable powers to fashion the most complete relief possible." 118 Cong.Rec. 7168 (1972).
51
The expansive language of § 706(g) and the 1972 legislative history support a general directive to district courts to grant "make whole" relief liberally and not refuse it arbitrarily. There is nothing in either of those sources, however, to suggest that rectifying economic losses from past wrongs requires the district courts to disregard normal equitable considerations. Indeed, such a requirement is belied by the language of the statute itself, which speaks of "such affirmative action as may be appropriate" and such "equitable relief as the court deems appropriate." The Section-by-Section Analysis similarly recognized that in fashioning "the most complete relief possible" the court still is to exercise "equitable powers." But in holding that a district court in the usual case should order full retroactive seniority as a remedy for a discriminatory refusal to hire without regard to the effect upon innocent employees hired in the interim, the Court to a significant extent strips the district courts of the equity powers vested in them by Congress.
III
A.
52
In Albemarle Paper the Court read Title VII as creating a presumption in favor of backpay. Rather than limiting the power of district courts to do equity, the presumption insures that complete equity normally will be accomplished. Backpay forces the employer4 to account for economic benefits that he wrongfully has denied the victim of discrimination. The statutory purposes and equitable principles converge, for requiring payment of wrongfully withheld wages deters further wrongdoing at the same time that their restitution to the victim helps make him whole.
53
Similarly, to the extent that the Court today finds a like presumption in favor of granting Benefit-type seniority, it is recognizing that normally this relief also will be equitable. As the Court notes, Ante, at 773 n. 33, this type of seniority, which determines pension rights, length of vacations, size of insurance coverage and unemployment benefits, and the like, is analogous to backpay in that its retroactive grant serves "the mutually reinforcing effect of the dual purposes of Title VII," Ante, at 767 n. 27. Benefit-type seniority, like backpay, serves to work complete equity by penalizing the wrongdoer economically at the same time that it tends to make whole the one who was wronged.
54
But the Court fails to recognize that a retroactive grant of Competitive-type seniority invokes wholly different considerations. This is the type of seniority that determines an employee's preferential rights to various economic advantages at the expense of other employees. These normally include the order of layoff and recall of employees, job and trip assignments, and consideration for promotion.
55
It is true, of course, that the retroactive grant of competitive-type seniority does go a step further in "making whole" the discrimination victim, and therefore arguably furthers one of the objectives of Title VII. But apart from extending the make-whole concept to its outer limits, there is no similarity between this drastic relief and the granting of backpay and benefit-type seniority. First, a retroactive grant of competitive-type seniority usually does not directly affect the employer at all. It causes only a rearrangement of employees along the seniority ladder without any resulting increase in cost.5 Thus, Title VII's "primary objective" of eradicating discrimination is not served at all,6 for the employer is not deterred from the practice.
56
The second, and in my view controlling, distinction between these types of relief is the impact on other workers. As noted above, the granting of backpay and of benefit-type seniority furthers the prophylactic and make-whole objectives of the statute without penalizing other workers. But competitive seniority benefits, as the term implies, directly implicate the rights and expectations of perfectly innocent employees.7 The economic benefits awarded discrimination victims would be derived not at the expense of the employer but at the expense of other workers. Putting it differently, those disadvantaged sometimes to the extent of losing their jobs entirely are not the wrongdoers who have no claim to the Chancellor's conscience, but rather are innocent third parties.
57
As noted above in Part II, Congress in § 706(g) expressly referred to "appropriate" affirmative action and "other equitable relief as the court deems appropriate." And the 1972 Section-by-Section Analysis still recognized that the touchstone of any relief is equity. Congress could not have been more explicit in leaving the relief to the equitable discretion of the court, to be determined in light of all relevant facts and circumstances. Congress did underscore "backpay" by specific reference in § 706(g), but no mention is made of the granting of other benefits upon ordering reinstatement or hiring. The entire question of retroactive seniority was thus deliberately left to the discretion of the district court, a discretion to be exercised in accordance with equitable principles.
58
"The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims." Hecht Co. v. Bowles, 321 U.S. 321, 329-330, 64 S.Ct. 587, 592, 88 L.Ed. 754 (1944).
59
"Moreover, . . . equitable remedies are a special blend of what is necessary, what is fair, and what is workable. . . ." Lemon v. Kurtzman, 411 U.S. 192, 200, 93 S.Ct. 1463, 1469, 36 L.Ed.2d 151, 161 (1973) (opinion of Burger, C. J.).
60
"In equity, as nowhere else, courts eschew rigid absolutes and look to the practical realities and necessities inescapably involved in reconciling competing interests . . . ." Id., at 201, 93 S.Ct., at 1469, 36 L.Ed.2d 161.
61
The decision whether to grant competitive-type seniority relief therefore requires a district court to consider and weigh competing equities. In any proper exercise of the balancing process, a court must consider both the claims of the discrimination victims and the claims of incumbent employees who, if competitive seniority rights are awarded retroactively to others, will lose economic advantages earned through satisfactory and often long service.8 If, as the Court today holds, the district court may not weigh these equities much of the language of § 706(g) is rendered meaningless. We cannot assume that Congress intended either that the statutory language be ignored or that the earned benefits of incumbent employees be wiped out by a presumption created by this Court.9
B
62
The Court's concern to effectuate an absolutist conception of "make whole" should be tempered by a recognition that a retroactive grant of competitive-type seniority touches upon other congressional concerns expressed in Title VII. Two sections of the Act, although not speaking directly to the issue, indicate that this remedy, unlike bankpay and benefit-type seniority, should not be granted automatically.
63
The first section, § 703(h), has been discussed in the Court's opinion. As there noted, the "thrust" of that section is the validation of seniority plans in existence on the effective date of Title VII. The congressional debates leading to the introduction of § 703(h) indicate a concern that Title VII not be construed as requiring immediate and total restitution to the victims of discrimination regardless of cost in terms of other workers' legitimate expectations. Section 703(h) does not restrict the remedial powers of a district court once a discriminatory practice has been found, but neither are the concerns expressed therein irrelevant to a court's determination of "appropriate" equitable relief under § 706(g). Although the Court of Appeals read far too much into § 703(h), it properly recognized that the section does reflect congressional concern for existing rights under a "bona fide seniority or merit system."
64
Also relevant is § 703(j), which prohibits any interpretation of Title VII that would require an employer to grant "preferential treatment" to any individual because his race is underrepresented in the employer's work force in comparison with the community or the available work force.10 A grant of competitive seniority to an identifiable victim of discrimination is not the kind of preferential treatment forbidden by § 703(j) but, as counsel for the Steelworkers admitted at oral argument, it certainly would be "preferential treatment."11 It constitutes a preference in the sense that the victim of discrimination henceforth will outrank, in the seniority system, the incumbents hired after the discrimination. Moreover, this is a preference based on a fiction, for the discrimination victim is placed ahead of others not because of time actually spent on the job but "as if" he had worked since he was denied employment. This also requires an assumption that nothing would have interrupted his employment, and that his performance would have justified a progression up the seniority ladder.12 The incumbents, who in fact were on the job during the interim and performing satisfactorily, would be seriously disadvantaged. The congressional bar to one type of preferential treatment in § 703(j) should at least give the Court pause before it imposes upon district courts a duty to grant relief that creates another type of preference.
IV
65
In expressing the foregoing views, I suggest neither that Congress intended to bar a retroactive grant of competitive-type seniority in all cases,13 nor that district courts should indulge a presumption against such relief.14 My point instead is that we are dealing with a congressional mandate to district courts to determine and apply equitable remedies. Traditionally this is a balancing process left, within appropriate constitutional or statutory limits, to the sound discretion of the trial court. At this time it is necessary only to avoid imposing, from the level of this Court, arbitrary limitations on the exercise of this traditional discretion specifically explicated in § 706(g). There will be cases where, under all of the circumstances, the economic penalties that would be imposed on innocent incumbent employees will outweigh the claims of discrimination victims to be made entirely whole even at the expense of others. Similarly, there will be cases where the balance properly is struck the other way.
66
The Court virtually ignores the only previous judicial discussion directly in point. The Court of Appeals for the Sixth Circuit, recently faced with the issue of retroactive seniority for victims of hiring discrimination, showed a fine appreciation of the distinction discussed above. Meadows v. Ford Motor Co., 510 F.2d 939 (1975), cert. pending, No. 74-1349.15 That court began with the recognition that retroactive competitive-type seniority presents "greater problems" than a grant of backpay because the burden falls upon innocent incumbents rather than the wrongdoing employer. Id., at 949.16 The court further recognized that Title VII contains no prohibition against such relief. Then, noting that "the remedy for the wrong of discriminatory refusal to hire lies in the first instance With the District Judge," Ibid. (emphasis added), the Court of Appeals for the Sixth Circuit stated:
67
"For his guidance on this issue we observe . . . that a grant of retroactive seniority would not depend solely upon the existence of a record sufficient to justify back pay . . . . The court would, in dealing with job (I. e., competitive-type) seniority, need also to consider the interests of the workers who might be displaced . . . . We do not assume . . . that such reconciliation is impossible, but as is obvious, we certainly do foresee genuine difficulties. . . ." Ibid.
68
The Sixth Circuit suggested that the District Court seek enlightenment on the questions involved in the particular fact situation, and that it should allow intervention by representatives of the incumbents who stood to be disadvantaged.17
69
In attempted justification of its disregard of the explicit equitable mandate of § 706(g) the Court today relies almost exclusively on the practice of the National Labor Relations Board under § 10(c) of the National Labor Relations Act, 29 U.S.C. § 160(c).18 It is true that in the two instances cited by the Court, and in the few others cited in the briefs of the parties,19 the Board has ordered reinstatement of victims of discrimination "without prejudice to their seniority or other rights and privileges." But the alleged precedents are doubly unconvincing. First, in none of the cases is there a discussion of equities either by the Board or the enforcing court. That the Board has granted seniority relief in several cases may indicate nothing more than the fact that in the usual case no one speaks for the individual incumbents. This is the point recognized by the court in Meadows, and the impetus for its suggestion that a representative of their interests be entertained by the district court before it determines "appropriate" § 706(g) relief.
70
I also suggest, with all respect, that the Court's appeal to Board practice wholly misconceives the lesson to be drawn from it. In the seminal case recognizing the Board's power to order reinstatement for discriminatory refusals hire, this Court in a reasoned opinion by Mr. Justice Frankfurter was careful to emphasize that the decision on the type and extent of relief rested in the Board's discretion, subject to limited review only by the courts.
71
"But in the nature of things Congress could not catalogue all the devices and stratagems for circumventing the policies of the Act. Nor could it define the whole gamut of remedies to effectuate these policies in an infinite variety of specific situations. Congress met these difficulties by leaving the adaptation of means to end to the empiric process of administration. The exercise of the process was committed to the Board, subject to limited judicial review. . . .
72
". . . All these and other factors outside our domain of experience may come into play. Their relevance is for the Board, not for us. In the exercise of its informed discretion the Board may find that effectuation of the Act's policies may or may not require reinstatement. We have no warrant for speculating on matters of fact the determination of which Congress has entrusted to the Board. All we are entitled to ask is that the statute speak through the Board where the statute does not speak for itself." Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194-196, 61 S.Ct. 845, 852-853, 85 L.Ed. 1271, 1283-1284 (1941) (emphasis added).
73
The fallacy of the Court's reliance upon Board practice is apparent: the district courts under Title VII stand in the place of the Board under the NLRA. Congress entrusted to their discretion the appropriate remedies for violations of the Act, just as it previously had entrusted discretion to the Board. The Court today denies that discretion to the district courts, when 35 years ago it was quite careful to leave discretion where Congress had entrusted it. It may be that the district courts, after weighing the competing equities, would order full retroactive seniority in most cases. But they should do so only after determining in each instance that it is appropriate, and not because this Court has taken from them the power granted by Congress to weigh the equities.
74
In summary, the decision today denying district courts the power to balance equities cannot be reconciled with the explicit mandate of § 706(g) to determine "appropriate" relief through the exercise of "equitable powers." Accordingly, I would remand this case to the District Court with instructions to investigate and weigh competing equities before deciding upon the appropriateness of retroactive competitive-type seniority with respect to individual claimants.20
1
Petitioners also alleged an alternative claim for relief for violations of 42 U.S.C. § 1981. In view of our decision we have no occasion to address that claim.
2
In 1972, the International Union of District 50 merged with the United Steelworkers of America, AFL-CIO, and hence the latter as the successor bargaining representative is the union respondent before this Court. Brief for Respondent United Steelworkers of America, AFL-CIO, and for American Federation of Labor and Congress of Industrial Organizations as Amicus Curiae 5.
3
In conjunction with its directions to the District Court regarding seniority relief for the members of other subclasses not involved in the issues presently confronting this Court, the Court of Appeals directed that class 4 members who transferred to OTR positions under the District Court's decree should be allowed to carry over all accumulated company seniority for all purposes in the OTR department. 495 F.2d, at 417.
4
The District Court determined that Lee first filed his employment application with Bowman on January 13, 1970, and was discriminatorily refused employment at that time. Lee was later hired by Bowman on September 18, 1970, after he had filed a complaint with the Equal Employment Opportunity Commission. The District Court awarded Lee $6,124.58 as backpay for the intervening period of discrimination.
5
"There must not only be a named plaintiff who has such a case or controversy at the time the complaint is filed, and at the time the class action is certified by the District Court pursuant to Rule 23, but there must be a live controversy at the time this Court reviews the case. . . . The controversy may exist, however, between a named defendant and a member of the class represented by the named plaintiff, even though the claim of the named plaintiff has become moot." Sosna, 419 U.S., at 402, 95 S.Ct., at 559, 42 L.Ed.2d, at 542 (footnotes omitted).
6
In Board of School Comm'rs v. Jacobs, the named plaintiffs no longer possessed a personal stake in the outcome at the time the case reached this Court for review. As the action had not been properly certified as a class action by the District Court, we held it moot. 420 U.S., at 129, 95 S.Ct., at 850, 43 L.Ed.2d, at 78.
7
To the contrary, Sosna, 419 U.S., at 401 n. 10, 95 S.Ct., at 558, 42 L.Ed.2d, at 542, cited with approval two Courts of Appeals decisions not involving "evading review" issues which held, in circumstances less compelling than those presented by the instant case, that Title VII claims of unnamed class members are not automatically mooted merely because the named representative is determined to be ineligible for relief for reasons peculiar to his individual claim. Roberts v. Union Co., 487 F.2d 387 (C.A.6 1973); Moss v. Lane Co., 471 F.2d 853 (C.A.4 1973). In the Moss case, the Court of Appeals for the Fourth Circuit followed its prior decision in Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377, cert. denied, 409 U.S. 982, 93 S.Ct. 319, 34 L.Ed.2d 246 (1972). That case involved circumstances similar to those before us. There the named representative had proved his personal § 1981 claim against his former employer but was, for reasons special to himself, determined to be ineligible for the Title VII relief sought on behalf of himself and the class of discriminatees he represented.
8
Thus, the "capable of repetition, yet evading review" dimension of Sosna must be understood in the context of mootness as one of the policy rules often invoked by the Court "to avoid passing prematurely on constitutional questions. Because (such) rules operate in 'cases confessedly within (the Court's) jurisdiction' . . . they find their source in policy, rather than purely constitutional, considerations." Flast v. Cohen, 392 U.S. 83, 97, 88 S.Ct. 1942, 1951, 20 L.Ed.2d 947, 960 (1968). See also, Id., at 120 n. 8, 88 S.Ct. at 1963, 20 L.Ed.2d, at 973 (Harlan J., dissenting); Ashwander v. TVA, 297 U.S. 288, 345-348, 56 S.Ct. 466, 482-484, 80 L.Ed. 688, 709-712 (1936) (Brandeis, J., concurring).
9
Nor are there present in the instant case nonconstitutional policy considerations, n. 8, Supra, mitigating against review by this Court at the present time. Indeed, to "split up" the underlying case and require that the individual class members begin anew litigation on the sole issue of seniority relief would be destructive of the ends of judicial economy and would postpone indefinitely relief which under the law may already be long overdue.
10
By its terms, the judgment of the District Court runs to all black applicants for OTR positions prior to January 1, 1972, and is not qualified by a limitation that the discriminatory refusal to hire must have taken place after the effective date of the Act. However, only post-Act victims of racial discrimination are members of class 3. Title VII's prohibition on racial discrimination in hiring became effective on July 2, 1965, one year after the date of its enactment. Pub.L. 88-352, §§ 716(a)-(b), 78 Stat. 266. Petitioners sought relief in this case for identifiable applicants for OTR positions "whose applications were put in evidence at the trial." App. 20a. There were 206 unhired black applicants prior to January 1, 1972, whose written applications are summarized in the record and none of the applications relates to years prior to 1970. Id., at 52a, Table VA.
11
See Last Hired, First Fired Seniority, Layoffs, and Title VII: Questions of Liability and Remedy, 11 Col.J.L. & Soc.Prob. 343, 376, 378 (1975).
12
See H.R.Rep.No.914, 88th Cong., 1st Sess., U.S.Code Cong. & Admin.News 1964, p. 2355 (1963).
13
110 Cong.Rec. 2804 (1964).
14
H.R.Rep.No.914, Supra.
15
The full text of the memorandum pertaining to seniority states:
"Title VII would have no effect on established seniority rights. Its effect is prospective and not retrospective. Thus, for example, if a business has been discriminating in the past and as a result has an all-white working force, when the title comes into effect the employer's obligation would be simply to fill future vacancies on a nondiscriminatory basis. He would not be obliged or indeed, permitted to fire whites in order to hire Negroes, or to prefer Negroes for future vacancies, or, once Negroes are hired, to give them special seniority rights at the expense of the white workers hired earlier. (However, where waiting lists for employment or training are, prior to the effective date of the title, maintained on a discriminatory basis, the use of such lists after the title takes effect may be held an unlawful subterfuge to accomplish discrimination.)"
16
The full text of the statement pertinent to seniority reads:
"First, it has been asserted that title VII would undermine vested rights of seniority. This is not correct. Title VII would have no effect on seniority rights existing at the time it takes effect. If, for example, a collective bargaining contract provides that in the event of layoffs, those who were hired last must be laid off first, such a provision would not be affected in the least by title VII. This would be true even in the case where owing to discrimination prior to the effective date of the title, white workers had more seniority than Negroes. Title VII is directed at discrimination based on race, color, religion, sex, or national origin. It is perfectly clear that when a worker is laid off or denied a chance for promotion because under established seniority rules he is 'low man on the totem pole' he is not being discriminated against because of his race. Of course, if the seniority rule itself is discriminatory, it would be unlawful under title VII. If a rule were to state that all Negroes must be laid off before any white man, such a rule could not serve as the basis for a discharge subsequent to the effective date of the title. I do not know how anyone could quarrel with such a result. But, in the ordinary case, assuming that seniority rights were built up over a period of time during which Negroes were not hired, these rights would not be set aside by the taking effect of title VII. Employers and labor organizations would simply be under a duty not to discriminate against Negroes because of their race. Any differences in treatment based on established seniority rights would not be based on race and would not be forbidden by the title." 110 Cong.Rec. 7207 (1964).
Senator Clark also introduced into the Congressional Record a set of answers to a series of questions propounded by Senator Dirksen. Two of these questions and answers are pertinent to the issue of seniority:
"Question. Would the same situation prevail in respect to promotions, when that management function is governed by a labor contract calling for promotions on the basis of seniority? What of dismissals? Normally, labor contracts call for 'last hired, first fired.' If the last hired are Negroes, is the employer discriminating if his contract requires they be first fired and the remaining employees are white?
"Answer. Seniority rights are in no way affected by the bill. If under a 'last hired, first fired' agreement a Negro happens to be the 'last hired,' he can still be 'first fired' as long as it is done because of his status as 'last hired' and not because of his race.
"Question. If an employer is directed to abolish his employment list because of discrimination what happens to seniority?
"Answer. The bill is not retroactive, and it will not require an employer to change existing seniority lists." Id., at 7217.
17
Id., at 11926, 11931.
18
Cf. Gould, Employment Security, Seniority and Race: The Role of Title VII of the Civil Rights Act of 1964, 13 How.L.J. 1, 8-9, and n. 32 (1967); see also Jurinko v. Edwin L. Wiegand Co., 477 F.2d 1038 (C.A.3), vacated and remanded on other grounds, 414 U.S. 970, 94 S.Ct. 293, 38 L.Ed.2d 214 (1973), wherein the court awarded back seniority in a case of discriminatory hiring after the effective date of Title VII without any discussion of the impact of § 703(h) on the propriety of such a remedy.
19
Section 706(g) of Title VII, 42 U.S.C. § 2000e-5(g) (1970 ed., Supp. IV), provides:
"If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the 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 (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable. No order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, or national origin or in violation of section 2000e-3(a) of this title."
20
Equal Employment Opportunity Act of 1972, 86 Stat. 103, amending 42 U.S.C. § 2000e Et seq.
21
It is true that backpay is the only remedy specifically mentioned in § 706(g). But to draw from this fact and other sections of the statute, Post, at 789-793, any implicit statement by Congress that seniority relief is a prohibited, or at least less available, form of remedy is not warranted. Indeed, any such contention necessarily disregards the extensive legislative history underlying the 1972 amendments to Title VII. The 1972 amendments added the phrase speaking to "other equitable relief" in § 706(g). The Senate Report manifested an explicit concern with the "earnings gap" presently existing between black and white employees in American society. S.Rep.No. 92-415, p. 6 (1971). The Reports of both Houses of Congress indicated that "rightful place" was the intended objective of Title VII and the relief accorded thereunder. Ibid.; H.R.Rep.No. 92-238, p. 4 (1971), U.S.Code Cong. & Admin.News 1972, p. 2137. As indicated, Infra, at 767-768, and n. 28, rightful-place seniority, implicating an employee's
Future earnings, job security, and advancement prospects, is absolutely essential to obtaining this congressionally mandated goal.
The legislative history underlying the 1972 amendments completely answers the argument that Congress somehow intended seniority relief to be less available in pursuit of this goal. In explaining the need for the 1972 amendments, the Senate Report stated:
"Employment discrimination as viewed today is a . . . complex and pervasive phenomenon. Experts familiar with the subject now generally describe the problem in terms of 'systems' and 'effects' rather than simply intentional wrongs, and the literature on the subject is replete with discussions of, for example, the mechanics of seniority and lines of progression, perpetuation of the present effect of pre-act discriminatory practices through various institutional devices, and testing and validation requirements." S.Rep.No. 92-415, Supra, at 5.
See also H.R.Rep.No. 92-238, Supra, at 8. In the context of this express reference to seniority, the Reports of both Houses cite with approval decisions of the lower federal courts which granted forms of retroactive "rightful place" seniority relief. S.Rep.No. 92-415, Supra, at 5 n. 1; H.R.Rep.No. 92-238, Supra, at 8 n. 2. (The dissent, Post, at 796-797, n. 18, would distinguish these lower federal court decisions as not involving instances of discriminatory Hiring. Obviously, however, the concern of the entire thrust of the dissent the impact of rightful-place seniority upon the expectations of other employees is in no way a function of the specific type of illegal discriminatory practice upon which the judgment of liability is predicated.) Thereafter, in language that could hardly be more explicit, the analysis accompanying the Conference Report stated:
"In any area where the new law does not address itself, or in any areas where a specific contrary intention is not indicated, it was assumed That the present case law as developed by the courts would continue to govern the applicability and construction of Title VII." Section-By-Section Analysis of H.R.1746, accompanying The Equal Employment Opportunity Act of 1972 Conference Report, 118 Cong.Rec. 7166 (1972) (emphasis added).
22
App. 46a-50a.
23
Ibid.
24
2 Record 161.
25
App. 47a, 51a.
26
2 Record 169.
27
Further, at least in regard to "benefit"-type seniority such as length of vacation leave and pension benefits in the instant case, any general bar to the award of retroactive seniority for victims of illegal hiring discrimination serves to undermine the mutually reinforcing effect of the dual purposes of Title VII; it reduces the restitution required of an employer at such time as he is called upon to account for his discriminatory actions perpetrated in violation of the law. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-418, 95 S.Ct. 2362, 2371-2372, 45 L.Ed.2d 280, 296-297 (1975).
28
Accordingly, it is clear that the seniority remedy which petitioners seek does not concern only the "make-whole" purposes of Title VII. The dissent errs in treating the issue of seniority relief as implicating only the "make whole" objective of Title VII and in stating that "Title VII's 'primary objective' of eradicating discrimination is not served at all . . . ." Post, at 788. Nothing could be further from reality the issue of seniority relief cuts to the very heart of Title VII's primary objective of eradicating present and future discrimination in a way that backpay, for example, can never do. "(S)eniority, after all, is a right which a worker exercises in each job movement in the future, rather than a simple one-time payment for the past." Poplin, Fair Employment in a Depressed Economy: The Layoff Problem, 23 U.C.L.A.L.Rev. 177, 225 (1975).
29
To the extent that there is a difference in the wording of the respective provisions, § 706(g) grants, if anything, broader discretionary powers than those granted the National Labor Relations Board. Section 10(c) of the NLRA authorizes "such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this subchapter," 29 U.S.C. § 160(c), whereas § 706(g) as amended in 1972 authorizes "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. IV) (emphasis added).
30
Since the Court of Appeals concluded that an award of retroactive seniority to the unnamed members of class 3 was barred by § 703(h), a conclusion which we today reject, the court did not address specifically the District Court's stated reasons for refusing the relief. The Court of Appeals also stated, however, that the District Court did not "abuse its discretion" in refusing such relief, 495 F.2d 398, 418 (1974), and we may therefore appropriately review the validity of the District Court's reasons.
31
The District Court order is silent as to whether applicants for OTR positions who were previously discriminatorily refused employment must be presently qualified for those positions in order to be eligible for priority hiring under that order. The Court of Appeals, however, made it plain that they must be. Id., at 417. We agree.
32
Thus Bowman may attempt to prove that a given individual member of class 3 was not in fact discriminatorily refused employment as an OTR driver in order to defeat the individual's claim to seniority relief as well as any other remedy ordered for the class generally. Evidence of a lack of vacancies in OTR positions at the time the individual application was filed, or evidence indicating the individual's lack of qualification for the OTR positions under nondiscriminatory standards Actually applied by Bowman to individuals who were in fact hired would of course be relevant. It is true, of course, that obtaining the third category of evidence with which the District Court was concerned what the individual discriminatee's job performance would have been but for the discrimination presents great difficulty. No reason appears, however, why the victim rather than the perpetrator of the illegal act should bear the burden of proof on this issue.
33
Even by its terms, this argument could apply only to the award of retroactive seniority for purposes of "competitive status" benefits. It has no application to a retroactive award for purposes of "benefit" seniority extent of vacation leave and pension benefits. Indeed, the decision concerning the propriety of this latter type of seniority relief is analogous, if not identical, to the decision concerning an award of backpay to an individual discriminatee hired pursuant to an order redressing previous employment discrimination.
34
With all respect, the dissent does not adequately treat with and fails to distinguish, Post, at 796-799, the standard practice of the National Labor Relations Board granting retroactive seniority relief under the National Labor Relations Act to persons discriminatorily discharged or refused employment in violation of the Act. The Court in Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 196, 61 S.Ct. 845, 853, 85 L.Ed. 1271, 1284 (1941), of course, made reference to "restricted judicial review" as that case arose in the context of review of the policy determinations of an independent administrative agency, which are traditionally accorded a wide-ranging discretion under accepted principles of judicial review. "Because the relation of remedy to policy is peculiarly a matter for administrative competence, courts must not enter the allowable area of the Board's discretion." Id., at 194, 61 S.Ct., at 852, 85 L.Ed., at 1283. As we made clear in Albemarle Paper, however, the pertinent point is that in utilizing the NLRA as the remedial model for Title VII, reference must be made to actual operation and experience as it has evolved in administrating the Act. E. g., "We may assume that Congress was aware that the Board, since its inception, has awarded backpay as a matter of course." 422 U.S., at 419-420, 95 S.Ct., at 2372, 45 L.Ed.2d, at 298. "(T)he Board has from its inception pursued 'a practically uniform policy with respect to these orders requiring affirmative action.' " Id., at 2373 n. 12.
The dissent has cited no case, and our research discloses none, wherein the Board has ordered hiring relief and yet withheld the remedy of retroactive seniority status. Indeed, the Court of Appeals for the First Circuit has noted that a Board order requiring hiring relief "without prejudice to . . . seniority and other rights and privileges" is "language . . . in the standard form which has long been in use by the Board." NLRB v. Draper Corp., 159 F.2d 294, 296-297, and n. 1 (1947). The Board "routinely awards both back pay and retroactive seniority in hiring discrimination cases." Poplin, Supra, n. 28, at 223. See also Edwards & Zaretsky, Preferential Remedies for Employment Discrimination, 74 Mich.L.Rev. 1, 45 n. 224 (1975) (a "common remedy"); Last
Hired, First Fired Seniority, Layoffs and Title VII, Supra, n. 11, at 377 ("traditionally and uniformly required"). This also is a "presumption" in favor of this form of seniority relief. If victims of racial discrimination are under Title VII to be treated differently and awarded less protection than victims of unfair labor practice discrimination under the NLRA, some persuasive justification for such disparate treatment should appear. That no justification exists doubtless explains the position of every union participate in the proceedings before the Court in the instant case arguing for the conclusion we have reached.
35
See also Vogler v. McCarty, Inc., 451 F.2d 1236, 1238-1239 (C.A. 5 1971):
"Adequate protection of Negro rights under Title VII may necessitate, as in the instant case, some adjustment of the rights of white employees. The Court must be free to deal equitably with conflicting interests of white employees in order to shape remedies that will most effectively protect and redress the rights of the Negro victims of discrimination."
36
Another countervailing factor in assessing the expected impact on the interests of other employees actually occasioned by an award of the seniority relief sought is that it is not probable in instances of class-based relief that all of the victims of the past racial discrimination in hiring will actually apply for and obtain the prerequisite hiring relief. Indeed, in the instant case, there appear in the record the rejected applications of 166 black applicants who claimed at the time of application to have had the necessary job qualifications. However, the Court was informed at oral argument that only a small number of those individuals have to this date actually been hired pursuant to the District Court's order ("five, six, seven, something in that order"), Tr. of Oral Arg. 23, although ongoing litigation may ultimately determine more who desire the hiring relief and are eligible for it. Id., at 15.
37
In no way can the remedy established as presumptively necessary be characterized as "total restitution," post, at 791, n. 9, or as deriving from an "absolutist conception of 'make whole' " relief. Post, at 791.
38
In arguing that an award of the seniority relief established as presumptively necessary does nothing to place the burden of the past discrimination on the wrongdoer in most cases the employer the dissent of necessity addresses issues not presently before the Court. Further remedial action by the district courts, having the effect of shifting to the employer the burden of the past discrimination in respect of competitive-status benefits, raises such issues as the possibility of an injunctive "hold harmless" remedy respecting all affected employees in a layoff situation, Brief for Local 862, United Automobile Workers, as Amicus Curiae; the possibility of an award of monetary damages (sometimes designated "front pay") in favor of each employee and discriminatee otherwise bearing some of the burden of the past discrimination, ibid.; and the propriety of such further remedial action in instances wherein the union has been adjudged a participant in the illegal conduct. Brief for United States et al. as Amici Curiae. Such issues are not presented by the record before us, and we intimate no view regarding them.
39
" 'The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims.' " " 'Moreover, . . . equitable remedies are a special blend of what is necessary, what is fair, and what is workable . . . .
" 'In equity, as nowhere else, courts eschew rigid absolutes and look to the practical realities and necessities inescapably involved in reconciling competing interests. . . .' " Post, at 789-790.
40
"(C)laims under Title VII involve the vindication of a major public interest . . . ." Section-By-Section Analysis of H.R. 1746, accompanying the Equal Employment Opportunity Act of 1972 Conference Report, 118 Cong.Rec. 7166, 7168 (1972).
41
Accordingly, to no "significant extent" do we "(strip) the district courts of (their) equity powers." Post, at 786. Rather our holding is that in exercising their equitable powers, district courts should take as their starting point the presumption in favor of rightful-place seniority relief, and proceed with further legal analysis from that point; and that such relief may not be denied on the abstract basis of adverse impact upon interests of other employees but rather only on the basis of unusual adverse impact arising from facts and circumstances that would not be generally found in Title VII cases. To hold otherwise would be to shield "inconsisten(t) and capri(cious)" denial of such relief from "thorough appellate review." Albemarle Paper, 422 U.S., at 421, 416, 95 S.Ct., at 2373, 2371, 45 L.Ed.2d, at 299, 296.
42
Brief for United States et al. as Amici Curiae 26; Brief for Respondent United Steelworkers of America, AFL-CIO, and for American Federation of Labor and Congress of Industrial Organizations as Amicus Curiae 28 n. 32.
1
My terminology conforms to that of the Court, Ante, at 766. "Benefit"-type seniority refers to the use of a worker's earned seniority credits in computing his level of economic "fringe benefits." Examples of such benefits are pensions, paid vacation time, and unemployment insurance. "Competitive"-type seniority refers to the use of those same earned credits in determining his right, relative to other workers, to job-related "rights" that cannot be supplied equally to any two employees. Examples can range from the worker's right to keep his job while someone else is laid off, to his right to a place in the punch-out line ahead of another employee at the end of a workday.
2
As to the prophylactic purpose, the Court stated:
"It is the reasonably certain prospect of a backpay award that 'provide(s) the spur or catalyst which causes employers and unions to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges of an unfortunate and ignominious page in this country's history.' " 422 U.S., at 417-418, 95 S.Ct., at 2371-2372, 45 L.Ed.2d at 296-297 (citations omitted).
Backpay furthers the "make whole" purpose of the statute by replacing some of the economic loss suffered as a result of the employer's wrongdoing. See Id., at 418-420, 95 S.Ct., at 2372-2373, 45 L.Ed.2d, at 297-298.
3
"Discretion is vested . . . to allow the most complete achievement of the objectives of Title VII that is attainable under the facts and circumstances of the specific case. . . . Accordingly, the District Court's denial of Any form of seniority remedy must be reviewed in terms of its effect on the attainment of the Act's objectives under the circumstances presented by this record." Ante, at 770-771. (emphasis added).
4
In an appropriate case, of course, Title VII remedies may be ordered against a wrongdoing union as well as the employer.
5
This certainly would be true in this case, as conceded by counsel for Bowman at oral argument. There the following exchange took place:
"QUESTION: How is Bowman injured by this action?
"MR. PATE (Counsel for Bowman): By seniority? By the grant of this remedy?
"QUESTION: Either way.
"MR. PATE: It is not injured either way and the company, apart from the general interest of all of us in the importance of the question, has no specific tangible interest in it in this case as to whether seniority is granted to this group or not. That is correct." Tr. of Oral Arg. 42.
In a supplemental memorandum filed after oral argument, petitioners referred to this statement by Bowman's counsel and suggested that he apparently was referring to the competitive aspects of seniority, such as which employees were to get the best job assignments, since Bowman certainly Would be economically disadvantaged by the benefit-type seniority, such as seniority-related increases in backpay. I agree that in the context Bowman's counsel spoke, he was referring to the company's lack of a tangible interest, in whether or not competitive-type seniority was granted.
6
The Court in Albemarle noted that this primary objective had been recognized in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). See 422 U.S., at 417, 95 S.Ct., at 2371, 45 L.Ed.2d, at 296; see also Supra, at 783. In Griggs, the Court found this objective to be "plain from the language of the statute." 401 U.S., at 429, 91 S.Ct., at 853, 28 L.Ed.2d, at 163. In creating a presumption in favor of a retroactive grant of competitive-type seniority the Court thus exalts the make-whole purpose, not only above fundamental principles of equity, but also above the primary objective of the statute recently found to be plain on its face.
7
Some commentators have suggested that the expectations of incumbents somehow may be illegitimate because they result from past discrimination against others. Cooper & Sobol, Seniority and Testing under Fair Employment Laws: A General Approach to Objective Criteria of Hiring and Promotion, 82 Harv.L.Rev. 1598, 1605-1606 (1969). Such reasoning is badly flawed. Absent some showing of collusion, the incumbent employee was not a party to the discrimination by the employer. Acceptance of the job when offered hardly makes one an accessory to a discriminatory failure to hire someone else. Moreover, the incumbent's expectancy does not result from discrimination against others, but is based on his own efforts and satisfactory performance.
8
The Court argues that a retroactive grant of competitive-type seniority always is equitable because it "divides the burden" of past discrimination between incumbents and victims. Ante, at 776-777. Aside from its opacity, this argument is flawed by what seems to be a misperception of the nature of Title VII relief. Specific relief necessarily focuses upon the individual victim, not upon some "class" of victims. A grant of full retroactive seniority to an individual victim of Bowman's discriminatory hiring practices will place that person exactly where he would have been had he been hired when he first applied. The question for a district court should be whether it is equitable to place that individual in that position despite the impact upon all incumbents hired after the date of his unsuccessful application. Any additional effect upon the entire work force incumbents and the newly enfranchised victims alike of similar relief to still Earlier victims of the discrimination, raises distinctly different issues from the equity, vis-a-vis incumbents, of granting retroactive seniority to each victim.
9
Indeed, the 1972 amendment process which produced the Section-by-Section Analysis containing the statement of the Act's "make whole" purpose, also resulted in an addition to § 706(g) itself clearly showing congressional recognition that total restitution to victims of discrimination is not a feasible goal. As originally enacted, § 706(g) contained simply an authorization to district courts to order reinstatement with or without backpay, with no limitation on how much backpay the courts could order. In 1972, however, the Congress added a limitation restricting the courts to an award to a date two years prior to the filing of a charge with EEOC. While it is true that Congress at the same time rejected an even more restrictive limitation, see Albemarle Paper Co. v. Moody, supra, 422 U.S., at 420 n. 13, 95 S.Ct., at 2373, 45 L.Ed.2d, at 298, its adoption of any limitation at all suggests an awareness that the desire to "make whole" must yield at some point to other considerations.
10
Section 703(j), 78 Stat. 257, 42 U.S.C. § 2000e-2(j), reads in full as follows:
"(j) Nothing contained in this subchapter shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this subchapter to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area."
11
Tr. of Oral Arg. 33.
12
It is true, of course, that backpay awards and retroactive grants of benefit-type seniority likewise are based on the same fiction and the same assumption. In the case of those remedies, however, no innocent persons are harmed by the use of the fiction, and any uncertainty about whether the victim of discrimination in fact would have retained the job and earned the benefits is properly borne by the wrongdoer.
13
Nor is it suggested that incumbents have "indefeasibly vested rights" to their seniority status that invariably would foreclose retroactive seniority. But the cases cited by the Court for that proposition do not hold, or by analogy imply, that district courts operating under § 706(g) lack equitable discretion to take into account the rights of incumbents. In Tilton v. Missouri Pacific R. Co., 376 U.S. 169, 84 S.Ct. 595, 11 L.Ed.2d 590 (1964), and Fishgold v. Sullivan Corp., 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230 (1946), the Court only confirmed an express congressional determination, presumably made after weighing all relevant considerations, that for reasons of public policy veterans should receive seniority credit for their time in military service. See 376 U.S., at 174-175, 84 S.Ct., at 599-600, 11 L.Ed.2d, at 593-594. In Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953), the Court affirmed the authority of a collective-bargaining agent, presumably after weighing the relative equities, see Id., at 337-339, 73 S.Ct., at 685-687, 97 L.Ed., at 1057-1058, to advantage certain employees more than others. All I contend is that under § 706(g) a district court, like Congress in Tilton and Fishgold, and the bargaining agent in Huffman, also must be free to weigh the equities.
14
The Court, Ante, at 764 n. 21, suggests I am arguing that retroactive competitive-type seniority should be "less available" as relief than backpay. This is not my position. All relief not specifically prohibited by the Act is equally "available" to the district courts. My point is that equitable considerations can make competitive-type seniority relief less "appropriate" in a particular situation than backpay or other relief. Again, the plain language of § 706(g) compels careful determination of the "appropriateness" of each "available" remedy in a specific case, and does not permit the inflexible approach taken by the Court.
15
From the briefs of the parties it appears that Meadows is one of only three reported appellate decisions dealing with the question of retroactive seniority relief to victims of discriminatory hiring practices. In the instant case, of course, the Court of Appeals for the Fifth Circuit held such relief barred by § 703(h). In Jurinko v. Edwin L. Wiegand Co., 477 F.2d 1038, vacated and remanded on other grounds, 414 U.S. 970, 94 S.Ct. 293, 38 L.Ed.2d 214 (1973), the Court of Appeals for the Third Circuit ordered the relief without any discussion of equitable considerations.
16
The Sixth Circuit noted that no equitable considerations stand in the way of a district court's granting retroactive benefit-type seniority. 510 F.2d, at 949.
17
One of the commentators quoted by the Court today has endorsed the evenhanded approach adopted by the Sixth Circuit: "In fashioning a remedy, . . . the courts should consciously assess the costs of relief to All the parties in the case, and then tailor the decree to minimize these costs while affording plaintiffs adequate relief. The best way to do this will no doubt vary from case to case depending on the facts: the number of plaintiffs, the number of (incumbents) affected and the alternatives available to them, the economic circumstances of the industry." Poplin, Fair Employment in a Depressed Economy: The Layoff Problem, 23 U.C.L.A.L.Rev. 177, 202 (1975) (emphasis in original); see Id., at 224.
Another commentator has said that judges who fail to take account of equitable claims of incumbents are engaging in an "Alice in Wonderland" approach to the problem of Title VII remedies. See Rains, Title VII v. Seniority Based Layoffs: A Question of Who Goes First, 4 Hofstra L.Rev. 49, 53 (1975).
18
By gathering bits and pieces of the legislative history of the 1972 amendments, the Court attempts to patch together an argument that full retroactive seniority is a remedy equally "available" as backpay. Ante, at 764-765, n. 21. There are two short responses. First, as emphasized elsewhere, Supra, at 794 n. 14, no one contends that such relief is less Available, but only that it may be less Equitable in some situations. Second, insofar as the Court intends the legislative history to suggest some presumption in favor of this relief, it is irrefutably blocked by the plain language of § 706(g) calling for the exercise of Equitable discretion in the fashioning of Appropriate relief. There are other responses. As to the committee citations of lower court decisions and the Conference Report Analysis reference to "present case law," it need only be noted that as of the 1972 amendments no appellate court had considered a case involving retroactive seniority relief to victims of discriminatory hiring practices. Moreover, the cases were cited only in the context of a general discussion of the complexities of employment discrimination, never for their adoption of a "rightful place" theory of relief. And by the terms of the Conference Report Analysis itself, the existing case law could not take precedence over the explicit language of § 706(g), added by the amendments, that told courts to exercise Equitable discretion in granting Appropriate relief.
Moreover, I find no basis for the Court's statement that the Committee Reports indicated "rightful place" to be the objective of Title VII relief. In fact, in both instances cited by the Court the term was used in the context of a general comment that minorities were still "far from reaching their rightful place in society." S.Rep.No. 92-416, p. 6 (1971). There was no reference to the scope of relief under § 706(g), or indeed even to Title VII remedies at all.
19
The respondent Steelworkers cited seven Board decisions in addition to those mentioned in the Court's opinion. Brief for Respondent United Steelworkers of America AFL-CIO, and for American Federation of Labor and Congress of Industrial Organizations as Amicus Curiae, 27 n. 31.
20
This is not to suggest that district courts should be left to exercise a standardless, unreviewable discretion. But in the area of competitive-type seniority, unlike backpay and benefit-type seniority, the twin purposes of Title VII do not provide the standards. District courts must be guided in each instance by the mandate of § 706(g). They should, of course, record the considerations upon which they rely in granting or refusing relief, so that appellate review could be informed and precedents established in the area.
In this case, for example, factors that could be considered on remand and that could weigh in favor of full retroactive seniority, include Bowman's high employee turnover rate and the asserted fact that few victims of Bowman's discrimination have indicated a desire to be hired. Other factors, not fully developed in the record, also could require consideration in determining the balance of the equities. I would imply no opinion on the merits and would remand for full consideration in light of the views herein expressed.
| 12
|
424 U.S. 800
96 S.Ct. 1236
47 L.Ed.2d 483
COLORADO RIVER WATER CONSERVATION DISTRICT et al., Petitioners,v.UNITED STATES. Mary AKIN et al., Petitioners, v. UNITED STATES.
Nos. 74-940, 74-949.
Argued Jan. 14, 1976.
Decided March 24, 1976.
Leave to File Petition for Rehearings Denied June 1, 1976.
See 426 U.S. 912, 96 S.Ct. 2239.
Syllabus
In order to manage the allocation of water and to resolve conflicting claims thereto, Colorado enacted legislation under which the State is divided into seven Water Divisions, in each of which a procedure is established for the settlement of water claims on a continuous basis. A State Engineer is charged with responsibility for administering the distribution of state waters. Seeking adjudication of reserved rights claimed on behalf of itself and certain Indian tribes, as well as rights based on state law, in waters in certain rivers in Division 7, the United States, which had previously asserted non-Indian reserved water rights in three other State Water Divisions, brought this suit against some 1,000 water users in the District Court. The Government invoked District Court jurisdiction under 28 U.S.C. § 1345. Shortly thereafter, one of the federal-suit defendants sought in the state court for Division 7 to make the Government a party to proceedings in that Division for the purpose of there adjudicating all the Government's claims, both state and federal, pursuant to the McCarran Amendment, 43 U.S.C. § 666. That law provides for consent to join the United States in any suit (1) for the adjudication of water rights, or (2) the administration of such rights, where it appears that the United States owns or is acquiring such rights by appropriation under state law or otherwise. The District Court, on abstention grounds, granted a motion to dismiss the Government's suit. The Court of Appeals reversed, holding that jurisdiction for that suit existed under 28 U.S.C. § 1345, and that abstention was inappropriate. Held:
1. The McCarran Amendment, as is clear from its language and legislative history, did not divest the District Court of jurisdiction over this litigation under § 1345. The effect of the Amendment is to give consent to state jurisdiction concurrent with federal jurisdiction over controversies involving federal water rights. Pp. 806-809.
2. That Amendment includes consent to determine in state court reserved water rights held on behalf of Indians, see United States v. District Court for Eagle County, 401 U.S. 520, 91 S.Ct. 998, 28 L.Ed.2d 278, and United States v. District Court for Water Div. 5, 401 U.S. 527, 91 S.Ct. 1003, 28 L.Ed.2d 284, and the exercise of state jurisdiction does not imperil those rights or breach the Government's special obligation to protect the Indians. Pp. 809-813.
3. The abstention doctrine is confined to three categories of cases, none of which applies to the litigation at bar; hence the District Court's dismissal on the basis of abstention was inappropriate. Pp. 813-817.
4. Several factors, however, are present in this litigation that counsel against exercise of concurrent federal jurisdiction, clearly supporting dismissal of the Government's action and resolution of its water-right claims in the state-court proceedings. Pp. 817-820.
(a) Most significantly, such dismissal furthers the policy of the McCarran Amendment recognizing the desirability of unified adjudication of water rights and the availability of state systems like the one in Colorado for such adjudication and management of rights to use the State's waters. The Colorado legislation established a continuous proceeding for adjudicating water rights that antedated the Government's suit and reached "all claims, perhaps month by month but inclusively in the totality," United States v. District Court for Water Div., supra, at 529, 91 S.Ct. at 1004, 28 L.Ed.2d at 285. Pp. 819-820.
(b) Other significant factors include (1) the apparent absence before dismissal of any District Court proceedings other than the filing of the complaint; (2) the extensive involvement of state water rights occasioned by this suit against 1,000 defendants; (3) the distance between the federal court and Division 7; and (4) the Government's existing participation in proceedings in three other Divisions. P. 820.
504 F.2d 115, reversed.
Kenneth Balcomb, Glenwood Springs, Colo., for the petitioners in both cases and Howard E. Shapiro, Washington, D.C., for the respondent in each case.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The McCarran Amendment, 66 Stat. 560, 43 U.S.C. § 666, provides that "consent is hereby given to join the United States as a defendant in any suit (1) for the adjudication of rights to the use of water of a river system or other source, or (2) for the administration of such
2
[Amicus Curiae Information from page 802 intentionally omitted] rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise, and the United States is a necessary party to such suit." The questions presented by this case concern the effect of the McCarran Amendment upon the jurisdiction of the federal district courts under 28 U.S.C. § 1345 over suits for determination of water rights brought by the United States as trustee for certain Indian tribes and as owner of various non-Indian Government claims.1
3
* It is probable that no problem of the Southwest section of the Nation is more critical than that of scarcity of water. As southwestern populations have grown, conflicting claims to this scarce resource have increased. To meet these claims, several Southwestern States have established elaborate procedures for allocation of water and adjudication of conflicting claims to that resource.2 In 1969, Colorado enacted its Water Rights Determination and Administration Act3 in an effort to revamp its legal procedures for determining claims to water within the State.
4
Under the Colorado Act, the State is divided into seven Water Divisions, each Division encompassing one or more entire drainage basins for the larger rivers in Colorado.4 Adjudication of water claims within each Division occurs on a continuous basis.5 Each month, Water Referees in each Division rule on applications for water rights filed within the preceding five months or refer those applications to the Water Judge of their Division.6 Every six months, the Water Judge passes on referred applications and contested decisions by Referees.7 A State Engineer and engineers for each Division are responsible for the administration and distribution of the waters of the State according to the determinations in each Division.8
5
Colorado applies the doctrine of prior appropriation in establishing rights to the use of water.9 Under that doctrine, one acquires a right to water by diverting it from its natural source and applying it to some beneficial use. Continued beneficial use of the water is required in order to maintain the right. In periods of shortage, priority among confirmed rights is determined according to the date of initial diversion.10
6
The reserved rights of the United States extend to Indian reservations, Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908), and other federal lands, such as national parks and forests, Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963). The reserved rights claimed by the United States in this case affect waters within Colorado Water Division No. 7. On November 14, 1972, the Government instituted this suit in the United States District Court for the District of Colorado, invoking the court's jurisdiction under 28 U.S.C. § 1345. The District Court is located in Denver, some 300 miles from Division 7. The suit, against some 1,000 water users, sought declaration of the Government's rights to waters in certain rivers and their tributaries located in Division 7. In the suit, the Government asserted reserved rights on its own behalf and on behalf of certain Indian tribes, as well as rights based on state law. It sought appointment of a water master to administer any waters decreed to the United States. Prior to institution of this suit, the Government had pursued adjudication of non-Indian reserved rights and other water claims based on state law in Water Divisions 4, 5, and 6, and the Government continues to participate fully in those Divisions.
7
Shortly after the federal suit was commenced, one of the defendants in that suit filed an application in the state court for Division 7, seeking an order directing service of process on the United States in order to make it a party to proceedings in Division 7 for the purpose of adjudicating all of the Government's claims, both state and federal. On January 3, 1973, the United States was served pursuant to authority of the McCarran Amendment. Several defendants and intervenors in the federal proceeding then filed a motion in the District Court to dismiss on the ground that under the Amendment, the court was without jurisdiction to determine federal water rights. Without deciding the jurisdictional question, the District Court, on June 21, 1973, granted the motion in an unreported oral opinion stating that the doctrine of abstention required deference to the proceedings in Division 7. On appeal, the Court of Appeals for the Tenth Circuit reversed, United States v. Akin, 504 F.2d 115 (1974), holding that the suit of the United States was within district-court jurisdiction under 28 U.S.C. § 1345, and that abstention was inappropriate. We granted certiorari to consider the important questions of whether the McCarran Amendment terminated jurisdiction of federal courts to adjudicate federal water rights and whether, if that jurisdiction was not terminated, the District Court's dismissal in this case was nevertheless appropriate. 421 U.S. 946, 95 S.Ct. 1674, 44 L.Ed.2d 99 (1975). We reverse.
II
8
We first consider the question of district-court jurisdiction under 28 U.S.C. § 1345. That section provides that the district courts shall have original jurisdiction over all civil actions brought by the Federal Government"(e)xcept as otherwise provided by Act of Congress." It is thus necessary to examine whether the McCarran Amendment is such an Act of Congress excepting jurisdiction under § 1345.
9
The McCarran Amendment does not by its terms, at least, indicate any repeal of jurisdiction under § 1345. Indeed, subsection (d) of the Amendment, which is uncodified, provides:
10
"(d) None of the funds appropriated by this title may be used in the preparation or prosecution of the suit in the United States District Court for the Southern District of California, Southern Division, by the United States of America against Fallbrook Public Utility District, a public service corporation of the State of California, and others." Act of July 10, 1952, Pub.L. 495, § 208(d), 66 Stat. 560.
11
In prohibiting the use of funds for the maintenance by the United States of a specific suit then pending in a District Court, subsection (d) plainly implies that the Amendment did not repeal the jurisdiction of district courts under § 1345 to adjudicate suits brought by the United States for adjudication of claimed federal water rights.11
12
Beyond its terms, the legislative history of the Amendment evidences no clear purpose to terminate any portion of § 1345 jurisdiction. Indeed, three bills, proposed at approximately the same time as the Amendment, which expressly would have had the effect of precluding suits by the United States in district court for the determination of water rights, failed of passage.12 Further, the Senate report on the Amendment states: "The purpose of the proposed legislation, as amended, is to permit the joinder of the United States as a party defendant in any suit for the adjudication of rights to the use of water . . . ."13 Nothing in this statement of purpose indicates an intent correlatively to diminish federal-district-court jurisdiction. Similarly, Senator McCarran, who introduced the legislation in the Senate, stated in a letter made a part of the Senate report that the legislation was "not intended to be used for any other purpose than to allow the United States to be joined in a suit wherein it is necessary to adjudicate all of the rights of various owners on a given stream."14
13
In view of the McCarran Amendment's language and legislative history, controlling principles of statutory construction require the conclusion that the Amendment did not constitute an exception "provided by Act of Congress" that repealed the jurisdiction of district courts under § 1345 to entertain federal water suits. "When there are statutes clearly defining the jurisdiction of the courts the force and effect of such provisions should not be disturbed by a mere implication flowing from subsequent legislation." Rosecrans v. United States, 165 U.S. 257, 262, 17 S.Ct. 302, 304, 41 L.Ed. 708, 710 (1897). See Morton v. Mancari, 417 U.S. 535, 549-551, 94 S.Ct. 2474, 2482-2483, 41 L.Ed.2d 290, 300-301 (1974); United States v. Jackson, 302 U.S. 628, 632, 58 S.Ct. 390, 392, 82 L.Ed. 488, 491 (1938). "In the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable." Morton v. Mancari, supra, 417 U.S. at 550, 94 S.Ct. at 2482, 41 L.Ed.2d at 300. Not only do the terms and legislative history of the McCarran Amendment not indicate an intent to repeal § 1345, but also there is no irreconcilability in the operation of both statutes. The immediate effect of the Amendment is to give consent to jurisdiction in the state courts concurrent with jurisdiction in the federal courts over controversies involving federal rights to the use of water. There is no irreconcilability in the existence of concurrent state and federal jurisdiction. Such concurrency has, for example, long existed under federal diversity jurisdiction. Accordingly, we hold that the McCarran Amendment in no way diminished federal-district-court jurisdiction under § 1345 and that the District Court had jurisdiction to hear this case.15
III
14
We turn next to the question whether this suit nevertheless was properly dismissed in view of the concurrent state proceedings in Division 7.
A.
15
First, we consider whether the McCarran Amendment provided consent to determine federal reserved rights held on behalf of Indians in state court. This is a question not previously squarely addressed by this Court, and given the claims for Indian water rights in this case, dismissal clearly would have been inappropriate if the state court had no jurisdiction to decide those claims. We conclude that the state court had jurisdiction over Indian water rights under the Amendment.
16
United States v. District Court for Eagle County, 401 U.S. 520, 91 S.Ct. 998, 28 L.Ed.2d 278 (1971), and United States v. District Court for Water Div. 5, 401 U.S. 527, 91 S.Ct. 1003, 28 L.Ed.2d 284 (1971), held that the provisions of the McCarran Amendment, whereby "consent is . . . given to join the United States as a defendant in any suit (1) for the adjudication . . . or (2) for the administration of (water) rights, where it appears that the United States is the owner . . . by appropriation under State law, by purchase, by exchange, or otherwise. . . . ," subject federal reserved rights to general adjudication in state proceedings for the determination of water rights. More specifically, the Court held that reserved rights were included in those rights where the United States was "otherwise" the owner. United States v. District Court for Eagle County, supra, 401 U.S. at 524, 91 S.Ct. at 1002, 28 L.Ed.2d at 281. Though Eagle County and Water Div. 5 did not involve reserved rights on Indian reservations, viewing the Government's trusteeship of Indian rights as ownership, the logic of those cases clearly extends to such rights. Indeed, Eagle County spoke of non-Indian rights and Indian rights without any suggestion that there was a distinction between them for purposes of the Amendment. 401 U.S., at 523, 91 S.Ct., at 1001, 28 L.Ed.2d, at 281.
17
Not only the Amendment's language, but also its underlying policy, dictates a construction including Indian rights in its provisions. Eagle County rejected the conclusion that federal reserved rights in general were not reached by the Amendment for the reason that the Amendment "(deals) with an all-inclusive statute concerning 'the adjudication of rights to the use of water of a river system.' " Id., at 524, 91 S.Ct., at 1002, 28 L.Ed.2d, at 282. This consideration applies as well to federal water rights reserved for Indian reservations. And cogently, the Senate report on the Amendment observed:
18
"In the administration of and the adjudication of water rights under State laws the State courts are vested with the jurisdiction necessary for the proper and efficient disposition thereof, and by reason of the interlocking of adjudicated rights on any stream system, any order or action affecting one right affects all such rights. Accordingly all water users on a stream, in practically every case, are interested and necessary parties to any court proceedings. It is apparent that if any water user claiming to hold such right by reason of the ownership thereof by the United States or any of its departments is permitted to claim immunity from suit in, or orders of, a State court, such claims could materially interfere with the lawful and equitable use of water for beneficial use by the other water users who are amenable to and bound by the decrees and orders of the State courts."16
19
Thus, bearing in mind the ubiquitous nature of Indian water rights in the Southwest, it is clear that a construction of the Amendment excluding those rights from its coverage would enervate the Amendment's objective.17
20
Finally, legislative history demonstrates that the McCarran Amendment is to be construed as reaching federal water rights reserved on behalf of Indians. It was unmistakably the understanding of proponents and opponents of the legislation that it comprehended water rights reserved for Indians. In the Senate hearings on the Amendment, participants for the Department of Justice and the Department of the Interior made clear that the proposal would include water rights reserved on behalf of Indians.18 In addition, the Senate report on the amendment took note of a recommendation in a Department of the Interior report that no consent to suit be given as to Indian rights and rejected the recommendation.19
21
The Government argues that because of its fiduciary responsibility to protect Indian rights, any state-court jurisdiction over Indian property should not be recognized unless expressly conferred by Congress. It has been recognized, however, that an action for the destruction of personal property may be brought against an Indian tribe where "(a)uthority to sue . . . is implied." Turner v. United States, 248 U.S. 354, 358, 39 S.Ct. 109, 110, 63 L.Ed. 291, 294 (1919). Moreover, the Government's argument rests on the incorrect assumption that consent to state jurisdiction for the purpose of determining water rights imperils those rights or in some way breaches the special obligation of the Federal Government to protect Indians. Mere subjection of Indian rights to legal challenge in state court, however, would no more imperil those rights than would a suit brought by the Government in district court for their declaration, a suit which, absent the consent of the Amendment, would eventually be necessitated to resolve conflicting claims to a scarce resource. The Government has not abdicated any responsibility fully to defend Indian rights in state court, and Indian interests may be satisfactorily protected under regimes of state law. See 25 U.S.C. §§ 1321, 1322; 28 U.S.C. § 1360.20 Cf. California-Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 164 n. 2, 55 S.Ct. 725, 731, 79 L.Ed. 1356, 1364 (1935). The Amendment in no way abridges any substantive claim on behalf of Indians under the doctrine of reserved rights. Moreover, as Eagle County said, "questions (arising from the collision of private rights and reserved rights of the United States), including the volume and scope of particular reserved rights, are federal questions which, if preserved, can be reviewed (by the Supreme Court) after final judgment by the Colorado court." 401 U.S., at 526, 91 S.Ct., at 1003, 28 L.Ed.2d, at 283.
B
22
Next, we consider whether the District Court's dismissal was appropriate under the doctrine of abstention. We hold that the dismissal cannot be supported under that doctrine in any of its forms.
23
Abstention from the exercise of federal jurisdiction is the exception, not the rule. "The doctrine of abstention, under which a District Court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it. Abdication of the obligation to decide cases can be justified under this doctrine only in the exceptional circumstances where the order to the parties to repair to the state court would clearly serve an important countervailing interest." County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-189, 79 S.Ct. 1060, 1063, 3 L.Ed.2d 1163, 1166 (1959). "(I)t was never a doctrine of equity that a federal court should exercise its judicial discretion to dismiss a suit merely because a State court could entertain it." Alabama Pub. Serv. Comm'n. v. Southern R. Co., 341 U.S. 341, 361, 71 S.Ct. 762, 774, 95 L.Ed. 1002, 1015 (1951) (Frankfurter, J., concurring in result). Our decisions have confined the circumstances appropriate for abstention to three general categories.
24
(a) Abstention is appropriate "in cases presenting a federal constitutional issue which might be mooted or presented in a different posture by a state court determination of pertinent state law." County of Allegheny v. Frank Mashuda Co. supra, 360 U.S. at 189, 79 S.Ct., at 1063, 3 L.Ed.2d, at 1166. See, E. g., Lake Carriers Ass'n v. MacMullan, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972); United Gas Pipeline Co. v. Ideal Cement Co., 369 U.S. 134, 82 S.Ct. 676, 7 L.Ed.2d 623 (1962); Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). This case, however, presents no federal constitutional issue for decision.
25
(b) Abstention is also appropriate where there have been presented difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar. Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959), for example, involved such a question. In particular, the concern there was with the scope of the eminent domain power of municipalities under state law. See also Kaiser Steel Corp. v. W. S. Ranch Co., 391 U.S. 593, 88 S.Ct. 1753, 20 L.Ed.2d 835 (1968); Hawks v. Hamill, 288 U.S. 52, 53 S.Ct. 240, 77 L.Ed. 610 (1933). In some cases, however, the state question itself need not be determinative of state policy. It is enough that exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern. In Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), for example, the Court held that a suit seeking review of the reasonableness under Texas state law of a state commission's permit to drill oil wells should have been dismissed by the District Court. The reasonableness of the permit in that case was not of transcendent importance, but review of reasonableness by the federal courts in that and future cases, where the State had established its own elaborate review system for dealing with the geological complexities of oil and gas fields, would have had an impermissibly disruptive effect on state policy for the management of those fields. See also Alabama Pub. Serv. Comm'n v. Southern R. Co. supra.21
26
The present case clearly does not fall within this second category of abstention. While state claims are involved in the case, the state law to be applied appears to be settled. No questions bearing on state policy are presented for decision. Nor will decision of the state claims impair efforts to implement state policy as in Burford. To be sure, the federal claims that are involved in the case go to the establishment of water rights which may conflict with similar rights based on state law. But the mere potential for conflict in the results of adjudications, does not, without more, warrant staying exercise of federal jurisdiction. See Meredith v. Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9 (1943); Kline v. Burke Constr. Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226 (1922); McClellan v. Carland, 217 U.S. 268, 30 S.Ct. 501, 54 L.Ed. 762 (1910). The potential conflict here, involving state claims and federal claims, would not be such as to impair impermissibly the State's effort to effect its policy respecting the allocation of state waters. Nor would exercise of federal jurisdiction here interrupt any such efforts by restraining the exercise of authority vested in state officers. See Pennsylvania v. Williams, 294 U.S. 176, 55 S.Ct. 380, 79 L.Ed. 841 (1935); Hawks v. Hamill, supra.
27
(c) Finally, abstention is appropriate where, absent bad faith, harassment, or a patently invalid state statute, federal jurisdiction has been invoked for the purpose of restraining state criminal proceedings, Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943);22 state nuisance proceedings antecedent to a criminal prosecution, which are directed at obtaining the closure of places exhibiting obscene films, Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); or collection of state taxes, Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407 (1943). Like the previous two categories, this category also does not include this case. We deal here neither with a criminal proceeding, nor such a nuisance proceeding, nor a tax collection. We also do not deal with an attempt to restrain such actions23 or to seek a declaratory judgment as to the validity of a state criminal law under which criminal proceedings are pending in a state court.
C
28
Although this case falls within none of the abstention categories, there are principles unrelated to considerations of proper constitutional adjudication and regard for federal-state relations which govern in situations involving the contemporaneous exercise of concurrent jurisdictions, either by federal courts or by state and federal courts. These principles rest on considerations of "(w)ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation." Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183, 72 S.Ct. 219, 221, 96 L.Ed. 200, 203 (1952). See Columbia Plaza Corp. v. Security National Bank, 173 U.S.App.D.C. 403, 525 F.2d 620 (1975). Generally, as between state and federal courts, the rule is that "the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction . . . ." McClellan v. Carland, supra, 217 U.S. at 282, 30 S.Ct. at 505, 54 L.Ed., at 767. See Donovan v. City of Dallas, 377 U.S. 408, 84 S.Ct. 1579, 12 L.Ed.2d 409 (1964). As between federal district courts, however, though no precise rule has evolved, the general principle is to avoid duplicative litigation. See Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., supra; Steelman v. All Continent Corp., 301 U.S. 278, 57 S.Ct. 705, 81 L.Ed. 1085 (1937); Landis v. North American Co., 299 U.S. 248, 254, 57 S.Ct. 163, 165, 81 L.Ed. 153, 158 (1936). This difference in general approach between state-federal concurrent jurisdiction and wholly federal concurrent jurisdiction stems from the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them. England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 415, 84 S.Ct. 1, 464, 11 L.Ed.2d 440, 444 (1964); McClellan v. Carland, supra, 217 U.S., at 281, 30 S.Ct. at 504, 54 L.Ed. at 766; Cohens v. Virginia, 6 Wheat. 264, 404, 5 L.Ed. 257 (1821) (dictum). Given this obligation, and the absence of weightier considerations of constitutional adjudication and state-federal relations, the circumstances permitting the dismissal of a federal suit due to the presence of a concurrent state proceeding for reasons of wise judicial administration are considerably more limited than the circumstances appropriate for abstention. The former circumstances, though exceptional, do nevertheless exist.
29
It has been held, for example, that the court first assuming jurisdiction over property may exercise that jurisdiction to the exclusion of other courts. Donovan v. City of Dallas, supra, 377 U.S. at 412, 84 S.Ct. at 413, 12 L.Ed.2d at 1582; Princess Lida v. Thompson, 305 U.S. 456, 466, 59 S.Ct. 275, 280, 83 L.Ed. 285, 291 (1939); United States v. Bank of New York & Trust Co., 296 U.S. 463, 477, 56 S.Ct. 343, 347, 80 L.Ed. 331, 338 (1936). But cf. Markham v. Allen, 326 U.S. 490, 66 S.Ct. 296, 90 L.Ed. 256 (1946); United States v. Klein, 303 U.S. 276, 58 S.Ct. 536, 82 L.Ed. 840 (1938). This has been true even where the Government was a claimant in existing state proceedings and then sought to invoke district-court jurisdiction under the jurisdictional provision antecedent to 28 U.S.C. § 1345. United States v. Bank of New York & Trust Co., supra, 296 U.S. at 479, 56 S.Ct. at 348, 80 L.Ed. at 339. But cf. Leiter Minerals, Inc. v. United States, 352 U.S. 220, 227-228, 77 S.Ct. 287, 291-292, 1 L.Ed.2d 267, 274 (1957). In assessing the appropriateness of dismissal in the event of an exercise of concurrent jurisdiction, a federal court may also consider such factors as the inconvenience of the federal forum, cf. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); the desirability of avoiding piecemeal litigation, cf. Brillhart v. Excess Ins. Co., 316 U.S. 491, 495, 62 S.Ct. 1173, 1175, 86 L.Ed. 1620, 1625 (1942); and the order in which jurisdiction was obtained by the concurrent forums, Pacific Live Stock Co. v. Oregon Water Bd., 241 U.S. 440, 447, 36 S.Ct. 637, 640, 60 L.Ed. 1084, 1096 (1916). No one factor is necessarily determinative; a carefully considered judgment taking into account both the obligation to exercise jurisdiction and the combination of factors counselling against that exercise is required. See Landis v. North American Co., supra, 299 U.S. at 254-255, 57 S.Ct. at 165-166, 81 L.Ed. at 158. Only the clearest of justifications will warrant dismissal.
30
Turning to the present case, a number of factors clearly counsel against concurrent federal proceedings. The most important of these is the McCarran Amendment itself. The clear federal policy evinced by that legislation is the avoidance of piecemeal adjudication of water rights in a river system. This policy is akin to that underlying the rule requiring that jurisdiction be yielded to the court first acquiring control of property, for the concern in such instances is with avoiding the generation of additional litigation through permitting inconsistent dispositions of property. This concern is heightened with respect to water rights, the relationships among which are highly interdependent. Indeed, we have recognized that actions seeking the allocation of water essentially involve the disposition of property and are best conducted in unified proceedings. See Pacific Live Stock Co. v. Oregon Water Bd., supra, 241 U.S., at 449, 36 S.Ct., at 641, 60 L.Ed., at 1096. The consent to jurisdiction given by the McCarran Amendment bespeaks a policy that recognizes the availability of comprehensive state systems for adjudication of water rights as the means for achieving these goals.
31
As has already been observed, the Colorado Water Rights Determination and Administration Act established such a system for the adjudication and management of rights to the use of the State's waters. As the Government concedes24 and as this Court recognized in Eagle County and Water Div. 5, the Act established a single continuous proceeding for water rights adjudication which antedated the suit in District Court. United States v. District Court for Eagle County, 401 U.S., at 525, 91 S.Ct., at 1002, 28 L.Ed.2d at 282; United States v. District Court for Water Div. 5, 1 U.S., at 529, 91 S.Ct., at 1004, 28 L.Ed.2d at 285. That proceeding "reaches all claims, perhaps month by month but inclusively in the totality." Ibid. Additionally, the responsibility of managing the State's waters, to the end that they be allocated in accordance with adjudicated water rights, is given to the State Engineer.
32
Beyond the congressional policy expressed by the McCarran Amendment and consistent with furtherance of that policy, we also find significant (a) the apparent absence of any proceedings in the District Court, other than the filing of the complaint, prior to the motion to dismiss,25 (b) the extensive involvement of state water rights occasioned by this suit naming 1,000 defendants, (c) the 300-mile distance between the District Court in Denver and the court in Division 7, and (d) the existing participation by the Government in Division 4, 5, and 6 proceedings. We emphasize, however, that we do not overlook the heavy obligation to exercise jurisdiction. We need not decide, for example, whether, despite the McCarran Amendment, dismissal would be warranted if more extensive proceedings had occurred in the District Court prior to dismissal, if the involvement of state water rights were less extensive than it is here, or if the state proceeding were in some respect inadequate to resolve the federal claims. But the opposing factors here, particularly the policy underlying the McCarran Amendment, justify the District Court's dismissal in this particular case.26
33
The judgment of the Court of Appeals is reversed and the judgment of the District Court dismissing the complaint is affirmed for the reasons here stated.
34
It is so ordered.
35
Judgment of Court of Appeals reversed and judgment of District Court affirmed.
36
Mr. Justice STEWART, with whom Mr. Justice BLACKMUN and Mr. Justice STEVENS concur, dissenting.
37
The Court says that the United States District Court for the District of Colorado clearly had jurisdiction over this lawsuit. I agree.1 The Court further says that the McCarran Amendment "in no way diminished" the District Court's jurisdiction. I agree.2 The Court also says that federal courts have a "virtually unflagging obligation . . . to exercise the jurisdiction given them." I agree.3 And finally, the Court says that nothing in the abstention doctrine "in any of its forms" justified the District Court's dismissal of the Government's complaint. I agree.4 These views would seem to lead ineluctably to the conclusion that the District Court was wrong in dismissing the complaint. Yet the Court holds that the order of dismissal was "appropriate." With that conclusion I must respectfully disagree.
38
In holding that the United States shall not be allowed to proceed with its lawsuit, the Court relies principally on cases reflecting the rule that where "control of the property which is the subject of the suit (is necessary) in order to proceed with the cause and to grant the relief sought, the jurisdiction of one court must of necessity yield to that of the other." Penn General Casualty Co. v. Pennsylvania ex rel. Schnader, 294 U.S. 189, 195, 55 S.Ct. 386, 388, 79 L.Ed. 850, 855. See also Donovan v. City of Dallas, 377 U.S. 408, 84 S.Ct. 1579, 12 L.Ed.2d 409; Princess Lida v. Thompson, 305 U.S. 456, 59 S.Ct. 275, 83 L.Ed. 285; United States v. Bank of New York Co., 296 U.S. 463, 56 S.Ct. 343, 80 L.Ed. 331. But, as those cases make clear, this rule applies only when exclusive control over the subject matter is necessary to effectuate a court's judgment. 1A J. Moore, Federal Practice P 0.214 (1974). Here the federal court did not need to obtain In rem or Quasi in rem jurisdiction in order to decide the issues before it. The court was asked simply to determine as a matter of federal law whether federal reservations of water rights had occurred, and, if so, the date and scope of the reservations. The District Court could make such a determination without having control of the river.
39
The rule invoked by the Court thus does not support the conclusion that it reaches. In the Princess Lida case, for example, the reason for the surrender of federal jurisdiction over the administration of a trust was the fact that a state court had already assumed jurisdiction over the trust estate. But the Court in that case recognized that this rationale "ha(d) no application to a case in a federal court . . . wherein the plaintiff seeks merely an adjudication of his right or his interest as a basis of a claim against a fund in the possession of a state court . . . ." 305 U.S., at 466, 59 S.Ct., at 281, 83 L.Ed., at 291. The Court stressed that "(n)o question is presented in the federal court as to the right of any person to participate in the res or as to the quantum of his interest in it." Id., at 467, 59 S.Ct., at 281, 83 L.Ed., at 292. Similarly, in the Bank of New York case, supra, the Court stressed that the "object of the suits is to take the property from the depositaries and from the control of the state court, and to vest the property in the United States . . . ." 296 U.S., at 478, 56 S.Ct., at 347, 80 L.Ed., at 339. "The suits are not merely to establish a debt or a right to share in property, and thus to obtain an adjudication which might be had without disturbing the control of the state court." Ibid5 See also Markham v. Allen, 326 U.S. 490, 66 S.Ct. 296, 90 L.Ed. 256; United States v. Klein, 303 U.S. 276, 58 S.Ct. 536, 82 L.Ed. 840. See generally 1A J. Moore, Federal Practice P 0.222 (1974); 14 C. Wright, A. Miller, & E. Cooper, Federal Practice & Procedure § 3631, pp. 19-22 (1976).
40
The precedents cited by the Court thus not only fail to support the Court's decision in this case, but expressly point in the opposite direction. The present suit, in short, is not analogous to the administration of a trust, but rather to a claim of a "right to participate," since the United States in this litigation does not ask the court to control the administration of the river, but only to determine its specific rights in the flow of water in the river. This is an almost exact analogue to a suit seeking a determination of rights in the flow of income from a trust.
41
The Court's principal reason for deciding to close the doors of the federal courthouse to the United States in this case seems to stem from the view that its decision will avoid piecemeal adjudication of water rights.6 To the extent that this view is based on the special considerations governing In rem proceedings, it is without precedential basis, as the decisions discussed above demonstrate. To the extent that the Court's view is based on the realistic practicalities of this case, it is simply wrong, because the relegation of the Government to the state courts will not avoid piecemeal litigation.
42
The Colorado courts are currently engaged in two types of proceedings under the State's water-rights law. First, they are processing new claims to water based on recent appropriations. Second, they are integrating these new awards of water rights with all past decisions awarding such rights into one all-inclusive tabulation for each water source. The claims of the United States that are involved in this case have not been adjudicated in the past. Yet they do not involve recent appropriations of water. In fact, these claims are wholly dissimilar to normal state water claims, because they are not based on actual beneficial use of water but rather on an intention formed at the time the federal land use was established to reserve a certain amount of water to support the federal reservations. The state court will, therefore, have to conduct separate proceedings to determine these claims. And only after the state court adjudicates the claims will they be incorporated into the water source tabulations. If this suit were allowed to proceed in federal court the same procedures would be followed, and the federal court decree would be incorporated into the state tabulation, as other federal court decrees have been incorporated in the past. Thus, the same process will occur regardless of which forum considers these claims. Whether the virtually identical separate proceedings take place in a federal court or a state court, the adjudication of the claims will be neither more nor less "piecemeal." Essentially the same process will be followed in each instance.7
43
As the Court says, it is the virtual "unflagging obligation" of a federal court to exercise the jurisdiction that has been conferred upon it. Obedience to that obligation is particularly "appropriate" in this case, for at least two reasons.
44
First, the issues involved are issues of federal law. A federal court is more likely than a state court to be familiar with federal water law and to have had experience in interpreting the relevant federal statutes, regulations, and Indian treaties. Moreover, if tried in a federal court, these issues of federal law will be reviewable in a federal appellate court, whereas federal judicial review of the state courts' resolution of issues of federal law will be possible only on review by this Court in the exercise of its certiorari jurisdiction.
45
Second, some of the federal claims in this lawsuit relate to water reserved for Indian reservations. It is not necessary to determine that there is no state-court jurisdiction of these claims to support the proposition that a federal court is a more appropriate forum than a state court for determination of questions of life-and-death importance to Indians. This Court has long recognized that " '(t)he policy of leaving Indians free from state jurisdiction and control is deeply rooted in the Nation's history.' " McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 168, 93 S.Ct. 1257, 1260, 36 L.Ed.2d 129, 133, quoting Rice v. Olson, 324 U.S. 786, 789, 65 S.Ct. 989, 991, 89 L.Ed. 1367, 1369.
46
The Court says that "(o)nly the clearest of justifications will warrant dismissal" of a lawsuit within the jurisdiction of a federal court. In my opinion there was no justification at all for the District Court's order of dismissal in this case.
47
I would affirm the judgment of the Court of Appeals.
48
Mr. Justice STEVENS, dissenting.
49
While I join Mr. Justice STEWART's dissenting opinion, I add three brief comments:
50
First, I find the holding that the United States may not litigate a federal claim in a federal court having jurisdiction thereof particularly anomalous. I could not join such a disposition unless commanded to do so by an unambiguous statutory mandate or by some other clearly identifiable and applicable rule of law. The McCarran Amendment to the Department of Justice Appropriation Act of 1953, 66 Stat. 560, 43 U.S.C. § 666, announces no such rule.
51
Second, the Federal Government surely has no lesser right of access to the federal forum than does a private litigant, such as an Indian asserting his own claim. If this be so, today's holding will necessarily restrict the access to federal court of private plaintiffs asserting water rights claims in Colorado. This is a rather surprising byproduct of the McCarran Amendment; for there is no basis for concluding that Congress intended that Amendment to impair the private citizen's right to assert a federal claim in a federal court.
52
Third, even on the Court's assumption that this case should be decided by balancing the factors weighing for and against the exercise of federal jurisdiction, I believe we should defer to the judgment of the Court of Appeals rather than evaluate those factors in the first instance ourselves. In this case the District Court erroneously dismissed the complaint on abstention grounds and the Court of Appeals found no reason why the litigation should not go forward in a federal court. Facts such as the number of parties, the distance between the courthouse and the water in dispute, and the character of the Colorado proceedings are matters which the Court of Appeals sitting in Denver is just as able to evaluate as are we.
53
Although I agree with Parts I, II, III-A, and III-B of the opinion of the Court, I respectfully dissent from the decision to reverse the judgment of the Court of Appeals for the Tenth Circuit.
1
The McCarran Amendment (also known as, the McCarran Water Rights Suit Act), 43 U.S.C. § 666, as codified, provides in full text:
"(a) Consent is hereby given to join the United States as a defendant in any suit (1) for the adjudication of rights to the use of water of a river system or other source, or (2) for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise, and the United States is a necessary party to such suit. The United States, when a party to any such suit, shall (1) be deemed to have waived any right to plead that the State laws are inapplicable or that the United States is not amenable thereto by reason of its sovereignty, and (2) shall be subject to the judgments, orders, and decrees of the court having jurisdiction, and may obtain review thereof, in the same manner and to the same extent as a private individual under like circumstances: Provided, That no judgment for costs shall be entered against the United States in any such suit.
"(b) Summons or other process in any such suit shall be served upon the Attorney General or his designated representative.
"(c) Nothing in this Act shall be construed as authorizing the joinder of the United States in any suit or controversy in the Supreme Court of the United States involving the right of States to the use of the water of any interstate stream."
See also Infra, at 807.
Title 28 U.S.C. § 1345 provides:
"Except as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress."
2
See, E. g., Ariz.Rev.Stat.Ann. §§ 45-102 to 45-106, 45-141 to 45-154, 45-180 to 45-193, 45-231 to 45-245 (1956 and Supp. 1975); Cal.Water Code §§ 17-192, 1000-5108 (1971 and Supp. 1976); Nev.Rev.Stat. § 533.010 Et seq. (1973); N.M.Stat.Ann. §§ 75-1-1 to 75-6-3 (1968 and Supp. 1975).
3
Colo.Rev.Stat.Ann. § 37-92-101 Et seq. (1974).
4
§ 37-92-201.
5
See §§ 37-92-302 to 37-92-303.
6
§ 37-92-303.
7
§ 37-92-304.
8
§ 37-92-301.
9
Colo.Const. Art. XVI, §§ 5, 6; Colo.Rev.Stat.Ann. §§ 37-92-102 to 37-92-306 (1974); Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882).
10
See City of Colorado Springs v. Bender, 148 Colo. 458, 366 P.2d 552 (1961); City of Colorado Springs v. Yust, 126 Colo. 289, 249 P.2d 151 (1952).
11
Jurisdiction in the specific District Court suit was based on 28 U.S.C. § 1345. See United States v. Fallbrook Public Util. Dist., 101 F.Supp. 298 (S.D.Cal.1951).
12
H.R. 7691, 82d Cong., 2d Sess. (1952); H.R. 5735, 82d Cong., 1st Sess. (1951); H.R. 5368, 82d Cong., 1st Sess. (1951).
13
S.Rep.No.755, 82d Cong., 1st Sess., 2 (1951).
14
Id., at 9.
15
The District Court also would have had jurisdiction of this suit under the general federal-question jurisdiction of 28 U.S.C. § 1331. For the same reasons, the McCarran Amendment did not affect jurisdiction under § 1331 either.
16
S.Rep.No.755, Supra, at 4-5.
17
Indeed, if exclusion of Indian rights were the conclusion, conflicts between Indian and non-Indian rights, as well as practical matters of adjudication, might have the effect of requiring district-court adjudication of non-Indian along with Indian rights, thereby effectively vitiating our construction of the Amendment in Eagle County and Water Div. 5.
18
See Hearings on S. 18 before the Subcommittee of the Senate Committee on the Judiciary, 82d Cong., 1st Sess., 6-7, 67-68 (1951).
19
S.Rep.No.755, Supra, at 2, 7-8.
20
To be sure, 25 U.S.C. § 1322(b) and 28 U.S.C. § 1360(b) provide that nothing in those sections "shall confer jurisdiction upon the State to adjudicate, in probate proceedings or otherwise, the ownership or right to possession of (any real or personal property, including water rights, belonging to any Indian or any Indian tribe . . . that is held in trust by the United States)." This provision in both sections, however, only qualifies the import of the general consent to state jurisdiction given by those sections. It does not purport to limit the special consent to jurisdiction given by the McCarran Amendment. A contrary conclusion is foreclosed by the principle of construction that "(w)here there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment." Morton v. Mancari, 417 U.S. 535, 550-551, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290, 301 (1974).
21
We note that Burford v. Sun Oil Co., and Alabama Pub. Serv. Comm'n v. Southern R. Co., differ from Louisiana Power & Light Co. v. City of Thibodaux, and County of Allegheny v. Frank Mashuda Co., in that the former two cases, unlike the latter two, raised colorable constitutional claims and were therefore brought under federal-question, as well as diversity jurisdiction. While abstention in Burford and Alabama Public Service had the effect of avoiding a federal constitutional issue, the opinions indicate that this was not an additional ground for abstention in those cases. See Alabama Pub. Serv. Comm'n v. Southern R. Co., 341 U.S., at 344, 71 S.Ct., at 765, 95 L.Ed., at 1006; Burford v. Sun Oil Co., 319 U.S., at 334, 63 S.Ct., at 1107, 87 L.Ed., at 1435; H. Hart & H. Wechsler, The Federal Courts and the Federal System 1005 (2d ed. 1973) ("The two groups of cases share at least one common characteristic: the Pullman purpose of avoiding the necessity for federal constitutional adjudication is not relevant"). We have held, of course, that the opportunity to avoid decision of a constitutional question does not alone justify abstention by a federal court. See Harman v. Forssenius, 380 U.S. 528, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965); Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964). Indeed, the presence of a federal basis for jurisdiction may raise the level of justification needed for abstention. See Burford v. Sun Oil Co., supra, 319 U.S., at 318 n. 5, 63 S.Ct., at 1099, 87 L.Ed., at 1426; Hawks v. Hamill, 288 U.S., at 61, 53 S.Ct., at 243, 77 L.Ed., at 618.
22
Where a case is properly within this category of cases, there is no discretion to grant injunctive relief. See Younger v. Harris. But cf. Samuels v. Mackell, 401 U.S. 66, 73, 91 S.Ct. 764, 768, 27 L.Ed.2d 688, 693 (1971).
23
Our reasons for finding abstention inappropriate in this case make it unnecessary to consider when, if at all, abstention would be appropriate where the Federal Government seeks to invoke federal jurisdiction. Cf. Leiter Minerals, Inc. v. United States, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267 (1957).
24
See Brief for United States 46-49.
25
As we have observed, the complaint was filed in District Court on November 14, 1972. The Federal Government was served in the state proceedings on January 3, 1973. Shortly thereafter, on February 13, 1973, a motion to dismiss was filed in District Court. Up to this point, it does not appear the District Court dealt in any other manner with the suit pending before it.
26
Whether similar considerations would permit dismissal of a water suit brought by a private party in federal district court is a question we need not now decide.
1
"Except as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States . . . ." 28 U.S.C. § 1345.
2
Nothing in the McCarran Amendment or in its legislative history can be read as limiting the jurisdiction of the federal courts. That law operates as no more than a Pro tanto waiver of sovereign immunity. United States v. District Court for Eagle County, 401 U.S. 520, 91 S.Ct. 998, 28 L.Ed.2d 278; United States v. District Court for Water Div. 5, 401 U.S. 527, 91 S.Ct. 1003, 28 L.Ed.2d 284.
3
See England v. Medical Examiners, 375 U.S. 411, 415-416, 84 S.Ct. 461, 464-465, 11 L.Ed.2d 440, 444-445; Meredith v. Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9.
4
See Ante, at 813-817.
5
Donovan v. City of Dallas, 377 U.S. 408, 84 S.Ct. 1579, 12 L.Ed.2d 409, has relevance only insofar as the Court's opinion there contained a brief summary of the discussion in the Princess Lida case.
6
The Court lists four other policy reasons for the "appropriateness" of the District Court's dismissal of this lawsuit. All of those reasons are insubstantial. First, the fact that no significant proceedings had yet taken place in the federal court at the time of the dismissal means no more than that the federal court was prompt in granting the defendants' motion to dismiss. At that time, of course, no proceedings involving the Government's claims had taken place in the state court either. Second, the geographic distance of the federal court from the rivers in question is hardly a significant factor in this age of rapid and easy transportation. Since the basic issues here involve the determination of the amount of water the Government intended to reserve rather than the amount it actually appropriated on a given date, there is little likelihood that live testimony by water district residents would be necessary. In any event, the Federal District Court in Colorado is authorized to sit at Durango, the headquarters of Water Division 7. 28 U.S.C. § 85. Third, the Government's willingness to participate in some of the state proceedings certainly does not mean that it had no right to bring this action, unless the Court has today unearthed a new kind of waiver. Finally, the fact that there were many defendants in the federal suit is hardly relevant. It only indicates that the federal court had all the necessary parties before it in order to issue a decree finally settling the Government's claims. Indeed, the presence of all interested parties in the federal court made the lawsuit the kind of unified proceeding envisioned by Pacific Live Stock Co. v. Lewis, 241 U.S. 440, 447-449, 36 S.Ct. 637, 640-641, 60 L.Ed. 1084, 1096.
7
It is true, as the Court notes, that the relationship among water rights is interdependent. When water levels in a river are low, junior appropriators may not be able to take any water from the river. The Court is mistaken, however, in suggesting that the determination of a priority is related to the determination of other priorities. When a priority is established, the holder's right to take a certain amount of water and the seniority (date) of his priority is established. That determination does not affect and is not affected by the establishment of other priorities.
| 89
|
425 U.S. 73
96 S.Ct. 1208
47 L.Ed.2d 587
Hugh L. CAREY, Governor of the State of New York, et al., Appellants,v.Bert Randolph SUGAR and Wrestling Revue, Inc. CURTIS CIRCULATION COMPANY and Continental Casualty Company, Appellants, v. Bert Randolph SUGAR and Wrestling Revue, Inc.
Nos. 74-858, 74-859.
March 24, 1976.
PER CURIAM.
1
This is an appeal from the judgment of a three-judge federal court declaring unconstitutional and enjoining the enforcement of certain statutes of the State of New York which provide for prejudgment attachment of a defendant's assets. On April 13, 1973, appellant Curtis Circulation Co. (Curtis) filed a suit against appellees Sugar and Wrestling Revue, Inc. (Wrestling), and Champion Sports Publications, Inc. (Champion), in a New York state court. The complaint alleged that Curtis had advanced over $100,000 of which $28,588.08 remained unpaid to Champion under a contract with Champion pursuant to which Champion had agreed to permit Curtis to market certain identified sports magazines. It further alleged that Sugar, who owned and operated Champion, had caused title to the magazines to be transferred to Wrestling, another company owned and operated by Sugar, and had caused Wrestling to transfer the magazines to National Sports Publishing Corp. (National), a corporation not controlled by Sugar, for sale to the public. The consequence was that Champion had been stripped of its assets and that the magazines out of the sales of which Curtis was to recoup its advance to Champion had been sold instead by National. The complaint, containing several counts alleging fraud on the part of each defendant, sought a judgment for the $28,588.08 of Curtis' advances which remained unrepaid.
2
At the same time, Curtis sought to attach the debt owed by National to Wrestling for the magazines which National had sold and for which it had not yet paid Wrestling. New York Civil Practice Laws and Rules (CPLR) § 6201 (Supp. 1975-1976)1 provides for attachment on various grounds. The order of attachment may be granted in favor of a plaintiff by a judge, upon Ex parte motion at any time before judgment, § 6211; and must be supported "by affidavit and such other written evidence as may be submitted, (showing) that there is a cause of action and the one or more grounds for attachment . . . that exist and the amount demanded from the defendant above all counterclaims known to the plaintiff." § 6212(a). In addition, the plaintiff will be ordered by the judge to give an undertaking in an amount fixed by the court out of which the defendant will be paid legal costs and damages resulting from the attachment if the defendant prevails in the underlying lawsuit. § 6212(b).
3
Pursuant to these procedures, Curtis filed a detailed affidavit alleging that it had a cause of action against appellees and Champion for fraud justifying a recovery of $28,588.08, and seeking an order of attachment under CPLR §§ 6201(4), (5), and (8) (Supp. 1975-1976).
4
On April 13, 1973, New York Supreme Court Justice Fine granted the motion conditioned on Curtis' providing a $10,000 undertaking, $8,570 of which was for the purpose of holding the defendants harmless should they prevail in the underlying suit. The undertaking was provided by Curtis and the order of attachment issued. The sheriff then levied on the debt owed by National to Wrestling, and money in the total amount of $24,324.17 was paid to the sheriff by National in April and May 1973, and in April, June, and July 1974.
5
Under CPLR, a defendant may discharge an attachment by giving an undertaking in an amount equal to the value of the property attached, § 6222, or by successfully moving to vacate the attachment under § 6223. That section provides:
6
"Prior to the application of property or debt to the satisfaction of a judgment, the defendant, the garnishee or any person having an interest in the property or debt may move, on notice to each party and the sheriff, for an order vacating or modifying the order of attachment. Upon the motion, the court shall give the plaintiff a reasonable opportunity to correct any defect. If, after the defendant has appeared in the action, the court determines that the attachment is unnecessary to the security of the plaintiff, it shall vacate the order of attachment. Such a motion shall not of itself constitute an appearance in the action."
7
Appellees neither gave an undertaking nor moved to vacate the attachment under § 6223. Instead they waited nine months until January 1974, and filed the instant action under 42 U.S.C. § 1983 in the United States District Court for the Southern District of New York naming as defendants the sheriff, Judge Fine, the Attorney General, the Governor of New York, and the plaintiffs in the state action. Alleging that the temporary loss, pending decision on the merits of the underlying complaint, of the money owed them by National was injuring them irreparably, they sought a declaration that the attachment provisions of CPLR were unconstitutional, an order enjoining their further enforcement, and an order directing that the attachment of National's debt to Wrestling be vacated. Appellees asked that a three-judge court be convened under 28 U.S.C. §§ 2281 and 2284.
8
On June 17, 1974, the single-judge court rejected appellants' claim that it should abstain from deciding the constitutional issue, and a three-judge court was convened. On November 6, 1974, the three-judge court granted the requested relief "until and unless a meaningful opportunity to vacate an attachment is provided under CPLR (s) 6223 or by the (c)ourts of the State of New York." The judgment was stayed, however, pending appeal to this Court.
9
As we understand it, the District Court found the New York prejudgment attachment provisions unconstitutional because it concluded that the opportunity to vacate the attachment provided by CPLR § 6223 was inadequate, under this Court's cases, to justify the property deprivation involved. In its view, the hearing available on a motion to vacate the attachment was inadequate principally because the hearing would only be concerned with the question whether the "attachment is unnecessary to the security of the plaintiff," § 6223, and would not require the plaintiff to litigate the question of the likelihood that it would ultimately prevail on the merits.2
10
It may be that the three-judge District Court below was correct in its "forecast," see Railroad Comm'n v. Pullman Co., 312 U.S. 496, 499, 61 S.Ct. 643, 644, 85 L.Ed. 971, 974 (1941), that even in light of recent cases in this Court, see, E. g., North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975); Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), the New York courts will construe CPLR § 6223 to preclude an adequate preliminary inquiry into the merits of a plaintiff's underlying claim. Cf. Boehning v. Indiana Employees Assn., 423 U.S. 6, 7-8, , 96 S.Ct. 168, 46 L.Ed.2d 148 (1975). On the other hand, as the order of the three-judge court itself recognized, the New York courts could conclude otherwise. The New York Court of Appeals has already held that an attachment may be vacated if it "clearly" appears "that the plaintiffs must ultimately fail" on the merits. Wulfsohn v. Russian Socialist Federated Soviet Republic, 234 N.Y. 372, 377, 138 N.E. 24, 26 (1923). See also Maitrejean v. Levon Properties, 45 A.D.2d 1020, 358 N.Y.S.2d 203 (1974); Richman v. Richman, 41 A.D.2d 993, 344 N.Y.S.2d 52 (1973); Martin Enterprises, Inc. v. M. S. Kaplan Co., 45 A.D.2d 883, 358 N.Y.S.2d 160 (1974). The precise nature of any inquiry into the merits which will be made by the New York courts under this rubric is unclear, but an inquiry consistent with the constitutional standard is by no means automatically precluded. Indeed, two New York trial courts have expressly held, subsequent to the decision below, that where fact issues are raised, on a motion to vacate an attachment, with respect to the merits of the underlying claim, a preliminary hearing will be held on those issues. Regnell v. Page, 82 Misc.2d 506, 369 N.Y.S.2d 936 (1975); New York Auction Co. v. Belt, 81 Misc.2d 1032, 368 N.Y.S.2d 98 (1975).
11
Under these circumstances, it would be unwise for this Court to address the constitutionality of the New York attachment statutes, for decision on that issue may be rendered unnecessary by a decision of the New York courts as a matter of state law. City of Meridian v. Southern Bell Tel. & Tel. Co., 358 U.S. 639, 640, 79 S.Ct. 455, 456, 3 L.Ed.2d 562, 563 (1959); Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970); Harman v. Forssenius, 380 U.S. 528, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965); Fornaris v. Ridge Tool Co., 400 U.S. 41, 91 S.Ct. 156, 27 L.Ed.2d 174 (1970); Railroad Comm'n v. Pullman Co., supra. The court below has declared unconstitutional the statute of a State the continued utilization of which is undoubtedly of importance to that State. If the State construes its statute so as to remove any constitutional problems, friction with the State will have been avoided. Railroad Comm'n v. Pullman Co., 312 U.S., at 500-501, 61 S.Ct. at 645-646, 85 L.Ed. at 974-975. Finally, injunctive relief against the state officials who were defendants below appears particularly inappropriate in light of the fact that these officials contended below and continue to contend here that New York law does provide an opportunity for a preliminary hearing on the merits of a plaintiff's underlying claim.
12
Accordingly, we vacate the judgment below and remand these cases to the three-judge court and direct it to abstain from a decision of the federal constitutional issues until the parties have had an opportunity to obtain a construction of New York law from the New York state courts.
13
So ordered.
14
Vacated and remanded with directions.
1
"An order of attachment may be granted in any action, except a matrimonial action, where the plaintiff has demanded and would be entitled, in whole or in part, or in the alternative, to a money judgment against one or more defendants, when:
"4. the defendant, with intent to defraud his creditors, has assigned, disposed of or secreted property, or removed it from the state or is about to do any of these acts; or
"5. the defendant, in an action upon a contract, express or implied, has been guilty of a fraud in contracting or incurring the liability; or
"8. there is a cause of action to recover damages for the conversion of personal property, or for fraud or deceit."
2
The court also concluded that the burden of proof at the hearing would be on the defendant, and noted that the plaintiff, unlike the plaintiff in Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), had no special property interest in the property attached.
| 89
|
425 U.S. 185
96 S.Ct. 1375
47 L.Ed.2d 668
ERNST & ERNST, Petitioner,v.Olga HOCHFELDER et al.
No. 74-1042.
Argued Dec. 3, 1975.
Decided March 30, 1976.
Rehearing Denied May 19, 1976.
See 425 U.S. 986, 96 S.Ct. 2194.
Syllabus
Petitioner accounting firm was retained to audit periodically a brokerage firm's books and records. Respondents, who were customers of the brokerage firm, invested in a securities scheme ultimately revealed as fraudulent and perpetrated by the firm's president and principal stockholder. After the fraud came to light, respondents filed an action for damages against petitioner under § 10(b) of the Securities Exchange Act of 1934 (1934 Act), which makes it unlawful to use or employ "any manipulative or deceptive device or contrivance" in contravention of Securities and Exchange Commission (SEC) rules. It was alleged that the brokerage firm president's scheme violated § 10(b) and SEC Rule 10b-5, and that petitioner had "aided and abetted" the violations by its "failure" to conduct proper audits of the firm, thereby failing to discover internal practices that prevented an effective audit. The District Court granted petitioner's motion for summary judgment and dismissed the action, holding that whether or not a cause of action could be based merely on allegations of negligence, there was no genuine issue of material fact as to whether petitioner had conducted its audits in accordance with generally accepted standards. The Court of Appeals reversed and remanded, holding that one who breaches a duty of inquiry and disclosure owed another is liable in damages for aiding and abetting a third party's violation of Rule 10b-5 if the fraud would have been discovered or prevented but for the breach, and that there were genuine issues of fact as to whether petitioner committed such a breach and whether inquiry and disclosure would have led to discovery or prevention of the president's fraud. Held :
1. A private cause of action for damages will not lie under § 10(b) and Rule 10b-5 in the absence of any allegation of "scienter," I. e., intent to deceive, manipulate, or defraud on the defendant's part. Pp. 194-214.
(a) The use of the words "manipulative," "device," and "contrivance" in § 10(b) clearly shows that it was intended to proscribe a type of conduct quite different from negligence, and more particularly the use of the word "manipulative," virtualla term of art used in connection with securities markets, connotes intentional or willful conduct designed to deceive or defraud investors by controlling or artificially affecting the price of securities. Pp. 197-201.
(b) The 1934 Act's legislative history also indicates that § 10(b) was addressed to practices involving some element of scienter and cannot be read to impose liability for negligent conduct alone. Pp. 201-206.
(c) The structure of the 1934 Act and the interrelated Securities Act of 1933 (1933 Act) does not support the contention that since § 10(b), in contrast to certain other sections of these Acts, is not by its terms explicitly restricted to willful, knowing, or purposeful conduct, it should not be construed to require more than negligent action or inaction as a precondition for civil liability. In each instance that Congress in these Acts created express civil liability in favor of purchasers or sellers of securities it clearly specified whether recovery was to be premised on knowing or intentional conduct, negligence, or entirely innocent mistake. The express recognition of a cause of action premised on negligent behavior in § 11, for example, stands in sharp contrast to the language of § 10(b). Moreover, each of the express civil remedies in the 1933 Act allowing recovery for negligent conduct is subject to significant procedural restrictions indicating that the judicially created private damages remedy under § 10(b) which has no comparable restrictions cannot be extended, consistently with Congress' intent, to actions premised on negligence, since to do so would allow causes of action under these express 1933 Act remedies to be brought instead under § 10(b), thereby nullifying the effectiveness of such restrictions on those remedies. Pp. 206-211.
(d) While there is language in Rule 10b-5 that could arguably be read as proscribing any type of material misstatement or omission and any course of conduct that has the effect of defrauding investors, whether the wrongdoing was intentional or not, such a reading does not comport with the Rule's administrative history which makes it clear that it was intended to apply only to activities involving scienter. More importantly, the scope of Rule 10b-5 cannot exceed the power granted the SEC under § 10(b), whose language and history compel interpreting the Rule to apply only to intentional wrongdoing. Pp. 212-214.
2. The case will not be remanded for further proceedings to require proof of more than negligent misfeasance by petitioner, since throughout the history of the case respondents have proceeded on a theory of liability premised on negligence, in fact specifically disclaiming that petitioner had engaged in fraud or intentional misconduct. P. 215.
503 F.2d 1100, reversed.
Robert L. Berner, Jr., Chicago, Ill., for petitioner.
Willard L. King, Chicago, Ill., for respondents Hochfelder and others.
Willard J. Lassers, Chicago, Ill., for respondents Allison and others.
Paul Gonson, Washington, D. C., for the Securities and Exchange Commission as, Amicus curiae, by special leave of Court.
Mr. Justice POWELL delivered the opinion of the Court.
1
The issue in this case is whether an action for civil damages may lie under § 10(b) of the Securities Exchange Act of 1934 (1934 Act), 48 Stat. 891, 15 U.S.C. s 78j(b), and Securities and Exchange Commission Rule 10b-5, 17 CFR § 240.10b-5 (1975), in the absence of an allegation of intent to deceive, manipulate, or defraud on the part of the defendant.
2
* Petitioner, Ernst & Ernst, is an accounting firm. From 1946 through 1967 it was retained by First Securities Company of Chicago (First Securities), a small brokerage firm and member of the Midwest Stock Exchange and of the National Association of Securities Dealers, to perform periodic audits of the firm's books and records. In connection with these audits Ernst & Ernst prepared for filing with the Securities and Exchange Commission (Commission) the annual reports required of First Securities under § 17(a) of the 1934 Act, 15 U.S.C. § 78q(a).1 It also prepared for First Securities responses to the financial questionnaires of the Midwest Stock Exchange (Exchange).
3
Respondents were customers of First Securities who invested in a fraudulent securities scheme perpetrated by Leston B. Nay, president of the firm and owner of 92% Of its stock. Nay induced the respondents to invest funds in "escrow" accounts that he represented would yield a high rate of return. Respondents did so from 1942 through 1966, with the majority of the transactions occurring in the 1950's. In fact, there were no escrow accounts as Nay converted respondents' funds to his own use immediately upon receipt. These transactions were not in the customary form of dealings between First Securities and its customers. The respondents drew their personal checks payable to Nay or a designated bank for his account. No such escrow accounts were reflected on the books and records of First Securities, and none was shown on its periodic accounting to respondents in connection with their other investments. Nor were they included in First Securities' filings with the Commission or the Exchange.
4
This fraud came to light in 1968 when Nay committed suicide, leaving a note that described First Securities as bankrupt and the escrow accounts as "spurious." Respondents subsequently filed this action2 for damages against Ernst & Ernst3 in the United States District Court for the Northern District of Illinois under s 10(b) of the 1934 Act. The complaint charged that Nay's escrow scheme violated § 10(b) and Commission Rule 10b-5,4 and that Ernst & Ernst had "aided and abetted" Nay's violations by its "failure" to conduct proper audits of First Securities. As revealed through discovery, respondents' cause of action rested on a theory of negligent nonfeasance. The premise was that Ernst & Ernst had failed to utilize "appropriate auditing procedures" in its audits of First Securities, thereby failing to discover internal practices of the firm said to prevent an effective audit. The practice principally relied on was Nay's rule that only he could open mail addressed to him at First Securities or addressed to First Securities to his attention, even if it arrived in his absence. Respondents contended that if Ernst & Ernst had conducted a proper audit, it would have discovered this "mail rule." The existence of the rule then would have been disclosed in reports to the Exchange and to the Commission by Ernst & Ernst as an irregular procedure that prevented an effective audit. This would have led to an investigation of Nay that would have revealed the fraudulent scheme. Respondents specifically disclaimed the existence of fraud or intentional misconduct on the part of Ernst & Ernst.5
5
After extensive discovery the District Court granted Ernst & Ernst's motion for summary judgment and dismissed the action. The court rejected Ernst & Ernst's contention that a cause of action for aiding and abetting a securities fraud could not be maintained under s10(b) and Rule 10b-5 merely on allegations of negligence. It concluded, however that there was no genuine issue of material fact with respect to whether Ernst & Ernst had conducted its audits in accordance with generally accepted auditing standards.6
6
The Court of Appeals for the Seventh Circuit reversed and remanded, holding that one who breaches a duty of inquiry and disclosure owed another is liable in damages for aiding and abetting a third party's violation of Rule 10b-5 if the fraud would have been discovered or prevented but for the breach. 503 F.2d 1100 (1974).7 The court reasoned that Ernst & Ernst had a common-law and statutory duty of inquiry into the adequacy of First Securities' internal control system because it had contracted to audit First Securities and to prepare for filing with the Commission the annual report of First Securities' financial condition required under § 17 of the 1934 Act and Rule 17a-5.8 The court further reasoned that respondents were beneficiaries of the statutory duty to inquire9 and the related duty to disclose any material irregularities that were discovered. 503 F.2d, at 1105-1111. The court concluded that there were genuine issues of fact as to whether Ernst & Ernst's failure to discover and comment upon Nay's mail rule10 constituted a breach of its duties of inquiry and disclosure, Id., at 1111, and whether inquiry and disclosure would have led to the discovery or prevention of Nay's fraud. Id., at 1115.11
7
We granted certiorari to resolve the question whether a private cause of action for damages will lie under § 10(b) and Rule 10b-5 in the absence of any allegation of "scienter" intent to deceive, manipulate, or defraud.12 421 U.S. 909, 95 S.Ct. 1557, 43 L.Ed.2d 773 (1975). We conclude that it will not and therefore we reverse.13
II
8
Federal regulation of transactions in securities emerged as part of the aftermath of the market crash in 1929. The Securities Act of 1933 (1933 Act), 48 Stat. 74, as amended, 15 U.S.C. § 77a et seq., was designed to provide investors with full disclosure of material information concerning public offerings of securities in commerce, to protect investors against fraud and, through the imposition of specified civil liabilities, to promote ethical standards of honesty and fair dealing. See H.R.Rep.No.85, 73d Cong., 1st Sess., 1-5 (1933). The 1934 Act was intended principally to protect investors against manipulation of stock prices through regulation of transactions upon securities exchanges and in over-the-counter markets, and to impose regular reporting requirements on companies whose stock is listed on national securities exchanges. See S.Rep.No.792, 73d Cong., 2d Sess., 1-5 (1934). Although the Acts contain numerous carefully drawn express civil remedies and criminal penalties, Congress recognized that efficient regulation of securities trading could not be accomplished under a rigid statutory program. As part of the 1934 Act Congress created the Commission, which is provided with an arsenal of flexible enforcement powers. See, E. g., 1933 Act §§ 8, 19, 20, 15 U.S.C. §§ 77h, 77s, 77t; 1934 Act §§ 9, 19, 21, 15 U.S.C. §§ 78i, 78s, 78u.
9
Section 10 of the 1934 Act makes it "unlawful for any person . . . (b) (t)o use or employ, in connection with the purchase or sale of any security . . . any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors." 15 U.S.C. § 78j. In 1942, acting pursuant to the power conferred by § 10(b), the Commission promulgated Rule 10b-5, which now provides:
10
"Employment of manipulative and deceptive devices.
11
'It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange,
12
"(a) To employ any device, scheme, or artifice to defraud,
13
"(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
14
"(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person,
15
"in connection with the purchase or sale of any security."
16
Although § 10(b) does not by its terms create an express civil remedy for its violation, and there is no indication that Congress,14 or the Commission when adopting Rule 10b-5,15 contemplated such a remedy, the existence of a private cause of action for violations of the statute and the Rule is now well established. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 730, 95 S.Ct. 1917, 1922, 44 L.Ed.2d 539, 546 (1975); Affiliated Ute Citizens v. United States, 406 U.S. 128, 150-154, 92 S.Ct. 1456, 1470-1472, 31 L.Ed.2d 741, 759-761 (1972); Superintendent of Insurance v. Bankers Life & Cas. Co., 404 U.S. 6, 13, n. 9, 92 S.Ct. 165, 169, 30 L.Ed.2d 128, 134 (1971). During the 30-year period since a private cause of action was first implied under § 10(b) and Rule 10b-5,16 a substantial body of case law and commentary has developed as to its elements. Courts and commentators long have differed with regard to whether scienter is a necessary element of such a cause of action, or whether negligent conduct alone is sufficient.17 In addressing this question, we turn first to the language of § 10(b), for "(t)he starting point in every case involving construction of a statute is the language itself." Blue Chip Stamps, supra, at 756, 95 S.Ct. at 1935, 44 L.Ed.2d at 561 (Powell, J., concurring); see FTC v. Bunte Bros., Inc., 312 U.S. 349, 350, 61 S.Ct. 580, 581, 85 L.Ed. 881, 883 (1941).
17
Section 10(b) makes unlawful the use or employment of "any manipulative or deceptive device or contrivance" in contravention of Commission rules. The words "manipulative or deceptive" used in conjunction with "device or contrivance" strongly suggest that § 10(b) was intended to proscribe knowing or intentional misconduct. See SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 868 (CA2 1968) (Friendly, J., concurring), cert. denied Sub nom. Coates v. SEC, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969); Loss, Summary Remarks, 30 Bus. Law. 163, 165 (Special Issue 1975). See also Kohn v. American Metal Climax, Inc., 458 F.2d 255, 280 (CA3 1972) (Adams, J., concurring and dissenting).
18
In its Amicus curiae brief, however, the Commission contends that nothing in the language "manipulative or deceptive device or contrivance" limits its operation to knowing or intentional practices.18 In support of its view, the Commission cites the overall congressional purpose in the 1933 and 1934 Acts to protect investors against false and deceptive practices that might injure them. See Affiliated Ute Citizens v. United States, supra, at 151, 92 S.Ct. at 1470, 31 L.Ed.2d at 760; Superintendent of Insurance v. Bankers Life & Cas. Co., supra, 404 U.S., at 11-12, 92 S.Ct. at 168, 30 L.Ed.2d at 134; J. I. Case Co. v. Borak, 377 U.S. 426, 432-433, 84 S.Ct. 1555, 1559-1560, 12 L.Ed.2d 423, 427-428 (1964). See also SEC v. Capital Gains Res. Bur., 375 U.S. 180, 195, 84 S.Ct. 275, 284, 11 L.Ed.2d 237, 248 (1963). The Commission then reasons that since the "effect" upon investors of given conduct is the same regardless of whether the conduct is negligent or intentional, Congress must have intended to bar all such practices and not just those done knowingly or intentionally. The logic of this effect-oriented approach would impose liability for wholly faultless conduct where such conduct results in harm to investors, a result the Commission would be unlikely to support. But apart from where its logic might lead, the Commission would add a gloss to the operative language of the statute quite different from its commonly accepted meaning. See, e. g., Addison v. Holly Hill Fruit Products, Inc., 322 U.S. 607, 617-618, 64 S.Ct. 1215, 1221, 88 L.Ed. 1488, 1496 (1944).19 The argument simply ignores the use of the words "manipulative," "device," and "contrivance" terms that make unmistakable a congressional intent to proscribe a type of conduct quite different from negligence.20 Use of the word "manipulative" is especially significant. It is and was virtually a term of art when used in connection with securities markets. It connotes intentional or willful conduct designed to deceive or defraud investors by controlling or artificially affecting the price of securities.21
19
In addition to relying upon the Commission's argument with respect to the operative language of the statute, respondents contend that since we are dealing with "remedial legislation," Tcherepnin v. Knight, 3 U.S. 332, 336, 88 S.Ct. 548, 553, 19 L.Ed.2d 564, 569 (1967), it must be construed " 'not technically and restrictively, but flexibly to effectuate its remedial purposes.' " Affiliated Ute Citizens v. United States, 406 U.S., at 151, 92 S.Ct., at 1470, 31 L.Ed.2d, at 760 quoting SEC v. Capital Gains Research Bureau, supra, 375 U.S., at 195, 84 S.Ct., at 285, 11 L.Ed.2d, at 248. They argue that the "remedial purposes" of the Acts demand a construction of § 10(b) that embraces negligence as a standard of liability. But in seeking to accomplish its broad remedial goals, Congress did not adopt uniformly a negligence standard even as to express civil remedies. In some circumstances and with respect to certain classes of defendants, Congress did create express liability predicated upon a failure to exercise reasonable care. E. g., 1933 Act § 11(b)(3)(B), 48 Stat. 82, as amended, 15 U.S.C. § 77k(b)(3)(B) (liability of "experts," such as accountants for misleading statements in portions of registration statements for which they are responsible).22 But in other situations good faith is an absolute defense. 1934 Act § 18, 48 Stat. 897, as amended, 15 U.S.C. § 78r (misleading statements in any document filed pursuant to the 1934 Act). And in still other circumstances Congress created express liability regardless of the defendant's fault, 1933 Act § 11(a), 15 U.S.C. § 77k(a) (issuer liability for misleading statements in the registration statement).
20
It is thus evident that Congress fashioned standards of fault in the express civil remedies in the 1933 and 1934 Acts on a particularized basis. Ascertainment of congressional intent with respect to the standard of liability created by a particular section of the Acts must therefore rest primarily on the language of that section. Where, as here, we deal with a judicially implied liability, the statutory language certainly is no less important. In view of the language of § 10(b), which so clearly connotes intentional misconduct, and mindful that the language of a statute controls when sufficiently clear in its context, United States v. Oregon, 366 U.S. 643, 648, 81 S.Ct. 1278, 1280, 6 L.Ed.2d 575, 579 (1961); Packard Motor Car Co. v. NLRB, 330 U.S. 485, 492, 67 S.Ct. 789, 793, 91 L.Ed. 1040, 1050 (1947), further inquiry may be unnecessary We turn now, nevertheless, to the legislative history of the 1934 Act to ascertain whether there is support for the meaning attributed to § 10(b) by the Commission and respondents.
B
21
Although the extensive legislative history of the 1934 Act is bereft of any explicit explanation of Congress' intent, we think the relevant portions of that history support our conclusion that § 10(b) was addressed to practices that involve some element of scienter and cannot be read to impose liability for negligent conduct alone.
22
The original version of what would develop into the 1934 Act was contained in identical bills introduced by Senator Fletcher and Representative Rayburn. S. 2693, 73d Cong., 2d Sess. (1934); H.R. 7852, 73d Cong., 2d Sess. (1934). Section 9(c) of the bills, from which present § 10(b) evolved, proscribed as unlawful the use of "any device or contrivance which, or any device or contrivance in a way or manner which the Commission may by its rules and regulations find detrimental to the public interest or to the proper protection of investors." The other subsections of proposed § 9 listed specific practices that Congress empowered the Commission to regulate through its rulemaking power. See §§ 9(a) (short sale), (b) ("stop-loss order"). Soon after the hearings on the House bill were held, a substitute bill was introduced in both Houses which abbreviated and modified s 9(c)'s operative language to read "any manipulative device or contrivance." H.R. 8720, 73d Cong., 2d Sess., § 9(c) (1934); see S. 3420, 73d Cong., 2d Sess., § 10(b) (1934). Still a third bill, retaining the Commission's power to regulate the specific practices enumerated in the prior bills, and omitting all reference to the Commission's authority to prescribe rules concerning manipulative or deceptive devices in general, was introduced and passed in the House. H.R. 9323, 73d Cong., 2d Sess., § 9 (1934). The final language of § 10 is a modified version of a Senate amendment to this last House bill. See H.R.Conf.Rep.No.1838, 73d Cong., 2d Sess., 32-33 (1934).
23
Neither the intended scope of § 10(b) nor the reasons for the changes in its operative language are revealed explicitly in the legislative history of the 1934 Act, which deals primarily with other aspects of the legislation. There is no indication, however, that § 10(b) was intended to proscribe conduct not involving scienter. The extensive hearings that preceded passage of the 1934 Act touched only briefly on § 10, and most of the discussion was devoted to the enumerated devices that the Commission is empowered to proscribe under § 10(a). The most relevant exposition of the provision that was to become § 10(b) was by Thomas G. Corcoran, a spokesman for the drafters. Corcoran indicated:
24
"Subsection (c) (§ 9(c) of H.R. 7852 later § 10(b)) says, 'Thou shalt not devise any other cunning devices.'
25
"Of course subsection (c) is a catch-all clause to prevent manipulative devices. I do not think there is any objection to that kind of clause. The Commission should have the authority to deal with new manipulative devices." Hearings on H.R. 7852 and H.R. 8720 before the House Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess., 115 (1934).
26
This brief explanation of § 10(b) by a spokesman for its drafters is significant. The section was described rightly as a "catchall" clause to enable the Commission "to deal with new manipulative (or cunning) devices." It is difficult to believe that any lawyer, legislative draftsman, or legislator would use these words if the intent was to create liability for merely negligent acts or omissions.23 Neither the legislative history nor the briefs supporting respondents identify any usage or authority for construing "manipulative (or cunning) devices" to include negligence.24
27
The legislative reports do not address the scope of § 10(b) or its catchall function directly. In considering specific manipulative practices left to Commission regulation, however, the reports indicate that liability would not attach absent scienter, supporting the conclusion that Congress intended no lesser standard under § 10(b). The Senate Report of S. 3420 discusses generally the various abuses that precipitated the need for the legislation and the inadequacy of self-regulation by the stock exchanges. The Report then analyzes the component provisions of the statute, but does not parse § 10. The only specific reference to § 10 is the following:
28
"In addition to the discretionary and elastic powers conferred on the administrative authority, effective regulation must include several clear statutory provisions reinforced by penal and civil sanctions, aimed at those manipulative and deceptive practices which have been demonstrated to fulfill no useful function. These sanctions are found in sections 9, 10 and 16." S.Rep.No.792, 73d Cong., 2d Sess., 6 (1934).
29
In the portion of the general-analysis section of the Report entitled Manipulative Practices, however, there is a discussion of specific practices that were considered so inimical to the public interest as to require express prohibition such as "wash" sales and "matched" orders,25 and of other practices that might in some cases serve legitimate purposes, such as stabilization of security prices and grants of options. Id., at 7-9. These latter practices were left to regulation by the Commission. 1934 Act §§ 9(a) (6), (c), 48 Stat. 890, 15 U.S.C. §§ 78i(a)(6), (c). Significantly, we think, in the discussion of the need to regulate even the latter category of practices when they are manipulative, there is no indication that any type of criminal or civil liability is to attach in the absence of scienter. Furthermore, in commenting on the express civil liabilities provided in the 1934 Act, the Report explains:
30
"(I)f an investor has suffered loss by reason of illicit practices, it is equitable that he should be allowed to recover damages from the guilty party. . . . (T)he bill provides that any person who unlawfully manipulates the price of a security, or w induces transactions in a security by means of false or misleading statements, or who makes a false or misleading statement in the report of a corporation, shall be liable in damages to those who have bought or sold the security at prices affected by such violation or statement. In such case the burden is on the plaintiff to show the violation or the fact that the statement was false or misleading, and that he relied thereon to his damage. The defendant may escape liability by showing that the statement was made in Good faith." S.Rep.No.792, Supra, at 12-13 (emphasis supplied).
31
The Report therefore reveals with respect to the specified practices, an overall congressional intent to prevent "manipulative and deceptive practices which . . . fulfill no useful function" and to create private actions for damages stemming from "illicit practices," where the defendant has not acted in good faith. The views expressed in the House Report are consistent with this interpretation. H.R.Rep.No.1383, 73d Cong., 2d Sess., 10-11, 20-21 (1934) (H.R. 9323). There is no indication that Congress intended anyone to be made liable for such practices unless he acted other than in good faith. The catchall provision of § 10(b) should be interpreted no more broadly.
C
32
The 1933 and 1934 Acts constitute interrelated components of the federal regulatory scheme governing transactions in securities. See Blue Chip Stamps, 421 U.S., at 727-730, 95 S.Ct. 1917, 1921-1922, 46 L.Ed.2d 539, 544-546. As the Court indicated in SEC v. National Securities, Inc., 393 U.S. 453, 466, 89 S.Ct. 564, 571, 21 L.Ed.2d 668 (1969), "the interdependence of the various sections of the securities laws is certainly a relevant factor in any interpretation of the language Congress has chosen . . .." Recognizing this, respondents and the Commission contrast § 10(b) with other sections of the Acts to support their contention that civil liability may be imposed upon proof of negligent conduct. We think they misconceive the significance of the other provisions of the Acts.
33
The Commission argues that Congress has been explicit in requiring willful conduct when that was the standard of fault intended, citing § 9 of the 1934 Act, 48 Stat. 889, 15 U.S.C. § 78i, which generally proscribes manipulation of securities prices. Sections 9(a)(1) and (a)(2), for example, respectively prohibit manipulation of security prices "(f)or the purpose of creating a false or misleading appearance of active trading in any security . . . or . . . with respect to the market for any such security," and "for the purpose of inducing the purchase or sale of such security by others." See also § 9(a)(4). Section 9(e) then imposes upon "(a)ny person who willfully participates in any act or transaction in violation of" other provisions of § 9 civil liability to anyone who purchased or sold a security at a price affected by the manipulative activities. From this the Commission concludes that since § 10(b) is not by its terms explicitly restricted to willful, knowing, or purposeful conduct, it should not be construed in all cases to require more than negligent action or inaction as a precondition for civil liability.
34
The structure of the Acts does not support the Commission's argument. In each instance that Congress created express civil liability in favor of purchasers or sellers of securities it clearly specified whether recovery was to be premised on knowing or intentional conduct, negligence, or entirely innocent mistake. See 1933 Act §§ 11, 12, 15, 48 Stat. 82, 84, as amended, 15 U.S.C. §§ 77k, 77L, 77O ; 1934 Act §§ 9, 18, 20, 48 Stat. 889, 897, 899, as amended, 15 U.S.C. §§ 78i, 78r, 78t. For example, § 11 of the 1933 Act unambiguously creates a private action for damages when a registration statement includes untrue statements of material facts or fails to state material facts necessary to make the statements therein not misleading. Within the limits specified by § 11(e), the issuer of the securities is held absolutely liable for any damages resulting from such misstatement or omission. But experts such as accountants who have prepared portions of the registration statement are accorded a "due diligence" defense. In effect, this is a negligence standard. An expert may avoid civil liability with respect to the portions of the registration statement for which he was responsible by showing that "after reasonable investigation" he had "reasonable ground(s) to believe" that the statements for which he was responsible were true and there was no omission of a material fact.26 § 11(b) (3)(B)(i). See, E. g., Escott v. Barchris Const. Corp., 283 F.Supp. 643, 697-703 (S.D.N.Y.1968). The express recognition of a cause of action premised on negligent behavior in § 11 stands in sharp contrast to the language of § 10(b), and significantly undercuts the Commission's argument.
35
We also consider it significant that each of the express civil remedies in the 1933 Act allowing recovery for negligent conduct, see §§ 11, 12(2), 15, 15 U.S.C. §§ 77k, 77l), 77o,27 is subject to significant procedural restrictions not applicable under § 10(b).28 Section 11(e) of the 1933 Act, for example, authorizes the court to require a plaintiff bringing a suit under § 11, § 12(2), or § 15 thereof to post a bond for costs, including attorneys' fees, and in specified circumstances to assess costs at the conclusion of the litigation. Section 13 specifies a statute of limitations of one year from the time the violation was or should have been discovered, in no event to exceed three years from the time of offer or sale, applicable to actions brought under § 11, § 12(2), or § 15. These restrictions, significantly, were imposed by amendments to the 1933 Act adopted as part of the 1934 Act. Prior to amendment § 11(e) contained no provision for payment of costs. Act of May 27, 1933, c. 38, § 11(e), 48 Stat. 83. See Act of June 6, 1934, c. 404, § 206(e), 48 Stat. 907. The amendments also substantially shortened the statute of limitations provided by § 13. Compare § 13, 48 Stat. 84, with 15 U.S.C. § 77n. See 1934 Act, § 207, 48 Stat. 908. We think these procedural limitations indicate that the judicially created private damages remedy under § 10(b) which has no comparable restrictions29—cannot be extended, consistently with the intent of Congress, to actions premised on negligent wrongdoing. Such extension would allow causes of action covered by §§ 11, 12(2), and 15 to be brought instead under § 10(b) and thereby nullify the effectiveness of the carefully drawn procedural restrictions on these express actions.30 See, e. g., Fischman v. Raytheon Mfg. Co., 188 F.2d 783, 786-787 (CA2 1951); SEC v. Texas Gulf Sulphur Co., 401 F.2d, at 867-868 (Friendly, J., concurring); Rosenberg v. Globe Aircraft Corp., 80 F.Supp. 123, 124 (E.D.Pa.1948); 3 Loss, supra, n. 17, at 1787-1788; R. Jennings & H. Marsh, Securities Regulation 1070-1074 (3d ed. 1972). We would be unwilling to bring about this result absent substantial support in the legislative history, and there is none.31
D
36
We have addressed, to this point, primarily the language and history of § 10(b). The Commission contends, however, that subsections (b) and (c) of Rule 10b-5 are cast in language which if standing alone could encompass both intentional and negligent behavior. These subsections respectively provide that it is unlawful "(t)o make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading . . . " and "(t)o engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person . . . . " Viewed in isolation the language of subsection (b), and arguably that of subsection (c), could be read as proscribing, respectively, any type of material misstatement or omission, and any course of conduct, that has the effect of defrauding investors, whether the wrongdoing was intentional or not.
37
We note first that such a reading cannot be harmonized with the administrative history of the Rule, a history making clear that when the Commission adopted the Rule it was intended to apply only to activities that involved scienter.32 More importantly, Rule 10b-5 was adopted pursuant to authority grand the Commission under § 10(b). The rulemaking power granted to an administrative agency charged with the administration of a federal statute is not the power to make law. Rather, it is " 'the power to adopt regulations to carry into effect the will of Congress as expressed by the statute.' " Dixon v. United States, 381 U.S. 68, 74, 85 S.Ct. 1301, 1305, 14 L.Ed.2d 223, 228 (1965), quoting Manhattan General Equipment Co. v. Commissioner, 297 U.S. 129, 134, 56 S.Ct. 397, 399, 80 L.Ed. 528, 531 (1936). Thus, despite the broad view of the Rule advanced by the Commission in this case, its scope cannot exceed the power granted the Commission by Congress under § 10(b). For the reasons stated above, we think the Commission's original interpretation of Rule 10b-5 was compelled by the language and history of § 10(b) and related sections of the Acts. See, e. g., Gerstle v. Gamble-Skogmo, Inc., 478 F.2d 1281, 1299 (CA2 1973); Lanza v. Drexel & Co., 479 F.2d 1277, 1304-1305 (CA2 1973); SEC v. Texas Gulf Sulphur Co., 401 F.2d, at 868 (Friendly, J., concurring); 3 Loss, supra, n. 17, at 1766; 6 id., at 3883-3885. When a statute speaks so specifically in terms of manipulation and deception, and of implementing devices and contrivances the commonly understood terminology of intentional wrongdoing and when its history reflects no more expansive intent, we are quite unwilling to extend the scope of the statute to negligent conduct.33
III
38
Recognizing that § 10(b) and Rule 10b-5 might be held to require proof of more than negligent nonfeasance by Ernst & Ernst as a precondition to the imposition of civil liability, respondents further contend that the case should be remanded for trial under whatever standard is adopted. Throughout the lengthy history of this case respondents have proceeded on a theory of liability premised on negligence, specifically disclaiming that Ernst & Ernst had engaged in fraud or intentional misconduct.34 In these circumstances, we think it inappropriate to remand the action for further proceedings.
The judgment of the Court of Appeals is
39
Reversed.
40
Mr. Justice STEVENS took no part in the consideration or decision of this case.
41
Mr. Justice BLACKMUN, with whom Mr. Justice BRENNAN joins, dissenting.
42
Once again see Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 730, 95 S.Ct. 1917, 1922, 44 L.Ed.2d 539, 546 (1975) the Court interprets s 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and the Securities a Exchange Commission's Rule 10b-5, 17 CFR § 240.10b-5 (1975), restrictively and narrowly and thereby stultifies recovery for the victim. This time the Court does so by confining the statute and the Rule to situations where the defendant has "scienter," that is, the "intent to deceive, manipulate, or defraud." Sheer negligence, the Court says, is not within the reach of the statute and the Rule, and was not contemplated when the great reforms of 1933, 1934, and 1942 were effectuated by Congress and the Commission.
43
Perhaps the Court is right, but I doubt it. The Government and the Commission doubt it too, as is evidenced by the thrust of the brief filed by the Solicitor General on behalf of the Commission as Amicus curiae. The Court's opinion, to be sure, has a certain technical consistency about it. It seems to me, however, that an investor can be victimized just as much by negligent conduct as by positive deception, and that it is not logical to drive a wedge between the two, saying that Congress clearly intended the one but certainly not the other.
44
No one questions the fact that the respondents here were the victims of an intentional securities fraud practiced by Leston B. Nay. What is at issue, of course, is the petitioner accountant firm's involvement and that firm's responsibility under Rule 10b-5. The language of the Rule, making it unlawful for any person "in connection with the purchase or sale of any security"
45
"(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
46
"(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person,"
47
seems to me, clearly and succinctly, to prohibit negligent as well as intentional conduct of the kind proscribed, to extend beyond common-law fraud, and to apply to negligent omission and commission. This is consistent with Congress' intent, repeatedly recognized by the Court, that securities legislation enacted for the purpose of avoiding frauds be construed "not technically and restrictively, but flexibly to effectuate its remedial purposes." SEC v. Capital Gains Research Bureau, 375 U.S. 180, 195, 84 S.Ct. 275, 285, 11 L.Ed.2d 237, 248 (1963); Superintendent of Insurance v. Bankers Life & Cas. Co., 404 U.S. 6, 12, 92 S.Ct. 165, 168, 30 L.Ed.2d 128, 134 (1971); Affiliated Ute Citizens v. United States, 406 U.S. 128, 151, 92 S.Ct. 1456, 1470, 31 L.Ed.2d 741 (1972).
48
On motion for summary judgment, therefore, the respondents' allegations, in my view, were sufficient, and the District Court's dismissal of the action was improper to the extent that the dismissal rested on the proposition that suit could not be maintained under § 10(b) and Rule 10b-5 for mere negligence. The opposite appears to be true, at least in the Second Circuit, with respect to suits by the SEC to enjoin a violation of the Rule. SEC v. Management Dynamics, Inc., 515 F.2d 801 (1975); SEC v. Spectrum, Ltd., 489 F.2d 535, 541 (1973); SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 854-855 (1968), cert. denied Sub nom. Coates v. SEC, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969). I see no real distinction between that situation and this one, for surely the question whether negligent conduct violates the Rule should not depend upon the plaintiff's identity. If negligence is a violation factor when the SEC sues, it must be a violation factor when a private party sues. And, in its present posture, this case is concerned with the issue of violation, not with the secondary issue of a private party's judicially created entitlement to damages or other specific reef. See Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 95 S.Ct. 2069, 45 L.Ed.2d 72 (1975).
49
The critical importance of the auditing accountant's role in insuring full disclosure cannot be overestimated. The SEC has emphasized that in certifying statements the accountant's duty "is to safeguard the public interest, not that of his client." In re Touche, Niven, Bailey & Smart, 37 S.E.C. 629, 670-671 (1957). "In our complex society the accountant's certificate and the lawyer's opinion can be instruments for inflicting pecuniary loss more potent than the chisel or the crowbar." United States v. Benjamin, 328 F.2d 854, 863 (CA2), cert. denied Sub nom. Howard v. United States, 377 U.S. 953, 84 S.Ct. 1631, 12 L.Ed.2d 497 (1964). In this light, the initial inquiry into whether Ernst & Ernst's preparation and certification of the financial statements of First Securities Company of Chicago were negligent, because of the failure to perceive Nay's extraordinary mail rule, and in other alleged respects, and thus whether Rule 10b-5 was violated, should not be thwarted.
50
But the Court today decides that it is to be thwarted; and so once again it rests with Congress to rephrase and to re-enact, if investor victims, such as these, are ever to have relief under the federal securities laws that I thought had been enacted for their broad, needed, and deserving benefit.*
1
Section 17(a) requires that securities brokers or dealers "make . . . and preserve . . . such accounts . . . books, and other records, and make such reports, as the Commission by its rules and regulations may prescribe as necessary or appropriate in the public interest or for the protection of investors." During the period relevant here, Commission Rule 17a-5, 17 CFR § 240.17a-5 (1975), required that First Securities file an annual report of its financial condition that included a certificate stating "clearly the opinion of the accountant with respect to the financial statement covered by the certificate and the accounting principles and practices reflected therein." See SEC Release No. 3338 (Nov. 28, 1942), X-17A-5(h). The Rule required Ernst & Ernst to state in its certificate, Inter alia, "whether the audit was made in accordance with generally accepted auditing standards applicable in the circumstances" and provided that nothing in the Rule should "be construed to imply authority for the omission of any procedure which independent accountants would ordinarily employ in the course of an audit for the purpose of expressing the opinions required" by the Rule.
2
Two separate, but substantially identical, complaints initially were filed by different members of the present group of respondents. Subsequently the respondents jointly filed a First Amended Complaint. The two cases were treated by the District Court as if they were consolidated, and they were consolidated formally on appeal.
3
The first count of the complaint was directed against the Exchange, charging that through its acts and omissions it had aided and abetted Nay's fraud. Summary judgment in favor of the Exchange was affirmed on appeal. Hochfelder v. Midwest Stock Exchange, 503 F.2d 364 (CA7), cert. denied, 419 U.S. 875, 95 S.Ct. 137, 42 L.Ed.2d 114 (1974).
4
Immediately after Nay's suicide the Commission commenced receivership proceedings against First Securities. In those proceedings all of the respondents except two asserted claims based on the fraudulent escrow accounts. These claims ultimately were allowed in SEC v. First Securities Co., 463 F.2d 981, 986 (CA7), cert. denied, 409 U.S. 880, 93 S.Ct. 85, 34 L.Ed.2d 134 (1972), where the court held that Nay's conduct violated § 10(b) and Rule 10b-5, and that First Securities was liable for Nay's fraud as an aider and abettor. The question of Ernst & Ernst's liability was not considered in that case.
5
In their response to interrogatories in the District Court respondents conceded that they did "not accuse Ernst & Ernst of deliberate, intentional fraud," merely with "inexcusable negligence." App. 81.
6
The District Court also held that respondents' action was barred by the doctrine of equitable estoppel and the applicable Illinois statute of limitations of three years. See n. 29, Infra. As customers of First Securities respondents were sent confirmation forms as required under § 17(a) and Rule 17a-5 requesting that they verify the accuracy of the statements and notify Ernst & Ernst as to any exceptions. Although the confirmation forms contained no reference to the escrow accounts, Ernst & Ernst was not notified of this fact. The last audit of First Securities by Ernst & Ernst was completed in December 1967 and the first complaint in this action was not filed until February 1971.
7
In support of this holding, the Court of Appeals cited its decision in Hochfelder v. Midwest Stock Exchange, supra, where it detailed the elements necessary to establish a claim under Rule 10b-5 based on a defendant's aiding and abetting a securities fraud solely by inaction. See n. 3 Supra. In such a case the plaintiff must show "that the party charged with aiding and abetting had knowledge of or, but for a breach of a duty of inquiry, should have had knowledge of the fraud, and that possessing such knowledge the party failed to act due to an improper motive or breach of a duty of disclosure." 503 F.2d, at 374. The court explained in the instant case that these "elements comprise a flexible standard of liability which should be amplified according to the peculiarities of each case." Id., at 1104. In view of our holding that an intent to deceive, manipulate, or defraud is required for civil liability under § 10(b) and Rule 10b-5, we need not consider whether civil liability for aiding and abetting is appropriate under the section and the Rule, nor the elements necessary to establish such a cause of action. See, E. g., Brennan v. Midwestern United Life Ins. Co., 259 F.Supp. 673 (1966) and 286 F.Supp. 702 (N.D.Ind.1968), aff'd, 417 F.2d 147 (CA7 1969), cert. denied, 397 U.S. 989 (1970) (defendant held liable for giving active and knowing assistance to a third party engaged in violations of the securities laws). See generally Ruder, Multiple Defendants in Securities Law Fraud Cases: Aiding and Abetting, Conspiracy, In Pari Delicto, Indemnification and Contribution, 120 U.Pa.L.Rev. 597, 620-645 (1972).
8
See n. 1, Supra.
9
The court concluded that the duty of inquiry imposed on Ernst & Ernst under § 17(a) was "grounded on a concern for the protection of investors such as (respondents)," without reaching the question whether the statute imposed a "direct duty" to the respondents. 503 F.2d, at 1105. The court held that Ernst & Ernst owed no common-law duty of inquiry to respondents arising from its contract with First Securities since Ernst & Ernst did not specifically foresee that respondents' limited class might suffer from a negligent audit, compare Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275 (1922), with Ultramares Corp. v. Touche, 255 N.Y. 170, 174 N.E. 441 (1931); see, E. g., Rhode Island Hospital Trust Nat. Bank v. Swartz, 455 F.2d 847, 851 (CA4 1972). Moreover, respondents conceded that they did not rely on the financial statements and reports prepared by Ernst & Ernst or on its certificate of opinion. 503 F.2d, at 1107.
10
In their briefs respondents allude to several other alleged failings by Ernst & Ernst in its audit of First Securities, principally its failure to inquire into the collectibility of certain loans by First Securities to Nay and its failure to follow up on a 1965 memorandum that characterized First Securities' overall system of internal control as weak because of the centralization of functions in the cashier. The Court of Appeals mentioned none of these alleged deficiencies in its opinion in this case, although it did discuss the loans to Nay and certain other related matters in its opinion in Hochfelder v. Midwest Stock Exchange, 503 F.2d, at 370-371, holding that the existence of these facts was insufficient to put the Exchange on notice that further inquiry into First Securities' financial affairs was required.
11
The Court of Appeals also reversed the District Court's holding with respect to equitable estoppel and the statute of limitations. See n. 6, Supra. In view of our disposition of the case we need not address these issues.
12
Although the verbal formulations of the standard to be applied have varied, several Courts of Appeals have held in substance that negligence alone is sufficient for civil liability under § 10(b) and Rule 10b-5. See, E. g., White v. Abrams, 495 F.2d 724, 730 (CA9 1974) ("flexible duty" standard); Myzel v. Fields, 386 F.2d 718, 735 (CA8 1967), cert. denied, 390 U.S. 951, 88 S.Ct. 1043, 19 L.Ed.2d 1143 (1968) (negligence suffi-
cient); Kohler v. Kohler Co., 319 F.2d 634, 637 (CA7 1963) (knowledge not required). Other Courts of Appeals have held that some type of scienter I. e., intent to defraud, reckless disregard for the truth, or knowing use of some practice to defraud is necessary in such an action. See, E. g., Clegg v. Conk, 507 F.2d 1351, 1361-1362 (CA10 1974), cert. denied, 422 U.S. 1007, 95 S.Ct. 2628, 45 L.Ed.2d 669 (1975) (an element of "scienter or conscious fault"); Lanza v. Drexel & Co., 479 F.2d 1277, 1306 (CA2 1973) ("willful or reckless disregard" of the truth). But few of the decisions announcing that some form of negligence suffices for civil liability under § 10(b) and Rule 10b-5 actually have involved only negligent conduct. Smallwood v. Pearl Brewing Co., 489 F.2d 579, 606 (CA5), cert. denied, 419 U.S. 873, 95 S.Ct. 134, 42 L.Ed.2d 113 (1974); Kohn v. American Metal Climax, Inc., 458 F.2d 255, 286 (CA3 1972) (Adams, J., concurring and dissenting); Bucklo, Scienter and Rule 10b-5, 67 Nw.U.L.Rev. 562, 568-570 (1972).
In this opinion the term "scienter" refers to a mental state embracing intent to deceive, manipulate, or defraud. In certain areas of the law recklessness is considered to be a form of intentional conduct for purposes of imposing liability for some act. We need not address here the question whether, in some circumstances, reckless behavior is sufficient for civil liability under § 10(b) and Rule 10b-5.
Since this case concerns an action for damages we also need not consider the question whether scienter is a necessary element in an action for injunctive relief under § 10(b) and Rule 10b-5. Cf. SEC v. Capital Gains Research Bureau, 375 U.S. 180, 84 S.Ct. 275, 11 L.Ed.2d 237 (1963).
13
Respondents further contend that Ernst & Ernst owed them a direct duty under § 17(a) of the 1934 Act and Rule 17a-5 to conduct a proper audit of First Securities and that they may base a private cause of action against Ernst & Ernst for violation of that duty. Respondents cause of action, however, was premised solely on the alleged violation of § 10(b) and Rule 10b-5. During the lengthy history of this litigation they have not amended their original complaint to aver a cause of action under § 17(a) and Rule 17a-5. We therefore do not consider that a claim of liability under § 17(a) is properly before us even assuming respondents could assert such a claim independently of § 10(b).
14
See, E. g., S.Rep.No.792, 73d Cong., 2d Sess., 5-6 (1934); Note, Implied Liability Under the Securities Exchange Act, 61 Harv.L.Rev. 858, 860 (1948).
15
SEC Release No. 3230 (May 21, 1942); Birnbaum v. Newport Steel Corp., 193 F.2d 461, 463 (CA2), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952).
16
Kardon v. National Gypsum Co., 69 F.Supp. 512 (E.D.Pa.1946).
17
See cases cited in n. 12, Supra. Compare, E. g., Comment, Scienter and Rule 10b-5, 69 Col.L.Rev. 1057, 1080-1081 (1969); Note, Negligent Misrepresentations under Rule 10b-5, 32 U.Chi.L.Rev. 824, 839-844 (1965); Note, Securities Acts, 82 Harv.L.Rev. 938, 947 (1969); Note, Civil Liability Under Section 10B and Rule 10B-5: A Suggestion for Replacing the Doctrine of Privity, 74 Yale L.J. 658, 682-689 (1965), with, E. g., 3 L. Loss, Securities Regulation 1766 (2d ed. 1961); 6 Id., at 3883-3885 (1969).
18
The Commission would not permit recovery upon proof of negligence in all cases. In order to harmonize civil liability under § 10(b) with the express civil remedies contained in the 1933 and 1934 Acts, the Commission would limit the circumstances in which civil liability could be imposed for negligent violation of Rule 10b-5 to situations in which (i) the defendant knew or reasonably could foresee that the plaintiff would rely on his conduct, (ii) the plaintiff did in fact so rely, and (iii) the amount of the plaintiff's damages caused by the defendant's conduct was definite and ascertainable. Brief for SEC as Amicus Curiae 23-33. The Commission concludes that the present record does not establish these conditions since Ernst & Ernst could not reasonably have foreseen that the financial statements of First Securities would induce respondents to invest in the escrow accounts, respondents in fact did not rely on Ernst & Ernst's audits, and the amount of respondents' damages was unascertainable. Id., at 33-36. Respondents accept the Commission's basic analysis of the operative language of the statute and Rule, but reject these additional requirements for recovery for negligent violations.
19
"To let general words draw nourishment from their purpose is one thing. To draw on some unexpressed spirit outside the bounds of the normal meaning of words is quite another. . . . After all, legislation when not expressed in technical terms is addressed to the common run of men and is therefore to be understood according to the sense of the thing, as the ordinary man has a right to rely on ordinary words addressed to him." Addison v. Holly Hill Fruit Products, Inc., 322 U.S., at 617-618, 64 S.Ct., at 1221, 88 L.Ed., at 1496. See Frankfurter, Some Reflections on the Reading of Statutes, 47 Col.L.Rev. 527, 536-537 (1947).
20
Webster's International Dictionary (2d ed. 1934) defines "device" as "(t)hat which is devised, or formed by design; a contrivance; an invention; project; scheme; often, a scheme to deceive; a stratagem; an artifice," and "contrivance" in pertinent part as "(a) thing contrived or used in contriving; a scheme, plan, or artifice." In turn, "contrive" in pertinent part is defined as "(t)o devise; to plan; to plot . . . (t)o fabricate . . . design; invent . . . to scheme . . .." The Commission also ignores the use of the terms "(t)o use or employ," language that is supportive of the view that Congress did not intend § 10(b) to embrace negligent conduct.
21
Webster's International Dictionary, Supra, defines "manipulate" as "to manage or treat artfully of fraudulently; as to Manipulate accounts . . . . 4. Exchanges. To force (prices) up or down, as by matched orders, wash sales, fictitious reports . . .; to rig."
22
See Infra, at 208, and n. 26.
23
See n. 21, Supra.
24
In support of its position the Commission cites statements by Corcoran in the Senate hearings that "in modern society there are many things you have to make crimes which are sheer matters of negligence" and "intent is not necessary for every crime." Hearings before the Subcommittee on Stock Exchange Practices before the Senate Committee on Banking and Currency, 73d Cong., 2d Sess., 6509-6510 (1934). The comments, taken in context shed no light on the meaning of § 10(b). Corcoran's remarks were made during a discussion of whether criminal violations could arise under § 8(a)(3) of S. 2693, 73d Cong., 2d Sess., which in material part was incorporated in § 9 of the 1934 Act, 15 U.S.C. § 78i, in the absence of specific intent to influence security prices for personal gain. The remarks, moreover, were not addressed to the scope of § 8, but were general observations concerning activity society might proscribe under criminal law. Ferdinand Pecora, counsel to the committee and a draftsman of S. 2693, Foremost-McKesson, Inc. v. Provident Securities Co., 423 U.S. 232, 249-250 n. 24, 96 S.Ct. 508, 519, 46 L.Ed.2d 464, 477 (1976), described the language as "(e)xcluding from its scope an act that is not done with any ulterior motives or purposes, as set forth in the act." Hearings before the Subcommittee on Stock Exchange Practices, Supra, at 6510. Further, prior to the passage of the 1934 Act, proposed § 8 was amended to require willful behavior as a prerequisite to civil liability for violations. Compare § 9(e) of the 1934 Act with § 8(c) of S. 2693. See H.R.Rep.No.1383, 73d Cong., 2d Sess., 21 (1934).
The Commission also relies on objections to a draft version of § 10(b) § 9(c) of S. 2693 and H.R. 7852, see Supra, at 201-202, raised by representatives of the securities industry in the House and Senate hearings. They warned that the language was so vague that the Commission might outlaw anything. E. g., Hearings before the Subcommittee on Stock Exchange Practices, Supra, at 6988; Hearings on H.R. 7852 and H.R. 8720 before the House Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess., 258 (1934). Remarks of this kind made in the course of legislative debate or hearings other than by persons responsible for the preparation or the drafting of a bill, are entitled to little weight. See, E. g., United States v. United Mine Workers, 330 U.S. 258, 276-277, 67 S.Ct. 677, 687-688, 91 L.Ed. 884, 903 (1947); United States v. Wrightwood Dairy Co., 315 U.S. 110, 125, 62 S.Ct. 523, 529, 86 L.Ed. 726, 735 (1942). This is especially so with regard to the statements of legislative opponents who "(i)n their zeal to defeat a bill . . . understandably tend to overstate its reach." NLRB v. Fruit Packers, 377 U.S. 58, 66, 84 S.Ct. 1063, 1068, 12 L.Ed.2d 129, 135 (1964). See Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 394-395, 71 S.Ct. 745, 750-751, 95 L.Ed. 1035, 1047-1048 (1951).
25
"Wash" sales are transactions involving no change in beneficial ownership. "Matched" orders are orders for the purchase sale of a security that are entered with the knowledge that orders of substantially the same size, at substantially the same time and price, have been or will be entered by the same or different persons for the sale/purchase of such security. Section 9(a) (1) of the 1934 Act, 15 U.S.C. § 78i(a)(1), proscribes wash sales and matched orders when effectuated "(f)or the purpose of creating a false or misleading appearance of active trading in any security registered on a national securities exchange, or . . . with respect to the market for any such security." See In re J. A. Latimer & Co., 38 S.E.C. 790 (1958); In re Thornton & Co., 28 S.E.C. 208 (1948).
26
Other individuals who sign the registration statement, directors of the issuer, and the underwriter of the securities similarly are accorded a complete defense against civil liability based on the exercise of reasonable investigation and a reasonable belief that the registration statement was not misleading. §§ 11(b)(3)(A), (C), (D), (c). See, E. g., Feit v. Leasco Data Processing Equipment Corp., 332 F.Supp. 544, 575-583 (E.D.N.Y.1971) (underwriters, but not officer-directors, established their due-diligence defense). See generally R. Jennings & H. Marsh, Securities Regulation 1018-1027 (3d ed. 1972), and sources cited therein; Folk, Civil Liabilities Under the Federal Securities Acts: The Barchris Case, 55 Va.L.Rev. 199 (1969).
27
Section 12(2) creates potential civil liability for a seller of securities in favor of the purchaser for misleading statements or omissions in connection with the transaction. The seller is exculpated if he proves that he did not know, or, in the exercise of reasonable care, could not have known of the untruth or omission. Section 15 of the 1933 Act, as amended by § 208 of Title II of the 1934 Act, makes persons who "control" any person liable under § 11 or § 12 liable jointly and severally to the same extent as the controlled person, unless he "had no knowledge of or reasonable ground to believe in the existence of the facts by reason of which the liability of the controlled person is alleged to exist." 15 U.S.C. § 77O. See Act of June 6, 1934, c. 404, § 208, 48 Stat. 908.
28
Each of the provisions of the 1934 Act that expressly create civil liability, except those directed to specific classes of individuals such as directors, officers, or 10% Beneficial holders of securities, see § 16(b), 15 U.S.C. § 78p(b), Foremost-McKesson, Inc. v. Provident Securities Co., 423 U.S. 232, 96 S.Ct. 508, 46 L.Ed.2d 464 (1976); Kern County Land Co. v. Occidental Petroleum Corp., 411 U.S. 582, 93 S.Ct. 1736, 36 L.Ed.2d 503 (1973), contains a state-of-mind condition requiring something more than negligence. Section 9(e) creates potential civil liability for any person who "willfully participates" in the manipulation of securities on a national exchange. 15 U.S.C. § 78i(e). Section 18 creates potential civil liability for misleading statements filed with the Commission, but provides the defendant with the defense that "he acted in good faith and had no knowledge that such statement was false or misleading." 15 U.S.C. § 78r. And § 20, which imposes liability upon "controlling person(s)" for violations of the Act by those they control, exculpates a defendant who "acted in good faith and did not . . . induce the act . . . constituting the violation . . . ." 15 U.S.C. § 78t. Emphasizing the important difference between the operative language and purpose of § 14(a) of the 1934 Act, 15 U.S.C. § 78n(a), as contrasted with § 10(b), however, some courts have concluded that proof of scienter is unnecessary in an action for damages by the shareholder recipients of a materially misleading proxy statement against the issuer corporation. Gerstle v. Gamble-Skogmo, Inc., 478 F.2d 1281, 1299 (CA2 1973). See also Kohn v. American Metal Climax, Inc., 458 F.2d, at 289-290 (Adams, concurring and dissenting).
29
Since no statute of limitations is provided for civil actions under § 10(b), the law of limitations of the forum State is followed as in other cases of judicially implied remedies. See Holmberg v. Armbrecht, 327 U.S. 392, 395, 66 S.Ct. 582, 584, 90 L.Ed. 743, 746 (1946), and cases cited therein. Although it is not always certain which state statute of limitations should be followed, such statutes of limitations usually are longer than the period provided under § 13. 3 Loss, supra, n. 17, at 1773-1774. As to costs see n. 30, Infra.
30
Congress regarded these restrictions on private damages actions as significant. In introducing Title II of the 1934 Act, Senator Fletcher indicated that the amendment to § 11(e) of the 1933 Act, providing for potential payment of costs, including attorneys' fees, "is the most important (amendment) of all." 78 Cong.Rec. 8669 (1934). One of its purposes was to deter actions brought solely for their potential settlement value. See ibid.; H.R.Conf.Rep.No.1838, 73d Cong., 2d Sess., 42 (1934); Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 740-741, 95 S.Ct. 1917, 1927-1928, 44 L.Ed.2d 539 (1975). This deterrent is lacking in the § 10(b) context, in which a district court's power to award attorneys' fees is sharply circumscribed. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975) ("bad faith" requirement); F. D. Rich Co. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116, 129, 94 S.Ct. 2157, 2165, 40 L.Ed.2d 703, 713 (1974).
31
Section 18 of the 1934 Act creates a private cause of action against persons, such as accountants, who "make or cause to be made" materially misleading statements in reports or other documents filed with the Commission. 15 U.S.C. § 78r. We need not consider the question whether a cause of action may be maintained under § 10(b) on the basis of actions that would constitute a violation of § 18. Under § 18 liability extends to persons who, in reliance on such statements, purchased or sold a security whose price was affected by the statements. Liability is limited, however, in the important respect that the defendant is accorded the defense that he acted in "good faith and had no knowledge that such statement was false or misleading." Consistent with this language the legislative history of the section suggests something more than negligence on the part of the defendant is required for recovery. The original version of § 18(a), § 17(a) of S. 2693, H.R. 7852 and H.R. 7855, see Supra, at 201-202, provided that the defendant would not be liable if "he acted in good faith and in the exercise of reasonable care had no ground to believe that such statement was false or misleading." The accounting profession objected to this provision on the ground that liability would be created for honest errors in judgment. See Senate Hearings on Stock Exchange Practices, supra, n. 24, at 7175-7183; House Hearings on H.R. 7852 and H.R. 8720, Supra, n. 24, at 653. In subsequent drafts the current formulation was adopted. It is also significant that actions under § 18 are limited by a relatively short statute of limitations similar to that provided in § 13 of the 1933 Act. § 18(c). Moreover, as under § 11(e) of the 1933 Act a district court is authorized to require the plaintiff to post a bond for costs, including attorneys' fees, and to assess such costs at the conclusion of the litigation. § 18(a).
32
Apparently the Rule was a hastily drafted response to a situation clearly involving intentional misconduct. The Commission's
Regional Administrator in Boston had reported to the Director of the Trading and Exchange Division that the president of a corporation was telling the other shareholders that the corporation was doing poorly and purchasing their shares at the resultant depressed prices, when in fact the business was doing exceptionally well. The Rule was drafted and approved on the day this report was received. See Conference on Codification of the Federal Securities Laws, 22 Bus.Law. 793, 922 (1967) (remarks of Milton Freeman, one of the Rule's codrafters); Blue Chip Stamps, supra, 421 U.S. at 767, 95 S.Ct. at 1940, 46 L.Ed.2d at 567 (Blackmun, J., dissenting). Although adopted pursuant to § 10(b), the language of the Rule appears to have been derived in significant part from § 17 of the 1933 Act, 15 U.S.C. § 77q. E. g. Blue Chip Stamps, supra, at 767, 95 S.Ct., at 1940 (Blackmun, J., dissenting); SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 867 (CA2 1968) (Friendly, J., concurring), cert. denied sub nom. Coates v. SEC, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969). There is no indication in the administrative history of the Rule that any of the subsections was intended to proscribe conduct not involving scienter. Indeed the Commission's release issued contemporaneously with the Rule explained:
"The Securities and Exchange Commission today announced the adoption of a rule prohibiting fraud by any person in connection with the purchase of securities. The previously existing rules against fraud in the purchase of securities applied only to brokers and dealers. The new rule closes a loophole in the protections against fraud administered by the Commission by prohibiting individuals or companies from buying securities if they engage in fraud in their purchase." SEC Release No. 3230 (May 21, 1942).
That same year, in its Annual Report, the Commission again stated that the purpose of the Rule was to protect investors against "fraud":
"During the fiscal year the Commission adopted Rule X-10B-5 as an additional protection to investors. The new rule prohibits fraud by any person in connection with the purchase of securities, while the previously existing rules against fraud in the purchase of securities applied only to brokers and dealers." 1942 Annual Report of the Securities Exchange Commission 10.
33
As we find the language and history of § 10(b) dispositive of the appropriate standard of liability, there is no occasion to examine the additional considerations of "policy," set forth by the parties, that may have influenced the lawmakers in their formulation of the statute. We do note that the standard urged by respondents would significantly broaden the class of plaintiffs who may seek to impose liability upon accountants and other experts who perform services or express opinions with respect to matters under the Acts. Last Term, in Blue Chip Stamps, 421 U.S., at 747-748, 95 S.Ct., at 1931, 46 L.Ed.2d, at 556, the Court pertinently observed:
"While much of the development of the law of deceit has been the elimination of artificial barriers to recovery on just claims, we are not the first court to express concern that the inexorable broadening of the class of plaintiff who may sue in this area of the law will ultimately result in more harm that good. In Ultramares Corp. v. Touche, 255 N.Y. 170, 174 N.E. 441 (1931), Chief Judge Cardozo observed with respect to 'a liability in an indeterminate amount for an indeterminate time to an indeterminate class:
" 'The hazards of a business conducted on these terms are so extreme as to enkindle doubt whether a flaw may not exist in the implication of a duty that exposes to these consequences.' Id., at 179-180, 174 N.E., at 444."
This case, on its facts, illustrates the extreme reach of the standard urged by respondents. As investors in transactions initiated by Nay, not First Securities, they were not foreseeable users of the financial statements prepared by Ernst & Ernst. Respondents conceded that they did not rely on either these financial statements or Ernst & Ernst's certificates of opinion. See n. 9, supra. The class of persons eligible to benefit from such a standard, though small in this case, could be numbered in the thousands in other cases. Acceptance of respondents' view would extend to new frontiers the "hazards" of rendering expert advice under the Acts, raising serious policy questions not yet addressed by Congress.
34
See 503 F.2d, at 1104, 1119; n. 5, supra.
*
The Court, understandably, does not resolve a number of other issues suggested by the briefs. See Ante, at 191-192, n. 7; 193 n. 11; 194 n. 12; 194 n. 13; and 214-216, n. 33. In view of the result reached by the Court, no purpose would be served by my considering those issues in dissent.
| 78
|
425 U.S. 94
96 S.Ct. 1338
47 L.Ed.2d 603
Philip J. GOLDBERG, Petitioner,v.UNITED STATES.
No. 74-6293.
Argued Jan. 14, 1976.
Decided March 30, 1976.
Syllabus
During the course of petitioner's criminal trial, the chief prosecution witness (Newman) indicated on cross-examination that on certain dates he was interviewed by Government lawyers who took notes relating to Newman's forthcoming trial testimony, and that Newman verified the accuracy of the notes. Petitioner thereupon moved for production of the notes pursuant to the Jencks Act, 18 U.S.C. § 3500, which provides that in a federal criminal prosecution after a witness called by the Government has testified on direct examination, the court on the defendant's motion shall order the Government to produce any "statement" in its possession that relates to the subject matter of the witness' testimony. In relevant part a "statement" is defined as "a written statement made by said witness and signed or otherwise adopted or approved by him." § 3500(e)(1). The trial judge denied petitioner's motion on the ground that the material was "the work product of counsel" and declined to inspect the material In camera. The Court of Appeals affirmed on the ground that the notes were not statements of the witness within the meaning of § 3500(e). Held:
1. Any writing prepared by a Government lawyer relating to the subject matter of the testimony of a Government witness that has been "signed or otherwise adopted or approved" by that witness is producible under the Jencks Act, and the writing is not rendered nonproducible because a Government lawyer interviewed the witness and wrote the statement. Pp. 101-108.
(a) Nothing in the language or legislative history of the Jencks Act excepts as a lawyer's "work product" a statement within the definition of a producible statement. Pp. 101-102.
(b) Nor is the Act limited to statements made to an investigative agency as distinguished from prosecutors preparing for trial. Though the Government's argument to the contrary is based on the asserted unfairness of allowing defense counsel to impeach a witness by a statement that is the product of the attorney's selections rather than his own, the writings are producible only if they meet the terms of the statutory definition; the Act itself protects witnesses from this unfairness; and it also safeguards the primary policy of the work-product doctrine by protecting the privacy of an attorney's mental processes. Pp. 102-106.
(c) Production of statements within § 3500(e)(1) and written by Government lawyers will not force such lawyers to testify at trial. Moreover, there is a clearly legitimate purpose for the statutory disclosure, I. e., furtherance of "the fair and just administration of criminal justice," Campbell v. United States, 365 U.S. 85, 92, 81 S.Ct. 421, 425, 5 L.Ed.2d 428, 434 (Campbell I ); lawyers will not become witnesses, since statements are producible only where they can fairly be said to be the witness' own; and defense counsel will have no right to call Government lawyers to authenticate their notes. Pp. 106-107.
2. In the circumstances of this case, the Court of Appeals erred in making the initial determination that the writings in question were not producible statements. Campbell v. United States, 373 U.S. 487, 493, 83 S.Ct. 1356, 1360, 10 L.Ed.2d 501, 506 (Campbell II ). Pp. 108-111.
(a) Newman's testimony was sufficient to call upon the trial judge to conduct an inquiry into the producibility of the material. Such an inquiry is now required to determine whether petitioner's Jencks Act motion should have been granted. Campbell I, supra, 365 U.S., at 98-99, 81 S.Ct., at 428, 5 L.Ed.2d, at 438. Pp. 108-110.
(b) It is not necessary for this Court to vacate petitioner's conviction and order a new trial, since petitioner's rights can be fully protected by a remand to the trial court for an inquiry into the producibility of the material, the supplementing of the record with findings, and the availability of appellate review should the trial court decide that a new trial is not required. Pp. 110-111.
Vacated and remanded.
Donald C. Smaltz, Los Angeles, Cal., for petitioner.
Paul L. Friedman, Washington, D. C., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This case presents important questions of construction and administration of the Jencks Act, 18 U.S.C. § 3500.1 That statute provides that in a federal criminal prosecution, after a witness called by the United States has testified on direct examination, the court, on motion of the defendant, shall order the United States to produce any "statement," as defined in the Act, in the possession of the United States that relates to the subject matter as to which the witness has testified. The definition of "statement" in § 3500(e) pertinent to this case is: "(1) a written statement made by said witness and signed or otherwise adopted or approved by him."
2
At petitioner's trial in the District Court for the District of Arizona on charges of mail fraud in violation of 18 U.S.C. § 1341, the trial judge sustained the Government's contention that certain writings of Government lawyers of conversations with the Government's key witness were "the work product of counsel," although the judge had not examined the writings. The Court of Appeals for the Ninth Circuit affirmed but on a different ground. In an unpublished memorandum opinion the Court of Appeals stated: "Apart from the question whether such notes were exempt from the Jencks Act . . . as 'work product,' they were not statements of the (witness) within the meaning of § 3500(e)."2 We granted certiorari limited to the Jencks Act question, 422 U.S. 1006, 95 S.Ct. 2627, 45 L.Ed.2d 669.3
3
We hold that a writing prepared by a Government lawyer relating to the subject matter of the testimony of a Government witness that has been "signed or otherwise adopted or approved" by the Government witness is producible under the Jencks Act, and is not rendered nonproducible because a Government lawyer interviews the witness and writes the "statement." We hold further that in the circumstances of this case the Court of Appeals erred in determining in the first instance that the writings in question were not "statements." We therefore vacate the judgment of the Court of Appeals and remand the case to the District Court for further proceedings consistent with this opinion, following the procedure in Campbell v. United States, 365 U.S. 85, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961) (Campbell I ).
4
* Petitioner, with Edwin S. Newman and three other codefendants, was charged in a multiple-count indictment with using the mails to defraud by means of a fraudulent scheme, which may be briefly summarized. The Financial Security Life Insurance Co., of which petitioner was president, issued single-premium annuities to various individuals; the policies purported to be fully prepaid and were used as collateral for loans. Promissory notes were accepted in lieu of the premiums, and interest on the notes was the only money paid to the company. Further, the policies were misrepresented as being free of liens or encumbrances. In fact, the policies were valueless. Petitioner concealed these facts from lenders who accepted the policies as collateral; indeed, the company refused payment of the proceeds of the policies to the lenders upon the ground of nonpayment of premiums. The three codefendants were charged with using the annuities as collateral to obtain loans. Petitioner used these "sales" of annuities to inflate the assets of the company on paper, intending eventually to sell the company.
5
Of the five defendants, only petitioner and Newman worked for the company. Newman agreed to plead guilty to a single count of the indictment and to testify as a Government witness. Thereupon his case was severed prior to petitioner's trial.4 He was the key prosecution witness, revealing in great detail the operation of the fraudulent scheme and the transactions alleged in the indictment. Newman signed all of the correspondence with lenders, but testified that at all times he acted pursuant to instructions from petitioner. The Government's case against petitioner consisted primarily of Newman's testimony.
6
Prior to the trial, which covered seven weeks starting May 22, 1973, the Government delivered to petitioner a copy of Newman's testimony before the grand jury, a memorandum of an interview with Newman conducted by a postal inspector over three years earlier, and a reporter's transcript of an interview with Newman conducted by two Government lawyers on May 11, 1973. The May 11 transcript indicated that the lawyers intended to conduct further interviews with Newman concerning other transactions. At the trial, on cross-examination on June 27, Newman disclosed that he had met with the lawyers on May 13, June 9 and 10, and part of each day from June 16 through June 27. Unlike the May 11 meeting, no reporter was present. Newman's forthcoming trial testimony was the subject of the discussion, but the notes of the interview were handwritten by the lawyers. Significantly, however, Newman testified, speaking of the May 13 interview:
7
"Q. And as they took notes, did they sometimes question you about what you had just said to make sure that they got it down correctly?
8
"A. They may have. I don't really remember that that was part of the pattern."
9
And again, speaking of the June 9 and June 10 interviews, Newman testified:
10
"Q. As you were explaining or discussing your testimony, did anyone take notes?
11
"A. The two gentlemen took notes.
12
"Q. Were they occasionally read back to you to see whether or not they correctly understood what you were saying?
13
"A. Probably from time to time.
14
"Q. All right, sir. Did you either correct them or say, 'Yes, that's right,' or 'No, that's not right because it went this way, I believe,' words to that effect?
15
"A. Yes, that would happen."
16
Finally, he described this as the pattern followed at all remaining meetings with the lawyers.
17
At this point petitioner moved, pursuant to § 3500(b), for an order directing the United States to deliver the notes to the defense. The trial judge, without waiting to hear from the Government, denied the motion on the ground that the material was "attorney's work product." Petitioner renewed the motion the following day, coupling the motion with a request that the Government be ordered to deliver the material for In camera inspection by the court. The motions were denied, but with leave to submit a memorandum in support of the motions. Petitioner's memorandum argued against the existence of a "work product" exception and renewed the request for an order directing delivery of the material for In camera inspection. Thereafter, the Government orally argued that the material in question was not producible as "the work product of counsel," and the judge again denied petitioner's motions. On appeal, the material, which totaled 237 pages and was not part of the District Court record, was lodged with the Court of Appeals.
II
18
We see nothing in the Jencks Act or its legislative history that excepts from production otherwise producible statements on the ground that they constitute "work product" of Government lawyers. It is not clear from its brief that the Government argues to the contrary;5 rather, the Government's principal contention seems be that in any event the principles underlying the "work product" doctrine suggest a narrow construction of "statement" as not to include a lawyer's "work product" even though it fits the statutory definition of a producible statement. We reject the argument, since the plain language of the statute, fully buttressed by legislative history, allows no room for the tendered exception.
19
The Government maintains that the Act can be read to include only statements given to a Government investigative or law enforcement agent during an investigation, and not those given to a Government trial attorney in preparation for trial. This contention rests in part on the original language of § 3500(a), which postponed discovery, until after a witness' direct examination, of statements of the witness made "to an agent of the Government."6 But nothing in the Act even remotely suggests that "an agent of the Government" excludes Government lawyers.7 In any event, § 3500(b) requires production of "any statement (as hereinafter defined) of the witness in the possession of the United States" without any limitation to statements made "to an agent of the Government." Section 3500(e)(1) defines a producible statement as one "made by said witness and signed or otherwise adopted or approved by him" with no limitation that it be a statement made "to an agent of the Government."
20
The Government also suggests that Congress enacted the Jencks Act to limit the scope of this Court's decision in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), and since Jencks involved statements to an investigative agency the Federal Bureau of Investigation Congress intended to require production only of statements of witnesses made to investigative agencies, not those given to prosecutors in preparation for trial.
21
That the Act was not intended to limit the Jencks decision is apparent from its legislative history. Rather than limiting, the Act "reaffirms (Jencks ) in its holding that a defendant on trial in a criminal prosecution is entitled to relevant and competent reports and statements in possession of the Government touching the events and activities as to which a Government witness has testified at the trial." S.Rep.No.981, 85th Cong., 1st Sess., 3 (1957), U.S.Code Cong. & Admin.News 1957, pp. 1861, 1862. See H.R.Rep.No.700, 85th Cong., 1st Sess., 4 (1957); Campbell I, 365 U.S., at 92, 81 S.Ct., at 425, 5 L.Ed.2d, at 434. Moreover, Congress was concerned, not with the Jencks decision itself, but with "misinterpretations and misunderstandings" in application of Jencks in district courts and courts of appeals. S.Rep.No.981, Supra, at 3-5, 7-12; H.R.Rep.No.700, Supra, at 2-3, 6. The concern was that misapplication of Jencks would permit defendants "to rove at will through Government files." S.Rep.No.569, 85th Cong., 1st Sess., 3 (1957). See Palermo v. United States, 360 U.S. 343, 350, 79 S.Ct. 1217, 1223, 3 L.Ed.2d 1287, 1294 (1959). The House committee expressed its goal as that of preventing defendants from "rummag(ing) through confidential information containing matters of public interest, safety, welfare, and national security." H.R.Rep.No.700, Supra, at 4.8 The objective of preventing "rummaging" plainly adds no support to the argument that Congress meant that distinctions should be made based upon the occupation of the Government official to whom the witness gave the statement.9
22
The Government urges as a "primary reason" for adopting its construction that it is unfair to allow defense counsel to impeach a witness by using a statement that "could not fairly be said to be the witness' own rather than the product of the investigator's selections, interpretations and interpolations." Palermo v. United States, supra, at 350, 79 S.Ct., at 1223, 3 L.Ed.2d, at 1294. The short answer to that argument is that writings must be produced only to the extent they are "statements" as defined; further, § 3500(c) expressly provides a procedure for excising any matter not relevant to the witness' direct testimony.
23
For the same reasons, we see no merit in the Government's argument that, without an exception, disclosure of statements taken by Government lawyers may undermine the policies that gave rise to the work-product doctrine. See United States v. Nobles, 422 U.S. 225, 236-239, 95 S.Ct. 2160, 2169-2170, 45 L.Ed.2d 141, 152-153 (1975); Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (47). Proper application of the Act will not compel disclosure of a Government lawyer's recordation of mental impressions, personal beliefs, trial strategy, legal conclusions, or anything else that "could not fairly be said to be the witness' own" statement. "If a government attorney has recorded only his own thoughts in his interview notes, the notes would seem both to come within the work product immunity and to fall without the statutory definition of a 'statement.' " Saunders v. United States, 114 U.S.App.D.C. 345, 349, 316 F.2d 346, 350 (1963) (Reed, J.).10 Furthermore, if a witness has for some reason "adopted or approved" a writing containing trial strategy or similar matter, such matter would be excised under § 3500(c) as not relating to the subject matter of the witness' testimony or direct examination. Thus, the primary policy underlying the work-product doctrine I. e., protection of the privacy of an attorney's mental processes, United States v. Nobles, supra, 422 U.S. at 238, 95 S.Ct., at 2170, 45 L.Ed.2d, at 153 is adequately safeguarded by the Jencks Act itself.
24
The Government contends that production of statements written by Government lawyers "forces the attorney to testify as to what he remembers or what he saw fit to write down regarding witnesses' remarks." Hickman v. Taylor, supra, 329 U.S., at 513, 67 S.Ct., at 394, 91 L.Ed., at 463. Although the risk of such testimony supported approbation of the work-product doctrine in Hickman, the nature of the disclosure provided by the Jencks Act differs significantly. In Hickman the Court concluded that there was no showing of necessity strong enough to justify the requested disclosure: there was a danger of inaccuracy and untrustworthiness, there was "(n)o legitimate purpose," and use of the attorney's words for impeachment would have made the attorney a witness rather than an officer of the court. 329 U.S., at 51513, 67 S.Ct., at 394, 91 L.Ed., at 463. First, although there is some risk that a witness' words will be distorted in notes taken by a Government lawyer, see Palermo v. United States, 360 U.S., at 352, 79 S.Ct., at 1224, 3 L.Ed.2d, at 1295, there is no such danger where a witness has adopted or approved the lawyer's notes. Second, there is a clearly legitimate and congressionally recognized purpose for disclosure under the Jencks Act. The Act requires disclosure of all statements for use in impeaching witnesses and "is thus designed to further the fair and just administration of criminal justice." Campbell I, 365 U.S., at 92, 81 S.Ct., at 425, 5 L.Ed.2d, at 435. Third, the lawyer is not called upon to be a witness, since statements are produced only where they can "fairly be said to be the witness' own." Finally, we cannot accept the Government's claims that defense counsel will have a right to call Government lawyers as witnesses to "authenticate" their notes,11 nor do we find realistic the Government's fear that a lawyer will "feel impelled" to take the stand.12
25
We therefore conclude that the District Court erred in holding that the work-product doctrine bars production of writings otherwise producible under the Jencks Act.13
III
26
The Court of Appeals erred in undertaking to make the initial determination whether the materials constituted producible "statements." If that function may ever be properly undertaken by a court of appeals, the Court of Appeals should not have attempted to make the determination in this case. Campbell v. United States, 373 U.S. 487, 493, 83 S.Ct. 1356, 1360, 10 L.Ed.2d 501, 506 (1963) (Campbell II ).
27
We have recognized that a Government objection to production may require that the trial court inspect documents or hold a hearing to gather extrinsic evidence bearing on the extent to which the documents are statements producible under § 3500.14 Campbell I, supra, 365 U.S., at 92-93, 8S.Ct., at 425, 5 L.Ed.2d, at 434-435; Palermo v. United States, supra, 360 U.S., at 354-355, 79 S.Ct., at 1225-1226, 3 L.Ed.2d, at 1296-1297; cf. Campbell II, supra, 373 U.S., at 493, 83 S.Ct., at 1360, 10 L.Ed.2d, at 506. In Campbell I the Court unanimously concluded that the trial judge was obliged to conduct some inquiry into the circumstances of the witness' interview there in question. 365 U.S., at 95, 81 S.Ct., at 426, 5 L.Ed.2d, at 436; id., at 107-108, 81 S.Ct., at 432-433, 5 L.Ed.2d, at 433 (Frankfurter, J., dissenting in part and concurring in result in part). The circumstances of this case compel the same conclusion. Newman's testimony raised a sufficient question under the Act to require the trial judge to conduct such an inquiry, and since we hold that the trial judge erred in exempting the material from production as attorneys' "work product," a remand for such an inquiry by the District Court is required to determine whether petitioner's motion should have been granted.15
28
The necessity for a hearing in the District Court is highlighted by developments since our grant of the petition for certiorari. The Solicitor General has discovered that 40 of the 237 pages of material are not notes of Government lawyers but handwritten statements of Newman himself.16 Petitioner contends that the failure of the Government to turn over those 40 pages constitutes error requiring reversal of his conviction without more.17 The Government, although conceding that these 40 pages contain "statements," argues that they nevertheless were not producible. The Government contends that Newman wrote the 40 pages after completing his direct testimony in order to aid the prosecution's cross-examination of a defense witness, and thus are not producible because not in existence at the time of petitioner's motion to produce,18 but the Government admits that these assertions are not based on facts in the record. Any inquiry regarding them is not for this Court but for the District Court on remand. The same is true of the claim that in any event the contents of the 40 pages deal largely, if not entirely, with matter other than Newman's direct testimony.
29
As to the remainder of the 237 pages, there are other issues to be resolved on remand. For example, it will be necessary to determine whether the prosecutors' notes were actually read back to Newman and whether he adopted or approved them.19 In addition, the court may have to consider whether the notes were in existence at the time of petitioner's motion.20
30
We of course intimate no view whether production of any of the 237 pages of material was required in this case. That determination is to be made by the District Court. We therefore conclude that the proper disposition of this case is that of Campbell I, supra, at 98-99, 81 S.Ct., at 428, 5 L.Ed.2d, at 438. Petitioner is entitled to a redetermination of his motion for the production of the 237 pages of material. But we do not think that this Court should vacate his conviction and order a new trial, since petitioner's rights can be fully protected by a remand to the trial court with direction to hold an inquiry consistent with this opinion. The District Court will supplement the record with findings and enter a new final judgment of conviction if the court concludes after the inquiry to reaffirm its denial of petitioner's motion. This procedure will preserve petitioner's opportunity to seek further appellate review on the augmented record. On the other hand, if the court concludes that the Government should have been required to deliver the material, or part of it, to petitioner, and that the error was not harmless,21 the District Court will vacate the judgment of conviction and accord petitioner a new trial.
31
The judgment of the Court of Appeals is therefore vacated, and the case is remanded to the District Court for further proceedings consistent with this opinion.
32
It is so ordered.
33
Vacated and remanded.
34
Mr. Justice STEVENS, with whom Mr. Justice STEWART joins, concurring.
35
The statutory definition of the term "statement" was intended by Congress to describe material that could be fairly used to impeach the testimony of a witness. A major purpose of the statute was to exclude from that definition various kinds of material which lower federal courts had been requiring the Government to produce because they had misinterpreted the narrow holding of the Jencks case itself.1 That case, like the statute, applies only to material that may be used legitimately for impeachment.
36
The statutory definition is in two parts, encompassing originals of statements made by the witness (18 U.S.C. § 3500(e)(1)) and verbatim or substantially verbatim copies (§ 3500(e)(2)). Whether a particular writing is an original or a copy, it is not a statutory "statement" unless it reflects the witness' own words fully and without distortion.2 If it is truly an impeaching statement, it is in a form which either party could use to prevent the witness from testifying to facts inconsistent with those stated to the interviewer.3
37
Frequently such statements are in the form of narratives or summaries actually drafted by the interviewer and signed or otherwise unequivocally adopted or approved by the prospective witness. In such instances the document is equally a statement whether the interview was conducted by a layman or a lawyer. The question is simply whether the approval by the witness is sufficiently unambiguous to make it fair for either party at a subsequent trial to use that statement to refresh his recollection or to impeach his testimony.4
38
The writings which are made by a lawyer when he is outlining his examination of a witness are of a much different character and are intended to serve a different purpose. They may include his own impressions of the case, his proposed line of questioning, comments on his trial strategy, references to questions of admissibility, legal theory, and a host of other matters. Such comments in the prosecutor's notes may relate to the subject matter of the witness' testimony, and the witness may express approval of what the prosecutor has said about such matters. Nevertheless, it is perfectly clear that such comments by the prosecutor are not "statement(s) made by (the) witness" within the meaning of § 3500(e)(1). In short, more than relevance to the testimony and approval by the witness is necessary to make a writing a Jencks Act statement. It must first of all be the kind of factual narrative by the witness that is usable for impeachment.
39
If one of the prosecutor's notes is that kind of factual comment, it is still not a statutory statement unless that specific note has been adopted or approved by the witness. For if a witness could testify, without fear of contradiction, that the words used by the prosecutor were not his own, the document would not impeach his testimony and could not properly be offered for that purpose. General testimony that some of the notes taken by the prosecutor during a lengthy interrogation were read back to the witness, and that the witness sometimes assented to the prosecutor's version of what he said, would not justify a finding of approval of any particular note. Fairness to the witness demands a much stricter test of approval before he may be confronted with assertedly prior inconsistent statements.
40
Whether this requirement can be satisfied without the testimony of the prosecutor is a question that is not ripe for decision.5 The possibility of the need for such testimony is a matter which the trial court may appropriately consider in determining whether any specific note is producible. For nothing in the legislative history of the Act suggests that Congress intended to authorize cross-examination of the prosecutor by defense counsel. In order to avoid the risk of unseemly testimony by trial counsel and, more importantly, in order to avoid unfairness to the witness, any determination that a portion of the prosecutor's notes is producible must be supported by a finding of unambiguous and specific approval by the witness.6
41
Since I do not understand these additional comments to be inconsistent with anything in the Court's opinion, I join that opinion.
42
Mr. Justice POWELL, with whom THE CHIEF JUSTICE joins, concurring in the judgment.
43
Petitioner, Philip Goldberg, moved that the prosecutors' notes prepared during the extensive interviews with the witness Newman be produced pursuant to the Jencks Act (Act), 18 U.S.C. § 3500. The Court remands this case with directions that the trial court determine whether the prosecutors' notes were "statements" within the meaning of the Act. This disposition is stated in the following language:
44
"Newman's testimony raised a sufficient question under the Act to Require the trial judge to conduct such an inquiry, and since we hold that the trial judge erred in exempting the material from production as attorneys' 'work product,' a remand for such an inquiry by the District Court is required to determine whether petitioner's motion should have been granted." Ante, at 109 (emphasis added; footnote omitted).
45
I am in general accord with the Court's treatment of the "work product" question, but I do not agree that Newman's testimony Required the trial judge to conduct an inquiry into producibility. Indeed, had the trial judge ruled that Newman's testimony was insufficient to justify further inquiry, rather than relying on the "work product" privilege, I would have affirmed the denial of Goldberg's motion. I write separately because my disagreement with the Court on this central point raises important questions about the proper administration of the Act. Remand is appropriate for reasons other than those voiced by the majority, however, and I concur in the Court's judgment that the case should be remanded.
46
* Goldberg's motion rested solely on information elicited from Newman during cross-examination. The entire pertinent cross-examination is set out in the margin.1 The opinion of the Court concludes that the interchange in this limited cross-examination "raised a sufficient question under the Act to require the trial judge to conduct" an inquiry into whether the prosecutors' notes were producible under subsection (e)(1). At the same time, the Court purports to recognize that interview notes, whether prepared by a prosecutor or by some other interviewer, are not routinely producible.
47
"Every witness interview will, of course, involve conversation between the lawyer and the witness, and the lawyer will necessarily inquire of the witness to be certain that he has correctly understood what the witness has said. Such discussions of the general substance of what the witness has said do not constitute adoption or approval of the lawyer's notes within § 3500(e)(1), which is satisfied only when the witness has 'signed or otherwise adopted or approved' what the lawyer has written. This requirement clearly is not met when the lawyer does not read back, or the witness does not read, what the lawyer has written." Ante, at 110-111, n. 19.
48
Compare Campbell v. United States, 365 U.S. 85, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961) (Campbell I ), and Campbell v. United States, 373 U.S. 487, 83 S.Ct. 1356, 10 L.Ed.2d 501 (1963) (Campbell II ), with Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959). In my view, the fact that interview notes frequently will not be producible means that collateral proceedings into their producibility should not be required unless there is good reason to believe they may be "statements."2 In this light, it is evident that Newman's cursory and ambiguous testimony was wholly insufficient to require the judge to interrupt the trial and conduct a collateral inquiry, for it showed nothing more than "discussions of the general substance of what the witness (had) said."
49
The questions asked simply failed to focus on the critical inquiry: whether a "statement" of the witness, embodied in the prosecutors' notes, had been "adopted or approved."3 The conferences with Newman occurred from time to time over several weeks, with the prosecutors presumably taking notes at each conference. Goldberg's counsel, however, did not even ask whether notes were taken at the June 17 conference or at subsequent ones.4 As to the June 11 meeting with Newman, counsel only asked whether notes had been taken.5 The questions about the May 12 session were whether notes had been taken and, in essence, whether "discussions of the general substance" of the notes had occurred.6 The questions about the June 9 and 10 conferences and the June 16 session were more illuminating, but only slightly. Counsel did ask whether the notes had been read back "occasionally" for commentary by Newman, but he never asked whether Newman had adopted or approved any portion of the final version of the prosecutors' notes or whether the reading back of the notes had merely elicited further discussion because Newman disputed the prosecutors' understanding.7 The problem created by such aimless and unilluminating questions was compounded by counsel's satisfaction with vague and ambiguous answers that hardly evidenced the critical statutory fact of specific adoption or approval of a statement as the witness' own.8
50
A showing as generalized as this should never be sufficient to require the trial judge to conduct collateral proceedings on the producibility of prosecutors' notes. If it is, collateral inquiry always will be required, for competent prosecutors rarely will go to trial without such "discussions of the general substance" with key witnesses and the related taking of notes to be used in the examination of such witnesses.9 Certainly this would be the case with a witness of Newman's importance. The "needless trial of collateral and confusing issues" that the Court's approach encourages is not necessary for "assuring the utmost fairness to a criminal defendant" in the administration of the Jencks Act. Palermo v. United States, 360 U.S., at 355, 79 S.Ct., at 1226, 3 L.Ed.2d, at 1297.
II
51
In Palermo v. United States, supra, at 354, 79 S.Ct., at 1225, 3 L.Ed.2d, at 1296, the Court recognized that the Act provides no procedure for resolving questions about whether a particular document is a "statement." Delineation of appropriate procedures therefore falls to the courts. To date, the cases of this Court's addressing procedures have been concerned with the nature of the collateral inquiry to be conducted by the trial judge when such inquiry is necessary. See, e. g., ibid.; Campbell I, 365 U.S. 85, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961).10 But, as shown above, the nature of the collateral inquiry is not the initial question faced by the trial judge. He must first determine whether any collateral inquiry at all is necessary. My disagreement with the Court on the adequacy of Goldberg's foundational showing in this case suggests that more attention should be focused on this distinction.
52
The proper administration of the Act requires that the defendant meet an initial burden of showing that collateral inquiry is necessary to protect his rights under the Act. The placing of such a burden on the defendant is consistent with the basically adversary posture of the Act, which requires production of "statements" only upon the defendant's motion. See 18 U.S.C. § 3500(b).11 This requirement also is appropriate because the trial should not be interrupted for collateral proceedings absent a genuine need for them. Cf. Palermo v. United States, supra, 360 U.S., at 355,12 79 S.Ct., at 1226, 3 L.Ed.2d, at 1297.
53
The burden on the moving defendant is not to prove the existence of a statutory "statement." The purpose of the collateral proceeding is to resolve that issue.13 Rather, the burden is simply to establish by probative evidence usually on cross-examination of the witness alleged to have given a statement that there is reason to believe that a statutory "statement" may exist. Certainly more must be shown than a speculative possibility. If, as here, defendant's theory is that a prosecutor's notes meet the requirements of subsection (e)(1), questions must be asked the witness that focus on whether there was in fact an "adoption or approval" of a specific statement, rather than general concurrence in the correctness of the prosecutor's understanding of what the witness knows. Absent explicit answers to such questions that satisfy the defendant's burden, the trial judge should deny the motion for production without a collateral proceeding.
54
If a moving defendant meets the threshold burden of showing that a statutory "statement" may exist, the judge then must conduct a nonadversary inquiry suited to resolve the particular issue presented. Campbell I, supra, 365 U.S., at 95-96, 81 S.Ct., at 426-427, 5 L.Ed.2d, at 436-437; Palermo v. United States, supra, 360 U.S., at 354-355, 79 S.Ct., at 1225-1226, 3 L.Ed.2d, at 1296-1297. If the trial judge's inquiry is inadequate when inquiry is needed, it is appropriate for an appellate court to remand for further proceedings. In this case, however, the need for collateral proceedings was not shown, and if the trial judge had denied Goldberg's motion on this ground the affirmance of denial by the Court of Appeals would have been appropriate.
III
55
In conducting collateral proceedings, when appropriate, the trial judge must be faithful to the substantive standards of producibility embodied in the Act. I agree with Mr. Justice STEVENS that when subsection (e)(1) is relied upon a prosecutor's notes are producible only upon a "finding of unambiguous and specific approval" of specific notes. Ante, at 116. In my view, such a finding depends upon the witness' having approved specific notes with the knowledge that he is formalizing a statement upon which he may be cross-examined. Nothing less is sufficiently "unambiguous" in this context. This requirement is implicit in the standards of producibility embodied in subsections (e)(1) and (e)(2). Moreover, the requirement is necessary to protect interests sought to be served by the Act.
56
In applying the Act to typical interview notes alleged to have been "adopted or approved" by a witness, we must remember that such notes do not fit within the core of the Act. Subsection (e)(1) includes "Written statement(s) made by (the) witness and signed or otherwise adopted or approved by him."14 Subsection (e)(2), not relied upon in this case, requires a "substantially verbatim" reproduction of an "oral statement made by (the) witness and recorded contemporaneously." Typical interview notes are selective even episodic and therefore fall outside of subsection (e)(2). Even if "adopted or approved" by the witness, such notes were not written by the witness himself and therefore fall without the core of subsection (e)(1). Typical interview notes that allegedly have been "adopted or approved" thus lack important guarantees of dependability that Congress relied upon in the central concept of subsections (e)(1) and (e)(2).15 These guarantees, it should be noted, arise partly from the sense that a witness normally would have of "going on the record"16 when he makes a statement within the core of subsection (e) (1) or subsection (e)(2).17 It is to supply a comparable guarantee of dependability that the witness should know he is adopting the interview notes as a formalized statement.18
57
This exacting standard is required by the Act's attempt to assure fairness to witnesses and the Government as well as to defendants. See Palermo v. United States, 360 U.S., at 350, 79 S.Ct., at 1223, 3 L.Ed.2d, at 1294; Campbell I, 365 U.S., at 95, 81 S.Ct., at 426, 5 L.Ed.2d, at 436. As every trial lawyer knows, the testimony given in court rarely conforms precisely to what the witness has said prior to trial in interviews with counsel. This is true in part because lengthy exploratory interviews often are required to refresh the witness' memory sufficiently to allow him to reconstruct events that may have transpired long before.19 Such interviews and the related note taking serve to distill the essence of what the witness knows and to identify the relevant. The Act was not designed to allow a witness to be impeached by every arguable variation between his trial testimony and notes written by the prosecutor and casually approved by the witness during this process. The witness may have expressed only general assent to the prosecutor's understanding without any consciousness that he had to be ready to stand by every word in or nuance conveyed by the prosecutor's notes. If notes are producible on a showing of less than knowing adoption as a formal statement, honest and reliable witnesses will be postured wrongly before the jury as having made inconsistent statements. This is unfair to the witness, and it unduly handicaps the Government's efforts to convict guilty defendants.20
IV
58
For the reasons expressed in Parts I and II, the trial judge was entitled to deny Goldberg's motion without conducting a collateral inquiry. But he did not deny the motion because of the insufficient foundational showing. Rather, he ruled that the "work product" privilege protected the presecutors' notes. Goldberg's counsel may not have sought to supplement his foundational showing because he had been led reasonably to believe that he had carried the burden of showing the necessity of an inquiry, and that the judge's denial was based solely on a mistaken view as to the "work product" privilege.21 For this reason, I concur in the judgment to remand.
1
The statute provides in full:
"(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.
"(b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.
"(c) If the United States claims that any statement ordered to be produced under this section contains matter which does not relate to the subject matter of the testimony of the witness, the court shall order the United States to such deliver such statement for the inspection of the court in camera. Upon such delivery the court shall excise the portions of such statement which do not relate to the subject matter of the testimony of the witness. With such material excised, the court shall then direct delivery of such statement to the defendant for his use. If, pursuant to such procedure, any portion of such statement is withheld from the defendant and the defendant objects to such withholding, and the trial is continued to an adjudication of the guilt of the defendant, the entire text of such statement shall be preserved by the United States and, in the event the defendant appeals, shall be made available to the appellate court for the purpose of determining the correctness of the ruling of the trial
judge. Whenever any statement is delivered to a defendant pursuant to this section, the court in its discretion, upon application of said defendant, may recess proceedings in the trial for such time as it may determine to be reasonably required for the examination of such statement by said defendant and his preparation for its use in the trial.
"(d) If the United States elects not to comply with an order of the court under subsection (b) or (c) hereof to deliver to the defendant any such statement, or such portion thereof as the court may direct, the court shall strike from the record the testimony of the witness, and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.
"(e) The term 'statement,' as used in subsections (b), (c), and (d) of this section in relation to any witness called by the United States, means
"(1) a written statement made by said witness and signed or otherwise adopted or approved by him;
"(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or
"(3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury."
2
In the Court of Appeals' opinion the bracketed word is "defendant" rather than "witness," but this error was apparently inadvertent.
3
The Court granted the petition "limited to Question 8 presented by the petition," 422 U.S. 1006, 95 S.Ct. 2627, 45 L.Ed.2d 669, which reads as follows:
"Whether 18 U.S.C. § 3500, the Jencks Act, contains an 'attorney's work product exception'; and whether a Government attorney's notes of conversations with the key Government witness, to whom the prosecutors read back their notes from time to time where the witness corrected same, which notes were prepared 'only after lengthy conversations had occurred and a mutual understanding of the factual situation' had been reached, if not compellable under the Jencks Act, are compellable under the doctrine of Brady vs. Maryland, (373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963))."
In light of our result, we need not address the Brady claim. See n. 15, Infra.
4
The other three codefendants entered guilty pleas.
5
"We believe that there is no broad attorney's work-product exception to the Jencks Act that shelters statements relating to the subject matter of the testimony of a witness merely because the statements were obtained by a government attorney rather than a government investigator. For if what is involved is truly the statement of the Witness that is, a statement written and signed or otherwise formally adopted or approved by him or a substantially verbatim recording of an oral statement by definition it does not contain the mental impressions, trial strategy or personal beliefs of an attorney. Such material thus implicates only tangentially, if at all, the policies underpinning the work product doctrine." Brief for United States 27-28. But an inconsistent position is suggested, Id., at 19-20, 49-53, and n. 32.
6
The phrase "to an agent of the Government" was deleted from § 3500(a) in 1970 when the Act was amended to add grand jury statements to the statutory definition of "statement". Pub.L. 91-452, § 102, 84 Stat. 926. Petitioner recognizes that the deletion was not intended otherwise to expand the disclosure requirements of the Act.
7
The Government cites a statement by Senator Javits that "this bill is intended to relate only to statements or reports of government agents, and we understand those to mean enforcement officials," 103 Cong.Rec. 15927 (1957), and argues that "(i)n common parlance a government trial attorney is not considered an 'enforcement official.' " No justification is advanced, and we can think of none, for excluding some Department of Justice employees, but not others, from the category of enforcement officials. In any event the Javits statement is a weak reed upon which to rest the argument. Senator Javits' statement had nothing whatever to do with the kind of official to whom a witness' statement is given; he was responding to an inquiry as to the officials who must respond to an order to deliver materials:
"MR. WATKINS. Suppose the information is in the files of the United States marshal for the district.
"MR. JAVITS. The normal discovery rules would apply, because this bill is intended to relate only to statements or reports of Government agents, and we understand those to mean enforcement officials." Ibid.
And that his use of the description "enforcement officials" was not meant as a limitation is crystal clear in his final response to the inquiry:
"MR. JAVITS. I am willing to say this to the Senator: I would be glad, for myself, to apply the provisions of this bill to all officials of the Federal Government. If the words do go that far, it is perfectly all right with me, and I know exactly what I am voting for. I think they do." Ibid.
8
The Government's assertion that Congress was concerned that "a government trial lawyer's notes made in preparation for trial not be routinely disclosed to the defense" is totally without support in the legislative history and the Government cites none. On the contrary, the Government expressed its agreement with the disclosure of materials within the definition of § 3500(e), without suggesting that a Government lawyer's notes are protected. See H.R.Rep.No.700, 85th Cong., 1st Sess., 7-12 (1957) (statement of Attorney General Brownell).
9
It is also urged that notes of an attorney of an interview will differ from those taken by investigative agents. The trial attorney, it is argued, is more likely to record mental impressions and trial strategy and take notes only for the purpose of personal recollection, a "highly individualistic matter." The investigative agent, on the other hand, has assertedly greater concern with recording a witness' statement completely, because he is gathering facts, "raw data," to be used by others. Those arguments may be relevant to the determination whether given materials constitute a "statement," but the distinction in this respect cannot, in the face of the Act's broad and inclusive definition of "statement," make the obligation to produce turn on the title of the official who takes the statement. In addition, the distinction would be recognized in proper administration of the Act. See Infra, at 106.
10
For the same reason, we are not persuaded that acceptance of a definition of "statement" that includes prosecutors' notes "might reveal the inner workings of the investigative process and thereby injure the national interest." Palermo v. United States, 360 U.S. 343, 350, 79 S.Ct. 1217, 1223, 3 L.Ed.2d 1287, 1294 (1959).
11
There is no reason to require or permit such authentication where the district court has already determined that a writing has been adopted or approved by a Government witness.
12
The Government suggests that there may be a need for testimony to explain the meaning of a lawyer's notes. But any explanation by the lawyer would be meaningless if the notes as written have been adopted or approved by the witness. Further, the Government asserts that a lawyer may want to testify to contradict his witness. Such a desire, we are told, is created where a witness repudiates some part of the notes that is inconsistent with the witness' trial testimony. Once the court has found that the witness adopted or approved the lawyer's writings, further testimony either by the lawyer or the witness as to whether the statement was made is repetitive and could be excluded by the court in its discretion. Fed.Rule Evid. 403. In addition, if the witness claims that he was being truthful in the statement and not at trial, or vice versa, or simply admits the inconsistency, we see no compelling motivation for testimony by the Government lawyer who wrote the statement; the statement used to impeach the witness is not the lawyer's, but the witness'.
The Government also urges that the risk of forcing lawyers to testify would be eliminated by construing the Act to require written adoption or approval "comparable to a signature." We see no realistic risk for the reasons stated above. Furthermore, we have not discovered any meaningful legislative history to support such a reading.
13
The Courts of Appeals that have considered the applicability of the "work product" doctrine to the Jencks Act have uniformly reached the same conclusion. Saunders v. United States, 114 U.S.App.D.C. 345, 349, 316 F.2d 346, 350 (1963) (Reed, J.); United States v. Aviles, 315 F.2d 186, 191 (C.A.2 1963); United States v. Hilbrich, 341 F.2d 555, 557 (C.A.7), cert. denied, 381 U.S. 941, 85 S.Ct. 1775, 14 L.Ed.2d 704 (1965); United States v. Smaldone, 484 F.2d 311, 317 (C.A.10 1973), cert. denied, 415 U.S. 915, 94 S.Ct. 1411, 39 L.Ed.2d 469 (1974).
14
Some courts have suggested that the trial court has an "affirmative duty" to secure the necessary evidence. E. g., Saunders v. United States, supra, 114 U.S.App.D.C., at 348, 316 F.2d, at 349; United States v. Chitwood, 457 F.2d 676, 678 (CA6 1972); United States v. Keig, 320 F.2d 634, 637 (CA7 1963); Ogden v. United States, 303 F.2d 724, 734 (CA9 1962).
15
Pending the result of the proceedings on remand, we decline to examine the 237 pages of material. That is initially a task for the District Judge. For that reason any disposition of the Brady issue raised by petitioner, see n. 3, Supra, must be deferred pending the District Court's inquiry on remand.
16
After this discovery the Solicitor General delivered all 237 pages of material to petitioner's counsel. On oral argument he advised the Court that this disclosure was not intended as a concession that the material was producible under the Jencks Act.
17
The Government argues that the issues pertaining to the notes written by Newman are beyond the scope of our grant of certiorari, which was limited to the question whether there is an attorney's work-product exception to the Jencks Act. See n. 3, Supra. But petitioner was not aware at the time of filing his petition for review that 40 pages of the notes were written by Newman, and the petition obviously was intended to cover the full 237 pages of papers. In that circumstance we shall treat the questions raised by the Newman notes as subsumed in the question presented.
18
Another matter for the District Court is the parties' dispute whether there was a proper Jencks request when Newman testified on rebuttal.
19
Every witness interview will, of course, involve conversation between the lawyer and the witness, and the lawyer will necessarily inquire of the witness to be certain that he has correctly understood what the witness has said. Such discussions of the general substance of what the witness has said do not constitute adoption or approval of the lawyer's notes within § 3500(e)(1), which is satisfied only when the witness has "signed or otherwise adopted or approved" what the lawyer has written. This requirement clearly is not met when the lawyer does not read back, or the witness does not read, what the lawyer has written.
20
See n. 18, Supra. By noting some of the issues that must be dealt with on remand we hope we have set forth the most significant we do not intend to limit the remand proceeding. It may be that further issues, heretofore overlooked or raised by evidence adduced in the remand proceeding, will also be presented for consideration.
21
Since courts cannot "speculate whether (Jencks material) could have been utilized effectively" at trial, Clancy v. United States, 365 U.S. 312, 316, 81 S.Ct. 645, 648, 5 L.Ed.2d 574, 577 (1961), the harmless-error doctrine must be strictly applied in Jencks Act cases. Campbell v. United States, 373 U.S. 487, 497 n. 14, 83 S.Ct. 1356, 1362, 10 L.Ed.2d 501, 509 (1963) (Campbell II ); Rosenberg v. United States, 360 U.S. 367, 371, 79 S.Ct. 1231, 1234, 3 L.Ed.2d 1304, 1307 (1959); Id., at 376, 79 S.Ct., at 1236, 3 L.Ed.2d at 1310; (Brennan, J., dissenting). See Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557, 1566 (1946); Gordon v. United States, 344 U.S. 414, 422-423, 73 S.Ct. 369, 374, 375, 97 L.Ed. 447, 455 (1953).
1
See H.R.Rep.No.700, 85th Cong., 1st Sess., 2-3 (1957); Palermo v. United States, 360 U.S. 343, 345-346, and n. 3, 79 S.Ct. 1217, 1221, 3 L.Ed.2d 1287, 1291-1292.
2
Congress was specifically concerned about the danger of distortion and misrepresentation inherent in a report which merely selects portions, albeit accurately, from a lengthy oral interview. We emphasized this concern in a discussion of the legislative history of § 3500(e)(2) which is unquestionably relevant to the issue before us even though we are directly concerned with § 3500(e)(1):
"It is clear that Congress was concerned that only those statements which could properly be called the witness' own words should be made available to the defense for purposes of impeachment. It was important that the statement could fairly be deemed to reflect fully and without distortion what had been said to the government agent. Distortion can be a product of selectivity as well as the conscious or inadvertent infusion of the recorder's opinions or impressions. It is clear from the continuous congressional emphasis on 'substantially verbatim recital,' and 'continuous, narrative statements made by the witness recorded verbatim, or nearly so . . .,' see Appendix B, Post, p. 358, that the legislation was designed to eliminate the danger of distortion and misrepresentation inherent in a report which merely selects portions, albeit accurately, from a lengthy oral recital. Quoting out
of context is one of the most frequent and powerful modes of misquotation. We think it consistent with this legislative history, and with the generally restrictive terms of the statutory provision, to require that summaries of an oral statement which evidence substantial selection of material, or which were prepared after the interview without the aid of complete notes, and hence rest on the memory of the agent, are not to be produced. Neither, of course, are statements which contain the agent's interpretations or impressions." Palermo v. United States, supra, at 352-353, 79 S.Ct., at 1224, 3 L.Ed.2d, at 1295.
3
Although typically at trial it is defense counsel who tries to impeach a Government witness, it is important to remember that there are many situations in which the prosecution may also have the right to confront a recalcitrant, forgetful, or perjurious witness with a prior statement in order to induce him to tell the whole truth and nothing but the truth. In deciding whether a writing is a Jencks Act statement, it is therefore important for the district court to keep in mind the reason for its production.
"It has always been, and will remain, the practice of the FBI and every other Federal law enforcement agency to take written statements of important witnesses. This is vital not only to insure the accuracy of the statement at the time it is made but to tie the witness down so that he will stand by the statement which he has read and signed." H.R.Rep.No.700, Supra, at 6.
4
A summary of an interview with a witness becomes that witness' own words only when adopted as such by the witness. Thus after a witness has authenticated or verified a summary it is unnecessary to determine whether it is "substantially verbatim" because by the terms of 18 U.S.C. § 3500(e)(1) it has become the witness' own words.
5
The problem is apt to arise when a witness has approved some but not all of what the prosecutor has said; for then it is necessary to ascertain Which notes have been specifically approved. Normally that question would have to be answered on the basis of colloquy or testimony outside the presence of the jury. In such a hearing the notes could not be read to the witness without impairing their usefulness as impeaching evidence, see Cambell v. United States, 365 U.S. 85, 97, 81 S.Ct. 421, 427, 5 L.Ed.2d 428, 437, accordingly, there is a real danger that the lawyer's testimony may be needed if the issue is in dispute. Moreover, a finding of approval by the judge in a proceeding outside the presence of the jury would not foreclose a denial of such approval by the witness when he is on the stand. In that event, only the prosecutor's testimony or stipulation could qualify the document for use as impeaching evidence.
6
In Palermo we emphasized the need for fairness to the witness:
"One of the most important motive forces behind the enactment of this legislation was the fear that an expansive reading of Jencks would compel the undiscriminating production of agent's summaries of interviews regardless of their character or completeness. Not only was it strongly feared that disclosure of memoranda containing the investigative agent's interpretations and impressions might reveal the inner workings of the investigative process and thereby injure the national interest, but it was felt to be grossly unfair to allow the defense to use statements to impeach a witness which could not fairly be said to be the witness' own rather than the product of the investigator's selections, interpretations and interpolations." 360 U.S., at 350, 79 S.Ct., at 1223.
1
"Q. So you met with the Government representatives on May 12, is that right?
"A. Yes, I met with the Government on May 12th.
"Q. And did you discuss what your testimony would be here?
"A. Yes.
"Q. Who did you discuss it with?
"A. Mr. Lebowitz, Mr. Keilp.
"Q. And did they take notes or jot down anything at all of what you were saying?
"A. Yes.
"Q. There wasn't a reporter present?
"A. No.
"Q. And as they took notes, did they sometimes question you about what you had just said to make sure that they got it down correctly?
"A. They may have. I don't really remember that that was part of the pattern.
"Q. Did you discuss your testimony (on June 9 and 10)?
"A. With Mr. Lebowitz and Mr. Keilp?
"Q. Yes.
"A. Yes.
"Q. Was a reporter there?
"A. No.
"Q. As you were explaining or discussing your testimony, did anyone take notes?
"A. The two gentlemen took notes.
"Q. Were they occasionally read back to you to see whether or not they correctly understood what you were saying?
"A. Probably from time to time.
"Q. All right, sir. Did you either correct them or say, 'Yes, that's right,' or 'No, that's not right because it went this way, I believe,' words to that effect?
"A. Yes, that would happen.
"Q. Did you meet with them on the 11th (of June)? Mondays have not been a court day thus far.
"A. Yes, I did meet with them on the 11th.
"Q. Same procedure, you talked with them, they write down what you are saying?
"A. Yes.
"Q. BY MR. SMALTZ: When was the next time you came back to Phoenix?
"A. Saturday the 16th.
"Q. Did you meet with the Government representative?
"A. Yes.
"Q. Same procedure?
"A. Yes.
"Q. Same questions, answers, read-backs, notes, whole bit?
"Yes, sir.
"Q. How long were you in conference with the Government representative on the 16th?
"A. Well, I have a recollection of arriving at the Federal Building a little after 1:00 o'clock. I think we met until 5 or 6.
"Q. How long on the 17th?
"A. From about 11 to 5 or so.
"Q. When was the next time that you met with Government representatives after the 17th?
"A. I have met with them during portions of each day since.
"Q. Did they go over your proposed testimony with you?
"A. Yes, they went over my testimony with me.
"MR. SMALTZ: Your honor, at this time, under 3500, I move for the—"
2
When the prosecutor is in possession of documents which he knows to be statutory "statements," he is required to produce them upon the defendant's motion without any showing on the part of the defendant. This opinion is addressed only to the problem that arises when the producibility of documents is disputed and the defendant seeks to obtain a collateral inquiry into the issue.
3
Neither the Court nor the parties have considered whether the notes fall within the subsection (e)(2) definition of "a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously." 18 U.S.C. § 3500(e)(2). The questions asked of Newman were too unfocused to raise that possibility, just as they were insufficient to elicit the type of information justifying inquiry into producibility under subsection (e)(1).
4
The only question about the June 17 session related to its length. The only pertinent question about subsequent sessions was:
"Q. Did they go over your proposed testimony with you?"
5
"Q. Same procedure, you talked with them, they write down what you are saying?"
Newman's testimony ultimately suggested that there was in fact no meeting on June 11.
6
"Q. And did they take notes or jot down anything at all of what you were saying?
"Q. And as they took notes, did they sometimes question you about what you had just said to make sure that they got it down correctly?"
The latter question elicited an essentially negative response:
"A. They may have. I don't really remember that that was part of the pattern."
Newman subsequently indicated that he met with the prosecutors on May 13 rather than May 12.
7
"Q. Were they occasionally read back to you to see whether or not they correctly understood what you were saying?
"A. Probably from time to time.
"Q. All right, sir. Did you either correct them or say, 'Yes, that's right,' or 'No, that's not right because it went this way, I believe,' words to that effect?
"A. Yes, that would happen.
"Q. Same procedure?
"A. Yes.
"Q. Same questions, answers, read-backs, notes, whole bit?
"A. Yes, sir."
8
See, E. g., n. 5, Supra.
9
Indeed, only the foolish or exceptionally talented counsel will depend solely on his memory when preparing for the examination of a key witness. But the fact that counsel usually will take notes does mean that the notes often will be "statements." Counsel rarely take down verbatim what witnesses say in these preparatory conferences. Consequently, prosecutors' notes may be expected to meet the requirements of subsection (e)(2) very infrequently. Cf. n. 3, Supra. The notes taken will vary from cryptic "memory jogs" to full summaries of the anticipated testimony.
10
Neither Palermo nor Campbell I raised the question of what foundational showing a defendant must make to necessitate collateral proceedings. In both cases the disputed documents had been submitted for the trial judge's inspection. Attention in those cases therefore was focused on what the nature of collateral inquiry should be when such inquiry is appropriate.
11
The adversary posture of the Act reflects "the directly opposed interests protected by the statute the interest of the Government in safeguarding government papers from disclosure, and the interest of the accused in having the Government produce 'statements' which the statute requires to be produced." Campbell I, 365 U.S., at 95, 81 S.Ct., at 426, 5 L.Ed.2d, at 436.
12
An additional reason for putting such a burden on the moving defendant is that the Government's good faith in meeting its responsibilities under the Act should be presumed. Cf. Id., at 103-104, 81 S.Ct., at 430-431, 5 L.Ed.2d, at 441 (Frankfurter, J., dissenting in part and concurring in result in part).
13
The very nature of the question in a collateral inquiry into producibility under subsection (e)(1) re-emphasizes the need for the defendant to make a showing that such a proceeding is needed. A considerable amount of time could be consumed in determining the producibility of prosecutors' notes, for it is not unusual for a diligent prosecutor to spend more time mastering the details of a key witness' knowledge and anticipated testimony than is required in the courtroom presentation of such testimony.
14
In Campbell I, 365 U.S., at 104-106, 81 S.Ct., at 431-432, 5 L.Ed.2d, at 441-442, Mr. Justice Frankfurter, joined by three other Justices, expressed the view that nonverbatim interview notes were never producible under the Act because subsection (e)(1) was addressed only to documents written by the witness. This view was rejected by a majority of the Court in Id., at 93-94, 81 S.Ct., at 425-426, 5 L.Ed.2d, at 435, and the majority position was reaffirmed in Campbell II, 373 U.S. 487, 83 S.Ct. 1356, 10 L.Ed.2d 501 (1963). The Campbell majorities properly recognized that there is little difference between a formal statement drafted by the witness and one drafted by the interviewer for the witness' approval. But the rule in Campbell I and II cannot be administered without sensitivity to the vast difference between the witness' approving a formally drafted statement and his approving far less formal interview notes. See the text, Infra, at 126-127.
15
Statements within the core of subsection (e)(1) have the dual guarantees of the witness' writing and his ratifying. Interview notes brought within subsection (e)(1) solely by the witness' ratification lack the former safeguard.
16
It should not be forgotten that the Act provides for disclosure only of statements made by a "witness called by the United States." 18 U.S.C. § 3500(b). In the ordinary course the Government in taking "statements" of such witnesses will impress upon them the probable use of the statements. Congress recognized as much, noting that one reason the Government takes statements is to "tie the witness down so that he will stand by the statement." H.R.Rep.No.700, 85th Cong., 1st Sess., 6 (1957). The Government also may be expected to make producible statements available to such witnesses as aids to memory. See Rosenberg v. United States, 360 U.S. 367, 370, 79 S.Ct. 1231, 1233, 3 L.Ed.2d 1304, 1307 (1959).
17
A witness would have an especially strong sense of "going on the record" in the context of subsection (e)(3), which governs a "statement . . . made by (the) witness to a grand jury." 18 U.S.C. § 3500(e)(3). Interestingly, Congress has required somewhat less in the way of recording safeguards under subsection (e)(3) than under subsections (e)(1) and (e)(2). See n. 18, Infra. Presumably this is because procedural safeguards seem less necessary as the formality of the "statement" increases. This, of course, further supports the requirement elaborated in the text.
18
The basic notion that the Act, at least at its core, contemplates a formalized statement finds additional support in subsection (e)'s definitional approach. In defining "statement" as used in subsections (b), (c), and (d), subsections (e)(1), (e)(2), and (e)(3) use the word "statement":
"(e) The term 'statement,' as used in subsections (b), (c), and (d) of this section in relation to any witness called by the United States means
"(1) a written statement made by said witness and signed or otherwise adopted or approved by him;
"(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or
"(3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury."
When it chose this language, Congress was not unaware that to lawyers "statement" connotes a formalized recordation of views:
"It has always been and will remain, the practice of the FBI and every other Federal law enforcement agency to take written statements of important witnesses. This is vital not only to insure the accuracy of the statement at the time it is made but to tie the witness down so that he will stand by the statement which he has read and signed." H.R.Rep.No.700, Supra, at 6.
19
It also is true because in the absence of unique powers of recall no witness can repeat verbatim what he has said previously in long interviews. This is not to suggest that such deviations indicate that the basic substance of the witness' testimony changes. Precision as to some facts may be expected (E. g., whether the witness was present when the bank robbery occurred), but some variations are inevitable in one's memory and the articulation thereof with respect to details (E. g., the precise time sequence of collateral events, the exact words used by actors or other witnesses).
20
Such a practice also would be unfair to the individual prosecutor. Without guidance as to what is producible he could never know which of his notes might be subject to court order, and he might well fail to take sufficient care in getting a witness' focused approval. Again, in the core area of subsection (e)(1) and in subsection (e)(2) the prosecutor is not faced with such uncertainty. He knows, for example, that if he elects to record or transcribe an entire interview with a witness, the recording or transcription will be a subsection (e)(2) statement. Such predictability was one of the goals of the Act.
21
On the day after the trial judge originally denied the motion for production, Goldberg renewed his motion for disclosure orally. The following colloquy transpired:
"THE COURT: . . . Did you find a case that says they are compellable?
"MR. SMALTZ: No, sir, but I didn't find one that says they are not. And the Jencks Act
"THE COURT: Tell you what you do, Mr. Smaltz. We are going to go ahead with the jury trial this morning and we are going to be here at least, from what you have both told me, another ten days, and over the weekend you can prepare whatever kind of a memorandum you want to give me on Monday that the Government can respond to Monday afternoon, and I will take a look at it and let's go on with the jury trial this morning.
"MR. SMALTZ: Well all right, but one other Okay, I'm happy to do that, Your Honor, except would you, at least, consider ordering the Government to make available for your in camera inspection their notes?
"THE COURT: I will order the Government to get their notes together and have them available in case an order is made, and I will see your memorandum first.
"MR. SMALTZ: All right, sir, thank you. I am ready to go."
| 01
|
425 U.S. 80
96 S.Ct. 1330
47 L.Ed.2d 592
John A. GEDERS, Petitioner,v.UNITED STATES.
No. 74-5968.
Argued Dec. 1, 1975.
Decided March 30, 1976.
Syllabus
The trial court's order preventing petitioner, the defendant in a federal criminal prosecution, from consulting his counsel "about anything" during a 17-hour overnight recess in the trial between his direct- and cross-examination Held to deprive petitioner of his right to the assistance of counsel guaranteed by the Sixth Amendment. Pp. 86-91.
(a) A federal trial judge has broad power to sequester nonparty witnesses before, during, and after their testimony to restrain them from "tailoring" their testimony, to aid in detecting less-than-candid testimony, and (in the case of a recess called before testimony is completed) to prevent improper attempts to influence the testimony in light of the testimony already given. But a sequestration order applied to a criminal defendant affects the defendant quite differently from a nonparty witness, who presumably has no stake in the trial's outcome and little, other than his own testimony, to discuss with trial counsel. The defendant has the right to be present for all testimony and may discuss his testimony with his attorney up to the time he takes the witness stand, so sequestration accomplishes less when applied to a defendant during a recess. A defendant is ordinarily ill-equipped to comprehend the trial process without a lawyer's guidance; he often must consult with counsel during the trial, and during overnight recesses often discusses the events of the day's trial and their significance. Pp. 87-89.
(b) The problem of possible improper influence on testimony or "coaching" can be dealt with in other ways, such as by a prosecutor's skillful cross-examination to discover whether "coaching" occurred during a recess, or by the trial judge's directing that the examination of witnesses continue without interruption until completed, or otherwise arranging the sequence of testimony so that direct- and cross-examination of a witness will be completed without interruption. Pp. 89-91.
(c) To the extent that conflict remains between the defendant's right to consult with his attorney during an overnight recess in the trial, and the prosecutor's desire to cross-examine the defendant without the intervention of counsel, with the risk of improper "coaching," the conflict must, under the Sixth Amendment, be resolved in favor of the right to the assistance and guidance of counsel. P. 91
5 Cir., 502 F.2d 1, reversed and remanded.
Seymour L. Honig, for petitioner.
Sidney M. Glazer, Washington, D.C., for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari to consider whether a trial court's order directing petitioner, the defendant in a federal prosecution, not to consult his attorney during a regular overnight recess, called while petitioner was on the stand as a witness and shortly before cross-examination was to begin, deprived him of the assistance of counsel in violation of the Sixth Amendment.
2
A grand jury in the Middle District of Florida returned indictments charging petitioner and several codefendants with conspiracy to import and illegal importation of a controlled substance into the United States, in violation of 18 U.S.C. § 371 and 21 U.S.C. § 952(a), and with possession of marihuana, in violation of 21 U.S.C. § 841(a). The charges grew out of plans for several of the defendants to fly about 1,000 pounds of marihuana from Colombia into the United States, plans that might have succeeded but for the fact that the pilot of the charter plane informed the United States Customs Service of the arrangements.
3
The trial of petitioner and one codefendant commenced on Tuesday, October 9, 1973. Petitioner testified in his own defense on Tuesday, October 16, and Wednesday, October 17. Petitioner's counsel concluded direct examination at 4:55 p. m. Tuesday. When the court recessed for the night, and after the jury departed, the prosecutor asked the judge to instruct petitioner not to discuss the case overnight with anyone. Throughout the trial, the judge had given the same instruction to every witness whose testimony was interrupted by a recess.
4
Petitioner's attorney objected, explaining that he believed he had a right to confer with his client about matters other than the imminent cross-examination, and that he wished to discuss problems relating to the trial with his client. The judge indicated his confidence that counsel would properly confine the discussion, but expressed some doubt that petitioner would be able to do so, saying: "I think he would understand it if I told him just not to talk to you; and I just think it is better that he not talk to you about anything." The judge suggested that counsel could have an opportunity immediately after the recess to discuss with his client matters other than the cross-examination, such as what witnesses were to be called the next day, and he indicated that he would grant a recess the next day so that counsel could consult with petitioner after petitioner's testimony ended. Counsel persisted in his objection, although he appropriately indicated that he would as in fact he did comply with the court's order.1
5
When court convened the next morning, petitioner's attorney asked and received permission to reopen his direct examination of petitioner. The cross-examination which followed was finished in the morning; the judge then called the luncheon recess. Petitioner whose testimony on redirect examination was yet to come—was permitted to confer with his attorney during the noon recess. The trial concluded the following day, and petitioner was convicted on all three counts; he was sentenced to concurrent three-year prison terms.
6
The Court of Appeals affirmed petitioner's conviction. United States v. Fink, 502 F.2d 1 (CA5 1974 On the point here at issue, the court held that petitioner's failure to claim any prejudice resulting from his inability to consult with counsel during one evening of the trial was fatal to his appeal. In so holding, the court relied on United States v. Leighton, 386 F.2d 822 (CA2 1967), cert. denied, 390 U.S. 1025, 88 S.Ct. 1412, 20 L.Ed.2d 282 (1968), dealing with a similar order applied to a noon recess, and rejected the Third Circuit's position that prejudice need not be shown, United States v. Venuto, 182 F.2d 519 (1950), in a case involving an overnight recess. The Court of Appeals also disposed of several other claims of error. We granted certiorari limited to petitioner's claim that the order forbidding consultation with his attorney overnight denied him the assistance of counsel in violation of the Sixth Amendment. 421 U.S. 929, 95 S.Ct. 1654, 44 L.Ed.2d 86.
7
Our cases have consistently recognized the important role the trial judge plays in the federal system of criminal justice. "(T)he judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law." Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 77 L.Ed. 1321, 1324 (1933). A criminal trial does not unfold like a play with actors following a script; there is no scenario and can be none. The trial judge must meet situations as they arise and to do this must have broad power to cope with the complexities and contingencies inherent in the adversary process. To this end, he may determine generally the order in which parties will adduce proof; his determination will be reviewed only for abuse of discretion. Goldsby v. United States, 160 U.S. 70, 74, 16 S.Ct. 216, 218, 40 L.Ed. 343, 345 (1895); United States v. Martinez-Villanueva, 463 F.2d 1336 (CA9 1972); Nelson v. United States, 415 F.2d 483, 487 (CA5 1969), cert. denied, 396 U.S. 1060, 90 S.Ct. 751, 24 L.Ed.2d 754 (1970). Within limits, the judge may control the scope of rebuttal testimony, United States v. Chrzanowski, 502 F.2d 573, 575-576 (CA3 1974); United States v. Perez, 491 F.2d 167, 173 (CA9), cert. denied Sub nom., Lombera v. United States, 419 U.S. 858, 95 S.Ct. 106, 42 L.Ed.2d 92 (1974); may refuse to allow cumulative, repetitive, or irrelevant testimony, Hamling v. United States, 418 U.S. 87, 127, 94 S.Ct. 2887, 2912, 41 L.Ed.2d 590, 626 (1974); County of Macon v. Shores, 97 U.S. 272, 24 L.Ed. 889 (1877); and may control the scope of examination of witnesses, United States v. Nobles, 422 U.S. 225, 231, 95 S.Ct. 2160, 2166, 45 L.Ed.2d 141, 149 (1975); Glasser v. United States, 315 U.S. 60, 83, 62 S.Ct. 457, 470, 86 L.Ed. 680, 706 (1942). If truth and fairness are not to be sacrificed, the judge must exert substantial control over the proceedings.
8
The judge's power to control the progress and, within the limits of the adversary system, the shape of the trial includes broad power to sequester witnesses before, during, and after their testimony. Holder v. United States, 150 U.S. 91, 92, 14 S.Ct. 10, 37 L.Ed. 1010 (1893); United States v. Robinson, 502 F.2d 894 (CA7 1974); United States v. Eastwood, 489 F.2d 818, 821 (CA5 1974). Wigmore notes that centuries ago, the practice of sequestration of witnesses "already had in English practice an independent and continuous existence, even in the time of those earlier modes of trial which preceded the jury and were a part of our inheritance of the common Germanic law." 6 J. Wigmore, Evidence § 1837, p. 348 (3d ed., 1940). The aim of imposing "the rule on witnesses," as the practice of sequestering witnesses is sometimes called, is twofold. It exercises a restraint on witnesses "tailoring" their testimony to that of earlier witnesses; and it aids in detecting testimony that is less than candid. See Wigmore, Supra, § 1838; F. Wharton, Criminal Evidence § 405 (C. Torcia ed. 1972). Sequestering a witness over a recess called before testimony is completed serves a third purpose as well preventing improper attempts to influence the testimony in light of the testimony already given.
9
The trial judge here sequestered all witnesses for both prosecution and defense and before each recess instructed the testifying witness not to discuss his testimony with anyone. Applied to nonparty witnesses who were present to give evidence, the orders were within sound judicial discretion and are not challenged here.
10
But the petitioner was not simply a witness; he was also the defendant. A sequestration order affects a defendant in quite a different way from the way it affects a nonparty witness who presumably has no stake in the outcome of the trial. A nonparty witness ordinarily has little, other than his own testimony, to discuss with trial counsel; a defendant in a criminal case must often consult with his attorney during the trial. Moreover, "the rule" accomplishes less when it is applied to the defendant rather than a nonparty witness, because the defendant as a matter of right can be and usually is present for all testimony and has the opportunity to discuss his testimony with his attorney up to the time he takes the witness stand.
11
The recess at issue was only one of many called during a trial that continued over 10 calendar days. But it was an overnight recess, 17 hours long. It is common practice during such recesses for an accused and counsel to discuss the events of the day's trial. Such recesses are often times of intensive work, with tactical decisions to be made and strategies to be reviewed. The lawyer may need to obtain from his client information made relevant by the day's testimony, or he may need to pursue inquiry along lines not fully explored earlier. At the very least, the overnight recess during trial gives the defendant a chance to discuss with counsel the significance of the day's events. Our cases recognize that the role of counsel is important precisely because ordinarily a defendant is ill-equipped to understand and deal with the trial process without a lawyer's guidance.
12
"The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. . . . (A defendant) is unfamiliar with the rules of evidence. . . .He lacks both the skill and knowledge adequately to prepare his defense, even though he (may) have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him." Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 64, 77 L.Ed. 158, 170 (1932).
13
See also Argersinger v. Hamlin, 407 U.S. 25, 31-36, 92 S.Ct. 2006, 2009-2012, 32 L.Ed.2d 530, 535-537 (1972); Gideon v. Wainwright, 372 U.S. 335, 343-345, 83 S.Ct. 792, 796, 9 L.Ed.2d 799, 804 (1963). Other courts have concluded that an order preventing a defendant from consulting his attorney during an overnight recess infringes upon this substantial right. See United States v. Venuto, 182 F.2d 519 (CA3 1950); People v. Noble, 42 Ill.2d 425, 248 N.E.2d 96 (1969); Commonwealth v. Werner, 206 Pa.Super. 498, 214 A.2d 276 (1965). But see People v. Prevost, 219 Mich. 233, 189 N.W. 92 (1922).2
14
There are other ways to deal with the problem of possible improper influence on testimony or "coaching" of a witness short of putting a barrier between client and counsel for so long a period as 17 hours. The opposing counsel in the adversary system is not without weapons to cope with "coached" witnesses. A prosecutor may cross-examine a defendant as to the extent of any "coaching" during a recess, subject, of course, to the control of the court. Skillful cross-examination could develop a record which the prosecutor in closing argument might well exploit by raising questions as to the defendant's credibility, if it developed that defense counsel had in fact coached the witness as to how to respond on the remaining direct examination and on cross-examination. In addition the trial judge, if he doubts that defense counsel will observe the ethical limits on guiding witnesses,3 may direct that the examination of the witness continue without interruption until completed. the judge considers the risk high he may arrange the sequence of testimony so that direct- and cross-examination of a witness will be completed without interruption. That this would not be feasible in some cases due to the length of direct- and cross-examination does not alter the availability, in most cases, of a solution that does not cut off communication for so long a period as presented by this record. Inconvenience to the parties, witnesses, counsel, and court personnel may occasionally result if a luncheon or other recess is postponed or if a court continues in session several hours beyond the normal adjournment hour. In this day of crowded dockets, courts must frequently sit through and beyond normal recess; convenience occasionally must yield to concern for the integrity of the trial itself.
15
There are a variety of ways to further the purpose served by sequestration without placing a sustained barrier to communication between a defendant and his lawyer. To the extent that conflict remains between the defendant's right to consult with his attorney during a long overnight recess in the trial, and the prosecutor's desire to cross-examine the defendant without the intervention of counsel, with the risk of improper "coaching," the conflict must, under the Sixth Amendment, be resolved in favor of the right to the assistance and guidance of counsel. Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972).
16
The challenged order prevented petitioner from consulting his attorney during a 17-hour overnight recess, when an accused would normally confer with counsel. We need not reach, and we do not deal with limitations imposed in other circumstances. We hold that an order preventing petitioner from consulting his counsel "about anything" during a 17-hour overnight recess between his direct- and cross-examination impinged upon his right to the assistance of counsel guaranteed by the Sixth Amendment.
17
Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals, with directions that it be remanded to the District Court for proceedings consistent with this opinion.
18
Reversed and remanded.
19
Mr. Justice STEVENS took no part in the consideration or decision of this case.
20
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, concurring.
21
I join in most of the Court's opinion, and I agree with its conclusion that an order preventing a defendant from consulting with his attorney during an overnight recess violates the defendant's Sixth Amendment right to counsel.
22
The Court notes that this case does not involve an order barring communication between defendant and counsel during a "brief routine recess during the trial day."1 Ante, at 89 n. 2. That is, of course, true. I would add, however, that I do not understand the Court's observation as suggesting that as a general rule no constitutional infirmity would inhere in an order barring communication between a defendant and his attorney during a "brief routine recess." In my view, the general principles adopted by the Court today are fully applicable to the analysis of Any order barring communication between a defendant and his attorney, at least where that communication would not interfere with the orderly and expeditious progress of the trial.
23
Thus, as the Court holds, a defendant who claims that an order prohibiting communication with his lawyer impinges upon his Sixth Amendment right to counsel need not make a preliminary showing of prejudice. Such an order is inherently suspect, and requires initial justification by the Government.
24
The only justification expressly considered by the Court in its opinion is the desire to avoid the risk of unethical counseling by an attorney.2 The Court holds that the fear of unethical conduct is not a sufficient ground for an order barring overnight communication between a defendant and his attorney, and the same would hold true absent the most unusual circumstances, I take it, for an order barring consultation between a defendant and his attorney at Any time before or during the trial.3 If our adversary system is to function according to design, we must assume that an attorney will observe his responsibilities to the legal system, as well as to his client. I find it difficult to conceive of any circumstances that would justify a court's limiting the attorney's opportunity to serve his client because of fear that he may disserve the system by violating accepted ethical standards. If any order barring communication between a defendant and his attorney is to survive constitutional inquiry, it must be for some reason other than a fear of unethical conduct.
1
The discussion among the judge, petitioner's attorney (Mr. Rinehart), and the prosecutor (Mr. Blasingame), summarized in the text, was:
"MR. BLASINGAME: Has this witness been instructed now that he is not to talk to anyone whatsoever, including his attorneys or anyone about this case at all?
"MR. RINEHART: If he were instructed not to talk to his attorney, I feel that it would be improper. I think I always have the right to talk to my client.
"MR. BLASINGAME: I don't think so.
"THE COURT: Well I don't know whether you requested that I so instruct another witness when there was a recess, to that effect; but you do let's make this clear you always have the right to talk to your client but except for the accident and 'accident' means something over which you have no control the cross-examination would have been right now and you would not have had an opportunity to talk to him.
"Now, because of the fact that it is 5:00 o'clock and we are recessing until tomorrow, you would have that opportunity.
"If you had requested the opportunity and this had been 2:00 o'clock and if you had said 'If the Court please, I would like to have a recess' and then, outside the presence of the Jury, had said, 'because I want to talk to my client'; what would I have said?
"MR. RINEHART: You probably would not have granted the recess, Your Honor.
"THE COURT: Should I have?
"MR. RINEHART: Not if there was something else to do, Your Honor.
"THE COURT: Well would you have had a right to just talk to your client while he is subject to cross-examination?
"MR. RINEHART: Well I would not
"THE COURT: Would you have?
"MR. RINEHART: I would not instruct my client anyway.
"THE COURT: Well would you have talked to him? Would
you have had a right to confer with him? That is what I want to know.
"MR. RINEHART: If there were matters that I felt I had not brought out on Direct and that I should have covered
"THE COURT: Before he is cross-examined?
"MR. RINEHART: Even before he is cross-examined. Sometimes we remember things we did not
"THE COURT: Yes, sir. That is the reason you are entitled to Re-direct.
"MR. RINEHART: Right.
"THE COURT: Now I would appreciate it if you would answer my question. We have had a little trouble about being responsive.
"MR. RINEHART: All right.
"THE COURT: My question is: While a witness is subject to cross-examination, even though he is a defendant, does his attorney have the right to confer with him before he is cross-examined?
"You have been practicing law for a long time.
"MR. RINEHART: I feel that I do have the right to confer with him but not to coach him as to what he may say on cross-examination or how to answer questions.
"THE COURT: Then what else would you need to talk to him about?
"MR. RINEHART: I don't know. Such as whom should I call as the next witness.
"THE COURT: All right.
"MR. RINEHART: There are numerous strategic things that an attorney must confer with his client about.
"THE COURT: Well I don't have any questions, Mr. Rinehart, about what you I think you are a disciplined man. I think you are trained in the law. And I think if you should tell me, for instance, that you would not discuss this direct testimony with your client I would accept that statement without any qualification.
"MR. RINEHART: Your Honor, I can assure you of that.
"THE COURT: I understand that. But your client, as far as I know, has not had any legal training; and I don't
know anything about him other than what I have heard here today. And I don't know that he is subject to that same instruction that he would understand it.
"I think he would understand it if I told him just not to talk to you; And I just think it is better that he not talk to you about anything.
"I think you might ask him right now right here while we are here what witnesses he thinks you ought to call in the morning.
"Let's put it this way. Your ask him right now if he thinks there are any witnesses you ought to call during the evening. If anything comes up after he has been cross-examined, and after you have had an opportunity for re-direct, we would have a recess and you would have all the time you need to talk to him about strategies or anything else. We will take the rest of this month, if necessary, to give you an opportunity and him an opportunity for a fair trial. But we are not going to let strategy take the place of this situation.
"And I have held that I find that I don't think you would do anything wrong; but I think it would be better, under the circumstances of this case. And that is my ruling.
"MR. RINEHART: If that is your ruling, Your Honor, we will obey it.
"THE COURT: All right. Now you just move to the side, please.
"Now, Mr. Geders, will you stand up. I direct you not to discuss your testimony in this case with anyone until you are back here tomorrow morning at 9:30 for the purpose of being cross-examined.
"Do you understand that?
"MR. GEDERS: I understand.
"THE COURT: All right, thank you. All right, the Court will be in recess." (Emphasis added.)
The ambiguity of this colloquy appears to be resolved by the direction that petitioner "not talk to you (counsel) about anything."
2
United States v. Leighton, 386 F.2d 822 (CA 2 1967), on which the Court of Appeals relied, involved an embargo order preventing a defendant from consulting his attorney during a brief routine recess during the trial day, a matter we emphasize is not before us in this case. See United States v. Schrimsher, 493 F.2d 848 (CA5 1974); United States v. Crutcher, 405 F.2d 239 (CA2 1968), cert. denied, 394 U.S. 908, 89 S.Ct. 1018, 22 L.Ed.2d 219 (1969); see also Krull v. United States, 240 F.2d 122 (CA5), cert. denied, 353 U.S. 915, 77 S.Ct. 764, 1 L.Ed.2d 668 (1957). Cf. Pendergraft v. State, 191 So.2d 830 (Miss.1966).
3
An attorney must respect the important ethical distinction between discussing testimony and seeking improperly to influence it. Ethical Consideration 7-26 of the American Bar Association Code of Professional Responsibility (1975) states:
"The law and Disciplinary Rules prohibit the use of fraudulent, false, or perjured testimony or evidence. A lawyer who knowingly participates in introduction of such testimony or evidence is subject to discipline. A lawyer should, however, present any admissible evidence his client desires to have presented unless he knows, or from facts within his knowledge should know, that such testimony or evidence is false, fraudulent, or perjured."
Disciplinary Rule 7-102 of the Code provides in relevant part:
"(A) In his representation of a client, a lawyer shall not:
"(6) Participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false.
"(7) Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.
"(8) Knowingly engage in other illegal conduct or conduct contrary to a Disciplinary Rule."
Any violation of these strictures would constitute a most serious breach of the attorney's duty to the court, to be treated accordingly.
We note that the judge expressed full confidence that petitioner's trial attorney would respect the difference between assistance and improper influence.
1
I would assume, however, that the Court's repeated reference to the length of the overnight recess in this case 17 hours is not intended to have any dispositive significance, and that the Court's holding is at least broad enough to cover all overnight recesses.
2
For the distinction between ethical and unethical counseling, see Ante, at 90 n. 3.
3
The Court suggests, however, that "doubts that defense counsel will observe the ethical limits on guiding witnesses" would justify such actions as postponing the luncheon recess or extending the normal adjournment hour in order to complete the defendant's testimony. Ante, at 90-91. I would assume that trial courts generally take such steps out of a desire to move the trial along in an orderly and expeditious fashion, not out of fear that defense counsel might exceed the bounds of ethical conduct if given the opportunity. And I am unwilling to endorse the notion that where the orderly and expeditious progress of the trial would not be served, the trial court should nevertheless feel free to continue the defendant's testimony without interruption because of a belief that defense counsel is likely to act unethically.
| 01
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425 U.S. 130
96 S.Ct. 1357
47 L.Ed.2d 629
Peter H. BEER et al., Appellants,v.UNITED STATES et al.
No. 73-1869.
Argued March 26, 1975.
Reargued Nov. 12, 1975.
Decided March 30, 1976.
Syllabus
The 1954 New Orleans City Charter provides for a seven-member city council, with one member being elected from each of five councilmanic districts, and two being elected by the voters of the city at large. In 1961 the council, as it was required to do after each decennial census, redistricted the city based on the 1960 census so that in one councilmanic district Negroes constituted a majority of the population but only about half of the registered voters, and in the other four districts white voters outnumbered Negroes. No Negro was elected to the council from 1960 to 1970. After the 1970 census the council devised a reapportionment plan, under which there would be Negro population majorities in two councilmanic districts and a Negro voter majority in one. Section 5 of the Voting Rights Act of 1965 prohibits a State or political subdivision subject to § 4 of the Act (as New Orleans is) from enforcing a proposed change in voting procedures unless it has obtained a declaratory judgment from the District Court of the District of Columbia that such change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color" or has submitted the change to the Attorney General and he has not objected to it. After the proposed plan had been objected to by the Attorney General, New Orleans sought a declaratory judgment in the District Court. That court refused to allow the plan to go into effect, holding that it would have the effect of abridging Negro voting rights, and that moreover the plan's failure to alter the city charter provision for two at-large seats in itself had such effect. Held :
1. Since § 5's language clearly provides that it applies only to proposed changes in voting procedures, and since the at-large seats existed without change since 1954, those seats were not subject to review under § 5. The District Court consequently erred in holding that the plan could be rejected under § 5 solely because it did not eliminate the two at-large seats. P. 138-139.
2. A legislative reapportionment that enhances the position of racial minorities with respect to their effective exercise of the electoral franchise cannot violate § 5 unless the new apportionment itself so discriminates racially as to violate the Constitution. plying this standard here where, in contrast to the 1961 apportionment under which none of the five councilmanic districts had a clear Negro voting majority and no Negro had been elected to the council, Negroes under the plan in question will constitute a population majority in two of the five districts and a clear voting majority in one, it is predictable that by bloc voting one and perhaps two Negroes will be elected to the council. The District Court therefore erred in concluding that the plan would have the effect of denying or abridging the right to vote on account of race or color within the meaning of § 5. Pp. 139-142.
374 F.Supp. 363, vacated and remanded.
James R. Stoner, Washington, D. C., for appellants.
Lawrence G. Wallace, Washington, D. C., for appellee United States.
Stanley A. Halpin, Jr., New Orleans, La., for appellees Jackson and others.
Mr. Justice STEWART delivered the opinion of the Court.
1
Section 5 of the Voting Rights Act of 19651 prohibits a State or political subdivision subject to § 4 of the Act2 from enforcing "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964," unless it has obtained a declaratory judgment from the District Court for the District of Columbia that such change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color" or has submitted the proposed change to the Attorney General and the Attorney General has not objected to it. The constitutionality of this procedure was upheld in South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769, and it is now well established that § 5 is applicable when a State or political subdivision adopts a legislative reapportionment plan. Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1; Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702, 36 L.Ed.2d 472.
2
The city of New Orleans brought this suit under § 5 seeking a judgment declaring that a reapportionment of New Orleans' councilmanic districts did not have the purpose or effect of denying or abridging the right to vote on account of race or color.3 The District Court entered a judgment of dismissal, holding that the new reapportionment plan would have the effect of abridging the voting rights of New Orleans' Negro citizens. 374 F.Supp. 363. The city appealed the judgment to this Court, claiming that the District Court used an incorrect standard in assessing the effect of the reapportionment in this § 5 suit. We noted probable jurisdiction of the appeal. 419 U.S. 822, 95 S.Ct. 37, 42 L.Ed.2d 45.
3
* New Orleans is a city of almost 600,000 people. Some 55% Of that population is white and the remaining 45% Is Negro. Some 65% Of the registered voters are white, and the remaining 35% Are Negro.4 In 1954, New Orleans adopted a mayor-council form of government. Since that time the municipal charter has provided that the city council is to consist of seven members, one to be elected from each of five councilmanic districts, and two to be elected by the voters of the city at large. The 1954 charter also requires an adjustment of the boundaries of the five single-member councilmanic districts following each decennial census to reflect population shifts among the districts.
4
In 1961, the city council redistricted the city based on the 1960 census figures. That reapportionment plan established four districts that stretched from the edge of Lake Pontchartrain on the north side of the city to the Mississippi River on the city's south side. The fifth district was wedge shaped and encompassed the city's downtown area. In one of these councilmanic districts, Negroes constituted a majority of the population, but only about half of the registered voters. In the other four districts white voters clearly outnumbered Negro voters. No Negro was elected to the New Orleans City Council during the decade from 1960 to 1970.
5
After receipt of the 1970 census figures the city council adopted a reapportionment plan (Plan I) that continued the basic north-to-south pattern of councilmanic districts combined with a wedge-shaped, downtown district. Under Plan I Negroes constituted a majority of the population in two districts, but they did not make up a majority of registered voters in any district. The largest percentage of Negro voters in a single district under Plan I was 45.2%. When the city submitted Plan I to the Attorney General pursuant to § 5, he objected to it, stating that it appeared to "dilute black voting strength by combining a number of black voters with a larger number of white voters in each of the five districts." He also expressed the view that "the district lines (were not) drawn as they (were) because of any compelling governmental need" and that the district lines did "not reflect numeric population configurations or considerations of district compactness or regularity of shape."
6
Even before the Attorney General objected to Plan I, the city authorities had commenced work on a second plan Plan II.5 That plan followed the general northto-south districting pattern common to the 1961 apportionment and Plan I.6 It produced Negro population majorities in two districts and a Negro voter majority (52.6%) in one district. When Plan II was submitted to the Attorney General, he posed the same objections to it that he had raised to Plan I. In addition, he noted that "the predominantly black neighborhoods in the city are located generally in an east to west progression," and pointed out that the use of north-to-south districts in such a situation almost inevitably would have the effect of diluting the maximum potential impact of the Negro vote. Following the rejection by the Attorney General of Plan II, the city brought this declaratory judgment action in the United States District Court for the District of Columbia.
7
The District Court concluded that Plan II would have the effect of abridging the right to vote on account of race or color.7 It calculated that if Negroes could elect city councilmen in proportion to their share of the city's registered voters, they would be able to choose 2.42 of the city's seven councilmen, and, if in proportion to their share of the city's population, to choose 3.15 councilmen.8 But under Plan II the District Court concluded that, since New Orleans' elections had been mark by bloc voting along racial lines, Negroes would probably be able to elect only one councilman the candidate from the one councilmanic district in which a majority of the voters were Negroes. This difference between mathematical potential and predicted reality was such that "the burden in the case at bar was at least to demonstrate that nothing but the redistricting proposed by Plan II was feasible." 374 F.Supp., at 393. The court concluded that "(t)he City has not made that sort of demonstration; indeed, it was conceded at trial that neither that plan nor any of its variations was the City's sole available alternative." Ibid9
8
As a separate and independent ground for rejecting Plan II, the District Court held that the failure of the plan to alter the city charter provision establishing two at-large seats had the effect in itself of "abridging the right to vote . . . on account of race or color." As the court put it: "(T) he City has not supported the choice of at-large elections by any consideration which would satisfy the standard of compelling governmental interest, or the need to demonstrate the improbability of its realization through the use of single-member districts. These evaluations compel the conclusion that the feature of the city's electoral scheme by which two councilmen are selected at large has the effect of impermissibly minimizing the vote of its black citizens; and the further conclusion that for this additional reason the city's redistricting plan does not pass muster." Id., at 402. (Footnotes omitted.)
9
The District Court therefore refused to allow Plan II to go into effect. As a result there have been no councilmanic elections in New Orleans since 1970, and the councilmen elected at that time (or their appointed successors) have remained in office ever since.
II
A.
10
The appellants urge, and the United States on reargument of this case has conceded, that the District Court was mistaken in holding that Plan II could be rejected under § 5 solely because it did not eliminate the two at-large councilmanic seats that had existed since 1954. The appellants and the United States are correct in their interpretation of the statute in this regard.
11
The language of § 5 clearly provides that it applies only to proposed changes in voting procedures. "(D)iscriminatory practices . . . instituted prior to November 1964 . . . are not subject to the requirement of preclearance (under § 5)." U.S. Commission on Civil Rights, The Voting Rights Act: Ten Years After, p. 347. The ordinance that adopted Plan II made no reference to the at-large councilmanic seats. Indeed, since those seats had been established in 1954 by the city charter, an ordinance could not have altered them; any change in the charter would have required approval by the city's voters. The at-large seats, having existed without change since 1954, were not subject to review in this proceeding under § 5.10
B
12
The principal argument made by the appellants in this Court is that the District Court erred in concluding that the makeup of the five geographic councilmanic districts under Plan II would have the effect of abridging voting rights on account of race or color. In evaluating this claim it is important to note at the outset that the question is not one of constitutional law, but of statutory construction.11 A determination of when a legislative reapportionment has "the effect of denying or abridging the right to vote on account of race or color," must depend, therefore, upon the intent of Congress in enacting the Voting Rights Act and specifically § 5.
13
The legislative history reveals that the basic purpose of Congress in enacting the Voting Rights Act was "to rid the country of racial discrimination in voting." South Carolina v. Katzenbach, 383 U.S., at 315, 86 S.Ct., at 812. Section 5 was intended to play an important role in achieving that goal:
14
"Section 5 was a response to a common practice in some jurisdictions of staying one step ahead of the federal courts by passing new discriminatory voting laws as soon as the old ones had been struck down. That practice had been possible because each new law remained in effect until the Justice Department or private plaintiffs were able to sustain the burden of proving that the new law, too, was discriminatory. . . . Congress therefore decided, as the Supreme Court held it could, 'to shift the advantage of time and inertia from the perpetrators of the evil to its victim,' by 'freezing election procedures in the covered areas unless the changes can be shown to be nondiscriminatory.' " H.R.Rep.No.94-196, pp. 57-58. (Footnotes omitted.)
15
See also H.R.Rep.No.439, 89th Cong., 1st Sess., 9-11, 26; S.Rep.No.162, 89th Cong., 1st Sess., pt. 3, pp. 6-9, 24; H.R.Rep.No.91-397, pp. 6-8, U.S.Code Cong. & Admin.News 1970, p. 3277; H.R.Rep.No.94-196, pp. 8-11, 57-60; S.Rep.No.94-295, pp. 15-19, U.S.Code Cong. & Admin.News 1975, p. 781; South Carolina v. Katzenbach, supra, 383 U.S., at 335, 86 S.Ct., at 822, 15 L.Ed.2d, at 790.
16
By prohibiting the enforcement of a voting-procedure change until it has been demonstrated to the United States Department of Justice or to a three-judge federal court that the change does not have a discriminatory effect, Congress desired to prevent States from "undo(ing) or defeat(ing) the rights recently won" by Negroes. H.R.Rep.No.91-397, p. 8, U.S.Code Cong. & Admin.News 1970, p. 3284. Section 5 was intended "to insure that (the gains thus far achieved in minority political participation) shall not be destroyed through new (discriminatory) procedures and techniques." S.Rep.No.94-295, p. 19, U.S.Code Cong. & Admin.News 1975, p. 785.
17
When it adopted a 7-year extension of the Voting Rights Act in 1975, Congress explicitly stated that "the standard (under § 5) can only be fully satisfied by determining on the basis of the facts found by the Attorney General (or the District Court) to be true whether the ability of minority groups to participate in the political process and to elect their choices to office is Augmented, diminished, or not affected by the change affecting voting . . . ." H.R.Rep.No.94-196, p. 60 (emphasis added).12 In other words the purpose of § 5 has always been to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.
18
It is thus apparent that a legislative reapportionment that enhances the position of racial minorities with respect to their effective exercise of the electoral franchise can hardly have the "effect" of diluting or abridging the right to vote on account of race within the meaning of § 5. We conclude, therefore, that such an ameliorative new legislative apportionment cannot violate § 5 unless the new apportionment itself so discriminates on the basis of race or color as to violate the Constitution.
19
The application of this standard to the facts of the present case is straightforward. Under the apportionment of 1961 none of the five councilmanic districts had a clear Negro majority of registered voters, and no Negro has been elected to the New Orleans City Council while that apportionment system has been in effect. Under Plan II, by contrast, Negroes will constitute a majority of the population in two of the five districts and a clear majority of the registered voters in one of them. Thus, there is every reason to predict, upon the District Court's hypothesis of bloc voting, that at least one and perhaps two Negroes may well be elected to the council under Plan II.13 It was therefore error for the District Court to conclude that Plan II "will . . . have the effect of denying or abridging the right to vote on account of race or color" within the meaning of § 5 of the Voting Rights Act.14
20
Accordingly, the judgment of the District Court is vacated, and the case is remanded to that court for further proceedings consistent with this opinion.
21
It is so ordered.
22
Judgment set aside and case remanded.
23
Mr. Justice STEVENS took no part in the consideration or decision of this case.
24
Mr. Justice WHITE, dissenting.
25
With Mr. Justice MARSHALL, I cannot agree that § 5 of the Voting Rights Act of 1965 reaches only those changes in election procedures that are more burdensome to the complaining minority than pre-existing procedures. As I understand § 5, the validity of Any procedural change otherwise within the reach of the section must be determined under the statutory standard whether the proposed legislation has the purpose or effect of abridging or denying the right to vote based on race or color.
26
This statutory standard is to be applied here in light of the District Court's findings, which are supported by the evidence and are not now questioned by the Court. The findings were that the nominating process in New Orleans' councilmanic elections is subject to majority vote and "anti-single-shot" rules and that there is a history of bloc racial voting in New Orleans, the predictable result being that no Negro candidate will win in any district in which his race is in the minority. In my view, where these facts exist, combined with a segregated residential pattern, § 5 is not satisfied unless, to the extent practicable, the new electoral districts afford the Negro minority the opportunity to achieve legislative representation roughly proportional to the Negro population in the community. Here, with a seven-member city council, the black minority constituting approximately 45% of the population of New Orleans, would be entitled under § 5, as I construe it, to the opportunity of electing at least three city councilmen more than provided by the plan at issue here.
27
Bloc racial voting is an unfortunate phenomenon, but we are repeatedly faced with the findings of knowledgeable district courts that it is a fact of life. Where it exists, most often the result is that neither white nor black can be elected from a district in which his race is in the minority. As I see it, Congress has the power to minimize the effects of racial voting, particularly where it occurs in the context of other electoral rules operating to muffle the political potential of the minority. I am also satisfied that § 5 was aimed at this end, among others, and should be so construed and applied. See City of Richmond v. United States, 422 U.S. 358, 370-372, 95 S.Ct. 2296, 2303-2305, 45 L.Ed.2d 245, 255-257 (1975).
28
Minimizing the exclusionary effects of racial voting is possible here because whites and blacks are not scattered evenly throughout the city; to a great extent, each race is concentrated in identifiable areas of New Orleans. But like bloc voting by race, this too is a fact of life, well known to those responsible for drawing electoral district lines. These lawmakers are quite aware that the districts they create will have a white or a black majority; and with each new district comes the unavoidable choice as to the racial composition of the district. It is here that § 5 intervenes to control these choices to the extent necessary to afford the minority the opportunity of achieving fair representation in the legislative body in question.
29
Applying § 5 in this way would at times require the drawing of district lines based on race; but Congress has this power where deliberate discrimination at the polls and the relevant electoral laws and customs have effectively foreclosed Negroes from enjoying a modicum of fair representation in the city council or other legislative body.
30
Since Plan II at issue in this case falls short of satisfying § 5 and since I agree with Mr. Justice MARSHALL that the city has failed to present sufficiently substantial justifications for its proposal, I respectfully dissent and would affirm the judgment of the District Court.
31
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
32
Over the past 10 years the Court has, again and again, read the jurisdiction of § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 89 Stat. 402, 404, 42 U.S.C. § 1973c (1970 ed., Supp. V), expansively so as "to give the Act the broadest possible scope" and to reach "any state enactment which altered the election law of a covered State in even a minor way." Allen v. State Board of Elections, 393 U.S. 544, 566, 567, 89 S.Ct. 817, 832, 22 L.Ed.2d 1, 17 (1969). See also Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973); Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971); South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). While we have settled the contours of § 5's jurisdiction, however, we have yet to devote much attention to defining § 5's substantive force within those bounds. Thus, we are faced today for the first time with the question of § 5's substantive application to a redistricting plan. Essentially, we must answer one question: When does a redistricting plan have the effect of "abridging" the right to vote on account of race or color?
33
The Court never answers this question. Instead, it produces a convoluted construction of the statute that transforms the single question suggested by § 5 into three questions, and then provides precious little guidance in answering any of them.
34
Under the Court's reading of § 5, we cannot reach the abridgment question unless we have first determined that a proposed redistricting plan would "lead to a retrogression in the position of racial minorities," Ante, at 141, in comparison to their position under the existing plan. The Court's conclusion that § 5 demands this preliminary inquiry is simply wrong; it finds no support in the language of the statute and disserves the legislative purposes behind § 5.
35
Implicitly admitting as much, the Court adds another question, this one to be asked if the proposed plan is not "retrogressive": whether "the new apportionment itself so discriminates on the basis of race or color as to violate the Constitution." Ante, at 141. This addition does much in theory, at least to salvage the Court's test, since our decisions make clear that the proper test of abridgment under § 5 is essentially the constitutional inquiry.
36
Still, I cannot accept the Court's awkward construction. Not only is the Court's multiple-step inquiry unduly cumbersome and an unnecessary burden to place upon the Attorney General and the District Court for the District of Columbia, but the Court dilutes the meaning of unconstitutionality in this context to the point that the congressional purposes in § 5 are no longer served and the sacred guarantees of the Fourteenth and Fifteenth Amendments emerge badly battered. And in the process, the Court approves a blatantly discriminatory districting plan for the city of New Orleans. I dissent.
37
* A.
The Fifteenth Amendment provides:
38
"The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." U.S. Const., Amdt. 15, § 1.
39
Although the Amendment is self-enforcing, litigation to secure the rights it guarantees proved time consuming and ineffective, while the will of those who resisted its command was strong and unwavering. Finally Congress decided to intervene. In 1965 it enacted the Voting Rights Act, designed "to rid the country of racial discrimination in voting." South Carolina v. Katzenbach, 383 U.S., at 315, 86 S.Ct., at 812, 15 L.Ed.2d, at 779. See also Id., at 308-315, 86 S.Ct., at 808-812, 15 L.Ed.2d, at 775-779. The Act proclaims that its purpose is "to enforce the fifteenth amendment to the Constitution . . . ," 79 Stat. 437; the heart of its enforcement mechanism is § 5. In language that tracks that of the Fifteenth Amendment, § 5 declares that no State covered by the Act shall enforce any plan with respect to voting different from that in effect on November 1, 1964, unless the Attorney General or a three-judge district Court in the District of Columbia declares that such plan
40
"does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color . . . ." 42 U.S.C. § 1973c (1970 ed., Supp. V).1
41
While the substantive reach of § 5 is somewhat broader than that of the Fifteenth Amendment in at least one regard the burden of proof is shifted from discriminatee to discriminator2 § 5 is undoubtedly tied to the standards of the Constitution.3 Thus, it is questionable whether the "purpose and effect" language states anything more than the constitutional standard,4 and it is clear that the "denying or abridging" phrase does no more than directly adopt the language of the Fifteenth Amendment.
42
In justifying its convoluted construction of § 5, however, the Court never deals with the fact that, by its plain language, § 5 does no more than adopt, or arguably expand,5 the constitutional standard. Since it has never been held, or even suggested, that the constitutional standard requires an inquiry into whether a redistricting plan is "ameliorative" or "retrogressive," A fortiori there is no basis for so reading § 5. While the Court attempts to provide a basis by relying on the asserted purpose of § 5 to preserve present Negro voting strength6 it is wholly unsuccessful. What superficial credibility the argument musters is achieved by ignoring not only the statutory language, but also at least three other purposes behind § 5.7
43
Thus, the legislative history of the Voting Rights Act makes clear, and the Court assiduously ignores, that § 5 was designed to preclude new districting plans that "perpetuate discrimination,"8 to prevent covered jurisdictions from "circumventing the guarantees of the 15th amendment" by switching to new, and discriminatory, districting plans the moment litigants appear on the verge of having an existing one declared unconstitutional,9 and promptly to end discrimination in voting by pressuring covered jurisdictions to remove all vestiges of discrimination from their enactments before submitting them for preclearance.10 None of these purposes is furthered by an inquiry into whether a proposed districting plan is "ameliorative" or "retrogressive." Indeed, the statement of these purposes is alone sufficient to demonstrate the error of the Court's construction.
44
All the purposes of the statute are met, however, by the inquiry § 5's language plainly contemplates: whether, in absolute terms, the covered jurisdiction can show that its proposed plan meets the constitutional standard. Because it is consistent with both the statutory language and the legislative purposes, this is the proper construction of the provision. Thus, it is the effect of the plan itself, rather than the effect of the change in plans, that should be at issue in a § 5 proceeding.11
45
Ultimately, the Court admits as much by adding an inquiry into whether the proposed plan, even if "ameliorative," is constitutional. After this admission, I cannot understand why the Court bothers at all with its preliminary inquiry into the nature of the change of plans, since the inquiry not only adds nothing, but will, I fear, prove to be a time-consuming distraction from the important business of assessing the constitutionality of the proposed plan.12 Except for this unnecessary step, however, the Court's final reading of the statute, on its face, no more than duplicates my own.13 Nonetheless, I still do not accept the Court's approach. After properly returning the constitutional inquiry to the § 5 proceeding, the Court inexplicably tosses off the question in a footnote, and never undertakes the analysis that both our constitutional cases and our § 5 cases have demanded.14 This ultimate denigration of the constitutional standard is a result far short of the promise Congress held out in enacting, and re-enacting the Voting Rights Act, and it is one in which I cannot join.
B
46
The proper test in § 5 redistricting cases is preordained by our prior cases, which are ignored today by the Court. As suggested above, we have repeatedly recognized the relevance of constitutional standards to the proper construction of § 5. Thus, we have held that in passing that provision " 'Congress intended to adopt the concept of voting articulated in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and protect Negroes against a dilution of their voting power.' " Perkins v. Matthews, 400 U.S., at 390, 91 S.Ct., at 438, 27 L.Ed.2d, at 486, quoting Allen v. State Board of Elections, supra, 393 U.S., at 588, 89 S.Ct., at 843, 22 L.Ed.2d, at 30 (opinion of Harlan, J.). See also Georgia v. United States, 411 U.S., at 532-533, 93 S.Ct., at 1706-1707, 36 L.Ed.2d, at 479-480; Allen v. State Board of Elections, 393 U.S., at 565-566, 569, 89 S.Ct., at 831-832, 833, 22 L.Ed.2d, at 16-17, 19.15 In the Fourteenth Amendment Reynolds lines of cases, we have made clear that dilution of voting power refers to resulting voting strength that is something less than potential (i. e., proportional) power, not to a reduction of existing power. White v. Regesr, 412 U.S. 755, 765-766, 93 S.Ct. 2332, 2339-2340, 37 L.Ed.2d 314, 324-325 (1973); Whitcomb v. Chavis, 403 U.S. 124, 149, 91 S.Ct. 1858, 1872, 29 L.Ed.2d 363, 379 (1971). Nonetheless, we have also acknowledged that a showing of less than proportional representation of Negroes by Negro-elected representatives is not alone sufficient to prove unconstitutional dilution:
47
"To sustain such claims (of dilution), it is not enough that the racial group allegedly discriminated against has not had legislative seats in proportion to its voting potential. The plaintiffs' burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice." White v. Regester, supra, 412 U.S., at 765-766, 93 S.Ct., at 2339, 37 L.Ed.2d, at 324.
48
See also Whitcomb v. Chavis, supra, 403 U.S., at 149, 91 S.Ct., at 1872, 29 L.Ed.2d, at 379.16
49
It is this constitutionally based concept of dilution that we have held to govern in § 5 proceedings. The concept may be readily transferred to the § 5 context simply by adjusting for the shifted burden of proof. Thus, if the proposed redistricting plan underrepresents minority group members, the burden is on the covered jurisdiction to show that "the political processes leading to nomination and election were . . . equally open to participation by the group in question."17 If the jurisdiction cannot make such a showing, then the proposed plan must be rejected, unless compelling reasons for its adoption can be demonstrated.18
II
50
Application of these standards to the case before us is straightforward. Preliminarily, while I agree with the Court that the two at-large seats on the New Orleans City Council are not themselves before the Court for approval and cannot serve as an independent basis for the rejection of Plan II, I do not think Plan II should be assessed without regard to the seven-member council it is designed to fill. Proportional representation of Negroes among the five district seats on the council does not assure Negroes proportional representation on the entire council when, as the District Court found, the two at-large seats will be occupied by white-elected members. The Court's approach of focusing only on the five districts would allow covered municipalities to conceal discriminatory changes by making them a step at a time, and sending one two or three-district alteration after another to the Attorney General for approval. If nothing beyond the districts actually before him could be considered, discriminatory effects could be camouflaged and the prophylactic purposes of the Act readily evaded.19
51
Thus the District Court correctly began by considering the seven-member council and a districting plan that given New Orleans' long history of racial bloc voting,20 allows Negroes the expectation of no more than one seat (14% Of the council), if that, in a city with a 34.5% Negro voting population. Manifestly, the plan serves to underrepresent the Negro voting population. The District Court then, properly, turned to consider whether Negroes are excluded from full participation in the political processes in New Orleans. The court found considerable evidence of both past and present exclusion, none of which is seriously contested here.21
52
The court found that Louisiana's majority-vote requirement and "anti-single-shot" requirement operate as a practical matter to defeat Negroes in any district in which they do not constitute a majority,22 that residual effects of Louisiana's long history of racial discrimination not only in voting, but also in public schools, public assemblies, public recreational facilities, public transportation, housing, and employment, remain; and that city officeholders have generally been unresponsive to the needs of the Negro community. The court looked to the many tactics that, until recently, had been employed with remarkable success to keep Negroes from voting in the State. See Louisiana v. United States, 380 U.S. 145, 147-150, 85 S.Ct. 817, 819-821, 13 L.Ed.2d 709, 711-713 (1965). And the court found that Negro access to the political process is even further narrowed by the fact that candidates in the all-important Democratic primary run on tickets. For a city council candidate to win nomination, which is tantamount to victory in the general election, it is critical to be placed on the ticket of the winning, always white, mayoral candidate. Negro candidates for city council, however, have never been placed on such a ticket. Indeed, no Negro has ever been elected to the city council, and the court found that on the rare occasions when a Negro has been elected to any office in the city, it has been because of the support of white candidates or of the white political organization, not because of the power of the Negro electorate. These findings plainly support the District Court's conclusion that the political processes of New Orleans are not open to Negroes on an equal basis with whites.
53
Since Negroes are underrepresented by Plan II and have been denied equal access to the political processes in New Orleans, Plan II infringes upon constitutionally protected rights, and only a compelling justification can save the plan. The very nature of the Negro community in New Orleans and the manner of its distortion by Plan II immediately place the city's explanations in a suspect light. The Negro community is not dispersed, but rather is collected in a concentrated curving band that runs roughly east-west. The districts in Plan II run north-south and divide the Negro community into five parts. Counsel for intervenor Jackson vividly described the effect of this division at oral argument:
54
"You can walk from Jefferson Parish throughout the city for eight or ten miles through the St. Bernard Parish line and not see a white face along that band, that black belt, that parallels the river in a curve fashion throughout the city. White people live in the very wealthy sections of town out by the lake and along St. Charles Avenue to the river. The rest is left over for blacks, and these are heavy concentrations, and that plan devised by the City Council slices up that population like so many pieces of bologna . . . ." Tr. of Oral Arg. 30.
55
As Jonathan A. Eckert, the council staff member primarily responsible for drafting Plan II, conceded in the District Court, the "inevitable result" of Plan II's north-south orientation is "to have districts in which blacks are generally in the minority, or at the most in a bare majority." 2 App. 346.
56
New Orleans relies on seven goals that it claims mandate a north-south scheme such as Plan II. The city's own belief in this conclusion is questionable in light of Mr. Eckert's testimony in the District Court that he and his staff had drafted at least two east-west plans that satisfied them. 1 App. 336-337. In any case, however, the asserted goals, whether taken alone or in combination, do not establish a compelling justification for the plan. One claimed purpose is to prevent dilution of the vote of minority groups. Plan II plainly does not achieve this goal. Two other asserted aims are to achieve substantial numerical equality among the five districts and to keep the resultant districts compact and contiguous. Both aims can be accomplished by any number of east-west plans as well. Three more proffered justifications are to preserve ward and precinct lines, natural boundaries, and manmade boundaries. But there are findings that ward lines cannot be observed in any case because of one-person, one-vote restrictions, and that precincts are sufficiently small that their integrity can be honored in east-west districts. This latter fact minimizes any adverse effects of violating natural and manmade boundaries, except to the extent that they divide communities of different social or economic interests. And Plan II only erratically keeps such communities intact.
57
It is only the seventh of the proffered goals that, if compelling, mandates a north-south scheme: keeping incumbents apart in the new districts so that they will not have to run against one another for re-election.23 Four of the five district councilmen live in an east-west line along the lake in the northern part of the cy. East-west districts would place all four in the same one or two districts, 1 App. 125, 232, 235, and north-south lines are therefore necessary if these councilmen are to remain apart. 2 App. 344. While the desire to keep incumbents in separate districts may have merit in some contexts, it surely cannot stand alone to justify the substantial dilution of minority voting rights found here.
58
Thus, the city has failed to show an acceptable justification for the racially dilutive effect of Plan II. Accordingly, the District Court correctly concluded that appellants failed to demonstrate that Plan II would not have the effect of abridging the right to vote on account of race, and correctly denied the requested declaratory judgment.24
1
Section 5 provides:
"Whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon
determinations made under the first sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the second sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1968, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the third sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1972, such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, or upon good cause shown, to facilitate an expedited approval within sixty days after such submission, the Attorney General has affirmatively indicated that such objection will not be made. Neither an affirmative indication by the Attorney General that no objection will be made, nor the
Attorney General's failure to object, nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. In the event the Attorney General affirmatively indicates that no objection will be made within the sixty-day period following receipt of a submission, the Attorney General may reserve the right to reexamine the submission if additional information comes to his attention during the remainder of the sixty-day period which would otherwise require objection in accordance with this section. Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28 and any appeal shall lie to the Supreme Court." 79 Stat. 439, as amended, 89 Stat. 402, 404, 42 U.S.C. § 1973c (1970 ed., Supp. V).
2
42 U.S.C. § 1973b (1970 ed. and Supp. V). Louisiana and its political subdivisions are subject to the provisions of § 4. 30 Fed.Reg. 9897 (1965).
3
The action was actually brought on behalf of the city of New Orleans by six of the seven members of its city council. For convenience the appellants sometimes are referred to in this opinion as New Orleans or the city.
The defendants in the suit were the United States and the Attorney General of the United States. A group of Negro voters of New Orleans intervened on the side of the defendants in the District Court.
4
The difference in the two figures is due in part to the fact that proportionately more whites of voting age are registered to vote than are Negroes and in part to the fact that the age structures of the white and Negro populations of New Orleans differ significantly 72.3% Of the white population is of voting age, but only 57.1% Of the Negro population is of voting age. See U. S. Civil Rights Commission, The Voting Rights Act: Ten Years After 368, 383.
5
The decision to draft a new plan was in large part attributable to the opposition to Plan I expressed by the residents of Algiers that part of New Orleans located south of the Mississippi River. The residents of Algiers have a common interest in promoting the construction of an additional bridge across the river. They had always been represented by one councilman, and they opposed Plan I primarily because it divided Algiers among three councilmanic districts.
6
The opposition to Plan I in Algiers, see n. 5, Supra, was quieted in Plan II by placing all of that section of the city in one councilmanic district.
7
The District Court did not address the question whether Plan II was adopted with such a "purpose." See n. 1, Supra.
8
This Court has, of course, rejected the proposition that members of a minority group have a federal right to be represented in legislative bodies in proportion to their number in the general population. See Whitcomb v. Chavis, 403 U.S. 124, 149, 91 S.Ct. 1858, 1872, 29 L.Ed.2d 363, 379. It is worth noting, however, that had the District Court applied its mathematical calculations to the five seats that were properly subject to its scrutiny, see part II-A of text, Infra, it would have concluded on the basis of registered voter figures that Negroes in New Orleans had a theoretical potential of electing 1.7 of the five councilmen. A realistic prediction would seem to be that under the actual operation of Plan II at least one and perhaps two Negro councilmen would in fact be elected. See Infra, at 142.
9
At various points in its 40-page opinion the District Court described its understanding of the statutory criteria in terms somewhat different from those quoted in the text above. Since as will hereafter appear, our understanding of the meaning of § 5 does not in any event coincide with that of the District Court, no purpose would be served by isolating and separately examining the various verbalizations of the statutory criteria contained in its opinion.
10
In reaching this conclusion, we do not decide the question reserved in Georgia v. United States, 411 U.S. 526, 535 n. 7, 93 S.Ct. 1702, 1708, 36 L.Ed.2d 472, 481, whether a district in a proposed legislative reapportionment plan that is identical to a district in the previously existing apportionment may be subject to review under § 5. The at-large seats in the present case were not even part of the 1961 plan, let alone of Plan II.
11
This Court has not before dealt with the question of what criteria a legislative reapportionment plan must satisfy under § 5. Last Term in City of Richmond v. United States, 422 U.S. 358, 95 S.Ct. 2296, 45 L.Ed.2d 245, the Court had to decide under what circumstances § 5 would permit a city to annex additional territory when that annexation would have the effect of changing the city's Negro population from a majority into a minority. The Court held that the annexation should be approved under the "effect" aspect of § 5 if the system for electing councilmen would likely produce results that "fairly reflect(ed) the strength of the Negro community as it exists after the annexation." 422 U.S., at 371, 95 S.Ct., at 2301, 45 L.Ed.2d, at 256. The City of Richmond case thus decided when a change with an adverse impact on previous Negro voting power met the "effect" standard of § 5. The present case, by contrast, involves a change with no such adverse impact upon the former voting power of Negroes.
12
Cf. Mr. Justice Brennan's dissenting opinion in City of Richmond v. United States, supra, at 388, 95 S.Ct., at 2312: "I take to be the fundamental objective of § 5 . . . the protection of Present levels of voting effectiveness for the black population." (Emphasis in original.)
13
The intervenors have advised us of statistics indicating that as of 1974 the percentage of Negro registered voters in the city as a whole increased to 38.2%. Assuming the accuracy of these estimates, and that the increase has been proportionate in each councilmanic district, it is quite possible that by this time not only a majority of the population but also a majority of the registered voters in two of the Plan II districts are Negroes. See Taylor v. McKeithen, 499 F.2d 893, 896 (C.A.5).
14
It is possible that a legislative reapportionment could be a substantial improvement over its predecessor in terms of lessening racial discrimination, and yet nonetheless continue so to discriminate on the basis of race or color as to be unconstitutional. The United States has made no claim that Plan II suffers from any such disability, nor could it rationally do so.
There is no decision in this Court holding a legislative apportionment or reapportionment violative of the Fifteenth Amendment. Cf. Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512. The case closest to so holding is Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110, in which the Court found that allegations of racially motivated gerrymandering of a municipality's political boundaries stated a claim under that Amendment. The many cases in this Court involving the Fourteenth Amendment's "one man, one vote" standard are not relevant here. See Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506. But in at least four cases the Court has considered claims that legislative apportionments violated the Fourteenth Amendment rights of identifiable racial or ethnic minorities. See Fortson v. Dorsey, 379 U.S. 433, 439, 85 S.Ct. 498, 501, 13 L.Ed.2d 401, 405; Burns v. Richardson, 384 U.S. 73, 86-89, 86 S.Ct. 1286, 1293-1295, 16 L.Ed.2d 376, 387-389; Whitcomb v. Chavis, 403 U.S. 124, 149, 91 S.Ct. 1858, 1872, 29 L.Ed.2d 363, 379; White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314. Plan II does not remotely approach a violation of the constitutional standards enunciated in those cases.
1
Section 5 actually requires that "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting" different from that in effect on November 1, 1964, be approved by the Attorney General or the District Court for the District of Columbia. 42 U.S.C. § 1973c (1970 ed., Supp. V). We have held that a redistricting plan is a "standard, practice, or procedure with respect to voting" within the meaning of § 5. Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973).
2
We upheld the validity of the shifted burden of proof in South Carolina v. Katzenbach, 383 U.S. 301, 335, 86 S.Ct. 803, 822, 15 L.Ed.2d 769, 790 (1966).
3
"The Act suspends new voting regulations pending scrutiny by federal authorities to determine whether their use would violate the Fifteenth Amendment." Id., at 334, 86 S.Ct., at 822, 15 L.Ed.2d, at 790.
4
The Court's decisions relating to the relevance of purpose-and/or-effect analysis in testing the constitutionality of legislative enactments are somewhat less than a seamless web. The possible theoretical approaches are three: (1) purpose alone is the test of unconstitutionality, and effect is irrelevant, or relevant only insofar as it sheds light on purpose; (2) effect alone is the test, and purpose is irrelevant; and (3) purpose or effect, either alone or in combination, is sufficient to show unconstitutionality. At various times in recent years the Court has seemed to adopt each of these approaches.
In the two Fifteenth Amendment redistricting cases, Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964), and Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960), the Court suggested that legislative purpose alone is determinative, although language in both cases may be isolated that seems to approve some inquiry into effect insofar as it elucidates purpose. See 376 U.S., at 52, 84 S.Ct., at 603, 11 L.Ed.2d, at 512; 364 U.S., at 341, 81 S.Ct., at 127, 5 L.Ed.2d, at 113. See also 376 U.S., at 73-74, 84 S.Ct., at 614-615, 11 L.Ed.2d, at 525-526 (Goldberg, J., dissenting). McGowan v. Maryland, 366 U.S. 420, 453, 81 S.Ct. 1101, 1119, 6 L.Ed.2d 393, 414 (1961), an equal protection-First Amendment case, expressly states that effect is of relevance in imputing an improper purpose, but that legislation is invalidated only for having such a purpose. And City of Richmond v. United States, 422 U.S. 358, 378-379, 95 S.Ct., 2296 at 2307-2308, 45 L.Ed.2d 245, at 260-261 (1975), suggests that bad purpose may invalidate a law under the Fifteenth Amendment even if there is no unconstitutional effect at all.
Completely contrary to these cases are those that hold that legislative purpose is wholly irrelevant to the constitutionality of legislation indeed, that purpose may not be examined at all and that a statute may be invalidated only if it has an unconstitutional effect. Palmer v. Thompson, 403 U.S. 217, 224-225, 91 S.Ct. 1940, 1944-1945, 29 L.Ed.2d 438, 444-445 (1971), and United States v. O'Brien, 391 U.S. 367, 384-385, 88 S.Ct. 1673, 1683-1684, 20 L.Ed.2d 672, 684-685 (1968), both vigorously attack purpose analysis and assert that Gomillion was decided as it was only because the statute in question had an unlawful effect.
Between these two positions are the cases that hold that either an impermissible purpose or an impermissible effect may alone be sufficient to invalidate a law. Board of Education v. Allen, 392 U.S. 236, 243, 88 S.Ct. 1923, 1926, 20 L.Ed.2d 1060, 1065 (1968); Abington School District v. Schempp, 374 U.S. 203, 222, 83 S.Ct. 1560, 1571, 10 L.Ed.2d 844, 858 (1963). While there is no need here to synthesize these three positions and the various cases, if indeed a synthesis is possible, it should be clear that the language of purpose and effect selected by Congress for use in § 5 is not necessarily an expansion of the constitutional standard. Congress did no more than adopt the third of the tests that the Court itself has juggled over the years. See generally Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L.J. 1205 (1970).
5
We have recognized that § 5 of the Fourteenth Amendment gives Congress the power to expand the substantive reach of that Amendment. Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966). Undoubtedly, § 2 of the Fifteenth Amendment, under which the Voting Rights Act was enacted, confers similar power upon Congress with respect to the substantive reach of the Fifteenth Amendment. Thus, to the extent, if any, that analysis for purpose or for effect is not independently required for resolution of the constitutional question, see n. 4, Supra, Congress may be said to have expanded the constitutional inquiry in § 5 of the Voting Rights Act. Insofar as redistricting legislation is concerned, however, I believe a showing of purpose or of effect is alone sufficient to demonstrate unconstitutionality, and so I believe that in this context Congress enacted no more than the constitutional standard. Evaluation of the purpose of a legislative enactment is just too ambiguous a task to be the sole tool of constitutional analysis. See Palmer v. Thompson, supra, 403 U.S., at 224-225, 91 S.Ct., at 1944-1945, 29 L.Ed.2d, at 444-445; United States v. O'Brien, supra, 391 U.S., at 384-385, 88 S.Ct., at 1683-1684, 20 L.Ed.2d, at 684-685. Therefore, a demonstration of effect ordinarily should suffice. If, of course, purpose may conclusively be shown, it too should be sufficient to demonstrate a statute's unconstitutionality.
6
While the Court does quote language that suggests some of the other purposes that I see in the statute, Ante, at 140, when it comes to giving substantive content to § 5, the Court relies solely on the purpose suggested in the text.
It may be that this single purpose looms so large to the Court because it thinks it would be counterproductive to bar enforcement of a proposed plan, even if discriminatory, that is at all less discriminatory than the pre-existing plan, which would otherwise remain frozen in effect. While this argument has superficial appeal, it is ultimately unrealistic because it will be a rare jurisdiction that can retain its pre-existing apportionment after the rejection of a modification by the Attorney General or District Court. Jurisdictions do not undertake redistricting without reason. In this case, for instance, the New Orleans City Charter requires redistricting every 10 years. If the plan before us now were disapproved, New Orleans would have to produce a new one or amend its charter. In other cases, redistricting will have been constitutionally compelled by our one-person, one-vote decisions. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). The virtual necessity of prompt redistricting argues strongly in favor of rejecting "ameliorative" but still discriminatory redistricting plans. The jurisdictions will eventually have to return with a nondiscriminatory plan.
7
Equally unsuccessful is the Court's attempt to paint the "ameliorative" changes in this case as dramatic. Negroes constitute 45% Of the population of New Orleans and 34.5% Of the city's registered
voters. Under the 1961 redistricting plan currently in effect in New Orleans, that population is distributed as follows:
Population Registered Voters
District % Negro % Negro
A 31.6 22.7 B 62.2 50.2 C 40.2 24.6 D 43.7 36.3 E 49.4 42.8
App. 621. Under Plan II, which is at issue in this lawsuit, the same population is distributed in this manner:
Population Registered Voters
District % Negro % Negro
A 29.1 22.6
B 64.1 52.6
C 35.8 23.3
D 43.5 36.8
E 50.6 43.2
App. 624.
Thus the positive change that convinces the Court that no inquiry into possible "abridgment" is necessary is the change from a majority of registered voters in District B of 50.2% (which the Court fails to mention) to what the Court calls a "clear" majority (although the Court has no idea what percentage of registered Negro voters actually vote) in that district of 52.6%. The Court also emphasizes that now Negroes constitute a majority of the population in two districts, whereas under the existing plan they are a majority in only one district. This beneficial change is accomplished by the shift from a minority of 49.4% Of the population in District E to a majority in that district of 50.6%.
8
H. R. Rep. No. 91-397, pp. 6-7 (1969), U.S.Code Cong. & Admin. News 1970, pp. 3282-3283. See also H. R. Rep. No. 439, 89th Cong., 1st Sess., 10-11 (1965), S. Rep. No. 162, 89th Cong., 1st Sess., pt. 3, pp. 8, 12 (1965), U.S. Code Cong. & Admin. News 1965, p. 2437; South Carolina v. Katzenbach, 383 U.S., at 315-316, 335, 86 S.Ct., at 811-812, 822, 15 L.Ed.2d, at 779-780, 790.
9
S. Rep. No. 94-295, p. 15 (1975), U. S. Code Cong. & Admin. News 1975, p. 781. See also H. R. Rep. No. 439, Supra, at 10-11. It is for this reason that the existing plan remains "frozen" in effect while the proposed plan is submitted for approval. Thus, any constitutional litigation may proceed without interruption, unless the new plan is itself found to be nondiscriminatory and is substituted. See H. R. Rep. No. 94-196, p. 58 (1975). Either way, the litigant obtains the relief he seeks a nondiscriminatory apportionment.
10
The pressure of having proposed plans judged by rigorous standards and the fear of litigation over new plans were thought to encourage covered jurisdictions to end all discrimination in voting.
"The preclearance procedure and this is critical serves psychologically to control the proliferation of discriminatory laws and practices because each change must first be federally reviewed. Thus section 5 serves to prevent discrimination before it starts." 115 Cong. Rec. 38486 (1969) (remarks of Rep. McCulloch).
See also Id., at 38517 (remarks of Rep. Anderson); U. S. Commission Civil Rights, The Voting Rights Act: Ten Years After, pp. 30-31 (1975).
The Act's limited term is proof that Congress intended to secure prompt, and not gradual, relief. Originally, the Act was intended to be in effect for only five years. While it has been twice extended, each extension was also for only a few years; five more years in 1970, and seven more years in 1975. Thus, it cannot be argued that the Act contemplated slow forward movement, which the Court's construction sanctifies, rather than a quick remedial "fix."
11
While I read "abridge" in both § 5 and the Fifteenth Amendment as primarily involving an absolute assessment of dilution of Negro voting power from its potential, I do not hold that recognition of a relative change is absolutely irrelevant to this determination. For instance, it may often be useful to glean some indication of purpose from a minority's relative position under the existing and proposed plans. Moreover, there will be circumstances annexations, for example where dilution can fairly be measured only in comparison to the prior scheme. See City of Richmond v. United States, 422 U.S., at 378, 95 S.Ct., at 2307, 45 L.Ed.2d, at 260. Cf. Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960).
12
Today the Court finds it simple to conclude that Plan II is "ameliorative," but it will not always be so easy to determine whether a new plan increases or decreases Negro voting power relative to the prior plan. To the contrary, I believe the Court's test will prove unduly difficult of application and excessively demanding of judicial energies.
For instance, the Court today finds that an increase in the size of the Negro majority in one district, with a concomitant increased likelihood of electing a delegate, conclusively shows that Plan II is ameliorative. Will that always be so? Is it not as common for minorities to be gerrymandered into the same district as into separate ones? Is an increase in the size of an existing majority ameliorative or retrogressive? When the size of the majority increases in one district, Negro voting strength necessarily declines elsewhere. Is that decline retrogressive? Assuming that the shift from a 50.2% To a 52.6% Majority in District B in this case is ameliorative, and is not outweighed by the simultaneous decrease in Negro voting strength in Districts A and C, when would an increase become retrogressive? As soon as the majority becomes "safe"? When the majority is achieved by dividing pre-existing concentrations of Negro voters?
Moreover, the Court implies, Ante, at 139 n. 11, by its attempt to harmonize its holding today with City of Richmond v. United States, 422 U.S. 358, 95 S.Ct. 2296, 45 L.Ed.2d 245 (1975), ante, at 139 n. 11, that this preliminary inquiry into the nature of the change is the proper approach to all § 5 cases. The Court's test will prove even more difficult of application outside the redistricting context. Some changes just do not lend themselves to comparison in positive or negative terms; others will always seem negative or positive no matter how good or bad the result. For instance, when a city goes from an appointed town manager to an elected council form of government, can the change ever be termed retrogressive, even if the new council is elected at large and Negroes are a minority? Or where a jurisdiction in which Negroes are a substantial minority switches from at-large to ward voting, can that change ever constitute a negative change, no matter how badly the wards are gerrymandered?
I realize, of course, that determining the ultimate question of "abridgment" may involve answering questions similar to those I have posed above and that those questions will be just as difficult to answer. My point, however, is exactly that the inquiry is a difficult one, and that there is no reason substantially to compound that complexity by posing an unnecessary and equally complex preliminary inquiry.
13
As I understand it, the Court views the constitutional inquiry as part of the § 5 inquiry. See ante, at 141. Thus, the burden of proof on constitutional issues, as on all § 5 issues, is on the covered jurisdiction. Although the Court's treatment of the point is ambiguous, I read its observation that "(t)he United States has made no claim" that Plan II is unconstitutional, ante, at 142 n. 14, as indicating only that it is for the United States to raise the issue of unconstitutionality in the § 5 proceeding, and not as suggesting that, once the issue is raised, the United States must prove the claim as well. Any other reading would frustrate still another legislative purpose. The Act freezes the existing plan and places the burden of proof on the covered jurisdiction to justify the proposed plan expressly in order "to shift the advantage of time and inertia from the perpetrators of the evil to its victims." South Carolina v. Katzenbach, 383 U.S., at 328, 86 S.Ct., at 818, 15 L.Ed.2d, at 786. See also H.R.Rep.No.94-196, p. 58 (1975). I do not understand the Court, in bringing the constitutional issue in through the back door, to eliminate the primary procedural advantage to the United States of the § 5 proceeding.
14
The Court's treatment of the constitutional questions is all the more puzzling if it intends to confine its constitutional analysis to those seats brought before the District Court in the § 5 proceeding. In this case, the Court holds that it may avoid looking at the two at-large seats on the New Orleans City Council in deciding the § 5 claim, but see Infra, at 158-159, and its exclusion of those seats appears to extend to its ultimate constitutional inquiry as well. Yet, it is obvious that an independent constitutional challenge to Plan II would also include a challenge to the at-large seats and that such a broadened attack would be considerably more difficult to reject than the question the Court evidently considers. The change in focus caused by an expanded challenge both accentuates the dilution of the Negro vote in New Orleans, see n. 19, infra, and necessitates recognition of the particularly dilutive effects of at-large districting schemes. See White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). If the Court has ignored these factors in finding Plan II constitutional, it has engaged in no more than a time-consuming hypothetical adjudication, for its holding will surely not bar a future constitutional challenge to the entire scheme.
15
Because I read § 5 as incorporating the standards of the Fifteenth Amendment, see nn. 4-5, supra, I read these cases as holding, implicitly, that the Fourteenth and Fifteenth Amendments mandate the same test for assessing the validity, on racial grounds, of legislative apportionments. Since a person whose right to vote is denied or abridged on account of race is likewise denied equal protection of the laws, borrowing from the developed corpus of Fourteenth Amendment law is entirely appropriate.
Seeking another source for a § 5 test is particularly appropriate given the scarcity of Fifteenth Amendment case law. Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964), and Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960), the only relevant Fifteenth Amendment cases, predate not only the Voting Rights Act, its incorporation of the language of the Fifteenth Amendment, and our cases construing that incorporation, but also all the Fourteenth Amendment developments discussed in the text. For these reasons, and because neither case states a general test, Wright And Gomillion are of no help at all in formulating a test for § 5 cases.
16
The Court refers to the cited page for the proposition that members of a minority group have no federal right "to be represented in legislative bodies in proportion to their number in the general population." Ante, at 136-137, n. 8. Whitcomb v. Chavis stands for no such proposition. The language the Court refers to is substantively identical to that quoted in the text and supports only the notion that there is no right to proportional representation absent evidence of denial of access to the political process.
17
The cases make clear that the inquiry is not meant to be limited to the ability of the minority group to participate in the voting plan under attack, but also includes sweeping analysis of the minority group's past and present treatment by the jurisdiction before the court. White v. Regester, 412 U.S., at 766-767, 93 S.Ct., at 2339-2340, 37 L.Ed.2d, at 324-325; Whitcomb v. Chavis, 403 U.S., at 149-153, 91 S.Ct., at 1872-1874, 29 L.Ed.2d, at 379-382.
18
For instance, a city with a 20% Negro population and a five-member council elected in wards might be able to justify the placement of only 20% Minority population in each district, despite a history of denial of access to the political process, by showing that the minority population was perfectly distributed throughout the municipality so that the creation of a Negro-majority ward was an impossibility. On the other hand, again assuming a history of denial of access to the political process, such a plan could not survive attack if the 20% Negro population of each ward were achieved by dividing five ways a concentrated bloc of Negro voters located in the center of the city.
19
This effect is clear in this case, where Negroes constitute 34.5% Of the New Orleans electorate. Out of seven seats, Negroes should reasonably expect to control at least two. In considering only five seats, the Court suggests properly, given its self-imposed limitation that Negroes should have an expectancy of only one seat. Ante, at 137 n. 8. If only two of the five districts were before us, and assuming a 34.5% Minority share of the voting population in those districts, the Court could properly conclude that Negroes could lay claim to neither of the two seats. Thus, under the Court's approach, the smaller the number of seats that the city may present for consideration, the grosser the discrimination that may be numerically tolerated.
20
The tendency to racial bloc voting in New Orleans is a finding of fact by the District Court that is not challenged here. Such voting was encouraged until 1964 by a Louisiana statute, declared unconstitutional in Anderson v. Martin, 375 U.S. 399, 84 S.Ct. 454, 11 L.Ed.2d 430 (1964), that required the race of each candidate to be printed on the ballots used in all elections within the State.
21
Appellants challenge the propriety of looking at this evidence in assessing the effect of Plan II, not its accuracy.
22
The majority-vote requirement is a rule that the winner of an election must have a majority of the vote. Thus, in a race involving three or more candidates, a plurality of voters cannot elect their candidate. If no candidate wins a majority, there is a run-off election.
The "anti-single-shot" rule is a requirement that in a multi-member district the voter must vote for as many candidates as there are seats to be filled. Thus, although the voter may be interested in only one of the candidates, he must vote for others as well.
23
The city asserts that its seventh goal is to retain "historic and traditional councilmanic district boundaries" so as to "preserve continuity within the electorate." Brief for Appellants 28-29. In fact, the record is conclusive that the goal was purely to keep incumbents apart. 1 App. 206-207; 2 App. 344, 557.
24
While the Court today finds that the District Court erred in finding a discriminatory effect, it does not address the issue not reached by the District Court: whether Plan II was drafted with a discriminatory purpose. Of course, this question remains on remand. See City of Richmond v. United States, 422 U.S., at 378-379, 95 S.Ct., at 2307-2308, 45 L.Ed.2d, at 260-261.
| 12
|
425 U.S. 164
96 S.Ct. 1319
47 L.Ed.2d 653
UNITED STATES, Petitioner,v.UNITED CONTINENTAL TUNA CORPORATION.
No. 74-869.
Argued Nov. 3, 1975.
Decided March 30, 1976.
Syllabus
Prior to 1960 the Suits in Admiralty Act authorized suit against the United States in cases involving vessels owned by, possessed by, or operated by or for the United States, if such suit could have been maintained had the vessel been a private one, and provided further that such vessel was employed as a merchant vessel. In 1960, Congress amended the Act by deleting the latter proviso. The Public Vessels Act authorizes suit against the United States in cases involving "a public vessel of the United States," but bars such a suit by a foreign national unless it appears that his government allows a United States national to sue in its courts under similar circumstances. Respondent, a Philippine corporation, alleging jurisdiction under both Acts, sued the United States to recover damages resulting from the sinking of its fishing vessel after a collision with a United States naval destroyer. The District Court dismissed the complaint on the ground that since the destroyer was a "public vessel of the United States," the suit was governed by the Public Vessels Act, that therefore respondent was subject to that Act's reciprocity provision, and that since there was no such reciprocity, the suit was barred. The Court of Appeals reversed on the ground that the suit, although involving a public vessel, was maintainable under the Suits in Admiralty Act, as amended in 1960 to delete the "employed as a merchant vessel" proviso, free from the restrictions, including the reciprocity requirement, imposed by the Public Vessels Act. Held : Claims within the scope of the Public Vessels Act remain subject to its terms after the 1960 amendment to the Suits in Admiralty Act, and, since respondent's claim falls within the Public Vessels Act, the Court of Appeals erred in concluding that that Act's reciprocity provision did not apply. Pp. 166-182.
(a) The Court of Appeals' interpretation of the 1960 amendment to the Suits in Admiralty Act would render the Public Vessels Act's restrictions ineffectual and would effectively nullify specific congressional policy judgments made when the latter Act was enacted, by enabling litigants to bring suits previously subject to that Act under the Suits in Admiralty Act. Pp. 166-169.
(b) The legislative histories of the Public Vessels Act, the Suits in Admiralty Act, and, in particular, the 1960 amendment to the latter, indicate clearly that Congress did not intend to authorize the wholesale evasion of the restrictions specifically imposed by the Public Vessels Act on suits for damages caused by public vessels, but deleted the "employed as a merchant vessel" proviso merely to remove uncertainty as to the proper forum in which to bring a maritime claim against the United States, especially a contract claim, where it had been uncertain whether it should be brought on the admiralty side of a district court, under the Suits in Admiralty Act or Public Vessels Act or in the Court of Claims under the Tucker Act. Pp. 170-181.
499 F.2d 774, reversed and remanded.
Robert F. Kopp, Washington, D. C., for petitioner.
Francis J. MacLaughlin, Los Angeles, Cal., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Respondent, a Philippine corporation owned largely by Americans, brought this suit against the United States in the United States District Court for the Central District of California, alleging jurisdiction under the Suits in Admiralty Act, 41 Stat. 525, as amended, 46 U.S.C. § 741 Et seq., and the Public Vessels Act, 43 Stat. 1112, as amended, 46 U.S.C. § 781 Et seq. It sought recovery for damages resulting from the sinking of its fishing vessel, the MV Orient, after a collision with the U.S.S. Parsons, a naval destroyer of the United States.
2
Upon the United States' motion for summary judgment, the District Court held that since the naval destroyer was a "public vessel of the United States," the suit was governed by the provisions of the Public Vessels Act. See 46 U.S.C. § 781. In particular, the court held that respondent was subject to the Act's reciprocity provision, which bars any suit by a foreign national under the Act unless it appears that his government, "under similar circumstances, allows nationals of the United States to sue in its courts." § 785. Finding no such reciprocity, the District Court dismissed the complaint.
3
The Court of Appeals for the Ninth Circuit reversed on the ground that respondent's action, although involving a public vessel, is maintainable under the Suits in Admiralty Act without reference to the reciprocity provision of the Public Vessels Act. 499 F.2d 774 (1974). We granted certiorari, 420 U.S. 971, 95 S.Ct. 1390, 43 L.Ed.2d 651 (1975), and we now reverse.
4
* It is undisputed that before 1960 suits involving public vessels could not be maintained under the Suits in Admiralty Act. The Act then authorized suits involving vessels owned by, possessed by, or operated by or for the United States as follows:
5
"(I)n cases where if such vessel were privately owned or operated, or if such cargo were privately owned and possessed, a proceeding in admiralty could be maintained at the time of the commencement of the action herein provided for, a libel in personam may be brought against the United States . . . Provided that such vessel is employed as a merchant vessel." ¢s167¢s 41 Stat. 525, 46 U.S.C. § 742 (1958 ed.) (emphasis added).1
6
In 1960, however, Congress amended this provision of the Suits in Admiralty Act by deleting the proviso, italicized above, that the vessel must be "employed as a merchant vessel." 74 Stat. 912. Reading the amended provision literally, the Court of Appeals held that suits involving public vessels could now be brought under the Suits in Admiralty Act, free from the restrictions imposed by the Public Vessels Act. The court reached this result in spite of its acknowledgment that "such a conclusion permits the (Public Vessels Act's) reciprocity provision to be circumvented in a manner neither explicitly authorized nor perhaps contemplated by Congress." 499 F.2d, at 778.
7
The Court of Appeals' result would permit circumvention of not only the reciprocity requirement, but also several other significant limitations imposed upon suits brought under the Public Vessels Act. Under 46 U.S.C. § 784, for example, officers and members of the crew of a public vessel may not be subpoenaed in connection with any suit authorized by the Public Vessels Act without the consent of the Secretary of the Department, the commanding officer, or certain other persons. In time of war, the Secretary of the Navy can obtain a stay of any suit brought under the Public Vessels Act when it appears that prosecution of the suit would tend to interfere with naval operations. 10 U.S.C. §§ 7721-7730. And under the Public Vessels Act, unlike under the Suits in Admiralty Act, interest on judgments does not accrue prior to the time of judgment. Compare 46 U.S.C. § 782 with 46 U.S.C. § 745.
8
Under the Court of Appeals' interpretation of the 1960 amendment to the Suits in Admiralty Act, circumvention of these restrictive provisions of the Public Vessels Act would not be limited to a handful of cases. Since there is virtually no reason for a litigant to prefer to have his suit governed by the provisions of the Public Vessels Act,2 the import of the Court of Appeals' interpretation is to render the restrictive provisions of the Public Vessels Act ineffectual in practically every case to which they would otherwise have application. If Congress had intended that result, it might just as well have repealed the Public Vessels Act altogether.
9
The Public Vessels Act was not amended in 1960, and, as the Court of Appeals recognized, the 1960 amendment to the Suits in Admiralty Act contains no language expressly permitting claims previously governed by the Public Vessels Act to be brought under the Suits in Admiralty Act, free from the restrictive provisions of the Public Vessels Act. What amounts to the effective repeal of those provisions is urged as a matter of implication. It is, of course, a cardinal principle of statutory construction that repeals by implication are not favored. See, E. g., Regional Rail Reorganization Act Cases, 419 U.S. 102, 133, 95 S.Ct. 335, 353, 42 L.Ed.2d 320, 347 (1974); Amell v. United States, 384 U.S. 158, 165-166, 86 S.Ct. 1384, 1388, 16 L.Ed.2d 445, 449-450 (1966); Silver v. New York Stock Exchange, 3 U.S. 341, 357, 83 S.Ct. 1246, 1257, 10 L.Ed.2d 389, 400 (1963); United States v. Borden Co., 308 U.S. 188, 198-199, 60 S.Ct. 182, 188, 84 L.Ed. 181, 190-191 (1939). The principle carries special weight when we are urged to find that a specific statute has been repealed by a more general one. See, E. g. Morton v. Maneari, 417 U.S. 535, 550-551, 94 S.Ct. 2474, 2482-2483, 41 L.Ed.2d 290, 300-301 (1974); Bulova Watch Co. v. United States, 365 U.S. 753, 758, 81 S.Ct. 864, 867, 6 L.Ed.2d 72, 75 (1961); Rodgers v. United States, 185 U.S. 83, 87-89, 22 S.Ct. 582, 46 L.Ed. 816, 818-819 (1902).
10
To be sure, the principle of these cases is not precisely applicable in this case for here the argument is not that the Public Vessels Act can no longer have application to a particular set of facts, but simply that its terms can be evaded at will by asserting jurisdiction under another statute. We should, however, be as hesitant to infer that Congress intended to authorize evasion of a statute at will as we are to infer that Congress intended to narrow the scope of a statute. Both types of "repeal" effective and actual involve the compromise or abandonment of previously articulated policies, and we would normally expect some expression by Congress that such results are intended. Indeed, the expectation that there would be some expression of an intent to "repeal" is particularly strong in a case like this one, in which the "repeal" would extend to virtually every case to which the statute had application.
11
The ultimate question in this case is whether Congress intended, by the deletion of the "employed as a merchant vessel" proviso from the Suits in Admiralty Act, to authorize the wholesale evasion of the restrictions specifically imposed by the Public Vessels Act on suits for damages caused by public vessels. An examination of the history of the Suits in Admiralty Act, the Public Vessels Act, and, in particular, the 1960 amendment to the Suits in Admiralty Act, indicates quite clearly that Congress had no such intent.
II
A.
12
The history of the Suits in Admiralty Act and the Public Vessels Act has been the subject of the Court's attention on several prior occasions. See Canadian Aviator, Ltd. v. United States, 324 U.S. 215, 218-225, 65 S.Ct. 639, 641-644, 89 L.Ed. 901, 905-909 (1945); American Stevedores, Inc. v. Porello, 330 U.S. 446, 450-454, 67 S.Ct. 847, 849-850, 91 L.Ed. 1011, 1016-1018 (1947); Johansen v. United States, 343 U.S. 427, 432-434, 72 S.Ct. 849, 96 L.Ed. 1051 (1952); Amell v. United States, supra 384 U.S., at 164-166, 86 S.Ct., at 1387-1388, 16 L.Ed.2d, at 449-450. The history is quite clear and, for our purposes, can be stated briefly.
13
Prior to 1916, the doctrine of sovereign immunity barred any suit by a private owner whose vessel was damaged by a vessel owned or operated by the United States. Recognizing the inequities of denying recovery to private owners and the difficulties inherent in attempting to grant relief to deserving private owners through private Acts of Congress, Congress provided in the Shipping Act, 1916, that Shipping Board vessels employed as merchant vessels were subject to "all laws, regulations, and liabilities governing merchant vessels." 39 Stat. 730, 46 U.S.C. § 808. In The Lake Monroe, 250 U.S. 246, 39 S.Ct. 460, 63 L.Ed. 962 (1919), this Court held that the Shipping Act had subjected all Shipping Board merchant vessels to proceedings In rem in admiralty, including arrest and seizure. Congress, concerned that the arrest and seizure of Shipping Board merchant vessels would occasion unnecessary delay and expense, promptly responded to the Lake Monroe decision by enacting the Suits in Admiralty Act.3 The Act prohibited the arrest or seizure of any vessel owned by, possessed by, or operated by or for the United States. 46 U.S.C. § 741. In the place of an in rem proceeding, the Act authorized a libel in personam in cases involving such vessels, if such a proceeding could have been maintained had the vessel been a private vessel, and "provided that such vessel is employed as a merchant vessel." 41 Stat. 525, 46 U.S.C. § 742 (1958 ed.). Significantly, Congress was urged to include in the Suits in Admiralty Act authorization for suits against the United States for damages caused by public vessels, but the suggestion was rejected in committee as a "radical change" in policy that might "materially delay passage" of the Act.4
14
Until 1925 the only recourse for the owner of a vessel or cargo damaged by a public vessel was to apply to Congress for a private bill. In that year, Congress enacted the Public Vessels Act, which authorized a libel In personam against the United States "for damages caused by a public vessel of the United States." 46 U.S.C. § 781. The Act provided that suits involving public vessels "shall be subject to and proceed in accordance with the provisions of (the Suits in Admiralty Act) or any amendment thereof, insofar as the same are not inconsistent herewith . . . ." § 782. Some of the inconsistencies lay in the Public Vessels Act's provisions, referred to above, restricting subpoenas to officers and crew members of a public vessel, barring recovery of prejudgment interest, and imposing a requirement of reciprocity. Each of these provisions must be assumed to have reflected deliberate policy choices by Congress. In particular, the notion of reciprocity was central to the scheme enacted by Congress. One of the spurs to enactment of the Public Vessels Act was Congress' recognition that the principal maritime nations, notably England, France, and Germany, already permitted their nationals and foreigners to bring suit for damages caused by public vessels.5 And while the debates on the Public Vessels Act were sparse, the Act's requirement of reciprocity was specifically mentioned on the House floor in response to a question whether the Act gave foreign nationals the same rights as citizens to bring suit.6
B
15
The 1960 amendment to the Suits in Admiralty Act, which formed the basis of the Court of Appeals' decision, was an outgrowth of severe jurisdictional problems facing the plaintiff with a maritime claim against the United States. Both the Suits in Admiralty Act and the Public Vessels Act authorized suits on the admiralty side of the district courts, and were viewed as providing the exclusive remedy for claims within their coverage. See 46 U.S.C. § 745; Johnson v. United States Shipping Board Emergency Fleet Corp., 280 U.S. 320, 50 S.Ct. 118, 74 L.Ed. 451 (1930); Aliotti v. United States, 221 F.2d 598 (CA9 1955). But these Acts were not generally interpreted to encompass all actionable maritime claims against the United States. Maritime tort claims deemed beyond the reach of both Acts could be brought only on the law side of the district courts under the Federal Tort Claims Act. 28 U.S.C. §§ 1346(b), 2671 et seq. More importantly for our purposes, contract claims not encompassed by either Act fell within the Tucker Act, which lodged exclusive jurisdiction in the Court of Claims for claims exceeding $10,000. 28 U.S.C. §§ 1346(a)(2), 1491.
16
A plaintiff with a contract claim against the United States for more than $10,000 often found himself in a difficult position. He had to choose between proceeding in the district court under one of the admiralty Acts, and proceeding in the Court of Claims under the Tucker Act. And he had to choose his forum wisely, for cases were not transferable between the district courts and the Court of Claims, and an incorrect choice could result in the applicable statute of limitations having run by the time the error was discovered.7 The solution of filing claims in both the district court and the Court of Claims was unavailable, because under 28 U.S.C. § 1500 the Court of Claims has no jurisdiction over any claim that is the subject of a pending suit in any other court. See Wessel, Duval & Co. v. United States, 124 F.Supp. 636, 129 Ct.Cl. 464 (1954).
17
Because of serious uncertainties about the reach of the Suits in Admiralty and Public Vessels Acts on the one hand, and the Tucker Act on the other, the crucial determination of the appropriate forum for a claim was often a difficult one.8 The jurisdictional uncertainties under these Acts were illustrated in Calmar S. S. Corp. v. United States, 345 U.S. 446, 73 S.Ct. 733, 97 L.Ed. 1140 (1953). In that case the private owner of a steamship under charter to the United States brought suit for additional charter hire for the loss of its vessel, which was bombed by enemy airplanes while carrying military supplies and equipment. The vessel was clearly not a "public vessel" under the Public Vessels Act, because it was privately owned and operated. The question was whether the vessel, "undoubtedly 'operated . . . for the United States', was 'employed as a merchant vessel' within the meaning of the (Suits in Admiralty) Act while carrying military supplies and equipment for hire." Id., at 447, 73 S.Ct. at 734, 97 L.Ed. at 1142. The District Court held that it was a merchant vessel, and assumed jurisdiction under the Suits in Admiralty Act. The Court of Appeals reversed on the ground that while the vessel could have been employed as a merchant vessel under its charter, it was not so employed while transporting war materiel. Having thus successfully argued to the Court of Appeals that the suit was not cognizable under either the Suits in Admiralty Act or the Public Vessels Act, the Government reversed its position in this Court. It argued, and the Court held, that the nature of the cargo was irrelevant and that the vessel was employed as a merchant vessel within the meaning of the Suits in Admiralty Act. The Court was clearly sensitive to the fact that a contrary ruling would have relegated the plaintiff to the Court of Claims, Id., at 455, 73 S.Ct. at 737, 97 L.Ed. at 1146, but even after Calmar there remained the possibility that a particular vessel would be held to be neither a "public vessel" nor "employed as a merchant vessel."
18
The sharp reversals of position by the Government and the courts in the Calmar case were but illustrative of the jurisdictional uncertainties faced by potential litigants. In several instances, courts reached conflicting results as to whether certain types of claims should be brought in the district court under the Suits in Admiralty Act or the Public Vessels Act on the one hand, or in the Court of Claims under the Tucker Act on the other.9
19
It was the difficulty in determining the appropriate forum for a maritime claim against the United States that moved Congress to amend the Suits in Admiralty Act in 1960. The amendment first passed by the House in 1959 was designed to ameliorate the harsh consequences of misfilings by authorizing the transfer of cases between the district courts and the Court of Claims.10 The transfer provision would "prevent dismissal of suits which would become time-barred when the appropriate forum had finally been determined."11 But the Senate Committee on the Judiciary found the House bill inadequate:
20
"The transfer bill would operate to prevent ultimate loss of rights of litigants, but it did nothing to eliminate or correct the cause of original erroneous choices of forum while it could increase the existing delays."12
21
Accordingly, the committee, while accepting the House amendment, proposed several additional amendments, whose purpose was stated succinctly as follows:
22
"The purpose of the amendments is to make as certain as possible that suits brought against the United States for damages caused by vessels and employees of the United States through breach of contract or tort can be originally filed in the correct court so as to proceed to trial promptly on their merits."13
23
Two amendments were designed to clarify the jurisdictional language of the Suits in Admiralty Act. First, the committee added language authorizing suits against the United States where a suit would be maintainable "if a private person or property were involved." The prior version of the Act had authorized suits against the United States only when suits would be maintainable if the "vessel" or "cargo" were privately owned, operated, or possessed, and that language had generated considerable confusion.14
24
Second, the committee made the change that concerns us in this case: it deleted the language in the jurisdictional section of the Suits in Admiralty Act requiring that a vessel be "employed as a merchant vessel." We have already noted the confusion evidenced by the Government and the courts in the Calmar case over whether the vessel in question was "employed as a merchant vessel." In addition, the Senate Report referred to other cases in which the "employed as a merchant vessel" language had caused jurisdictional difficulties. For example, in Continental Cas. Co. v. United States, 156 F.Supp. 942, 140 Ct.Cl. 500 (1957), the Court of Claims had held that a suit on a contract for the repair of a vessel that had been out of service for several years was not authorized by the Suits in Admiralty Act, because at the time the repairs were made "the vessel was not employed at all," and could not therefore be said to have been "employed as a merchant vessel." Similarly, in Eastern S. S. Lines v. United States, 187 F.2d 956 (CA1 1951), the Court of Appeals affirmed the dismissal of a vessel owner's contract claim against the United States for the amount necessary to recondition its vessel as a cargo and passenger ship after the Army had used it for troop transport and hospital services. The Court of Appeals held that the Suits in Admiralty Act had no application because the Army had not employed the vessel as a merchant vessel. The results in Continental Casualty and Eastern S. S. Lines were, the Senate Report noted, contrary to results reached in other cases "on essentially identical facts."15 It was to make clear that such cases could be brought on the admiralty side of the district courts that the committee recommended the deletion of the confusing "employed as a merchant vessel" proviso.
C
25
Respondent contends that the deletion of the "employed as a merchant vessel" proviso was intended to abolish the distinction between a merchant vessel and a public vessel, and thereby enable suits previously cognizable under the Public Vessels Act to be brought under the Suits in Admiralty Act, free from the restrictive provisions of the Public Vessels Act. There is no indication that Congress had any such broad purpose.16 The legislative history contains no explicit suggestion that Congress intended to render nugatory the provisions of the Public Vessels Act. Nor does it express any broad intent to put an end to all litigation over whether a vessel is a public vessel.
26
The definitions of "merchant vessel" and "public vessel" were of interest to Congress only insofar as they related to Congress' basic purpose: to remove uncertainty over the proper forum for a claim against the United States. In this regard, it is quite clear that Congress' concern was not with uncertainty whether a suit should be brought under the Suits in Admiralty Act or under the Public Vessels Act, since in either event the proper forum was the admiralty side of the district court. See Calmar S. S. Corp., 345 U.S., at 454-455, 73 S.Ct. at 737, 97 L.Ed. at 1145-1146. The Senate Report stated the concern precisely:
27
"The serious problem, and the one to which this bill is directed, arises in claims exceeding $10,000 where there is uncertainty as to whether a suit is properly brought under the Tucker Act (in the Court of Claims) on the one hand or the Suits in Admiralty or Public Vessels Act (on the admiralty side of the district court) on the other."17
28
In short, Congress saw confusion between the category of suits cognizable under the Suits in Admiralty Act or Public Vessels Act on the one hand, and the category of suits cognizable under the Tucker Act on the other. It attempted to eliminate the confusion between these two categories by expanding the scope of the Suits in Admiralty Act at the expense of the Tucker Act thereby virtually eliminating the quasi-admiralty jurisdiction of the Court of Claims under the Tucker Act.18 But Congress did nothing to alter the distinction between the Suits in Admiralty Act and the Public Vessels Act, or expand the one at the expense of the other.
29
That the House and Senate Reports contain a reference to "confusion in establishing whether a vessel is a 'merchant vessel' or a 'public vessel,' " does not suggest otherwise. That reference appears in the course of a discussion of the difficulty in choosing the proper forum for a claim. To a limited extent, doubt whether a vessel was a merchant vessel or a public vessel created uncertainty over the proper forum. The Reports explained:
30
"If (a vessel is) a 'merchant vessel,' under the Suits in Admiralty Act exclusive jurisdiction is in the district court in admiralty. If a 'public vessel,' jurisdiction may be either in admiralty under the Public Vessels Act or under the Tucker Act, depending on the nature of the claim. It will be recalled that a claim under the Tucker Act exceeding $10,000 must be brought in the Court of Claims."19
31
Congress' concern was that because of differences in the authorizational language of the Suits in Admiralty Act and the Public Vessels Act, some claims that would clearly have been within the jurisdiction of the district court if merchant vessels were involved had been held to be beyond the district court's jurisdiction when public vessels were involved. Thus, some courts had held that contract claims other than those expressly authorized by the Public Vessels Act were generally not cognizable under the Act.20 Litigants with certain types of contract claims therefore faced the possibility that the appropriate forum would depend on the type of vessel involved. Congress' deletion of the "employed as a merchant vessel" proviso was clearly intended to remove such uncertainty as to the proper forum by bringing within the Suits in Admiralty Act whatever category of claims involving public vessels was beyond the scope of the Public Vessels Act.21 But claims like the instant one, that fell within the Public Vessels Act, presented none of the problems with which Congress was concerned in 1960, and there is therefore no reason to infer that Congress intended to affect them.
III
32
In sum, the interpretation of the 1960 amendment advanced by the respondent and adopted by the Court of Appeals would effectively nullify specific policy judgments made by Congress when it enacted the Public Vessels Act, by enabling litigants to bring suits previously subject to the terms of the Public Vessels Act under the Suits in Admiralty Act. The language of the amendment does not explicitly authorize such a result, and the legislative history reflects a narrow congressional purpose that would not be advanced by that result. We therefore hold that claims within the scope of the Public Vessels Act remain subject to its terms after the 1960 amendment to the Suits in Admiralty Act. Since there is no dispute that respondent's claim falls within the embrace of the Public Vessels Act, the Court of Appeals erred in concluding that the reciprocity provision of the Public Vessels Act is inapplicable.
33
Respondent urges two additional grounds for affirmance. First, it contends that the reciprocity provision, even if applicable, does not bar its claim, because the owners of 99% Of its stock are Americans and it is in substance an American owner. The District Court rejected this contention, and the Court of Appeals did not address it since it found the reciprocity provision inapplicable. Second, respondent argues that if it is considered a national of the Philippines, whose suit would fall within the prohibition of the reciprocity provision, that provision denies it due process in violation of the Fifth Amendment. This argument was not even presented to the District Court, and was not addressed by the Court of Appeals. We leave the consideration of these two additional contentions, to the extent they were adequately raised, to the Court of Appeals on remand.
34
The judgment of the Court of Appeals is reversed, and the case remanded for further proceedings consistent with this opinion.
35
It is so ordered.
36
Reversed and remanded.
37
Mr. Justice STEVENS took no part in the consideration or decision of this case.
38
Mr. Justice STEWART, dissenting.
39
Congress amended the Suits in Admiralty Act in 1960 to eliminate the distinction the Act formerly drew between public vessels and merchant vessels owned or operated by the United States. 74 Stat. 912. See S.Rep. No. 1894, 86th Cong., 2d Sess., 3 (1960). See also S.Rep. No. 92-1079, pp. 5-6 (1972). Six years later the then Solicitor General explained the effect of that amendment in a brief filed on behalf of the Government in this Court:
40
"As originally enacted, the Suits in Admiralty Act was limited to government merchant vessels and tugboats, and excluded public vessels. The latter were separately covered in the Public Vessels Act . . . . Because of uncertainty engendered by the public-merchant vessel distinction, . . . Congress in 1960 amended Section 2 of the Suits in Admiralty Act to delete the reference to merchant vessels. . . . Thus, the Suits in Admiralty Act now extends to government public as well as merchant vessels." Brief for United States 9, n. 1 in Amell v. United States, No. 282, O.T. 1963.1
41
In the present case the Government has steered an entirely different course, arguing that Congress did not intend to expand the scope of the Suits in Admiralty Act to include public vessels, and that the plain language of the Act should be ignored. I cannot accept this boxing of the compass. At best, the United States has demonstrated only that the legislative history indicates that Congress was concerned with more than one problem in amending the law. But ambiguous legislative history surely cannot suffice to undermine the plain words of the statute, when no persuasive policy considerations2 and no repeal by implication3 are involved.
42
The plain language of the Suits in Admiralty Act authorizes anyone to sue the United States for damages caused by any United States vessel. There is no need to inquire further: "When there is no ambiguity in the words, there is no room for construction. The case must be a strong one indeed, which would justify a Court in departing from the plain meaning of words . . . in search of an intention which the words themselves did not suggest." United States v. Wiltberger, 5 Wheat. 76, 95-96, 5 L.Ed. 37, 92 (Marshall, C. J.). As the Court said 10 years ago in construing the Suits in Admiralty Act: "If we are here misconstruing the intent of Congress, it can easily set the matter to rest by explicit language." Amell v. United States, supra, 384 U.S. 158, 166, 86 S.Ct. 1384, 1389, 16 L.Ed.2d 445, 450. So long as the law reads as it now does, I think the Court of Appeals correctly understood it, and I would, therefore, affirm the judgment before us.4
1
We need not concern ourselves in this case with the definitions of the terms "merchant vessel" and "public vessel." It suffices to say that the terms are mutually exclusive, and that the naval destroyer in this case is beyond question a "public vessel."
2
The only apparent advantage to bringing suit under the Public Vessels Act lies in its broader venue provision. Both the Suits in Admiralty Act and the Public Vessels Act provide venue in the district in which the vessel or cargo is found, and in the district in which any plaintiff resides or has a place of business (under the Suits in Admiralty Act it must be the principal place of business in the United States). 46 U.S.C. §§ 742, 782. But the Public Vessels Act provides further that if there is no such district, suit may be brought in any district in the United States. 46 U.S.C. § 782.
3
See S.Rep.No.223, 66th Cong., 1st Sess. (1919); H.R.Rep.No.497, 66th Cong., 2d Sess. (1919).
4
Id., at 4.
5
H.R.Rep.No.913, 68th Cong., 1st Sess., 5-6, 15-16 (1924); S.Rep.No.941, 68th Cong., 2d Sess., 5-6, 15-16 (1925); 66 Cong. Rec. 2088 (1925) (remarks of Rep. Underhill).
6
Ibid. (remarks of Reps. Denison, Underhill, and Bulwinkle).
7
H.R.Rep.No.523, 86th Cong., 1st Sess., 2 (1959) (hereinafter cited as House Report); S.Rep.No.1894, 86th Cong., 2d Sess., 3 (1960) (hereinafter cited as Senate Report), U.S.Code Cong. & Admin.News 1960, p. 3583. The problem was most severe when suit was incorrectly brought in the Court of Claims under the Tucker Act, which has a six-year statute of limitations, 28 U.S.C. § 2401(a); the Suits in Admiralty and Public Vessels Acts have two-year limitation periods, 46 U.S.C. §§ 745, 782.
8
The respective House and Senate committee reports explained the problem as follows:
"Since the applicability of (the Suits in Admiralty, Public Vessels, and Tucker Acts) to a given factual situation is frequently exceedingly difficult to determine and a question on which reasonable men may differ, lawyers in maritime practice occasionally and unavoidably bring suit in the wrong forum." House Report 2; Senate Report 3, U.S.Code Cong. & Admin.News 1960, p. 3584.
9
See House Report 3; Senate Report 4. Compare Aliotti v. United States, 221 F.2d 598 (CA9 1955), with Eastern S. S. Lines v. United States, 187 F.2d 956 (CA1 1951); Lykes Bros. S. S. Co. v. United States, 124 F.Supp. 622, 129 Ct.Cl. 455 (1954), with States Marine Corp. v. United States, 120 F.Supp. 585 (SDNY 1954), rev'd, 220 F.2d 655 (CA2 1955); Smith-Johnson S. S. Corp. v. United States, 139 F.Supp. 298, 135 Ct.Cl. 869, cert. denied, 351 U.S. 988, 76 S.Ct. 1047, 100 L.Ed. 1501 (1956), with Sword Line v. United States, 228 F.2d 344 (CA2 1955), 230 F.2d 75 (CA2), aff'd, 351 U.S. 976, 76 S.Ct. 1047, 100 L.Ed. 1493 (1956) (after Sword Line was affirmed, the Court of Claims reversed itself in Smith-Johnson, supra, in 142 F.Supp. 367, 135 Ct.Cl. 866 (1956).
10
The House had passed an identical bill in 1958, H.R. 3046, 85th Cong., 1st Sess., but it did not emerge from the Senate Committee on the Judiciary before the expiration of the 85th Congress.
11
House Report 3; Senate Report 4, U.S.Code Cong. & Admin.News 1960, p. 3587.
12
Id., at 6, U.S.Code Cong. & Admin.News 1960, p. 3587.
13
Id., at 2, U.S.Code Cong. & Admin.News 1960, p. 3583.
14
Senate Report 5, citing Ryan Stevedoring Co. v. United States, 175 F.2d 490 (CA2), cert. denied, 338 U.S. 899, 70 S.Ct. 249, 94 L.Ed. 553 (1949). Compare Lykes Bros. S. S. Co. v. United States, supra, with States Marine Corp. v. United States, supra.
This amendment, which has no bearing on this case, has generally been held to require that those maritime tort claims that were previously cognizable only on the law side of the district courts under the Federal Tort Claims Act now be brought on the admiralty side of the district courts under the Suits in Admiralty Act. See T. J. Falgout Boats, Inc. v. United States, 361 F.Supp. 838 (CD Cal.1972), aff'd, 508 F.2d 855 (CA9 1974), cert. denied, 421 U.S. 1000, 95 S.Ct. 2398, 44 L.Ed.2d 667 (1975); Roberts v. United States, 498 F.2d 520 (CA9), cert. denied, 419 U.S. 1070, 95 S.Ct. 656, 42 L.Ed.2d 665 (1974); De Bardeleben Marine Corp. v. United States, 451 F.2d 140 (CA5 1971); Utzinger v. United States, 246 F.Supp. 1022 (SD Ohio 1965); Tankrederiet Gefion A/S v. United States, 241 F.Supp. 83 (ED Mich.1964); Tebbs v. Baker-Whitely Towing Co., 227 F.Supp. 656 (Md.1964); Beeler v. United States, 224 F.Supp. 973 (WD Pa.), rev'd on other grounds, 338 F.2d 687 (CA3 1964).
15
Senate Report 5, citing Shewan & Sons v. United States, 266 U.S. 108, 45 S.Ct. 45, 69 L.Ed. 192 (1924); Aliotti v. United States, 221 F.2d 598 (CA9 1955); Sinclair Rfg. Co. v. United States, 124 F.Supp. 628, 129 Ct.Cl. 474 (1954). Of course, this Court's decision in the Calmar case cast doubts on at least some decisions narrowly defining the scope of admiralty jurisdiction under the Suits in Admiralty and Public Vessels Acts. Congress was understandably of the view that confusion remained after Calmar.
16
We do not view the dictum in Amell v. United States, 384 U.S. 158, 164, 86 S.Ct. 1384, 1387, 16 L.Ed.2d 445, 449 (1966), as requiring a result different from the one we reach today.
17
Senate Report 3, U.S.Code Cong. & Admin.News 1960, p. 3584.
18
The Court of Claims has not been completely deprived of jurisdiction over claims arising in a maritime context. In Amell v. United States, supra, we held that wage claims exceeding $10,000 by Government employees working aboard Government vessels are still cognizable exclusively in the Court of Claims, where wage claims by Government employees have traditionally been cognizable.
19
House Report 2; Senate Report 3, U.S.Code Cong. & Admin.News 1960, p. 3584.
20
See, E. g., Eastern S. S. Lines v. United States, 187 F.2d, at 959; Continental Cas. Co. v. United States, 156 F.Supp. 942, 140 Ct.Cl. 500 (1957). Other than claims for "damages caused by a public vessel of the United States," the only claims expressly authorized by the Public Vessels Act are claims "for compensation for towage and salvage services, including contract salvage, rendered to a public vessel of the United States." 46 U.S.C. § 781.
21
It is not to be assumed that contract claims other than those expressly authorized by the Public Vessels Act were necessarily beyond the scope of the Act. As in Calmar S. S. Corp. v. United States, 345 U.S. 446, 456 n. 8, 73 S.Ct. 733, 738, 97 L.Ed. 1140, 1147 (1953), we intimate no view on the subject.
1
This Court agreed: "In 1960, . . . Congress abolished the distinction between public and merchant vessels, a matter which had sorely confused attorneys . . . ." Amell v. United States, 384 U.S. 158, 164, 86 S.Ct. 1384, 1388, 16 L.Ed.2d 445, 449.
2
Since the United States could have sued the owners of the fishing boat in the Philippines had the fishing boat rammed the destroyer, it would do no violence to the concept of reciprocity to allow the owners of the boat to sue the United States in a federal court. And while the United States would no longer be able Sua sponte to prevent the enforcement of subpoenas or stay proceedings against naval vessels and their crews, it is not realistic to think that a federal court would refuse such relief if national security were in any way at stake. Finally, prejudgment interest is awardable under the Suits in Admiralty Act, and not under the Public Vessels Act, but the amount of money involved in such awards is not large and the award of interest is discretionary in any event. The Scotland, 118 U.S. 507, 519, 6 S.Ct. 1174, 1175, 30 L.Ed. 153, 155. None of these governmental interests supposedly served by the Public Vessels Act, but not by the Suits in Admiralty Act, is, therefore, significant.
3
The judgment of the Court of Appeals does not amount to a repeal of the Public Vessels Act, since there will still be cases cognizable only under that Act by reason of its broader venue provisions. Compare 46 U.S.C. § 742 with 46 U.S.C. § 782.
4
While no other Court of Appeals has ruled on the precise issue presented here, two have indicated that they would reach the same result as did the Ninth Circuit. United Philippine Lines, Inc. v. The Daniel Boone, 475 F.2d 478, 480 n. 5 (CA4); Ira S. Bushey & Sons, Inc. v. United States, 398 F.2d 167, 169 (CA2). See also De Bardeleben Marine Corp. v. United States, 451 F.2d 140, 145-146 (CA5).
| 78
|
425 U.S. 219
96 S.Ct. 1393
47 L.Ed.2d 692
C. Marshall DANN, Commissioner of Patents and Trademarks, Petitioner,v.Thomas R. JOHNSTON.
No. 74-1033.
Argued Dec. 9, 1975.
Decided March 31, 1976.
Syllabus
Respondent's "machine system for automatic record-keeping of bank checks and deposits," under which checks and deposits are customer labeled with code categories which are "read," and then processed by a data processor, such as a programmable electronic digital computer, having data storage files and a control system, permitting a bank to furnish a customer with an individual and categorized breakdown of his transactions during the period in question, Held unpatentable on grounds of obviousness. 35 U.S.C. § 103. Pp. 225-230.
502 F.2d 765, reversed and remanded.
Howard E. Shapiro, Washington, D. C., for petitioner.
Morton C. Jacobs, Philadelphia, Pa., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Respondent has applied for a patent on what is described in his patent application as a "machine system for automatic record-keeping of bank checks and deposits." The system permits a bank to furnish a customer with subtotals of various categories of transactions completed in connection with the customer's single account, thus saving the customer the time and/or expense of conducting this bookkeeping himself. As respondent has noted, the "invention is being sold as a computer program to banks and to other data processing companies so that they can perform these data processing services for depositors." Brief for Respondent 19A; at 18, Application of Johnston, 502 F.2d 765 (CCPA 1974).
2
Petitioner and respondent, as well as various Amici, have presented lengthy arguments addressed to the question of the general patentability of computer programs. Cf. Gottschalk v. Benson, 409 U.S. 63, 93 S.Ct. 253, 34 L.Ed.2d 273 (1972). We find no need to treat that question in this case, however, because we conclude that in any event respondent's system is unpatentable on grounds of obviousness. 35 U.S.C. § 103. Since the United States Court of Customs and Patent Appeals (CCPA) found respondent's system to be patentable, Application of Johnston, supra, the decision of that court is accordingly reversed.
3
* While respondent's patent application pertains to the highly esoteric field of computer technology, the basic functioning of his invention is not difficult to comprehend. Under respondent's system a bankcustomer labels each check that he writes with a numerical category code corresponding to the purpose for which the funds are being expended. For instance, "food expenditures" might be a category coded "123," "fuel expenditures" a category coded "124," and "rent" still another category coded "125." Similarly, on each deposit slip, the customer again, through a category code, indicates the source of the funds that he is depositing. When the checks and deposit slips are processed by the bank, the category codes are entered upon them in magnetic ink characters, just as, under existing procedures, the amount of the check or deposit is entered in such characters. Entries in magnetic ink allow the information associated with them to be "read" by special document-reading devices and then processed by data processors. On being read by such a device, the coded records of the customer's transactions are electronically stored in what respondent terms a "transaction file." Respondent's application describes the steps from this point as follows:
4
"To process the transaction file, the . . . system employs a data processor, such as a programmable electronic digital computer, having certain data storage files and a control system. In addition to the transaction file, a master record-keeping file is used to store all of the records required for each customer in accordance with the customer's own chart of accounts. The latter is individually designed to the customer's needs and also constructed to cooperate with the control system in the processing of the customer's transactions. The control system directs the generation of periodic output reports for the customer which present the customer's transaction records in accordance with his own chart of accounts and desired accounting procedures." Pet. for Cert. 4A-5A.
5
Thus, when the time comes for the bank customer's regular periodic statement to be rendered, the programmed computer sorts out the entries in the various categories and produces a statement which groups the entries according to category and which gives subtotals for each category. The customer can then quickly see how much he spent or received in any given category during the period in question. Moreover, according to respondent, the system can "(adapt) to whatever variations in ledger format a user may specify." Brief for Respondent 66.
6
In further description of the control system that is used in the invention, respondent's application recites that it is made up of a general control and a master control. The general control directs the processing operations common to most customers and is in the form of a software computer program, I. e., a program that is meant to be used in a general-purpose digital computer. The master control, directing the operations that vary on an individual basis with each customer, is in the form of a separate sequence of records for each customer containing suitable machine-instruction mechanisms along with the customer's financial data. Respondent's application sets out a flow chart of a program compatible with an IBM 1400 computer which would effectuate his system.
7
Under respondent's invention, then, a general purpose computer is programmed to provide bank customers with an individualized and categorized breakdown of their transactions during the period in question.
II
8
After reviewing respondent's patent application, the patent examiner rejected all the claims therein. He found that respondent's claims were invalid as being anticipated by the prior art, 35 U.S.C. § 102, and as not "particularly pointing out and distinctly claiming" what respondent was urging to be his invention. § 112.
9
Respondent appealed to the Patent and Trademark Office Board of Appeals. The Board rejected respondent's application on several grounds. It found first that under § 112, the application was indefinite and did not distinctly enough claim what respondent was urging to be his invention. It also concluded that respondent's claims were invalid under § 101 because they claimed nonstatutory subject matter. According to the Board, computer-related inventions which extend "beyond the field of technology . . . are nonstatutory," Pet. for Cert. 31A. See Application of Foster, 58 CCPA (Pat.) 1001, 1004, 438 F.2d 1011, 1015 (1971); Application of Musgrave, 57 CCPA (Pat.) 1352, 431 F.2d 882 (1970), and respondent's claims were viewed to be "non-technological." Finally, respondent's claims were rejected on grounds of obviousness. 35 U.S.C. § 103. The Board found that respondent's claims were obvious variations of established uses of digital computers in banking and obvious variations of an invention, developed for use in business organizations, that had already been patented. Dirks, U.S.Patent No. 3,343,133.
10
The CCPA, in a 3-2 ruling, reversed the decision of the Board and held respondent's invention to be patentable. The court began by distinguishing its view of respondent's invention as a " 'record-keeping Machine system for financial accounts' " from the Board's rather negative view of the claims as going solely to the " 'relationship of a bank and its customers.' " 502 F.2d, at 770 (emphasis in CCPA opinion). As such, the CCPA held, respondent's system was "clearly within the 'technological arts,' " Id., at 771, and was therefore statutory subject matter under 35 U.S.C. § 101. Moreover, the court held that respondent's claims were narrowly enough drawn and sufficiently detailed to pass muster under the definiteness requirements of § 112. Dealing with the final area of the Board's rejection, the CCPA found that neither established banking practice nor the Dirks patent rendered respondent's system "obvious to one of ordinary skill in the art who did not have (respondent's) specification before him." 502 F.2d, at 772.
11
In order to hold respondent's invention to be patentable, the CCPA also found it necessary to distinguish this Court's decision in Gottschalk v. Benson, 409 U.S. 63, 93 S.Ct. 253, 34 L.Ed.2d 273 (1972), handed down some 13 months subsequent to the Board's ruling in the instant case. In Benson, the respondent sought to patent as a "new and useful process," 35 U.S.C. § 101, "a method of programming a general-purpose digital computer to convert signals from binary-coded decimal form into pure binary form." 409 U.S., at 65, 93 S.Ct., at 254, 34 L.Ed.2d at 276. As we observed: "The claims were not limited to any particular art or technology, to any particular apparatus or machinery, or to any particular end use." Id., at 64, 93 S.Ct., at 254, 34 L.Ed.2d, at 275. Our limited holding, Id. at 71, 93 S.Ct., at 257, 34 L.Ed.2d, at 279, was that respondent's method was not a patentable "process" as that term is defined in 35 U.S.C. § 100(b).1
12
The Solicitor of the Patent Office argued before the CCPA that Benson's holding of nonpatentability as to the computer program in that case was controlling here. However, the CCPA concluded that while Benson involved a claim as to the patentability a "process," respondent in this case was advancing claims as to the patentability of an "apparatus" or "machine" which did not involve discoveries so abstract as to be unpatentable:
13
" 'The issue considered by the Supreme Court in Benson was a narrow one, namely, is a formula for converting binary coded decimal numerals into pure binary numerals by a series of mathematical calculations a patentable Process? ' (Emphasis added.) (Quoting In re Christensen, 478 F.2d 1392, 1394 (CCPA 1973).)
14
"(T)he instant claims in Apparatus form, do not claim or encompass a law of nature, a mathematical formula, or an algorithm." 502 F.2d, at 771 (emphasis in CCPA opinion).
15
Having disposed of the Board's rejections and having distinguished Benson to its satisfaction, the court held respondent's invention to be patentable. The Commissioner of Patents sought review in this Court and we granted certiorari. 421 U.S. 962, 95 S.Ct. 1948, 44 L.Ed.2d 448 (1975). We hold that respondent's invention was obvious under 35 U.S.C. § 103 and therefore reverse.
III
16
As a judicial test, "invention" I.e., "an exercise of the inventive faculty," McClain v. Ortmayer, 141 U.S. 419, 427, 12 S.Ct. 76, 78, 35 L.Ed. 800, 803 (1891) has long been regarded as an absolute prerequisite to patentability. See, E. g., Keystone Driller Co. v. Northwest Engineering Corp., 294 U.S. 42, 55 S.Ct. 262, 79 L.Ed. 747 (1935); Sharp v. Stamping Co., 103 U.S. 250, 26 L.Ed. 445 (1880); Hotchkiss v. Greenwood, 11 How. 248, 13 L.Ed. 683, 1851). However, it was only in 1952 that Congress, in the interest of "uniformity and definiteness," articulated the requirement in a statute, framing it as a requirement of "nonobviousness."2 Section 103 of the Patent Act of 1952, 35 U.S.C. § 103, provides in full:
17
"A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made."
18
This Court treated the scope of § 103 in detail in Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). There, we held that § 103 "was not intended by Congress to change the general level of patentable invention," but was meant "merely as a codification of judicial precedents . . . with congressional directions that inquiries into the obviousness of the subject matter sought to be patented are a prerequisite to patentability." Id., at 17, 86 S.Ct., at 693, 15 L.Ed.2d, at 556. While recognizing the inevitability of difficulty in making the determination in some cases, we also set out in Graham, supra, the central factors relevant to any inquiry into obviousness: "the scope and content of the prior art," the "differences between the prior art and the claims at issue," and "the level of ordinary skill in the pertinent art." Ibid. Guided by these factors, we proceed to an inquiry into the obviousness of respondent's system.
19
As noted, Supra, at 223, the Patent and Trademark Office Board of Appeals relied on two elements in the prior art in reaching its conclusion that respondent's system was obvious. We find both to be highly significant. The first was the nature of the current use of data processing equipment and computer programs in the banking industry. As respondent's application itself observes, that use is extensive:
20
"Automatic data processing equipments employing digital computers have been developed for the handling of much of the record-keeping operations involved in a banking system. The checks and deposit slips are automatically processed by forming those items as machine-readable records . . . . With such machine systems, most of the extensive data handling required in a bank can be performed automatically." Pet. for Cert. 3A.
21
It is through the use of such data processing equipment that periodic statements are ordinarily given to a bank customer on each of the several accounts that he may have at a given bank. Under respondent's system, what might previously have been separate accounts are treated as a single account, and the customer can see on a single statement the status and progress of each of his "sub-accounts." Respondent's "category code" scheme, see Supra, at p. 221, is, we think, closely analogous to a bank's offering its customers multiple accounts from which to choose for making a deposit or writing a check. Indeed, as noted by the Board, the addition of a category number, varying with the nature of the transaction, to the end of a bank customer's regular account number, creates "in effect, a series of different and distinct account numbers . . . ." Pet. for Cert. 34A. Moreover, we note that banks have long segregated debits attributable to service charges Within any given separate account and have rendered their customers subtotals for those charges.
22
The utilization of automatic data processing equipment in the traditional separate account system, is of course, somewhat different from the system encompassed by respondent's invention. As the CCPA noted, respondent's invention does something other than "provide a customer with . . . a summary sheet consisting of net totals of plural separate accounts which a customer may have at a bank." 502 F.2d, at 771. However, it must be remembered that the "obviousness" test of § 103 is not one which turns on whether an invention is equivalent to some element in the prior art but rather whether the difference between the prior art and the subject matter in question "is a different sufficient to render the claimed subject matter unobvious to one skilled in the applicable art. . . ." Id., at 772 (Markey, C. J., dissenting).
23
There is no need to make the obviousness determination in this case turn solely on the nature of the current use of data processing and computer programming in the banking industry. For, as noted, the Board pointed to a second factor a patent issued to Gerhard Dirks which also supports a conclusion of obviousness. The Dirks patent discloses a complex automatic data processing system using a programmed digital computer for use in a large business organization. Under the system transaction and balance files can be kept and updated for each department of the organization. The Dirks system allows a breakdown within each department of various areas, E. g., of different types of expenses. Moreover, the system is sufficiently flexible to provide additional breakdowns of "sub-areas" within the areas and can record and store specially designated information regarding each of any department's transactions. Thus, for instance, under the Dirks system the disbursing office of a corporation can continually be kept apprised of the precise level and nature of the corporation's disbursements within various areas or, as the Dirks patent terms them, "Item Groups." Again, as was the case with the prior art within the banking industry the Dirks invention is not equivalent to respondent's system. However, the departments of the business organization and the areas or "Item Groups" under the Dirks system are closely analogous to the bank customers and category number designations respectively under respondent's system. And each shares a similar capacity to provide breakdowns within its "Item Groups" or category numbers. While the Dirks invention is not designed specifically for application to the banking industry many of its characteristics and capabilities are similar to those of respondent's system. Cf. Graham, 383 U.S., at 35, 86 S.Ct., at 702, 15 L.Ed.2d, at 566.
24
In making the determination of "obviousness," it is important to remember that the criterion is measured not in terms of what would be obvious to a layman, but rather what would be obvious to one "reasonably skilled in (the applicable) art." Id., at 37, 86 S.Ct., at 703, 15 L.Ed.2d, at 567. In the context of the subject matter of the instant case, it can be assumed that such a hypothetical person would have been aware both of the nature of the extensive use of data processing systems in the banking industry and of the system encompassed in the Dirks patent. While computer technology is an exploding one, "(i)t is but an evenhanded application to require that those persons granted the benefit of a patent monopoly be charged with an awareness" of that technology. Id., at 19, 86 S.Ct., at 695, 15 L.Ed.2d at 557.
25
Assuming such an awareness, respondent's system would, we think, have been obvious to one "reasonably skilled in (the applicable) art." There may be differences between respondent's invention and the state of the prior art. Respondent makes much of his system's ability to allow "a large number of small users to get the benefit of large-scale electronic computer equipment and still continue to use their individual ledger format and bookkeeping methods." Brief for Respondent 65. It may be that that ability is not possessed to the same extent either by existing machine systems in the banking industry or by the Dirks system.3 But the mere existence of differences between the prior art and an invention does not establish the invention's nonobviousness. The gap between the prior art and respondent's system is simply not so great as to render the system nonobvious to one reasonably skilled in the art.4
26
Accordingly, we reverse the Court of Customs and Patent Appeals and remand this case to that court for further proceedings consistent with this opinion.
27
So ordered.
28
Reversed and remanded.
29
Mr. Justice BLACKMUN and Mr. Justice STEVENS took no part in the consideration or decision of this case.
1
"The term 'process' means process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material." 35 U.S.C. § 100(b).
2
S.Rep. No. 1979, 82d Cong., 2d Sess., 6 (1952); H.R.Rep. No. 1923, 82d Cong., 2d Sess., 7 (1952).
3
The Dirks patent does allow "the departments or other organizational users (I.e., the analogues to bank customers under respondent's invention, to) retain their authority over operative file systems" and indicates that "(p) rogramming is very easy and different programs are very easily coordinated."
4
While "commercial success without invention will not make patentability," Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 153, 71 S.Ct. 127, 131, 95 L.Ed. 162, 167 (1950), we did indicate in Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966), that "secondary considerations (such) as commercial success, long felt but unsolved needs, (and) failure of others" may be relevant in a determination of obviousness. Id., at 17, 86 S.Ct. at 694, 15 L.Ed.2d at 556. Respondent does not contend nor can we conclude that any of these secondary considerations offer any substantial support for his claims of nonobviousness.
| 78
|
425 U.S. 231
96 S.Ct. 1399
47 L.Ed.2d 701
Marcel YOUAKIM et al., Appellants,v.Jerome MILLER, Individually and as Director of the Department of Children and Family Services, et al.
No. 73-6935.
March 31, 1976.
Patrick A. Keenan, DePaul Law Clinic, Chicago, Ill., for plaintiffs-appellants.
William J. Scott, Atty. Gen., Chicago, Ill. (Paul J. Bargiel, Asst. Atty. Gen., Chicago, Ill., of counsel), for defendants-appellees.
PER CURIAM.
1
As part of the federal Aid to Families with Dependent Children (AFDC) program, 42 U.S.C. § 601 Et seq., the State of Illinois provides federally subsidized foster care (AFDC-FC) payments of $105 per month for a dependent child placed with unrelated foster parents. Under Illinois' administration of the program no foster care payments are made to foster parents who are related to the foster child. Related foster parents are eligible, however, to receive payments under the State's regular AFDC program for the support of dependent children in the amount of $63 per month. These payments are made without regard to the financial circumstances of the family caring for the child. In addition, as an exception to the State's regular policy, related foster parents, upon an adequate showing of financial need, may receive supplemental payments for child care which bring the payments in connection with the related foster child to approximately $105 per month.
2
Appellants are Linda Youakim and her husband, Marcel, and Linda's four minor brothers and sisters, Timothy, Mary Lou, Larry, and Sherry Robertson. Since 1972, the Youakims have been foster parents of Timothy and Mary Lou. Larry and Sherry have been living in separate, unrelated foster care facilities since 1969. Because Linda is related to Timothy and Mary Lou, the Youakims were ineligible for AFDC-FC foster care payments. They did apply for and receive the smaller AFDC payments for both children. Alleging injury resulting from financial inability to provide adequate care for Timothy and Mary Lou and to bring Larry and Sherry into their foster family, appellants filed suit in the District Court against the state officials on behalf of themselves and all other persons similarly situated. Their complaint described the suit as an action to enjoin enforcement of the foster care payment scheme on the ground that it denied related foster families the equal protection of the laws and likewise discriminated against wards of the State and relatives who could not provide an adequate foster home without full foster care payments. They asked that a three-judge District Court convene and enjoin the enforcement of the Illinois statutes and regulations.
3
The three-judge court "approved" the Fed.Rule Civ.Proc. 23(b)(2) class, granted appellees' motion for summary judgment, and ultimately held that the "Illinois scheme does not deny plaintiffs equal protection of the laws." 374 F.Supp. 1204, 1210 (N.D.Ill.1974). The jurisdictional statement filed here expressly challenged the Illinois scheme both on equal protection grounds and on the ground of conflict with the Social Security Act. We noted probable jurisdiction. 420 U.S. 970, 95 S.Ct. 1389, 43 L.Ed.2d 650 (1975).
4
Although the jurisdictional statement as to which we noted probable jurisdiction presented the question of conflict between the Illinois law and the Social Security Act, it appears that the Supremacy Clause claim was not presented to the District Court as an independent ground for invalidating the state law. The complaint described the suit as one seeking an injunction on equal protection grounds. The sole ground for relief expressly claimed in each of the three causes of action which the complaint purported to allege, as well as in the prayer for relief, was that the Illinois program denied appellants equal protection of the laws. It does not appear from the record in the District Court that as the case developed appellants rested on the Supremacy Clause as a separate basis for their injunction claim. Nor did the District Court address the relationship between state and federal law independently of the equal protection issue.
5
[1] Ordinarily, this Court does not decide questions not raised or resolved in the lower court. California v. Taylor, 353 U.S. 553, 557 n. 2, 77 S.Ct. 1037, 1039-40, 1 L.Ed.2d 1034, 1037 (1957); Lawn v. United States, 355 U.S. 339, 362-363, n. 16, 78 S.Ct. 311, 324, 2 L.Ed.2d 321, 337 (1958). But as Pollard v. United States, 352 U.S. 354, 359, 77 S.Ct. 481, 484-85, 1 L.Ed.2d 393, 397-98 (1957), and Brotherhood of Carpenters v. United States, 330 U.S. 395, 412, 67 S.Ct. 775, 784, 91 L.Ed. 973, 987 (1947), for example, demonstrate, the rule is not inflexible. Cf. Boynton v. Virginia, 364 U.S. 454, 457, 81 S.Ct. 182, 184, 5 L.Ed.2d 206, 209-10 (1960). Its usual formulation is: "It is only in exceptional cases coming here from the federal courts that questions not pressed or passed upon below are reviewed." Duignan v. United States, 274 U.S. 195, 200, 47 S.Ct. 566, 568, 71 L.Ed. 996, 1000 (1927). Here, as we shall describe, the circumstances justify our dealing with the issue of conflict between state and federal statutes at least to the extent of vacating the judgment below and remanding the case for consideration of the claim that the Illinois foster care program is in conflict with the Social Security Act.
6
Initially, it should be noted that the statutory issue is not foreign to the subject matter of the complaint. Attacks on state welfare statutes often combine Equal Protection Clause and Supremacy Clause issues. The latter question could surely have been pursued under the complaint filed in this case, which, as part of the "facts" incorporated by reference in each of the three causes of action, alleged that the Illinois program was in conflict with the policy of the United States expressed in subchapter IV of the Social Security Act, 49 Stat. 627, as amended, 42 U.S.C. § 601 et seq., specifically with the federal policy of encouraging the care of children in their own homes or in the homes of relatives wherever possible.
7
It is also apparent that the District Court was of the view that under Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971), "serious equal protection problems" might arise if "a state attempts to rely on the concept of fiscal integrity to limit beyond federal statutory standards the class eligible to receive federally subsidized payments." 374 F.Supp., at 1210. For this reason,he District Court compared federal and state law, and concluded: "Far from being inconsistent with the federal scheme, the Illinois scheme in general seems to parallel it. . . . Thus the federal statute makes the same classification as the Illinois statute." Ibid. Had appellants relied on the Supremacy Clause issue as a separate ground for decision it would appear that the claim would have been rejected by the District Court. In light of these circumstances, the case is at most only marginally subject to the rule that this Court will not consider issues "not pressed or passed upon" in the court below.
8
Beyond these considerations, on October 25, 1974, after the filing of the jurisdictional statement but before we noted probable jurisdiction, the Department of Health, Education, and Welfare issued Program Instruction APA-PI-75-9 stating that under the controlling federal law, "(w)hen a child has been removed from his home by judicial determination and is placed in foster care under the various conditions specified . . ., the foster care rate of payment prevails regardless of whether or not the foster home is operated by a relative." Also, in response to appellants' jurisdictional statement, the Solicitor General filed a statement in this Court urging that the Illinois foster care program was inconsistent with the Social Security Act insofar as it provided higher payments to related foster parents than to those who were not related. Neither the appellants nor the District Court had the benefit of either of these developments when the case was in the lower court. The interpretation of a statute by an agency charged with its enforcement is a substantial factor to be considered in construing the statute, New York Dept. of Social Services v. Dublino, 4 U.S. 405, 421, 93 S.Ct. 2507, 2516-17, 37 L.Ed.2d 688, 699 (1973); Columbia Broadcasting System, Inc. v. Democratic Comm., 412 U.S. 94, 121, 93 S.Ct. 2080, 2095-96, 36 L.Ed.2d 772, 794 (1973); Investment Co. Institute v. Camp, 401 U.S. 617, 626-627, 91 S.Ct. 1091, 1097, 28 L.Ed.2d 367, 376-77 (1971); and appellants1 now wish to press the issue of conflict between state and federal law. We think that it is appropriate to afford them the opportunity to do so, but that the claim should be aired first in the District Court. Vacating the judgment and remanding the case for this purpose will require the District Court first to decide the statutory issue, Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974), and if appellants prevail on that question, it will be unnecessary for either the District Court or this Court to reach the equal protection issue at all. A remand is thus consistent with our usual practice of avoiding decisions on constitutional matters if a case may be resolved on other grounds.2
9
The action we take here is similar to the order the Court entered in Thorpe v. Housing Authority, 386 U.S. 670, 87 S.Ct. 1244, 18 L.Ed.2d 394 (1967). There, rather than deciding the constitutionality of an eviction from a public housing project, the Court remanded the case for reconsideration in light of a supervening administrative directive which was issued by federal authorities and which it was thought might provide a nonconstitutional basis for decision. Cf. Richardson v. Wright, 405 U.S. 208, 209, 92 S.Ct. 788, 789-90, 31 L.Ed.2d 151, 153-54 (1972).
10
The judgment of the District Court is vacated, and the case is remanded to that court for further proceedings consistent with this opinion.
11
So ordered.
12
Judgment vacated and case remanded.
13
Mr. Justice STEVENS took no part in the consideration or decision of this case.
1
The appellee state officials have met both of appellants' claims on the merits and have not sought to restrict our review to the equal protection issue.
2
From papers lodged with the Court, it appears, and appellants do not dispute, that since September 1, 1974, the Youakims have been receiving need-based payments supplementing the AFDC payments for Timothy and Mary Lou. They now receive monthly payments totaling $105, the same amount they would receive under the AFDC-FC program. Their receipt of these payments does not moot the case. The complaint alleged that ineligibility for regular foster care payments had precluded the Youakims "from even considering accepting for foster care the (two) other family members" who are living with nonrelatives in other foster care facilities. App. 12. Were it not for the Illinois program, they allege, the Youakims could seek to bring Larry and Sherry into their foster home and would receive the same monthly $105 AFDC-FC payments per child received as a matter of course by the foster care facilities now caring for Larry and Sherry without any showing of need and without applying for need-based funds supplementing the $63 AFDC payments. Whatever its strength, the Youakims' claim that it is unlawful to require them to demonstrate need and to rely on an exception to policy in order to receive the same child care payments is not mooted by current receipt of larger payments for Timothy and Mary Lou who are living in the Youakim home. Because we conclude that the case is not moot as to the Youakims, we need not decide whether the District Court properly identified the Rule 23(b)(2) class, compare Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), with Indianapolis School Comm'rs v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975), so that the class action might be maintained notwithstanding mootness as to the named plaintiffs, or whether appellant Linda Youakim properly sued as "next friend" of her four brothers and sisters, see Fed.Rule Civ.Proc. 17(c), so that their constitutional interests could be adjudicated by the court.
| 12
|
425 U.S. 273
96 S.Ct. 1532
47 L.Ed.2d 784
Bernard A. SAKRAIDA, Petitioner,v.AG PRO, INC.
No. 75-110.
Argued March 3, 1976.
Decided April 20, 1976.
Rehearing Denied June 21, 1976.
See 426 U.S. 955, 96 S.Ct. 3182.
Syllabus
Respondent's patent covering a water flush system to remove cow manure from the floor of a dairy barn Held invalid for obviousness, it being a combination patent all the elements of which are old in the dairy business and were well known before the filing of the patent application. The system's exploitation of the principle of gravity to effect the abrupt release of water "did not produce a 'new or different function' . . . within the test of validity of combination patents." Anderson's-Black Rock v. Pavement Co., 396 U.S. 57, 60, 90 S.Ct. 305, 307, 24 L.Ed.2d 258, 261. Pp. 274-283.
Stephen B. Tatem, Jr., Winter Park, Fla., for petitioner.
J. Pierre Kolisch, Portland, Or., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Respondent Ag Pro, Inc., filed this action against petitioner Sakraida on October 8, 1968, in the District Court for the Western District of Texas for infringement of United States Letters Patent 3,223,070, entitled "Dairy Establishment," covering a water flush system to remove cow manure from the floor of a dairy barn. The patent was issued December 14, 1965, to Gribble and Bennett, who later assigned it to respondent.
2
The District Court's initial grant of summary judgment for petitioner was reversed by the Court of Appeals for the Fifth Circuit. 437 F.2d 99 (1971). After a trial on remand, the District Court again entered a judgment for petitioner. The District Court held that the patent "does not constitute invention, is not patentable, and is not a valid patent, it being a combination patent, all of the elements of which are old in the dairy business, long prior to 1963, and the combination of them as described in the said patent being neither new nor meeting the test of non-obviousness." The Court of Appeals again reversed and held the patent valid. 474 F.2d 167 (1973). On rehearing, the court remanded "with directions to enter a judgment holding the patent valid, subject, however, to . . . consideration of a motion under Rule 60(b) (2), F.R.Civ.P., to be filed in the District Court by the (petitioner) Sakraida on the issue of patent validity based on newly discovered evidence." 481 F.2d 668, 669 (1973). The District Court granted the motion and ordered a new trial. The Court of Appeals again reversed, holding that the grant of the motion was error, because "the record on the motion establishes that (petitioner) failed to exercise due diligence to discover the new evidence prior to entry of the former judgment." 512 F.2d 141, 142 (1975). The Court of Appeals further held that "(o)ur prior determination of patent validity is reaffirmed." Id., at 144. We granted certiorari. 423 U.S. 891, 96 S.Ct. 186, 46 L.Ed.2d 121 (1975). We hold that the Court of Appeals erred in holding the patent valid and also in reaffirming its determination of patent validity. We therefore reverse and direct the reinstatement of the District Court's judgment for petitioner, and thus we have no occasion to decide whether the Court of Appeals properly found that petitioner had not established a case for a new trial under Rule 60(b)(2).
3
Systems using flowing water to clean animal wastes from barn floors have been familiar on dairy farms since ancient times.1 The District Court found, and respondent concedes, that none of the 13 elements of the Dairy Establishment combination is new,2 and many of those elements, including storage of the water in tanks or pools, appear in at least six prior patented systems.3 The prior art involved spot delivery of water from tanks or pools to the barn floor by means of high pressure hoses or pipes. That system required supplemental hand labor, using tractor blades, shovels, and brooms, and cleaning by these methods took several hours. The only claimed inventive feature of the Dairy Establishment combination of old elements is the provision for abrupt release of the water from the tanks or pools directly onto the barn floor, which causes the flow of a sheet of water that washes all animal waste into drains within minutes and requires no supplemental hand labor. As an expert witness for respondent testified concerning the effect of Dairy Establishment's combination: "(W)ater at the bottom has more friction than this water on the top and it keeps moving ahead and as this water keeps moving ahead we get a rolling action of this water which produced the cleaning action. . . . You do not get this in a hose. . . . (U)nless that water is continuously directed toward the cleaning area the cleaning action almost ceases instantaneously. . . . "4
4
The District Court found that "(n)either the tank which holds the water, nor the means of releasing the water quickly is new, but embrace(s) tanks and doors which have long been known," and further that "their use in this connection is one that is obvious, and the patent in that respect is lacking in novelty. The patent does not meet the non-obvious requirements of the law." The District Court therefore held that Dairy Establishment "may be relevant to commercial success, but not to invention," because the combination "was reasonably obvious to one with ordinary skill in the art." Moreover, even if the combination filled a "long-felt want and . . . has enjoyed commercial success, those matters, without invention, will not make patentability." Finally, the District Court concluded: "(T)o those skilled in the art, the use of the old elements in combination was not an invention by the obvious-nonobvious standard. Even though the dairy barn in question attains the posture of a successful venture, more than that is needed for invention."5 The Court of Appeals disagreed with the District Court's conclusion on the crucial issue of obviousness.
5
It has long been clear that the Constitution requires that there be some "invention" to be entitled to patent protection. Dann v. Johnston, 425 U.S. 219, 96 S.Ct. 1393, 47 L.Ed.2d 692. As we explained in Hotchkiss v. Greenwood, 11 How. 248, 267, 13 L.Ed. 683, 691 (1851): "(U)nless more ingenuity and skill . . . were required . . . than were possessed by an ordinary mechanic acquainted with the business, there was an absence of that decree of skill and ingenuity which constitute essential elements of every invention. In other words, the improvement is the work of the skillful mechanic, not that of the inventor." This standard was enacted in 1952 by Congress in 35 U.S.C. § 103 "as a codification of judicial precedents . . . with congressional directions that inquiries into the obviousness of the subject matter sought to be patented are a prerequisite to patentability." Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 693, 15 L.Ed.2d 545, 556 (1966). Section 103 provides:
6
"A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made." The ultimate test of patent validity is one of law, Great A. & P. Tea Co. v. Supermarket Corp., 340 U.S. 147, 155, 71 S.Ct. 127, 131, 95 L.Ed. 162, 168 (1950), but resolution of the obviousness issue necessarily entails several basic factual inquiries, Graham v. John Deere Co., supra, 383 U.S. at 17, 86 S.Ct. at 693, 15 L.Ed.2d at 556.
7
"Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved." Ibid.
8
The Court of Appeals concluded that "the facts presented at trial clearly do not support (the District Court's) finding of obviousness under the three-pronged Graham test . . . ." 474 F.2d, at 172. We disagree and hold that the Court of Appeals erroneously set aside the District Court's findings.
9
The scope of the prior art was shown by prior patents, prior art publications, affidavits of people having knowledge of prior flush systems analogous to respondent's, and the testimony of a dairy operator with 22 years of experience who described flush systems he had seen on visits to dairy farms throughout the country. Our independent examination of that evidence persuades us of its sufficiency to support the District Court's finding "as a fact that each and all of the component parts of this patent . . . were old and well-known throughout the dairy industry long prior to the date of the filing of the application for the Gribble patent. . . . What Mr. Gribble referred to . . . as the essence of the patent, to-wit, the manure flush system, was old, various means for flushing manure from dairy barns having been used long before the filing of the application . . . ."6 Indeed, respondent admitted at trial "that the patent is made up of a combination of old elements" and "that all elements are individually old . . . ." Accordingly, the District Court properly followed our admonition in Great A. & P. Tea Co. v. Supermarket Corp., supra, 340 U.S., at 152, 71 S.Ct., at 130, 95 L.Ed., at 167: "Courts should scrutinize combination patent claims with a care proportioned to the difficulty and improbability of finding invention in an assembly of old elements. . . . A patent for a combination which only unites old elements with no change in their respective functions . . . obviously withdraws what already is known into the field of its monopoly and diminishes the resources available to skillful men. . . . "
10
The Court of Appeals recognized that the patent combined old elements for applying water to a conventional sloped floor in a dairy barn equipped with drains at the bottom of the slope and that the purpose of the storage tank to accumulate a large volume of water capable of being released in a cascade or surge was equally conventional. 474 F.2d, at 169. It concluded, however, that the element lacking in the prior art was any evidence of an arrangement of the old elements to effect the abrupt release of a flow of water to wash animal wastes from the floor of a dairy barn. Ibid. Therefore, "although the (respondent's) flush system does not embrace a complicated technical improvement, it does achieve a synergistic result through a novel combination." Id., at 173.
11
We cannot agree that the combination of these old elements to produce an abrupt release of water directly on the barn floor from storage tanks or pools can properly be characterized as synergistic, that is, "result(ing) in an effect greater than the sum of the several effects taken separately." Anderson's-Black Rock v. Pavement Co., 396 U.S. 57, 61, 90 S.Ct. 305, 308, 24 L.Ed.2d 258, 261 (1969). Rather, this patent simply arranges old elements with each performing the same function it had been known to perform, although perhaps producing a more striking result than in previous combinations. Such combinations are not patentable under standards appropriate for a combination patent. Great A. & P. Tea Co. v. Supermarket Corp., supra; Anderson's-Black Rock v. Pavement Co., supra. Under those authorities this assembly of old elements that delivers water directly rather than through pipes or hoses to the barn floor falls under the head of "the work of the skilful mechanic, not that of the inventor." Hotchkiss v. Greenwood, 11 How., at 267, 13 L.Ed., at 691. Exploitation of the principle of gravity adds nothing to the sum of useful knowledge where there is no change in the respective functions of the elements of the combination; this particular use of the assembly of old elements would be obvious to any person skilled in the art of mechanical application. See Dann v. Johnston, 425 U.S., at 229, 96 S.Ct., at 1399, 47 L.Ed.2d, at 699.
12
Though doubtless a matter of great convenience, producing a desired result in a cheaper and faster way, and enjoying commercial success, Dairy Establishment "did not produce a 'new or different function' . . . within the test of validity of combination patents." Anderson's-Black Rock v. Pavement Co., supra, 396 U.S., at 60, 90 S.Ct., at 308, 24 L.Ed.2d, at 261. These desirable benefits "without invention will not make patentability." Great A. & P. Tea Co. v. Supermarket Corp., 340 U.S., at 153, 71 S.Ct., at 130, 95 L.Ed., at 167. See Dann v. Johnston, 425 U.S., at 229, 96 S.Ct., at 1399, 47 L.Ed.2d, at 699 n. 4.
13
Reversed.
1
Among the labors of Hercules is the following:
"Heracles now set out to perform his fifth Labour, and this time his task was to cleanse the stables of Augeas in a single day. Augeas was a rich king of Elis, who had three thousand cattle. At night the cattle always stood in a great court surrounded with walls, close to the king's palace, and as it was quite ten years since the servants had cleaned it out, there was enough refuse in the court to build up a high mountain. Heracles went to Augeas and asked if he would give him the tenth part of his flocks if he thoroughly cleansed his stables in a single day. The king looked upon this as such an absolutely impossible feat that he would not have minded promising his kingdom as a reward for it, so he laughed and said, 'Set to work, we shall not quarrel about the wages,' and he further promised distinctly to give Heracles what he asked, and this he did in the presence of Phyleus, his eldest son, who happened to be there. The next morning Heracles set to work, but even his strong arms would have failed to accomplish the task if they had not been aided by his mother-wit. He compelled a mighty torrent to work for him, but you would hardly guess how he did it. First he opened great gates on two opposite sides of the court, and then he went to the stream, and when he had blocked up its regular course with great stones, he conducted it to the court that required to be cleansed, so that the water streamed in at one end and streamed out at the other, carrying away all the dirt with it. Before evening the stream had done its work and was restored to its usual course." C. Witt, Classic Mythology 119-120 (1883).
2
The District Court found as follows respecting Claims 1 and 3, the only claims involved in the case:
"1. I find that the 'dairy establishment' as described in United
States Letters Patent 3,233,070 is composed of 13 separate items, as follows:
"(a) ' . . . a smooth, evenly contoured, paved surface forming a floor providing a walking surface. . . . '
"(b) ' . . . drain means for draining wash water from such floor opening to the top of the floor.'
"(c) ' . . . said smooth, evenly contoured surface which forms such floor sloping toward said drain. . . . '
"(d) ' . . . multiple rest areas with individual stalls for each cow and with each of said stalls having a bottom which is also a smooth pavement. . . . '
"(e) ' . . . which is disposed at an elevation above the paved surface forming the floor. . . . '
"(f) ' . . . said stalls being dimensioned so that a cow can comfortably stand or lie in the stall, but offal from the cow falls outside the stall bottom and onto the floor providing the walking surface in the barn. . . . '
"(g) ' . . . said barn further including defined feeding areas having feeding troughs. . . . '
"(h) ' . . . a cow-holding area.'
"(i) ' . . . a milking area.'
"(j) ' . . . a transfer area all bottomed with the walking surface forming said floor in the barn. . . . '
"(k) ' . . . and floor washing means for washing the floor providing the walking surface in the barn where said floor bottom, said feeding, holding, milking and transfer areas operable to send wash water flowing over the floor with such water washing any cow offal thereon into the said drain means, said floor washing means including means located over a region of said floor which is uphill from said drain means constructed to collect water as a pool above said floor and operable after such collection of water as a pool to dispense the water as a sheet of water over said floor.'
"(L ) A tank on a mounting so that it can be tilted, and the water poured out to cascade on the floor to form a sheet.
"(m) A floor-washing means comprising a dam for damming or collecting water as a pool directly on the floor, which such dam
abruptly openable to send water cascading as a sheet over the floor towards the drain.
"2. I further find that each of the items above-described were not new, but had been used in the dairy business prior to the time the application for the said Gribble patent, made the subject of this action, had been filed in the Patent Office of the United States on November 5, 1963."
3
The District Court found:
"(M)any of the items going to make up Plaintiff's claim for a patent were disclosed in prior patents, known respectively as the McCornack patent, the Holz patent, the Ingraham patent, the Kreutzer patent, the Bogert patent, and the Luks patent; and that the statements of the Examiner's opinions refusing to issue a patent are true as to all items there stated to be covered in prior patents or publications."
4
This witness further testified that:
"(W)ater has energy and it can be used in many different ways. In a hose the energy is used by impact, under pressure, external force
that is applied to this pressure to this water, whereas the water that comes down as a sheet or wall of water has built in energy because of its elevation and as this water is released it does the same thing water does in a flooded stream. As this water I will try to make this clear, and I hope I can, on the surface of this pavement there are these piles of manure droppings. This pavement is smooth and this water moves down over this manure. The water at the bottom has more friction than this water on the top and it keeps moving ahead and as this water keeps moving ahead we get a rolling action of this water which produced the cleaning action. That is the key to this method of cleaning. You do not get this in a hose. You do not get it in a gutter as has been used in the past. I might just mention a little bit about the hose. This squirting water on a floor probably have done it on our own sidewalks or walkways, and I just mention that, that unless that water is continuously directed towards the cleaning area the cleaning action almost ceases instantaneously. Now the movie that was shown earlier very dramatically illustrated that point. The cleaning action as soon as the hoses moved to one side the cleaning action ceased here and that is why this hose was moved back and forth, to drive this stuff on down to where we want it."
5
The court also concluded that "while the combination of old elements may have performed a useful function, it added nothing to the nature and quality of dairy barns theretofore used."
6
The court stated:
"I therefore find as a fact that each and all of the component parts of this patent as listed under the applicant's claims set out in said patent, were old and well-known throughout the dairy industry long prior to the date of the filing of the application for the Gribble patent. I further find that what Mr. Gribble referred to in his deposition as the essence of the patent, to-wit, the manure flush system, was old, various means for flushing manure from dairy barns having been used long before the filing of the application for the Gribble patent, the general idea in that connection being a hard surfaced sloping floor onto which the cows' offal was dropped, and some system of introducing water in sufficient quantities and force onto said floor to wash the offal therefrom, with a ditch or drain to carry the offal so washed away from the barn, either into a manure container or otherwise."
| 78
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425 U.S. 257
96 S.Ct. 1438
47 L.Ed.2d 722
State of OHIO, Petitioner,v.Terry L. GALLAGHER.
No. 74-492.
April 5, 1976.
PER CURIAM.
1
We granted certiorari1 to determine whether the admission in evidence of statements made by an accused in response to in-custody questioning by his parole officer violates the rule of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
2
On June 21, 1972, the respondent, Terry L. Gallagher, was arrested and later charged with the armed robbery of a food store. On the morning following his arrest, two detectives advised respondent of his rights under Miranda and then questioned him.2
3
Four days later, respondent's parole officer, William Sykes, went to the jail to talk to him about the food store robbery as a possible violation of parole. Respondent refused to discuss it, but on a return visit a week later, Gallagher gave Sykes a detailed account of his participation in the crime. It is undisputed that, at no time, did the parole officer advise Gallagher that he had a right to remain silent or that any statements he made would be used as evidence against him. At trial, the parole officer was called as a prosecution witness and testified, over defense objection, to the incriminating statements made to him by Gallagher.
4
Respondent was convicted of armed robbery in the Ohio Court of Common Pleas. The Ohio Court of Appeals affirmed. 36 Ohio App.2d 29, 301 N.E.2d 888 (1973).
5
The Supreme Court of Ohio granted respondent's motion for leave to appeal and reversed the judgment of conviction. 38 Ohio St.2d 291, 313 N.E.2d 396 (1974). In its opinion, the state court defined the question presented by respondent's appeal as "whether testimony, concerning certain statements made by (respondent) to his parole officer about his involvement in a crime, was received at trial in violation of (respondent's) privilege against self-incrimination, as guaranteed by § of the Ohio Constitution, and the Fifth Amendment to the United States Constitution." Id., at 294, 313 N.E.2d, at 398-399. The Ohio Supreme Court held that testimony relating the statements of an accused in response to questions by his parole officer is inadmissible at trial if, prior to the questioning, the parole officer failed to advise the accused of his right to remain silent and his right to be provided with counsel prior to questioning, and to warn him that any statement might be used as evidence against him. Id., at 297, 313 N.E.2d, at 400.
6
From the briefs and oral argument, we are unable to determine whether the Ohio Supreme Court rested its decision upon the Fifth and Fourteenth Amendments to the Constitution of the United States, or Art. I, § 10, of the Ohio Constitution, or both. In its full opinion, the Ohio court cited with approval an excerpt from the opinion of the Court of Appeals for the Fifth Circuit in United States v. Deaton, 468 F.2d 541 (1972), a case which, in the view of the state court, presented the precise question then before it. We are unsure whether the Ohio court made reference to Deaton merely to lend support to its view that a parolee is under heavy pressure to cooperate with his parole officer or whether the court intended to demonstrate its reliance on a federal constitutional ground. Indeed, we cannot be certain that the Ohio court did not construe its constitutional provision to be identical to that contained in the Fifth Amendment and thus render judgment simultaneously under both state and federal law.
7
We also note that, except for per curiam opinions, it is the settled rule in Ohio that its Supreme Court speaks as a court only through the syllabi of its cases. See Cassidy v. Glossip, 12 Ohio St.2d 17, 24, 231 N.E.2d 64 (1967); see also Beck v. Ohio, 379 U.S. 89, 93, 85 S.Ct. 223, 226, 13 L.Ed.2d 142, 146 (1964). The italicized headnote which appears in the instant syllabus can be read as a holding based only on points of criminal law and the law of evidence ; it contains nothing to indicate that a point of federal constitutional law is decided. Because we decline to speculate from the choice of words used in the syllabus and the authorities cited by the author of the opinion as to which constitutional provision formed the basis for the judgment of the state court, we vacate the judgment of the Supreme Court of Ohio and remand the cause to permit that court to explicate whether or not its judgment relies on federal law. California v. Krivda, 409 U.S. 33, 93 S.Ct. 32, 34 L.Ed.2d 45 (1972); Mental Hygiene Dept. v. Kirchner, 380 U.S. 194, 85 S.Ct. 871, 13 L.Ed.2d 753 (1965); Minnesota v. National Tea Co., 309 U.S. 551, 60 S.Ct. 676, 84 L.Ed. 920 (1940). We intimate no view on the merits of the Fifth and Fourteenth Amendment issue presented.
8
Vacated and Remanded.
9
Mr. Justice STEVENS took no part in the consideration or decision of this case.
10
Mr. Justice STEWART, with whom Mr. Justice MARSHALL and Mr. Justice BLACKMUN concur, dissenting.
11
It is clear to me that the judgment of the Supreme Court of Ohio rests upon both the Constitution of the State of Ohio and the Constitution of the United States. That being so, the writ of certiorari must be dismissed as improvidently granted under the doctrine of Jankovich v. Toll Road Comm'n, 379 U.S. 487, 85 S.Ct. 493, 13 L.Ed.2d 439.
12
The issue that the Ohio court thought it had to decide could hardly have been more unambiguously stated than it was by Justice William B. Brown in the opening paragraph of the opinion of the court:
13
"The question presented is whether testimony, concerning certain statements made by appellant to his parol officer about his involvement in a crime, was received at trial in violation of appellant's privilege against self-incrimination, as guaranteed by Section 10, Article I of the Ohio Constitution, and the Fifth Amendment to the United States Constitution." 38 Ohio St.2d 291, 294, 313 N.E.2d 396, 398-399.*
14
I would dismiss the writ of certiorari as improvidently granted.
1
420 U.S. 1003, 95 S.Ct. 1445, 43 L.Ed.2d 761 (1975).
2
Statements elicited from the respondent during this police interrogation were later suppressed by the trial court on the ground that they were induced by promises of leniency and, as such, were involuntary.
*
For more than 100 years the Ohio Supreme Court in other than per curiam opinions has stated the law of the case only in the syllabus. The syllabus in the present case makes no reference whatever to constitutional law, state or federal, but appears to be no more than a ruling in the area of state-evidence law. If the law of this case is to be so understood, it would a fortiori present no federal question.
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